135 S.E.2d 27 | N.C. | 1964
In re Discharge of Robert C. BURRIS by the City Manager, the Civil Service Commission and the City Council of the City of Asheville.
Supreme Court of North Carolina.
*29 W. M. Styles, Asheville, for petitioner appellant.
O. E. Starnes, Jr., Asheville, for City of Asheville, respondent appellee.
William J. Cocke, Asheville, for Civil Service Board, respondent appellee.
DENNY, Chief Justice.
Section 14 of Chapter 757 of the Session Laws of 1953 provides, among other things, that any employee in the classified service of the City of Asheville may be laid off, suspended or removed from employment, either by the City Manager or by the officer by whom appointed. An employee, when laid off or discharged, may, within five days of the time he received notice of his discharge, demand a written statement of the reasons therefor. Upon such demand, the officer who discharged the employee shall supply the person discharged and the Civil Service Board with a written statement of the reasons for such discharge. Thereupon, the Board shall fix a time and place for a public hearing. At such hearing, the testimony shall be reduced to writing. The Board shall make a written report of its findings and recommendations and this report, together with the evidence and the charges, shall be filed with the City Clerk and be open to public inspection. Within five days after the filing of the report of the Board with the City Clerk, the City Manager or the employee affected, may request the City Council to approve or disapprove the report. "In the absence of any such request, the report shall be final and conclusive at the expiration of said five day period. Otherwise, the City Council shall, at a regular session, vote on the approval or disapproval of the same. It shall require the affirmative votes of five members of the Council to disapprove the report. Lacking such five votes, the report shall be approved. In either event, the action of the City Council is final."
It is said in McQuillin, Municipal Corporations, section 12.267, page 397, et seq.: "In most jurisdictions certiorari to review removal proceedings is sanctioned. The general rule is that if the act of removal is executive it is not reviewable on certiorari, but if it is on a hearing and formal findings, it is so reviewable. Stated in another way, the writ may be invoked only to review acts which are clearly judicial or quasi-judicial. * * * Certiorari has also been denied where appeal is allowed, but a statute forbidding appeals in removal proceedings does not preclude resort to the remedy. * * *
"On certiorari the probative force and sufficiency of the evidence to sustain the charge of removal will not be reviewed. The province of the court is to enforce substantial observance of the law; it is not to pass upon the merits * * *."
Rhyne, Municipal Law, section 8-39, at page 182, states: "Although boards and commissions authorized to dismiss or demote personnel are not courts, they exercise quasi-judicial functions and generally follow judicial procedures."
Of the scope of review by certiorari Rhyne says, in section 8-41, at page 187: "Certiorari or a statutory appeal in the nature of certiorari, is available in many jurisdictions to test the validity of a removal. In such cases, the decision of removal will be upheld if the administrative body had jurisdiction, its findings are supported by competent evidence, and it has otherwise acted legally."
In the case of Russ v. Bd. of Education of Brunswick County, 232 N.C. 128, 59 S.E.2d *30 589, Ervin, J., speaking for the Court, said: "G.S. § 1-269 expressly stipulates that `writs of certiorari * * * are authorized as heretofore in use.' It is well settled in this jurisdiction that certiorari is the appropriate process to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law," citing numerous authorities.
In view of the provisions of the statute creating the Civil Service Board of the City of Asheville, and the procedure outlined in Section 14 thereof, we hold that a hearing pursuant to the provisions of the Act with respect to the discharge of a classified employee of the City of Asheville by said Civil Service Board, is a quasi-judicial function and is reviewable upon a writ of certiorari issued from the Superior Court. Russ v. Bd. of Education of Brunswick County, supra; Warren v. Maxwell, 223 N.C. 604, 27 S.E.2d 721, and cited cases.
The regulations adopted by the Civil Service Board are not included in the record on appeal. Likewise, the testimony offered at the hearing before the Civil Service Board is not brought forward in the record. Nor were any exceptions taken to the findings of fact or to the recommendation of said Board. Therefore, it must be presumed that the findings of fact are supported by competent evidence. Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102; City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486; Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711; Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6; Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20; Radeker v. Royal Pines Park, Inc., 207 N.C. 209, 176 S.E. 285.
Ordinarily, an appeal constitutes an exception to the judgment and presents the question whether the facts found are sufficient to support the judgment, i. e., whether the court correctly applied the law to the facts found. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Gibson v. Central Mfrs.' Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320; Roach v. Pritchett, supra, and cited cases.
Since the writ of certiorari issued in this proceeding was used as a substitute for appeal, as provided in G.S. § 1-269, and the petitioner in his petition for the writ challenged the legality of his discharge pursuant to the Act creating the Civil Service Board and the regulations made pursuant thereto, in our opinion, while the court below was bound by the facts found by the Civil Service Board and approved by the City Council, the petitioner was entitled to have the court pass upon the question whether or not the facts found are sufficient under the law and the regulations of the Civil Service Board to constitute a valid cause for the petitioner's discharge.
The order dismissing this proceeding is set aside and the cause remanded for further hearing not inconsistent with this opinion.
Error and remanded.
