This is аn appeal from a judgment of the district court holding that Chapter 19, article 18, R. R. S. 1943, as amended by Laws 1957, chapter 48, page 228, involves a matter of state-wide concern and therefore is applicable to the city of Grand Island, a home rule charter city. The trial court further hеld that the plaintiff in error was improperly discharged from the police department of the city under the terms of the act and that he was entitled to a position in such department from and after the abolishment of the position he held on April 9, 1957. The city of Grand Island has appеaled.
For convenience we shall refer to the appellee as the plaintiff, and the appellant, city of Grand Island, as the defendant.
On May 3, 1956, plaintiff was appointed to the position of assistant chief of police in the police department of the defendant. On April 9, 1957, the city council, by an ordinance properly enacted, abolished the position of assistant chief of police. Plaintiff was notified of the abolishment of his position. He was paid until April 15, 1957. His services in the police department were treated as terminatеd as of that date. On April 16, 1957, plaintiff asserted in writing to the city council that he had been improperly deprived of his civil service rights under the provisions of Chapter 19, article 18, R. R. S. 1943, as amended by Laws 1957, chapter 48, page 228, which we shall hereafter refer to as the civil service act, аnd demanded of the city council of the defendant that it take action to protect such rights. The city council took no decisive action and, for all practical purposes, denied plaintiff’s claim. The plaintiff sought a review of the action of the city council by a proceeding in error to the district court. The defendant contends that the proceeding in the district court was a *396 purported appeal from the action of the city council or an original action, neither of which is authorized by law. Before discussing the nature of the proceeding it is necessary to refer to certain provisions of the act before us.
The part of the 1957 amendments to the civil service act with which we are here concerned became effective on April 1, 1957. It created a civil service commission whose dutiеs were described in the act. Among those duties is one which requires the commission to determine the civil service rights of members of the police department. From an order determining such rights, a party interested was given a right of appeal to the district court. The city council had nоt appointed such a commission or taken any steps to bring the city within the civil service act when plaintiff’s claim was presented to it. There was no provision for an appeal in such a situation as the city council then had before it. In such a situation the only method of obtaining a review of the action of the city council was by petition in error. This court has consistently held that where no statutory right of review has been provided, proceedings in error afford the only remedy. From v. Sutton,
The contention of the defendant that the proceeding was not on error does not appear to have merit. The instrument filed in the district cоurt was denominated a petition in error. It pointed out that the city council had refused to establish a civil service commission, or to put the civil service act into effect. It asserted that the city council by its nonaction in refusing to put the act in effect had deprived the рlaintiff of the benefits *397 of that act, including his service rights based on qualifications and length of service. The petition in error alleged that the city council was in error in not granting to him the benefits of the civil service statute. We think the petition in error was what it purported to be and proрerly raised the errors of law of the city council in refusing to give any consideration to the rights allegedly due plaintiff under the civil service act. It was not an appeal or the institution of an original action, nor did it purport to be such.
The defendant contends that the civil service act is not applicable to the city of Grand Island because of its status as a home rule charter city. The act provides that it shall apply to every city in the state having a population of more than 5,000 inhabitants and having a full paid fire or police department, except that it shall not apply to cities with a population in excess of 40,000 which have adopted or will hereafter adopt a home rule charter. Whether or not the civil service act is applicable to Grand Island, a city admittedly having a population of less than 40,000 and more than 5,000, is dependent upon whether or not the act is of state-wide or local concern. The act deals solely with employees in paid fire and police departments. The rule is stated in Axberg v. City of Lincoln,
The record shows that the position designated as assistant chief of police was abolished by a properly enacted city ordinance. A municipality may in good faith abolish a position because of financial necessity or reasons of sound business management. Wood v. Loveless,
It is provided by section 3 of the 1957 amendments to the civil service act as follows: “The classified civil service and the provisions of this act shall include all full paid employees of the fire or police department of each city coming within its purview, including the chief of that deрartment. All appointments to and promotions in such departments shall be made solely on merit, efficiency, and fitness, which shall be ascertained by open competitive examination and impartial investigation. No person shall be reinstated in or transferred, sus
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pended, or discharged from any such place, position, or employment contrary to the provisions of this act.” Other provisions of the act detail the methods by which the civil service employees within the scope of the act may assert their rights under it. While such rights are not property rights in the usual sense, they are rights which are entitled to the protection of the law. State ex rel. Spurck v. Civil Service Board,
The record shows that the civil service act here questioned became effective for all purposes on April 1, 1957. The rights of plaintiff under the act accrued as of that date by the terms of the act itself. Plaintiff’s pay was terminated as of April 15, 1957, and, while not entitled to continue thereafter as assistant chief of police, he could not properly be discharged from the police department except in the manner providеd in the act. No attempt was made to comply with the provisions of the act in this respect, and consequently he remains an employee of the police department. The failure of the city council to comply with the statute cannot be held to vest any authority in thе city to discharge a member of the police department in a manner contrary to the provisions of the act. The failure of the city council to provide a civil service commission under the terms of the civil service act had the effect of suspending the powеr of discharge which is lodged solely in the commission by the act. The power of discharge cannot be exercised because the city has failed to establish the commission to which the power of discharge was delegated by the Legislature. Logan v. City of Two Rivers,
*400 The plaintiff has cross-appealed, contending that the district court should have determined the position and wage scale to which he was entitled after his position of assistant chief of police was abolished. The record contains a roster of employees in the police department which shows the rank, compensation, time of employment, and dates of promotions. The only evidence in the record is that plaintiff is a highly qualified police officer, who had served in excess of the minimum of 6 months required by the аct. He was therefore entitled to the benefits of the act.
By section 6 of the 1957 amendments to the act it is provided in part: “No person in the classified civil service, who shall have been permanently appointed or inducted into civil service under the provisions of this act, shall be removed, suspended, demoted, or discharged except for cause and then only upon the written accusation of the appointing power or any citizen or taxpayer. * * * Any person so removed, suspended, demoted, or discharged may, within ten days from the time оf his removal, suspension, demotion, or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. * * * If it shall find that the removal, suspension, or demotion was made for political or religious reasons or was not made in goоd faith for cause, order the immediate reinstatement or re-employment of such person in the office, place, position, or employment from which such person was removed, suspended, demoted, or discharged, which reinstatement shall, if the commission in its discretion so provides:, be retroactive and entitle such person to pay or compensation from the time of such removal, suspension, demotion, or discharge. * * * If such judgment or order be concurred in by the commission or a majority thereof, the accused may appeal therеfrom to the district court.”
The civil service act is remedial in character. It invests employees included within its scope with rights
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which they did not theretofore possess. It provides the procedure by which such rights are to be enforced. The act is mandatory upon all cities within its scope and imposes a duty to appoint members to the civil service commission thus created. The remedy available to the plaintiff for the enforcement of his civil service rights is contained in the act itself. The controlling rule is: “If an affirmative statute, which is introductory of a new law, dirеct a thing to be done in a certain manner, that thing shall not, even though there are no negative words, be done in any other manner, the mode prescribed by statute for the exercise of a power, must be adopted. In some cases, a strict, and even literal, compliance is required. This is particularly true in regard to enactments modifying the course of the common law.” Vore v. State,
The judgment of the district court found that the civil service act was applicable to the city of Grand Island and that plaintiff was not discharged from the police depаrtment of the city under the provisions of the civil service statute. This disposed of all issues properly raised by the petition in error. Since the position of assistant chief of police was properly abolished by the city council, the plaintiff cannot be returned to that position. The act contemplates that the civil service commission shall determine in the first instance the position to which he was entitled when the position he occupied was abolished. The city council has no power to do so. The district court on petition in error, in detеrmining the correctness of the quasi-judicial acts of the city council, cannot make an order on the merits of the case which is beyond the powers of the tribunal to make, from which the petition in error emanated. We do not think there is merit in the error assigned by the cross-appeal.
The trial court having entered judgment in accordance *402 with the holdings of this opinion, the judgment of the district court is affirmed.
Affirmed.