City of Laurel v. Reddoch , 200 Miss. 259 ( 1946 )

DISSENTING OPINION. The path traveled by this case through the court below, and to final judgment here, and the uncertainty of the issue to be tried under it in the Circuit Court, as will appear from City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319, demonstrate that this crude and confusing statute, Chap. 208, Laws 1944, should be rewritten so as to clearly set forth both its substantive and procedural purposes. Under Section 10 of the statute the discharge by a city's mayor and commissioners of a member of the city's fire department may, on his demand, be investigated by the city's Civil Service Commission, created under Section 1 of the statute. This "investigation," so declares that section of the statute, "shall be confined to the determination of the question of whether such . . . discharge was or was not made for political or religious reasons and was or was not made in good faith or cause." After making the investigation, the Civil Service Commission may either affirm or annul this discharge. If dissatisfied with the commission's decision, the discharged fireman may appeal to the Circuit Court of the county wherein he resides. The trial in that court, in the language of Section 10 of the statute, "shall be confined to the determination of whether the judgment or order or removal, discharge, demotion or suspension made by the commission, was or was not made in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds."

While the statute seems to require no new pleadings in the Circuit Court, it is clear from it that the appealing fireman, who is the plaintiff therein, has the burden of proving that the order made by the Civil Service Commission "was not made in good faith or cause," and the procedure before the jury should conform to that in other jury trials in the Circuit Court. This course was not pursued in the court below, but the appellant, the discharged fireman, filed a motion therein to quash the order of the Civil Service Commission, on the trial of which the evidence was pointed, not at the good faith of the Civil Service Commission in making the order appealed from, but to the good faith of the mayor and commissioners in discharging the appellee.

As pointed out in the controlling opinion, the mayor and commissioners had the right to abolish the position of assistant fireman in its fire department; but the abolishment thereof here did not automatically result in the discharge of the appellee. He should have then been given a position as captain in the fire department, or its equivalent, had he so requested, but which he failed to do, and it is clear from the evidence, would not have accepted had it been offered him. This being true no question remained for the decision of the jury. Consequently, when the court below withdrew the case from the jury, nothing remained for it to do but affirm the order made by the Civil Service Commission.

What here happened was that the mayor and commissioners wrongfully assumed that the abolition of the appellee's position as assistant fire chief automatically retired him from the fire department and the appellee wrongfully assumed that the mayor and commissioners were without the right to abolish his position as assistant fire chief. The basis of his appeal to the Civil Service Commission, to the court below, and to this Court, is, not that he was entitled to remain a captain in the city's fire department, but that he was entitled to remain and be designated as the city's assistant fire chief. The Civil Service Commission, after correctly holding that the mayor and commissioners had the right to abolish the position of assistant fire chief, did the appellee full, if not more than, justice by holding that he had the right to do that which he could and should have done in the first instance — apply to the mayor and commissioners for employment in another capacity, that is, other than as assistant fire chief, and he has no just cause of complaint threat. The relative rights of the appellee and other members of the appellant's fire department, growing out of the abolition of the position of assistant fire chief, could best be determined in the first instance by the mayor and commissioners, and if dissatisfied therewith the appellee's remedy would be an appeal to the Civil Service Commission, and from there, if necessary, to the Circuit Court.

The statute failed to prescribe what judgment the Circuit Court should render if the order of the Civil Service Commission should be affirmed. This omission may be harmless; but it is not when that order is disapproved, as my associatees have here done. The statute should clearly provide whether, in that event, the case should be remanded to the court below, and by it to the Civil Service Commission, or whether the Supreme Court should make the order which the Civil Service Commission, in its judgment, should have made. My associates have here exercised the latter power, without seeking to justify it, either as being expressly, or by necessary implication, conferred.

The judgment of the court below should be reversed, and one rendered here, affirming the order of the Civil Service Commission.