City of Meridian v. Davidson

• Decision Date: 14 May 1951
• Docket Number: No. 37905,37905
• Citation: 211 Miss. 683,53 So.2d 48
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. DAVIDSON.

Page 48

53 So.2d 48

211 Miss. 683

CITY OF MERIDIAN v. DAVIDSON.

No. 37905.

Supreme Court of Mississippi, in Banc.

May 14, 1951.

Dunn & Singley, Meridian, for appellant.

M. V. B. Miller, Gerald Adams, Meridian, for appellee.

McGEHEE, Chief Justice.

This appeal presents the unique, or rather incongruous, problem of whether a jury in the circuit court can intelligently determine when a civil service commission of a municipality has acted in 'good faith for cause' in discharging a member of its fire department, where the jury does not have before it the same evidence on which the commission acted, but hears additional testimony on the same issues of fact passed on by the commission. And it necessitates a reexamination of some of the questions involved in McLeod v. Civil Service Commission, 198 Miss. 721, 21 So.2d 916; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; and the principle announced, although under a different statute, in California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120 and other cases defining and limiting the issue to be determined in the circuit court on appeals from decisions of executive, legislative or administrative agencies.

The judgment of the circuit court appealed from herein, based upon the verdict of the jury, reversed a decision of the Civil Service Commission of the City of Meridian which had affirmed the action of George J. Roark, as City Manager, in discharging the appellee, R. R. Davidson, on December 27, 1949, as a civil service employee of the fire department of the city. Theretofore on December 24, 1949, this employee was suspended by the chief of the fire department, P. M. Pigford, pending investigation of specific charges thereafter preferred by him against the employee, and with the result that on the said 27 day of December 1949 the city manager advised the employee as follows:

'Based upon information furnished me and charges that have been filed against you by Fire Chief P. M. Pigford, this is to advise you that his recommendation of suspension and dismissal is hereby approved and ordered and the following specific charges are being made of record:

'1. Being under the influence of liquor or drug while on duty at or about 9:15 a. m. December 24, 1949, at the No. 1 Fire Station, City of Meridian, Mississippi.

'2. Committing an assault upon Captain J. E. Terry.

'3. Insubordination to superior officers.

'4. Being discourteous to a fellow employee.'

Thereupon, the employee made his demand in writing for an investigation of the charges by the civil service commission of the city, since he was entitled to the hearing before such commission by virtue of the provisions of Chapter 208, Laws of 1944.

Section 9 of the Act reads as follows:

'The tenure of everyone holding an office, place, position or employment under the provisions of this act shall be only during good behavior, and any such person may be removed or discharged, suspended without pay, demoted or reduced in rank, or deprived of vocation privileges, or other special privileges, for any of the following reasons:

'Incompetency, inefficiency, or inattention of duty; dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission, or commission tending to injure the public service.'

Within the time required by law, a hearing was had before the civil service commission, at which the accused appeared in person and represented by counsel, and was presumably given an opportunity to fully answer the charges by his own testimony and that of any other witnesses he desired to introduce to contradict the testimony of the witnesses called by the city to sustain them. After hearing the testimony of witnesses pro and con, the commission entered its order reciting, among other things, that 'it appearing that on December 27, 1949, the City Manager of the City of Meridian, George J. Roark, dismissed the said R. R. Davidson and filed written accusations' against him, enumerating them as hereinbefore set forth, and that 'a full and complete investigation and public hearing having been had and numerous witnesses examined and the Board of Civil Service Commissions being fully advised in the premises finds that in its estimation the evidence is conclusive and sustains the written charges made against the said R. R. Davidson on December 27, 1949 * * *. The action of the City Manager in suspending and discharging or dismissing the said R. R. Davidson as an employee of the Fire Department of the City of Meridian is therefore affirmed and approved.'

Thereupon, an appeal was taken to the circuit court of the county, where a trial was had before the jury, when several witnesses testified who admittedly did not testify at the hearing before the civil service commission, and it does not appear from the record before us as to whether or not all of the witnesses who did testify before the civil service commission had thereafter testified again in the circuit court.

Section 10 of the Act provides, among other things, that 'The investigation [before the commission] shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons and was or was not made in good faith or cause. After such investigation the commission may, if in its estimation the evidence is conclusive, affirm the removal, or if it shall find that the removal, suspension, or demotion was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement or re-employment of such person in the office, place, position, or employment from which such person was removed, * * *.' And said section further provides that 'If such judgment or order be concurred in by the commission or a majority thereof, the accused may appeal therefrom to the circuit [court] of the county wherein he resides.' In regard to such appeal, it is provided that there shall be 'a written notice of appeal, stating the grounds thereof, and demanding that a certified transcript of the record and of all papers on file in the office of the commission affecting or relating to such judgment or order, be filed by the commission with such court. The commission shall, within ten days, after the filing of such notice, make, certify and file such transcript with such court. The said circuit court shall thereupon proceed to hear and determine such appeal and the accused shall have the right of trial by jury; provided, however, that such hearing 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.' (Italics ours.) In his notice of appeal, the employee did not state that he desired an appeal on the limited issue last above set forth, but stated: 'The ground of which (appeal) being that the evidence was not conclusive against him on the question of whether or not he was discharged in good faith for cause either by Fire Chief P. M. Pigford or Mr. George Roark, City Manager; * * *.' (Italics ours.)

On appeal to the circuit court the issue is not whether the chief of the fire department or the city manager acted in good faith for cause, but whether the commission acted in good faith for cause after a hearing on all of the testimony pro and con, a hearing at which the employee was called upon the first time to answer the charges against him. Nor was the jury in the circuit court required, under the Act or the instructions given by the court, to believe that the evidence of guilt was conclusive when heard by the commission, but whether or not the commission acted in good faith for cause in believing the evidence to be conclusive which it had heard in support of the charges, as against the evidence heard by it to the contrary.

However, no point was made in the circuit court, and there is no assignment of error here, as to whether or not the appeal from the commission was properly perfected in that particular. The appeal having been treated in that regard in the circuit court as one taken in accordance with the Act, we shall so treat it here so far as that point is concerned for the purpose of the present appeal to this Court.

The employee demanded that a certified transcript of the record and all papers on file in the office of the board of civil service commissioners be filed by the commissioners with the circuit court, as required by the Act in question, but the testimony taken before the civil service commission was neither transcribed by a reporter nor filed with the clerk of the circuit court. Therefore, the jury in the circuit court, which was confined by the provisions of the Act to the determination of the issue of whether the judgment of the commission appealed from 'was or was not made in good faith for cause', had no means of knowing on what testimony the commission had acted when it approved and affirmed the action of the city manager in discharging the employee on the charges preferred against him.

In determining that the civil service commission had not acted in good faith for cause, the jury in the circuit court was necessarily influenced in its decision by the testimony of the additional witnesses when rendering its verdict in favor of the employee. Then too, it was essential that the jury should know whether or not all of the witnesses who did in fact appear before the civil service commission were being likewise called to testify to the same facts before the jury, if the jury was to intelligently determine the issue of good faith on the part of the commission when the latter reached the conclusion on the evidence before it that the employee had been guilty of the conduct complained of. Otherwise, the jury was called...