City of Nashville v. Martin

• Decision Date: 18 February 1928
• Citation: 3 S.W.2d 164,156 Tenn. 443
• Parties: CITY OF NASHVILLE v. MARTIN.
• Court: Tennessee Supreme Court

3 S.W.2d 164

156 Tenn. 443

CITY OF NASHVILLE v. MARTIN.

Supreme Court of Tennessee.

February 18, 1928

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

John B Martin was found guilty by the civil service and pension board of the city of Nashville of charges preferred against him as an officer of the police force, and he petitioned for certiorari to the circuit court. Judgment was entered in circuit court, directing that charges be dismissed, and the City of Nashville appealed in error to the Court of Appeals which court transferred the case to the Supreme Court. Judgment of the circuit court reversed, and petition for certiorari dismissed.

J Carlton Loser, Norman R. Minick, J. Washington Moore, and Charles Gilbert, all of Nashville, for appellant.

Wm. M. Greene and John B. Keeble, Jr., both of Nashville, for appellee.

GREEN C.J.

Martin was a member of the police force of Nashville and was tried upon charges, preferred by the chief of police, before the civil service and pension board of the city. He was found guilty of the charges by the board and dismissed.

He thereupon filed a petition for certiorari in the circuit court of Davidson county to review the action of the civil service board. Over exception by attorneys for the city, the writ of certiorari was granted by the circuit judge and a trial de novo upon the charges preferred against Martin was had before the court and a jury. The jury found a verdict in favor of Martin, and a judgment was entered in the circuit court directing that the charges brought against him be dismissed. A motion for a new trial was made and overruled and the city thereupon appealed in error to the Court of Appeals. Upon the theory that a constitutional question was involved, the Court of Appeals transferred the case to this court where it has been presented with some elaboration.

Upon the hearing in the circuit court, counsel for Martin conceded the legality of the trial before the civil service and pension board and conceded the jurisdiction of that tribunal to hear and determine the issues submitted. Counsel also conceded that there was evidence to sustain the findings and order of the civil service board, and added:

"* * * We brought this case up here because we think it was erroneously decided on questions of fact; that is what we want to try out in this court."

And again:

"* * * We are making no question of the fact that they had evidence down there before the civil service commission; everybody knows they had evidence down there; we say they reached the wrong conclusion from the evidence."

The charges preferred against Martin, upon which, after notice to him, proof was introduced and a full hearing had before the civil service board, and of which he was found guilty, were drunkenness, neglect of duty, and conduct unbecoming an officer. It is not suggested that any of these were frivolous charges.

The question therefore presented in this court is whether the findings of the civil service and pension board upon controverted issues of fact in a case like this may be tried de novo in the circuit court before the court and a jury. The present charter of the city of Nashville is contained in chapter 125 of the Private Acts of 1923. Section 49 of that act creates a civil service and pension board to consist of five members, provides for the selection of its members, and fixes their terms. It is made the duty of the board to ordain rules and regulations for the government of the members of the police department and of the fire department and other civil service employees of the city. The board is given authority to punish by dismissal from office all such employees for offenses committed by them. It is, however, provided that such employees shall not be punished "except after a trial and conviction by said civil service and pension board upon a written charge or charges, and a copy of said charges shall be furnished the accused at least 5 days prior to such trial." Following this are other provisions with reference to procedure before the civil service board, not material in this inquiry, and it is then enacted;

"The judgment and findings of the civil service and pension board on all questions of fact in the trial of charges preferred against civil service employees under the provisions of this act shall be final and subject to review only for illegality or want of jurisdiction."

The argument made to sustain the proceedings had in the circuit court is that the certiorari awarded in this case was the statutory writ, under which it is said a trial de novo was proper (Staples v. Brown, 113 Tenn. 639, 85 S.W. 254), and not the common-law writ of certiorari, under which the only matters of inquiry would be whether the civil service board exceeded its jurisdiction or acted irregularly. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870; Id., 139 Tenn. 45, 201 S.W. 133.

Referring to the statutory writ of certiorari, in Staples v. Brown, supra, this court said:

...