Ex parte Darnell
| Decision Date | 28 October 1954 |
| Docket Number | 6 Div. 698 |
| Citation | 262 Ala. 71,76 So.2d 770 |
| Parties | Ex parte Henry L. DARNELL. Ex parte Ray MULLINS, as Director of Personnel. , 744. |
| Court | Alabama Supreme Court |
John A. Jenkins, Birmingham, for petitioner Darnell.
Huey, Stone & Patton, W. Gerald Stone, Bessemer, for petitioner mullins.
The petition for certiorari entitled Ex parte Ray Mullins, Director of Personnel, 6 Div. 744, and the petition for certiorari entitled Ex parte Henry L. Darnell, 6 Div. 698, were both submitted to this court by agreement on the transcript of record certified to this court in Ex parte Henry L. Darnell by the Circuit Court of Jefferson County, Alabama, which covers all the proceedings in the circuit court in the cause entitled Ray Mullins, Director of Personnel, plaintiff, v. Henry L. Darnell, defendant.
For some years prior to January 29, 1953, Henry L. Darnell was a detective in the Police Department of the City of Birmingham and as such was a permanent, qualified employee under the Civil Service System, which is administered by the Jefferson County Personnel Board.
Ray Mullins is the Director of Personnel for the aforesaid Personnel Board.
On November 5, 1952, the Personnel Board adopted a resolution which recited that it had information that some members of the Birmingham Police Department had committed illegal or improper acts which had come to the attention of the Board as the result of recent hearings and investigations conducted by the Director and officials of the City of Birmingham and 'The Director was instructed by the Board to make the necessary investigation of the Police Department of the City of Birmingham in order to determine whether or not the provisions of the civil service law and the rules and regulations of the Personnel Board had been complied with or had been violated by any member of the department and to prefer charges against any such members if in his judgment the facts disclosed by his investigation warranted such action.'
Pursuant to the resolution the Director made such investigation and as a result thereof filed charges of misconduct against five detectives and the Chief of Police. The charges, eleven in number, against Henry L. Darnell were filed on January 29, 1953. The Personnel Board after holding a hearing on the charges against Henry L. Darnell, on January 29, 1953, found him guilty of conduct unbecoming an employee in public service and dismissed him from service as of that date. Henry L. Darnell filed notice of appeal from the aforesaid decision to the Circuit Court of Jefferson County on January 29, 1953.
The statute here involved was first enacted by the Legislature in 1935. General Acts 1935, p. 691. Many of the sections of this Act were amended in 1939. General Acts 1939, p. 309. The act as amended was codified in the Code of 1940 as Title 12, §§ 133 to 159. In 1945 the Legislature passed a new act covering the whole subject. General Acts 1945, p. 376. This act was amended in 1947. General Acts 1947, p. 398. This act as amended may be found as Title 62, § 330(21) to § 330(48) in the 1951 Cumulative Pocket Part of the Code of 1940. This is the law here involved.
The appeal in the circuit court was assigned to a panel of three judges, namely; the Hon. J. Russell McElroy, the Hon. George Lewis Bailes and the Hon. Whit Windham for hearing on March 2, 1953. At this hearing the director appeared specially and filed a motion to dismiss the appeal on a number of grounds, all of which went to the point that the court was without jurisdiction because the part of the statute, § 330(42), Title 62, Code of 1940, 1951 Pocket Part, which purported to authorize a dismissed employee to appeal to the aforesaid court and have a trial de novo before a panel of three judges, was unconstitutional. This motion was overruled and to this action of the court the director excepted.
The director filed a second motion to dismiss the appeal, the ground thereof being that the employee had qualified as a candidate for Commissioner of the City of Birmingham on February 28, 1953, and by so doing had forfeited his position with the City of Birmingham under the provisions of § 330(45), Title 62, Code of 1940, 1951 Pocket Part. The court overruled this motion, to which action of the court the director reserved an exception.
Henry L. Darnell filed a motion to quash or dismiss the charges filed by the director which was later twice amended. While there were numerous grounds the court only passed on two, viz.: grounds numbered 1 and 7, which raise the point that the director was not authorized under the law to file the aforesaid charges against the employee with the Personnel Board. On the hearing of the motion the director submitted evidence as to the administrative procedure and interpretation of the civil service law by the Personnel Board in regard to the right and power of the director to file charges against employees and to the fact that the director was a resident, voter, citizen and taxpayer of Jefferson County, Alabama.
In substance the director testified that he was a resident, citizen, voter and taxpayer of Jefferson County, Alabama; that he was employed by the Personnel Board since it was created in 1935 and director since 1941; that since the Board was created the director has filed charges against employees from time to time over a period of seventeen years and the right and power to do so was never questioned until charges were filed against the detectives here involved, which include Henry L. Darnell. The director at the request of the court submitted a list of cases filed with the Board from the time it was organized through 1952, which does not include the charges filed against the five detectives, which have been mentioned. This list shows that a total of 162 cases have been filed with the Board; 58 by the appointing authority; 48 appeals from actions of the appointing authority; 36 by citizens and 10 by the director.
The director also testified as to the procedure followed in making investigations in accordance with § 13 of the Rules and Regulations of the Board, the rule being the same as the statute, § 330(33), Title 62, Code of 1940, 1951 Pocket Part.
At the hearing Henry L. Darnell testified that he qualified as a candidate for Commissioner of the City of Birmingham on February 28, 1953, that prior to qualifying as such candidate he did not resign as a city detective. He waived all rights to compensation if he should be reinstated after the date he became a candidate for commissioner. The evidence showed that Henry L. Darnell did not after he was dismissed by the Board perform any work for the city as a detective and he was not allowed to work thereafter.
The court after hearing the case granted the motion to dismiss the charges filed by the director on the ground that he was not authorized to file the same and reinstated Henry L. Darnell from the date of dismissal; namely, January 29, 1953, to February 28, 1953, the date he qualified as a candidate for commissioner and awarded to Henry L. Darnell his salary for such period. The court then held that Henry L. Darnell had forfeited his position as detective by qualifying as a candidate for public office. Henry L. Darnell filed a motion for new trial which was overruled.
To refer again briefly to what has been said, the Personnel Board found Henry L. Darnell guilty of conduct unbecoming an employee in public service and dismissed him from the service as of the date of such finding. Under the provisions of the statute then in force, Henry L. Darnell took an appeal to the Circuit Court of Jefferson County. The statute in force at the time provided for an appeal from an order of the Personnel Board to the Circuit Court of Jefferson County before a panel of three judges, who were authorized to hear and try the charge de novo. Acts of 1947, p. 398 et seq. The petitioner here in Ex parte Ray Mullins, Director of Personnel, 6 Div. 744, is complaining that the statute which provides for a trial de novo is unconstitutional and void. It is insisted that a statute which purports to give a public employee a right of appeal to the courts with a trial de novo from a decision of the Personnel Board removing him for cause is an unconstitutional imposition of a non-judicial function upon the court. We should say at this point that the petitioner does not question the right of the courts to review by certiorari, mandamus or other remedial writ the record of proceedings had before an administrative board to determine jurisdiction and questions of law. The petitioner does insist that the circuit court has no right to hear the case de novo and substitute its own judgment for that of the Personnel Board.
It is well at the outset to recall §§ 42 and 43 of the Constitution of 1901 which read, respectively, as follows:
It is well known that our founding fathers were determined that the tyrannies and despotisms of the old world should not be transplanted and allowed to exist in the American form of government. It was thought that the wisest course to pursue was to divide the functions of government into three separate...
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