Ex parte Morris

• Decision Date: 28 November 1955
• Docket Number: 6 Div. 901
• Parties: Ex parte James W. MORRIS. In re James W. MORRIS. v. CITY COMMISSION OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 717

83 So.2d 717

263 Ala. 664

Ex parte James W. MORRIS In re James W. MORRIS. v. CITY COMMISSION OF BIRMINGHAM.

6 Div. 901.

Supreme Court of Alabama.

Nov. 28, 1955.

Rogers, Howard & Redden, Birmingham, for appellant.

Chas. H. Brown, Birmingham, for appellee.

SIMPSON, Justice.

Petitioner, James W. Morris, a former sergeant of police, was dismissed from the police force of the City of Birmingham. Thereafter, he made timely appeal to the Personnel Board of Jefferson County. After a public hearing, the Board affirmed the dismissal. Petitioner appealed the Board's finding to the circuit court. On that appeal, the three-judge circuit court reviewed the record and affirmed the action of the Board. These proceedings were transacted pursuant to the provisions of Code 1940, Title 62, § 330(42), 1953 Cum.Supplement to Vol. 9, p. 129. The case comes to this court by petition for certiorari seeking to review the judgment of the circuit court. Such procedure has been approved. Ex parte Bracken, Ala., 82 So.2d 629; Ex parte Darnell, 262 Ala. 71, 76 So.2d 770.

The conduct complained of and on which the dismissal of petitioner was based is set out in the charge sheet of the Director of Police:

'* * * in that to-wit: June 29, 1953, after the burglary of the Lane Drug Store, located at Five Points South in the City of Birmingham had been officially reported to the Police Department, and while you were engaged in investigating said Felony, you observed other members of said Department break open a safe located inside said store and you wrongfully failed to interfere with or to report said unlawful act.'

Of the evidence adduced, the circuit court said in its opinion:

'* * * Whatever case is made against him [Petitioner] is made almost exclusively on the testimony of T. A. Ferguson, who says in substance that while the appellant was in the Lane Drug Store building as a sergeant of police, in a position of authority, Ferguson and two other officers upended an iron safe and made a hole through the bottom of it. No reasonable man could believe that this could be done without the knowledge of this appellant, if it were in fact done while the appellant was in the store. No one says it was so done except T. A. Ferguson, who at the time he testified was then in jail charged with three separate crimes, fearful that he might well receive three ten-year sentences running consecutively and actuated by a desire to cooperate with the City in order to secure a lesser punishment. * * * He admitted while on the stand that he had been involved in perhaps forty (40) burglaries while a member of the police force * * * Witnesses testified that they would not believe him on oath; and no one testified that he would so believe him.'

The record is void of any legal testimony which tended to establish petitioner's knowledge or observance of the malfeasance of Ferguson except the testimony of Ferguson himself. Ferguson testified that petitioner was in the room where the safe was, and, of course, should have seen or heard him commit the unlawful act which he admitted he did. Therefore, if the testimony of Ferguson be believed, there would be a justifiable inference to conclude that petitioner had observed the unlawful act and was, therefore, guilty of the charge of conduct unbecoming an employee in the public service.

The determination of the weight and credibility of this evidence and to drew inferences from facts adduced was for the administrative body, the Board, in such an adjudicatory proceeding. 73 C.J.S., Public Administrative Bodies and Procedure, § 126, p. 447. Therefore, we are forced to the conclusion that it was within the province of the Board to conclude, and the circuit court to affirm, that the charge preferred against the petitioner was sufficiently supported by substantial and legal evidence within the meaning of the statute as to be due an affirmance here of the holding of the three-judge circuit court. Ex parte Bracken, supra.

Petitioner next contends that his rights have been substantially and materially prejudiced by the Board taking testimony of an alleged expert concerning his findings from Polygraph tests performed on petitioner. We think the circuit court adequately answered this argument when it found that while the testimony might not be legal evidence, its admission was not reversible error because the Board is not bound by technical rules of evidence. In the absence of statutory provisions, the Board has seen fit to adopt its own rules, one of which specifically applies to evidence, viz., Rule No. X, subsec. 10.5:

'* * * The Board shall not be bound by the technical rules of evidence but shall seek diligently all of the information and evidence bearing on the case.'

The adoption of such rules was within the prerogative of the Board. 42 Am.Jur., § 129, p. 460.

Moreover, since the Board is not composed of those learned in the law, we are unwilling to reverse because of indiscretion in admitting some illegal evidence. This view conforms to our holding as to a somewhat similar quasi-judicial body, the Public Service Commission, in North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183.

Finally, petitioner argues that the circuit court erroneously decided that as a matter of law that court could not consider the weight of the testimony in arriving at its decision, and in holding that the evidence adduced was sufficient to support the Board's decision according to the 'substantial evidence' rule.

The statute provides, Title 62, § 330(42), Code 1940, 1953 Cum.Supp:

'* * * The decision of...