Ex parte Wells, 6 Div. 261
| Citation | 267 Ala. 444,103 So.2d 328 |
| Decision Date | 29 May 1958 |
| Docket Number | 6 Div. 261 |
| Parties | Ex parte Dan E. WELLS. In re CITY COMMISSION OF CITY OF BIRMINGHAM v. Dan E. WELLS. |
| Court | Supreme Court of Alabama |
C. H. Peay, Birmingham, for appellant.
J. Reese Johnston, Jr., Birmingham, for appellee.
We have under consideration a petition to this Court for a common law writ of certiorari to the Circuit Court of Jefferson County seeking to review a judgment of that court which affirmed an order of the Personnel Board of Jefferson County dismissing petitioner as an employee in the fire department of the City of Birmingham. The writ was issued and in response thereto there has been filed in this Court a transcript of the proceedings had in the circuit court with respect to the matter involved. Petitioner is Dan Wells who was an employee, with permanent status, in the fire department of the City of Birmingham. No answer has been filed in response to the facts alleged in the petition for certiorari; but that is immaterial to a consideration of this cause since the writ has issued and the record on which this submission is based has been certified and filed in this Court.
As stated above, there is no answer to the petition to this Court for certiorari to the circuit court. So that the facts there alleged are taken as true. The cause was heard on appeal to the circuit court from the action of the personnel board discharging petitioner as a fireman in the fire department of the City of Birmingham. The Civil Service Law applicable to Jefferson County and the City of Birmingham is controlling. Title 62, section 330(42), Pocket Part Code of 1940.
Appellant's brief filed in this Court on May 8, 1958, 'reiterates that the sole question involved in this appeal is whether or not the undisputed event--made the basis of the charge against Dan Wells--constituted the requisite just cause or 'legal just cause,' as the authorities call it, for dismissal of Dan Wells, as required by section 330(42), Title 62, Code of Alabama, 1940, as last amended'. Under the statute the appointing power may dismiss or demote an employee, holding permanent status, 'for just cause whenever he considers the good of the service will be served thereby.' Provision is made for an appeal to the personnel board, and that a public hearing be there conducted. Such an appeal was made and was heard by the board. The board adjudged that petitioner was guilty as charged and sustained his dismissal. Thereupon petitioner filed notice of appeal in the office of the clerk of the circuit court. Such an appeal is provided for in section 330(42), supra. It was there heard by a panel of three circuit judges. There is no objection to this procedure, and none was made. The circuit court reviewed the evidence of both parties submitted to the personnel board, and sustained the action of the board. It is of that judgment the petitioner complains in this Court by authority of section 140 of the Constitution of Alabama. Ex parte Morris, 263 Ala. 664, 83 So.2d 717.
The facts upon which the personnel board and the circuit court acted were fully heard on the trials before them. It is not the province of this Court on a petition for common law certiorari to review the evidence, but only to find if there is any substantial evidence which supports the judgment.
It is therefore incumbent upon us to state the substance of the evidence necessary to consider in that respect. There does not seem to be much dispute as to the facts and occurrences. But the question is whether those facts are such that this Court may find that the personnel board and the circuit court were justified in finding just cause to believe that the good of the service required petitioner's discharge. The facts are supported by material features of the evidence, and are as follows: Dan Wells was a plugman serving on a twenty-four hour shift at a fire station in the City of Birmingham. The crew consisted of one Griffin, the lieutenant in charge of that shift, Forster a driver, McCartney a nozzleman and Wells. Pertinent allegations of the petition are as follows:
'(2) Robert ('Shorty') Epperson was an employee in a motorcycle repair business operated by Dan Wells, and had been around Station No. 26 a good bit before April 18, 1957, and had run errands for some of the men at the station at times when they could not leave their posts of duty.
'(3) On the night of April 18, 1957, at about nine o'clock P.M., Shorty, who had just taken a bath, was in the station office with Wells and McCartney, looking at a television show, without his shirt and undershirt. Lt. Griffin saw Shorty through the glass door of the office above him, and suggested to him that if he was going to sit in the office, to put on his shirt. Shorty did not reply, and did not put on a shirt. Griffin went out of the room, but returned and asked Shorty what he said, when he saw Shorty shaking his finger. Shorty replied, 'Not a damn thing to you.' Griffin again told Shorty to put on his shirt, and...
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