Summary
In McLeod v. Civil Service Commission of Jackson, 198 Miss. 721, 21 So.2d 916 (1945), a policeman's discharge was approved by the city's Civil Service Commission. The circuit court affirmed, and in this Court the case was reversed since the trial judge had not submitted the matter to a jury.
Summary of this case from City of Jackson v. LittleOpinion
No. 35803.
April 23, 1945.
1. MUNICIPAL CORPORATIONS.
The statute creating Civil Service Commissions in cities meeting certain requirements, including requirement of specified minimum population under 1940 federal census, is constitutional (Laws 1944, chap. 208).
2. COURTS.
Although statute creating municipal Civil Service Commissions provides for appeal only to circuit court by discharged employees, appeal to Supreme Court is within statute authorizing appeal from final judgment of circuit court in a "civil case" (Code 1942, sec. 1147; Laws 1944, chap. 208, sec. 10).
3. APPEAL AND ERROR.
On appeal, as by policeman, from circuit court's affirmance of Civil Service Commission's order approving discharge, obligee in appeal bond should be city rather than Commission, which is merely agency of city (Laws 1944, chap. 208, sec. 10).
4. APPEAL AND ERROR.
Defect in policeman's appeal bond made to Civil Service Commission instead of city on appeal from circuit court's affirmance of Commission's order approving discharge was cured by statute providing that bond executed in any legal proceeding shall inure to person to whom it is designed by law as security, regardless of payee, etc. (Code 1942, sec. 1673).
5. MUNICIPAL CORPORATIONS.
The statute providing for "trial by jury" on discharged employee's appeal to circuit court from order of municipal Civil Service Commission contemplates trial de novo before jury in which jury and trial judge discharge same functions as in other trials (Laws 1944, chap. 208, sec. 10).
6. JURY.
Under statute giving right to jury trial on discharged employee's appeal to circuit court from order of municipal Civil Service Commission, motion for jury trial is not necessary since, in absence of waiver of right thereto, it is error to try case without a jury (Laws 1944, chap. 208, sec. 10).
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
J.G. Burkett and W.E. Gore, both of Jackson, for appellant.
The motion of the appellant to quash and dismiss the charges and accusations against him should have been sustained by that court and the appellant restored to his former position, because the charges and accusations were vague and indefinite and did not advise the appellant reasonably and seasonably of the acts which it was claimed he had committed, and was guilty of, and, further, said charges were not supported by any evidence of any nature, in that the City of Jackson failed to prove by any evidence at all before the Civil Service Commission that the appellant had been guilty of any acts of insubordination or of any acts committed which injured the public service. The Act of 1944 requires the proof to be "conclusive," and the appellant's accuser offered no proof of any nature or degree of certainty.
Garven v. Chambers, 195 Cal. 224, 232 P. 696; Sheshan v. Board of Police Commission, City of San Francisco, 139 P. 844; 43 C.J. 665, 782, 786; Civil Service Act of 1944, Code of 1942, Vol. 3, 1944 Supplement.
The charges on their face showed beyond dispute that the appellant was discharged by the mayor of the City of Jackson, to please a number of prominent and influential citizens, in order that he might have their support in his political campaign for re-election, in violation of the Civil Service Act of 1944.
Civil Service Act of 1944, Code of 1942, Vol. 3, 1944 Supplement.
The whole proceeding was unlawful from the outset for the reason that the Act of 1944 was not complied with by the City of Jackson, in that the appellant was summarily discharged, without any notice being given him, or any copy of the charges furnished to him before being discharged.
Civil Service Act of 1944, Code of 1942, Sec. 3825-11.
The reasons and grounds of the appellant's discharge, even if proven, did not constitute good cause for his removal and discharge, since he had an unqualified legal right to do the acts complained of.
State ex rel. Attorney General v. McDowell, 111 Miss. 596, 71 So. 867; Ware v. State, 111 Miss. 599, 71 So. 868; Erkern v. McGovern, 154 Wis. 157, 142 N.E. 595; Reid v. Walbridge, 119 Mo. 383, 24 S.W. 547; 43 C.J. 786.
The charges against the appellant, if upheld, would be contrary and repugnant to, and in conflict with, the provisions of the Constitution of the State of Mississippi, Sections 11, 13, 14 and 17, and the Constitution of the United States, Amendments 1, 5 and 14.
If the appellant had a legal and constitutional right to becoming a member of an organization of policemen, or in other words a union, then it follows conclusively that he was illegally discharged from his position.
Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 22 L.R.A. (N.S.) 983; People v. Glennon, 74 N.Y.S. 794.
Every citizen has the legal and constitutional right to join, belong to and support any organization or union which has no unlawful objects or purposes.
Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Mier v. Speer, 96 Ark. 618, 132 S.W. 988; Paramount Enterprises v. Mitchell (Fla.), 140 So. 331; Thomas v. Cincinnati N.O.R. Co., 62 F. 803; McVey v. Brendel, 144 Pa. 235; American Steel Foundries v. Tri-Cities Trade Council, 257 U.S. 184, 66 L.Ed. 189, 42 S.Ct. 72, 27 A.L.R. 360; National Labor Relations Board v. Jones Laughlin Steel Corporation, 301 U.S. 33, 57 S.Ct. 615, 108 A.L.R. 1352; Texas N.O.R. Co. v. Brotherhood of Railway Steamship Clerks, 281 U.S. 548, 74 L.Ed. 1034; Hague v. C.I.O., 307 U.S. 495, 83 L.Ed. 1423; American Federation of Labor v. Swing, 312 U.S. 324, 84 L.Ed. 1007; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 84 L.Ed. 738; Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed. 1093; Yick Wo v. Hopkins, 119 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Southern Railroad Co. v. Greene, 216 U.S. 400, 54 L.Ed. 536, 30 S.Ct. 287, 17 Ann. Cas. 1247; Barbier v. Connelly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 832; Traux v. Corrigan, 257 U.S. 312, 66 L.Ed. 254; Home Telephone Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 59 L.Ed. 510; 63 C.J. 656-657, 659-660, 664.
A citizen cannot be traded or swapped out of his constitutional rights in exchange for some valuable privilege which the state has to offer or otherwise withhold.
Frost Truckers Co. v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101; Union Pacific R. Co. v. Public Service Commission, 248 U.S. 67, 39 S.Ct. 24, 63 L.Ed. 131; Hanover Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372, 49 A.L.R. 713; Herbert v. Louisiana, 272 U.S. 313, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102; Castillo v. McCormic, 168 U.S. 674, 42 L.Ed. 622.
Seniority rights and rights of selection of representation are property and property rights.
Stephenson v. New Orleans N.E.R. Co., 180 Miss. 147, 177 So. 509; Yazoo M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; Mississippi Theatres Corporation v. Hattiesburg Local Union No. 615, 174 Miss. 439, 164 So. 887; Texas N.O.R. Co. v. Brotherhood of Clerks, 281 U.S. 548, 71 L.Ed. 1034; Hagen v. Picard, 12 N.Y.S.2d 873, 14 N.Y.S.2d 706; Myer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 57 L.Ed. 1042, 29 A.L.R. 1446; Teller, Labor Disputes and Collective Bargaining, 1943 Supplement, p. 77, Sec. 519.
Statutes and ordinances requiring that only "union labor" be employed on public works or "union label" on public printing have been unanimously declared to be void by the courts on the grounds that they are discriminatory between different classes of citizens. The converse of this statement is likewise true. It cannot be required legally and constitutionally that only non-union labor be permitted to work on public works or in public positions, or only non-union printers do the public printing.
Marshall Bruce Co. v. Nashville, 109 Tenn. 504; Adams v. Brennean, 177 Ill. 194, 52 N.E. 314; City of Atlanta v. Stein, 36 S.E. 932; Holden v. City of Alton, 53 N.E. 556; Fiske v. People, 58 N.E. 985; In re Jacob, 98 N.Y. 98, 50 Am. Rep. 636; State v. Loomis, 115 Mo. 305, 22 S.W. 350, 21 L.R.A. 789.
The burden of proof is on those prosecuting charges against a city officer to establish them.
Taylor v. State, 194 Miss. 1, 11 So.2d 663, 680, Judge Alexander's dissenting opinion; Christine v. Kingfisher, 13 Okla. 43, 76 P. 135; Barker Painting Co. v. Brotherhood of Painters, Decorators and Paperhangers of America, 15 F.2d 16, cert. den., 47 S.Ct. 449, 273 U.S. 748, 71 L.Ed. 871; 43 C.J. 667.
Under the act of 1944 creating the Civil Service Commission, the appellant had the right upon the appeal being heard in the circuit court to a trial de novo before a jury.
Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768; Mabray v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Moreau v. Grandich, 114 Miss. 560, 75 So. 434; State ex rel. Plunkett v. Miller, 162 Miss. 149, 137 So. 737; City of Rockford v. Compton, 115 Ill. App. 406; State v. Frazier, 39 N.D. 430, 167 N.W. 510; State Board of Medical Examiners v. Carroll, 194 N.C. 36, 138 S.E. 339; Cook v. Vickers, 141 N.C. 101; Keaton v. Godfrey, 152 N.C. 152; State of North Dakota v. Hazledohl, 2 N.D. 52, 52 N.W. 315, 16 L.R.A. 150; State v. Intoxicating Liquors, 80 Me. 57, 12 A. 794; State v. Knight, 204 Iowa, 819, 216 N.W. 104; St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 80 L.Ed. 1033; Ohio Valley Water Co. v. Ben Avon Burrough, 253 U.S. 287, 64 L.Ed. 914; Pendergrast v. New York Tel. Co., 262 U.S. 43; Bluefield Water Co. v. Public Service Commission, 262 U.S. 679; Tagg Bros. Moorehead v. United States, 280 U.S. 420, 74 L.Ed. 524; Phillips v. Commission, 283 U.S. 589; Crowell v. Benson, 285 U.S. 22; State Corporation Commission v. Wichita Gas Co., 290 U.S. 561, 78 L.Ed. 504; Code of 1942, Secs. 3825-11, 6618; 35 C.J. 815; 43 C.J. 786.
See also Duggen v. McGruder, Walk. (1 Miss.) 112, 12 Am. Dec. 527; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Federal Credit Co. v. Rogers, 166 Miss. 559, 148 So. 353; Hamilton v. Long, 181 Miss. 627, 180 So. 615; In re Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26; Viator v. State Tax Commission, 193 Miss. 266, 5 So.2d 487; Fugate v. State, 85 Miss. 94, 37 So. 554, 107 Am. St. Rep. 268, 3 Ann. Cas. 326; Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Lyles v. Barnes, 40 Miss. 608; Davis v. McDonald, 180 Miss. 780, 178 So. 467; Dawkins v. State, 42 Miss. 631; Yerger v. Town of Greenwood, 77 Miss. 378, 27 So. 620; State Board of Examiners v. Mandell, 198 Miss. 49, 21 So.2d 405; Hemmenway v. Fisher, 20 How. 255, 15 L.Ed. 799; Peak v. People, 76 Ill. 289; Hall v. Thode, 75 Ill. 173; Harris v. Barber, 120 U.S. 366, 9 S.Ct. 314, 32 L.Ed. 697; Janvrin v. Poole, 181 Mass. 463, 66 N.E. 1066; Farmington Co. v. County Commissioners, 112 Mass. 206; Ewing v. Hollister, 7 Ohio 138; McLachlan v. Mclaughlin, 126 Ill. 427, 18 N.E. 544; Comstock v. Van Schoonhoven (N.Y.), 3 How. Pr. 258; Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797; DeLemos v. United States, 107 F. 121, 46 C.C.A. 196; United States v. Wonson, 1 Gal. 5, 28 Fed. Cas. No. 16750; The San Pedro, 2 Wheat. 132, 4 L.Ed. 202; United States v. Goodwin, 7 Cranch 108, 3 L.Ed. 284; Wiscart v. D'Auchy, 3 Dall. 321, 1 L.Ed. 619; Yeaton v. United States, 3 L.Ed. 101, 102; Dower v. Richards, 151 U.S. 658, 14 S.Ct. 452; Code of 1857, Sec. II, Arts. 39, 40, Sec. III, Arts 8, 16, 23, 24, 28, Sec. V, Art. 28, Sec. VI, Art. 33, Sec. VII, Arts. 86-94, 103, Secs. XXIV, XXV, Sec. LXII, Art. 306, 307; Code of 1871, Secs. 285, 404, 410, 411, 533, 1249, 1255, 1332, 1335, 1336, 1383, 2342, 2841; Code of 1880, Sec. 2308; Code of 1892, Secs. 79, 2912a, 2913; Code of 1930, Secs. 4321, 4322, 4323; Code of 1942, Secs. 3825-11, 8773, 8774, 8775; 2 Tidd's Practice, pp. 1134-1137; Stephen on Pleading, p. 117; Coke on Littleton, p. 288b; Bacon's Abridgement, p. 187; 2 Blackstone's Commentaries (Cooley's Ed.), p. 406.
The city of Jackson brought and preferred the charges against the appellant. It was the proper party to litigate the matter with him in the circuit court, and not the Civil Service Commission.
Stewart v. State Highway Commission, 166 Miss. 43, 148 So. 218; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; Morris v. Vandiver, 164 Miss. 476, 145 So. 228; Fernwood Rural Separate School District v. Universal Rural Separate School District, 170 Miss. 35, 154 So. 268; Nabors et al. v. Smith, 135 Miss. 608, 100 So. 177; Stringer et al. v. Roper, 152 Miss. 559, 120 So. 460; Coleman v. City of Gary (Ind.), 44 N.E.2d 101.
The Court erred in sustaining the motion of the Civil Service Commission to strike from the record the stenographic record of the testimony taken and transcribed on the hearing before the Commission.
Green Green and W.E. Morse, all of Jackson, for appellee.
Abatement having occurred, revivor is essential.
Kennington-Saenger Theatres v. District Attorney, 196 Miss. 841, 18 So.2d 483; McDuff v. Beauchamp, 50 Miss. 531.
If this Court be without jurisdiction of this appeal, which question it must always first ask and answer, then dismissal must be had.
Kennington-Saenger Theatres v. District Attorney, supra; Drummond v. State, 184 Miss. 738, 185 So. 207; Mississippi State Highway Department v. Haines, 162 Miss. 216, 227, 139 So. 168; James v. Williams Furniture Co., 161 Miss. 358, 137 So. 101.
This Court cannot judicially review the removal of a policeman by the city, which removal was affirmed by the Civil Service Commission in an appeal wherein no evidence whatever was taken in the circuit court and the city as a corporation was not there present.
Mayor and Board of Aldermen of City of Jackson v. State ex rel. Howie, 102 Miss. 663, 59 So. 873; Glover v. City of Columbus, 197 Miss. 467, 18 So.2d 756; Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577; State v. Piazza, 66 Miss. 426, 6 So. 316; Hays v. State, 96 Miss. 153, 50 So. 557; Gambrell Lumber Co. v. Saratoga Lumber Co., 87 Miss. 773, 40 So. 485, 486; Otts Finance Co. v. Myers, 169 Miss. 407, 152 So. 834; Equitable Life Assurance Society v. Weil, 103 Miss. 186, 60 So. 133, 134; Montgomery v. Hanover National Bank, 79 Miss. 443, 30 So. 635; McNeill v. Lee, 79 Miss. 455, 30 So. 821; Pagaud v. State of Mississippi, 5 Smedes M. (13 Miss.) 491, 497; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Frederick v. Owens, 35 Ohio Cir. Ct. R. 538; People ex rel. Fursman v. Chicago, 278 Ill. 318, 116 N.E. 158, L.R.A. 1917E, 1069; San Antonio Fire Fighters Local Union No. 84 v. Bell, 223 S.W. 506; McNatt v. Lowther (Tex.), 223 S.W. 503; Hutchinson v. Magee, 278 Pa. 119, 122 A. 234; Seattle High School Ch. No. 200 v. Sharples, 159 Wn. 424, 293 P. 994; Carter v. Thompson, 164 Va. 312, 180 S.E. 410; Sullivan v. Martin, 81 Conn. 585, 71 A. 783; Chapin v. Board of Education of Peoria, 5 Municipal Law Journal 24, 72; Petrucci v. Hogan, 27 N.Y.S.2d 718; State ex rel. Beebe v. City of Seattle, 159 Wn. 392, 293 P. 459, 461; Hackett v. Moore, 45 Cal. 788, 188 P. 308; Rawlings v. City of Newport, 275 Ky. 183, 121 S.W.2d 10; Fraternal Order of Police v. Harris, 306 Mich. 68, 10 N.W.2d 312; Carter v. Thompson, 164 Va. 312, 180 S.E. 410; Hopkins v. Ames, 344 Ill. 527, 176 N.E. 729, 731; State v. Richards, 203 Ind. 637, 180 N.E. 596; City of Chicago v. People, 114 Ill. App. 145, 155; People v. Hill, 350 Ill. 129, 183 N.E. 17, 19; Wilcox v. People, 90 Ill. 186; State v. Boyington, 110 Wn. 622, 188 P. 777, 779, 780; City of Elkhart v. Minser, 211 Ind. 20, 5 N.E.2d 501; Jennings v. Wilson, 40 N.Y.S.2d 400; Code of 1930, Secs. 2628, 2639; Laws of 1912, Ch. 120; Laws of 1944, Ch. 208; Mississippi Digest, "Fraud," Key No. 50; 10 Am. Jur. 922, Sec. 2; 24 Am. Jur. 72, Sec. 244; 37 Am. Jur. 819, Sec. 182; 46 C.J. 1092; 3 C.J.S. 883; 37 C.J.S. 371, 393, Secs. 78, 94; 1 Dillon, Municipal Corporations (4 Ed.), p. 692; 2 McQuillan, Municipal Corporations (Rev. 2 Ed.), pp. 428, 437, 499; Brooms Legal Maxims (7 Ed.), pp. 163, 169, 942; "National Institute of Municipal Law Officers," Report No. 76, August 1941, p. 17; bulletin of International Association of Chiefs of Police, entitled "Police Unions and Other Police Organizations," Bulletin No. 4, dated September 1944.
Under Chapter 208, Laws of 1944, there having been thereby created a new right and a new remedy for its enforcement non-existent at common law, with an appeal in certain specific instances to one party to the circuit court, without right of appeal to the other party, and no authorization to the Commission as such as a corporation to appeal from the circuit court to this court, it was the intention of said act to make, as to the rights asserted before this Commission, the judgment of the circuit court final, and so being, no appeal lies.
Keeton v. State, 197 Miss. 11, 19 So.2d 477; State v. Warren, 197 Miss. 13, 19 So.2d 491; Glover v. City of Columbus, supra; Illinois Cent. R. Co. v. Miller, 141 Miss. 213, 106 So. 635; Wilson v. Lexington, 153 Miss. 209, 119 So. 795; Bogue Hasty Drainage Dist. v. Napanee Plantation Co., 118 Miss. 493, 78 So. 709; Thomas v. Wyatt, 9 Smedes M. (17 Miss.) 308; Clark v. Stong, 120 Miss. 95, 81 So. 643; Costas v. Board of Sup'rs, 196 Miss. 104, 15 So.2d 365, 16 So.2d 378, 380; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Mississippi State Highway Department v. Haines, supra; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148, 150; Hartford Accident Indemnity Co. v. Bunn, 285 U.S. 169, 76 L.Ed. 685; Miles v. McKinney (Md.), 199 A. 540, 117 A.L.R. 207; Clancy v. Board of Fire Police Commissioner of Milwaukee, 150 Wis. 630, 138 N.W. 109; Cushman v. Hussey, 187 Ind. 228, 118 N.E. 816; Long v. State, 176 Wis. 361, 187 N.W. 167, 168; Board of Finance of School Town of Port Fulton v. First National Bank of Jeffersonville, 711 Ind. App. 290, 124 N.E. 768, 769; Petition of Forbes, 316 Ill. 141, 146 N.E. 448; People v. Gale, 369 Ill. 162, 171 N.E. 186; In re Board of Canvassers of City of Superior v. Sleeman, 196 Wis. 562, 221 N.W. 382; Code of 1930, Sec. 2628; Mississippi Digest, "Appeal and Error," Key No. 1; 4 C.J.S. 61, 68, 389, 854, Sec. 391; 2 Am. Jur. 847, 990, Sec. 236.
The Civil Service Commission is not a juristic person and in no way subject to suit.
Illinois Cent. R. Co. v. Miller, supra; Smith v. Doehler Metal Furniture Co. et al., 195 Miss. 538, 15 So.2d 421; Ayres v. Board of Trustees of Leake County Agricultural High School, 134 Miss. 363, 98 So. 847; Mississippi Centennial Exposition Co. v. Luderbach et al., 123 Miss. 828, 86 So. 517; State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351.
The action whereof complaint is sought to be made is purely administrative and executive and in no way either judicial or quasi judicial. That at issue, solely, or sought so to be put at issue, is the right of a policeman to continue to serve when he has become a member of a local union affiliated with the American Federation of Labor, and when both the city officials and the Civil Service Commission hold that connection to be detrimental to the public service and the officer being given liberty to retain his position if he will sever connections therewith, refuses thus to do, the issue is narrow.
Section 6 and Section 190 of the Constitution of the State of Mississippi provides that no one can contract away the police rights under the Constitution and neither can the court construe away the rights of the people by its decisions. It is a thing inherent in the people. It is different from contractual relations. Contractual relations are bound by the laws of the land. With police regulations the rules of stare decisis do not apply. Police regulations are different from all other regulations.
Tatum v. Wheeless, 180 Miss. 800; 178 So. 95; Constitution of 1890, Secs. 6, 190.
The enforcement of police regulations is not the taking of property without due process of law.
See Cegwich on Statutory and Constitutional Law, p. 507; Cooley's Constitutional Limitations, Ch. 16; Dillon on Municipal Corporations (2 Ed.), Sec. 93.
The Fourteenth Amendment to the United States Constitution does not impair the police powers of the state or of a municipality.
See Chicago Burlington R. Co. v. People, 200 U.S. 561; C. A.R.R. v. J.L. A.R.R. Co., 105 Ill. 388; Windsor v. Whitney, 95 Conn. 357, 111 A. 354; Munn v. Hall, 90 U.S. 113; Barbier v. Connelly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 832.
The Civil Service Commission announced the policy that police officers of the City of Jackson could not be members of a labor union and subject to domination and control by labor organizations instead of the lawfully constituted bodies. They gave the men an opportunity to withdraw from the union. The appellant designates this as a "yellow dog" contract, and he claims that he had the right under the Constitution to unionize the police force and police powers that belonged to the people. The appellant very frankly states that there was no charge of fraud or bad faith on the part of the Civil Service Commission in making their ruling. Section 11, Chapter 208, Laws of 1944, which under the Code of 1942, Vol. 3, 1944 Supplement is 3825-11, gives a right of appeal from the Civil Service Commission. It states: "Provided, however, that such hearing shall be confined to the determination of whether the judgment or order of 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." The appellant frankly stated the same position in the circuit court. In fact, his pleadings did not raise any issue of bad faith, and when that issue was not presented in the lower court, there was nothing for that court to pass upon. When that issue is not presented in this court, there is nothing for this Court to pass upon.
The order of the Civil Service Commission was interlocutory in that it remanded the proceedings to the City Council for their re-employment of the men. There was no appeal taken from the City Council thereafter. It is the general principal now quite uniformly adopted in the statute laws that only judicial decisions final in their nature and rendered by a tribunal clothed with judicial powers are reviewable on appeal or error proceedings. Many statutes have increased the class of decisions which are reviewable so as now to include interlocutory orders and judgments in certain proceedings. In some jurisdictions a statute enumerates the orders which are appealable. An order which does not fall within those enumerated is not reviewable. There are certain matters in which the trial court exercises a discretion. Acts of a discretionary nature are not, as a general rule, subject to review in the absence of abuse thereof.
City of Greenwood v. Henderson, 84 Miss. 802, 37 So. 745; City of Greenwood v. Humphreys, 157 Miss. 879, 127 So. 694, 128 So. 885; Woodson v. Doyle, 196 Miss. 308, 16 So.2d 852; Alexander v. Woods, 103 Miss. 869, 60 So. 1017; Compare State Board of Barber Examiners v. Broom, 161 Miss. 679, 137 So. 789; Reynolds v. City of New Albany, 166 Miss. 282, 146 So. 459; Liberty Trust Co. v. Planters' Bank, 155 Miss. 721, 124 So. 341; Vicksburg Water Works Co. v. City of Vicksburg (5 Cir.), 153 F. 116, 82 C.A.A. 250; Barton v. Forsythe, 5 Wall. 190, 18 L.Ed. 544; Fuller v. Claflin, 93 U.S. 14, 23 L.Ed. 785; Mellen v. Moline Iron Works, 131 U.S. 352, 33 L.Ed. 178; Code of 1942, Sec. 1195; 2 Am. Jur. 856.
The only way that this action of the board could be reviewed would be by a certiorari as provided in Section 73 of the Code of 1930, or Section 1207 of the Code of 1942. However, in that manner administrative orders of an inferior tribunal cannot be removed to and re-examined by circuit court on a writ of certiorari but only on such matters as are judicial or quasi judicial.
Board of Sup'rs of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642; People ex rel. Elmore v. Allman et al., People ex rel. Sweeney v. Allman, People ex rel. Kelly v. Allman, 382 Ill. 156; People ex rel. Goodloe v. Allman, 319 Ill. App. 254; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 82 L.Ed. 1424.
Where the power to remove for cause is conferred but the law does not define "cause," it is left for the agency vested with the power of removal to determine what is sufficient cause.
See Farish v. Young, 18 Ariz. 298, 158 P. 845; Bolton v. Tulley, 114 Conn. 290, 158 A. 805; Hoboken v. Gear, 27 N.Y.L. 265; 2 McQuillan, Municipal Corporations (2 Ed.), Rev., p. 437.
What is just cause for removal of police officer determined by the acting authorities will not be disturbed by the court in the absence of manifest abuse or discretion.
Brunt et al. v. McLaurin, 178 Miss. 86, 172 So. 309; Bradycamp v. Metzger, 310 Pa. 320, 165 A. 387; Kammamm v. Chicago, 222 Ill. 63, 78 N.E. 16; Souder v. Philadelphia, 305 Pa. 1, 156 A. 245; State ex rel. v. Twigg, 279 N.W. 828.
A public officer is a public trust for the benefit of the people. He is given certain powers and charged with certain duties pertaining to sovereignty and the powers so delegated to the officer are held in trust for the people. They are amenable to the rule which forbids an agent or trustee to place himself in such an attitude toward his principal or cestui que trust as to have his interest conflict with his duty.
Taylor v. Beckham, 178 U.S. 548, 44 L.Ed. 1184.
An employer has uncontrolled discretion in selection of employees and retention of employees in office. It lawfully may condition either employment or continued employment (there being no contract to the contrary) upon employee not being a member of any such labor organization.
Burks v. Shaw, 59 Miss. 443, 447; Gabbert v. Wallace, 66 Miss. 618, 620, 5 So. 394; State v. Woodruff, 170 Miss. 744, 150 So. 760, 766; Adair v. United States, 208 U.S. 161, 174, 52 L.Ed. 436, 442, 13 Ann. Cas. 764; Coppage v. Kansas, 236 U.S. 1, 14, 59 L.Ed. 441, 446, L.R.A. 1915C; People ex rel. Furnsman v. Chicago, 278 Ill. 318, 116 N.E. 158, L.R.A. 1917E, 1069; 31 Am. Jur. 838, Sec. 11; Annotation, 26 A.L.R. 158; Compare 11 Am. Jur. 866, Constitutional Law.
That done by a policeman is in the highest sense governmental.
Glover v. City of Columbus, supra; Monette v. State, 91 Miss. 662, 44 So. 989.
The state is in no way subordinate to the United States. Fundamentally, the State of Mississippi and the United States co-exist, each within its respective sphere, exercising that portion of sovereignty to it allocated under the Constitution. Both governments are dependent for the accomplishment of their governmental purposes upon officers and employees and each is as to its officers and employees independent of the other, and not to be as to them in any way burdened. There is no power in the National Government to interfere nor to declare this section of this statute unconstitutional.
Evans v. Bankston, 196 Miss. 533, 18 So.2d 301, 303; Dobbins v. Erie County, 16 Pet. 435, 10 L.Ed. 1022; Collector v. Day (Buffington v. Day), 1 Wall. 113, 20 L.Ed. 122; Graves v. New York, 306 U.S. 480, 83 L.Ed. 933; Helvering v. Gerhardt, 304 U.S. 405, 82 L.Ed. 1427; M'Culloch v. Maryland, 4 Wheat. (U.S.) 316, 376, 4 L.Ed. 579, 594; United States v. County of Allegheny, 88 L.Ed. 845; South Carolina v. United States, 199 U.S. 448, 50 L.Ed. 261; Compare Helvering v. Powers, 293 U.S. 214, 227, 79 L.Ed. 291; United States v. State of California, 297 U.S. 175, 80 L.Ed. 567; Helvering v. Therrell, 302 U.S. 222, 82 L.Ed. 76; DeMille v. American Federation of Radio Artists, etc., 13 Law Week 2403.
Municipal corporations possess, as to employees, the same right of election as is possessed by a private employer. They may, pursuant to plenary power, refuse the services of one affiliated with a foreign labor organization, such affiliation, in the judgment of the municipality, being efficient cause for discharge.
Evans v. Bankston, supra; 63 C.J. 658, Sec. 6.
Section 12, Chapter 208, Laws of 1944, contravenes the First Amendment of the Federal Constitution as made applicable to the states, for, unquestionably, under the Federal Constitution, notwithstanding this provision, appellant had a right to free speech in advocating the election of the mayor, and a right to free assembly. Any act of the legislature which sought to take from appellant those rights, in our judgment, contravenes the Constitution.
Thomas v. Collins, 89 L.Ed. 340, and authorities cited therein; Hitchman Coal Coke Co. v. Mitchell, 245 U.S. 229, 62 L.Ed. 260, L.R.A. 1918C, 497, Ann. Cas. 1918B, 461; Eagle Glass Mfg. Co. v. Rowe, 245 U.S. 275, 62 L.Ed. 286; Platt v. Philadelphia R.R. Co., 65 F. 660; Tosh v. West Kentucky Coal Co., 252 F. 44, 15 A.L.R. 376; People v. Marcus, 185 N.Y. 257, 77 N.E. 1073; Nashville Ry. Light Co. v. Lawson, 144 Tenn. 78, 229 S.W. 741; Callan v. Exposition Mills, 149 Ga. 119, 99 S.E. 300; Moore Drop Forging Co. v. McCarthy, 243 Mass. 554, 137 N.E. 919; Courrier Son v. International Moulders Union, 93 N.J. Eq. 61, 115 A. 66; Seattle High School Ch. No. 200 v. Sharples, 159 Wn. 424, 293 P. 944; 2 Teller, Labor Disputes and Collective Bargaining, 1943 Supplement, Secs. 244, 470; P.U.R. Executive Information Service, Weekly Letter, No. 581, February 16, 1945.
Appellant was not entitled in the circuit court to a trial de novo before a jury.
Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815; Yazoo M.V.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Yazoo M.V.R. Co. v. Reid, 90 Miss. 616, 43 So. 952; Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743; Civil Service Commission v. Matlock (Ark.) 168 S.W.2d 424; In re Fredericks et al., 285 Mich. 262, 280 N.W. 464, 125 A.L.R. 259; City of Aurora v. Shoeberlein, 230 Ill. 496, 82 N.E. 860; Clancy v. Board of Fire Police Commissioners of Milwaukee, 150 Wis. 630, 138 N.W. 109, 111; 3 Am. Jur. 209, Sec. 567; 31 Am. Jur. 774, Sec. 125.
Chapter 208, Laws of 1944, is unconstitutional.
Glover v. City of Columbus, supra; Bishopric v. City of Jackson, 196 Miss. 720, 16 So.2d 776; Haas v. Hancock County, 183 Miss. 365, 184 So. 812; State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1; Monette v. State, 91 Miss. 662, 44 So. 989; McClure v. City of Natchez, 151 Miss. 718, 118 So. 616, 618; Feemster v. Tupelo, 121 Miss. 733, 83 So. 804, 808; City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286; Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, 275; Clark v. State, 169 Miss. 369, 152 So. 820, 823; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129, 132; Tiley v. Grenada Building Loan Ass'n., 143 Miss. 381, 109 So. 10, 16; State ex rel. Jordan v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; Cox v. Wallace, 100 Miss. 525, 56 So. 461; City of Jackson v. Deposit Guaranty Bank, Trust Co., 160 Miss. 752, 133 So. 195, 197; Memphis C.R. Co. v. Bullen, 154 Miss. 536, 121 So. 826, 829; State ex rel. Knox v. Sisters of Mercy, 150 Miss. 559, 115 So. 323; Bank of Philadelphia v. Posey, 130 Miss. 530, 825, 192 So. 840, 95 So. 134; Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247; Leavenworth v. Claughton, supra; McCool v. State, 149 Miss. 82, 115 So. 121; Lacey v. State ex rel. Morgan, 187 Miss. 292, 192 So. 576; State ex rel. Garrison v. McLaurin, 159 Miss. 188, 131 So. 89; Moore v. Tunica County, 143 Miss. 821, 107 So. 659, 662; Mobile County v. State, 197 So. 6, 7; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; State ex rel. v. Armstrong, 315 Mo. 298, 286 S.W. 705; Reals v. Courson, 319 Mo. 1193, 164 S.W.2d 306, 309; Leonard v. Maintenance Dist., 187 Ark. 599, 61 S.W.2d 70; Marbut v. Hollingshead, 172 Ga. 531, 158 S.E. 28, 30; Gandy v. Elizabeth City County, 197 Va. 340, 19 S.E.2d 97; Thomas v. Collins, supra; Schneider v. Irvington, 308 U.S. 147, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 128 A.L.R. 1352; Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed. 645; DeJonge v. Oregon, 299 U.S. 353, 364, 81 L.Ed. 278, 283; Thornhill v. Alabama, 310 U.S. 88, 102, 103, 84 L.Ed. 1093, 1102, 1103; Senn v. Tile Layers Pro. Union, 301 U.S. 468, 478, 81 L.Ed. 1229, 1236; Hague v. C.I.O., 307 U.S. 496, 83 L.Ed. 1423; Hitchman Coal Coke Co. v. Mitchell, supra; Ohio Oil Co. v. Wright (Ill.), 53 N.E.2d 966; Constitution of 1890, Secs. 87, 88, 89, 103, 178, 199, 200, 241, 245, 250; Federal Constitution, First and Fourteenth Amendments; Laws of 1944, Ch. 208, Sec. 1, p. 362; 43 Am. Jur., 139, 141, Secs. 347, 349; 59 C.J., Statutes, Sec. 353; 1 McQuillin, Municipal Corporations, Revised 1940, Sec. 208.
Joseph A. Padway and Robert A. Wilson, both of Washington, D.C., for American Federation of Labor, amicus curiae.
The discharge of appellants was an infringement upon appellant's constitutional rights of freedom of assembly and speech.
State v. Butterworth, 104 N.J.L. 549, 142 A. 57, 58 A.L.R. 744; Murdock v. Pennsylvania, 319 U.S. 105; Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095; Herndon v. Lowry, 301 U.S. 242, 81 L.Ed. 1066; DeJonge v. Oregon, 299 U.S. 353, 364, 81 L.Ed. 278, 283; Hague v. C.I.O., 307 U.S. 496, 83 L.Ed. 1423; West Virginia v. Barnette, 319 U.S. 624.
The discharge of appellants was contrary to public policy.
Rex v. Journeymen Taylors of Cambridge, 8 Mod. 10; Rex v. Starling, 1 Leo. 125, 1 Sid. 174, 1 Keb. 650.
Argued orally by W.E. Gore, for appellant, and by Garner Green and W.E. Morse, for appellee.
The appellant was a member of the police force of the City of Jackson, Mississippi. He was discharged by the mayor and commissioners of the city. An order of the city's Civil Service Commission approving this discharge was affirmed by the court below, and the appellant has brought the case to this Court.
The record filed by the Civil Service Commission in the court below includes a stenographer's transcript of evidence heard by the Commission. When the case came on for trial in the court below, several motions were filed, among which is one by the appellee to strike the transcript of the evidence heard by the Civil Service Commission from the record, and one by the appellant for a trial by a jury. These motions were heard and decided together. The one for the appellee was sustained, and the one for the appellant was overruled, and a judgment was then rendered for the appellee, all of which appear in the same order or judgment.
The appellee challenges the efficacy of the appellant's appeal bond for this appeal, the constitutional validity of Chapter 208, Laws of 1944, which governs here, and the right of the appellee to an appeal to this Court. One of the appellant's complaints is the overruling of his motion for a jury trial.
The challenge of the constitutional validity of this statute is without substantial merit, and while no appeal is granted by it from the circuit court to the Supreme Court, such an appeal is within the provision of Section 1147, Code of 1942. The Civil Service Commission created by this statute is an agency of the municipality it serves. It has a number of duties to perform, one of which is, under Section 10 of the statute, to investigate the discharge of a policeman by the municipal authorities and determine whether or not the discharge was made for political or religious reasons or in good faith for cause. In other words, it is an agency of the muncipality for enforcing the Civil Service requirements of the statute, and makes, when called on so to do, the city's final decision as to whether a policeman shall be discharged. The parties to such controversy from its inception to its final decision by the city's Civil Service Commission are the policeman and the city in its corporate capacity. This being true, the obligee in the appellant's appeal bond should have been the City of Jackson instead of, as here is, the Civil Service Commission of Jackson, Mississippi. This defect in the bond, however, is cured by Section 1673, Code of 1942.
The statute does not provide for the making of a transcript of the evidence before the Civil Service Commission, a part of the record on an appeal to the circuit court, but expressly provides that "the accused shall have the right of trial by jury;" i.e., a trial de novo before a jury under the guidance and control of the trial judge, each of these branches of the court discharging the same functions that it always does in trials therein. The appellant's motion for a jury trial was not necessary, for in the absence of waiver of that right, it was the duty of the trial judge to try the case only with the assistance of a jury. For the error committed by the court below in trying this case without a jury, its judgment must be, and is
Reversed and remanded.