Civil Service Commission of Van Buren v. Matlock

168 S.W.2d 424, 205 Ark. 286, 1943 Ark. LEXIS 338

• Court: Supreme Court of Arkansas
• Decided: February 15, 1943
• Docket: 4-6953
• Status: Published

Opinions

Robins, J.

The civil service commission, the mayor, and city council of Van Burén, Arkansas, have appealed from a judgment of the circuit court of Crawford county by which the court annulled an order of the civil service commission of Van Burén reducing the appellee, Rufus Matlock, from the rank of chief of police to the rank of patrolman.

The civil service regulations provided for by §§ 9945 to 9964, inclusive, of Pope’s Digest of the statutes of Arkansas were adopted by vote of the electors of Van 'Burén, and were duly put into effect by ordinance of the city council. On June 3, 1942, charges of general inefficiency and neglect of duty were preferred against the appellee before the civil service commission by the mayor and city council of Van Burén. At the hearing before the commission eighteen witnesses on behalf of the mayor and city council and nine witnesses on behalf of the appellee testified. On this testimony the commission determined that the charges were sustained by the evidence and made an order demoting the appellee from the position of chief of police to that of patrolman. From this order appellee duly prayed an appeal which was granted, and a transcript of the documents filed with the civil service commission, but not containing the testimony heard by the commission, was filed in the office of the circuit clerk. In the circuit court, the appellants moved to dismiss the appellee’s appeal on the ground that the portion of the statute providing for a de novo trial on appeal was unconstitutional for the reason that the proceeding had before the commission was an administrative one and not a judicial one of which the courts might take jurisdiction. It was also set forth in appellants’ motion to dismiss “that even if the word appeal should be construed as granting a right in the nature of certiorari the review can not be conducted as a trial de novo.” The lower court overruled this motion, and, over the objection of the appellants, empaneled a jury to hear the matter. The appellants introduced no testimony whatever. Certain witnesses were introduced by the appellee, appellants making specific objection to the testimony of each of these witnesses. The jury returned the following verdict: “We, the jury, find for the defendant, Rufus Matlock.” On this verdict the court entered a judgment to the effect that the order of the civil service commission “be not sustained,” and from' that judgment the civil service commission and mayor and city council have appealed.

It is first urged by appellants that the provisions of § 9919 of Pope’s Digest authorizing an appeal to the circuit court from a finding of a civil service commission are unconstitutional for the reason that an attempt is made thereby to -confer administrative powers and duties upon the courts. But the remedy provided by the legislature for one aggrieved, as the appellee was, by an order of the civil service commission after all is simply an opportunity to obtain restoration to his office by a judicial proceeding. Unquestionably the remedies afforded by writ of quo warranto or of certiorari, either of which might have been pursued in the absence of a statutory remedy, are judicial proceedings. The legislature might have provided for the bringing of an original suit in the circuit court in order to afford the aggrieved party judicial redress from an unjust decision of the civil service commission, and the fact that the legislature saw fit to authorize such proceeding by -way of appeal from the order of the civil service commission does not make such proceeding any the less a judicial one. Under our constitution, art. VII, § 11, the circuit court is made the reservoir of all judicial powers not vested elsewhere. The legislature had the right, in authorizing a civil service commission, to vest in the circuit court the power to review judicially, either by way of original proceeding or by way of appeal, the action of the commission. In the case of Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, 204 S. W. 630, the court had under consideration an appeal to the circuit court by a taxpayer from the action of a board of commissioners in fixing the assessment of benefits for the district under the provisions of the special act of the General Assembly creating the district, and the contention was made that, since the circuit court acted in an administrative, not a' judicial, capacity in reviewing the assessment, no appeal to the supreme court from the judgment of the circuit court would lie. But this court overruled this contention, and, in describing the function of the circuit court as to the appeal in that case, said: “The circuit court acts in a judicial, and not in an administrative, capacity.” We conclude, therefore, that the provisions of § 9949 of Pope’s Digest, authorizing the appeal and hearing in circuit court, are not void.

The legislature had the power to prescribe the mode of procedure on such appeal, and by an analysis of that, part of § 9949 authorizing the proceeding in circuit court it appears that it was the intention of the legislature, in providing for this appeal, to require that the testimony taken before the civil service commission be heard and considered by the circuit court along with any additional testimony that either party might offer. The language of the statute is that in the circuit court “the parties to such appeal may introduce any further or other evidence that they may desire.” The phrase “further or "other evidence” could mean nothing else but testimony in addition to that heard at the hearing before the civil service commission, and indicates clearly that the legislature intended that the testimony taken before the civil service commission should be brought into the record for the trial in circuit court. By construing the statute otherwise we would fail to give full meaning to the entire language of, the act. While the act does not provide how or by whom the testimony taken before the commission shall be produced in circuit court, the logical inference is that the party appealing from the order of the commission should bring up this testimony, duly authenticated by the commission, or otherwise shown to be the testimony, along with the remainder of the record in the case.

The appellants also urge that the lower court erred in submitting this case to a jury. This contention is well founded. The constitutional guarantee of a jury trial extends only to common-law actions, and, of course, the proceeding authorized by the act of the legislature under consideration here is not a common-law proceeding, and neither party to such a proceeding was entitled to a jury. “The right of trial by jury shall . . . extend to all cases at law. ’ ’ Article II, § 7, constitution of Arkansas. In construing this provision of the constitution this court, in the case of Drew County Timber Company v. Board of Equalization, 124 Ark. 569, 187 S. W. 542, said that the right of trial by jury “is confined to cases which at common law were so triable before the adoption of the constitution.” State v. Johnson, 26 Ark. 281; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Wise v. Martin, 36 Ark. 305; Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, 204 S. W. 630.

The appellants had a right, under the law, to have this case heard and determined by the court, and not by a jury, and the lower court erred in submitting the case, over the objection of the appellants, to the jury for trial.

For the errors indicated, the judgment of the lower court is reversed with directions that a new trial, before the court, be granted, and that said new trial shall be had upon the record of the proceeding before the civil service commission, including the evidence there adduced, and upon such other competent and relevant evidence as may be offered by either of the parties.