City of Jackson v. McLeod

Griffith, J., delivered the opinion of the court. On June 16,1944, a large group of the policemen of the City of Jackson, accompanied by the heads of various labor unions in the city, appeared before the Chief of Police and notified him that the policemen or most of them, had engaged to join a labor union, an affiliate of the American Federation of Labor, and that they desired the use of the city court room for the purpose of electing the officers of the union and otherwise in the completion of their organization. On the next day the Chief of Police in writing informed the Mayor and Commissioners and requested directions from them. Later on that day, the Mayor and Commissioners delivered to the Chief of Police a written order by which he and all policemen were informed that no policeman in the city shall he a member of a labor union, the order setting* out several grounds or reasons for the regulation, among which was that such a membership would result in a divided allegiance. The order directed the Chief of Police to ^immediately notify all the policemen thereof, and to notify them further that any policeman who did not resign his connection with any labor union by noon of June 19, 1944, would be dismissed. All were so notified and at the hour last mentioned 34 of the policemen, including appellee, declined to obey the order and were thereupon discharged. *685 Within ten days thereafter appellee and others of the dismissed policemen filed with the' Civil Service Commission of the city, as provided by Section 10, Chapter 208, Laws 1944, a written demand for an investigation, and on July 11, 1944, the Civil Service Commission had a full hearing, all parties being present or represented. On July 19, 1944, the Civil Service Commission rendered its decision in writing affirming the dismissal stating fully and at length the reasons and grounds for its action. The Commission ordered, however, that the City Council should restore to the service any policeman who within five days applied for reinstatement coupled with a renouncement of his union affiliation. Appellee did not so apply but instead appealed to the Circuit Court, as also allowed under the cited Act. The grounds upon which policemen in a city operating under the commission form of municipal government, as does the City of Jackson, may be removed or discharged are set out in Section 9 of the cited Act and they are as follows: Jncompetency, inefficiency, or inattention to duty; dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee or any other act of omission or commission tending to injure the public service. The grounds upon which the Civil Service Commission sustained the dismissal were (1) insubordination and (2) acts tending to injure the public service. The cited Act expressly provides that on appeal to the Circuit Court from the order of the Civil Service Commission, the hearing in the Circuit Court “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 appeal is from the action of the Civil Service Commission since it makes “the City’s final decision as to whether a policeman shall be discharged.” McLeod v. Civil Service Commission, *686 198 Miss. 721, 21 So. (2d) 916, 917. The questions to be considered by the Circuit Court and the jury under its direction were, therefore, whether the action taken by the Civil Service Commission was in good faith, honestly done, and upon a cause which reasonable men, acting as such a commission, could reasonably say was an adequate cause. A muncipal council in employing and in discharging policemen and other municipal employees and in prescribing rules and regulations for the conduct of such employees is acting in an executive or administrative capacity, San Antonio, etc., Local Union v. Bell (Tex. Civ. App.), 223 S. W. 506, at page 511, and the Civil Service Commission in its investigation under the cited Act as the agent of the city is moving still within the ambit of an executive or administrative function. The Legislature could not confer on a circuit court or any other judicial court the authority to appoint or to discharge city employees or to prescribe rules for the government of such employees, and as it could not do so directly it could not do so by the indirect device of an appeal, and as already pointed out the Legislature has been careful not to do so in the cited Act. When an executive or administrative officer or agent goes beyond the scope of the power vested in him by law it becomes a judicial question, of course, and such was the case of Glover, Mayor, v. City Council of Columbus et al., 132 Miss. 776, 96 So. 521, but there is no such case here. It was not competent, therefore, on the appeal, for the Circuit Court and its jury to convert themselves into an administrative body and to become a civil service commission with authority as if original to determine whether to the minds of the court and jury there was cause for the dismissal in this case. The Constitution which divides the powers of government into three separate departments, neither to usurp the authority of the other, stands forth and forbids. The only inquiry upon which the court and jury could embark was that already stated, namely, *687 whether the action, taken by the Civil Service Commission was in good faith, honestly done, and upon a cause which reasonable men, acting as such commission, could reasonably say was an adequate cause. To’ that extent only would or could the issue become a judicial question. Local governments are, and of necessity must be, of a higher authority than that which is merely .advisory to the courts. Compare City of Jackson v. McPherson, 158 Miss. 152, 158, 130 So. 287, and Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579, 1 So. (2d) 489. This case does not involve in any way the merits or demerits of labor unions when confined to private employment. In their place, outside of governmental agencies, their merits are fully conceded. It was as to their place when city policemen are involved that the Civil Service Commission was here concerned and it is that only with the court is concerned. And here it is to be remembered, and well noted, that a civil service commission, in its administration, is not solely a fact finding-body; it is charged, as the supervising agent of the city, and within the province committed to it, with the essential discretion which must be invested in such a body in the matter of what is good policy in city employments, and in the conduct of city employees according to the character of the duties to be performed by the particular employees under consideration. It ought to be conceded by everybody that while a city policeman must perform his duties with courage and intelligence, he must do so without • favoritism. Nothing could be more unbecoming to a police department than that it shall be pledged, or otherwise committed in aii obligatory manner, to a preference of one group over another when all are paying their salaries, and particularly is this true when the groups are such that disputes between them are liable to arise, which in turn may lead to disorders. And inasmuch as the City Council is elected by the people and made responsible to the people for the *688 proper conduct of every department of the city government, the police employees must be responsible to the council and must be under its direction, free from the obligation of any other allegiance whatsoever, so far as their activities as policemen are concerned. And to fully implement this requirement it is expressly enacted by Section 3803, Code 1942, that the City Council under the commission form of municipal government “shall also have power ... to make all needful rules and regulations for the government of the officers and employees of said city; to enforce a strict observance thereof, and to change the same when deemed necessary.” In Fraternal Order of Police v. Lansing Board of Commissioners, 306 Mich. 68, N. W. (2d) 310, 312, the latest case on the subject, it is said: “Police and fire departments are in a class apart. Both are at times charged with the preservation of the public order, and for manifold reasons they owe to the public-their undivided allegiance. The power in the city of complete control is imperatively necessary if discipline is to be maintained,” quoting from Carter v. Thompson, 164 Va. 312, 180 S. E. 410. In Hutchinson v. Magee, 278 Pa. 119, 122 A. 234, the court said: “It is generally conceded that association with any organization which, on any occasion or for any purpose, attempts to control the relations of members of either police or fire departments toward the municipality they undertake to serve is, in the. very nature of things, inconsistent with the discipline which such employment imperatively requires, and therefore must prove subversive of the public service and detrimental to the general welfare. ... If plaintiffs desired to retain their positions in the public service, they should have obeyed the director’s order; having elected not to do so (which, of course, was the privilege of each of them, as individuals), they cannot successfully complain of the ensuing results.” See also McNatt et al. v. Lawther (Tex. Civ. App.), 223 S. W. 503; San Antonio, etc., Local Union v. Bell (Tex. Civ. App.), 223 S. W. 506; Brownell v. Russell, *689 76 Vt. 326, 57 A. 103; and McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N. E. 517. No case to the contrary of these holdings, when carefully examined, has been cited by appellee. The good faith of the Civil Service Commission has not been challenged. Appellee has made no offer or insistence that he could show to the contrary. He has insisted that the good faith of the Commission is not an issue in the case. And concurring as we do in the above quoted excerpts taken from the courts on the applicable law, nothing further is necessary than now to quote the pledge which each member of the proposed union must take as a feature of his membership: “I . . . pledge my honor to observe faithfully the constitution and laws of this local of the American Federation of State, County and Municipal Employees and the rules and regulations for the government thereof; not to make public any of the private proceedings of this local; to perform faithfully all the duties assigned to me; to support the products and services of organized labor by making purchases of such products and services; to so conduct myself at all times as not to bring reproach upon my local; and at all times to bear true and faithful allegiance to the American Federation of State, County, and Municipal Employees and to the labor movement in general.” When the terms of this pledge and the other facts mentioned herein, all of which are undisputed, are laid alongside the legal principles above set forth it is manifest, as we now think, that the Civil Service Commission had before it a cause upon which reasonable men, acting as commissioners, could reasonably arrive at the conclusion which they did, and this being the case no court or jury should be permitted, or can be permitted, within constitutional limitations, to otherwise adjudge. Had such a pledge, but to the opposite effect, been made to some group, by whatever name called, favoring non-unionism and that the police would in their activities endeavor at all times to advance the cause of non-unionism it would *690 have been equally objectionable had the Civil Service Commission so held, as doubtless it would. The judgment should have been for the appellant City and whether upon the request for a peremptory charge or upon the motion for judgment notwithstanding the verdict is immaterial so 'far as the present case is concerned. Reversed and judgment here for appellant.