I find myself unable to agree with the majority and respectfully dissent. *Page 799
There is no claim that Couch was discharged for cause. In the letter of dismissal, the commission said:
"On behalf of the commission I wish to thank you for the conscientious manner in which you have performed your duties. I assure you that this action is not a reflection on your work and that any member of the commission or myself will be only too glad to furnish you with any letter of recommendation you may desire."
The distinguished trial court that heard this case, after listening to the witnesses, which included all members of the commission said, I quote from his findings:
"The court finds that Joseph Couch was a civil service employee at the time of his discharge. That the position was not abolished, that he is honest, efficient and competent and that he has substantially complied with all the provisions of the law and the requirements of the Commission. And that no charges have ever been preferred against him. And that he was wrongfully and illegally and arbitrarily discharged from the position which he held as a civil service employee."
The undisputed record shows that Couch had excellent educational qualifications, that he was employed in March of 1938, and took the first merit examination for his position in May of 1938, passing with a grade of 84.28 far above the minimum requirement of 70. On July 1, 1938, he was given a probationary appointment of 6 months under section 1, Rule IX. This section provides for a probationary period of 6 months, and provides that the probationary period shall be an intrinsic and integral part of the examination process. The supervisor of examinations was notified of his appointment. At the end of his probationary period, the secretary and director of personnel had filed a statement in writing that his services were satisfactory, and that it was desired that he be retained and the commission passed a motion employing him as a permanent employee. He continued as a permanent employee *Page 800 from January 1, 1939, until June 30, 1939, when the commission "fired him", without cause.
When Couch was given a probationary appointment on July 1, 1938, there was no vacancy in the position he held as he had been occupying it since the preceding March. Sections 5 and 6, Rule VII are not mandatory provisions requiring the commission to obtain a certification from the supervisor of examinations for the name of one who was already employed and had passed the merit examinations. Under section 5, Rule VIII, regulation No. 19, Couch could only be employed "for a temporary period, not to exceed six months" and successive "temporary appointments" are prohibited. On January 1, 1939, he was permanently appointed.
The commission itself established a contemporaneous interpretation of sections 5 and 6, Rule VII and section 1, Rule VIII, that the same did not apply to those employees who had positions and had passed the merit examination creditably for the position they held; that under those circumstances, a vacancy did not exist. This contemporaneous interpretation by the commission made these sections inapplicable as to Couch. See Fox v. Standard Oil Co., 294 U.S. 87, 55 S. Ct. 333, 79 L. Ed. 780; and Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S. Ct. 144, 75 L. Ed. 397.
I would affirm.