DISSENTING OPINION. Under my view of the record now before us, the verdict of the jury and judgment of the trial court should be affirmed, if we are to adhere to our former decision herein on the principal question involved — whether or not the declared purpose of these policemen to join the American Federation of State, County and Municipal Employees, an affiliate of the American Federation of Labor, and their failure to renounce such intention when requested so to do, was per se a sufficient cause in contemplation of law for their discharge from the police force.
On the first trial the Circuit Judge decided this question in the affirmative, without the intervention of a jury, and manifestly his only reason for denying the policemen a trial by jury was the fact that they had admitted in their answer a present intention to join such organization and had also admitted that they declined to renounce their declared purpose in that behalf.
On the first appeal of the case we reversed this decision of the trial judge, and we thereby declined to hold that this admitted act of the policemen was per se a sufficient cause for their discharge — an issue then clearly presented and twice elaborately briefed. The former reversal was of necessity based upon the theory that the fact of whether or not these men were discharged in good faith and for cause was a jury question; that is to say, an issue *Page 697 of fact to be determined under all of the evidence on a trial de novo in the Circuit Court where the jury should discharged "the same functions that it always does in trials therein."
The language just above quoted was used in our former decision of this same case when it was entitled McLeod v. Civil Service Commission of Jackson, as reported in 198 Miss. 721,21 So.2d 916, but which case is now The City of Jackson v. J.R. McLeod, due to the fact that we also said on the former appeal that the "parties to such controversy from its inception to its final decision by the City's Civil Service Commission are the policemen and the City in its corporate capacity." And, as a matter of fact, the final judgment was rendered by the Mayor and Commissioners of the City of Jackson, since the Civil Service Commission rendered what may be termed a judgment nisi, giving the policemen five days within which to renounce their intention to join the organization in question and at the expiration of said period the Mayor and Commissioners entered a judgment reciting noncompliance by the policemen of the condition imposed, and finally discharged them setting out their names in the final judgment. And on the former appeal we did not intimate in remanding the case for trial de novo before a jury in the Circuit Court that the trial was not to involve the same issues that the Civil Service Commission had heard and determined, to-wit, whether these men had been discharged in good faith and forcause, or for political reasons, by the Mayor and Commissioners. This Court had already held in the case of Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741, that: "To try a cause anew means to try it as if it never had been tried before."
When we now hold that the City was entitled to a directed verdict in its favor on the ground that the admitted act of the policemen was per se a cause for their discharge in contemplation of law as one "tending to injure the public service," and that their admitted refusal to renounce their purpose to join the organization complained *Page 698 of was per se an act of "insubordination" within the meaning of Chapter 208, Laws of 1944, which declares that members of the police and fire departments are "automatically . . . and . . . permanently" inducted under civil service if they have been employed as long as six months, the inevitable result will be that the policemen are to be taxed with the unnecessary cost of the second trial in the Circuit Court and also the cost on this further appeal, all to no purpose.
Prior to the enactment of Chapter 208, Laws of 1944, supra, the governing authorities of municipalities in this State could exercise, as a proper function of local government, an uncontrolled discretion in the matter of discharging city employees for any reason satisfactory to the appointing power or for no reason at all; but by this Act the Legislature withdrew this unrestricted power from municipalities of a specified class as to experienced members of the fire and police departments, and restricted the right of discharge to cases of "incompetency, inefficiency, or in attention 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 concluding general provision above quoted meaning any other act of a like kind and character of those instances of misconduct specifically mentioned in the enumerated offenses, if I understand the doctrine of ejusdem generis correctly. And, most assuredly, the Legislature would never have intentionally made mere membership in the organization here in question, as distinguished from an abuse of the privileges of such membership which is not yet complained of, a cause for their discharge from employment.
On the first appeal of this case we upheld the constitutional right of the Legislature to impose the above mentioned limitations, when we held this Civil Service Act to be constitutional. *Page 699
Under the provisions of this Act, if such an employee is discharged by the Mayor and City Commissioners, allegedly for any of these enumerated instances of misconduct, he has the right to have an investigation made by the Civil Service Commission of the city, and "after such investigation the commission may, if in its estimation the evidence is conclusive (not that the discharged employee was about to join an organization of police officers, but that doing so "tended to injure the public service") affirm the removal, or if it shall find that the removal, . . . was made for political or religious reasons, or was not made in good faith for cause" the Commission may order the discharged employee reinstated, etc.
Whether the jury was to review the act of the Civil Service Commission or that of the Mayor and Commissioners the fact remains that the question for decision in either instance would involve the requirement that it should appear from the evidence that the judgment under review was rendered for a cause authorized by law, even if the good faith of both Commissions is conceded.
Moreover, when on the first appeal we upheld the action of the Circuit Judge in sustaining a motion of the city to exclude from the record the transcript of the evidence taken before the Civil Service Commission we foreclosed any inquiry by a jury into whether or not such Commission had evidence before it to justify its conclusion when it held that these policemen were discharged by the Mayor and Commissioners in good faith for cause, and not for political reasons. Nor was there left any conceivable way whereby the jury could determine whether the Civil Service Commission itself had acted in good faith, and for a cause concerning which reasonable men might agree with the City Commission, since no tribunal can properly review the action of another without the benefit of that upon which the former acted.
At any rate the issue which the Court is now saying should have been determined on the second trial has not been developed before, nor submitted to, a jury for decision, *Page 700 to-wit, whether or not the Civil Service Commission acted in good faith and for cause, and, in the language of the statute hereinvolved, on evidence which "in its estimation . . . is conclusive." In other words, it occurs to me that when we hold that the city was entitled to a directed verdict on the second trial, the effect of the decision is to deprive the policemen of the benefits of the retirement fund to which they have contributed, their seniority rights and their jobs without due process of law.
But it is said that the policemen can not complain thereof because they obtained on the second trial the exclusion of the evidence as to whether the Civil Service Commission had rendered its decision in good faith and for cause. But even so, the only way that a jury could determine whether the judgment had been rendered for cause, conceding the good faith of the Civil Service Commission, was by knowing what showing, if any, to the contrary had been made by the policemen at such hearing on the question of whether they had done anything tending to injure the public service and to constitute a present cause for discharge, and this Court had held that the evidence before said Commission in that behalf had been properly stricken, and the trial judge in an effort to conform to our former decision, affirming his own in that behalf on the first trial, had stated on the second trial that "the issue to be tried is whether or not the City Commission, that is, the Mayor and two Commissioners, acted in good faith, and what the Civil Service Commission did or did not do, has no place in the trial of this case whatever"; wherefore what else could the policemen or their counsel do except to try to have the trial conducted according to the ruling of the trial judge on the first trial which we had upheld on the former appeal as to the incompetency of such evidence?
It is inconceivable to me either as to how the case could be tried de novo before a jury without the jury hearing all of the evidence germane to the issues upon which the *Page 701 Mayor and Commissioners determined that these men should be discharged, or as to how the jury could review the finding of the Civil Service Commission (if there is such a thing as a jury acting in the unique capacity of an appellate tribunal) without the benefit of the testimony heard before the latter Commission on the question of whether the Mayor and Commissioners had acted in good faith and for cause, or for political reasons, and as to how the jury could review the action of the Civil Service Commission on a hearing de novo without considering all of the evidence pertaining to the issues heard by said Commission.
In any event that which is now before this Court for review is the record made in the Circuit Court on the second trial pursuant to our former decision in this cause, that is to say, we do not have before us a case wherein we are to review the action of an administrative body, on the evidence heard and the record made before it, for the purpose of determining whether its judgment is supported by substantial evidence. We have no evidence to look to in that behalf. Here the Legislature has provided for an intermediate trier of the facts in the Circuit Court, and it seems to me that the question for our decision is whether thejurors, whose finding is before us for review, could have found as reasonable men that the declared purpose of these policemen to join an organization of the type and character in question was not an act "tending to injure the public service" — purely an issue of fact under the proof in the case.
On the weight of the evidence it clearly appears that the jury was entitled to find as a reasonable conclusion that there is a fundamental difference between the American Federation of State, County and Municipal Employees and the labor unions in general, in that the proof shows that its charter denies the right of policemen to strike; that the organization does not advocate the negotiation of contracts with municipalities through collective bargaining, or under the closed shop principle or checkoff *Page 702 system; that no strike has even been called by one of the locals or by the national organization in a police department; that the National has never exercised any control over the locals, except to the extent of seeing to it that the no-strike provision of the charter is observed, under penalty of its forefeiture, and to require that the local's constitution and by-laws are consistent with the policies of the parent organization; that the American Federation of Labor exercises no element of control whatever over either this national organization or the local units thereof; that when the charter was mailed to the proposed union of the Jackson policemen it was accompanied by a letter from the President of the National in which it was stated: "I want to make plain also that if your local should engage in a strike your charter will be revoked automatically, for we cannot condone a strike by police officers"; and that the employees here involved would faithfully discharge their duties in the future as policemen, notwithstanding their membership in this so-called labor union.
As against the proof above set forth, the City relies upon the inferences to be drawn from the "divided allegiance" that membership in such an organization might entail, and also on the pledge quoted in the controlling opinion herein — a pledge which the record before us fails to disclose was ever seen by the Mayor and Commissioners prior to their original order discharging these men, and which pledge contains the further recital that "I solemnly promise that I shall do all in my power to exault and promote the government service; . . ."
And it is said that the late Samuel Gompers, when emphasizing the vital distinction between one of these organizations of public employees and labor unions in general, made this statement: "When policemen accept charters from the A.F. of L. it is with the distinct understanding that strike action will not be resorted to and no obligation is assumed which in any way conflicts with their oaths or duty." *Page 703
Of course this traditional view that a strike in a police department should not be tolerated, and that better wages, hours and working conditions should not be obtained for policemen through coercion and intimidation on the part of either local or outside influences, should be readily acceptable to all. The non-delegable duty and responsibility imposed by law upon the governing authorities to provide at public expense for the safety and security of the lives and property of the citizens and the power to fix such compensation for this protection, and the working conditions therefor on such basis as in their judgment seems proper, should never become the subject of barter or sale. But this does not mean, however, that the right to organize, assemble and petition for the redress of grievances, whether real or imaginary, or to make recommendations for the consideration of those in authority, either as to wages, hours and better working conditions or in the interest of more efficient law enforcement, can be abridged or curtailed so long as there has not been an abuse of these constitutional guaranties.
It was held by the Supreme Court of the United States in the case of De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, that the people may be protected from an abuse of the right of assembly and petition, etc., but that intervention with such constitutional guaranties can find justification only in dealing with the abuse; that the right itself cannot be curtailed.
Members of a police force are not employed at random as men are hired in many private enterprises; they are presumed to be carefully selected from a personal knowledge on the part of the appointing power as to their fitness and qualifications as law abiding citizens, and it should also be presumed that they will faithfully discharge their official duties, as they testified in the case at bar they would do, without fear or favor, until the contrary shall appear, even though they may be in sympathy with the labor movement in general. *Page 704
The element of outside control and the alleged abuse of union powers and privileges which was present in some of the cases cited in the majority opinion herein, and which formed the basis of the divided allegiance that gave those courts concern, is disclaimed in regard to the "union" here involved. And in those cases the municipal charter made the City Commission the final arbiter of the sufficiency of a cause for discharge. Under those decisions the members of the fire departments could likewise be discharged on account of union membership, whereas in the instant case the proof shows that the fire department of the City of Jackson has been unionized for nearly twenty-five years without any apparent injury to the public service.
Insofar as the prospect is concerned that the policemen here involved may assemble and petition for better wages, hours and other working conditions unless they should renounce their membership in the proposed union, it would appear that a sufficient answer would be that they would have such a right under the First Amendment to the Constitution of the United States and Section 11 of the State Constitution whether they belong to a union or not. And this right was recognized by the City Commissioners in their letter to the Chief of Police asking him to discharge these men, wherein it was said: "Should the police officers, who are not members of this or any other union, wish to discuss hours, wages or other working conditions with us, we will be glad to meet with them for that purpose." In fact, such a privilege has always held an honorable place among the natural rights of man.
Conceding for the purpose of this decision the good faith of both the Mayor and Commissioners and the Civil Service Commission of Jackson, it is apparent that when the former discharged these policemen it was not advised of, or at least failed to take into account, the essential and radically different features of the particular organization in question as compared with the rights and privileges of labor unions in general; nor does it appear that *Page 705 the jury would have been warranted in finding from the evidence that either of said Commissions had acted for cause in discharging them for an act of misconduct within the meaning of Chapter 208, Laws of 1944, regardless of the good faith that may have prompted such action, since it is not within the contemplation of this statute that such employees under Civil Service can be discharged for what they may do in the future by virtue of present membership in such an organization.