CONCURRING OPINION. I am of the opinion that the Court below should have granted the appellant's request for a directed verdict. I regret that I am unable to concur in the reasons therefor that influenced Judges L.A. Smith, Alexander and Griffith, as set forth in Judge Griffith's opinion, thereby preventing the decision here made from being an authoritative precedent in cases arising under Chapter 208, Laws of 1944.
The question presented to the Court below was not "whether the action taken by the Civil Service Commission was in good faith, honestly done and for cause which reasonable men acting as such a commission, could reasonably say was adequate cause" for the discharge of the appellee as my above named associates hold. Neither was it whether the appellant's Mayor and Commissioners discharged the appellee in good faith for cause, as contended by counsel for the appellee, but in the plain language of Section 10 of the statute, which was held constitutionally valid on the former appeal herein (McLeod v. Civil Service Commission,198 Miss. 721, 21 So.2d 916), was "whether the judgment or order of removal, (or) discharge . . . made by the commission, was or was not made in good faith for cause." The word "commission" as its context clearly discloses here refers to the City's Civil Service Commission. The appellee recognized *Page 691 this as the proper construction of the statute when framing his notice to the Commission of his appeal to the Court below. Section 10 of the statutes requires this notice to state the grounds of the appeal. The notice is addressed to the Civil Service Commission and recites that "Comes now J.R. McLeod, respondent in the above styled and numbered investigation matter, and files with John P. Ricks, Sr., President of the Civil Service Commission of the City of Jackson, Mississippi, this written notice of appeal from the order, judgment, findings and rulings of said Commission at the public hearing of said investigation on July 11th and 12th, 1944; final adjudicating order and judgment entered on July 19th, 1944 . . . and respectfully shows as follows: That the judgment or order of said Commission by the authority of which the respondent was removed and discharged from the position as a member of the police department of the City of Jackson, Mississippi, was not made in good faith for cause" and then proceeds at great length to state why this allegation is correct.
The causes for which the statute permits a policeman to be discharged are set forth in Section 9 thereof and the one with which the appellee is here charged is the commission of an act tending to injure the public service.
Two questions then were presented to the Court below, (1) was the judgment or order of the Civil Service Commission made in good faith, and (2) for cause. The order or judgment of this Civil Service Commission is presumed, prima facie, to have been made in good faith for cause, which presumption continued until the contrary appears from evidence introduced on the trial in the Circuit Court. In this case, however, the appellee not only introduced no evidence in support of his charge that the Commission's order was not made in good faith but obtained the exclusion of evidence offered thereon by the appellant, consequently there being no evidence to the contrary the presumption that this order of the Commission was made in good faith remained in full force and *Page 692 effect and there was, therefore, no occasion to submit that branch of the question to the determination of the jury.
The theory on which the appellee seems to have proceeded and in which the trial judge concurred, is that our opinion on the former appeal, holding that the appellee was entitled to a jury trial, not on a transcript of the evidence heard by the Civil Service Commission but "de novo," necessarily means that the Court below should try the issue that was before the Civil Service Commission, i.e., whether the Mayor and Commissioners acted in good faith for cause in initiating the discharge of the appellee. What this Court there intended to hold, and in the light of the statute's specification of the issue to be tried in the Circuit Court, seems clearly to have held, is that the issue designated by the statute — whether the judgment of the Civil Service Commission was made in good faith for cause — should not be tried or a transcript of the evidence heard by the Commission, but anew, i.e., on evidence then introduced before the jury. To have held what the appellee seems to think the Court did, would have been to amend the statute under the guise of interpreting it.
But the result here would have been the same had the appellee not misconceived the issue to be tried, for it seems clear from the colloquies appearing in the record between counsel and the trial judge during the progress of the trial that the appellee would have made no attack, by evidence, on the good faith of the Civil Service Commission, and it is also clear from the record that he introduced all the evidence at his command on the second branch of the issue being tried, that is, whether the act with which he is charged constituted cause for is removal from the appellant's police force.
Before leaving this branch of the case I think it well to call attention, as was done in the opinion rendered on our former appeal herein, to the fact that this Civil Service Commission is not an inferior appellate court, but is *Page 693 an administrative agency of the appellant charged with the duty of enforcing the civil service provisions of Chapter 208, Laws of 1944, under which when the Mayor and Commissioners discharge a policeman he need not accept his discharge but may transfer his controversy with the City from its Mayor and Commissioners to the City's Civil Service Commission, which is then charged with the duty of deciding whether or not he shall be discharged or retained in the City's service.
This brings me to the second branch of the question submitted to the Court below, that is, was the order of the Civil Service Commission by which the appellee was removed from membership on the appellant's police force made for cause. The reason given for the discharge of the appellee is that he had committed, or rather intended to commit, an act tending to injure the public service, i.e., had joined or intended to join the American Federation of State, County and Municipal Employees, a nationwide labor union affiliated with the American Federation of Labor. The appellee having admitted his intention to join this labor union if permitted to remain a member of the appellant's police force left for decision by the Court below only the question of whether membership in this labor union would tend to injure the public service. The question thus presented is one of fact, to be decided as all other questions of fact are in cases tried by a judge with the assistance of a jury; the judge's duty being to instruct the jury on the principles of law that should govern its decision and when on the evidence only one verdict could rightly be returned, to peremptorily instruct the jury to return it. When such an instruction is granted it is not necessary for the jury to actually return the verdict but the court should simply render a judgment for the party to whom the instruction was granted, as on a verdict returned in accordance with the instruction. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Yazoo M.V.R. Co. v. Pope, 104 Miss. 339, 61 So. 450; Home Owners *Page 694 Loan Corp. v. Wiggins, 188 Miss. 750, 195 So. 339, 196 So. 240.
The charter of the labor union which the appellee intended to join requires its members to "work for the establishment and maintenance of fair wages, hours, working conditions, and civil service classification" and each must sign the following pledge: "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."
It will thus be seen that police officers whose duty to the public requires them to keep the peace, acting always in so doing in the interest of the public, who are members of this labor union owe an allegiance thereto which requires them at all times to support and promote the union's objectives and the labor movement in general. Strikes of great magnitude, both primary and sympathetic, often marked by actual or threatened violence, by the members of labor unions to enforce compliance by employers with the union's demands, are so common and so frequently require the impartial intervention of the police to preserve the peace, that a jury could not rightfully find that membership of a city's police force in a labor union of this character would not tend to injure the public service. The public interest requires the undivided loyalty of police officers to the public service and we were told long ago by One whose judgment was infallible that "no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the *Page 695 other". This being true, no question remained for submission to the jury and the Court below should have granted the appellant's request for a directed verdict.
I have limited this opinion to matters that apply only to the effect on the public service of membership of the city's police force in a labor union, and have purposely left out of view other matters that might affect this question adversely to the appellee but would apply not only to policemen but to all other city employees.
One of the contentions here made, not hereinbefore discussed, is that on the first trial of this cause the court below held that the appellee's declared purpose to join and continue as a member of this labor union was sufficient cause for his removal from the appellant's police force, and that this Court disapproved that holding on the former appeal herein by reversing the judgment then rendered. That question was not properly presented, if at all, to the court below on that trial and under the rulings then made by the trial judge could not have been then decided. The only evidence bearing on this question, introduced on that trial, was contained in the transcript in the evidence heard by this Civil Service Commission, and when that transcript was stricken from the evidence and no evidence was introduced by McLeod, the then appellant, in support of his claim that his removal was not in good faith for cause, there was nothing the court below could have done except render a judgment for the city. What the trial judge there thought of the appellee's claim to have been unlawfully removed from the city's police force does not appear from the record then made, to which alone we can look for it.
Again it is said that if this Court is of the opinion that the jury on the evidence introduced on the second trial of this case should have been directed to return a verdict for the city it should have affirmed the judgment rendered by the court below on the first trial, for the appellee then admitted, in the brief of his counsel, that he intended to join and continue as a member of this labor union. This *Page 696 contention overlooks the fact that this court is one of appellate jurisdiction only and is authorized to decide questions when, but not unless, they have been presented to and decided by a trial court, and as hereinbefore stated, this question was not presented to the trial court on the first trial hereof in such form as would authorize that Court to decide it, nor does the record disclose that it was in fact decided.