The appellee was a member of the appellant's fire department, was discharged therefrom, appealed to the City Civil Service Commission and being dissatisfied with the order made by it, appealed to the court below, which rendered a judgment in his favor. The record discloses that in February, 1945, the City of Laurel maintained four fire stations with a fire captain at each, the entire fire department being under the supervision and control of a fire chief. There was also an assistant fire chief who discharged the duties of the chief in his absence and in addition, as appurtenant to his position as assistant fire chief, discharged the duties of an additional captain at Station No. 1. On February 12, 1945, the appellee was the appellant's assistant fire chief and had been such for *Page 264 some years. On that day the mayor and commissioners of the city adopted the following order:
"By unanimous vote of the Mayor and Board of Commissioners, it is ordered that, for the purpose of curtailment of expenditures and reduction in force in the Fire Department, the office of Assistant Fire Chief in the fire department be and the same is hereby abolished, effective February 15, 1945, and that Cliff Reddoch, now Assistant Fire Chief, be dismissed effective as of that date, with pay from Feb. 15th to March 1st, 1945, to enable him to have time to obtain other employment."
On the same day the city clerk wrote and mailed the following letter to the appellee:
"For the purpose of curtailment of expenditures and reduction in force in the fire department, it was unanimously voted to abolish the office of Assistant Fire Chief in the fire department, effective February 15, 1945.
"We are pleased to enclose herewith, warrant for services from Feb. 15, to March 1st, 1945 and if there is any way we can assist you at any time in obtaining other employment, it will be a pleasure to do so."
The mayor and commissioners then added another captain giving him the added duties of assistant fire chief theretofore performed by appellee. The appellee then carried the matter to the city's Civil Service Commission, which made an order setting forth: "The Commission is of the opinion that the City Commission has the authority to abolish the job of assistant fire chief of the Fire Department and that is a matter within their power and this Commission has nothing to do with it. We further think that Mr. Reddoch will be entitled to another job in the department to which his length of service would entitle him. Since that is true, Mr. Reddoch can go to the Commissioners and request employment in another capacity, and if he feels aggrieved at the Commissions' action on that request, then this Commission will have authority to hear him on this grievance." *Page 265
The appellee thereupon appeal to the court below, the stated ground therefor being in effect that the Civil Service Commission erred in holding that the Mayor and Commissioners had the right to abolish the position of assistant fire chief and that the appellee should be "required to take a demotion in employment in another or like position." When the case came on for trial in the court below the appellee filed a motion requesting the court "to quash the decision of the Civil Service Commission of the City of Laurel," hereinbefore set out. One of the grounds of which is "that said purported dismissal was unlawful and void and was not made in good faith, and was not made for cause, that no charges have been preferred against him as required by Section 10 of Chapter 208 of the Laws of 1944 which written charges and services upon the defendant were necessary and essential to give the Commission or to give this Court jurisdiction of this hearing."
The court below thereupon after empanelling a jury proceeded to try the case on this motion, which we will assume for the purpose of the argument presented the issue, which Section 10, Chapter 208, Laws 1944, required the court below to try. McLeod v. Civil Service Commission of the City of Jackson, 198 Miss. 721,21 So.2d 916, and 199 Miss. 676, 24 So.2d 319. After hearing the evidence the court on its own motion withdrew the case from the jury "and adjudged . . . Clifford Reddoch be and he is hereby reinstated in and restored to his position as assistant fire chief in the fire department of the City of Laurel, with all of the immunities, rights, privileges, and emoluments and appurtenances thereto, as if all the orders, ordinances, resolutions and minutes of the City of Laurel and the judgment of the Civil Service Commission of said City with respect to the disposal and discharge of the defendant had not been made, adopted and entered."
It will be noted no charge whatever was made against Reddoch. In fact the mayor and commissioners, as shown *Page 266 above, wrote him they would be glad to assist him in getting other employment. No other position was offered Reddoch, the stated reason for not so doing being that he had said that he would not accept any position other than that of assistant fire chief. The good faith of the Civil Service Commission in making the order appealed from is not, and on the evidence could not be, challenged. The evidence presented no question of fact for the decision of the jury and while the action of the court below in withdrawing the case from the jury in the absence of a request by the parties for an instruction so doing, may have been irregular no objection was made thereto in the court below and no harm to either resulted therefrom for the reason that in the last analysis the question for decision was one of law and not of fact.
Under Section 3435, Code 1942, the appellant is authorized to "provide for and maintain a fire department and system, and to regulate the same;" and under Section 3803 thereof, is authorized to "create, fill or to discontinue any and all offices and employments other than those created herein." Chapter 208, Laws 1944, does not withdraw these powers from municipalities, but in this connection determines only what are the rights of a fireman whose position has been abolished.
As appears from what has been hereinbefore said, the appellee, by virtue of his position as assistant fire chief, was ex officio a captain and discharged the duties of that position when necessary. Consequently, when the mayor and commissioners abolished his position as assistant fire chief as they had the right to do, he was not thereby automatically removed from service in the city's fire department but should have been given by them, for aught that appears in this record, the captaincy therein which included the duties of assistant fire chief, but if he did not want that position he could have applied for another in the fire department, his right to which, based on seniority and length of service, to be determined in the first instance by the mayor and commissioners, having *Page 267 regard to the rights of other employees, subject to review by the Civil Service Commission as the statute provides. He did not have to "request employment in another capacity," or in another "department," as the order of the Civil Service Commission wrongfully assumed. He was entitled to employment in the fire department. See Sections 6 and 10, Chapter 208, p. 366, Laws 1944. He had a right to contest his discharge without losing his right to re-employment. It might be added here that Reddoch had over twelve years accumulated retirement benefits, and was eligible for retirement within about seven years, a valuable right and one of importance to him not to lose.
What happened was that the mayor and commissioners wrongfully assumed that the abolition of the appellee's position as assistant fire chief automatically retired him from the fire department and the appellee wrongfully assumed that the mayor and commissioners were without the right to abolish his position as assistant fire chief.
There being no question of fact for submission to the jury the court below after withdrawing the case from it should have entered an order to the effect, first, that the mayor and commissioners had the right and power to abolish the position of assistant fire chief; second, that Reddoch was entitled to the captaincy which included the duties of assistant fire chief, but, third, if he did not desire that place, he could apply for another, his right to which to be determined in the first instance by the mayor and commissioners, giving due consideration to the seniority rights and length of service of Reddoch and the other municipal employees, subject to review by the Civil Service Commission as the statute provides. That order will be entered here.
So ordered. *Page 268