I dissent. I think the opinion takes an unrealistic view of the facts. The civil service rules provide that when a *Page 182 chief of the department is relieved for reasons other than for cause he shall be returned to the position previously held by him in the civil service. In case of the removal of the chief it obviously becomes necessary to determine whether he was relieved for reasons other than for cause. In this case the plaintiff was notified by the new chief of the fire department that his employment in the department would terminate January 31, 1941, because he had theretofore been removed by the city commission from his office as head of the department for cause. It is said that this order was prompted by the civil service commission and shows a pre-judging of plaintiff's case without a hearing. That however is not determinative of the case here. The plaintiff appealed from this order, or notification, and asked for a hearing before the civil service commission. The statute, Sec. 15-9-21, R.S.U. 1933, provides that:
"Any person discharged may within five days from the issuing by the head of the department of the order discharging him appeal therefrom to the civil service commission, which shall fullyhear and determine the matter. * * * The finding and decision of the civil service commission upon such hearing * * * shall be final." (Italics added.)
I think that, both by virtue of this statute and the civil service rule above quoted, it was the right and the duty of the civil service commission to inquire into and determine whether the plaintiff was relieved of his position by the city commission for cause. Pursuant to plaintiff's request he was granted a hearing at which he was present and represented by counsel. The majority of the civil service commission decided that plaintiff had been relieved of his position as chief by the city commission for cause, and that he was therefore not entitled to be reinstated, in his former civil service position. In support of that finding it is shown by the findings of the trial court that the minutes of the city commission as amended recite:
"Mayor Anderson stated that, he had been advised that Chief Scott Thompson, while in the chief's car had driven the same on the wrong *Page 183 side of the road and into a truck on the night of November 29, 1940, and that he had been drinking. That due to his conduct he should be removed and that his resignation had been demanded for that reason. Whereupon the Mayor submitted the resignation of Scott Thompson, chief of the Provo City Fire Department." (J.R. 101)
The right of a city commission to amend its minutes is well established. Everett et al. v. Deal, 148 Ind. 90,47 N.E. 219; Ryder's Estate v. City of Alton, 174 Ill. 94,51 N.E. 821; Mayhew v. Gay Head Dist., 13 Allen 129, Becker v.Henderson, 100 Ky. 450, 38 S.W. 857. The minutes as amended constitute competent evidence as to the proceedings of the city commission. R.S.U. 1933, 15-6-44. They obviously show that the action of the mayor in demanding the resignation of plaintiff was prompted by alleged misconduct on the part of plaintiff which the mayor considered sufficient cause for removal. The action of the city commission in acting upon the mayor's recommendation — accepting a resignation which had been given because of the mayor's demand — was obviously an approval of the mayor's action. I think these proceedings show that the plaintiff was relieved of his position for cause and not "for reasons other than for cause." I cannot agree that there can never be a removal for cause without charges, notice and a hearing — if by that is meant formal charges, formal notice, and a formal hearing. I think where a resignation is demanded and the officer is informed that the demand is made because of specified culpable misconduct, if he tenders his resignation without refuting the charges or requesting an opportunity to refute them, he may be considered to have waived formal notice, formal charges and formal hearing. A removal under such circumstances ought not to be considered a removal "for reasons other than for cause." If his civil service rating is affected by the action taken by the city commission the officer should, if he requests it, be afforded an opportunity to refute the charges before the civil service commission. In the present instance plaintiff requested a hearing and it was granted. The majority of the civil *Page 184 service commission found that he had been relieved of his position as chief for cause. The minutes of the city commission as amended support such a finding. The trial court seems to have based its decision chiefly upon the conclusion that the civil service commission had no jurisdiction to inquire into or make a determination upon that question. I think that was error. I also think that since the finding of the commission is supported by competent evidence, it should not be interfered with by writ of mandate. Much is said in the findings and in the opinion by Mr. Justice LARSON about reception of irrelevant and incompetent evidence and other irregularities which are not jurisdictional. The issue in the case here is whether the final action taken by the civil service commission — the action of which plaintiff complains — was without jurisdiction or was so defective in procedure as to violate the requirements of due process. There is no allegation or finding that the acts or rulings of the civil service commissioners were prompted by malice or corrupt motives. The claim is that they misconceived their duties and functions. They may have done so in at first pre-judging plaintiff's status without a hearing. But the final action of the commission was taken after notice and hearing and the ruling is sustained by competent evidence, viz., the minutes of the proceedings of the city commission, which in my opinion clearly indicate that plaintiff was relieved of his position as head of the department for cause.
It is stated that the plaintiff was told to go back to the position he held in the fire department before becoming chief. It seems to me that the record before us does not support that statement. But if it is shown that the mayor or city commission told plaintiff to go back to his former position in the fire department, I think that would not reinstate him in his former civil service rating. I think the city commission could not relieve a chief of the department for misconduct and then require his reinstatement in his former civil service rating. The civil service rule governs as to that, *Page 185 and it provides that he is not subject to reinstatement if relieved of his position as chief for cause. Neither the original minutes nor the amended minutes contain any recital that the city commission or mayor directed the plaintiff to go back to his former place as fireman in the department. It is said in the opinion that on the question of whether or not the removal was or was not for cause the record of the city commission is final. If such is the case can we say that the record shows the removal to have been for reasons personal to the commissioners and not for cause? Is the position of chief of a city fire department such an office that we can say as a matter of law that being drunk or driving the chief's car on the wrong side of the road and into a truck are such trifling occurrences that they cannot constitute legal cause for removal? If so I am uninformed as to the precedents establishing such a rule. It is true that an officer charged with misconduct should have notice and an opportunity to refute charges before being removed from office for cause. But if he is notified of the nature of the charges, as it appears plaintiff was in this case, and he then makes no denial, but tenders his resignation, I think it should be considered a waiver of a hearing and that a civil service commission, charged with the duty of deciding whether the removal was or was not for cause, is justified in saying that it was for cause.
"If an official * * * can, when his derelictions are discovered, resign, and be at once reinstated in his former position, and thus escape the effects of a violation of positive law, then the statute giving the right of removal might as well be repealed." Skeen v. Paine, 32 Utah 295, 296, 299,90 P. 440, 442.
PRATT, Justice, on leave of absence. *Page 186