I conclude that the opinion of Mr. Justice LARSON and the dissenting opinion of Judge HOYT divide on narrow grounds. Both appear to agree on the proposition that the scope of the inquiry of the Civil Service Commission is to determine whether the City Commission removed Thompson for cause or for reasons other than cause, with "cause" defined as some act or conduct which is not outside the swing within which reasonable minds might conclude that he was unfitted for the job of fire chief or more comprehensively as defined by the main opinion as "legal cause." Judge HOYT thinks that a demand resignation which was complied with plus amended minutes showing what caused his resignation to be requested, furnish the Civil Service Commission with a reasonable basis for concluding that he was removed for cause; that the court, a judicial tribunal, being limited to the matter of determining whether there *Page 179 was substantial evidence from which the fact-finders could conclude as they did, could conclude that the demand resignation plus the reasons set out in the minutes was substantial evidence from which the Civil Service Commission could find as it did. I have decidedly no quarrel with the principle that unless the fact-finders acted without reasonable basis for their conclusion, that is, arbitrarily or without substantial evidence, their findings should be upheld. Judge HOYT thinks a compliance with a demanded resignation is tantamount to a waiver of hearing. I am doubtful as to this. I think it is equally consistent with a desire of the Commission to avoid the distaste of a discharge as with a removal for cause with a resignation as a shield. The City Commission has the responsibility of determining whether it wants to relieve a fire chief of his position, discharge him for cause or accept his resignation as well as the responsibility of determining whether his conduct as chief is such as should bar him from reverting to the force. If it accepts his resignation to shield him from disgrace or ignominy the resignation should waive all right to revert to the force. In this case, it failed to include such waiver but the City Commission actually permitted, in fact, the Mayor directed Thompson to take his old job on the force. Thompson's testimony in this regard was uncontradicted. He stated that:
"The Mayor said he would have to ask for my resignation as Chief, and I handed it to him. And he says, `I don't want —' he says `You are too valuable a man to lose in the department.' and he told me to go back over and go to work on the lights."
Certainly such action is not consistent with a discharge for cause which by law would have prevented him from reverting to the force. The Civil Service Commission failed to take this into account. It is confined in its inquiry to the action of the City Commission and the basis for it. Certainly where a resigned fire chief is directed to take his old position with the force it is, if not contradicted by such other *Page 180 evidence that would undoubtedly constitute cause, evidence that he was not removed by the City Commission for cause. The fact that it assigned a reason which may be the basis of a simple discharge or a requested resignation rather than something which it considered so grave as to show such unfitness for the position of chief as not even to countenance his continuing on the force, cannot in the face of the evidence that he was permitted to assume his old job on the force be construed as cause. By the same reasoning a requested or demand resignation complied with cannot be considered tantamount to an admission by the deposed chief that his removal was for cause and that he waived notice and a hearing.
As before stated, a desire to avoid a removal for reasons other than cause may prompt a request for resignation and because it is complied with does not mean that the subject has admitted that his resignation is asked on account of cause and that he waives a hearing. He might be quite surprised if such construction were later placed on his actions. If he had been so apprised he might have demanded a hearing, insisted on cause being shown and if dissatisfied with the decision of the City Commission resorted to the courts to set it aside on the ground that it was arbitrary. After he accepts a position on the force and then is discharged from that position, the appeal is to the Civil Service Commission from that action and not from the action of the City Commission removing him from his position as fire chief. If only at that time he discovers that the minutes of the City Commission have been amended and on the basis of the reasons contained in the amended minutes the Civil Service Commission has construed the City's action as a discharge for cause he is at a disadvantage. He may have lost his right to directly challenge the action of the City Commission. His only right then is to challenge the findings of the Civil Service Commission on the ground that it has not properly construed the action of the City Commission *Page 181 or the basis therefor. This is quite a different right than that of challenging the action of the City Commission.