(dissenting).
In this proceeding for mandamus, appellant seeks an order of restoration to his *319former position as city fireman from which he had been indefinitely suspended by Fire Chief Cooper.
The writ of mandamus is extraordinary and drastic in character and the courts exercise great caution in its award. It is therefore essential that the right sought to be enforced be clear and certain, so as not to admit of any reasonable controversy. “The writ does not issue in cases where the right in question is doubtful or not complete, but merely inchoate, or is a qualified one, or where it stands on a fact issue to be determined upon by the respondent, or where there is a substantial defect in the proof of the relator’s right.” 34 Am.Jur. sec. 55, pp. 847, 848; 28 Tex.Jur. secs. 11, 12, pp. 533, 534; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484; Lewis v. Harris, Tex.Civ.App., 48 S.W.2d 730.
Bearing in mind above fundamental principles, let us see if the undisputed facts; herein furnish any adequate basis for the grant of mandamus by an appellate court. On August 25, 1948, Chief Cooper of the Sherman Fire Department, filed with the Civil Service Commission (Firemen and Police) and delivered to appellant the following letter: “Mr. Jimmie Otway Arnold, Sherman, Texas. In accordance with Rule 19, Section 110, of the Civil Service Rules and Regulations or Laws of March 29, 1948, you are charged with the following offenses considered to be against the interest of the Service. Therefore, it is necessary that your Indefinite Suspension be considered by the Civil Service Commission to promote the efficiency of the Service. Charge No. 1. Insubordination. Charge No. 2. Assault and Battery. On August 25, 1948, on or about 11:00 A. M. on the main floor, in the southwest corner of the building and on the front sidewalk of the Central Fire Station, Travis and Cherry Streets, Sherman, Texas; Jimmie Otway Arnold did verbally and physically attack me while I was on my official duty as Fire Chief causing bodily injury, humiliation and bringing discredit upon the Service. In accordance with Rule 19, Section 112, of the Civil Service Rules and Regulations or Laws of March 29, 1948, you are hereby notified that you have ten days after receipt of this letter, within which to appeal to the Commission.”
Answering on August 28, Arnold filed written denial of above charges with the Commission, then presenting to and urging before this Board a motion worded as follows: “Now comes Jimmie Otway Arnold and moves the Board to dismiss the charges herein preferred against him and reinstate him in the Sherman Fire Department for the following reasons: (1) That Section 16 of Article 1269m of the Revised Civil Statutes of Texas provides ‘The written statement above provided to be filed by the department with the Commission shall not only point out the Civil Service Rule alleged to have been violated by the suspended employee * * * ’, and in this connection the defendant shows that the written statement does not point out the Civil Service rules the defendant is accused of violating, and for this reason this Board does not have jurisdiction to take any other action except to dismiss the charges and reinstate the defendant in the Sherman Fire Department. (2) That Section 23 of Article 1269m of the Revised Civil Statutes of Texas requires the Civil Service Commission to publish all rules and regulations which may be promulgated by it, and in this connection, the defendant shows to the Board that the Civil Service Commission has not legally adopted rules and regulations, and if such rules and regulations have been adopted that same have not been published as required by the above law, therefore this Board is without jurisdiction to hear this matter and the only action it can take in the premises is to dismiss said charges and reinstate the defendant in the Sherman Fire Department. (3) That the offenses charged against this defendant are not grounds for discharge under section 5 of Article 1269m of the Revised Civil Statutes of Texas, and the Chief of the Sherman Fire Department was not authorized to discharge the defendant for the alleged acts because such action is not authorized by said Article, and this Board has no jurisdiction in this matter except to order a reinstatement of the defendant in the Sherman Fire Department. Wherefore, the defendant prays that this matter be dismissed and *320that he be reinstated in the Sherman Fire Department.” ■
The only hearing before said Civil Service Board was upon consideration of above motion; and after argument by counsel for both appellant and City, the following notation was made thereon: “Filed Sept. 17, 1948. Sustained by Civil Service Commission, J. D. Buster, Ch.” The majority apparently interprets the word “sustained” as used by the Commission to mean not only a dismissal of the charges but also a reinstatement of appellant in the Fire Department, simply because the relief prayed for includes both a dismissal of proceedings and restoration to office. But plainly the motion in question is one to the jurisdiction, alleging, as it does, a want of power on part of the Commission to entertain these charges, in that said Body had no legally adopted rules and regulations under which a suspended fireman could be tried. To this the Commission agreed, at the insistence of appellant, but it is too plain for argument that such tribunal was wholly without power to go further or to take any action on the motion except to dismiss; the result being, not an order of reinstatement, but a final judgment of suspension. Doan v. Star Hardware & Furniture Co., Tex.Civ.App., 296 S.W. 639. On sustaining a motion to dismiss for want of jurisdiction, the order appealed from remains undisturbed and outstanding. International Ass’n of Machinists etc. v. Federated Ass’n etc., 133 Tex. 624, 130 S.W.2d 282. It is thus seen, that the record of appellant’s own making' conclusively refutes the existence of any clear and undoubted right, remediable by mandamus.
Perhaps no more should be said, but in several particulars, this record, as interpreted by the majority, needs clarification. In the first place, pursuant to Art. 1269m, V.A.S., the Commission had formulated the rules and regulations contemplated by statute; and it is to these regulations that Chief Cooper refers, and which he invoked, by the statement in his letter to Arnold that “in accordance with Rule 19, sec. 110 of the. Civil- Service Rules and Regulations or Laws of March 29, 1.048, you are charged,” etc. At that moment these rules appear not to have been formally published as required by sec. 23, Art. 1269m. The majority assumes, from this omission to publish, the absence of any procedure by which appellant can be tried, thereby concluding that “the Commission was without jurisdiction other than to sustain plaintiff’s motion to dismiss the charges and reinstate plaintiff in the position from which he had been illegally suspended.” (Emphasis mine.) Obviously the part of such holding just emphasized is a. non sequitur, as has already been demonstrated; and, aside from this, it penalizes the City of Sherman by disposing of its charges of insubordination without the trial expressly guaranteed by sec. 16 of the same Law. Equity will not suffer a right to be without a remedy, the maxim being always applicable to those who have not had their day in court. Goodman v. Board of Drainage Commissioners, 229 Ky. 189, 16 S.W.2d 1036; and this plaintiff was either amenable to the provisions of Art. 1269m. concerning his good behavior as municipal fireman or to the pre-existing law of Sherman, a home rule city, where like suspensions were authorized, subject to approval of the City Council.
But we are faced with no such dilemma here. Adoption by the Sherman city electorate of Art. 1269m made its provisions the sole method of redress for the charges leveled against appellant, a municipal employee; and so far as he was concerned, the rules in question were sufficiently published in the communication from Chief Cooper, referring, as he did, to Rule 19, sec. 110 of the Sherman “Civil Service Rules and Regulations * * * of March 29, 1948.” The word “publish” is defined, 35 Words and Phrases, Perm: Ed., page 445, as “to make public; to make known to people in-general; to make public in a newspaper, book, circular, or the like.” Justice must not be sacrificed upon the sharp edge of technicality; and if the law required further satisfaction by way of publication of these rules, same could have been promptly complied with by a public posting; whereupon it became the Commission’s bound.en duty to overrule appellant’s motion to dismiss for want of jurisdiction and proceed to its statutory inquiry, sec. 12, relative to *321■“the truth or falsity of the specific charges filed * * * the sufficiency of said charges, and as to what punishment, if any, should be administered.”
However, in the situation at hand, we are not required to rely on the assumptions just made. The rules governing these charges of assault and insubordination had already been promulgated and published; appearing in Art. 1269m as sec. 16 (procedure of trials) and sec. 5 (generally defining the elements of employee misbehavior), which latter section the Supreme Court has denominated a “pattern” of offenses on which the Commission may act. See Fire Department of City of Fort Worth v. City of Fort Worth, Tex.Sup., 217 S.W.2d 664. By their wording, both sections .(5 and 16) are seen to be self-executing; the charges made by Chief Cooper comprehending at least two of the sets of facts constituting misbehavior under section 5, viz.: “Discourtesy by said employee to the public or to fellow employees while said employee is in line of duty”; or “whose conduct was prejudicial to good order.”
Manifestly, therefore, the majority erred in concluding that the charges of misconduct attributable to appellant did not come “within the purview of the statute”; and their further conclusion that there was “no evidence in the record of any violation of Civil Service Rules” is explained by the fact that the Commission heard no evidence of the truth or falsity of the charges made; in other words, conducted no actual trial. The majority quotes from sec. 16 that “No employee shall be suspended or dismissed by the Commission except * * * upon a finding by the Commission of the truth of the specific charges against such employees.” Conversely, no claim of misbehavior within purview of any Civil Service Rule (of which subd. 5, Art. 1269m, is the pattern) should be overruled except upon a finding by the Commission of the falsity of said charges made against the particular employee.
However, recurring to the instant record, appellant, having signally failed to discharge the burden resting upon him in a proceeding for mandamus tp demonstrate by both allegations and proof a clear and undoubted right to the relief sought and to which no defense exists, King v. Guerra, Tex.Civ.App., 1 S.W.2d 373, writ ref., the trial.court’s judgment in refusing the writ was eminently correct and should be affirmed.