(dissenting).
This case is before us on appeál by Mrs. Lelia Murray Day from an adverse ruling of the Civil Service Commission' for th’e second time. When the case was previously before us we reversed the ruling of the State Civil Service Commission maintaining the Department of Institutions’ exception of no right of action and dismissing Mrs. Day’s appeal to the Commission on the ground that it had not been filed within 30 days, as required by the Rules adopted by the Commission in accordance with Act 18 of 1952, incorporated in the Constitution of 1921 under Article 14 thereof. 228 La. 105, 81 So.2d 826.
According to the findings of fact of the Commission in that case, “On the effective date of the Civil Service Amendment [June 30, 1953], Mrs. Lelia Murray Day was an elected member of the East Baton Rouge Parish Democratic Executive Committee;1 and also an employee, on leave, of the Department of Institutions. On or about August 28,- 1953, while Mrs. Day was still on leave, the Department’s Personnel Officer advised her, by telephone, that she could not legally occupy both positions; The Personnel Officer testified that as a result of this conversation, Mrs. Day verbally resigned from the Department. Mrs. Day testified -that she had advised the Personnel Officer that she had resigned from *783the Parish Committee, and that she had never resigned from the Department.
“On September 1, 1953, the Department officially notified the Civil Service Department that Mrs. Day had resigned, and since that date Mrs. Day has not been on the payroll of the Department of Institutions. Mrs. Day subsequently met with the Director and the Personnel Officer of the Department and protested that she had not resigned from the Department. At this meeting, she was advised that she was no longer on the Department’s payroll. The date of this meeting was fixed by Mrs. Day as September 23, 1953, the other witnesses fixed the date as the latter part of November, 1953. In either event, the evidence is clear that as of the date of this meeting, Mrs. Day knew that she had been removed from the payroll of the Department of Institutions.
“Subsequently, after a conference in January between Mrs. Day, her attorney, the Director and Personnel Officer of the Department of Institutions and members of the staff of the Civil Service Department, Mrs. Day, on February 8, 1954, filed her appeal.”
And under its conclusions of law, based upon Rule 13.2, making it the mandatory duty of the Commission to grant a hearing to a person who alleges he or she has been deprived of his or her rights or otherwise been discriminated against within 30 days of any such action, the Commission, in maintaining the exception of no right of action and dismissing the appeal, reasoned: “Conceding that Mrs. Day did not actually resign; she was deprived of her rights and discriminated against when the Department treated her as having resigned and removed her from the payroll on September 1, 1953. Even if the 30 days within which Mrs. Day could appeal did not commence to run until she was aware of this action, and conceding that she was not aware of it until late November of 1953, nevertheless the 30 days had long since passed when this appeal was filed, on February 8, 1954.”
In reversing this ruling we unequivocally held that under Rule XII of the Civil Service Commission, adopted pursuant to the authority vested in it by the Constitution, "In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action,” pointing out that “The contention of the appointing authority that Mrs. Day orally resigned effective September 1, 1953, and the conclusion reached by the Civil Service Commission that Mrs. Day knew at the latest in November, 1953, that the Department of Institutions had treated her as having resigned and had removed her *785from the payroll as of September 1, 1953, could not stand the test prescribed in the Rules adopted by the Commission itself.” [228 La. 105, 81 So.2d 828.] (Emphasis added.)
From the foregoing it is clear that when this case was “remanded to the Commission for further proceedings according to law and not inconsistent with the views herein expressed,” and on remand was submitted to it on the record as made up, the Commission was bound by this ruling of law. And, applying this law to the facts of the case as found by the Commission, namely, that Mrs. Day on or about August 28 had orally resigned her position effective September 1, 1953, and that the Civil Service Department was formally notified thereof by her employer, the Department of Institutions, it is clear that Mrs. Day was never effectively removed from the payroll, since the fact of the acceptance of her alleged oral resignation and of her removal from the payroll was not “made known by a statement in writing to her and to the Director in advance of such action.” Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343.
In the Boucher case, as pointed out in the original opinion, “this Court held that a person who had acquired permanent civil service status could not be demoted, dismissed or discriminated against by the appointing authority without furnishing the employee and the Director, in advance of such action, a statement in writing giving explicit and detailed reasons therefor, and notifying the employee of his right to appeal to the Louisiana Civil Service Commission; and failure to give such notice rendered the employer’s action illegal.” (Emphasis supplied.)
The Commission’s ruling to the contrary on the remand of the case of necessity was not consistent with this holding; in fact, was in direct violation thereof when it concluded “all of the requirements of the R.ules as considered by the Supreme Court have been met” when “The Director of the Department of State Civil Service received written notice on September 1, 1953, of Mrs. Day’s removal from the payroll by reason of her resignation, and the letter of January 27, 1954, is a statement in writing to Mrs. Day of her removal from the payroll by acceptance of her resignation. * * * The reasons supporting the remand decree of the Supreme Court indicate that such written statement could operate as an effective removal of Mrs. Day from the payroll only from its date, leading to the conclusion that Mrs. Day became effectively removed from the payroll as of January 27, 1954.” The letter of January 27, 1954, 2 cannot by any fiction *787of the imagination be construed to be, ■pursuant to Rule XII, a letter by the appointing authority furnishing Mrs. 'Day and the Director a statement in writing advising the fact of acceptance of her alleged oral resignation and of her removal from the payroll in advance of such action— ■meaning in advance of the effective date of the resignation and of her removal from the payroll.
. Under the particular facts presented there was nothing which the Commission could do on the remand of this case but to rule that Mrs. Day was never legally •removed from the payroll of the Department of Institutions; and, under the holding of the cases of State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827, and State ex rel. Anderson v. Walker, No. 42,-842, 230 La. 816, 89 So.2d 324, she was continued on the payroll of the Department of Institutions in her capacity as Clerk with permanent Civil Service status, and entitled to pay from the date that her leave of absence ended, to continue until legally removed.
*789The Commission, in order to reach the conclusion it did in dismissing Mrs. Day’s claim on the merits, in addition to distorting the law of the case as laid down by this Court when previously before us, found as a fact, without factual basis, “The evidence fails to establish that Mrs. Day ever terminated her leave of absence without pay.” While, under the express provisions of the Constitution creating Civil Service in this State, in reviewing rulings of the Commission we are without authority to review the facts, our jurisdiction being limited to a review of errors of law alone, I do not think it can be gainsaid that we are not bound by an arbitrary and capricious conclusion of the Commission. Such a ruling is not only inimical to the object and purpose of the Civil Service law of this State, but is contrary and repugnant to a fair and legal administration of that law by those entrusted with the power of enforcing its provisions. Of necessity such an abuse is illegal and subject to review.
The testimony of Mrs. Day that she reported to the office of Dr. Grant to go to work is not disputed; the only dispute is as to the date she appeared in that office (see footnotes 4 and 5 of the original hearing). She placed the date of the meeting with Dr. Grant on September 23, 1953, while Dr. Grant and the Director of Personnel, Miss Mclnnis, placed the date at the latter part of November, at which time, according to Dr. Grant, “She wanted to come back * * * and I said, ‘Well, that can’t be done because as a separate job that detail does not any longer exist. It has been taken care of within another job,’ ” and assured her “we would use every influence we could to get her a job in another department doing the same thing she had done for us.” And unless the Commission could find some evidence in the record on which to base a different conclusion (which I have not been able to find), it would appear that the testimony is uncontroverted that her leave of absence without pay was terminated not later than some time during the latter part of November, 1953; but if it can be said I am-wrong about this, it cannot be denied that Mrs. Day’s letter of January 21, 1954, through her attorney, addressed to her employer, requesting that she be returned to her employment with the Department of Institutions, would be controlling.
I cannot therefore agree with the majority opinion that there was no error in the ruling of the Commission that “all the requirements of the Rules as construed by the Supreme Court * * * have been met,” and the Commission’s finding that she “had been effectively removed from the payroll as of January 27, 1954.”
. On this point Mrs. Day testified that she had resigned before the effective date by telephoning the Chairman .of the East Baton Rouge Executive Committee; the testimony of Mr. Doiron, Chairman of that Committee, sought to be introduced to corroborate' her statement, was excluded as being irrelevant on this trial of exceptions. See footnote No. 3 of the original opinion.
. That letter, addressed to Mrs. Day’s attorney by her employer, the Director of the Department of Institutions, stated:
“Your letter of January 21 has just been received suggesting that the best solution to Mrs. Lelia M. Day’s problem *787in your judgment is ‘to return Mrs. Day to her employment with the Department of Institutions.’
“May I say, Dick, I do not believe that I in the circumstances should engage in a discussion of the merits of Mrs. Day’s claims and statements. These, I am confident, will properly be handled by responsible authorities and at that time I shall be happy to present facts not set forth 'in your letter. It is rather unfortunate in my judgment that Mrs. Day has committed herself to certain statements, and I can assure you that we at this end of the line because of our personal regard for Mrs. Day are going to do our best to see that nothing is said or- done that will in the slighest reflect upon her.
“The fact is that Mrs. Day resigned orally from her former position with us in spite of my personal protest and the protest of Mrs. Mclnnis in exactly the same manner she claims to have resigned from the. East Baton Rouge Democratic Executive Committee. For the life of me, Dick, I just can’t understand her position that procedure which she claims is valid in one situation is not equally valid in another. . .
-“After her resignation, and under authority vested by the Constitution in the Director of the Department of Institutions to ‘transfer duties between positions,’ I merged all her former duties witli another already existing position. Since that time her former functions have been handled to my complete satisfaction at no additional expense to the State. This being true I cannot in good conscience recreate a job that no longer exists even though I have the warmest personal relationship to the former employee involved.
“May I add, Dick, just this additional word. So far as I am aware Mrs. Day left here on exceedingly happy terms with everyone in our Department. All seemed to speak well of her and she and I, so far as I was aware, enjoyed a very happy personal relationship. Had she been persona non grata with us,'or had there been any personal reason to dispense with her services, she could easily have been dropped, or her job abolished, prior to July 1953 before Civil Service went into effect. That such was not done should speak eloquently to you of the fact that there is nothing whatever personal involved in our accepting her voluntary resignation from our Department effective . last September 1, 1953.”.