(concurring specially).
I would affirm the order of the trial court reversing the decision of the department of labor and management relations solely on the basis of the trial court’s findings on review pursuant to SDCL 1-26-36.
As stated in the order of the trial court, in the nature of a finding,
“(1) The decision of the Director of Labor and Management Relations is unsupported by substantial evidence on the whole of the record;
(2) The decision of the Director of Labor and Management Relations was based upon actions of the grievant which did not follow established and lawful procedure in taking leave of absence without first securing permission and therefore his discharge was justified;
(3) The decision of the Director of Labor and Management Relations was based upon actions of the grievant which did not conform to established and lawful procedures with respect to prosecution of grievances and therefore the Division of Labor and Management Relations has no jurisdiction to hear and determine the matter.”
I am satisfied that the trial court properly applied the standard of review set forth in subdivision (5) of SDCL 1-26-36 as construed by this court in Application of Ed Phillips & Sons Co., 1972, 86 S.D. 326, 195 N.W.2d 400, on the matter of appellants having taken leave without authorization. Contrary to the department's finding, the record is devoid of evidence that applications for leave without pay were not regularly submitted and necessarily formally approved by the appropriate authority as contrasted to the prevailing practice concerning taking of leave with pay, for a few days time, which was merely approved by the immediate superintending authority.
As to the authority for the commissioner to award back pay based upon a claim of oral contract, it would appear that for several months and up until the time of his discharge the appellant accepted warrants *368of the city. The department’s conclusion of law numbered 3, to wit: “That when the grievant found that he was not receiving the proper wage he made his grievance through the proper ‘chain of command,’ ” is totally unsupported by the record.
I do not agree that SDCL 3-18-1.1 or 3-18-15.2 are patently offensive to § 26 of Art. Ill of the South Dakota Constitution or that those statutes, properly applied, are contrary to SDCL 9-14-13, 9-23-1, 9-24-1 or 9-14-28. If we are to determine these issues, it should only be done when the issues are raised in the initial stages of the proceedings, which was not done here.
The respondent city recognized the applicability of SDCL 3-18-1.1 and 3-18-15.1 to 3-18-15.4 by enacting on June 18, 1973, Article XVIII of their personnel manual entitled “Grievances” as required by SDCL 3-18-15.1. By adopting its own grievance procedure the city avoided the procedure that otherwise would be imposed upon it by the department. SDCL 3-18-15.3. Section 18.01 of the city’s rules states:
“GRIEVANCES:
18.01 Right of Employees. Employees shall have the right to present grievances, individually, as a group, or through their designated representatives. In so doing, employees shall be assured of freedom from restrain [sic], interference, discrimination and reprisal. Such grievances shall be presently only through the established lines of authority. Section 3-18-1.2 [sic] & 3-18-15.2 SDCL as amended.”
The remaining provisions of Article XVIII set forth procedures to be followed in presenting grievances, which were not complied with by appellant. The trial court properly found that the appellant herein did not exhaust his administrative remedies by adhering to the grievance procedures adopted by the city under the mandate of the law and that, therefore, the department of labor and management relations was without jurisdiction.
We need not go beyond the statutes and the personnel rules of the city to resolve this case, and I would affirm the trial court on the basis of its holding.
I am authorized to state that Justice WOLLMAN joins in this special concurrence.