On Rehearing
FOURNET, Chief Justice.Edward F. Hermann, a captain in the Police Department of the City of New Orleani, following an indictment returned against him in the Federal Court, was for that cause suspended on March 19, 1957, and was dismissed on June 21, 1957, by letter of that date stating that his dismissal was specifically predicated on the fact that he had allowed a system of graft to exist while assigned to the Third and Fifth Districts, as revealed by a report of the Police Bureau of Investigation; and on appeal the Civil Service Commission of the City of New Orleans maintained the appeal, (a) rescinded and set aside the suspension but refused to allow back pay during that period, and (b) ordered appellant reinstated to his position with back pay to the date of his discharge with deduction of any amounts which he may have earned in the interim. From that ruling the present appeal is prosecuted by Hermann, and presents for our consideration the sole question whether the Commission, having concluded and found as a fact that the true cause for discharge of appellant was not stated in the letter of dismissal of June 21, 1957— and therefore of necessity the dismissal was in violation of the law obtaining in Louisiana, Article 14, Section 15(N) (1) of the Constitution — and having ruled that the suspension was illegal because based on a mere accusation of crime without independent finding or determination by the appointing authority, was empowered to disallow appellant’s claim for pay during suspension and to order deducted such amounts as the appellant may have earned during his period of illegal separation from the service.
We have consistently said in reviewing these civil service rulings that where the *97facts show that the mandate of the law1 was not followed, the employee’s services were never legally terminated and therefore such employee’s status as a civil service servant was never terminated; hence he was entitled to receive payment of his salary during the period of time. As was aptly observed in State ex rel. Boucher v. Heard, 228 La. 1078, 1085, 84 So.2d 827, 830, “In the absence of a lawful dismissal there is no necessity, in law or in fact, for a reinstatement." And in considering Section 15(0) (3) of Article 14 of the Constitution,2 we have held that it has no application in the case of an illegally dismissed employee but is appropriate where the penalty imposed was excessive or where the cause for dismissal did not justify the penalty, commenting, when the provisions of that section were invoked for the first time, “This particular sub-paragraph becomes applicable and effective only where there has been a legal dismissal followed by a hearing and reinstatement. Upon such reinstatement the Commission may, in the exercise of its discretion, grant or refuse the award of back pay; but the predicate of a lawful dismissal or suspension, followed by a subsequent reinstatement, must exist before the discretionary power vested in the Commission by this sub-paragraph can be exercised.” State ex rel. Boucher v. Heard, supra, 228 La. at page 1085, 84 So.2d at page 830.3 (Emphasis above, and that which follows, is supplied.)
The next time the matter came for our consideration was in State ex rel. Anderson v. Walker, 230 La. 816, 89 So.2d 324, 325, a mandamus proceeding to compel payment of salary from date of the decreed illegal discharge to the date of a purported second discharge; and in rejecting the respondent Administrator’s contention that the second dismissal, approved in the interim by the Civil Service Commission, was retroactive to the date when the first dismissal was attempted, we observed 4 that the contention “completely overlooks the rationale of the Boucher case,” and quoted therefrom: * * * Until there has been a lawful removal for cause, a civil servant is legally entitled to recognition of his permanent status as such, with the corresponding right to enforce the attending emoluments, rights and benefits flowing therefrom.’ ” Quotation from 228 La. at page 1085, 84 So.2d *99at page 830. This was followed by another phase of the Boucher case (the third presented for our consideration),5 and involved an appeal taken by the respondent Administrator from a judgment on the merits in the mandamus proceeding, wherein was again urged a plea of lis pendens based on the contention that relator’s claim for back pay was still pending before the State Civil Service Commission and accordingly he was seeking to recover the amount in two forums at the same time; and in denying that the plea had merit, reference was made to the second Boucher decision, supra, concerning the necessity of a lazvful dismissal or suspension followed by a subsequent reinstatement before the discretionary power vested in the Commission to order back pay by Article 14, Section 15(0) (3) of the Constitution can be exercised, and language was quoted therefrom with the added observation6 that “In other words, we held that the Commission was without jurisdiction to decide any claim, for back pay under the facts of this case.” In a footnote, mention was made of the fact that the Commission itself, as shown by its interlocutory ruling, was of the view that the only question for determination on relator’s appeal then before it was the legality of his discharge. In that opinion we also said: “That the question of back pay was not before the Commission was recognized in State ex rel. Anderson v. Walker, 230 La. 816, 89 So.2d 324, 325.” 7
The case of Bennett v. Louisiana Wild Life and Fisheries Commission, 234 La, 678, 101 So.2d 199, is the Court’s most recent pronouncement concerning Section 15(0) (3); it presented for our determination the correctness of the action of the State Civil Service Commission in refusing to order the defendant agency to pay the salary of the employee Bennett for the period during which he was illegally separated from his position. We again reviewed the jurisprudence and approved the action of the Civil Service Commission with the observation 8 that: “ * * * zvhen the
Commission concluded that his services were never legally terminated, and therefore that he was never lawfully discharged, under the foregoing jurisprudence he became entitled as a matter of course and without an order of the Commission to receive his regular salary until legally sus*101pended or dismissed for cause.” 234 La. at page 685,101 So.2d at page 202.
After further study and consultation, it is the considered opinion of the Court that the instant case is not distinguishable in any relevant particular from those discussed above; and this is therefore not a matter in which the Civil Service Commissions are authorized to use discretion under Section 15(0) (3) of Article 14 of the Constitution, but is governed by the settled jurisprudence that the unlawfully suspended or discharged employee in the classified service is entitled as a matter of course to his salary during the period of unlawful suspension and/or dismissal.
Counsel for respondent New Orleans Police Department, both on original hearing and on rehearing, imply that delaying tactics were used by relator, stating it was at his request that the hearing on his suspension, originally set for April 10, 1957, was twice continued, that meanwhile his dismissal had been ordered and the hearing on both suspension and dismissal was thereafter set and continued a number of times, all at his request, that as a result the hearing was not begun until May 8, 1958, and submit that the situation presented in this case is most appropriate for application of the discretion reposed in the Civil Service Commission under Section 15(0) (3) of Article 14. This argument is totally without merit. Disregarding for the moment the circumstance that the subparagraph is inapplicable under the facts, there is nothing in the Commission’s ruling to show its reason for disallowance of back pay during the period of suspension, and certainly no basis for the assumption that its purpose was to punish the appellant for seeking continuances which the Commission itself in the exercise of its discretion had seen fit to grant.9 That the pendency of criminal charges may well influence the orderly dispatch of other matters was noted in City of New Orleans v. Jackson, 224 La. 771, 70 So.2d 679, in this langauge: “It is suggested that during all of this period defendant might have applied for reinstatement. The suggestion overlooks the fact that during all that time a criminal charge was pending in the Criminal District Court against him and obviously a claim for reinstatement would have been a vain and useless formality. * * * He lost no time after his acquittal in taking steps to be reinstated * * 224 La. at page 782, 70 So.2d at page 683.
*103The question of whether the employing agency could offset the earnings of the illegally discharged employee during the period of his enforced separation from the payroll received an adverse answer in the recent case of Dickson v. Richardson, 236 La. 668, 109 So.2d 51, 53;10 and we there said that not only was such a result indicated by the broad langauge used in earlier civil service matters (with citation of numerous cases) but in more recent decisions under the present law (including those discussed in this opinion) “it has been stated in unmistakable terms that whenever an employee is illegally dismissed he is entitled to receive payment of his salary during the time that he has not been carried on the payroll;” observing further that “Indeed, in State ex rel. Anderson v. Walker, 233 La. 687, 98 So.2d 153, the identical complaint made herein was raised, that is, that the trial court should have set off against the judgment all sums earned by the relator during the time he was off the State payroll. This plea was rejected on the ground that no authority had been cited requiring such a set-off.”
Other benefits sought by relator, i. e., the accumulation of sick leave for the period (March 17, 1957 through July 8, 1958), the accumulation of annual leave for the same period, the one-step salary increase which became effective November 1, 1957, for all employees of the New Orleans Police Department, and the back State pay to which he would be entitled under existing law, are matters which are not properly before us; they were not urged until relator’s “Motion for Appeal to the Supreme Court” was presented to the Commission, and did not receive consideration in the Commission’s ruling. We are not a court of original jurisdiction, and the Constitution specifically provides (Section 15(0) (1) of Article 14), “* * * an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission’s decision becomes final. * * * ”
For the reasons assigned, the ruling of the Civil Service Commission of the City of New Orleans declaring the suspension and dismissal of Edward F. Hermann to have been illegal and maintaining his appeal is amended by deleting the portions (a) disallowing back pay for the period of suspension and (b) decreasing the remaining back pay by any amounts which he may have earned in the interim; and, as thus amended, it is affirmed.
HAMLIN, J., concurs in the decree.. La.Const., Art. 14, Sec. 15 (N) (1) declares that “No person in the State or Classified Service, having acquired permanent Civil Service status, shall be demoted, dismissed, or discriminated against, except for cause, expressed in writing by the appointing authority. * * * ”
. “If any Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and may order full pay for lost time.”
. That opinion, written by Mr. Justice Simon, expressed the unanimous view of the Court, with Mr. Justice McCaleb concurring in the decree.
. Mr. Justice Hamiter was the author of that unanimous opinion.
. State ex rel. Boucher v. Heard, 232 La. 499, 94 So.2d 451, 453.
. Mr. Justice Hawthorne was the author of the Court’s opinion, with a concurring opinion by Mr. Justice McCaleb; Mr. Justice Simon was absent and took no part.
. To the ruling in the third Boucher case Mr. Justice McCaleb, who had concurred in the decree of the two previous Boucherdecisions, appended a short concurring opinion in which he expressed his present doubt as to the correctness of those two decisions but recognized that “they are the law of the case.” 232 La. at page 508, 94 So.2d at page 454.
.The author of the instant opinion was also the writer of the opinion in the Bennett case, which was signed by all members of the Court except Mr. Justice McCaleb,. who dissented.
. The record contains a stipulation between counsel for relator and for respondent that “the appellant was indicted in the United States District Court for the Eastern District of Louisiana, in the case entitled United States v. Edward Hermann, Criminal Docket No, 26,478, and was acquitted by a jury of said indictment or charge on April 3, 1958.” The date of indictment (for income tax evasion), as shown in the letter of suspension addressed to relator, was March 19, 1957.
. The opinion, written by Mr. Justice McOaleb, was unanimous.