(dissenting).
I dissent, for the following reasons:
1. There seems to be no necessity for the main opinion setting forth at length the statute (49-2-5), which is the meat of this case, or to set out what I believe to be *144rather elusive interpretations of its terms. It is obvious to me in reading the opinion that is says the statute can be ignored completely by the City Commission, because the Commission has the final say. If this be true, the statute is of no consequence and is impotent, as are the Appeal Board members. They may as well resign for lack of any authority whatever.
2. Throughout the opinion, which seems to say the statute is valid, albeit impotent, it talks about the employee’s right to appeal. It seems to make some sort of distinction as to whether the appeal is to the Appeal Board or the Commission. Irrespective of such distinction the right of appeal is reserved to the employee only, — no one else. In this case the employee did not appeal to the Commission at all, so that if the main opinion says the statute is valid, the provisions thereof were not complied with for lack of an appellant. Nowhere in the statute is there a provision that the Commission may act sua sponte. This should resolve the matter in this case in favor of the employee.
3. The argument in the opinion to the effect that final decision with respect to hiring and firing is in the Commission and not in the Appeal Board, and that it seems reasonable to believe the legislature meant just that in every case, runs counter to the legislature’s interdiction, (even assuming that the knotty misplaced “nots” judicially could be juggled about at will to arrive at a desired result). The legislature said that (no matter what the interpretation) in one case at least, after a decision of the Appeal Board “the case shall be closed and no further proceedings shall be had.” If this language means nothing to this court, it should be held to be unconstitutional by specific decree, particularly since in upholding the Commission’s decision it must mean, by implication, at least, that such language is an unconstitutional fringe benefit.
4. The main opinion, in upholding the Commission, and in reversing the trial court, does exactly, by way of statutory construction, as did the trial court when it says the statute, read as a vahóle, (as did the trial court) is acceptable. In doing so the main opinion of necessity has to concede that the “nots” were misplaced and must be replaced even though the legislature said otherwise. In short, the main opinion accepts the trial court’s decision, then rejects it, for some other reason. This court, therefore, should recognize, with proper language, the accuracy of the trial court’s decision, but embellish it with a proper statement that the trial court, being right, was nonetheless wrong because he failed to point out where he was wrong with respect to other aspects of the case.
5. In saying the “nots” should be shuffled around to establish legislative intent, the court departs from principles of statutory construction. I take it that the ju*145diciary will not construe a statute unless it is ambiguous or uncertain, or the result of an obvious omission or mistake. There is no such situation here, where the language is clear and unmistakable. If the legislature wants to say “white” and we think it meant to say “pink,” there is no uncertainty, and it is the legislature’s prerogative to say “white.” In this case I can see at least one reason why the legislature may have used the language advisedly, — perhaps to avoid the very problem suggested in the main opinion anent unconstitutionality based on Article VI, Section 29, Utah Constitution wtih respect to delegating powers to a special commission.
6. The main opinion, in approving the statute, indicates that the Appeal Board has some powers to perform municipal functions. If this be true, the statute violates Article VI, Section 29 of the Constitution in every respect except in procedural matters. Under such circumstances, this court should declare the statute unconstitutional, since, if tainted unconstitutionally in the major area, it cannot survive in the minor area.
7. The main opinion, in my opinion, confuses the meaning of this statute to the point where a laboring man or his counsel is on a raft without a rudder, which will float back to this court for aid in cleansing the muddy waters provoked.
8. The employee, under this decision should simply take the position that no matter what I do procedurally, and no matter what the Appeal Board does in my case the Commission has the final say, so I will appeal to the Commission in the first instance and skirt all this Appeal Board stuff, since the latter appears to be window dressing and unauthoritative.
I think the court should point out specifically where and why the Appeal Board is not a special commission, and talk about that phase of the case a little more.
In the meantime there having been no appellant here, Gord should prevail until further clarification in a proper proceeding.