On Motion for Rehearing.
Appellee city of Dallas challenges our conclusions that appellants were illegally discharged and entitled to a hearing before a trial board; and further insists, for the first time, in its motion for rehearing, that appellants did not meet the charter requirements, by filing notice of appeal within the time prescribed, and asks for a further finding of facts on questions raised in its motion.
Further reviewing the record, we find that appellants were discharged by the chief of police, and the city council, on advice of its legal department, refused to accord them an appeal to the trial board. The action of the chief of police is based on the deficiency rat*179ing found by the civil service board, and that of the city council on the assumption that the officers were discharged by said board, in pursuance of section 124 of the charter; and that the charter vests the final authority in such cases in the board, without an appeal.
On April 27, 1933, appellants were accorded a hearing before the civil service board, on efficiency reports, under the provisions of section 124 of the charter. However, the board’s action on such hearing is not disclosed in the record. Under that section, the board is delegated the authority to determine the removal, suspension, or reduction in grade of officers and employees included in the classified civil service, subject, as we conceive their rights to be from other provisions of the charter, to an appeal to a trial board. Thus, in the absence of proof, we are of the opinion that it cannot be assumed that the board’s action was adverse to appellants.
On May 4, 1933, the secretary of the civil service board, in a letter addressed to the city manager, stated that the board had found appellants’ efficiency grades below the standard, and that it had determined their removal from the service; however, the secretary’s letter, as we view the record, finds no support in the minutes of the board, and is not required by the charter. If the board did so’ find and decree (which we are unable to conclude as a fact), then appellants were not advised of its conclusion, and we fail to see how the secretary’s letter could be deemed to reflect the action of the civil service board, or to be the basis of either actual or constructive notice to appellants. We believe that it was the intention of the framers of the charter, founded upon principle of right and justice, to accord discharged officers and employees with notice of the action of such board, and the grounds on which the judgment is based in discharging them.
On May 13, 1933, in the letter addressed to appellants, copied in heec verba in our original opinion, the chief of police gave appellants notice of their discharge, stating that their “separation from the service becomes effective immediately,” basing his action on recited deficiency reports made to the civil service board. This is the only evidence as to the source of, and ground for, the discharge of appellants, and evidently is the basis for the city council’s refusal to pay their salaries for the unexpired terms of their offices.
On the contention that appellants have not perfected an appeal, within the terms of the charter, in that they did not file notice of appeal with the trial board, within ten days after being notified of their discharge, it must be observed from the statement of facts that appellees agreed that appellants did file the notice, the date of such filing not being disclosed; and that, on May 27,1933, the city attorney addressed a letter to members of the city council, in which he recited the filing of such notice. Thus, we.conclude that the governing authorities received the notice, reverted same to its legal department, that an investigation was made and concluded on May 27, 1933. These evidentiary circumstances lead, we think, to the conclusion that the notice was filed within the time provided by the charter; or, at least, in the absence of proof to the contrary, the presumption may be indulged in favor of the timely filing of such notice. This presumption is accentuated by appellants’ petition reciting May 17, 1933, as the filing date, and appellees’ failure to raise the issue, by pleadings or evidence.
We further find that the charter makes no specific provisions as to whom the notice of hearing and appeal shall be made. The trial board is -not a standing functionary; its creation is affected by the city council, appointed from its membership, and the chairman, or vice chairman, of the civil service board (section 122) only, as a contingency arises; thus, in. our opinion, the filing of the petition and the demands for tidal called for the action of the city council to appoint the trial court. Thus, we think the filing, of the petition with the city council perfected the appeal.
The right of the chief of police to suspend or discharge a subordinate is predicated only oh charges of “incompetency, neglect of duty, immorality, drunkenness, or failure' to obey orders given by the proper authority.” Section 71. It must be observed that none of these charges are assigned as grounds for appellants’ discharge. The chief of police effected their discharge, as we conceive, on the ground that appellants had fallen below the standard of service, fixed by the rules and regulations of the civil service board. In our opinion, the city charter provisions do not delegate such authority to the chief of police ; such is only cognizable by the civil service board. Thus, we have here the chief of police, in discharging appellants for deficiency ratings, assuming the provisional authority delegated only to the civil service board.
In recognition of their charter rights, appellants protested such discharge, demanded *180specification of charges and a public bearing before a trial board. A written demand that these rights be accorded them was presented to the city council, city manager, and chief of police, the only authorities delegated by charter provisions to deal with their situation. These rights were denied to appellants, thus depriving them of a fixed tenure and emoluments of office, without the purview of the charter provisions.
The importance of the litigation as to the rights of the city to give effect to efficiency of public service and the responding duties of city policemen and their rights to hold office and receive the emoluments agreeably to the organic law of the city has led us to again review the record and the able briefs of the parties. However, we fail to see any reason for reversing our conclusions heretofore reached, feeling that appellants have not been accorded rights guaranteed to them, and that they have been illegally deprived of their offices, to their hurt and damage.
• Appellees’ motion is overruled.