dissenting.
From the majority opinion I respectfully dissent.
In April, 1929, Zarnow, the defendant in error, passed the regular examination given by the Denver civil service commission for the position of patrolman in the police department. His name was duly certified by the commission to Bratton, manager of safety and excise, among those eligible for appointment. He was accordingly appointed as a patrolman on January 1, 1931.
Section 200 in the charter of the City and County of Denver (Denver Municipal Code of 1927, §234) reads as follows: “Every original appointment in the classified service shall be for six months, at the end of which time, if the conduct and capacity of the person appointed have been satisfactory, he shall be permanently appointed; otherwise he shall be out of the service.” Under this charter provision Zarnow’s appointment was for a probationary period of six months. On the day before that period ended he and the civil service commission were notified by the plaintiff in error Milliken, who had succeeded Bratton as manager of safety and excise, that Zarnow would be dropped from the pay roll at midnight of the next day. Zarnow sued out a writ of mandamus in the district court, commanding Milliken to give the former a permanent appointment.
The vital question before us is whether, under the recognized principles of law governing mandamus proceedings, in this jurisdiction, there are a clear legal right *181in Zarnow to receive the permanent appointment and a clear legal duty on Milliken’s part to make it. The record before us discloses both beyond the possibility of a doubt.
1. We need not go beyond the stipulation entered into by counsel in the trial court to obtain conclusive proof that the condition contained in the above charter provision has been complied with. It follows, as a mandatory requirement, that Zarnow “shall be permanently appointed.” The stipulation expressly admits, as matters of fact, that Zarnow “performed all the duties devolving upon him as a patrolman”; that he “received a rating * * * (79.4%) * * * ' being a satisfactory and usual rating and sufficient to establish the conduct and capacity of * * * Zarnow as satisfactory”; that Zarnow introduced certain evidence before the commission on August 15,1931, to show his record for the probationary period; that this evidence showed that his “immediate superior officers had certified” his rating to be 79.4% and that he was “competent, qualified and did possess sufficient conduct and capacity to entitle him to be certified for permanent appointment.” The stipulation further admitted that the commission found Milliken had failed to show in any manner that the conduct and capacity of Zarnow were not or had not been satisfactory, and found the records of the police department and those in the office of the manager of safety and excise showed such conduct and capacity to be satisfactory.
It is literally true that Milliken did not at any time introduce evidence to the contrary.
Under a well-known rule, an appellate court is bound by the findings of the court below. This would be true even if the evidence were conflicting. When, as here, every bit of the evidence supports the findings, it would be amazing to override the latter. For this reason I trust that the majority decision will not become final.
This court has held, times without number, that the discretion vested in a p-ublic officer must be fairly exercised. If the officer acts capriciously or arbitrarily, there *182is an abnse of official discretion. That is the case here. Where snch an abnse is shown, this court hitherto has unhesitatingly condemned it and has swiftly undone whatever was based upon it. This, I think, is in itself sufficient to require affirmance of judgment herein.
2. There is another reason why the judgment of the trial court should be affirmed.
The following is a part of the rules duly adopted by the civil service commission: “(7) The person selected for appointment shall be duly notified by the appointing officer, and upon accepting and reporting for duty shall receive from such officer a certificate of appointment for a probationary period of six months. If any probationer shall upon a fair trial be found incompetent or disqualified for the performance of the duties of the position he is filling, the appointing officer shall certify the same in writing to the commission. Upon the approval of the commission such probationer shall be dropped from the service and the probationer shall be notified in writing that at the end of such probationary period he will not receive permanent appointment; otherwise his retention in the service shall be equivalent to his permanent appointment. ’ ’
In his answer and return to the writ Milliken expressly alleged “that at all times herein mentioned, said charter provision and rule above quoted were in full force and effect. ’ ’
The validity of the rule thus being admitted by Milliken, our task is simply to give it a reasonable interpretation. Its plain language requires approval by the commission before a probationer can be summarily dropped from the pay roll. Such approval was not given. In fact, on August 15, 1931, the commission expressly disapproved. Inasmuch as the case was tried below on the theory that the rule, as well as the charter provision, was in full force and effect, the parties are bound in the appellate court by this theory. 3 C. J. page 718 et seq., §618; Cathedral St. John v. County Treas., 29 Colo. 143, *183148, 68 Pac. 272, 273; Sternberger v. Seaton Co., 45 Colo. 401, 408, 102 Pac. 168, 171; Mounts v. Apt, 51 Colo. 491, 497, 119 Pac. 150, 152; Howard v. Fisher, 86 Colo. 493, 516, 283 Pac. 1042, 1051.
In spite of these authorities, the majority opinion gratuitously disregards the trial court theory of the parties and undertakes to pass upon the validity of the rule. But it seems unfair to the trial court, as well as to the defendant in error, for this court to substitute a theory of its own, different from that by which the parties themselves are bound.
3. Zarnow also sets up that part of the .commission’s rules dealing with removal or discharge from the classified service (subdivisions 1 to 10, rule XI), and complains that Milliken did not proceed thereunder. The majority opinion is largely devoted to a discussion of these provisions. They are not involved in this case. It is immaterial whether a probationer is or is not technically in the classified service during his six-month probationary period, and so entitled to specifications and trial. The fact that the parties agree as to the validity of the provision above quoted from rule VI, and the further fact that this should dispose of the case adversely to Milliken, as already shown, make it unnecessary to consider rule XI at all.
4. The cases of Sowers v. Pitcher, 63 Colo. 139, 165 Pac. 253, and Nisbet v. Frincke, 66 Colo. 1, 179 Pac. 867, cited in the majority opinion, are not in point. The facts in those cases, not fully stated in the opinions, were radically different from the facts here. See, respectively, Supreme Court Library Abstracts and Briefs, vol. 644, Case 8828, abstract folios 10 to 33, inclusive; Id., vol. 703, Case 9208, abstract folios 6 to 25, inclusive. The passage quoted from the latter in the majority opinion here is a mere dictum and inapplicable to the facts of the case at bar.
5. The majority opinion seems to accept as fact a statement of Milliken’s counsel in the brief to the effect *184that the procedure here followed is in accord with the uniform procedure previously used by the appointing officers in Denver. No one will contend, I am sure, that such an alleged fact, not appearing in the record, can properly be considered for or against a party. More than that, however, counsel was in error. The very cases decided by our court in this field show the contrary to be true.
The foregoing are my reasons for believing that the judgment in this case ought to be affirmed.