The city of Van Buren put into operation, as to certain employees and officials of the city, the provisions of the Municipal Civil Service Law contained in 9945 to 9964, inclusive, of Pope's Digest of the laws of Arkansas. Among the offices placed under civil service regulations was that of Chief of Police, which was held up until June 19, 1942, by appellee, Rufus Matlock.
On June 1, 1942, the city council of Van Buren filed a petition, as authorized by 9947 of Pope's Digest, with the Civil Service Commission of Van Buren charging appellee with neglect of duty, nonfeasance and malfeasance in office, and asking for his removal. On hearing of these charges the Commission found that they were sustained and made an order demoting appellee from the position of Chief of Police to that of patrolman. Appellee refused to abide by the order of the Commission and appealed to the circuit court.
The circuit court submitted the matter to a jury, over the objection of appellants, on the testimony of witnesses heard in open court, without the testimony taken before the Commission being produced, and on a verdict of the jury favorable to appellee the court entered an order restoring appellee to the office of Chief *Page 1147 of Police. From that order an appeal was prosecuted to this court, and for the error of the lower court in submitting the matter to a jury and not requiring the production of testimony heard before the Civil Service Commission we reversed the judgment of the lower court and remanded the case for a new trial. Civil Service Commission of Van Buren, Arkansas, et al., v. Matlock,205 Ark. 286, 168 S.W.2d 424.
When the cause came on for trial again in circuit court appellee tendered in evidence what he claimed was a transcript of the testimony heard before the Civil Service Commission, but the court refused to consider same and directed that a record of said testimony certified to by the Civil Service Commission be filed. A transcript which was certified by the Civil Service Commission as constituting the substance of the testimony heard by the Commission "to the best of our recollection" was thereafter filed and admitted in evidence. The court also heard additional testimony offered by both sides, and at the conclusion thereof rendered a judgment in favor of appellee, finding that the charges were not sustained and restoring him to his position as Chief of Police. From this judgment the city of Van Buren and the Civil Service Commission have appealed.
In reversing the judgment of the lower court and remanding the case for a new trial we directed that the trial be had upon the record of the proceedings before the Civil Service Commission, including the evidence there adduced and upon any such relevant, competent further evidence that might be offered by either of the parties.
While it would be better practice for the appealing party to file in the circuit court a verbatim record of the testimony before the Commission, the statute providing for the appeal to circuit court (9949 of Pope's Digest) does not require such record, and, in the absence of such requirement, and, in view of the fact that appellants failed to point out any specific deficiencies or misstatements in the record which was finally filed, we are of the opinion that the circuit court did not err in permitting the filing of the transcript which the Civil Service Commission certified as being the substance of the testimony heard before it.
The statute (9949 of Pope's Digest) regulating proceedings of this kind requires the circuit court, on appeal from the action of the Commission, to hear same on the record of the proceedings before the Commission, and also upon such additional relevant and competent testimony as either party may offer. This amounts to a provision for a trial of the matter de novo in the circuit court.
In discussing the rule as to proceedings in court on appeal from the action of administrative bodies this rule is laid down in Am. Jur., Vol. 42, p. 664: "The statute may expressly provide that the court may hear new or additional evidence, and this may be construed as requiring a trial de novo."
The Supreme Court of the United States, considering procedure of the courts on appeals from a statutory administrative body, in the case of U.S. v. Ritchie, 17 *Page 1150 How. 525-541, 15 L. Ed. 236, said: "It is also objected that the law prescribing an appeal to the district court from the decision of the Board of Commissioners is unconstitutional; as this Board, as organized, is not a court under the Constitution, and cannot, therefore, be invested with any of the judicial powers conferred upon the general government. Am. Ins. Co. v. Canter, 1 Pet. 511 [516, 7 L. Ed. 242]; Brenner v. Porter, 8 How. 235,13 L. Ed. 119; U.S. v. Fereira, 13 How. 40, 14 L. Ed. 42. But the answer to the objection is, that the suit in the district court is to be regarded as an original proceeding, the removal of the transcript, papers, and evidence into it from the Board of Commissioners being but a mode of providing for the institution of the suit in that court. The transfer, it is true, is called an appeal; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re-examination of the case as heard and decided by the Board of Commissioners but hears the case de novo, upon the papers and testimony which had been used before the Board, they being made evidence in the district court; and also upon such further evidence as either party may see fit to produce."
Since the statute provided for a trial in the circuit court de novo and did not provide that the findings of fact of the Civil Service Commission should be conclusive or of any force, the whole matter was opened up for consideration by the circuit court, as if a proceeding had been originally brought in that forum.
The record in this case shows that sixteen witnesses testified on behalf of appellants before the Commission and ten witnesses, including appellee, testified before the Commission on behalf of appellee; that on the trial in circuit court nineteen witnesses testified before the court on behalf of appellants and twenty-eight witnesses, including appellee, testified on behalf of appellee. There was a sharp conflict in the testimony. The circuit judge had the opportunity of seeing the witnesses who appeared in circuit court and observing their demeanor on *Page 1151 the witness stand — an opportunity which an appellate court does note enjoy.
From a careful examination of the evidence heard by the Commission and by the court we are unable to say that the finding of the circuit court was against the preponderance of the testimony. The judgment of the lower court is, therefore, affirmed.