This analysis is limited to the single question posed in the opinion of Mr. Justice McDONOUGH, viz.:
"Is the authority of the civil service commission [in cities of the first and second class], on appeal from an order of the head of [the] department, limited to affirmance * * * of such order, or may it as the commission did here, substitute a lesser punishment for the alleged misconduct?" *Page 99
Sec. 15-9-21, R.S.U. 1933, now same section U.C.A. 1943, is quoted at length in the prevailing opinion. It is certain language in that section that gives rise to this discussion. It may be granted that much may be said for the position taken in the prevailing opinion. However, the whole issue turns upon a few words of that section. They are, "Any person discharged may * * * appeal * * * to the civil service commission, which shall fully hear and determine the matter." Put in briefer and a bit more mandatory form, "the civil service commission shall hear anddetermine the matter." Does that statutory language limit the civil service commission to saying, "Order affirmed" or "Order reversed," and no more? If such is the limit of authority given to the commission, why make findings? Why give reasons for saying "Yes" or "No"?
The prevailing opinion concedes the commission has the right and power to fully hear and determine the matter, but limits the judgment to an affirmance or reversal. The power to reverse and reinstate a man in civil service is a complete reversal of the order of discharge. If the commission can affirm the order of discharge, a reasonable construction would seem to authorize the commission to enter a conditional order or a modified order within the limits of the two extremes.
The first part of the section has to do with the power of the head of the department to remove any person in the classified service "for misconduct, incompetency or failure to perform his duties or failure to observe properly the rules of thedepartment." (Italics added.) The rules of the department are made by the head of the department in part, within the law and ordinances; the city commission makes some. In the matter of promotions "The civil service commission shall provide for promotion in the classified service on the basis of ascertained merit, seniority," etc. Sec. 15-9-18, U.C.A. 1943.
Sec. 15-9-14, U.C.A. 1943, provides,
"The civil service commission shall make all necessary rules and regulations to carry out the purposes of this article and for examinations, *Page 100 appointments and promotions. All such rules and regulations shall be printed by the civil service commission for distribution." (Italics added.)
The above section and several others are discussed in detail in the case of Hanchett v. Burbidge, 59 Utah 127, 202 P. 377,379. Nothing is directly said in that case about the problem in the instant case. That case involved a matter of demotion and promotion. There are some statements in the opinion that tend to support the view herein expressed. It is said:
"The civil service act must be read in its entirety and also in connection with cognate statutory provisions. * * *
"Were nothing stated in the statute about removal of subordinates in the police department, it would still follow, from the provisions hereinbefore referred to, that it is the chief of police who is invested with the power of removal."
This of necessity must be the case. Here we are not concerned about the power of appointment or removal, but with the review or hearing upon the matter after the order of removal has been made and appeal has been taken therefrom. Removal is accomplished by the order of the head of the department, subject to the right of appeal. Appointments are, except for heads of the Police and Fire Departments, limited in those departments to selections from the persons certified as to fitness and qualifications after examinations by the civil service commission. A discharge or removal is made by the head of the department. No hearing notice or review of the reasons for the removal are provided for except by appeal to the commission. No record is made by the head of the department for review by the civil service commission. It is not a trial de novo. It is an original investigation. Presumptively, a person removed would be told the reasons for his removal upon some ground of "misconduct, incompetency or failure to perform his duties or failure to observe properly the rules of the department." However, on the appeal from the order of removal the civil service commission makes it own record. It hears the evidence *Page 101 for the purpose of determining the matter. It makes its own findings. If it finds there was some ground for disciplinary action, but that there was not sufficient to warrant removal, it may reinstate the man. If it finds that in the interest of conformity to regulations or otherwise that removal is an unreasonable punishment, then in good conscience either order may amount to a stultification. Is there no intermediate ground?
Referring again to the Hanchett v. Burbidge case, it is uncertain how far the court would have gone had it had the present issue before it. Note the language:
"Unquestionably the civil service commission may entertain complaints from citizens, may investigate the conduct of police officials, may compel the attendance of witnesses, and make findings and conclusions, and then recommend to the head of the department what he should do in the case. But we can find nothing in the law that either expressly or by implication authorizes the civil service commission to order and command the chief of police to comply with the recommendations made by the commission,except when an appeal is taken from the action of the head ofthe department." (Italics added.)
Again the court said:
"Possibly it would have been wiser to have invested the civil service commission with greater power and authority. However, we have nothing to do with what the law ought to be. We must be guided by the law as it is. We cannot by construction liberalize the statute and enlarge its provisions. When language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction."
With this, I think, all will agree. But is the language, the commission "shall fully hear and determine the matter," clear and unambiguous? Had it been so this case would probably not have been here. The solution and reasons given in the prevailing opinion have not convinced me that there are not other cogent reasons for thinking the legislative intent is different from that submitted in the prevailing opinion.
The civil service commission is not an ordinary administrative agency. It is more than a fact-finding body. Hence, *Page 102 the language "fully hear" covers the factual side and "determine the matter" means more than merely finding the facts. There is more involved in the matter than being "discharged." Considerations of what may meet the ends of justice in the very nature of the case are involved. Civil service employment carries with it more than the idea of a fixed term or a hire and fire job, outside of civil service. To limit the commission by the language "fully hear and determine the matter," to saying yes or no to a discharge imports a rigidity of application. It limits the commission to a board of examiners of the qualifications and fitness of persons who may go into the pool from which persons may be selected for employment.
The review of industrial commision cases in this court is limited by the language, "* * * shall enter judgment either affirming or setting aside the award." Sec. 42-1-79, U.C.A. 1943. Had that language been used, the civil service commission would have been limited to "affirming or setting aside" the discharge.
On the other hand a subsequent statute relating to reviews of unemployment compensation cases decided by an authorized representative of the commission may be appealed to the appeal board and may again be appealed to the industrial commission, either by the party aggrieved or by the appeal tribunal or by the commission of its own motion to itself. In that procedure we find the language (Sec. 42-2a-10, U.C.A. 1943):
"And after affording the parties reasonable opportunity for a fair hearing, shall make findings and conclusions and on the basis thereof affirm, modify or reverse such determination."
Had such language been used in the civil service commission act, there would have been no ambiguity.
The language "to fully hear and determine the matter," is not as limited as the language "either affirm or set aside," nor is it as specifically inclusive as "affirm, modify or reverse." However, the question, it seems to me, before the civil service commission is not limited to the "matter" of *Page 103 discharge; but includes the grounds, and reasons for discharge, and the fitness of the penalty. When one is discharged the matter of discipline is no longer involved. True, the head of the department is limited to a fifteen day suspension without pay, as a disciplinary measure under the statute, but does any penalty or disciplinary measure in excess of fifteen days "determine" that a civil service employee falls within one of two classes, viz., total unfitness requiring discharge, or the head of the department was utterly wrong and the employee is a fit and proper person?
Law is not only the product but is also the prop of civilization, and should be so applied as to meet the practical operation of an organized set up for the improvement and benefit of a service. This matter is discussed neither for nor against any of the parties involved therein. In its wisdom has the Legislature given the civil service commission only such power as limited by the prevailing opinion? If not, this discussion opens the matter so that if the law may be improved by granting more power to the civil service commission there are ways and means for bringing about the result.
The prevailing opinion cites and comments upon the case ofHackett v. Morse, 45 Cal. App. 788, 188 P. 308, and points out the differences in the statutory wording; yet the meaning there given to "fully hear and determine the matter" renders the accomplishment of the purposes of the system more workable, practical, and should aid in harmony of action and result in the administration of the department to which it applies.
For the reasons stated I dissent.
PRATT, Justice, on leave of absence. *Page 104