I am in accord with the view expressed by Judge Beals to the effect that, when the chief of police filed with the civil service commission a statement in writing charging the appellant with conduct unbecoming *Page 623 an officer, that act accomplished an immediate and effective "removal" of appellant from office, within the express language and intent of section 8 of city ordinance No. 3613, quoted in the majority opinion. I am also of the view that appellant's remedy was, as prescribed by that same section of the ordinance, by way of a demand for an "investigation" by the civil service commission, which, in my opinion, would necessarily involve a review by that body of the order of dismissal previously made by the chief of police and a consideration by it of all the facts relevant to such investigation.
It will be observed that the ordinance not only expressly permits "removal" of an officer or employee by the appointing officer, but also implies such authority by providing for "reinstatement" of an officer or employee so removed if the "removal is not sustained thereby."
However, I am in accord with the majority opinion in holding that in the proceedings before the civil service commission the party charged must be given a full opportunity to be heard and be accorded (1) the right to know seasonably the charges or claims preferred against him; (2) the right to meet the charges with witnesses and evidence; and (3) the right to have the aid of counsel. In this instance, the appellant has not, in my opinion, been accorded that opportunity or those rights; the investigation or hearing by the civil service commission, to whatever extent it may have gone, was wholly ex parte, in the absence of the appellant and without his knowledge as to the time, place, or scope of the proceeding.
It is true, as pointed out in both the majority opinion and in Judge Beal's dissent, that appellant mistook, or was un-uncertain as to, his remedy. But that mistake or uncertainty has considerable justification, I think, when, as appears in the foregoing opinions, the members of this court themselves entertain such divergent views as to the proper method of procedure. The fact remains, however, that appellant did not sit idly by allowing his "removal" and the effect thereof to go unchallenged, but, under the guidance *Page 624 of his counsel, took such timely steps as he thought were proper to obtain relief.
My conclusion is that, while the judgment of the trial court should be affirmed, it should be expressly understood that it is without prejudice to the right of the appellant to obtain from the civil service commission a full investigation of the matter, and that in such investigation the appellant shall have the right to know the specific charges against him, the right to meet the charges with witnesses and evidence, and the right to have the aid of counsel.
June 22, 1944. Petition for rehearing denied.