Opinion
No. 40089.
March 26, 1956.
1. Municipalities — Civil Service Commission — statutory review procedure exclusive.
Where policeman, who was fired for allegedly taking money from parking meter did not, within ten days, file with Board of Civil Service Commission written demand for statutory investigation and hearing, he could not obtain review of legality of removal by bill in chancery, since such statutory review procedure is exclusive. Secs. 3824-40, 3825-30 to 3825-40, Code 1942.
2. Municipalities — same — bill seeking review of removal of policeman from city employment — demurrable.
Though demurrer to policeman's bill seeking review of removal from city employment admitted that he had not been given written accusation of the reasons for his removal, bill was nonetheless demurrable; and such alleged fact would have been one for consideration of Civil Service Commission Board upon review of removal by exclusive statutory procedure. Secs. 3824-40, 3825-30 to 3825-45, 3825-40, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Warren County; S.B. THOMAS, Chancellor.
Prewitt Bullard, Vicksburg, for appellant.
I. Bill for injunction is properly a matter of equity jurisdiction where legal rights of a person are continually being denied by another. Chambers v. Davis, 128 Miss. 613, 91 So. 346; City of Hattiesburg v. Harris, 188 Miss. 806, 196 So. 647; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286; Hobbs v. Germany, 94 Miss. 469, 49 So. 515; Laurel v. Turner, 96 Miss. 631, 51 So. 403; McKee v. Hogan, 145 Miss. 747, 110 So. 775; Miss. State Board of Veterinary Examiners v. Watkins, 206 Miss. 330, 40 So.2d 153; Sims v. Van Meter Lbr. Co., 96 Miss. 449, 51 So. 459; Southern Bus Lines v. Amalgamated Assn. of Street, Elec. Ry. Motor Coach Employees, 205 Miss. 354, 38 So.2d 765; Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261; 28 Am. Jur., Secs. 166, 170 pp. 356, 359; Griffith's Miss. Chancery Practice, Sec. 435 pp. 431-32.
II. Equity jurisdiction will attach to avoid a multiplicity of suits and afford a complete remedy. Gordon v. Gordon, 191 Miss. 192, 198 So. 284; Ham v. King's Daughter Circle No. 4, 170 Miss. 490, 155 So. 164; Hood v. Foster, 194 Miss. 812, 13 So.2d 652; McClendon v. Miss. Highway Comm., 205 Miss. 71, 38 So.2d 235; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Rosenblatt v. Escher, 184 Miss. 274, 185 So. 551; Stigall v. Sharkey County, 197 Miss. 307, 20 So.2d 664; Wood v. Ratliff, 138 Miss. 783, 103 So. 356, 104 So. 156; 30 C.J., Sec. 12 p. 542; Black's Law Dictionary (3rd ed.), p. 1382, word "property"; Griffith's Miss. Chancery Practice, Secs. 436-37, 439 pp. 432-34, 437-38.
III. The appellant has stated a meritorious cause of action, without joining separate causes. Gully v. Bridges, 170 Miss. 891, 156 So. 511; Triplett v. Bridgforth, 205 Miss. 328, 38 So.2d 756; Griffith's Miss. Chancery Practice, Secs. 167, 203, 206, 291 pp. 153, 189, 192, 276.
J.D. Thames, Vicksburg, for appellees.
I. The appellant has a plain, adequate and complete remedy at law. City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48; McLeod v. Civil Service Comm., 198 Miss. 721, 21 So.2d 916; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319.
II. The Chancery Court of Warren County, Mississippi, has no jurisdiction in this case.
III. Appellant failed to file written demand for investigation as required by Civil Service Statutes.
IV. Appellant's unique and amazing application of the doctrine of multifariousness. Griffith's Miss. Chancery Practice, Sec. 493 pp. 437-39.
APPELLANT IN REPLY.
I. The appellant had no adequate and complete remedy at law. City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; Blover, Mayor v. City Council of Columbus, 132 Miss. 776, 96 So. 521; Rules and Regulations of Vicksburg Board of Civil Service Comm., Sec. 12.3.
II. No act of the appellant could have given the Civil Service jurisdiction of this controversy.
This is another attempt to review by a bill in chancery court the removal of a city employee who was under the Civil Service Act.
The bill of complaint by appellant Tennant was brought against Otto T. Finane, Chief of Police of the City of Vicksburg, and against the City. It charged that complainant was a patrolman for the Vicksburg Police Department, and that he had valuable rights under the Civil Service Act of 1944, Miss. Laws 1944, Chapter 209; Miss. Code 1942, Sections 3825-30 to 3825-45. It was averred that, under said statutes and the civil service rules and regulations of the Board of Civil Service Commission of the City of Vicksburg, complainant was vested with rights which were violated without authority of law when on November 9, 1954, the defendant Finane, Chief of Police, fired him from his job; that both of the defendants ignored the requirements of the statutes and rules and regulations of the civil service commission of the city; and that complainant was ready, able and willing to perform the duties of his job from which he had been wrongfully discharged. The bill prayed for damages in the amount of his salary from the time of his discharge until the date of the filing of the bill, June 7, 1955, for a mandatory injunction requiring defendants to allow complainant to discharge his duties as a patrolman, and for compensatory and punitive damages.
Attached to the bill as Exhibit A was a copy of the rules and regulations of the Board of Civil Service Commission of the city. Section 12.3 thereof provided a procedure for review of such removal by the civil service commission, and subsequently by the circuit court. It is a transcript of Code Section 3825-40, of the Miss. Civil Service Act, which prescribes procedure for appeals from such removal. Exhibit B was a letter dated January 8, 1955, from complainant's attorney to the chairman of the civil service board, in which complainant charged that on November 9, 1954, he had been accused falsely of taking money from a parking meter on the city streets, and was fired by the chief of police who failed to give him any written specifications of charges. The letter demanded an investigation and hearing into the matter of his dismissal, and reinstatement. Exhibit C to the bill was a letter from the city attorney to complainant's counsel advising that an investigation of the matter disclosed "that the service severance of Mr. Tennant was not such as was covered by the terms and provisions of the Civil Service Act and is not governed by the rules and regulations" of the City's civil service commission; that under the facts there was nothing for the civil service commission to do with reference to this matter.
The defendants-appellees demurred to the bill of complaint, on the grounds that the chancery court had no jurisdiction, complainant had a plain, adequate and complete remedy at law, and the bill did not state a cause of action. The trial court sustained this general demurrer, and from that action complainant has appealed.
The order of the chancery court sustaining appellees' demurrer must be affirmed. The case is clearly controlled by Scott, Mayor of the City of Laurel, et al. v. Lowe, 78 So.2d 452 (Miss. 1955). Lowe, an Assistant Fire Chief of the City of Laurel, brought a suit in the chancery court against the chief of the city fire department and the mayor and commissioners of the city to enjoin a threatened transfer of him to another station. It was held that the complainant's statutory method of review under Code Section 3825-11 was the exclusive remedy for persons asserting rights under the Civil Service Act; that the statutory method of review was speedy, adequate and complete; and that complainant therefore could not proceed in chancery to obtain a judicial review of an action of the municipal officers affecting his job. That case involved the interpretation of Code Section 3825-01 to 3825-17, and particularly Section 3825-11. This is the statute dealing with municipalities having a commission form of government with a population of not less than 14,000. The instant case involves the Civil Service Act applying to municipalities having the commission form of government and a population of not more than 21,000, being Code Sections 3825-30 to 3825-45. However, the controlling provision, Section 3825-40, is substantially the same as the statute interpreted in Scott v. Lowe, Section 3825-11. The same reasons and the same considerations apply here as in that case.
(Hn 1) Section 3825-40 provides that any person in the classified civil service who is removed from his job may within ten days from the time of his removal file with the commission a written demand for an investigation and hearing; that the commission shall grant the same, and if relief is not obtained, the accused employee may appeal to the circuit court within thirty days after the entry of the commission's order, with certain stated restrictions as to the scope of review. Appellant was discharged on November 9, 1954, but he made no attempt to follow the statutory procedure for review within the ten-day period. Two months after his discharge his counsel wrote the civil service commission asking for a hearing. Hence he did not bring himself within the exclusive procedure for review. (Hn 2) Although the demurrer admitted that appellant had not received a written accusation of the reasons for his removal, appellant's exclusive remedy, as was held in Scott v. Lowe, was still under Section 3825-40. That fact, if fact it were, would have been one for the consideration of the commission along with the other circumstances of the case, when it reviewed the removal.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.