Opinion
Opinion filed June 29, 1940.
1. CERTIORARI.
The statutes providing for review by certiorari of actions of boards or commissions neither enlarge nor diminish the scope of review by certiorari (Code 1932, secs. 9008-9018).
2. MUNICIPAL CORPORATIONS.
Under charter of city of Nashville providing that decisions of civil service and pension board on all questions of fact in trial of charges preferred against civil service employees are final subject to review only for illegality or want of jurisdiction, the right of court to review removal charges de novo by statutory writ of certiorari, is taken away, leaving only the common-law writ of certiorari to review board's decisions for illegality or lack of jurisdiction (Code 1932, secs. 9008-9018).
3. MUNICIPAL CORPORATIONS.
Where charter of city of Nashville provided that decisions of civil service and pension board on all questions of fact in trial of charges preferred against civil service employees should be final and subect to review only for illegality or want of jurisdiction, civil service employee's petition for statutory writ of certiorari to review charges against him de novo presented no controversy, since employee's remedy was common-law certiorari if board acted illegally or without jurisdiction (Code 1932, secs. 9008-9018).
4. COSTS.
Where petitioner prosecuting certiorari proceeding upon oath provided for poor persons was not entitled to relief, defendants were taxed with costs accrued at their instance with judgment over against petitioner for all costs.
FROM DAVIDSON.Error to Circuit Court of Davidson County. — HON. RICHARD P. DEWS, Judge.
Proceeding by Harry G. Groomes against the City of Nashville and others for a statutory writ of certiorari for the purpose of trying de novo charges for which plaintiff was discharged by civil service and pension board from the employ of the City of Nashville. The Circuit Court ordered the writ of certiorari to issue and ordered the civil service and pension board to certify the record to the Circuit Court for hearing de novo and a justice of the Supreme Court issued fiats for writs of certiorari and supersedeas.
Judgment in accordance with opinion.
W. CORNELIUS BREEDLOVE and RICHARD M. ATKINSON, both of Nashville, for plaintiff.
W.C. CHERRY, E.C. YOKLEY, JR., BAILEY HOWARD, BASS, BERRY SIMS, TRABUE, HUME, DAVIS GALE, and NEWMAN, BLACKARD WHITE, all of Nashville, for defendants.
In this case Harry G. Groomes, an employee of the City of Nashville, subject to civil service, was discharged on February 27, 1940, by the Civil Service and Pension Board. The employee was furnished with a written copy of the charges preferred against him, and he duly filed his answer denying the truthfulness of the charges. At the trial, which lasted several weeks, Groomes was represented by able counsel, and he and his witnesses were permitted to testify. It is not claimed that the provisions of the city charter governing such proceedings were violated.
One month after his discharge Groomes filed a petition in the First Circuit Court of Davidson County for the statutory writ of certiorari, as provided in Sections 9008-9018 of the Code, for the purpose of having his case heard de novo. The grounds upon which he seeks relief are that (1) the judgment was rendered arbitrarily because not supported by the evidence; (2) the judgment was not based upon the evidence heard but was arrived at from a political standpoint; (3) the case was heard upon irrelevant, immaterial, foreign, and incompetent evidence; and (4) that he was denied a fair and impartial trial.
We find it unnecessary to decide whether these charges are specific enough to justify the court in a proper proceeding to assume jurisdiction.
Section 49 of the Charter of the City of Nashville contains the following provision:
"The judgment and findings of the Civil Service and Pension Board on all questions of fact in the trial of charges preferred against civil service employees under the provisions of this Act shall be final, and subject to review only for illegality or want of jurisdiction."
Sections 9008-9018 of the Code simply prescribe the procedure, and neither enlarge nor diminish the scope of review by certiorari. McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752; Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059; W.J. Savage Co. v. Knoxville, 167 Tenn. 642, 72 S.W.2d 1057; City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164.
The section of the city charter quoted above makes the judgment of the Civil Service and Pension Board final, and takes away the right of court review by the statutory writ of certiorari without violating the constitution. The Legislature did not and could not take away the common-law writ of certiorari; hence the exception of illegality or want of jurisdiction, which are common-law grounds for the issuance of writs of certiorari. If the Civil Service and Pension Board acts illegally or without jurisdiction, its judgment may be reviewed upon the common-law writ of certiorari, as was done in Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870, where petitioner Conner was removed from the office of chief of police of that city without notice or trial. It follows from what we have said that Groomes's petition, filed in the First Circuit Court, presents no justifiable controversy to that court. This matter was fully determined in City of Nashville v. Martin, supra, in which the court, speaking through Chief Justice GREEN, said [ 156 Tenn. 443, 3 S.W.2d 166]:
"As to the police officers of the city of Nashville, the Legislature might have enacted that they should have a fixed term, or that they should serve subject to the pleasure of the mayor or of the civil service and pension board. It was equally permissible for the Legislature to declare that such police officers should serve subject to a trial by the civil service and pension board upon the conditions set out in the act. Such conditions infringed no rights of these employees under section 8 of article 1 of the Tennessee Constitution, nor under the Fourteenth Amendment to the Constitution of the United States. No one has a constitutional right to be employed by a municipality except upon terms prescribed by law. Having no rights under section 8 of article 1 of the Tennessee Constitution, nor under the Fourteenth Amendment to the Federal Constitution, which the criticized legislation transgressed, this police officer has no remedy against said legislation which he can call upon the courts to enforce under section 17 of article 1 of the Constitution. A limitation was imposed upon his service on the police force of Nashville by a law which he has no standing to question. He served subject to trial on charges preferred against him before the civil service and pension board, and the judgment and findings of that board were made final on questions of fact."
The relationship existing between the city and Martin in that case and the city and Groomes in the instant case is identical, and the employees in both were subject to Section 49 of the City Charter. The principle announced in City of Nashville v. Martin was later applied in W.J. Savage Co. v. Knoxville, supra, and Anderson v. Memphis, supra.
Statutory certiorari is simply a substitute for appeal, and in cases of municipal employees operating under civil service, providing that the judgment of the Civil Service Board shall be final, the employee is not entitled to have his case reviewed by statutory certiorari. His remedy is common-law certiorari, and that is accorded him only where the Board has acted illegally or without jurisdiction.
A member of this court has heretofore issued fiats for writs of certiorari and supersedeas. For the reasons set forth herein we hold that the Circuit Court acted illegally in ordering the writ of certiorari to issue and in entering an order directing the Civil Service and Pension Board to certify the record in this case to the Circuit Court for a hearing de novo. The writ of supersedeas is accordingly made permanent.
The petitioner Groomes is prosecuting this case upon the oath provided for poor persons. It is, therefore, directed that defendants be taxed with the costs accrued at their instance, with judgment over against Groomes for all costs.