In re Appeal of Caldwell , 237 N.C. 600 ( 1953 )

JOHNSON, J.

Decision here is controlled by the provisions of The Classified Employees Civil Service Act of the City of Asheville, Chapter 1000, Session Laws of 1951. Pertinent to decision are these portions of the Act:

“Sec. 10. . . . Any person holding office, place, position or employment in any of the classified services and subject to the provisions of this Act, may be removed, discharged, suspended without pay, demoted, reduced in rank, or deprived of vacation privileges or other special privileges for any one or more of the following reasons :

“(a) . . ., insubordination, ... or any other act of omission or commission in the course of the employment tending to injure the public service.”

“Sec. 11. Eemoval. . . . The director or foreman if such authority is delegated, may orally suspend, discharge or remove a member of his department pending the confirmation of the suspension, discharge or removal by the regular appointing power under this Act, but written report of such suspension, discharge or removal shall be made to the commission. Any person so removed, suspended or discharged, may within 10 days from the time of his removal, suspension or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal, suspension or discharge was or was not made for political reasons and was or was not made in good faith for cause. After such investigation the commission may, if in its judgment the evidence is sufficient, affirm the removal, suspension or discharge, or if it shall find that the removal, suspension or discharge was made for political reasons, or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position or employment from which such person was removed, suspended or discharged, . . . The commission upon such investigation, in lieu of affirming the removal, suspension or discharge, may modify the order of removal, suspension or discharge by directing a suspension, without pay, for a given period, and subsequent restoration of duty, grade or pay; . . .

“All investigations made by the commission . . ., pursuant to the provisions of this Section, shall be by public hearing, after reasonable notice to the accused of the time and place of such hearing, at which the accused shall be afforded an opportunity of appearing in person and by counsel, and presenting his defense. At any such hearing the testimony of all witnesses shall be taken in writing and a record made of all proceedings, including the commission’s findings of fact and its final order. The final order shall be signed by not less than two commissioners indicating concurrence therein. From said final order the accused may appeal to the Superior Court of Buncombe County, which appeal shall be taken within 10 days after the entry of such order by serving the commission with a written notice of appeal, stating the grounds thereof, and demanding that a certified transcript of the record and of all papers on file in the office of the commission affecting or relating to such order, be filed by the commission in such court. The commission shall, within 10 days after the filing of such notice, make, certify, and file such transcript with such court. The Superior Court shall thereupon proceed to hear and determine such appeal; provided, however, that such hearing shall be confined to the determination of whether the order of th'e removal, discharge or suspension made by the commission, was or ivas not made in good faith for cause, and no. appeal to such court shall be tahen except upon such ground or grounds.” (Italics added.)

It is noted that the petitioner’s appeal from the Civil Service Commission to the Superior Court contains no statement of the “grounds” of appeal as required by Section 11 of the Civil Service Act. Nor is the appeal supported by any specific exception to any finding of fact of the Commission. Therefore the petitioner’s appeal carried up for review in the Superior Court the single question whether the facts found by the Commission support the decision upholding Superintendent Johnson’s discharge of the petitioner. Greene v. Board of Education, ante, 336; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488; In re Sams, 236 N.C. 228, 72 S.E. 2d 421.

And, in turn, the general exception to the judgment signed by Judge Gwyn brings here for review the single question whether the facts found support the decision upholding the discharge. Greene v. Spivey, supra; Parsons v. Swift & Co., 234 N.C. 580, 68 S.E. 2d 296; Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609.

It is manifest that both the order of the Commission and the judgment of Judge Gwyn are supported by the facts found. Chapter 1000, Sections 10 and 11, Session Laws of 1951. Therefore, the judgment below affirming the order of the Civil Service Commission will be upheld.

Affirmed.