The opinion
*712 Lee, J.
(dissenting).
I think the two cases, McLeod v. Civil Service Commission of Jackson, 198 Miss. 721 , 21 So. (2d) 916, 918 , and City of Jackson v. McLeod, 199 Miss. 676 , 24 So. (2d) 319 , were correctly decided. In my opinion, they should be adhered to. Stare decisis would compel an affirmance of this cause.
In the former case, this Court held (1) that Chap. 208, Laws of 1944 is constitutional; (2) that, on appeal to the circuit court, a cause is not to be tried on a transcript of the evidence taken before the commission; and (3) the right of trial by jury means “a trial de novo before a jury under the guidance and control of the trial judge, each of these branches of the court discharging the same functions that it always does in trials therein.” The opinion must have been concurred in by all of the judges — there was no dissent.
On the return of the case here, as the latter styled cause, the majority opinion in no way changed or modified its previous decision. In his specially concurring opinion, Judge Sydney Smith, the organ of the Court on the first appeal, said in part: “What this Court there intended to hold, and . . . seems clearly to have held, is that the issue designated by the statute — whether the judgment of the Civil Service Commission was made in good faith for cause' — should not be tried on a transcript of the evidence heard by the Commission, but anew, i. e., on evidence then introduced before the jury.” Even in the dissenting opinion, it was said: ‘ ‘ The former reversal was of necessity based upon the theory that the fact of whether or not these men were discharged in good faith and for cause was a jury question; that is to say, an issue of fact to be determined under all of the evidence on a trial de novo in the Circnit Court where the jury should discharge ‘the same functions that it always does in trials therein.’ ”
*713 Ill thus proclaiming the significance of a jury trial in the circuit court, this Court was evidently keeping in remembrance its former decisions and the statutes. Where a ‘ ‘ controversy in the circuit court is tried anew . . ., it is a trial de novo.” Knox v. L. N. Dantzler Lbr. Co., 148 Miss. 834 , 114 So. 873, 876 . “To try a cause anew means to try it as if it never had been tried before.” Whittle v. City of Hattiesburg, 132 Miss. 808 , 96 So. 741 . Compare Sec. 1201, Code of 1942; Callahan v. Newell, 61 Miss. 437 ; Amory Independent Telephone Co. v. Cox, 103 Miss. 541 , 60 So. 641 ; National Hdw. Lumber Ass’n v. Gilmore Puckett Lbr. Co. Miss., 49 So. (2d) 689 . Even in the case of California Co. v. State Oil & Gas Board, 200 Miss. 824 , 27 So. (2d) 542, 544 , 28 So. (2d) 120 , decided in October 1946, it was said: “A trial de novo, within the common acceptation of that term . . . and . decisions of this Court, means that the case shall be tried the same as if it had not been tried before, and the court conducting such a trial may substitute its own findings and judgment for those of the inferior tribunal from which the appeal is taken. ’ ’
The court was mindful that a jury trial is “ a substantial and valuable right, and should not be lightly denied.” 50 C. J. S., Juries, Section 9, p. 722. In Magna Charta, it was considered the great bulwark of English liberties, for there it was provided: “No freeman shall be hurt, in either his person or property unless by lawful judgment of his peers or equals, or by the law of the land. ’ ’ It is now regarded as a basic and fundamental feature of our jurisprudence, and has become a part of the birthright of every free man.
“A jury trial is a proceeding in which the jurors are the judges of the facts and the court is the judge of the law.” 31 Am. Jur. 550 . “The controlling functions of a jury are to pronounce on the credibility of witnesses; to determine disputed facts; to draw conclusions from doubtful and contradictory premises . . . ” 53 Am. Jur. 143 . In construing Sec. 31 of our Constitution, where *714 it is ordained that “The right of trial by jury shall remain inviolate”, this Court in Dement v. Summer, 175 Miss. 290 , 165 So. 791, 793 , said: “A trial by jury in a court of superior original jurisdiction is universally held to mean a jury of twelve qualified persons who shall decide the facts tinder the superintendence of a trial judge, who shall have the sole power to declare the law.” (Emphasis supplied.)
The inviolate right of trial by jury, guaranteed by Sec. 31 of the Constitution, of course, refers to those cases in which the right existed at the time of the adoption of the guaranty. And, it is true that Chap. 208, Laws of 1944, was passed subsequent to the adoption of the Constitution of 1890. But, “In those cases in which the Constitution does not guarantee a jury trial, the legislature may grant or deny the right to a jury trial. . . . ” 50 C. J. S., Juries, Section 10, p. 725. And the Legislature exercised its right and power in this instance. It provided that, upon appeal to the circuit court, “the accused shall have the right of trial by jury”. Sec. 10, Chap. 208, Laws of 1944. The language is plain and unequivocal. It imposes no limitation.
Most significant of the intention of the Legislature is its identification of the discharged employee as “the accused”. In said Chapter 208, supra, it is provided that the public hearing is to be held after notice to “the accused”. At such hearing, “the accused” may present his defense. “The accused” may appeal to the circuit court. On such appeal, “the accused” shall have the right of trial by jury.
“The accused” has a definite and certain meaning in our jurisprudence. It is defined only as “one charged with an offense; the defendant in a criminal case.” Webster’s International Dictionary 2nd Ed. 1 C. J. S., Accused, p. 770 gives this definition: “One who is charged with a crime, a person proceeded against by indictment, information, or other penal proceeding. The word has been held inapplicable to a defendant in a civil action; *715 hut to he synonymous with ‘defendant’ in criminal cases . . . ” Common acceptation as such no douht stems from widespread familiarity with the Bill of Rights. “In all criminal prosecutions the accused . . .” Article 6, Amendments, Constitution of the United States. See also the identical language in Sec. 26, Constitution of 1890.
By such characterization, evidently the Legislature intended that a civil service employee, on appeal to the circuit court, should have a jury trial as if he were charged with a criminal offense. And undoubtedly this Court, in holding that there must he a trial anew, must have been profoundly impressed by such characterization.
It should be kept in mind that the Legislature may grant the right to a jury trial in cases not provided for by the Constitution. 50 C. J. S., Juries, Section 10, p. 725, supra. And where the Legislature has exercised its right and power, the courts must not impair or take it away. “The right of trial by jury, where it is granted by constitutional or statutory provision, cannot be taken away or impaired by the courts, . . . ”. 31 Am. Jur. 561 .
The McLeod cases, supra, were decided in 1945. The Legislature, at its 1950 session, again had Chap. 208, supra, under consideration. We must assume that the Legislature was then fully apprised that this Court had previously upheld the constitutionality of the Act, together with the fundamental right of a discharged employee to appeal to the circuit court, without reference to the evidence which had been heard by the Commission, and that there, in the circuit court, he is entitled to a trial by jury — a trial de novo — a trial anew — a trial just as if it had never been tried before. If the Legislature had desired to curtail this right in any way, it could, and doubtless would, have done so. It did not do so. On the contrary, it re-enacted See. 10, Chap. 208, supra, as Sec. 10, Chap. 503, Laws of 1950, without any change whatsoever. By so doing, the Legislature approved the *716 interpretation which this Court had already given to this Act in the McLeod cases, supra, and breathed into it the life of such interpretation anew. The construction of the Court, by such readoption, became a part of the section readopted. Masonite Corporation v. Lochridge, 163 Miss. 364 , 140 So. 223 , 141 So. 758 .
Davidson’s employment as a fireman, under civil service, as said by this Court in City of Laurel v. Reddoch, 200 Miss. 259 , 26 So. (2d) 465, 467 , is "a valuable right and one of importance to him not to lose.” He could not lawfully be discharged except in good faith for cause. But he was discharged. On the issue of good faith for cause — the instructions were couched in the exact language of the model which was fashioned and approved in the second McLeod case, supra — the jury in the circuit court found that his discharge was not in good faith for cause. The verdict of the jury, in my opinion, is sustained by the overwhelming weight of the evidence. In such circumstances, what can be wrong with our jurisprudence if it will not countenance the deprivation of Davidson’s valuable right to work as.a fireman, and thus earn a livelihood for himself and family, together with other incidental benefits, except upon the verdict of a jury?
There are two reasons why we should not be worried about decisions of other jurisdictions, cited by the majority opinion, on the constitutional question: (1) We have already settled that question; and (2) those decisions are not in conflict with ours. In the second McLeod case, supra [ 199 Miss. 676 , 24 So. (2d) 321 ], it was said: “The Legislature could not confer on a circuit court or any other judicial court the authority to appoint or to discharge city employees, . . . and as already pointed out the Legislature has been careful not to do so in the cited Act . . . ” Biit, it was also there said: “When an executive or administrative officer or agent goes beyond the scope of the power vested in him by law it becomes a judicial question . . . ”. The *717 Act in question confers no power on the circuit court to appoint city employees. It does place a limitation on the discharge of certain employees, who, by law, have acquired vested rights. The power of discharge still exists even as to those employees, when exercised in good faith for cause. Besides, “A city derives its existence and powers by charter from the State. It can do and perform all acts for which it has authority thereunder . . . ”. City of Indianola v. Sunflower County, 209 Miss. 116 , 46 So. (2d) 81 . Manifestly, the sovereign is the sole judge as to what powers it will grant.
I am unable to see how Dixie Greyhound Lines v. Miss. Public Service Commission, 190 Miss. 704 , 200 So. 579 , 1 So. (2d) 489 , cited in the majority opinion, is applicable. Sec. 7699, Code of 1942, fixes the method of appeal in those cases. No jury trial is provided for.
Although much weight seems to have been given to the case of California Co. v. State Oil & Gas Bd., 200 Miss. 824 , 27 So. (2d) 542, 544 , 28 So. (2d) 121 , it is conceded in the majority opinion that it involved the construction of a “statute much at variance with the one now before us”. Indeed, it is at variance; and for that reason, should not lead us awry. The particular language dealt with there was: " and the matter shall be tried de novo by the circuit court and the circuit court shall have full authority to approve or disapprove the action of the board.” "While there was a provision for a trial “de novo”, in the next breath, the court could only “approve or disapprove” the action of the board. These expressions were wholly inconsistent. The opinion so said. Under such circumstances, the Court invalidated the “de novo” provision, but upheld the appeal under the limitations therein mentioned. It was pointed out that the board was composed of those charged with administering a great public policy and of experts. It ridiculed the idea of by-passing such a board, possessed of learning, knowledge and skill in the extraction of oil *718 from the earth, and substituting therefor a jury of non-experts.
That principle is a far cry from the one involved here. On the question of good faith and cause, whether Davidson was under the influence of liquor, or made an assault upon, or ivas disrespectful to his superior, a fair-minded jury ought to have been as competent as the Civil Service Commission. The latter were not shown to have possessed any greater learning, moral fitness or strength of character than the members of the jury. I' think the Legislature intended that in the trial in the circuit court the jury should be the intermediate triers of the factual issue there presented.
The fallacy of the majority opinion springs from confusing the provisions of Chap. 208, supra, with those in regard to appeals from other boards or commissions. The distinction is that, in the former, the right on appeal to a trial anew is untrammeled, whereas, in the latter, the right is circumscribed by limitations. Instead of recognizing the distinction and giving validity to the unmistakable purpose of the legislature, the majority opinion confines Chap. 208, supra, to the strait jacket of other procedures, which are wholly foreign and apart. In my opinion, this constitutes the rankest kind of judicial legislation.
The majority opinion takes the position that this case poses an incongruous problem because the jury determined the good faith for cause of the Commission when it did not have the same evidence that the Commission considered. But, when it is remembered that the case was tried anew in the circuit court, surely it may be assumed that, so far as the City was concerned, the jury heard all of the evidence in defense that the City offered before the Commission! It is inconceivable that the City presented a weaker case before the jury than it did before the Commission. And the jury decided that such evidence was not sufficient to show that the discharge was motivated by good faith and cause. The circuit court, *719 in a trial de novo, or anew, on appeal from a justice of the peace court, has no bounden duty to uphold the judgment of the lower court. Such trial is a new deal. Neither should this Court strive to give sanctity to the decision of the Commission. It is a mere inferior tribunal itself.
The majority opinion leaves the McLeod cases in effect only so far as they uphold the constitutionality of Chapter 208, supra. Otherwise, as I see it, they have been overruled, and the provisions of said Chapter have been completely rewritten by the Court. Formerly, no transcript of the evidence taken before the Commission was provided for or required. Now, such transcript is required. Formerly, the discharged employee, on appeal, was entitled to a trial anew. Now, he can have no trial anew. Formerly, he was entitled to a jury trial on appeal. Now, he can have no jury trial. We have seen that the legislature had the power to provide for a jury trial in this kind of case. 50 C. J. S., Juries, Section 10, p. 725, supra. We have seen, that, in such event, this Court has no power to take away or impair such right to a jury trial. 31 Am. Jur. 561 , supra. But the majority opinion does exactly that which, under the law, it has no power to do. It is not content with merely impairing the right-— it completely takes it away and abolishes it. While maintaining belief in, and adherence to, the inviolate right of trial by jury, this decision turns such right into mere “sounding brass or a tinkling cymbal”. I protest against such rank judicial legislation as vehemently as 1 know how.
The instruction for the employee, on the merits, is set out in the majority opinion, and it is there conceded that the City obtained the converse. Besides, the City obtained another instruction which told the jury that “the only question to be decided by you is whether or not the action taken by the Civil Service Commission was in good faith, honestly done and upon a cause which reasonable men, acting as such Commission could reason *720 ably say was adequate cause. . . . ” If ever instructions were free from error, both under the McLeod cases, supra, and also under the terms of the controlling opinion, we have them in this case. They are absolutely perfect.
I cannot agree with the criticism of the instruction given for Davidson to the effect tbat the jury are the judges of the weight, etc., of the evidence, set out in the majority opinion. Actually, in view of the abolition of the right to a jury trial, it has bad no effect on this decision, and will never have any in the future. Obviously, its discussion is superfluous. But, the instruction, in my opinion, sets out an accurate statement of elementary principles of which the jurors were doubtless already aware. It was their province to resolve the issue in dispute. Their attention was called to the several traits which often motivate human testimony. In this country, we subscribe to the theory that, if the jurors bear the witnesses and observe their demeanor on the stand, they will be able to determine the truth. This necessitates, when the evidence is conflicting, belief of some and disbelief of others. The criticised instruction, by direction to the elementary facts of human nature, was calculated to guide the jurors in arriving at sound and valid conclusions. The Court could not have told the jury anything which was more self-evident.
The majority opinion concedes that “the proof on behalf of the employee clearly preponderates in support of bis contention that be was not under the influence of liquor while on duty at the time stated in charge number one in paragraph two of this opinion.” Supplementing that statement, 19 witnesses testified for Davidson. They literally abstracted bis movements during the night before and until bis discharge. They testified that be was not under the influence of liquor and gave no evidence thereof at all. Only six witnesses testified for the City. One smelled something like sen-sen on Davidson’s breath. Another said be smelled the odor of liquor. The version of two others was completely impeached, if the jury *721 believed the impeaching evidence. The evidence of the other two was of little, if any, evidentiary value. Of the 20 odd firemen, working with and around Davidson, and likewise employees of the city, the City offered not a single one.
Since the question before the jury was whether or not the action of the Civil Service Commission was in good faith, honestly done, and upon a cause, which reasonable men, acting as such commission, could reasonably say was an adequate cause, I think the production of all the facts was necessary to enable the jury to determine the alleged good faith for cause of the Commission. If evidence of good cause was slight, that fact ought to impair a claim of good faith. And when the City failed to produce any of the large number of its employees who were working with and around Davidson, whereas Davidson did produce a number of them, such fact, in my opinion, induced the conclusion that the discharge was not made in good faith.
The determination of human rights by a subsequently adopted rule, different from that in effect at the time of the accrual of such rights, was so repulsive to the Founding Fathers "that they wrote into the Constitution of the United States a prohibition against the passage of any ex post facto law. Par 3, Sec. IX, Art. I, Constitution of the United States. See also Sec. 16, Art. 3, Mississippi Constitution. Davidson’s rights under Sec. 10, Chapter 208, supra, accrued and were determined in the lower court in.conformity with the interpretation and construction thereof, as laid down in the McLeod cases, supra. The Court has now experienced a change of heart. Those cases have been overruled to the extent of shearing away the heart of the applicable rule, and substituting therefor a harsher and altogether different rule. By such ex post facto judicial legislation, this Court has done that to Davidson which, under no circumstances, would it allow to be done unto him by the Legislature. Thus *722 again and finally, I protest against sucli judicial violence as vehemently as I know how.