The opinion
Hall, J.
(dissenting).
I respectfully dissent from the majority opinion herein and concur in what has been said by Justice Lee in his dissenting opinion.
The majority opinion says in one place that the Civil Service Commission of the city exercises “purely an executive function” and in another place that it exercises a ‘ ‘ purely executive or administrative function ’ ’ and that it was beyond the power of the Legislature to foist upon a court and jury the performance of nonjudicial functions. I cannot see in what respect the functions of the Civil Service Commission are either executive or administrative, and therein lies one of the differences between this case and those involving orders of the State Oil and Gras Board and the Public Service Commission. Matters before the Oil and Gas Board originate and are initiated before that body; the same is true as to matters before the Public Service Commission; both of those bodies administer the laws falling within their respective jurisdictions. This case, however, did not originate before the Civil Service Commission; it began when the appellee was discharged by the city officials, and there it would have ended if appellee had not demanded an investigation pursuant to Sec. 10, Ch. 208, Laws of 1944, which demand is, in effect, an appeal to the Commission from the action of the city authorities. The Commission does not exercise a single executive or administrative function in the hearing of such appeal; it acts strictly in a judicial capacity; it hears the evidence and judicially determines whether the employee was discharged in good faith for cause. Every function which it exercises is purely judicial and involves a decision on questions of both law and fact. This being true, I cannot concur with the majority of the Court in asserting that it is *723 beyond the power of the Legislature to grant a trial de novo upon an appeal to the circuit court from a decision of the commission. No section of the Constitution is cited to support such a holding and I am unable to find any.
Section 171 of the Constitution creates the office of justice of the peace, but makes no provision for the procedure on an appeal to the circuit court from a judgment of a justice of the peace. By Section 1201, Code of 1942, the Legislature has provided that when a ease is appealed from a justice of the peace to the circuit court it shall be tried anew, and no court of this state has ever asserted that the Legislature did not have such a right.
By Sec. 10, Ch. 208, Laws of 1944, there is not a single provision that a stenographer shall 'take down the evidence on the hearing before the commission and transcribe the same; it is simply provided that the accused may appeal by giving a written notice of appeal to the circuit court 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 judgment or order, lie filed by the commission with such court. The commission shall, within ten days, after the filing of such notice, make, certify and file such transcript with such court”. If the Legislature had intended to require that a reporter take down the evidence and transcribe the same and file it with the commission it would have been an easy matter to have so provided by simply substituting the word “evidence” instead of the word “record” so as to provide that there shall be filed a ‘"‘transcript of the evidence” but it did not so provide. In my judgment a “transcript of the record” is not a “transcript of the evidence”. It is at once conceivable that in many hearings before, the commission it would be a physical impossibility for a stenographer to make up a transcript of the evidence within ten days. Reverting again to justices of the peace, there is no provision for having a court reporter and transcribing the evidence in ordinary eases *724 in a justice of the peace court, and yet by Section 1198, Code of 1942, it is provided that after notice of appeal and filing of an appeal bond “The justice of the peace shall at once make up a transcript of the record and properly transmit the same to the clerk of the circuit court, and if he shall fail to so make up and transmit the transcript of record in fifteen days after the bond has been filed, the circuit court shall make an order disallowing court costs to the justice of the peace”. Webster defines “transcript” as a written copy. A transcript of the record simply means a written copy of the record. It does not mean a written copy of the evidence, for there is no provision for a shorthand reporter either in the justice of the peace court or in proceedings before the commission.
In my opinion when the Legislature provided that the commission should file in the circuit court a transcript of the record it meant only a written copy of such record as was made before the commission, which, ordinarily, means nothing' but the judgment which was entered, just as is done in the case of appeals from a justice of the peace court. I think the majority opinion is in grievous error in assuming that when a certified transcript of the record is required it means that all the evidence must be taken down and transcribed. The cited statute does not say that the proceedings in the circuit court shall be upon the transcript of the record. It says “The said circuit court shall thereupon proceed to hear and determine such appeal and the accused shall have the right of trial by jury” and that the hearing shall be confined to the determination of whether the judgment of the commission was or was not made in good faith for cause. If the Legislature had intended that the hearing* in the circuit court should be only upon a transcript of the evidence taken before the commission it could easily have so provided, but this it did not do. I think the McLeod case was correctly decided, and that upon appeal there should be a trial de novo and not upon the transcript which the commission sends up to the circuit court. What the *725 majority has done in this case is to entirely rewrite the legislative act and provide that which the Legislature did not provide, viz., that the commission shall employ a court reporter for the hearing’ before it, that all the evidence shall be taken down and transcribed, that the hearing in the circuit court shall be only upon that transcript, and that the accused shall be deprived of his right to a trial by jury.
Another instance wherein I feel that the majority opinion has gone astray, even conceding for the sake of the argument and for that purpose alone, that there must be a full transcript of the evidence filed in the circuit court, is in saying that it would be a novel procedure to have a jury sitting and listening to a reading of the transcript of the evidence and that there is no proper function for a jury to perform on an appeal to the circuit court. I cannot agree that it is a novel procedure to have a jury consider a transcript of evidence; that very thing is frequently done in the circuit court when cases are tried on depositions taken in some distant state, and no one had ever questioned the propriety of having jurors hear the reading of depositions, which, after all, are nothing more than a transcript of evidence.
I feel that the majority decision strikes at the very heart of our jury system. In the statutes authorizing appeals from the decisions of the Oil and Gas Board and Public Service Commission, provision is made for the taking and transcribing of testimony before those bodies, and there is no provision that the aggrieved party on appeal shall be entitled to a trial by jury. But here there is a specific requirement that there shall be a jury trial in the circuit court. The question for trial is not merely one of law, but is a mixed question of law and fact, and, where the Legislature so provides, all issues of fact are to be tried by a jury. I cannot agree that this Court has the right to run roughshod over an express legislative fiat when it does not conflict with any constitutional provision and especially when, as in this *726 case, it merely obeys the constitutional mandate that “The right of trial by jury shall remain inviolate.” Sec. 31, Constitution of 1890. Bit by bit our courts are creating exceptions to the rule and thereby are chiseling away this inalienable right guaranteed by the supreme law of the land. I view with alarm the repeal of positive mandates of the Legislature by judicial construction. The jury system is the bedrock of our American way of life, and, while it may sometimes make manifest its deficiencies, no better system has yet been devised. It is no improvement to cast the jury into the discard and substitute therefor the opinion of a single judge. I close with a quotation from Hercules Powder Co. v. Williamson, 145 Miss. 172, 189 , 110 So. 244, 246, 247 , which I hope to again see established as the law of our state: “The ordinary jury is supposed to be, and is usually comprised of, men of education and men of little education, of men of learning in particular lines, and men whose learning’ consists of only what they have seen and heard, of merchants, mechanics, farmers, and laborers. Thus constituted, they sit together consulting and applying their separate experiences in the affairs of life and from the proven facts draw their conclusions. ‘This average judgment thus given.it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.’ Sioux City & Pacific Railway Co. v. Stout, 17 Wall. 657 , 21 L. Ed. page 745.”