Garvin v. Chambers

This is an appeal by the defendant, the civil service board of the city of Oakland, from a judgment of the superior court, in and for the county of Alameda, annulling upon certiorari an order of the defendant board finding the petitioner, a police officer, guilty of insubordination and sustaining an order of the commissioner of public health and safety dismissing him from the police department of the city of Oakland.

The charter of the city of Oakland provides that “All persons holding positions in the classified civil service shall be subject to suspension, fine and also to removal from office or employment, by the commissioner in whose department they are employed ... for misconduct, incompetency or failure to perform their duties under or observe the rules and regulations of the department or office; but subject to the appeal of the aggrieved party to the civil service board as herein provided. . . . Any person suspended, fined or discharged . . . may within five days from the making by a commissioner ... of the order . . . discharging him, . . . appeal therefrom to the civil service board, which shall fully

In keeping with these provisions of the charter, Frank Colburn, commissioner of public health and safety of the city of Oakland, made to the defendant board the following report, dated April 4, 1922:

“Garvin, James A.; . . . Patrolman, O. P. D.; discharged for violation of Sec. 81 of City Charter, to wit: willful disobedience of orders; also for violation of Section 348 of the Rules & Regulations of Police Dept., to-wit: conduct subversive of good order and the discipline of the Dept. ’ ’

[1] The city charter of Oakland does not provide in terms for the filing of a formal complaint against a member of the police department for any dereliction of duty but, obviously, it was the intent of the charter to provide and permit that the original order of discharge, such as was made in the instant case, would suffice in lieu of a formal complaint filed with the civil service board and that the hearing of the appeal before that board would be in the nature of a trial based upon the order of discharge. [2] The proceedings provided for before the defendant civil service board upon an appeal from an order of discharge clearly are not ministerial and undoubtedly are quasi judicial in character. This is .indicated by that provision of section 82 of the charter which directs that the civil service board shall “fully hear and determine the matter.” That the proceedings before the board were intended to be in the nature of an original trial, with the order of discharge as a complaint, is sufficiently indicated by that provision of the charter section which provides that “the accused shall be entitled to appear personally and to have counsel and a public hearing.” And that the determination of the board is in the nature of an original and final judgment is indicated by that provision of the same section of the charter which requires that the board shall make its “finding and decision” and certify the same to the official who made the order in the first instance.

The evidence taken upon the hearing of the appeal before the board reveals, as appears from the record returned to the court below in response to the writ, the following facts:

At the time of Garvin’s dismissal he had been a patrolman of the Oakland police department for over nine years. Shortly prior to his dismissal from the force he was accused of violating the National Prohibition Act and thereupon was by Frank Colburn, commissioner of public health and safety, “indefinitely suspended without pay, from position as Patrolman, pending investigation for misconduct, viz.: For alleged violation of the National Prohibition Act. ’' From that order of suspension Garvin appealed to the civil service board and a hearing on the order of suspension was set for April 4, 1922, at 8 P. M. Garvin had retained an attorney to represent him upon that appeal before the defendant board.

Late in the afternoon of April 3, 1922, while the order of suspension was still in force and while the appeal therefrom was still pending, Garvin was called to the phone by a Mr. Tracy, assistant police inspector, acting under the direction of the chief of police, who requested Garvin to come to the office of the chief of police on the following morning. Garvin at that time promised to call upon the chief as requested, but his attorney, who was engaged in other matters and unable to go with him, advised Garvin

Prior to April 4, 1922, on which day Garvin’s appeal from the order of suspension was to be heard, the charge made against him of violating the National Prohibition Act was dismissed by the federal authorities. The chief of police and the commissioner of public health and safety having

The chief of police immediately upon Garvin’s leaving the office made a report, based upon the notes taken by his shorthand reporter, to Colburn, commissioner of public health and safety, “recommending the dismissal of officer Garvin for disobedience of orders, that is a violation of section 81 of the city charter and also for violation of rule 348, a portion of it, conduct unbecoming—conduct adverse to good order and discipline of the department.” Shortly thereafter, and prior to the time set for the hearing by the civil service board of the order of suspension, an order was made and signed by the commissioner of public health and safety revoking the order for Garvin’s suspension and restoring him to his position as patrolman in the police department and, simultaneously, another order, the one in question here, was

Save for minor and inconsequential details the foregoing is, in substance, a statement of all the testimony which was taken upon the hearing before the civil service board.

The crux of the contention made by the defendant board in opposition to the writ is that the function of a writ of certiorari is limited solely to a determination of the question of whether or not the board or tribunal whose action i's sought to be annulled had jurisdiction of the subject matter and that, therefore, the scope of the inquiry upon certiorari is limited to a determination of whether or not the subject matter of the appeal was within the jurisdiction of the board. In this behalf it is argued by defendant board that, even though there be an entire absence of any evidence to support the finding and decision of the inferior tribunal, the determination of the tribunal is only an erroneous decision “within the jurisdiction of the tribunal” and cannot be disturbed on certiorari.

Petitioner, in support of the writ, contends that where the decision of an inferior qwm'-judieial board or tribunal of limited jurisdiction rests upon no evidence at all, such decision may be properly reviewed and annulled on certiorari. It is the petitioner’s contention in the instant case that there was no evidence introduced before the board in support of its order discharging him from the department.

[3] There can be no doubt but that the writ of certiorari, where the right of appeal is not given, tries only the jurisdiction of an inferior board or tribunal exercising judicial functions. (Sec. 1074, Code Civ. Proc.) The general rule that the evidence will not be reviewed on certiorai-i is not applicable to the instant ease. The general rule and the exception thereto are pointed out in Roberts v. Police Court, 185 Cal. 65 [ 195 Pac. 1053 ], and the instant case comes, we think, under the exception to the general rule. The defendant board in the instant case is an inferior board or tribunal of limited jurisdiction exercising judicial functions. Its jurisdiction is limited to the determination of those questions which it is authorized to decide under the provisions of the charter of the city of Oakland. In other words, it has jurisdiction to proceed only when facts appear in a proceeding before it which show that it has jurisdiction. Where

[4] It is a fair summary of the decisions of this state, dealing with the scope of statutory certiorari, to say that the evidence adduced upon the hearing before an inferior board or tribunal having limited jurisdiction may be brought up to the reviewing court upon certiorari for the sole purpose of determining whether or not, from the evidence before it, the finding of a jurisdictional fact by such inferior board or tribunal is sustainable, and if there be no evidence to sustain such decision it must be annulled. (Thrasher v. Board of Medical Examiners, 44 Cal. App. 26 [ 185 Pac. 1006 ]; Bryant v. Board of Supervisors, 32 Cal. App. 495 [ 163 Pac. 341 ]; Stumpf v. Board of Supervisors, 131 Cal. 364 [ 82 Am. St. Rep. 350 , 63 Pac. 663 ] ; Borchard v. Board of Supervisors, 144 Cal. 10 [ 77 Pac. 708 ]; Englebretson v. Industrial Acc. Com., 170 Cal. 793 [ 151 Pac. 421 ]; Great Western Power Co. v. Pillsbury, 170 Cal. 180 [ 149 Pac. 35 ].)

The case of Boyd v. Pendegast, 57 Cal. App. 504 [ 207 Pac. 713 ], is not inconsistent with anything here said concerning the right to review upon certiorari the question as to whether or not the findings of the defendant board, in the absence of a conflict in the evidence as to the existence of a jurisdictional fact, is contrary to the facts developed upon the hearing before the board. The case cited had to deal with the provisions of the charter of the city of Los Angeles which provided, in substance, that where a police officer has been suspended by the chief of police the officer might, upon request, be accorded a hearing before the board of police com

[6] Jurisdiction of an offense is not marked and measured by a mere compliance with the procedure provided for the prosecution of the offense, but in addition consideration must be given to the question of whether or not the character of the offense charged comes within the category of offenses defined and denounced by the law, and the fact that the authority of the board had been invoked by the taking of the appeal would not deprive the petitioner of the right to attack the final action of the board as transcending its powers. (Long v. Superior Court, 102 Cal. 449 [ 36 Pac. 807 ] ; Smith v. Westerfield, 88 Cal. 374 [ 26 Pac. 206 ] ; 7 Cal. Jur. 579; Green v. Superior Court, 78 Cal. 556 [ 21 Pac. 307 , 541].)

[8] The jurisdiction of the civil service board, as previously indicated, is special and limited by the charter of the city of Oakland to the determination of the correctness of the order of discharge of the petitioner. The power óf the board being special and limited, no legal presumptions or intendments may be indulged to uphold its order. (Petersen v. Civil Service Board, 67 Cal. App. 70 [ 227 Pac. 238 ].) Facts must appear on the face of the record sufficient to sustain a finding that the petitioner was guilty as charged, otherwise the order of the defendant board sustaining the discharge was in excess of the power conferred upon the board, without the limits of its special jurisdiction and not in the regular pursuit of its authority as contemplated by sections 1068 and 1074 of the Code of Civil Procedure.

[9] Under the charter of the city of Oakland police officers may not be discharged for no reason at all or for any reason except “misconduct, incompeteney or failure to perform their duties under or observe the rules and regulations of the department or office.” (Section 81 of the Charter of the City of Oakland, Stats. 1911, p. 1605.)

The facts presented to the board upon appeal will not suffice as the basis for its order sustaining the discharge. The charge made against the petitioner, Garvin, was tantamount to a charge of insubordination, which, under the provisions of the charter, was cognizable by the defendant board, and, under the doctrine of the authorities hereinbefore cited and discussed, was subject to review by certiorari to

[10] The finding in effect of the defendant board that the petitioner, Garvin, was guilty of insubordination was plainly predicated upon Garvin’s refusal, while under an indefinite order of suspension, to be interrogated by the chief of police concerning his alleged complicity in a violation of the federal prohibition law.

It has been held, and, we think, correctly, that where a policeman has been discharged he is not thereafter a member of the police department and consequently could not, pending a revocation of the order of discharge, be held amenable to a charge of neglect of duty, and this was held to be so upon the theory that the discharge of the officer deprived him of his office and rendered him exempt from and ineligible for police duty. (People v. Board, 39 N. Y. 506 .)

In the case of Carey v. Plainfield, 53 N. J. L. 311 [ 21 Atl. 492 ], it was held that suspension of a policeman from office for a specified term deprived him of his office, and that during the term for which he was suspended he did not hold the office, because such suspension was a discharge, 'pro tanto, from office.

Insubordination can he rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed. In the instant case, while the order of indefinite suspension was in force Garvin’s status as a policeman was suspended to the extent that he could not be called upon to do police duty nor be held amenable for a failure to do such duty. And that being so, it follows, for obviously greater reasons, that he could not be held amenable for a refusal to comply with a command which concerned not the performance of police duty, but which, under the undisputed evidence, clearly contemplated “putting him on the carpet” concerning the charge previously instituted against him and for which he was under suspension.

While it is true the evidence shows that it had been tentatively agreed between the chief and Commissioner Colburn that the order of suspension was to be revoked on the evening of the day that the chief called Garvin to the office,

That it was the intention of the chief of police, when seeking an interview with Garvin, to institute an inquisitorial proceeding against him, in advance of and in lieu of the hearing which was to be had upon the appeal before the defendant board, is evidenced by the fact that Commissioner Col-bum “gave the chief to understand that he [Garvin] would be reinstated provided Mr. Garvin could satisfactorily explain his relationship regarding the charge.”

[11] Even though it be conceded that a right to public office is not a vested property right, nevertheless state and municipal employees holding office under civil service rules and regulations are entitled as a matter of right to have such rules and regulations relative to their removal from office fairly invoked and applied.

If the hearing upon the appeal of Garvin could be summarily transferred from the defendant board to the chief of police, then indeed would it be an easy matter to circumvent the rules and regulations governing civil service by charging an officer with an offense and pending the hearing inveigle him into apparent disobedience of orders by demanding that he discuss the details of the case pending against him, and, upon his refusal to do so, discharge him for insubordination.

[12] Garvin’s first appeal, which was from the order of suspension following the institution against him of the charge in the federal court, was a proceeding quasi criminal in its nature. It involved in a sense the right to office and put at stake Garvin’s good name as well. The safeguards which are ordinarily provided and invoked to protect reputation and rights in courts of justice should in substance be observed in proceedings of the character here under consideration. (People v. Elmendorf, 42 App. Div. 306 [ 59 N. Y. Supp. 115 ].)

[13] We_think that the refusal of Garvin to be, in effect, a witness against himself cannot be held to be violation of the

The judgment is affirmed without costs.

Lawlor, J., Richards, J., and Shenk, J., concurred.

I dissent.

The order of the civil service board denying petitioner’s appeal and sustaining the order of discharge made by the commissioner was final, as I read the charter, and was not subject to annulment by the superior court on the ground that said order was not sufficiently supported by the evidence upon which the board based its said order sustaining the dismissal of petitioner from the position of a patrolman. Conceding, for the instant, that the superior court had jurisdiction to annul the order of the board on the ground of insufficiency of the evidence, the rule is that if there is any evidence of a substantial character from which an inference may fairly be drawn which would support said order of dismissal such order cannot be interfered with by a reviewing body. Certainly it cannot be claimed that the record in this ease presents a state of facts so overmastering in petitioner’s favor as to absolutely exclude an inference that petitioner’s conduct and manner did not amount to insubordination or conduct subversive of the good order and discipline of the department.

The power of the city of Oakland to solve for itself questions affecting its civic welfare is expressly granted by charter, and in determining the scope of this power we are bound by the language of the charter, and we have no right to limit its scope or to go beyond the authority expressly granted. In this respect the charter is supreme. (Sunter v. Fraser, 194 Cal. 337 [ 228 Pac. 660 ].)

“All persons holding positions in the classified civil service shall be subject to suspension, fine and also to removal from office or employment, by the Commissioner in whose Department they are employed, . . . but subject to the appeal of the aggrieved party to the Civil Service Board as herein provided. (Italics ours.)

“Any chief official, any subordinate officer, and any superintendent or foreman in charge of municipal work may temporarily suspend any subordinate then under his direction for incomp eteney, neglect of duty or disobedience of orders, but shall within twenty-four hours thereafter report the facts in writing to the Commissioner of his Department or to the Auditor, as the case may be, and furnish a copy of the report to the subordinate suspended, upon his request therefor. The Commissioner (or auditor) shall thereupon, if demanded by the subordinate suspended, hear evidence for and against him, and shall thereupon affirm or revoke such suspension, according as he finds the facts to warrant.”

Section 82 provides:

“Any persons suspended, fined or discharged (and any person whose order of suspension above provided for has been revoked) may within five days from the making by a Commissioner (or the Auditor) of the order suspending, fining or discharging him, or affirming or revoking an order of suspension, as the case may be, appeal therefrom to the Civil Service Board, which shall fully hear and determine the matter. The accused shall be entitled to appear personally, and to have counsel and a public hearing. The finding and decision of the Board shall be certified to the official from whose order the appeal is taken, and shall forthwith be enforced and followed by him.” (Italics ours.)

Prom the foregoing sections it seems perfectly clear that the city adopted a complete scheme for the management of its municipal affairs and in so doing took the pains to place the matter of the employment and discharge of its employees beyond the control, supervision, and interference of courts in cases where no breach of contractual obligation is involved. The charter explicitly provides that the chief official of any department may suspend any subordinate under him on any

No legal distinction exists between the questions raised here and those passed upon in Price v. City of Seattle et al., 39 Wash. 376 [ 81 Pac. 847 ], The charter provisions of the city of Seattle and the city of Oakland are strikingly similar in important essentials. The plaintiff in the case last above cited was a driver employed in the street department of the city of Seattle in the classified civil service. He was removed by the city superintendent of streets for insubordination and neglect and refusal to perform his duty. The superintendent, filed with the Civil Service Commission a statement in writing giving his reasons for the removal, as required by the city charter. Within ten days thereafter the plaintiff demanded an investigation by the Civil Service Commission. Upon the conclusion of the investigation the commission certified its finding and decision to the appointing officer confirming his action in directing the removal. Action was brought against the city and the Civil Service Commission for a mandatory injunction to reinstate the plaintiff in his former office. Plaintiff had judgment in the court below and the cause was reversed on appeal, Hon

“In the absence of restraints imposed by the Constitution or by statute the power of appointment implies the power of removal, where no definite term is attached to the office or employment by law. (People v. Lathrop, 142 N. Y. 113 [ 36 N. E. 805 ]; Easson v. Seattle, 32 Wash. 405 [ 73 Pac. 496 ].)

“Again, where a statute or municipal charter provides that a municipal officer may be removed for cause, the proceedings for removal are judicial in their nature, and by the weight of authority subject to review in the courts by proper proceedings. Under which class do the provisions in question fall? Section 8, art. 24, of the charter of the city of Seattle, provides as follows: ‘Unless otherwise provided by law or this charter, each officer, board or department authorized to appoint any deputy, clerk, assistant or employee, shall have the right to remove any person so appointed.’ Section 12, art. 16, of the same charter provides as follows: ‘Every officer or employee in the classified civil service shall hold office until removed or retired. Any officer or employee in such service may be removed by the appointing power only upon the filing with the commission of a statement in writing of the reasons therefor. Any officer or employee so removed may within ten days after his removal demand an investigation. The commission shall forthwith make such investigation and its finding' and decision shall be certified to the.appointing officer, and if the removal is not sustained thereby, the officer or employee so removed shall at once be reinstated. . . . ’ Had the charter stopped with the requirement that the appointing power should file with the commission a statement in writing showing the reasons for removal, the charter would in all respects be analogous to section 108, Ballinger’s Ann. Codes & St., which provides that,

‘whenever the Governor is satisfied that any officer not liable to impeachment has been guilty of misconduct or malfeasance in office or is incompetent, he shall file with the Secretary of State a statement showing his reasons with his order of removal’; and in such cases we are satisfied that the courts are without jurisdiction to inquire into the question of removal, except possibly the legal sufficiency of the reasons assigned. (O’Dowd v. Boston, 149 Mass. 443 [ 21 N. E. 949 ].)

“The fact that another provision of the charter permits the officer or employee to demand an investigation at the hands of the civil service commission, and empowers the commission to reinstate him, does not, in our opinion, change the rule. In adopting the civil service system, for the purpose of securing and retaining in its employ competent servants, we are of opinion that the people of Seattle deemed it wise to impose no restrictions upon the power of removal, except a requirement that the reasons shall be stated in writing, and an investigation allowed by an impartial board of its own creation. In adopting a charter it was competent for the city to adopt the first rule above stated, which admits of a removal at pleasure and without cause, or the second, which only admits of a removal after a hearing and upon cause shown. In our opinion the city adopted a course midway between the two. It doubtless considered the requirement that the reasons for the removal should be stated in writing and made a matter of record a sufficient safeguard against improper removals, and an investigation by the civil service commission a sufficient protection to the discharged employee. "Whether such provisions are wise or unwise is not for the consideration of this court. Where the system extends to a large number of employees, the right of every discharged employee to resort to the courts would doubtless impair in a measure the usefulness and efficiency of the system itself. In any event, we do not think that the framers of the charter ever intended that the courts should be resorted to in such cases. When, therefore, the appointing power files with the civil service commission a statement in writing showing good and sufficient reasons for the removal, and after investigation the commission confirmed the action of the appointing power, the removal is complete and any

further appeal must be to public opinion. (Kimball v. Olmstead, 20 Wash. 629 [ 56 Pac. 377 ]; State ex rel. Gill v. Byrne, 31 Wash. 213 [ 71 Pac. 746 ].)”

What this court said in the case of Maxwell v. Civil Service Commission, 169 Cal. 336 , 339 [ 146 Pac. 871 ], involving the exercise of the powers and duties of the Civil Service Commission, may well be repeated: “Courts should let administrative boards and officers work out their problems with as little judicial interference as possible. They may decide a particular question wrong—but it is their question. Such boards are vested with a high discretion and its abuse must appear very clearly before the court will interfere.”

'The triers of the dismissed employee were citizens of the municipality which they were serving and specially selected with reference to their knowledge of and experience in municipal „ administrative affairs with which they were brought into close contact, and there appears to be no greater reason to question the justness or wisdom of their judgment in the matters committed into their hands than there would be reason to doubt the decision of a court in similar matters. Prom the standpoint of administrative efficiency the weight of the argument preponderates in favor of the exercise of the power of the removal of officials for cause by the methods provided by municipal authority and by the persons charged with such duty. The better authority is that “the power to remove officials for cause, while it is to be exercised in a judicial manner, is administrative, not judicial. It is a part of the power of a municipal corporation which is very useful, in fact almost necessary, for the efficient performance of the corporate duties.” The power of removal is not subject to all the rules governing courts in the transaction of business. (Butler v. Scholefield, Supervisor, etc., 54 Cal. App. 217 [ 201 Pac. 625 ], and a long list of cases therein cited.)

The petitioner in this case was removed after a full compliance with the existing regulations affecting the question of removal. In fact, it was upon his application that the appeal was heard and determined. The rule in such cases is strongly stated in Boyd v. Pendegast, supra, wherein it is said: “Whether for cause or without cause, where the removal of an officer is accomplished after full compliance with existing regulations affecting the matter, no ground is

Certain lines of authorities are cited to sustain the position that the evidence adduced upon the hearing before an inferior board or tribunal having limited ' jurisdiction may be brought up to the reviewing court upon certiorari for the sole purpose of determining whether or not from the evidence before it the finding of a jurisdictional fact by such inferior board or tribunal is sustainable, and if there be no evidence to sustain such decision it must be annulled. Thrasher v. Board of Medical Examiners, 44 Cal. App. 26 [ 185 Pac. 1006 ], Stumpf v. Board of Supervisors, 131 Cal. 364 [ 82 Am. St. Rep. 350 , 63 Pac. 663 ], and Englebretson v. Industrial Acc. Com., 170 Cal. 793 [ 151 Pac. 421 ], are fair representatives of the respective lines of authority relied upon. The first case had to do with an order of the state board of medical examiners revoking the license of the petitioner for unprofessional conduct under the Medical Practice Act. The district court of appeal annulled the order of the medical examiners revoking petitioner’s license to practice medicine. Hearsay evidence in the nature of a dying declaration, and without which the charges against petitioner had no support whatever in the evidence, was received by the medical board. Such evidence was held inadmissible upon such hearings upon the authority of Englebretson v. Industrial Acc. Com., supra. But it must be kept in mind that it is expressly provided by the Workmen’s Compensation Act (Stats. 1913, p. 279), section 67, and by the Public Utility Acts (Stats. 1911 (Ex. Sess.), p. 18; Stats. 1915, p. 115), and the “Corporate Securities Act” (Stats. 1917, p. 673), that the decisions rendered by any of the commissions therein created are subject to review. This being so, they cannot be regarded as authority in this ease. It is to

The determination of the question of the guilt or innocence of the petitioner was arrived at by the civil service board in the exercise of its jurisdiction, and however erroneous it may be it is not void for want of power to render the decision. The trial court reviews the action of the board as if it were a court of appeal instead of a court of review, and concluded that the board ought, under the evidence, to have annulled the order of the commissioner of health and safety. In other words, the effect of the action taken by the trial court is this: The civil service board had juris

Roberts v. Police Court, 185 Cal. 65 [ 195 Pac. 1053 ], seems to be conclusive against petitioner’s contention. The commissioner of public health and safety who heard and determined the question of petitioner’s removal, and the civil service board, to which an appeal was taken by petitioner, were each invested with jurisdiction to determine the matter submitted to them wrongfully upon the evidence presented as well as correctly. No question of jurisdictional facts is in the instant case. I think neither an excess nor lack of jurisdiction has been or can be pointed out. “On certiorari, as approvingly quoted in Matter of Hughes, 159 Cal. 360 [ 113 Pac. 684 ], ‘upon every question except the mere question of power, the action of the inferior tribunal is final and conclusive.’ In such a ease a claim of insufficiency of evidence to show guilt of the offense charged does not go to the jurisdiction.” (Roberts v. Police Court, supra.) I am unable to see how the instant case furnishes an exception to the general rule as pointed out in Roberts v. Police Court, supra.

The trial court held that there was absolutely no evidence to sustain either the order of the commissioner dismissing petitioner or to justify the civil service board’s order dismissing the appeal. I think it erred in both respects. The petitioner had been a patrolman for a period of nine years and upon his admission was familiar with the rules and regulations of the service. On January 18, 1922, he filed a request for a leave of absence for a period of six months, to run without pay. He gave as his reason for requesting such a long leave that he was not well and was under the care of a physician. The chief stated to him that the charter did not provide for a leave of absence for so long a period and advised him to apply for a leave on account of sickness,

There are apparent inconsistencies in the testimony of the commissioner and it touches upon some matters not referred

It is conceded that if the civil service board had found in favor of Garvin’s appeal the finding could not be disturbed on appeal on the ground of a total failure of evidence to support it. But such was not the finding of the commission.

That the chief, who had been friendly with Garvin, was acting in good faith and intended to and would have informed him of the dismissal of the order of suspension in the conference to follow, there is no room to doubt. But Garvin refused to confer or to have any conversation with the chief except upon his own terms. It is now contended that the chief should have told Garvin in advance the nature of the subjects upon which he wished to speak, and particularly he should have told him that he had been reinstated. The chief got in touch with him over the telephone on Monday, the day prior to the time fixed for the hearing, and made an appointment with him to come to headquarters at 9:30 o’clock the following morning. Garvin absolutely ignored the appointment. After several attempts the chief succeeded, through his stenographer, in getting Garvin on the telephone. The stenographer informed him that the chief wanted him to come to his office and Garvin replied that he would not come. The chief then took up the conversation and told Garvin he wanted to talk with him at the office and Garvin replied that if he wanted to talk with him to “talk to his attorney” and abruptly hung up the phone. After further effort the stenographer again succeeded in getting Garvin on the phone and said to him, “The chief wants to speak to you and don’t hang up on him again; give him a chance to talk to you. ’ ’ Garvin said: “All right.” The chief took the phone and said: “I told you a few minutes ago that I wanted to see you down to the office and talk with you and I want to know if you are coming in or are you not.” Garvin agreed to be at the office at 3 o’clock in the afternoon, at which time he appeared with an attorney. The chief stated to him that he wanted to see him alone. Garvin replied that he wanted his attorney to come in. 'The chief said, “You are still a

Petitioner attempts to justify his refusal to have any communication with the chief except in the presence of his attorney on the ground that he suspected that his answers to questions asked by the chief would be “distorted” to his prejudice. This constituted a serious impeachment of the chief’s integrity. It means that he believed that the chief would not hesitate to corruptly scheme to make a case against him. A lack of confidence on the part of an inferior officer in the integrity of his superior must necessarily affect efficiency. The request made by the chief to talk matters over with Garvin was a reasonable one. The refusal of Garvin to hold any communication with the chief officer except within the hearing of a third party is responsible for his failure to be informed that he had been reinstated. He was an experienced officer and knew his rights, and if the chief had attempted to draw him out on any matters that would have been improper or had a tendency to incriminate him he could and, doubtless would, have told him that he declined to go into that particular subject. That it was proper for the chief to have had an understanding with Garvin and to have discussed any matters, which might affect the efficiency or discipline of the police department, is scarcely a debatable question. Por obvious reasons, third

The testimony of the chief is that he sent for Garvin to tell him that he had been reinstated. The charge of violating the Prohibition Act was with him a closed issue. He also wanted to talk with him on matters, no doubt, relating to the good of the service. Petitioner by his conduct denied him the privilege of performing that duty. Upon the showing thus made the commissioner of public health and safety held that petitioner’s conduct was subversive of good order and the discipline of the department and dismissed him. The civil service board upon a hearing regularly had refused to disturb the order. Whether decided rightly or wrongly the question was one for the board to decide and not for us.

The rules that should be observed by courts when called upon to interfere with the order and business of executive or administrative boards is well stated in Maxwell v. Civil Service Board, 169 Cal. 336 [ 146 Pac. 869 ], Pratt v. Rosenthal, 181 Cal. 158 [ 183 Pac. 542 ], and Hackett v. Morse, 45 Cal. App. 788 [ 188 Pac. 308 ]. The object of the civil service system is to serve and promote the public welfare, not to intrench in office persons who for any reason do not fit into the plan or who will not submit to the orders of the executive heads.

If the administrative or executive powers which are reposed in municipalities by charter provisions are to be revised ad libitvmi by courts, civil service boards charged with the practical administration of such affairs must exercise extreme caution in discharging employees found by them to be incompetent or unfit to serve the public lest it involve itself in troublesome and expensive litigation commenced at the behest of dismissed employees.

I am of the opinion that the order of the lower court annulling the order dismissing petitioner from the service should be reversed.

I dissent.

I concur generally with the reasoning and conclusions of Mr. Justice Seawell except that I am not prepared to subscribe to the conclusion that under the language of the Oakland charter the decision of the civil service board is

Waste, J., concurred.

Rehearing denied.

Myers, C. J., Waste, J., and Seawell, J., dissent from the order denying the petition for rehearing.