Nichols v. Sunderland

The petitioner was a police officer of the city of Fresno. On or about the seventh day of November, 1925, the petitioner, together with eleven other police officers of the city of Fresno, was indicted by the federal grand jury, charged with the crime of conspiracy to violate the National Prohibition Act. On November 9, 1925, the respondent A. E. Sunderland, Commissioner of Public Welfare and head of the police department, delivered to the petitioner a writing in words and figures as follows, to wit:

‘‘ Civil Service Board, City of Fresno, California.

“Dismissal.

“Date November 9, 1925, 11:00 a. m.

“Mr. E. A. Nichols,

“Detective Sergeant,

“2659 White Ave.,

“Fresno, Calif.

“For the reasons stated below, you are hereby dismissed from the position of Detective Sergeant in the Department of Police, effective immediately. Reasons for dismissal: Having been indictee! by the Federal Grand Jury, charging

you with a felony, to-wit: Conspiracy to Violate the National Prohibition Enforcement Act, therefore, for the good of the service, and, in harmony with the Civil Service Rules, you are hereby dismissed as an employee of the Fresno Police Department, effective immediately.

“You will please deliver to the officer in charge at Police Headquarters, of the City of Fresno, all property of the said City now in your possession, and oblige.

“A. E. Sunderland, “Head of Department.

“Note: Any person dismissed from the service may file a written answer and demand a hearing before the Civil Service Board, providing such answer or demand is filed with the Board within five (5) days after the serving of the notice of such dismissal. See Rule XI, Ord. 972.”

Since that date the petitioner has not been recognized by said respondent nor assigned to any duty whatsoever. Thereafter, on the .twelfth day of November, 1925, the petitioner served on said respondent a written answer demanding a hearing and thereupon both writings were delivered to the Civil Service Commission of Fresno. The matter was set for hearing and before the day appointed for the hearing the petitioner requested in writing that the matter be continued indefinitely by the Civil Service Board. The request was granted. After petitioner’s trial in the federal court was concluded about February 1, 1926, said respondent filed and served on the petitioner a writing in words and figures as follows:

“Civil Service Board, City of Fresno, California.

“Amended Notice of Dismissal.

“Date February 1, 1926.

“Mr. E. A. Nichols, r

“Detective Sergeant.

“2659 White Ave.

“Fresno, Calif.

“You are hereby notified that the notice of your dismissal as a member of the Police Department of the City of Fresno, effective November 9tli, 1925, a copy of which has been heretofore furnished you, is hereby amended to read as follows:

“Having been indicted by the Federal Grand Jury, charging you with a felony, to-wit: Conspiracy to violate

the National Prohibition Act, and in addition thereto, during the last two years, you as a Police Officer of the City of Fresno, have performed your duties in an incompetent and inefficient manner, and in addition thereto, you have. accepted bribes and money from persons known to you at the time to be engaged in the business of selling intoxicating liquors unlawfully, all of which was and is a violation of your oath of office as such Police Officer of the City of Fresno.

“In harmony with the Civil Service rules, and to promote efficiency of the public service, you were dismissed as a member of the Police Department and as an employee of the City of Fresno.

“A. E. Sunderland,

“Head of Department.

“Note: Any person dismissed from the service may file a written answer and demand a hearing before the Civil Service Board, providing such answer or demand is filed with the Board within five (5) days after the serving of the notice of such dismissal. See Bule XI, Ord. 972.”

Within five days thereafter the petitioner filed an answer thereto. The matter was set for hearing, but was continued for the reason that an action had been filed in the superior court of the county of Fresno by one Oliver P. Durr, who sought to permanently enjoin the Civil Service Commission from taking any further step or proceeding in the matter of hearing said charges, which charges were identical with those in the above-entitled action now under consideration, and pending the hearing of that action in the superior court the Civil Service Board was temporarily restrained from proceeding in the matter. Immediately after the termination of that action in the superior court the petitioner applied to this court for a writ of mandate directed to the respondent A. E. Sunderland as head of the police department of the city of Fresno and directed to William Glass as Commissioner of Finance of said city, requiring and directing respondents to cause to be paid to the petitioner his salary accruing subsequent to the ninth day of November, 1925. Both commissioners have appeared by filing demurrers and answers. As the respondent Glass is merely a formal party, in the interest of clarity we will

[1] The petitioner contends that the paper dated November 9, 1925, on its face purports to be an absolute dismissal; that the respondent, A. E. Sunderland, as Commissioner of Public Safety and Welfare, has no power under the charter of Fresno and the ordinances of said city to dismiss a police officer, and that said paper is a void act. The respondent replies that the paper was not a void act and he cites section 22 of article III of the charter of Fresno, Statutes of 1921, page 1821. That section, among other things, provides: “No officer or employee of the city may be removed except for reasons that will promote the efficiency of the public service; and after the lapse of the probationary period, except as in this charter otherwise provided, no officer or employee may be removed except for reasons given in writing by the appointing officer, and the person whose removal is sought shall be furnished with a copy of the reasons for his removal and of any charges preferred against him and be allowed a reasonable time for personally answering the same in writing, and in such answer may demand a hearing upon the charges. If such demand is made the appointing officer shall furnish the Civil Service Board with the complaint or charges and answer, and the Civil Service Board shall then fix a time and place for, and, according to such rules and regulations as it may adopt, shall conduct a hearing upon the charges and answer, and the party whose removal is sought shall attend such hearing and may be heard in person or by attorney and produce witnesses. The Civil Service Board . . . shall not be bound by the technical rules of evidence ando pleading, and upon said hearing the Civil Service Board may order the charges to be dismissed, in which case the officer or employee shall be restored to duty without prejudice, but if the charges are sustained, the officer or employee shall by virtue of said findings be removed unless the finding in either case is set aside by the city commission. There shall be no0 appeal from the judgment of the Civil Service Board as a matter of right on the part of . . . the officer or employee whose removal is sought but the city commission shall have power in its discretion to hear and determine appeals from the decisions of the Civil Service Board. . . . Pending the hear

“Section 1. Removals or Reductions, (a) Removals . . . of a person in the classified service shall be made only after such person has been presented with the reasons for such removal or reduction, specifically stated in writing, by the appointing officer, but such person has the right to answer and demand a hearing, as provided by these rules. A removal or reduction has the same effect as to compensation as in case of suspension. A statement of the reasons and the reply must be forthwith filed, as a public record, with the Board.

“(b) Nothing herein contained shall limit the power of any superior officer to suspend a subordinate for a reasonable period, not exceeding thirty days, pending hearing and decision. Every such suspension shall be without pay; provided, however, that the Board shall have authority to investigate every such suspension, and in case of its disapproval, it shall have power to restore pay to the employee so suspended.

“(c) Nothing herein contained shall limit the power of any appointing officer to suspend or dismiss a subordinate for any cause which will promote the efficiency of the service, and -within five days thereafter file with the Board written reasons for such action, containing the charges preferred and order of removal, if any, and forthwith serve the person whose removal is sought with a copy thereof, . . . Such appointing officer shall certify to the said service and immediately file the same with the Board. The person so served may personally in writing answer the charges preferred against him and file such answer with the Board, also affidavits in support thereof, if he so desires, and may demand a hearing on the charges, and a failure to so file an answer or demand a hearing on the charges within

said time shall be considered as a resignation of such person, in which case no" trial shall be required, except at the request of the officer making or seeking the removal, and then only at the discretion of the Board. The Board may reinstate any officer or employee so removed after proper hearing. . . .

“Sec. 3. Suspensions. Pending action for removal or for disciplinary reasons, an employee may be suspended for a period not to exceed thirty days, without pay, but the reasons for suspension shall forthwith be furnished in writing to the Civil Service Board. No employee in the classified service shall be suspended except for reasons which will promote the good of the service.

“Sec. 4. Procedure. Each hearing upon charges and answer shall be had as soon as practical after answer is filed. . . . and upon said hearing the Board may order the charges dismissed, in which ease the officer or employee shall be restored to duty without prejudice, but if the charges are sustained, the officer or employee shall by virtue of such findings be dismissed unless such findings be set aside by the City Commission.”

Thereupon respondent contends that the writing dated November 9, 1925, although it uses the word “dismissal,” does not use that word as a finality, but as a temporary deprivation of the petitioner from his office. There is force in the contention, otherwise the note appended at the end of the writing is given no force or effect, although that note advised the petitioner that he would be given a hearing as provided under rule XI if he filed an answer and demanded a hearing. Moreover, the petitioner so understood the paper. He promptly put in his answer and demanded a hearing. This act on his part finds no support in the charter and ordinance when a suspension or removal has become permanent—has ripened into an absolute dismissal. (Stadler v. Detroit, 13 Mich. 346 .) The petitioner urges in this connection that the ordinance is unreasonable as being broader than the provisions of the charter. The point cannot be sustained because we do not find any language in the ordinance which purports to justify an absolute dismissal of a civil service employee until such individual has first been served with reasons in writing and has been given an opportunity to answer, and until a hearing has

[2] It is further contended that the writing dated November 9, 1925, is insufficient because it does not specifically designate acts of malfeasance or nonfeasance, but it

A similar contention was made in People v. Common Council, [ 85 Hun, 603 ], 33 N. Y. Supp. 165 . At page 168 the court said: “The relator attacks the jurisdiction of the common council, in this: that he had not received the notice required by Statute, of 14 days, of the charges against him. This contention is not well founded, as the proof shows that he had the 14-days notice of the substance of the charges upon which he was ultimately convicted. The amendments of one or two of the charges, which occurred during the progress of the investigation, were but an amplification of the original charges, and made in his presence, and an adjournment of several days was taken by the common council to give him an oppor

[3] It thus appears that the decisions dealing with the subject of the removal of officers concede the power to allow amendments. Such power is further evidenced by the charter provision that “The Civil Service Board . . . shall not be bound by the technical rules of evidence and pleading.” When the amendment amplifies but does not change the cause of action the amended pleading relates back to the date when the original pleading was filed. (31 Cyc. 464; Barber v. Reynolds, 33 Cal. 497 , 501; Humphry v. Buena, Vista Water Co., 2 Cal. App. 540 , 542 [ 84 Pac. 296 ]; Claussen v. Chapin, 69 Mont. 205 [ 221 Pac. 1073 , 1075].) If a new cause of action is introduced by the amendment such new cause of action relates back to the date of filing the amendment. (Anderson v. Mayers, 50 Cal. 525 .) Prom the record before us in this collateral attack we are not informed, and we may not assume that the new matter is otherwise than an amplification of the paper dated November 9, 1925. In this connection the petitioner contends that the writing of November 9, 1925, was so defective that there was nothing to amend and that the right to amend implies that there is something to amend by. (31 Cyc. 362.) In answer to that contention it must be said that a most casual reading of the writing referred to shows that it was an attempt by the writer to execute the initiatory paper mentioned in section 22 of article III of the charter, which required that the superior officer should furnish to the person whose removal is sought “a copy of the reasons for his removal and of any charges preferred against him.” The doctrine that there must be something to amend by has never obtained in an unlimited degree in this state. Prom an early date the power of the courts to allow amendments has existed and the -limit to -such power was rested oh the principle that the amendment should be allowed if it did not change the entire gravamen of the pleading. (Baker v. Bartol, 6 Cal. 483 ; Nevada County & Sacramento Canal Co. v. Kidd, 28 Cal. 673 .) The statute does not contain any provisions to the effect that the powers of the Civil Service Board are more restricted than the powers of the courts under similar circumstances.

We are unable to hold that the papers purporting to state the reasons for removal, or charges, are void. It follows that the Civfi Service Board has not exceeded its jurisdiction. Having jurisdiction of the controversy all questions of fact are for the determination of that board. The state of Wisconsin has a statute that is very similar to the provisions quoted from the charter of the city of Fresno. That statute was before the supreme court of Wisconsin in the cases entitled State ex rel. Wagner v. Dahl, 140 Wis. 301 [ 122 N. W. 748 ], and the companion cases, State ex rel. Hayden v. Arnold, 151 Wis. 19 [ 138 N. W. 78 ], and State ex rel. Bannen v. Arnold, 151 Wis. 38 [ 138 N. W. 85 ]. In the Dahl case, at page 305, the court said: “In State ex rel. v. Houser, 122 Wis. 534 , [ 100 N. W. 964 ], the construction of section 35, St. 1898, was involved. In the event of two conventions of the same party being held, the Secretary of State was required to give preference in designation on the official ballot to the nominees certified by the state central committee. The statute did not provide for any review of the action of such committee in making its certification. The right of the court to review the decision of the committee was com-batted, and it was held that where a new right is created by statute and the statute provides a method by special tribunal for the enforcement or protection of such right, and makes no provision for a review of the decision of such tribunal, the remedy given is exclusive, provided the tribunal acts within its jurisdiction. Op. Justice Marshall, page 570 of 122 Wis. [ 100 N. W. 975 ], and of the present

[5] Finally, the petitioner asserts that he has been suspended more than thirty (30) days and that a suspension for more than thirty (30) days is prohibited by the provisions of Ordinance No. 972'. This contention rests on a confusion or intermingling of two separate provisions of the ordinance. It is provided that a subordinate may be disciplined by suspension. It is also provided that the superior may initiate removal proceedings and pending the hearing thereof before the Civil Service Board that the subordinate officer may be suspended. As a disciplinary measure the ordinance provides that a suspension may not be for a period exceeding thirty (30) days. As an ancillary measure in removal proceedings no limit is placed on the period of suspension. Whether the suspension is of the first class or the second class, the ordinance provides that the subordinate may, on demand, be given a speedy hearing and that the period of thirty (30) days will not necessarily be consumed in either case. Moreover, the facts above recited show that any delays which have occurred in the instant case were the delays caused or requested by the petitioner and not by his superior officers. Under very similar provisions contained in the New York charter the supreme court of that state made the same ruling. (Halpin v. City of New York, 54 Misc. Rep. 128 [ 105 N. Y. Supp. 520 ].)

For the reasons which we have recited we therefore hold that the writing signed by the respondent A.

Langdon, P. J., and Nourse, J., concurred.

A petition by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 28, 1926.