Linkous v. Sunderland

Plaintiff instituted this proceeding in man-' 'damus against defendant as Commissioner of Public Safety' and Welfare of the City of Fresno, seeking to be restored to the position formerly held by him in the police department of said city. Judgment was entered in plaintiff’s favor and defendant has appealed.

The record discloses the following facts: On November 9, 1925, appellant, as the head of the police department of said city, served written notices on respondent and other police officers of said city, including one Nichols, advising them that they were dismissed from said department upon the ground that they had been indicted by the federal grand jury for “felony, to-wit: Conspiracy to violate the National Prohibition Enforcement Act.” Availing themselves of the benefits of certain civil service provisions of the city charter, the officers mentioned answered the charges contained in the orders of dismissal and demanded a hearing before the Civil Service Commission. The latter appointed November 27, 1925, as the time for said hearing, but prior thereto respondent and Nichols, being represented by the same counsel, joined in a written request to said board asking that the hearing of the charges against them be continued “until some date subsequent to the trial” on the federal indictment, which request was granted. The trial in the federal court began on November 30, 1925, and ended in the acquittal of respondent and Nichols on January 28, 1926. On the day following they demanded reinstatement in said department. Thereafter and on February 1, 1926, they were

Section 22 of article III of the charter, relating to the removal and suspension of officers and employees of said city, provides in part that if the charges made against the officer or employee are answered and demand is made for a hearing before the Civil Service Commission “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 answers . . . and upon said hearing . . . may order the charges 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 . . . Pending the hearing of any charges, whether before the civil service board or the city commission, the officer seeking to make the removal may suspend the officer or employee whose removal is sought, such suspension to be without pay, unless the charges are dismissed.” These charter provisions are supplemented by a code of rules, established by a city ordinance (No. 972), which govern the Civil Service Commission in the exercise of its powers, and rule XI thereof deals with “removals, reductions, resignations, suspensions, and procedure,” being divided into four sections, and section 1 containing three subdivisions. Section 3 thereof reads as follows: “Pending action for removal or for disciplinary reasons an employee may be suspended for a period not to exceed 30 days. ...”

Answering this contention, appellant relies upon the case of Nichols v. Sunderland, Commissioner of Public Safety, etc., 77 Cal. App. 627 [ 247 Pac. 614 ], claiming that the precise point urged by respondent here was raised and fully decided there. With reference to that case, it appears that pending the appeal herein, Nichols, who as before stated was represented by the counsel now appearing for respondent Linkous, made original application to division two of this court for and was granted an alternative writ of mandate requiring this appellant to show cause why Nichols should not be restored to the position formerly occupied by him in said department. As indicating that counsel for respondent herein at that time believed that the issues of law and fact involved in the Nichols case were the same as those involved here, appellant calls attention to that part of the petition in the Nichols case wherein it was alleged that the instant proceeding had been commenced and tried in the superior court; that judgment had been rendered directing the reinstatement of the officer, and that an appeal had been taken and was then pending; and as grounds for making the application for the writ to the appellate court in the first instance stated in the petition as follows: '* ... all the questions involved in that action (referring to the instant one) and all questions that are involved in any of the numerous other similar actions can be determined promptly by the appellate court in this proceeding and inasmuch as the decision of the appellate court will be accepted as final by all parties to this proceeding, and other similar proceedings, it is, the petitioners submit, a proper and salutary case for the exercise of the original jurisdiction fixed in the appellate court.”

On April 29, 1926, after a hearing on the merits, judgment in that proceeding was rendered in favor of the appellant herein, holding in effect with reference to the point at issue here that the provisions of said section 3' were not available to the petitioner therein, and that therefore he was not en

It would appear from the foregoing that the same provisions of the charter and of Ordinance No. 972 of said city upon which respondent endeavors to support the judgment herein were there considered and were construed adversely to respondent’s contentions herein. We are therefore of the opinion that we are concluded by such construction. With due propriety it may be added, however, in answer to the argument made herein by respondent as to the possible consequences of excluding cases of suspension where dismissal is ordered from the operation of the thirty-day limitation provision embodied in said section 3 of rule XI, that the courts may always be resorted to for an appropriate remedy to prevent prolonged or unwarranted delay on the part of a civil service board in bringing cases of dismissal to trial; and in this connection it may be stated that it appears from the briefs herein that the amended charges against respondent were in fact heard and sustained on May 12, 1926.

We find no material difference in the facts of the two cases relating to the cause for the delay in bringing the charges to a hearing which would justify a different conclusion in the determination of this appeal. In each case the postponement from November 27, 1925, until January 29, 1926, was granted at the request of the accused; and the second postponement, to February 17, 1926, was necessarily caused by the filing of the amended charges; but on that day respondent commenced this proceeding, not for the purpose of obtaining a trial before the civil service board, but to compel the commissioner who had ordered his removal to reinstate him upon the ground that as a result of said postponement his suspension had expired by operation of law. Even assuming that by any possible construction the provisions of said section 3 could be held to apply to cases of removal, there is nothing contained in the law of the municipality which would justify the establishment of a rule that failure of the civil service board to act upon an order of dismissal before the expiration of the period of sus

In view of the decision in Nichols v. Sunderland, etc., supra, and mainly upon the grounds stated therein, the judgment appealed from is reversed.

Tyler, P. J., and Cashin, J., concurred.