Opinion
Rehearing Denied Sept. 21, 1928.
Hearing Granted by Supreme Court Oct. 18, 1928.
Appeal from Superior Court, Santa Clara County; F. B. Brown, Judge.
Certiorari proceeding by Andrew McCarron against C. B. Goodwin, as City Manager of the City of San Jose, to review an order of defendant removing plaintiff from the position of police officer. From a judgment dismissing the petition, plaintiff appeals. Affirmed. COUNSEL
Owen D. Richardson and William H. Johnson, both of San Jose, for appellant.
Archer Bowden, City Atty., of San Jose, for respondent.
OPINION
CASHIN, J.
Appellant was a police officer of the city of San Jose, from which position he was removed by an order made by respondent, who is the city manager of the municipality. A petition for a writ of certiorari to review the order was filed, and, after having been twice amended, a general demurrer thereto was sustained, without leave to amend further, and from a judgment dismissing the petition the appeal was taken.
The petition alleged that appellant ever since December 29, 1913, had been a patrolman; that on October 26, 1926, J. N. Black, the chief of police of the city, filed charges against him, a copy thereof, together with copies of a notice of hearing, the order of dismissal complained of, and a petition for rehearing with the order denying the same, being annexed to the petition. The charges, as shown by the exhibits, were in substance that an intoxicated automobile driver, who had been placed under arrest by two police officers of the city, was released from custody by petitioner and another officer, without filing a complaint against the offender or reporting the transaction to their superior officers. On November 2, 1926, a copy of the charges, with a notice fixing the time for a public hearing thereon, and stating that appellant would be entitled to the aid of counsel, was served. He appeared at the hearing, and at its conclusion the order of dismissal was made, this being followed by a petition for a rehearing, which was denied.
It is claimed that, neither under the provisions of the charter of the city nor by the proceedings had, as shown by the petition, did respondent have power to dismiss appellant, and that the court erred in sustaining the demurrer. The charter, which was approved by the Legislature of 1915 (Stats. 1915, p. 1869), provides that the city council shall appoint the city manager, city clerk, civil service commission, and city planning commission (section 53, art. 7), and by the same section that all other appointive officers shall be appointed and removed by the city manager. Section 57 provides that the city manager "shall appoint the following officers [naming them] and all other officers of the city, subject to the provisions of article 16 of this charter, except where this charter expressly provides otherwise," and, further:
"The city manager may remove any person appointed by him, provided that he must file with the council and the civil service commission a statement of the grounds of the removal and give to the person sought to be removed an opportunity to be heard in his own defense at a public hearing."
Article 16 of the charter prescribes the duties of the civil service commission, divides the civil service of the city into an unclassified and a classified service, and provides that "positions in the classified service shall be filled by the city manager" (section 105) from an eligible list of persons who have passed examinations in accordance with the regulations of the civil service commission. The same article (section 112) of the charter provides that the civil service commission, subject to the approval of the council, shall determine the penalties for the violation of the civil service provisions of the charter.
The position held by appellant, who was appointed thereto before the charter was adopted, was within the classified service as defined by the charter, which provided that:
"All persons in the employ of the city holding positions in the classified service, as established by this charter at the time it takes effect, shall, unless their positions be abolished, retain the same until discharged, reduced, promoted, or transferred in accordance with the terms of this charter." Section 108.
Appellant claims that the only penalty for neglect of duty which the city manager was authorized to inflict was such as the civil service commission might have determined, as provided by section 112, and that, none having been fixed by the commission, respondent, who proceeded under section 57 of the charter, was without the power of removal. It is also claimed that the latter section requires as a condition precedent to such removal that the grounds therefor be filed with the commission before the hearing, it not being alleged, however, that this was not done.
It will be sufficient to say that appellant was not charged with a violation of the civil service provisions of the charter, but with violations of duty as an appointive officer who, under sections 53 and 57, was expressly made subject to removal by the city manager in the manner provided by the last section. Furthermore, it is manifest from a reading of the section that the requirement that a statement of the ground of removal be filed with the council and commission does not refer to the method of removal, but provides for a subsequent notice and record of the fact with the reasons therefor. Bannerman v. Boyle, 160 Cal. 197, 116 P. 732. The proceedings before respondent are contained in the exhibits referred to above. The complaint filed by the chief of police, the substance of which has been stated, together with the notice, show a compliance with the charter requirements, were sufficient to authorize respondent to hear and determine the charges so made, and require no further discussion.
Appellant contends, however, that the allegations of the petition show that no evidence was adduced in support of the charges filed, the only evidence adduced being in support of other and different charges made at the hearing, and that the order of dismissal was based upon the latter charges and was for that reason void. The petition, after alleging the service of a copy of the charges and notice of hearing and appellant’s appearance thereat, avers:
That "thereupon said respondent purported to hear said purported charges, and assumed jurisdiction to hear the same and to admit and receive evidence against this petitioner upon other and entirely different charges than said purported charges, of which this petitioner did not have even a pretense of notice, to wit, upon oral, unwritten, unpreferred charges of drinking intoxicating liquors while on duty and in uniform in bootleg joints and on the streets; and petitioner avers that he never at any time herein mentioned had any opportunity to be heard in his own defense against said other or different or any of said charges before said respondent; " that on November 5, 1926, "respondent purported to give and make an order finding your petitioner guilty of said charges preferred in said written charges or said oral charges, a copy of which order is hereunto annexed; ***" and, further, "that no evidence was offered nor received by said respondent to substantiate or support the said finding or order by said respondent dismissing your petitioner. ***"
Due service of a copy of the charges, with notice of the time fixed for the hearing, being admitted in the petition, the power to dismiss petitioner did not depend upon proof to any degree of certainty of the truth of the charges. It was sufficient that evidence tending to their support be adduced; and to sustain an attack upon the order of dismissal it was necessary to allege a want of such evidence. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35. The petition contains no such allegation; its whole tenor being that in addition to evidence in support of the charges filed respondent received evidence of other acts, and, according to the application for rehearing, erred in finding petitioner "guilty of such and other acts." Nor does the last-quoted paragraph of the petition supply the omission or contradict the preceding paragraphs therein; this allegation in form and effect implying that such evidence was received, but alleging the same to be insufficient to support the finding or order. This was but the averment of a legal conclusion (Herbert v. Southern Pacific Co., 121 Cal. 229, 53 P. 651; Great Western Power Co. v. Pillsbury, supra), which tendered no issue and must be disregarded (Callahan v. Broderick, 124 Cal. 80, 56 P. 782).
The further allegation that petitioner was not afforded an opportunity to defend against any of the charges is also contradicted by the allegations above quoted and the fact, which the pleading admits, that he was present at the hearing. The averments of the petition are contradictory and their meaning obscure; and while the allegations of a pleading must be liberally construed with a view to substantial justice (Code Civ. Proc. § 452), those in the present case, taken as a whole, fail to show that no evidence tending to support the charges filed was presented.
Moreover, the exhibits attached thereto, which contain the record of the proceedings before respondent, affirmatively show a hearing on the original charges and that the order of dismissal was based thereon. Whether such an order, resting alone upon additional charges preferred at the time of the hearing, might be sustained, it is unnecessary to determine, as it appears from the order, and is averred in the petition, that petitioner was found guilty upon all the charges. The finding upon those originally filed was sufficient to support the order of dismissal, and any error in entertaining those subsequently made is not subject to review in this proceeding. Paddon v. Superior Court, 65 Cal.App. 34, 223 P. 91.
We are satisfied that the petition failed to state facts sufficient to constitute a cause of action and that the demurrer was properly sustained.
The judgment is affirmed.
We concur: TYLER, P. J.; KNIGHT, J.