Opinion
Rehearing Denied Dec. 17, 1936.
Hearing Granted by Supreme Court Jan. 21, 1937.
Appeal from Superior Court, Santa Barbara County; A. Caminetti, Jr., Judge.
Action by Richard T. Proud and another for a writ of mandate against Merwyn S. McGregor and others, as the Board of Police and Fire Commissioners of the City of Santa Barbara. From a judgment for plaintiffs, defendants appeal.
Reversed.
COUNSEL
Maxwell Nichols, City Attorney, of Santa Barbara, for appellants.
Coleman E. Stewart, of Santa Barbara, for respondents.
OPINION
CRAIL, Presiding Justice.
The plaintiffs brought this action for a writ of mandate to compel the defendants to reinstate the plaintiffs as policemen in the police department of Santa Barbara. They were removed by the board of police commissioners on the ground that it was "for the improvement of the public service," without any charges filed against them and without any notice or hearing. The plaintiffs contend that their removal was not legal because their removal was not so preceded. The judgment went in favor of plaintiffs, directing the defendants to reinstate plaintiffs. From this judgment defendants appeal.
The city of Santa Barbara operates under a freeholders’ charter and the parts of the charter which bear on the issues of this case are as follows: "Section 95: Said Board (of Police and Fire Commissioners) shall have entire control and management of the police and fire departments in the City of Santa Barbara. * * *" "Section 71: The police department shall consist of such number of policemen as the council shall, from time to time, authorize by ordinance. They shall be appointed by the Board of Police and Fire Commissioners, and shall hold office during good behavior, unless removed for cause or for the improvement of the public service, except as hereinafter provided." Section 70 provides that the chief of police shall have power to suspend members of the police force for cause. "He shall have power to suspend, for cause, any member of the police force, but when such power is exercised, he shall report the cause in writing to the said board of police and fire commissioners who may remove or discipline the offending member except as hereinafter provided." The first paragraph of section 100 provides that in the event the chief of the police department shall suspend for cause any member of his department he shall report the cause in writing to the board and it further provides the procedure for notice and hearing and decision as to removal under such suspension. Other paragraphs of said section provide for reinstatement or restoration and, under certain circumstances, for forfeiture of all rights to participate in the benefits of pensions; and the last paragraph reads as follows: "The decision of said board upon all matters of suspension, discipline and dismissal shall be final."
The question of bad faith, if any, on the part of the defendants was not pleaded or presented in the trial court and such question is not in the case.
The sole question for determination on appeal is whether the charter of the city of Santa Barbara requires the Board of Police Commissioners in removing a member of the police department "for the improvement of the public service" to give such person notice of charges and a hearing thereon prior to removal on such ground. The contention of the defendants is that no such notice and hearing is necessary. The contention of the plaintiffs is that proceedings for removal must be initiated by written charges filed by the chief of police, together with a suspension, notice and hearing; that the word "except" in the latter part of section 71, which reads as follows: "And shall hold office during good behavior, unless removed for cause or for the improvement of the public service, except as hereinafter provided," should be omitted and that said phrase should be interpreted as though it read as follows: "And shall hold office during good behavior, unless removed for cause or for the improvement of the public service, * * * as hereinafter provided." They further contend that the words "for cause" are inclusive of the words "for the improvement of the public service," and that the framers of the charter intended to designate the chief of police as the only person to initiate proceedings to remove an officer and to constitute the board a reviewing board even on the ground "for the improvement of the public service."
It is clear that where, as here, the charter of a city makes the decision of the board of police commissioners on matters of removal final, the court cannot review the decision of the board for the purpose of determining the truth or falsity of the reason for removal. By the very terms of the charter the decision is placed beyond the reach of any review by the courts as to such matters. The court is limited to inquiring whether the required procedure was followed in making the removal. Boyd v. Pendegast, 57 Cal.App. 504, 207 P. 713; Brown v. Board of Police Commissioners, 2 Cal.App.(2d) 245, 251, 37 P.2d 737.
In construing the various sections of the city charter of Santa Barbara certain rules should be kept in mind. Section 1858 of the Code of Civil Procedure provides a general rule of construction. "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." In the light of this section we must reject the contention that the word "except" should be omitted from section 71 of the Charter. Indeed, to omit it would be similar to construing "no" as meaning "yes", or calling black, white. Likewise, we must reject the contention that the words "for the improvement of the public service" are swallowed by and included in the phrase "for cause." Some effect must be given to the phrase "for the improvement of the public service."
The power to remove is an incident of the power to appoint, as a general proposition, and is made expressly so by the Constitution. (Const., art. 20, § 16.) "A law which provides that an officer may be removed in a certain way, or for a certain cause, does not restrain or limit the power of removal to the cause or manner so indicated. * * * The only way in which this power of removal can be limited is by first fixing the duration of time of office, and then providing the mode, if deemed necessary, by which the officer may be removed during the term." Sponogle v. Curnow, 136 Cal. 580, 69 P. 255, 256, and cases cited. In the case of Nightingale v. Williams, 70 Cal.App. 424, 430, 233 P. 807, 809, the court calls attention to the fact that this power of removal has been generally limited under charters and civil service laws, and adds: "Where such laws place restrictions upon the power of suspension or removal, the authority of the superior is to that extent curtailed; but it is not necessary that he should do more than the law limiting his authority requires." See, also, Hayes v. Long Beach, 105 Cal.App. 94, 287 P. 136. It is not necessary for defendants, in order to maintain their contention, to find in the charter any express provision conferring upon defendants the power of dismissal; and in dismissing an officer "for the improvement of the public service" it is not necessary for the defendants to do more than the charter requires nor to follow any certain procedure unless the charter prescribes such procedure. In the instant case the charter prescribes that the board of police commissioners shall have entire control and management of the police department. It provides a certain procedure for the suspension and removal "for cause," but it does not prescribe any procedure with regard to removal "for the improvement of the public service" and makes no exception limiting the board’s powers with regard thereto.
Other sections of the charter using the phrase "for the improvement of the public service" show an intention on the part of the freeholders to give to the board with regard to such ground for removal discretionary powers. For illustration: The commission is authorized under section 77 to demote the chief of police if they believe it to be for the improvement of the public service; and in section 95 the phrase is used, "but such person may be demoted if in the opinion of the commissioners such action be for the good of the public service."
Furthermore, reason and common sense sustain the defendants’ contention that no charges, notice, and hearing are required when removal is "for the improvement of the public service." If charges were required, what would the plaintiffs be charged with? There might be numerous reasons why the removal of plaintiffs would be "for the improvement of the public service," none of which could be stated as a charge against the plaintiffs. The situation in this regard is obviously different where the ground of removal is "for cause" and where the ground is "for the improvement of the public service."
Our conclusion is that the board of police commissioners was acting within the scope of its powers in removing the plaintiffs without notice or hearing, and that the judgment ought to be reversed.
Judgment reversed.
I concur: WOOD, J.