Opinion
Hearing Granted by Supreme Court July 26, 1928.
Appeal from Superior Court, Los Angeles County; Hartley Shaw, Judge.
Action by William A. Shannon for a writ of mandamus to the City of Los Angeles and another. Judgment for defendants, and plaintiff appeals. Affirmed.
COUNSEL
G. F. Boreman and Anthony Jurich, both of Los Angeles, for appellant.
Jess E. Stephens and Herman Mohr, both of Los Angeles, for respondents.
OPINION
WOOD, Justice pro tem.
Plaintiff filed a petition for a writ of mandamus to compel defendants to permit him to resume his position as a civil service employee in the department of building and safety of the city of Los Angeles and to enter upon the discharge of his duties, to replace his name upon the pay roll of the city, and to allow and pay his salary during the period he was prevented from discharging his duties. Demurrers were filed by defendants and sustained by the court. Plaintiff declined to amend, and a judgment was entered against him, from which he prosecutes this appeal.
In the petition it is set forth that plaintiff was employed in the classified civil service of the city of Los Angeles as a general clerk in the electrical division of the department of building and safety, at a salary of $140 per month; that on February 8, 1926, he appeared for duty, but was prevented by defendant Backus, the head of the department, from performing his duties and was orally informed that he was discharged; that his name was removed from the pay roll of the city and his salary since that date has not been paid; that on February 13, 1926, defendant Backus presented to the board of civil service commissioners a notice to the effect that plaintiff was discharged for cause. Below the signature of Mr. Backus on the notice appears the following:
"I hereby certify that a copy of the foregoing statement was mailed to last known address of W. A. Shannon on 13th day of February, 1926, at 11 o’clock a. m. [Signature] C. E. Gartman."
It is further alleged in the petition that the only place of residence of plaintiff was at a certain address on South Hill street, and that this address was shown on the records of the department where plaintiff was employed; that plaintiff was at this address daily and could have been found by the exercise of reasonable diligence on the part of any one seeking to serve a notice upon him; that no copy of the statement was served upon plaintiff personally or by leaving it at his said residence; that a copy of the statement referred to in the certificate was mailed by defendant Backus, "addressed to plaintiff at 307½ West Second street, Los Angeles, Cal."
The charter of the city of Los Angeles contains the following provisions:
"Any board or officer having the power of appointment of officers, members and employees in any department of the government of the city, shall have the power to remove, discharge or suspend any officer, member or employee of such department; but no person in the classified civil service of the city, other than an unskilled laborer employed by the day, shall be removed, discharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such removal, discharge or suspension, and filed with the board of civil service commissioners, with certification that a copy of such statement has been served upon the person so removed, discharged or suspended, personally, or by leaving a copy thereof at his last known place of residence if he cannot be found. Upon such filing, such removal, discharge or suspension shall take effect. Within fifteen days after such statement shall have been filed the said board, upon its own motion, may, or upon written application of the person so removed, discharged or suspended, filed with said board within five days after service upon him of such statement, shall proceed to investigate the grounds for such removal, discharge or suspension. If after such investigation said board finds, in writing, that the grounds stated for such removal, discharge or suspension were insufficient or were not sustained, and also finds in writing that the person removed, discharged or suspended is a fit and suitable person to fill the position from which he was removed, discharged or suspended, said board shall order said person so removed, discharged or suspended to be reinstated or restored to duty."
Plaintiff contends that he was not legally discharged from his position for the reason that he was not served with a copy of the statement filed with the civil service commission as provided by the city charter. Defendants contend that plaintiff had actual notice of the discharge and of the filing of the statement, and argue that actual notice is equivalent to the notice specifically required by the charter. There is much discussion in the briefs filed by counsel concerning these contentions. Under the view we take of the case, however, the judgment must be affirmed for the reason that the charter gave to plaintiff a remedy of which he had not availed himself. Although the charter provisions above quoted are not so worded as to bring about entire clarity, it is nevertheless apparent that it was the intention of the authors of the charter to provide a method whereby a discharged employee in the classified service could obtain a hearing before the commissioners upon his demand after notice to him of his discharge. The commissioners are given the right, at their option, to conduct an investigation concerning the discharge, but it becomes their duty to conduct such examination if a demand therefor be made by the employee. A period of five days is allowed the employee within which to make the demand, but this period does not begin to run until he has notice of the filing of the statement by the head of the department. No time limit is specified for the completion of the investigation. When he learned of the filing of the statement by Mr. Backus, plaintiff should have filed with the commission, if he so desired, a written application for an investigation of the grounds of his discharge. The date on which he received information concerning the filing of the statement does not appear from the allegations contained in the petition. Manifestly he must have had this information at some time prior to the commencement of the action. It is well established that plaintiff cannot succeed in an action in which he seeks a writ of mandamus unless he can show by his petition that he has no plain, speedy, and adequate remedy in the ordinary course of law. The course was open to plaintiff to obtain any redress to which he may have been entitled by application to the civil service commissioners within five days from the day on which he had actual knowledge of the filing of the statement.
The judgment is affirmed.
We concur: CONREY, P. J.; YORK, J.