ZERAH H. LA PRADE, Respondent, v. DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES et al., Appellants, 27 Cal. 2d 47

CARTER, J. Petitioner Zerah La Prade was successful in the trial court in a proceeding in mandamus to compel his reinstatement as a civil service employee of the Department of Water and Power of the City of Los Angeles, hereinafter referred to as the department. Petitioner had attained civil service status as an employee in the department. On August 28, 1942, the department served upon petitioner and filed with the Board of Civil Service Commissioners of the city, hereinafter referred to as the board, a notice of discharge, pursuant to

section 112 of the Los Angeles City Charter. The grounds for the discharge consisted of an accusation that petitioner had published and caused to be published in The Civil Service Sentry, a publication of the Municipal Civil Service Association, distorted and misleading statements concerning the department which caused dissatisfaction and dissension among the employees. On the same day, in reply to the notice of discharge, petitioner delivered to the board a letter in which he “categorically” denied all of the charges and requested the right to appear personally before the board.

On September 1, 1942, he delivered another letter to the board, supplementing the letter of August 28th, demanding an investigation of the charges. On September 10, 1942, the board sent to petitioner a notice that' his “appeal from discharge” with report and recommendation for action of the manager of the board would be submitted at a meeting of the board on September 15, 1942. That time was postponed to September 16, 1942.

At that meeting, according to the findings of the trial court, “petitioner appeared and the matter of his discharge being called up, petitioner was asked by the Board if he wished to make a statement, to which he replied that on advice of counsel he would make no statement other than his denials in his two letters until an investigation was made as requested.

Thereupon the Board voted to. take the matter of discharge under advisement along with report of investigation then on file and next hereinafter set forth in substance.” It further appears that when the department’s representatives present at the meeting were asked what they had to offer, they stood mute. The report of the investigation by a representative of the board was filed with the board on September 1, 1942, but from all that appears in the record it was never introduced in evidence nor was a copy exhibited to petitioner at the meeting on September 16th.

The report was introduced in the court below and had attached to it a copy of the publication above-mentioned, and stated according to the court’s findings, that it “did not appear over Mr. La Prade’s name as alleged, and in which he (the investigator) recommended that the charges filed did not constitute a proper and sufficient cause for discharge and that the Board order restoration of petitioner to his position.” On September 18th, petitioner made written demand for reinstatement.

On September 22d, at a meeting of which petitioner had no notice, consideration of petitioner’s discharge “together with the report of investigation of September 1st, was taken up and, according to the minutes kept and recorded of such meeting, a motion was made, seconded and unanimously carried to sustain the discharge of petitioner by the Board of Water and Power Commissioners.” At a meeting of the board on September 25th the board added an amendment to their .minutes of September 22d and on September 28th sent to petitioner a notice that the matter of his discharge had been considered on September 22d and the discharge was sustained.

From the foregoing proceedings it is obvious that there was no evidence whatsoever introduced at any meeting of the board to substantiate the charges made against petitioner, unless it be said that the report of the investigator was introduced at the meeting on September 22d. But petitioner was not notified of or present at that meeting.

Assuming that the report was proper evidence (it should be said that it could not sustain the charges because it found that petitioner was not responsible for the publication), it was on file with the board before the meeting on September 16th, but it was not introduced in evidence at that time.

Petitioner was wholly justified in refusing to make any statement at the September 16th meeting inasmuch as the burden was on the department to establish cause for the discharge and until some showing had been made, petitioner was not required to proceed. (This proposition will be discussed later herein.) With the foregoing factual background we turn to' the law applicable thereto. The Los Angeles City Charter provides that no civil service employee may be discharged except for cause. (Los Angeles City Charter, § 112(a).) Under that provision the employee must be accorded a full and formal hearing. (Steen v.

Board of Civil Service Commrs., 26 Cal.2d 716 [160 P.2d 816].) If the board finds that the charges are not sustained it must so conclude. (Steen v. Board of Civil Service Commrs., supra.) In any proceeding of this character evidence must be adduced to sustain the charges. It is not incumbent on the employee to proceed. The burden does not rest upon him to refute the charges made. If no evidence is adduced sustaining the discharge the board must find that the discharge was not justified. (See Walker v. City of San Gabriel, 20 Cal.2d 879 [129 P.2d 349, 142 A.L.R. 1383]; Swars v.

Council of the City of Vallejo, 64 Cal.App.2d 858 [149 P.2d 397]; Abrams v. Daugherty, 60 Cal.App. 297 [212 P. 942]; Garvin v. Chambers, 195 Cal. 212 [232 P. 696]; Childress v. Peterson, 18 Cal.2d 636 [117 P.2d 336]; McDonough v. Goodcell, 13 Cal.2d 741 [91 P.2d 1035, 123 A.L.R. 1205]; Petersen v. Civil Service Board, 67 Cal.App. 70, 79 [227 P. 238].) Thus, it is said in Swars v.

Council of the City of Vallejo, supra, 864, where the issue was the removal of a civil service employee: “And if, as alleged by petitioner, there was no evidence adduced before that commission to support the charges against him, the commission lacked jurisdiction. . . . Furthermore, the burden was on respondents to show that the commission did have jurisdiction . . . and no presumptions can be indulged in favor of the orders of the commission as an inferior tribunal.” And in Walker v.

City of San Gabriel, supra, 881, where the council had revoked petitioner’s license: “It is well settled that a board commits an abuse of discretion when it revokes a license to conduct a legitimate business without competent evidence establishing just cause for revocation, and that hearsay evidence alone is insufficient to support the revocation of such a license. ’ ’ In the instant case no evidence of any kind was introduced before the board. The board must have, as before seen, and as indicated by its minutes, based its determination on the report of its investigator.

The question then arises, aside from the question of the sufficiency of that evidence, whether petitioner was accorded the hearing to which he was entitled. (See Steen v. Board of Civil Service Commrs., supra.) Administrative tribunals exercising quasi judicial powers which are required to make a determination after a hearing cannot act on their own information. Nothing may be treated as evidence which has not been introduced as such, inasmuch as a hearing requires that the party be apprised of the evidence against him in order that he may refute, test and explain it. (Interstate Commerce Com. v.

Louisville & Nashville R. R. Co., 227 U.S. 88 [33 S.Ct. 185, 57 L.Ed. 431]; Morgan v. United States, 298 U.S. 468 [56 S.Ct. 906, 80 L.Ed. 1288]; United States v. Abilene & So. Ry. Co., 265 U.S. 274 [44 S.Ct. 565, 68 L.Ed. 1016]; Baltimore & O. R. Co. v. United States (Chicago Junction Case), 264 U.S. 258 [44 S.Ct. 317, 68 L.Ed. 667]; Crowell v. Benson, 285 U.S. 22 [52 S.Ct. 285, 76 L.Ed. 598]; Carstens v. Pillsbury, 172 Cal. 572 [158 P. 218]; Cowell L. & C. Co. v. Industrial Acc. Com., 211 Cal. 154 [294 P. 703, 72 A.L.R. 1118]; Bandini Estate Co. v.

Los Angeles County, 28 Cal.App.2d 224 [82 P.2d 185]; Olive Proration etc. Com. v. Agricultural etc. Com., 17 Cal.2d 204, 210 [109 P.2d 918].) And the action of such a tribunal based upon the report of an investigator, assuming it is competent evidence (see Walker v. City of San Gabriel, supra), when forming the basis for the tribunal’s determination, is a denial of a hearing, unless it is introduced into evidence and the accused is given an opportunity to cross-examine the maker, thereof and refute it. (Ekern v.

McGovern, 154 Wis. 157 [142 N.W. 595, 46 L.R.A.N.S. 796]; see case cited supra.) For illustration it is said in Morgan v. United States, supra, 479: “Congress has required the Secretary to determine,'as a condition of his action, that the existing rates are or will be ‘unjust, unreasonable, or discriminatory’. If and when he so finds, he may ‘determine and prescribe’ what shall be the just and reasonable rate, or the maximum or minimum rate, thereafter to be charged. That duty is widely different from ordinary executive action. It is a duty which carries with it fundamental procedural requirements.

There must be a full hearing. There must be evidence adequate to support pertinent and necessary findings of fact. Nothing can be treated as evidence which is not introduced as such. United States v. Abilene & So. Ry. Co., supra. Facts and circumstances which ought to be considered must not be excluded. Facts and circumstances must not be considered which should not legally influence the conclusion. Findings based on the evidence must embrace the basic facts which are needed to sustain the order.” (Emphasis added.) Therefore, it must be concluded that in the instant case petitioner was denied a hearing.

The board’s determination was based, upon the report of their investigation which although on file with the board was not introduced in evidence at the September 16th meeting. If it was introduced at the September 22d meeting the result is the same inasmuch as petitioner was not present and had no notice of the meeting. (Olive Proration etc. Com. v. Agricultural etc. Com., 17 Cal.2d 204 [109 P.2d 918].) It has squarely been held that papers in the files of the administrative tribunal but not introduced into evidence may not be considered. (United States v. Abilene & So. Ry.

Co., supra.) There is, therefore, no escape from the conclusion that petitioner in the instant case was denied a hearing. The question remains, however, as to the proper disposition of the case. Where a local administrative tribunal exercises quasi judicial powers its action may be reviewed by either mandamus or certiorari. (Walker v. City of San Gabriel, supra; Brant v. Retirement Board of S. F., 57 Cal.App.2d 721 [135 P.2d 396]; Swars v. Council of the City of Vallejo, supra; Ware v.

Retirement Board, 65 Cal.App.2d 781 [151 P.2d 549].) And in such a review the chief issues are whether the person affected has been accorded a hearing, and, if so, whether there is any evidence to support its determination. (Walker v. City of San Gabriel, 20 Cal.2d 879 [129 P. 2d 349, 142 P.2d 1383]; Swars v. Council of the City of Vallejo, supra; cases cited, supra.) In the review proceedings the court should confine itself to the showing made before the administrative tribunal with regard to the sufficiency of the evidence. (See Swars v. City Council of the City of Vallejo, supra; Universal Cons. Oil Co. v.

Byram, 25 Cal.2d 353 [153 P.2d 746].) The board is vested with the power to make the determination of whether or not there is a basis for the discharge. (See Los Angeles Charter, § 112; Swars v. City Council of the City of Vallejo, supra; Ware v. Retirement Board, supra; Steen v. Board of Civil Service Commrs., supra; Universal Cons. Oil Co. v.

Byram, supra.) If a hearing has been denied or the evidence is insufficient to sustain the action of the board, and it is still possible for the board to hold a hearing or exercise its discretion, then the matter should be remanded to the board for further consideration rather than having a trial de novo in the superior court and requiring that court to exercise independent judgment on the facts which should be determined by the board. (Universal Cons. Oil Co. v. Byram, supra; Bila v. Young, 20 Cal. 2d 865 [129 P.2d 364]; Ware v.

Retirement Board, supra.) Hence, the judgment ordering reinstatement of petitioner should be modified by directing the board to accord petitioner a full and fair hearing, and it is so ordered. In view of the disposition which we have made of this case it becomes unnecessary for us to pass upon the question of the sufficiency of the charge against petitioner, and determine whether it is sufficient, if true, to constitute a basis for the discharge of petitioner from his position with the Department of Water and Power of the City of Los Angeles. Respondent to recover costs on this appeal. Gibson, C.

J., Traynor, J., and Schauer, J., concurred.