JAMES GARVIN, Respondent, v. J. F. CHAMBERS et al., Members of the Civil Service Board of the City of Oakland, Appellants, 195 Cal. 212

LENNON, J. This is an appeal by the defendant, the civil service board of the city of Oakland, from a judgment of the superior court, in and for the county of Alameda, annulling upon certiorari an order of the defendant board finding the petitioner, a police officer, guilty of insubordination and sustaining an order of the commissioner of public health and safety dismissing him from the police department of the city of Oakland.

The charter of the city of Oakland provides that “All persons holding positions in the classified civil service shall be subject to suspension, fine and also to removal from office or employment, by the commissioner in whose department they are employed ... for misconduct, incompetency or failure to perform their duties under or observe the rules and regulations of the department or office; but subject to the appeal of the aggrieved party to the civil service board as herein provided. . . .

Any person suspended, fined or discharged . . . may within five days from the making by a commissioner ... of the order . . . discharging him, . . . appeal therefrom to the civil service board, which shall fully hear and determine the matter. The accused shall be entitled to appear personally, and to have counsel and a public hearing.

The finding and decision of the board shall be certified to the official from whose order the appeal is taken, and shall forthwith be enforced and followed by him.” (Secs. 81 and 82, Charter of the City of Oakland, Stats. 1911, pp. 1605, 1606.) In keeping with these provisions of the charter, Frank Colburn, commissioner of public health and safety of the city of Oakland, made to the defendant board the following report, dated April 4, 1922: “Garvin, James A.; . . . Patrolman, O. P. D.; discharged for violation of Sec. 81 of City Charter, to wit: willful disobedience of orders; also for violation of

Section 348 of the Rules & Regulations of Police Dept., to-wit: conduct subversive of good order and the discipline of the Dept. ’ ’ The city charter of Oakland does not provide in terms for the filing of a formal complaint against a member of the police department for any dereliction of duty but, obviously, it was the intent of the charter to provide and permit that the original order of discharge, such as was made in the instant case, would suffice in lieu of a formal complaint filed with the civil service board and that the hearing of the appeal before that board would be in the nature of a trial based upon the order of discharge.

The proceedings provided for before the defendant civil service board upon an appeal from an order of discharge clearly are not ministerial and undoubtedly are quasi judicial in character. This is .indicated by that provision of

section 82 of the charter which directs that the civil service board shall “fully hear and determine the matter.” That the proceedings before the board were intended to be in the nature of an original trial, with the order of discharge as a complaint, is sufficiently indicated by that provision of the charter

section which provides that “the accused shall be entitled to appear personally and to have counsel and a public hearing.” And that the determination of the board is in the nature of an original and final judgment is indicated by that provision of the same

section of the charter which requires that the board shall make its “finding and decision” and certify the same to the official who made the order in the first instance. Within the time provided by the charter, the petitioner, Garvin, appealed to the defendant civil service board of the city of Oakland from the said order discharging him from the position of ■ patrolman in the police department. On April 18, 1922, the matter came on for hearing before the civil service board.

Witnesses were sworn on behalf of the commissioner of public health and safety, the official who had made the charge against Garvin, and upon that hearing Garvin was sworn and testified as a witness in his own behalf. Whereupon, so the return shows, “The board, after hearing the testimony and arguments in the ease, finds as follows: That the appellant, James A.

Garvin, is guilty of (1) willful disobedience of orders; (2) conduct subversive of good order and discipline of the department; as charged by the Commissioner of Public Health and Safety.” The board thereupon made an order denying the appeal and directing that its finding and decision be certified to the commissioner of public health and safety.

The evidence taken upon the hearing of the appeal before the board reveals, as appears from the record returned to the court below in response to the writ, the following facts: At the time of Garvin’s dismissal he had been a patrolman of the Oakland police department for over nine years.

Shortly prior to his dismissal from the force he was accused of violating the National Prohibition Act and thereupon was by Frank Colburn, commissioner of public health and safety, “indefinitely suspended without pay, from position as Patrolman, pending investigation for misconduct, viz.: For alleged violation of the National Prohibition Act. ’' From that order of suspension Garvin appealed to the civil service board and a hearing on the order of suspension was set for April 4, 1922, at 8 P. M. Garvin had retained an attorney to represent him upon that appeal before the defendant board.

Late in the afternoon of April 3, 1922, while the order of suspension was still in force and while the appeal therefrom was still pending, Garvin was called to the phone by a Mr. Tracy, assistant police inspector, acting under the direction of the chief of police, who requested Garvin to come to the office of the chief of police on the following morning.

Garvin at that time promised to call upon the chief as requested, but his attorney, who was engaged in other matters and unable to go with him, advised Garvin that while he was suspended and until he had been reinstated he should have no conversation with anybody in the police department with reference to the matter upon which he had been suspended unless he (the attorney) was also present. About noon of April 4th, Garvin was again called to the phone by a Mr. Meegan, senior stenographer for the chief of police, and requested to call at the chief’s office. Garvin refused.

Whereupon the chief of police in person talked to him over the phone and was told by Garvin in substance that he would not talk with him concerning the suspension unless his lawyer was present. Shortly thereafter the chief of police got Garvin on the phone again and Garvin promised to call on the chief about 3 o’clock, at which hour he appeared with his attorney at the office of the chief. When Garvin called at the office with his attorney he was told by Mr.

Meegan, the official stenographer, who was ready with his note-book and pencil in hand to take down the conversation between the chief and Garvin, that the chief desired to see him alone. Garvin said that he wanted his attorney to come in with him. The chief overheard Garvin, the door being open between the anteroom and the chief’s private office, and said, as Garvin stepped into the private office, “You are still a member of the department until you are discharged, are you not?” to which Garvin replied, “Yes, but I want my attorney to come and hear what is being said,” or words to that effect.

The chief demanded of Garvin, “Are you taking orders from me as chief of police or from your attorney?” and Garvin replied, “I am taking my own orders right now.” The chief thereupon peremptorily demanded of Garvin whether he was or was not coming in. Garvin replied, “I am coming in if my attorney is coming in, and if he is not coming in, I am not coming in.” Thereupon he and his attorney left the room. It is to be noted that the record shows “there was no boisterousness about Mr.

Garvin’s conduct on that occasion,” and that he did not “talk in a loud or unusual voice.” There was “no disturbance.” Prior to April 4, 1922, on which day Garvin’s appeal from the order of suspension was to be heard, the charge made against him of violating the National Prohibition Act was dismissed by the federal authorities. The chief of police and the commissioner of public health and safety having knowledge of this fact had a conference prior to the chief’s calling Garvin on the phone concerning the propriety of removing Garvin’s suspension and restoring him to duty in the department.

The result of that conference, so Commissioner Colburn testified at the hearing before the civil service board, was that if “Garvin could not satisfy the Chief, then whether or not he would be restored would be something that would be taken up again, ’ ’ and Commissioner Colburn “gave the Chief to understand that he [Garvin] would be reinstated providing . . .

Garvin could satisfactorily explain his relationship regarding the charge.” Commissioner Colburn further testified at the hearing before the civil service board that “if the Chief was not satisfied all around” the commissioner believed that he would have weighed that circumstance against Garvin and “then possibly discharged him.” The commissioner would not, if the chief were not satisfied, have proceeded with the hearing of the charge upon which the suspension had been based, but “would have gone further than that . . . would have proceeded with the kind of a hearing” that was being had by the civil service board.

Garvin, at the time he was called to the phone and at the time he called at the chief’s office, was not informed by the chief or anyone else that the question of lifting his suspension was under consideration nor has he ever since then been officially notified that the suspension had been lifted and that he had been restored to duty in the department.

The chief of police immediately upon Garvin’s leaving the office made a report, based upon the notes taken by his shorthand reporter, to Colburn, commissioner of public health and safety, “recommending the dismissal of officer Garvin for disobedience of orders, that is a violation of

section 81 of the city charter and also for violation of rule 348, a portion of it, conduct unbecoming—conduct adverse to good order and discipline of the department.” Shortly thereafter, and prior to the time set for the hearing by the civil service board of the order of suspension, an order was made and signed by the commissioner of public health and safety revoking the order for Garvin’s suspension and restoring him to his position as patrolman in the police department and, simultaneously, another order, the one in question here, was made and signed by Colburn, dismissing Garvin from the service of the department.

Save for minor and inconsequential details the foregoing is, in substance, a statement of all the testimony which was taken upon the hearing before the civil service board.

The crux of the contention made by the defendant board in opposition to the writ is that the function of a writ of certiorari is limited solely to a determination of the question of whether or not the board or tribunal whose action i's sought to be annulled had jurisdiction of the subject matter and that, therefore, the scope of the inquiry upon certiorari is limited to a determination of whether or not the subject matter of the appeal was within the jurisdiction of the board.

In this behalf it is argued by defendant board that, even though there be an entire absence of any evidence to support the finding and decision of the inferior tribunal, the determination of the tribunal is only an erroneous decision “within the jurisdiction of the tribunal” and cannot be disturbed on certiorari. Petitioner, in support of the writ, contends that where the decision of an inferior qwm'-judieial board or tribunal of limited jurisdiction rests upon no evidence at all, such decision may be properly reviewed and annulled on certiorari.

It is the petitioner’s contention in the instant case that there was no evidence introduced before the board in support of its order discharging him from the department. There can be no doubt but that the writ of certiorari, where the right of appeal is not given, tries only the jurisdiction of an inferior board or tribunal exercising judicial functions. (Sec. 1074, Code Civ. Proc.) The general rule that the evidence will not be reviewed on certiorai-i is not applicable to the instant ease. The general rule and the exception thereto are pointed out in Roberts v.

Police Court, 185 Cal. 65 [195 Pac. 1053], and the instant case comes, we think, under the exception to the general rule. The defendant board in the instant case is an inferior board or tribunal of limited jurisdiction exercising judicial functions. Its jurisdiction is limited to the determination of those questions which it is authorized to decide under the provisions of the charter of the city of Oakland. In other words, it has jurisdiction to proceed only when facts appear in a proceeding before it which show that it has jurisdiction.

Where there is a conflict in the evidence or where the decision of such inferior board or tribunal of limited jurisdiction is supported by some evidence the decision of such board or tribunal cannot be reviewed on certiorari.

But when the board or tribunal in question has power to act only upon the establishment of a certain set of facts which necessarily form the foundation of jurisdiction and, therefore, may be denominated jurisdictional facts and there is no evidence whatever to show the existence of such facts, a finding by such board or tribunal that those facts do exist cannot foreclose inquiry by a court of competent jurisdiction, upon certiorari, as to whether or not the order sought to be reviewed is without any evidence to support it or is absolutely contrary to the uncontradicted and unconflieting evidence upon which it purports to rest.

It is a fair

summary of the decisions of this state, dealing with the scope of statutory certiorari, to say that the evidence adduced upon the hearing before an inferior board or tribunal having limited jurisdiction may be brought up to the reviewing court upon certiorari for the sole purpose of determining whether or not, from the evidence before it, the finding of a jurisdictional fact by such inferior board or tribunal is sustainable, and if there be no evidence to sustain such decision it must be annulled. (Thrasher v. Board of Medical Examiners, 44 Cal. App. 26 [185 Pac. 1006]; Bryant v. Board of Supervisors, 32 Cal.

App. 495 [163 Pac. 341]; Stumpf v. Board of Supervisors, 131 Cal. 364 [82 Am. St. Rep. 350, 63 Pac. 663] ; Borchard v. Board of Supervisors, 144 Cal. 10 [77 Pac. 708]; Englebretson v. Industrial Acc. Com., 170 Cal. 793 [151 Pac. 421]; Great Western Power Co. v. Pillsbury, 170 Cal. 180 [149 Pac. 35].) The case of Boyd v. Pendegast, 57 Cal.

App. 504 [207 Pac. 713], is not inconsistent with anything here said concerning the right to review upon certiorari the question as to whether or not the findings of the defendant board, in the absence of a conflict in the evidence as to the existence of a jurisdictional fact, is contrary to the facts developed upon the hearing before the board.

The case cited had to deal with the provisions of the charter of the city of Los Angeles which provided, in substance, that where a police officer has been suspended by the chief of police the officer might, upon request, be accorded a hearing before the board of police commissioners, but that the manner in which the hearing should be conducted and the character of the evidence to be received rested solely within the discretion of the commission; and that when such a hearing has been had, then, by the express language of the charter, the “order of said board with respect to such suspension or removal shall be final and conclusive.” Evidently the charter of the city of Los Angeles contemplated no more than a mere

summary hearing and the court held that the charter provision making the findings of the police commissioner final and conclusive meant that “such findings must be accepted regardless of any defect or deficiency in the evidence” and that “when such a hearing has been had the decision, by the very terms of the charter, is placed beyond the reach of any review by the courts.” The situation presented here is decidedly different.

The charter of the city of Oakland contains no provision making the findings of the board final and conclusive, nor is there anything in the charter provisions which would indicate that the hearing which must be accorded to a suspended police officer is in the nature of a

summary proceeding. To the contrary, that charter provides that upon an appeal from a removal or suspension from office the defendant board “shall fully hear and determine the matter. The accused shall be entitled to appear personally and have counsel and a public hearing.” Obviously, the provisions of the Oakland charter contemplate and call for a full and a fair hearing, which is no more nor less than a trial upon the charge preferred against the accused officer, and there can be no doubt but that upon the hearing of the charge the defendant board is acting in a quasi-judicial capacity.

Jurisdiction of an offense is not marked and measured by a mere compliance with the procedure provided for the prosecution of the offense, but in addition consideration must be given to the question of whether or not the character of the offense charged comes within the category of offenses defined and denounced by the law, and the fact that the authority of the board had been invoked by the taking of the appeal would not deprive the petitioner of the right to attack the final action of the board as transcending its powers. (Long v. Superior Court, 102 Cal. 449 [36 Pac. 807] ; Smith v.

Westerfield, 88 Cal. 374 [26 Pac. 206] ; 7 Cal. Jur. 579; Green v.

Superior Court, 78 Cal. 556 [21 Pac. 307, 541].) The trial court in the instant ease found that “there was no evidence adduced before said civil service board showing or tending to show that the petitioner, James Garvin, had ever been guilty of willful disobedience of orders, or of any order, or showing or tending to show that the said James Garvin had ever been guilty of conduct subversive of good order and discipline of the department, and that the said civil service board, in denying the appeal of the said James Garvin from the said order discharging him and in sustaining the order of said commissioner of public health and safety, exceeded its jurisdiction and did not regularly pursue its authority.” The record returned for review in response to the writ we think fully supports the finding of the trial court.

The jurisdiction of the civil service board, as previously indicated, is special and limited by the charter of the city of Oakland to the determination of the correctness of the order of discharge of the petitioner. The power óf the board being special and limited, no legal presumptions or intendments may be indulged to uphold its order. (Petersen v. Civil Service Board, 67 Cal.

App. 70 [227 Pac. 238].) Facts must appear on the face of the record sufficient to sustain a finding that the petitioner was guilty as charged, otherwise the order of the defendant board sustaining the discharge was in excess of the power conferred upon the board, without the limits of its special jurisdiction and not in the regular pursuit of its authority as contemplated by sections 1068 and 1074 of the Code of Civil Procedure.

Under the charter of the city of Oakland police officers may not be discharged for no reason at all or for any reason except “misconduct, incompeteney or failure to perform their duties under or observe the rules and regulations of the department or office.” (Section 81 of the Charter of the City of Oakland, Stats. 1911, p. 1605.) The facts presented to the board upon appeal will not suffice as the basis for its order sustaining the discharge.

The charge made against the petitioner, Garvin, was tantamount to a charge of insubordination, which, under the provisions of the charter, was cognizable by the defendant board, and, under the doctrine of the authorities hereinbefore cited and discussed, was subject to review by certiorari to the extent of ascertaining whether or not the admitted facts which form the basis of the charge amounted to insubordination in contemplation of law, and therefore constituted a cause of removal.

The finding in effect of the defendant board that the petitioner, Garvin, was guilty of insubordination was plainly predicated upon Garvin’s refusal, while under an indefinite order of suspension, to be interrogated by the chief of police concerning his alleged complicity in a violation of the federal prohibition law.

It has been held, and, we think, correctly, that where a policeman has been discharged he is not thereafter a member of the police department and consequently could not, pending a revocation of the order of discharge, be held amenable to a charge of neglect of duty, and this was held to be so upon the theory that the discharge of the officer deprived him of his office and rendered him exempt from and ineligible for police duty. (People v. Board, 39 N. Y. 506.) In the case of Carey v. Plainfield, 53 N. J.

L. 311 [21 Atl. 492], it was held that suspension of a policeman from office for a specified term deprived him of his office, and that during the term for which he was suspended he did not hold the office, because such suspension was a discharge, 'pro tanto, from office. Insubordination can he rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed.

In the instant case, while the order of indefinite suspension was in force Garvin’s status as a policeman was suspended to the extent that he could not be called upon to do police duty nor be held amenable for a failure to do such duty. And that being so, it follows, for obviously greater reasons, that he could not be held amenable for a refusal to comply with a command which concerned not the performance of police duty, but which, under the undisputed evidence, clearly contemplated “putting him on the carpet” concerning the charge previously instituted against him and for which he was under suspension.

While it is true the evidence shows that it had been tentatively agreed between the chief and Commissioner Colburn that the order of suspension was to be revoked on the evening of the day that the chief called Garvin to the office, nevertheless, it is an admitted fact in the case that Garvin was in entire ignorance of this fact, and this, doubtless, was the reason for his refusal to be interviewed in the presence of a stenographer without the presence of his attorney.

It was but natural that Garvin should deal at arm’s-length with the chief, who, during the period of suspension, was acting not as Garvin’s superior officer but as his prosecutor. That it was the intention of the chief of police, when seeking an interview with Garvin, to institute an inquisitorial proceeding against him, in advance of and in lieu of the hearing which was to be had upon the appeal before the defendant board, is evidenced by the fact that Commissioner Col-bum “gave the chief to understand that he [Garvin] would be reinstated provided Mr.

Garvin could satisfactorily explain his relationship regarding the charge.” Even though it be conceded that a right to public office is not a vested property right, nevertheless state and municipal employees holding office under civil service rules and regulations are entitled as a matter of right to have such rules and regulations relative to their removal from office fairly invoked and applied.

If the hearing upon the appeal of Garvin could be summarily transferred from the defendant board to the chief of police, then indeed would it be an easy matter to circumvent the rules and regulations governing civil service by charging an officer with an offense and pending the hearing inveigle him into apparent disobedience of orders by demanding that he discuss the details of the case pending against him, and, upon his refusal to do so, discharge him for insubordination.

Garvin’s first appeal, which was from the order of suspension following the institution against him of the charge in the federal court, was a proceeding quasi criminal in its nature. It involved in a sense the right to office and put at stake Garvin’s good name as well. The safeguards which are ordinarily provided and invoked to protect reputation and rights in courts of justice should in substance be observed in proceedings of the character here under consideration. (People v. Elmendorf, 42 App. Div. 306 [59 N. Y.

Supp. 115].) We_think that the refusal of Garvin to be, in effect, a witness against himself cannot be held to be violation of the rules of the department nor of the charter provisions under, which the department is operating and consequently. could, not form a foundation of jurisdiction for the order of dismissal from the department.

Certiorari will, therefore, intervene to annul the order of discharge upon the distinct ground that the defendant board was without jurisdiction to adjudge Garvin’s conduct to be insubordination when it is plainly apparent, under all of the admitted facts, that such conduct did not and could not constitute insubordination in contemplation of law. (In re Shortridge, 99 Cal. 526 [37 Am. St. Rep. 78, 21 L. R. A. 755, 34 Pac. 227].) The judgment is affirmed without costs. Lawlor, J., Richards, J., and Shenk, J., concurred.