Aрpellants were formerly police officers in the City and County of San Francisco. Said appellants and other former police officers filed a petition in the superior court for a writ of review and a writ -of mandate. They sought thereby to obtain the annulment of the action of the Police Commission of said City and County in dismissing said officers and to compel said Commission to reinstаte them in their former positions. The writ of review was issued, a -return was made, and an answer was filed. No evidence was introduced in the proceedings in the trial court, and the cause was submitted upon the records of the *566 Police Commission as contained in the return. The trial court entered its judgment affirming the action of the Police Commission in dismissing said officers and denying the petition for a writ of mandate. Appellants, being four of the eleven original petitioners, have appealed from said judgment of the trial court.
This controversy is the aftermath of a certain grand jury investigation conducted in San Francisco in 1936. In their petition in the trial court, petitioners alleged that the purpose of said investigation was to ascertain “whether petitioners or any of them as mеmbers of said police department or otherwise had committed or now are committing any felony or other crime, and particularly whether petitioners or any of them had been or now are guilty of corruption or had received or now are receiving bribes or gratuities from any persons engaged in or connected with gambling, prostitution and other unlawful activities . . . and said grand jury . . . was further investigating the assets and income of each petitioner to determine whether the same was obtained by reason of the commission of any felony or other crime by each petitioner and particularly whether said assets and income were derived by each petitioner as the result or fruits of felonious or other criminal bribery, corruption, conspiracy to extort or receive from unlawful sources or from persons engaged in unlawful activities, particularly gambling and prostitution”.
It was further alleged that petitioners were subpoenaed to appear before said grand jury on various dates during said investigation and that, “Each of your petitioners did refuse to produce his said private records before said grand jury and did refuse to answеr questions before said grand jury concerning his assets and income and did refuse to testify concerning his acts and conduct when inquiry was made concerning the same for the purpose of discovering whether each petitioner had committed or was guilty of any of the acts or things, the discovery of which was the object of said grand jury investigation as aforesaid”.
Thereafter charges wеre filed against said petitioners before the Police Commission. In each ease the heading of the charges shows that the petitioner was charged with “Conduct unbecoming an Officer and Disobedience of Orders”. The specific facts alleged in each case involved the refusal of the officer to testify as above set forth. The hearings *567 were had before the pоlice commissioners, and the officers were dismissed.
Several incidental points are raised by appellants on this appeal, but the main question involved is whether appellants, while holding positions as police officers, could exercise the constitutional privilege of refusing to testify before the grand jury under the circumstances and still insist upon retaining their positions as pоlice officers. We are of the opinion that they could not, and we have reached this conclusion without resort to a consideration of the violation of the specific rule of the police department adopted in May, 1936, which rule will be hereinafter discussed.
The nature of the constitutional privilege to which reference has been made was discussed in two recent decisions of this court involving two of the officers who were petitioners in these proceedings in the trial court.
(In re
Lemon, 15 Cal. App. (2d) 82 [
The duties of police officers are many and varied. "(21 Cal. Jur. 400 et seq.) Such officers are the guardians of the peace and security of the community, and the efficiency of our wholé system, dеsigned for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of thosе who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community, *568 and it is a violation of said duties for any police officer to refuse to disclose pertinent facts within his knowledge even though such disclosure may show, or tend to show, that he himself has engaged in criminal activities.
We are not unmindful of the constitutional privilege above mentioned which may be exercised by all persons, including police officers, in any prоceeding, civil or criminal.
(In re Lemon, supra; In re Hoertkorn, supra,)
As we view the situation, when pertinent questions were propounded to appellants before the grand jury, the answers to which questions would tend to incriminate them, they were put to a choice which they voluntarily made. Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but it is certain that they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.
(McAuliffe
v.
Mayor of New Bedford,
A somewhat similar state of facts was involved in
Souder
v.
City of Philadelphia,
There is nothing startling in the conception that a public servant’s right to retain his office or employment should depend upon his willingness to forego his constitutional rights and privileges to the extent that the exercise of such rights and privileges may be inconsistent with the performance of the duties of his office or employment. One of the most cherished rights guaranteed by the Constitution is that of freedom of speech, yet no one would maintain that a police officer could fully exercise that right without violating the duties imposed upon him by the acceptance of his employment as a police officer. The right of freedom of speech might be relied upon by a police officer who had disclosed, to persons conducting an illegal establishment, information concerning the plan of the police department to conduct a raid upon such establishment, but the furnishing of such information would be inconsistent with and violative of the duties of such police officer. Such conduct would constitute cause for dismissal with or without any specific rule on the particular subject, and in the event of the adoption of a rule providing for dismissal of any officer making such disclosure, the claim that such rule violated any constitutional right of the officers would be clearly untenable.
Turning now to the specific contentions of appellants, other than the main question above discussed, it is contended first that the trial court erred in upholding the dismissals as the Police Commission was without jurisdiction. We find no merit in the contention, and will discuss appellants’ several arguments on this point in the order in which we find them discussed in appellants’ brief.
*570
The first argument is found under the heading 1 ‘ complaints not verified”. Appellants cite section 155 of the Charter of the City and County of San Francisco which provides that “Members of either department shall not be subject to dismissal . . . except for cause, nor until after a ■ fair and impartial trial before the commissioners of their respective departments, upon a verified complaint filed before such commission setting forth specifically the acts complained of. ... ” We may assume, without deciding, that a proper verification was a jurisdictional requirement, although the court in
Donovan
v.
Board of Police Commrs.,
.
The second argument of appellants is that “the jurisdictional requirement of a fair and impartial trial was denied them”. This refers to the trial before the Police Com
*571
mission. It is based upon the fact that appellants sought to disqualify Commissioner Theodore J. Roche because of alleged bias and prejudice on his part and that said commissioner nevertheless participated in the trials. Appellants filed affidavits consisting largely of excerpts from newspaper articles which purported to quote certain statements made by Mr. Roche prior to the hearing before the Police Commission. We need not discuss the question of whether a person charged before an administrative board may successfully urge the disqualification of one or more of the members of such board on the ground of bias or prejudice. (See
Dyment
v.
Board of Medical Examiners,
The third argument is that the “commission lacked power to dismiss”. In this portion of the argument, appellants claim that a certain amendment to section 19 of rule 46 of the police depаrtment was invalid. Said amendment was adopted to require specifically that members of the department should testify without reservation in any investigation conducted before the grand jury as well as in all cases before the courts. Said amendment was first adopted at a special meeting held on May 12, 1936, and was later readopted at a regular meeting held on May 18, 1936. We find no merit in the сlaim of invalidity made by appellants, but we do not believe it necessary to extend the discussion on this phase of appellants’ argument. In the absence of any specific rule of the department, we are of the opinion that appellants were guilty of a clear violation of their duties as officers in refusing to testify before the grand jury, and that such violation constituted сause for dismissal as contemplated by section 155 of the charter. Furthermore, each appellant was charged with conduct unbecoming an officer within the meaning of rule 4 of the police department as well as with a violation of section 19 of rule 46. Both specifications contained in the complaints were based upon the refusal to testify before the grand jury, and there can be no doubt that such refusal constituted conduct unbecoming an officer and cause for dismissal.
■ The fourth argument is that “appellants were not before grand jury”. This argument appears to be based upon the claim that appellants had not been legally subpoenaed and that they attempted to make a special appearance before the grand jury “for the purpose of challenging the validity of the process ’ ’. Appellants do not point to any defect in the subpoenas or the service thereof, but assuming that there was some invalidity, appellants were actually before the grand jury and their duty as police officers required them to give their testimony regardless of any such alleged invalidity.
The final contention оf appellants is that section 19 of rule 46 is unconstitutional. We believe that this contention is answered in a large measure by the foregoing discussion. The rule was but a definite expression of one of *573 the general duties imposed upon all police officers. The adoption of the rule and the amendment above mentioned did not impose any new duties upon the members of the dеpartment, and the adoption thereof did not operate to deprive any member of the department of the right to exercise his constitutional privilege. That privilege still existed and was exercised by appellants. The rule is not, therefore, subject to attack upon constitutional grounds. What appellants have attempted to do is to claim an alleged right to сontinue as police officers despite a violation of their duties as such officers. It seems clear that they had no such right. (McAuliffe v. Mayor, supra.)
Appellants have discussed numerous authorities from other jurisdictions, all of which appear to be distinguishable on their facts. If any of said authorities may be said to indicate views at variance with the views hereinabove expressed, we believe that thе reasoning found in Souder v. City of Philadelphia, supra, should be followed.
We conclude that the Police Commission had jurisdiction and acted within the powers conferred upon it. We further conclude that appellants were not entitled to have the action of the Police Commission annulled or to have a writ of mandate issued to compel their reinstatement.
The judgment is affirmed.
Nourse, P. J., and Sturtevant, J., concurred.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 28, 1939.