17 P.2d 789 | Cal. Ct. App. | 1932
Michael E.I. Mitchell and other members of the San Francisco police department were examined for the purpose of establishing a list of persons eligible for appointment to the position of captain of police. The examination covered many subjects, and it appears there was a total of four hundred questions asked. A "key" for rating the answers was prepared by examiners appointed by the Civil Service Commission, and after the examination was held all participants therein were invited to inspect it. Those examined then had the privilege of objecting to the answers as given in the key, if they were of the opinion such answers were incorrect. After such inspection, Mitchell objected to the answers of three questions as fixed by the rating key. These objections were lodged with the Civil Service Commission, and the Commission, after consideration thereof, changed one of the answers to accord with Mitchell's contention, but declined to make a change in the other two answers. Thereafter Mitchell made further protest to the Commission of the two answers last mentioned and of another answer not referred to before. The Commission refused *460 to make a further change in the answers; and upon the rating of the papers as determined by the examiners, the Commission placed Mitchell number twelve in the list of those eligible for appointment to the position of captain.
An application was made by Mitchell to the superior court for a writ of mandate to compel the Civil Service Commission and its members to change the answers complained of, and to alter respondent's position on the "eligible" list. Petitioner alleged, among other things, that the questions were to be answered as "true" or "false"; that if a statement in any question was not wholly true it was to be considered "false", and the court so found. After proceedings had, the court decided the issues in favor of petitioner. A writ issued, directing that the changes be made in the answers in accordance with petitioner's prayer, and that the position of petitioner be altered on the eligible list accordingly. This would place his name tenth instead of twelfth on the list. A change of personnel of the Commission occurred in the course of the proceedings, and by consent the newly appointed members of the Commission have been substituted for those originally named. Appeal has been taken from the judgment directing issuance of the writ.
There is no lack of good faith or intentional unfairness charged against the examiners in conducting the examination or against the Commissioners in refusing to allow respondent's protest. Nor is arbitrary action alleged. Respondent contends that there was only one correct answer to each of the questions under consideration and that he gave it; that as the statements in the questions were to be answered as "true" or "false" (correct or incorrect) and were based respectively on provisions of the charter, rules defining duties of police officers and a statute, there was no element of discretion involved in determining the answers; or, if it be assumed that there was discretion, then it has been abused; that he is entitled bymandamus to have the correct answers substituted for the incorrect ones, and thereafter to have his proper place on the list. Appellants contend that the superior court was without jurisdiction to consider the action of the Commission in determining the result of the examination, and that the evidence was insufficient to justify the issuance of the writ. *461
[1] Article XIII of the charter of the city and county of San Francisco deals with the civil service. It provides that the Commissioners "shall make rules to carry out the purposes of this article, and for examinations, appointments, promotions and removals . . ." (sec. 3); that the "Commissioners may from time to time provide by rule for the manner in which . . . positions shall be filled . . . and no appointment to any such place shall be made except in accordance with the provisions of this article and the rules adopted thereunder by the Civil Service Commission" (sec. 2); that all applicants for places in the classified civil service shall be subjected to examination; that "such examinations shall be practical in their character" (sec. 4); that the "Commissioners shall control all examinations" and may designate persons to act as examiners (sec. 5); and that from the "returns of the examiners, or from the examinations made by the Commissioners, the Commissoners shall prepare a register for each grade or class of positions in the classified service of the city and county of the persons whose general average standing upon examination for such grade or class is not less than the minimum fixed by the rules of the Commissioners, and who are otherwise eligible. Such persons shall take rank upon the register as candidates in the order of their relative excellence, as determined by examination, without reference to priority of time of examination." (Sec. 7.) From the foregoing it is clear that the general control of civil service examinations, including the making of rules considered advisable by the Commissioners for conducting such examinations, was vested in the Commission. Rules so made within the provisions of the charter, and in consonance with the fundamental principles thereof, are binding (Mann v.Tracy,
Here two acts of the Commission are to be considered: The first, the refusal to change the rating key, or standard of answers; and the second, the designation of respondent's position on the eligible list. Mandamus, in our opinion, would lie to give the proper place on such list after the result of the examination is established, for it definitely follows the markings given those examined. (Keller v. Hewitt,
There are many decisions involving mandamus and its application, but none has been presented in the briefs, nor have we been able to find one, where a court employed mandamus to pass upon answers to questions in an examination held by any board or commission authorized to hold such examination.Certiorari was resorted to in Raaf v. State Board of MedicalExaminers, 11 Idaho, 707 [84 P. 33]. This case will be referred to hereinafter. On the other hand, we have not found any decision stating that the questions under consideration were, as here, to be answered unconditionally as correct or incorrect.
In Tate v. North Pacific College,
[2] While an analysis of the decisions referred to in the foregoing paragraph reveals among the cases certain distinguishing features as to statutory provisions as well as facts (and we do not cite the decisions from other jurisdictions as being approved by our own courts in all phases *465
thereof), still, as a whole, such analysis shows a marked uniformity of decision on the part of courts to leave examinations in the hands of members of boards to whom they have been entrusted. In our opinion this general view is well supported. The complexities of modern civic life demand that such problems should be determined by the boards and commissions designated by law for that purpose, and the policy of our laws is to allow this to be done with as little interference as is reasonably possible. (Maxwell v. Civil Service Com.,
In Dillon on Municipal Corporations (5th ed., sec. 399), it is said that "when power is given to civil service commissioners, or to examining boards, acting under their direction, to test the qualifications of applicants for public office, the method of such examinations with the result arrived at, necessarily rests within their discretion and judgment upon the examination had, and is not a judicial determination of any question presented to them in such a sense that it may be reviewed by the courts oncertiorari or mandamus or otherwise". (Haub v. Tuttle,supra.)
Looking to the language of the charter as it relates to the civil service and considering its general purpose, we are of the opinion that it is the intent of the charter that the decision of the Commission upon the question of the examination before us should be final. Mandamus, therefore, will not lie. (Wood v.Strother,
The judgment is reversed, with instructions to the superior court to enter judgment for defendants.
Knight, Acting P.J., and Cashin, J., concurred.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 27, 1933.
Seawell, J., and Langdon, J., dissented.