*1 аllowed culpability Compton’s part. no He not be should contriving fictitious agreement to maintain that this Compton’s by promising him testimony to obtain favorable 3517.) can Code, liability. (See He immunity Civ. § at time agree Compton is the same blameless culpable con principal liable on the basis of Compton’s make encouraged if were held Compton. duct of Fraud would agreement principal’s lia no effect on the has that such an agent. The fault bility, depends solely on the principal liability of the underlying the policy public Bank, 163 v. First National (Otis Elevator Co. agent’s torts ; Bank 704, 41 L.R.A.N.S. Cali 31, 39 Cal. 529] 288; 52 Cal. Telegraph Co., see Union v. Western fornia plaintiff effect and the p. 472) has Prоsser, Torts, responsible principal make the alone agent conspire agent’s fault.
Edmonds, J., concurred. In Bank. June No. 19276. A. 1945.]
[L. OF STEEN, Petitioner, v. BOARD SER- CIVIL OTTO A. al., Respondents. et VICE COMMISSIONERS *2 George Cryer R. for Petitioner. E. and Alston Jones Attorney, A. L. Lawson and Ray Chesebro, City L. Attorney, Respon- George Adams, Deputies City William dents. According to petition for a writ CARTER, petitioner’s J. of below,
of he had been mandate the court respondent hereinafter re- Department Power, Water and of Angeles city Los department, respondent ferred to as pursuant since had attained civil service status 1922. He city. August 1943, there was served the charter of the On August suspension On position. him a notice of Com- 16, 1943, city’s Service he filed with the Board of Civil appli- board, “written missioners, hereinafter as referred to grounds for investigation for an cation said board suspension; August 17, 1943, . . .” his said On petitioner with the board “Notice served on and filed Removal, Discharge Suspension” signed by an official discharged department, as of advising him that he was August 18,1943, On that date the causes set forth therein. following: the board “To the Honorable Commission- the Board of Civil Service ers, . . . suspension Removal,
“Re dated Au- Notice gust 17, 1943.
“Please I am an in Water advised Department appeal your and Power Honor- and desire to to Aug. my discharge 17, 1943; Body able for relief from your body respectfully request I honorable and further investigate grounds dischаrge. prepared I am for such your evidence, at convenience offer both oral and documen- tary matter as set forth in the notice of to controvert discharge. I
“Awaiting your pleasure matter, am truly, “Yours “Otto A. Steen.” any proof department produce before the board did not delegated man- discharge; department duty to ager the civil service *3 charges filed with the board on De- report the and 1943, petitioner 10, was noti- 5, 1943. On cember December 1943, the 14, the board would consider fied on December that appeared before quoted request petitioner. He heretofore 14, 1943, were had and proceedings on December the board sustaining the dis- issued order day next the February department. On charge petitioner by the writing in that petitioner with the board a demand compen- a claim for city the clerk be reinstated and with alleged wrongful during period of the accruing sation by respondents, discharge. no motion was Although denying petition for an alter- order a minute court made pro- prejudice, apparently without native writ of mandate Procedure of Civil ceeding under section 1107 of Code and for the writ application service of an providing for the points authorities respondent to file and permitting opinion From the memorandum opposition its issuance. to petitiоn on the sole manifest that it denied the the court it is rein- file a demand for petitioner had failed to ground that days was first notified the time he within from statement discharge. of his follows: provisions bearing charter are as on that issue . . appointment having power . .
“Any board . . any remove, . . . suspend or power shall have in the classified person department; of such but discharged removed, or city, . . . shall be service of the writing cause, be stated suspended except which shall Service board . . the Board Civil . and filed with Commissioners, state- copy of such with certification discharged removed, upon person so ment has been served removal, discharge Upon filing such susрended, . . . such or days after such suspension fifteen or shall take Within effect. board, filed, upon its own said shall have been statement motion, person so may, upon application of the or written removed, within discharged said board suspended, filed with or pro- statement, days shall him of such five removal, discharge or grounds ceed to for such finds, suspension. investigation said board If after such removal, discharge writing, such stated for sustained, suspension and also or insufficient or were not were removed, discharged or sus- writing person finds position fill person pended is a fit and suitable discharged suspended, board removed, which he was or discharged suspended removed, or рerson shall order said so duty. reinstated or The order of said restored to removal, discharge shall be respect suspension or with to such added.) (Los conclusive; (Emphasis . . final . . .” . and Angeles Charter, 112(a).) § been by any person that he has “Whenever claimed it is discharged, that such unlawfully suspended, laid or off reason, any suspension discharge is ineffective for lay-off, demand for compensation claim for must be made ninety writing presented reinstatement must be per- it is claimed such days following the date on which invalidly off, illegally, wrongfully laid sus- son was first must discharged. demand for reinstatement pended or Such Service Commissioners Board of Civil be filed wrongful, allegedly compensation for claim for such such *4 discharge be filed with the illegal erroneous must or within for reinstatement Failure to file such demand Clerk. compel any action to specified herein shall be a bar to the time re- filing a demand for proof reinstatement such such and prece- completed proved a condition be instatement must any for reinstatement. maintenance of action dent to the compensation the time within filing the claim for Proof prece- specified be condition manner herein shall the wages salary claimed to be due on recovery of dent to discharge.” (Emphasis layoff, suspension account of (Los Angeles Charter, 112%.) added.) § demand for reinstate Respondents contend that the filing days the from the date of ment must be filed within itali of the discharge the board reason the notice of 112(a), and hence the demand cized sentence sustaining depart days the within after the board’s order discharge mental was too late. foregoing provi- only interpretation of the reasonable must be filed written demand
sions of the charter is that the days the order required by section within as 112% department. Sec- sustaining of the action of the board the orderly by which action procedure tion 112a establishes an discharge filing shall be department the notice of the quasi may an administrative or examined. It bе likened to discharge judicial leading final proceeding Although department given power employee. the the grounds discharge, may only do so for cause. it discharge discharge in its notice of the be set forth must upon and served the which filed with the board must be both indicating department’s ac- affected; that the thus final, preliminary rather as tion is not to be deemed but states that step in series. is true the section but, effect, filing shall take rather of the notice action, provision implying finality than means required working in employee shall be to cease effect that the position department accept his ser- that the need disposition matter, ultimate thus pending vices relieving department establishing policy from the having, interim, actively working aspects of detrimental unsatisfactory. employee considered staff, on its Follow- there are ing filing and service of the notice administra- pursued by employee. Thus, tive remedies days may, motion, fifteen on its own or on days, employee’s application, made within five “investi- discharge. gate grounds” If the for the board finds that are for the insufficient and that him; Although suitable, may reinstate is fit and provision therefor, express we believe it follovvs may, necessary implication that the board as it did in the sustaining discharge. case, make an order Presum- instant not act ably did own motion within the if *5 by the were for relief days, application if no fifteen discharge would be employee specified, the the time time. of such expiration final the come and effective at administra nature of proceedings the board are in the before dis ultimate process part the tive remedies or are the remedies charge. employee If fails to those pursue the inasmuch plea reinstatement will listen for court not to remedy administrative not have exhausted his as would Board, (see v. Alexander State Personnel Cal.2d Appeal, 17 433]; Abelleira District Cal.2d P.2d Court of indicating 942, 132 715]), A.L.R. thus further procedure part the entire that the before the is board That discharge employees. for scheme the of civil service thought is further final statement section evinced the 112(a) and conclusive. that the action the board is final discharge phase proceed One finality of the would be that ings completed purposes had all been effective for were when complete proce order. With such a determining purpose dure for discharge, matters of no useful required could be served the demand for reinstatement opportunity section before to the board had an follow 112% procedure very the fixed determining for issue rein statement as as well whether the for were purpose sufficient. The accomplish demand would inasmuch as entire board. Gen issue then before the erally a prerequisite is be demand not a where it would futile gesture. (See or an idle 772-3.) 16 Cal.Jur. Turning ample for section we to find confirmation 112% foregoing employee claiming views. It refers to an discharged. seen,
he has been wrongfully we have As department files claim of the relief first its notice pursuant is made to discharge, to procedure 112(a) forth is set section finality procedure until that is followed. Then comes the “it requirement days, from the date that which runs discharged, wrongfully is claimed” that the was first ease is, in the that the under circumstances instant provision The section makes no board made its order. part action, negative, board, on the affirmative as employee’s That natural to response to the demand. 112(a) section are elapsing under proceedings time while respect in that forth procedure as set pending, inasmuch then that the 112(a). (112%) reads in section filing of the demand is a precedent bringing condition action for reinstatement. Read as a whole it is concerned fixing a time limit and necessary formalities a basis as action, court presupposing procedure before board has been followed. The demand analo- somewhat gous requirement of a petition rehearing for a addressed given to the boаrd. The board is opportunity an additional pass upon the issue before resort is had While courts. *6 112(a) section speaks of of past in the tense and of employee investigation, reinstatement believe we thoughts the intent was to proceeding relate those be- fore the board and that roll as reinstatement was to the is, worker, an active the temporary that removal from that category would be nullified. On other hand when comes relief, to seeking court demand for reinstatement is the final of perfecting discharge. action a final step preliminary application for action by the board was an by employee required than rather the demand in section judicial The latter preliminary seeking relief. 112%. Respondents rely upon Campbell 47 City Angeles, v. Los of Cal.App.2d hearing 310 P.2d petition No for a [117 901]. in this court was that case and it not discuss the did factors hereinabove disapproved. mentioned. It is
Respondents position that section take under 112(a) hearing necessary. In in by formal the board is not “The terpreting kept section it be in mind should that purpose of civil is service twofold—to abolish the so-called by system, spoils and to increase of the service efficiency assuring regardless employees in office continuance by party power. Efficiency secured may what then be knowlеdge employee promotion to part on the higher positions when vacancies occur will be the reward McKinley, (Allen v. 18 Cal.2d faithful and honest service” 342]), ascertaining legislative 697, 705 P.2d and that [117 sought by is a purpose to be achieved a statute intent (People Moroney, significant interpretation. factor in v. Gage Jordan, 794 ; 23 Cal.2d 24 638 P.2d v. Cal.2d [150 888] San v. Mateo ; City County Francisco San P.2d & 387] [147 ; Drive-in County, 814 P.2d 17 Cal.2d 595] [112 California Clark, 147 22 287 Assn. v. Cal.2d Restaurant [140 goal 1028].) Thus, the instant case A.L.R. continuity position, in the be service, assurance of should.not a full remedy without for leaving the thwarted 723 discharge, unless the stat- propriety consideration of of his unquestionably requires a result. ute such an firmly
The rule
statute
established that
if
dis
officer or civil
may
be removed or
charged except
cause,
implication
for
the clear
is that
accomplish
an opportunity
hearing
afforded
full
negatives
removal;
expressly
unless the statute
compel
necessity
hearing,
justice
of a
common fairness and
implication.
(See
requirement by
inclusion of such a
Boyle,
;
Bannerman
160
v.
Cal. 197
P.
Carroll
V.
[116
732]
;
Racing Board,
Horse
“While the ordinance an it does provide hearing, thereof, any part as shall be police or that shall have accorded the officer he notice investigation any opportunity to be heard his own or subjects. It is silent these behalf.
“The .ordinance contemplates police that a officer in clas- sified civil shall otherwise, be removed for cause.only; there would be no occasion for the requirement that reasons given therefor in writing be to the commission an.d invesr tigation made it. ease, Where such is the the rule is that officer hearing charges accused to a entitled on the against him after notice given. reasonable thereof has . been . . governing ‘.‘Unless statute or expressly ordinance ex- hearing, cludes notice and both are implied, partic- and this is ularly or provides true the statute ordinance for an investigation and vests a commission power with the to admin- oaths, witnesses, ister and produce summon evidence. . .. The that, net result is cases tenure under service, where retired, officer shall hold officeuntil removed or it im- plied can be for cause only only that he removed and then after hearing due opportunity given notice and to be heard.” Boyd Pendegast, supra, In pro- court had before it a Angeles City practically vision of the Los Charter identical in 112(a) considering wording police officer thereunder stated: “However, contemplated it seems clear that it is that a suspended police ordered officer removed shall be hearing applies the commissioners accorded a before if days given police has him notice chief five *8 require does provision order. The not terms that of descrip- police notice of the chief of there be stated up charged against delinquency make tion of the acts that, although presumed investiga- be if an officer, it will will, upon officer, request had, tion the commissioners is
725 details. in which the acquaint him with such The manner of evidence to investigation is be conducted the class to and only imperative be heard left the commission. is is with hearing request, and that a the officer be accorded produce commis permitted that he be to his evidence. The Council, way (Speed in a q-wcm-judicial sion acts Common N.W. Am.St.Rep. 98 Mich. 57 L.R.A. 407]), required by writ accord appropriate and be to hearing In ex affected removal order.” person thought pressing the that the board had unlimited discretion hearing, as to the nature of the we believe the court there went investigation too far. The term does detract from the fact not hearing implies. required that a all the term with Cro P. Com., Cal.App. 339], nin v. Civil Service should contrary be to There not considered as these views. the char where was ter did not limit a to instances Commrs., The case Krohn v. Board Water & Power cause. 757], in no Cal.App. expressing the view that hearing was under necessary provision the charter here in disapproved harmony must inasmuch as it out of volved principles heretofore and with enunciated authorities cited.
On the whether an petitioner issue of afforded hearing alleges petition opportunity for a in his charges against him not board did did and hearing opportunity petitioner appear “accord to an or to counsel, produce defense, or evidence in his to be against him; respondent confronted the witnesses witnesses, evidence, board examined no no and made received writing findings matter; in said either otherwise appeal contrary respondents peti on the . . referred said . ‘investigation’ delegated making an and tioner depart manager ‘report’ thereon of said civil service manager referred ;ment that on said last date said mentioned delegated investigation and making of an appeal said report thereon Reimers, Esther said department; .”; respondent “That Board of Water .'. days did and Power not either fifteen Commissioners respondent after it Civil filed with Board of Service Commis any charges against petitioner, sioners its statement of or at time, produce said Commission other before Civil Service charges against petitioner, and proof whatever of its said never Board Water- Power has Commissioners - provén- charges--or-any- br of- éstablished-’-said"- them5-'!- *9 726 goes many
He allege, however, on to that “consulted Reimers hearsay, individuals compiled and collected and of mass rumor, report and concerning petitioner’s an record as em- in ployee department respondent . sаid . and . . . . compilation commission report said of her unsworn matter as Reimers, report in said investigation; that said of Esther and all contained, únsigned, unsworn, matter therein and was wholly verification; without . . . manager
“That thereafter .. of said civil service de- . partment petitioner 14,1943 notified that on December at 2:30 respondent P. M. petitioner’s board discharge would consider from position his of rigger requested petitioner ‘be and that present, if possible, ’; peti- the case is considered that tioner asked that he permitted have counsel with him to when his case was considered that but was informed coun- sel would him, be of no the commission would benefit that hearing not hold a petitioner’s and not listen to would coun- sel; .. .
“That on presenting 14 himself December at 2:30 P. M. petitioner by respondent was confronted board and its attor- ney, by Department his three from and accusers of Water Power, deputy city and aby representing the last attorney by thereupon named department; petitioner that was asked respondent president anything say; board if he had respondent was emotionally so overcome the sudden by accusers, unexpected and by confrontation force say anything was unable to himself or his de- defend fense; thereupon oral by elaboration his accusers against charges petitioner, moved commis- Woellner, sioner and seconded ‘that from the information presented report questioning both the and the present, commission of those the commission find that Steen, of Mr. as set above are causes forth sustained, appeal sufficient and and therefore his de- are ’ nied. . . . “That in all that it the matter of did sustaining denying petitioner’s appeal, petitioner, respondent wholly charges against board without acted him. wholly upon hearsay, entirely in excess evidence and abundantly as jurisdiction, appears records hoard; respondent ...” files petition is clear states a cause of action. general special ad- rule is that the absеnce of a statute an
727 agency objection findings ministrative cannot over make supported solely fact by hearsay (See evidence. Consolidated Edison Co. v. National Bd., Labor Relations 197 U.S. Gabriel, S.Ct. 126]; L.Ed. Walker v. San Dyment Cal.2d 879 1383]; Board A.L.R. Examiners, Medical Cal.App. 1073].) Here of the effectually petitioner opportunity denied making objection by arbitrarily refusing peti to allow participate tioner’s counsel to in the proceeding. This was *10 (Powell hearing. Alabama, a denial of a 45 v. 287 U.S. [53 55, 158, ; S.Ct. 77 L.Ed. 84 City A.L.R. Luellen v. 527] of Aberdeen, supra; Telephone Wisconsin Co. v. Public Service Commission, 232 274 133, Wis. 593]; N.W. Roberts [287 v. Anderson, 874.) 66 F.2d
Finally, respondents urge appeal that no lies from the denying minute order рrejudice application without On a entry alternative writ. the score of the lack of of judgment formal upon order, or order the minute the Rules on Appeal provide that entry date of an order which on entered the minutes shall be the date entry of its thereon unless the expressly filing minutes preparation direct the (Rules also, a written order. Appeal, 2(b) (2); see, rule Superior Brown Court, Cal.App. 732 ; P. Colt 409] Court, hurst v. Justice’s 812].) Cal.App. Hence, the minute order was an order and no further order contemplated. was In Superior Court, Brown v. supra, proceedings for certiorari no demurrer or answer was and when the order to show cause was heard a minute order denying was writ. It was appeal- held that final a judgment been able had entered. In case, the instant as be stated, procedure fore set forth in section followed, Code of Civil Procedure copy was under a petition respondent for the writ is served on the before an alternative writ is respondent issued and the may points file opposition and authorities to it. The court then made its denying petition. minute order action final Its inso far as appeal was concerned. No further order was contem plated. O’Brien, The case of Ross v. 1 Cal.App.2d 1108], prior was decided to the addition section 1107 to the of Civil controlling. Code Procedure and is nоt sustaining The appeal court there discussed an from an order petition a demurrer to and denying the petition. On the spoke latter score the court it as meeting require- However, judgment dismissal. -merits of under simple contemplated be a clearly 1107 it is application for the alternative writ of denial order ruling is heard on notice. It neither a on demurrer nor a simple petition of a and final order. is a denial dismissal. It prejudice” following “without use of the words present mean little. Under the circumstances it could denial expression nothing peti- mean more than court that proceeding. Whether he is re- could commence new tioner quired deрends the correctness of the order of to do appeal. denial which we have determined on this judgment is reversed. Traynor, Schauer, J., Gibson, J., J., and concurred. C. Dissenting. opinion changes a SHENK, J., The majority Angeled long standing interpretation Los of the Charter provisions. very In effect it amends the charter two sub- respects people. expressly stantial without a vote of the disapproves decisions in this state which have been followed city any change by the administrative bodies without interim. in the charter provides Section of the charter that-a claim com 112%
pensation and demand for reinstatement must be filed ninety days following the date on which it is clаimed that the *11 wrongfully employee illegally, invalidly off, was “first or laid discharged.” suspended suspension or Under the charter the discharge immediately upon given or effective notice thereof employing discharged by the board. The claim of the em ployee complete has matured at that time and it whether investigation applied by or an not he has for the commission. discharge suspended pending request is not action on his -The Campbell City An investigation. The case of Los 901], language applied the geles, Cal.App.2d meaning. conformity in The plain of the charter with its investigation in contention that case was that the demand for might requirement under sectiоn 112a substitute the pointed respective objec out the of section The court 112%. 112%, procedure 112a the former as a tives sections might investigation which on its own reinstate the might investigation; employee employee request the or the .pursuant employee which only authority to the latter as the the reinstatement,” and.that prosecute “demand could did, charter the commenced period limitation discharged by was the date when namely, from the employing board. have charter, which 112a provisions of section The hearing in the requiring majority as been construed appli- upon written trial, are judicial of a formal nature “shall board employee the discharged cation of the discharge removal, such grounds for proceed to in finds, board investigation said suspension. If after such or removal, for such writing, stated that the sustained, and also were not suspension insufficient or or were discharged or sus- removed, writing person finds from position fill the person to pended and suitable is a fit discharged suspended, said removed, or which he was discharged suspended removed, or person so shall order said . . shall be duty. order . The or restored to to be reinstated conclusive; ...” . . . final and Commrs., &Water Power v. Board Krohn In the case of December, 757], Cal.App. decided 289 [272 rights concerning the history provisions court traсed culminating adop- in the discharged employee, and duties of present charter. 112a of the provisions of section
tion of the Without investigation was filed. request for an In that case a investigator’s re- an examination of hearing and after made its order port board of Service Commissioners Civil and that the was sustained that the duty. board, employing the Board of be restored Angeles, Commissioners of the of Los Water and Power employee sought a comply with the and the refused order superior court. It was therefore the mandate writ of Commissioners, appeal Power of Water and Board directing employee, judgment it to reinstate pursuant provisions of section 112a the contended jurisdiction Service had no of Civil Commissioners Board employee’s reinstatement without a trial or hear- order argument this, that case as in ing. same “investigate” meaning signifi- is identical the word “hearing” “trial”; court, but the the words cance with reviewing history provisions of the charter arrived opposed majority declared construction to that at a pointed case. The court out that it was not until 1903 in this *12 legislation 555) providing (Stats. 1903, p. enacted alleged wrongful discharge remedy employees a for of the city. adopted providing Section 242 of the charter was then discharged “except should be for cause upon charges, written opportunity and to be heard investigation. in his public own defense” in a The commis- given power sion was by to administer sub- oaths and secure poena the attendance testimony pro- and of witnesses and the duction papers. (Stats. 1905, 980, of books and In pp. 992) provision vesting power in admin- the commission to production ister oaths and secure attendance of and witnesses by subpoena requirement records was deleted. a public hearing charges on written remained intact until (Stats. 2116) pp. 2051, was amended provision discharge only omit the “for cause charges, opportunity written and after to be heard his own public investigation. defense” а That amendment substituted provision employee may discharged that no “except for cause,” and that the commission on its own employee’s motion or on request should grounds for removal. The all court noted that of the words connoting hearing investigation a trial public nature were by eliminated amendments, change and that a requirements in the thereby must have been intended. said: “It is therefore evident that difference between procedure powers provisions skeletonized of the charter, present charter, and that of the is radical and significant,” pointed and that the difference distinctly to an part intention on the Legislature people city of the of the and of the abandon requirement the former trial judicial hearing the gation” nature substitute an “investi- application discharged employee. jurisdictions court followed time-honored decisions of other wherein it been language had similar held that did con- not template public hearing or trial. The administrative bodies Angeles city of Los have followed and its civil service employees governed have been law as thus- laid down years. for almost seventeen The case of Cronin v. Civil Ser- Com., Cal.App. distinguished by vice P. 339], majority, harmony was in with the case in that Krohn something court read declined to into the charter that was placed the framеrs. There why is no reason a different construction of provisions discharged charter should be made when a aggrieved the one by the order of If commission.
731 in court conceded, in with the declarations accord be Boyd 713], P. Cal.App. 504 that Pendegast, 57 v. [207 investigation, request if he employee is entitled to be heard produce an opportunity than he is entitled no more anything than in more pointed As that case evidence. out By allegations discretion of the board. that is that commis petition present appears case petitioner opportunity, and that afforded to the sion be his own produced no evidence nor made statement сharges upon petitioner question that the The does not half. grounded consti were sufficient to which his discharge. tute cause “must majority opinion that the board
The statement in the writing whether or not for the find in is sufficient,” requirement the charter are inserts industria excluded. apparently ex not there and that was duty findings, are only when is a restoration to there required. rights are as are employees civil service such rights
provided by city. the charter of the No constitutional infringed by provided suspen the method for their are discharge. primary duty Their is to serve sion or the munici faithfully. among pality Proper discipline employees city necessarily implied proprietary rights and no (In Carter, 316, 997]; 141 320 are involved. re P. Cal. [74 Cal., 1031, French 146 604 P. 2 Ann. v. Senate Cal. Cas. [80 556]; Superior Court, 69 L.R.A. v. 331 Cline Cal. ; Chambers, v. 929]; Garvin 195 Cal. P. P. [232 696] Boyd Council, Cal.App. 44]; v. Good Common Commissioners, Pendegast, supra; Ludolph v. Board Police 118].) Cal.App.2d 211, Angeles people city change of Los desire If the rights governing and remedies law civil service change through legislative employees, proc- should come allegations petition my opinion in the esses. show compliance present provisions, judg- with the the. charter the trial should be affirmed. ment of court Edmonds, J., J., Spence, concurred.
Respondent’s petition rehearing July for a was denied Shenk, J., Edmonds, J., Spence, J., 1945. voted for a rehearing.