Irwin v. City of Los Angeles

SCOTT, J.,

pro

tem.

Petitioner was employed by defendant city as a police officer being certified as permanent employee under classified civil service in 1924. On October 27, 1930, the chief of police of said city issued a written order directed to petitioner removing him from his position for conduct unbecoming an officer in issuing several bad cheeks and failure to pay his debts. At 11 A. M. October 29, 1930, a copy of said order was left with petitioner’s wife at his residence. On October 30 or 31, 1930, petitioner talked with the assistant chief of police in police headquarters and was told by the latter that he was fired.

On May 24, 1932, petitioner filed his petition for writ of mandate herein asking $200 per month from date of discharge. An alternative writ was granted and upon hearing July 20, 1932, the trial court found that the service of notice of removal was insufficient, that petitioner was entitled to six months’ back pay totaling $1200 and to be restored to his position. A peremptory writ was thereupon issued. Petitioner has appealed, claiming he was entitled to $2,800 instead of $1200 back pay. Defendants have appealed, protesting the payment of any back salary and claiming that petitioner is not entitled to be restored to his position because the service of the order on petitioner was sufficient and he was guilty of laches in not sooner pressing his claim for reinstatement.

[497]

Section 202 of the charter of defendant city at the time of removal of petitioner provided that service of notice of such suspension must be upon the person of the employee or “by leaving a copy thereof at his last-known place of residence if he cannot be found”. The court found that Police Sergeant Gilpin went out to the house which was the last known residence of petitioner and there tallied with the latter’s wife; that she said petitioner had gone to his father’s place at Lancaster, California. The sergeant testified that she said that she could not give the address but she would see petitioner in two or three days and give him the papers. The order was thereupon left with the wife, affidavit of service as above indicated was made by Gilpin and the order and return was filed with defendant commission.