Cozzolino v. City of Fontana

BARNARD, P. J.

By a petition for a writ of mandate, filed on July 26, 1954, the petitioner sought reinstatement as a police officer for the city of Fontana. A demurrer was sustained with leave to amend, and an amended petition was filed. A demurrer was again sustained with leave to amend, and the petitioner filed notice of his election to stand on the amended petition. A judgment of dismissal was then entered, and this appeal followed.

So far as material here, the petition alleged that Fontana is a city of the sixth class; that petitioner was employed as a police officer for said city on October 21, 1952, by “Resolution No. 44”; that said Resolution Number 44 is still in effect and has not been rescinded; that petitioner was summarily discharged by the chief of police of said city on January 22, 1954; that a “closed hearing” was held on February 2, 1954, for the purpose of determining whether the

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action of the chief of police in discharging the petitioner was justified; that the action taken at this meeting did not purport to be an original action by the city council, but was for the purpose of satisfying the public demand and to ratify and approve the prior action of the chief of police; that the petitioner's salary was paid up to and including February 2,

1954;

that on July 15, 1954, the petitioner made demand upon the chief of police and the city council to reinstate him to his position and to certify and approve his payroll from February 2; and that said demand has been refused.

A copy of Resolution Number 44 was attached to the petition with a certificate that it was adopted by the city council at a regular meeting on October 21, 1952. It is headed “A Resolution of the City Council . . . Authorizing the Employment of Police Officers.” It states that it is necessary and convenient that officers be employed for the city police department. It then “authorizes” for such employment five named persons, including this petitioner. The minutes of “a regular meeting” of the city council held on February 2, 1954, were also attached to the petition. These minutes recite that one councilman “moved that the Council concur in the action of the Chief of Police in his dismissal of (this petitioner) on the evidence given,” and that the motion was seconded by another councilman. After setting forth some of the discussion which followed, the minutes recite that the motion to approve the action of the chief of police was passed and adopted by a vote of three to two.