Hoertkorn v. Sullivan

NOURSE, P. J.

Plaintiffs were formerly members of the San Francisco Police Department and were removed therefrom in 1936 after trial on charges of misconduct before the local police commission. In November, 1943, they filed a petition with the Police Commission asking that body to review the case and reinstate each to his former rank and position. The commission determined that it was beyond its jurisdiction to hear the matter on the ground that there was no law authorizing it to rehear the former proceedings, or to reinstate petitioners. Plaintiffs then filed a writ of mandate praying that an order be directed to the Police Commission requiring it to consider their petitions on the merits. Defendants’ demurrer was sustained and judgment dismissing the proceedings followed.

On their appeal from the judgment appellants contend that the commission had jurisdiction to revoke the prior orders of discharge, and to reinstate plaintiffs to their former positions and rank under the general provisions of section 35 of the San Francisco Charter. The defendants answer that such power does not exist unless expressly conferred in the charter. They also argue that judgments on prior writs affirming the orders of discharge are res judicata; We will confine our discussion to the question of the power of defendants to rehear or to vacate an existing order of discharge.

The case is controlled by the rule of decision found in

Heap

v.

City of Los Angeles,

6 Cal.2d 405 [57 P.2d 1323];

Proud

v.

McGregor,

9 Cal.2d 178 [70 P.2d 194], and

Cook

v.

Civil Service Commission,

160 Cal. 598 [117 P. 662], In the former an order was- made by the Civil Service Commission of the City of Los Angeles rescinding a former order discharging petitioner from his position in the municipal civil service. In a proceeding in mandamus to enforce the second order the Supreme Court affirmed the judgment .of the supe

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