Proud v. McGregor

SEAWELL, J.

By writ of mandate the Superior Court of Santa Barbara County has directed the reinstatement of plaintiffs as policemen of the city of Santa Barbara. The three members of the Board of Police and Pire Commis

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¡doners, against whom the writ is directed, prosecute this appeal.

The said board by resolution passed on July 10, 1935, dismissed plaintiffs from their positions as policemen. The resolution as first passed cited no grounds for removal, but on August 5, 1935, and on October 9, 1935, additional resolutions were passed, reciting that the motion of July 10th inadvertently omitted to state that the dismissals were “made for the improvement of the public service”, and should be amended to so state.

Under section 71 of the charter of said city policemen are appointed by the Board of Police and Fire Commissioners, and “hold office during good behavior, unless removed for cause or for the improvement of the public service . . . ” The dismissal of plaintiffs on July 10, 1935, was without a statement of cause filed against them, and without prior notice and investigation. It is the contention of defendant commissioners on this appeal that certain provisions of the charter (secs. 70 and 100) providing for suspension by the chief of police “for cause”, for the filing of a statement of cause with the board, service of a copy on the suspended member, and investigation do not apply where a dismissal is made by the board “for the improvement of the public service”; that in such eases summary dismissals are authorized under the charter. The trial court rejected this contention and granted the writ of mandate on the ground that the dismissals were invalid because not in compliance with sections 70 and 100 of the charter.

The judgment must be reversed without regard to the above contention of defendant commissioners. Plaintiffs were first dismissed from the police department in February, 1935, for cause, after hearing held, on the ground that they had suffered and encouraged the maintenance of a house of prostitution, and had failed to prevent violations of section 315 of the Penal Code, to enforce said section or to arrest persons violating it. By its order of removal the board further found that plaintiffs were not fit and suitable persons to fill the positions from which they were removed. Thereafter plaintiffs were not connected with the department until June 28, 1935.