Hackler v. Ward

McCOMB, J.

Plaintiff filed a complaint entitled “Action for Damages for Wrongful Removal from Public Office.” Thereafter he filed an amended complaint to which a general demurrer was sustained and plaintiff allowed 20 days within which to amend. After plaintiff declined to amend, a judgment was entered in favor of defendants. From this judgment plaintiff appeals.

In the first cause of action of the amended complaint it is alleged in substance that plaintiff was a resident of the

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city of Fair Oaks, county of San Luis Obispo; that the city of Arroyo Grande is a city of the sixth class existing under and by virtue of the laws of this state; that five named defendants were the duly elected councilmen of the city of Arroyo Grande; that on or about April 27, 1948, pursuant to an alleged oral contract of employment plaintiff was appointed chief of police of such city by the council to serve a probationary period of six months and thereafter during his good behavior in the performance of his duties as chief of police; that on or about February 18, 1949, defendant councilmen without notice or the preference of charges against him and without a hearing of any kind, removed plaintiff from office fraudulently, wrongfully, unlawfully, maliciously and with-, out cause to do so.

In the second cause of action of the amended complaint plaintiff incorporated the allegations of the first cause of action by reference and alleged that on or about November 22, 1948, the remaining defendants wrongfully conspired to unlawfully bring about plaintiff’s removal from public office and to prevent him from obtaining further employment elsewhere as a police officer; that thereafter said defendants, in accordance with said conspiracy, did wrongfully and maliciously induce and prevail upon the five defendant councilmen to, and they did on February 18, 1949, wrongfully,maliciously and without notice or hearing remove plaintiff from his public office as chief of police without cause so to do.

Questions:

First:

Where a city council of a city of the sixth class purports to enter into am, oral agreement whereby they employ a chief of police of such city for a tenure of “during good behavior,” may the city council thereafter dismiss the person so employed without cause, without notice and/or hearing?