Decker v. Board of Health Commissioners

CRAIL, J.

This is an appeal from a judgment of the superior court in an action for a writ of review of proceedings of the Board of Health Commissioners of the City of Los Angeles (respondent) as the result of which the respondent removed the petitioner from his office as city health officer. Petitioner contends the removal was without due notice and hearing. A general demurrer to the petition was presented by the respondent. The demurrer was sustained without leave to amend and judgment was thereafter entered denying the petitioner relief.

Petitioner contends it is settled law in this country that an officer can be removed only upon notice and after a hearing where the tenure of his office is during good behavior, citing

Bannerman

v.

Boyle,

160 Cal. 197 [116 Pac. 732], and petitioner further contends that “The tenure of health officer under the foregoing charter provisions [Freeholders’ Charter of City of Los Angeles]

is without definite term

and, hence, may be deemed to be comparable with an appointment ‘during good behavior’.” The respondent contends, on the contrary, that the tenure of office of petitioner was at the pleasure of the appointing power. This difference between the parties raises the vital question in this case, for the reason that whereas appointments during good behavior cannot be terminated except for cause and in such cases the officer is entitled to notice and an opportunity to be heard; yet on the contrary where appointments are made to hold during the pleasure of the appointing power they may be terminated at any time and without notice.

(Boyd

v.

Pendegast,

57 Cal. App. 504 [207 Pac. 713].)

[336]

The Constitution of our state provides that, when the term of any officer is not declared by law, said officer shall hold his position during the pleasure of the authority making the appointment; with the provision that, as to any officer of any municipality governed under a legally adopted charter, the provisions of such charter with regard to the tenure of office or the dismissal from office of such officer or employee shall control. (Const., art. XX, sec. 16.) In the case of