Sevina v. Hickok

NOURSE, P. J.

Plaintiff sued in

mandamus

to require respondents to place them upon the pension roll of the city of Alameda. The cases were consolidated for trial and were heard by the court sitting without a jury. Judgment went for respondents in both eases and the plaintiffs appeal upon a single typewritten transcript.

While the appellants were members of the police department of the city of Alameda they were indicted by the federal grand jury for conspiracy to violate the federal prohibition act. Pending their trial in the federal court they were duly suspended from office by order of the chief of police and city manager. On September 24, 1929, following their acquittal ■in the federal court, the appellants were both removed from office by the city manager, the order of removal reciting that the cause of such removal was “notorious and consecutive insubordination and neglect of duty”. On March 18, 1930, both appellants applied to the pension board of the city of Alameda to be retired upon a pension under the terms of the so-called “Pension Ordinance” of the city. These appliea

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tions were, after a hearing conducted by the pension board, both denied.

It is conceded that the police department of the city of Alameda was not under civil service and that the city manager had full power to suspend and remove a member of that department with or without cause. This concession draws a distinct line between the case at hand and all the eases cited by both parties involving the interpretation of civil service regulations. It would be difficult to find a broader grant of this arbitrary power of removal than that which is stated in section 8 of article YII of the charter which authorizes the city manager to “appoint and remove all subordinates in the police department, subject to the provisions hereinafter stated”. (These “provisions” are found in section 10 of the same article. They require the filing of charges by the city manager and a hearing thereon before the police board in the case of any member of the department who had been in the service for five years prior to the time the charter took effect. This provision, it is conceded, does not apply to either of these appellants.)