McGinn v. Board of Health

SPENCE, J.

Petitioner sought a writ of mandate to compel respondents to restore him to his position as watchman at the city and county hospital of San Francisco and to compel the payment of his salary as such watchman since the time of his discharge in 1924. Upon the trial the petition was denied and judgment entered in favor of respondents from which judgment petitioner appeals.

Appellant was a civil service watchman. On July 23, 1924, appellant was suspended from his position and on July, 25, 1924, the health officer filed charges of insubordination against him with the Department of Public Health. A hearing was had on these charges on September 11, 1924, and appellant was ordered discharged. This hearing was not attended by appellant. Subsequently he appealed to the civil service commission and on January 12, 1925, after a hearing, that commission passed a resolution sustaining the action of the Department of Public Health. On September 10, 1927, appellant filed his petition for a writ of mandate and on September 12, 1927, he filed an amended petition. By his amended petition appellant attacked the validity of the proceedings before the Department of Public Health, the main points urged being that jurisdiction was never acquired and that the evidence was insufficient to sustain the charge of insubordination. The answer denied the material allegations of the amended petition and set up the defenses of the statute of limitations and laches. The

[230]

trial court found against petitioner on practically all of the material issues.

Upon this appeal similar attack is made by appellant upon the proceedings before the Department of Public Health and upon the findings and conclusions of the trial court with respect thereto. It is contended that the “complaint” (before the Department of Public Health) is defective because it was not verified. Article 13, section 12 of the charter provides: “No person employed in the classified civil service shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. ’ ’ There is nothing in the charter requiring that the written charges be verified and we find no merit in this contention. It is further contended that the department did not acquire jurisdiction as the written charges were not