Hackett v. Morse

LANGDON, P. J.

This is an appeal from a judgment for the plaintiff in the sum of $1,764.78 against the appellant city of Oakland, which judgment also directed the issuance of a writ of mandate commanding appellant F. F. Morse, as commissioner of public health and safety of the city of Oakland, to reinstate plaintiff and respondent to his position in the fire department of the city of Oakland. The case

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was submitted to the trial court upon an agreed statement of material facts, from which it appears that, on May 27, 1918, the plaintiff was a member of the fire department of the city of Oakland; that the said position of the plaintiff was at all times mentioned herein and now is in the classified civil service of said city of Oakland; that, on May 27, 1918, plaintiff was suspended by the chief of the fire department for refusal to obey an order of the said chief of the fire department; that, on June 3, 1918, without having had a hearing or trial, and without having been served with a copy of any charge or charges against him, plaintiff was informed by the commissioner of public health and safety that he was discharged from the fire department on the ground of insubordination. Plaintiff filed a notice of appeal from the order of said commissioner with the civil service board within the time prescribed by the city charter. The matter was heard by the civil service board, the commissioner of public health and safety and the plaintiff both being represented by counsel. Thereafter, the civil service board rendered its decision by which the plaintiff was found not guilty of insubordination that would warrant his discharge from his position, and that such penalty would be unjust, and it was ordered that he be retained in his said position, and that he report for duty and resume his work in said position upon August 1, 1918. The board further stated in its decision: “That it is the opinion of the board that for making any objection to being transferred to Engine Company No. Six that said Thomas Hackett should not be entitled to or receive any compensation from the city from June 3, 1918, to August 1, 1918.” A certified copy of the findings and decision of the civil service board were served upon the commissioner of public health and safety, as provided for in the city charter. The plaintiff reported to the said commissioner several times and requested to be assigned to his position in said fire department, and was refused. The amount of salary that would have been earned by the plaintiff in his said position from August 1, 1918, to September 30, 1919, as prescribed by the city charter, is $1,764.78, the amount for which the plaintiff secured judgment against the city.