Drake v. Quinn

THE COURT. This is an appeal from a judgment dismissing the petition for a writ of mandate after demurrer thereto had been sustained without leave to amend.

It is alleged in the petition for the writ that Curtis P. Drake was a member of the Volunteer Fire Department of the city of Eureka receiving an annual salary of $1680, payable monthly, and that on the 4th day of February 1938, the chief engineer of the fire department suspended petitioner Drake and filed proper charges against him alleging that petitioner was disqualified, -incompetent and inefficient. A hearing was had before the city council, which adopted the resolution sustaining the charges and discharging petitioner for insubordination, inefficiency, and for the benefit of the citizens of the city of Eureka. It was declared this action was taken for the benefit of the public service and for the improvement of the fire department. This latter ground is pursuant to summary proceedings authorized by the charter. That power is vested in the council. The charter further provides “no salary shall be payable . . . from the date of suspension. ’ ’

[261]On or about the first day of February, 1938, the Chief Engineer of the city of Eureka filed charges against petitioner, who is the appellant herein, setting forth certain facts, and alleging dereliction of duties, disobedience of orders, insubordination, incompeteney and misconduct, and that the efficiency of the department would be improved by his removal. A copy of these charges was served upon appellant. Eureka is governed by a charter adopted in 1895 (Stat. 1895, page 356 Deering’s Gen. Laws, 1937, Act 2417). At that time the entire fire department of the city was voluntary. In 1928 the city passed Ordinance No. 1041, which declared “the paid fire department of the city of Eureka shall consist of eleven (11) paid men in addition to the chief engineer,” and in later ordinances reference is made to firemen receiving compensation as the paid members of the fire department.

One of the questions here for determination is- whether Eureka has a paid fire department. Another question is, when charges are filed against a municipal employee, after a full hearing of the charges, has the city council authority to discharge such an employee without passing an ordinance providing procedure for trials?

We shall first consider the question as to whether or not the city council had authority to discharge an employee without passing an ordinance providing procedure for trials.