Garvin v. Chambers , 195 Cal. 212 ( 1924 )

I dissent.

I concur generally with the reasoning and conclusions of Mr. Justice Seawell except that I am not prepared to subscribe to the conclusion that under the language of the Oakland charter the decision of the civil service board is not subject to review by the courts upon certiorari. That review, however, touches only the question of jurisdiction. Upon the admitted facts of this case the civil service board had jurisdiction, both of the subject matter and of the parties. It was expressly vested in this proceeding with the jurisdiction to hear and determine the appeal and to annul or affirm the order appealed from. If it did either of these upon insufficient evidence, its action in so doing was but error in the exercise of jurisdiction. As was pointed out in Roberts v. Police Court,185 Cal. 65 [195 P. 1053], insufficiency of the evidence is never a ground for reversal of a judgment or order uponcertiorari except when such evidence goes to prove the existence of jurisdictional facts. The jurisdictional facts herein were, first, the order of the head of the department discharging the petitioner, and, second, the taking of an appeal by petitioner to the civil service board within five days thereafter. The existence of these facts was conceded throughout this proceeding. The evidence which the prevailing opinion herein deems insufficient goes solely to the merits of the controversy. Upon the question of its sufficiency for this purpose the decision of the civil service board, whether right or wrong, is not open to review upon certiorari. If we were authorized upon this review to consider the sufficiency of the evidence to support the conclusion upon the merits (which we are not), I should agree with the conclusion of Mr. Justice Seawell that the evidence is not insufficient to support a finding that petitioner's conduct was subversive of the discipline of the department, and that the decision of the civil service board should, therefore, be affirmed, even if this were a review upon appeal.

Waste, J., concurred.

Rehearing denied.

Myers, C.J., Waste, J., and Seawell, J., dissent from the order denying the petition for rehearing.