Sweetnam v. Board of Police Commrs. , 56 Cal. App. 644 ( 1922 )

I concur in the judgment. [1] It seems to be conceded by counsel that the only provisions relating to the removal of a police officer are those which are contained in section 93 of the city charter. That section nowhere vests the board of police commissioners with the power of removal. The power to remove or to suspend is conferred upon the chief of police. The board is vested with the power to review the action of that officer, but not with the power to make an order of removal or suspension. Nowhere in the petition is it alleged that petitioner was removed from office by the chief of police. The allegation is that petitioner "was dismissed from the employ of the police department . . . by the respondents and defendants herein" — the board of police commissioners of the city of Los Angeles and the individual members thereof. If, as seems to be conceded, the sole authority for the removal of a police officer is such as may be discovered in section 93 of the city's organic law, and if, as is alleged in the petition, the board of police commissioners undertook to remove or dismiss petitioner, such action on the board's part was but a bald usurpation of power that is vested elsewhere, namely, in the chief of police.[2] Where the inferior body is not a judicial tribunal its proceedings will be reviewed on certiorari only when its acts are of a judicial or quasi-judicial character. The board of police commissioners is not a judicial body; and the mere act of removing a person from office does not necessarily involve an exercise of judicial power. Rather is it an act of the executive department. [3] The removal of an officer involves the exercise of judicial functions only when the law by which the power is conferred requires notice and a hearing of the charge as a condition precedent to the removal. (Matter ofCarter, 141 Cal. 316 [74 P. 997].) [4] It follows, therefore, that if a board that has no power whatever to make an order of removal in any event shall, nevertheless, assume to remove one from office, no judicial function is exercised or assumed, since, as I have shown, the mere act of removing one from office involves the exercise of an executive, rather than a judicial power.

Moreover, if the board of police commissioners is not vested with the power to remove a police officer, but only with the power to review the action of the chief of police after the latter has removed or suspended the officer, then the board's purported order of removal, being wholly without force, determines no right. It is in legal contemplation as inoperative as though it had never been promulgated. It would not stand between petitioner and his right to receive the salary that goes with the office from which, if the allegations of the petition be true, the defendants ineffectively endeavored to remove him. [5] To justify the allowance of a writ of certiorari it must appear that the matter sought to be reviewed has at least some semblance of vitality; that, as long as it stands, it affects some right or interest of the party applying for the writ. (Clay v. Civil Service Commission,89 N.J.L. 194 [98 A. 312].)

Works, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 27, 1922.

All the Justices concurred.

Waste, J., was absent and Richards, J., pro tem., was acting.