Cole v. Portland , 96 Or. 645 ( 1920 )

BENNETT, J.

We are of the opinion that there was no error on the part of the executive board and civil service commission which can be revised in this review proceeding.

1. It is true that the record does not show that the plaintiff was arraigned or required to plead at his trial before the executive board and civil service commission. But the charter of the city does not require any such arraignment or plea, and at the time these proceedings were commenced before the executive board, there were no rules requiring anything of the Mnd.

2. The plaintiff appeared and had ample opportunity to, and did in fact, answer the charges before the executive board, and the proceeding before the civil service commission was initiated by him. Such proceedings are, in the nature of things, more or less informal, and something must be left to the wise discretion of the board of commissioners. It must be assumed, in the first instance, that the executive board and the civil service commission acted in good faith, and for the best interests of the police force and of the public.

It is urged that the mayor who filed the charges also sat as a member of the executive board, and a member of the commission at the time of the trial. Even if we assume that the fact that he had filed the charges against the plaintiff disqualified him from acting as a member of the board or commission while the matter was before them, it does not sufficiently appear that he participated in the trial to justify thé court in reviewing the proceedings upon that ground. Indeed, "his own affidavit and the affidavit of another of the commissioners show that he did not, and these affidavits are not disputed in any way.

3. In order to review the finding of the commission as to the sufficiency of the cause to justify the dismissal of the plaintiff as a police officer, it would be necessary for this court to pass upon a question of fact. There seems to have been a trial of the facts before the police committee, and another trial before the civil service commission, in both of which 'trials there was a finding against the plaintiff. Under the' circumstances, the courts would not be justified in interfering with the result of these trials.

It is well settled that upon a review the court cannot inquire into and pass upon the facts, when there is any evidence whatever to sustain the findings of the tribunal sought to be reviewed: Poppleton v. Yamhill County, 8 Or. 337, 340; Smith v. Portland, 25 Or. 297, 301 (35 Pac. 665); Oregon Coal Co. v. Coos Co., 30 Or. 308, 310 (47 Pac. 851); Garnsey v. County Court, 33 Or. 201 (54 Pac. 539, 1089); Roethler v. Cummings, 84 Or. 442, 447 (165 Pac. 355).

In Smith v. Portland, 25 Or. 297, 301 (35 Pac. 665), Mr. Justice Moore, delivering the opinion of the court and quoting from the previous decision, said:

“The authorities * * fully sustain the position that the writ of review only brings up the record of the inferior court, and that the superior court, upon review, tries the cause only by the record, and only as to questions of jurisdiction, and as to error in proceeding. It will not on review try questions of fact.”

The judgment of the Circuit Court must he reversed, and the finding and decision of the civil service commission affirmed. Reversed.