Boren v. State Personnel Bd.

• Citation: 234 P.2d 981,37 Cal.2d 634
• Court: United States State Supreme Court (California)
• Decision Date: 10 August 1951
• Parties: BOREN v. STATE PERSONNEL BOARD et al. L. A. 21390.

Page 981

234 P.2d 981

37 Cal.2d 634

BOREN v. STATE PERSONNEL BOARD et al.

L. A. 21390.

Supreme Court of California, in Bank.

Aug. 10, 1951.

Rehearing Denied Sept. 7, 1951.

George E. Cryer and R. Alston Jones, Los Angeles, for appellant.

Fred N. Howser and Edmund G. Brown, Attys. Gen., Howard S. Goldin and Bayard Rhone, Deputy Attys. Gen., for respondent.

TRAYNOR, Justice.

This appeal is on the judgment roll from a judgment of dismissal entered on an order sustaining a demurrer to plaintiff's second amended complaint without leave to amend.

The complaint in form is simply a complaint in a civil action. Plaintiff seeks to annul an order of defendant State Personnel Board dismissing him from his civil service position and also seeks a judgment awarding him the salary accruing thereto from the date of his suspension. For this relief, an ordinary civil action is inappropriate. See Tenth Biennial Report of the Judicial Council of California, 133-145. Since the enactment of section 1094.5 of the Code of Civil Procedure, it is no longer open to question that in this state the writ of mandamus is appropriate 'for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer * * *.' The proceedings of the State Personnel Board in connection with plaintiff's dismissal were clearly of the type envisioned by section 1094.5, see, Gov.Code, § 19570 et seq., and the writ of mandamus will therefor lie to review the Board's decision. Since the jurisdiction of the State Personnel Board, including its adjudicating power, is derived directly from the Constitution, Article XXIV, § 3(a); cf. Covert v. State Board of Equalization, 29 Cal.2d 125, 131-132, 173 P.2d 545, the writ of certiorari is also available to review the Board's decisions. O'Brien v. Olson, 42 Cal.App.2d 449, 453-457, 460, 109 P.2d 8; Code Civ.Proc. §§ 1068, 1074. As against a general demurrer, however, it is unimportant that plaintiff's pleading was not in form a petition for mandamus or certiorari. All that is required is that plaintiff state facts entitling him to some type of relief, and if a cause of action for mandamus or certiorari has been stated, the general demurrer should have been overruled. Grain v. Aldrich, 38 Cal. 514, 520; Brown v. Anderson-Cottonwood Irr. Dist., 183 Cal. 186, 188, 190 P. 797; Estate of Brown, 196 Cal. 114, 125-126, 236 P. 144; In re City and County of San Francisco, 195 Cal. 426, 429, 233 P. 965; In re California Toll Bridge Authority v. Wentworth, 212 Cal. 298, 309, 298 P. 485; Board of Trustees v. State Board of Equalization, 1 Cal.2d 784, 787, 37 P.2d 84, 96 A.L.R. 775; Traders' Credit Corp. v. Superior Court, 111 Cal.App. 663, 667, 296 P. 99; Husband v. Superior Court, 128 Cal.App. 444, 448, 17 P.2d 764; Code Civ.Proc. §§ 452, 580, 1109.

Even if the second amended complaint is regarded as a petition for a writ of mandamus or certiorari, it fails to allege any facts that would justify granting the relief sought.

Review of an administrative order by means of mandamus is governed by section 1094.5 of the Code of Civil Procedure, which provides: '* * * (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.'

Plaintiff has failed to allege facts that establish any lack or excess of jurisdiction. Sections 2(c), 3(a), and 5(a), of Article XXIV of the Constitution vest the State Personnel Board with jurisdiction over all dismissals, demotions, and suspensions in the state civil service. See also Government Code, § 19570 et seq. The order dismissing plaintiff from his civil service position was therefore within the jurisdiction of the Board.

With respect to the requirement that he be accorded a fair trial, plaintiff contends that the State Personnel Board was a party to his contract of employment and is therefore unable to render an unprejudiced decision concerning it. The very nature of a contract with the state, however, makes impossible an interpretation or enforcement of it that is, in the strictest sense, 'disinterested' some officer, agency, or court of the state itself must ultimately decide what are the state's rights and obligations. Protection to those who deal with the state is provided, not by referring controversies to third parties, but by electing and appointing conscientious officials and judges. To obtain responsible control over state employment the civil service system was established by the people. Const. Art. XXIV. The power to discipline employees was largely transferred from various officials and departments to the State Personnel Board. It was contemplated, furthermore, that civil service should be under the Board's supervision, to the end that all personnel matters be expertly and uniformly administered. There is no unfairness, therefore, in the fact that plaintiff's rights have been decided in the first instance by the same public agency with which he dealt at the time of his appointment. The position of the State Personnel Board in this respect is not unlike that of the Board of Medical Examiners and other licensing agencies that supervise the granting of licenses, the scope of the activities permitted thereunder, and, when necessary, the disciplining of licensees. See, Dare v. Board of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304; Webster v. Board of Dental Examiners, 17 Cal.2d 534, 110 P.2d 992; Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545; O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8. Moreover, state employment is accepted subject to statutory provisions regulating such matters as salary, working conditions, and tenure, State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 232 P.2d 857; Risley v. Board of Civil Service Commissioners, 60 Cal.App.2d 32, 36-39 and plaintiff is presumed to have known when he joined the civil service that the State Personnel Board is charged by law with deciding all questions of dismissal. Const. Art. XXIV; Govt.Code, § 19570 et seq. The State Personnel Board was therefore a proper tribunal, and, since there is no claim that any member of the Board was prejudiced against plaintiff, it must be concluded that he has failed to allege facts that would establish the denial of a fair trial.

Although the complaint does not expressly allege an abuse of discretion within the meaning of section 1094.5, plaintiff's principal contention is to that effect.

It is alleged, in substance, that by reason of the representations of the State Personnel Board and the terms of plaintiff's acceptance of the offer of employment, it was a condition of his contract that he would not be required to serve outside the Southern California area; that he was ordered by his superior to report for duty at Sacramento, which is not in Southern California; that he refused to obey this order on the ground that it was contrary to his contract; that the charges before the State Personnel Board were based on this refusal; that his answer to the charges set up this condition of his contract; that the State Personnel Board 'made no findings as to the location at which plaintiff had been appointed to serve, or as to the condition upon which he had accepted appointment to his position, * * * and said State Personnel Board declined to attach any significance to the conditional nature of plaintiff's employment; and said board entirely ignored plaintiff's defense that his contract of employment * * * justified his failure to obey the order of his superior to report for duty at Sacramento.'

Under certain conditions, the failure of the Board to consider a proper defense set up by the party charged or to make findings thereon might constitute a failure to proceed 'in the manner required by law' and therefore an abuse of discretion under section 1094.5. See Govt. Code, § 19578, 19582; cf. Webster v. Board of Dental Examiners, 17 Cal.2d 534, 543, 110 P.2d 992. In this case, however, even had the Board made findings in accord with plaintiff's allegations of fact, such findings would not support the conclusion that his employment was conditional in nature and that the condition justified his refusal to report for duty at Sacramento. It is true that a demurrer assumes the truth of the facts alleged in the complaint, and it is also true that a contract may ordinarily be pleaded by its legal effect. Implicit in plaintiff's allegations, however, is the claim that the State Personnel Board had authority to promise on behalf of the state that plaintiff would not be required to serve elsewhere than in Southern California. Since the Board's authority is governed by the Constitution and by the Civil Service Act. Govt.Code, § 18500 et seq., both of which are the subject of judicial notice, Code of Civil Procedure, § 1875(2)(3), the scope of that authority is a question of law and may properly be considered on demurrer. Branham v. Mayor etc. of City of San Jose, 24 Cal. 535, 602; see also, Ohm v. City and County of San Francisco, 92 Cal. 437, 449-450, 28 P. 580; Callahan v. Broderick, 124 Cal. 80, 83, 56 P. 782.

The terms and conditions of civil service employment are fixed by statute and not by contract. State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 232 P.2d 857; Risley v. Board of Civil Service Commissioners, 60 Cal.App.2d 32, 36, 140 P.2d 167; Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 298, 168 P.2d 741; City of...