Baumgardner v. City of Hawthorne
| Decision Date | 31 May 1951 |
| Citation | 231 P.2d 864,104 Cal.App.2d 512 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BAUMGARDNER v. CITY OF HAWTHORNE et al. Civ. 18330. |
A. J. O'Connor, George J. Hider, Los Angeles, for appellants.
David Lynn, William F. Kistler, Inglewood, for respondent.
Appeal by the city of Hawthorne and four of its councilmen from a judgment ordering that a writ of mandate issue commanding them to reinstate petitioner as chief of police.
The matter was heard on the petition and the answer thereto. No evidence was taken. The judgment recites that 'The allegations of paragraphs V, VI and VII of the petition are not denied. The facts alleged therein show that the special meeting of the City Council held on August 25, 1950 at which the motion to discharge petitioner was acted upon, was illegally held. The action taken at said meeting, therefore, was void. The provisions of Section 17 of Ordinance No. 235 of the City of Hawthorne were not complied with. Accordingly the discharge of petitioner, in the manner in which it was accomplished, was illegal and void.
The following facts are alleged in the petition and admitted by the answer.
Hawthorne is a city of the sixth class. The respondents below, Greenwood, Hargrave, Baguley, Bateman, and Crozier, were and are members of the city council of Hawthorne; Keel is the city clerk, and Wirsching, the city manager. Crozier, Keel, and Wirsching did not appeal.
Petitioner, for 26 years, has been a member of the police department, and for 13 years prior to August 25, 1950, has been the appointed and acting chief of police of Hawthorne.
On September 23, 1935, the city council of Hawthorne adopted Ordinance No. 235. A copy is attached to the petition. The ordinance has been in full force and effect at all times since. Pursuant to the ordinance there was established a civil service commission and personnel system.
On August 25, 1950, appellants Greenwood, Hargrave, Baguley, and Bateman met at the city hall in Hawthorne and held what they declared to be a special meeting of the city council. A written call and waiver of notice of the special meeting for the purpose of considering and acting on the discharge of the chief of police was signed at the meeting by Greenwood, Hargrave, Baguley, and Bateman. Councilman Crozier did not sign the call and waiver of notice. He was not at any time given any notice of the special meeting, nor did he at any time in any manner consent to the holding of the meeting. He was not present. Thereupon, by vote of members present, a motion was adopted ordering the city manager to discharge petitioner as chief of police and as a member of the police department. Following the meeting the city manager served on petitioner a document reading: 'Pursuant to the order of the City Council and to good cause appearing therefore, I hereby discharge you as Chief of Police of the Police Department of the City of Hawthorne, Hawthorne, California, to become effective immediately on this day, Friday, August 25, 1950.' No written charges were served on petitioner at any time although he made demand therefor.
The petition alleges that petitioner is a member of the civil service system; that he took and passed the required competitive examinations and was duly appointed chief of police; and at the times complained of was the duly appointed, qualified and acting chief of police pursuant to said appointment and under and subject to the civil service system and ordinance. These allegations are admitted except that the answer alleges 'that petitioner at no time took a valid civil service examination as required by the aforesaid Ordinance No. 235, or any examination pursuant to said Ordinance; that said petitioner never qualified for a permanent appointment as Chief of Police of said City of Hawthorne; that no eligible list of qualified members of the Police Department for the appointment to the office of the Chief of Police was ever prepared; that petitioner's name never appeared on any such eligible list as required by said Ordinance and that the said petitioner never received any appointment to the office of the Chief of Police of said City of Hawthorne, except a temporary appointment; further, that the purported examination which the Petitioner alleged he has taken and passed was a sham and a fraud upon the City of Hawthorne and the Civil Service Commission.'
It is patent, we think, on the admitted facts, that the so-called special meeting of August 25, 1950, was illegally held and that the action of the four members of the city council was a nullity. Hawthorne is a city of the sixth class. Government Code, § 36806, 1949 Supp., which applies to cities of the sixth class, provides: Section 36806 is a codification of statutes 1941, chapter 545, section 3, page 1869, and prior statutes. See 2 Deering's Gen.Laws, Act 5233, p. 1982, § 858. In City of Orange v. Clement, 41 Cal.App. 497, 183 P. 189, it was held that a special meeting of the board of trustees of a city of the sixth class and all proceedings thereof are void where notice of the meeting is not given and one member of the board is absent. We do not understand appellants to contend otherwise. They claim that petitioner was a temporary employee; that he was discharged by the city manager; and that the city manager had the power to discharge him.
We think it clear on the admitted facts that petitioner was a permanent employee. The allegations of the answer with respect to the failure of petitioner to take a civil service examination are conclusions of the...
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