English v. City of Long Beach

Citation18 A.L.R.2d 547,217 P.2d 22,35 Cal.2d 155
Parties, 18 A.L.R.2d 547 ENGLISH v. CITY OF LONG BEACH. L. A. 21257.
Decision Date17 April 1950
CourtUnited States State Supreme Court (California)

Irving M. Smith, City Attorney, Clifford E. Hayes and Dewey L. Strickler, Deputy City Attorneys, Long Beach, for appellants.

Kenneth Sperry, Long Beach, for respondent.

GIBSON, Chief Justice.

The civil service board of Long Beach approved the action of the city manager in dismissing the petitioner, Henry W. English, from his position as patrolman in the police department. English sought a writ of mandate annulling the board's order and compelling his reinstatement. The trial court concluded that a board rule requiring petitioner to take and pass a physical examination was invalid, and that petitioner was deprived of a fair hearing because the board in reaching its decision relied upon evidence taken outside the hearing. The judgment required the board to set aside its order sustaining the dismissal and directed that petitioner be reinstated as of August 3, 1945. This appeal followed.

Between December 24, 1944, and July 15, 1945, English was absent from duty on sick leave, vacation and leave of absence. When he reported back for duty he was informed that he would not be permitted to return until he had taken and passed a physical examination as required by civil service rules and regulations. The rules provide that an employee who has been absent for six months or more shall be required to take and pass a physical examination to be given by a board of physicians before being entitled to return to active duty, and that failure to pass such examination shall constitute grounds for suspension or dismissal.

English submitted to an examination, the report of which was adverse to him. On August 3, 1945, the city manager filed with the civil service board and served on English a written notice of dismissal based on charges that he had failed to pass the required examination and that he had a physical ailment or defect which incapacitated him for the proper performance of the duties of his position.

On September 12, 1945, a hearing was held before the civil service board on the charges filed. English was present and represented by counsel, both parties called witnesses who testified concerning his physical condition and its relation to the performance of his duties. The matter was twice continued, once at the request of English and the other time by the board on its own motion. Members of the board took evidence outside the hearing and outside the presence of English or his attorney. Some of them talked to one of the examining doctors, and one member questioned his personal physician concerning the relation of English's asserted disability to the performance of the duties of his position. The information thus received was imparted to other board members, and was considered and relied upon by thim in arriving at their decision.

On January 23, 1946, the board found that English was physically unable to perform the duties of patrolman and sustained his dismissal as of August 3, 1945.

The validity of the board's rule which requires an employee to take and pass a physical examination before resuming work after an extended absence and which provides that failure to pass the examination shall constitute grounds for his suspension or dismissal was established in English v. City of Long Beach, 77 Cal.App.2d 894, 176 P.2d 940. It was there held that failure to pass the examination does not automatically disqualify an employee, and that the employee is entitled to be compensated until written charges against him have been served and filed, upon which charges he is entitled to a hearing before the civil service board. Thus the rule does not leave the determination of whether or not an employee shall be suspended or dismissed to the uncontrolled discretion of the examining physicians. They act as a group of experts, and their findings and conclusions form merely part of the evidence to be considered by the board in determining whether the employee shall be suspended or dismissed.

The principal question is whether English was deprived of a fair trial. The Long Beach city charter and the rules and regulations of the civil service board require that a discharged employee be accorded a hearing. English v. City of Long Beach, 77 Cal.App.2d 894, 176 P.2d 940; cf. La Prade v. Department of Water & Power, 27 Cal.2d 162 P.2d 13. In conducting the hearing, the board acts as a local administrative tribunal, and it has Power, 27 Cal.2d 47, 162 P.2d 13. In conducting connection with matters properly submitted to it. The action of such an administrative board exercising adjudicatory functions when based upon information of which the parties were not apprised and which they had no opportunity to controvert amounts to a denial of a hearing. La Prade v. Department of Water & Power, 27 Cal.2d 47, 162 P.2d 13; see Bandini Estate Co. v. Los Angeles County, 28 Cal.App.2d 224, 231, 82 P.2d 185; cf. Carstens v. Pillsbury, 172 Cal. 572, 158 P. 218. Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and nothing can be considered as evidence that was not introduced at a hearing of which the parties had notice or at which they were present. United States v. Abilene & So. Ry. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016; Interstate Commerce Comm. v. Louisville & Nashville R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; La Prade v. Department of Water & Power, supra; Bandini Estate Co. v. Los Angeles County, supra; Carstens v. Pillsbury, supra. The fact that there may be substantial and properly introduced evidence which supports the board's ruling is immaterial. Cf. Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093. A contrary conclusion...

To continue reading

Request your trial
88 cases
  • Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, S.F. 22660
    • United States
    • United States State Supreme Court (California)
    • February 26, 1970
    ...or regarding the evils alleged to be causally associated with topless waitresses. As we held in English v. City of Long Beach (1950) 35 Cal.2d 155, 158, 217 P.2d 22, 24: 'Administrative tribunals which are required to make a determination after a hearing cannot act upon their own informatio......
  • Bogacki v. Board of Supervisors
    • United States
    • United States State Supreme Court (California)
    • October 8, 1971
    ...246 P.2d 656; cf. Brotsky v. State Bar of California (1962) 57 Cal.2d 287, 19 Cal.Rptr. 153, 368 P.2d 697; English v. City of Long Beach (1950) 35 Cal.2d 155, 217 P.2d 22.) The proposed interpretation of the resolution would permit us to sustain the constitutionality of the county's enactme......
  • Bixby v. Pierno
    • United States
    • United States State Supreme Court (California)
    • February 23, 1971
    ...... the judgment must be affirmed: the trial court properly followed our long established approach to the judicial review of a decision of a statewide ... (See Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, 129 P.2d 349.) The court relied ...Reilly, 37 Cal.2d 713, 716--717, 234 P.2d 969; English969; English v. City of Long Beach......
  • Voices of Wetlands v. State Water Res. Bd.
    • United States
    • California Court of Appeals
    • December 14, 2007
    ...proper proceedings." (Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 546, 190 P.2d 937; see also, e.g., English v. City of Long Beach (1950) 35 Cal.2d 155, 159-160, 217 P.2d 22; Clark v. City of Hermosa Beach (1996) 48 Cal. App.4th 1152, 1174, 56 Cal.Rptr.2d 223.) A second example of us......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT