Fickeisen v. Civil Service Commission of San Mateo County

• Decision Date: 13 July 1950
• Citation: 98 Cal.App.2d 419,220 P.2d 605
• Court: California Court of Appeals Court of Appeals
• Parties: FICKEISEN v. CIVIL SERVICE COMMISSION OF SAN MATEO COUNTY et al. Civ. 14280, 14292.

Page 605

220 P.2d 605

98 Cal.App.2d 419

FICKEISEN v. CIVIL SERVICE COMMISSION OF SAN MATEO COUNTY et al.

Civ. 14280, 14292.

District Court of Appeal, First District, Division 2, California.

July 13, 1950.

Rehearing Denied Aug. 12, 1950.

Hearing Denied Sept. 7, 1950.

Carl William Anderson, Cyrus J. McMillan, Burlingame, for appellant.

Louis B. Dematteis, Dist. Atty., San Mateo, Paul A. McCarthy, Redwood City, for respondents.

NOURSE, Presiding Justice.

Petitioner was a permanent employee in the classified Civil Service of San Mateo County assigned to the department of Public Health. He was discharged pursuant to an accusation duly filed and heard by the county Civil Service Commission charging him with misappropriation of county property. On September 16, 1947, he filed two separate actions in the superior court to review the proceedings before the commission and to effect his reinstatement--one in certiorari and one in mandate. On the certiorari action the court entered a judgment directing the commission to amend its findings. This was done, but no further judgment was entered, and in due time petitioner appealed to this court, the appeal numbered 14,292. In a subsequent mandate proceeding, which was heard before another trial judge, the court, on January 3, 1949, entered judgment for respondents denying the writ. The appeal from that judgment is numbered 14,280. Both appeals are presented on the same briefs pursuant to stipulation.

A separate clerk's transcript was filed in case number 45,112 and numbered herein as appeal number 14,280. This shows that a petition for a writ of mandate was filed in the superior court February 13, 1948, which, it was be noted, is subsequent to the judgment in the certiorari matter which was entered January 6, 1948. This record shows that this second application for mandate was heard on June 11, 1948, 'on the pleadings and proceedings herein' and judgment was entered January 3, 1949. (A reporter's transcript was filed herein showing that on September 30, 1948, some oral testimony was taken.)

In the certiorari matter there was filed a return of the commission containing numerous exhibits received in evidence before the commission. We do not find any portion of the reporter's transcript covering the oral evidence heard by the commission. Since it was incumbent upon the petitioner[98 Cal.App.2d 421] --both in mandate and certiorari--to prepare and file in the superior court a transcript of such testimony if he wished to contend that the evidence was insufficient, his failure to do so precludes an attack on the evidence on this appeal. McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46, 168 P.2d 65. And see Dare v. Board of Medical Examiners, 21 Cal.2d 790, 794, 136 P.2d 304.

But notwithstanding this condition of the record both parties in their briefs refer to testimony taken before the commission with references to pages and lines of the commission transcript which we must accept as correct quotations or wholly disregard. Since the litigation is of several year's standing we may assume that both parties desire an early decision, and, for that reason alone, we will accept these statements as accurate.

So treating the question we find sufficient evidence in the quotations made supporting the finding of the trial court that the findings of the commission were supported by substantial evidence. One of those findings is that a 'tray and other materials shown in said respondents' Exhibits A and B were unlawfully removed by appellant from Canyon Sanitarium to his home on King's Mountain on the 30th day of April, 1947, and were county property.' The testimony of several witnesses is referred to, identifying the property found at appellant's home as county property which he removed from the county sanitarium. Appellant cites conflicting testimony mainly addressed to the identification and ownership of the property. But this merely creates a conflict. Under such circumstances we are bound to disregard the evidence which was contrary to that received in support of the findings of the board. Nunes v. Board of Civil Service Com'rs, 88 Cal.App.2d 632, 636, 199 P.2d 311, and will resolve all doubts as to the sufficiency of the evidence in favor of the finding. Moran v. State Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20. Two trials of the same issues--one before the examining board and one before the superior court are sufficient to satisfy the highly overburdened doctrine of due process. The parties are not entitled to a retrial of the issues of fact on appeal. This principle has been frequently announced and consistently followed as noted in the Moran case, supra.

Secondly it is argued that the charge against appellant was a criminal charge and that accordingly he was entitled to all the presumptions available in a trial of a criminal case. The argument is unsound and has been rejected by competent authority. These proceedings, like those designed for the forfeiture of a professional license, are not controlled by the theories developed in the field of criminal law. Webster v. Board of Dental Examiners, 17 Cal.2d 534, 538, 110 P.2d 992; Gipner v. State Civil Service Comm., 13 Cal.App.2d 100, 106, 56 P.2d 535.

It is argued that the commission erred in denying appellant's motion to dismiss the charges made at the conclusion of the evidence produced by the County Executive. The statement is made that: 'The first four witnesses called by the County Executive and upon whom his case was rested failed in any degree to establish the...