Stoker v. Bowron

• Court: California Court of Appeals
• Writing for the Court: DRAPEAU; WHITE, P. J., and DORAN
• Citation: Stoker v. Bowron, 129 Cal.App.2d 671, 277 P.2d 439 (Cal. App. 1954)
• Decision Date: 20 December 1954
• Parties: Charles F. STOKER, Plaintiff and Appellant, v. Fletcher BOWRON, as Mayor of the City of Los Angeles; William H. Parker, as Chief of Police of the City of Los Angeles et al., Defendants and Respondents. Civ. 20349.

Page 439

277 P.2d 439

129 Cal.App.2d 671

Charles F. STOKER, Plaintiff and Appellant, v. Fletcher BOWRON, as Mayor of the City of Los Angeles; William H. Parker, as Chief of Police of the City of Los Angeles et al., Defendants and Respondents.

Civ. 20349.

District Court of Appeal, Second District, Division 1, California.

Dec. 20, 1954.

Hearing Denied Feb. 16, 1955.

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

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., George W. Adams and Walter Carrington, Dep. City Attys., Los Angeles, for respondents.

DRAPEAU, Justice.

By the instant proceeding plaintiff sought a peremptory writ of mandate commanding defendants to reinstate him to the position of sergeant of the Los Angeles Police Department and to compensate him for his services as such.

The petition alleges the employment of plaintiff as a police officer from May 25, 1942 until December 14, 1949, when he was discharged by the Chief of Police.

In a verified complaint dated July 7, 1949, plaintiff was charged with conduct unbecoming an officer and insubordination. On July 15, a Board of Rights was convened pursuant to section 202, Article XIX of the Charter of the City of Los Angeles, St.1935, p. 2347. On December 12th, said Board found plaintiff guilty as charged. On December 14, 1949, the Chief of Police ordered plaintiff removed from his position with total loss of pay from the date of the complaint.

Pursuant to subdivision 16, section 202, supra, plaintiff on March 23, 1951, filed with the Chief of Police his request for a rehearing. This was denied April 19, 1951.

The instant petition, filed on December 12, 1952, further alleges that the action of the Board of Rights and the Chief of Police 'was and is arbitrary, capricious, wrongful, unlawful and not supported by the evidence.'

Defendants demurrer to the petition on the ground it was barred by laches. And argued in support thereof 'that petitioner has failed to allege compliance with the requirements of section 112 1/2 of the Los Angeles City Charter.'

Plaintiff appeals from the judgment of dismissal and from the order sustaining defendants' demurrer without leave to amend.

Appellant states the question for decision here as follows: Must section 112 1/2 be read into section 202 as a part of the procedure for removal of appellant from his position in the police department?

Section 112 1/2 of Article IX of the Charter of the City of Los Angeles, Stats.1937, p. 2858, provides in part as follows:

'Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged. Such demand for reinstatement must be filed with the Board of Civil Service Commissioners and such claim for compensation for such allegedly wrongful, illegal or erroneous discharge must be filed with the City Clerk. Failure to file such demand for reinstatement within the time herein specified shall shall be a bar to any action to compel such reinstatement and proof of filing such a demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement.'

The instant proceeding was initiated by appellant upon the theory that the Charter provides two separate and distinct methods of prosecuting charges of misconduct against employees in the classified service of the City. Under the first method, the employee is entitled to a hearing before the Civil Service Commission as provided in section 112 of the Charter, St.1945, p. 3097. This section applies to all employees except firemen and policemen.

The second method is set forth in section 135 of the Charter, St.1935, p. 2341 (applying to firemen), and in section 202, applying to policemen. These two sections which are practically identical, provide a complete procedure for trial and punishment by a Board of Rights, consisting of higher officers in the department chosen for the purpose of trying the charges against accused. When a police officer is discharged under the provisions of section 202, he may at any time within three years thereafter apply to the chief of police for a hearing under the provisions of subsection (16). From the foregoing, appellant asserts that since the Civil Service Commission has no jurisdiction over disciplinary proceedings against firemen and policemen, and has no authority to grant a rehearing, it necessarily follows that section 112 1/2 has no application to them.

In Varela v. Board of Police Commissioners, 107 Cal.App.2d 816, 820, 238 P.2d 62, 64, it was asserted that appellant Varela could not maintain a proceeding in mandamus to compel his reinstatement as sergeant in the Los Angeles police force, 'without having first made a demand upon the Board of Civil Service Commissioners for reinstatement, which he failed to do within the time prescribed by section 112 1/2 of the City Charter.'

The court there stated: 'Appellant tacitly admits that he was required to file a demand for reinstatement as...