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


Civ. 18061.

Decided: August 16, 1951

George E. Cryer, R. Alston Jones, Los Angeles, for appellant. Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., George Williams Adams, and John F. Feldmeier, Deputy City Attys., Los Angeles, for respondents.

The initial question which we are called upon to decide and which we regard as decisive is whether the appellant, a regular fireman employed by the City of Los Angeles, was subject to removal under section 135 of the City Charter by reason of ‘physical inability to properly perform the duties required of all uniformed personnel’ in the Department of Fire of the respondent City. The question presented involves merely an interpretation of the section of the charter mentioned.

Section 135 provides that an employee, of the character of the plaintiff, may not be deprived of his position and the compensation that goes with it; that is to say ‘suspended, removed, deprived of his * * * position, or otherwise separated from the service of the Fire Department (other than by resignation), except for good and sufficient cause shown upon a finding of ‘guilty’ of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights * * *. Such charges must be based upon some act committed or omitted by such * * * employee * * *.'

The plaintiff employee was taken ill on or about March 1, 1948, with a sore throat and cold which upon subsequent diagnosis was found to be a hyperthyroid disease. Upon the recommendation of the police surgeon the chief engineer temporarily relived the appellant from duty. On May 9, 1948, he resumed his duties with the department. A request by the chief engineer that he resign was refused by appellant. On November 9, 1948, appellant while engaged in fighting a mountain fire was exposed to a poison oak infection which resulted in a return of the thyroid symptoms. As hospitalization was required appellant was granted an off-duty period to expire on March 3, 1949. At that time the appellant was still undergoing treatment and accordingly was unable to return to duty. Thereupon the chief engineer temporarily relieved appellant from duty pending a hearing before and decision by the Board of Rights. At the hearing appellant admitted his physical inability to fulfill his duties as fireman, but stated he felt he would shortly be capable of doing so and hence requested that he be given lighter duties for a period or in the alternative that he be suspended for six months and that at that time it be ascertained if he was capable of fulfilling all the duties of a fireman. The Board of Rights found appellant ‘guilty’ of the charge made against him and ordered his removal from the service.

Upon the facts as we have just stated them it seems to us entirely apparent that the removal was for a cause not within the language or spirit of section 135.

The contention of the City of Los Angeles that the voters in enacting section 135 contemplated it would cover the situation here narrated is an entirely gratuitous assumption without an iota of fact to sustain it. We read charters as they are written and do not supply them with language that is wanting. The order of removal was made without jurisdiction.

The judgment is reversed and the cause remanded with directions to the court below to enter judgment in favor of plaintiff directing his restoration to his position in the Department of Fire as of March 3, 1949, and further that pursuant to Subsection 12 of Section 135, Article X, of the Charter of the City of Los Angeles that it be further directed that such restoration to duty be without loss of pay, less the amount plaintiff has received, if any, from private or public employment during the period he was prevented from performing his duties. The trial court is directed to take evidence as to the remuneration received by plaintiff from private or public employment after March 3, 1949, and to deduct any amount so received from the monthly salary due plaintiff from the city for the period covered by such employment, and to enter judgment for plaintiff for any balance.

HANSON, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.

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