SWARS v. COUNCIL OF CITY OF VALLEJO

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District Court of Appeal, Third District, California.

SWARS v. COUNCIL OF CITY OF VALLEJO et al.

Civ. 7513.

Decided: November 08, 1948

J. W. O'Neill, of Oakland, for appellant. Rolland L. Pope, of Vallejo, for respondents.

This case was formerly before this court on an appeal from an order of the Superior Court of Solano County which denied a petition for a writ of certiorari filed therein by appellant. We then held that the order denying the writ should be reversed. 64 Cal.App.2d 858, 149 P.2d 397. Thereafter the trial court issued the writ, respondents made a return thereto, and the matter was submitted to that court upon the verified petition and the return, copies of Bills Nos. 821 N.S. and 793 N.S. of the city of Vallejo being made a part of the said return. Nearly three years later the said court rendered a decision in favor of respondents, and this appeal was taken therefrom.

The allegations contained in appellant's petition for the writ were that he was a sergeant of police in the city of Vallejo, qualified under civil service rules; that on October 10, 1942, the chief of police presented to the city council a written recommendation that petitioner be dismissed for the reason that he had conducted himself in a manner unbecoming a police officer in that he had unnecessarily and unmercifully beaten an intoxicated person; that the city council had thereupon dismissed petitioner, whereupon he had requested the Civil Service Commission of the city to review said matter; that said commission set said matter for hearing and petitioner with his attorney appeared at the time and place set, and demanded a public hearing which was denied; that petitioner thereupon left, and the hearing proceeded behind closed doors. The petition also alleged, on information and belief, that no testimony had been received at said hearing that petitioner had ever inflicted personal injuries upon anyone; and it was also urged that the commission failed to make findings as required by the charter, and that therefore the commission had exceeded its jurisdiction in dismissing petitioner.

The return made by respondents after the prior decision of this court contains a stenographic report of the proceedings before said commission, and testimony given by the various witnesses called. It also contains minutes of the executive secretary of the commission, dated October 30, 1942, which recite that the commission adopted the following ‘Resolution’:

‘After due consideration of the evidence presented in this case, we, the Vallejo Civil Service Commission, uphold the action taken by the City Council in the adoption of Resolution 28191 N.S., dated October, 10, 1942, wherein the office of Police Sergeant held by William J. Swars, is hereby declared vacant and he is hereby dismissed from the service of the City of Vallejo effective the 10th day of October 1942.’ (Italics ours.)

Appellant now contends that from this record it appears that the commission failed to comply with the provision of the city charter that it make ‘written findings and conclusions'; that his dismissal was invalid because the jurisdiction of the commission to order it does not appear upon the face of the record; that there was no evidence before the commission that would support a finding that he was guilty of ‘conduct unbecoming an officer, said misconduct consisting of unnecessarily and unmercifully beating an intoxicated person’; and that he was denied a public hearing though same was demanded.

The charter of the city of Vallejo, as amended in 1941, Stats.1941, ch. 62, p. 3377, provides that a civil service employee may be demoted or removed from office for ‘misconduct, incompetency, inefficiency, failure to perform the duties, or to observe the rules and regulations of the department.’ An employee has a right of appeal to the civil service commission when his dismissal has been ordered by the city council, and to file an answer to charges against him; the commission shall then hold a hearing, at which time it shall hear evidence for or against said employee. ‘Written findings and conclusions' shall be made by the commission within ten days, and thereafter same shall be certified to the city council and to the official from whose order the appeal has been taken.

Respondents contended that the resolution above set forth was sufficient to comply with the requirement that the commission make ‘written findings and conclusions.’ We cannot agree with this contention. The resolution of the commission makes no finding of fact whatsoever. It merely ‘upholds the action’ taken by the council in dismissing petitioner. It does not purport to find that petitioner unnecessarily and unmercifully beat an intoxicated person—which was the only thing charged to justify his dismissal. Respondents say that when the commission upheld the action taken by the city council it found that the reasons stated in the council's resolution were true—that any other interpretation of the action of the commission ‘is unreasonable.’ If respondents mean that in order to support the order of dismissal the commission was required to find that petitioner was guilty of the charges against him, we may agree; but as stated in our former decision (64 Cal.App.2d 864, 149 P.2d 397), no presumptions can be indulged in favor of the orders of the commission; and in the absence of any finding by the commission that the charges were true, we cannot presume that it so found. All that the resolution shows is the conclusion of the commission that petitioners should be dismissed; its reasons are left for surmise.

The general rule, which applies as well to a commission such as this civil service commission as to a court, is that where written findings and conclusions are required by law, such findings must be made in writing, and they must be findings of fact; and that such findings of fact must be sufficient to support the conclusions which purport to follow therefrom.

It is said in 42 Am.Jur., sec. 149, p. 494:

‘An administrative officer exercising delegated powers must comply with the statutory requirements for the exercise of such powers, and if the making of a finding is a condition precedent to an act, the fulfillment of that condition should appear in the record of the act, or the act is void. However, the necessity for a finding to sustain an administrative order does not rest wholly upon a statutory requirement of a finding. Apart from statutes requiring findings, an order of an administrative body cannot be sustained unless supported by findings of the basic or quasi-jurisdictional facts conditioning its power.’

In 36 C.J.S., Find, page 767, a ‘finding’ is defined as ‘A word which imports the ascertainment of a fact in a judicial proceeding. Specifically applied, the term is defined as an ascertainment of facts by the court * * * or by an administrative board as the result of a hearing.’

Numerous cases defining ‘finding’ and establishing the necessity of compliance with statutory requirements regarding them, are set forth in 17 Words and Phrases, Perm. Ed., pages 16–19 and 20–24; and in 146 A.L.R. 209–239, is to be found a note on the subject of findings of fact to support administrative determinations, citing numerous cases supporting the rule that compliance with statutory requirements for findings of fact is necessary to support orders of administrative agencies. That note follows the reported case of Laney v. Holbrook, 150 Fla. 622, 8 So.2d 465, 146 A.L.R. 202, a case frequently cited, in which it was held that where an order of a county board of public instruction removing a public school principal failed to state the facts found upon which the order was based, the order should be quashed by a reviewing court and the case remanded to the board to make findings of fact with sufficient definiteness to advise the principal as to what facts the board found sufficiently proved to substantiate charges that would warrant the forfeiture of his position. Also see same case in Laney v. Board of Public Instruction for Orange County, 153 Fla. 728, 15 So.2d 748, 753, where the court said that ‘Administrative findings, in order to be upheld by the courts, must be supported by substantial evidence.’

In Scudder v. O'Connell, 272 App.Div. 251, 70 N.Y.S.2d 607, 609, it was held that the State Liquor Authority, in denying a license to sell liquor, should make findings of fact which show the actual grounds of the decision, so that a reviewing court may determine whether the findings are supported by the evidence, and whether the facts, so found, are legally sufficient to support the determination. As reasons for such conclusion the court there quoted from a report of the commissioner to the effect that:

‘Intelligent judicial review of a quasi-judicial determination is possible only if the deciding officer has made findings of fact which show the actual grounds of decision,—findings sufficiently specific so that the reviewing court may judge, first, whether the findings themselves are supported by the evidence in the record of the quasi-judicial hearing and, second, whether the facts so found are legally sufficient to support the determination. Primarily to provide the necessary basis for intelligent judicial review, therefore, the courts have laid down a requirement that such findings of fact be made (citing cases). Such findings are required whether or not the departmental statute governing the procedure of the particular agency contains specific provision for findings of fact, as some statutes do.

‘Findings of fact serve other purposes besides affording a basis for intelligent judicial review. The obligation to formulate findings, rather than simply to announce a result tends to assure considered action by the administrative deciding officer. As a corollary, the findings themselves offer some assurance to the parties that the decision has been arrived at rationally, on the evidence; and the findings at least enable the parties to judge for themselves the soundness of the decision, and afford them assistance in deciding whether or not to seek to reverse it on rehearing or judicial review.’

In that case the court cited Wood v. Board of Education of the City of New York, 267 App.Div. 959, 47 N.Y.S.2d 221, where the court said: ‘The report of the trial committee did not include findings of fact, so that, in adopting the report without making findings of fact of its own, the dismissal was not predicated upon any factual basis.’ (With citations.)

In Aniolek v. Conservation Department, 267 App.Div. 795, 45 N.Y.S.2d 534, the court said, regarding a determination of the Conservation Commissioner discharging a game protector accused of trapping activities and the setting of snares by which wild animals were taken, that: ‘The Commissioner made no findings and for that reason alone we are required to annul the determination.’ The court then cited Elite Dairy Products, Inc., v. Ten Eyck, 271 N.Y. 488, 3 N.E.2d 606, 610, where the court said that only after the commissioner has made findings of fact can the count decide whether the findings are sustained by the evidence. And in Petition of New York Water Service Corp., 283 N.Y. 23, 27 N.E.2d 221, 224, it was said:

‘Findings of fact in support of decisions by courts and administrative boards alike serve to give assurance to parties concerned that the decisions are based upon evidence of record and were not reached arbitrarily or influenced by extra-legal considerations. Where, as in this instance, a statutory review of the decision may be had (Conservation Law, § 523) findings of fact in some form are essential to enable the parties and any appellate court intelligently to determine whether the decision follows as a matter of law from the facts stated as its basis and whether the findings of fact have any substantial support in the evidence.’

Also see California Employment Comm. v. Malm, 59 Cal.App.2d 322, 324, 138 P.2d 744; Herman v. Glasscock, 68 Cal.App.2d 98, 101, 102, 155 P.2d 912; Tennessee Cent. R. Co. v. Pharr, Tenn.App., 198 S.W.2d 289, 293; Chicago Rys. Co. v. Commerce Comm., 336 Ill. 51, 167 N.E. 840, 845, 846; Toyos v. Bruckman, 266 App.Div. 28, 41 N.Y.S.2d 672, 674; People v. State Tax. Comm., 261 App.Div. 416, 26 N.Y.S.2d 425, 429.

As for appellant's contention that there was no evidence before the commission that would support a finding that he was guilty of ‘conduct unbecoming an officer, said conduct consisting of unnecessarily and unmercifully beating an intoxicated person,’ since the commission has made no such finding it is unnecessary to pass upon this matter at this time.

As for his final contention, that he was entitled to a public hearing, appellant cites no decisions in support thereof. While Art. 1, sec. 13, of the Constitution of this state provides that in criminal prosecutions, in any court whatever, the party accused shall have a right to a speedy and public trial, we are cited to no case in which it was held that the exclusion of the general public from a hearing, such as this was, before a civil service or similar commission, violates the constitutional mandate.

While an ordinance of the city of Vallejo provides that hearings conducted by the commission shall be public, it further provides that by unanimous vote the commission may determine that a private hearing is necessary to secure all the facts in the case, and may limit the attendance at the hearing. Such a vote was taken in this case; and while we cannot see any good reason while it should have been so done, that was matter for the commission to decide.

Section 124 of the Code of Civil Procedure is also relied upon by appellant. That section provides that the sittings of every court of justice shall be public, except as provided in section 125. But a commission, though its proceedings are quasi-judicial, is not in the true sense of the word a ‘court of justice’. See Chinn v. Superior Court, 156 Cal. 478, 482, 105 P. 580; Inglin v. Hoppin, 156 Cal. 483, 491, 105 P. 582; 20 C.J.S., Counties, § 83, p. 853, n. 43.

The order of the trial court dismissing the writ of certiorari is reversed, and the trial court is directed to annul the order of the civil service commission.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur.