LA PRADE v. DEPARTMENT OF WATER AND POWER OF CITY OF LOS ANGELES ET AL (1944)

On denial of rehearing after decision, 146 P.2d 487.

Appellants assert, in their petition for a rehearing, that the matters considered by the trial court and this court were not proper matters for consideration in a mandamus proceeding. In Bodinson Mfg. Co. v. California E. Comm., 1941, 17 Cal.2d 321, at page 329, 109 P.2d 935, at page 940 it was said: “Mandamus has traditionally been merely a proceeding to compel the performance of ministerial duties and has not been widely used as a method of reviewing the decisions of administrative agencies. * * * In this state, however, the law is now established that mandamus is the remedial writ which will be used to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided. * * * Our late decisions have recognized that the use of mandamus to review acts of administrative agencies is a departure from the traditional purpose of the writ, and that many historical theories concerning mandamus (as, for example, the technicalities of the rule that discretion in the inferior officer will bar the issuance of the writ) will not always be applicable where the writ is used to review the acts of administrative bodies. * * * The writ of mandamus may therefore be used in this state, not only to compel the performance of a ministerial act, but also in a proper case for the purpose of reviewing the final acts and decisions of statewide administrative agencies which do not exercise judicial power.” In a later case involving a local board, Walker v. City of San Gabriel, 1942, 20 Cal.2d 879, at page 881, 129 P.2d 349, 350, 142 A.L.R. 1385, it was said: “Either certiorari or mandamus is an appropriate remedy to test the proper exercise of discretion vested in a local board.”

Rulings of an administrative board on questions of law cannot be accorded finality. Such questions may be determined conclusively only by a court exercising constitutional judicial power. Bodinson Mfg. Co. v. California E. Comm., supra, 17 Cal.2d page 326, 109 P.2d 935. Such questions of law would include inquiry as to whether the board acted arbitrarily and whether there was substantial evidence to support its determination of fact.

The case of Dierssen v. Civil Service Commission, 1941, 43 Cal.App.2d 53, 110 P.2d 513, cited in Walker v. City of San Gabriel, supra, and relied upon by appellants herein, held (pages 59 and 63 of 43 Cal.App.2d, at pages 517, 519 of 110 P.2d) that where fact–finding powers have been conferred on a local board it must be alleged and proved in a mandamus proceeding attacking its action that it acted arbitrarily or in abuse of discretion. The petition herein did not include the words “acted arbitrarily” or “abuse of discretion,” but it did allege: “[T]he Board of Civil Service Commissioners failed to make an investigation into the discharge of the petitioner and failed to make findings in writing thereon”; that “said Board of Civil Service Commissioners conducted no hearings or investigation with respect to the discharge of petitioner and took and received no evidence or testimony pertaining thereto, and refused to grant a hearing or investigation to petitioner”; and that petitioner was discharged. If those allegations were true the civil service commission did act arbitrarily and in abuse of discretion. Appellants concede that the petition stated a cause of action. Those allegations were tantamount to an allegation that the commission acted arbitrarily and in abuse of discretion. The gist of the charge was that the commission acted arbitrarily and in abuse of discretion, and the particular specification of arbitrariness and abuse of discretion alleged was that no investigation had been made. The proof was that an investigation had been made but it was wholly favorable to petitioner, and that notwithstanding such favorable investigation report, recommending against discharge, the commission “sustained the discharge.” The charge of acting arbitrarily and in abuse of discretion was proved even though the particular specification, that no investigation was made, was not proved. The proof as to arbitrariness and abuse of discretion related directly to the subject matter of the specification alleged, that is, to the matter of investigation. The variance between the particular specification of arbitrariness alleged and the one proved was only as to the degree of arbitrariness in connection with the same subject matter, and was not a material variance. It is difficult to determine which would be the more arbitrary––to “sustain the discharge” when no investigation had been made, or to “sustain the discharge” notwithstanding an investigation that had been made, which was wholly favorable to petitioner.

In the petition for a rehearing counsel, representing appellants, argues that the investigation report should not have been received in evidence for the reason “petitioner's own testimony had shown an investigation.” Apparently his theory is that when it was shown there had been compliance merely with the letter of the law that an investigation should be made, then, even though the investigation showed that the employee should not be discharged, the inquiry in a court concerning a matter of law, as to arbitrary action and abuse of discretion, was ended. Appellants presented no evidence. There was no showing that there was any other investigation or information upon which the commission acted. Counsel, however, in the petition for a rehearing, created an implication that the commission had acted upon other information, by asking the court certain questions––such as, “Does this court know what the civil service commissioners found out, bad or good?” In refutation of such implication, the letter of September 28th from the commission notifying petitioner that he was discharged identified the investigation report of September 1st (the one received in evidence) as the one upon which it acted. That letter stated: “* * * on the 22nd” the commission “took under consideration the matter of your discharge August 28, 1942 * * * and staff report of September 1st covering investigation made at your request. I am instructed to inform you that, in considering the case the Civil Service Commission as a result of its investigation is of the belief. * * * [This letter was set out in the opinion.]” The case was tried upon the theory that arbitrary action and abuse of discretion were involved. Counsel for appellants apparently considered that the issue was met by the mere showing that an investigation had been made, irrespective of whether the investigation was favorable to petitioner.

The petition for a rehearing is denied.

PER CURIAM.

DESMOND, P. J., and SHINN and PARKER WOOD, JJ., concur.