Mayer

From a judgment rendered pursuant to trial upon a petition for a writ of numdamus, directing that the respondent be restored to duty upon the police department of the city of Los Angeles and that he be paid accrued salary from the date of his alleged attempted suspension therefrom, the board of police commissioners of said city has appealed.

By this petition the respondent, alleged and the trial court found that on or about February 2, 1926, he was suspended from duty by the chief of police, and on the thirteenth day of the same month he was removed from office, upon the ground that he had been charged with the commission of a felony and that he was guilty of conduct unbecoming a police officer, but that he was never served with notice thereof as provided hy the city charter in either instance, and that therefore neither the attempted discharge nor suspension was effective as such. Pie further alleged and it was found by the court that on the date first mentioned he was charged by a complaint filed in the municipal court with the crime of perjury; that said charge was dismissed on April 25, 1928, and that no further proceedings were had thereon; that he thereupon applied to said…

I dissent.

The court’s opinion holding that the general demurrer should have been sustained ignores the original suspension of the petitioner, at which time the petition alleges that a charge of perjury had been made against the petitioner. Authority is hardly needed to sustain the proposition, to my mind self-evident, that until such charge was removed the petitioner was subject to suspension and could not ultimately or even in the particular proceeding here, had it then been begun, have compelled the board of police commissioners to restore him to regular employment. The mere pendency of the criminal charge against him justified his suspension. (Los Angeles City Charter, art. XIX; 46 C. J., p. 982, sec. 142; 43 C. J., p. 651, secs. 1077, 1084.) However, even if because of lack of proper notice or other irregularities in the proceeding of attempted suspension petitioner herein might have contested such action of the board at the time, it is obvious that such a contest would then have been idle, for •while the criminal charge was pending the board need only have immediately taken the same action over again and proceeded properly to accomplish the same temporary result. It is true…