Haub

This is a proceeding in mandamus in which Theo. C. Haub, a member of the fire department of the city of San Jose, obtained a judgment in the trial court commanding the Members of the Civil Service Commission of said city and the Secretary thereof to “certify all the applicants for promotion in the fire department of the city of San Jose on their records of merit, efficiency, character, conduct, and seniority, and refrain and desist from compelling applicants for promotion in said department to undergo mental or physical tests in order to be eligible to promotion.” (Italics ours.) From .said judgment the Members of the Commission and the Secretary thereof have appealed, and present for determination questions relating particularly to the italicized portions of said judgment.

The city of San Jose is governed under a freeholders’ charter, providing, among other things, for a “city manager” form of government and a system of civil service to be administered by a Commission, the powers and duties of said Commission, so far as they are in question here, being defined by the following charter provisions:

Pursuant to section 104, said Commission adopted and the city council approved a…