Petersen

The proceeding is for mandate. The petitioner alleged that while exercising the functions of captain of inspectors of the bureau of criminal investigation of the police department of -the city of Oakland, he was discharged by the written order of the respondent Morse on March 19, 1920. The address and signature being omitted, the order was as follows: “You are hereby discharged and removed from the position of Captain of Inspectors of the Oakland Police Department of the City of Oakland, for misconduct, incompetency, failure to perform your duties and under and observe the rules and regulations of the Police Department and pertaining to your office. This order shall be effective forthwith.”

By section 82 of the charter of the city of Oakland it is provided that “Any person suspended, fined or discharged . . . may within five days from the making of the order . . . discharging him . . . appeal therefrom to the Civil Service Board, which shall fully hear and determine the matter. The accused shall be entitled to appear personally, and to have counsel and a public hearing. The finding and decision of the Board shall be certified to the official from whose order the appeal is taken,…

I dissent. Mandate will issue against a public officer “to compel the performance of an act which the law specially enjoins, as "a duty resulting from an office.” (Code Civ. Proc., sec. 1085.) It is not the duty of a public officer to admit to a subordinate public office one who has no right to occupy such office. Under the terms of the Oakland charter the petitioner, by taking an indefinite leave of absence from his civil service position of captain of inspectors of the police department and by accepting the incompatible position of chief of police, relinquished his civil service standing in the former position. The office of captain of inspectors is governed by the civil service provisions of the charter. It is filled by examination, certification, and promotion. The office of chief of police is noncivil service. That one person cannot occupy both offices goes without question. That petitioner could not occupy one and keep a string on the other is equally clear, because the charter specifically limits the period of leaves of absence from the civil service positions and defines the purposes for which they may be granted. When petitioner accepted the position of chief of police…