Garvin

This is an appeal by the defendant, the civil service board of the city of Oakland, from a judgment of the superior court, in and for the county of Alameda, annulling upon certiorari an order of the defendant board finding the petitioner, a police officer, guilty of insubordination and sustaining an order of the commissioner of public health and safety dismissing him from the police department of the city of Oakland.

The charter of the city of Oakland provides that “All persons holding positions in the classified civil service shall be subject to suspension, fine and also to removal from office or employment, by the commissioner in whose department they are employed ... for misconduct, incompetency or failure to perform their duties under or observe the rules and regulations of the department or office; but subject to the appeal of the aggrieved party to the civil service board as herein provided. . . . Any person suspended, fined or discharged . . . may within five days from the making by a commissioner ... 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…

I dissent.

The order of the civil service board denying petitioner’s appeal and sustaining the order of discharge made by the commissioner was final, as I read the charter, and was not subject to annulment by the superior court on the ground that said order was not sufficiently supported by the evidence upon which the board based its said order sustaining the dismissal of petitioner from the position of a patrolman. Conceding, for the instant, that the superior court had jurisdiction to annul the order of the board on the ground of insufficiency of the evidence, the rule is that if there is any evidence of a substantial character from which an inference may fairly be drawn which would support said order of dismissal such order cannot be interfered with by a reviewing body. Certainly it cannot be claimed that the record in this ease presents a state of facts so overmastering in petitioner’s favor as to absolutely exclude an inference that petitioner’s conduct and manner did not amount to insubordination or conduct subversive of the good order and discipline of the department.

The power of the city of Oakland to solve for itself questions affecting its civic welfare is expressly…

I dissent.

I concur generally with the reasoning and conclusions of Mr. Justice Seawell except that I am not prepared to subscribe to the conclusion that under the language of the Oakland charter the decision of the civil service board is not subject to review by the courts upon certiorari. That review, however, touches only the question of jurisdiction. Upon the admitted facts of this case the civil service board had jurisdiction, both of the subject matter and of the parties. It was..expressly vested in this proceeding with the jurisdiction to hear and determine the appeal and to annul or affirm the order appealed from. If it did either of these upon insufficient evidence, its action in so doing was but error in the.exercise of jurisdiction. As was pointed out in Roberts v. Police Court, 185 Cal. 65 [ 195 Pac. 1053 ], insufficiency of the evidence is never a ground for reversal of a judgment or order upon certiorari except when such evidence goes to prove the existence of jurisdictional facts. The jurisdictional facts herein were, first, the order of the head of the department discharging the petitioner, and, second, the taking of an appeal by petitioner to the civil service…