
    [Civ. No. 1447.
    First Appellate District.
    January 18, 1915.]
    W. A. BROWN, Appellant, v. J. J. DWYER, GEORGE M. HILL and THOMAS S. WILLIAMS, Members of and Constituting the Board of State Harbor Commissioners of the State of California, Respondents.
    Public Officers—State Wharfinger—Discharge for Violation of Bule—Mandamus.—There was no abuse of discretion by the state board of harbor commissioners in discharging appellant from the position of wharfinger for violating one of its rules providing that each wharfinger must be on duty every day, legal holidays excepted, from eight o’clock a. m. until five o’clock p. m., where the findings of the board were based upon the testimony of witnesses which sufficiently supported the charge and showed something more than a mere technical and unintentional disregard of official duty on the part of appellant; and in such a case the trial court was justified in refusing a writ of mandate to review or revise the order of dismissal.
    Id.—Salary—Mandamus.-—In such a case a writ of mandate should not issue to compel the respondents to allow and pay appellant’s salary pending the hearing and determination of the power of the respondents to remove him from office.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.
    The facts are stated in the opinion of the court.
    Mastick & Partridge, for Appellant.
    Daniel A. Ryan, for Respondents.
   THE COURT.

The appellant in this proceeding prayed for the mandate of the lower court, compelling the defendants and respondents, as members of the state board of harbor commissioners, to reinstate him to the position of wharfinger of the port of San Francisco, from which position he had been dismissed by said board after a trial upon the charge of incompetency and neglect of duty. The judgment of the lower court went for the respondents, and upon appeal therefrom it is urged upon behalf of the appellant that the evidence adduced upon the hearing in the lower court shows that the respondents, sitting as the board of state harbor commissioners, abused the discretion vested in them to discharge the appellant from his position with the state, and that therefore the lower court’s findings and judgment should have been in favor of the appellant.

The specific charge filed with the respondents and upon which they tried and discharged,the appellant, was the violation of rule 112 of the state board of harbor commissioners, which ^provides in part that “Each wharfinger must be on duty every day, legal holidays excepted, from 8 o’clock a. m. until 5 o’clock p. m.”; and the findings made by the respondents after a regular hearing of the charge against the appellant, were in substance that upon one occasion the appellant did not report for duty until after the hour prescribed by rule 112 of the board, and his failure on another occasion to remain on duty the full length of time provided by the same rule. Incidentally the findings of the respondents declare further that on another occasion appellant did not remain on duty until the noon hour, which impliedly was required of him by the same rule.

It may be conceded that these findings would not have been conclusive upon the court below if it had been shown that they were not based upon any evidence at- all, or that the evidence offered and received at the trial of appellant before the respondents was so slight as to amount to no evidence at all. But it appears from the record before us that upon the trial of the case in the court below it was shown that the findings and order of the respondents were based upon the testimony of witnesses which sufficiently support the charge filed with the respondents against the appellant. This being so, it cannot be said that the respondents abused the discretion vested in them, and accordingly it must be held that the court below was justified in refusing its mandate to review or revise the respondents’ order dismissing the appellant from the service of the state. In our opinion the evidence offered and received upon the trial of appellant before the respondents—which evidence was reproduced substantially upon the hearing of the application for the writ in the court below—showed something more than a mere technical and unintentional disregard of official duty on the part of the appellant. Such evidence, therefore, furnished a legal and substantial basis for the respondents’ order dismissing the appellant from his position, and as a consequence the present case does not fall within the exception to the general rule which declares that a dismissal from office, based upon evidence which shows only a minor, technical, unintentional and excusable dereliction of duty, may be deemed an abuse of discretion.

Incidentally the appellant prayed the mandate of the lower court to compel the respondents to allow and pay his salary pending the hearing and determination of the power of the respondents to remove him from office. This the lower court rightfully refused to grant. If it had been determined that the appellant had been illegally discharged from his position, as a matter of course he would have been entitled to the accrued salary which the state had stipulated to pay him, but until such time as the appellant was reinstated as an officer of the state, and his name restored to the state’s payroll, he was not entitled to the remedy of mandamus to compel the payment of any salary which may have accrued to him pending the hearing and determination of the cause of his removal. (Meredith v. Board of Supervisors of Sacramento County, 50 Cal. 433; Chicago v. People, 210 Ill. 84, [71 N. E. 816].)

The judgment appealed from is affirmed.  