MELVIN, J.
An appeal was taken to the district court of the first appellate district from a judgment of the superior court of the city and county of San Francisco, setting aside and annulling an examination which had theretofore been held by the civil service commission of that city and county, for promotion of certain captains in the fire department to the rank of battalion chief. On motion, the district court dismissed the appeal for the reasons shown in the following order:
"It appearing in this case that the civil service commission, defendants, in an action brought in the superior court to annul and set aside an order made by them, prosecuted this appeal from that order; and that since taking said appeal they have complied with the order made by the said superior court and have of their own volition obeyed the order made by the superior court of which they complain, and they being the only parties before this court, the proceedings here relate to what is now a moot question, and that any decision this court might make would avail nothing except to probably lay down the law for other parties, the appeal is dismissed."
This court granted a petition for a hearing here, and the matter now comes up for action. The dismissal of the appeal is opposed upon several grounds, but in view of the conclusion which we have reached, only one of them need be noticed. It is insisted that the attempted compliance with the judgment of the superior court was utterly without effect, because of lack of power in the civil service commission to make an order vacating the examination and setting aside the eligible list which had been made as a result thereof. The civil service commission derives its powers from the charter of the city and county of San Francisco. Among those powers is not the arbitrary right to strike names from the list of eligibles. The only authority to remove names from such a list is given by section 10 of article XIII of the charter, which provides:
"The commissioners may strike off names of candidates from the register after they have remained thereon more than two years."
True, the superior court had declared the examination void and had ordered the list annulled, but an appeal having been taken from that judgment it was of no binding, mandatory effect until made final by the action of a court of competent appellate jurisdiction. If the commission could have set aside the eligible list while the matter of the validity of the examination was sub judice, it could have done the same thing in the absence of any proceeding, and without any order of court. The very purpose of holding examinations by the civil service commission was to create a permanent eligible list not subject to expunction upon the caprice of any board or officer of the municipal government. There was no grant of power directly given by the charter, or necessarily implied from the prerogatives conferred, which enabled the commission properly to set aside its own action after it had declared a list of eligibles, except in the single instance cited above. It follows that the board went beyond its authority in taking the action which was the basis of the order of dismissal by the district court of appeal. There is nothing in this conclusion conflicting with the reasoning in the opinion in Nunan v. Valentine, 83 Cal. 588, [23 P. 713]. In that case there was no question that prima facie the appellant had the right to dismiss the appeal. Here, however, we are called upon to determine the power of a municipal agency, created and limited in its authority by charter, to make an order setting aside its previous action.
The motion is denied.
Sloss, J., Angellotti, J., Lorigan, J., and Henshaw, J., concurred.
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