dissenting.
I find it impossible to concur in the reversal of the judgment.
Assuming that it is not necessary to file charges, give notice thereof, and have a hearing thereon, as a condition to dropping a probationer from the pay roll, it does not follow that the appointing’ officer can act capriciously or arbitrarily. The power conferred upon him is discretionary. The exercise of discretionary power by a public officer is not beyond the control of the courts, although courts will not interfere unless the officer has abused his discretion or acted arbitrarily. City Council of Denver v. United Negroes Protective Association, 76 Colo. 86, 230 Pac. 598. The officer is presumed, in the absence of proof to the contrary, to have acted properly, and he who asserts that the officer has not so acted has the burden of proving it.
Let us apply these well-established rules to the present case. Section 234 of article XV of the Denver charter provides: “Every original appointment in the classified service shall be for six months, at the end of which time, if the conduct and capacity of the person appointed has been satisfactory, he shall be permanently appointed; otherwise he shall be out of the service.”
In the absence of a showing to the contrary, it would be presumed that the manager of safety and excise found, in the proper exercise of his discretion, that the conduct and capacity of Zarnow had not been satisfactory, and that for that reason Zarnow was not entitled to be permanently appointed. But the parties stipulated that during his probationary period Zarnow performed all of the duties devolving upon him as a patrolman, and “received a rating of seventy-nine and four-tenths per cent (79.4%), said rating being a satisfactory and usual rating and sufficient to establish the conduct and capacity of the said Fred W. Zarnow as satisfactory. ’ ’ That showing overcame the presumption originally existing in favor of regularity, and was sufficient to require the man*180ager to meet it by evidence indicating that he did not abuse his discretion or act arbitrarily, as the stipulation indicated, prima facie, that he did. He introduced no evidence whatever to overcome the prima facie showing made by the stipulation. The trial court, therefore, was justified in finding, as it did, that in dropping Zarnow from the pay roll, the manager abused his discretion and acted arbitrarily.
I respectfully dissent from the decision.