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Hanley v. Murphy

California Court of Appeals, First District, Second Division
Jun 4, 1952
244 P.2d 957 (Cal. Ct. App. 1952)

Opinion


Page __

__ Cal.App.2d __ 244 P.2d 957 HANLEY v. MURPHY, Sheriff, et al. (two cases). REILLY v. CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 14947-14949. California Court of Appeals, First District, Second Division June 4, 1952.

Hearing Granded July 31, 1952.

Rehearing Denied July 3, 1952.

[244 P.2d 958] Dion R. Holm, City Atty., of City and County of San Francisco, Bernard J. Ward, Jr., Deputy City Atty., San Francisco, for appellants.

Alfred J. Hennessy, San Francisco, for respondent Bernard Reilly.

Charles P. Scully, San Francisco, for respondent William Hanley.

DOOLING, Justice.

These appeals are from judgments ordering writs of mandate to issue to compel the restoration of the two petitioners to the positions of superintendent of jail under the sheriff of the City and County of San Francisco and the payment to them of the salary fixed for those positions. The cases were consolidated for trial and present identical questions.

There are two jails operated by the City and County and prior to July 1, 1947 two positions of superintendent of jail had been created by the board of supervisors and the petitioners below, Hanley and Reilly, had been regularly appointed to and were occupying those positions.

As a foundation for the determination of the legal effect of the actions taken in the preparation and adoption of the budget and appropriation ordinance for the fiscal year 1947-1948 (which began on July 1, 1947) insofar as they affect these cases a detailed consideration of the meaning and effect of certain provisions of the San Francisco charter is essential.

By sec. 5 of the charter the sheriff is made an elective officer. Section 20 provides that each elective officer in charge of an administrative office shall have the powers and duties of a department head. That section contains the following provision:

'Each department head may suggest the creation of positions subject to the provisions of this charter, and may reduce the forces under his jurisdiction to conform to the needs of the work for which he is responsible, any other provision of this charter to the contrary notwithstanding.' (The emphasis throughout the quotations from the charter is ours.)

Sec. 143 provides:

'Positions in any department or office * * * may be created, as provided by this charter, by appropriation ordinance of the board of supervisors. Copy of each such ordinance creating or abolishing positions shall be filed * * * with the civil service commission by the clerk of the board of supervisors * * *

'Immediate notice in writing shall be given to the civil service commission by the appointing officer of each department and office * * * of the creation or abolition of any position * * *.'

Sec. 69 provides for the preparation each year of a budget estimate by every elective and appointive officer and commission which must be filed not later than February 15 with the controller. Not later than March 15 the controller must consolidate such budget estimates and transmit the same to the mayor. The mayor may hold public hearings and increase, decrease or reject any items contained in the estimates, 'excepting that he shall not increase any [244 P.2d 959] amount nor add any new item for personal services * * *'.

Sec. 70 in providing for the form of budget estimates specifies that the estimates shall include or be accompanied by '(4) A schedule of positions and compensations showing any increases or decreases requested in the number of positions * * *'.

Sec. 72 requires the mayor not later than May 1 to transmit the consolidated budget estimates and proposed budget to the board of supervisors with a draft of the annual appropriation ordinance for the ensuing fiscal year prepared by the controller and based on the proposed budget. The detail of the proposed burget shall include '2. A detail schedule of positions and compensations, showing any increases or decreases in any department or office.'

Other provisions of this section are:

'The board of supervisors * * * shall not increase any amount or add any new item for personal services * * *'.

'Any item in such appropriation ordinance except for bond interest, redemption or other fixed charges, may be vetoed in whole or in part by the mayor * * *'.

Section 73 provides: 'The number and rates of compensation for all positions continued or created by the supervisors in adopting each annual budget, and each annual or supplemental appropriation ordinance, shall be established and enumerated in an ordiance continuing and creating positions * * * and providing the retes of compensation therefor, which ordinance shall be passed or amended at the same time as the annual or supplemental appropriation ordinance is passed.'

Under settled principles of statutory construction these several sections must be construed together giving effect so far as possible to all parts thereof so as to harmonize them and effectuate the legislative intention as expressed therein.

Commencing with sec. 20 we find at the outset that eact department head (here the sheriff) 'may suggest the creation of positions * * * and may reduce the forces under his jurisdiction * * * any other provision of this charter to the contrary notwithstanding.'

This language, upon analysis, indicates: 1. The department head (here the sheriff) cannot create any position in his department. He can only suggest the creation. The creation of positions can only be done by the board of supervisors under the other sections of the charter hereinabove noticed. 2. The department head may reduce the forces under his jurisdiction (not merely suggest the reduction). 3. The power of a department head to reduce the forces under his jurisdiction is declared to be superior to any apparent limitations upon that power that may be found elsewhere in the charter by the language: 'any other provision of this charter to the contrary notwithstanding.'

When we come to the other provisions of the charter dealing with the same subject we find this power of a department head to reduce the forces under his jurisdiction implemented at every step of the budget-making and appropriation procedure of the charter. Under sec. 70(4) we find that in preparing his proposed budget the department head shall include '(a) schedule of positions showing any * * * decreases requested in the number of positions.' Under sec. 69 the mayor is forbidden to add to this proposed budget 'any new item for personal services'; and under sec. 72 the board of supervisors is under a like prohibition not to 'increase any amount of add any new item for personal services.'

It thus appears that when the department head files a budget estimate which decreases the number of positions in his department (which action is declared by sec. 20 to be within his power 'any other provision of this charter to the contrary notwithstanding') neither the mayor nor the board of supervisors may add the position or positions so eliminated by the department head to the budget or appropriation ordinance because both are forbidden 'to add any new item for personal services'.

The only manner in which a position omitted by the department head from his [244 P.2d 960] original budget estimate may later be added is spelled out in another provision of the charter found in sec. 72 as a qualification of the prohibition of the supervisors' adding any new item for personal services, that qualification reading: 'unless requested in writing so to do by the mayor, on the recommendation of the chief administrative officer, board, commission or elective officer, in charge of such department.'

It further appears that non-charter positions in San Francisco are created, continued and abolished by the annual adoption of the appropriation ordinance. Sec. 143. It follows that since neither the mayor nor the supervisors can add to the proposed budget filed by a department head 'any new item for personal services', if an existing position is omitted by the department head from his proposed budget the supervisors have no power to continue such position by adding it to the budget or to the appropriation ordinance which 'shall be based on the proposed budget'. Sec. 72.

The evidence in this case shows that the sheriff in 1947 submitted a proposed budget which eliminated the two positions of superintendent of jail, that the supervisors added to the appropriation ordinance an appropriation for such two positions, that the mayor on advice of the city attorney vetoed this added item and that the supervisors failed to pass the vetoed item over the mayor's veto. From our analysis of the applicable charter provisions it is clear that the supervisors acted in excess of their charter power in attempting to add to the appropriation ordinance these two positions which were omitted by the sheriff from his budget and that the mayor's veto was justified on this ground. However entirely apart from this consideration since the positions were eliminated by the mayor's veto, since the mayor possesses the power to veto any item of this character in whole or in part (sec. 72), and since such positions are created or abolished by their inclusion in or exclusion from the appropriation ordinance (sec. 143) the positions of superintendent of jail were abolished as of July 1, 1947.

It is true that the salary ordinance for 1947-1948 which was finally adopted a few days in advance of the appropriation ordinance contained the enumeration of '2 * * * Superintendent of Jail'. Under sec. 73 the salary ordinance 'shall be passed or amended at the same time as the annual or supplemental appropriation ordinance' (not before), but more important it is limited in terms to 'the number and rates of compensation for all positions continued or created by the supervisors in adopting each annual dugget, and each annual or supplemental appropriation ordinance.' The positions under sec. 143 are created or abolished by the appropriation ordinance and sec. 73 is clear that the salary ordinance is but a codification of the positions included in the appropriation ordinance and unless a position is 'continued or created' by the appropriation ordinance it cannot be validly included in the salary ordinance.

The evidence shows that after the abolition of the two positions of superintendent the civil service commission advised the sheriff that respondent Hanley should be returned to a position of captain of the watch from which he had been promoted to superintendent and respondent Reilly should be returned to the position of writ server from which he had been promoted and that the employment of the two individuals having the least seniority as captain of the watch and writ server should be terminated; and this was done by the sheriff.

It is clear that this is not such a case as Rexstrew v. City of Huntington Park, 20 Cal.2d 630, 128 P.2d 23, where the positions were not in fact abolished but were actually continued in effect and the pretended abolition was a mere subterfuge to substitute other persons in the positions formerly occupied by the discharged employees. Here there were actually two less positions and two less employees in the sheriff's office after the abolition of the two positions. Nor is the case similar to Childress v. Peterson, 18 Cal.2d 636, 117 P.2d 336, where the positions were not abolished because the charter provisions (which were different from those of San Francisco) were not [244 P.2d 961] properly followed in the attempted abolition of the positions.

Our case is similar to Livingstone v. MacGillivray, 1 Cal.2d 546, 36 P.2d 622, where the positions were actually abolished, The language from the opinion in that case, 1 Cal.2d at page 553, 36 P.2d at page 625, is appropriate to the case before us: 'It must * * * be conceded that abolition of an office or position is not synonomous with discharge from employment although the effect upon the individual who loses employment is precisely the same. In the former instance the duties of the position are either absorbed by other persons or they are entirely discontinued while in the latter case the duties remain unchanged but some individual other than the discharged employee is selected to perform them.' Cf. Kabisius v. Board of Playground, etc., 4 Cal.2d 488, 493, 50 P.2d 1040; Carr v. Fire Commission, 30 Cal.App.2d 208, 210, 85 P.2d 959.

The evidence shows that in our case no new employee was selected to perform the duties of superintendent of jail but the 'duties of the position' were 'absorbed' by other persons, partly by the under-sheriff, partly by the sheriff's secretary and largely by captains of the watch.

Some point is attempted to be made of the fact that the sheriff did not notify the civil service commission immediately of the abolition of the positions. Sec, 143. The sheriff notified the civil service commission by letter of June 28, 1947 that the positions of superintendent of jail had been abolished. The appropriation ordinance abolishing the positions was effective July 1. This would seem to be a sufficient compliance, but in any event a failure to give immediate notice of the abolition of two positions by the failure to continue them in the appropriation ordinance could not recreate positions which had in fact been abolished by the combined action of the sheriff, the mayor and the supervisors.

The judgments appealed from are reversed with directions to enter judgments denying writs of mandate.

NOURSE, P. J., and GOODELL, J., concur.


Summaries of

Hanley v. Murphy

California Court of Appeals, First District, Second Division
Jun 4, 1952
244 P.2d 957 (Cal. Ct. App. 1952)
Case details for

Hanley v. Murphy

Case Details

Full title:HANLEY v. MURPHY, Sheriff, et al. (two cases).

Court:California Court of Appeals, First District, Second Division

Date published: Jun 4, 1952

Citations

244 P.2d 957 (Cal. Ct. App. 1952)