Opinion
Hearing Granted Feb. 11, 1942.
Appeal from Superior Court, Los Angeles County; Thurmond Clarke, Judge.
Mandamus proceeding by Stanley E. Rexstrew and another against the City of Huntington Park and others, to compel reinstatement of employees of fire department and police department. From a judgment ordering the reinstatement, defendants appeal.
Reversed and peremptory writ discharged.
COUNSEL
Christopher J. Griffin, city attorney, of Huntington Park, for appellants.
John J. Hamilton, of Los Angeles, for respondents.
OPINION
DESMOND, Justice pro tem.
The City of Huntington Park and the members of the city council of that municipality appeal from a judgment entered in a mandamus proceeding by which the two respondents, Rexstrew, formerly a member of the fire department, and Cantonwine, formerly a member of the police department, were ordered reinstated, restored and returned to their respective positions. The order also provided that payment be made to each of the respondents of his monthly salary reckoned at the amount formerly received, for the period elapsing from the date of separation from his department until he should be reemployed.
Huntington Park has never adopted a city charter. It operates as a city of the sixth class under the charter established for its government by the General Municipal Corporations Act (Stats. 1883, p. 93), as amended. Section 852 of the act as originally passed provided that "The Board of Trustees may, in their discretion, appoint an Attorney, a Poundmaster, a Superintendent of Streets, a Civil Engineer, and such police and other subordinate officers as in their judgment may be deemed necessary, and fix their compensation, which said officers shall hold office during the pleasure of said Board". Stats. 1883, at page 267.
This act has been amended on several occasions, and in 1937 the legislature cast the above passage in slightly altered form as follows: "The city council shall appoint the chief of police and the city judge; it may also, in its discretion, appoint a city attorney, a superintendent of streets, a civil engineer, a court clerk, and such other subordinate officers or employees as in its judgment may be deemed necessary. The compensation of all appointive officers and employees may be fixed from time to time by the city council by resolution or ordinance, and said officers and employees shall hold office during the pleasure of said city council." Stats. 1937, p. 1812.
On August 22, 1938, the city council of Huntington Park passed the following resolution:
"Resolution No. 1758.
"A resolution of the City Council of the City of Huntington Park effecting a reduction of Personnel in the Police and Fire Departments.
"The City Council of the City of Huntington Park does resolve as follows:
"Whereas, the City Council finds it necessary for purposes of economy to effect a reduction of expenses in the Police and Fire Departments, and
"Whereas, the City Council after a careful study of all factors involved have decided that the needed economies can best be made without a disruption or serious curtailment of City services by a reduction of the Personnel of the Police and Fire Departments, and
"Whereas, there are now fifteen patrolmen, members of the Police Department, and it is hereby determined that ten patrolmen is a number sufficient to adequately police the City of Huntington Park, and
"Whereas, there are now fifteen firemen, members of the Fire Department, and it is hereby determined that twelve is a number sufficient to adequately protect the City from fire, and
"Whereas, there are now nine Motorcycle patrolmen, members of the Police Department, and it is hereby determined that eight motorcycle patrolmen is a sufficient number, and
"Whereas, it is hereby determined by the City Council that the hereinafter named men can best be spared from their respective ranks and departments in order to accomplish the reduction in personnel hereby made for the following reasons:
"1. For the best interests of the service.
"2. The special qualifications and fitness of the persons retained in the respective ranks and departments, for the work remaining,
"Now, therefore, be it resolved that the number of Patrolmen in the Police Department be reduced to ten, that the number of Firemen in the Fire Department be reduced to twelve, and that the number of Motorcycle Patrolmen in the Police Department be reduced to eight, and
"That, in order to accomplish said reduction in Personnel the following named men be, and they are, hereby dismissed from duty and their services dispensed with, effective as of September 1st, 1938.
"PoliceDepartment
"MotorcyclePatrolman Hollis G. Miller
"PolicePatrolman
H.F. Benecke
"PolicePatrolman
B.F. Cantonwine
"PolicePatrolman
HenryWilliams
"PolicePatrolman
O.S.Welch
"PolicePatrolman
J.B. Martin
"FireDepartment
"Fireman
S.E.Rexstrew
"Fireman
GeorgeHays
"Fireman
DudleyPeterson."
Appellants contend that they were performing their duty, as the legislative body of Huntington Park, in adopting this resolution, and that they were fully authorized to do so, since Section 852 at the time provided that, "said officers and employees shall hold office during the pleasure of said city council". Stats. 1937, supra.
As we understand their position, respondents urge that the judgment should be affirmed because it rests largely upon the finding of the trial court that each respondent "was entitled and is entitled to continue his employment as Civil Service Employee until and unless for some just cause said petitioner is accused, notified and tried by said Civil Service Commission, upon showing that he has violated some or any of the rules and regulations of said Civil Service employment", and upon the further findings that "the asserted claim of the respondents, and each of them, that it was necessary for the purposes of economy to effect a reduction in the expenses of the Police and Fire Departments, was false and untrue", and that "said termination of this petitioner’s employment by the respondents, and each of them, was done not for the purpose of economy, but for the purpose of enabling the respondents, and each of them, to replace this petitioner in his employment by another person more friendly to the respondents, and each of them, than was this petitioner". As to respondent Rexstrew, there was a finding that "the retention of Glenn Snoeberger accomplished the removal of this petitioner without any reason or justification therefor, and deprived this petitioner of his right to employment, and replaced his position by a probationary fireman with less seniority than this petitioner, to-wit: said Glenn Snoeberger". As to respondent Cantonwine, the court found that "one Will Bailie, a school traffic officer and not classified as a duly or regularly appointed patrolman, but under a different classification, to-wit: that of school traffic officer, * * * has been walking said beat formerly patrolled by said petitioner Cantonwine, and has been performing the duties of patrolman fully and completely as though he were the duly and regularly appointed patrolman, and that said Will Bailie has been performing the same identical patrolman’s duties since September 1, 1938, as those formerly performed by petitioner Cantonwine".
Respondents also argue that the judgment in their favor should be affirmed because of the adoption by the electors of Huntington Park of three initiative ordinances, the first of which, applying to the fire department and numbered 767, became effective in April, 1932; the second, numbered 821-A, relating to the police department, becoming effective in April, 1934. Ordinance No. 767 is denominated, "An ordinance of the people of the City of Huntington Park creating a Civil Service Board, providing for the manner and method of their Appointment; providing for the placing of the members of the Fire Department under Civil Service." This ordinance, certain pertinent portions of which we have italicized below, provides among other things that "All officers or members shall be chosen or promoted by the chief of the Fire Department" (§ 3); that an appointee in the lowest grade of the classified service may be discharged by the chief (§ 7); that "If discharged * * * the employee * * * may demand a trial, whereupon he shall be tried as provided in the section referring to suspensions and removals" (§ 8); that "The Chief of the Fire Department or Civil Service Board in whom shall be vested removal or disciplinary power shall be allowed full freedom "in his or its action, * * *" (§ 9); that the chief "shall recommend to the City Council members of the Fire Department for demotion or dismissal * * *". § 13. The section referring to suspensions and removals is numbered 15 and provides for a hearing by a trial board of any charges filed by the chief against any member of the department. Section 16 names as the trial board the members of the civil service board and the chief of the fire department, and provides that a majority verdict of the trial board shall be final and that said board may dismiss the accused from the service of the city. Membership upon the civil service board is provided by section 1--three citizens of the municipality having no other connection with the city government and chosen by the city council.
As will be noted, this ordinance provides for dismissal by the fire chief of an appointee, in the lowest grade only, of the classified service; for dismissal by a trial board, of which the chief is a member, and before which he is officially an accuser, of any member of the department who has been ordered discharged and who seeks and obtains a hearing. But section 13 enjoins upon the chief as one of his duties recommendation to the city council for demotion or dismissal of members of the fire department.
Under this ordinance, or the sections to which we have referred, it is difficult to determine where the power to effect removal resides, unless we say that any one of three authorities: the chief, the trial board, or the city council, may accomplish it--a most unsatisfactory situation so far as members of the department are concerned. How the matter of removal of a chief of the department might be handled is even more difficult to determine, in view of section 12 of the ordinance providing that he "shall be removed or reduced in rank only as provided for other members of the classified service".
Initiative ordinance No. 821-A, in its opening section, reads as follows: "The Civil Service Board of the City of Huntington Park, heretofore created by an Initiative Ordinance adopted * * * on the 11th day of April 1932, shall formulate rules and regulations governing the selection and promotion of members of the Police Department. * * * All officers or members shall be chosen or promoted by the Chief of the Police Department * * * from three (3) highest standing candidates on the list." The balance of the ordinance is practically identical in its provisions with the fire department ordinance, the only substantial difference being the elimination of the chief of the department from membership upon the trial board.
In 1935 the legislature adopted an act set out in full as chapter 48, page 380, Stats. 1935, by the terms of which "The legislative body of any city within this State is hereby authorized to adopt by ordinance a personnel system, merit system, or civil service system, for the selection, employment, classification, advancement, suspension, discharge and retirement of appointive officers and employees". Section 1. Section 2 of the act provides that, "In said ordinance creating such system said legislative body shall designate the departments, appointive officers or employees of the city which shall be placed under such merit system or civil service system; such legislative body may from time to time, by ordinance, add additional departments, appointive officers or employees of the city to the list originally designated in the ordinance creating such system".
Pursuant to the authority of the above-mentioned act of the legislature, the voters of Huntington Park adopted an initiative ordinance No. 893-a, in April, 1938, establishing a civil service system for that city. Section II reads as follows: "Classified Service. The provisions of this ordinance shall apply only to the following departments, appointive officers and employees of the City, other than those paid by the day. * * *" Then follows a list including practically all the departments, officers or employees of the city with the exception of the legal, the police, and the fire departments, their officers and employees. Section XIX provides that, "Any provisions or clause of the several ordinances of the City of Huntington Park in conflict herewith are hereby expressly repealed". And the closing words in this ordinance, section XXI, are as follows: "Nothing in this Ordinance shall be construed as repealing the Civil Service ordinance governing the Fire Department as adopted by the people at a General Election in the City of Huntington Park held April 11th, 1932, and/or the Civil Service ordinance governing the Police Department as adopted by the people at a General Election in the City of Huntington Park April 9th, 1934."
It may be noted here that whereas the fire department ordinance No. 767 had established, as a trial board, the civil service board and the chief of the fire department, and whereas the police department ordinance No. 821-A had named, as a trial board, the civil service board, the new ordinance No. 893a, by section XII, provided for a trial board of five members appointed by the city council, making no mention in this section of the civil service board. Section III of the new ordinance provided that "The Civil Service Board of the City of Huntington Park, heretofore created by an Initiative Ordinance adopted by the People of the City of Huntington Park on the 11th day of April, 1932, shall formulate rules and regulations governing the selection and promotion of all employees and appointive officers designated in Section II of this ordinance".
Whatever this ordinance may have accomplished for employees of the city, generally, it did nothing for the members of the fire and police departments except to mention, as unrepealed, the two initiative ordinances passed in prior years. It is interesting, however, to note that as to the departments and employees subject to the terms of the new ordinance, the following provision is made in section X: "Whenever in the judgment of the City Council it becomes necessary in the interest of economy or because the necessity for the position involved no longer exists, the City Council may abolish any position or employment in the Civil Service list and discharge the employee holding such position or employment. * * *"
As we have previously stated, on August 22, 1938, four months after the civil service ordinance became effective, the city council of Huntington Park adopted the resolution under which the positions held by the respondents were abolished. Shortly thereafter each employee addressed letters of protest to the chief of his department and to the city council, and each made a request in writing of the civil service commission for reinstatement, for back pay and for a hearing, "as is required by said Ordinance", referring to the initiative ordinances governing the fire and police departments, respectively.
The civil service board on November 15, 1938, considered the matter of respondents’ discharge and under date of November 21, 1938, through its secretary, sent to the city council the following communication:
"The Civil Service Board at a meeting November 15, 1938, adopted a resolution to the effect that it was not within the jurisdiction of the Board to take any action in the matter of the removal from service of several members of the Police and Fire Departments, on the ground that these dismissals were made for reasons of economy; that there is nothing in the Police and Fire Departments’ ordinances covering the subject of removal of employees from the service on ‘grounds of economy’; and that there is no clause in these Ordinances covering the subject of ‘seniority’.
"Furthermore, it was pointed out that pursuant to the provisions of these Ordinances governing the Police and Fire Departments, the Board can act only when charges are preferred against employees of these two departments."
No exception appears to have been taken by either respondent to this decision of the civil service board not to arrange for a hearing, and we note that the members of that board were not joined as defendants with the other city officials named in the petition for a writ of mandate which respondents filed in January, 1939.
The record before us indicates that in the early part of June, 1938, and about two months before the adoption by the city council of resolution No. 1758 which we have quoted herein, that body increased the number of fire department employees by engaging two men, Snoeberger and Peterson, but this was shortly before an audit of the city’s finances was ordered toward the close of the fiscal year, July 1, 1938. The report of the auditor was returned in the early part of August. It showed that a deficit of more than $42,000 arose during the preceding fiscal year and that an excess of expenditures over income, estimated at $20,000, would result for the fiscal year just beginning. A recommendation was made by the auditor to the effect that expenditures be reduced or the tax rate raised. Councilman Schulz testified that all members of the city council were in favor of maintaining the old rate of 70 cents on $100 valuation. He stated, "* * * it was my recommendation that the personnel in the police department as well as in the fire department be reduced together with a ten percent reduction in salaries for the ensuing year; and also to impose a two-weeks’ compulsory vacation on the membership of the street department without pay. So that we could live within our means and maintain that 70 cents tax rate. We had several meetings together with the auditor; we tried to devise the necessary amount of reduction in personnel. And we finally decided to have our chief of police, Mr. William L. Hulquist, bring in a list of the men that he felt that he could spare the easiest. And also the same kind of a recommendation to the chief of the fire department, Chief Slocum.
"Q. And did these men--I mean the two chiefs--did they bring in a list? A. Yes, sir; they did. They came into the committee room where the Council was in session, together with the auditors and yourself discussing this budget. They were called up on the ‘phone to come upstairs. And they had made out this list of the men that they recommended to be dismissed.
"Q. Did they receive any instructions from the City Council on who to put on that list? A. They did not.
"Q. Did the City Council follow the advice of the chiefs of the two departments in forming their resolution which was subsequently passed? A. They did." It further appears from Mr. Schulz’s testimony that inquiries were made concerning the size of personnel employed in the police and fire departments of municipalities in the immediate neighborhood of Huntington Park, some of them of larger size than that city and approximately the same population. The result of those inquiries indicated, according to Mr. Schulz, that "We were over-manned according to the amount of men that they had, in accordance with their population and area to cover. And the salaries, I might say too, our salaries were greater than theirs."
Indicating that the purpose of reducing the personnel was to effect economy, Mayor Cox of the city of Huntington Park testified, "* * * we decided that we would meet our budget with the same tax rate and in so doing we decided there would be a certain number out of the police department that would be laid off, a certain number out of the fire department. If all of the men in the street department would take a two weeks’ vacation without pay, if all of the employees in the fire department and police department would take a ten percent cut in wages that made up our deficiency so that we would not be going in the red and we set our tax rate accordingly the same as it was. * * *
"Q. The salary in both departments is still ten percent less? A. Yes. All the street men took their two weeks last year without pay throughout the entire department.
"Q. Did you have any discussion or did the City Council ever take any action in regard to reducing personnel prior to your report? A. No, sir.
"Q. On June 1, 1938, had you any discussion or had you formed any plans to reduce the size of either department? A. No.
"Q. About what time did you first receive your knowledge on this matter? A. I would say it was around possibly early in August sometime that we got our first inkling of the real condition from the auditor."
Testimony of the two witnesses above quoted, and other evidence received by the court, in our opinion establishes the fact, contrary to the findings and conclusions of the trial court, that the positions which respondents had held were abolished legally and in good faith, not from any ulterior motive but upon the grounds of economy, as stated in the resolution of August 22, 1938.
It was established at the trial that, at a considerable saving, the duties which had attached to the positions held by respondents were taken over and performed by members of their departments without the hiring of additional men to succeed them.
On June 1, 1938, there were twenty-six men in the fire department; on June 11th, before the report of the auditor was received, the number was increased to twenty-eight, and at the date of trial the personnel numbered not more than twenty-five. On August 22, 1938, when the resolution of the city council was adopted, there were thirty-six or thirty-seven men in the police department, while at the time of trial the number did not exceed thirty. A quotation from the opinion in Living-stone v. MacGillivray, 1 Cal.2d 546, at page 553, 36 P.2d 622, 625, is apropos at this point: "It must, we think, be conceded that abolition of an office or position is not synonymous 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. It must also be conceded that the power to abolish a position may not be tortured into a mere instrumentality to effect the discharge of an employee protected by the salutary provisions of civil service regulations."
Also, as bearing on the matters we are here considering, we note the case of O’Neill v. Williams, 53 Cal.App. 1, 199 P. 870, 871. In that case the city council of Oakland reduced the number of corporals in the police department from fourteen to seven while the plaintiff, a corporal, was absent under suspension. On his return to duty he was assigned to the position of sergeant at a lower salary. He sought a writ of mandate to compel the payment to him of a corporal’s salary. The District Court of Appeal, in affirming the trial court’s refusal to grant the writ, said, "It cannot be supposed that the framers of the charter intended that after the police department was once organized, and its members finally appointed, the number so appointed must continue in office, whether the public needs require their retention or not. It is a general rule, now well settled, that an office or position created by municipal ordinance may be abolished by ordinance, in which case the incumbent ceases to be an officer. * * *
"In answer to appellant’s contention that to uphold the judgment of the lower court is to leave every officer and member of the police department at the mercy of a designing and evil-intentioned city council, we need only point out that the element of good faith must ever govern such matters. Fraud, deceit and intrigue, if shown, would defeat the object of any pretended praiseworthy action. An apt quotation from the highest court of a sister state appeals to us in this connection: ‘There is a real and fundamental distinction between the laudable abolition of an unnecessary position and the discharge of a faithful employee in violation of the rights secured to him by statute, and the latter action can neither be concealed nor protected by a pretense that it was an exercise of the former right.’ Garvey v. Lowell, 199 Mass. 47, 50, 85 N.E. 182, 127 Am.St.Rep. 468. If fraud was present in the instant case, it has not been shown." O’Neill v. Williams, supra.
We have found nothing in the record before us to indicate that the power of the city council to abolish positions was tortured into an instrumentality to effect the discharge of either of the respondents; neither does fraud or subterfuge appear.
It may well be, as appellants argue, that the initiative ordinances passed in 1932 and 1934, which the trial court determined were valid and subsisting laws, are in fact void and ineffective for the reason that no power to enact such ordinances was granted, expressly or impliedly, by any legislative act to the electors of Huntington Park, a city of the sixth class. See Frisbee v. O’Connor, 119 Cal.App. 601, 7 P.2d 316, and Richards v. Wheeler, 10 Cal.App.2d 108, 51 P.2d 436, but a determination of that question seems unnecessary here since each respondent was dismissed from the service in exact conformity with the terms of the respective ordinance relating to his department, namely, by the city council acting upon the recommendation of his chief. Since the General Municipal Corporations Act (Stats. 1937, § 852, pp. 1811, 1812) also provided that "said officers and employees shall hold office during the pleasure of said city council", we are satisfied that the dismissals were, from every viewpoint, regular in form. That they were also regular in substance appears from the evidence, showing conclusively as it does that the positions formerly held by the respondents were legally abolished for reasons of economy, and in good faith. Since the findings and conclusions in this case are not, in our opinion, supported by the evidence, it follows that the judgment based thereon must be reversed, and that the peremptory writ heretofore issued in this cause must be discharged. It is so ordered.
YORK, P. J., and DORAN, J., concurred.