Opinion
Page __
__ Cal.App.2d __257 P.2d 100TEVIS et al.v.CITY & COUNTY OF SAN FRANCISCO et al.Civ. 15413.California Court of Appeals, First District, First DivisionMay 19, 1953Hearing Granted July 15, 1953.
[257 P.2d 102] Dion R. Holm, City Atty., A. Dal. Thomson, Public Utilities Counsel of the City & County of San Francisco, and Jack G. McBride, Deputy City Attorney, San Francisco, for appellants.
Delany, Fishgold & Minudri, San Francisco, for respondents.
PETERS, Presiding Justice.
Petitioners are civil service trackmen formerly employed by the city and county of San Francisco who were laid off June 30, 1950, because many streetcar tracks in the city were then being torn up and not replaced, with the result that many trackmen were not needed. After the lay off, petitioners have remained on the civil service list. They contend that they are entitled to a two-week vacation with pay earned during the calendar year of 1949. It is conceded by the city and its officers named in the petition that all petitioners have the qualifications entitling them of this vacation pay unless they are barred by the lay off. The city and its officers contend that the lay off on June 30, 1950, bars petitioners because section 151.5 of the charter, upon which petitioners must rely, did not become effective by legislative ratification until September 26, 1950, St.1950, 3d Ex.Sess., p. 102, and that under that section, properly interpreted, those laid off prior to the effective date of the section are not entitled to vacation allowances. The trial court determined that petitioners were entitled to the vacation pay, and granted its mandate accordingly. The city and its named officers appeal, contending that mandate is not the proper remedy, that section 151.5, properly interpreted, prohibits the relief prayed for, and that the judgment appealed from will result in the gift of public funds in violation of the state Constitution.
At the outset of this proceeding we are met with the contention that mandate is not a proper remedy because, so it is claimed, petitioners are seeking a simple money judgment against the city.
The petition here involved names the city and county, the members of the public utilities commission, the manager of the commission, the secretary of the civil service commission and the controller and treasurer of the city as defendants, and asks relief against them all. The prayer of the petition is for a writ commanding all of the defendants 'to allow said petitioners and plaintiffs vacation pay of two calendar weeks,' for an injunction restraining all of defendants from doing any of the acts threatened in the petition, for a money judgment for the amounts involved, and for costs and other relief. While it is the law that mandamus may not be used to recover money in a specific sum from a governmental agency where that is the sole issue presented, Northrup v. Haynes, 15 Cal.App.2d 665, 59 P.2d 1056; Coombs v. Smith, 17 Cal.App.2d 454, 62 P.2d 380, that rule does not preclude the use of mandate where the cooperation of city officials must be had before payment can be secured. See Scannell [257 P.2d 103] v. Murphy, 82 Cal.App.2d 844, 187 P.2d 790; Quigg v. Evans, 121 Cal. 546, 53 P. 1093. In Scott v. Boyle, 164 Cal. 321, at page 323, 128 P. 941, at page 942, the court stated the applicable rule as follows: 'Mandamus is an appropriate remedy to compel an auditing officer to issue a warrant for the compensation of the employes or officers of a city, county, or state, where the amount thereof is so fixed by law, ordinance, or otherwise that the act of auditing the same and drawing a warrant accordingly is merely ministerial in character.'
The same principle was announced in Dupuy v. Board of Education, 106 Cal.App. 533, 539, 289 P. 689, 692, in the following language: 'It is urged, that conceding the correctness of the lower court's ruling mandate is not the proper remedy. It will be noted that the claim of plaintiff involves no terms of employment or dispute over services rendered. All that is involved is whether or not moneys, conceded to have been earned, are now due. All that remains is the issuance of the warrant and this is a ministerial duty enjoined by law. In such a case mandate will lie. [Citing authorities.]' See, also, Reed v. Board of Education, 139 Cal.App. 661, 34 P.2d 758.
But, say appellants, even if mandamus would normally be available, it was erroneous to grant such relief here because there was no allegation or proof that funds were available to make the ordered payments, and without such fact existing mandamus improperly interferes with the detailed and carefully timed fiscal procedures of the city as set forth in the charter. §§ 69, 70, 72, 73 and 86, St.1931, pp. 3020, 3023, 3030, St.1948, pp. 193, 195. It is urged that the issuance of a writ of mandate contravenes the advance budgetary planning contemplated by the charter. The vacations here involved were earned in 1949 and receivable by those entitled in 1950. It is claimed that no provision was made in the 1950 budget for this vacation pay.
There are some cases that state the general rule that the petitioner must plead and prove the existence of a specific fund out of which payment can be made. Stevens v. Truman, 127 Cal. 155, 59 P. 397; State Commission in Lunacy v. Welch, 20 Cal.App. 624, 129 P. 974; see annotation 5 A.L.R. 572, at page 579. But there are so many exceptions to this rule that it has been almost emasculated. Thus in the Truman case, supra, the court declared that if there is a valid state law imposing a duty to appropriate upon the city and county, the general treasury of the city and county is liable even if the special fund set up by the supervisors proves to be inadequate. There are also cases holding that payment will be made out of the general funds of the governmental agency for an otherwise legally created office for which the legislative body has failed to appropriate money to pay the salary. The leading case is Meyer v. Riley, 2 Cal.2d 39, 38 P.2d 405, 406, which held that the occupant of a state office created by the Legislature could mandamus the state controller to pay him his salary even though the Legislature had failed to include any appropriation for such salary in the annual budget bill, and even though such salary was subject to being increased by the executive department. The court held that the creation of the office was sufficient compliance with the constitutional requirement that 'no money shall be drawn from the treasury but in consequence of appropriation made by law'. Article 4, § 22. The sufficiency of the general fund was assumed. See, also, U'ren v. State Board of Control, 31 Cal.App. 6, 159 P. 615; Millholen v. Riley, 211 Cal. 29, 293 P. 69. While the rule of these cases as applied to the state has been changed by statute, § 9610, Gov.Code, no such statutory change has taken place as to cities or cities and counties.
This principle has been applied to the very city and county here involved. Thus in Harrison v. Horton, 5 Cal.App. 415, 90 P. 716, it was held that a charter authorization (the vacations involved in the instant case are provided by charter provision) to the district attorney to hire an assistant did away with the necessity of an appropriation by the board of supervisors and a warrant by the auditor for the payment of the salary, and allowed the same to be collected by mandate, even though there [257 P.2d 104] was no provision for such position in the annual budget.
These cases establish the rule that the charter provision here involved amounts to an appropriation by the charter, cutting across the provisions for budgeting, etc., relied upon by appellants. Mandamus is therefore an appropriate and proper remedy in the instant case.
This brings us to the basic question involved herein, and that is whether these petitioners are entitled, under the charter provisions, to vacation pay. The wages of petitioners are fixed under section 151.3 of the charter, St.1947, p. 3266, that is, such wages are based upon collective bargaining agreements in private industry. Admittedly, the relevant collective bargaining agreements have no provision for vacations. This court in Adams v. City & County of San Francisco, 94 Cal.App.2d 586, 211 P.2d 368, 212 P.2d 272, held that employees of the city whose salaries were fixed in accordance with union collective bargaining agreements under section 151.3 of the charter, and where such collective bargaining agreements did not provide for vacations with pay, were not entitled to vacations with pay, in spite of the broad provisions of the charter, § 151, St.1943, p. 3128, granting vacation rights to other city employees. The rationale of the opinion was that, under section 151.3 of the charter, this limited group of employees was entitled to the same, but no more, compensation or take-home pay as their counterparts in private industry; that vacations with pay were an integral part of the wage structure so that where private industry allowed no vacations, the city employees covered by section 151.3 were not entitled to vacations.
While the Adams case was pending the people of San Francisco at the general election held on November 8, 1949, adopted § 151.4 of the charter, St.1949, 1st Ex.Sess. p. 46, which, by its express terms, did not become effective until January 1, 1951. So far as pertinent here, that section provided:
'Every person employed in the city and county service shall, after one year's service, be allowed a vacation with pay of two calendar weeks, annually, as long as he continues in his employment, provided that, after five years' service every person so employed shall be allowed, as long as he continues in his employment, a vacation with pay of fifteen days, annually, calculated as hereinafter provided. * * *'
'This section shall become effective on January 1, 1951.'
The Adams case was decided in November, 1949, and became final in January of 1950, after section 151.4 had been adopted but before it became effective. The people acted promptly to rectify what they apparently felt was unfair discrimination in denying to certain employees vacation rights. At an election held June 8, 1950, section 151.5 was added to the charter, granting to these employees vacation rights in the future and retroactively to the year 1948. The new section reads as follows:
'(a) Every employee of the City and County of San Francisco whose rate of compensation is fixed pursuant to the provisions of section 151.3 of this charter shall be entitled to receive an annual vacation at the time, with the pay and of the duration specified in section 151.4, and no section of the charter nor any provision of any collective bargaining agreement nor any street railway or bus wage schedule shall be construed in any manner or for any purpose to increase, reduce or otherwise affect the time or duration of, or pay for, vacations provided by section 151.4, nor shall any employee be deemed to have any vacation rights other than or in excess of the vacation rights specified in section 151.4.
'(b) The vacation rights granted by section 151.4 or by this section, or contained in any collective bargaining agreements, or in any street railway or bus wage schedules, as any of said terms are referred to in section 151.3 of this charter, shall in no way increase, reduce or otherwise affect or be deemed to affect the wage or pay rate or schedule determinations made pursuant to the provisions of said section 151.3.
'(c) All vacation payments heretofore made to employees of the City and County of San Francisco in the manner and to the extent prescribed by sections 375 to 380, inclusive of Part I of the San Francisco Municipal Code, are hereby deemed to have [257 P.2d 105] been earned and the payments therefor are hereby ratified and validated, and for all services rendered by employees during the calendar years 1948, 1949 and 1950 vacations shall be granted and paid pursuant to the terms of said sections of the Municipal Code.
'(d) This section shall become effective upon approval by the State Legislature.'
This section became effective on September 26, 1950.
All of the petitioners here involved were laid off on June 30, 1950. Other employees who were not laid off, after September 26, 1950, were granted the rights conferred by section 151.5, but as to those laid off on June 30th, the city took the position, and contends here, that although the vacations here involved were totally earned in the calendar year 1949, only those employees in the classifications covered who were in the employ of the city on September 26, 1950, when section 151.5 became effective, are entitled to rights under the section.
It will be noted that section 151.5 refers to certain Municipal Code sections, the only ones which are pertinent here being sections 375 and 376. They provide:
'375: Every employee in the City and County service, except certified employees in the Board of Education, shall be allowed an annual vacation as provided herein as long as he remains in the City and County service.'
'376 [in part]: Employees shall be allowed a vacation of two calendar weeks, and the compensation paid to employees during the vacation period shall be the amount the employee would earn during his vacation period if working at his current rate of pay and work schedule without the inclusion of overtime earnings * * *.'
All of the arguments of appellants are predicated upon the basic concept that since section 151.5 did not become effective until September 26, 1950, that fact alone determines that those who were not employees on that date are not entitled to the vacation allowance. These arguments completely overlook the questions of interpretation involved, that is, what was the nature of the rights given employees on September 26, 1950, for past services, and does the section require that to be entitled to vacation pay the person involved must have been in the employ of the city on September 26, 1950? In other words, does the section provide that it is to have a retroactive operation?
It is, of course, the law that a charter provision can be made to take effect and bind the courts at any time that the people, in the exercise of their legislative power, provide. In other words, a charter provision can be made to take effect at a time other than its adoption. Williams v. City of Vallejo, 36 Cal.App. 133, 171 P. 834; Callahan v. City & County of S. F., 68 Cal.App.2d 286, 156 P.2d 479. In the present case the people have spoken. Section 151.5, by its express terms, did not become effective until approved by the Legislature on September 26, 1950. We start with the premise that that was the effective date of the enactment.
In the second place, while there is a strong policy against construing statutes to be retroactive, Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 182 P.2d 159, there is no constitutional inhibition against retroactive legislation that does not impair contract or vested rights. McCann v. Jordan, 218 Cal. 577, 24 P.2d 457. Moreover, the Legislature, constitutionally, can affect existing contractual rights of its political subdivisions acting in a governmental capacity. County of Alameda v. Janssen, 16 Cal.2d 276, 106 P.2d 11, 130 A.L.R. 1141; County of Tulare v. City of Dinuba, 188 Cal. 664, 206 P. 983.
It should also be pointed out that it seems to be well settled that the resignation or lay off of an employee, even though he is thus deprived of his status as an employee, does not per se deprive him of accrued vacation rights. In Pohle v. Christian, 21 Cal.2d 83, 130 P.2d 417, there was involved a rule of the State Personnel Board allowing compensation for accrued but unused vacation time to a laid off employee. It was contended that this rule violated certain Political Code sections granting 'employees' of the state a vacation--provisions very similar to the Municipal Code sections above quoted. It was [257 P.2d 106] contended there, as it is contended here, that only those who were 'employees' when the vacation was taken were entitled. The Supreme Court summarily dismissed this contention, using the following language, 21 Cal.2d at page 90, 130 P.2d at page 421: 'The applicable sections of the Political Code may not reasonably be so interpreted. They do not expressly or otherwise provide than an employee having the right to a vacation loses his right to compensation for that time upon being separated from the service. The rule and the code provisions are in complete harmony, and the appellant is entitled to the vacation allowance claimed by him unless he waived it by refusing to take a vacation before he was laid off.' See, also, Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11; Verry v. Eckel, 61 Cal.App.2d 595, 143 P.2d 394. Thus, there is nothing wrong per se in making an allowance to laid off employees for accrued vacation rights.
The general purpose of this amendment to the charter must also be considered. Quite obviously the people of San Francisco desired that all city and county employees should be given a vacation with pay. They apparently felt that the decision in Adams v. City & County of San Francisco, 94 Cal.App.2d 586, 211 P.2d 368, 212 P.2d 272, had resulted in a small segment of workers being discriminated against, and that such was not their desire. That these were the reasons which induced the voters to adopt 'Proposition A', § 151.5 of the charter submitted to them in June of 1950 is indicated by the argument to the voters, approved by the Board of Supervisors, in favor of 'Proposition A' and mailed to electors of the city prior to the election. No argument in opposition to the proposed section was submitted. In that argument it is pointed out that the small group of employees who had been deprived of vacation rights seek to 'clarify existing vacation rights granted all other City Employees and thereby have restored the same vacation privileges enjoyed by all other departments within the City Government.' Then after a reference to § 151.4 of the charter which had been adopted the preceding November, the argument continues: 'This group of workingmen have always enjoyed an annual vacation down through the years. A legal technicality via court action, deprived these workers of the vacation allowance which you, the people of San Francisco, have already given them.
'Therefore, by virtue of the above legal technicality, this small segment of workers are the 'forgotten men' of our City Employees.
'Briefly, Charter Amendment 'A' asks only for a clarification of prevailing vacation rights and the subsequent restoration of an annual vacation which is granted to most working people everywhere.'
This argument clearly indicates that the voters were advised that the purpose of the amendment was to overrule Adams v. City & County of San Francisco, and to restore these people to the status they previously had.
Thus the question boils down to the problem as to whether this intent was clearly spelled out by the language used in the amendment. In the first place, the section clearly provides that it shall operate retroactively. Obviously, subsection (c) of section 151.5 has a retrospective operation, for it provides that such employees are entitled to vacations back to the year 1948. In that respect, the intent that the provision shall operate retrospectively is crystal clear.
In the second place, it is equally clear that the provision carefully refrained from conditioning its benefits to recipients who are employees of the city at the time the vacation is granted. Subdivision (a) of section 151.5 very carefully provides that 'Every employee' of the city operating under section 151.3 'shall be entitled to receive an annual vacation', but subdivision (c), which refers to those entitled to the benefits of the section, carefully omits any requirement of employment at the time of the receipt of such benefits, simply providing that 'for all services rendered by employees during the calendar years 1948, 1949 and 1950 vacations shall be granted and paid'. Thus the section provides that recipients of the benefits granted must be employees when the services were rendered, [257 P.2d 107] but carefully omits to provide that recipients must be employees when the benefits are granted.
When the obvious purpose of the section is considered together with the language employed to express that intent it seems clear that since these petitioners were employees of the city in 1949, rendered services then, and earned their vacation allotment for such services in 1949, the fact that they were laid off before they had an opportunity to take their vacations does not affect their rights to accrued vacation allowances granted by section 151.5. To hold that petitioners are not entitled to vacation allowances for the year 1949, expressly granted to them by subdivision (c) of section 151.5, we would have to disregard the intent of the section as therein expressed. That we are not permitted to do. Williams v. City of Vallejo, 36 Cal.App. 133, 171 P. 834.
The last contention of appellants necessary to consider is the assertion that if section 151.5 be interpreted as herein indicated it would be unconstitutional in that it would amount to a gift of public funds by granting compensation for past services in violation of Art. IV, sections 31 and 32 of the Constitution. Those sections provide:
'Sec. 31 [in part]. The Legislature shall have no * * * power to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever * * *.'
'Sec. 32. The Legislature shall have no power to grant, or authorize any county or municipal authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered, or a contract has been entered into and performed, in whole or in part, nor to pay, or to authorize the payment of, any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.'
There is a long line of cases holding that where these sections are applicable a past or moral consideration is insufficient, and that where only such consideration exists the sections are violated. See for a few typical cases, Conlin v. Board of Supervisors, 99 Cal. 17, 33 P. 753, 21 L.R.A. 474; Id., 114 Cal. 404, 46 P. 279, 33 L.R.A. 752; McBean v. City of San Bernardino, 96 Cal. 183, 31 P. 49; Allen v. Hussey, 101 Cal.App.2d 457, 225 P.2d 674; Lamb v. Board of Peace Officers, etc., 29 Cal.App.2d 348, 84 P.2d 183; Sweesy v. Los Angeles, etc., Retirement Bd., 17 Cal.2d 356, 110 P.2d 37; McCarthy v. City of Oakland, 60 Cal.App.2d 546, 141 P.2d 4.
These sections do prevent the state legislature, directly or indirectly, from granting to counties or cities the legal right to make a gift of public funds by recognizing the validity of past or moral considerations. But San Francisco does not derive its powers from the legislature. Its powers are derived from the Constitution itself. It is a chartered city and county under Article XI of the Constitution. As was said in Adams v. Wolff, 84 Cal.App.2d 435, 441, 190 P.2d 665, 670: 'The charter of a city is comparable to the Constitution of the state and governed by the same principles.' Various sections of Article XI of the state Constitution grant 'home rule' to cities and to cities and counties, and grant to such cities and cities and counties plenary power over their own affairs subject only to charter restrictions. §§ 6, 8, 8 1/2. Stated another way, sections 31 and 32 of Article IV, constitute a restraint on the Legislature, but such sections are not applicable to chartered cities or cities and counties. One of the leading cases so holding is Los Angeles Gas & Electric Corp. v. Los Angeles, 188 Cal. 307, 205 P. 125, where it was held that a lease by the city of its power to private power companies did not come under the bar of the provisions of Art. IV of the Constitution. At page 317 of 188 Cal., at page 129 of 205 P. the court stated the applicable rule as follows: 'This provision of the Constitution is in the article regulating the powers of the legislative department of the state government, and is a limitation [257 P.2d 108] upon the power of the state Legislature. The powers of the city of Los Angeles are not derived from the Legislature, but from a freeholders' charter directly provided for by the Constitution. That is to say, the people of the state, through the Constitution, authorize the people of the city to regulate its affairs by a charter to be framed by a board of freeholders and voted upon by the people of the city, and approved by a resolution of the Legislature. Section 31 of article 4 has no application to a city charter. It is expressly provided by the Constitution, art. 11, § 6, that the city in its charter may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws. The sale and distribution of electrical energy manufactured by a city is a municipal affair, and one over which the Legislature of the state has no control.'
The same thought was expressed by the majority of this court in Mullins v. Henderson, 75 Cal.App.2d 117, 132, 170 P.2d 118, 129, in the following language: 'Nor is there any merit in appellant's contention that the mayor's attempt to order payment to employees in excess of the compensation to which they were [legally] entitled under the salary ordinance and the Civil Service Commission rules would constitute an attempt on the part of the mayor to make a gift of public funds, and would therefore be a violation of section 31 of Article IV of the Constitution. The case of Conlin v. Board of Supervisors, 99 Cal. 17, 33 P. 753, 21 L.R.A. 474, 37 Am.St.Rep. 17, upon which appellant relies, was decided when the city and county of San Francisco was operating under a former charter which constituted a direct grant of power from the Legislature, whereas now it is operating under a freeholders' charter; and it has been definitely held that section 31 of Article IV has no application to a city operating under a freeholders' charter, and that where a city is so operated it is subject only to the restrictions and limitations provided for in its charter (Los Angeles Gas & Electric Corp. v. City of Los Angeles, 188 Cal. 307, 205 P. 125); that is to say, since the amendment in 1914 of section 6 of Article XI of the Constitution, which gives the right to chartered cities to control their municipal affairs, the charter of a city availing itself of that right is the supreme law of the city on its municipal affairs, and section 31 of Article IV of the Constitution does not apply to such a chartered city.' See, also, Bank v. Bell, 62 Cal.App. 320, 217 P. 538; Smith v. City of Glendale, 1 Cal.App.2d 463, 36 P.2d 1083.
Appellants next urge that the charter itself, by the last sentence of section 150, St.1931, p. 3065, prohibits such gifts. That sentence reads: 'No officer or employee shall be paid for a greater time than that covered by his actual service.' If it be assumed that this sentence should be interpreted as a prohibition against granting, retroactively, vacation pay to employees (a point we do not decide), it would simply constitute a limitation against the Board of Supervisors, by ordinance or otherwise, from making such an allowance. But it would not prevent the people from amending their basic law--the charter. Here the allowance is made by the charter itself. Section 151.5 was adopted many years after section 150 was adopted. In such cases the latest provision in point of time controls. Adams v. City & County of San Francisco, 94 Cal.App.2d 586, at page 593, 211 P.2d 368, 212 P.2d 272.
The judgment appealed from is affirmed.
BRAY and FRED B. WOOD, JJ., concur.