Opinion
Rehearing Denied Aug. 30, 1960.
Hearing Granted Sept. 21, 1960.
Opinion vacated 12 Cal.Rptr. 671. Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Assistant County Counsel, Joel R. Bennett, Deputy County Counsel, by Joel R. Bennett, Los Angeles, for appellants.
Joseph A. Ball, Long Beach, Milton L. Most, Los Angeles, Sidney A. Cherniss, El Monte, Cy H. Lemaire, Los Angeles, and Ball, Hunt & Hart, by Joseph A. Ball, Long Beach, for respondents.
ASHBURN, Justice.
Appeal from judgment in favor of petitioners in an action for mandamus and declaratory relief.
Section 47 of the Charter of the County of Los Angeles provides: 'In fixing compensation to be paid to persons under the classified civil service, the Board, of Supervisors shall, in each instance, provide a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment in case such prevailing salary or wage can be ascertained.'
Five county employees brought this representative suit seeking by their original petition a writ of mandate requiring the Board of Supervisors to ascertain and declare the prevailing salary or wage for the same quality of service rendered to private employers under similar employment etc., and, having ascertained the same, to adopt an ordinance providing for payment to each person in the classified civil service found to be receiving less than the prevailing wage a sum, commencing on July 1, 1958, sufficient to make his salary at least equal to the said prevailing wage. By amendment a second count was added seeking declaratory relief. Both prayers were granted, the court adopting petitioners' basic theory that section 47 creates a mandatory duty upon the board which involves a preliminary 'quasi-judicial, non-legislative, fact-finding function;' that this fact-finding must be made before a salary ordinance is passed, and that in making such finding the board must disregard such matters as fringe benefits, must adhere to the court's definition of quality of service, similar employment, and further consider or reject other factors mentioned in the judgment. The judgment, after making these declaratory guides for further action, directs a peremptory writ of mandate requiring the board to proceed at once to ascertain and declare the prevailing salary or wage as of July 1, 1958, and 'in so doing that they adhere to their duties as declared Petitioners' attack is directed at a salary ordinance passed by the Board of Supervisors on May 27, 1958 fixing salaries and wages for the fiscal year beginning on July 1, 1958. The complaint contains no factual allegations of fraud or bad faith--only conclusionary averments to the effect that the board's action 'was arbitrary and capricious and was so palpably unreasonable as to demonstrate an abuse of discretion as a matter of law.' Moreover, there is no averment, no finding and no basis for a finding that the ordinance which was passed did not provide salaries and wages 'at least equal to the prevailing salary or wage.' The pertinent portions of the judgment are quoted in the margin. It is immediately apparent that the court not only has commanded the legislative body to adopt a law, but has also prescribed what it may consider and what it must reject in so doing, one of the requirements being that it engage in a 'quasi-judicial, fact-finding function' which can mean nothing other than a fact-finding hearing, the taking of evidence and the making of findings--'to ascertain and declare the prevailing salary or wage' and then adopt an ordinance effectuating the same.
'It is hereby ordered, adjudged and decreed as follows:
This proceeds upon three basic misconceptions: (1) That a subordinate legislative body must hold a fact-finding hearing as a condition precedent to legislating; (2) that the courts can command legislative action; and (3) that they can prescribe in advance the proper interpretation of existing charter law which the legislative body is to pursue in their further legislation.
It is firmly established, and by respondents conceded, that the fixing of salaries or wages is a strictly legislative prerogative and duty. City & County of San Francisco v. Boyd, 22 Cal.2d 685, 689, 692, 140 P.2d 666; Allen v. Bowron, 64 Cal.App.2d 311, 313, 148 P.2d 673; Carrier v. Robbins, 112 Cal.App.2d 32, 35, 245 P.2d 676; Banks v. Civil Service Commission, 10 Cal.2d 435, 442, 74 P.2d 741; Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 84 L.Ed. 1108, 1114; Collins v. City & Co. of S. F., 112 Cal.App.2d 719, 729-730, 247 P.2d 362. It is equally clear that the determination of the question of what are prevailing wages as an incident to fixing compensation of employees is also quasi-legislative, not judicial or quasi-judicial.
Collins v. City & Co. of S. F., supra, 112 Cal.App.2d 719, 247 P.2d 362 involved the question of whether the fixing of salaries by the Board of Supervisors pursuant to § 151 of the San Francisco Charter was legislative, and, hence, subject to referendum, or whether, on the other hand, it was merely administrative. That section of the charter provides that the Civil Service Commission shall prepare and submit to the board and the board shall adopt a schedule of salaries and wages which shall include all classifications and be in accord with generally prevailing rates of wages; the Civil Service Commission is required to make a comprehensive investigation and survey, record its findings as to the prevailing wage for each class of employment and recommend a rate of pay for each classification in accordance therewith. (No such provision appears in the Los Angeles County Charter.) The board may approve, amend or reject the schedule proposed by the Civil Service Commission, but in case of amendment must have a new report from the commission as to the effect of the proposed change in the schedule. The court concluded that the function of the supervisors in passing a salary ordinance under these conditions is strictly legislative and the ordinance therefore subject to referendum. At page 731 of 112 Cal.App.2d, at page 370 of 247 P.2d it is said: 'Under section 151 the board exercises some legislative discretion as to the standardization process. Since the board has the power to reject the schedules submitted by the commission and City and County of San Francisco v. Boyd,
The Boyd case, cited in the foregoing quotation, arose under the same San Francisco Charter. The Civil Service Commission, after making appropriate investigation, proposed a schedule of wages and submitted same to the Board of Supervisors. The board adopted it except as to rates proposed for bus drivers, and in passing a salary stabilization ordinance fixed their rate at five cents per hour in excess of the recommended schedule. The controller refused to audit and approve wage claims based upon this ordinance. The proceeding was one in mandamus seeking to compel him to do his duty. He resisted upon the ground that the ordinance was void as being in contravention of § 151 of the charter. At page 690 of 22 Cal.2d, at page 668 of 140 P.2d the court said: 'The determination whether proposed rates of compensation are in accord or in harmony with generally prevailing rates is within the discretion of the rate-making authority. The courts will not interfere with that determination unless the action is fraudulent or so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law.'
Carrier v. Robbins, supra, 112 Cal.App.2d 32, 245 P.2d 676, was an action for declaratory relief growing out of § 40 of the San Diego County Charter (quoted at page 33 of the report) which in terms is a substantial equivalent of Los Angeles § 47. The complaint sought a declaration that the Board of Supervisors in ascertaining the prevailing rate should accept or disregard certain specified considerations (112 Cal.App.2d at pages 33-34, 245 P.2d 676). In upholding the sustaining of a demurrer without leave, the court said in 112 Cal.App.2d at page 35, 245 P.2d at page 678: 'The fixing of salaries of county and municipal employees is a legislative function.' Touching upon the propriety of declaratory relief such as there sought and as granted in the case before us, it was also said on the same page: 'It is apparent from the record before us that plaintiffs are attempting to obtain a judgment of the court establishing a rule or 'yardstick' which must govern the board of supervisors in fixing the salaries of county employees. Plaintiffs argue that only the judiciary has the power to interpret a charter and that the supervisors do not have the power to interpret the extent of their authority and find the facts accordingly. This contention is without merit. * * * Plaintiffs concede that the board of supervisors pursuant to the terms of the charter have a fact finding function. The courts will not interfere in the exercise of this function in an action for declaratory relief unless it can be shown that there was an abuse of discretion, fraud, bad faith or unreasonable and arbitrary action.'
Monahan v. Department of Water & Power, 48 Cal.App.2d 746, 120 P.2d 730, was an action for declaratory relief in which certain journeymen linemen claimed they were entitled to the same salary as troublemen and had been subjected to discrimination. In affirming a judgment based upon demurrer sustained without leave, the court remarked in 48 Cal.App.2d at page 753, 120 P.2d at page 734: 'Executive heads in the fields of government, as in the fields of commerce, must have a certain amount of discretion if they are to function. * * * For the court to accord relief here would not only be to put governmental executives in a straitjacket, but would involve an altogether too complacent an attribute of superiority in the court in the handling of administrative details which have not been entrusted to them but to the executives on McCray v. United States,
To the same general effect see Allen v. Bowron, supra, 64 Cal.App.2d 311, 313, 148 P.2d 673; Banks v. Civil Service Commission, supra, 10 Cal.2d 435, 442, 74 P.2d 741.
It seems clear from the foregoing authorities that the declaratory features of the judgment under review were inappropriate and, indeed, such an interference with the legislative prerogative of the Board of Supervisors as to constitute prejudicial error regardless of the mandate features of the judgment.
Closely akin to this matter is the requirement that the board in fixing salaries as commanded shall first 'ascertain and declare the prevailing salary or wage as of July 1, 1958' and 'in so doing that they adhere to their duties as declared by the Court under Section 47 of the Charter,' which plainly implies a 'quasi-judicial, non-legislative, fact-finding' hearing. The Los Angeles County Charter neither expressly nor impliedly requires any hearing whatsoever. In that respect it differs from the provisions of § 151 of the San Francisco Charter relating to the duties of the Civil Service Commission. '[i]f the freeholders, elected by the voters of said county, failed to provide for such a hearing, the courts are powerless to supply what they neglected to incorporate in the charter.' Cronin v. Civil Service Commission of the County of Los Angeles, 71 Cal.App. 633, 643, 236 P. 339, 343.
In French v. Cook, 173 Cal. 126, 160 P. 411, a policeman's widow was seeking a pension under the San Francisco Pension Fund. Her claim, filed with the Board of Trustees, was denied apparently because it appeared to the board that the policeman had died from peneumonia, a non-service connected disability, rather than from falling off his horse in the performance of his duties, as contended by the claimant. The charter provision in question called for payment of a pension to a policeman, or his widow, under certain conditions and, like § 47 of the Los Angeles County Charter, contained no provision for a hearing or finding by the Pension Board. 'To hold in accord with defendants' claim in this connection would be, as we read the charter, to hold that any officer authorized and required by law to do a prescribed act upon a prescribed contingency, where no method is specially provided for the ascertainment of the facts, is invested with the power to judicially determine the facts, and that his conclusion is a judicial determination as to the facts. Such has never been declared to be the law.' 173 Cal. at page 130, 160 P. at page 413.
Franchise Tax Board v. Superior Court, 36 Cal.2d 538, 549, 225 P.2d 905, 911: 'Where the proceedings are quasi-legislative in character, a hearing of a judicial type is not required; a hearing allowed by legislative grace is not circumscribed by the restrictions applicable to judicial or quasi-judicial adversary proceedings.' City Council v. Superior Court, 179 Cal.App.2d 389, 3 Cal.Rptr. 796, 799: 'Mere ascertainment of facts as a basis for legislation does not render the process judicial or anything less than quasi legislative.'
In San Diego Water Co. v. City of San Diego, 118 Cal. 556, 564, 565, 50 P. 633, 634, 38 L.R.A. 460, a rate-fixing case, the court said: 'Whether the fixing of rates by the council be called a legislative, a judicial, or an administrative act, it is certainly not an adversary judicial proceeding, such as under the constitution will conclude private rights. * * * The function of the courts No duty rests upon the Board of Supervisors under § 47 of the charter to hold a hearing or make findings of fact. This was conceded by respondents at the trial. But the ultimate position taken by them at that time and in this court seems to be that the ordinance fixing salaries as of July 1, 1958, is invalid because it is not based upon any evidence whatsoever. Plainly, there is no such requirement in the charter, express or implied. The board's determination of the basic fact of prevailing wage can be based upon private investigations of the board members or conferences by them with the chief administrative officer and his assistants, or upon any other basis satisfactory to them. Had it passed the ordinance without any hearing or the assignment of any reasons there would be a conclusive presumption that the board had made the necessary investigation and taken into consideration the proper factors. Swars v. Council of City of Vallejo, 33 Cal.2d 867, 872-873, 206 P.2d 355; Allen v. City of Los Angeles, 210 Cal. 235, 238, 291 P. 393; Taylor v. Cole, 201 Cal. 327, 336-337, 257 P. 40.
As construed in Berkeley High School Dist. v. Coit, 7 Cal.2d 132, 136-137, 59 P.2d 992, the case of San Christina Inv. Co. v. San Francisco, 167 Cal. 762, 141 P. 384, 52 L.R.A.,N.S., 676 (cited by respondents), is not opposed to these views. In the Berkeley case it is said: "Respondents admit that in proceedings of this nature, where a court finds that a thorough investigation of the necessary antecedent jurisdictional facts has been made by a board of supervisors, or other inferior legislative body, the court will not disturb the findings made pursuant to such investigation. Spring Valley Water Works v. San Francisco, 82 Cal. 286, 305, 22 P. 910, 1046, 16 Am.St.Rep. 116, 6 L.R.A. 756. The stressed point here is that the necessary thorough investigation was not made.
The foregoing disposes of respondents' major contention as a matter of law, but it is also without factual foundation.
Prior to 1958 it had been the practice of the Board of Supervisors for some years to accept and apply to county employment the results of a joint wage and salary survey conducted by the city, county, city school district and city housing authority. But in fixing salaries for the fiscal year beginning July 1, 1958, the board declined to apply to county salaries the joint survey which had been made as of March 1, 1958, and adopted an ordinance which carried forward existing wages. This was done after two public hearings at which no sworn testimony was taken but various persons, including the supervisors and the county
In November of 1958, the matter was reconsidered by the administrative officer and the board, and a new ordinance was then passed making an across-the-board wage inrease of 5 1/2 per cent, effective January 1, 1959, which ordinance was influenced largely by the application to county employees of the March 1, 1958, joint survey. Although the administrative officer was not willing to accept that survery in May, 1958, when the first ordinance was considered and his reluctance was due to the belief that wages were on a descending scale at that time, employment had stabilized by November to the point where the administrative officer and his assistants considered the joint survey then appropriately applicable. Concerning this January 1, 1959 raise, counsel for petitioners said in argument below: 'Without proper inquiry, it may be giving County employees more than prevailing wage. Well, there is nothing wrong with that because the discretion is in the Board under Section 47 to pay a sum greater than that sum which is at least equal to prevailing wage * * *.' Again: 'Let me qualify that; it may comply with Section 47 if the result is to pay a wage at least equal, but we don't know whether it is or not until we study it. Of course that problem isn't before us.' These remarks seem sound and seem equally applicable to the July 1, 1958 ordinance. For aught that appears, the wages as then fixed did then represent the going rate. Just as an appellate court cannot look into faulty reasoning of a trial court by which it reached a correct decision, a fortiori it Apposite here is the oft-quoted remark found in Berkeley High School District V. Coit, supra, 7 Cal.2d 132, 137, 59 P.2d 992, 994: 'Where the act of a local or subordinate legislative body is not only legislative but also is discretionary in the required exercise of judgment, concerning a matter committed to its care, the courts 'cannot enter the board room * * * nor interfere at all with its action unless the board is exceeding its legislative powers, or its judgment or discretion is beng fraudulently or corruptly exercised'.' There is no such charge here. Indeed, there was no showing made or attempted that the July 1, 1958, schedule was not equal to or in excess of the then prevailing wages and salaries in industry generally.
The controversy was thereby narrowed to its present scope, namely, an effort to compel the Board of Supervisors to pass an ordinance readjusting salaries for the six-month perior extending from July 1, 1958, to January 1, 1959.
There is no justification in the record for the adjudication that the Board of Supervisors is required to hold a 'quasi-judicial, non-legislative, fact-finding' hearing as an incident to compliance with § 47 when fixing salaries and wages.
There is no power in the court to issue mandate to a legislative body such as a Board of Supervisors directing it to pass an ordinance. It should be noted that respondents do not seek to have the May, 1958 ordinance declared invalid; they are attempting to compel enactment of one to take its place and to cover the period from July 1, 1958, to January 1, 1959.
This question of the power of the court to control legislative proceedings was reviewed by us in City Council v. Superior Court, supra, 179 Cal.App.2d 389, 3 CalRptr. 796, 799, and we readopt substantial portions of that opinion. Language found in the above quotation from the Berkeley case 'and similar expressions found in numerous other cases upholding interference with legislative action is directed toward the right to undo what the legislative or quasi legislative body has done, not toward directing it to perform an act which is prospective in operation. This observation applies to Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 1 Cal.Rptr. 334; Lawrence v. City of Santa Rosa, 53 Cal.2d 282, 1 Cal.Rptr. 339; Johnston v. City of Claremont, 49 Cal.2d 826, 838, 323 P.2d 71; Berkeley High School Dist. v. Coit, 7 Cal.2d 132, 137-138, 59 P.2d 992; Johnston v. Rapp, 103 Cal.App.2d 202, 206, 229 P.2d 414; Peart v. Board of Supervisors, 145 Cal.App.2d 8, 13, 301 P.2d 874; Orange County Water Dist. v. Bennett, 156 Cal.App.2d 745, 750, 320 P.2d 536; Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 264, 237 P.2d 32 (disapproved in Fascination, Inc. v. Hoover, 39 Cal.2d 260, 265, 246 P.2d 656).
'The commanding of specific legislative action is beyond the power of the courts for it would violate the principle of division of powers of the three governmental departments. Upon the level of the legislature itself the rule seems well established. See annotations in 136 A.L.R. 677, and 153 A.L.R. 524.
'Myers v. English, 9 Cal. 341. Mandamus to compel state trasurer to pay certain salary warrants in the absence of an appropriation therefor. At page 349: 'It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the Courts have no means, and no power, to avoid the effects of non-action. The Legislature being the creative element in the system, its action cannot be quickened by the other departments. Therefore, when the Legislature fails to make a appropriation, we cannot remedy that evil. It is a discretion specially confided by the Constitution to the body possessing the power of taxation. There may arise exigencies, in the progress of human affairs, when the first moneys in the treasury would be required for more pressing emergencies, and when it would be absolutely necessary to delay the ordinary appropriations for salaries. We must trust to the good faith and integrity of all the departments. Power 'French v. Senate, 146 Cal. 604, 80 p. 1031, 2 Ann.Cas. 756, 69 L.R.A. 556. Mandamus to compel reinstatement of certain senators who had been expelled by action of the senate without hearing or opportunity to defend against charges. At page 606 of 146 Cal., at page 1032 of 80 P.: 'Even if we should give these allegations their fullest force in favor of the pleader, they do not make a case justifying the interposition of this court. Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. * * * There is no provision authorizing courts to control, direct, supervise, or forbid, the exercise by either house of the power to expel a member. These powers are functions of the legislative department, and, therefore, in the exercise of the power thus committed to it the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do.'
'Upon the municipal level the same rule obtains. The enactment of an ordinance or performance of any other legislative or quasi legislative function is but the exercise, through delegation, of a part of the legislative power of the state. It cannot be controlled by the courts.
'Nickerson v. County of San Bernardino, 179 Cal. 518, 522, 177 P. 465, 467: 'When the Legislature has committted to a municipal body the power to legislate on given subjects or has committed to it judgment or discretion as to matters upon which it is authorized to act, courts or equity have no power to interfere with such a body in the exercise of its legislative or discretionary functions. * * * All these matters were committed by the statute solely to the board, and their determination involved both legislative action and the exercise of discretion, neither of which was subject to review or control of any court. Whether, in the exercise of legislative powers, a board acts wisely or unwisely, is no concern of the courts.'
'Glide v. Superior Court, 147 Cal. 21, 81 P. 225, is pertinent. The superior court enjoined the board of supervisors from acting upon a petition for formation of a reclamation district, holding that the court had power to determine whether lands were in fact reclaimed (at page 22 of 147 Cal., at page 225 of 81 P.). The Supreme Court granted prohibition against further proceedings by the lower court. It held that courts will not restrain political or legislative or governmental acts of a municipality when acting within the scope of its powers. At page 23 of 147 Cal., at page 226 of 81 P.: 'Courts of equity do interfere, and are justified in their interference, in cases where municipal corporations or inferior boards or tribunals are acting, or proposing to act, in excess of their jurisdiction, and without authority. But, upon the other hand, such courts will not attempt to restrain the political or legislative or governmental acts of such corporations or boards when acting within the legitimate scope of their powers.' At page 24 of 147 Cal., at page 226 of 81 P.: "The true test in all such cases is as to the nature of the specific act in question, rather than as to the general functions and duties of the officers. If the act which it is sought to enjoin is executive instead of ministerial in its character, or if it involves the exercise of judgment and discretion upon the part of the officer, as distinguished from a merely ministerial duty, its performance will not be prevented by injunction.' (Id. § 1326.) In Alpers v. San Francisco, C.C., 32 F. 503, Mr. Justice Field, discussing the same matter, says: 'The same exemption from judicial interference applies to all legislative bodies, so far as their legislative discretion extends. Municipal corporations are the instrumentalities McChord v. Louisville,
'Johnston v. Board of Supervisors, 31 Cal.2d 66, 187 P.2d 686, reversed that feature of an injunction order which restrained the board of supervisors from publishing or taking further steps to effectuate a proposed ordinance 'regulating the establishment, maintenance and operation of reduction plants.' At page 71 of 31 Cal.2d., at page 688 of 187 P.2d the court said: 'The temporary restraining order was issued after action on the proposed ordinance was delayed by the motion for reconsideration. The temporary injunction pendente lite, by ordering the board of supervisors to refrain from either publishing the ordinance or taking any steps to bring such ordinance into effect, clearly interfered with the legislative action of the legislative body of the county. Regardless of whether the action of the Board of Supervisors would be valid, such an injunction is not the proper remedy in this case.'
'Sladovich v. County of Fresno, 158 Cal.App.2d 230, 242, 322 P.2d 565, was an action to have zoning of plaintiff's property in R-A zone declared illegal and for judgment authorizing plaintiff to use his property for M-2 purposes. The judgment in effect directed 'that the board of supervisors amend its ordinance by legislation to classify plaintiff's property as M-2 zone' (at page 238 of 158 Cal.App.2d at page 569 of 322 P.2d). At page 241 of 158 Cal.App.2d, at page 571 of 322 P.2d, the court said: 'We therefore conclude that the court's holding that plaintiff's property could not be classified other than M-2 (Heavy Industrial Property) is not justified by the evidence, and it would be usurping the discretionary right of defendants to classify it in a less offensive category provided by said ordinance. The finding that the new area planning commission could not, by its study, classify the plaintiff's property other than M-2, when considered in connection with other possible changes made or recommended to defendant board, is but a conclusion and usurps the legitimate exercise of the board's power. Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Wilkins v. City of San Bernardino, supra, p. 337, 29 Cal.2d 332, 175 P.2d 542 at page 546.' At page 243 of 158 Cal.App.2d, at page 572 of 322 P.2d: 'Accordingly, the order of mandate directed to said Board to adopt a new ordinance and reclassify said property as M-2 was unauthorized.'
'That the courts cannot review legislative action of a municipality is held in cases arising in other jurisdictions. For example, Beauregard v. Town Council, 82 R.I. 244, 107 A.2d 283, 284, 108 A.2d 253; Siegl v. Town Council & Zoning Board of Review, 75 R.I. 502, 67 A.2d 369, 370; Appeal of Common School Dists. Nos. 27, 20, 5 and 3, 232 Minn. 342, 45 N.W.2d 657, 659; R. I. Home Builders .v Hunt, 74 R.I. 255, 60 A.2d 496, 498; Croy v. City of Raytown, Mo.App.,
Parkplain Realty Corp. v. Town Board, Sup., Leichter v. Barrett, Birchwood Knolls v. Hunter, Sup., Weers v. Whiton, a A.D.2d Pelham Jewish Center v. Board of Trustees, Neddo v. Schrade, Larkin Co. v. Schwab,'The following cases uphold the principle that a court cannot direct specific legislative action by the municipal authorities, viz., Spano v. Close, 266 A.D. 1023, 44 N.Y.S.2d 888; Northwood Properties Co. v. Perkins, 325 Mich. 419, 39 N.W.2d 25, 27; Steers Sand & Gravel Corp. v. Village Board, Sup., 129 N.Y.S.2d 403, 404; School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 N.W. 474, 479. See also 16 C.J.S. Constitutional Law § 151 (1) b, p. 725.
'In the Northwood Properties case, supra, the court said, at page 27 of 39 N.W. 2d: 'While it is within the province of the courts to pass upon the validity of statutes and ordinances, courts may not legislate nor undertake to comple legislative bodies to do so one way or another. [Citations.] The court erred in seeking to compel the defendant mayor and city commission members to amend the ordinance.'
'In Steers Sand & Gravel Corp. v. Village Board, supra, it is stated at page 404 of 129 N.Y.S.2d: 'Zoning is a legislative function. [Citations.] As legislators, the respondent Board is not subject to the control or direction of the court. [Citation.] Accordingly, this court has no power to direct it to call a new meeting for the purpose of voting on the petition or to direct a new hearing to be held.''
The mandatory provisions of the judgment at bar find no support in the precedents or in sound principle.
We do not reach the constitutional question raised by the briefs nor do we find it necessary to discuss numerous other points argued by counsel.
The judgment is reversed with instructions to enter judgment for defendants, and, to that end, to make appropriate amendments to the findings and conclusions.
FOX, P. J., and RICHARDS, J. pro tem., concur.
'1. This is a representative suit brought by petitioners on behalf of all of the employees in the classified civil service of the County of Los Angeles.
'2. The Court hereby declares the rights and duties of the parties and particularly interprets Section 47 of the Charter of the County of Los Angeles as follows:
'(a) Section 47 of the Charter of the County of Los Angeles is constitutional.
'(b) The duties to be performed by the Board of Supervisors under Section 47 are mandatory.
'(c) Under Section 47 the Board of Supervisors has a quasi-judicial, non-legislative, fact-finding function preceding the performance of the indicated legislative act.
'1. They shall ascertain through any appropriate administrative procedure in each instance of employment in the classified civil service the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment in those instances of employment where such prevailing salary or wage can be ascertained.
'2. They then shall, at least annually, provide by ordinance a salary or wage for each instance of employment at least equal to the said prevailing salary or wage as ascertained.
'(d) The words 'salary or wage' as used in Section 47 do not include fringe benefits such as: sick leave pay, disability benefits, paid vacations and retirement benefits.
'(e) The phrase 'quality of service' means the same class, nature, level or kind of service.
'(f) The term 'under similar employment' as used in Section 47 does not refer to the nature of the work or job security but does refer to the nature of employment such as full time as compared to part time.
'(g) The Board of Supervisors may consider what reasons or forces have been acting upon wages and salaries in private employment only in providing wages and salaries in excess of minimum wages and salaries mandatory under Section 47, provided that nothing herein shall prevent the Board from using any appropriate method of ascertainment thereof and from exercising its sound discretion in determining whether said method has adequately reflected prevailing wages or salaries.
'(h) The Board of Supervisors may consider the tax burden only in providing wages and salaries in excess of the minimum wages and salaries mandatory under Section 47.
'(i) The Board of Supervisors may provide for retroactive salaries and wages.
'(j) Where the Board of Supervisors has passed an amendment to the wage and salary ordinance affecting a wage or salary in any instance of employment in the chassified civil service of the County and such ordinance is later determined to have been invalid, the Board of Supervisors may pass an ordinance with retroactive effect to the effective date of the invalid ordinance in those instances where the employee has been denied proper compensation by reason of improper passage of the invalid ordinance.
'3. Petitioners shall be and are hereby granted judgment that a preemptory writ of mandate issue against respondents which will direct, require and compel respondents, and each of them, to proceed at once to ascertain and declare the prevailing salary or wage as of July 1, 1958, for the same quality of service rendered to private persons, firms and corporations under similar employment for each instance of employment under the classified civil service in each case where such prevailing salary or wage can be ascertained; and, in so doing that they adhere to their duties as declared by the Court under Section 47 of the Charter of the County of Los Angeles; and adopt an ordinance to pay to each person in the classified civil service of the County of Los Angeles found thereby to be receiving less than the prevailing salary or wage in his or her instance of employment a sum commencing on July 1, 1958, sufficient to make his or her salary or wage at least equal to said prevailing salary or wage in his or her instance of employment.'
"As outstanding authority for the proposition that the finding of a fact by an inferior legislative body is not conclusive as to the existence of the fact so found, we are referred to San Christina v. San Francisco, 167 Cal. 762, 141 P. 384, 52 L.R.A. (N.S.) 676. The fact in issue there was the existence of a 'great necessity or emergency', sufficient to authorize a tax levy in excess of the 'dollar limit' prescribed by the city charter. It was held that the principle which accords the great dignity of conclusiveness to determinations of the general legislature is not applicable to the proceedings of inferior legislative bodies. We have no hesitation about approval of the ruling thus stated. Its application, however, must depend upon the difference which exists between extraordinary powers to be exercised, and the common power to exercise discretion in business administration. It is to this latter class that the present case should be referred. * * *" [7 Cal.2d 132, 59 P.2d 994.]
As elsewhere pointed out, the case at bar does not involve an attack upon an existing finding or a direct effort to invalidate previous legislative action.