*1 685 why replied: “Well, there he asked he denied he had been you appel- time of their arrest both what do?” would At carrying appellants testi- pistols. lants were Neither produced fied or eiddence.
The sufficient the conviction Taran evidence is to sustain Assuming, Taranski, posses argued by ski. burglar shortly sion defendant of tools after the commis crime, sion of possession property, like the of stolen stand ing guilt alone is not prove sufficient the defendant’s burglary, the offense of when that factor combined with case, present circumstances such as are the instant especially there is sufficient evidence. true That is- where possession upon defendant has failed account for the theory guilt charged. (See inconsistent with his the offense People People Parkinson, Cal.App. v. 138 599 18]; P.2d [33 People Russell, v. 120 Cal.App. 209]; 622 P.2d Golem v. [8 People Shaw, biewski, Cal.App.2d 717]; v. P.2d People 46 Cal.App.2d 34]; P.2d Ellis, Cal. App.2d 616 431].) P.2d judgment is affirmed.
Gibson, J., Shenk, J., Curtis, J., Traynor, J., Schauer, C. J., concurred.
Appellants’ petition rehearing August for a was denied 1943. Aug. 10, F. No. 16932. In Bank.
[S. 1943.] al., AND CITY COUNTY OF SAN FRANCISCO et Peti- tioners, etc., BOYD, Controller, v. HAROLD J. Respondent. *3 O’Toole, City Attorney, Dold,
John J. and Walter A. Chief City Deputy Attorney, for Petitioners. Goldberg for Steinhart, H. J. and S. A. Ladar
Jesse John Respondent. Respon- of
Leo R. Friedman as Amicus Curiae behalf dent.
GIBSON, city By proceeding C. J. this mandamus the county and of San Francisco and its Public Utilities Com- city compel respondent, mission seek to as controller of the county, approve wage and and claims of certain audit motormen, conductors, operators operators streetcar and bus railway of employed compensa- at the rates (Ordi- Salary tion in the fixed Standardization Ordinance 2184), July 1, nance effective and the Annual # Salary (Ordinance Ordinance for 1943-1944 year 2148), # July support 1943. In also effective of his refusal to audit draw claims, respondent and warrants for these contends payment illegal their expenditure would constitute public funds for the reason that the cited ordinances are being in void as city contravention section 151 of the charter. presently material, 151, by
So far as section of an virtue January 11, 1943, provides: amendment effective supervisors “The board power shall have and shall duty fix time, ordinance from time to ... all salaries, wages compensations and for positions, . . . places employment, employees of all of all officers and departments, offices, city boards and and commissions county in compensations all eases paid by where such city county. and . . . fixing
“In schedules of this section provided, shall prepare the civil service commission and sub- adopt mit to the board of board shall compensations schedule shall include all which classifica- tions, positions places employment wages or sala- subject section; provisions ries which are compensations provided . herein shall be . . fixed generally prevailing accord with the like working private employment service conditions state; comparable governmental organizations in Salary year just The Annual Ordinance the fiscal ex- (1942-1943) compensation for pired provided had rates of motormen, operators ranging from 80c conductors and bus depending type an hour on the of work and the 87%c length of service. January 2, 1943, pursuant
Between 15 and March provisions of section 151 Civil Service investigation comprehensive conducted a Commission survey wages paid facts data concerning obtained conductors, operators oper- *4 motormen, to streetcar and bus working private and in em- ators like service conditions in governmental organizations in ployment and other wages survey to the rates of such state. This extended by trans- employees in fourteen communities some nineteen branches, all of portation systems representing their railway systems comparable bus lines the state. street and of considered the commission A schedule the data thus to an ranging rates from 70c hour. It pay of discloses 93½c only operators of one-man cars and however, that appears, an received excess of hour. on bus drivers Based 87½c changed resulting conditions data economic living, commission, required by of an increased cost hearings all charter, after several at which inter- heard, published proposed persons ested were schedule hour, together wage ranging from an 85c rates 92½c (and comparison existing schedules. Thereafter with required by charter) also as the commission transmitted supervisors summary of the schedule to the board of with a facts and it recom- data obtained and considered mending proposed rates. hearings
Following many
supervisors ap-
the board of
wage
proved
adopted
rates of
as recommended
excepting only
proposed
Service
the rates
Civil
Commission
board,
operators. As
latter class the
under
for bus
authority
amended
schedule
an
commission,
and fixed the rates
at 5c
hour
higher,
being
Thus,
the maximum rate
an hour.
97½c
Salary
adopting
Stand-
thereafter
Ordinance,
Salary
ardization Ordinance and
Annual
fixed
wages
conductors,
operators
motormen,
rates
streetcar
operators, ranging
bus
85c to
hour.
from
97½c
Respondent’s principal
is that these ordi-
contention
for the
of super-
reason that
the board
nances
invalid
authority granted to
fixing
visors in
the rates
exceeded
conceding
section 151
the charter. While
it
fixing
municipal employees
rates of
(citing
Diego
legislative
San
Water
function
to that effect
Am.St.Rep.
261,
Diego,
v. San
the extent above noted the maximum rates elsewhere employees comparable they state like work, to not are or with” “in generally “in accord accordance” with the words, respondent rates. In other prevailing contends that quoted phrases as higher used mean prevailing wages. than the rates of opinion, phrases In our not require do that the rates recommended the commission or fixed higher or board identical with be than the generally prevailing rates, but rather that there be a reasonable or just correspondence between rates established and those prevailing, i.e., they harmony elsewhere that be in with and substantially conform to such (See other rates. Webster’s Dictionary; English Int’l. The Dictionary; Roget’s Oxford Thesaurus.) The word “accordance” is in Webster, defined Dictionary supra, and Black’s Law in “agree- to mean ment; harmony; concord; conformity.” It should be noted prior January, that to its amendment in 1943, section 151 provided compensation rates that the “shall fixed be not higher prevailing than rates for like working service and con- ditions.” The express amendment deleted that limitation.
The of compensa- determination whether proposed rates are in or in harmony generally tion accord with prevailing rate-making is within rates the discretion of the authority. courts determination will not interfere with that unless palpably the action is fraudulent so unreasonable and arbitrary indicate an to abuse discretion as matter of (See Hannon Madden, law. v. 214 4]; Cal. P. 2d also, Tracy, see, 484]; City Mann Cal. P. re County Francisco, 549]; San 191 Cal. McQuillin, Municipal Corporations, ed., 535, p. 301.) 2d sec. Respondent required concedes this court is not to generally rates of prevailing compensation determine the admits a writ of mandamus should issue unless it is con- basis cluded “that no conceivable under all the evi- brought . can dence . . the rates fixed within charter generally limitation.” The evidence discloses that pre- vailing compensation rates somewhere between 70c and hour, minimum and maximum rates 93½c systems transportation in the state. Under the facts present we prepared case are not hold authority abused its fix rates “in in harmony generally accord with” or with of compensation. ordinances are contends also Respondent failed Civil Service Commission invalid the reason 151 of section requirements of comply with certain followed iu formulat- procedure prescribing pro- compensation. This of rates of ing schedule section 151: following portion cedure outlined amend- *6 schedules of proposed “The com- by civil service recommended ments thereto shall be data a solely on the of facts and obtained mission basis concerning wages survey investigation comprehensive and working con- employment for like service and paid private governmental organizations in this state. or in other ditions of its pro- official records forth commission shall set obtained and on the basis ceedings all of the thus data an forth in its official records data commission shall set generally findings prevail- is the making its as to what order ing employment the munici- each class of rate of a recommend rate and shall pal provided, as herein service in accordance therewith. The pay for classification each such compensation by recommended proposed schedules of the board civil service commission shall be transmitted to summary together compilation of supervisors with a by the com- the data considered civil service obtained and existing comparison showing schedules. Before mission consideration, supervisors being presented to the board existing with sched- proposed comparison and a schedules a week for two weeks. ...” published ules shall be once conformity agreed proceeded commission It is except foregoing charter section requirements with the it is that it set forth the official records claimed did not investiga- all of obtained in its proceedings of its the data findings tion, making as to nor it set forth an order its did before stated the commis- generally prevailing rates. As conductors, wages paid to survey sion made of the rates of operators in all streetcar and line motormen and bus bus railway systems bus operations comparable all street formulating In its recom- lines in State of California. commission had board of mendations to the survey. in such it all the facts collected before and considered in its official forth records but Not all of this data was set Summary Wage Recommenda- forth did set therein a summary among Data. This listed Supporting tions municipal railway, rate things present prevailing wages, appropriate union and the prevailing wage designated employees. for all such These schedules reflected findings of the commission respect with wages and constituted a compliance by substantial the Civil procedural Commission steps Service with the enumerated Moreover, section 151. the charter section provides that “The supervisors may approve, reject board of amend sched- compensations ule of the civil service commis- sion.” Thus it clear the rates of are by the board of supervisors fixed involve exercise independent judgment body. compilation A the data obtained considered the commission with recommendations transmitted to the board. The board thereupon many hearings held after which these ordinances fixing were compensation pursuant enacted the rates of schedule recommended commission and amended the board. McKinley, The ease of Sullivan Cal.2d P.2d
892], by respondent, relied on not support does his contention that the ordinances here involved invalid. case employed persons certain as car painters railway sought compel a writ of mandamus to payment *7 to of a wage day them rate of of a in provided $10 as the salary Payment ground annual ordinance. was' resisted on the wage that a rate fixed for budget $9 of had been them in the appropriation denying and annual ordinance. In a this writ held, in provisions view of the court of section of the in charter that “All increases salaries . . shall . preparation determined at the time of the of the bud annual get adoption estimates the budget of the annual ,” any appropriation ordinances . . effort of . the of board supervisors wage to increase scale in salary a the annual provided approved budget ordinance over the amount pointed budget was out that ap void. It was “Once is proved by Supervisors, the Board of the fiscal terms appropriation salary annual ordinance and the annual ordi automatically beyond power change by nance are fixed ’’ present timely amendment. case the increase was published provided affording and was as thus object opportunity parties to to interested thereto. While mandatory an invalid if the prerequisites ordinance is to its (Sullivan substantially are not Mc enactment observed supra, 117; McQuillin, Municipal Kinley, Corporations, ed., 2d p. 747, 709), see. no attack is here made the procedure on itself; and by the was followed board there substantial steps gov compliance procedural commission with the necessary erning action, find to we determine do validity whether the of an ordinance enacted the board irregularities could be affected defects the procedure by the commission. followed this nothing indicating in the that is record
'“There 1943, an action com- On June was collusive. proceeding is enjoin pay- to superior taxpayer a court menced ques- provided in the ordinances compensations ment of the respondent action con- pendency tion. of the Because employees approve wage to claims audit and troller refused railway. proceeding This mandamus was city com- by the and its utilities commenced thereupon superior court, filed taxpayer, plaintiff mission. The with- petition for leave to intervene which was thereafter thereto petition and the answer appears drawn. from It money super- appropriated a sum was represent employ respondent counsel visors to to proceeding. petition in this In his to intervene controller ‘‘ alleged taxpayer proceeding was an amicable present brought "by-pass” superior suit” his court action. and was to attorney Upon hearing however, proceeding, this "I this declared, my did brief that taxpayer state respon- an suit. I have to amicable listened [counsel always does, very made, presen- he has as he able dent] disrupt I tation of side of the matter. have no desire to his I agreed proceeding, statement of facts but would my they ap- far as opportunity present like views so court plicable this charter. Whether that done my application of indif- granting is matter [to intervene] long opportunity present me so as I have an ference to orally I it.” legal phase it, presenting see After receiving permission to involved, his on the issues views (which file "as a of the court” brief has been a brief friend filed), petition he his for leave intervene. since withdrew It from these facts and the contents of the brief evident taxpayer he does claim filed behalf *8 proceeding is collusive. is merely
A suit is law because not condemned 387]; friendly (Price Dist., P. v. Sixth Cal. [258 Bridge 316 P.2d Felt, Golden Gate v. Cal. etc. Dist. course, action not founded 585]). true, It that an upon controversy actual between parties it, but brought which is purpose securing a determination point gratification of a of law for the curiosity of the litigants, object or the sole rights of which to settle of third persons parties, who are not is collusive and will not enter Bridge (Golden tained. Gate etc. Collier Felt, supra; Dist. v. v. Lindley, 203 641, 644, People Cal. v. 526]; Pratt, 223.) 30 Cal. This is not such a case. Respondent, as public officer is bound oath to faithfully perform and discharge the duties of his office. He acting would be vio lation of his public duty if he payment of authorized claims illegal involved an expenditure public funds. Whether he could safely approve payment depends these claims validity of the ordinances authorizing compen sation, and the question determination of this involves a con struction of the application provisions of its to the facts of this right case. His approve payments been challenged had in a A suit. real controversy therefore existed as respondent’s premises. duties
The fact that the fees of counsel for both sides ulti mately paid public from funds does not must render It has proceeding litigation collusive. been held that in in volving only private parties rights, payment of all coun litigation party may give sel fees one party preparation argument “such control over both the cause, of the make the suit (Gardner as to . . . collusive ...” Goodyear Co., Appendix etc. 131 U.S. ciii 141].) L.Ed. apply, however, where, here, This does adversary parties municipal corporation are a and one of its officers. public charged It is not uncommon for a official with the auditing public or question expend disbursement funds to officer, agency department itures directed another government. His refusal to audit or frequently claims gives rise to controversies which usually can only by be settled judgment of a court. The fact that opposing parties attorneys are authorized to employ who from does funds not render the suit collusive since the common payment give source does party one control over argument preparation nothing the cause. There is in the record before us which indicates that the board respondent selected counsel for exercised preparation control over the or presentation ease respondent. behalf of many There have been cases involving public courts of this state officers similar
695 present parties represented opposing suit in which were source, yet attorneys no paid from same who were thereby made that suits rendered col contention was were 18 83 134 Riley, Parker v. Cal.2d P.2d See lusive. [113 ; 513 Swing 13 P.2d 1405]; Riley, A.L.R. v. Cal.2d 313] [90 ; 12 48 Riley, v. P.2d Railroad Commission Cal.2d 394] [82 v. 516]; 220 340 P.2d Heron Vandegrift Riley, Cal. v. [30 209 ; Riley, v. Riley, Cal. 507 P. Hecke Cal. 160] [289 Stockburger 451]; Riley, Cal.App.2d 165 v. Bridge Felt, 214 741].) In etc. Dist P.2d Golden Gate sought a writ of mandate 585], the district Cal. P.2d compel secretary to as of the district’s di Felt, board to rectors, sign to certain be issued it. bonds curiae, taxpayers there representing parties Amici certain court in, proceeding was collusive. This contended “It that contention as follows: conceded disposed secretary is decision respondent personally desirous of a petitioner. friendly this is suit. words, favor of bridge agreed It to re appears that district reimburse spondent expense litigation, him in for the incurred for the bonds the event the contractors or the bidders that facts, persons . or other did not do so. . . These interested assert, proceeding amici and curiae show that the is fictitious advisory collusive, being opinion a mere attempt to secure without an nor author principle actual .. Neither on contest.. ity does this us. . Nor is the position commend itself to . . [respondent] pleasure
fact he at the is removable genuine controversy A . . board material. ... existed. . Able to respondent counsel were retained case present to court, suggested they lacking it is not this and were diligence good faith in preparation their the case. Under peti this properly these circumstances court can consider the adjudicate parties tion therein.” The and issues raised represented fully ably and issues here were were devel good forcefully presented faith, and oped evident pro before stated is no evidence of collusion in this there ceeding. peremptory prayed,
Let a writ of mandate issue as pursuant right parties waiving stipulation petition rehearing statutory time within which issue, it may peremptory is ordered such writ writ may filing decision. issue Shenk, J., Carter, J., Schauer, J., concurred.
CURTIS, J. agree I I dissent. with the conclusion reached majority opinion upon questions all discussed therein excepting part which holds that this action is not collu- city sive. answer of county, herein, filed petition leave to intervene action, filed tax- payer municipality, admits that of super- appropriated visors a substantial sum money attorney representing the controller in the defense of this action, action. This majority shown opinion, is to *10 an ordinance of the of supervisors. sustain plain- The tiff that legislative contends this ordinance is a valid enact- The ment the board. defendant contends that is uncon- stitutional and void. These admitted conclusively facts show that The majority opinion goes action collusive. far beyond the authorities in support cited therein of its ruling.
EDMONDS, J., Dissenting. join in decision I cannot my which, opinion, upholds authorizing in an ordinance payment wages concededly larger highest than the amounts for like services in state, elsewhere defiance express provisions of the city’s charter.
In September, 1942, Supervisors Board Fran- San proposed cisco ordered a to section of the amendment people. charter to a vote to submitted Pursuant section 183 provisions of the board author- then mailing ized the of a the voters under the head- statement ing: Municipal “Standardize Salaries Accord With Pri- Employments. Vote Yes.” approving vate The reasons for proposed amendment were summarized as follows: provides municipal “It salaries shall be accord with general governmental prevailing rate in or other private organizations. provides employees
“It for all of a instead favored few. salary provides per for a minimum for $106 “It month employee. full time surveys keep provides periodic “It for line schedules private employment.” with
In conclusion the statement added: “We must favorit- end municipal put municipal pri- ism salaries. We must in accord.” vate salaries adopted election,
The at the new section was November Legislature 1943. ratified amendment, provided compen- Prior section higher prevail- than “shall be be standardized sations to working private conditions services and for like ing rates organiza- comparable governmental in other employment amendment, By words “shall be in this tions state.” not higher for “shall were substituted in accord with” change clear. Before the than.” reason amend- municipal employee had no assurance adopted, ment wage, generally prevailing that he receive should beyond only limitation which his fixed a maximum go. The amendment retains limi- compensation could employee shall receive the tation but also declares that generally practical is a fair and stand- prevailing wage, which the tax- standpoint employee and ard from the of both the payer. this is the construction of the amendment proper
That argument clearly appears from the sent the voters. Im- “Pro- plicit the statements amendment employees instead of a favored and that vides all few” municipal put must favoritism must “We end salaries—we accord,” fact private salaries is the existing, provision only a maxi- under the then prescribing compensations of city’s mum limitation em- ployees, only those receiving a few classifications were wage they were the “favored few” with whom and that *11 municipal employees the salaries of the other be equal- should voting amendment, people, ized. Thus the in for the charter authority only upon were not informed the of the board supervisors, placed upon which had the measure the ballot recommendation,” wording also “with favorable but the municipal proposed amendment, of the salaries would higher than, not nor lower but “in accord the be with” thereby prevailing private employment, enabling city’s in the employees to obtain the same as the sometimes privately-employed performing workers more-favored the same duties. nothing in amendment,
There is either the the reasons adoption, in favor of to indicate the pur- advanced its give provision in pose employee new advantage those or to privately employed, over service larger wage highest than paid of a payment authorize the only employer authority any in the state. which compensation higher than that to fix rate of the board has provide comparable employment is to a minimum municipal wage per in the month. $106 service of And provision proposed regard amendment one emphasized in statement to points the voters. With exception only standard, of this minimum would not municipal employee greater wage allowance to the of a than generally prevailing usually violate the limitation found municipal taxpayer charters that the shall more no industry private than for employees, the services of its but contrary procedure it would also to the of the amendment, which, as construed to the the statement voters, “provides periodic surveys keep for schedules ’’ private employment. line with And court, interpreting provision adopted voters, give charter should it a construction general customary consistent with the under- standing of the words used. . Certainly the adopted for the amendment was immedi- they, ate benefit of the employees, street ear at the time of election, were in the included “favored already few” who were receiving highest wage pre- then vailing for paid by any like operator services street car may In fact, fairly state. it the salaries said they receiving, which were prior adoption to the the amend- ment, being paid were violation of the charter. For from stipulated that, case, appears facts it recom- mending rates paid to be the motormen and conductors of the municipal railway 1942-43, for the fiscal year the Civil Service knowingly contrary Commission plain acted limitation city acknowledged purpose with the of avoid- ing difficulties, justified increasing labor the rates employees larger highest these amounts than the else- services, ground where in the state like “that disruption transportation service pro- would interfere with duction of vital war industries and also in- seriously would large portion convenience a population of the of the com- munity.” And as a further action, reason its said the commission, it “is the opinion provisions when of Section of the charter were drafted freeholders subsequently adopted by people, they could know problems that would be created the war conditions However, which we now face.” concluded, commission *12 “shall any action not in be considered or construed as sense precedent a in future cases.” despite purport
Yet clear amendment to correct inequalities existing municipal employees because most were in prevailing for like services receiving less than organizations, governmental private employment and other as authoriz- majority construe the amendment this court higher compensation for “favored few” ing a rate of still that, highest rate, declare already receiving prevailing may wage it, fix supervisors now because of the board of I generally rates.” submit “higher prevailing than the to the facts regard, applied in this their conclusion justified in in action, of this is not law or fact. (1) these issues: Are the upon
The case is decided two adopted by in the schedule board compensations fixed prevailing generally rates of supervisors “in accord with private working conditions em- like service and governmental organizations ployment comparable other (2) so, state”; if the failure of the did Civil requirements of the charter follow the Service Commission compensations establishing its recommended schedule render the ordinance invalid? provision requiring is
It conceded generally “in with compensation schedule accord prevailing wages” mandatory and rates of is that if com- pensations railway employees for the established accord, under are so the ordinance consideration opinion majority the ordinance is And the admits void. ‘‘ prevailing rates generally evidence discloses that hour, an are somewhere between 70c and 93^0 transporta- the minimum maximum rates other paid ” added.) systems (Italics tion in the It states that state. also range from 85c rates fixed hour, figures an down but does break these 97%c municipal wage is reveal the fact that five cents highest by any higher operator than the amount railway comparable in the state for classi- street service of employees. fications higher then, wage is five than
Is, which cents hour highest wage paid corporation whose private sched- commission, survey in the ule included relied wage than which five cents an hour lower the lowest wage shown, “in accord with” the serv- ices? The definitions of “accordance” Webster’s Interna- quoted Dictionary, Dictionary tional Black’s Law meaning “agreement; harmony; majority opinion conformity.” majority opinion’s addition concord; But the *13 700 speaking “substantially,”
of the word when measure the acknowledgment conformity required the is an upon language its conclusion rest the of that cannot qualify in this people’s requirement instrument. To so regard the legislation judicial plainest in its form. majority opinion The reaches its conclusion to the validity by treating question of the the within one range legislative legislative the discretion. The determina- “in tion of prevailing wage what is accord with” the one disturbed, says majority opinion, only which will upon be the body. a showing authority by legislative of an abuse of courts,” states, “The it “will not interfere de- with that termination fraudulent or palpably unless action is so arbitrary an unreasonable and as to indicate abuse of discre- tion as a if applicable matter of law.” Such a rule would be only duty the commission the board of Paducah, salary. (See were fix a “reasonable” Graves v. 28 Ky.L.Rep. 708].) But provision S.W. the charter legislative a standard establishes definite for and administra- tive action. majority
None of opinion the authorities in the sustains it is rule which cited. Thus Mann Tracy, v. 484], Cal. petitioner ruling attacked a Commission, prior of an giving Civil Service made examination, years which limited three the maximum period during eligible should which list remain effective. action, The preventing court no charter limitation found upholding upon and based the action a decision charter provision allowing the commissioners strike the name candidate list than from the after had been there more Madden, years. 4], two And Hannon Cal. 251 P.2d the court city considered the determination of a council upon question compliance of a contractor’s with a street improvement only contract. Not was there no standard provided limitation or constitution, but a state law provided then “All decisions and determi- city nations of said council . . . final and conclu- shall sive.” Under statute, court, such a said the decision of the upon nonjurisdictional council “such as the matters failure of comply the work to with the contract cannot be urged grounds invalidating a court action as assessment,” it “may legal in a proceeding attacked only upon pleading proof fraud- board acted ulently action palpably or that its is so unreasonable plain abuse discretion arbitrary raise an inference as to of law.” as a matter majority opinion to only ease cited questioned the wisdom statement, the action support county entering a contract with the city in into former’s care tubercular for the latter’s Alameda provi- fact that no charter emphasized court patients. right to make such contract. On limited sion statute ‘ ‘‘ court, The law casts the board contrary, said determining judgment in its duty of whether *14 acquire county hospital a new and necessity required the if power necessary accomplish the conferred legis- in the of so determine. . . . Whether exercise it should wisely unwisely or is no acts concern powers lative ’ ” showing In of a of of the courts. the absence of want faith, continued, of jurisdiction bad the court it would or question city inquire into the of whether the had made County Fran- good bargain. (In City a re and or bad San a 549].) 172, 184, 191 185 P. cisco, Cal. [215 clearly action estab- present Unlike the where the legislative a definite standard for the and administra- lishes action, in all three of these cases there was no tive constitu- governing limiting or tional or charter limitation standard or area discretion the exercise of the involved. And McQuillin Corporations, by on Municipal cited section majority opinion, following prin-
appears statement salary proper authority “If ciple by : is fixed and general rule prescribed, the manner is the courts Usually legis- council or governing will not interfere. . . . body given power is to fix salaries officers lative generally by (a legis- and which is ordinance employees, done by act) providing resolution. Ordinances lative mere statutory provi- must conform with charter salaries salary greater or than sions, provide less cannot salary or . . . Where a is to by the charter statutes. be fixed an act by an officer it is administrative fixed or board McQuillin (2 Municipal fixed need not be ordinance.” 535, 303-306.) Corporations 1939], pp. sec. ed. [2d municipality is its charter of a constitution and to with its provisions. must harmonize valid, an ordinance Planning Com., 371, (Marculescu City Cal.App.2d 7 v. 373 71, 308]; Pfahler, 270, In re 150 Cal. 82 P. 11 P.2d [88 [46 Francisco, 911, 1092]; 11 Platt San L.R.A.N.S. v. Ann.Cas. 702 84 74, 304]; P. An- Cal. South v. Pasadena [110 [Los
gele Ry. Co., Terminal 109 Cal. 1093].) As s] been, stated, change “An aptly has ordinance can no more or modify limit effect of charter than a statute can (Marculescu supersede provision state Constitution.” City Planning Com., supra, 373.) v. p. And, in considering a question arising under the San Charter, Francisco this court recently provisions said that “the of the charter . . . must Supervisors control the actions the Board of and the Civil in determining Service salary Commission received” (Banks municipal employees. certain Civil v. Service Com., P,2d 741].) Cal.2d provisions Under the “legislative” action of the board of supervisors predicated upon prior Commission, administrative action the Civil Service although procedure established the charter cul “legislative” minated passing ordinance, act of steps adopting gener basic the ordinance what would ally be called “administrative” respect character. the adoption of standardization ordinance is unlike the implicit determination of fact legis the action of a state People Congress (see lature federal Western Fruit ante, Growers, p. 494, 13]), P.2d comparable but is legislative agencies. and administrative it is And application rule universal adversely that one affected judicial such action is entitled to a determination as to *15 any whether support facts exist to the administrative deter (South Chicago mination. Bassett, Coal & Dock Co. v. 309 251, 257, 258 84 544, U.S. L.Ed. Interstate 732]; S.Ct. [60 Co., 547, Commerce Com. v. Union Pac. 222 541, R. U.S. 548 Dept. 56 108, 308]; S.Ct. L.Ed. Northern Pac. R. Co. v. Works, 39, Public 45 412, U.S. S.Ct. 69 L.Ed. of 837]; Wisconsin, Booth Fisheries v.Co. Industrial Com. of 208, 209, 908].) U.S. S.Ct. 70 L.Ed. Obviously wide latitude must be allowed the commission “generally is determining prevailing” wage what the with- highest in the limitations of the and paid lowest amounts any employer. the other But when commission has obtained highest wage showing data paid, there is no basis any greater saying “prevailing” is range sum and end; wage is discretion at an no exists with which may agreement” rate be “in “conformity.” or Consequently no supports data before the commission adopted by at it supervisors. arrived the board of plain to enforce the majority of this court to refuse a For to a un- in deference determination language of the charter of an is, me, to indication unwill- evidence supported provi- of constitutional or charter ingness check violation to “legislative dis- phrase, my opinion, the use sions. In case, the facts of this is but an instru- cretion,” applied of a consti- self-abnegation for the avoidance judicial ment of tutional function. majority is,
And of the if the decision court reality, upon principle that a deviation five-cent based principle limitation within the above the charter comes I am lex, again disagree. must For de non curat I minimis payment public employee sure would consider the wage paid an else- a hour less than lowest five cents importance his standard where in the definite state wage of living. Nor is an excessive five cents hour judicial matter small for concern the consideration too in an salary fixing compensation ordinance standardization single $20,000,000 year. aggregate amount of for a fiscal addition, majority opinion interpretation provision renders as a which useless the charter standard taxpayer employee may either enforce. For reviewing compensa- is the decide that a what rule court to 10, 15, per higher tion of or more hour than the cents wages highest, lowest, paid than the for like or lower services private employment per- either within without legislative mitted Can administrative discretion?
fairly contemplated or intended said that such a result provision? people adopting the charter only
A empha- consideration of second issue serves accuracy compensations my size conclusion are not not intended established the ordinance and were generally to be “in accord with” rate. drafting commission
basic limitation action of the made recommendations must be schedule that its compre- in a “solely obtained basis of facts data investigation survey concerning hensive working conditions private employment for like service governmental organizations To or in state.” to such insure the commission’s consideration be confined commands, first, set forth data, that it “shall *16 all thus the data proceedings official records of its requires that “on basis Secondly, the section obtained.” such data the commission shall set forth in its official records malting findings an order to generally pre- as what is the vailing rate of pay employment each class of in the mu- nicipal Finally, it service.” “shall recommend a rate of (Italics each classification such therewith. accordance added.) purpose prevent
The obvious is these limitations to an administrative as is now determination before court carefully scope review. The charter delineates the discretion which may exercise, the commission limits a and data, only data, wages determination employers which before it for were consideration. safeguard And to municipal employee the interests of the also of taxpayer, requires to commission include in the of its action both the record data considered findings upon and the it. made excusing In compliance provisions, with the charter city attorney always insists that the word “shall” is not to mandatory, although ordinarily having construed meaning, as here used directory should be held to be only. circumstances, per- Under some such a is construction missible, requirement but test is whether the is of such importance materiality the purpose to of the statute being reasonably permit considered as the conclusion that Legislature only action intended to allow to be taken compliance specified procedure. with the this connection a advantage should consider court whether an undue is gained steps from failure to follow outlined or benefit public impaired to an individual or lost (See City failure to do so. Cake Angeles, Los Cal. 723].) Applying requirements these procedural tests of sec- tion supra, is material clear that each to the admit- tedly mandatory provision requiring accord with the rates of for similar serv- importance confining ice. Their the action of commis- sion to tangible establishing data and in clear record body’s determination, operates basis unquestionably of that advantage employee, both the and the affected satisfactory for it affords those interested means chal- lenging any departure from asserted the standard set of supervisors, both before the board judicial action review the taken. word “shall” there- *17 given connotation, normal proced- fore should its and the interpreted mandatory. requirements ural recognizes majority opinion that, as stipulated by The parties, comply the commission did not either with the re- in quirement that it forth the official records of its pro- set ceedings investigation, in or all the data obtained its with of it forth requirement making set therein “an order generally findings” prevailing Moreover, its as to the rates. the record the commission shows that its recommendation “solely” upon was not the data it based which considered. comparable For none of those included a rate data addition, in proposed schedule. ones contained majority admits, commission opinion based the schedule changed in “on rates, part, at least economic conditions resulting living.” an increased cost This statement con- agreement parties commission, forms to the recommendation, as a its “took basis for into consideration July since economic had fact conditions changed living and the cost had increased.” Yet the charter authorizes the commission or the board of to con- changed only purpose sider economic conditions for determining survey necessary is whether new to make cer- municipal employees tain still paid is for like accord with that service elsewhere state, and not as a factual computation basis (Sec. 151, amended.) new rates.
Thus appears complied it that the commission with none major procedural requirements of the three for a determina- compensation. fact, tion despite of recommended Yet noncompliance implicit opinion and the admissions of facts, agreed Justice in the statement of Chief that the action of the commission decided “constituted compliance procedural steps substantial . . with the enumer- . majority in section 151.” And the discussion in ated gen- opinion, upon predicated, conclusion is which this too understanding of ambiguous eral and a clear the measure requirements. compliance by the commission with the only data concern- stipulation The of facts shows railway opera- other street ing the rates of state, the commission tors which were considered recommending schedule, forth were set Service, a Administration Public prepared schedule nonprofit organization Chicago. schedule lists the This or oper- communities which street cars California buses minimum and maximum paid by ated and each schedule nor the operator. Neither this data contained there- placed in the official records of the in was commission. only schedule which the commission did include “Summary Wage one entitled official records was Recom- ’’ Supporting Except Data. the then mendations cur- Municipal Railway rates, summary rent Francisco San identify contain purport any does not the rates of em- nor can it private, from ployer, determined being paid summary rate of particular what employee any employer other than the city class of *18 county Unquestionably, Francisco. summary of San the does subject “all of data” on the of compensa- contain the by tions here involved which were obtained used the com- requires the charter should mission and which forth set emphasized This is further by records. fact its official summary heading “Appropriate that in the under the Pre- vailing forth for each of Rates” are set .the four classes recommendation, of the commission’s employees included ranging per from 80c hour. There is no means what- 87%c examining alone, ever, summary determining on of based Prevailing at, Rates” “Appropriate how such were arrived they demonstrating underlying thus are based data summary official in the records of not set forth proceedings. commission’s suggestion appears stipulated even a record
And not containing by the factual data the schedule used commission was available examination in un- even purported official or that the commission form to make an including prevailing wage as to the finding order rate. I circumstances, no basis fact for con- Under such see majority opinion that “These clusion of schedules re- findings respect prevail- the commission with of flected the compliance by ing wages and constituted a substantial procedural steps” with the of the civil service commission charter. majority opinion result reached may
Nor justified by that “the rates its statement supervisors board and involve an fixed act independent judgment body.” For exercise of commission, board, as well as the the determination by the commis- have been considered confined to data which apply to the area discretion sion, the same limitations
707 may 151, supra, provides exercise. Section that “the civil prepare service commission shall submit to the board of supervisors adopt” and the shall the schedule of com- pensations. supervisors only The board of can adopt a sched- compensations ule of “in generally prevail- accord with the wages” ing rates of for like services. The schedules recom- mended the commission “shall be transmitted to the board supervisors together compilation with the summary the data obtained and considered the civil service commis- sion and comparison showing existing schedules.” In addi- tion, requires the charter that, making any “before amend- ment” compensations to the schedule of recommended commission, “the data considered the board of shall be transmitted to the civil service commission for review analysis.” provisions clearly Such board, show adopting schedule, specific is limited to data considered commission, and that determination, board’s well commission’s, as the must supported by also be evidence. democracy
If government law, to continue mean a then, as was said at an time, argument earlier “no of hard ship will justify setting naught court at the written city’s terms of a charter, even at the instance of city’s (San Francisco, officials.” Christina Investment San Co. v. Cal. 676].) And, I L.R.A.N.S. pointed City Linares, out County San Francisco v. Cal.2d 639], certainly P.2d should *19 be done in city a suit between the and one of its administra officers, tive for it question allows interest to be conclusively decided in a proceeding brought which is not such form judicial as to allow a full and fair examination controversy. merits of the Especially where, is this true as in present proceeding, city officials, purportedly adverse to one.another on the presented, issues have waived right apply advance the rehearing. for a Moreover, the city attorney has admitted that board of appropriated money the fees of counsel who are appearing respondent city controller. The United Supreme very recently States Court dismissed an action insti “friendly tuted suit.” Characterizing collusive, it as litigation the court said: in a “Even only private where rights involved, judgment will to stand allowed parties where one has dominated the conduct of the ’’ (United v. John States the fees of both. by payment
suit 1075, L.Ed.-].) S.Ct. son, 319 U.S. reasons, my opinion, of mandate these writ Por denied. should be Dissenting. It seemsto me clear that
TRAYNOR, J., adopted pro- violation review ordinance under I agree, however, cannot with city charter. visions pro- Edmonds that this is a collusive Curtis and Justices ceeding. Aug 13, In Bank. No. 16896. F. 1943.]
[S. GEHRING, E. Disbarment. EDWARD re for Petitioner. A. W. Johnson and Carlson Gardiner Respondent. Weil for Jr., Ben and Jerold E. Aiken, an attor- Petitioner seeks reinstatement THE COURT. court on Novem- ney by order of this at law. He was disbarred of the Board recommendation made ber twenty-seven approximately Bar, Governors of The State