20 P.2d 84 | Cal. Ct. App. | 1933
Millard D. Mason was on the twenty-third day of April, 1928, a duly appointed and acting member of the Los Angeles fire department. On that date, pursuant to order of the chief engineer of said department, he was taken to the psychopathic ward of the General Hospital for observation, and one week later was adjudged insane and committed to the state hospital at Patton. Apparently no affirmative action has been taken *226 to remove him from his position as fireman except that taken by the chief engineer, who on the 3d of May, 1928, entered upon the records of the department what purported to be Mason's resignation. Demand was later made by Mason through his guardianad litem that said chief engineer, whose duty it was to make up the pay-roll, enter Mason's name thereon, which was refused. This proceeding was brought in mandamus to compel such entry as of April 20, 1928, to compel the city auditor to approve such salary demand and to approve pay checks therefor, and to compel the city treasurer to pay the same. From a judgment in favor of defendants an appeal was taken.
The salary of members of the Los Angeles fire department, including members of the class of appellant, is fixed by city ordinance, that of appellant under such ordinance being $200 per month less a four per cent contribution to the pension fund. Under the charter of the city the chief administrative officer of the fire department is the chief engineer (Stats. 1925, p. 1070, sec. 134), whose duty it is, at the expiration of the period fixed in the salary ordinance, to make out a pay-roll "of all persons employed in such department or office during the preceding salary period, stating the amount of compensation of such persons in detail" (sec. 364). [1] It is appellant's contention that he is a public officer, and that the salary of his office, being fixed by city ordinance and not by contract, is incident to the title to the office regardless of its occupancy and the performance of the duties thereof.
At least one count of appellant's petition in the trial court is framed on such theory, and the duty of the chief engineer, so far as payment of departmental salaries is concerned, would seem to be purely ministerial, as well as that of the auditor and treasurer. There being no room for the exercise of discretion on the part of such officers, therefore, mandamus would seem to be a proper remedy. (Allied Architects Assn. v. Payne,
[2] Appellant urges that his contention is the recognized rule in this state, citing the case of Jackson v. Wilde,
Section 5 of the charter last mentioned provides that the officers of the city shall be "the members of the boards of the departments and the chief administrative officer of each department" and "such other officers as shall be named by ordinance". Section 70 creates the various departments of the city, among which is that of "Fire". Section 71 provides that such departments "shall be under the control and management of a board of five commissioners". Section 134 makes the chief engineer of the fire department its chief administrative officer, and section 135 gives such officer the power to "suspend or remove" any officer or employee of the fire department for cause. Such section also provides that in case of such removal or suspension the accused has the right to have the charges tried by a board of inquiry appointed by the chief engineer, "to consist of three (3) officers of the rank of Battalion Chief or higher, chosen by the accused at the time of filing such application [for hearing], by drawing three (3) names from a box containing slips of paper on which are the names of all officers qualified to sit upon said Board of Inquiry".
Our attention is not called to any ordinance making a fireman an officer of the city of Los Angeles, and in the *228
face of a charter provision expressly designating the officers of that city we can only draw the conclusion that all not so designated are not officers of the city and therefore are not public officers. Consequently we fail to see how appellant can bring himself within the official class. (Burroughs v.Eastman,
It would seem, too, that that part of section 135 which says that "any person", i.e., any officer or employee, "restored to duty or reinstated in his position after suspension or removal . . . shall be entitled to receive full compensation from the city the same as if such suspension or removal had not been made", makes the inference conclusive that except *229
for such provision the persons therein named would not be entitled to compensation during the period they have been wrongfully suspended or removed. (Walsh v. Bridgeport,
The great majority of the cases we have seen from other jurisdictions which support appellant's contention do not seem to be based on a construction either of the charter provisions of the municipality or of the law providing for the organization of a fire department, but on the general principle of the law relating to public officers and a determination by the courts that a fireman is such an officer. While the cases so holding are the majority in number, in our opinion the minority cases have the greater weight of authority. Some of such cases, involving the question whether or not a fireman comes within the Workmen's Compensation Act of the particular state, like that of McDonald
v. New Haven,
[3] But we fail to see how being a public officer would give to appellant the desired relief. Section 9 of article II of the charter before us provides: "An office becomes vacant when the incumbent thereof . . . is adjudged insane," etc. Inasmuch as this section is in the article designating who are officers of the city, appellant urges that it applies only to the officers so designated. There is no question, though, but that it was the intention of the voters of Los Angeles who adopted the charter, and of the legislature which ratified the same, that such section should apply to all "officers" of the city; and if appellant was at the time of his affliction possessed of an office we are certain that it became vacant ipso facto — if not under said section of the charter, then under section 996 of the Political Code, *231
which provides that "an office becomes vacant on the happening of either of the following events before the expiration of the term: . . . 2. His [the incumbent's] insanity, found upon a commission of lunacy issued to determine the fact." "It will be seen that with respect to the case in hand the provisions of the charter and the state law are identical. Either in the absense of the other would give the same effect to any one of the enumerated contingencies . . ., that is to say, the office becomes ipsofacto vacant." (McKannay v. Horton,
Judgment affirmed.
Works, P.J., and Craig, J., concurred.