Pеtitioner a taxpayer, seeks a writ of mandate commanding respondent Board of Supervisors of the County of Los Angeles to declare vacant the office of Chief Engineer of Building and Construction of that county, and to appoint another to fill the vacancy.
Thе facts are presented by stipulation. William J. Pox was a major in the Marine Corps Reserve, a component of the United States Marine Corps, available for active duty. At the same time he was Chief Engineer of Building and Safety of the County of Los Angeles. On October 1, 1940, pursuant to federal statutes and the regulations governing the Marine Corps Reserves, he was ordered by the Secretary of the Navy to enter active service for a twelve months period of training and duty with the United States Marine Corps. As a duly-commissioned reserve officer he was obliged to and did obey the order of the Secretary of the Navy, and ever since said first day of October he has been in active Naval and Marine Corps service. About September 27, 1940, he applied to respondent board of supervisors for a leave of absence without pay or duty for the period of his absence from his position as chief engineer and while in Naval and Marine Corps active service, with the right to be restored to his civil position, or a position of like seniority, status and pay, upon the termination of such active sеrvice. The application was approved *195 and granted by respondent board prior to October first, and since that date Major Fox has performed no duties under said civil employment and has neither received nor been entitled to receive any pay whаtsoever from the county of Los Angeles on account of said civil employment position.
The Constitution of this state, article IV, section 20, provides that “no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil offiсe of profit under this state. ...” Petitioner contends that the position of Chief Engineer of Building and Safety of the County of Los Angeles is a “ civil office of profit under this state”, and that the office of major in the Marine Corps Reserve is a “ lucrative office under the United States ’ ’, as those terms are employed in the constitutional provision, and that therefore Major Fox forfeited his county position when he accepted the federal office. Respondents deny that there has been a forfeiture. They say that even if it be assumed that the position of chief engineer is an office “under this state”, as distinguished from a mere local county position, Major Fox is not holding that office in violation of the constitutional provision while he is on leave of absence without pay for the term of his enforced marine and naval duty.
The arguments offered in support of this contention are persuasive. At the time Major Fox was called to active service a limited national emergency, recently declared to be unlimited, had been proclaimed by the President of the United States. The citizen groups comprising the reserve Army, Naval and Marine forces of the country were rapidly being mobilized for active duty in the national defense, and this state was endeavoring to co-operate to the fullest extent in promoting the federal aims and legislation. As an enсouragement to publicly employed citizens to respond to the call to patriotic service, the state legislature enacted, as an emergency measure, section 152.5 of the State Civil Service Act [Deering’s Gen. Laws, Act 1404], also known as chapter 2 of the Fourth Extraordinary Session of the legislature in 1940, approved October 2, 1940, providing as follows: “Whenever the United States is engaged in war or whenever the Governor finds and proclaims that an emergency exists in preparing for the national defense, any permanent civil service employee of the State, in good standing, shall be en *196 titled to a leave of absence for military service. ...” Thus, in previously granting leaves of absence to Major Fox and those similarly situated the board of supervisors but anticipated the will of the legislature. At the 1941 legislativе session further emergency measures were passed relating to resignations of county officers, deputies, assistants, and employees to serve in the armed forces of the United States, and their right to return to the public service (sections 4026, 4026.1, 4026.2 and 4026.3 of the Political Code). Thеse emergency measures show clearly that it was and is the policy of the legislature to expedite and encourage the enlistment of public employees in the armed forces of the United States, and to insure the restoration of their positions to them upon return to civil life. A study of similar enactments in other jurisdictions, of various soldiers’ and sailors’ relief acts, and of the trend of judicial decision, reveals a growing recognition of the necessity of protecting those in military or naval service against the loss of civil rights, and of the potеncy of a national emergency to justify broad and appropriate relief. Not only have state and national legislative bodies been alert to meet the need for special protective measures, but state and federal courts have kept pаce and have evinced a firm intention to take a liberal view of these emergency enactments in order that their protective purposes may be fulfilled without undue’ imposition of constitutional limitations or hindrance through narrow judicial construction. (88 A. L. R., note, p. 1519.)
It was never the intent or purpose of article IV, section 20, of the Constitution of this state to discourage public employees from rendering military or naval service, to deter them from answering, or induce them to evade such a call, or to tend to impede the federal government in its effort to mobilize the citizenry, or interfere with efforts to meet a major emergency. The constitutional provision can neither be construed nor applied to effect such a result. Its primary object, as declared in the early case of
People
v. Leonard,
As said by the court in
State
v.
Joseph,
While Major Pox is on leave of absence from his county position, he is not performing any of the duties or exercising any of the powers of that office, or performing any state or county function, оr claiming or drawing any compensation. Under the circumstances shown, it can only be concluded that during the period of his leave he is not holding or claiming eligibility to a “civil office of profit under this state”, as that term is used in the constitutional provision, but that his occupancy оr holding of such office is suspended. His position is analogous to that in which the court found a retired army officer to be in the early case of
Reed
v.
Schon,
From the conclusion that the occupancy or holding of the county office by Major Fox is suspended during the period of his leave of absence, it does not follow that the office must be declarеd vacant. The effect of a leave of absence was considered in the case of
Whitehead
v.
Davie,
In the Whitehead case the question arose of whether a battalion chief might hold the position of fire chief without violating the Oakland City Charter, which provided that no pеrson holding an office or position under the city government should be eligible to hold any other elective or appointive office under the city. In practice, if a battalion chief was to be appointed to the position of chief of the fire departmеnt, he would take a leave of absence as battalion chief for the purpose of retaining his retirement right as a member of the fire department. In passing upon the effect of the leave and concluding that there was no violation of the charter provisiоn, this court said: “It is contended that the effect of this arrangement is to permit the chief of the fire department to hold two offices at the same time, that of chief of the fire department and that of battalion chief. This suggestion entirely overlooks the purpose of thе so-called leave of absence and the civil service rules with relation thereto. *199 These rules mean nothing more or less than that during the period while the battalion chief is acting as chief of the fire department, and thus continues as a member of the department, his position of battalion chief shall be deemed to be temporarily filled by his successor, and he retains the right to permanently occupy that place whenever his incumbency as chief of the fire department is terminated. The chief of the fire department did not hold twо positions or draw two salaries or perform the duties of the two officers because of such leave of absence. The civil service rule in question is merely for the purpose of establishing that the chief of the fire department is continuously eligible to reapрointment as a permanent battalion chief and also that his successor is appointed to fill a vacancy in that permanent employment existing by reason of the temporary transfer of the battalion chief to the higher office of chief of the fire depаrtment.”
The charter of the county of Los Angeles, paragraph 10, section 34, article IX, has been amended to provide that “ . . .all persons holding positions subject to the provisions of this article . . . who shall have entered the armed forces of the United States during war or national emergency . . . and who shall have been honorably discharged or placed on the inactive or reserve list or relieved from such service with a certificate of satisfactory service, shall be reinstated without loss of status, seniority or efficiency ratings to the permanent positions held by them prior to entry into such Federal service. ...” (Senate Concurrent Resolution No. 2, Stats. 1941.) This fortifies the view that the effect of the leave of absence granted to Major Fox was not to create a vacancy in the county office, but was merely to suspend his occupancy of that office for the period of his absence, leaving him with certain inchoate rights which he may assert upon the termination of his federal service.
The alternative writ of mandate heretofore issued herein is discharged, and the application of petitioner for a peremptory writ is denied.
Carter, J., Shenk, J., Traynor, J., Edmonds, J., and Gibson, C. J., concurred.