16 Cal. App. 2d 353 | Cal. Ct. App. | 1936
This is an appeal from a judgment denying petitioner’s application for a writ of mandamus to reinstate him as a duly appointed permanent highway patrol officer of the state of California in Plumas County, and to require the payment of his salary therefor subsequent to November, 1933.
The petitioner was appointed on December 21, 1931, by the highway commission with the approval of the civil service commission, under the provisions of section 11 of the
At no time involved in this proceeding was there an eligible list of candidates for that office who had taken the examination required by law. The petitioner had never taken such examination and was not on the eligible list required from which appointments must be made pursuant to section 360e of.the Political Code. A highway patrol system was maintained in Plumas County by the state of California, but that county never did maintain such system independently of the state. When the petitioner’s temporary service ended January 1, 1933, he demanded of the civil service commission that he be permanently appointed as state highway patrol officer in Plumas County, on the theory that his service in that capacity for more than one year automatically entitled him to the status of a permanent officer pursuant to the provisions of section 360c, subdivision (k) of the Political Code. That demand was refused. A petition for a writ of mandamus was" then filed in the Superior Court of Sacramento County to require his reinstatement as a permanent highway patrol officer, and to enforce the payment of his salary as such. The petition was denied by that court. Judgment was rendered accordingly. From that judgment the petitioner has appealed.
It is apparent from the record that the petitioner was appointed by the motor vehicle department of the state December 21, 1931, as a temporary state traffic patrol officer to serve in Plumas County, under the provisions of section 11 of the Civil Service Commission Act. (Stats. 1913, p. 1035,
It is strenuously insisted that the petitioner was appointed as patrol officer under the provisions of section 360c, subdivisions (j) and (k) and that because he held his appointment for more than one year he became automatically entitled to a permanent appointment. We think not. Subdivision (j) referred to, provides for appointments made only after examinations conducted by the civil service commission. It provides in part, “Such persons shall be re
Subdivision (k) of section 360c of the Political Code upon which the petitioner relies, provides:
“ (k) Appointments prior to December 31, 1933. Civil Service status. In appointing prior to December 31, 1933, members of the California highway patrol to serve in any county in which is maintained a traffic patrol at the time this amendment takes effect, the chief of the California highway patrol, subject to the approval of the director of motor vehicles, upon requisition of the board of supervisors of that county may appoint the traffic officers of such county who have held their positions as such for one year previous to the date of such appointment. Members so appointed under this subdivision holding their positions after the expiration of a probationary period of one year shall automatically acquire permanent civil service status without examination and shall be rated as to efficiency by the chief of the California highway patrol in accordance with the terms of this act. ’ ’
The appellant claims that because the petitioner was appointed by the state and held his position as patrol officer in Plumas County more than a year prior to December 31, 1933, the preceding subdivision of section 360c of the Political Code made it mandatory for the commission to reappoint bim and that his appointment then automatically became permanent. That construction of the law would render section 11 of the Civil Service Act, under which the temporary appointment was really made, inoperative. We are of the opinion the last-mentioned section was enacted to provide for a temporary appointment in an emergency, “when there is no eligible list from which a position may be filled”. Such temporary officers do not come within the above-quoted provisions of the Political Code. There is no statutory provision making such temporary officers permanent under any circumstances. They have no civil service status.
It is therefore unnecessary for us to determine whether the word “may” as it is used in subdivision (k) is mandatory and absolutely requires the reappointment of a patrol officer who has served as such in a county by regular appointment for more than a year prior to December 31, 1933. The petitioner was never so regularly appointed. He never had any status except that of a temporary officer.
The judgment is affirmed.
Pullen, P. J., and Plummer, J., concurred.