Whitmore v. Carr

JONES, J.,

pro tem.

This is an appeal from an order denying a peremptory writ of mandate after a return to an alternative writ of mandate and a hearing upon an order to show cause.

The petitioner is an active member of the fire department of the City of Oakland. His petition filed in the Superior Court of Alameda County alleges that he has not been allowed a leave of absence, with full pay, of not less than twenty-four hours’ duration every fifth day, in violation of section 100 of article XV of the charter of the city of Oakland, and that in violation of Ordinance No. 1609, N. S., of the City of Oakland, he has been compelled by the city

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manager and the chief of the fire department of the City of Oakland to remain on duty for more than fourteen consecutive hours at times other than when changing from one tour of duty to another, or in cases of conflagration requiring the service of more than one-half of the fire department. The prayer of the petition is for a writ of mandate to compel-the city manager and the chief of the fire department to accord the privileges which he alleges have been denied him.

Upon the filing of the petition an alternative writ of mandate was issued directing the city manager and the chief of the fire department to accede to the demands of petitioner as alleged, or to show cause on a return date why they had not done so. The officers named made return to the writ, answered the petition, and the entire matter was brought on for hearing. Findings of fact and conclusions of law were waived by stipulation of the parties.

The respondents contend that said Ordinance No. 1609, N. S., is invalid and of no effect.

The parties have stipulated as facts that Ordinance No. ' 1609, N. S., was introduced in the city council of the City of Oakland as a bill at a regular meeting of said council on the tenth day of April, 1919, and that said bill was read in open council twice only, and was never signed, passed or adopted by the said city council; that in this state it was submitted to the voters of the city at a regular municipal election held on the sixth day of May, 1919, and, at said election, a majority of the votes cast upon the proposition were in favor of its adoption.