Kennedy v. State Personnel Board

THE COURT.

This is a petition for a writ of mandate. On October 1, 1932, petitioner was appointed attorney for the Board of Dental Examiners, under the provisions of the Dentistry Practice Act (Deering’s General Laws, 1931, Act 2048, sec. 5). His position at that time was exempt from the state civil service system, by express provision of the Civil Service Act. (Deering’s Gen. Laws, 1931, Act 1400, sec. 7, subd. 5.) In November, 1934, at the general election, our Constitution was amended by the adoption of article XXIV, which broadened the scope of civil service, and included within the system the position then held by petitioner. The amendment went into effect December 20, 1934.

On April 15, 1935, petitioner was dismissed from his position by the Dental Board, for reasons filed with the State Personnel Board. There is no doubt as to the power of the appointing body, the Dental Board, to dismiss its appointee, under the former law. Petitioner, however, contends that the constitutional amendment, which is self-executing by the terms of section 5a thereof, brought him under the state eivil-service system, and that he acquired a permanent status and was subject to removal only for good cause. On July 11, 1935, he filed this petition, seeking reinstatement and salary payments subsequent to his dismissal.

[342]

The validity of this contention depends upon the interpretation of two subdivisions of the amendment, under either of which petitioner claims that he aeqiured his status. The first is subdivision (d) of section 5, which provides:

“All persons

other than temporary appointees heretofore serving in the state civil service

shall continue so to serve without change of class or grade of position heretofore acquired save as such class or grade may be changed by said board in the exercise of its powers herein conferred or as may be hereafter provided by law. ’ ’

Petitioner argues that the term “state civil service” in this section refers simply to state employment in a civil capacity, as distinguished for example, from a military capacity. Under this view, petitioner was a “civil” employee, serving in the “state' civil service,” and therefore was entitled to “continue so to serve without change of class or grade of position heretofore acquired, ” except by a proper exercise of the power of dismissal under the rules applicable to the civil service system. But this interpretation is contrary to the usual meaning given to the term “civil service,” and is manifestly opposed to the purposes of the amendment. Reference to the argument submitted to the voters shows that the provision was designed to bring numerous positions, formerly exempt, under the civil service system, and thereby to make them subject to examination and selection on the basis of merit. The term was obviously used to describe the established merit system, and not merely the “civil” character of the employment. The distinction between “civil service” employees, and “noneivil service employees” is clearly made in the above mentioned argument to voters, and it must be concluded that the proper construction of subdivision (d) excludes persons who formerly held positions exempt from the civil service system.