Gantenbein v. City of Long Beach

9 Cal.App.2d 726 (1935) ODA J. GANTENBEIN, Appellant,

v.

CITY OF LONG BEACH (a Municipal Corporation) et al., Respondents.

Civ. No. 10511. California Court of Appeals. Second Appellate District, Division Two.

November 4, 1935. Clarence P. Wallick and Robert E. Krause for Appellant.

George W. Trammell, Jr., City Attorney, Harlan V. Boyer, Assistant City Attorney, and Henry D. Lawrence and Walhfred Jacobson, Deputies City Attorney, for Respondents.

Gould, J., pro tem.

Petitioner held a rating as a permanent employee in the classified civil service of the City of Long Beach as a cement finisher, his appointment having been duly certified in 1933 pursuant to the provisions of the Long Beach city charter. Compensation for the position was fixed by salary ordinance of said city at $4.80 per day. On March 5, 1934, petitioner was laid off from work for lack of funds, and thereafter on March 16, 1934, another man, without civil service status, was employed to do petitioner's work, in alleged violation of the charter and civil service rules and regulations of said city. Petitioner was never removed from his position nor was the position ever abolished.

All these matters are recited as facts in the application for alternative writ of mandate filed herein in the superior court [728] by petitioner, whereby he asks that respondent city and its officers be commanded to make out the necessary vouchers and papers therefor and to pay him the sum of $811.20 (being the amount of compensation he would have received had he been employed during the period when the noncivil service substitute worked), and that said municipality and its officers reinstate petitioner in his position as cement finisher and otherwise perform all the duties and obligations imposed upon them by law with relation thereto. Respondents' general and special demurrer to the petition was sustained without leave to amend and petitioner appeals.

Most of the points involved in this case have been determined by the Supreme Court of this state in two cases, Rodgers v. Board of Public Works, 208 Cal. 291 [281 P. 64], and Powers v. Board of Public Works, 216 Cal. 546 [15 PaCal.2d 156], involving similar situations under the charter and civil service rules of the city and county of San Francisco. In the latter case the court says: "The evidence clearly shows that each of respondents, by reason of six months continuous work as a painter, had acquired the status of a permanent employee within the meaning of the city charter. ... As such permanent employees they are entitled, in proper order, to be employed as painters whenever there is painting work to be done and money is available for such work, and can be removed from the civil service list only for cause or by the abolishment of their positions." Judgment in favor of the employees compelling the payment of compensation for periods when other painters were employed in positions to which they were entitled was affirmed. Similarly in the Rodgers case affirmance was given to the trial court's judgment ordering the board of public works to pay the permanent employee $289.75 "lost wages" for a period when, although he did not work, he was ready, able and willing to work and was entitled as a permanent civil service employee to do work which was given to another not entitled to such position.