Carr v. Fire Commission

THE COURT.

This is an action for declaratory relief to determine the right of the plaintiff to retire with the rank of captain, or the rank of lieutenant, from the fire department of the city and county of San Francisco.

On the 11th day of June, 1931, plaintiff was an eligible for appointment as a captain on a civil service list which would expire within two days. The budget appropriation covering the position of captain made financial provision for eighty captains. Plaintiff, with four other lieutenants, was raised to a captaincy and the budget appropriation increased for a period of one year. A new charter became effective during the interim. Under its provisions the department was permitted to carry in service only the number set forth in the salary ordinance. Plaintiff was the first in a list of three to exceed the number specified in the budget ordinance and was returned by appropriate resolution to the civil service captains’ eligible list.

Assuming, though not deciding, that plaintiff’s assignment was effective in placing him in a legally created position of captain, his subsequent return to the rank of lieutenant by the board of fire commissioners was in compliance with the provisions of the charter empowering the board to reduce the force in conformity with the needs of the work in the department. (Sec. 20, New Charter of the

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City and County of San Francisco, effective Jan. 8, 1932; Stats. 1931, pp. 2973, 2990.)

The facts in this case are not similar to the facts presented by appellant in the cases cited in his brief, wherein employees were arbitrarily reduced in rank and pay and others substituted in their particular positions. The reason set forth in the resolution returning the last three captains appointed, who stood lowest on the eligible list, to the rank of lieutenant was “to comply with the budget requirements”. Whether the work could and should be performed by employees of a lower rank was a question left to the reasonable discretion of the proper authorities. The record in this case shows that the work was performed by plaintiff as a lieutenant prior and subsequent to his acting captaincy. If money was not available to pay the three extra captains, the need for work of the employees as captains ceased, though the work might be performed by others of a lower rank.