Graham v. Bryant

NOURSE, P. J.

This is an appeal from a judgment denying a peremptory writ of mandate. The amended petition for writ of mandate alleged in substance that in 1939 petitioner passed the examination for regional referee, Department of Employment, the name of which office was later changed to senior referee, Department of Employment; that he was thereafter certified to said position and entitled to hold said office and to perform its duties; that no positions in said classification were available until September, 1946, and that petitioner was therefore in 1939 assigned to the duties of the lesser office of hearing officer, Department of Employment; that when on or about September 14, 1948 (read 1946) positions as senior referee were available petitioner had sufficient seniority over other employees of said department to entitle him to be appointed to one of said positions and that on October 14, 1946, he demanded of respondents that they assign him to the duties of such position; that respondents failed to conform to said demand, that petitioner on October 14, 1946, appealed to the respondent California State Personnel Board, herein further called the board, which on October 10, 1949, denied his appeal and that his petition for a rehearing was denied on October 25, 1949; that although petitioner has all essential qualifications, has been duly certified and positions are available, respondents consistently refuse to assign him to the duties thereof and fail to pay him the emoluments of said office, with prayer for a writ of mandate directing respondents to assign petitioner

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to the duties of said office and pay him the emoluments thereof or show cause why they should not do so.

Respondents’ return objected to the sufficiency of the petition to state a cause of action for relief, and to the jurisdiction of the court over the subject matter and denied the allegations of the amended petition stated, except that petitioner took the alleged examination, that on October 14, 1946, he applied for a hearing to respondent board, which hearing was duly granted and held and the appeal denied; that the court is without jurisdiction to act on any evidence not contained in the record because no offered evidence was excluded by the board, no objection was made by petitioner to any ruling on evidence and no evidence was available to petitioner which could not have been introduced before respondent board, and that the introductory letter of October 14, 1946, was not filed within the statutory time and that therefore the petition is barred by the statute of limitations.