SHENK, J. This is an original proceeding in mandamus to compel the respondent officers of the city of Los Angeles to approve and audit the payroll of the department of water and power of the city of Los Angeles in so far as it affects the petitioners, and cause to be paid to them the sum of $72 each on account of compensation for services rendered as carpenters in said department for the first half of February, 1938. As the return to the alternative writ is a general demurrer to the petition, the facts are undisputed.
For many years the Los Angeles Gas and Electric Company, a public utility corporation, owned and operated an extensive distributing system for furnishing electricity to the residents of the city of Los Angeles for domestic and commercial purposes. This distributing system was maintained and operated by the company for many years before the establishment by the city of Los Angeles of its municipally owned electrical system under the charge, supervision and control of the board of public service commissioners of said city. After the establishment of the city’s system the businesses of the two systems were in competition in the city and the question of the acquisition by the city of the electrical distributing system of the public utility corporation was a matter of frequent if not constant discussion and agitation. Numerous controversies of considerable moment had developed and were pending at the time of the submission by the city council to the voters of the city of a series of [432]elaborate amendments to the freeholders’ charter of the city-designed to accomplish the settlement of all the controversies between the corporation and the city and the purchase by the city of the corporation’s electrical distribution system and plants for a base price of $46,340,000. The proposed charter amendments were ratified by the voters of the city at an election held for that purpose on December 8, 1936, and were approved by the legislature on January 8, 1937. (Stats, 1937, pp. 2572-2631.) Theretofore, in 1935, and in anticipation of the acquisition of the utility property by the city, the city charter had been amended by adding section 431, reading as follows: “See. 431. All persons employed in the operating service of any public utility hereafter acquired by the city, or any department thereof, at, and for at least one year immediately prior to, the date of such acquisition may be retained and employed by the City, or such department, in their respective positions, as nearly as may be, and so long as continuously so retained and employed in such positions, shall be exempt from the civil service provisions of this charter ,- provided, however, that no person not a citizen of the United States shall be so retained and employed and that persons so retained and employed shall, within three months after such acquisition, conform to any residence requirements applicable to employees of said city, or department, in like positions. ’ ’ (Stats. 1935, p. 2356.)
It is apparent from the allegations of the petition that during the campaign for and against the charter amendments to be voted on at the election of December 8, 1936, the ques-. tion became acute as to what would be the fate of the employees of the public utility corporation with reference to their employment in the event the charter amendments be adopted and the employment of the corporation’s employees be terminated upon the acquisition by the city of the electrical distributing system. To meet this situation, and prior to the election of December 8th, the board of water and power commissioners adopted and made public the following resolution:
“WHEREAS, it is contemplated that a charter amendment will be submitted to the voters of the City on December 8, 1936, which provides, among other things for the purchase of the electric system of the Los Angeles Gas and Electric Corporation by the City of Los Angeles through the Department of Water and Power; and
[433]“WHEREAS, it is provided by section 431 of the Charter of the City of Los Angeles that all persons employed in the operating service of any public utility hereafter acquired by the city, or any department thereof, at, and for at least one year immediately prior to, the date of such acquisition, may be retained and employed by the city, or such department, in their respective positions, as nearly as may be, and, so long as continuously so retained and employed in such positions, shall be exempt from the civil service provisions of the charter, subject to the provision that no person not a citizen of the United States shall be so retained and employed, and that all persons so retained and employed shall, within three months after such acquisition, conform to any residence requirements applicable to employees of said city, or department, in like positions; and
“WHEREAS, it appears desirable that this Board should define its policy with reference to the employment of persons who at the time of the acquisition of said electric system, if consummated, may be employed by said Corporation, and whose employment by said corporation may be terminated by such acquisition; - and
“WHEREAS, the Chief Electrical Engineer and General Manager has reported to this Board that after a careful survey of the work of the Department and of the system and organization of the Corporation it appears that substantially all of the employees regularly employed in the operating service of said Corporation, and devoting their time to the work of the electrical division of said Corporation, will be required in addition to the regular employees of the Department in the operatng service of the consolidated system;
“NOW, THEREFORE, BE IT RESOLVED that it is the sense and intention of this Board that upon such acquisition this Board should and will exercise the poAver granted to it by said section, in accordance Avith said report.”
FolloAving the favorable vote on the charter amendments and the acquisition of the electrical distributing system of the Los Angeles Gas and Electric Company, and in order to carry out in good faith the purpose and intent of section 431 of the charter and the foregoing resolution, the board of water and poAver commissioners employed certain persons who had formerly been employed in the operating service of the utility for at least one year immediately prior to the acquisition of the utility’s property by the city and Avere other[434]wise qualified to continue in service, and elected to retain them in their respective positions. They were continuously so retained and wére, by appropriate order of the commission, ordered paid for their services. It is clear that they should be so paid unless the record discloses a compelling reason why they should not.
Section 120 of the charter provides that the controller shall not approve any salary or compensation for services to any person holding or performing the duties of a position in the classified civil service, unless the payroll for such compensation bear the certificate of the board that the person named has been employed in accordance with the civil service provisions of the charter and the rules established thereunder and the payroll be approved by the civil service commissioners.
The payroll, including the petitioners’ compensation, was certified by the board of water and power commissioners in all respects as required by the rules governing that board, but the civil service commissioners refused to approve the same, basing their refusal on the requirements of rule XVIII, section 15, adopted by the civil service commissioners prior to the enactment of section 431 of the charter in 1935. The rule reads as follows: “Where exempt or non-Civil Service employees and classified employees are performing work of the same grade and class within a department and a suspension for lack of work, lack of funds or abolishment of position is to be made, no Civil Service employee may be suspended until all such exempt persons are laid off. ’ ’
It is alleged in the petition and is therefore admitted that the petitioners were employed by the public utility corporation in carpentry and similar work for one year prior to the acquisition of the distributing system by the city and that they were continuously employed by the- city in that work, after such acquisition. It is also alleged and admitted that during the period in which the petitioners performed the work for which they are demanding payment there were persons on the civil service list of the city as carpenters, certified to the department of water and power, and in the same classification'as the petitioners, who had been laid off by the department for lack of work while the petitioners were retained as carpenters.
The question presented is the scope to be accorded the exemption from civil service provisions of the charter as provided by section 431 of the city charter. The question does [435]not involve the right of the petitioners as former employees of the utility to permanency in tenure of their employment, for clearly they have no such right except to the extent that the employer, the board of water and power commissioners, elects to continue them in employment under the prerequisite conditions provided by section 431, which conditions are here present. The provisions of that section merely confer the power on that board, in its discretion to employ former employees of the utility under those conditions. When the conditions are present, as here, and the employing board has elected to exercise that power, the persons employed are exempt from all the civil service provisions of the charter, which would necessarily include any rule adopted by the civil service commissioners pursuant to the civil service provisions of the charter. To hold otherwise would be to accord greater force to the rule than to the charter itself and to nullify the latter.
The clear purpose and intent of the exemption contained in section 431 of the charter and the action of the board thereunder was to render the employees of the department, situated as we find the petitioners, exempt from civil service only in the event that they are ‘ ‘ continuously so retained and employed”. The board may discharge or suspend such employees at its pleasure. The civil service rule would force a suspension contrary to the charter power to continue them in service. Such suspension under the preference rule of the civil service commission is entirely inconsistent with the continuity of service required by the charter in order that the petitioners have any standing at all as employees of the department. Such a limited and restricted exemption probably does not obtain with reference to any other employees of the city exempt from civil service. It is a special provision applicable to the class to which the petitioners belong. The people of the city have so provided in their charter and there can be no question of their power so to do.
The duty of the respondents to certify, audit and pay the warrants drawn by the board of water and power commissioners for the payment of the compensation of the petitioners has been sufficiently shown.
Let the peremptory writ issue as prayed.
Curtis, J., Waste, C. J., Seawell, J., Houser, J., and Langdon, J., concurred.