Palmer v. Wolff

NOURSE, P. J.

Plaintiffs, Palmer and Cane, appeal from a judgment denying their petition for a writ of mandate to restore them to their civil service positions with the city of San Francisco. Petitioners had been employees of the Market Street Railway Company and were duly blanketed into the civil service of the city under section 125 of the charter when the city acquired the railway on September 29, 1944. Both were replaced after having reached the age of 70, the age of compulsory retirement under section 165(b) of the charter—Palmer on June 19, 1946, by a certified qualified civil service employee, Cane on May 6, 1946, by a certified qualified limited tenure employee. They contend that their replacement was illegal because by emergency proclamation of August 21, 1944, the Mayor of San Francisco had directed that with respect to “Market Street’’ employees, like appellants, the charter limitation as to age be waived for the duration of the war, which proclamation was terminated by proclamation of October 8, 1946, after discharge and the filing of the petition.

The respondents, the members of the civil service commission, take the position that the above waiver of the age limitation was restricted by paragraph 4 of the Emergency Proclamation of August 21, 1944, reading in part: ‘

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That the Civil Service Commission make every effort to obtain qualified employees by regular or by limited tenure examinations to take the place of all persons certified to said Public Utilities Commission . . . who suffer under disqualification of age . . .” and that when such qualified employees were found those over 70 had to be discharged.

Appellants contend that paragraph 4 of the proclamation applies only to persons who were disqualified by age at the time of their entrance, not to persons who, like appellants, became disqualified by age later during the emergency, although it is also argued that the proclamation of August 21, 1944, waives the age limit as to both groups equally. Why that equality should not apply to paragraph 4 is not made clear, and we can find no reason or logic for a distinction since the compulsory retirement provisions of the charter are

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made to apply to all civil service employees without regard to age at the time they entered the service.