McCarthy v. Board of Fire Commissioners

BEASLY, J.,

pro tem.

The plaintiff, John W. McCarthy, petitioned the superior court for a writ of mandate to compel the board of fire commissioners of the city and county of San Francisco to reinstate him as their secretary. On February 3, 1910, he was such secretary, and on that day the board passed a resolution removing him. The superior court denied the writ, and he appeals.

In supporting his claim for a reversal of the judgment McCarthy contends that the secretary of the board of fire commissioners is within the classified civil service provisions of the charter of the city and county of San Francisco, and consequently comes under the protection of section 12 of article XIII thereof (Stats. 1899, p. 241), providing that no person employed in the classified civil service shall be removed or discharged except for cause upon written charges and after an opportunity to be heard in his own defense.

The board in appointing McCarthy went through the form of complying with the civil service rules, and undoubtedly at the time of his appointment considered their secretary to be within the classified list. No charges were made against him when he was dismissed and he had no trial.

The respondents argue that the office of secretary in question is not within the classified list, and that even if it were, McCarthy was not eligible to the position when appointed, as he was then over thirty-five years of age, which is the limit age prescribed by section 6, chapter 1, article IX, of the charter, as it stood at the time of McCarthy’s appointment, for all persons appointed to positions in the department. We are inclined to think both these positions of respondents to be well taken.

Without enumerating all the city functionaries to whom the civil service provisions of the charter apply, it may be said that at the time McCarthy was discharged, and until March 28, 1913, section 11 of article XIII provided that the civil service provisions should apply to the fire department and numerous other positions and officials. What officers should be included within the meaning of the term “fire depart

[497]

ment” was not specified in that section, and we are left to a critical examination of the language of the charter to ascertain what is meant thereby, and specifically whether the secretary of the board of fire commissioners is to be considered as included within the term, and so whether the secretary was a member of the fire department within the meaning of the civil service provisions of the charter.