Gilbert v. Civil Service Commission

NOURSE, J.

This is an original proceeding in

mandamus

instituted in the superior court to compel the defendants, constituting the Civil Service Commission of the city and county of San Francisco, to restore petitioner’s name to a place upon the register of candidates eligible to appointment to the position of ordinary clerk in the classified service of the city and county. A demurrer to the amended petition having been sustained and the petitioner having failed to further amend, the court rendered judgment in favor of the defendants. From this judgment petitioner prosecutes this appeal.

From the petition it appears that after an examination held for that purpose the Civil Service Commission prepared a register of candidates for appointment to the position of ordinary clerk and that petitioner’s name was placed upon said register on the twenty-first day of June, 1909; that at divers times between said date and the second day of August, 1921, the petitioner, after due certification therefor, held various temporary or seasonal positions as ordinary clerk under various civil departments and offices of the municipality; that on the fifteenth day of July, 1921, the Civil Service Commission adopted a resolution wherein it was declared that the name of the petitioner was then and thereby removed from said register on the ground that said name had remained upon said register for more than two years; that at the time said resolution was adopted the petitioner was actually employed as an ordinary clerk in the office of the auditor of said city and county; that at no time between the said twenty-first day of June, 1909, to the fifteenth day of July, 1921, did petitioner’s name remain upon said register without appointment or employment as

[461]

an ordinary clerk under the city and county for a continuous period of two years.

The controversy involves an interpretation of the powers of the Civil Service Commission as defined in section 10 of article XIII of the charter, and which reads in part as follows: “The commissioners may strike off the names of candidates from the register after they have remained thereon more than two years. ’ ’ The position of the appellant is that “an ordinary clerk, while in employment as such, is not a candidate and his name is not upon the register, and that never between June 21, 1909, the date of his original registration, and July 15, 1921, the date of the resolution complained of, was the appellant a candidate, or was his name on the register, for a period of more than two years; secondly, that, in that he was an employee in the civil service at the time the resolution was passed, he could be removed only for cause, upon written charges, and opportunity afforded him to be heard in his defense, and as no charges were made against him the resolution complained of was void on this ground, as well as on the ground first above stated.” Respondents answer that appellant’s name was continuously upon the eligible list from 1909 until it was stricken off in 1921; that when an ordinary clerk is given a temporary or seasonal appointment his name is not taken from the register but a notation of the appointment is made and the “eligibility” of the person is still retained for other or future certification and appointment. A® to the second point, respondents’ answer that the resolution of July 15, 1921, did not affect appellant’s tenure of the position that he was filling, but merely rendered him ineligible for further appointment.