Kydd v. City & County of San Francisco

KERRIGAN, J.

This is a proceeding for a writ of mandate to compel the board of public works of the city and county of San Francisco to restore petitioner to a place of employment on the municipal railway. A demurrer to the third amended petition was sustained by the court below, before whom the proceeding was had, and appellant having failed to further amend, judgment was entered in favor of defendants and against petitioner, and from this judgment this appeal is taken.

The substance of the facts as alleged in the third amended petition may be stated as follows: That on December 10, 1913, and for twenty years prior thereto, petitioner was employed in the operating service of the “Presidio and Ferries Railroad Company” in San Francisco, and that under such employment he “had absolute charge and control of the operation of said street railroad”; that on the tenth day of December the franchise of said railroad expired and it was acquired by the city and county of San Francisco; that petitioner was continued in said position from that date until June 1, 1914, at the same salary he was paid while in the employ of the Presidio and Ferries Railroad Company, at which time he was notified that he had been granted a leave of absence and need not report for work any longer, and has not been allowed to continue his duty and employment ever since; that he has demanded reinstatement, which has been refused.

Appellant bases his action on section 11, article XIII, of the San Francisco charter. That subdivision provides as follows:

‘ ‘ Subdivision B. The following persons securing standing on the eligible lists in examinations shall be preferred for appointment :

[600]

“1. Persons employed in the operating service of the Geary Street, Park and Ocean Railroad Company on May 5, 1912, such preference to be solely for employment in the municipal railroad service:

“2.

Persons employed in the operating service of any public utility acquired by the city who have been so employed for not less than one year; and such persons so employed at the time a public utility is acquired by the city shall continue in their positions.”