Foley v. City of Oakland

KERRIGAN, J.

This is an appeal by the defendant from an adverse judgment. The case involves the proper construction of certain provisions of the charter of the city of Oakland.

The facts of the case may be summarized as follows: The city of Oakland is a municipal corporation governed by a freeholders’ charter (Stats. 1911, pt. II, p. 1551). The health department is under the direction of a commission of public health and safety. Ordinance No. 350, N. S., created the position among others of assistant sanitary inspector in that department. The plaintiff was in the employ of the city on September 1, 1910, and was appointed to said office of assistant sanitary inspector. On July 20, 1915, said ordinance was repealed by Ordinance No. 885, N. S., with the consequent abolition of the position held by the plaintiff.

[129]

Section 31 of the charter (found at p. 1575 of the statutes of 1911) provides: “The council shall have the power by ordinance to create, consolidate and discontinue offices, deputy-ships, assistantships and employments other than those prescribed in this charter . . . and also the method by which any office, deputyship, assistantship or employment . . . shall be declared vacant.” Section 39 of the charter (Stats. 1911, p. 1577) reads: “The council shall be the governing body of the municipality. It shall exercise the corporate powers of the city, and, subject to the

express

limitations of this charter, shall be vested with all powers of legislation in municipal affairs adequate to a complete system of local government consistent with the constitution of the state. ’ ’ The act of a city council in abolishing an office is an exercise of legislative power

(Downey

v.

State,

160 Ind. 578, 582, [67 N. E. 450] ; 5 It. C. L. 614). There is no express provision in the charter limiting the legislative power of the council to create or abolish offices or positions other than that contained in that part of section 31 above quoted; in fact it is not contended that the city council has not the general power to create and abolish clerkships and offices. Respondent’s position is based on the latter part of section 80 of said charter (Stats. 1911, ¡p. 1605), which section, after enumerating the employees of the city excepted from the civil service provisions of that act, reads: “Provided, that persons employed by the city . . . oi September 1, 1910, may retain their employment under the city, subject to classification and reclassification by the civil service board without further examination, unless removed flor cause or unless it shall be determined by the civil service board that their employment by the city is unnecessary.” Respondent argues that while the city council may have the general power to abolish offices, such power, under the above-noticed portion of section 80, is vested in the civil service board so far as those persons are concerned who were in the employment of tho municipality on September 1, 1910.