Cahen v. Wells

McFARLAND,J.

—This case differs materially from the case of

Crowley

v.

Freud, ante,

p. 440, although, the two cases were argued and submitted at the same time, and both involve powers of the civil service commission created by the present charter of the city and county of San Francisco.

This action was brought to enjoin the defendant, Wells, who is auditor of said city and county, from drawing any warrant in payment of salary of the civil service commissioners, or of any employee of said commissioners, or of any expenses of said commission, on the ground that all the provisions of said charter on the subject of civil service are unconstitutional and void. A general demurrer to the complaint was sustained in the court below, and judgment rendered for defendant, and from that judgment plaintiff appeals.

The provisions of the charter here brought in question are contained, under the caption of “Civil Service,” in article XIII of that instrument. This article is quite lengthy, and contains twenty sections. The main attack in this case is made on section 12. Leaving that section out of view for the present, it will be sufficient for the purpose of this decision to state very briefly some of the provisions of the other sections of the article. Those provisions are, in substance, as follows: Three persons, who shall constitute the “civil service commission,” shall be appointed by the mayor, and shall “classify all the places of employment under the offices and departments of the city and county”; and it is provided in section 2 that “no appointment to any such place shall be made except according to the rules hereinafter mentioned.” The commissioners are to make rules “for examinations, appointments, promotions, and removals,” and “all applicants for places in the classified civil service shall be subject to examination, which shall be public, com

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petitive, and free.” The examinations are to be held after notice, and are to be conducted either by the commissioners, or by examiners appointed for that purpose. From the returns of the examiners a register is to be prepared of persons whose general average standing upon the examination is not less than the minimum fixed by the rules, and who are otherwise eligible; and such persons “shall take rank upon the register as candidates in the order of their relative excellences as determined by the examination.” When a position is to be filled in any department or office, the head of the same shall notify the commissioners of that fact, and the commissioners shall thereupon certify to the appointing officer the name of one or more candidates, not exceeding three, standing highest on the register of the class to which the position belongs; and the appointing officer shall fill the place by the appointment of the person certified by the commissioners, if only one be certified, or if two or three be certified, then by the appointment of one of those certified. The first appointment is declared to be on “probation,” for a period “to'be fixed by the rules of the commissioners,” but not to exceed six months; and during this period of probation the head of the office may, “by and with the consent of the commissioners,” discharge the person appointed, “upon assigning in writing his reasons therefor to the commissioners.” If he is not discharged within the probation period, “ his appointment is deemed complete.” It is also provided, that, to meet “extraordinary exigencies,” the head of an office may, “with the approval of the commissioners,” make temporary appointments to remain in force until regular appointment under the provisions of the article may be made,—but not exceeding sixty days. There are other details as to appointments under the said article XIII, which need not be here mentioned.