Nicholl v. City of San Francisco

PRESTON, J.

This is an appeal on the judgment-roll by the City and County of San Francisco from a declaratory judgment to the effect that William H. Nicholl, the respondent, as adult probation officer of the said city and county,

[471]

is not subject to compulsory retirement from said office under the terms of article XVII, section 1, of the charter of said city and county, and ordinance number 5561 (new series), enacted to carry said charter provision into effect.

The said charter provision, in so far as here involved, is as follows: “The Board of Supervisors of the City and County are empowered under the conditions set forth herein, on the vote of fourteen members and the approval of the Mayor, to establish a retirement system and to provide for death benefits for public employees other than policemen and firemen, who are now members of a pension system, and elective officers and officers appointed by the Mayor.”

There is no dispute that respondent is now and was at the time of commencement of this action over the age of seventy years, and that he is subject to retirement if the said charter provision applies to him. It is conceded by both appellant and respondent that the position held by respondent is a county office.

(Nicholl

v.

Koster,

157 Cal. 416 [108 Pac. 302].)

Appellant insists, however, that a proper interpretation of said charter provision would bring the office of respondent under its terms and subject him to its rules of retirement, notwithstanding the word “employee” is used therein to designate him. This is so, it is said, because of the rule of

exceptio probat regulam de rebus non

exceptis—an exception proves a rule concerning things not excepted. This contention springs from the words of said above-quoted charter provision: “other than . . . elective officers and officers appointed by the Mayor.” For, says appellant, why except certain county officers if all others are not included?