Maxwell v. Board of Fire Commission

VAN DYKE, J.

This is an appeal from a judgment rendered in favor of the defendants upon an application for a .writ of mandate. .The petitioner (plaintiff) sought to compel the defendants to appoint him to the position of secretary of the board of fire commissioners, organized under the San Francisco freeholders’ charter. In the petition for the writ it is stated that the San Francisco fire department was organized under the act of March 28, 1878, (Stats. 1877-1878, p. -685,) and on April 9, 1878, petitioner (plaintiff) was appointed a hook-and-ladder man in the hook-and-ladder company known as truck company No. 2; that he held that position until he was appointed foreman of steam-engine company No. 12, on September 25,1879; and on June 6, 1883, he was elected a hydrantman, and continued in the place until April 28, 1888, when he was appointed clerk and storekeeper for the corporation yard; that he held that place until Janu

[230]

ary 9, 1889, when he was elected clerk of the fire department.

There are very few questions of fact in the case, the contention on the part of the petitioner being based mainly upon a construction of the law in reference to the fire department. Among the few questions of fact presented, the court found the following: “After qualifying to fill the office of clerk, specified and named in the concluding clause of section 3 of the act of March 28, 1878, mentioned in the second amended and supplemental petition, the plaintiff entered upon the discharge of the duties of his said office as clerk, on said ninth day of January, 1889, and thereafter continued to be, and was, the duly elected, qualified, and acting clerk in said department continuously to and until at the hour" of noon, January 8, 1900. The plaintiff did not, at noon of January 8,1900, or at any time thereafter, resign his said office of clerk aforesaid; nor was he, at noon of January 8, 1900, or at any time thereafter, removed from said office. But the plaintiff ceased to hold said office of said clerk at noon of January 8, 1900, by force of the provisions of the charter for the city and county of San Francisco, approved January 26, 1899, (Stats. 1899, p. 241,) and for no other reason whatever. Plaintiff has not held said office of clerk, nor acted as such clerk, since noon of January 8, 1900; nor has he, since noon of January 8, 1900, held any other office or position in the fire department. ’ ’