Ahearn v. Davis

OLNEY, J.

This is an appeal by the plaintiff from a judgment of the superior court denying him a writ of mandate directing the board of fire commissioners, the Civil Service Commission, and the auditor of San Francisco to recognize the plaintiff as harness-maker for the fire department of the city. As defendants with the officials mentioned are joined two individuals, Buckley and Karney, and the question in dispute is as to whether the plaintiff, Ahearn, has a right superior to that of either of these two to the position mentioned of harness-maker."

It seems that at and before the going into effect of the present charter of San Francisco, both Buckley and Karney were in the employ of the city as harness-makers for the fire

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department. On the going into effect of the charter on January 8, 1900, and the consequent reorganization of the department, they continued as harness-makers for it, and have been such up to the present time, but have never taken a civil service examination for the positions they hold. In 1912 the Civil Service Commission held an examination for mechanics, and the plaintiff took the examination and was given first place on the eligible list. The number of harness-makers was increased from two to three, and in November, 1913, the plaintiff was appointed to the additional position so created. In 1917 the number was reduced again to two, and the plaintiff was laid off. He thereupon commenced this proceeding, claiming to be entitled to remain in the employ of the city in preference to either Buckley or Karney.

The rule of the Civil Service Commission is that in case of a reduction in the number of permanent employees of a particular class in any department, the employees shall be laid off in the inverse order of their appointment. The plaintiff claims that although he came into the employ of the department long after Buckley and Karney, he is not subject to the rule just stated, for the reason that they are not civil service appointees and, therefore, according to plaintiff, not legally appointed to their positions. The claim of the defendant, on the other hand, is that Buckley and Karney were not required to be civil service appointees by reason of section 1 of chapter 2 of article IX of the charter, and, therefore, have held their positions regularly and have full rights of seniority. The section just mentioned deals with the duties of the fire commissioners in the matter of the organization of the fire department on the going into effect of the charter, and the pertinent portion of it reads: