Lowy v. Reardon

WOOD, J. Plaintiff seeks by a writ of mandate to compel various state officers to reinstate him as attorney in the division of labor statistics and law enforcement of the department of industrial relations and to compel the issuance of his salary warrant. The lower court sustained a demurrer to his petition without leave to amend and plaintiff appeals from the consequent judgment.

The defendants contend that mandamus is not a remedy available to plaintiff, since he is attempting to compel his admission to the use and enjoyment of a public office, and that a quo wwrranto action is the only proper remedy. It is alleged in the complaint that the defendant officials have refused to issue a warrant for plaintiff’s salary. In a number of cases it has been held that the issuance of salary warrants may be compelled by mandamus proceedings. (McKannay v. Horton, 151 Cal. 711 [91 Pac. 598]; Ward v. Marshall, 96 Cal. 155 [30 Pac. 1113, 31 Am. St. Rep. 198]; Sevier v. Riley, 198 Cal. 170 [244 Pac. 323].) Therefore plaintiff’s cause of action cannot be defeated on the sole ground that the kind of action selected is not appropriate.

A more serious problem is presented in the contention of defendants that plaintiff was legally discharged from his position and consequently is not entitled to a salary warrant. Prom the allegations in the complaint it appears that plaintiff was in 1924 regularly appointed attorney in the bureau of labor statistics as it then existed and has continued to discharge his duties as such until December, 1934, Plaintiff received on December 19, 1934, a written notice from the director of the department of industrial relations bearing the date of December 18, 1934, that “the position you now hold as Attorney has been terminated as of December 18, 1934”. [750]Plaintiff contends that the chief of the division of labor statistics and law enforcement was the only official who had authority to discharge him or abolish his position; and that he has axxtomatically acquired civil service status, since he held his position more than six months before December 20, 1934, the effective date of the constitutional amendment under the terms of which those enjoying civil service status cannot be discharged without cause.

The legislature in 1927 amended section 364 of the Political Code by creating a new department which was given jurisdiction over the bureau in which plaintiff had been employed. The section in part provides: “A department of the govern^ ment of the state of California to be known as the department of industrial relations is hereby created. The department shall be conducted under the control of an executive officer to be known as director of industrial relations, which office is hereby created.” At the same time section 364-a was amended to read in part as follows': “For the purpose of administration, the department shall be forthwith organized by the director, subject to the approval of the governor, ixx such manner as he shall deem necessary properly to segregate and conduct the work of the department. The work of the department is hereby divided into at least five divisions to be known respectively as the division of industrial accidents and safety, the division of housing and sanitation, the division of state employment agencies, the division of labor statistics and law enforcement and the division of industrial welfare. Each division, except- as otherwise expressly provided by law, shall be in charge of a chief, who shall be appointed by, and hold office at the pleasure of the governor and shall receive such salary as may be fixed by the governor, not to exceed five thousand dollars per annum.” A new section 364-e was added, reading as follows: “The director of industrial relations, as head of the department of industrial relations, shall perform all duties, exercise all powers and jurisdiction, assume and discharge all responsibilities and carry out and effect all purposes now or hereafter vested by law in the department of industrial relations, except as otherwise expressly provided by law.” Another new section, 364-h, was added, reading as follows: "Except as in this article otherwise provided, the department of industrial relations is hereby invested with the power and is charged with the duty of ad