Shubert v. Department of Motor Vehicles

THOMPSON, J. This is an appeal from a judgment denying petitioner’s application for a writ of mandamus to reinstate him as a duly appointed permanent highway patrol officer of the state of California in Plumas County, and to require the payment of his salary therefor subsequent to November, 1933.

The petitioner was appointed on December 21, 1931, by the highway commission with the approval of the civil service commission, under the provisions of section 11 of the [355]Civil Service Commission Act of California, as a temporary state traffic patrol officer to serve as such in Plumas County. At the request of the highway commission and by written authorization of the civil service commission his service as such temporary officer was three times extended. Each time the request for the extension of his time and the authorization therefor specifically stated that the appointment was for temporary service. As such temporary officer he served about 18 months, when his employment was terminated. At the termination of his service he applied to the civil service commission for permission to take the examination prescribed for candidates for that office. He was not permitted to take the examination for the reason that he was then over 36 years of age and therefore disqualified under the rules of the commission which had been adopted and were in force.

At no time involved in this proceeding was there an eligible list of candidates for that office who had taken the examination required by law. The petitioner had never taken such examination and was not on the eligible list required from which appointments must be made pursuant to section 360e of.the Political Code. A highway patrol system was maintained in Plumas County by the state of California, but that county never did maintain such system independently of the state. When the petitioner’s temporary service ended January 1, 1933, he demanded of the civil service commission that he be permanently appointed as state highway patrol officer in Plumas County, on the theory that his service in that capacity for more than one year automatically entitled him to the status of a permanent officer pursuant to the provisions of section 360c, subdivision (k) of the Political Code. That demand was refused. A petition for a writ of mandamus was" then filed in the Superior Court of Sacramento County to require his reinstatement as a permanent highway patrol officer, and to enforce the payment of his salary as such. The petition was denied by that court. Judgment was rendered accordingly. From that judgment the petitioner has appealed.