Lewis v. Civil Service Board

THE COURT. The petition for writ of mandate is denied, for the reason that the petition shows upon its face that it is premature, and that the civil service board is merely holding in abeyance the action which petitioner seems to think it may possibly take.

According to the petition herein, the charter of the city contains the provision that,1 ‘ The power of creating classifications of employees in the classified civil service shall be with the civil service board, subject to confirmation by the city council.” In effect, petitioner argues that the civil service board threatens to abuse its power. From the terms of the charter itself, petitioner’s remedy is an appeal to the city council, if and when such threat matures into action.

[667]In other words, any action that might be taken by the civil service board with reference to the matter discussed in the petition for an alternative writ of mandate would be “subject to confirmation by the city council”, as provided by said charter.

The petition on its face shows a conflict as to whether any action has at yet been taken by the civil service board, and further, the petition is deficient in that it does not show enough of the rules of the civil service board to enable us to determine which are applicable herein. However, section 10 of rule VIII of said board, as shown at the bottom of page 3 of Exhibit B attached to the petition herein, reads, “The provisions of this rule do not apply to promotion in the Police and/or Eire Department, as the same are provided for in Rules X and XII, respectively.” Rules X and XII arc not set out in said petition either in substance or effect. We believe this court is without power to grant said petition at this stage of the proceedings.

WHITE, J., Dissenting. I dissent. In my opinion section 100 of the Long Beach city charter unequivocally declares that members of the fire department are in the “competitive” class of classified civil service employees, and at least inferentially provides that the promotional examinations mentioned in section 104 of the charter shall be competitive. In other words, that the determination of “merit, efficiency, character, conduct”, shall be by competitive examination. The civil service board is not authorized to exercise any power not conferred upon it by the charter which creates it or not necessarily implied from the powers so conferred.