Fresno County Employees Ass'n v. Fresno County

STONE, J. Plaintiffs appeal from a judgment entered pursuant to an order sustaining defendant’s demurrer to their amended complaint for declaratory relief without leave to [829]amend. Plaintiffs also purport to appeal from the nonappealable order sustaining demurrer.

The controversy stems from an ordinance enacted by the Board of Supervisors of Fresno County declaring the terms of the five members of the civil service commission expired upon the effective date of the ordinance. It also provided for five new terms on the commission, to be filled by appointments by the board of supervisors.

Under the power delegated to charter counties by the state Constitution (art. XI, § 7½) and the Government Code (§ 31101), Fresno County provided for the establishment of a civil service commission by the following language of section 44, subdivision (2) of the county charter:

‘ ‘ Such ordinance shall provide for: A Civil Service Commission of five electors holding no other public office serving staggered terms of four years with such assistants and quarters as are necessary, and for authority in such commission to set up a system of civil service rules for examinations, certification, appeal procedure and other necessary details.’

Pursuant to this enabling provision, the board of supervisors enacted section 170 which, insofar as here relevant, read:

“The commissioners shall be appointed by the Board of Supervisors. The commissioners in office at the time of the effective date of this amendment shall remain in office until the expiration of their term. . . . The terms of the members shall be four years and shall expire, on the First Day of February. Any vacancy in the office of commissioner shall be filled by the Board of Supervisors for the unexpired term. Each commissioner shall serve until his successor is appointed and qualified. No commissioner shall hold any other public office.”

Thereafter the board of supervisors adopted Ordinance No. 511 which amended section 170 to read, in pertinent part:

“Upon the effective date of this 1965 amendment, all existing terms of office shall expire and two new terms shall begin, to terminate in January, 1967, and three new terms shall begin to terminate in January, 1969, Thereafter, all terms shall be for four years. Upon the termination of the present terms as hereinabove provided, the Board of Supervisors shall fill the new terms by appointment and designate the term of each appointee. ’ ’