CITY AND COUNTY OF SAN FRANCISCO et al. v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO.
Petitioners seek a peremptory writ to prohibit the enforcement of an order for the inspection of documents.
Section 151 of the San Francisco Charter, as amended in 1943, St.1943, P. 3128, provides for the compensation of municipal employees as follows: ‘The compensations fixed as herein provided shall be in accord with the generally prevailing rates of wages for like service and working conditions in private employment or in other comparable governmental organizations in this state; * * *. The proposed schedules of compensation or any amendments thereto shall be recommended by the civil service commission solely on the basis of facts and data obtained in a comprehensive investigation and survey concerning wages paid in private employment for like service and working conditions or in other governmental organizations in this state. The commission shall set forth in the official records of its proceedings all of the data thus obtained and on the basis of such data the commission shall set forth in its official records an order making its findings as to what is the generally prevailing rate of pay for each class of employment in the municipal service as herein provided, and shall recommend a rate of pay for each such classification in accordance therewith.’ (Emphasis added.)
Late in 1948 the Commission made such an investigation and survey and on January 15, 1949, sent to the Supervisors its compilation, analysis, report, findings and recommendations. After public hearings the Salary Standardization Ordinance was adopted on July 1, 1949 for the fiscal year 1949–50.
About 500 municipal employees were dissatisfied with the rates fixed by the ordinance, and on September 1, 1949 they (on their own behalf and for others similarly situated) commenced an action in the Superior Court (Davenport and others against the present petitioners) wherein they alleged that the Commission and the Supervisors had ‘disregarded the generally prevailing rates of wages for like services and working conditions in private employment or in other comparable government organizations in this State and that the wages established thereby were not in accord with the rates of wages required by said Section 151 of said Charter,’ and prayed that the court rectify the same.
Shortly before that case was to go to trial the plaintiffs therein moved under § 1000, Code Civ.Proc. for the inspection of all documents in the possession of the Commission as a result of the survey. The City strenuously resisted the motion, claiming that among such documents there were many of a highly confidential nature which had been obtained from business organizations under a pledge of nondisclosure and which were not official records. The opposition to the motion was, in the last analysis, to the disclosure of the identity of such organizations. The court granted the motion and authorized the copying and photographing of the documents.
When the Commission entered upon the survey it wrote to approximately 192 business organizations as follows: ‘We again solicit your cooperation and assistance in this wage survey. We have a complete file of salary information given by you last fall and we would like to bring this information up to date. As we have explained to you heretofore, the source of all information supplied by you will be held in confidence. The wage scales paid by your firm and other data submitted by you will not be identified except by a code known only to the commission and staff.’ (Emphasis added.)
The petition alleges that the information was furnished and that ‘said private employers regard, treat and consider all of said data and facts as valuable business and trade secrets and maintain and assert in good faith that the disclosure of their identity in connection therewith would result in irreparable injury to them in competition with their competitors and in connection with their personnel within their respective organizations and would be productive of dissatisfactions and controversies, foment discord, and create many difficulties not only between said employers and employees, but also between and among the employees themselves.’
As soon as the order was made the Commission informed the 192 employers who, it is alleged, immediately protested and objected to the disclosure. Over 40 of them have appeared herein as amici curiae on the petitioner's side. Moreover it is alleged that some of the employers have declared that the Commission will be held liable for damages, if any, arising from the disclosure.
Abelleira v. District Court of Appeal, 17 Cal.2d 280, 290–291, 109 P.2d 942, 132 A.L.R. 715, holds, inter alia, that the writ of prohibition lies to prevent the exercise of any unauthorized power in a case or proceeding in which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.
Petitioners contend that the order was made in the exercise of an unauthorized power because the documents had been obtained under a pledge of nondisclosure and hence were privileged communications, protected by § 1881, subd. 5, Code Civ.Proc., which reads: ‘A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.’
Respondent points to the following language added to § 151 of the charter by the 1943 amendment: ‘The commission shall set forth in the official records of its proceedings all of the data thus obtained * * *’ and contends that in the face of such language the Commission could not give, nor could the employers rely on, any pledge of nondisclosure, but that such pledges were wholly ultra vires.
The record shows that the practice of obtaining information from large business organizations under pledge of nondisclosure was of long standing. As enacted in 1932, § 151, provided that the compensation of municipal employees should ‘be not higher than prevailing rates for like service and working conditions in private employment or in other comparable governmental organizations in this state.’ St.1931, p. 3066. In ascertaining such rates the Commission conducted surveys wherein it interviewed many business organizations. These organizations were hesitant about supplying such information, and the assistance of the Chamber of Commerce had to be enlisted before they did so. Despite the 1943 amendment the practice of giving the pledges continued through 1948.
Petitioners contend that ‘While the Charter required all figures and amounts as to compensation and details as to the nature of jobs and working conditions to be set forth, it did not expressly require disclosure of identity of source of such information and construing it in accordance with the object to be achieved, necessarily excludes same.’
The Charter requires all data to be set forth. Petitioners say that ‘the word ‘all’ must always be given a reasonable construction keeping in mind the object and purpose of the legislation in question;' that ‘the ‘rule of reason’ governs the construction of all laws,' and that ‘Every statute * * * should be construed with reference to its purpose and the objects intended to be accomplished by it * * * (23 Cal.Jur. p. 764, § 138).’ From these premises they argue that as the object of § 151 is to secure fair and adequate compensation for municipal employees, and as the ascertainment of salaries and working conditions prevailing among business organizations is indispensable thereto, it follows that ‘it was implicit in said provision that said Commission had the power to solicit such information in official confidence and thereafter it was bound by public duty and governmental honor to preserve such pledge inviolate.’
To adopt that argument would compel a holding that the Commission has the discretion to decide by rule or otherwise which part of the salary survey data shall become an official record and which part shall be held in confidence.
The long line of civil service cases starting in 1911 with Cook v. Civil Service Commission, 160 Cal. 598, 117 P. 662, 663, hold that such commissions possess such powers as are directly given by the charter creating them and such as are necessarily implied from the prerogatives conferred. There, after conducting an examination from which issued a list of candidates eligible for promotion the Commission vacated the examination and set aside the eligible list. The court said: ‘There was no grant of power directly given by the charter, or necessarily implied from the prerogatives conferred, which enabled the commission properly to set aside its own action after it had declared a list of eligibles * * *. It follows that the board acted beyond its authority * * *.’ (Emphasis added.)
Petitioners of course concede that Civil Service Commissions have but limited powers, but they rely on Livingstone v. MacGillivray, 1 Cal.2d 546, 36 P.2d 622; Haub v. Tuttle, 80 Cal.App. 561, 251 P. 925, and Handlon v. Wolff, 72 Cal.App.2d 53, 164 P.2d 46, as supporting their claim that the Commission had ample implied powers. In the Livingstone case the court held, 1 Cal.2d at page 549, 36 P.2d at page 623: ‘The civil service board assumed to try and determine this issue of fraud. The city charter does not confer upon the board such jurisdiction. The power of the board being special and limited, no legal presumptions or intendments may be indulged to uphold its order. Garvin v. Chambers, 195 Cal. 212, 223, 232 P. 696.’
Haub v. Tuttle was doubtless cited by petitioners because of the general language therein, taken from Pratt v. Rosenthal, 181 Cal. 158, 183 P. 542, to the effect that in conducting examinations Civil Service Commissions have a wide discretion and that courts should let administrative boards and officers work out their problems with as little judicial interference as possible. But the opinion also says 80 Cal.App. at page 568, 251 P. at page 927: ‘If in framing the charter it was intended that promotions should depend, in whole or in part, on competitive examinations, provisions from which such inference might be drawn would, doubtless, have been incorporated in section 106 * * *.’ To paraphrase: If it had been intended to exclude any part of the data from the official records, all that the draftsmen of § 151 had to do was say so. The court also said 80 Cal.App. at page 569, 251 P. at page 928: ‘The language used in the forepart of said section 106 * * * reasonably construed, means that it may in accordance with section 104 provide rules and regulations for promotion; and that being so, the nature of those rules and regulations are left necessarily to the discretion of said commission, providing they do not have the manifest effect of nullifying the fundamental principle which said section 106 declares shall be followed in determining eligibility for promotion.’ (Emphasis added.)
Handlon v. Wolff simply involved the right of the former claim agent of the Market Street Railway Co. to be blanketed in under § 125 of the San Francisco charter to a comparable position with the city. The present petitioner-Commission was mandated to place him in such position. The court at 72 Cal.App.2d page 59, 164 P.2d at page 49, said: ‘If Handlon had a right to the position of claims agent it was beyond the power of the commission to take that right away. Viner v. Civil Service Comm., 59 Cal.App.2d 458, 139 P.2d 88.’ (Emphasis added.)
None of the three cases just discussed aids the petitioners in any way.
Bruce v. Civil Service Board, 6 Cal.App.2d 633, 637, 45 P.2d 419, 421, a case very much in point, holds that ‘Rules adopted by a commission have the force of law if they are within the powers conferred upon the commission by the charter. Haub v. Tuttle, 80 Cal.App. 561, 251 P. 925. A rule within the scope of its application has the force and dignity of a law, but since the board owes its existence to the organic instrument it cannot, under the guise of exercising a rule-making authority, alter the instrument which has created it.’ (Emphasis added.) To the same effect are Viner v. Civil Service Comm., 59 Cal.App.2d 458, 465, 139 P.2d 88, and Wheeler v. City of Santa Ana, 81 Cal.App.2d 811, 816, 185 P.2d 373.
A rule which attempted to provide that a part of the data (for instance, as in this case, the identity of organizations supplying information) need not be set forth, but should be withheld as a confidential communication, would ‘have the manifest effect of nullifying the fundamental principle’ (Haub v. Tuttle, supra) declared in § 151 and constitute ‘an unwarranted addition thereto’. Bruce case, supra, 6 Cal.App.2d at page 640, 45 P.2d at page 423. If the Commission could not do this by rule it could not do it at all.
Respondent argues that the language of the 1943 amendment put everybody on notice that thenceforth nothing connected with the salary surveys could be held in confidence.
While petitioners concede that everybody is presumed to know the law, they argue that the employers are entitled to presume ‘That official duty has been regularly performed’ § 1963, subd. 15, Code Civ.Proc., and that the Commission properly construed and acted under § 151. In this connection they say: ‘the undisputed fact is that for years it had been the standard practice of said Commission to solicit and receive such information in official confidence and during all these years and until just now that standard practice has been recognized and followed without question by anybody. Through these previous years the private employers have been given the promise by said officials in the administration of said law and in the performance of their duties that their identity would not be disclosed, and that promise has been fully kept. As it was therefore implicit in the law itself and so construed and administered by the officials charged with its enforcement, from the time that it was originally enacted, that the identity of the employers in connection with the specific data furnished would be held in official confidence, said employers had every reason to indulge in the presumption that said officials were duly acting in performance of their public duty—as indeed they were.’
The first answer to this argument is that it fails to take into account the addition in 1943 of the requirement that all data shall be set forth. From 1932 to 1943 the ‘standard practice’ of pledging nondisclosure had grown up, during which period § 151 said nothing about ‘official records.’ Whether, with the charter thus silent, the Commission then had the power to make the pledges, is now an academic question. However, it cannot be gainsaid that the new language radically changed the whole complexion of § 151. Despite that change the same practice continued for the five years 1943–48 until challenged in the Davenport litigation.
If, before the 1943 amendment, and while nondisclosure went unchallenged, it may be assumed for present purposes that the employers were entitled to presume that the pledges were made in the regular course of official duty then by parity of reasoning when the ‘official records' language was written into § 151 such presumption could no longer be relied on.
The second answer is that the unquestioned recognition of the so-called ‘standard practice’ by everybody over a long period could not have warranted any presumption that such practice had a legal basis or tended to build up any foundation of legality. A somewhat similar situation was presented in Haub v. Tuttle, supra, 80 Cal.App. 561, 569, 251 P. 925, 927, where the court said: ‘The fact that said commission has operated for a number of years under the interpretation appellants are contending for here cannot be held to affect the present legal situation, for the reason that the exercise of powers by city officers, in excess of their authority, for a great length of time, will raise no presumption of a grant to the city of such powers. Vernon Irr. Co. v. City of Los Angeles, 106 Cal. 237, 39 P. 762. To the same effect is the case of City of Corona v. Merriam, 20 Cal.App. 231, 128 P. 769.’ Followed in Wheeler v. City of Santa Ana, supra.
The third answer is addressed to petitioners' contention that nondisclosure is sanctioned by the implications to be drawn from the language of § 151.
It is settled law that ‘Whatever is necessarily implied in a statute is as much a part of it as that which is expressed, unless repelled b positive language in the act or by its general scope.’ (23 Cal.Jur. p. 739; emphasis added.) It is also settled that ‘where a statute gives a power, everything necessary to make it effectual is implied; and where the law requires a thing to be done, it impliedly authorizes the performance of whatever may be necessary to that end’ (Id.).
Petitioners argue that a comprehensive salary survey cannot be made or municipal salaries fixed without the co-operation of the employers, and as such co-operation cannot be obtained without nondisclosure, it must follow that, if § 151 is to have any potency, the power to promise and to enforce nondisclosure must be implied. However, there is no language in § 151 even squinting at nondisclosure. On the other hand its explicit and mandatory language (‘shall set forth in the official records') means disclosure and nothing else.
Therefore the implication ‘that said Commission had the power to solicit such information in official confidence’ would collide head-on with the explicit provisions of the section instead of effectuating and furthering them. To again quote Haub v. Tuttle, such implication would ‘have the manifest effect of nullifying the fundamental principle’ which the explicit language declares.
As was said in Marshall v. Williams, 85 Cal.App. 507, 513, 259 P. 970, 972, ‘To our minds the civil service provisions are plainly expressed, and the intent of the framers of the charter is clear, and there is little or no room for interpretation. Under these circumstances, courts have no power to ignore express provisions of an act and by any forced or unreasonable construction defeat the clearly expressed intention of the lawmaking power.’
To summarize: the explicit ‘official records' language left no implied power in the Commission to make any pledge or commitment the effect of which would be to keep any part of such data from becoming an official record, open to the inspection of any citizen, § 1032, Pol.Code; §§ 1892–3, Code Civ.Proc. It follows that such pledge (at least after the 1943 amendment) was an ultra vires act of the Commission, and that any communication obtained under such pledge could not become a communication made to a public officer in official confidence. § 1881, subd. 5, Code Civ.Proc. Hence the order of inspection was not made in the exercise of an ‘unauthorized power’ (Abelleira case, supra) or in excess of jurisdiction.
Petitioners rely on Franchise Tax Board etc. v. The Superior Court of Sacramento County, 36 Cal.2d 538, 225 P.2d 905, which has several points in common with this case. There, too, the motion was made under § 1000, and the Board brought a proceeding in prohibition to prevent the enforcement of the order granting it. There, too, the Board disclosed most of the material sought, but refused to disclose the identity of the taxpayers, just as here the Commission withheld the identity of the employers. However § 35 of the Franchise Tax Act explicitly provides that it shall be unlawful to divulge any information concerning a tax return. That positive prohibition sharply differentiates the two cases. It is true that there § 1881(5) was relied on by the Board, as well as § 35 of the act, but in the opinion § 1881(5) is given but scant attention and it is clear that the decision turned largely, if not entirely on § 35 of the act.
Petitioners place strong reliance on the case of Runyon v. Board of Prison Terms and Paroles etc., 26 Cal.App.2d 183, 79 P.2d 101. The distinction between that case and this appears in the opinion itself, where the court, in denying the right of inspection, says: ‘The mandamus proceeding * * * involved the question of whether letters and other communications and documents which are sent voluntarily by various individuals to the * * * board * * * but which are not required by law to be sent to said board, nor to be filed as official records in the office thereof, are open to the inspection of any citizen of the state under the provisions of section 1032 of the Political Code’ (emphasis added). There can be no question as to the soundness of that decision, but it has no bearing here because of the ‘official records' language present in this case but absent from that.
Petitioners rely also on the case of Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796, but, for the reasons just given respecting the Runyon case and other reasons, it is not in point.
Petitioners, relying on such cases as Shell Oil Co. v. Superior Court, 109 Cal.App. 75, 292 P. 531; Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, 114 P. 589 and Funkenstein v. Superior Court, 23 Cal.App. 663, 139 P. 101, contend that the order of inspection was based on a dragnet motion and was too broad and sweeping. At the hearing of the motion the testimony of the Commission's secretary showed that he had disclosed to respondent's counsel ‘every piece of information, every record, every document * * * except one thing. Although we have given him the names of the firms who cooperated under the survey, and supplied data, we have not given to him the code identifying those firms * * * [we have] made it possible for him to copy them or photograph them * * * except that one item of information.’ When asked by the City Attorney why that was withheld he answered: ‘Because in obtaining the information we had promised the employers that the source of the individual data, or the specific data, would not be made public; and secondly, we know if we make the information public, the firms will not hereafter cooperate with us, and we will not be able to carry on a comprehensive survey in the future.’
It thus appears that when the motion was presented and submitted there was but one narrow issue before the court, and on that issue the Commission and its secretary steadfastly refused, on principle, and because of their pledged word, to yield. The situation was totally unlike that presented in the cases cited, or similar ones. Moreover, if we are correct in holding that all data were official records, the Davenport plaintiffs were not confined as litigants to § 1000, but as citizens were entitled to inspect and copy all the data as authorized by § 1032, Pol.Code and §§ 1892–3, Code Civ.Proc.
In all this discussion we have assumed for present purposes that on the motion for inspection the court was entitled to consider § 1881(5), Code Civ.Proc., notwithstanding that section is found in the subdivision of the code dealing with ‘Witnesses'. Our conclusion that § 1881(5) authorizes no confidential immunity in the circumstances of this particular case is not to be taken as a holding, one way or the other, on the procedural question just stated.
It has been contended by petitioners that documents might well be in the possession of public officers or agencies without necessarily becoming public or official records because of such custody. Nothing said herein casts any doubt on that rule. The instant case deals only with the specific situation presented by this record.
Two insurance companies who furnished information under pledge of nondisclosure have filed an amicus curiae brief dealing solely with the question of estoppel. Therein they contend that ‘The doctrine of equitable estoppel applies against a municipal corporation and its officers as to promises made and acts done within the scope of their respective authority.’ This is a fair and candid statement since it goes no further than to assert that an estoppel might arise out of intra vires acts and conduct. The Commission's acts, however, were ultra vires, and estoppel does not operate ‘where the act or contract relied on to create the estoppel is outside the corporate powers of the governmental agencies or officials [citations]’ (Wheeler v. City of Santa Ana, supra, 81 Cal.App.2d 811, 817, 185 P.2d 373). See, also, Chas. R. McCormick Lumber Co. v. Highland School Dist., 26 Cal.App. 641, 147 P. 1183.
‘As in the case of the state, estoppel may not be invoked against a county or municipal corporation except in rare cases where justice and right require it. The doctrine is invoked generally in cases of informality, and irregularity on the part of authorized agents, although it is not applicable to validate unauthorized acts of public servants' (10 Cal.Jur. pp. 651–2). In 18 Cal.Jur. p. 799 it is said: ‘Obviously an act of a municipality in excess of its powers is void. Want of power is always a defense to a municipal corporation, and no estoppel, by conduct or by ratification, to raise the defense can be urged against such a corporation. If the rule were otherwise, the corporation, by ratification, could validate an act, void as being ultra vires, and no limit could be set to its powers.’ (Emphasis added.)
In the interest of clarity it should be said that the petitioners are not seeking to escape or avoid any obligation or liability, such as is almost invariably the case when estoppel is invoked. On the contrary they are urging as forcefully as they can, that the municipality is bound legally and ‘by public duty and governmental honor’ to preserve the Commission's pledges inviolate.
The recent case of County of San Diego v. California Water And Tel. Co., 30 Cal.2d 817, 186 P.2d 124, 175 A.L.R. 747 contains a full discussion of the subject.
In Sacramento and San Joaquin Drainage District v. Riley, 194 Cal. 624, 638, 229 P. 957, 962, it was said: ‘It should go without saying that the only reliance which persons who performed work for the state or any subordinate statutory agency thereof can have is upon the language and proper interpretation of the statute under which their work is performed, and the obligation in their favor arises, and that they can acquire no rights by way of estoppel, either from their own mistaken interpretation of such statute or statutes or from the acts or statements of those officials or agencies of the state who are engaged in the exercise of its delegated police power, and whose power to bind the state is defined by the acts under which they function * * * as to the land owners, also, their rights and interests in the premises are regulated by the statute, and not by any mistaken interpretation of it by themselves, or by any or all of the members of the reclamation board.’ (Emphasis added.)
We are of course mindful of the probability that as a consequence of this decision there will be no further co-operation from most if not all of the 192 employers. Such an outcome, it is repeatedly argued, will harm the municipal employees themselves, since it will cut off the sources of information designed to assist in their salary increases. If so, § 151 might have to be again amended. This, however, is a legislative problem. In Egan v. City and County of San Francisco, 165 Cal. 576, 580, 133 P. 294, 295, the court said: ‘But, however worthy the motive, however advantageous to the public the result sought to be attained, it must always be remembered that municipal corporations are public bodies of limited powers, and that the validity of their acts must be judged by an examination of the charter or law defining their powers, rather than by a view of the purposes or results of those acts.’ (Emphasis added.) See, also, Estate of Sahlender, 89 Cal.App.2d 329, 345–346, 201 P.2d 69.
When the decision of a case results, as this does, in a holding that a pledge given by a public officer cannot be kept—despite the steadfast purpose of the officer to keep and perform it to the letter—a grave and serious problem is presented, one full of moral questions as well as legal ones. No court or judge would reach such a decision unless compelled to do so by clear and unquestioned authority. Such leading cases as Von Schmidt v. Widber, 105 Cal. 151, 38 P. 682 and Foxen v. City of Santa Barbara, 166 Cal. 77, 134 P. 1142 have been repeatedly followed by the courts of this state. They not only lay down definitely and clearly the rules respecting the powers of municipal corporations but they contain statements which make our duty clear in the instant case. In Von Schmidt v. Widber, 105 Cal. at page 157, 38 P. at page 684, the court said: ‘The rule is so familiar as to be trite that a municipal corporation can exercise only such powers as have been conferred upon it in its charter, or by some general law, and that any person, in dealing with it, is charged with a knowledge of every limitation upon its power to contract a liability.’ (Emphasis added.) And in the Foxen case, 166 Cal. at page 82, 134 P. at page 1144, this was said: ‘Plaintiff was charged with knowledge that the persons who employed him were acting beyond their authority. ‘It is a general and fundamental principle of law,’ said Judge Dillon, ‘that all persons contracting with a municipal corporation must at their peril inquire into the power of the corporation or of its officers to make the contract; and a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. This principle is more strictly applied, and properly so, than in the law of private corporations. So, also, those dealing with the agent of a municipal corporation are likewise bound to ascertain the nature and extent of his authority.’ 1 Dillon Mun. Corp. (4th Ed.) § 447.' (The emphasis is the court's, not ours.)
‘In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained thereon, not to insert what has been omitted, or to omit what has been inserted; * * *.’ § 1858, Code Civ.Proc.
The application of that rule, and the one just discussed that every person dealing with a municipal corporation is charged at his peril with knowledge of every limitation upon its power to contract a liability, bar the petitioners from successfully invoking herein the several points respecting unlawful searches and seizures, and kindred questions urged in the briefs. We are constrained to hold that after the 1943 amendment the Commission had no power to make, and the employers no right to rely on, any pledge of nondisclosure.
The alternative writ is discharged, and the petition for a peremptory writ of prohibition is denied.
NOURSE, P. J., and DOOLING, J., concur.