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District Court of Appeal, Third District, California.

STEPHENS v. CLARK, Director of Motor Vehicles, et al.*

Civ. 6287

Decided: February 08, 1940

Earl Warren, Atty. Gen., and Wilmer W. Morse, Deputy Atty. Gen., for appellants. Ralph H. Lewis and Fred R. Pierce, both of Sacramento, for respondent.

Petitioner, a civil service employee in the department of motor vehicles, sought by mandate to compel respondents to fix his salary at $275, and to pay to him the unpaid portions of his salary allegedly earned since November, 1935.

In 1932 petitioner entered the service of the state in the division of registration of the department of motor vehicles, as an “Investigator”, at a salary of $275 per month. Until December, 1934, this position was exempt from civil service. Section 360b, Pol.Code; Stats.1931, chap. 478, p. 1041, § 1.

On December 20, 1934, article XXIV of the state Constitution became effective and petitioner became a civil service employee subject to a probationary period of eight months, and at the end of this period he acquired the status of a civil service employee. On September 4, 1935, the personnel board classified petitioner as supervisor of nonresident registration, but did not, by this order, make any reference to his salary, and petitioner continued to receive $275 per month until November 7, 1935, when the personnel board established a range salary for the class of supervisor of nonresident registration, fixing the minimum at $205 and the maximum at $250, and after that date petitioner has received, each month, the sum of $250.

It is the contention of appellants who are members of the personnel board, the controller and the director of the department of finance, that the resolution of the personnel board, fixing the salary range for the class occupied by petitioner (he being the only person in that class) operated automatically to fix his salary at the maximum, and also that the claim of petitioner is barred by the provisions of subdivision I of section 338 of the Code of Civil Procedure.

In support of the contention of appellants that the fixing of the salary range for the particular class automatically reduced the salary of petitioner to the maximum for the designated class, they argue that a person blanketed into civil service holds his position subject to the civil service provisions of the Constitution, save that the board may classify the positions under civil service in accordance with the duties attached to the several positions, and that within each class the commission may grade all positions with respect to salary and may establish a minimum and a maximum salary for each grade. Sec. 5, Civil Service Act; Stats.1913, p. 1035; Stats.1927, p. 1313. They also contend that the fixing of a salary is an essential part of the classification scheme, and until a salary range has been fixed, the classification plan is not complete.

We are unable to accept the reasoning of appellants. Upon the completion of the probationary period petitioner became a permanent civil service employee with all the rights the law afforded such employees. The Civil Service Act of 1913 as amended in 1927 provided, in section 5 thereof, that the commission should grade all positions within each class with respect to salaries, and establish a minimum and maximum salary limit, and could amend, consolidate, or abolish grades and classes from time to time, but further provided that persons holding positions under the original classification or grade were not affected thereby. Stats.1927, chap. 719, p. 1314, § 5.

As pointed out by Judge Shields, the learned trial judge:

“It is clear of course that when petitioner was taken into the civil service by the Constitutional Amendment of 1934 that he came in with the salary which he was then receiving of $275.00 per month. At any time during his probationary period of eight months the Personnel Board could have had their will with his employment and his salary, but they chose to leave it as it was. Thereafter they could have changed his salary only in such way as was provided by law for action upon salaries of employees generally within the classified service. Their first action in merely grading and classifying his position generally did not of course affect his salary. When the Board in November, 1935, established maximum and minimum salaries for this position it seems clear that this action did not affect his salary. There is nothing in the Civil Service Act of 1913 which would suggest that existing salaries were to be affected by any such act. The specific provisions directing the Board to establish maximum and minimum salaries for positions in the civil service was enacted in 1927, and this amendment to the law does not state that this shall be one of its consequences. In fact the Act of 1927 after providing for salary limits for grades, and for changes of classes and grades, provided ‘but persons holding positions under the original classification or grade shall not be affected thereby’. Stats.1927, page 1314.

“It is claimed that in Raymond v. Christian, 24 Cal.App.2d 92 [74 P.2d 536], it was decided that when maximum and minimum salaries were provided for a certain class or grade of position that that of itself changed existing salaries to conform to this range. This question was not raised in that case nor discussed therein. The most that can be said of that case is that it was assumed that such newly established range so operated. The Raymond case grew out of conditions which arose prior to the passage of the Civil Service Act of 1937. Stats.1937, page 2085.

“The legislature at that time, 1937, apparently deemed that the Amendment of 1937 providing for maximum and minimum salaries did not affect existing salaries, for in its act of that year, when it wanted to provide that such an order did affect existing salaries, it did not adopt the language of the existing act, but as a new enactment specifically provided, ‘Sec. 64. Upon the reclassification or reallocation of a position the status and salary of the person holding the position shall not be affected, unless his salary before the reclassification or reallocation was higher than the maximum salary prescribed for the class to which his position is reclassified or reallocated. In such event his salary shall be reduced to not less than the maximum prescribed for the class to which his position is reclassified or reallocated.’ Section 70 of the same Act (Civil Service Act of 1937), provides ‘Salary changes [ranges] shall consist of minimum and maximum salary limits and employees in a particular class shall receive a salary within the limits provided for that class'. It will be thus seen that the power to fix salaries through establishing ranges of salaries was first given to the Personnel Board by the Act of 1937.

“It is significant that by the Amendment of 1937, providing for the establishment of maximum and minimum salaries, no provision is made for notice or a chance to be heard by the persons holding positions within the range which was being fixed. This was plainly upon the theory that no existing salaries were to be affected by providing for such maximum and minimum salaries. But in the Act of 1937 where that consequence was specifically given to such action by the Personnel Board, it is provided ‘Reasonable opportunity to be heard shall be provided by the board to any employee affected by a change in the salary range for the class of his position.’ Section 70, Stats.1937, page 2094.

“It seems clear that nothing that was done by the Personnel Board prior to the adoption of the Act of 1937, has affected the salary of the petitioner.”

We find no action of the personnel board that directly purports to change the salary of petitioner. Apparently not the order of the board of September 4, 1935, changing the name of the position from inspector to supervisor of nonresident registration, because nothing was said as to salary. In the order of November 7, 1935, the minimum and maximum salaries were established for the position generally, but the order itself was not addressed to petitioner, nor did it purport to affect the salary of petitioner, but was referring to a time when that position might in the future be held by one whose tenure had not been already established. In fact at that time not only did no statute authorize such a change or grant to the board the power to change the salary of any civil service employee, but on the contrary the law as it then stood expressly forbade such change, section 5 of the act holding, as noted above, that persons then holding positions were not to be affected by new salary adjustments made for positions generally.

Petitioner had served a probationary period of eight months. At the end of that time his tenure and right to his salary became fixed without any further action on the part of the board, and he was holding his position under the original classification, as that term is used in section 5 of the Civil Service Act, supra.

If security of tenure of the individual employee is to be secured by civil service in government, the power to change the salary of the employee must be carefully guarded, for as a practical matter, the right to reduce salaries is the right to discharge. Lotts v. Board of Park Commissioners, 13 Cal.App.2d 625, 57 P.2d 215.

In Kennedy v. State Personnel Board, 6 Cal.2d 340, 57 P.2d 486, it was held that any attempt to postpone the vesting of tenure beyond the probationary period fixed by the board was void. The board, by failing to grade or classify or fix the salary of an employee within the probationary period, could extend the period of probation to a time to suit its purpose, and by classifying the maximum so low as to almost force a resignation, thereby defeating the purpose and effect of the civil service statutes. It is such opportunity for abuse that the law seeks to remove. As said in Lotts v. Board of Park Commissioners, supra [13 Cal.App.2d 625, 57 P.2d 219]: “That such a power would be, in the present case, in good hands, and that no arbitrary or improper action on the part of the board would result from its exercise, may be fully conceded. It is a question simply whether under the city charter and laws the power has in fact been granted, and upon a careful examination we are compelled to say we think it has not.”

The plea of the statute of limitations is based upon section 52 of the Civil Service Law (Stats.1937, chap. 753) which went into effect August 27, 1937.

That section provides in part that no action for back salary shall be brought unless commenced within ninety days after the claim arose. This action was commenced July 15, 1938, and appellants contend that at least seven months are barred. Section 52, supra, provides, however, “any such cause of action or complaint or ground for issuance of any complaint or legal remedy or wrongs or grievances arising prior to the effective date of this act shall be exempt from the provisions of this section”. The plea of the statute is therefore not applicable under the facts of this case.

For the foregoing reasons petitioner is entitled to the relief sought. The judgment is affirmed.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; TUTTLE, J.

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