HOYT ET AL v. BOARD OF CIVIL SERVICE COMMISSIONERS OF CITY OF LOS ANGELES ET AL

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District Court of Appeal, First District, Division 1, California.

HOYT ET AL. v. BOARD OF CIVIL SERVICE COMMISSIONERS OF CITY OF LOS ANGELES ET AL.

Civ. 12029.

Decided: June 03, 1942

Arthur Lasher, of Los Angeles, for appellants. Ray L. Chesebro, City Atty., Frederick von Schrader, Asst. City Atty., and George William Adams, and Louis A. Babior, Deputy City Attys., all of Los Angeles, for respondents.

This action for declaratory relief involves a controversy which has arisen between plaintiffs and the Board of Civil Service Commissioners of the City of Los Angeles, over the construction that shall be placed on section 125(b) of the Los Angeles city charter. Judgment was given for defendants, and plaintiffs appeal.

The first question presented relates to plaintiffs' rights to remain on a reserve list for more than five years after being suspended from employment with the city by reason of causes other than personal delinquency. The cause was tried on a stipulation of facts, and the following are the events which led up to the bringing of the action, as they appear from the stipulation and the pleadings: Prior to 1926, plaintiffs, after having passed competitive examinations, were duly and regularly appointed to position in the office of the city engineer, served their probationary periods, and their appointments became complete. In February and March of 1932 they were suspended from employment by reason of lack of work, lack of funds, and abolishment of positions. In 1933 the electorate of the city added a new section to the charter, section 125. It became effective May 15, 1933, and subdivision (b) thereof is as follows: “Sec. 125. In addition to all other matters, the board [of civil service commissioners] shall by its rules provide for: (a) * * * (b). The establishment in each class in each office, department or bureau of the City or major division established in and by a department having control of definite revenues and funds of a reserve list which shall consist of the names of those persons who have been theretofore regularly appointed to, and have served beyond the probationary period in or have been regularly promoted to a position in such class and have been suspended from their positions since January 1, 1928, for causes other than personal delinquency, whether for lack of funds, lack of work, abolishment of position or otherwise; provided, that any person in the classified civil service who has served therein since January 1, 1928, and was suspended for causes other than for personal delinquency, shall be entitled upon his written request therefor, to have his name placed upon the reserve list in each such class–group in which he was regularly appointed and served beyond the period of probation and from which class he was suspended prior to January 1, 1928. Each person whose name appears on the reserve list, until regularly restored to a position in his class in the office, department, bureau or major division from which he was suspended as hereinbefore provided for in this section, shall be certified for appointment, as in this section provided for, to a position in his class in the office, department, bureau or major division from which he was suspended; provided, that after this section takes effect, the name of any person, except as in this section provided for, who has been out of the service of the city for more than five years shall be permanently stricken from the reserve list by the board. During suspensions other than for personal delinquency, the name of the person so suspended shall be placed and retained on the reserve list, as in this section provided for, in each class in each office, department, bureau or major division in which such person has served beyond the period of probation and from which he has been suspended for any cause other than personal delinquency.” (Italics added.)

In the exercise of the rule making power thus granted by section 125 the commission adopted rule XIX, and section 3 thereof provided: “Names of persons shall be stricken from the reserve or reemployment lists when said persons have been out of the employ of the City five (5) years.”

After each of the plaintiffs had been out of the service of the city more than five years, the commission struck his name from the reserve list for the class from which he had been suspended, and refused, to restore his name to such reserve list. Within three years after the names of plaintiffs had been stricken from the reserve list, all of the plaintiffs except Fred A. Thomas made application for reinstatement to register as eligibles for the class from which they had been suspended; the board of public works approved said applications and transmitted them to the commission, and in each instance the commission denied the application for reinstatement.

The dispute centers upon the italicized portion of section 125 (b), to wit: “provided, that after this section takes effect, the name of any person, except as in this section provided for, who has been out of the service of the city for more than five years shall be permanently stricken from the reserve list by the board.” Respondents contend that the presence therein of the phrase “except as in this section provided for” creates an ambiguity; that said phrase should be disregarded as surplusage, and the contemporaneous administrative construction of said provisions should be adopted; that without that phrase, the section means that in all cases where a person has been out of the service of the city for more than five years his name shall be stricken from the reserve list; or, as an alternative, that the name of any person who had been out of the service of the city for more than five years after the section took effect should be stricken from the reserve list, in either of which cases, argue respondents, the plaintiffs are not entitled to have their names on the list because they were suspended in 1932; therefore the five years expired in 1937––or under the alternative interpretation, in 1938, and this action was not commenced until June, 1940.

However, as pointed out in Montgomery v. Board of Admin., etc., 34 Cal.App.2d 514 at page 520, 93 P.2d 1046, 94 P.2d 610, practical construction of a statute can only be resorted to in order to clear up uncertainties and ambiguities. Hodge v. McCall, 185 Cal. 330, 197 P. 86; People v. Sinicrope, 109 Cal.App.Supp. 757, 288 P. 61. The construction of a statute by an administrative board cannot change its clear language or alter its plain meaning. Hodge v. McCall, supra; People v. Kerber, 152 Cal. 731, 93 P. 878, 125 Am.St.Rep. 93; People v. Sinicrope, supra. In other words, if its meaning be doubtful, then the construction put upon it in actual administration by the officers intrusted with that administration should be given great weight by the courts in determining its true meaning. But if its meaning be not doubtful, and the regulations are in conflict with that meaning, they are simply void. Hodge v. McCall, supra. Furthermore, one of the important rules of statutory construction is that, if possible, effect must be given to each sentence, phrase and word thereof; that is to say, that such a construction should be given to a statute as will actively employ, give force to, and preserve every part thereof; and in that connection, unless the exigencies of the situation as presented from a consideration of the statute as a whole imperatively demand that some word, phrase or sentence thereof be discarded, or rendered useless, or deprived of meaning, no such part should ever be considered unnecessary or as surplusage. In re Estate of Garthwaite, 131 Cal.App. 321, 21 P.2d 465; 23 Cal.Jur. 758, and authorities there cited. See, also, Code Civ.Proc. § 1858; Ahern v. Livermore Union H. S. Dist., 208 Cal. 770, 284 P. 1105; Schrader v. City of Los Angeles, 19 Cal.App.2d 332, 65 P.2d 374; Fresno, etc., School Dist. v. De Caristo, 33 Cal.App.2d 666, 92 P.2d 668.

Upon analyzing the provisions of said section 125(b) it will be seen that the reserve list provided for therein shall include employees suspended both prior to and after the date on which section 125 became effective, to wit, May 15, 1933, and that said list shall include three distinct groups of employees: first, those suspended after January 1, 1928 (admittedly plaintiffs belong to this group); secondly, those suspended prior to January 1, 1928, but who served the city after that date; third, those who were suspended after the section took effect (May 15, 1933). The names of the first group are automatically placed on the reserve list. Those of the second group are placed on the list on written request. The section then expressly provides in clear language that as to those two groups, their names shall remain on the reserve list until regularly restored to positions in the class in the office from which they were suspended. The section then goes on to provide “that after this section takes effect, the name of any person, except as in this section provided for, who has been out of the service of the city for more than five years shall be permanently stricken from the reserve list by the board.” (Italics ours.) Obviously, if it had been the intention to have the five–year limitation include all three groups of suspended employees, no exception whatever would have been inserted in the provision. The italicized phrase would have been omitted entirely. It would seem clear, therefore, that the very purpose of inserting the phrase was to eliminate from the operation of the five–year limitation the names of suspended employees already therein provided for, namely, those in the first and second groups. To arrive at any other conclusion would require the reading out of the charter the exception the people of the city have placed therein, and of course this may not be done, because by so doing the law itself would be changed.

Respondents argue that the rejection of the contemporaneous administrative construction contended for by them would lead to absurd results in that it would permit the names of suspended employees included in the group to which plaintiffs belong to remain on the reserve list indefinitely. However, it will be noted that the charter itself provides that their names shall there remain until again certified for appointment to a position in the class and in the office from which each was suspended; and that being so, the commission would not have the power to change the law. As said in Haub v. Tuttle, 80 Cal.App. 561, 251 P. 925, 927, “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.”

In view of the conclusion reached on the foregoing determinative issue, it becomes unnecessary to consider the other questions presented by the appeal. The judgment is reversed.

KNIGHT, Justice.

PETERS, P. J., and BRAY, J. pro tem., concurred.