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


Civ. 8603.

Decided: December 18, 1934

Charles W. Kabisius, in pro. per. Erwin P. Werner, City Atty., Frederick Von Schrader and Loren A. Butts, Asst. City Attys., and Joseph T. Watson, Deputy City Atty., all of Los Angeles, for respondents.

As far as are material to the decision of the appeal with reference to the questions discussed and decided herein, the facts appear to be that prior to October 3, 1930, the petitioner in the court below was a “permanent” employee as a beach guard of the city of Los Angeles in the department of playground and recreation thereof. On October 3, 1930, the said petitioner was served with a written notice which included the statement that “you will thereafter be terminated on October 9th, according to Rule * * * which covers reduction of force for lack of work and lack of funds.” Thereafter, in pursuance of an investigation by the civil service board of said city of the facts that related to the “termination” of the services of petitioner, by order of said civil service commission the Board of Playground and Recreation was directed to reinstate petitioner into the position formerly occupied by him. That order having been ignored by the Board of Playground and Recreation, petitioner instituted in the superior court a petition for a writ of mandate by which he sought an order, which, if granted, would direct the Board of Playground and Recreation to restore petitioner to duty as a beach guard. From a judgment that was rendered in favor of the respondent to said petition, the petitioner has appealed to this court.

Primarily, with reference to the discharge or the suspension of an employee, the powers (and the limitations thereon) possessed by the respondent board are outlined by the provisions of subdivision (a) of section 112 of article IX of the Charter of the City of Los Angeles. As far as is here pertinent, by that section, in substance it is provided that, although the respondent board has power “to remove, discharge, or suspend” an employee of its department, no employee (of the class of which petitioner was a member) may be “removed, discharged or suspended, except for cause.” That charter provision contains further regulations relative to notification by such respondent board to the civil service commission of any action taken by the former of the kind herein referred to, and that “upon such filing (of notice) such removal, discharge or suspension shall take effect”; following which, procedure is outlined for any possible investigation and determination by the civil service commission relative to the justification, or lack of justification, for such discharge or suspension of the employee; with power to make a “final and conclusive” order in the premises; “provided, that the order of any appointing board or officer suspending any person because of lack of funds in such department shall be final, and not be subject to review by said board of civil service commissioners.”

It will thus be noted that “for cause” only could appellant legally have been “removed, discharged, or suspended” from his position; except that he might have been “suspended * * * because of lack of funds.” In that connection, it is not contended by respondent herein that any “cause” existed personal to appellant's employment, as construed by various authorities to which the attention of this court has been directed, sufficient to authorize either the removal, the discharge, or the suspension of appellant from his position. It therefore follows that the legal justification for depriving appellant of his employment rests upon the validity of the order made by the respondent board, to wit, that his services would be “terminated * * * according to rule * * * which covers reduction of force for lack of work and lack of funds.”

It would be idle to say, or to contend, that as used in the notice to the employee the word “terminated” should carry a meaning identical with the word “suspended.” Discussion is unnecessary to establish the conclusion that to terminate an employment is “to put an end to” it. Webster's New Dictionary. And in that regard, the facts as adduced by the evidence received on the hearing in the trial court clearly show that such was the intention of the respondent board, both when the notice of termination of the services of petitioner was served upon him and at all times thereafter. Such being the undeniable situation, the question then arises whether the respondent board exceeded its powers within the purport of the pertinent express charter provisions, or within those powers that may be implied therefrom.

As to the first situation, it is conceded by counsel for respondent that no such express power is contained either within subdivision (a), of section 112 of article IX of the Charter of the City of Los Angeles, or elsewhere within such charter. But it is contended that because in other charter provisions, in general terms the respondent board is given authority to manage, govern, and control the business and affairs that appertain to its declared functions, an implied power was created to discharge an employee whenever within the discretion of such respondent board, or its manager, such discharge was desirable, either for the purpose of reducing the working force of the department on account of lack of work, or because of lack of funds accredited to such department, wherewith to pay the necessary operating expenses thereof. In the total absence of charter provisions bearing directly upon the questioned right of discharge of an employee, the existence of an implied authority such as asserted by respondent might possibly be conceded. But the language of subdivision (a) of section 112 of article IX of the Charter purportedly covers all situations with reference to the right of the respondent board either “to remove, discharge or suspend” an employee who is engaged in performing services within such department. By its express terms it is there provided that “any board or officer having the power of appointment of officers, members and employees in any department of the government of the city, shall have the power to remove, discharge or suspend any officer, member or employee of such department; but no person in the classified civil service of the city, other than an unskilled laborer employed by the day, shall be removed, discharged or suspended except for cause * * *.” And as hereinbefore has been pointed out, the only specified exception to the authority given to such respondent board to in any way discontinue the services of an employee (other than as is therein generally provided for) is by a suspension “because of lack of funds.” To such a situation the application of the maxim “Expressum facit cessare tacitum,” or, as interpreted, “The expressed controls the unmentioned; an unequivocal statement prevails over an implication” (see “Expressio unius exclusio alterius” in Anderson's Law Dictionary), would seem clear. Broad as may be the general powers of the respondent board in the management and control of its delegated functions, in the face of a limitation of such powers by which in the matter of the discharge or the suspension of an employee, the rights of such employee (and incidentally those of the general public) were carefully guarded,–the announcement of a rule, perhaps in accord with general power, but by which, authority, additional to, or materially different from, that provided within the express limitation upon such general power, would be asserted, would be plain opposition to the intent of the rule or maxim to which attention just has been directed. The charter provision authorized a discharge “for cause” only. It did not authorize a discharge in order that a “reduction in force for lack of work or lack of funds” might become desirable. In the latter case, in the absence of an express abolishment of the position held by the employee, all that the respondent board had the legal power to do was to suspend him. As is said in the case of Powers v. Board of Public Works, 216 Cal. 546, 549, 15 P.(2d) 156, 157, wherein an analogous situation appeared to be present: “The contention that the resolutions of the board of public works laying off these men amounted to an abolishment of their positions is not in accord with the facts as disclosed by the record. The record clearly shows that respondents were laid off solely because of lack of funds, and not because the work they were doing was completed or their jobs abolished. * * *” The fact in the instant case that the services of the employee were “terminated” had no effect upon the position itself in which the petitioner was employed, nor upon his status as a permanent employee.

It becomes unnecessary to discuss any of the other points on appeal suggested by the respective litigants thereto.

It is ordered that the judgment be and it is reversed, and the cause remanded to the superior court for further proceedings in accord with this decision. The motion of appellant for leave to produce further evidence in this court is denied.