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District Court of Appeal, First District, Division 2, California.


Civ. 14414.

Decided: July 31, 1950

Todd & Todd, San Francisco, for appellants. Francis W. Collins, District Attorney, Martinez, for respondents.

Plaintiff sued as a taxpayer for injunctive relief alleging that certain employees of the county had been illegally deprived of their rights by an ordinance of the Board of Supervisors removing their positions from the civil service list of county employments. Judgment went for defendants.

Appellant states that the question involved is whether an amending ordinance removing the positions from the list of civil service positions was a repeal or partial repeal of the original ordinance placing them under civil service. It is conceded that the positions of employment were originally included as civil service positions by the ordinance adopted by the supervisors and approved by the electors; that such ordinance provided that it ‘may be amended by a four-fifths vote of the Board of Supervisors without submitting the same to a vote of the People,’ and that such amendment was enacted in the manner therein provided. The only substantial question presented is the one of power—did the supervisors have power to amend without submission of the proposed amendment to the electors? All suggestions of fraud, misconduct and breach of discretion are beyond our review as they find no support in the record.

The matter was tried and fairly heard by the able judge of the superior court whose opinion on the controlling issues fully covers the rights of the parties and which we adopt as our reasons for our judgment of affirmance.

‘On the 5th day of March, 1944, the Board of Supervisors of Contra Costa County passed and adopted Ordinance No. 325 in order to create a merit system for the employees of said county in accordance with the provisions of the County Civil Service Enabling Act now Sections 31100 to 31113, inclusive, of the Government Code of California. The enabling Act provides that such an ordinance shall not become effective until it is ratified by a majority vote of the qualified electors of the County voting at an election for that purpose. Such an election was held and the ordinance was duly ratified by the required majority vote.

‘The offices and employments included in the system are enumerated in Section 4 of the ordinance, which provides that:

“All regular county employees shall be included in the merit system hereby adopted except that the following officers and employees are exempt from the provisions of this Ordinance:

“(a) All officers elected by the people.

“(b) Casual patient and inmate employees at County Institutions.

“(c) Members of the Civil Service Commission and members of all other Commissions of the County.

“(d) All officers and other persons serving the County without compensation.

“(e) All investigators, detectives, or other persons paid from the special funds furnished the District Attorney and the Sheriff under the provisions of Section 4308 and 4310 of the Political Code of the State of California.

“(f) In the office of the District Attorney, special counsel and special detectives for temporary employment.'

‘Section 16 of the ordinance provides that,

“This Ordinance may be amended by a four-fifths vote of the Board of Supervisors without submitting the same to a vote of the People; but no amendment repealing this Ordinance shall be effective unless the proposition of its repeal shall first have been submitted to a vote of the qualified electors of the County at a general or special election, and shall have received the affirmative vote of a majority of the electors voting on the propositions.'

‘On the 6th day of December, 1948, the Board of Supervisors of said county passed and adopted by a four-fifths vote Ordinance No. 471, amending Ordinance No. 325. This ordinance, No. 471, was not submitted to the electors of the County for ratification. By its terms a new subdivision was added to Section 4 of the original ordinance exempting an additional classification of employees from the provisions of the ordinance, which new subdivision entitled ‘(g)’ reads:

“(g) The Medical Director of the County Hospital, and all physicians and surgeons, serving the County of Contra Costa.' The obvious effect of the amendment is to remove from the system the Medical Director of the County Hospital and all physicians and surgeons serving the county.

‘The plaintiff commenced this action on behalf of himself as a citizen and taxpayer and on behalf of all other taxpayers in the County of Contra Costa to have the amending ordinance declared illegal and void, and to enjoin the Board of Supervisors from proceeding to enforce or activate it. Injunctive relief is also sought by the action against the drawing and paying of warrants of any kind for the remuneration of the defendant, Degnan, as Medical Director of the County Hospital, who, it is alleged, is about to be appointed such Medical Director without having been placed on any county civil service eligible list as is provided in Ordinance No. 325.

‘The issues presented go to the power of the Board of Supervisors to amend, without submitting to a vote of the people, a duly adopted ordinance setting up a civil service system for the county by exempting from the operation of the system a classification of employees already included in the system. Also involved is the present status of such employees if the amending ordinance is valid.

‘In the first place it may be said that the validity of the action of the Board of Supervisors in no wise depends upon the motives of its members. 7 Cal. Juris. p. 450, Sec. 41; Dodge v. Kings County, 150 Cal. 96, 88 P. 266. It is said in Nickerson v. San Bernardino, 179 Cal. 518, at page 522, 177 P. 465, at page 467, in dealing with a similar situation that, ‘Whether, in the exercise of legislative powers, a board acts wisely or unwisely, is no concern of the courts.’ That such is the law is also stated in City & County of San Francisco v. Boyle, 191 Cal. 172, 215 P. 549. Unless established by competent evidence as essentially fraudulent, the motives of the board will not be inquired into. In this case there is neither pleading nor proof that the Board of Supervisors acted in any manner other than as appeared to them to be in the best interests of the community.

‘The case resolves itself solely into a consideration of the powers granted to the Supervisors by the Constitution of the State and by legislative enactment. In so far as there may be any conflict between the two, the power granted by the Constitution must prevail. It is a fundamental principle of constitutional government that the legislature may not legislate contrary to or against a provision of the Constitution, and that where a power is delegated or granted to a board or body by the Constitution the legislature may not by enactment limit or qualify that power. The Constitution is in all cases supreme.

‘Section 5 of Article XI of the Constitution provides that,

“The boards of supervisors in the respective counties shall regulate the compensation of all officers in said counties other than boards of supervisors, district attorneys, auditors, and judges of municipal courts, and shall regulate the number, method of appointment, terms of office or employment, and compensation of all deputies, assistants, and employees of the counties.'

‘This provision of the Constitution gives to the Boards of Supervisors of the respective counties of the State the unqualified power to regulate the method of employment, the terms of employment, and the compensation of all assistants and employees of the counties. The power so granted vests directly in the Board of Supervisors and is to be exercised regardless of any legislative enactment tending to qualify it. In the exercise of the power so granted them by Section 5 of Article XI of the Constitution the Board of Supervisors may, without submission to the electors of the county, by ordinance amend an ordinance setting up a civil service system for the county by excluding any classification of employees from such system. Any provision in the original ordinance relating to its amendment can neither add to nor detract from this power.

‘But this does not mean that the electors of a county are in any way deprived of the right to exercise the initiative, or to invoke the referendum pursuant to Section 1 of Article IV of the Constitution. In this case, however, no referendum was invoked, and neither is the original nor the amendatory ordinance an initiative measure.

‘The removal of the excluded employments from the operation of the system renders them open to be filled by appointment in the manner otherwise provided by law.’

Judgment affirmed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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