STEWART v. STOCKBURGER (1936)

This is an appeal from a peremptory writ of mandamus ordering the Director of Finance to reinstate the respondent Edna Stewart to her civil service status as a full–time senior clerk termed intermediate office appliance operator of the department of finance of the state of California, and authorizing the payment to her of her fixed salary of $160 per month.

For twenty years Edna Stewart was employed with the state of California as a clerk in the industrial relations department. She attained civil service status. On May 1, 1934, she was transferred to the state department of finance. In 1921 her department was reclassified, and the office of senior clerk of the industrial relations department was created at a salary which was fixed at from $140 to $200 per month. That job was termed intermediate office appliance operator. From the time of the creation of that position the duties thereof have remained the same. Miss Stewart was appointed to that office under civil service and her salary was ultimately fixed at $160 per month. Ever since her appointment she has performed the duties required of that employee without criticism respecting her efficiency. Under a previous Director of Finance, that department attempted to reduce her salary to $110 per month without attempting to abolish the office. Her classification as senior clerk or intermediate office appliance operator and the services required of her remained the same as they were previously. She continued to perform those duties but refused to accept the reduction of salary. She instituted a mandamus proceeding in the superior court of Sacramento county to establish her civil service status and to require the payment of her fixed salary of $160 per month. The court determined that she had acquired civil service status as senior clerk of that department; that the services which she performed were of the “same kind and nature” previously discharged; that there were funds with which to pay for her services; and that she was entitled to the salary of $160 per month. The court found in that regard that Edna Stewart “is the legal holder of a permanent civil service position in the department of finance of the state of California, classified and graded by the state civil service commission in the class and grade of intermediate office appliance operator” at the fixed salary of $160 per month. A peremptory writ of mandamus was accordingly issued. No appeal from that order was taken. That judgment became final.

Pending the determination of the last–mentioned mandamus proceeding, the personnel division of the department of finance notified Miss Stewart in writing that “for lack of work and in the interest of economy,” her position as full–time senior clerk had been abolished to take effect October 31, 1934, and that a part–time job had been created for the performance of the same work under the same title, at a salary of $110 per month, to which part–time position she would be assigned. Once more Miss Stewart brought a proceeding of mandamus in the superior court of Sacramento county to fix her civil service status and to determine her right to the full–time clerkship with its salary of $160 per month. The petition in this proceeding alleges that the pretented abolishing of the full–time position at a fixed salary of $160 per month and the creation of the part–time job at $110 per month were not performed in good faith, but were mere subterfuges resorted to for the purpose of evading the Civil Service Act (St.1913, p. 1035, as amended [Deering's Gen.Laws 1931 and Supp.1933, Act 1400]) in an effort to decrease the petitioner's salary. The Director of Finance answered the petition, denying the material allegations thereof, except that it was admitted the petitioner had attained civil service status as senior clerk; that her position was abolished, and she was placed on the eligible list for appointment to the new part–time job which had been created at a salary of $110 per month on account of a “lack of work and in the interest of economy” pursuant to the provisions of section 14a of the State Civil Service Act. St.1913, p. 1035, and amendments, 1 Deering's Gen.Laws of 1931, p. 621, and Supp.1933, Act 1400. Upon these issues a trial was had in the superior court, in which hearing oral and documentary evidence was adduced.

The court adopted findings favorable to the petitioner and issued a peremptory writ of mandamus requiring the department to reinstate her in the position of full–time senior clerk, under the title of intermediate office appliance operator of the department of finance at the salary of $160 per month.

Among the findings which the court adopted in this proceeding are the following: “It is not true that said full–time position of the class of Intermediate Office Appliance Operator was abolished; * * * that it is not true that said petitioner was duly and regularly laid off or separated from said full–time position; * * * that it is true that the duties prescribed for said [purported] part–time position were the same duties as were attached to the full–time position theretofore occupied by the petitioner; * * * it is true that petitioner is entitled to receive a salary of $160 per month from November 1, 1934, as the holder of a full–time position classified as Intermediate Office Appliance Operator in the said Department of Finance; * * * that the position occupied and held by petitioner * * * was and now is necessary, and * * * it was not necessary or advisable * * * to abolish one or more positions of the class of Intermediate Office Appliance Operator or to temporarily discontinue the same because of lack of work or lack of funds or in the interest of economy; that the notice [abolishing the position] * * * and the separation report * * * and each of them was a mere subterfuge for the purpose of circumventing, avoiding, and evading the provisions of the State Civil Service Act, and other laws of the State of California, and neither said notice nor said report was given in good faith or because of lack of work or lack of funds or in the interest of economy; * * * that petitioner has been and now is performing * * * her same duties in the same place and manner, and under the same title; * * * that the work required in the performance of the duties of the petitioner's position occupied and now occupy not less than seven hours of time each day, other than legal holidays. * * *”

From the peremptory writ of mandamus which was thereupon issued directing the reinstatement of Miss Stewart in her full–time position, at a salary of $160 per month, the Director of Finance has appealed.

The Attorney General contends that the issuance of the writ of mandamus in this proceeding is an unlawful interference with the discretion conferred upon the appointive power by the provisions of section 14a of the Civil Service Act, supra, to abolish the full–time office and create a new part–time office, at a decreased salary, for the performance of the work of that department. That section of the act provides:

“Whenever it is necessary because of lack of work or lack of funds, or whenever it is advisable in the interests of economy, to reduce the staff of any department or agency in the State service, the appointing power may with the approval of the commission lay off employees according to the procedure set forth in this act and the rules and regulations thereunder. * * *

“In the event that any department, board, commission, elective office or other State agency decides to abolish one or more positions of any grade, or to temporarily discontinue the same because of lack of work or lack of funds, or in the interest of economy, then a number of employees of that department, board, commission, elective office or agency equal to the number of positions to be so abolished or discontinued, shall be laid off. * * * The names of employees thus laid off or demoted shall be placed upon the departmental lay–off list for the grade from which they were laid off or demoted, and also upon the general lay–off list for such positions as, in the opinion of the commission, the employees are qualified and entitled to hold. * * * All employees compensated on a monthly basis who are to be laid off or demoted under the provisions of this act shall be given fifteen days' notice of such lay off or demotion prior to the effective date thereof.”

Under section 14a, supra, the appointive power of any agency of the state service may, subject to approval of the civil service commission, abolish one or more positions and lay off employees thereof on account of (1) lack of work, (2) lack of funds, and (3) when that procedure is in the interest of economy.

In this proceeding it may not be said the effort to abolish the full–time clerkship was because of a lack of funds. There was neither an allegation in the answer nor proof of a lack of funds. The burden was on the respondent to establish proof of a lack of funds as a defense to the charge that the petitioner was illegally deprived of her civil service status as senior clerk contrary to the Civil Service Act. Lotts v. Board of Park Com'rs, 13 Cal.App.(2d) 625, 635, 57 P.(2d) 215; Kennedy v. City of Gustine, 199 Cal. 251, 256, 248 P. 910; Johnson v. County of Yuba, 103 Cal. 538, 37 P. 528.

The cause was tried on the theory that there were ample funds with which to pay the salary, and the respondent may not, for the first time on appeal, contend there are not sufficient funds with which to pay the salary. In truth, the Attorney General abandoned that contention in his final brief.

It is, however, strenuously insisted by the appellant that the questions as to whether there was a lack of work to be assigned to that department, and whether it was in the interest of economy to abolish the full–time position and establish a part–time job in lieu thereof, are problems calling for the discretion of the Director of Finance which may not be interfered with by the court since there is substantial evidence to support his decision.

It is true that the court will not interfere with the determination of facts which are dependent for solution upon the mere discretion of an officer, board, or commission to whom that decision is delegated by statute, when there is substantial evidence to support the conclusion. Bank of Italy v. Johnson, 200 Cal. 1, 31, 251 P. 784, 797; 16 Cal.Jur. 809, § 28.

There is a conflict of evidence regarding the preceding questions. The court adopted findings adverse to the appellant upon those issues. The court specifically found there was not a lack of work in that department; that it was not in the interest of economy to abolish the position; that the new part–time job required just as much time to perform the work assigned to it as was previously consumed in discharging the duties of the full–time position; and that the work assigned to both positions required seven entire hours of each working day to fulfill the duties thereof. There is substantial evidence to support these findings. It may sometimes be difficult to determine whether certain decisions depend on the exercise of a discretion. Some problems may be decided with mathematical accuracy, and under such circumstances there is no room for a discretion in determining such questions. It may be argued with reason that if a position which is filled by one particular individual has work enough assigned to it to keep that employee actively and continuously engaged all of the working hours of each working day both before and after the so–called full–time job is abolished, it may not consistently be said it is suffering from a lack of work. It is true there was a controversy regarding just what class of work is deemed to properly appertain to the ordinary duties of that office. That question seems to belong more properly to the realm of discretion which is delegated by statute to the appointive power to decide. It may, therefore, be true that under such circumstances, since there is substantial evidence to support the exercise of discretion on the part of the appointive power, a court may not interfere on that ground with his decision in that regard. It is, however, still true that in a proceeding involving the discretionary powers of an officer or a commission, the trial court retains the right to pass upon the credibility of witnesses and the competency of evidence. Under the pleadings in this proceeding and the findings which were adopted it becomes unnecessary for us to determine whether the trial court exceeded its authority in adopting adverse findings upon issues which were controlled by the exercise of the discretion of the Director of Finance.

The petitioner alleges, in effect, that the act of abolishing the full–time position and creating, in lieu thereof, a part–time job, and in placing the petitioner on the accredited lay–off list of employees, “was a mere subterfuge for the purpose of circumventing, avoiding and evading the provisions of the State Civil Service Act,” and that “neither said notice nor said report was given in good faith or because of lack of work or lack of funds or in the interest of economy.” The trial court found each and all of those allegations to be true. Even though the trial court may have been precluded from interfering with the sound discretion of the Director of Finance in determining that there was a lack of work in the department or that it was in the interest of economy to abolish the position and place the employee on the lay–off list, since there is substantial evidence to support his conclusions in that regard, still, under the pleadings in this case, the court had the authority and was called upon to determine whether those acts were performed in good faith or whether, on the contrary, they amounted to an abuse of discretion and were really done to unlawfully circumvent and evade the Civil Service Act. Of course, an officer has no discretion to violate or evade the law. The court specifically found the office was not abolished in good faith, and upon the contrary that the act in attempting to do so was a mere subterfuge resorted to for the purpose of circumventing, avoiding and evading the Civil Service Act.

In the case of Bank of Italy v. Johnson, supra, upon which the appellant chiefly relies, there was no issue regarding an arbitrary abuse of discretion or with respect to an act alleged to have constituted a mere subterfuge performed in bad faith for the purpose of circumventing, avoiding and evading the law. In that case the Supreme Court assumed original jurisdiction in a petition for a writ of mandamus involving the question as to whether the bank commissioner abused his discretion in declining to authorize the establishment of a branch bank at San Pedro on the ground that it was not for the “public convenience and advantage” to do so, as that term is used in the Banking Act (St. 1909, p. 88, § 9). The court said: “There is no showing herein, either by pleading or proof, of fraud, corruption, improper motives, or influences on the part of the respondent.”

In the absence of such an issue in that case it was properly said, in quoting with approval from Union Transportation Co. v. Bassett, 118 Cal. 604, 50 P. 754, that: “This court held that, when subordinate boards or commissioners were by statute invested with discretion with respect to the exercise of their powers, courts would not interfere with such discretion, in the absence of grave reasons tending to show that fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law had entered into or characterized the determination of such body.”

As suggested in the preceding quotation, when it appears that the act of an officer, board, or commission, abolishing a civil service position, was not performed in good faith, but that it was done arbitrarily with the purpose of circumventing and evading the law, then the act may not be considered a mere exercise of discretion. Such conduct is arbitrary, unauthorized, and will be vacated and set aside as void. It is contrary to the spirit of the Civil Service Act. Under such circumstances a peremptory writ of mandamus will issue reinstating a civil service employee who has been thus wrongfully and illegally displaced. Union Transportation Co. v. Bassett, 118 Cal. 604, 50 P. 754; Landsborough v. Kelly, 1 Cal.(2d) 739, 744, 37 P.(2d) 93, 96 A.L.R. 707; 16 Cal. Jur. 810, § 28; 38 C.J. 690, § 258.

It was the province of the trial court to determine under the pleadings in this case the motive of the appointive power which prompted the alleged abolishing of the office and the removal of the civil service employee. The trial court found that those acts were not done in good faith, but on the contrary that they constitute mere subterfuge performed with the unlawful purpose of circumventing and evading the Civil Service Act. There is substantial evidence to support those findings. That determination is, therefore, controlling on this court.

The judgment granting a peremptory writ of mandamus is affirmed.

PER CURIAM.