CHILDRESS v. PETERSON (1941)

Plaintiffs brought this action against the city of San Diego and a number of its officers and agents seeking a writ of mandate to compel their reinstatement to the positions of policewomen of that city and to compel the payment of their salaries from and after July 15, 1939. During the trial plaintiffs dismissed the portions of the complaint under which their salaries were sought to be recovered prior to the filing of the complaint on November 29, 1939.

Several years prior to July 15, 1939, plaintiffs had reached the status of classified employees of the city of San Diego and had come within the protection of its civil service rules and regulations. (See art. VIII, Charter of San Diego, Stats.1931, pp. 2838, 2906.)

The fiscal year of the city of San Diego commences on July 1st, and ends on June 30th of the next year. It is the duty of the city manager to file his budget for each fiscal year before the first meeting of the city council in May. The then city manager, Robert W. Flack, filed such a budget on May 2, 1939.

There had been an election in San Diego and several new members of the city council took office on, or prior to May 8, 1939. F.A. Rhodes was appointed city manager. He took office on June 1, 1939, supplanting Flack. The councilmen instructed Rhodes to prepare a budget that would reduce the city expenditures by $500,000. He submitted his budget on June 16, 1939. Section 71 of the charter prohibits the city council from increasing any budgeted item but permits a reduction of any of them.

Both the Flack and the Rhodes budgets contained an appropriation to pay the salaries of five policewomen.

On June 13, 1939, the city council passed Ordinance Number 1611, New Series, “* creating and establishing certain positions in the service of the City of San Diego. *” This ordinance repeated the provisions for the creation of positions for eight policewomen, which was the same number provided for in several prior ordinances. It is admitted that this ordinance, and others preceding it, created many positions that were not filled. These provisions were made to take care of any emergency that might arise after the passage of the ordinance. San Diego had never employed more than six policewomen, and just prior to June 1, 1939, there were five in the service.

The duties of the policewomen were largely to supervise dine and dance establishments, to prohibit minors from entering such places or being served with intoxicants there, and to regulate the conduct of a certain class of women.

In the interest of economy, the council, in considering various items in the budget, decided to dispense with the services of the policewomen and to try the experiment of having the dine and dance places supervised by policemen accompanied by police matrons. It is clear from the evidence that it was the intention of the majority of the councilmen to effect a saving by reducing the budgeted appropriation for salaries of those employed in the police department, and by such reduced appropriation to dispense with the services of all policewomen. Whether or not they accomplished that purpose is the important issue in this case.

The budget ordinance appropriating money with which to pay the cost of the various departments of the city was passed on July 5, 1939. It appropriated for the police department, to pay for “personal service, $345,560.50”. An additional $165,000 from certain specified revenues was appropriated for the same purpose. Thus there was appropriated $510,560.50 to pay the salaries of police department employees. These appropriations were general in their terms and there is nothing on the face of the ordinance to indicate that the money was to be used to pay any particular class of employees or that policewomen were not to be paid out of these funds.

Counsel for both parties argue many questions in their briefs with sincerity, force and logic. They support their arguments with generous citations of authorities. But when we strip the case of nonessentials and leave out of consideration several hundred pages of the transcript treating with immaterial collateral matters, the issue presented for decision is simple. It may thus be stated: Did the city council, by its appropriation ordinance, accomplish its declared purpose of dispensing with the services of the policewomen then employed by the city, who were within the protection of the civil service, by failing to appropriate money with which to pay their salaries?

In approaching this question we will assume, without holding, the soundness of practically all the arguments advanced by defendants; that it was the honest and praiseworthy intent of the councilmen to reduce the expenditures of the city; that as one step toward accomplishing this purpose they intended to dispense with the services of all policewomen by not appropriating any money for their salaries; that in this they were not actuated by any bad motives but were honestly and sincerely attempting to reduce taxes; that the discharge of an employee within the civil service can be accomplished by failing to appropriate money for his salary.

The decision of the whole problem lies in the answer to the question: Was the money directly appropriated for salaries of those in the police department (together with other money appropriated that could be lawfully used for that purpose) sufficient to pay plaintiffs' salaries? If it was sufficient it would seem that the councilmen failed to carry their purpose into effect, for the only means used to accomplish that intent was the ordinances they passed. The mere intent to eliminate the policewomen was not sufficient to effect their discharge. In addition, there must have been some official action to give effect to that intent. The only action taken was the passage of Ordinance Number 1611, New Series, on June 13, 1939, and the budget ordinance on July 5, 1939. That Ordinance Number 1611 did not accomplish that purpose is clear from its terms. It created positions for eight policewomen. That the budget ordinance failed to give effect to that intent is rather clear from the evidence.

As we have seen, the budget ordinance appropriated $510,560.50 to pay the salaries of employees of the police department. The deputy auditor of San Diego testified that between July 1, 1939, and January 31, 1940, both inclusive, there had been expended for that purpose, $292,285.86, leaving an unexpended balance in this salary fund of $218,274.64. If the monthly expenditures for salaries during the last five months of that fiscal year remained at the same average level as they were during the first seven months there would remain in this fund an unexpended balance of over $9,000. The same witness testified that on January 31, 1940, there remained $25,932.89 in the unappropriated balance of the general fund. This was evidently the unexpended balance of a budget appropriation of $150,000, designated in the ordinance as “unappropriated balance”. Under subdivision “h” of section 69 of the charter, it is provided that the “ ‘unappropriated balance, * shall be available for appropriation later in the fiscal year to meet contingencies which might arise”. It seems clear that this balance of $25,932.89 was available for appropriation to cover shortages in any other fund, including the salary fund of the police department.

Plaintiffs each received a salary of $157 per month. Under the judgment they will receive their salaries from November 29, 1939, the date of the commencement of this action, to March 29, 1940, the date of the rendition and entry of judgment.

From the evidence of the deputy city auditor it seems too clear to permit of serious argument that, after paying all other salaries of the employees of the police department for the entire fiscal year, there will remain in the fund directly budgeted for that purpose, more than sufficient to pay the salaries of plaintiffs for the period here involved without drawing upon the “unappropriated balance”. It also seems clear that the councilmen failed to put into effect their purpose of causing the dismissal of plaintiffs by reducing the salary appropriations to an amount where the salaries of plaintiffs could not be paid. That being true, it follows that plaintiffs were not removed from their civil service positions, there having been no other action taken which could possibly result in their dismissal.

It is not necessary to consider the payment of plaintiffs' salaries between July 15, and November 29, 1939, and after March 29, 1940, as those questions are not here directly involved. Any questions as to the payment of salaries for those periods should be determined if and when they arise and not before. See Buck v. City of Eureka, 119 Cal. 44, 50 P. 1065; Buck v. City of Eureka, 124 Cal. 61, 56 P. 612; Higgins v. City of San Diego Water Co., 118 Cal. 524, 45 P. 824, 50 P. 670.

Defendants complain of rulings overruling their objections to many questions asked by counsel for plaintiffs and in sustaining objections to evidence offered by them. There is considerable merit in many of their arguments. However, because of the view we take of the case those errors cannot be regarded as prejudicial. The erroneously admitted evidence has had no influence on this decision and we have disregarded it in its entirety. Some of the excluded evidence was cumulative. We have assumed the facts sought to be established by some other portions of the excluded evidence. We cannot reverse the judgment because of such errors. § 41/212, art. VI, Const.

The judgment is affirmed.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.