Acton v. Henderson

Decision Date09 April 1957
Citation309 P.2d 481,150 Cal.App.2d 1
CourtCalifornia Court of Appeals Court of Appeals
PartiesWilliam B. ACTON, Petitioner, v. William L. HENDERSON, as Secretary to the Civil Service Commission and as Personnel Director of the City and County of San Francisco, and Harry D. Ross, as Controller of the City and County of San Francisco, Respondents. Walter HEIL, Petitioner, v. William L. HENDERSON, as Personnel Director of the City and County of San Francisco, State of California, and Harry D. Ross, as Controller of the City and County of San Francisco, State of California, Respondents. Thomas A. BROOKS, Petitioner, v. William L. HENDERSON, as Secretary to the Civil Service Commission and as Personnel Director of the City and County of San Francisco, and Harry D. Ross, as Controller of the City and County of San Francisco, Respondents. Gertrude H. Downing, Intervener. Civ. 17629, 17654, 17642.

J. Joseph Sullivan, San Francisco, for petitioner Acton.

Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, for petitioner Brooks.

McEnerney & Jacobs, Garrett McEnerney II, Justin M. Jacobs, E. John Kleines, San Francisco, for petitioner Heil.

Dion R. Holm, City Atty. of City and County of San Francisco, Norman Sanford Wolff, Deputy City Atty., William F. Bourne, Deputy City Atty., Jerome Cohen, Deputy City Atty., San Francisco, for respondents.

John J. Fahey, Jr., Daly City, for Gertrude H. Downing, intervener.

John J. Fahey, Jr., Daly City, H. Ward Dawson, Jr., J. Edward Fleishell, San Francisco, M. Mitchell Bourquin, San Francisco, amici curiae in support of respondents.

PETERS, Presiding Justice.

These three petitions for mandamus have been consolidated for consideration. Each prays that this court compel respondents, who are the appropriate officials of the city and county, to take the steps necessary to pay the salary claimed to have been earned by each petitioner as an employee of the city and county. The petitioners are Thomas A. Brooks, the chief administrative officer of the city and county, Williams B. Acton, principal attorney in the office of the district attorney, and Walter Heil, director of the M. H. de Young Memorial Museum. The respondents are William L. Henderson, personnel director and secretary to the Civil Service Commission who must approve all payrolls, and Harry D. Ross, controller of the city and county, who pays only those payrolls approved by Henderson. Gertrude H. Downing, a taxpayer, has been permitted to intervene in the Brooks case, and to appear as an amicus curiae in the other two proceedings. Also appearing as an amicus curiae is Local 747 of the American Federation of State, County and Municipal Employees, who appears in opposition to petitioner Brooks, and in opposition to petitioners Acton and Heil appears the Civil Service Association of San Francisco. It was stipulated at the oral argument that the amici curiae could be considered as interveners in all of the actions so as to permit them to raise any legal questions that could be raised only by the parties to the actions.

The controversy is simple to state. Under the terms of several ordinances passed by the supervisors of the city and county, the three petitioners, just prior to the dates they would have been compelled to retire under the charter, resigned from the positions they then occupied, withdrew their contributions from the local retirement system, and were then reappointed by the proper authorities to the positions they formerly occupied. As such reappointed officials they did not become members of the retirement system. In July of 1956 Gertrude H. Downing, the taxpayer who appears here as an intervener and amicus curiae, brought an action in the local Superior Court against the supervisors, Brooks, Henderson and Ross, challenging the validity of the ordinances in general and the reappointment of Brooks in particular. Henderson and Ross, who, under the provisions of the charter are personally liable for authorizing improper payments of salary, took the position that they should not approve and pay the salaries of any of the three petitioners until the validity of the ordinances involved was determined. In January of 1957, the trial court in the Downing case rendered an opinion adverse to petitioners holding the challenged ordinances to be in violation of the charter. The findings and judgment in that case have not, as yet, been entered. Petitioners then individually instituted these three mandamus proceedings.

In these mandamus proceedings the petitioners and respondents agree and urge that the ordinances involved do not violate the charter, and so are in agreement that the writs should issue. The respondents resist payment only to protect themselves in the event the ordinances are invalid. The intervener and amici curiae, however, vigorously contest the validity of the ordinances in question, so that the proceedings are adversary in nature.

All three petitioners assert that the ordinances involved are valid. If so, the writs should issue in all three cases. Petitioner Heil raises another point applicable only to himself, but this point need not be considered because of our conclusion that the challenged ordinances are valid.

At the inception of these proceedings we are met by the contention of intervener that mandamus is not a proper remedy. It is claimed that there is a speedy and adequate remedy by way of appeal in the taxpayer's suit, and that mandamus will not lie to enforce a claim for wages by a municipal employee. Coombs v. Smith, 17 Cal.App.2d 454, 62 P.2d 380. But these rules are not absolute, and not jurisdictional. The appellate court has considerable discretion in determining whether to entertain such proceedings. The appeal from the Superior Court judgment, once it is entered, would be neither speedy nor adequate. It involves only petitioner Brooks. Neither Acton nor Heil is a party to that action, and both differ from Brooks in certain respects in employment status and relationship to the retirement systems. An appeal in the Brooks case would not necessarily determine their rights, and would require one or two more lower court actions before the controversy could be finally settled. In these consolidated proceedings in mandamus all relevant questions can be settled, thus preventing a multiplicity of actions. But even of greater importance is the public interest involved. While the appellate court will not ordinarily entertain an original proceeding in mandamus to determine the validity of wage claims, that rule has no application where the public interest is such as to require a speedy determination of the controversy. Hollman v. Warren, 32 Cal.2d 351, 196 P.2d 562. Directly in point is Tevis v. City & County of San Francisco, 43 Cal.2d 190, 272 P.2d 757, which, while recognizing the general rule that wage claims should normally be litigated in an action at law, held that such rule should not be applied when the public interest required a speedy determination by an appellate court. At page 198 of 43 Cal.2d at page 762 of 272 P.2d, the court stated: 'In a few situations involving claims by state or municipal employees for wages the general rule has been relaxed. For the most part, these cases concern disputes as to the proper construction of a statute or ordinance defining or giving rise to the exercise of official duty, and, although recognizing that the ultimate effect of a decision may be to adjudicate a money claim, they emphasize the necessity of official cooperation and the ministerial nature of the official acts involved.' See also City and County of San Francisco v. Boyd, 22 Cal.2d 685, 140 P.2d 666; Scannell v. Murphy, 82 Cal.App.2d 844, 187 P.2d 790.

In the instant cases the public welfare requires that the dispute here involved be speedily determined. This being so, in the exercise of our discretion, and in the interests of justice, we have decided to entertain these proceedings.

As already pointed out, the primary point involved is the validity of certain ordinances adopted by the Board of Supervisors of the city and county of San Francisco. The effect of these ordinances was to amend section 221 of the local Municipal Code to read as follows:

'Sec. 221. With the exception of those employees who are excluded from membership as provided in Section 222, of this Article, all employees shall become members of the Retirement System as follows:

* * *

* * *

'(c) * * * provided that attorneys and physicians in non-Civil Service positions who resign and withdraw their contributions from the Retirement System within sixty (60) days of the date upon which they would normally be required to retire because of age, shall not become members of the Retirement System at any later date if they are subsequently appointed to non-Civil Service positions for employment in their professional capacity to perform duties included within their professions, but exclusive of any administrative or executive positions for which such professional status constitutes only part of the qualifications therefor; and further provided that any persons occupying the position of director of any art gallery or memorial museum of the city and county who resign and withdraw their contributions from the Retirement System within sixty (60) days of the date upon which they would normally be required to retire because of age, shall not become members of the Retirement System at any later date if they are subsequently appointed to the position of director of any art gallery or memorial museum of the city and county; and further provided that any person occupying the office of Chief Administrative Officer who resigns and withdraws his contributions from the Retirement System within sixty (60) days of the date upon which such person would normally be required to retire because of age, shall not become a member of the Retirement...

To continue reading

Request your trial
20 cases
  • McDonald's Systems of California, Inc. v. Board of Permit Appeals
    • United States
    • California Court of Appeals
    • 15 Enero 1975
    ...98 Cal.Rptr. 576; Currieri v. City of Roseville (1970) 4 Cal.App.3d 997, 1001 and 1003, 84 Cal.Rptr. 615; and Acton v. Henderson (1957) 150 Cal.App.2d 1, 13, 309 P.2d 481.) Before construing section 3.651 as a limitation on the power of the board of supervisors to provide procedural rules f......
  • Thompson v. Mellon, S.F. 22984
    • United States
    • United States State Supreme Court (California)
    • 16 Marzo 1973
    ...... Page 30 . [507 P.2d 638] upon counties and cities, including charter cities (Acton v. Henderson (1957) 150 Cal.App.2d 1, 18, 309 P.2d 481), has long been applied to invalidate discriminatory legislation involving the right to seek ......
  • Petersen, In re, Cr. 6215
    • United States
    • United States State Supreme Court (California)
    • 31 Octubre 1958
    ...applies to and constitutes a restraint upon boards of supervisors of counties (In re Blois, 179 Cal. 291, 176 P. 449; Acton v. Henderson, 150 Cal.App.2d 1, 18, 309 P.2d 481). It has also been construed to mean 'equal burdens' as well as 'equal privileges.' Watson v. Division of Motor Vehicl......
  • ASSOC. GEN. CONTRACTORS v. CITY & CTY. OF SAN FRAN.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 7 Agosto 1985
    ..."lowest, reliable and responsible bidder". While an ordinance is invalid if it conflicts with a city's charter, Acton v. Henderson, 150 Cal.App.2d 1, 13, 309 P.2d 481, 487 (1957), we reject plaintiffs' contention that the Ordinance (to the extent it concerns public works contracts exceeding......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT