Galli v. Brown

• Decision Date: 07 May 1952
• Citation: 110 Cal.App.2d 764,243 P.2d 920
• Parties: GALLI v. BROWN et al. Civ. 14827.
• Court: California Court of Appeals

Page 920

243 P.2d 920

110 Cal.App.2d 764

GALLI v. BROWN et al.

Civ. 14827.

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

May 7, 1952.

Rehearing Denied June 6, 1952.

Hearing Denied June 26, 1952.

Norman Elkington, Thomas B. Larkin, Hancock, Elkington, Rothert & Low, all of San Francisco, for appellant Edmund G. Brown.

Dion R. Holm, City Atty., Wm. F. Bourne, Deputy City Atty., San Francisco, for cross-respondents.

Delany, Jarvis, Fishgold & Werchick and Martin J. Jarvis, all of San Francisco, for respondent and cross-appellant.

PETERS, Presiding Justice.

After demand on, and refusal by, the proper authorities to sue, Iola Galli, as a taxpayer, ¹ commenced these actions against the district attorney, the controller and treasurer of the City and County of San Francisco, to recover on behalf of the city the amount of salaries paid to two city and county employees, it being contended that the two employees were hired contrary to the provisions of the city and county charter. ²

The controversy involves the appointment by Edmund Brown, then the district attorney of the City and County of San Francisco, of Roger Garety and William Mullins, it being contended by Galli that both were employed as assistant attorneys in the district attorney's office illegally in that neither possessed the necessary qualification of two years' admission to practice law, as required by section 34 of the charter. ³ As to Garety, it was also contended that, when appointed, he had not been a resident of San Francisco for at least one year immediately prior to his appointment as required by section 7 of the charter. ⁴

The public officials involved defended on several grounds, one of the main defenses being that the two employees were not employed as assistant attorneys, but were lawfully employed as warrant and bond clerks pursuant to section 30 ⁵ of the charter, it being contended that such employees do not have to be admitted to practice law for two years prior to their appointment.

It is an admitted fact that neither Garety nor Mullins had been admitted to practice for two years prior to March 1, 1949 (the date of their appointments), each having been admitted to practice just a few months prior to his employment.

The trial court found that the employments were illegal, and entered its judgments against Brown and in favor of the City in the total sum of $6,460, the amounts admittedly received by Garety and Mullins as salary, and also awarded Galli, as against Brown, $2,500 attorney fees. So far as the controller and treasurer are concerned, the court found that they had allowed and paid the salary claims of Garety and Mullins in accordance with the charter provisions, and were not legally responsible for the illegal payments. Judgments were entered in their favor. Brown appeals from the judgments against him and from the orders denying his motions for a new trial. The last mentioned orders are non-appelable, and the appeals therefrom should be dismissed. Galli appeals from the judgments in favor of the controller and treasurer.

The Facts.

Early in 1949, Garety and Mullins, recently admitted to the bar, applied for positions in the district attorney's office. They were both told by Brown that, because of their lack of two years' experience, they could not be appointed assistant attorneys, but it was suggested that they might be appointed warrant and bond clerks. Each agreed to take such a position. Brown telephoned to Henderson, personnel director of the city and county and secretary of the civil service commission, told him that the two applicants had not been admitted for two years, and asked him if he, Brown, could appoint them bond and warrant clerks under the classification of 'K52 Junior Attorney, Criminal.' Henderson replied that the two applicants could be so appointed. Brown thereupon submitted to the civil service commission, on proper forms, proposed appointments of the two applicants, giving the class number and title of the positions as 'K52 Junior Attorney, Criminal (Bond and Warrant Clerk).' The words in parenthesis are not found in the salary standardization ordinance or in the civil service classification, but were added by Brown to indicate that the two proposed employees were being hired as clerks in the warrant and bond office and not as assistant attorneys in the district attorney's office. Henderson, for the civil service commission, Ross, as controller, and the mayor's office approved the applications. The two appointees started to work on March 1, 1949. These actions were filed in November of 1949.

Between March and November the two employees worked in the warrant and bond office. Both accepted bail pursuant to a schedule prepared by the judges; they released prisoners who produced bail; they heard complaints and determined whether citations should issue; they conducted citation hearings and warrant hearings, consulting superiors in all but the clearest cases; and they processed complaints and warrants. Both occasionally advised city, county and state officials as to the proper charges to be filed. On a few occasions, fifteen as to Garety, eighteen as to Mullins, on the instructions of the deputy in charge of the warrant and bond office, each appeared at afternoon sessions of the traffic court as the representative of the district attorney's office, calling the calendar, occasionally questioning witnesses and informing defendants of their legal rights. Twice Garety appeared in the Superior Court to sit, observe, and assist the regular deputy district attorney assigned to that court. Apparently, the traffic court appearances were caused by shortage of personnel in the district attorney's office during vacation periods.

In addition to signing the appointment applications, Brown, as appointing officer, certified that the persons to be appointed were citizens and residents as required by section 7 of the charter. It is admitted that Mullins possessed these qualifications, but it is contended, and the trial court found, that Garety did not possess the residence requiement in that he had not been a resident of San Francisco for one year immediately prior to his appointment.

The facts in reference to Garety's residence are not in serious dispute. He was born in San Francisco and resided here, except for a few months, until he entered the army during the last war. His father was a city employee, and had so worked for many years. Garety was discharged from the army in 1946. He was then married and had one child. He was unable to find, within his means, a place to rent in San Francisco. His parents, who live in San Francisco, purchased a crib for the baby and a bed for Garety and his wife, and the young Garetys moved in with the elder Garetys. The parents of the wife of young Garety live in Oakland, and they too offered the young couple and their child emergency accommodations. Young Garety was attending a night law school in San Francisco, and got a day job in Oakland as a playground director.

Garety testified that during the one-year period prior to March 1, 1949, he and his family used both the San Francisco home of his parents and the Oakland home of his wife's parents as their residence, and that they spent about half of their time in each place. Week ends, starting Friday nights, holidays, and a few weeknights were spent in San Francisco, while the balance of the time was spent in Oakland.

Garety secured a job as a playground director in Oakland, and registered to vote and did vote in Alameda County. In January of 1949, after passing the bar examination, he found a place to live in San Francisco, rented it, moved here with his family, changed his voting registration to San Francisco, and has lived here ever since. When he was interviewed by Brown in February, 1949, he was in fact and in law a resident of San Francisco. Brown asked Garety where he lived, and was told San Francisco. Brown also made inquiry of the two persons who had recommended Garety for the appointment and was told that Garety had lived in San Francisco all of his life, and that Garety's father was an employee of the city.

Pertinent Charter Provisions, Ordinances, etc.

In addition to the portions of the charter already set forth, there are other provisions that should be mentioned. Section 25 through section 34 deals with the 'Powers and Duties of Elective Officers.' Each office is treated separately. Section 25 deals with the mayor; section 26 with the city attorney; section 27, already quoted, with taxpayer's suits; section 28 with the assessor; section 29 with the district attorney; section 30, quoted above, with the warrant and bond office; section 31 with the treasurer; section 32 with the sheriff; section 33 with the public defender; and section 34, above quoted, with assistants and employees in elective offices.

There is no doubt that the charter makes a distinction between the district attorney's office as such, and the warrant and bond office. Section 29 fixes the salary and qualifications of the district attorney and then provides 'He shall appoint, and at his pleasure may remove, all assistants and employees in his office.' That means assistants and employees in the district attorney's office appointed under section 29. Section 29 also provides: 'The district attorney, either in person or by his assistants, shall prosecute all criminal cases in the municipal and superior courts, draw all complaints, and issue warrants for the arrest of persons charged with crime who are to be prosecuted in such courts.'

Section 30, a portion of which has already been quoted, refers to the warrant and bond office. After providing that there shall be such an office presided over by a deputy appointed by the district attorney, and that such deputy must be admitted to practice law (but for no time period) the section continues:

'The warrant and bond deputy shall keep his office open continuously night and day...