Gowanlock v. Turner

• Decision Date: 24 February 1954
• Citation: 267 P.2d 310,42 Cal.2d 296
• Parties: GOWANLOCK et al. v. TURNER et al. S. F. 18593, S. F. 18640.
• Court: California Supreme Court

Page 310

267 P.2d 310

42 Cal.2d 296

GOWANLOCK et al. v. TURNER et al.

S. F. 18593, S. F. 18640.

Supreme Court of California, In Bank.

Feb. 24, 1954.

Dion R. Holm, City Atty., San Francisco, and A. Dal. Thomson, Public Utilities Counsel, San Francisco, for appellants.

Lamson, Jordan & Walsh, San Francisco, for intervener and appellant.

Tobriner & Lazarus, Mathew O. Tobriner and Stanley H. Neyhart, San Francisco, for respondents.

EDMONDS, Justice.

Several employees of the municipal railway of the City and County of San Francisco, on behalf of themselves and all other employees similarly situated, sued for writs of mandate and for declaratory relief. Named as defendants are the manager of utilities of the public utilities commission, the members of the civil service commission and its secretary, and the controller. Joseph Robinson, on behalf of the taxpayers of the city and county, has filed a complaint in intervention in opposition to the employees' complaint.

By this action, the employees principally seek to obtain a determination as to their right to have work for certain minimum hours. One theory of the complaint, based upon section 125 of the charter of the city and county, is that every operating employee is entitled to receive compensation for a minimum of eight hours of work in each working day. An alternative theory is that section 151.3 of the charter, which establishes a method of computing wages based upon the wage schedules of certain other street railway systems, requires the consideration of any minimum wage guarantees included in such schedules.

According to the stipulated facts, the street cars and coaches of the municipal railway are operated over designated routes on schedules arranged by the manager of utilities and approved by the public utilities commission. These schedules have 'straight time' runs, which require the continuous services of an operator for a period which may be more or less than eight hours, and 'split time' runs, during which there is a period when the operator is off duty. 'Split time' runs vary in the number of hours worked as well as in their total elapsed time, termed 'range time', which generally is less than 10 hours. Work assignments are made on the basis of selection by the employees, in order of seniority.

It is necessary from the standpoint of satisfactory operation of the municipal railway and a usual practice among street railways throughout the country to employ more operators than there are runs. Standby employees must be available in case of absences and to handle unforeseen demands for increased transportation facilities. The employees who supply these needs are those who, for one reason or another, do not have a regular run.

An extra employee is assigned to the division headquarters he selects. He is required to report at a designated time to a dispatcher who assigns him to the run of an absentee, or to a location at which he collects fares from passengers as they board a car or bus. In the event that no work is available, the dispatcher may designate a later report time, or he may dispense with the employee's services for that day.

An operator who is given no work on a particular day is entitled to compensation for the time he spent in reporting. Although some of the men on the extra list do not have work for eight hours each day, it is the policy of the manager of utilities to assign duties to the extent that, throughout a period of two weeks, each employee shall have received compensation equivalent to the wages he would have earned had he worked 40 hours per week.

The present action primarily concerns these extra men. However, the complaint indicates that it is intended to present the rights of some of the operators assigned to regular runs of less than eight hours per day.

Five causes of action were pleaded. Two of them were determined adversely to the employees in the trial court and they are no longer in issue.

In the first count, based upon section 125 of the city charter, the employees seek a writ of mandate to compel the manager of utilities to approve and transmit to the civil service commission payrolls crediting each employee with a minimum of eight hours of work for each working day. By the fourth count, they ask the court to compel the civil service commission to certify to the board of supervisors a wage schedule which guarantees minimum wages and hours of employment for the operating personnel. The fifth count reiterates the allegations of the preceding ones and seeks a declaratory judgment in accordance with them. The appeal of the city officials and the intervener is from a judgment in favor of the employees upon each of these causes of action.

The appellants take the position that section 125 of the charter provides only a formula for the payment of overtime and does not establish maximum or minimum hours of work. Furthermore, they argue, the judgment is too uncertain in its terms to be capable of enforcement. The respondent employees are without standing to bring this action, the appellants also assert, and the city officials named in the judgment are not the proper parties against whom such a judgment may be given.

Since 1925, St.1925, p. 1164, section 125 of the charter has read in part as follows: 'Persons employed as platform men or bus operators in the operating department of the Municipal Railway system shall receive the following conditions of employment: The basic hours of labor shall be eight hours, to be completed within ten consecutive hours; there shall be one day of rest in each week of seven days; all labor performed in excess of eight hours in any one day or six days in any one week shall be paid for at the rate of time and one-half.' According to the respondents, this provision guarantees the employees eight hours of work within a range of 10 hours upon six days of each week, with pay for eight hours even if the work assignment is for less than that time on any particular day. The city contends that the only purpose of section 125 is to specify the rate of pay for all hours in excess of eight within 10 hours and for those worked after the expiration of 10 hours in any one day.

The charter provision does nothing more than to specify the basis of compensation for employees. It declares that overtime shall be paid for all work done after eight hours and also after the lapse of 10 hours of actual service. Labor performed in excess of six days in any one week must be paid for at the rate of time and one-half.

The requirements of a statute are directory, not mandatory, unless means be provided for its enforcement. The charter includes no means of enforcing the requirement that all labor performed in excess of eight hours in any one day, all labor performed after the span of 10 hours in any one day, and all labor performed in excess of six days in any one week 'shall be paid for at the rate of time and one-half.' No requirement is laid upon the city to pay for eight hours of work on a given day or 48 hours per week regardless of the duties performed.

The same construction was placed upon a federal statute which declared that 'eight hours shall constitute a day's work for all laborers, workmen, and mechanics now employed, or who may be hereafter employed, by or on behalf of the government of the United States'. Act of June 25, 1868, ch. 72, 15 Stat.L. 77. This legislation, said the court, constituted only a direction by the government to its agents, and not a prohibition of the making of contracts which fixed a different length of time for daily service; 'the government officer is not prohibited * * * from agreeing, when it is proper, that a less number of hours than eight shall be accepted as a day's work'. United States v. Martin, 94 U.S. 400, 403, 24 L.Ed. 128. A Massachusetts law was similarly interpreted. Woods v. City of Woburn, 220 Mass. 416, 107 N.E. 985.

The respondents rely upon Chatfield v. City of Seattle, 198 Wash. 179, 88 P.2d 582, 121 A.L.R. 1279; Goss v. Justice of District Court of Holyoke, 302 Mass. 148, 18 N.E.2d 546; and Graham v. City of New York, 167 N.Y. 85, 60 N.E. 331. The opinion in none of them states the language of the statute or ordinance being considered, and the court's conclusions necessarily were based upon the legislation before it.

In 1924 and 1925, when section 125 of the charter was amended, section 33 of article XVI declared: 'No deputy, clerk, or other employe of the city and county shall be paid for a greater time than that covered by his actual service.' ¹ It is reasonable to conclude that if the purpose of the proponents of the amendment was to change that basic provision, the new section would have so stated in no uncertain terms. The failure to do so shows a legislative intent to specify a basis of compensation for railroad workers not in conflict with the existing mandate of the charter prohibiting payment for service not performed.

Another provision of the old charter provided for the wages and hours of labor of employees of railroads which operated under franchises granted by the city and county. It read: 'Every franchise shall provide that employees of the person or company or corporation operating a street railroad shall be paid not less than three dollars a day and that eight hours shall be the maximum hours of labor in any calendar day, the same to be completed within ten hours; provided, that nothing in this section shall be construed to prohibit overtime employment, wages for such employment to be paid at one and one half times the said rate of wages proportionate to each hour of such extra service.' ² Art. III, ch. 2, § 7b. This section in clear and unmistakable terms specifies a minimum wage and maximum hours of work, overtime employment being allowed if paid for at time and one-half. With these requirements laid upon railways privately owned, the omission from the 1925 amendment of similar provisions in regard to the municipal railway may...