Kinnear v. City and County of San Francisco

• Decision Date: 28 May 1964
• Citation: 38 Cal.Rptr. 631,392 P.2d 391,61 Cal.2d 341
• Parties: , 392 P.2d 391 William J. KINNEAR, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. S. F. 21218.
• Court: California Supreme Court

Page 631

38 Cal.Rptr. 631

61 Cal.2d 341, 392 P.2d 391

William J. KINNEAR, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

S. F. 21218.

Supreme Court of California, In Bank.

May 28, 1964.

Thomas M. O'Connor, City Atty., and R. J. Reynolds, Deputy City Atty., for defendant and appellant.

James D. Hadfield and Leo Fried, San Francisco, for plaintiff and respondent.

GIBSON, Chief Justice.

Plaintiff, who held a permanent civil service position as a deputy in the sheriff's department of the City and County of San Francisco, filed on September 16, 1959, a declaration of candidacy for election to the office of sheriff of San Francisco and he was notified on the same day by the Civil Service Commission that as a result of his filing for the office of sheriff his position was automatically forfeited under section 5 of the San Francisco charter. A few days later he withdrew his accumulated contributions to the retirement fund, and this action was filed one year after his dismissal.

Section 5 of the charter provides: 'Any appointive officer or employee of the city and county who shall become a candidate for election by the people to any public office shall automatically forfeit such city and county office or position.'

The trial court concluded that section 5 is unconstitutional, ordered that plaintiff be restored to his position, and awarded him damages in an amount representing the difference between the compensation he would have received if not dismissed and his carnings from other employment after dismissal.

We find untenable defendant's contention that plaintiff is barred from relief by laches or estoppel. In accordance with defendant's representation to plaintiff that the forfeiture of his position was automatic under section 5 of the charter, the trial court found that plaintiff believed and was entitled to believe that the section was self-executing. Plaintiff's belief was shared by the framers of the charter, the people who adopted it, and the officials of defendant who enforced it, and under all the circumstances we cannot properly hold that the trial court erred in finding that the delay of one year in bringing the action was not unreasonable.

A determination as to whether section 5 of the charter is an unconstitutional abridgment of a fundamental right is governed by the principles discussed in Fort v. Civil Service Commission of the County of Alameda et al., Cal., 38 Cal.Rptr. 625, 392 P.2d 385. We there held unconstitutional for overbreadth and uncertainty a charter provision which restricted nonpartisan as well as partisan political activities and applied not only to county elections but to all electons, and which was not narrowly drawn but was framed in general and uncertain terms that excepted only the right to vote and to express opinions privately. Although the San Francisco charter provison is not uncertain and is directed solely to the activity of seeking public office, it is no less subject to the criticism that it relates alike to all public offices,...