Tevis v. City and County of San Francisco

• Citation: 43 Cal.2d 190,272 P.2d 757
• Parties: TEVIS et al. v. CITY AND COUNTY OF SAN FRANCISCO et al. S. F. 18624.
• Decision Date: 02 July 1954
• Court: United States State Supreme Court (California)

Page 757

272 P.2d 757

43 Cal.2d 190

TEVIS et al. v. CITY AND COUNTY OF SAN FRANCISCO et al.

S. F. 18624.

Supreme Court of California, In Bank.

July 2, 1954.

Dion R. Holm, City Atty., Bernard J. Ward and Jack G. McBride, Dep. City Attys., A. Dal Thomson and Thomas M. O'Connor, Public Utilities Counsel, San Francisco, for appellants.

Delany, Fishgold & Minudri and Molly H. Minudri, San Francisco, for respondents.

EDMONDS, Justice.

Twenty-three former employees of the municipal railway of the City and County of San Francisco seek a writ of mandate to compel certain city officials to allow them vacation pay for two calendar weeks. Their petition, on behalf of themselves and all other employees similarly situated, names as defendants the city and county, the members of the public utilities commission and its manager, the secretary of the civil service commission, the controller, and the treasurer of the city and county.

Prior to 1950, it was the practice of the city and county to grant to each municipal employee an annual vacation of two weeks, with pay, in accordance with section 151 of its charter and sections 375 to 380 of Part I of its municipal code. In Adams v. City and County of San Francisco, 1949, 94 Cal.App.2d 586, 211 P.2d 368, 371, 212 P.2d 272, it was held that when wages of municipal employees were fixed under section 151.3 of the charter at the rate of pay 'generally prevailing for (similar) groups or crafts in private employment in San Francisco pursuant to collective bargaining agreements,' vacation rights also should be governed by the provisions of such collective bargaining agreements.

The petitioners were members of a group of employees whose wages were fixed by collective bargaining agreements which made no provision for paid vacations. After the Adams case was decided, vacations for those employees were discontinued. They received no paid vacation for the fiscal year of 1949-1950.

Section 151.4 ¹ of the charter, concerning vacation rights, was enacted while the Adams case was pending and became effective January 1, 1951. At an election held on June 6, 1950, the voters of the city and county approved a proposed charter amendment which, after legislative approval, became effective on September 26, 1950, as section 151.5 ² of the charter. An argument accompanying the measure and urging its approval stated that it was submitted on behalf of a small group of city employees who, because of a 'legal technicality via court action', were deprived of the vacation rights previously given to them. Its purpose was 'to clarify existing vacation rights granted all other City Employees and thereby have restored the same vacation privileges enjoyed by all other departments within the City Government'.

A short time after the election but before section 151.5 became effective, the petitioners lost their positions because of a reduction in force. In accordance with the amendment, all employees in the municipal service, whose right to paid vacations during 1948, 1949, and 1950 had been disallowed because of conflicting collective bargaining agreement provisions, were given payment or compensating time off equal to two weeks of paid vacation in each of those years. However, no payment was made to the petitioners or to others whose employment was terminated before the effective date of section 151.5.

The trial court made findings in accordance with the foregoing statement of facts and concluded that each of the petitioners is entitled to receive wages for two weeks as vacation pay. By peremptory writ of mandate, the city officials, and in particular the members of the public utilities commission, the secretary of the civil service commission, and the controller, were directed to certify and approve payrolls and timerolls setting forth the petitioners' right to receive the amounts to which each is entitled and to pay those amounts. The appeal is from that judgment.

The city officials contend that section 151.5 should be construed as conferring vacation rights upon only those persons who were employees when it became effective and performed services after that time. Another argument is that, even if the petitioners properly may claim the right to receive vacation pay, mandate is not a proper remedy.

By its express terms, the amendment did not become effective until approved by the Legislature, at which time the petitioners' employment had been terminated. The city officials rely upon that provision as stating the intention of the framers of the amendment to give the enactment only prospective application. The petitioners take the position that the only purpose of stating the effective date of the new section is to fix a time from which payments for vacations should be calculated.

A charter amendment may specify the time at which it shall become effective as municipal law, but such an enactment may also fix an operative date from which the rights and duties arising under the new provision are to be measured. Williams v. City of Vallejo, 36 Cal.App. 133, 171 P. 834, and Callahan v. City & County of San Francisco, 68 Cal.App.2d 286, 156 P.2d 479, construed charter amendments which clearly indicated that the rights created were to be measured at a time differing from the amendment's adoption. Accordingly, the principal issue under the amendment here in controversy is whether it demonstrates an intent to allow the employees pay for vacation in connection with services performed prior to its effective date.

It is well established that statutes and other enactments should not be given a retrospective operation unless the legislative intent to do so is clearly apparent. Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 393, 182 P.2d 159. However, by its express terms, section 151.5 provides that it shall have some retrospective application. Subsection (c) states: 'All vacation payments heretofore made to employees * * * are hereby deemed to have been earned and the payments therefor are hereby ratified and validated, and for all services rendered by employees during the calendar years 1948, 1949 and 1950 vacations shall be granted and paid pursuant to the terms of (sections 375 to 380, inclusive of Part I) the Municipal Code.' The clear purpose of this provision is to validate payments made for vacations to which employees were not entitled under collective bargaining agreements. It also authorized the city to pay for vacation time in employment where, because of such agreements, no vacation pay was allowed.

In fixing the method in which vacations are to be computed, section 151.5 makes reference to sections 375 to 380 of Part I of the Municipal Code. ³ Because section 375 allows an annual vacation to an employee 'as long as he remains in the City and County service', the city officials argue, the reference to that section in the charter amendment indicates an intent to make continued service a condition precedent to payment of vacation pay.

Section 375 does not concern the length of, or payment of compensation for, annual vacations, but merely defines the employee's right to receive them. The limitation as to the time of employment serves two purposes. It insures to an employee that his right to an annual vacation will continue throughout his service with the city and county; it also prevents him from claiming the right to such a vacation for any year after the termination of his service. But separation from service should in no way affect his right to receive pay for accrued vacation rights. In an analogous situation, it has been held that, in the absence of a clear indication of a contrary statutory intent, an employee's separation from governmental service should not prevent him from receiving the cash equivalent of vacation rights accrued to him for services rendered prior to his separation. Pohle v. Christian, 21 Cal.2d 83, 89-90, 130 P.2d 417.

Subsection (c) of section 151.5 states that 'for all services rendered by employees during the calendar years 1948, 1949 and 1950 vacations shall be granted and paid pursuant to the terms of said sections of the Municipal Code.' By express terms, the statute granted vacation rights retroactively as compensation for services performed during those years. As stated in the argument accompanying the proposed measure, it was enacted to remedy the injustice which resulted when employees were deprived of vacation rights because of restrictive provisions in the controlling collective bargaining agreements. Certainly those persons whose employment was terminated before they could enforce their vacation rights should be in no different position from the employees who continued in the service of the city and county. It is more logical to conclude that the reason for the charter amendmant's reference to other sections of the municipal code is to provide a method of computing the amount of vacation pay to which the employee is entitled. Section 376, the principal section dealing with the computation of vacation payments, makes no requirement of continued service to entitle an employee to receive pay for accrued vacation rights, nor does any other section dealing with such computations. In the absence of a more explicit statement to the contrary, it is unreasonable to conclude that the framers of the charter amendment, by reference to those sections, intended to make continued service a condition precedent to receiving payment of vacation pay as a reward for services previously performed.

The appellants take the position, however, that a retroactive application of the charter amendment to allow payments to the petitioners would be a gift of public funds or a grant of extra compensation in violation of provisions of the State Constitution. Cal.Const. art. IV, §§ 31, 32. The petitioners point out that the city and county is governed by a freeholder's charter, Cal.Const. art. XI, § 8, and argue that extra compensation of municipal employees is a...