Welch v. City of Long Beach

• Decision Date: 04 March 1952
• Citation: 241 P.2d 26,109 Cal.App.2d 561
• Court: California Court of Appeals Court of Appeals
• Parties: WELCH et al. v. CITY OF LONG BEACH et al. Civ. 18492.

Page 26

241 P.2d 26

109 Cal.App.2d 561

WELCH et al. v. CITY OF LONG BEACH et al.

Civ. 18492.

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

March 4, 1952.

Hearing Denied May 1, 1952.

Kenneth Sperry, Long Beach, for appellants.

Irving M. Smith, City Atty., Clifford E. Hayes, Deputy City Atty., Long Beach, for respondents.

DORAN, Justice.

The appellants filed this action for declaratory relief and requested the court to determine that appellants had acquired civil service status as Inspectors in the Police Department of the City of Long Beach and were entitled to the salary attached to that rank. The trial court found against such contentions.

Under Civil Service regulations appellants had qualified for and had been employed by the City as patrolmen in the Police Department. Each of the appellants had, on July 31, 1947, taken and passed a promotional examination for the position of Inspector, which examination resulted in a promotional eligible list upon which appellants' names were given, respectively, the 12th, 14th, 15th and 17th places. All promotions to the position of Inspector were required to be filled by the appointment of the person next in line therefor on this list.

The trial court found that 'under the terms of the salary ordinance then in force and effect, eighty (80) positions of Inspector were created, but the City Manager at no time authorized the filling of more than thirty-six (36) positions of Inspector; that under the provisions of the City Charter * * * the sole power of making appointments to fill positions in the Police Department * * * was vested in the City Manager'.

It was further found that in 1947-48 the Chief of Police had 'assigned plaintiffs and each of them to work in the Detective Bureau of the Police Department', and that 'thereafter plaintiffs were referred to as 'Acting Inspectors'; that the salary ordinance did not create any position designated as 'Acting Inspector'; that the foregoing assignments and each of them were necessary to carry on the work load of the Detective Bureau; that at the time of their respective assignments, plaintiffs were then respectively next in line for appointment to the position of Inspector upon the promotional eligible list for said position, assuming that a sufficient number of appointments had been made to carry on the work load of the Detective Bureau; that after said assignments, plaintiffs and each of them performed substantially the same type of work and duties as were performed by the regularly appointed inspectors while working on the same shifts'.

It appears, and the trial court so found, that the Chief of Police had informed the City Manager that additional inspectors were necessary but that the City Manager failed and refused to appoint more than thirty-six inspectors, the reason given being an alleged lack of funds, although 'in truth and in fact there existed, and has continued to exist at all times, sufficient funds * * * to have defrayed the expense of such additional appointments as were necessary to carry the work load of the Detective Bureau', but that 'the City Manager was under no legal duty to make said appointments.'

It is contended by appellants that 'the essential facts as found by the trial court are contrary to the conclusions drawn therefrom and hence provide no support for the judgment'; that the trial court erred in determining that the City Manager was under no legal duty to make a sufficient number of promotional appointments to the position of inspector to carry on the work load; and that 'Plaintiffs' right to appointment being solely dependent upon their standing upon the promotional eligible list may not be defeated by the failure of the city manager to perform his ministerial duties in this regard'.

As phrased by respondents, appellants' position is that 'actual vacancies existed in the position of Inspector * * * for the reason that sufficient Inspectors had not been appointed'; and that 'had the City Manager appointed sufficient Inspectors to perform the work load * * * the names of the appellants would have been reached for certification from the eligible list, and that appellants would have been appointed'; that since appellants had worked as 'Acting Inspectors' for more than six months, 'appellants had acquired permanent status as Inspectors and were entitled to the pay fixed for said position. The respondents submit that the trial court correctly held that appellants had not acquired civil service status as Inspectors; that the City Manager was not required to appoint appellants to fill such positions, and that appellants have been paid in full for their services.'

Appellants' contention that the trial court's findings are contrary to and fail to support the judgment is without merit. As set forth in respondents' brief, it is evident that the appellants have not correctly analyzed the findings or the issues involved. The trial court did not find that any actual vacancies existed in the position of Inspector, and expressly found that appellants 'were never appointed to the position of Inspector by the City Manager'; 'that the sole power of making appointments * * * was vested in the City Manager'; that notwithstanding assignments by the Chief of Police to the Detective Bureau and the use of the term 'Acting...