text:
    [Sac. 5265.
    In Bank.
    January 30, 1939.]
    EDGAR D. FARNEY, Appellant, v. THE STOCKTON PORT DISTRICT et al., Respondents. EDGAR D. FARNEY, Petitioner, v. THE STOCKTON PORT DISTRICT et al., Respondents.
    [S. F. No. 16132.
    In Bank.
    January 30, 1939.]

      Gumpert & Mazzera and J. Calvert Snyder for Appellant and Petitioner.
    Louttit, Marceau & Louttit for Respondents.
   WASTE, C. J.

The above-entitled proceedings were separately commenced by the petitioner seeking writs of mandate to compel the respondent Port District and its Board of Port Commissioners to take certain action, hereinafter to be specified, in connection with licensing him as a pilot in and for the respondent district. Inasmuch as the two proceedings more or less complement each other, we shall consider and determine the issues involved in one opinion.

It appears that the proceeding first above entitled (Sac. No. 5265) originated in the Superior Court in and for the County of San Joaquin by the filing of a petition wherein the petitioner alleged that the respondents had theretofore issued to him a pilot commission for the term of one year and that prior to the expiration thereof and without cause or notice to him had suspended and revoked the same. It was prayed that a peremptory writ issue compelling the respondent board to reinstate the pilot commission or license theretofore issued to him and which had not then expired. Following several amendments of the petition, respondents’ demurrer thereto was sustained without leave to amend. Petitioner appealed from the judgment thereafter entered to the District Court of Appeal of the Third Appellate District. That court affirmed the judgment for reasons not necessary to here mention and in denying a rehearing declared that “the issue which was involved on the appeal in this proceeding became moot before the appellant’s [petitioner’s] brief was filed therein, and that the granting of a peremptory writ of mandamus as prayed for would serve no useful or beneficial purpose”. In other words, the term of the one-year commission or license issued to petitioner, which had been revoked and which by said proceeding he sought to have reinstated, had in the interim completely expired and the issuance of a writ could not possibly serve the only purpose for which it was sought. An appellate court will not review or determine questions which have become moot, since the decision will serve no useful or beneficial purpose. (O’Neal v. Seabury, 24 Cal. App. (2d) 308, 311 [74 Pac. (2d) 1082].) As to the determination of a mandamus proceeding, it is stated in 38 C. J. 949, section 750, that “Ordinarily moot questions will not be considered ; and, where pending the review events have occurred rendering a decision of the legal questions involved unnecessary or useless, the court will not pass upon them. ’ ’

Though we were, and still are, of the view that the proceeding first above entitled was moot, we nevertheless granted the petition for hearing therein because of the almost simultaneous filing with this court of a separate and distinct petition (S. F. No. 16132, second above-entitled matter) wherein petitioner sought a writ of mandate directing the respondents to issue to him another or renewal commission or license as pilot for one year commencing with the expiration of the old or former license. In support of this application the petitioner refers us to section 1101 of the Harbors and Navigation Code of this state. That section provides that “Pilots licensed by commissioners shall be carefully examined as to their qualifications, and, if found to be qualified and worthy, they shall receive licenses as pilots for a term of twelve months. Licenses shall be renewed annually unless the commissioners have good cause to withhold renewal. Whenever the commissioners deem they have cause, or intend for any reason to withhold renewal of a pilot’s license, the secretary of the board of commissioners shall serve notice in writing, on the pilot, specifying the causes, at least ten days before the expiration of his license. The pilot is thereupon entitled to a full hearing before the board. ’ ’

Petitioner alleges, among other things, that respondents, without cause or notice to him, have refused to renew his license in asserted violation of the quoted code section. He also urges that the language of this section is such as to require a determination herein as to the propriety of the revocation of his prior license in order to give effect to the remaining provisions of the cited section calling for notice and hearing when a renewal of license is to be refused. As we shall presently show, section 1101, supra, is inapplicable here and without effect upon licenses or commissions issued by the respondent district. This, in effect, is the theory of the respondents in support of their demurrer to the petition filed in the second above-entitled proceeding, now under consideration. They urge that the provisions of section 1101 of the Harbors and Navigation Code, relied on by the petitioner, as indicative of his right to a one-year license together with a renewal thereof for a similar period, in the absence of notice, hearing and the showing of cause for any other or different action, appear in a portion of the code which is here inapplicable because of the specific provisions of another portion thereof governing port districts having the status of the respondent district.

We have examined the Harbors and Navigation Code (Stats. 1937, chap. 368), which is the counterpart of many former scattered sections of the Civil and Political Codes. In our investigation thereof we have directed attention to the sections of said code having to do particularly with the licensing and regulating of pilots. In this connection we have found that section 1101, relied on by petitioner and quoted above, appears in chapter 1 of division V of the code. Our examination satisfies us that said section, providing as it does for the issuance of pilot licenses for terms of one year with provision for renewal thereof and notice and hearing in the event of nonrenewal, is not to be applied to all pilot licenses issued under state authority. This conclusion is suggested by the provisions of the many other specific and frequently conflicting sections controlling the licensing and regulating of pilots by the governing boards of the several bay, harbor, port and other districts provided for and mentioned in the code. Among such other provisions governing the licensing and regulating of pilots we find the following:

Chapter 2 of division V of said code (containing sections 1150 to 1193) specifically provides for the licensing, regulation, suspension, etc., of pilots by the appropriate board of pilot commissioners for San Francisco, San Pablo and Suisun Bays. Sections 1154 of the chapter grants the board power to make by-laws and rules for the government of pilots appointed by it. Section 1160 provides that the board shall renew the licenses of, or examine and license, not less than fifteen nor more than twenty bar pilots and not more than five bay pilots. Under the provisions of section 1190 of said chapter, the board of pilot commissioners for the three named bays may summarily suspend pilots appointed by it for designated causes and may then investigate and decide the complaint. Sections 1191 and 1192 provide for the suspension and revocation of licenses of pilots for other specified, causes following a ten-day notice to the pilot and hearing thereon. In the event the license of a pilot for one of these bays is not to be renewed, he is entitled (under section 1193) to a trial and hearing (no definite period óf notice being prescribed) and the decision of the board is open to review, by trial de novo, in the superior court. Thus it would appear that the legislature by specific enactments has cared for the licensing and regulating of pilots for San Francisco, San Pablo and Suisun Bays.
Chapter 3 of the code, supra, indicates that they have similarly specifically legislated as to Humboldt Bay for therein it is provided that the board of pilot commissioners for said bay “may appoint . . . such number of pilots as are necessary, who shall be subject to removal by the board at any time”. (See. 1270.) In sections 1290 and 1291 provision is made for the forfeiture and revocation of such pilot licenses following notice and hearing. As regards the renewal of licenses issued to pilots of Humboldt Bay, section 1292 expressly places the burden, contrary to the provisions of section 1101, supra, and the earlier chapter covering San Francisco, San Pablo and Suisun Bays, on the pilot to “apply for a renewal of his license ten days before its expiration, otherwise it need not necessarily be renewed”.

Again, in chapter 4 we find specific provisions covering a designated harbor, viz., San Diego harbor. Herein we find express legislation for the licensing of pilots by the board of harbor commissioners of that harbor for a term of twelve months, which licenses “shall be annually renewed unless the board has good cause to withhold renewal”. In the event a pilot’s license is not to be renewed he is entitled to ten days’ notice thereof and a full hearing before the board (sec. 1371). Therefore, as regards the renewal (which is the immediate problem to which we are now directing our attention) of the licenses of pilots for San Diego harbor, we find specific provision therefor consistent with the language of section 1101, supra, but contrary to appropriate provisions governing other bays and harbors, the legislature thus again evincing its intention to legislate specifically in certain instances.

Division VI of the Harbors and Navigation Code is divided into three parts and contains many provisions pertinent to the operation and regulation of San Francisco, San Diego and Eureka harbors, exclusive of the licensing of pilots therefor. Division VII of said code likewise is without pertinency to our present inquiry.

Division VIII of the code provides for the formation, government and regulation of several types of harbor and port districts. In part 1 provision is made for the creation and operation of “Municipal Port Districts” with an express and specific grant of powers to the governing board thereof. The same is generally true of part 2 having to do with “Harbor Improvement Districts”, of part 3 dealing with “Harbor Districts”, of part 4 covering “Port Districts”, of part 5 dealing with “Recreational Harbor Districts” and of part 6 having to do with “River Port Districts”. We shall direct our consideration exclusively to the specific provisions of part 4 concerning “Port Districts” for it is conceded that the respondent district comes within the purview of the districts contemplated and legislated for therein. The formation of such a “port district” is provided for in chapter 1 and in chapter 2 it is declared, among other things, that the district “shall be governed by a board of port commissioners” consisting of five members appointed in a designated manner. In section 6249 power is conferred on the board to “prescribe rules and regulations pertaining to the selection of officers and employees of the district”, with the added proviso that “the term of each officer appointed by the board shall be during the pleasure of the board”. In People v. Woodbury, 14 Cal. 43, it was held that a pilot appointed by a local authority to pilot boats over a bar or in designated waters, or to a particular port, is a public officer. This decision was referred to with approval in People v. Abbott, 16 Cal. 358, and Spreckels v. Graham, 194 Cal. 516, 528 [228 Pac. 1040].

A district created under this part of the code is by section 6290 declared to be “a public corporation created for municipal purposes” and by section 6299 “it has exclusive jurisdic tion over, and it may provide for and, supervise pilots and the pilotage of seagoing vessels from the end of jurisdiction of existing pilot authorities to points lying upon any navigable waterway project of the United States, entering the district”.

We are satisfied from our review of the entire Harbors and Navigation Code, with particular emphasis on sections 6249 and 6299 thereof, which appear in that part of the code governing the formation and regulation of port districts of the character and status of the respondent district, that the legislature by express and specific enactment has definitely conferred upon the respondent members of the board of port commissioners of the respondent port district exclusive power to appoint, regulate and to refuse to reappoint pilots for the respondent port district. The definite omission by the legislature of any provision for licensing of pilots for such a district for a designated period or to provide for notice and hearing in the event of a contemplated refusal to renew a pilot's license, contrary to its express mandate in these particulars as regards other districts, ports and harbors, leads to the inevitable conclusion that pilots in and for the respondent district, and districts similarly situated, serve at the pleasure of the appointing power, viz., the board of port commissioners of said district. It is declared in Matter of Carter, 141 Cal. 316, 320 [74 Pac. 997], that “in creating an office the government can impose such limitations and conditions with respect to its duration and termination as may be deemed best, and that in such a case the incumbent takes the office subject to the conditions which accompany it. It may always be terminated in such manner and by such means as are prescribed by the law which created it”. In other words, the absence of a fixed statutory term of license and provision for notice in the event of nonrenewal thereof (as is elsewhere provided in the code as to other districts), together with the grant to the respondent board of “exclusive” jurisdiction and supervision over pilots in and for the respondent district, are indicative of a legislative intention that the petitioner, and others similarly situated, are licensed as pilots for such district at the pleasure of the district and its governing board and that respondents in their conduct and operation of the port of Stockton, and in their discretion, are not required to renew such licenses, whether prior licenses have been permitted to run for the entire period for which they may have been issued by the board or have been suspended or revoked in advance thereof. In either event, the respondent district and board are not required, in our opinion, to renew the same and such conclusion adequately determines the proceeding second above entitled wherein, as already stated, petitioner seeks to compel a renewal of a prior license.

There are other cogent reasons that appear from an examination of the Harbors and Navigation Code, some of which are mentioned in respondents’ briefs, but which need not be here set forth in detail, definitely indicating that section 1101, supra, is inapplicable and that respondents need not renew petitioner’s license and that mandamus should not, therefore, issue herein. Briefly these reasons are that section 1101 applies to licenses issued by “pilot commissions”. San Francisco, San Pablo and Suisun Bays, and perhaps others, have “pilot commissions”. The respondent district is governed by a “port commission”. The legislature may have used these varying terms advisedly. Secondly, chapter 1 of division Y, wherein appears section 1101, contains other sections and provisions apparently inapplicable to districts of respondents’ status. Thirdly, sections 1100 to 1116 of the code were formerly in existence as sections of the Political Code and antedate by many years the legislature’s enactment in 1931 of a policy governing port districts, such as the respondent district.

Whether the respondents after issuing a (prior but now expired) license to petitioner for a term fixed by them at one year may, without notice or hearing, suspend or revoke the same need not here be decided. Determination of this point is not indispensable to the disposition of these mandate proceedings, the principal purpose of which is to compel reinstatement of such prior license now expired and the issue therefore moot (Sac. 5265) and to compel issuance of a renewal license for an additional period (S. F. 16132), which issuance, as we have shown, is a matter within the exclusive jurisdiction of the governing board of the respondent district. If, as petitioner urges, the respondents acted improperly in suspending or revoking, without notice and hearing, his prior but now expired one-year license theretofore issued by them, and are therefore answerable to him for the loss of pilot fees from the date of such revocation to the expiration date of such prior licenses, a point upon which we express no opinion, it would seem that that issue, involving as it will controverted questions of fact as to the cause or causes for such revocation and as to the damages, if any, caused thereby, together with a question as to the legal liability of the respondents, may best be determined in an action, if deemed advisable, based on such alleged wrongful revocation and asserted resulting damages, triable before a court charged with and equipped for the preliminary finding of the pertinent facts. It is not our purpose to indicate that such an action will lie under the assumed circumstances, but taking petitioner’s contention at its face value, and without expressing an opinion thereon, the matter may best be determined elsewhere.

In conclusion, we desire to state that the effect of respondents’ action, whether proper or improper, is not, as urged, to deprive petitioner of all means of livelihood as a pilot. He is free to pursue such calling under any license that he may procure from the appropriate federal authorities or any of the several local boards or commissions vested with power to issue such licenses.

The judgment in the proceeding numbered Sac. 5265 is affirmed. The alternative writ issued in the proceeding numbered S. F. 16132 is discharged and a peremptory writ denied.

, Curtis, J., Langdon, J., Edmonds, J., Shenk, J., and Seawell, J., concurred.

Rehearing- denied.


source: Caselaw Access Project

author: CURTIS, J. HOUSER, J., Dissenting.

license: Public Domain

text:
    [S. F. No. 16094.
    In Bank.
    January 31, 1939.]
    EDWARD B. NEUWALD, Respondent, v. A. B. BROCK, as Director of the Department of Agriculture, etc., et al., Appellants.

      U. S. Webb, Attorney-General, and Frank English and John J. Dailey, Deputies Attorney-General, for Appellants.
    Eustace Cullinan, Eustace Cullinan, Jr., and Herbert E. Wenig for Respondent.
   CURTIS, J.

Petitioner on March 1, 1932, was appointed to the position of supervising investigator in the division of weights and measures in the Department of Agriculture of the state of California, by the then director of that department. His position under said appointment was temporary for the reason that at the time of his appointment there was no appropriate eligible list of persons for the class or grade to which said position belonged, or from which the State Civil Service Commission could certify to the director of the Department of Agriculture, the names and addresses of three or any number of persons standing highest on the eligible list of the class or grade to which the position of supervising investigator in the division of weights and measures belonged. There had not been up to the time of petitioner’s discharge any such eligible list certified by the Civil Service Commission to said director of the Department of Agriculture for the position held by petitioner under his said appointment. Petitioner continued to hold said position from the date of his appointment to January 26, 1935, when the director of the Department of Agriculture purported to dismiss him from his- said position by notifying him of his dismissal and by filing a written statement with the Civil Service Commission giving the reason for his dismissal.

At the general election held on November 6, 1934, article XXIV was adopted and added to the Constitution of the state. By this new section of the Constitution petitioner was given the status of a probationary appointee and as therein provided “such probationary term to commence on the effective date hereof of not less than two months nor more than eight months in the class or grade assigned as it [the commission] may fix”.

On January 24, 1935, Director Brock dismissed petitioner by a written communication in which he stated as his reason for such dismissal that petitioner’s conduct and capacity as such probationary employee had not been satisfactory to him. Whereupon petitioner instituted this action for the purpose of having himself reinstated in such position, for the recovery of his salary from the date of his purported dismissal, and for damages sustained by him by reason of the alleged illegal action of the Director of the Department of Agriculture in dismissing him from said position. The trial court found in favor of the petitioner and awarded judgment for the reinstatement of petitioner in his former position and for the recovery of his salary during the period of his dismissal. The respondents have appealed from said judgment. In our discussion of the case we shall continue to refer to the parties hereto as petitioner and respondents respectively.

The trial court found that the reason stated by the director of agriculture for the dismissal of petitioner was not a valid or sufficient reason for the dismissal of a civil service employee holding a position under the State Civil Service Act, and it was not one of the causes, grounds or reasons specified in section 14 of the State Civil Service Act (Stats. 1913, p. 1035, as amended, Stats. 1929, p. 252) for which a person holding a position under the provisions of said act may be dismissed, and is not a reason or cause for such dismissal sufficient to satisfy the requirements of section 14 of said act or of rule 9 of the State Civil Service Commission. The court further found that the statement of the director of his reason was untrue and was a pretext to frustrate and defeat the intent and purpose of the recently adopted article XXIV of the Constitution, and to prevent the petitioner from acquiring a permanent status. (Finding XIV.)

It is contended by petitioner that he could be dismissed from his probationary position by the appointing officer only for one or more of the reasons enumerated in section 14 of said act, as the trial court found, or if he could be dismissed for any other reason, that specified by Director Brock was nevertheless insufficient; while respondents contend that the dismissal of petitioner from his probationary position is provided for and was controlled by section 9 of said act, and that the reason given by the Director of Agriculture for such dismissal was sufficient in that it complied with rule 9 of said Civil Service Commission.

Section 14 of said act in so far as here material, reads as follows: ‘ ‘ The tenure of every person holding a position under the provisions of this act shall be during good behavior, but any such person may be removed, demoted, suspended without pay, transferred to another position in the same class, reprimanded, or restored to his position with such pay as may be equitable under a procedure in conformity with the provisions of this section which shall be set up by the commission in its rules and regulations, for any of the following causes: Incompetency, inefficiency, insubordination, dishonesty, intemperance, immorality, profanity, discourteous treatment of the public or other employees, improper political activity, wilful disobedience, violation of the provisions of this act or of the rules and regulations of the commission, or for any other failure of good behavior or any other act or acts which are incompatible with or inimical to the public service.” The section further provides that written charges must be filed against the employee with the commission and a copy served upon the employee who is given the right to answer said charge and to have a hearing before the commission. The decision of the commission is final.

Evidently the principal question presented on this appeal is whether said section 14 of the State Civil Service Act applies to a person who like the petitioner held only a probationary position under the State Civil Service Act at the time of his dismissal by the Director of Agriculture. It is obvious that the general language found in this section, namely, “the tenure of every person holding a position under the provisions of this act”, is sufficiently broad to include persons holding probationary positions as well as persons holding permanent positions under the provisions of said act.

However, section 9 of said act (Stats. 1913, p. 1035) provides that, “Subject to the special provisions of this act as to laborers, appointments shall be made to all positions that are not filled by promotion, reinstatement, transfer or reduction, under the provisions of this act and the rules in pursuance thereof, by the appointing power: Said appointing power shall notify the commission of any vacancy to be filled, stating the duties of the position. The commission shall then certify to the appointing power the names and addresses of the three persons standing highest on the eligible list for the class or grade to which the position belongs; but in case there be less than three on such eligible list, the commission shall certify the number thereon; and the appointing power shall fill the position by the appointment of one of the persons certified by the commission therefor. The term of eligibility shall be fixed for each eligible list at not less than one year. Appointments shall be made from the eligible list most nearly appropriate for the position to be filled, and a new list shall be created for a stated position or a group of positions only when there is no appropriate list existing from which appointment may be made. No person shall be appointed under any title not appropriate to the duties to be performed, and no person shall be assigned to perform the duties of any other position than that which he legally holds, except by the consent of the commission. All appointments shall be for a probationary period to be fixed by the commission but not to exceed six months. Unless such appointee shall have been dismissed within such probationary period by the appointing power, for reasons stated in writing and filed with the commission, his appointment shall become permanent subject to the provisions of this act as to removals, suspensions and changes. Discharged probationers may by unanimous vote of the commission be restored to the list of eligibles for certification to any position within their class other than the one from which they were rejected.”

As we have seen, petitioner’s status as a probationer was not attained under the provisions of this section but he was “blanketed in” by the adoption of article XXIV of the Constitution. The fact that he attained his status as a probationer by virtue of said section of the Constitution rather than under the provisions of the State Civil Service Act did not in any manner affect the provisions of said act relative to his dismissal or retention. As a person holding a probationary position, in so far as the power to dismiss him was concerned, he was subject to the provisions of the act, no matter how he attained said position.

Section 9 of said act in express terms makes reference to persons holding probationary positions under said act. This section provides for their appointment, the length of their term of service, assignment of their duties, their dismissal, and the conditions under which they are advanced to permanent positions. In fact, this section of the act is devoted almost in its entirety to appointments for probationary periods, and no other section of the act deals to any extent directly with this class of employees. It will be noted, in providing for the dismissal of a person holding a probationary position, that no reference whatever is made by section 9 to any provision or requirement contained in section 14 respecting dismissal of employees. In fact, no reference is made to section 14 of the act at all. The two sections provide two independent and entirely distinct methods for the dismissal of civil service employees. As a rule it is the duty of the courts to construe an act of the legislature as a whole and to bring conflicting provisions therein in harmony with each other if said sections can reasonably be so construed. In this connection it is suggested that in construing these two sections, we should hold that while the appointive power has the authority to discharge a person holding a probationary position as provided by section 9, he can do so only for the causes enumerated in section 14, and after a trial before the Civil Service Commission. To so construe the provisions of the act would eliminate entirely the dismissal provisions of section 9 of the act, for if section 14 governs the method of dismissing a probationer by the appointive power, then those provisions of section 9 authorizing such dismissal are of no effect whatever. Such a construction would be contrary to the well-established rule that in construing an act, effect should be given to each and all of its provisions. (23 Cal. Jur., see. 133, p. 758.)

The question then arises as to which of these two sections of the act is to govern the manner or mode of dismissing a person holding a probationary position in the state civil service. Section 14 of the act is a general provision and if it be given the meaning contended for it by respondent applies to every person holding a position under said act, while section 9 of said act specially applies to the dismissal of a person holding a position for a probationary period. It must be conceded that there is a direct conflict between the terms of the two sections, one authorizing the appointive power to dismiss a probationer by merely notifying him of his dismissal and by filing with the commission a written statement of the reasons for such dismissal. No hearing is provided for by said section as to the truth of said reasons or as to their sufficiency. Under section 14 of the act, written charges must be filed, limited to certain causes named in said section. A hearing is had before the commission upon these charges, and a decision is rendered by the commission and entered in its minutes.

It is a statutory rule of construction that when a general and a special provision are inconsistent, the latter is paramount to the former and controls the general provision. (Section 1859, Code Civ. Proc.) Undoubtedly section 9 of the act contains a procedure for the dismissal of a person holding a probationary position under the Civil Service Act, while the provisions of section 14 by its terms, if construed literally, apply generally to all persons holding civil service positions. According to the rule of construction just referred to, it must be held that in so far as the provisions of section 14 are inconsistent with the provisions of section 9, the latter control. We are, therefore, of the opinion that a person holding a position in the civil service of this state as a probationer is subject to dismissal by the appointive power as provided by section 9 of said act, and that the provisions of section 14 of the act have no application to the dismissal of a person holding such a position.

We think this is the only legal construction which may be given to these two sections of the State Civil Service Act. Such a conclusion is in harmony also with the general intent and purpose of the civil service system. Applicants are first appointed from a selected list. They are given a temporary tenure, usually not exceeding six months and are designated as probationers, during which time they are on trial or probation to determine whether they are in fact fitted to discharge the duties of the particular position to which they are assigned. If in the opinion of the appointive power, they are not so fitted, a summary method is provided for their discharge. If they are found to be capable of discharging efficiently the duties of their respective positions during the probationary period, they are then given permanent positions from which they may be discharged only after formal charges are preferred against them and a trial upon these charges is had before the commission as provided by section 14 of said act. To place these two different classes of employees upon an equality as to the tenure of their respective positions would be to destroy one of the fundamental principles of the civil service system, and it is not to be presumed that the legislature intended to do so without the clearest and most positive indication of such intention.

To hold that section 14 of the act applies to probationers, as well as employees of the state holding permanent positions, because its general language hereinbefore quoted is sufficiently broad to include probationers, would bring within its terms not only the two classes of employees just mentioned, but even temporary employees and emergency employees. By section 1, subdivision 2 of the act, the term, "position” or "positions” as used in said act, includes all offices and employment under state authority. Section 11 of the act provides for temporary appointments and section 12 for emergency appointments. Appointees under either of these two sections of the act are employed under state authority, and are therefore holding positions under the provisions of said act, and if petitioner’s contention is to be sustained, the tenure of their positions is protected by section 14 of the act to the same extent and in the same manner as those of permanent employees of the state holding full civil service rights. Surely it was not the intention to put all these different classes of employees upon a parity as to the tenure of their respective positions.

This conclusion is .in harmony with the recent decision of this court in Kennedy v. State Personnel Board, 6 Cal. (2d) 340 [57 Pac. (2d) 486], Kennedy was attorney for the Board of Dental Examiners at the time of the adoption of article XXIV of the Constitution in 1934. Prior to the adoption of said amendment, his position was exempt from the state civil service system. Upon the adoption of said system, he was, like the petitioner in this case, blanketed in as a probationer. He was dismissed on April 15, 1935, from his position by the dental board for reasons filed with the personnel board which had succeeded to the powers and duties of the Civil Sendee Commission. Kennedy thereupon brought proceedings in mandate against the board to be restored to his position claiming that under the provisions of the constitutional amendment, and particularly by virtue of subdivision (e) of section 5 of said amendment he could not be summarily dismissed from his position by the Board of Dental Examiners. This court, after quoting in full said subdivision (e) of section 5 of said article of the Constitution, held that his claim was without merit, and in so doing gave its conclusion as follows: “Under this provision, which seems clearly to apply to petitioner, who had served in his position for more than six months prior to the amendment, he might have become a permanent civil service employee upon uninterrupted service of his probationary term. It is equally clear that he was subject to dismissal during the period of such probationary term, for otherwise the term ‘probationary’ would be meaningless, and the distinction between civil service employees with permanent status, and probationary employees with temporary status, would be obliterated. Hence the only question is whether in fact petitioner served his probationary period and obtained permanent status, or was dismissed during such period. Under the amendment, the state personnel board was empowered to fix the period at not less than two nor more than eight months. On June 24, 1935, six months after the amendment went into effect, the board by resolution fixed the term at eight months. It follows that petitioner was dismissed within the period of his probation, and was not entitled to the protection accorded to a civil service employee.”

To place the construction upon section 14 of the act contended for by the petitioner would be to disregard settled rules of statutory construction and would result in eliminating and obliterating the distinction between civil service employees with permanent status and probationary employees with temporary status, and would place these two distinct classes of employees upon an equality in so far as the permanency and security of their respective positions are protected by the State Civil Service Act. As stated in the Kennedy case, a construction which would place these two classes of employees upon such equality would render the term, “probationary” meaningless, as it would give the persons holding probationary positions all the rights and privileges accorded to civil service employees with permanent status.

It was further claimed by petitioner that the reason stated by Director Brock for the dismissal of petitioner was not a valid reason for his dismissal and did not satisfy the requirements of rule 9 of the Civil Service Commission. Rule 9 of the Civil Service Commission in part reads as follows: “If during the probationary period, the conduct or capacity of the probationer has not been satisfactory to the appointing power, the probationer may be dismissed, in the discretion of the appointing power, and the appointing power shall inform the executive member of the commission in writing of the reason for such dismissal. Otherwise the retention of the probationer in the service shall be equivalent to his permanent appointment.”

The reason stated by Director Brock for the dismissal of petitioner, and filed in writing by him with the commission, was that the conduct and capacity of petitioner as such probationary employee during such probationary period had “not been satisfactory to me the appointing power”. As the reason stated by the director and filed with the commission followed the precise language of rule 9 of the Civil Service Commission, we fail to see upon what grounds the petitioner bases his contention that the reason assigned by the director in his written statement filed with the commission failed to satisfy the requirements of rule' 9 of the commission.

It is further contended that the reason stated by the director for the dismissal of petitioner, namely, that the conduct or capacity of petitioner as a probationary employee during the probationary period had not been satisfactory to the appointing power, is not- sufficient to meet the requirements of section 9 of the act. As we have seen, section 9 states that unless the appointee shall have been dismissed within the probationary period by the appointing power, for reasons stated in writing filed with the commission, his position shall become permanent. Nowhere in the act is there to be found any requirement as to what would constitute a sufficient reason for the dismissal of a probationary employee. The reason assigned for petitioner’s dismissal was one provided for in rule 9 of the commission, and the commission is given power by section 8 of said act to make rules governing the appointment, etc., and including the removal of applicants for positions under said act. The reason given by Director Brock is the identical reason given by the Board of Dental Examiners for the dismissal of Kennedy, serving a probationary term as attorney for said board. While no point was made in that case as to the sufficiency of such reason for the employee’s discharge, and it is not discussed in the opinion of the court, undoubtedly counsel for the employee was of the opinion that there was no merit in such a contention and for that reason did not raise the point. As we have seen, the commission was given power by the act to make rules governing removals of employees, and we have been cited to no authority holding that this rule is not within the power of the commission to adopt. As no power is given to the commission to pass upon the sufficiency of the reason given, it may well be held that the reason for the discharge of a person holding a probationary position is within the sound discretion of the appointing power. (State v. Williams, 6 S. D. 119 [60 N. W. 410].)

Petitioner has cited in his briefs a large number of authorities which he contends support a contrary rule. Many of these cases concerned the removal of duly elected and appointed officers for definite terms of office, and did not in any manner involve civil service employees. In still others, the employee sought to be discharged was a permanent employee under rules of strict civil service regulations, and therefore those cases are readily distinguishable from the instant action which involves a person holding simply a probationary position. Obviously these eases are not controlling in the present controversy.

In the latter sentence found in section 9 of the act, a discharged probationary employee is given the right to have his case considered by the commission, not for the purpose of restoring him to his former position, but that his name may be restored to the eligible list by unanimous vote of the commission, for certification to any position within his class other than the one from which he had been rejected. This provision' of the section limits the powers of the commission to the one subject stated therein, and clearly indicates that the action of the appointing power in discharging a probationary employee is final and that the commission is without the power to question the reasons stated by the appointing power for such dismissal. In this respect, section 9 differs from section 14 of the act, as by the terms of the latter section the commission is vested with power to hold a hearing and pass upon the reason given for the discharge of the employee.

If it should be held that under the last sentence of section 9 of the act, a probationary employee may be dismissed only for the causes enumerated in section 14 of the act and in accordance with the terms of said section 14, then the persons holding probationary positions are upon their dismissal given a distinct advantage over permanent civil service employees. For under section 9 of the act, a dismissed probationary employee, in accordance with the provisions of the last sentence of section 9, may be restored to the eligible list for certification to any position within his class other than the one from which he was rejected. No such provision is to be found in section 14 of the act, nor would we expect to find any such provision in the last-named section, which provides for the removal of an employee for incompetency, inefficiency, insubordination, dishonesty, and other like causes specified in section 14. These are serious offenses, and one guilty of any of them would hardly be deemed fit for public service in any capacity, but if we are to construe section 9 and section 14 together, as contended by petitioner, a probationary employee discharged for any of these causes may be restored to the eligible list and given a position in his class, while no such right is given to a permanent employee removed for like causes. Evidently, it was not the intent of the act to bring about any such unjust, unreasonable and unworkable situation. It seems clear that it was intended not to limit the appointing power in the dismissal of a probationary employee to those serious offenses specified in section 14, but on the other hand, when in the opinion of the appointing power a probationary employee has been found to be unsuited for, or a misfit, in the position to which he was assigned, he might be dismissed and the commission was given the right to restore him to the eligible list for certification to another position, but not to the one in which he had been found wanting and for that reason dismissed therefrom.

It will be noted that in finding XIV mentioned above, the court found that the reason given by Director Brock in his statement to the commission for petitioner’s dismissal was untrue, and was a pretext adopted by him in order to frustrate petitioner from acquiring a permanent civil service status. Relying upon this finding of the court, the petitioner contends that his dismissal was actuated by improper motives on the part of the director and was therefore illegal and should be declared so by this court. Practically the same position was assumed by the petitioner in the case of Kennedy v. State Personnel Board, 6 Cal. (2d) 340, 344 [57 Pac. (2d) 486]. The board of dental examiners had stated as the reason for Kennedy’s dismissal that his conduct and capacity had not been satisfactory to the appointing power. The same reason, as we have seen, was given by Director Brock for petitioner’s dismissal. Kennedy contended that this reason was untrue as the Board of Dental Examiners had at the time of his dismissal adopted and passed a resolution that his services were satisfactory, although they subsequently passed another resolution declaring that his services were unsatisfactory and charging him with improper political activity. In passing upon this contention of Kennedy, the court said: “The only remaining contention of petitioner which requires mention is that his dismissal was for improper motives. In this connection he alleges that his services were declared satisfactory by the dental board in a resolution adopted at the time of his dismissal, and that subsequently another resolution was passed charging him with unsatisfactory conduct and improper political activity. In our opinion these allegations do not present an appropriate case for judicial review. There is no sufficient affirmative showing of fraud or bad faith on the part of the board, and it has been a recognized rule that an inquiry into extraneous facts to determine the possible improper motive of an executive or administrative board in dismissing an employee is not justified. (See Livingstone v. MacGillivray, 1 Cal. (2d) 546 [36 Pac. (2d) 622]; State v. Kennelly, 75 Conn. 704 [55 Atl. 555].)”

From the foregoing we conclude that finding XIV of the trial court that the reason given by Director Brock for the dismissal of petitioner was not a valid or sufficient reason for his dismissal from his probationary position is not supported by the evidence. This finding is based entirely upon the assumption that section 14 of the State Civil Service Act controls the dismissal of persons holding probationary positions in the civil service of the state, and that the reason stated by Director Brock for the dismissal of petitioner was not one of the causes, grounds, or reasons specified in said section 14 of the act. In this assumption the trial court was in error as section 9 of said act, and not section 14, is applicable and controls the dismissal of a person holding a probationary position in the civil service of the state. In the dismissal of petitioner, Director Brock, the appointing power under which petitioner was holding his probationary position, complied with all the requirements of said section 9 of said act in order to legally dismiss petitioner from his said position. His dismissal was, therefore, legal, and the judgment of the trial court herein is reversed with directions to enter its judgment that the alternative writ heretofore issued be discharged and that a peremptory writ be denied.

Langdon, J., Edmonds, J., Shenk, J., and Waste, C. J., concurred.

HOUSER, J., Dissenting.

I dissent.

After a decision of the above-entitled appeal had been rendered by the First Division of the First District of the District Court of Appeal, a petition for hearing of the cause by this court was granted. Following further study of the facts and the law that appertain thereto, I am convinced of the correctness of the reasoning that was employed by the District Court of Appeal and the conclusion of law that was reached thereon, as expressed in the opinion and ruling which were prepared by Hr. Justice Tyler of that court. Accordingly, the said opinion is adopted by me as correctly expressing my views with reference to the question that is presented on the appeal. It is as follows, to wit:

“The petitioner, who had for several years held a temporary position in the state department of agriculture and, by virtue of an amendment to the state Constitution, approved and adopted by the electors at the election held on November 6, 1934, was given the status of a probationary employee, was during the term of probation dismissed from his position by A. A. Brock, as director of said department, by whom or by whose predecessor some years before he had been appointed to said temporary position. He brought this action against said director, joining the members of the state personnel board (successor to the civil service commission), William Brownrigg, the executive officer thereof, and Ray L. Riley as state controller, seeking a peremptory writ of mandate, commanding the several named respondents (except Ray L. Riley as controller) to restore him to his position, and commanding the last named to pay him the amount of salary he would have earned but for his removal up to the time of reinstatement, if such should be decreed. In addition he sought general damages for his removal.
“Included in the petition were allegations to the effect that at no time prior to his dismissal did A. A. Brock, the director of the department, nor any other of his superiors express or indicate to petitioner any dissatisfaction with or criticism of his conduct or capacity as such employee; that on January 24, 1935, Brock dismissed him by a written communication, in which he stated as his reason therefor that petitioner’s conduct or capacity as such probationary employee had not been satisfactory to him; that on January 18, 1935, Brock, by letters couched in similar terms, dismissed two other probationary employees of the department, and on January 26th four others, and that., as in his own case, no dissatisfaction with their services had been expressed by Brock to them or either of them. No actions have been brought in the other cases. It was further alleged that the reason so stated by Brock for the dismissal of petitioner was not a valid reason for the dismissal of a civil service employee and it was not one of the causes, grounds or reasons specified in section 14 of the Civil Service Act (Stats. 1913, p. 1035, as amended Stats. 1929, p. 251) as the only causes for which a person holding a position under the provisions of the act might be dismissed; and that the reason so stated was untrue and was a pretext adopted by said Brock in order to frustrate and defeat the intent of article XXIV of the state Constitution and to prevent petitioner from acquiring a permanent civil service status in said department; also that Brock, in dismissing petitioner, was actuated by personal motives and political considerations and by malice. In connection with his demand for payment of salary it was alleged in the petition that at all times the director of the department of agriculture had under his control, and there was in the state treasury, a sum of money available for that purpose sufficient to pay said salary.
“The defendants filed an answer, unverified, in which they denied that the reason given by Brock for the dismissal of petitioner was untrue, or that it was a pretext resorted to in order to defeat the intent of said article XXIV of the Constitution or to prevent petitioner from acquiring a civil service status, or that he was actuated by personal motives, political considerations or malice. The allegations as to the availability of funds under the control of the director of the department of agriculture for the payment of petitioner’s demand were also denied; and it was affirmatively alleged that the dismissal was made under and pursuant to the terms of rule 9, sections 1 and 2, of the civil service commission (board oi personnel).
“The court made and filed findings of fact and conclusions of law. These were in favor of the petitioner with the exception of the charge that the dismissal was malicious, upon which the court found in favor of the defendants. It ordered a peremptory writ. of mandate to issue reinstating the petitioner and that he be paid the amount of salary he would have earned but for his dismissal.
“The defendants have taken this appeal, and in support thereof attack as not supported by the evidence certain of the court’s findings, namely, findings XIV and XXI, and also the refusal of the court to find that the principal reason for the rule contained in section 9 of the Civil Service Act, requiring the reasons for dismissing a probationary employee to be stated in writing and filed with the commission, to be in accordance with their contention, and its refusal to find that in dismissing petitioner, Brock was not actuated by personal motives or political considerations.
‘ ‘ The following is the material part of finding XIV: ‘ The reason so stated by A. A. Brock, as director of the Department of Agriculture, for the dismissal of Edward B. Neuwald ... is not a valid or sufficient reason for the dismissal of a civil service employee . . . holding a position under the State Civil Service Act, and is not one of the causes, grounds or reasons specified in section 14 of the State Civil Service Act as the only causes for which a person holding a position under the provisions of the State Civil Service Act may be dismissed, and is not a reason or cause for such dismissal sufficient to satisfy the requirements of section 14 of the State Civil Service Act or of rule 9 of the State Civil Service Commission. The reason so stated by A. A. Brock, as director of the Department of Agriculture . . . and his statement of his reason, was and is untrue, and was and is a pretext adopted by respondent A. A. Brock, acting as director of the Department of Agriculture, in order to frustrate and defeat the intent and purpose of art. XXIV of the Constitution of California and to prevent Edward B. Neuwald from acquiring a permanent civil service status. . . . In so dismissing Edward B. Neuwald the respondent A. A. Brock acted in violation of law but he was not actuated by personal malice.’
“It is conceded on behalf of the petitioner that being in a probationary period of service (created under the provisions of article XXIV of the Constitution and granted to temporary employees who had undergone no competitive examination, and consequently had never had any status on an eligible list) he could be dismissed by the appointing officer ; but it is contended, first, that he could be dismissed only for one or more of the reasons enumerated in section 14 of the .Civil Service Act, as the trial court found; and second, if he could be dismissed for any other reason, that specified by Brock was nevertheless insufficient.
“Section 14 of said act, so far as here material, reads as follows: ‘The tenure of every person holding a position under the provisions of this act shall be during good behavior, but any such person may be removed, demoted, suspended without pay or with reduced pay, transferred to another position in the same class, reprimanded, or restored to his position with such pay as may be equitable under a procedure in conformity with the provisions of this section which shall be set up by the commission in its rules and regulations, for any of the following causes: incompetency, inefficiency, insubordination, dishonesty, intemperance, immorality, profanity, discourteous treatment of the public or other employees, improper political activity, wilful disobedience, violation of the provisions of this act or of the rules and regulations of the commission. . . .
“ ‘The appointing power . . . may file charges against any person employed by the state under and subject to the provisions of this act, for dismissal or other corrective action for any or all of the causes hereinbefore provided and suspend such employee from service until such time as the charges against him shall have been heard or investigated by the commission and a decision rendered. Such charges must be made in writing and clearly state the specific act or acts of the employee constituting such cause. . . . ’ The section goes on to provide for service of the charges upon the employee, and a procedure for their hearing and determination by the commission or a commissioner or the chief examiner or any agent of the commission, and that the decision of the commission shall be final.
“ It is quite obvious that in respect to the general language found in the section, namely, ‘the tenure of every person holding a position under the provisions of this act’, it applies not only to the employees who have passed from their probationary period to permanent tenure, but is also applicable to probationary employees. When the statute prescribes the grounds upon which civil service employees may be removed, they are removable for one of those specified grounds. Here the language of the section points out for what offenses an employee may be removed, and the mere fact that petitioner was unsatisfactory to Brock is not a suf-. ficient reason under the act for his removal. The trial court took evidence as to the conduct of petitioner during the long period of his employment and found him at all times prior to his dismissal to be without fault. We are of the opinion that the evidence fully supports the judgment.
“It is further claimed that there is no evidence supporting finding XXI, that there were funds in the treasury to meet the demand. Petitioner pleaded the existence in the state treasury of a sum of money sufficient for that purpose. While an unverified answer was filed to the verified petition, the trial court found that there was a sufficient sum in the state treasury available for the purpose, which the judgment orders to be used for that purpose. Under these circumstances the burden was upon the state officers to prove there was no fund as they had special knowledge of the facts.”

Rehearing denied. Houser, J., voted for a rehearing.


author: WASTE, C. J.

text:
    [L. A. No. 16693.
    In Bank.
    February 9, 1939.]
    FLORENCE LORD et al., Appellants, v. LILLIE M. ATCHISON, as Executrix, etc., Respondent.

      Bernard B. Laven for Appellants.
    George D. Howland for Respondent.
   WASTE, C. J.

The sole question presented by this appeal is whether in terminating a life estate in real and personal property, the trial court awarded plaintiffs the full interest to which they are entitled as remaindermen.

The life estate was created by the will of Michael Cristler for the benefit of his widow, with remainder to certain nieces and nephews, these plaintiffs. Michael Cristler died on June 2, 1919; his widow on August 23, 1935. During these sixteen years the widow commingled and handled with her own property, the property in which she had only a life estate, and such usage led to the present disputation. Plaintiffs brought this action after the death of the widow, against her executrix, praying that the life estate be terminated and that the extent of the remainder interest be determined. The findings and decree of the trial court in effect sustained the contentions of defendant executrix, and awarded plaintiffs less property than they claimed. Plaintiffs therefore appealed from the decree, and the cause is now before this court on motion of defendant to dismiss the appeal or affirm the decree, and also on the merits.

The Cristlers were married in Kansas in 1874. They came to California in 1892, and established a permanent residence in Los Angeles, where Michael Cristler died testate in 1919. His will, after declaring that all of his estate was community property, that he was not attempting to dispose of his wife’s one-half interest therein, but was disposing only of his own interest, provided: “To my beloved wife, Lucy C. Cristler, I give, devise and bequeath all of my said property, to have and to hold for and during her natural life, (with remainder over to my nephews and nieces as herein provided); with full power to sell, dispose of, convey, change the character thereof, alter, improve, or re-invest in any form that she may see fit, without order of Court; and I do hereby direct that no order of Court shall be necessary for any of the above purposes at any time. And I do hereby give, devise and bequeath to my said wife, all the rents, issues and profits arising from said property during her natural life. And I do hereby further give, devise and bequeath to my said wife, such parts and parcels of said property hereinbefore given to her as a life estate, as she may at any time need; she to be the sole judge, without the right of any one to dispute or question as to whether or not she needs such parts or parcels; with full power to sell and dispose of, without order of Court, and to use the proceeds thereof as she may see fit, and she shall not be held to account therefor to any one. ...”

This will was duly admitted to probate, and a final decree of distribution was entered declaring that the entire estate was community property, and distributing it pursuant to the terms of the will. There thus passed into the widow’s possession all of the community property of herself and her deceased husband, an undivided one-half of which she possessed in her own right, and the other half of which she took for life under the terms of the probate decree. During her remaining years she handled and used all of this property as a unit, making no effort at any time to segregate the two estates. She died testate in Los Angeles on August 23, 1935, bequeathing all of her property to certain of her own nieces and nephews, one of whom is defendant executrix, but by her will she expressly directed that the provisions and intentions of her husband’s will should be fully and fairly complied with.

The estimated value of the community property as inventoried in the husband’s estate, and as distributed to the widow, was in excess of $33,000. Of this sum $2,563.65 was in cash; ten items of personal property were valued at about $14,800; and two parcels of real property at $16,000. The two parcels of real property, so the evidence shows, were preserved intact by the widow, but she transmitted many of the items of personal property, and consumed some. By saving the rents, issues, and profits of the property as a whole, and by other transactions, she accumulated a considerable sum, which stood to her credit in various bank accounts at the time of her death. The inventory of her estate showed over $23,000 in cash, some items of personal property, the two parcels of real property from the husband’s estate, and a third parcel of real property which had been acquired in part with some of the former community assets.

The decree entered by the trial court awarded to appellants an undivided one-half interest in the two parcels of real property, an undivided 5/23ds interest in the third parcel, and $908, rentals thereof collected by defendant executrix from the date of the widow’s death. Appellants challenge the correctness of this award, and contend that the evidence is insufficient to support the findings upon which it is based. Among other things, they claim that they are entitled to an undivided one-half interest in the third parcel of real property, rather than only a 5/23ds interest, and that they are also entitled to certain personal property.

So far as the division of the real property is concerned, the evidence furnishes ample support for the findings and decree. The third parcel was acquired in part with former community assets, and the 5/23 ds interest is the equivalent of an undivided one-half of those assets.

With respect to the personal property, however, the record is somewhat confused. Certain items are referred to which were not listed in the inventory of the husband’s estate. Whether the court was of the view that they were never a part of the former community property, or whether appellants’ right to some of them was conceded and they were actually surrendered by defendant prior to trial of this cause, does not clearly appear. Defendant’s answer alleged that in so far as appellants “could agree upon the parts that should be delivered to them and they were willing to accept, delivery by this defendant has been made”. This delivery is not shown by the evidence, but neither is it denied. Although there is no express reference to the allegation in the findings, they do declare it to be untrue that the estate of the deceased husband “now consists” of any other property than the interests in realty awarded to appellants. In short, so far as can be ascertained from the record, substantially all of the former community property has been accounted for, and an undivided one,-half of that portion, or the transmutation thereof, which remained unconsumed at. the death of the widow, has been given to appellants. The additional assets in the hands of the executrix were not traced to the husband’s estate, and the evidence affords sufficient support for the conclusion that appellants are not entitled to any portion of them. Indeed, appellants’ claim to them is not ■ asserted with convincing urgency. It is advanced in a meager supplemental brief, filed in the fáee of the following comment found in the opening brief under the heading “Limits of Appeal”: “During the trial, plaintiffs made certain contentions . . . Many of these contentions were not sustained by Judge Gould, and, to the extent that they are not now maintained by appellants in this appeal, they may be deemed abandoned. ’ ’

The main contention of appellants may best be stated in their own language: “In substance, what appellants contend for is that the estate Mrs. Cristler received under her husband’s will was community property; that at the time of his death she had no separate property of her own; that what she had left at the time of her own death was still, essentially, the old community property in one form or another, and that at her death her life estate in it terminated, leaving plaintiffs vested with their share or interest in it, and entitled to have all of said share or interest decreed to them.” This statement overlooks two factors: First, that the widow was given power to use and consume the principal of the life estate, and second, that she was also given the absolute ownership of the income of the property.

The provisions of the husband’s will to this effect were carried into the decree of final distribution of his estate, which was couched in the precise language of the will. It decreed that all of the property was community property of the deceased and his widow. It declared the widow’s right to her undivided one-half interest in that property, and distributed it to her. It also distributed the other one-half (including all property, whether described or not) to her “to have and to hold for and during her natural life . . . ” (following the language of the will). It also provided: “To said Lucy C. Cristler an absolute and entire interest. in all the rents, issues and profits arising from said property during her natural life. ...”

This decree constituted a final and conclusive adjudication of the testamentary disposition made by the deceased husband of his property, a judicial construction of the will, and it has become the measure of the rights of the parties herein. (Luscomb v. Fintzelberg, 162 Cal. 433 [123 Pac. 247], and cases therein cited; see, also, 11B Cal. Jur., p. 796 et seq., par. 1296.) The type of estate decreed to the widow, a life estate with power to use and consume part or all of the principal for specified purposes, and a devise over of the remainder, has long been recognized in this jurisdiction. (Estate of Rath, 10 Cal. (2d) 399, cases cited at p. 404 [75 Pac. (2d) 509, 115 A. L. R. 836]; Colburn v. Burlingame, 190 Cal. 697 [214 Pac. 226]; Luscomb v. Fintzelberg, supra; In re Garrity, 108 Cal. 463 [38 Pac. 628, 41 Pac. 485].)

Likewise valid is the provision giving the widow the absolute ownership of the rents, issues, and profits of the property. In this connection appellants concede that the widow was entitled to receive and use the income during her lifetime, but they contend that the accumulation of that income which existed at her death was subject to their remainder interest. The decree of final distribution is not susceptible of such a construction. If it had provided that the widow was entitled to an “absolute and entire interest during her life in all rents ... ”, there might be force to appellants’ argument, but what it actually gave the widow was an “absolute and entire interest in all rents, issues and profits . . . arising during her natural life”. This was a conclusive adjudication that all rents, issues, profits, or income thereafter accruing to any portion of the husband’s estate should become the sole and separate property of the widow, subject to her testamentary disposition.

Appellants urge that because the widow commingled the properties, the burden was upon her executrix either to prove what items were exempt from the remainder interest or else to give the remaindermen one-half of the entire assets of which the widow died possessed, upon the presumption that they represented former community property, or transmutations thereof. It is sufficient for present purposes to note, without declaring the extent of the burden resting upon the plaintiffs or upon the defendant in a case of this character, that the testimony which was introduced by appellants themselves is ample to support the findings. When the community property passed into the possession of the widow at the time of her husband’s death, an undivided one-half becoming her own property and the other half being devised to her for the period of her life, the two estates were already commingled, and the assets were received as a unit. Although the widow made no attempt to segregate or divide the property, it is clear that she is not chargeable with deliberate commingling. She kept a fairly complete written record of all of her transactions, expenditures, and accumulations. This data was presented by appellants and received in evidence upon the trial of this cause. Appellants also introduced the record of the proceedings had on the probate of the husband’s estate. Bank statements of the widow’s various accounts were also placed in evidence. In this volume of records and accounts practically every item of former community property inventoried in the husband’s estate was accounted for, and appellants have been given the substantial equivalent of an undivided one-half of what remained, at the date of the widow’s death, of those former community assets. The court’s conclusion that other property possessed by the widow was not former community property (including the transmutations but excluding the rents, issues, and profits thereof), has sufficient support in the evidence and will not be disturbed.

The judgment is affirmed.

Curtis, J., Shenk, J., Seawell, J., Edmonds, J., Langdon, J., and Houser, J., concurred.

Rehearing denied.


author: SEAWELL, J.

text:
    [Sac. No. 5217.
    In Bank.
    February 9, 1939.]
    JOUKO HERBERT AHO et al., Respondents, v. LOUISE KUSNERT, as Executrix, etc., Appellants.

      H. C. Nelson for Appellant.
    Irwin T. Quinn for Respondents.
   SEAWELL, J.

Respondents brought this action against the executrix of the will of their stepfather to establish a trust in a parcel of real property. Said property was purchased by their mother and- stepfather as a family home, and upon the death of their mother was distributed to their stepfather as community property. Plaintiffs alleged that said property was in fact the separate property of their mother, which fact their stepfather concealed from his attorney and from the court, and thereby procured distribution to himself as community property; that he caused his attorney to represent to them that the property was community and that he was entitled to distribution thereof; and that in reliance on this representation and the promise of their stepfather that he would make a will leaving it to them, they made no appearance in the proceeding for the probate of their mother’s estate. In a second count plaintiffs alleged that their stepfather induced their mother to purchase the property with her separate funds in reliance on liis representation and promise that plaintiffs should have the property when the mother and stepfather “were gone”. In violation of said promise, he devised the property to Louise Kusnert, defendant herein, whom he married after the death of plaintiffs’ mother. The court gave judgment for plaintiffs for the whole of said property, from which defendant prosecutes this appeal.

Plaintiffs’ father died in 1924. About a year later their mother, then Elizabeth Aho, married their stepfather, Gustaf Kusnert. Kusnert moved into the Aho family home, a rented house in Falk, near Eureka. Plaintiff Alii Price was then a student at the State Teachers College at Areata, and plaintiff Jouko Herbert Aho was attending high school. The property which is the subject of this action was purchased in March, 1926. It is located in Eureka. The contract of sale provided for a purchase price of $3,600, with a down payment of $1,000, which was made, and payments of $40 a month thereafter. Payments were completed in advance of the time provided in the contract, and on November 3, 1928, a deed was executed to Gustaf and Elizabeth Kusnert. Mrs. Kusnert died intestate in April, 1930.

Plaintiffs herein contend that approximately $1800, which is less than one-half the amount paid for the house as principal and interest, was paid from separate funds of their mother, the balance being paid from community earnings of their mother and stepfather. The evidence is insufficient to establish that so large an amount was paid from the separate funds of their mother. But however this may be, payment from separate funds of the wife of not more than half the purchase price of property taken in the name of husband and wife, does not establish ownership by the wife as her separate property of the entire interest in the property. Furthermore, the testimony of plaintiffs themselves, several times reiterated, that the understanding between their mother and stepfather was that they were to have the property when both their mother and stepfather “were gone’’, negatives the idea that it was the intent of their mother that said property, or even an undivided half interest therein, should be distributed on her death as her separate property, one-third to each of them and one-third to their stepfather.

But the judgment for plaintiffs must be sustained on the theory that separate funds of their mother, and her earnings after her marriage to Kusnert, were invested in the purchase of the property on the understanding and agreement with their stepfather that if he survived her plaintiffs should succeed to the property upon his death.

At the time of the death of their own father in 1924, their mother deposited life insurance money paid to her in the sum of $1268.66 in a joint bank account which she and her husband had maintained, bringing the balance in said account to $1544.18. The sum of $437.51 was on deposit in another account at the death of their father. When the Eureka home was purchased in March, 1926, after their mother’s marriage to Kusnert, $450 was withdrawn from the larger account to apply on the down payment, and on July 30, 1926, $500 withdrawn from these accounts was applied on the purchase price. Although not clearly shown by the evidence, it is possible that other separate funds of the mother were paid on the purchase price. Plaintiffs also testified" that $600 of their mother’s separate funds was applied on the purchase of an automobile for $800 after her marriage to Kusnert.

Kusnert earned between $100 and $140 a month as a lumber mill worker. At the time of his marriage to plaintiffs’ mother in 1925 there was a balance of $9.93 in his bank account, and he had no other property. Plaintiffs became self-supporting in 1926.

During both her first and second marriages plaintiffs’ mother added to the family income by selling milk, butter and eggs, by doing laundry for the lumber mill workers, and by doing domestic work outside her home. The evidence shows that she entered into the purchase of the Eureka home with some reluctance, that she thought it too expensive for their means, but was reassured by Kusnert, who impressed upon her that when they “were gone” it would be a valuable property for the children, meaning plaintiffs.

Upon the death of their mother, Kusnert promised plaintiffs to carry out the understanding had with her when the property was purchased. He did in fact execute a will in their favor on the same day he signed the petition for letters of administration on their mother’s estate. He remarried in 1931, about a year after their mother’s death, and soon thereafter drew a will devising his estate, consisting of this parcel of real property, to his second wife. Plaintiffs were not informed of this will. Kusnert died on July 15, 1935.

By reason of his promise and understanding with plaintiffs’ mother, Kusnert, upon her death, received title to real property paid for in part by her separate funds and in part by community funds. He broke his promise to her when he devised said property to his second wife. In such circumstances equity, through fastening a trust upon the property, will secure to plaintiffs the benefits of said promise although orally made. (Lauricella v. Lauricella, 161 Cal. 61 [118 Pac. 430]; Cooney v. Glynn, 157 Cal. 583 [108 Pac. 506]; Allen v. Meyers, 5 Cal. (2d) 311 [54 Pac. (2d) 450]; Miller v. Forster, 131 Cal. App. 509 [21 Pac. (2d) 678]; Prior v. Andrews, 83 Cal. App. 782 [257 Pac. 560]; Rundell v. McDonald, 62 Cal. App. 721 [217 Pac. 1082]; 25 Cal. Jur. 170, 174-177.) Kusnert’s compliance with his promise was not dependent on his making a will in plaintiffs’ favor, since in the event of his intestacy they would have succeeded to this property. (Sec. 228, Probate Code; Estate of McArthur, 210 Cal. 439 [292 Pac. 469, 72 A. L. R 1318].)

The judgment is affirmed.

Shenk, J., Curtis, J., Langdon, J., Edmonds, J., Houser, J., and Waste, C. J., concurred.