Hinton

This is an appeal from a judgment in favor of respondents entered upon an order sustaining a general demurrer to the second amended petition for a writ of mandate.

The petition alleges: “That on June 9, 1908, the said commission created ‘Class XXII. Clerks (Class b) ’ within ‘Division A.—Clerical service, ’ of the classification of the civil service of said city and county. That subsequently, on March 30, 1909, said commission changed the designation of said class to ‘Class IV—Clerks (Class b).’ On said March 30 said commission for the first time defined said class as follows: ‘Resolved, that all permanent positions as timekeepers, storekeepers, tabulators, filing clerks, and other positions having similar duties, and all permanent clerkships carrying salaries of $1,440 per annum, or less, be and are hereby classified under the designation ‘Clerks (Class B).’ And further ‘That applicants who qualify in this examination be eligible only for appointment to permanent positions carrying salaries of $1,440 or less. ’ That prior to said March 30, 1909, there had been created by said civil service commission certain classes of experienced clerks in the classified civil service of said…

I dissent from the order denying a rehearing of this cause. The question presented for decision is not which system of classification of eligibles for employment in the clerical service of San Francisco is the better, but is whether the resolution of June 9, 1908, establishing “class B” was a valid exercise of the discretion of the commissioners. If it was, the petitioner, upon being enrolled in that class after successfully passing the prescribed examination, acquired a vested' right, of which he could not be deprived short of two years, to be recommended in his turn for employment in any clerical position under the municipal government the annual salary of which was not in excess of $1,440. I can see no reason for denying the power of the commissioners to establish the class, and while it was undoubtedly the right of their successors, or of themselves to rearrange the classification, they could not in that way deprive the petitioner and other eligibles of their right during the two year term. As to them the change could not take effect until that time had elapsed. (Charter, art. XIII, sec. 10.) It is, however, the misfortune of petitioner that this view, even if it had…