Fremont Police Ass'n v. City of Fremont

California Court of Appeal

Fremont Police Ass'n v. City of Fremont

48 Cal. App. 3d 801, 122 Cal. Rptr. 92, 1975 Cal. App. LEXIS 1156

CourtCalifornia Court of Appeal

DecidedMay 20, 1975

DocketCiv. No. 35040

StatusPublished

Cited by4 cases

This text of 48 Cal. App. 3d 801 (Fremont Police Ass'n v. City of Fremont) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fremont Police Ass'n v. City of Fremont, 48 Cal. App. 3d 801, 122 Cal. Rptr. 92, 1975 Cal. App. LEXIS 1156 (Cal. Ct. App. 1975).

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Opinion

[803]*803Opinion

CHRISTIAN, J.

The Fremont Police Association appeals from a judgment determining the validity of a personnel rule of the City of Fremont. The personnel rule complained of grants a vacation of 12 working days to any policeman with less than 5 years of employment; the issue is whether Government Code section 38634¹ requires the city to grant an annual leave of 15 working days to members of its police force.

The same question was considered by the Attorney General in an opinion which concluded that the term “days” in section 38634 refers to calendar rather than working days. (31 Ops.Cal.Atty.Gen. 132.) Opinions of the Attorney General are not binding on the courts, but they are entitled to great weight. (Smith v. Anderson (1967) 67 Cal.2d 635, 641, fn. 5 [63 Cal.Rptr. 391, 433 P.2d 183].) The opinion points out that the Legislature has in certain other enactments expressly provided that the term “days” refers to working days. No such specification appears in section 38634. When section 38634 was enacted in 1949, Government Code sections 18050 and 24005 had both referred to “working days” in the computation of vacation time for state and county employees respectively. The omission of that term from section 38634 suggests that the Legislature had not meant to refer to working days in providing a minimum standard for police vacations.

The statutes had previously provided that cities may grant each policeman “a leave of absence from active duty for a period of... 15 days.” (See Stats. 1891, ch. 49, § 1, p. 47; Stats. 1907, ch. 44, § 1, p. 62.) Appellant argues that the deletion of the word “period,” when the enactment was codified as section 38634, was significant. But the changed phraseology appears to be no more than a deletion of superfluous language; there is no significant difference between the expressions “period of 15 days” and “15 days.” A change in phraseology does not impart a change in the meaning of a statute unless there is some material alteration thereof. (45 Cal.Jur.2d, Statutes, § 125, p. 634.)

A similar statute, Government Code section 53250,² has been construed to mandate only 15 calendar days (not working days) of vacation [804]*804for firemen. (See Cochrun v. County of San Bernardino (1964) 229 Cal.App.2d 362, 367 [40 Cal.Rptr. 298].) Appellant points out that section 38634 contains no reference to consecutive days. But that difference in language does not compel the conclusion that section 38634 was designed to reach a contrary result. The word “day” had been construed to mean calendar day prior to the enactment of section 38634 (cf. Fish & G. Code, § 35; Taylor v. Palmer (1866) 31 Cal. 240, 244); it is to be assumed that the Legislature had enacted the section with knowledge of the existing laws. (45 Cal.Jur.2d, Statutes, § 101, p. 615.) We conclude that the trial court reached the correct result.

The judgment is affirmed.

Caldecott, P. J., and Emerson, J.,

* concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 16, 1975.

Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

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[803]*803Opinion

CHRISTIAN, J.

The Fremont Police Association appeals from a judgment determining the validity of a personnel rule of the City of Fremont. The personnel rule complained of grants a vacation of 12 working days to any policeman with less than 5 years of employment; the issue is whether Government Code section 38634¹ requires the city to grant an annual leave of 15 working days to members of its police force.

The same question was considered by the Attorney General in an opinion which concluded that the term “days” in section 38634 refers to calendar rather than working days. (31 Ops.Cal.Atty.Gen. 132.) Opinions of the Attorney General are not binding on the courts, but they are entitled to great weight. (Smith v. Anderson (1967) 67 Cal.2d 635, 641, fn. 5 [63 Cal.Rptr. 391, 433 P.2d 183].) The opinion points out that the Legislature has in certain other enactments expressly provided that the term “days” refers to working days. No such specification appears in section 38634. When section 38634 was enacted in 1949, Government Code sections 18050 and 24005 had both referred to “working days” in the computation of vacation time for state and county employees respectively. The omission of that term from section 38634 suggests that the Legislature had not meant to refer to working days in providing a minimum standard for police vacations.

The statutes had previously provided that cities may grant each policeman “a leave of absence from active duty for a period of... 15 days.” (See Stats. 1891, ch. 49, § 1, p. 47; Stats. 1907, ch. 44, § 1, p. 62.) Appellant argues that the deletion of the word “period,” when the enactment was codified as section 38634, was significant. But the changed phraseology appears to be no more than a deletion of superfluous language; there is no significant difference between the expressions “period of 15 days” and “15 days.” A change in phraseology does not impart a change in the meaning of a statute unless there is some material alteration thereof. (45 Cal.Jur.2d, Statutes, § 125, p. 634.)

A similar statute, Government Code section 53250,² has been construed to mandate only 15 calendar days (not working days) of vacation [804]*804for firemen. (See Cochrun v. County of San Bernardino (1964) 229 Cal.App.2d 362, 367 [40 Cal.Rptr. 298].) Appellant points out that section 38634 contains no reference to consecutive days. But that difference in language does not compel the conclusion that section 38634 was designed to reach a contrary result. The word “day” had been construed to mean calendar day prior to the enactment of section 38634 (cf. Fish & G. Code, § 35; Taylor v. Palmer (1866) 31 Cal. 240, 244); it is to be assumed that the Legislature had enacted the section with knowledge of the existing laws. (45 Cal.Jur.2d, Statutes, § 101, p. 615.) We conclude that the trial court reached the correct result.

The judgment is affirmed.

Caldecott, P. J., and Emerson, J.,

* concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 16, 1975.

Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

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