Opinion
Hearing Granted May 28, 1942.
Appeal from Superior Court, Los Angeles County; Carl A. Stutsman, Judge.
Mandamus proceeding by Nelson J. Haas against the City of Los Angeles, the Board of Fire Commissioners of the City of Los Angeles, and others, to compel the board to place petitioner on pension service on the pension rolls as a member of the Fire Department of the city. From a judgment ordering the issuance of a peremptory writ of mandate, defendants appeal.
Reversed. COUNSEL
Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Robert J. Stahl, Deputy City Atty., all of Los Angeles, for appellants.
Joseph Scott and J. Howard Ziemann, both of Los Angeles, for respondent.
OPINION
DORAN, Justice.
This is an appeal from a judgment ordering the issuance of a peremptory writ of mandate directing appellant Board of Fire Commissioners of the City of Los Angeles to place respondent on pension service upon the pension rolls as a member of the Fire Department of said city, in conformity with the provisions of Article XVII of the Los Angeles City Charter and certain ordinances of the same city.
The facts briefly are as follows: Respondent in 1911 took and passed a civil service examination for the position of painter in the Fire Department, and he was thereafter duly assigned to the civil service position of painter in the Fire Department of the City of Los Angeles. He worked as an employee in the fire department until June, 1939, when he made application for a fireman’s pension as provided in Article XVII of the charter of the City of Los Angeles. The application was denied upon the ground that only those persons duly and regularly appointed in the fire department under civil service rules and regulations whose duty it is to prevent and extinguish fires in the City of Los Angeles are entitled to the benefits of the fire and police pension system, and that a person with the civil service status of painter in the fire department is not eligible for a fireman’s pension. There is no dispute as to the facts.
The City of Los Angeles maintains a city employees’ retirement system (Art. XXXIV, Los Angeles City Charter), the benefits of which inure to all employees in the city service in the classified civil service other than members or employees of the fire and police departments, who are entitled to benefits under the provisions of Article XVII of said charter. It is conceded that respondent, if not entitled to the benefits of the police and fire department pension fund, is entitled to the protection of the general city employees’ retirement system.
Neither appellant nor respondent correctly states the only valid question involved. Respondent states the question as follows: "Does the respondent, duly appointed to and holding the civil service position of ‘Painter--Fire Department’, come within the purview of Article XVII of the Charter of the City of Los Angeles?" Appellants state it as follows: "Is a person occupying the position of painter and who is qualified, under civil service rules and regulations, for the position of painter and no other, a member of the fire department for pension purposes, when the charter declares that for such pension purposes ‘the fire department shall consist of all persons duly and regularly appointed’," etc.
This is an action in mandamus "to compel the admission of a party to the use and enjoyment of a right or office to which [it is contended] he is entitled." Section 1085 of the Code of Civil Procedure.
It is not the function of the courts to determine the foregoing question in the first instance, or indeed at all. That duty and responsibility is with the legally constituted authority created by the charter for such purposes. When the proper legally constituted authority has acted, the sole legal question that can result from such action, in connection with the issues herein sought to be raised is, first, whether, in this instance, the Board of Fire Commissioners acted within its prescribed authority and, second, whether there was any evidence reasonably supporting its action. Manifestly, the question was addressed to the judgment and discretion of the commission, which the courts are without authority to disturb in the absence of fraud, or other actionable irregularity.
It is urged that petitioner is unlawfully precluded from the use and enjoyment of a right and office to which he is entitled and that this is so by virtue of the city charter and the ordinances applicable to the facts upon which petitioner depends.
The court found as a fact as follows: "That since the 1st day of September 1911, the duties of petitioner have consisted of and petitioner has duly been engaged in the painting of fire hydrants, ladders and other fire-fighting equipment and appliances, and the testing and treating for preservation of fire-fighting equipment and appliances, and the painting of fire houses; that since the 1st day of September, 1911, petitioner was required to and did relieve firemen on duty, and was required to and did respond to certain fire alarms in the City of Los Angeles, and was required to and did assist the Fire Department of the City of Los Angeles at scenes of fire." And further in substance that petitioner’s request to be retired and placed on a pension as a member of the Fire Department as provided by Article XVII of the city charter was denied. But that he was informed that he was to be included as a member of the City Employees Retirement System and that $900.66 which had theretofore been paid by him into the pension fund was returned to him.
The court found as a conclusion of law: "That since the 1st day of September, 1911, petitioner has been and is a member of the Fire Department of the City of Los Angeles within the meaning and purview and entitled to the benefits of Article XVII of the charter of the City of Los Angeles, as amended, and of ordinance No. 28252 (new series) and of all ordinances of the City of Los Angeles enacted pursuant to said section of said charter."
The above conclusion is without legal sanction. There is no legal authority authorizing the determination of such a question in mandamus proceedings in the premises. The question sought to be determined by the above conclusion is beside the issue. Moreover, the question as to whether petitioner was a member of the fire department within the meaning of Article XVII of the city charter was a question of fact and in the instant case a question addressed to the judgment and discretion of the Board of Fire Commissioners.
In the final analysis petitioner’s action is based on a disagreement with the judgment of the commission on this question. That an honest difference of opinion can exist in the circumstance is at once evident from a review of the record. For example, it is petitioner’s contention, quoting from petitioner’s brief under the heading "Respondent’s Fire Fighting Duties," that: "Under the Fire Department Rules of December 11, 1911, he was under the supervision of the mechanical engineer and the mechanical engineer had a duty to report to ‘all second (or greater) alarm fires’. He was instructed by the Chief of the Fire Department that he would have to report to ‘second alarm fires’ and ‘fill in’ when any company was shorthanded. He actually did report to second alarm fires and filled in when a company was shorthanded. Furthermore, his name appears three times on the department’s ‘Roll of Merit’ among the firemen who, the Roll states, ‘* * * are members of the department who have been placed in the roll of meritorious conduct for the’ years ending June 30, 1913, June 30, 1915, January 30, 1916." And under the heading "Respondent’s Fire Prevention Duties," that: "In addition to relieving firemen on duty and to responding to certain fire alarms in the City of Los Angeles, and assisting at scenes of fire upon certain occasions, respondent ever since his appointment in the Fire Department has, in addition to his duties as ordinary painter, also done a great deal of work in the nature of fire prevention, such as: Respondent tested fire hydrants to see if they were in working order and particularly to determine if the threads were in proper shape to permit the attachment of fire hose, and also painted fire hydrants; and this work continued after 1930. He took new hose to firehouses to replace damaged hose. Replaced glass in fire alarm boxes. Inspected, repainted and replaced broken bolts in fire ladders. Inspected and serviced fire fighting tools. Treated safety net. Treated materials to be used on fire hydrants. ‘Laid line’ at scene of fire and connected hose to engine and in earlier days unhitched horses from engine. Put out awning fires started by live sparks at scene of fire, and knocked sparks off hose jacket and helped stretch fire traffic lines. Drove coal wagons to fire engines at scene of fire. Drove and operated cellar pumps."
On the other hand appellant city, after reviewing the evidence relating to petitioner’s activities in the fire department, sums up his position, quoting from appellants’ brief, as follows: "Without further extending this portion of our brief, we believe that it may fairly be said, as to the facts of this case, that we are here confronted with an individual who, from boyhood on, lived in the immediate vicinity of a fire department station house and who personally was imbued with a desire to be a fireman, but, because of his physical characteristics, that is, his height and weight, was unable to meet the minimum requirements of the civil service department for fire service. He did the next best thing--he entered the department as a painter, which, so far as his civil service status is concerned and so far as the position occupied by him is concerned, was the only position he ever held. For the first two years of his employment he was assigned to the machine shop, which was located immediately adjacent to a building in which was housed both an engine company and a truck company, manned by the regular fire-fighting personnel. During this period he continued to reside immediately back of the building in which was located another engine company of the fire department. At all times, then, he was in close personal association with members of the fire-fighting force. While he knew that, so far as his civil service status was concerned, he had the position of painter and no other, he was undoubtedly told that he would be expected, as he says, to help out wherever possible where companies found themselves shorthanded at places where he was painting, which he undoubtedly did upon any and every occasion that presented itself. Of this there can be no doubt. That he regarded himself as a member of the fire department there can be no doubt. That he, upon many occasions substituted for regular firemen when those firemen wanted extra time off and for which they would have had to turn over to any other man the daily wage paid to firemen, cannot be denied. Human nature being what it is, we have no doubt but that respondent here could have spent every day, when not on duty at the machine shop, taking some fireman’s place in an engine house, when he was apparently ready, willing and anxious to volunteer for such duty at no compensation."
It will be seen from the foregoing that there is an abundance of evidence to support the conclusion of the Board of Fire Commissioners that petitioner was not a member of the fire department within the meaning of Article XVII of the charter of the City of Los Angeles, section 185 of which is as follows, and is the pertinent part thereof: "For the purpose of the provisions contained herein, the Fire Department shall consist of all persons duly and regularly appointed in the Fire Department under civil service rules and regulations whose duty it is to prevent or extinguish fires in the City of Los Angeles, under whatever designation they may be described in any salary or departmental ordinance providing compensation for said Fire Department; * * *."
Having decided in effect that it was no part of petitioner’s duty to prevent or extinguish fires and having classified him accordingly, the Board of Fire Commissioners and the Board of Pension Commissioners have been ordered by the trial court to "place petitioner on pension service and on the pension rolls as a member of the Fire Department of the City of Los Angeles, and to grant to petitioner as a member of the Fire Department of the said city all the benefits of Article XVII of the charter of the City of Los Angeles, as amended, and of Ordinance No. 28252 (New Series) and of all other ordinances of the City of Los Angeles enacted pursuant to said article of said charter of said city, and to show or cause to be shown on the records of respondents that petitioner is entitled to all pension benefits of the fire and police pension system of said city, and that they pay and cause to be paid all money incident thereto, together with costs of suit incurred herein by petitioner, taxed in the sum of $19.50." Thus the trial court has substituted the court’s judgment for the judgment of those legally constituted governmental agencies charged with the administration of municipal affairs. Not because there was anything illegal, fraudulent, arbitrary, or because some other irregularity entered into their deliberations, but because of a difference of opinion between the court and the boards as to the outcome of the only test by which such question could be determined. This the trial court was without authority to do. The courts are vested with authority to pass judgment on the validity of the acts or omissions of the above mentioned boards but not the wisdom of such action.
Petitioner is not entitled to the enjoyment "of a right or office," herein sought to be enforced in mandamus proceedings, by virtue of the charter and the city ordinances applicable thereto. Petitioner is not entitled to the enjoyment of the right or office unless and until the Board of Fire Commissioners so decides. This the commission has decided by resort to the appropriate test provided in the charter. Hence, as above noted, it is the action of the commission only which the courts may review for the limited purpose above mentioned.
It should be noted that the situation here presented bears no relation to those actions of a similar character that involve allegations of fraud, arbitrary or capricious action of administrative bodies vested with discretion to determine questions of fact. In such actions, for the purposes of determining those issues, it appears to be well settled that the court in a mandamus proceeding may resort to the equivalent of a trial de novo. But, even in these cases the court is limited, in effect and in proper cases, to directing such administrative bodies or officials to remain within the limits of their jurisdictional powers, which manifestly do not include the power to act fraudulently or arbitrarily.
Referring again to respondent’s statement of the question involved, to-wit: does the respondent, duly appointed to and holding the civil service position of "Painter--Fire Department," come within the purview of Article XVII of the charter of the City of Los Angeles? It is argued, quoting from respondent’s brief, that "this question has been answered unqualifiedly in the affirmative: (1) In 1929, by the then City Attorney: (2) In 1932, by the Board of Pension Commissioners in granting respondent a Certificate of Service entitling him to such a pension; (3) By the official annual reports of the Fire Department; (4) By the City Council by ordinance; (5) By the trial court herein".
It may be conceded that such events occurred, but neither the opinion of the city attorney in 1929 nor the action of the board of pension commissioners in 1932 nor whatever the annual reports of the fire department may reveal, nor any ordinance that the record discloses, are of any help in deciding the above mentioned sole question here presented. Respondent concedes that the doctrine of estoppel does not apply. The action taken in the past, as above described, was not binding on the board of fire commissioners, called upon to determine petitioner’s status when his application for a pension was filed. It is the action of this commission, and this commission only, that is before the court for review.
The city charter of the City of Los Angeles provides that: "The right of an officer or employee of the Fire Department to hold his office or position and to the compensation attached to such office or position is hereby declared to be a substantial property right of which he shall not be deprived arbitrarily or summarily, nor otherwise than as herein in this section provided." Because of the above provision it may be urged that the right to the final determination of the issues in a court, where only judicial power can be exercised, cannot be denied by reason of the due process clause in the constitution. If such a property right exists, authority therefor must be found elsewhere than in the city charter, for the constitutional grant of power that constitutes the source of the charter contains no grant of power to define or create individual property rights by charter. Hence, the provision purporting to create such a property right is void.
In a decision by the Supreme Court of California, filed March 16, 1942, not yet final, the power of the court in mandate proceedings was considered at length. Laisne v. California State Board of Optometry et al., 19 Cal.2d 831, 123 P.2d 457. There, appellant’s license to practice optometry had been revoked by the California State Board of Optometry and in an attempt to set aside the order of said board, relief was denied by the trial court.
In the Laisne case the trial court had denied appellant the right to introduce any new and material evidence and compelled the submission of the case on the record and proceedings before the board of optometry. The Supreme Court reached the conclusion that the validity of the judgment hinged upon the action of the trial court in denying the appellant the right to introduce such evidence. The Supreme Court in that connection pointed out that if the superior court in the mandate proceedings were limited to the evidence presented before the board, or if the findings of fact were conclusive on the court, then the board would be exercising the complete judicial power reserved to the courts. The decision further declared that "the appellant’s right to practice optometry was a vested property right." And that "such right cannot be finally destroyed by a nonjudicial body if the action of that body is questioned in a court of law in a mandate proceeding." It was held in substance therefore that only a trial de novo would afford appellant his full constitutional rights in the circumstances and that the judgment of the court as to the facts could, and should in proper cases, supersede the judgment of the board. It is assumed throughout the prevailing opinion that the license to practice optometry is a property right entitled to protection under and by virtue of the due process clause of the constitution. Manifestly, if the license to practice optometry were not property the due process clause of the constitution would not apply. It is at once evident that if such an assumption is unwarranted, it follows that the conclusion is based on a fallacy underlying the whole opinion that effectively annuls the conclusion, for it is axiomatic in logic that the validity of a conclusion can survive only so long as the truth of the premise upon which it is based can be sustained. This being true, it is important to inquire whether the license to practice optometry is actually a property right. This subject is not discussed in the prevailing opinion. It is assumed as a matter of fact and as a matter of law without further comment. However, two former decisions of the Supreme Court of California are relied on as authority, viz: Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L.R.A.,N.S., 896, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, and Suckow v. Alderson, 182 Cal. 247, 187 P. 965, 966. In the Hewitt case it is assumed, without comment or citation of authority, that the license to practice medicine is a property right. The Suckow case also involved the act regulating the practice of medicine and followed the Hewitt case as authority for the proposition that the right to practice medicine is a property right. The Suckow case, however, adhered to the old rule that the board of medical examiners was not exercising "the judicial power of the State." Neither case turned on the question as to whether the right to practice medicine was a property right.
Title I of part I of the Civil Code deals with the nature of property. The pertinent provisions are as follows:
Section 654: "The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property."
Section 655: "There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good-will of a business, trade-marks and signs, and of rights created or granted by statute."
Section 657: "Property is either: 1. Real or immovable; or, 2. Personal or movable."
Section 663: "Every kind of property that is not real is personal."
Section 669: "All property has an owner, whether that owner is the state, and the property public, or the owner an individual, and the property private. The state may also hold property as a private proprietor."
Section 671: "Any person, whether citizen or alien, may take, hold, and dispose of property real or personal, within this state." And property may be acquired by: Occupancy, accession, transfer, will, or succession. Section 1000, Civil Code.
The above provisions are of a general nature and have a uniform operation, as the constitution requires; they affect all alike, whether minors or adults, citizens or aliens, sane or insane. And it is significant to note that the above provisions omit the use of the term property rights. The reason for the omission both in the constitution and the statutes, however, is at once obvious. The term property necessarily includes all rights appertaining to property; essentially a part of property. A property right, of necessity, is dependent on property; it is merely an incident to property. A simple right cannot under the law be accorded the distinction of a property right unless its origin can actually be traced to property and its continued relation thereto retained. Unless capable of such identification it cannot be accepted as a property right. Thus it will be seen that unless it can be shown that the license to practice optometry is an incident to property, the assumption that nevertheless it is a property right is without foundation. Property, as such, as the above-quoted provisions of the Civil Code demonstrate, has definite legal characteristics; for example, it is, as noted above, capable of ownership; it may be sold, mortgaged, inherited, etc.; in addition to many others too well known to require enumeration. Of all of the characteristics peculiar to property, what single one can be identified with the license to practice optometry? Therefore, how can the license to practice optometry be upheld as an incident to property? If it cannot be so upheld as an incident to property, how can the contention that it is a property right be successfully maintained? And finally, in this connection, if the license to practice optometry cannot be demonstrated to be either property or a so-called property right, how can the action of the board of optometry be held to be an invasion of the judicial power vested exclusively in the courts? That the right to practice optometry is a personal right and the license in the nature of a conditional or qualified privilege, properly subject to regulation under the police power of the state, there can be no question. Manifestly, it is the right of everyone to practice optometry, providing the conditions precedent are met. But the license so to practice remains a privilege. Once granted, professional success does not alter the status of the license. Nor does material success alter the conditions upon which the license is granted. Hence, in the matter of revoking a license the question of deprivation of property is irrelevant.
Likewise, the determination of the question of whether a civil service employee is a fireman, is one separate and apart from that of his right to a pension. An employee cannot be held to be a fireman merely because otherwise he would not be entitled to the benefits of a fireman’s pension. Nor can it be argued that because a fireman is entitled to such benefits the power to determine his status as a member of the fire department involves the power to determine a property right. Here again, the question of deprivation of property is irrelevant. Such a question only becomes relevant after the status of the employee is determined; and any argument to the effect that, because of property rights involved, a fire department employee’s status as a fireman may not be finally determined by an administrative board, is without substance.
For the foregoing reasons the judgment is reversed.
YORK, P. J., concurred.
WHITE, Justice (dissenting).
I dissent. The inevitable effect of the majority opinion in this case will be the abrogation of the right of one possessed of a property or contractual right to appeal to the courts from the spoliation of such rights and to leave the possessor of such rights to the mercy of legislative administrative agencies, working as they do in a field peculiarly exposed to political demands. True, these boards grant a hearing and take evidence, but are the courts to say that the findings of fact of such boards are conclusive when the evidence clearly establishes that the findings are erroneous and that personal or property rights have been invaded or abridged? St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 52, 56 S.Ct. 720, 80 L.Ed. 1033. To answer this inquiry in the affirmative is to admit that the judicial power of a court of competent jurisdiction can be circumscribed by giving finality to the actions of such boards even though such actions transcend the limits of constitutional authority and due process of law.
That respondent was a member of the fire department is conceded. He was appointed following a civil service examination, and it has frequently been held that a classified civil service employee possesses a vested right to his office under the law. Indeed, subdivision 1 of section 135 of the Los Angeles City Charter, which has to do with the discharge of members of the city fire department, specifically declares a position in the fire department to be "a substantial property right of which he" (the fire department employee) "shall not be deprived arbitrarily or summarily." Such being the case, does not the fire department employee have a vested property right in the emoluments or perquisites of his office, such as the pension provided for such employees, when his duties in the fire department bring him within the pale of section 185 of the charter? It has been held with reference to such vested rights that when a board or commission acts arbitrarily against such vested rights existent under the law, such board or commission acts against the law itself, and in such cases the courts will by mandamus compel recognition by the board of the individual’s right and conformity by such administrative tribunal with law. Lotts v. Board of Park Commissioners, 13 Cal.App.2d 625, 634, 57 P.2d 215.
If respondent herein possessed, as I believe he did, both a property and a contractual right to receive the pension he had earned by the character and manner in which, as well as the period over which, he discharged his duties in the fire department, then if the findings of the board upon his claim are conclusive upon the courts, we must conclude under the majority opinion that such boards are entitled to and do exercise complete judicial power, reserved, as I feel, by the Constitution of this state, to enumerated courts thereof. Const. art. VI, sec. 1; Laisne v. California State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457. To my mind, any such exercise of judicial power by such administrative board is in direct conflict with the cited constitutional provision. To quote from a concurring opinion by Chief Justice Beatty in Glide v. Superior Court, 147 Cal. 21, 30, 81 P. 225, 229, "Vested rights of property and contract rights are placed by the Constitution under the protection of the courts where alone the questions of law and fact upon which they depend can be finally decided." In my judgment, the administrative board whose acts are here challenged was without authority to make conclusive findings of fact and to predicate thereon a final order, not reviewable by the courts, which would deprive respondent of a property right vested in him to receive his pension as a member of the fire department. Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848; McDonough v. Goodcell, 13 Cal.2d 741, 752, 91 P.2d 1035, 123 A.L.R. 1205; Laisne v. California State Board of Optometry, supra.
If the foregoing be the law in cases which involve factual differences and where the owner of a property right is entitled to the independent judgment of a competent court in what amounts to a trial de novo, then certainly the possessor of a property right incident to a civil service position is entitled to the independent judgment of a court of law when an administrative board, in the face of stipulated and conceded facts, arbitrarily, unlawfully, and in defiance of the plain provisions of the city charter, deprives him of his vested right to participate in the pension system provided for fire department employees performing the duties assigned to him. The instant proceeding does not partake of a situation where it is sought to control the unabused discretion conferred upon an administrative board. It rather provides a case where a certain contingency, viz., the performance of services of a certain type over a prescribed number of years, has taken place, by reason whereof the charter requires the board to perform a prescribed act, viz., retire the employee on a pension. In such case the functions of the board are ministerial, and upon the happening of the contingency the writ of mandate will issue to control the action of the board.
I take the position that whether respondent is entitled to participate in the pension benefits of the fire and police pension system is dependent upon a construction of section 185 of the city charter, which provides that for the purpose of determining the eligibility of a person working in the fire department to participate in the pension system, such person must be a member of the fire department "duly and regularly appointed * * * under civil service rules and regulations whose duty it is to prevent or extinguish fires in the City of Los Angeles, under whatever designation they may be described in any salary or departmental ordinance providing compensation for said fire department; * * *."
That respondent is a member of the fire department cannot be questioned. In 1911 he passed a civil service examination for the position of "painter in the fire department," and was thereafter duly appointed to such position in the department. Appellant Board of Fire Commissioners, however, takes the position that regardless of his membership in the fire department, respondent is not entitled to a pension because the civil service classification of his position did not impose upon him as a matter of law the duty of extinguishing or aiding in the prevention of fires. I, however, take the position that had the framers of the charter provision governing pensions in the fire department intended to so limit the benefits of that system, they could and would have so stated. Instead, we find the charter provision providing in clear and unequivocal language that pension benefits should inure to "all persons duly and regularly appointed in the fire department under civil service rules and regulations whose duty it is to prevent or exting uish fires * * * under whatever designation they may be described. * * *"
The trial court found upon clear and convincing evidence that while respondent was employed as a painter in the fire department, his duties included certain definite fire-fighting and fire-prevention activities. We cannot be indifferent to the rule which requires of us in ascertaining the intent and meaning of the charter provisions, to indulge in a liberal construction thereof to the end that the beneficial results aimed at may be achieved. Hurley v. Sykes, 69 Cal.App. 310, 231 P. 748. The clear intent of the fire department pension provisions is to protect all persons employed in the fire department whose duty it is to aid in the extinguishment or prevention of fires. The language of the charter provisions in question indicates without peradventure of a doubt that it is not the classification of a member of the fire department that determines his eligibility for a pension, but it is the duties performed by such member that is decisive.
That respondent was engaged in the duties of both extinguishing and preventing fires cannot be questioned, when, as the record shows, he was required by the chief of the department to report to all second or greater alarms of fire; to "fill in" when any company of fire-fighters was short-handed; and that he actually did both. His name appears three times on the department’s "roll of merit," made up of members of the fire department who performed outstanding or meritorious services. Respondent also actually participated in putting out fires. During his incumbency in the fire department he drove fire apparatus to the scene of fires; he "laid line" at the fires; and connected hose to the engine. Included among his fire-prevention activities was his inspection of fire-fighting tools and treating materials used in fire hydrants. Through his years of service in the department the Board of Pension Commissioners accepted respondent’s payments to the pension fund; and as far back as May 22, 1932, the last-mentioned board issued to respondent a certificate of service pursuant to ordinance No. 67778, which certified that he had served as a member of the fire department for twenty years and was entitled to retirement as provided in section 181 of the Los Angeles city charter. The ordinance just mentioned reads in part: "Upon the completion of the period of service mentioned in section 181 of the charter of the City of Los Angeles, entitling such member to retire under its provisions, such member shall be entitled to retire at any time thereafter from active service from such department in accordance with the provisions of said section 181 hereinabove referred to, which right shall be a fully matured, absolute, vested property right, reserved for such member as a constituted and granted right to retire." Pursuant to the terms of another city ordinance, respondent was classified as a "pension employee," as distinguished from a "non-pension employee" or "civilian employee."
This case furnishes a striking example of the inequity and injustice that would ensue were we to accept the claim of appellants that only those members of the department who are classified in civil service as fire-fighters are eligible to participate in the fire and police pension system. It also furnishes a clear reason why the framers of the charter provision used language the clarity of which admits of no denial that the meaning and intent was to extend the benefits of the pension system to all persons working in the fire department whose duty was to extinguish or prevent fires, and that, notwithstanding any designation by which they might be described in any salary or departmental ordinance.
It is unnecessary to here again reiterate at greater length my views of the meaning and intent of the charter provisions under consideration. Such views are further set forth in dissenting opinions filed by me in the cases of Knoll v. City of Los Angeles, Cal.App., 124 P.2d 113, and McKeag v. Board of Pension Commissioners, Cal.App., 124 P.2d 109, this day decided.
For the reasons stated in the last-cited cases as well as for the reasons advanced herein, the judgment in my opinion should be affirmed.