Opinion
Hearing Granted May 28, 1942.
Appeal from Superior Court, Los Angeles County; William S. Baird, Judge.
Mandamus proceeding by Lily Knoll against the City of Los Angeles, the Board of Fire Commissioners of the City of Los Angeles, and others, to compel the board to admit petitioner to membership in the fire and police pension system of the city. From an adverse judgment, petitioner appeals.
Affirmed.
COUNSEL
Loren A. Butts, of Los Angeles, for appellant.
Ray L. Chesebro, City Atty., F. Von Schrader, Asst. City Atty., and Robert J. Stahl, Deputy City Atty., all of Los Angeles, for respondents.
OPINION
DORAN, Justice.
This is a proceeding in mandamus brought by appellant to compel respondent Board of Fire Commissioners of the City of Los Angeles to admit her to membership in the fire and police pension system of said city.
It is conceded by all parties that so far as the determination of the question of law involved herein is concerned, there is no dispute as to the pertinent facts, which are that on November 3, 1917, appellant was, in accordance with the civil service rules and regulations of the City of Los Angeles, appointed and employed as a member of the fire department of said city, and has been at all times subsequent thereto, and was at the time of the commencement of this action, a member of the fire department, holding and occupying in such department a position the title of which is that of general clerk, designated in the fire department salary ordinance of said city as code number 2353-M.
By ordinance number 71513, adopted by the Council of the City of Los Angeles in 1932, the departmental salary ordinance of the fire department was subdivided into two groups, the first being entitled "Pension Employees," followed by "Non-Pension Employees." These designations continued until July 1, 1938, when by the provisions of ordinance number 79867 the two classifications aforesaid were changed to read (a) "Firemen" and (b) "Civilian Employees." During all the times just mentioned, all positions designated code 2353-M in the salary ordinance, and which code designation covers the position occupied by appellant, have been carried as "Non-Pension" or "Civilian Employees."
The trial court found that the duties performed by appellant did not in any way relate to the prevention or extinguishment of fires. It was further found by the court that appellant was not a regular member of the Los Angeles city fire department within the intent and meaning of sections 180 to 189 inclusive of the City Charter and therefore was not entitled to share in the benefits of the police and fire pension system.
The question here involved is the same as that in Haas v. City of Los Angeles, Cal.App., 124 P.2d 100, this day decided. While it is true that the trial court was without authority to pass directly upon the question of whether appellant was a member of the fire department and entitled to share in the benefits of the police and fire pension system, yet for the reasons given in the opinion in the Haas case the judgment herein is affirmed.
YORK, P. J., concurred.
WHITE, Justice (dissenting).
I dissent. My views with respect to the right of the court to review and control by mandate the action of the administrative board by reason of the happening of certain contingencies is fully covered in the dissenting opinion this day filed by me in the case of Haas v. City of Los Angeles, Cal.App., 124 P.2d 100.
In the instant case, as in the case just cited, there can be no question but that appellant is a member of the fire department. Section 185 of the charter specifically provides that "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; and the Police Department shall consist of all members of such Police Department appointed under civil service rules and regulations and sworn in, as provided by law, to perform the duties of a regular police officer of the City of Los Angeles, under whatever designation that they may be described in any salary or departmental ordinance providing compensation for the members of said Police Department. The provisions as herein in this charter contained shall apply to all members of the Fire and Police Departments as in this section defined, and to all members of said departments who have been heretofore granted pensions."
There can be no doubt that appellant is a person "duly and regularly appointed in the fire department under civil service rules and regulations," but the controversy presented herein centers around the question of whether in appellant’s position in the fire department she was one whose "duty it is to prevent or extinguish fires in the City of Los Angeles." The duties performed by appellant as a member of the fire department, as disclosed by the record, may be thus summarized: To keep a full and complete record of all fires with data of such fires which occur in the City of Los Angeles; to give out information and reports of such fires to the various bureaus and fire department officials when such information and reports are necessary; to maintain tables and analyses of fires; to render a daily report to the Fire Prevention Bureau, showing the location of fires, the inspection district in which fires have occurred, the nature of such fires, the estimated loss because of such fires, and the cause of such fires; to prepare and submit reports to the chief engineer and the Board of Fire Commissioners showing fire losses, causes of fires, location and type of buildings in which fires have occurred; to prepare and submit to the chief engineer of the fire department statistical data, schedules, tables and analyses of the causes of fires and fire alarms, sources of fires, analyses of fire alarms as to type of construction, the number of buildings damaged by fire, analyses of fire alarms relative to the spread and extent of damage to buildings by fire, classification of fire losses in the different types of buildings; analyses of the various methods of fire extinguishment; and to furnish data, prepare tables, analyses and reports whenever necessary, and to do all other duties which may be assigned to her within the scope of her ability.
In connection with the foregoing, the chief engineer of the Los Angeles Fire Department testified: "She is called upon in the performance of her duties to use her incentive, judgment and discretion. There is no question about it at all. She is indispensable in that respect." A battalion chief of the same department, in charge of the Fire Prevention Bureau, testified: "The reports are essential and necessary to the performance of the duties of my position. We must find out the reason of the fires. We do not get that information that I have just referred to before the inspection of the reports."
A deputy fire prevention engineer of the fire department testified: "* * * I receive reports from Miss Knoll daily. They show where fires have occurred, the type of building in which these fires occur and the cause of the fire and the loss. I use these reports very much in the work of the fire prevention bureau. The reports are used in connection with my work as follows: If we did not know what the causes of the fires were and how to safeguard the city in fire prevention, we could not really function over there as a fire prevention bureau very well. * * * We have to depend on the analyses, the table of schedules, the daily reports of Miss Knoll here to determine what are the proper safeguards to take in preventing fires."
Section 185 of the charter specifically provides that for the purpose of the pension provisions therein contained the members of the fire department eligible to participate in its benefits must be those "whose duty it is to prevent or extinguish fires in the City of Los Angeles." That such restriction was contemplated by the people in adopting the charter is emphasized by the language immediately following that just mentioned in section 185, which provides that members of the police department entitled to pension benefits shall consist only of "all members of such police department * * * appointed under civil service rules and regulations, and sworn in, as provided by law, to perform the duties of a regular police officer for the City of Los Angeles." This brings us to a consideration of the question as to whether or not appellant in her position of a general clerk in the fire department was a member of said department "whose duty it is to prevent or extinguish fires." I am not unmindful of the rule which requires that in ascertaining the intent and meaning of the charter provision regarding pensions we should indulge in a liberal construction to the end that the beneficial purpose aimed at shall be carried out, but in so doing I do not think we are authorized to disregard or ignore the plain intent and meaning of language used by the framers of the charter and adopted by the electors when they voted for such charter. Where, as here, the language of section 185 of the charter seems so explicit in its meaning that the benefits of the pension system in question shall be restricted to certain members of the fire department, it would be unfair to such members who contribute to the pension fund, as well as to the public whose funds also support the system, to extend its benefits to others than those within the class established by the charter as entitled thereto. In other words, the equities are not always exclusively on the side of the applicant for pension benefits, however helpful to the maintenance of the fire department the services of such applicant may be, when such services do not come within the classification set up in the charter provisions creating the pension system.
I do not construe the charter as limiting the fire department pension benefits only to those members of the fire department who are constantly exposed to injury and death in the extinguishment of fires, but do feel that except for such firemen the pension benefits are not available to others unless they be engaged in the performance of duties which aid in the prevention of fires. Does appellant come within the last-named category of fire department employees? I think she does. As heretofore pointed out, the charter does not limit the pension benefits solely to those firemen engaged in a physical struggle with the flames, but includes those whose duties are to aid in the prevention as well as the extinguishment of fires. Surely it would not be contended that members of the fire department who check private premises for the presence thereon of combustible materials or other fire hazards would not be entitled to participate in the pension system. In People ex rel. Tucker v. Ennis, City Ct., 7 N.Y.S. 630, a telegraph operator in the employ of the fire department was held to be a member of the force for extinguishing fires. So also in People ex rel. Smith v. Wurster, 89 Hun 7, 35 N.Y.S. 86, it was held that a surgeon whose duty it was to attend sick members and answer fire alarms was a member of the force for extinguishing fires.
I do not wish to be understood as holding that every clerk or stenographer employed by the fire department is entitled to participate in the pension fund, but the duties performed by appellant herein were not merely clerical. They involved the exercise of discretion, judgment and initiative on her part. She classified, analyzed, and transmitted to various officials of the fire department her conclusions derived from such analyses. When the charter provisions herein are read in connection with the subject matter thereof, it seems to me at once apparent that participation in the pension fund is not to be restricted to those who actually combat the flames, but is available to those whose duties require them to aid in the prevention of conflagrations. Included among appellant’s duties is the furnishing of daily reports to the fire prevention bureau, showing in which inspection districts fires occurred, the location of and nature of such fires, and the estimated loss sustained, as well as the cause of such fires. The reports furnished by appellant are checked against the fire prevention records to determine when the premises as shown in said reports were previously inspected, what conditions were found to exist, and whether the existing conditions constitute a violation of fire ordinances. The reports are also utilized to determine whether the district has been properly inspected by the inspector; to determine what type of buildings are proving the greatest fire hazard; to determine from the reports the greatest causes of fires and what measures to adopt to combat these causes, such as the drafting of new fire ordinances; to determine where the greatest number of fires is occurring in order to arrange the assignment of fire inspectors to the various districts; to determine the responsibility of inspectors and the question of whether they are fulfilling their duties; to make spot maps showing location of grass fires and other causes. Appellant’s reports are also used in fire prevention instructions and public education regarding various fire hazards; in preparing fire facts for publicity and school use during Fire Prevention Week; in checking the number of fires, causes and losses before, during and after Fire Prevention Week, for the purpose of making a report to the National Fire Waste Council. They also serve to check on false alarms to determine the effectiveness of various methods of reducing the number of such alarms.
I have heretofore set forth some of the testimony given by ranking officials of the fire department as to the nature, value and indispensability of appellant’s contribution to the fire-prevention program of the department. To the testimony already narrated might be added the testimony of a fire department captain in charge of the school detail of the fire prevention bureau, who testified that he was an instructor in the fire college, and "had specialized reports from Miss Knoll for instructional purposes as well as for inspection in the field and public education. * * * The reports aided and assisted me in performing my duties. * * * The reports must be made up with judgment and careful selection. The reports are available to me. I take the reports that Miss Knoll gives me, consider that information and use it in my work. She has to use judgment in selecting material and I, in turn, use judgment in distributing that material."
Respondent concedes the importance of the work done by appellant, so far as the efficient conduct of the fire department is concerned, but insists that it is not the duties performed by a member of the fire department, but the civil service status and the duties imposed upon holders of such civil service status that determine eligibility for pension benefits. In other words, respondent argues that if a regularly classified civil service fireman were assigned appellant’s duties or were assigned to the salvage bureau or fire prevention bureau, such employee would nevertheless be entitled to participate in the pension system, not because of the duties he was performing, but because of the duties imposed by law upon one holding the civil service classification of a fireman. I do not concede the soundness of this argument, in view of the plain and understandable language of the charter, section 185 of which provides that "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 department."
It is noteworthy that the section does not restrict the operation of the fire department pension fund to those members of the department of any particular designation described in any salary or departmental ordinance, but on the contrary, provides that notwithstanding any descriptive designation in the rules or ordinances, any employee whose duties involve the prevention or extinguishment of fires shall be regarded as a member of the fire department entitled to participate in the pension benefits of the fire department pension system. If the framers of the charter or the people in adopting the same had intended to limit the benefits of the system to those classified as firemen, it would have been very simple to so state. That they did not intend such a limitation is evident from the use of the language providing that any member of the fire department whose duty it is to prevent or extinguish fires in the City of Los Angeles shall be eligible to share in the pension funds regardless of the designation given him in any salary or departmental ordinance. From what has been said it follows that the action of the city council in passing an ordinance which placed appellant by reason of her civil service classification in the "Non-Pension" class was without force or effect because it contravened the plain intent, purpose and meaning of the charter provision. It is clear to me that appellant, because her duties related to and were part of the fire prevention program of the department, is entitled to share and participate in the benefits of the pension system set up by the charter for the benefit of members of the fire department as described and provided for in sections 180 to 189 of the charter.
For the reasons herein stated, as well as for the reasons advanced in the cases of Haas v. City of Los Angeles and McKeag v. Board of Pension Commissioners, Cal.App., 124 P.2d 109, I am of the opinion that the judgment of the trial court should be reversed and the cause remanded with directions to enter judgment in favor of the plaintiff.