Shealor v. City of Lodi

145 P.2d 574, 23 Cal. 2d 647, 1944 Cal. LEXIS 184

• Court: California Supreme Court
• Decided: February 1, 1944
• Docket: Sac. 5630
• Status: Published

Opinions

EDMONDS, J.

The petitioner, a policeman employed by the city of Lodi, claims the right to retire upon a pension as provided by a statute enacted in 1889 “to create a Police Relief, Health, and Life Insurance and Pension Fund in the several counties, cities and counties, cities, and towns of the State.” (Stats. 1889, p. 56, Deering’s Gen. Laws, Act No. 6012.) Following a trial, the court held that he is entitled to the benefits of the act and issued a writ of mandate requiring the city, and certain of its officers, to retire him from active service.

The principal problem is one of construction. The appeal of the city and those persons against whom the writ was directed is rested mainly upon the contention that the statute is an enabling act and not mandatory legislation requiring a municipality of the sixth class to comply with its terms. Also, the trial court’s finding that there are ample funds in the city’s treasury to pay the pension fixed by the judgment is challenged as being without support in the evidence. The respondent argues that the statute mandatorily applies to every municipality having a police force, and in support of the finding he points to undisputed testimony showing the receipt by the city, during the five years preceding the trial, of more than $7,800 from collections specified by the Legislature as the sources of the pension fund.

Section 1 of the act provides: ‘ ‘ The chairman of the board of supervisors of the county, city and county, city or incorporated town in which there is no board of police commissioners, the treasurer of the county, city and county, or incorporated town, and the chief of police, and their successors in office, a,re hereby constituted a board of trustees of the police relief or pension fund of the police department . . . which board shall be known as the ‘Board of Police Fund Commissioners’; provided however, that where there is in any county, city and county, city, or town, a board of police commissioners, then such body shall constitute said board of trustees of the police relief and pension fund of the police department.”

By section 2 of the statute the board is directed to organize and annually to file a report. Section 3 specifies, so far as is pertinent here, that an officer having served 20 years and having reached the age of 60 years shall, upon his application, be entitled to be retired upon a pension equal to one-half of the salary attached to the rank he held for the year preceding his retirement. It is admitted by the pleadings that, if the legislation is mandatory, the petitioner possesses the qualifications both as to age and length of service as a member of the police department of the city of Lodi entitling him to the benefits of the act.

The statute has no preamble or introductory clause from which the intent of the Legislature may be ascertained, and it includes no specific provision either creating a pension fund or requiring a municipality to do so. On the other hand, the express terms of the enactment do not clearly indicate that it merely authorizes the adoption of a pension plan by a local governmental body. The respondent’s construction of the act as mandatory is based upon the language of section 1 that designated officials “are hereby constituted a board of trustees of the police relief or pension fund . . and the frequent use of the word “shall” in its provisions.

For example, by the terms of section 2 the local officials “shall organize as such board . . . [and] shall have charge of and administer said fund, and to order payment therefrom. ...” Section 3 states that “said board shall upon the application [of a qualified policeman] order and direct that such person ... be retired from further service in such police department, . . . and such person so retired shall thereafter, during his lifetime, be paid from such fund a yearly pension ...” Section 6 declares that whenever a policeman shall lose his life in the performance of his duty, “such board shall order and direct” that a pension be paid to his widow or children. By section 7, whenever a member of a police department, after 10 years of service, dies from natural causes, his widow, children, mother or unmarried sisters “shall he entitled to the sum of one thousand dollars from such fund. ’ ’' According to section 12, the governing authority in a municipality “shall, for the purposes of said ‘police relief and pension fund’ . . . direct the payment annually, and when the tax levy is made, into said fund of the following moneys ...” (Italics added.) All of these provisions, however, as the appellants contend, are subject to the interpretation that if, but only if, a city elects to adopt a-pension plan and sets up a fund under the authority of the statute, it must act in accordance with the express provisions of the legislation. Concededly, the city of Lodi has never adopted such a plan nor set aside any money for that purpose.

The respondent urges that the title of the statute may be considered in construing the act, which the Legislature declared is one “to create a Police Belief, Health, and Life Insurance and Pension Fund in the several counties, cities and counties', cities, and towns of the State.” The words “to create,” he says, indicate a mandatory intent. But the appellants point out that the Legislature did not adopt an act “creating” a pension fund. The wording of the title, they say, is consistent with an interpretation of the statute as one enabling a municipality to create a pension fund. And they argue that section 13 refers to the fund “.created under the provisions of this act,” rather than to a fund “created by this act.”

Beading the statute as a whole, it may reasonably be construed as legislation authorizing a city to make provision for a fund rather than as an enactment creating one. Yet none of the language used by the Legislature is so clear as to compel a construction of it either as mandatory legislation or as an enabling act, and, although the statute has frequently been considered by the appellate courts of this state, the question now presented has not before been raised. (See, for example, Pennie v. Reis, 80 Cal. 266 [22 P. 176]; Clarke v. Police Life etc. Ins. Bd., 123 Cal. 24 [55 P. 576], 127 Cal. 550 [59 P. 994]; Kavanagh v. Board of Police P. F. Commrs., 134 Cal. 50 [66 P. 36]; Nicols v. Police Pension Fund Commrs., 1 Cal.App. 494 [82 P. 557] ; Klench v. Board of Pension Fd. Commrs., 79 Cal.App. 171 [249 P. 46]; Frisbee v. O’Connor, 119 Cal.App. 601 [7 P.2d 316]; Simmons v. Board of Police etc. Commrs., 48 Cal.App.2d 682 [121 P.2d 39].) However, these decisions impliedly support the position taken by the appellants.

]n the Kavanagh ease, supra, a writ of mandate was awarded ordering the defendants to pay the widow of a deceased San Francisco police officer the sum of $1,000 under the 1889 act. But the court did not construe the act as mandatory, and there was no occasion for it to do so because the evidence clearly showed that the city had adopted a pension plan. Indeed, according to the brief of the city attorney, the city had retained the sum of $2.00 per month from Kavanagh’s salary for a period of 15 years, which amount was paid into the Police Belief and Pension Fund. Moreover, prior to Ms death the officer had been placed on the retired list and given a pension. (See, also, Simmons v. Board of Police etc. Commrs., supra, at pp. 683-684, wherein the court said that the 1889 act was “designed for and made use of by” San Francisco, but was made to apply to all cities and counties to avoid the constitutional inhibition against special legislation.) In Frisbee v. O’Connor, supra, it was held that, a city had no power, in view of the 1889 act, to set up an insurance plan and pension fund of a new and different type from that provided by the state Legislature. Although the District Court of. Appeal there referred to the pension funds that “the legislature created,” it was not considering the present question and there is nothing in the opinion from which a determination that the statute is mandatory may be implied. The court held only that a city can adopt no policemen’s or firemen’s pension plan other than the one provided or authorized by the Legislature, and it did not decide, nor does the language of the opinion suggest, that any pension plan must be adopted. In the Klench case, supra, the city of Stockton had by ordinance established a pension fund, and the court determined that the local pension board was required to pay a pension under the terms of the 1889 act which, it was said, the city had adopted in enacting the ordinance (p. 180). Other language in the opinion indicates that the court considered the 1889 act as “authorizing” creation of pension plans by the cities (supra, at p. 180; compare also statements on pp. 176-177, 178 and 185).

Amici curiae argue that if every municipal corporation must comply with the provision of the statute, then the act violates the constitutional provision which reads: “Except as otherwise provided in this Constitution, the Legislature shall have no power to impose taxes upon counties, cities, towns or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.” (Const., art. XI, sec. 12.) They cite the Klench case, supra, where the court in considering the powers of a chartered city declared “that the matter of the fixing of the compensation and providing for the pensioning of policemen and firemen is strictly a ‘municipal affair.’ ” (Cf. Butterworth v. Boyd, 12 Cal.2d 140, 147 [82 P.2d 434, 126 A.L.R. 838]; Popper v. Broderick, 123 Cal. 456 [56 P. 53]; Richards v. Wheeler, 10 Cal.App.2d 108, 111-112 [51 P.2d 436]; Murphy v. City of Piedmont, 17 Cal.App.2d 569, 571-572 [62 P.2d 614, 64 P.2d 399].) And they also rely on San Francisco v. Liverpool etc. Insurance Co., 74 Cal. 113 [15 P. 380, 5 Am.St.Rep. 425], where the court held unconstitutional legislation requiring that insurance companies pay certain sums to the treasurer of any county in which insurance was effected, the money to constitute a firemen’s “relief fund.” Upon the ground that the exaction was a tax for a municipal purpose, the statute was said to be in violation of section 12 of article XI, supra. “The management and control of the fire departments have always been left to local authorities,” said the court. “The fact that the state at large has an interest in the efficiency of the departments does not render the end any less a municipal one. The peopie of the state have such an interest in all the police powers granted to these municipalities. And even if the state may-exercise a concurrent supervision over a subject, still, so far as actually controlled by the local board, it is a matter of municipal concern” (p. 124). However, the courts of other states are not in agreement upon the question as to whether state legislation requiring municipal payment of pensions to policemen and firemen is prohibited by constitutional provisions such as the one of our state. (See 46 A.L.R. 683-693 and 106 A.L.R. 914, 915.)

If the statute concerns a strictly municipal affair, then the next question presented by the contention of amici curiae is whether, in effect, it imposes a tax upon a municipality in violation of article XI, section 12. The statute, if mandatory, compels every municipality to pension its policemen, thus placing a direct burden upon a city, and also specifies that amounts equal to two per cent of policemen’s salaries be set aside for that purpose. Amici curiae argue that the imposition of such a burden constitutes the indirect imposition of a tax and is, therefore, within the prohibition of article XI, section 12. (Cf. McCabe v. Carpenter, 102 Cal. 469, 471 [36 P. 836]; 46 A.L.R. 628, 640.) But there is no contention that if interpreted as enabling legislation the act runs counter to any provision of the Constitution. Under such circumstances the rule recently stated in Miller v. Municipal Court is applicable. In that case it was said: “If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.” (22 Cal.2d 818, 828 [142 P.2d 297].) Applying the reasoning of that decision to the uncertainties of the language used by the Legislature, it must be held that the enactment imposes no mandatory requirements.

Another established rule of statutory construction leads to the same conclusion. Administrative construction of an ambiguous statute “will be accorded great respect by the courts and will be followed if not clearly erroneous.” (Bodinson Mfg. Co. v. California E. Com., 17 Cal.2d 321, 325-326 [109 P.2d 935]. See, also, Los Angeles County v. Superior Court, 17 Cal.2d 707, 712 [112 P.2d 10]; Carter v. Commission on Qualifications, 14 Cal.2d 179, 185 [93 P.2d 140].) Unquestionably, although the statute was enacted in 1889, neither the cities nor the counties of this state have considered its provisions as mandatory, nor have more than one or two cities complied with its terms. On the contrary, the respondent does not deny the assertion of amici curiae that more than 200 cities and 57 counties have, for more than 50 years, treated the legislation as an enabling act.

The judgment is reversed with directions to the trial court to enter judgment for the appellants.

Gibson, G. J., and Traynor, J., concurred.