Strumsky v. San Diego County Employees Retirement Assn.

520 P.2d 29, 11 Cal. 3d 28, 112 Cal. Rptr. 805, 39 Cal. Comp. Cases 924, 1974 Cal. LEXIS 277

• Court: California Supreme Court
• Decided: March 25, 1974
• Docket: L.A. 30009
• Status: Published

Opinions

Opinion

SULLIVAN, J.

In the instant case we confront a question concerning judicial review of adjudicatory determinations of administrative agencies which we were not called upon to reach in Bixby v. Pierno (1971) 4 Cal.3d 130 [93 Cal.Rptr. 234, 481 P.2d 242]. That question, whose presence was expressly noted by us in Bixby (id. at p. 137, fn. 2) is this: When, upon judicial review of an administrative order or decision pursuant to section 1094.5 of the Code of Civil Procedure, it is claimed there has been a prejudicial abuse of discretion in that the findings are not supported by the evidence, what is the proper scope of review when the respondent agency is a local agency or a state agency of local jurisdiction?

If anything has remained consistently clear in the checkered history of the judicial review of administrative decisions under section 1094.5, it has been the answer to the foregoing question. Subdivision (c) of that section provides that when a claim of unsupported findings is made, abuse of discretion (which under subdivision (b) is established if the findings are not supported by the evidence) is shown in cases in which the court is authorized by law to exercise its independent judgment on the evidence if the. court determines that the findings are not supported by the weight of the evidence; in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record. It has been veritable gospel, at least since the decision of this court in Standard Oil Co. v. State Board of Equal. (1936) 6 Cal.2d 557 [59 P.2d 119]—which is the fountainhead from which all subsequent law of judicial review of administrative decisions, including section 1094.5 itself, has sprung—that with respect to orders or decisions of local agencies or state agencies of local jurisdiction the court is not authorized by law to exercise its independent judgment on the evidence, and therefore that the proper scope of review with respect to such orders or decisions is that of substantial evidence in light of the whole record. It is this axiom which is challenged here today.

After solemn and extended consideration we have concluded that there no longer exists any rational or legal justification for distinguishing with regard to judicial review between, on the one hand, local agencies and state agencies of local jurisdiction and, on the other, state agencies of legislative origin having statewide jurisdiction. Accordingly, we hold that the rule of judicial review applicable to adjudicatory orders or decisions of the latter class of agencies—which was reaffirmed and explained by us in Bixby—is also applicable to adjudicatory orders or decisions of agencies in the former class. That rule is as follows: If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court’s inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record.

As we explain below, we have concluded that the order and decision in the instant case does affect a fundamental vested right; accordingly the independent-judgment standard stated above is here applicable. Because the trial court in denying the writ considered itself bound by existing law to apply the substantial-evidence standard of review, we reverse the judgment and remand the cause for a new determination under the rule we announce today.

I

Plaintiff Coreen Strumsky appeals from a judgment denying her petition for a writ of mandate sought to review and set aside the decision of the Board of Retirement (Board)' of defendant San Diego County Employees Retirement Association denying her certain death benefits.

Plaintiff is the widow of Richard D. Strumsky, who died in 1968 following surgery to correct a congenital narrowing of the aorta. At the time of his death Mr. Strumsky was a sergeant in the San Diego County Marshal’s office and was in charge of its El Cajon branch; he had been employed by the county for 21 years and for many years had been a “safety member” (see Gov. Code, § 31469.3) of the San Diego County Employees Retirement Association.

Pursuant to the provisions of the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq.), plaintiff made application to the Board for the service-connected death allowance established by section 31787 of the Government Code. That section provides in substance and as here relevant that the surviving spouse of a member who dies as the result of an injury or disease arising out of and in the course of his employment is entitled to elect, in lieu of the normal death allowance established by section 31781.1,¹ a lifetime allowance amounting to half the member’s salary at death. In the case of Mrs. Strumsky, the service-connected death allowance would be almost three times the nonservice-connected death allowance of $181.03 per month.

The Board held a hearing on the question of service-connection. Five witnesses testified, and documentary evidence, including the written reports of four doctors, was introduced. The evidence established clearly that decedent had suffered from hypertension since boyhood due to a congenital narrowing of the aorta; that this condition was aggravated by progressive arteriosclerosis which had become advanced at a point one year prior to his death; and that the unsuccessful surgery was undertaken in order to correct the aortal narrowing or coarctation and thus relieve the severe hypertension which it and the arteriosclerosis had combined to bring about. There was, however, considerable conflict in the evidence concerning the extent to which the stress and tension inherent in decedent’s occupation and his personal attitude toward his job affected the development of the arteriosclerosis. On this point the evidence ranged widely from an opinion that the stress and tension of decedent’s employment was responsible only to “an infinitesimal extent” for his condition, to an opinion that the arteriosclerosis may have been substantially related to chronic tension. The theory supporting the latter view was that the hypertension caused by decedent’s congenital condition was supplemented and exacerbated by occupational tensions and that the heightened hypertension caused by this combination brought about the arteriosclerotic condition.

The Board by a vote of four to three denied Mrs. Strumsky’s application for a service-connected death allowance. Her request for a rehearing was denied, and she thereupon sought review of the decision by administrative mandate. (Code Civ. Proc., § 1094.5.) The trial court denied the writ, finding that “the findings of respondent Board are supported by substantial evidence in the light of the whole record.” The court also made the following supplemental finding of fact: “7. That the Court, if this were a case in which the Court was authorized by law to exercise its independent judgment on the evidence, would find that the death of the decedent safety member Richard D. Strumsky was service-connected in nature.”

The court thus concluded that there was no prejudicial abuse of discretion committed by the Board and that the alternative writ of mandate theretofore issued should be discharged and the petition for the peremptory writ denied. Judgment was entered accordingly. This appeal followed.

II

In Bixby v. Pierno, supra, 4 Cal.3d 130, at pages 144-147, we explained the considerations which counsel in favor of fuller judicial review in cases involving vested, fundamental rights. The essence to be distilled is this: When an administrative decision affects a right which has been legitimately acquired or is otherwise “vested,” and when that right is of a fundamental nature from the standpoint of its economic aspect or its “effect ... in human terms and the importance ... to the individual in the life situation,” then a full and independent judicial review of that decision is indicated because “[t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.” (Id. at p. 144.)

This reasoning, of course, applies with equal force to all administrative decisions of an adjudicatory² nature—regardless of the administrative agency involved. It has been held inapplicable, however, in the case of agencies which fall into two categories. The first of these categories is comprised of agencies of constitutional origin which have been granted limited judicial power by the Constitution itself. (See, for example, Boren v. State Personnel Board (1951) 37 Cal.2d 634 [234 P.2d 981]; Covert v. State Board of Equalization (1946) 29 Cal.2d 125 [173 P.2d 545]; Ishimatsu v. Regents of University of California (1968) 266 Cal.App.2d 854 [72 Cal.Rptr. 756]; Palm Springs T. Club v. Cal. Horse etc. Bd. (1957) 155 Cal.App.2d 242 [317 P.2d 713]; cf. Alta-Dena Dairy v. County of San Diego (1969) 271 Cal.App.2d 66 [76 Cal.Rptr. 510].)* *³ In the second category are the agencies with which we are concerned in the instant case, to wit, “local agencies”—which includes both purely local agencies and state agencies of limited territorial jurisdiction. (See, for an example of the latter, Atchison etc. Ry. Co. v. Kings Co. Water Dist. (1956) 47 Cal.2d 140 [302 P.2d 1].) It is established that when review of a decision of an agency falling within either of these two categories is sought pursuant to section 1094.5 of the Cbde of Civil Procedure, the court’s scrutiny of the agency’s factual findings is limited to a determination whether those findings are supported by substantial evidence in light of the whole record —and this is so whether or not the decision of the agency affects a fundamental vested right.

The roots of the indicated distinction insofar as it relates to so-called “constitutional agencies” can be traced to their ultimate source in one of our most fundamental constitutional doctrines, that of separation of powers. That doctrine, which has been a part of the Constitution of this state since its inception, is presently expressed in article HI, section 3 as follows: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Italics added.)⁴ It is the italicized proviso which forms the basis for the exercise of judicial powers by so-called “constitutional agencies”; insofar as specific constitutional provisions relating to the individual agencies in question directly vest judicial power in them, the agencies so favored can perform judicial functions to the extent of the grant without offending the doctrine of separation of powers. (See Covert v. State Board of Equalization, supra, 29 Cal.2d 125, 132; see also Cal. Administrative Mandamus, supra, §§ 1.3, 5.67, pp. 5, 76.) Thus, even though a vested fundamental right be involved, the determination of the agency on factual issues is entitled to all the deference and respect due a judicial decision.⁵

With respect to “local agencies” the matter is otherwise. This is so for the simple reason that the separation of powers clause is inapplicable to government below the state level. (People v. Provines (1868) 34 Cal. 520.) Accordingly that clause does not prevent the exercise of judicial powers by “local agencies.” (Imperial Water Co. v. Supervisors (1912) 162 Cal. 14, 17-18 [120 P. 780]; Nicholl v. Koster (1910) 157 Cal. 416, 422-423 [108 P. 302]; Holley v. County of Orange (1895) 106 Cal. 420, 424 [39 P. 790]; Wulzen v. Board of Supervisors, supra, 101 Cal. 15, 25-26; Savage v. Sox (1953) 118 Cal.App.2d 479, 485-487 [258 P.2d 80]; People v. Strong (1931) 114 Cal.App. 522, 527-528 [300 P. 84].) This, however, is not the end of the matter; the fact that agencies below the state level are not prevented from exercising judicial powers by the separation-of-powers doctrine in no way implies in and of itself that they may exercise such powers.⁶ Because local bodies, like governmental entities on the state level, ultimately derive all their powers from the state Constitution, it is in that document that we must seek the basis for any exercise of judicial power by such bodies.⁷ If no such basis be found, it matters not at all for present purposes that local bodies are not fettered by the separation-of-powers clause in the exercise of the powers which have been conferred upon them.

In the landmark case of Standard Oil Co. v. State Board of Equal., supra, 6 Cal.2d 557, we suggested one possible basis for the exercise of judicial powers by local agencies. The primary holding of that decision, which led to the development of much of our present statutory and decisional law with respect to judicial review of administrative decisions, was that legislatively created agencies of statewide jurisdiction could not under the Constitution exercise judicial powers, and that therefore the decisions of such agencies were not reviewable by certiorari. This holding was based upon article VI, section 1, of the Constitution, which at that time provided as follows: “The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, in a Supreme Court, district courts of appeal, superior courts, such municipal courts as may be established in any city or city and county, and such inferior courts as the Legislature may establish in any incorporated city or town, township, county or city and county.” (Italics added.) We held, quoting from earlier cases, that “ ‘Except for local purposes the section disposes of the whole judicial power of the state and vests all of it in the courts expressly named therein, leaving none at the disposition of the Legislature.’ ” (Italics added.) (6 Cal.2d at p. 561.) Thus, we concluded, the Legislature could not vest judicial powers in agencies of statewide jurisdiction.

It was the italicized exception, however, which in later cases was seized upon as the basis for a different rule with respect to “local agencies.” (See especially Nider v. City Commission (1939) 36 Cal.App.2d 14, 28 [97 P.2d 293]; see also Fascination, Inc. v. Hoover (1952) 39 Cal.2d 260, 264-265 [246 P.2d 656]; La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 53 [162 P.2d 13]; Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881 [129 P.2d 349, 142 A.L.R. 1383]; Corcoran v. S. F. etc. Retirement System (1952) 114 Cal.App.2d 738, 740-741 [251 P.2d 59].) The rationale, generally speaking, was that article VI, section 1, while forbidding the exercise of judicial powers by legislatively created agencies of statewide jurisdiction, permitted the Legislature to vest such powers in such “inferior courts” as it might establish on the local level—and that “local agencies” could be considered to be such “inferior courts.” Article XI of the Constitution, which we proceed to examine in some detail infra, clearly allowed the Legislature to establish the powers of local bodies such as counties and cities and to approve the powers delineated in city and county charters. These powers, it was reasoned, might include purely judicial powers pursuant to the grant of article VI.

In 1950, in effecting a reorganization of the inferior courts, article VI, section 1, of the Constitution was amended and the language therein upon which the foregoing cases relied was removed.⁸

It is the effect of this amendment which is our primary concern today. For the present, however, it is sufficient to observe that the deletion wrought by the amendment rendered the section no longer available as a basis for the exercise of judicial powers by “local agencies.”

Although decided prior to the amendment of article VI, the case of Dierssen v. Civil Service Commission (1941) 43 Cal.App.2d 53 [110 P.2d 513], gave birth to a rationale which has been relied upon since the amendment to support limited judicial review of the factual findings of “local agencies.” Two years earlier in Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75 [87 P.2d 848], this court, in the course of discussing the Standard Oil decision and its effect on the powers of state agencies of statewide jurisdiction, had made the following statement: “The theory of [Standard Oil] is that, if the Legislature attempted to confer judicial or ^nas/-judicial power [original italics] on state-wide administrative boards, the statutes would be unconstitutional as in violation of section 1 of article VI of the state Constitution, which vests the entire judicial power of the state in the courts, except as to local boards, and the railroad and industrial accident commissions, which are governed by special constitutional provisions.” (Italics added.) (13 Cal.2d at p. 81.) Seizing upon the italicized language, the District Court of Appeal in Dierssen concluded that it related not only to its immediate grammatical antecedent (i.e., “the railroad and industrial accident commissions”) but also to “local boards.” The Dierssen court stated: “Quite obviously, what the Supreme Court had in mind when it stated in the Drummey case, supra, that, ‘local boards . . . are governed by special constitutional provisions,’ were the broad provisions of article XI, section 6, of the Constitution dealing with the powers of chartered cities.” (43 Cal.App.2d at p. 60.) The court then went on to examine certain provisions of article XI⁹ and concluded therefrom: “Under these provisions a chartered city or city and county may lawfully confer quasi judicial power on boards or commissions dealing strictly with municipal affairs, such as the power to determine facts, and, if such finding is made, the courts may interfere only where the board acts arbitrarily, capriciously, or fraudulently. Stated another way, the courts are empowered to interfere with the findings of such boards only where a clear abuse of discretion is alleged and proved. If there is any substantial evidence to support the board’s findings the courts are powerless to interfere. This is apparently the law even as to state-wide boards where the board has fact finding powers and is not attempting to take away an existing right.” (43 Cal.App.2d at pp. 60-61.)

Twelve years later and shortly after the 1950 amendment to article VI, the same District Court of Appeal (although composed of two new members) adopted the rationale of its earlier Dierssen decision as the primary support for differing standards of review in Savage v. Sox, supra, 118 Cal.App.2d 479 [258 P.2d 80]. It was there contended that the effect of the amendment was to remove all constitutional support from the distinction in question. The court, rejecting this contention, quoted extensively from Dierssen. It also made reference to the arguments before the voters at the time of the amendment and conluded that “the voters in reducing the number of inferior courts never intended to, nor did they, in any way interfere with the rights granted municipalities, counties and cities and counties in the other portions of the Constitution.” (118 Cal.App.2d at p. 488.)

We express at the outset our suspicion that the reasoning of Dierssen was grounded to a large extent upon a grammatical misunderstanding of the language of this court in Drummey. The sentence from the latter case which we have quoted above (see text accompanying fn. 9, ante) is concerned with restating the “theory” of Standard Oil, such “theory” being in full effect at the time of Drummey. In the course of such restatement we indeed indicated that the then article VI, section 1 “vest[ed] the entire judicial power of the state in the courts* except as to local boards, and the railroad and industrial accident commissions, which are governed by special constitutional provisions.” (13 Cal.2d at p. 81.) It is clear to us, however, that the final clause of eight words in this statement refers only to the seven words next immediately preceding it and not to the phrase concerning “local boards.” The only “special constitutional provision” which Standard Oil had related to local boards was article VI, section 1 itself, a section which, as indicated above, was amended in 1950 (11 years after Drummey) to remove the support which Standard Oil had found in it. Thus it is our opinion that the Dierssen court was misled at the outset in undertaking its search for other constitutional support; all the support necessary at that time was provided by article VI, section 1.

The matter is otherwise when we come to Savage v. Sox, supra. By the time of that decision article VI, section 1 had indeed been amended and new constitutional justification was necessary to replace it, if the distinction in standards of review was to be maintained. The Savage court, by adopting Dierssen, likewise adopted the constitutional supports which had been needlessly “discovered” 12 years before: the home-rule provisions of article XI. These it duly installed as the “new” constitutional source of judicial power in “local agencies.”

The error in the Savage decision is fundamental: it fails to appreciate the relationship between article VI and article XI, and in so doing it totally misapprehends the comprehensive effect of the 1950 amendment on the former article. Article XI does not and cannot stand alone. It invests the Legislature with the authority to bestow powers upon, and to set up procedures for, govemmentál bodies below the state level. This is carried out for so-called general law (i.e., noncharter) cities and counties by direct legislation of statutes found in the Government Code. With respect to charter cities and counties such powers and procedures are prescribed by means of legislative approval or disapproval of the charter presented to the Legislature. In each case, however, the Legislature is limited in the nature and extent of the powers which it may grant. With respect to legislative powers, the question is one of proper delegation of powers vested in the Legislature itself by article IV of the Constitution.¹⁰ With respect to executive powers, the question is one of avoiding conflict with the executive powers reserved to members of the executive branch in article V. With respect to judicial powers, the question is one of complianee with the limitations imposed by article VI—a matter which we now proceed to examine in some detail.

As we have indicated above, prior to 1950 article VI permitted the Legislature to establish “inferior courts” on the local level and thus to vest judicial powers to that extent. The Legislature exercised this grant directly by establishing a plethora of local courts at the municipal and township level, including township justice of the peace courts, police courts, city justice of the peace courts, and city courts. In addition, according to the interpretation adopted in Standard Oil and its progeny, it exercised the grant by vesting judicial powers in “local agencies.”

Article XI of the Constitution was (and today remains) the conduit through which the Legislature vested in “local agencies” whatever powers it was entitled to vest in them. It was and is not, as the Dierssen and Savage courts assumed, an independent source of power—rather it was and is the instrument by and through which the Legislature takes the powers it is constitutionally entitled to bestow and in turn bestows them at least in part on governmental units below the state level.

With the foregoing in mind, we focus our inquiry upon the effect of the 1950 amendment to article VI. To begin with, we believe’that the court in Savage v. Sox, supra, correctly concluded that the result of the amendment was in part to withdraw from the Legislature the authority to create and bestow judicial powers upon inferior courts at the local level.¹¹ It is clear that in effect the amendment not only precluded the further creation of such courts but also provided for the gradual elimination of those already established¹²—resulting in a concentration of judicial power in constitutionally designated courts. However, the Savage court expressly declined to recognize that the amendment had a fuller and more comprehensive effect—in short, that it had the effect of withdrawing from the Legislature the ability to vest judicial power in any body and of concentrating in the court system all judicial power not expressly bestowed elsewhere by the Constitution.¹³ This result, the Savage court concluded, was not intended by the amendment. “The power exerted in this case is a purely municipal affair and the voters in reducing the number of inferior courts never intended to, nor did they, in any way interfere with the rights granted municipalities, counties and cities and counties in the other portions of the Constitution. The elimination of the power of the Legislature to provide other inferior courts [original italics] than the municipal and justice courts still left the constitutional provisions under which the charter of a city and county could lawfully confer quasi-judicial[

14] powers on boards or commissions dealing strictly with municipal affairs.” (Italics added.) (118 Cal.App.2d at p. 488.)

As we have suggested, we believe that the analysis of the Savage court suffers from a failure to apprehend the relationship- between articles VI and XI of the Constitution and a mistaken conclusion that the latter article constitutes an independent source of constitutional authority for legislative vesting of judicial power in “local agencies.” On the contrary we have concluded that article VI disposes of all judicial power not expressly disposed of elsewhere in the Constitution, and that, following its amendment in 1950, it no longer authorized the Legislature, in its granting of powers to various local bodies pursuant to article XI, to grant judicial powers. In short, although the Legislature retains the authority to grant a multitude of powers to local bodies pursuant to article XI, powers of a judicial nature are no longer at its disposal.¹⁵ Moreover we believe that the amendment to article VI had the effect of withdrawing judicial powers formerly granted pursuant to article XI prior to the amendment, leaving the entire judicial power concentrated in the state court system and some “constitutional agencies.”¹⁶

The effect of this conclusion upon the question immediately before us is clear. Because judicial powers may no longer be exercised by “local agencies,” the factual findings of those agencies are entitled to no greater deference than those of other agencies lacking judicial powers under the Constitution. Accordingly we conclude that the rule of review which was reaffirmed by us in Bixby v. Tierno, supra, for application to adjudicatory decisions by legislatively created agencies of statewide jurisdiction is equally applicable to decisions by “local agencies” as well.

We therefore hold that in all such cases, if the order or decision of the agency substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court’s inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in light of the whole record. So that there will be no misunderstanding, we emphasize that this rule shall apply to all pending and future proceedings in trial courts and all pending and future appeals.

Ill

We have concluded that the decision of the Board in this case substantially affected a fundamental vested right, to wit, plaintiff’s right to receive a service-connected death allowance.

It has long been established that retirement benefit rights of the nature here involved are vested. (See Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 531-532 [319 P.2d 624]; Wallace v. City of Fresno (1954) 42 Cal.2d 180, 183 [265 P.2d 884]; Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, 579 [59 P.2d 104].) We also believe that the right here in question is not only vested but “fundamental” within the meaning of Bixby v. Pierna, supra. “In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.” (4 Cal.3d at p. 144.) It is the latter consideration which renders the instant right fundamental. Above and beyond the “economic aspect” present in all pension cases, we have here a situation in which the benefits sought might well mean to the officer’s widow the difference between self-support and the necessity that she supplement pension income through employment or other means.¹⁷ Thus, the impact in human terms of the decision is manifest.

It is urged, however, that we are here concerned not with the right to death allowance itself but with the amount of the allowance. Whereas the right to an allowance might be considered vested and fundamental, it is argued, the right to an allowance in a particular amount is not. We believe that this objection fails to recognize the realities of the situation before us. Putting to one side the practical consideration expressed above— i.e., that the service-connected allowance provides the possibility of self-support, whereas the residual allowance does not—we think that the statutory scheme governing death benefits for county employees contemplates what are in effect two different benefits, one which is service-connected (Gov. Code, § 31787) and one which is not (Gov. Code, §31781.1). It is true that the wife had no vested right in either of these pensions until the happening of the contingency upon which the benefits were payable (see Packer v. Board of Retirement (1950) 35 Cal.2d 212, 215-218 [217 P.2d 660]; Sweesy v. L. A. etc. Retirement Bd. (1941) 17 Cal.2d 356, 361-363 [110 P.2d 37]), but upon the happening of that contingency (i.e., the death of her husband) she acquired a fundamental vested right in one pension or the other—according to whether or not that death was service-connected. It is the latter question which requires a judicial determination under the rule we announce today—a determination which, because the Board lacks the power to make it, must be madd by the court through the exercise of its independent judgment on the evidence produced before the Board.¹⁸

The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Wright, C. J., Tobriner, J., and Mosk, J., concurred.

1 Generally speaking, the normal (i.e., nonservice-connected) death allowance provided for by section 31781.1 of the Government Code is equal to 60 percent of the retirement allowance the decedent would have received had he retired or been retired for nonservice-connected disability on the date of death.

2 To be distinguished from adjudicatory determinations of an administrative agency are actions undertaken by such an agency in its legislative capacity. Review by means of section 1094.5 of the Code of Civil Procedure is not available with respect to acts of this kind, and when review is sought by means of ordinary mandate (Code Civ. Proc., § 1085) “ ‘judicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.’ ” (Pitts v. Perluss (1962) 58 Cal.2d 824, 833 [27 Cal.Rptr. 19, 377 P.2d 83], quoting from Brock v. Superior Court (1952) 109 Cal.App.2d 594, 605 [241 P.2d 283]; see generally Cal. Administrative Mandamus (Cont.Ed.Bar 1966) § 2.9, pp. 18-19, cf. Manjares v. Newton (1966) 64 Cal.2d 365 [49 Cal.Rptr. 805, 411 P.2d 901], and Comment, Quasi-Legislative Acts of Local Administrative Agencies: Judicial Review (1972) 7 U.S. F.L.Rev. 111.) Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while -an adjudicatory act involves the actual application of such a rule to a specific set of existing facts. (See Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24 [35 P. 353]; Smith v. Strother (1885) 68 Cal. 194, 196-198 [8 P. 852].)

3 Although the state of certain agencies as members of this category has been clearly established, the status of certain others remains unclear pending judicial determination of that question. (See generally Cal. Administrative Mandamus, supra, § 5.68, pp. 77-80, and Appendix A of the same work; see also Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions—1949-1959 (1960) 12 Stan.L.Rev. 554, 562-565.)

4 The quoted section was adopted in 1972. Substantially identical language has appeared in the Constitution since 1849.

5 The validity of the foregoing rationale for the exercise of judicial powers by “constitutional agencies” is not here in question.

6 We note what appears to be a contrary opinion on this point among certain commentators. (See Kleps, Certiorarified Mandamus: Court Review of California Administrative Decisions 1939-1949 (1950) 2 Stan.L.Rev. 285, 291, fn. 23; Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions—1949-1959, supra, 12 Stan.L.Rev. 554, 561-562; Cal. Administrative Mandamus, supra, § 5.65, p. 75.) To the extent that our interpretation of these comments is accurate (i.e., to the extent that they indicate that the inapplicability of the separation-of-powers clause in and of itself constitutes an authorization for the exercise of judicial powers by local boards), we disagree with them.

7 Although it has been maintained that under the 1849 Constitution local bodies possessed certain “inherent powers” of self-government (see Peppin, Municipal Home Rule in California: I (1941) 30 Cal.L.Rev. 1), there is no doubt that since the adoption of the 1879 Constitution that notion has had no place in the law of this state. (See Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 320 [5 P.2d 585].) The rule in California, and in the vast majority of other states, is stated by the leading commentator in the field of local government as followp: “Unless granted by the state constitution, a municipal corporation [and certainly any other local body] has no inherent right of self-government .... The reason upon which this general rule is based is that the municipal corporation is a creature of the legislature, from which, within constitutional limits, it derives all of its rights and powers.” (Italics added, fn. omitted.) (2 McQuillin, Municipal Corporations (1966 3d rev. ed.) § 4.82, pp. 144-145; see also McBain, The Doctrine of an Inherent Right of Local Self-Government (1916) 16 Colum.L.Rev. 190 & 299.)

8 Article VI, section 1, now provides: “The judicial power of the State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of "record.”

9 Article XI has undergone substantial amendment and reorganization since Dierssen, but the provisions upon which the court relied remain in substance.

10 Section 1 of article IV provides: “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”

11 The argument against the amendment set forth in the voters’ pamphlet clearly indicates that the power of the Legislature in this area was at issue.

12 Former section 11 of article VI, which was a part of the amendment in question but was repealed in 1966—having served its purpose—treated this aspect of the measure.

13 By its terms the amendment purported to concentrate all judicial power in the courts. This, however, would create a conflict with constitutional provisions which might expressly bestow judicial powers on certain “constitutional agencies” (see fns. 4 and 5 and accompanying text), a possible conflict which we avoid by interpreting the effect of the amendment as indicated.

14 We have in this opinion avoided the use of the term “quasi-judicial”—an adjective used in some opinions and by some commentators to indicate the peculiar adjudicatory powers possessed by administrative agencies. As we have indicated, the question here is the extent to which true judicial powers are and can be vested in “local agencies.” “The mere retreat to the qualifying ‘quasi’ is implicit with confession that all recognized classifications have broken down, and ‘quasi’ is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.” (Jackson, J. in Fed. Trade Comm’n v. Ruberoid Co. (1952) 343 U.S. 470, 487-488 [96 L.Ed. 1081, 1094-1095, 72 S.Ct. 800].)

15 We note in passing that the Legislature, at least in 1942, was apparently of the view that, even with its then powers under article VI to create “inferior courts,” it lacked the ability to bestow judicial powers on “local agencies.” In that year the case of Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831 [123 P.2d 457] had been decided; that case, along with the other progeny of Standard Oil, had created uncertainty and upheaval concerning the proper role of the courts vis-a-vis legislatively created agencies. The Legislature, recognizing that a constitutional amendment would serve to settle the law in the area, passed (by a two-thirds vote) Senate Constitutional Amendment 8 and presented it to the electorate as Proposition 16 on the November 1942 ballot. Generally speaking, the measure sought to place truly judicial powers in both statewide agencies and “local agencies,” limiting court review of all factual findings to a substantial evidence basis. Apparently concluding in spite of the Standard Oil line of cases and the Dierssen case that neither article VI nor article XI provided sufficient constitutional support for this, the Legislature proposed, through the above proposition, the following amendment to the latter article: “When any city or city and county, which has adopted or shall adopt a charter in pursuance of this Constitution, has provided or shall provide by charter, by any amendment thereof, or by ordinance, that decisions of question of fact made by any administrative officer, board, commission or agency in respect to municipal affairs shall be final, no court of this State shall have power to set aside such finding of fact if there is substantial evidence to support it. Nothing in this section shall be construed as limiting the power of any county, city, or city and county under this Constitution to make and enforce within its limits local, police, sanitary and other regulations and, when not in conflict with general law, to provide by ordinance that decisions of questions of fact made by any administrative officer, board, commission or agency shall be final.” (Proposed Amendments to Constitution, Propositions and Proposed Laws; General Election, Tuesday, Nov. 3, 1942; Part II—appendix, p. 23.) We must conclude from the approval of this language by the Legislature and its presentation to the electorate almost immediately after the Dierssen decision, that the Legislature was unpersuaded by the Dierssen court’s discovery of a grant of judicial powers in the then (and now) article XI.

The electorate, apparently persuaded by the pamphlet argument against the proposition (to the effect that the proposition would shift too much power away from the courts and thus remove existing protections against unjust or arbitrary administrative action) rejected the measure by a three to one margin. (Statement of Vote; General Election, Nov. 3, 1942, p. 37.)

16 Lest it be considered that we have oversimplified the thrust and meaning of article XI in referring to it as a mere conduit for the granting of powers having their source, if any, elsewhere in the Constitution, we here undertake to review the provisions^ of that article, giving special attention to the provisions relied upon by the court in Savage. Section 1 of the article deals with the formation and government of counties and provides as here relevant that the Legislature shall prescribe procedures for formation, consolidation, and boundary change, and shall additionally “provide for county powers.” Section 2, dealing with cities, provides that the Legislature “shall prescribe uniform procedure for city formation and provide for city powers.” Section 3 deals in general with the procedure for adopting county and city charters, including the necessity of their approval by the Legislature. Section 4 concerns provisions which are mandatory in county charters, all of which remain subject to legislative approval under section 3; it also provides that “Charter counties shall have all the powers that are provided by this Constitution or by statute for counties.”

Section 5, the predecessor section of which was heavily relied upon by the Savage court, deals with permissible city charter provisions. Subdivision (a) of section 5 provides: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters[,] and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.” The Dierssen and Savage courts perceived in this language a direct constitutional grant allowing charter cities to “confer quasi judicial power on boards or commissions dealing strictly with municipal affairs . . . .” (Dierssen at p. 60, original italics; Savage at p. 487.) Our reading of the language is otherwise. We presume that the provision’s use of the term “enforce” was considered significant by those courts, but we do not find in that term any indication that it includes a power to adjudicate. The Attorney General has as his constitutional duty “to see that the laws of the State are uniformly and adequately enforced" (Cal. Const., art. V, § 13), but no one would maintain that a power of adjudication is therein contained. Such a conclusion is equally unwarranted here.*

Subdivision (b) of section 5 presently provides: “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.” (Italics added.) Suffice it to say that we do not construe the italicized language to authorize the establishment by a charter city in itself of powers which, since the 1950 amendment to article VI, section 1, have been exclusively vested in the state courts.

Section 7 of article XI provides: “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. ” (Italics added.)

“Enforce refers to requiring operation, observance, or protection of laws, orders, contracts, and agreements by authority, often that of a whole government or of its executive or legal branches. . . .” (Webster’s Third New Internat. Dict. (1963) p. 751.)

17 As we have pointed out above (see text accompanying fn. 1, ante) the service-connected death allowance in Mrs. Strumsky’s case would be almost three times the nonservice-connected allowance of $181.03 per month.

18 We have indicated above (part I, ante) that the trial court, out of an abundance of caution, made a supplemental finding of fact to the effect that if this were a case in which it was authorized to exercise its independent judgment on the evidence it would find that the death ,qf Mr. Strumsky was service-connected in nature. Because this finding will form the basis of the trial court decision upon remand, we deem it appropriate in the interest of judicial economy to observe, after a review of the record, that that finding is supported by substantial evidence. (See Bixby v. Pierno, supra, 4 Cal.3d 130, 143, fn. 10.)