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District Court of Appeal, First District, Division 2, California.


Civ. 12438.

Decided: June 24, 1943

Glenn West, of Lodi, for appellants. Chester E. Watson, of Stockton, for respondent.

The petitioner prayed for a writ of mandate to require respondents to retire him from active service as a police officer upon a pension pursuant to the Act of 1889, Stats. 1889, p. 56, Deering's Gen. Laws 1937, Act No. 6012. Following a trial the writ was ordered, and the respondents appeal. We will refer to the parties as they were designated in the trial court.

The real issue involved is whether the statute is mandatory or permissive, but the respondents also contend that there was an insufficient showing of funds available to pay the pension. It is conceded that, if the Act is mandatory, the petitioner possesses all the qualifications for retirement upon a pension. The title of the Act is “An act to create a police relief * * * pension fund in the several counties * * * cities, and towns of the state.” Section 1 creates a “Board of Police Pension Fund Commissioners”, unless within the county or city there is already a board of police commissioners, in which event such board shall constitute the board provided for in the Act. The duties of this board and the right of police officers to receive a pension are specified, and section 12 outlines the method for the creation and maintenance of the fund out of which payments of such pensions are directed to be made. An examination of the Act discloses numerous instances where the intention of the legislature to make its provisions mandatory is evidenced. In section one it is provided that the designated officials “are hereby constituted a board of trustees of the police relief or pension fund.” Section two provides: “They shall organize as such board by choosing one of their number as chairman * * *.” Section three provides that when a member of the police force having performed the required length of service and reached the age of sixty years, applies for retirement on a pension the “board shall * * * order and direct” that the applicant be retired from active service and thereafter be paid the pension provided for in the Act. Section four contains the only permissive language, permitting the board to retire a member of the force on account of physical disability. Section six provides that, when a member of the force loses his life in the performance of his duties, the board “shall order and direct” that a pension be paid to the widow. Section ten provides that the board “shall hold quarterly meetings.” Section eleven confers upon the board power to summon witnesses, and to make rules in conformity with the Act. Section twelve provides that the governing board of any county, city, or town “shall * * * direct the payment annually” into the pension fund, for the purposes of said fund, nine different items of revenue.

It will be thus seen that the board of trustees of the fund was “created” by the Act; its powers and duties were all prescribed therein, and that nothing was left to be done by the governing body of the county or municipality except to levy the tax prescribed therein and make other specified payments to the fund. It is argued that the discretion given to the governing authority to direct “not less than * * *, nor more than” certain percentages of moneys received from certain sources makes the entire Act directory. We are not impressed with the argument because the petitioner's right does not depend upon those sources. This action is against the board of trustees of the pension fund, and not against the city council. If the council has failed to perform its duty under the Act that might be the subject of another action.

But the petitioner is concerned only with his right to retire and to receive the prescribed pension. He has shown, and the trial court so found, that there are sufficient funds to make these payments. The testimony of the city auditor and treasurer was sufficient to support this finding. True it is that, as a matter of bookkeeping, he had not segregated the amounts fixed in the statute and had not carried the fund on his books. But the legislature made the “appropriation” when it enacted the statute, and the failure of any official to follow the terms of the Act cannot affect the rights of the petitioner in this proceeding.

Neither party has cited any authority directly bearing upon the question whether the statute is mandatory or directory. The city relies upon Klench v. Board of Pension Fund Com'rs, 79 Cal.App. 171, 249 P. 46, as showing that the city of Stockton adopted an ordinance accepting the provisions of the Act; from this it is argued that formal acceptance by the governing authority is necessary in every case. There is, however, no holding that such action is necessary. To the contrary, the accepted rule is that when a statute concerns the public interest, or the rights of named parties, it will be held to be mandatory unless the language in plain terms discloses the legislative intent to make it discretionary. 23 Cal.Jur. 616; Hayes v. Los Angeles County, 99 Cal. 74, 80, 33 P. 766; Uhl v. Badaracco, 199 Cal. 270, 282, 248 P. 917. In Crawford's Statutory Construction, p. 530, this rule is stated and supported by numerous authorities where the author says: “But if the public interest or private rights call for the exercise of the power vested in a public official, the language used, though permissive or directory in form, is in fact peremptory or mandatory, as a general rule. * * * After all, the power vested in the officer is not for his benefit but for the benefit of the public or of third persons, and it must be exercised. A duty is imposed upon the officer rather than a privilege.”

Appellants argue that the enactment in 1939 of section 764.1 and 862.26 as amendments to the Municipal Corporation Act, Gen.Laws Supp.1939, Act 5233, should be treated as a legislative declaration that the Act of 1889 was not mandatory. These sections are purely permissive and empower the cities to establish a pension system for city employees generally. They have no relation to the special statute of 1889 which creates a pension system for police officers only. But no authority has been cited holding that the mandatory or permissive character of a statute may be determined by some other act of the legislature taken fifty years later. If the legislature had had the earlier statute in mind, and had intended to repeal or to alter its effect it would have been a simple matter to do so. But there is no inconsistency between the old and the new and both were permitted to stand in full force.

When the intention of the legislature is the question at issue, the conditions existent at the time the legislation was enacted are determinative, rather than those which might influence the legislative mind at the time the judicial determination is made. This legislation was enacted in 1889 when our courts were committed to the constitutional formula that it was the function of the legislature to legislate, and of the courts to adjudicate. Reference to the decisions of that period show adherence to the rule that when the legislature declared that a certain act should be done by public officers in the interest of the public at large, or the rights of special parties, the statute was held to be mandatory.

The judgment is affirmed.

NOURSE, Presiding Justice.

SPENCE, J., and DOOLING, Justice pro tem., concur.