ENGLAND v. CITY OF LONG BEACH (1945)

This is a petition for a peremptory writ of mandate to command respondents to transfer to the Relief and Pension Fund of the City of Long Beach sufficient moneys from the Cash Basis Fund, or from the surplus now available from other funds, to pay all amounts due under a pension granted petitioner on May 1, 1944 as a retired member of the fire department; also to order the city manager and city council to include in all future budgets an amount sufficient to pay anticipated pensions, and in all events at least 2 per cent of the general tax levy of the city. At retirement petitioner had been in the service of the fire department for more than twenty years, and the pension in question amounted to one-half of the salary which was attached to the position, or $117 per month. The monthly pension installments accruing since May 1, 1944 have not been paid to petitioner, amounting to a total of $936, and it is conceded in the respondent's brief that ‘in the present state of the Relief and Pension Fund no payment will be made to him for many months to come.’ This situation is due to the condition of the Relief and Pension Fund arising from the fact that monthly payments due to pensioners whose rights have accrued during several years past, have greatly exceeded the revenues paid into this fund in accordance with Paragraph (6) of Section 187 of the city charter. There is now less than $100 in the fund and all pension payments due since September, 1943, remain unpaid. It is further conceded that, if the pensions in question can only be paid from moneys paid into such fund under the provisions of Paragraph (6) of Section 187, ‘it may reasonably be anticipated that the amount of pensions which accrue each month will shortly be more than double the amount which can be provided for the Relief and Pension Fund under the provisions of said Paragraph (6).’ There is no controversy in respect to the amount owing to petitioner, nor as to the liability of the city to pay such sum but the respondents contend that petitioner is not entitled to payment thereof until there is sufficient money in the Relief and Pension Fund for that purpose. It is admitted that the city treasurer has at hand in other funds, ‘large sums of money exceeding any sums which would be required to pay the pension now due to plaintiff,’ and to make all other pension payments, providing such money can be legally used for that purpose.

The City Charter of Long Beach was adopted in 1921, p. 2057 et seq., as a freeholder's charter under the provisions of Article XI, Section 8 of the Constitution of the State of California. As originally adopted, Article XVI of said charter, denominated ‘The Disability, Relief and Pension Fund,’ provided in Section 187 that ‘The city council shall have the power to create, by ordinance, a fund to be known as the ‘Relief and Pension Fund’, and to provide for the payment into said fund a percentage of each month's pay for all the members of the police and fire departments and from all the members of such other departments as may by said ordinance be declared to be entitled to relief out of said fund.' (Italics added.) The City Manager was authorized to include in the annual budget an amount not exceeding 2 per cent of the general tax levy. The city council having failed to exercise the authority thus granted, Section 187 was amended in 1925, p. 1333, so as to provide for the payment of certain specified retirement and pension benefits. As amended in 1925 a city governmental board was created known as the ‘Police and Fire Pension Commissioners', which board was given ‘exclusive control of the administration and the investment of the pension fund or funds which may be established as hereinbefore provided’ etc. Sec. 187, Subdiv. (1). In Subdivision (2) of Section 187, as adopted in 1925 it was provided that after a designated period of service a member of the fire or police departments shall, by order of the commission, be retired and ‘shall thereafter, during his lifetime, be paid in equal monthly installments from said fund’ etc. (italics added) a certain percentage of his annual salary. Subdivision (6) as adopted in 1925 expressly created a ‘Relief and Pension Fund,’ which was ‘For the purpose of creating, maintaining and providing a fund to meet the payment of demands drawn for the payment of pensions and the expense of said Police and Fire Pension Commission as herein provided.’ It was further provided in Subdivision (6) that the Commission should employ an actuary ‘who shall render a report of the cost of maintaining, on a reservation basis, the pension system as hereinabove provided, and the city manager is hereby authorized to include in his annual budget an amount not exceeding two per cent (2%) of the general tax levy to be paid into said fund, based upon the estimate of cost as established by the actuary's survey, and the city council shall annually appropriate the amount of such estimate to the ‘Relief and Pension Fund,’ and also the amount of any deficit which may remain therein in the event the appropriation of any previous year prove insufficient to pay all demands drawn against such fund, which amount, however, in any one year, shall not exceed two per cent (2%) of the general tax levy.' (Italics added.) In addition to the moneys so provided, certain contributions, rewards, donations, fines, and proceeds from the sale of unclaimed property were to be paid into such fund.

At the time said Section 187 was adopted in 1925, Article XXIV of the City Charter provided in detail for a ‘budget system’ under which the city manager submitted to the council an itemized statement based upon detailed estimates furnished by the several departments, officers, boards, and commissions, recommending appropriations, and showing the financial condition of the city. Section 262 provided that ‘The city council shall, at the time of fixing the tax levy, by ordinance, establish the various funds, as provided for by the department, office, board and commission estimates allowed by the city council, and also for a general fund. All moneys received by the city shall be apportioned by the city auditor to the various funds so established, and no transfer of any money shall be made from one fund to another, except from and to the cash basis fund, until the end of the fiscal year; at which time, after all demands have been paid out of the various funds, and the fund or funds, if any, received from the cash basis fund have been returned, the city auditor shall transfer any residue remaining from any of said funds to the general fund; and the city council may authorize a transfer from the general fund to any fund in which there is an overdraft created by an actual emergency in the department.’ (Italics added.) Thereafter an actuary was employed as provided for in said section and reported that the payment of 2 per cent of the general tax levy into the Relief and Pension Fund would be wholly inadequate to put said fund and pension system on a reservation basis, and that an amount equal to at least 5 1/212 per cent of said general tax levy would be required each year to accomplish that purpose. By reason of the report of said actuary showing the impossibility of setting up the Relief and Pension Fund on a reservation basis, the full 2 per cent of the general tax levy was not paid into said fund, and the then manager and council appropriated and paid into said fund only a sufficient amount to pay all pension demands as same became due. This procedure was followed from 1925–26 to and including the fiscal year 1930–31. During the whole of this period the petitioner was continuously employed as a member of the fire department and continued to be so employed until retired May 1, 1944 after more than twenty years service. Throughout the period from April 16, 1925 up to March 3, 1931, nineteen persons were granted pensions payable out of said pension fund, eleven of whom are still living and entitled to receive a monthly pension.

In the year 1931, p. 2788, Subdivision (6) of Section 187 of the City Charter was amended to read as follows:

‘For the purpose of creating, maintaining and providing a fund to meet the payment of demands drawn for the payment of pensions and expenses of said Police and Fire Pension Commission, as herein provided, a fund is hereby created to be known as ‘Relief and Pension Fund.’ The city manager shall include in his annual budget an amount equal to two per cent of the estimated pay of the members of the police and fire departments, as hereinafter provided, and the city council shall appropriate such amount to the ‘Relief and Pension Fund.’

‘There shall be paid into said fund, the following monies, to-wit: (a) The city auditor is hereby authorized, and shall deduct and pay into said fund semi-monthly, two per cent of the salary of each member of the police and fire departments; (b) The amount appropriated by the city council, as hereinbefore provided, to-wit: a sum equal to the amount paid into said fund from the salaries of the members of the police and fire departments; (c) All contributions, rewards and donations to the police and fire departments for services by any member or members thereof, except amounts of money donated to provide for any medal or permanent competitive award; (d) All fines imposed on members of the police and fire departments for violations of the rules of said departments; (e) All proceeds from the sale of unclaimed property; (f) All contributions and donations to the said departments NOT specifically designated for inter-department relief funds.

‘Such fund shall be a continuing fund and shall be kept in the treasury of the City of Long Beach. All proceeds arising from said fund, including interest thereon, shall be credited to such fund.’

Such amendment, according to its terms, became effective March 3, 1931, since which date the city manager has not included in his annual budget, and the city council has not appropriated to said Relief and Pension Fund, any other sums than those provided for in the 1931 amendment just quoted.

During the oral argument it was conceded that attempts, by election, to amend the charter in order to change the financial conditions herein referred to, had failed. Such an election was held in November of 1944, described by Assistant City Attorney Reid as follows: ‘The people had two propositions submitted: one to repeal 187, doing away with pensions entirely, and the other to give the council the power to levy a special tax to pay the pensions which have already accrued. The people voted to repeal 187 but they voted down the other provision, * * *’.

Petitioner and respondents agree that the most important issue presented is in respect to the construction to be placed upon the charter provisions covering payment of the pension, namely, whether the obligation of the city is a general one making it the duty of the manager and city council to provide for the payment of such pensions without any limitation as petitioner contends, or whether respondents are correct in the view that the pensions in question may be paid only from the Relief and Pension Fund set up in Article XVI, Paragraph (6). Manifestly, in that regard, the charter must be construed as it is. If no ambiguity exists, any comparison with former provisions is no aid to construction. And evidence of what it might have been but for the outcome of elections, is clearly beside the issue so far as interpretation is concerned. In addition to briefs filed by petitioner and respondents there is an amicus curiae brief filed on behalf of approximately seventy five men and women entitled to pensions under Section 187 of the City Charter in which latter brief the position is also taken that the charter provisions created a general obligation to pay these pensions.

Charter provisions are subject to the same rules of construction which apply to legislative enactments, and as was said in Bruce v. Civil Service Board, 6 Cal.App.2d 633, 636, 45 P.2d 419, 421, ‘To ascertain the meaning or intent of the various provisions of the charter, different sections or provisions must be read together, with a view to harmonizing them.’ It is also ‘a firmly established principle of judicial construction that pension statutes serving a beneficial purpose are to be liberally construed,’ O'Dea v. Cook, 176 Cal. 659, 169 P. 366, 367; Gibson v. City of San Diego, 25 Cal.2d 930, 156 P.2d 737. ‘Where the language of a pension statute is of such ambiguity as to its true meaning as reasonably to afford two different and opposite conclusions, the one leading to its enforcement so that it will in full measure produce the beneficial results which its spirit and its purpose contemplate and its context will support, and the other to the frustration of its central purpose and desideratum, then the former construction must be given the statute or the particular language thereof whose meaning is enshrouded in doubt.’ Klench v. Board of Pension Fund Commissioners of City of Stockton, 79 Cal.App. 171, 249 P. 46, 52. However as was pointed out in the Klench case, 79 Cal.App. at page 187, 249 P. at page 51, ‘Of course, these rules of statutory construction, as applied to pension laws, are of no consequence where the language itself of the statute is sufficiently clear or free from obscurity as to reasonably remove all doubt as to its meaning or the legislative intent with respect thereto.’ This same case is also authority for the holding that, in the case of a city operating under a freeholders' charter such as that of the City of Long Beach, ‘the matter of the fixing of the compensation and providing for the pensioning of policemen and firemen is strictly a ‘municipal affair”, and that such a city ‘is exempt from the operation of general laws with respect to all ‘municipal affairs' as to which such charter speaks.’

It is a settled rule of statutory construction that a general provision is controlled by one that is special, the latter being treated as an exception to the former. 23 Cal.Juris. 762. In this case the petitioner relies upon certain general powers of the city such as those contained in Article IV, Section 2, of the Charter, providing that ‘The City of Long Beach shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter; * * *’ and Section 25 resting the city with power to ‘exercise all municipal and police powers necessary to the complete and efficient management and control of municipal property and for the efficient administration of the municipal government, whether such powers are herein expressly enumerated or not.’ On the other hand respondents' case rests upon the specific provisions of Article XVI, Section 187 of the City Charter, entitled ‘The Disability, Relief and Pension Fund.’ This article, respondents contend, is free from ambiguity, and by reason of the well-known maxim ‘expressio unius est exclusio alterius' (the expression of one thing is the exclusion of the other), would indicate that it is clearly intended by the charter that petitioner's pension should be paid only from the pension fund created by said charter.

The City Charter, both in its 1925 aspect and as amended in 1931 is found to contain no language which either expressly or by reasonable implication indicates any intention to make the pension in question a general obligation of the City of Long Beach. On the contrary, as pointed out by respondents, there is every indication that retired members of the police and fire departments were to receive their pensions from ‘The Disability, Relief and Pension Fund,’ and from no other source. This is, in fact the title of Article XVI, which in its original form provided for payment of ‘relief out of said fund,’ and the appropriation for which was not to exceed 2 per cent. of the general tax levy. Likewise, when the board of ‘Police and Fire Pension Commissioners' was created in 1925 such board was given exclusion control of ‘the pension fund or funds' and the specified pensions were directed to be paid ‘in equal monthly installments from said fund.’ City Charter, Section 187, Subdiv. (2). (Italics added.) When this section was amended in 1931 the italicized phrase ‘from said fund’ was retained although the source of such fund was changed so that in place of the original appropriation which was not to exceed 2 per cent of the general tax levy, the city made certain ‘matching payments' equal to 2 per cent of the ‘estimated pay of the members of the police and fire departments,’ 2 per cent of the salary of each member of such departments being deducted and ‘paid into said fund.’

If it is intended by the charter that these pension obligations, created by Paragraphs (2), (3) and (4) of Section 187 thereof should be general obligations, then there would have been no necessity for Paragraph (6) which specifically provides: ‘For the purpose of creating, maintaining and providing a fund to meet the payment of demands drawn for the payment of pensions and expenses of said Police and Fire Pension Commission, as herein provided, a fund is hereby created to be known as ‘Relief and Pension Fund.” If a general obligation was intended it is reasonable to suppose that such a paragraph would have been eliminated or that somewhere in the pension provisions there would be found some definite indication of such an intent. Again, if such were the intent, it would have been an easy matter to have inserted a provision such as that found in the Los Angeles Charter as quoted in Davidson v. Burns, 38 Cal.App.2d 188, 100 P.2d 1105, 1106, 101 P.2d 568, to the effect that there should be an annual tax levy ‘clearly sufficient to provide the total amount’ necessary for the payment of the specific pensions.

In the briefs of petitioner and likewise in the amicus curiae brief the court's attention is called to the fact that Section 187, Subdiv. (2) states a promise to pay as follows: ‘He shall thereafter, during his lifetime, be paid in equal monthly installments from said fund a yearly pension, * * *’ (Italics added), and a similar statement in Subdiv. (3) dealing with pensions for total disability, and seek to draw the conclusion therefrom that the direction to pay such pensions was mandatory, unlimited and general, in no manner qualified by the phrase, ‘from said fund.’ While it is quite true that the pension provisions of the charter do not expressly state that the obligation is not a general and unlimited one, the repeated and continued use of the phrase ‘from said fund’ can have no other reasonable meaning in the light of the rules of construction than that the pensions in question were to be paid only from such fund. The provision that the pensions should be paid in ‘equal monthly installments' indicates nothing so far as the source of such payment is concerned. From the language employed, the charter appears to be about equally concerned with the provision for the payment of pension benefits and with providing a fund from which the payments should be made. Petitioner's argument that, ‘the creation of various funds provided for in the Charter was merely to assist the city manager and council in estimating the total moneys necessary to be raised in order to balance the City's financial needs, and to assist the city auditor and the city accountant in the matter of bookkeeping,’ is not persuasive. Bearing in mind the generally conceded importance of the disposition of public funds when, as here, a charter has created certain special funds into which designated moneys are to be placed and out of which certain pensions are expressly directed to be paid, the creation and administration of such funds can scarcely be regarded as a mere bookkeeping convenience. The charter of the City of Long Beach quite clearly provides for the payment of petitioner's pension from one limited source,—the expressly designated ‘Disability, Relief and Pension Fund.’

It is contended by the petitioner that the obligation to pay retirement benefits was contractual in nature becoming an integral part of petitioner's contract of employment, hence that by the adoption of Section 187, Subdiv. (2) the charter framers in effect irrevocably offered to pay the petitioner and other employees of the police and fire departments who would continue in the city's employ for the designated periods, the retirement benefits therein provided, and that the petitioner has fully complied with his part of the contract. The purport of this contention is two-fold, namely that the obligation to pay petitioner's pension was absolute, general and unlimited, and that the pension being vested under the 1925 Charter provisions which specified an appropriation to the pension fund of an amount not exceeding 2 per cent of the general tax levy, petitioner's rights could not be affected by the 1931 amendment which, as previously noted herein, had abrogated the 2 per cent appropriation feature, substituting certain so-called ‘matching payments' by the city equaling the specified salary deductions. The respondents' answer to this contention is that the pension in question did not become vested until the retirement of petitioner in 1944 and that any amendment prior to that date would be binding on petitioner.

The case of O'Dea v. Cook, 176 Cal. 659, 169 P. 366, 367, cited by both parties hereto, concerned a pension provided for the family of a member of the police department of San Francisco. It was there held that where, at the time the policeman received injuries which resulted in death more than one year later, the charter provided for such pension without regard to the time elapsing between injury and death, but before the policeman's death the charter had been amended so as to provide for a pension to the family of a member ‘who may be killed or injured, while in the performance of his duty, and who shall have died within one year from the date of such injury * * *’ the time limitation contained in the amendment had no retrospective effect and the widow was entitled to a pension under the original charter provision. There is, of course, no marked similarity between the facts in that case and in this, for in the case now under submission the amendment of the Long Beach Charter occurred some thirteen years before petitioner became entitled to any pension. But in the O'Dea case the Court mentions the fact that where pensions authorized by statute are predicated merely on death occurring during the period of service, ‘a repeal before death operates to destroy the pension right.’ 176 Cal. at page 662, 169 P. at page 367.

An early case dealing with pensions is that of Pennie v. Reis, 80 Cal. 266, 29 P. 176, which held that where a police life and health insurance fund had been created out of a part of the monthly salaries of San Francisco police officers and this fund had later, by statute, been merged in a relief, health, insurance and pension fund, the repeal of the original act and merger of funds was valid as against the legal representatives of a police officer whose salary was in part detained under the former act, but who did not die until after passage of the latter act. Counsel for the petitioner concedes that this case is ‘the fountain head of the principle that a pension right is not vested prior to the happening of the specified contingency and therefore beyond the protection of the due process clause * * *’. The Pennie case was appealed to the United States Supreme Court (132 U.S. 464, 10 S.Ct. 149, 151, 33 L.Ed. 426), and in ruling on the question of vested rights the Court said: ‘It requires no argument or citation of authorities to show that in making a disposition of a fund of that character, previous to the happening of one of the events mentioned, the state impaired no absolute right of property in the police officer. * * * His interest in the fund was until then a mere expectancy, created by the law, and liable to be revoked or destroyed by the same authority.’ See also in this connection, Carr v. Fire Commission of San Francisco, 30 Cal.App.2d 208, 85 P.2d 959; Cohrn v. Henderson, 19 Cal.App. 89, 124 P. 1037.

Petitioner, however, relies upon the case of Dryden v. Board of Pension Commissioners, 6 Cal.2d 575, 579, 59 P.2d 104, 106, it which the court said: ‘It has been clearly held that the pension provisions of the city charter are an integral portion of the contemplated compensation set forth in the contract of employment between the city and a member of the police department, and are an indispensable part of that contract, and that the right to a pension becomes a vested one upon acceptance of employment by an applicant,’ citing as authority for such statements O'Dea v. Cook, 176 Cal. 659, 169 P. 366, Aitken v. Roche, 48 Cal.App. 753, 192 P. 464, and French v. Cook, 173 Cal. 126, 160 P. 411. As has been heretofore noted, the O'Dea case was dissimilar to the present litigation. The French case does not appear to support the statement that the right to a pension becomes vested upon ‘acceptance of employment,’ and the case of Aitken v. Roche, supra, merely cites the O'Dea case as authority for the statement that the right to a pension is a vested one which ‘enters into the contract of employment when a man enters the police department.’ Furthermore the quoted statement in Dryden v. Board of Pension Commissioners, supra, was not the basis for the decision in that case which dealt with facts in no wise similar to those now under consideration. In none of these cases, nor in any case cited, is there any expression to the effect that a pension should be judicially declared to be a general obligation where the creating act has clearly indicated that such was not the intent of the makers. It may be noted that the case of Carr v. Fire Commission, 30 Cal.App.2d 208, at page 211, 85 P.2d 959, at page 960, was decided subsequent to the decision in the Dryden case, the District Court of Appeal observed: ‘A pension law may be changed or modified so long as the vital contingency has not happened upon which an employee may predicate his right to a pension.’ The Supreme Court of California denied a petition for a hearing of the Carr case.

On the theory that the city owed to petitioner an absolute, contractual and mandatory duty, under the 1925 pension provisions, to annually appropriate for the pension fund at least 2 per cent of the general tax levy, and that such annual appropriation was not made during all of the period subsequent to 1925, the petitioner has presented the argument that ‘The present balance in the Relief and Pension Fund in contemplation of law is in excess of the total payments now due therefrom,’ and regarding that as done which should have been done, contends that the court should consider that there is now in the Relief and Pension Fund all the moneys which should have been paid into it. On this theory petitioner argues that in equity any surplus funds in the City Treasury should now be treated as a part of the pension fund and that therefore the pension moneys due petitioner should be paid regardless of the actual status of the pension fund. Petitioner has presented no authority for the application of the maxim in question to any state of facts at all similar to the instant case. The charter provisions of 1925 did not, in fact, direct the appropriation of ‘at least’ 2 per cent of the general lax levy, but specifically authorized the city manager to include in his annual budget ‘an amount not exceeding two per cent (2%) of the general tax levy to be paid into said fund,’ and the city council was directed to appropriate the amount of such estimate and also the amount of any deficit remaining from any previous year, but again specifically provided that the appropriation for any one year ‘shall not exceed two per cent (2%) of the general tax levy.’ Long before petitioner was entitled to a pension this 2 per cent system had been supersed by the ‘matching payments' plan already referred to; in other words one definite, limited pension plan was replaced by another definite, limited system. The fact that neither the original pension plan nor the amended procedure has proven to be satisfactory is not a matter for judicial consideration.

While it is true, as set forth in the amicus curiae brief, that ‘a material change in the wording of the section plainly indicates that the Legislature intended a change in the respects in which the previous language was amended,’ (In re Estate of Broad, 20 Cal.2d 612, 618, 128 P.2d 1, 4) in the instant case there is no indication by the language thereof that the amendment of 1931 was intended to change a special, limited, pension obligation to a general obligation of the City of Long Beach.

In the petitioner's analysis of pension rights, it is insisted that, under the 1931 charter amendment, not only was there still a mandatory duty to pay the pension benefits in monthly installments as they accrued, but that such duty required the city ‘to transfer sufficient moneys from the Cash Basis Fund and existing surpluses,’ to the end that such payment might be made. But again no cases are cited which are at all comparable to the present state of facts, and to accept petitioner's construction would be to ignore the definite provisions of the charter. Had the pension in question been a general obligation of the city instead of one payable only from the Relief and Pension Fund, petitioner's contention just mentioned would be pertinent and appropriate. As pointed out by the respondents, the Cash Basis Fund which is created by Section 265 of the City Charter, St.1935, p. 2575, was to be ‘used as a revolving fund for the purpose of putting and maintaining the payment of the running expenses of the city on a cash basis,’ with the express proviso ‘that all money so transferred from the Cash Basis Fund be returned thereto before the end of the fiscal year.’

Nor is there any merit in the further contention that the city council can be required by mandamus to make a transfer from the General Fund or from any other city fund for the purpose of balancing an overdraft in the Relief and Pension Fund. Section 266 of the charter provides in part as follows:

‘Except as specifically provided in this Charter, no money shall be transferred from one fund to another, or from one appropriation to another, Provided, that in cases of extreme emergency so declared by the City Council, requiring an expenditure from a fund or appropriation having insufficient money on hand or anticipated during the fiscal year for the purpose, and there is surplus money available in other funds or appropriations, the City Council may authorize a transfer of money between such funds.

‘An emergency shall be defined as an extraordinary and unforseen occurrence but in no wise shall the underestimating of the cost of the normal and ordinary operations of a department, office, board or commission be deemed an emergency.’

In connection with the foregoing provision, respondents' brief contains the following, ‘It will be noted that by the express terms of this section an emergency is defined as an extraordinary and unforeseen occurrence, but in no wise shall the underestimating of the cost of the normal and ordinary operations of a department be deemed an emergency. There is no showing made, either in the pleadings or otherwise, that any emergency, as defined in Section 266, now exists or has ever existed. On the contrary, it affirmatively appears from the allegations of the petition that the deficit in the Relief and Pension Fund has existed for a number of years, and even if it may be presumed that the Manager and City Council were unaware of the condition of the fund at the time the budgets were made and the appropriation ordinances adopted, the Council could not declare an emergency on that ground. Furthermore, the determination of the emergency must be made by the City Council, and, being a matter entrusted to the discretion of that body, is beyond the reach of the courts.’ That the problems suggesting or necessitating a consideration of the provisions of Section 266 are legislative and not judicial, there can be no question. But, counsel's interpretation of Section 266 of the charter to the effect, in substance, that its provisions, in the circumstances, are unavailable, is based on an argument which is not exhaustive and hence is not conclusive. For example, the question as to whether an extreme emergency exists, obviously is a legislative or administrative question. Also, whether an ‘occurrence’ is ‘extraordinary and unforseen’, presents a similar question addressed to the judgment of the governing body. It would appear that these questions go back to the time when the situation with regard to the respondents' inability to pay the pensions, first appeared and, necessarily the application of the provisions of Section 266 as to whether such a situation could then have been foreseen, should be considered as of that date. It would appear also that this condition is the result of the provisions of the charter and not the result of an ‘underestimating of the cost of the normal and ordinary operations of a department’. Moreover, in the determination of such questions, the relative importance of the fire department to the safety and welfare of the community, as well as its efficiency and the morals of its members, would likely be taken into account. But, in any event, as hereinbefore mentioned, the determination of the question as to whether such an emergency exists rests with the groverning body of the municipality, and with that matter the court is without power to interfere.

It is noteworthy that the City of Long Beach has at no time denied its liability in respect to petitioner's pension, and this obligation together with all other like pensions, is subject to payment and it is asserted will be paid as soon as the money therefor is available in the designated Relief and Pension Fund. By no theory of implied powers, liberal construction or other suggested hypothesis can the plain reading of the charter provisions be changed, and, in the circumstances, the court is without power to intervene. As was said in the case of Homestead Valley Sanitary District v. Donohue, 27 Cal.App.2d 548, 81 P.2d 471, 472: ‘There is no ambiguity here and no room for judicial construction resting merely on a judicial view of the expediency of the legislation.’

For the reasons heretofore mentioned, the petition for a peremptory writ of mandate is denied.

I disssent. I am in accord with that portion of the majority opinion which holds that the determination of the question as to whether an ‘extreme emergency’ exists, as defined in Section 266 of the Charter, St.1935, p. 2576, is for the legislative body of the municipality, but it is my judgment that the question of whether or not an ‘extreme emergency’ exists is not determinative of the issues presented in the instant proceeding.

We are here confronted with a situation wherein the City of Long Beach admits its liability to pay petitioner a pension, concedes the correctness of the amount claimed by him, but contends, although petitioner for more than twenty years has paid into the Relief and Pension Fund 2 percent of his monthly salary, that the city cannot, or will not, pay said pension until there is sufficient money in the Relief and Pension Fund for that purpose, although there is now in the hands of the City Treasurer, in other funds, sums of money far exceeding in amount what would be required not only to pay petitioner herein but to make all other pension payments.

To me it appears that the vital question presented is whether the provisions of section 187 of the Long Beach City Charter impresses upon the municipality a general obligation to provide for and pay pensions which accrue pursuant to said charter provisions.

The present controversy centers around what was the intention of the framers of the city charter. In attempting to discern such intention, heed must be given to the purposes of the provisions therein contained having to do with the establishment of a pension system, and to ascertain the meaning or intent of the various provisions of the charter, different sections of provisions must be real together with a view to harmonizing them.

Subdivisions 2, 3 and 4 of section 187 of the Charter clearly, unequivocally and in no uncertain language provide for the payment of pensions to members of the police and fire departments in equal monthly instalments when disability or death occurs or when a policeman or fireman shall have served a stated number of years as a member of either department. To my way of thinking, the foregoing provisions constitute an obligation to pay retirement, disability and death benefits that was contractual in nature and formed a very part of the policemen's and firemen's contract of employment. There is no occasion for conjecture or speculation as to the intention of the framers of the city charter when they have used language which is clearly understandable. And manifestly, by the mandatory declarations contained in subdivisions 2, 3 and 4, there was created a duty not only to pay, but to provide for funds out of which pensions were to be paid in equal monthly instalments.

Respondents contend that it was the intention of the framers of the charter that the pensions in question should be paid only from the Relief and Pension Fund set up in subdivision 6 of section 187, article XVI, of the charter.

However, an historical review of the pension system set up in the Long Beach City Charter furnishes a complete answer to and refutation of such an argument. Subdivision 6 of Section 187, as enacted by amendment to the Charter in 1925, read as follows: ‘for the purpose of creating, maintaining and providing a fund to meet the payment of demands drawn for the payment of pensions and the expense of said Police and Fire Pension Commission as herein provided, a fund is hereby created to be known as ‘Relief and Pension Fund.’ The Police and Fire Pension Commission shall employ an actuary who shall render a report of the cost of maintaining, on a reservation basis, the pension system as hereinabove provided, and the city manager is hereby authorized to include in his annual budget an amount not exceeding two per cent (2%) of the general tax levy to be paid into said fund, based upon the estimate of cost as established by the actuary's survey, and the city council shall annually appropriate the amount of such estimate to the ‘Relief and Pension Fund’, and also the amount of any deficit which may remain therein in the event the appropriation of any previous year prove insufficient to pay all demands drawn against such fund, which amount, however, in any one year, shall not exceed two per cent (2%) of the general tax levy.'

By their very language in adopting the foregoing amendment in 1925, the people indicated their intention to place the pension system on a reservation basis. This called for an actuarial survey and a mathematical determination of the cost of maintenance. Pending the report of the actuary, the section provided for a contribution of ‘not exceeding two per cent (2%) of the general tax levy to be paid into said fund.’ Although it be conceded that the maximum amount to be taken from the general tax levy was 2 per cent, it must not be forgotten that the city had other revenues than those raised through a general tax levy and there is no limitation contained in the charter amendment of 1925 as to the apportionment to the pension fund of other municipal revenues.

In accordence with the amendment of 1925, a survey was made by an actuary, who reported that 2 per cent of the general tax levy was totally insufficient and that to place the pension fund on a sound reservation basis would require an apportionment to the fund of 5 1/212 per cent of the general tax levy. Upon receipt of this report, the city council ceased appropriating 2 per cent of the general tax levy to the pension fund and appropriated thereto only such amounts of money as were necessary to pay current obligations of the fund.

In 1931, with full information before them as to the actuarial report and with knowledge therefrom that 2 per cent of the general tax levy would be insufficient to maintain the fund, the people of the City of Long Beach amended section 187 by striking therefrom the words ‘not [to] exceed two percent (2%) of the general tax levy.’ To me it seems plain that in deleting the above-quoted words the people intended to remove the restriction which prohibited the city council from apportioning more than 2 per cent of the general tax levy. And, in any event, such an amendment does not inhibit the appropriation of sufficient moneys from other available funds of the city to protect and preserve the pension fund. In other words, by the amendment of 1931, the people changed the pension set-up from a reservation basis to a current payment basis. Surely it cannot be assumed that when the framers of the amendment of 1931 had before them the actuarial report from which they were advised that 2 per cent of the general tax levy was totally insufficient to maintain the fund that they adopted the amendment of 1931 with full knowledge that in so adopting it they were successfully emasculating the pension plan. With a full knowledge of the duty and obligation of the city to provide for and pay pensions to those entitled thereto in equal monthly instalments, I am impressed that by their action in 1931, in removing the limitation of 2 per cent, the framers of the charter intended to make it possible for the city council to maintain the pension fund in such condition as to meet current monthly obligations thereby put upon the city.

It is also worthy of note that other so-called retirement or pension funds, such as the retirement plan for California state employees, have a provision that, in the event employment terminates, the contributions made to the fund are returned to the employee, or in the event his official connection with the state is terminated by death, refund of payments contributed by him are made to his estate or designated beneficiary. This is not true under the Long Beach City Charter, and consequently the deductions from the policemen's and firemen's pay secured for them, in my judgment, rights similar to a contract of insurance.

Another interesting fact in connection with this proceeding is that section 188 of the Charter of the City of Long Beach provides that the provisions of the pension fund are intended to be in lieu of and take the place of the Workmen's Compensation Insurance and Safety Act of 1917 of the State of California, p. 831, and amendments heretofore and hereafter to be adopted, and, should it be decided by the courts of this state that the proivisions of the Workmen's Compensation Insurance and Safety Act cannot be waived, then payments made under the pension provisions of the charter should be credited on the amounts allowed under the compensation act. Whatever may be the law concerning the rights of a city in anywise to abridge the rights of its employees and their dependents to receive the compensation under the Workmen's Compensation Act, it seems to me that the provisions with reference to the Workmen's Compensation Act cast considerable light upon the intention of the people and of their desire to pay these pensions in equal monthly instalments.

I am further impressed that had it been the intention of the people to abandon the pension plan, and I think we must assume that such was their intention if we hold that they adopted a plan with full knowledge from an actuarial standpoint that it was unsound and could not be maintained, then it seems to me they would have repealed subdivisions 2, 3 and 4 of section 187. If it was not the people's intention to destroy the pension plan, then certainly it cannot be assumed that by the amendment of 1931 they withdrew from the city council the power to successfully maintain it. In the absence of any express language indicating an intention to destroy the plan, it seems to me we should and must assume that by their amendment of 1931 the formers of the charter intended to confer upon the city council the duty to maintain the fund out of revenues of the city in such form as would enable the municipality to discharge the obligations assumed by it toward its policemen and firemen pursuant to the provisions of subdivisions 2, 3 and 4 of section 187.

For the foregoing reasons, it is my judgment that a peremptory writ of mandate should issue as prayed for.

DORAN, Justice.

YORK, P. J., concurs.