INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL NO 1319 AFL CIO v. CITY OF PALO ALTO (1963)

This is an appeal from a judgment in favor of the petitioners¹ directing the issuance of a peremptory writ of mandate against the appellants² and ordering the dismissal of a cross-complaint filed by the appellants against the petitioners.

The Record

The petitioners filed a petition for writ of mandate against the appellants alleging substantially: that the appellants have established and maintain in effect policies, rules and regulations prohibiting employees of the appellant city's fire department from joining a labor organization; that the said regulations obstruct the right of fire fighters in their exercise of freedom of self-organization; and that appellants have established rules and regulations which discriminate against members and potential members of the Union by denying them the benefits of merit raises, advancements and salary increases and by forcing members of the Union to resign their membership under threat of penalties.

In support of the foregoing allegations the petitioners attached two exhibits (exhibits ‘A’ and ‘B’) to their petition. Exhibit ‘A’ consists of a letter written by the attorney for the petitioning Union to the appellant city manager advising him of the enactment of Assembly Bill 618³ at the 1959 session of the Legislature, and of an opinion of the Attorney General with reference thereto, and requesting an expression of willingness to comply with said law. Exhibit ‘B’ is the city manager's response to said letter. The substance of the latter letter is an acknowledgment of said law and the Attorney General's opinion, and a statement that: ‘We have been advised by our City Attorney, however, that in his opinion the law does not apply to charter cities and is therefore not binding on the City of Palo Alto nor any of its officers. We are acting accordingly.’

The petitioners further alleged that the appellants had acted contrary to the provisions of sections 1960 to 1963 of the Labor Code⁴ and prayed that an alternative writ of mandate issue commanding the appellants to vacate the above alleged policies and regulations which restrict union activities and membership and to comply with sections 1960–1963. An alternative writ thereupon issued ordering the appellants to vacate and set aside the policies, rules and regulations referred to in the petition, to cease and desist from the alleged activities, and directing compliance with said Labor Code sections, or to show cause why they had not done so.

The appellants filed their return and answer to the alternative writ wherein they made certain denials and admissions. They denied: that the petitioning Union was and is a labor organization organized as a voluntary unincorporated association; that all of the members of the Union were or are employees of the appellant city and its fire department; and that petitioner, Smith, was and is president of said Union and that he was and is acting as its agent and representative. The appellants in said answer and return expressly admitted as follows: that at the time of the filing of the petition in this action on April 27, 1961, the rules and regulations of the Fire Department of the City of Palo Alto contained a provision prohibiting union membership, but that on May 9, 1961, said rule was rescinded by action of the appellant city manager; that they have not dealt with, recognized or maintained any relationship with the petitioners concerning the matters set forth in the petition on the advice of their legal counsel on the ground that sections 1960 to 1963 do not apply to charter cities and on the further ground that section 1962 requires a legislative body to only “discuss” grievances and recommendations regarding wages, salaries, hours and working conditions; that the appellants have not “dealt with, recognized or maintained any relationship” or had any discussion with the petitioner organization for the further reason that many fire fighter employees of the appellant city are members of the Palo Alto Municipal Employees Association and of other employee organization; and that the appellant city has not been presented with any evidence to show that the petitioner association represents the fire fighter employees of the appellant city in preference to said other associations or otherwise. The appellants also admit in their said answer to the receipt of exhibit A and the execution of exhibit B, but deny the remaining allegations of the petition.

By way of a distinct and separate defense to the petition the appellants alleged as follows: that the appellant city is a charter city incorporated pursuant to provisions of sections 6 and 8 of article XI of the California Constitution; the existence of the aforesaid rule prohibiting union membership and its rescission on May 9, 1961, by the appellant city manager upon the recommendation of the chief of the fire department; that no rule or other ordinance exists which prohibits membership by any employee of the appellant city in any bona fide labor organization; that aside from a request made on October 5, 1959, which was rejected, and excepting for the request indicated in exhibit A attached to the petition no request for recognition or discussion of any problems of firemen belonging to petitioner have been made or presented to the appellant city, its council, its city manager, or its fire chief; and that pursuant to its charter the appellant city has provided for working rules and regulations for its firemen, has established a merit system, and has provided for a grievance and appeal procedure for all of the appellant city's employees.

A cross-complaint for declaratory relief was filed shortly thereafter by the appellants. The essence of said cross-complaint is that a controversy has arisen between the appellants and the petitioners relative to the validity and interpretation of section 1962, the appellants contending therein that said section is not applicable to the appellant city and further that it is unconstitutional. By their prayer the appellants sought a declaration of such unconstitutionality and inapplicability, and, in the event section 1962 was found to be valid and applicable, a declaration of the rights and duties of the parties thereunder.

No answer to the cross-complaint was ever filed, nor does it appear that any pretrial proceedings were had or that any pretrial order was made. On this state of the pleadings the action proceeded to trial.⁵ Only one witness testified: he was the appellant fire chief, called as a witness by the petitioners. The fire chief testified that he wrote the letter (exhibit A attached to the answer and return), which recommended the rescission of the aforementioned rule prohibiting union membership and that he wrote the following statement in said letter: ‘I will admit that I advised one Captain to resign his membership because it has been my belief that supervisory personnel should not be affiliated with any employee organization.’ He testified further that the captain in question was a member of the petitioning Union and that he had recommended that the said captain resign his membership in the Union because of his belief that supervisory personnel should not be affiliated with an employee organization. The court thereupon stated that the question before it appeared to be one of law, and after an indication by the court that the matter ought not to be pursued further, both sides rested.⁶ The matter was thereupon submitted and the trial court thereafter made its judgment ordering the issuance of a peremptory writ of mandate. The orders therein made are set out in their entirety in the footnote.⁷

Questions Presented

1. Are sections 1960–1963 of the Labor Code applicable to a chartered city such as the City of Palo Alto?

2. Are the petitioners beneficially interested in the issuance of the writ of mandate?

3. If the aforementioned sections are applicable to the City of Palo Alto and the petitioners are beneficially interested, was the trial court warranted in ordering the issuance of a peremptory writ of mandate?

4. Did the trial court abuse its discretion in dismissing the cross-complaint for declaratory relief?

The Applicability of Labor Code Sections 1960–1963 to Chartered Cities

The crucial question to be determined by us is whether sections 1960–1963 are applicable to chartered cities. The conclusion reached on this main question will determine the resolution of the other questions presented on this appeal. Accordingly, we now turn to the subject sections.⁸

The petition alleges that the appellant city is a chartered city created by and pursuant to the laws of the State of California. This allegation is not denied by the appellants in their answer. Indeed, the appellants concede in their briefs on appeal that Palo Alto is a chartered city. They assert therein that the appellant city has been chartered by the People of the State of been chartered by the People of the State of California pursuant to sections 6, 8 and 8 1/2 of article XI of the California Constitution. This is also a matter of which both the trial court and the appellate court take judicial notice. (Code Civ.Proc. § 1875, subds. 2 and 3; Spaulding v. Desmond, 188 Cal. 783, 790, 207 P. 896; Clark v. City of Pasadena, 102 Cal.App.2d 198, 200, 227 P.2d 306; County of Marin v. Dufficy, 144 Cal.App.2d 30, 34, 300 P.2d 71; County of L. A. v. State Dept. of Pub. Health, 158 Cal.App.2d 425, 431, 322 P.2d 968.) Pursuant to said charter the appellant city was granted powers over ‘municipal affairs.’ Among these is the authority over all matters concerning the management, control and supervision of its departments and employees, including the power to appoint, supervise, control and remove officers, heads of departments and employees and to prescribe their qualifications and to provide for their compensation. (See subd. 4 of § 8 1/2 of art. XI of Cal.Const., and art. III, § 18, and art. IV, § 5 of charter of City of Palo Alto.)

The appellants contend that by virtue of its said charter the appellant city has plenary and exclusive authority over all matters concerning the management, control and supervision of its departments. The essence of their argument is that with respect to municipal affairs the appellant city has plenary power and control equal to that of the Legislature to the extent that its ordinances, rules and regulations are superior to and unaffected by statutes enacted by the Legislature in municipal affairs, even where there is a conflict between the two. The appellants cite a number of cases in support of this contention. A perusal of these cases discloses that they deal with municipal affairs of purely local concern not expressly forbidden by the State Constitution or the terms of the charter.⁹ Another is not in point.¹⁰ The others, while announcing the general principle espoused by the appellants, insofar as it applies to municipal affairs of purely local concern actually hold that the matters there under consideration are matters of state concern and that the state law in question applied to charter cities.¹¹ Other cases are cited by the appellants to the effect that all matters connected with public employment in a chartered city are municipal affairs,¹² and that the control, management and organization of departments and agencies of municipal government by a charter city are also municipal affairs over which chartered cities have wide discretion.¹³ Here, again, a close reading of these cases indicates that they were either dealing with purely local municipal affairs, or were reaffirming principles peculiarly applicable to such affairs. A closer scrutiny of the authorities in this state discloses that the important distinction is not so much whether the matter under consideration is a municipal affair or not, but whether such matter is of statewide and general concern. Thus in Dept. of Water & Power of City of L. A. v. Inyo Chem. Co., 16 Cal.2d 744, 108 P.2d 410, the court, in holding that a state statute concerning a matter of general state concern may be applicable to a charter city, even though it affected a municipal affair, stated: ‘If the state statute affects a municipal affair only incidentally in the accomplishment of a proper objective of statewide concern, then the state law applies even as to ‘autonomous' charter cities.’ (p. 754, 108 P.2d 416; citing City of Pasadena v. Charleville, 215 Cal. 384, 10 P.2d 745.) In Pac. Telephone & Telegraph Co. v. City & County of S. F., 51 Cal.2d 766, 336 P.2d 514, the court, in discussing the history of the constitutional provision granting autonomy to charter cities with respect to municipal affairs, says the following: ‘As to matters which are of state concern, however, freeholders' charter cities remained subject to and controlled by general state laws regardless of the provisions of their charters.’ (p. 769, 336 P.2d p. 516; emphasis added; citing Cal.Const., art. XI, § 6 and cases; see also Murdy v. City of Los Angeles, 201 Cal.App.2d 468, 471, 20 Cal.Rptr. 69.)

Where the matter is one of state concern, the inquiry is in turn directed as to whether or not the field has been preempted by general law. Local legislation is invalid if it attempts to impose additional requirements in a field that is pre-empted by the state. (Cal.Const., art. XI, § 11; In re Lane, 58 A.C. 97, 100, 22 Cal.Rptr. 857, 372 P.2d 897; Abbott v. City of Los Angeles, 53 Cal.2d 674, 682, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385; Agnew v. City of Los Angeles, 51 Cal.2d 1, 5, 330 P.2d 385; Tolman v. Underhill, 39 Cal.2d 708, 712, 249 P.2d 280; Pipoly v. Benson, 20 Cal.2d 366, 370, 125 P.2d 482, 147 A.L.R. 515.) ‘Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.’ (In re Lane, supra, 58 A.C. p. 100, 22 Cal.Rptr. p. 859, 372 P.2d p. 899.) Under these circumstances the local legislation is invalid because there is no room left for supplementary local regulation of the particular subject, and any such legislation is necessarily inconsistent with the state law. As stated in Abbott, “The difficult question in such cases is whether the state law was intended to occupy the entire field. Where the statute contains language indicating that the legislature did not intend its regulations to be exclusive, the general rule permitting additional supplementary local regulations has been applied.” (53 Cal.2d p. 683, 3 Cal.Rptr. p. 164, 349 P.2d p. 980.) Accordingly, in determining whether the Legislature intended to occupy a particular field to the exclusion of all local legislation, an appellate court may look to the whole purpose and scope of the legislative scheme, and is not required to find such an intent solely in the language used in the statute. (In re Lane, supra, pp. 100–101, 22 Cal.Rptr. p. 858–859, 372 P.2d pp. 898–899; Tolman v. Underhill, supra, 39 Cal.2d p. 712, 249 P.2d p. 282; Abbott v. City of Los Angeles, supra, 53 Cal.2d pp. 682–684, 3 Cal.Rptr. pp. 163–165, 349 P.2d pp. 979–981.)

The public policy of this state as to labor organizations is declared in section 923.¹⁴ Although this section would appear by its language to be applicable to all individual workmen by whomsoever employed, it has been held not to inaugurate a state policy with reference to labor relations which would be applicable to the state or its political subdivisions. (Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 168 P.2d 741; City of L. A. v. Los Angeles etc. Council, 94 Cal.App.2d 36, 45, 210 P.2d 305; Newmarker v. Regents of Univ. of Cal., 160 Cal.App.2d 640, 646, 325 P.2d 558.) Nutter, upon which both City of L. A. and Newmarker rely, recognized that the language of section 923 is broad enough to include state and municipal governments, but held that general language in a statute is not sufficient, in itself, to indicate an intention to make it applicable to government. Nutter went on to say: ‘Where a statute is not expressly made applicable to government, it is for the courts to determine whether the Legislature intended it to apply to government. In making that determination, it is proper to consider all matters which, under the rules of statutory interpretation, shed light upon the legislative intention.’ (74 Cal.App.2d p. 300, 168 P.2d p. 746.) The essence of the holding in Nutter was to declare that the policy expressed pressed in section 923 was not intended to apply to the field of public employment but only to that of private industry. In 1959 the Legislature enacted sections 1960–1963, specifically applicable to fire fighters. In section 1963, moreover, the Legislature apparently recognized the holding of the Nutter case when it therein provided that the enactment of sections 1960 to 1962 inclusive ‘shall not be construed as making the provisions of Section 923 of this code applicable to public employees' It is apparent, therefore, that it was not the legislative intent to make the public policy declared in section 923 applicable by the enactment of sections 1960 to 1963 to public employees. It is just as apparent, however, that by the enactment of the latter sections the Legislature intended that fire fighters in public employment be not prohibited nor obstructed by the state or any of its subdivisions from joining or forming any bona fide labor organization of their own choice. It is also clear that by these statutes the Legislature intended to give to such an organization the right to present to, and discuss with, the governing body the grievances of fire fighters and recommendations regarding their wages and working conditions, but not to give to fire fighters the right to strike or recognize a picket line. It appears to us, that insofar as fire fighter public employees are concerned, the Legislature was attempting to reconcile the rule laid down by Nutter with the public policy declared in section 923, and yet give heed to the apprehensions expressed by that case as to the propriety of extending the public policy, encompassed in section 923 and applicable to private employment, to the domain of public employment. We see no incompatability, however, between section 923 and sections 1960–1963. It is a fundamental rule of statutory construction that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Select Base Materials v. Board of Equal., 51 Cal.2d 640, 645, 335 P.2d 672; Cal. Toll Bridge Authority v. Kuchel, 40 Cal.2d 43, 53, 251 P.2d 4.) It is also a cardinal rule of construction that every statute should be construed with reference to the whole system of the law of which it is a part so that all may be harmonized and have effect. (Stafford v. L. A. etc. Retirement Board, 42 Cal.2d 795, 799, 270 P.2d 12; Select Base Materials v. Board of Equal., supra, 51 Cal.2d p. 645, 335 P.2d p. 675.) This latter rule is particularly applicable where the statutes are in pari materia. (See Garmon v. San Diego Bldg. Trades Council, 49 Cal.2d 595, 608, 320 P.2d 473, where section 923 was held to be in pari materia with sections 1115–1118 of the same code pertaining to jurisdictional strikes; Glenn v. Clearman's Golden Cock Inn, Inc., 192 Cal.App.2d 793, 797, 13 Cal.Rptr. 769, and see Chavez v. Sargent, 52 Cal.2d 162, 205, 339 P.2d 801.) Moreover, related code sections and pertinent decisions may be properly considered as bearing upon the legislative intent and the purpose in adopting a statute. (Jensen v. Hugh Evans & Co., 13 Cal.2d 401, 404, 90 P.2d 72.)

In proceeding to apply the foregoing principles of construction to the instant case we first take cognizance of the holding by the Supreme Court that the policy declared in section 923 is not limited to the interpretation of the chapter of the code of which that section is a part, but is a general independent declaration of state policy and that local legislation in conflict therewith is void. (Chavez v. Sargent, supra, 52 Cal.2d p. 191, 339 P.2d p. 819; In re Porterfield, 28 Cal.2d 91, 115–118, 168 P.2d 706, 167 A.L.R. 675.) We next take cognizance of the declaration in Chavez that the public policy as to the full freedom of employees for self-organization and for voluntarily selecting and negotiating agreements through their own committees or agencies is a statewide policy and a subject of statewide concern. An analysis of the pertinent statutory and decisional law of this state insofar as the present inquiry is concerned discloses the following evolution: The enactment of section 923 by the Legislature declaring the public policy of this state with reference to labor organizations; the recognition of this policy and its statewide application by the decisions; the holding in Nutter that this public policy was not applicable to public employees; the enactment of sections 1960–1963 permitting fire fighter public employees to join bona fide labor organizations of their own choice and to present grievances and make recommendations with reference to wages and working conditions through such labor organizations; and a specific provision in section 1963 that the policy declared in section 923 shall not be construed as being applicable to public employees.

Section 923 and sections 1960–1963 relate to the same subject and should be considered together. As said in Garmon: ‘They all represent an endeavor on the part of the Legislature to safeguard the rights of the individual workman and the employer in this important field of labor-management relationships.’ (49 Cal.2d p. 608, 320 P.2d 481.) The public policy declared in section 923 has been construed not only to include the rights of workmen to self-organization, but to include the right to collective bargaining, the right to attempt and attain a closed shop, and the right to the use of such concerted action to enforce an objective that is reasonably related to any legitimate interest of organized labor such as strike, peaceful picketing and boycott. (Messner v. Journeymen Barbers etc., 53 Cal.2d 873, 876, 4 Cal.Rptr. 179, 351 P.2d 347; Shafer v. Registered Pharmacists Union Local 1172, 16 Cal.2d 379, 106 P.2d 403; Petri Cleaners, Inc. v. Automotive Employees, etc., Local No. 88, 53 Cal.2d 455, 2 Cal.Rptr. 470, 349 P.2d 76.) As we have pointed out above, Nutter decided that section 923 had no other objective than to improve the status of labor in the field of private industry and did not encompass public employment. There was nothing in Nutter, however, to suggest that the field of labor relations in public employment was not a matter of statewide and general concern. The relations between employer and employee are so interwoven in the affairs of daily life as to make them matters affecting a public interest and the general welfare of the state. Section 923 recognizes this public interest in the field of private employment. We see no reason, upon analogy, why the Legislature could not make the same recognition as to public employment. Certainly, the field of public employment is as much a matter of public interest as that of private employment. That the Legislature could have extended the public policy declared in section 923 to public employment is suggested by Nutter, which intimates that section 923 might have been made applicable to government if it had expressly so provided.

Matters of public employment in a chartered city have been generally held to be ‘municipal affairs' and thus left to regulation by such a city. This has resulted not so much from a determination that such employment is not of statewide concern, but rather because the chartered city had legislated upon a subject which was not a ‘municipal affair,’ but upon which the general law was silent, or which was a ‘municipal affair,’ but one not in conflict with general law. As pointed out in Chavez: ‘Even in matters of state-wide concern [citations], the city or county has police power equal to that of the state so long as the local regulations do not conflict with general laws.’ (52 Cal.2d 162, p. 176, 339 P.2d p. 809.) There is, moreover, ‘no precise, lasting, and inflexible definition of a municipal affair.’ (L. A. Brewing Co. v. Los Angeles, 8 Cal.App.2d 391, 397, 48 P.2d 71, 74.) ‘[T]he constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state.’ (Pac. Telephone & Telegraph Co. v. City & County of S. F., supra, 51 Cal.2d 766, 771, 336 P.2d 514, 517; L. A. Brewing Co. v. Los Angeles, supra, 8 Cal.App.2d 391, 397, 48 P.2d 71.) The phrase ‘municipal affairs' has received a narrow construction, having been repeatedly modified by the courts with such words as ‘strictly,’ ‘internal’ and ‘exclusively,’ so that the term refers to matters of strictly local or internal concern as contrasted to matters of strictly statewide concern or of both local or statewide concern. (Simpson v. City of Los Angeles, 40 Cal.2d 271, 277–278, 253 P.2d 464; Horwith v. City of Fresno, 74 Cal.App.2d 443, 446–447, 168 P.2d 767; Wilton v. Henkin, 52 Cal.App.2d 368, 372, 126 P.2d 425; and see City of Pasadena v. Charleville, supra, 215 Cal. 384, 388–389, 10 P.2d 745.) Furthermore, the courts have held that whether a particular matter is a municipal affair is usually a question of fact to be decided in each controverted case (Butterworth v. Boyd, 12 Cal.2d 140, 147, 82 P.2d 434, 126 A.L.R. 838), and that when there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles, supra, 53 Cal.2d 674, 681, 3 Cal.Rptr. 158, 349 P.2d 974; Ex parte Daniels, 183 Cal. 636, 639–640, 192 P. 442, 21 A.L.R. 1172.)

We are persuaded that fire fighting is a matter of statewide concern. The ever present danger of fire in California with its many acres of lands covered with timber, brush, grass, grain and other inflammable vegetation is not only a matter of general concern, but also a subject of considerable legislative enactment. (See Pub.Resources Code, §§ 4000–4168.) The incidence and danger of fire within cities and towns because of the many frame buildings therein located is also a matter of common knowledge. It is also a matter of common experience that fire has a propensity to spread rapidly. Accordingly, a fire which has its origin in a particular locality may transcend the boundaries of that locality and spread into other areas. A fire spreading from a chartered city into other areas would be a matter of concern to persons other than those residing in the locality in which it originated. The role of the fire fighter in community life is of paramount importance, as is his competence and morale. The matter of compensation and working conditions are factors significant to his well-being. Certainly, inequities or disparities between different localities as to compensation and working conditions may well affect the morale of men engaged in the vocation of fire fighting. It requires little, if any, argument to demonstrate the advantages of a concerted presentation and discussion of grievances and recommendations through an organization as contrasted to such a presentation and discussion when made by individuals or small groups.

By the enactment of sections 1960–1963 the Legislature has now seen fit to legislate on a matter of statewide concern upon which it was formerly silent. The Legislature has not only made these statutes applicable to the state itself, but also to counties, cities, cities and counties, districts and other political subdivisions of the state. (§§ 1960 and 1961.) The obvious intent of this legislation was to encompass within its scope the entire state and its political subdivisions, and to include within its purview all employees of the fire departments and fire services of the state and such subdivisions. In the enactment of section 1963 the Legislature specifically indicated an intention not to make applicable to public employees the broad declaration of policy as to labor relations contained in section 923; yet by the enactment of sections 1960, 1961 and 1962, certain aspects of the policy declared in section 923 were made applicable to certain public employees, that is, to fire fighters. The rights thus granted to fire fighters are limited to those specified in the subject Labor Code sections. They consist of (1) the right to self-organization and to form, join or assist labor organizations; and (2) to present grievances and recommendations regarding wages, salaries, hours and working conditions, and to discuss the same with such body through such organization. This is the extent of the rights granted by these statutes. The intent to limit the rights to those enumerated is further indicated by the specific provision prohibiting strikes and the recognition of picket lines while in the course of the performance of official duties, and the more embracive provision that the policy declared in section 923 shall not be applicable to public employees. Thus, fire fighter public employees do not have all the rights of employees in private industry afforded by section 923, but only such of the same rights as are specifically provided for in sections 1960–1963.

We therefore have a situation where the statutory legislation provided for in sections 1960–1963 has the effect of suspending the charters of cities so far as they are inconsistent with such statutes. (See City of Pasadena v. Charleville, supra, 215 Cal. 384, 388, 10 P.2d 745.) However, although public employment may be a matter of statewide concern, the Legislature has not seen fit to pre-empt the entire field of public employment. Excepting for the matters encompassed in the general law declared in sections 1960–1963 and in such other instances where local law may be in conflict with general law, the subject of public employment and its regulation continues to repose with chartered cities in the exercise of their chartered powers.

Considerable stress is laid by the appellants upon the argument that collective bargaining has no place in public employment, and decisional authority is cited in support of this contention. This principle is, of course, well-established in California law by Nutter and Newmarker, which hold that section 923, which declares that the policy of this state in favor of collective bargaining does not apply to public employment. As we have pointed out above, section 923 is specifically excluded from the purview of sections 1960–1963, and hence collective bargaining which is one of the rights recognized by section 923 is likewise so excluded. A reading of section 1962 indicates that the fire fighter labor organization may only present grievances and recommendations and discuss them with the governing body. Collective bargaining by its recognized definition and application in the field of labor relations presupposes something more than mere presentation and discussion. The essence of collective bargaining is the right to negotiate and agree on the terms and conditions of employment. (See Chavez v. Sargent, supra, 52 Cal.2d 162, 339 P.2d 801; United Construction Workers v. Haislip Baking Co., 4 Cir., 223 F.2d 872, 877; Railway Mail Ass'n. v. Murphy, 180 Misc. 868, 44 N.Y.S.2d 601, 605.) This right is not inherent in sections 1960–1963.

Are the Petitioners Beneficially Interested?

The petition alleged that the petitioner Union is a labor organization organized as a voluntary unincorporated association; that all its members were and are employees of Palo Alto and its fire department; that petitioner Smith is a member of the said Union and its president; that Smith is acting as the agent and representative of the Union; and that the petitioners are bringing this action on behalf of themselves and on behalf of the numerous members of the petitioning Union similarly situated because individual actions by all such individuals would result in a multiplicity of suits, would impose a harsh burden upon the court, and would involve tremendous expense which the individuals would be unable to bear. All of these allegations were denied by the appellants. No evidence or proof in support of said allegations was presented or offered at the trial. This is sufficient, in itself, say the appellants, to warrant a reversal of the judgment.

A party seeking mandamus must have a clear right and a beneficial interest to protect. (Parker v. Bowron, 40 Cal.2d 344, 254 P.2d 6; Code Civ.Proc. § 1086.) In order for the writ to issue the petitioner must show that it will subserve or protect some right of his, and it will not lie where it is apparent that the petitioner has no direct interest in the action sought to be coerced and that no benefit can accrue to him from its performance. (Parker v. Bowron, supra, p. 351, 254 P.2d p. 9; Ellis v. Workman, 144 Cal. 113, 115, 77 P. 822.)

The appellants argue that the rights conferred by sections 1960–1962 are only conferred upon individual workmen and not upon their representatives or upon labor organizations, and that, therefore, the Union and its president, Smith, have no standing as parties plaintiff for want of a beneficial interest sufficient to satisfy the requirements of sections 382 and 1086 of the Code of Civil Procedure.¹⁵ In support of their position the appellants rely upon Parker v. Bowron, supra, 40 Cal.2d 344, 254 P.2d 6, and other cited cases, which we shall hereinafter discuss.

In Parker, the petitioner for a writ of mandate was the secretary-treasurer of a council of labor unions which included among its members some of the employees of the respondent city. The petition sought a writ to compel the city officials to fix the salaries of classes of city employees in amounts equal to the prevailing scale in private industry. It was there held that the superior court properly denied mandamus on the ground that petitioner was not the real party in interest or beneficially interested. The court there stated: ‘Parker, as an individual, alleges no facts to show that he has any right or interest in the action sought to be commanded. He does not plead that he is an employee of the city, nor even that he is a resident or taxpayer of the city. There is no indication that any benefit could accrue to him if the writ were issued, nor that he will suffer any detriment if it is denied.’ (40 Cal.2d pp. 351–352, 254 P.2d p. 10.) The court also considered the application on the theory that the council of labor unions was a petitioner, but found that the requisite beneficial interest or representative interest was lacking because only a small number of union members were city employees and there was no allegation that any one of them was employed by a department for which the defendants fixed the wage scale.

Cal. Gas Retailers v. Regal Petroleum Corp., 50 Cal.2d 844, 330 P.2d 778, did not involve a mandamus proceeding, but an injunction action brought by a nonprofit corporation and one of its members to enjoin three groups of independent service stations from operating an alleged lottery. The issue there was whether the plaintiffs could bring a class suit under Code of Civil Procedure section 382. The court held that the plaintiff corporation could not do so because there was no community of interest between the corporation and its members and that they were not ‘similarly situated’ because the corporation was complaining of the inability of its members to pay dues and assessments, while the members were alleged to have been injured by defendants through loss of business. The court did hold, however, that the individual plaintiff member was “similarly situated” (p. 851, 330 P.2d p. 782) with the other members and that therefore he could maintain a class action on behalf of his fellow members.

In Sharff v. Superior Court, 44 Cal.2d 508, 280 P.2d 896, 64 A.L.R.2d 494, two attorneys, who represented the plaintiff in a personal injury action, joined with the plaintiff in a mandamus proceeding challenging the validity of an order requiring the plaintiff to submit to an examination by the defendant's doctor in the absence of plaintiff's attorney. The Supreme Court dismissed the appeal as to the two attorneys on the basis that ‘they have no standing on their own behalf to challenge the validity of the order’ without further comment. (P. 510, 282 P.2d p. 897.)

Bank of America etc. Ass'n. v. Superior Court, 15 Cal.App.2d 279, 59 P.2d 461, was a case where the plaintiff bank, after having an action dismissed as to it thereafter brought a mandamus proceeding to require the dismissal of the entire action for failure to bring the action to trial within five years. (Code Civ.Proc. § 583.) It was there held that the bank was not entitled to the writ because it was not beneficially interested in view of the bank's prior dismissal from the action.

In Jenkins v. Reardon, 77 Cal.App. 339, 246 P. 817, the plaintiffs sued the Board of Public Works for a writ of mandate to compel the Board to prevent a third person from building a dwelling in violation of the State Housing Act. A writ was denied because the plaintiffs failed to prove the two essential elements required by mandamus, that is, that they were the parties beneficially interested and that they had no other plain, speedy or adequate remedy in the ordinary course of law. There the interest of the plaintiffs was denied by respondents in their answer. The court held that this denial ‘was not countervailed by proof, ‘either in direct denial or by way of avoidance,’' as provided in Code of Civil Procedure section 1091. (P. 340, 246 P. p. 818.)

Weaver v. Pasadena Tournament of Roses, 32 Cal.2d 833, 198 P.2d 514, a leading case on the subject of class suits, involved an action by several plaintiffs “on behalf of themselves and all others similarly situated” to recover damages under Civil Code section 53 for wrongful refusal of admission to a football game. The court there held that there was not the required well defined community of interest because the question as to each individual plaintiff was whether he presented himself, whether he tendered the price of the ticket and whether the refusal was wrong as to him.

We need not discuss Sharff and Bank of America because they are easily distinguishable. Parker, Cal. Gas Retailers and Weaver turn on the question whether there was present a well-defined “community of interest” in the questions of law and fact involved as affecting the parties to be represented. (Cal. Gas Retailers v. Regal Petroleum Corp., supra, 50 Cal.2d p. 850, 330 P.2d p. 781.) It is also apparent from a reading of these cases that the common or joint interest must be that of an ascertained class in the subject matter of the controversy. (Weaver v. Pasadena Tournament of Roses, supra, 32 Cal.2d p. 839, 198 P.2d p. 518.) In Weaver and Cal. Gas Retailers we do not have the required community of interest.¹⁶ In Parker we have a failure to plead sufficient facts to bring it within the rule regarding class suits. Parker did not claim to be a member of the interested class and there was nothing in his petition to indicate that he was ‘similarly situated’ with those whom he purported to represent. Accordingly, in Parker, there was no common or general interest in the subject matter of the controversy.

In the present case sufficient facts have been alleged to show that both the Union and its president, Smith, are members of an interested class, i. e., the fire fighter employees of the appellant city. We have a definite allegation that the petitioner Union is a lawful labor organization; that all members of said Union are employees of the appellant city's fire department; that Smith is a member and president of the Union; that Smith is acting as agent and representative of the Union; and that the action is brought on behalf of the Union and its numerous members similarly situated in order to avoid a multiplicity of suits. The petition further alleges that the Union is a voluntary unincorporated association. Such an association is an aggregation of the individuals who comprise it. (5 Cal.Jur.2d, Associations and Clubs, §§ 2 and 8, pp. 448, 456; see Juneau etc. Corp. v. Int'l. Longshoremen's and Warehousemen's Union, 37 Cal.2d 760, 235 P.2d 607; Sperry Products v. Association of American R. R., 2 Cir., 132 F.2d 408, 411, 145 A.L.R. 694.) If the Union in the instant case is in fact a voluntary unincorporated association, it is in essence an aggregation of all its members, and accordingly is its members.

Sufficient facts have, in our opinion, been alleged by both the Union and Smith to show that they have a right or interest in the action sought to be commanded, that they are members of the interested class, and are similarly situated with those whom they purport to represent. The Union and its members, including Smith, allege a common or general interest in the subject of the controversy. Questions of law and fact common to the Union and the members of its class are raised by the petition. The subject of the controversy is the right to join a labor organization, and to have that organization recognized, by the appellant city and its officers, as the agency representing the Union's members in matters having to do with the presentation of grievances and recommendations as provided in sections 1960–1962. Both the Union and Smith have a sufficient interest in the subject matter to maintain the instant proceeding. To hold otherwise would be tantamount to defeating the legislative intent. (See Denver Building & Construction Trades Council v. Vail, 103 Colo. 364, 368–369, 86 P.2d 267.)

Moreover, under the analogy of Cal. Gas Retailers, Smith would be entitled to maintain this proceeding on behalf of all his fellow members. If Smith may do so, the Union, which is all its members, may likewise do so. It should be noted here that the decision in Parker was also based upon the holding that the petitioners had no legal standing as purported representatives of city employees in negotiations with the appellant city, under the authority of Nutter and City of Los Angeles, because the city was under no duty to bargain collectively or contract with unions. Parker was decided prior to the enactment of sections 1960–1963, and while chartered cities are still not required to bargain collectively or contract with unions, they now have the duty to recognize a labor organization representing fire fighters, to permit such organization to present grievances and recommendations in the instances provided in section 1962, and to discuss such matters with the representatives of such organization.

The inquiry, in the present case, is directed not so much to the existence of a cause of action in the petitioners as it is to the proof of their beneficial interest. The allegations as to the organizational status of the Union, that all of its members were employees of the appellant city, and that Smith was a member and president of the Union, were all denied by the appellants upon information and belief. These are all questions of fact upon which the determination of the petitioners' beneficial interest is dependent. No proof was offered at the trial in support of these allegations. At the trial, however, the court's attention was called to the appellants' cross-complaint for declaratory relief where all of these facts are affirmatively alleged.¹⁷ Such an affirmative allegation in a subsisting pleading in the same case amounted to a judicial admission and, as such, was a conclusive concession of the matter alleged and had the effect of removing such matter from the issues. (2 Witkin, Calif.Proc., §§ 216, 217, 218, pp. 1194–1196; Witkin, Calif.Evid., § 224, p. 251; Brown v. Aguilar, 202 Cal. 143, 149, 259 P. 735; Lifton v. Harshman, 80 Cal.App.2d 422, 431, 182 P.2d 222; Braverman v. Rosenthal, 102 Cal.App.2d 30, 32, 226 P.2d 617; Garrado v. Collins, 136 Cal.App.2d 323, 325, 288 P.2d 620.)

Was the Order for the Issuance of the Peremptory Writ Justified?

A writ of mandate will issue ‘to compel the performance of an act which the law specially enjoins, as a duty resulting from an office * * *.’ (Code Civ.Proc. § 1085.) In order to justify mandamus the petitioner must show that the respondent has a present duty to perform the act which is sought to be compelled. Accordingly, it will not issue to compel the performance of future acts; not for the mere anticipated refusal to perform a possible or probable future duty. (McMullen v. Glenn-Colusa Irr. Dist., 17 Cal.App.2d 696, 699, 62 P.2d 1083; Communist Party of United States of America v. Peek, 20 Cal.2d 536, 540, 127 P.2d 889; Northridge etc. Water Dist. v. McDonell, 158 Cal.App.2d 123, 127–128, 322 P.2d 25.) Nor will mandamus lie for an act that has already been done. (Sinclair v. Jordan, 183 Cal. 486, 487, 191 P. 910; State ex rel. Grenville v. Nash, 134 Minn. 73, 158 N.W. 730, and see Duke v. Justice's Court, 42 Cal.App.2d 178, 179, 108 P.2d 707.) Moreover, mandamus is never granted to compel performance of an act until there has been an actual, as distinguished from an anticipated, refusal. (Northridge etc. Water Dist. v. McDonell, supra, 158 Cal.App.2d p. 127, 322 P.2d p. 28; 32 Cal.Jur.2d § 10, pp. 128, 130 and cases therein cited). The alleged duty may also be conditional on demand, in which case, until demand and refusal, mandamus will not lie. (Metropolitan Life Ins. Co. v. Rolph, 184 Cal. 557, 562, 194 P. 1005; Bank of America etc. Ass'n. v. Superior Court, supra, 15 Cal.App.2d 279, 280, 59 P.2d 461.) A demand is excused, however, when the act is a mere public duty affecting the public at large and in which the petitioner has no immediate benefit or when the attitude of the respondent shows that it would have been refused if made. (Jensen v. McCullough, 94 Cal.App. 382, 389, 271 P. 568; 3 Witkin, Calif.Proc., § 42, p. 2523.)

In the instant case the writ requires the appellants to vacate and set aside the policies, rules and regulations of the appellants ‘as reflected in Exhibits ‘A’ and ‘B’ * * *.' The exhibits referred to are, apparently, the letters attached to and made a part of the petition. A reading of these exhibits fails to disclose that they contain or refer to any rules or regulations. Exhibit ‘A’ is merely a query as to whether the appellants intend to comply with the provisions of sections 1960–1963. Exhibit ‘B’, the reply to exhibit ‘A,’ acknowledges awareness of these statutes, but states that they are not applicable to the appellants. Exhibit ‘A’ amounts to a demand for compliance with the statutes in question. Exhibit ‘B’ is tantamount to an actual refusal to comply with the law of the state relative to the right of fire fighters to join a union. The latter is also indicative of a policy or attitude of noncompliance on the basis that the appellants believe that the statutes are not applicable to them. This policy and attitude is not only evidenced by exhibit ‘B,’ but it is also the substance of the appellants' return and the basis of the appellants' position in the instant proceedings, both in the court below and on this appeal. The maintenance of such a policy is contrary to the provisions of sections 1960, 1961 and 1962 and amounts to a refusal to perform a present duty enjoined by law. (International Ass'n. of Fire Fighters v. County of Merced, 204 A.C.A. 439, 444–445, 22 Cal.Rptr. 270.) The trial court, therefore, was warranted in directing the appellants to comply with the law, that is, to recognize the right of the petitioners and the other members of the Union to organize, and to present grievances and recommendations regarding wages, salaries, hours and working conditions to the governing body of the fire department and to discuss the same with such governing body through such organization. The writ in question does not purport to do anything more than to set aside the present policy of the appellants, which refuses to recognize this right. It does not presume to compel the performance of any future acts.

We are of the opinion, however, that insofar as the writ purports to set aside any rules and regulations it exceeds the purview of mandamus. The evidence in this case shows that the appellants rescinded and abrogated its rules and regulations prohibiting fire fighters from joining labor unions prior to the trial and in response to the alternative writ directing them to do so. As pointed out above, mandamus will not lie for an act already done. There was evidence adduced that at the time of the trial there were no such rules or regulations in existence, nor was it shown that the promulgation of any such rules or regulations was threatened or proposed. The extent of the fire chief's testimony was that prior to the rescission of the rule against union membership, he had advised a captain to resign his membership in the petitioning Union. This, too, was an act performed in the past. There was no evidence presented that this was the present attitude of the fire chief. Even if it were it certainly would come within the scope of present policy and would thus be encompassed by the writ. The petitioners now complain that their examination of the fire chief was unduly curtailed by the court. They also intimate that they were precluded from presenting testimony along the same line through other witnesses. We are of the opinion that the petitioners were entitled to present evidence of present omissions and acts, actual and threatened, at variance with the requirements of the subject Labor Code sections. The petitioners did not, however, object to the court's action nor did they make any offer of proof. moreover, they have not taken an appeal from the court's ruling. Accordingly, they cannot be heard to complain.

The Dismissal of the Cross-Complaint

As we have heretofore pointed out in the narrative of the facts, the appellants' cross-complaint for declaratory relief was not at issue, an answer thereto not having been filed by the petitioners. It is apparent from the record that the cause proceeded solely on the issues tendered by the petition for writ of mandate and the answer and return thereto. Notwithstanding the stipulation of the parties that the cross-complaint be held in abeyance pending the court's decision on the mandamus proceeding, the trial court in its judgment proceeded to dismiss the cross-complaint on its own motion.

Pursuant to section 1061 of the Code of Civil Procedure a trial court may refuse to grant declaratory relief ‘in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.’ This is a discretionary power given to a trial court, the proper exercise of which will be assumed by the appellate court unless it is affirmatively shown that the court abused its discretion. (Fairchild v. Bank of America Nat. Trust & Savings Ass'n, 192 Cal.App.2d 252, 260, 12 Cal.Rptr. 491; Bard v. Standard Mortgage Corp., 119 Cal.App. 509, 512, 6 P.2d 582.) Accordingly, a court may not refuse to entertain or grant declaratory relief if the procedure is clearly appropriate, particularly where the complaint for declaratory relief states a cause of action. (Weissman v. Lakewood Water & Power Co., 173 Cal.App.2d 652, 656, 343 P.2d 776; Foster v. Masters Pontiac Co., 158 Cal.App.2d 481, 486, 322 P.2d 592.)

In a case where declaratory relief is sought by way of cross-complaint, however, ‘[a]n important consideration is whether the evidence in the trial of the main action would be the same or substantially the same as that to be produced under the issues tendered by the cross-complaint.’ (Weissman v. Lakewood Water & Power Co., supra, p. 656, 343 P.2d p. 778; Sattinger v. Newbauer, 123 Cal.App.2d 365, 266 P.2d 586.) The cross-complaint in the case at bench seeks a determination of the validity and constitutionality of section 1962, a declaration as to its applicability to the appellants, and, in the event it should be declared valid and applicable, a declaration of the rights and duties of the parties thereunder.¹⁸ It appears to us that the issues raised by the cross-complaint and those raised by the answer and return to the petition are substantially the same. The factual and legal issues in the mandamus proceeding are the same as those which would be tried under the cross-complaint, and the judgment in the mandamus action necessarily determines the controversy between the parties. The trial court has passed upon the validity and the extent of applicability of the subject Labor Code sections to the appellants. Moreover, we have herein discussed matters of substance with respect to which the declaration was sought, and we have, in effect, afforded a declaration as to the law measuring the rights and duties of the appellants insofar as they appertain to a present controversy. As in mandamus, a court is not required to declare rights which may be the subject of future controversy. (Merkley v. Merkley, 12 Cal.2d 543, 547, 86 P.2d 89.) Accordingly, the object of declaratory relief has been attained by the trial court's ruling and our holding herein. (See 15 Cal.Jur.2d § 25, pp. 144, 145; Fairchild v. Bank of America Nat. Trust & Savings Ass'n, supra, 192 Cal.App.2d 252, 262, 13 Cal.Rptr. 491, and see Crooks v. Glens Falls Indem. Co., 124 Cal.App.2d 113, 119–120, 268 P.2d 203.)

We hold, therefore, that the trial could did not abuse its discretion in refusing to grant declaratory relief. The procedure of dismissing the cross-complaint by way of dismissal where such relief is not warrant was approved in Weissman v. Lakewood Water & Power Co., supra, 173 Cal.App.2d 652, 656, 343 P.2d 776. (See Fairchild v. Bank of America Nat. Trust & Savings Ass'n, supra, where sustaining of demurrer without leave to amend was held to be proper.) In Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 192, it was held, however, that rather than a judgment of dismissal the trial court should enter its judgment decreeing expressly (as implied by the judgment of dismissal) that the plaintiff is not entitled to the declaration in his favor, which he seeks. (P. 624, 213 P.2d p. 499; citing Maguire v. Hibernia Savings & Loan Society, 23 Cal.2d 719, 728–731, 146 P.2d 673, 151 A.L.R. 1062.)

We therefore hold that the trial court was correct in its judgment ordering a writ of mandate directing the appellants to vacate and set aside the policies of the appellants which refuse to recognize the applicability of sections 1960–1963 to the appellant city. The trial court erred, however, in directing the appellants to vacate and set aside the ‘rules and regulations of respondents as reflected in Exhibits ‘A’ and ‘B.”

Accordingly, the judgment of the trial court is modified by striking from the second paragraph thereof the words reading ‘rules and regulations of respondents as reflected in Exhibits ‘A’ and ‘B”; and inserting in lieu thereof the words: ‘of the respondents which refuse and deny the applicability of Labor Code sections 1960 to 1963, inclusive, to the respondents.’

In view of the holding in Essick, the final paragraph of the judgment is modified by striking therefrom the words ‘that the cross-complaint filed herein by respondents, and each of them, as part of the return to the petition for writ of mandate, be, and the same hereby is, dismissed,’ and inserting in lieu thereof the words: ‘that the respondents are not entitled to the declarations in their favor which they seek in their cross-complaint.’

As so modified the judgment of the trial court is affirmed, petitioners, (respondents on appeal) to recover their costs.

FOOTNOTES

1.  The petitioners are the International Association of Fire Fighters, Local No. 1319, AFL-CIO, hereinafter sometimes referred to as the ‘Union,’ and its president, Harold T. Smith.

2.  The appellants, who were the respondents in the court below, are the City of Palo Alto, its city manager, the chief of the fire department, its mayor and other members of the city council.

3.  Labor Code sections 1960, 1961, 1962 and 1963.

4.  All statutory references hereafter shall be with respect to the Labor Code, unless otherwise indicated.

5.  It appears, however, that the cause proceeded to trial only on the issues tendered by the petition for writ of mandate and the answer and return thereto. After both sides rested their case and prior to submission the following colloquy took place: ‘MR. MICHALSKI: [For appellants] Excuse me, we of course still have our Cross-Complaint in declaratory relief pending, which was not considered here this morning, and no Answer—— ‘MR. VAN BOURG: [For petitioners] I assume that the initial position we set forward in our petition takes care of the Cross-Complaint, but technically, under the rules, I think we must reply to that the same as we would be obliged to reply to a Cross-Complaint in an original action, and I would ask counsel to grant us an extension of time until ten days after they give us notice that we are required to answer that pleading, and of course, that would depend upon what this Court does with the basic action. Is that agreeable? ‘MR. MICHALSKI: That is agreeable. ‘MR. VAN BOURG: Thank you. ‘THE COURT: Very well. All right then, the matter will be submitted.’

6.  ‘THE COURT: Well, we will let the answer stand, but I don't see any reason why we should pursue this matter any further. ‘MR. VAN BOURG: Very well, Your Honor, I would have no further questions of the witness, and we would have no other witnesses at this time. (Witness Excused.) ‘MR. VAN BOURG: The petitioner rests. ‘MR. MICHALSKI: The respondent rests, Your Honor.’

7.  ‘IT IS HEREBY ORDERED that a peremptory writ of mandate in due from be issued requiring respondents, and each of them to vacate and set aside the policies, rules and regulations of respondents as reflected in Exhibits ‘A’ and ‘B’ and to grant to the petitioners and to numerous other members of the union similarly situated: ‘1. The right to self-organization, to form, join, or assist labor organizations; ‘2. To present grievances and recommendations regarding wages, salaries, hours and working conditions to the governing body of the Fire Department and to discuss the same with such governing body through such organization. ‘IT IS HEREBY FURTHER ORDERED that the cross-complaint filed herein by respondents, and each of them, as part of the return to the petition for writ of mandate, be, and the same hereby is, dismissed. ‘The Clerk of Court is hereby directed to issue said peremptory writ of mandate and to enter the dismissal of the cross-complaint as aforesaid.’

8.  Specifically, sections 1960 to 1963 of the Labor Code provide: ‘Chapter 4. FIREFIGHTERS ‘§ 1960. Neither the State nor any county, political subdivision, incorporated city, town, nor any other municipal corporation shall prohibit, deny or obstruct the right of firefighters to join any bona fide labor organization of their own choice. ‘§ 1961. As used in this chapter, the term ‘employees' means the employees of the fire departments and fire services of the State, counties, cities, cities and counties, districts, and other political subdivisions of the State. ‘§ 1962. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to present grievances and recommendations regarding wages, salaries, hours, and working conditions to the governing body, and to discuss the same with such governing body, through such an organization, but shall not have the right to strike, or to recognize a picket line of a labor organization while in the course of the performance of their official duties. ‘§ 1963. The enactment of this chapter shall not be construed as making the provisions of Section 923 of this code applicable to public employees.’

9.  City of Redondo Beach v. Taxpayers, Property Owners, etc., City of Redondo Beach, 54 Cal.2d 126, 5 Cal.Rptr. 10, 352 P.2d 170; Raisch v. Myers, 27 Cal.2d 773, 167 P.2d 198; Wheeler v. Gregg, 90 Cal.App.2d 348, 370, 203 P.2d 37.

10.  Viner v. Civil Service Comm., 59 Cal.App.2d 458, 465, 139 P.2d 88.

11.  Los Angeles By. Corp. v. Los Angeles. 16 Cal.2d 779, 108 P.2d 430 (matter not exclusively of municipal concern and therefore not a municipal affair within the meaning of Constitution); Dept. of Water & Power of City of L. A. v. Inyo Chem. Co., 16 Cal.2d 744, 108 P.2d 410 (state statute affecting municipal affair only incidentally in accomplishment of objective of statewide concern); Pipoly v. Benson, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515 (local ordinance invalid where field fully occupied by state statute).

12.  Craig v. Superior Court, 157 Cal. 481, 108 P. 310; City of Pasadena v. Charleville, 215 Cal. 384, 10 P.2d 745; Young v. Board of Bldg. and Safety Com'rs., 100 Cal.App.2d 468, 224 P.2d 16; Scheafer v. Herman, 172 Cal. 338, 155 P. 1084; Dinan v. Superior Court, 6 Cal.App. 217, 91 P. 806; Curphey v. Superior Court, 169 Cal.App.2d 261, 337 P.2d 169; Dept. of Water & Power of City of L. A. v. Inyo Chem. Co., 16 Cal.2d 744, 108 P.2d 410; Murphy v. City of Piedmont, 17 Cal.App.2d 569, 62 P.2d 614, 64 P.2d 399; Richards v. Wheeler, 10 Cal.App.2d 108, 51 P.2d 436; Municipal Bond Co. v. Riverside, 138 Cal.App. 267, 32 P.2d 661; Tevis v. City & County of San Francisco, 43 Cal.2d 190, 272 P.2d 757; Trefts v. McDougald, 15 Cal.App. 584, 115 P. 665; Jackson v. Wilde, 52 Cal.App. 259, 198 P. 822; Klench v. Board of Pension Fund Com'rs., 79 Cal.App. 171, 249 P. 46; Popper v. Broderick, 123 Cal. 456, 66 P. 53; Dierssen v. Civil Service Commission, 43 Cal.App.2d 53, 110 P.2d 513; Higgins v. Lynch, 72 Cal.App.2d 526, 164 P.2d 943; Livingstone v. MacGillivray, 1 Cal.2d 546, 36 P.2d 622.

13.  Perez v. Board of Police Com'rs., 78 Cal.App.2d 638, 178 P.2d 537; Young v. Board of Bldg. & Safety Com'rs., 100 Cal.App.2d 468, 224 P.2d 16; Lossman v. City of Stockton, 6 Cal.App.2d 324, 44 P.2d 397; Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 62 P.2d 1047; Armas v. City of Oakland, 135 Cal.App. 411, 27 P.2d 666, 28 P.2d 422.

14.  Labor Code section 923: ‘In the interpretation and application of this chapter, the public policy of this State is declared as follows: ‘Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individuals workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ (Enacted in 1937.)

15.  Code Civ.Proc. section 382 provides for ‘class suits.’ Code Civ.Proc. section 1086 provides that a writ of mandate ‘must be issued upon the verified petition of the party beneficially interested.’

16.  In Cal. Gas Retailers, the requirement was only found to be absent as to the plaintiff corporation. It was found to be present, however, as to the individual member plaintiff.

17.  Paragraph II of the cross-complaint contains the following language: ‘That at all times mentioned petitioner International Association of Fire Fighters Local No. 1319, AFL-CIO, hereinafter referred to as ‘Union’ was and is a labor organization organized as a voluntary, unincorporated association under and pursuant to the laws of the State of California; that at all times herein mentioned all of the members of the Union were and are employees of the respondent City of Palo Alto and of the Fire Department of the City of Palo Alto; that at all times herein mentioned petitioner Harold T. Smith was and is an employee of the City of Palo Alto and a member of the Union.'

18.  The prayer seeks declarations as follows: ‘(a) Whether the rules and regulations of the City Council establishing a merit system and a grievance and appeal procedure for all city employees for the presentation of any ‘grievance, misunderstanding or inequity’ apply to members of the Palo Alto Fire Department and whether such city employees are exempt from following said procedure. ‘(b) Whether respondents or any of them must ‘deal with, recognize or maintain any relationship with petitioners' concerning ‘benefits' and the matters ennumerated in said section as stated by petitioners, to the extent that this amounts to something more than according to employees the right to ‘present’ and ‘discuss' the matters set forth in said section, and if so, to what extent. ‘(c) Whether the right of employees to ‘present’ and ‘discuss' the matters ennumerated in said section 1962 with the governing body imports a corresponding duty on the part of the governing body to do anything more than to accord such employees or such organization the right to ‘present’ and ‘discuss', and if so, to what extent. ‘(d) Whether respondents must accord the right to ‘present’ and to ‘discuss' grievances and ‘recommendations' as mentioned in said section 1962 with any and all persons and organizations who, like petitioner, purport to ‘represent’ or to ‘speak on behalf of’ the employees of the Fire Department of the City of Palo Alto. ‘(e) Whether respondents must ‘bargain collectively’ with petitioner association and organizations similarly situated. ‘(f) Whether respondents must ‘negotiate’ with petitioner association and organizations similar situated. ‘(g) Whether respondents must enter into any contract, agreement or understanding with petitioners and organizations similarly situated, or make any effort, in good faith or otherwise, to do so.’

MOLINARI, Justice.

BRAY, P. J., and SULLIVAN, J., concur.