Sheehan v. Board of Police Commissioners

The proceedings out of which the present appeal arose had their inception in two certain special proceedings instituted by the respondent herein in the superior court of the city and county of San Francisco against the board of police commissioners of said municipality, by which, in the first of said proceedings, he sought by a writ of review to have certain orders of said board, wherein he was attempted to be dismissed from the police department thereof, reviewed and annulled; and by the second of which proceedings he sought by writ of mandate to compel his restoration and reinstatement as a disabled and retired police officer, and also to compel the issuance of a warrant by said board for the payment of his accrued and accruing pensions as such disabled and retired officer. These two proceedings were consolidated by the trial court which, upon the hearing thereon, upheld the contention of the petitioner in both of said proceedings, reviewing and annulling the said orders dismissing him from the police department, adjudging that he was entitled to have and receive his accrued and accruing pensions as such disabled and retired police officer, establishing the aggregate amount of his already accrued pensions up to the time of the rendition of its decision to be $4,600, and directing a writ of mandate to issue against the said board of police commissioners, acting ex officio as a board of police relief and pension fund commissioners, and ordering said board in that capacity to issue a warrant for said sum drawn upon the auditor and treasurer of said municipality.

Upon the hearing of this appeal, the respondent moved for a dismissal thereof upon several grounds, most of which related to informalities in the defendants’ motion to vacate the order for the issuance of said peremptory writ of mandate; and as to these, we do not perceive any merit in them. Nor do we think there is any merit in the chief ground of said motion to dismiss, which is that the order directing the issuance of the peremptory writ was one unnecessary to be made and hence not harmful to the appellants, since it was the duty of the clerk of the trial court, upon the receipt of the remittitur showing the affirmance upoií appeal of the original order of the trial court directing the issuance of a peremptory writ, to issue said writ without the necessity of any further or later order of the court. [1] The answer to this portion of the respondent’s motion to dismiss is twofold, the first being that the respondent, having deemed such further order necessary to the issuance of said writ, as shown by his ex parte application therefor, cannot now be heard to urge that the making of said order was unnecessary upon a motion to dismiss the appeal thereon; second, as to that portion of said order which requires the clerk to include interest upon both the amount of the petitioner’s claims for his pension accrued prior to September 1, 1912, the date of his original order, and the amount thereof accruing and becoming payable annually after said date, the same question arises, namely, whether the clerk had the right to include said items of interest in the terms of said writ. We think that the order of August 6, 1920, was sufficient in form to cover and deny the appellant’s motion to quash and recall said writ, and we also think that the question of the right of the clerk to include said items of interest in said writ, with or without an order of the court to that effect, is embraced within the scope of this appeal upon its merits, and hence that the respondent’s motion to dismiss the same should be denied.

[2] The single question thus presented upon this appeal is whether or not the trial court had a right to order interest payable upon the so-called “judgment” in said mandamus proceeding establishing the petitioner’s status as a

If we were to regard the form of this adjudication as decisive of the question before us, it might well be held sufficient as such a judgment as, entered in an appropriate action or proceeding, would come within the terms of sections 1915 and 1920 of the Civil Code; but the question presented herein lies deeper than the face or terms of this adjudication and involves the nature of the proceeding, the parties before the court, the fund from which the petitioner’s pension was and is payable, and the powers of the trial court both in the making of such original adjudication and in the issuance of its subsequent order and writ for the enforcement of its terms. It may be conceded at the outset of this discussion that the petitioner and respondent herein has sufficiently established his right to be the recipient of a pension amounting to the sum of $600 a year, dating from the first day of January, 1904, and continuing down to September 1, 1911, and that such pension was passable from the police relief and pension fund collected and maintained by said municipality for the payment of pensions to disabled police officers or, in the event of their death in service, to their relatives; and that such pension to which the petitioner was thus entitled had remained unpaid down to and after the time of the inception of the original proceedings herein by means of which he sought to compel the allowance and payment of Ms said accumulated pensions. The police relief and pension fund of said municipality is provided for in chapter X of article VIII of the San Francisco charter. By the terms of said chapter, the board of police commissioners of said municipality are constituted ea> officio a board of police relief and pension fund commissioners and, as such, are made the trustees of said fund. The moneys which supply and maintain the same, derived from various sources, are deposited with the treasurer of the municipality and are paid out by said treasurer to those persons who are entitled thereto upon warrants issued by the said board of police relief and pension fund commissioners and presented to the auditor to be by the latter official audited and ordered paid. The only function which the board of police commissioners,

We are reinforced in this conclusion by the uniform current of authority in this state as to the scope and functions of writs of mandate. In the early ease of Davis v. Porter, 66 Cal. 658 [ 6 Pac. 746 ], the proceeding was one in mandamus to compel the treasurer of the city of Sacramento to

In the case of Barber v. Mulford, 117 Cal. 356 [ 49 Pac. 206 ], the application was in mandamus against the board of education of the city of San Diego to compel the issuance of an order upon the county school superintendent for the drawing of a requisition on the county treasurer for the payment of a claim of the petitioner against the school district. It was contended by the petitioner successfully in the trial court that he was entitled in said proceeding to the allowance and award of interest upon his claim from the time of its allowance by the board of education. In refusing to sustain this contention, upon appeal, the court said: “It was error to allow interest in the mandate of the writ. If it be said that interest should be allowed for damages as in ordinary cases for breach of contract, the reply is that mandamus does not lie to enforce the obligation of contracts but only the performance of an act which the law specially enjoins, in this instance the issuance to plaintiff of an order for the amount of Ms audited claim, no more nor less. The judgment should be modified by omitting therefrom the direction for the allowance of interest.”

In the case of Howe v. Southrey, 144 Cal. 767 [ 78 Pac. 259 ], the application was for a writ of mandate to compel

In the recent case of Engebretson v. City of San Diego, 185 Cal. 475 [ 197 Pac. 651 ], the question of the right of a claimant against a municipality to recover interest upon his claim from and after the date when payment thereon was due took a broader range, since that action was one directly against the city of San Diego to recover upon such claim with interest. The court in that case held that, in the absence of a statutory provision authorizing it, the holder of a claim against a municipality was not entitled to recover interest, even in a direct action against said municipality to recover a judgment upon such claim. In so holding, the court cited with approval the foregoing cases to the effect that in a mandamus proceeding interest was not allowable upon a claim against the funds of a city, and stated that the only remedy, if any, for a claimant in case of delay in the auditing and payment of his claim would be by a direct action against the city to recover judgment thereon, which judgment when recovered would bear interest under section 1920 of the Civil Code. This case has a direct bearing, not only upon that portion of the order of the trial court herein which directed the inclusion in the writ of mandate of interest upon the pension claims of the petitioner accrued prior to its original adjudication, but also upon that portion of the order herein appealed

The eases cited and relied upon by the respondent are not at variance with the views above expressed. They are, in each instance, cases wherein the judgment relied upon as bearing interest was one obtained in a direct civil action against the municipality or individual owing the debt or directly liable for the amount of the demand. No case of a writ of mandate directing interest to be allowed upon a claim not founded upon such a judgment has been called to our attention. The ease of Fuller v. Aylesworth, 75 Fed. 694 [ 21 C. C. A. 505 ], upon which the respondent herein strotigly relies, was a case wherein a money judgment had been rendered against a county, adjudging it liable to pay a sum certain to the plaintiff, with a provision for mandamus to compel the levy of certain assessments for the payment of such judgment. Judge Taft in that ease pointed out “that the writ of mandamus in the circuit courts is never an independent suit as it is in many states and in England, but it is only a proceeding ancillary to the judgment which gives the jurisdiction; and, when issued, becomes a substitute for the ordinary process of execution to enforce payment of the same as provided in the contract.” [4] The writ of mandate in this state is an independent proceeding having for its purpose the compulsion of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It has none of the characteristics or functions of a civil action for the collection of a debt.

It follows from the foregoing review of the authorities that the petitioner and respondent herein neither had nor could obtain such a money judgment in this mmdamus proceeding as would bear interest under the provisions of sections 1915 and 1920 of the Civil Code, and hence that the trial court was in error in its ex parte order of July 2, 1920, in so far as it undertook to direct the issuance of a writ of mandate to the appellants herein, which should include the allowance of interest upon the aggregate amount of the petitioner’s pension due and unpaid prior to Sep

The orders are reversed, and the trial court is hereby directed to recall and quash the writ of mandate issued in conformity therewith in so far as the same directs the drawing of any warrant or warrants for the payment of ' interest upon the petitioner’s pension demands.

Shaw, C. J., Wilbur, J., Shurtleff, J., Sloane, J., and Lawlor, J., concurred.

Rehearing denied.

All the Justices concurred.