Jenkins v. City of Los Angeles

SHINN, Acting P.J.

This is an appeal by the Board of Pension Commissioners of the City of Los Angeles, and its members, from a judgment in mandamus ordering them to

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grant to petitioner, Gertrude Jenkins, a minor, a pension under section 183 of article XVII of the Charter of the City of Los Angeles, as a child of Charles S. Jenkins, deceased, who retired as a member of the fire department of said city on August 1, 1923.

Respondent herein was born January 3,1926, to said Charles S. Jenkins and Estelle Olme, who were never married to each other. She later, by adoption, became a legitimate child of her father.

Two points are urged on the appeal, namely, that no child of a city pensioner, born after his retirement, is entitled to receive a pension, and further that a child born illegitimate but adopted by its father is not entitled to a pension under the city charter, regardless of when it was born.

Section 183 of the city charter provides in substance as follows: “Whenever any member of the Fire or Police Department shall die . . . after retirement . . . then an annual pension shall be paid in equal monthly installments to his widow, or child or children, or dependent parent or parents. . . . Said pension shall be paid to the widow during her lifetime or until she remarries, and thereafter ... to the legally appointed guardian of the child or children of such deceased member until such child or children shall have attained the age of eighteen years, or to his child or children should there be no widow until such child or children shall have attained the age of eighteen years. ...”

We do not consider either of appellants’ contentions to be sustainable. As to the first contention, we see no reason for holding that the child or children who have pension rights are those only who are in being at the time of the retirement of their father, to the exclusion of those born afterward. No such limitation is found in the charter, nor can the words which would be necessary to create that limitation be read into the charter under the guise of interpretation. From all that we find there, it would appear that the framers of its pertinent provisions had in mind any child or children living at the time of the death of the retired pensioner, without distinction between those born before and those born after retirement. The section would be no clearer to us if it referred in so many words to children born after retirement as well as to those born before. The word “child” as used means to us any child, and the word “children” means all children. They