WARD, J. I dissent. The dispute here involves the interpretation- to be given a pension ordinance. The facts are set forth in the majority opinion, including reference to two letters introduced by respondents for the limited purpose of showing the circumstances under which appellant proffered his resignation, namely, that he, a member of the Fire Department, "was at the time “on the carpet” for having reported for duty several times in an intoxicated condition. The fact is not denied that at the time of his resignation charges for dismissal on the ground that for the third time he had reported for duty in such condition were pending. He had been theretofore charged with violations of the rules of the department and, as stated in the majority opinion, had on one occasion been suspended. Under the circumstances, his resignation could have been refused and he could possibly have been declared guilty of “consecutive” neglect of duty, and suspended or dismissed. His resignation was accepted. It further appears that at the time of his proffered resignation, two days before its actual presentation and acceptance, (at" which time he was unable to write because of intoxication), he demanded the return of money imposed on two occasions as a fine. To my mind it is inconceivable that in accepting the resignation any one in authority thus exercising leniency toward appellant ever imagined that he would thereafter apply for a pension.
The majority opinion admits that two interpretations of section 5 of the ordinance are reasonably possible, but holds that the one adopted in favor of appellant, permitting him to resign and obtain a pension, is the more reasonable.
Section 5 contemplates that if an employee is dismissed for a trivial offense, not a felony and not a notorious and consecutive dereliction of duty, he may be entitled to a pension. (Daly v. Otis, 92 Cal.App. 242 [267 P. 921].) In the Daly case, so strongly relied upon in the majority opinion, it does not appear that the appellant resigned. The question of [524]resignation played no part in the decision, the appellant having neither “voluntarily nor involuntarily resigned.”
Where the language of a pension ordinance is susceptible of more than one interpretation, it should be construed liberally in favor of the person claiming the pension unless such construction would produce unfair, unreasonable and impractical consequences. In ascertaining the meaning of the loosely drawn ordinance herein, grammatical construction and punctuation should not be given controlling weight, particularly when the provision whose meaning is sought is, as admitted in the majority opinion, ambiguous, and it appears from other provisions or from the entire ordinance that a reasonable and practical construction may be given by avoiding niceties of punctuation which may lead to a" conclusion inconsistent with the purpose of the ordinance. Under such reasonable construction, the questioned terms in section 5 appear to be and are exclusionary and definitive of the instances in which an employee, who has served for ten and less than twenty-five years, is not entitled to a pension.
Under the provisions of the ordinance three methods of discontinuance of service (eliminating death) are contemplated: 1. Retirement, 2. Removal, 3. Resignation by (a) operation of law, (b) an act of a governmental body, and (c) an act of the employee.
In order to secure retirement from a governmental body the applicant must still be a member of such body. The filing of an application for retirement does not ipso facto terminate his connection with the department, board or commission. “It is necessary that an order of retirement be duly made.” (MacIntyre v. Retirement Board of San Francisco, 42 Cal. App.2d 734 [109 P.2d 962].) When made, the matter is at an end except for the right to apply to the courts to modify or set it aside. The same rule applies to a resignation. (Kramer v. Board of Police Commissioners, 39 Cal.App. 396 [179 P. 216]; Curtin v. Board of Police Commrs., 74 Cal.App. 77 [239 P. 355].)
In the present case it is not contended on appeal that appellant was coerced or unfairly or unduly persuaded to resign, although by answer the respondents averred that the resignation was offered “for the purpose of evading a trial on written charges for dismissal.” “The voluntary resignation of a public employee from his position operates, however, as a complete severance therefrom, and the loss of right to the [525]position and of all rights, benefits, or emoluments thereof, including all pension rights.” (40 Am.Jur., 984-985.) This rule has been adopted in California, where in Kramer v. Board of Police Commissioners, supra, appellant claimed he had been coerced into an involuntary resignation. The court there said (p. 400): “Measured by these definitions it must be concluded that the plaintiff’s resignation from the police department was not induced by either duress or coercion, but that the same was voluntary, and hence, upon its acceptance by the board of police commissioners, worked a final severance of the relation of the plaintiff as a police officer with the police department of the city and county of San Francisco.” In Moreno v. Cairns, 20 Cal.2d 531, 534, 535 [127 P.2d 914], the court said: “The petitioner contends that since his separation from the department was effected by resignation under duress, and not by unlawful suspension, lay off, or discharge, he was not required to present a written demand before filing his petition for a writ of mandate. This contention overlooks the fact that a resignation is characteristically the voluntary surrender of a position by the one resigning made freely and not under duress. . . . Whenever a person is severed from his employment by coercion the severance is effected not by his own will but by the will of a superior. . . . Petitioner’s emphasis upon the coercion that forced his resignation is prompted by the fact that there can be no reinstatement after a voluntary resignation. (Kramer v. Board of Police Commissioners, 39 Cal.App. 396 [179 P. 216].)” In the Moreno case upon the facts the court affirmed the judgment against the petitioner, an assistant chief of the fire department.
In my opinion, a fair interpretation of the clause dealing with resignations as applied to appellant is that, not having been retired or removed, upon the acceptance of his resignation, whether voluntary or involuntary, his connection with the department was at an end. This is not a proceeding to set aside the presentation or acceptance of a voluntary or involuntary resignation.
The petition alleges that the pension fund is for the benefit of the “members” of the department and contains the further averment that petitioner’s employment ceased upon acceptance of his resignation.
The ordinance provides that those granted the benefit of pensions shall report to the chief of the department at stated [526]periods and may, in a public emergency, be assigned to perform certain duties. (Sections 8 and 10 of the ordinance.) If appellant’s connection with the department had ceased, the department had no further control over him.
From a practical standpoint the construction placed upon the terms of section 5 by the majority opinion would encourage an employee against whom charges warranting dismissal or less than dismissal are pending or about to be filed, or who has been convicted but not formally dismissed from the department, to resign and so secure a pension. It'might encourage employees in good physical condition to resign after ten years of service, and, while taking advantage of the pension provisions, perform employment for compensation elsewhere. It would permit an employee within the ten year service, who had been denied a pension for disability, to defeat the purpose of the disability section (3(a)) of the ordinance and receive a pension by resignation. It is conceivable that a large number in the ten year class might at this time be tempted to apply for pensions, and in addition take advantage of the present high wages on the outside. Regardless of motive, however, or the amount of such wages, the whole scheme or plan to award pensions would fail in that case by reason of the financial inability of the pension body to carry the burden.
When a person agrees to accept a governmental position with pension rights, he impliedly contracts, unless health or unforeseen circumstances prevent, to serve for the ordinary period, at the termination of which he becomes entitled to retire on account of age or service. (Dryden v. Board of Pension Commrs., 6 Cal.2d 575 [59 P.2d 104]; Brooks v. Pension Board, 30 Cal.App.2d 118 [85 P.2d 956].) In Douglas v. Pension Board, 75 Cal.App. 335, 340-341 [242 P. 756], the court said: “The considerations upon which a government adopts, as a part of its administrative policy, a system for the pensioning of those who have continuously, for a specified period of years, served the government in the performance of public civil duties, both as officers and employees, are, in a large measure, ... To safeguard or insure such officers or employees against a possible condition of penury and want when, after giving the best part of their lives, both in point of time and service and ability, to the service of the public, are no longer able to perform, to the degree required, labor of any character or kind. A more just and humane con[527]sideration of the class or classes of persons for whom such a provision is made by a government can hardly be conceived. . . . It should not be so construed and administered as to confer its benefits upon those not actually entitled thereto.” (Italics added.)
The wording of the section in question may easily be construed technically in favor of respondents as the majority opinion holds. In my opinion the punctuation and intricacies of phraseology may be disregarded. “The fact that an act was carelessly and awkwardly drawn, or that some of its terms are inapt and susceptible of two or more interpretations, does not excuse the courts from attempting to ascertain the legislative intent or authorize them to enlarge the plain meaning and effect of an act. An awkwardly and loosely drawn statute should be so construed as to remove its inconsistencies as well as to obviate constitutional objections, and the courts will give to it the most reasonable solution permissible, even though it is not entirely satisfactory.” “We have noticed the general rule that the meaning of a statute is to be sought in the language used by the legislature. But this does not mean that the courts are always to be governed by the exact phraseology and literal meaning of every word or phrase employed. The primary rule of intention is to be first applied. And intention may be ascertained, in doubtful cases, not only by considering the words used, but also by taking into account other matters, such as the context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, contemporaneous construction, and the like. In other words, the courts will not blindly follow the letter of a law, when its purpose is apparent, to consequences which are inconsistent with that purpose; and this would seem to he particularly true when the results of a literal interpretation, if adopted, would be absurd, and unjust, or where rights of the public are involved.” (23 Cal.Jur., secs. 112, 113, pp. 734, 734-735-736.)
One reason given in the majority opinion for the adoption of appellant’s view as to the construction is that if respondents’ interpretation is correct, appellant would be “thus deprived not only of the right to a pension, but to a return of any part of the money deducted from his monthly salary for the pension fund during the preceding ten years.” No issue involving [528]the return of '‘money deducted’’ is raised by the pleadings; no finding is made thereon, and, as far as I have been able to ascertain, neither in appellant’s nor respondents’ briefs is there any mention of the matter. My only comment is to adopt the language used in MacIntyre v. Retirement Board of Sam Francisco, supra, as follows: “No demand for accumulated contributions appears in the record, and the matter not being an issue on this appeal, it is not necessary to determine any question in relation thereto. ’ ’
I respectfully submit that under a reasonable interpretation of the eoncededly awkward punctuation and phraseology, under the facts, and in the interest .of justice, this judgment should be affirmed.
A petition for a rehearing was denied June 5, 1943. Ward, J., voted for a rehearing. Bespondents’ petition for a hearing by the Supreme Court was denied July 1, 1943. Edmonds, J., Traynor, J., and Schauer, J., voted for a hearing.