Comstock v. Davis

NOURSE, J.

Appellant is the widow of a member of the San Francisco fire department who died as the result of an injury received while on duty as chief engineer of a pumping station of the auxiliary fire system of the department. Respondents, as commissioners ct the fire pension fund of that department, denied her application for a pension on the ground that provisions of the San Francisco charter relating to pensions did not apply to members employed in the auxiliary fire system. The trial court sustained the action of the commissioners and gave judgment against the petitioner, from which this appeal is taken.

Appellant urges two grounds for reversal: (1) That the family of any member of the fire department who is killed in the performance of his duty is entitled to a pension; and (2) that the charter amendment of 1910 is unconstitutional because the title to the senate concurrent resolution by which the amendment received legislative approval did not express the subject matter of the amendment.

[1]

(1) Section 5, chapter 7, article IX, of the San Francisco charter, provides in part as follows: “The commissioners shall, out of the firemen’s relief fund, provide as follows for the family of any officer, member or employee of the fire department who may be killed or injured while in the performance of his duty.” Section 6 of chapter 1 of the same article provides that “all persons appointed to positions in the department must at the time of their appointment be citizens of the United States, not less than twenty-one nor more than thirty-five years of age.” By an amendment adopted by the electors of San Francisco on November 15, 1910, and approved by the legislature on Feb

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ruary 17, 1911, a proviso was added to this section raising to fifty-five years the age limit of “engineers, mechanics and employees of the auxiliary fire system.” A further proviso was added at the same time reading that “employees and appointees in this proviso named shall not be subject to nor derive any benefit from the provisions of chapter 7 of this article relating to firemen’s relief fund.”

It is argued that as the proviso merely excepts employees and appointees, it does not relate to their families, and hence the provisions of section 5, chapter 7, article IX, granting a pension to the family of any employee of the department killed while in the performance of his duty, apply to the families of those employed in the auxuliary fire system as well.