Sunder v. Collins

California Supreme Court Nov 28, 1933 No. Docket No. S.F. 15008.Published

Before: Thompson, Curtis, Preston

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Holding. The court held that the retirement system provisions of the new San Francisco charter, specifically the inhibition in section 163, do not apply to police officers retired under the previous charter, thereby rendering the intervener eligible for office.

Issues

Whether a police officer retired under the city's former charter is subject to the disqualification provisions of the new charter's retirement system.
Whether the petitioner is entitled to a writ of mandate to remove the intervener's name from the ballot.

Disposition. denied and dismissed

Quotations verified verbatim against the opinion

“It is clear, therefore, that the legislative intent is not to make the inhibition found in section 163 applicable to any other persons than those members of the retirement system declared such by the new charter; hence by its very terms this section excludes the intervener.”

“The peremptory writ is denied and the petition dismissed.”

Opinion — Preston

PRESTON, J.

By this proceeding the petitioner, a taxpayer of the city and county of San Francisco, prays for a writ of prohibition directed to respondent as Registrar of Voters of said city and county. The petition is sufficient in form to be treated as an application in

mandamus

to compel said respondent to omit from the ballot for the coming November election in said city and county the name of Duncan C. Matheson as a candidate for the office of treasurer

(Donham

Gross,

210 Cal. 190 [290 Pac. 884]).

The petition rests upon the sole ground that said Matheson is ineligible to hold said office because of the fact that he is now and for some years last past has been a beneficiary under the retirement system of said city and county, to wit, a pensioner thereunder. Duncan C. Matheson has intervened herein and denies that any provision of the charter of said city and county forbids him the right to seek and hold said public office under said city government. Moreover, he alleges that he is now an incumbent of said office and has consistently and continuously since January 8, 1932, caused to be deposited in the treasury to the credit of the city and county all sums received by him as a pension from said city and county, to wit, the sum of $208.35 delivered

[432]

to him monthly. Furthermore, he alleges that on September 38, 1933, he duly executed in writing a waiver and relinquishment of his right to receive said allowance as long as he may hold the said office, both during his present term and during any future term or terms to which he may be elected, and duly filed it with the retirement board of said city and county, and, about the same time, filed duplicates thereof with respondent and the mayor of said city.

The city and county of San Francisco on said January 8, 1932, adopted a new charter for its government and set up thereunder what is known as a retirement system. The pertinent provisions of the charter are as follows:

Sunder v. Collins

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Opinion — Preston

PRESTON, J.

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Concurrence — Thompson

Concurrence — Curtis

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