Taylor v. Mott

GRAY, C. Appeal from final judgment and order granting plaintiff’s petition for a writ of mandate to compel appellants in their capacity as the city council of Oakland to set apart from the funds of that city money, not exceeding twelve thousand dollars, sufficient to pay all warrants issued by the board of trustees of the exempt fireman’s relief fund and audited by the auditor of said city. ,

The action is based upon an act of the legislature entitled, [498]“An act to create an exempt firemen’s relief fund in the several counties, cities and counties, cities and towns of the state, and relating to the enrollment, formation into fire companies, and services as firemen of such exempt firemen,” approved March 26, 1895. (See Stats. 1895, p. 107.)

The case was tried on an answer to the petition, and the appeal is taken on the judgment-roll, from which it appears that the court found that no incorporated exempt fire company existed in the city of Oakland on March 26, 1895, the date of the approval of said act and the time when it took effect, and this is the first ground for reversal contended for by appellant.

The second ground for a reversal of the judgment stated by defendant is, that the act known as the “exempt firemen’s relief act” is unconstitutional. It will be best to examine this ground first, because the first ground stated by appellant involves an interpretation of the language of the act, and, if the act is decided to be unconstitutional, it may not be necessary to interpret its language in the respect pointed out in appellant’s brief.

The act in question is mandatory in its terms and requires the governing authority of any city and county, city or county or town of the state in which an incorporated exempt fire company exists to appoint five exempt firemen as a board of trustees of the exempt firemen’s relief fund. Then it provides for the setting apart from the municipal funds a. sum not exceeding twelve thousand dollars annually, to be devoted by such board of trustees to the relief of disabled, sick, injured, and infirm exempt firemen. It also provides for the enrollment of exempt firemen and that they shall be assigned to and perform certain duties as firemen, in eases of great public emergency, under the direction of the chief of the fire department, without compensation therefor other than the relief in case of disability already mentioned.

Sections 31 and 32 of article IV of our constitution prohibit the legislature from making or authorizing the gift of any of the public moneys, state or municipal, to any person, association, or corporation, and it would seem that the provisions of the act in question are in conflict with these sections of our constitution. Sections 3 of the act provides that: “The board of trustees of the exempt firemen’s relief fund shall enroll every