McKeag v. Board of Pension Commissioners

GIBSON, C. J. — Petitioner sought a writ of mandate to compel payment of a pension to her as the widow of a member of the Los Angeles Pire Department.

[388]Charles H. McKeag for many years acted as secretary of the Board of Fire and Police Commissioners, having been appointed to that position in 1906. From 1925 to 1932 he acted as secretary of the Board of Fire Commissioners exclusively. He was retired on February 16, 1932, and was paid a pension until the time of his death on August 23, 1939. Thereafter his widow, petitioner herein, pursuant to the provisions of section 183 of the city charter, made application for a widow’s pension. That section provides: “Whenever any member of the Fire or Police Department shall die . . . after retirement, or while eligible to retirement from such department on account of years of service then an annual pension shall be paid in equal monthly installments to his widow. ...” Defendants denied her the pension on the ground that her husband was not legally entitled to receive the pension paid him during his lifetime. Petitioner then brought this proceeding in mandamus in the Superior Court of Los Angeles County and, after a hearing on the merits, secured judgment directing the issuance of a writ of mandate.

Upon this appeal defendants contend that the petitioner’s husband was not within the group of persons entitled to a pension under the provisions of the charter. The determination of this question depends upon the construction to be given sections 181 and 185 under which the right of petitioner’s husband to a pension is claimed to exist. Section 181 provides: “Any member of the Fire or Police Department who shall have served in such department for thirty-five years in the aggregate in any capacity or rank whatever, on his request . . . shall be retired from further service in such department, and such member shall thereafter, during his lifetime, be paid in equal monthly installments from said fund a pension. ...” Section 185 reads: “For the purpose of the provisions contained herein, the Fire Department shall consist of all persons duly and regularly appointed in the Fire Department under civil service rules and regulations, whose duty it is to prevent or extinguish fires in the City of Los Angeles, under whatever designation they may be described in any salary or departmental ordinance . . . ” Defendants’ argument, summarized briefly, is that only “members” of the fire department are entitled to a pension under section 181, and that under section 185 only those “whose duty it is to prevent or extinguish fires in the City of Los Angeles” can be said to be “members.” Defendants