Opinion
Rehearing Denied Aug. 29, 1930
Hearing Granted by Supreme Court Sept. 25, 1930.
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
Action by Mary Buckley for a writ of mandate to compel the award of a pension, against Theodore J. Roche and others, as members of and constituting the Board of Trustees of the Police Relief and Pension Fund of the City and County of San Francisco. Judgment for plaintiff, and defendants appeal.
Affirmed.
COUNSEL
John J. O’Toole, City Atty., and Sylvain D. Leipsic, Asst. City Atty., both of San Francisco, for appellants.
William A. Kelly, of San Francisco, for respondent.
OPINION
PARKER, Justice pro tem.
This is an appeal from a judgment of mandate rendered in favor of petitioner in the court below. The action was instituted to compel defendants, as constituting the trustees of police relief and pension fund of San Francisco, to award plaintiff a certain sum of money as pension. The case was tried upon an agreed statement of facts, and from this statement the salient facts may be recited. Plaintiff was the wife of William F. Buckley up to the time of the latter’s death on March 7, 1925, and she still remains unmarried and the widow of said William Buckley. On October 7, 1902, William F. Buckley was appointed a patrolman in San Francisco’s department and remained as such until his death. At the time of his death Buckley was of the age of approximately 53 years. After the death of Buckley, the plaintiff filed with defendants a verified petition seeking the pension claimed. After the filing of said petition, a hearing thereon was had, at which hearing the following facts were established:
Long prior to 1925 William Buckley was assigned to the photograph gallery of the police department, and continued in that assignment to the time of his death. Said photograph gallery is located on the roof of the Hall of Justice, and there are two methods of access thereto— one from the fifth floor of the Hall of Justice, and the other from the fourth floor. From the fifth floor leading to the photograph gallery is a spiral stairway of two flights, each of twelve steps. Members of the police department attached to the photograph gallery are required to "report on" at the first floor of the Hall of Justice.
On the morning of March 7, 1925, in accordance with his usual custom, Buckley reported for duty on the first floor of the Hall of Justice and immediately thereafter, and in order to reach the place where his police service had to be performed, he proceeded by elevator to the fifth floor. He then ascended the spiral stairway already referred to, and finally reached the photograph gallery, where he entered upon the discharge of his duties which he was there required to perform. Shortly thereafter, and while in said photograph gallery, Buckley suffered a heart spasm (angina pectoris), from which thereafter within a few hours he died. Said heart spasm resulted from the exertion incident to the stairway ascension hereinbefore referred to. For a number of years prior to the date of his death Buckley had suffered with pericarditis, an inflammation of the pericardium and myocarditis, an inflammation of the muscular walls of the heart. These afflictions, had upon occasions, necessitated Buckley’s absence from active duty.
On or about November 5, 1924, Buckley underwent an operation for the removal of a ruptured appendix, as a result of which, he was absent from duty continuously up to March 4, 1925, and, when he returned to duty on said date, he was in a weakened physical condition and was suffering from what is known as a decompensated heart.
With the foregoing agreed facts it was further stipulated between the parties as follows: The only questions for determination are: Was Buckley "injured while in the performance of his duties," and did he die within three years from the reception by him of such injury, if any, as contemplated by the Charter of The City and County of San Francisco, § 4, c. 10, art. VIII? If Buckley was injured while in the performance of his duties and died therefrom within 3 years after the receipt by him, plaintiff is entitled to judgment; otherwise defendants are entitled to judgment.
The foregoing constitutes the record before us. From the stipulated facts it is evident that Buckley died from injuries received while in the performance of his duties. Whatever speculation or argument might be predicated upon the fact of his weakened condition or his previous ailments, the question is set at rest by the positive stipulation of the parties, as follows: "While in said photograph gallery Buckley suffered a heart spasm from which, within a few hours he died. Said cident to the stairway ascensions."
In re McNicol (In re Employers’ Liability Assurance Corporation), 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306; Eastman Company v. Industrial Accident Commission, 186 heart spasm resulted from the exertion in- Cal. 587, 200 P. 17; Fogarty v. Department of Industrial Relations, 206 Cal. 103-110, 273 P. 791.
Indeed, counsel for defendants, in his brief, raises no point on this question nor cites any authorities to sustain any different conclusions. The only point argued by appellant is that of the finality of the holding of the trustees of the pension fund denying the petition. The San Francisco charter, art. VIII, c. 10, § 4, provides: "The judgment of the Commissioners shall be final unless in determining said application said Commissioners commit a clear abuse of discretion."
Supporting its contention, appellants rely upon the following cases: Mann v. Tracy, 185 Cal. 272, 196 P. 484; Morgan v. Police Commission (Cal.App.) 279 P. 1080. Likewise are cited many excerpts from current compilations and text-writers on the subject of discretion and the functions or powers of a court in the control of such discretion.
It may be conceded that it is an undisputable rule of law that an officer in whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions.
In the case of Morgan v. Commissioners, supra, we find the rule announced and properly applied. There the commission exercising judicial functions were to determine the sufficiency of the facts constituting the basis of the claim of award. On a conflict of fact, the determination of the commission was held final and not reviewable by the courts. In the instant case the facts were undisputed and the only question left was as to the duty of defendants in the premises.
Certainly it cannot be contended that defendants are given any discretion on the simple question as to whether or not the plain mandate of the law should be followed. Where an act is positively enjoined by law to be performed only under a showing of certain facts, the completeness of the showing may be a matter of determination by the board or commission, and a matter wherein much must necessarily be left to the judgment and discretion of said board. But where, as here, the facts are all admitted and are susceptible to but one construction, the situation is quite different.
The subject is fully discussed in Dufton v. Daniels, 190 Cal. 580, 213 P. 949, 950. A careful reading of the opinion rendered by defendant board denying plaintiff’s petition for a pension clearly discloses that the main ground thereof was expediency and fear of precedent. This might be a good reason for advocating a change in the charter provisions, but no reason at all justifying the ignoring of the present provisions.
The San Francisco charter provides that the commission shall out of police relief pension fund provide for the family of any officer, member, or employee who may be killed or injured while in the performance of his duties.
The facts being admitted, the legal effect thereof is not a question of discretion. By way of illustration, if the sole question were one of length of service and the right of pension dependent upon a five years’ continuous service, it could not be argued that, where it was an admitted fact that one had served continuously from 1897 to 1913, the commission would have the discretion to conclude that his length of service was not sufficient. In the instant case, defendant trustees of the pension fund concede all of the facts entitling petitioner to relief, but, in an attempted exercise of discretion, conclude these facts insufficient. Particularly, and in reality the main support of their holding, it is determined that Buckley was not killed in the performance of his duty. This holding being against the stipulated fact and contrary to the cited cases comes clearly within the rule of Dufton v. Daniels, supra, as follows:
"It is urged that the conclusion of the board of control *** must be construed as a finding of fact *** and that such finding of fact is conclusive upon this court. It cannot be so regarded. All of the substantive facts are here admitted, they are susceptible to but one construction, and the claimed finding of fact is but an erroneous conclusion upon a question of law"— citing cases.
Judgment affirmed.
We concur: TYLER, P.J.; CASHIN, J.