This is an appeal from a judgment granting a peremptory writ of mandate directing the city council of the respondent City of Santa Ana (hereinafter called City) to forthwith amend the City's contract with the Board of Administration of State Employees' Retirement System (hereinafter called State), so as to adopt for the employees of City (hereinafter called Employees) all of the benefits provided by Government Code, sections 21264 and 21337.
The contract by which City effectuated the joinder of its retirement system with that of State came into being in 1947. City adopted a charter effective April 14, 1953. Government Code, sections 21264 and 21337 became effective after said date and provide certain benefits to certain surviving dependents of an employee who dies after becoming eligible for retirement or after retirement, which benefits are above and beyond those provided elsewhere in the act. The last paragraph of section 21264 reads as follows:
"This section shall not apply to any contracting agency nor to the employees of any contracting agency unless and until the agency elects to be subject to the provisions of this section by amendment to its contract made in the manner prescribed for approval of contracts, except that an election among the employees is not required, or, in the case of contracts made after the date this section takes effect, by express provision in such contract making the contracting agency subject to the provisions of this section."
The last paragraph of section 21337 uses almost identical words.
Section 1400 of article XIV of the charter adopted by City authorizes City and its council and officers to do any act necessary to enable City to continue as a contracting participant
"The City Council is directed to comply with all the provisions of the State Employees' Retirement Law, as now enacted, or as it may hereafter be amended, including the levy of all necessary taxes."
June 25, 1957 petitioner requested the city council of City to amend its contract with State to include for employees the benefits of said sections 21264 and 21337. January 3, 1958, petitioner filed its petition in superior court asking for a writ of mandate to compel the city council of City to amend its contract with State to include said benefits of sections 21264 and 21337. After trial on the alternative writ, a judgment was rendered for the issuance of a peremptory writ of mandate compelling said city council to forthwith amend City's contract so as to make City subject to the provisions of said sections 21264 and 21337. City appeals from said judgment.
Appellant contends that said section 1400 is at the most only a direction to the council of City to adopt by contract those provisions of State system which make up the basic body of that system without options, and that it is not a direction to adopt, willy-nilly, each and all of those provisions of the act that have been made by the act optional to City. City cites in support of its position certain general principles of law: 1. That mandamus will not issue to control the performance by an administrative or legislative body of a discretionary
A close examination of the State Employees' Retirement Law, which covers sections 20000 to 21500, Government Code, reveals that it contains a large number of optional provisions. Local employees are divided into four classifications, firemen, policemen, county peace officers, and miscellaneous. Upon a proposal to join the State System, each of these groups has the option to go in or stay out of the State System (Gov. Code, §§ 20457-20458). If City elects to adopt any optional benefit for its employees it may do so without the vote of employees unless such change requires increased contributions from employees. In the latter instance, an employee vote is a prerequisite to adopting the new benefit. (Gov. Code, § 20461.5) If an employee class exclusion adversely affects the interest of the system, State may refuse it. (Gov. Code, § 20492.) A local safety member includes firemen. (Gov. Code,
An examination of these and other sections shows that the wording of the clause making the section optional is in most instances identical or nearly identical with the wording used in the clause subject of our present inquiry. It also appears that in some cases the benefits are alternative in form, that is, that if both sections were adopted there would be an inescapable conflict.
Each of the benefits which may from time to time be adopted in a pension system affect in some degree the financial drain on the fund from which all pensioners must draw to realize the economic security sought to be provided for them by the system. That security rests in the first instance in the pension fund itself and, secondly, in the sources from which that fund must draw its strength, to wit, the contributions of employees and the contributions of employers. Someone must keep a careful check on this problem at all times and in the case of State Employees Retirement Fund the act recognizes this problem by directing that the contributions may from time to time be adjusted as necessities of the fund require. Since neither the fund nor its sources are inexhaustible someone must exercise the sound judgment necessary to keep the whole system balanced. In part, the discretion or judgment has been entrusted to the retirement fund board, in part it has been entrusted to the local political subdivision's governing head, and in part it has been entrusted to the elective voice of the employees themselves.
The terms "elect" and "election" mean to make a choice between two alternatives.
The judgment is reversed.
Griffin, P.J., and Mussell, J., concurred.
A petition for a rehearing was denied April 15, 1959, and respondent's petition for a hearing by the Supreme Court was denied May 13, 1959.