Pathe v. City of Bakersfield

JAMES O. PATHE, Plaintiff and Respondent, v. CITY OF BAKERSFIELD et al., Defendants and Appellants.

COUNSEL

Kenneth W. Hoagland, City Attorney, and Raymond C. Clayton, Assistant City Attorney, for Defendants and Appellants. [255 Cal. App. 2d 412]

William T. Hays for Plaintiff and Respondent.

OPINION

GARGANO, J.

This is an appeal from a judgment of the Superior Court of Kern County directing appellants, the City of Bakersfield and the Pension Board of the Fireman's Disability and Retirement Fund of such city, to reinstate, retroactively from March 6, 1963, the disability retirement pension of the petitioner, James O. Pathe, respondent herein, for disability incurred by respondent in the course of the performance of his duty as a fireman.

Respondent, who had been employed as a fireman in the Fire Department of the City of Bakersfield for over 10 years, became afflicted with a heart condition during the early part of 1960. On March 13, 1960, he applied to the Industrial Accident Commission of the State of California for a disability award under the Workmen's Compensation Laws enacted by the Legislature and codified in division 4 of the Labor Code. On August 18, 1961, the commission issued "Findings and Award" in his case (No. 60 BA 1770), including Finding No. 2 reading as follows: "Said employee did not sustain an injury arising out of and occurring in the course of employment."

In the meantime the Pension Board of the Fireman's Disability and Retirement Fund of the City of Bakersfield, hereafter referred to as the pension board, on its own initiative and without waiting for a ruling by the Industrial Accident Commission on respondent's application to that organization, retired respondent from active service on a service-connected disability retirement pension amounting to $270.45 per month. In other words, in the month of July 1961, almost one month before the Industrial Accident Commission ruled on respondent's application for an industrial accident award, the pension board, without receiving an application for retirement from respondent, determined that his disability was service- connected and retired him on a service-connected disability pension. However, on March 6, 1963, almost two years later, the pension board, without any hearing and without notification to respondent and solely upon the opinion of the city attorney that the ruling of the Industrial Accident Commission was controlling, reduced respondent's pension to $135.22 per month; the smaller allowance is the monthly pension which respondent is entitled to receive for a disability not acquired in the course of employment.

Appellants present four main contentions for reversal. [255 Cal. App. 2d 413] These contentions, although not necessarily in the order discussed in their brief, are substantially as follows:

I. That the Industrial Accident Commission had the exclusive jurisdiction to determine whether respondent's disability was service-connected and its determination superseded the prior action of the retirement board retiring respondent on a disability retirement pension.

II. That, even if it is assumed arguendo that the Industrial Accident Commission did not have the exclusive jurisdiction to determine the nature of respondent's disability, its decision on this issue was nevertheless binding on the pension board and applied retrospectively under the doctrine of res judicata.

III. That the retirement board's action allowing respondent a disability retirement pension was a nullity because there is no record of a hearing or determination as to respondent's disability, the board made no written findings of fact and there were no doctors' reports indicating that respondent's disability was service-connected.

IV. That, even if it is assumed that the action of the retirement board was not a nullity, it nevertheless abused its discretion when it retired respondent for a service-connected disability because there was no substantial evidence to support its decision in this respect.

I

Appellants' first contention raises the fundamental question of jurisdiction which is ever present when two tribunals are vested with the responsibility of adjudicating issues arising from the same or similar subject matter. In other words, respondent's right to a disability retirement pension under the city charter and his right to an industrial accident award under the Workmen's Compensation Laws were dependent upon his having incurred a service-connected disability. Thus, appellants assert that the Industrial Accident Commission had the exclusive jurisdiction to make this determination under section 21 of article XX of the California Constitution and under Labor Code section 5300.

Section 21 of article XX of the California Constitution provides as follows: "The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workmen's compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workmen for [255 Cal. App. 2d 414] injury or disability, and their dependents for death incurred or sustained by the said workmen in the course of their employment, irrespective of the fault of any party. A complete system of workmen's compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workmen and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workmen in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury; full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects, including the establishment and management of a State Compensation Insurance Fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State government."

Section 5300 of the Labor Code reads in pertinent part: "All the following proceedings shall be instituted before the commission and not elsewhere, except as otherwise provided in Division 4.

"(a) For the recovery of compensation, or concerning any right or liability arising out of or incidental thereto."

It is indisputable that the Industrial Accident Commission and the pension board exist for entirely different reasons and were established to attain wholly independent objectives. [1] The Industrial Accident Commission exists primarily to adjudicate workmen's compensation claims under the general laws adopted by the Legislature pursuant to the Constitution. Its main objective, therefore, is to carry out the legislative scheme which is to provide adequate compensation for employees, public or private, who are injured in the course and scope of their employment while such employees are disabled and incapable of earning a living. [2] On the other hand, the pension board is concerned only with the retirement [255 Cal. App. 2d 415] of a limited class of public employees under a retirement system which was adopted primarily for the betterment of city government. Its objective is not only to recognize the public obligation to certain employees who after long and faithful service become incapacitated by age or physical disabilities, but it is also to make certain that these employees will be replaced by more capable employees for the betterment of the public service without undue hardship on the employees removed (Packer v. Board of Retirement of the Los Angeles County Peace Officers Retirement System, 35 Cal. 2d 212 [217 P.2d 660]). In fact, it is presumably to enable the retirement board to accomplish this latter objective that it is given the power under the city charter to retire an employee on its own initiative as it apparently did in the instant case.

[3] With this basic distinction between the function of the two independent tribunals in mind, it is manifest that the jurisdiction of the Industrial Accident Commission is exclusive only in relation to its own objectives and purposes and at the very most overlaps the subject matter jurisdiction of the pension board on a single issue of fact only, the issue as to whether an injury or disability is service-connected. Thus, it is also manifest that the pension board does not lose its inherent power to retire a city employee who "is physically or mentally incapacitated for the performance of duty" simply because the employee has applied (or intends to apply) to the Industrial Accident Commission for an award under the Workmen's Compensation Laws, nor is the commission's determination as to the nature of the employee's injury or disability binding on the pension board in the sense that it is without jurisdiction to decide the same issue. At the very most the Industrial Accident Commission's decision is binding on the pension board under the doctrine of res judicata because under the city charter the retirement board acts as an agent of the city. fn. 1 As stated by the Supreme Court in French [255 Cal. App. 2d 416] v. Rishell, 40 Cal. 2d 477, 479 [254 P.2d 26]: "The doctrine of res judicata is applicable where the identical issue was decided in a prior case by a final judgment on the merits and the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication." And at page 482 the court also said: "It is immaterial that the pension board was not a party to the Industrial Accident Commission proceeding. The city, which is not only a party herein but the real party in interest, was also a party to and appeared in the prior proceeding. Under the city charter, the pension board acts as an agent of the city, and, in this representative capacity, it is bound by the commission's decision if the city is bound."

Appellants also argue that compensation awards made under the city charter are not salary but are the same as compensation awards made under the Workmen's Compensation Laws. Hence, they conclude that the city charter provisions relating to retirement for service-connected disability conflict with the state compensation laws and the latter must prevail.

[4] It is settled that if there is any conflict between the city charter provisions and the compensation sections of the Labor Code the latter must prevail (Healy v. Industrial Acc. Com., 41 Cal. 2d 118 [258 P.2d 1]). Moreover, section 179 (15) of the city charter provides: "The provisions of the foregoing sections shall in no way alter, modify, change, or abrogate any of the terms, conditions or provisions of that certain act of the legislature known and referred to as the Workmen's Compensation, Insurance and Safety Act or any amendments thereto." We conclude, however, that there are no conflicts in the instant case. [5] The city retirement system does not affect, abrogate or modify the Workmen's Compensation Laws in any manner. To the contrary, it grants additional compensation benefits to employees who are compelled to retire for service-connected disabilities and to this extent it is in harmony rather than in conflict with the Workmen's Compensation Laws of the Labor Code.

Appellants rely on French v. Rishell, supra, 40 Cal. 2d 477, in support of their position. As we have stated, the Supreme Court in that case simply held that the decision of the Industrial Accident Commission on a question of fact is binding on [255 Cal. App. 2d 417] another tribunal in a subsequent action involving the same question of fact between the same parties and their privies under the doctrine of res judicata. This doctrine, which is always applicable under these circumstances, presupposes concurrent and not exclusive jurisdiction. Moreover, the Supreme Court at page 481 of the opinion used this significant language: "It is clear, however, that a pension board is deprived of no power in such case except the power to make an independent finding on an issue of fact previously determined by another tribunal. This limitation is, of course, inherent in the doctrine and is a necessary result in every case in which it is applied." (Italics added.)

II

[6] Having decided that the Industrial Accident Commission's determination that respondent's heart condition was not service-connected was not binding on the pension board from the jurisdictional viewpoint, we shall now consider appellants' second contention that the commission's decision nevertheless applied retrospectively to the earlier decision of the retirement board under the doctrine of res judicata. We conclude that this contention is entirely without merit. Such a holding would be contrary to the very purpose of the doctrine, which is to bring an end to litigation. It could also lead to extreme hardships and manifestly unjust results. This follows for a decision of the retirement board to retire an employee on a service-connected disability pension would be open to collateral attack many years later and at a time when the reduction of the pension (and possible refunds) could create an undue burden on an employee who retired under compulsion without appealing or challenging the retirement board's decision. Thus, the trial judge accurately and succinctly interpreted the law on this subject in his Memorandum of Opinion. The trial judge stated: "The doctrine of res adjudicata and collateral estoppel by judicial interpretation, in all cases that I have ever been able to read or find, is to the effect that the final judgment or decree on the merits, of the court of competent jurisdiction, is conclusive of the rights of the parties or their privies in all later actions on points and matters determined in the former proceeding. Its purpose and effect has always been to bring an end to litigating the same facts over again, which presupposes that the doctrine can only be applied prospectively. (See French v. Rishell, 40 Cal. 2d 477 [254 P.2d 26]; Bernhard v. Bank of America, 19 Cal. 2d 807 [122 P.2d 892].) [255 Cal. App. 2d 418]

"It is also to be noted that the defense can be waived and is not jurisdictional. (Baird v. Superior Court, 204 Cal. 408 [268 P. 640]; Domestic and Foreign Petroleum Co. v. Long, 4 Cal. 2d 547 [51 P.2d 73]; Dillard v. McKnight, 34 Cal. 2d 209 [209 P.2d 387, 11 A.L.R.2d 835].)

"It is also to be noted that this is an affirmative defense, and the burden of proof must be borne by he who asserts it. (See Horton v. Goodenough, 184 Cal. 451 [194 P. 34]; Emerson v. Yosemite Gold Mining, 149 Cal. 50 [85 P. 122].)"

III

Appellants contend that the pension board's attempt to retire respondent on a disability pension was a nullity because there is no record of a hearing or determination by the pension board as to respondent's disability; the board made no written findings of fact and there were no doctors' reports indicating that respondent's disability was service-connected. Significantly, however, appellants do not assert that respondent was not effectively retired by the alleged invalid action; paradoxically, they only claim that he is not entitled to a service-connected disability retirement pension. In other words, if the pension board's action was a nullity, as appellants contend, it is arguable that respondent was illegally compelled to retire and is entitled to receive back wages. Thus, appellants' contention is a two-edged sword.

[7] In any event, we conclude that there was substantial evidence to support the trial court's decision that the members of the pension board determined that respondent's disability was service-connected at a board meeting by board action in substantial compliance with the city charter. In fact, we hold that appellants' evidence did not overcome the presumption that official duty had been regularly performed (Evid. Code, § 664) even though the absence of board minutes or written findings was not adequately explained by the pension board and it is undisputed that there were no medical opinions that respondent's heart condition was service- connected.

The pension board members testified that the matter of respondent's retirement was presented at a regular board meeting and was thoroughly discussed. They also testified that they determined that respondent's disability was service-connected by a motion which was made, seconded and voted upon by the board members. In addition, Mr. Adams, the assistant secretary of the pension board, testified that notes were taken during the meeting by a Mrs. Rhynes who was the secretary [255 Cal. App. 2d 419] of the city manager. Thus, it is evident that the failure of the secretary to transcribe the minutes (if this is what actually occurred) was not jurisdictional as to the retirement board's action but merely constituted an irregularity in the proceeding. The irregularity of the proceeding of a subordinate city agency which is governed by a board that includes the mayor and the city manager amongst its members and which is entitled to the free legal services of the city attorney cannot and should not be urged to defeat the substantial rights of an innocent party who had no control over the meeting and who did not even solicit its action. fn. 2

Moreover, the evidence clearly indicates that respondent was examined by at least three medical doctors and that written medical reports were filed with the pension board before it made its determination. Although the doctors did not express opinions as to whether respondent's heart condition was service-connected, they stated that he was incapacitated for the performance of duty. [8] Significantly, the city charter does not expressly require a doctor's report indicating that the disability is service-connected. It simply states that the employee shall be examined by three medical doctors and provides that he shall be retired for a service- connected disability "if such medical examination and other available evidence shall show to the satisfaction of the Board that said member is physically or mentally incapacitated for the performance of duty and ought to be retired and ... that the disability is the result of injury or illness incurred in the performance of duty..." (City Charter section (177) 13.) Consequently, the retirement board may, under the city charter, base its decision that an employee's disability is service-connected on the medical information contained in the doctors' reports even [255 Cal. App. 2d 420] though the doctors do not actually express an opinion to that effect.

IV

Appellants contend that the pension board abused its discretion when it granted respondent a disability pension; they assert that there was no substantial evidence to support its decision because there were no medical opinions that respondent's heart condition was service-connected and the presumption that if a fireman suffers a heart condition it is service- connected (Lab. Code, § 3212) is not available to the pension board but only to the Industrial Accident Commission. Yet the record indicates that the pension board reduced respondent's pension solely upon the opinion of the city attorney that a subsequent ruling of the Industrial Accident Commission was controlling without any hearing or determination that respondent's condition had changed. Thus, it is incongruous for the retirement board and its principal, the City of Bakersfield, to now assert that the board also abused its discretion when it granted respondent's service-connected pension in the first place. Even so, the trial judge expressly found against appellants on this issue and we conclude that there was substantial evidence to support his decision under the rule we articulated in Cosgrove v. County of Sacramento, 252 Cal. App. 2d 45 [59 Cal. Rptr. 919].

[9] First, according to Captain McAteer, the members of the retirement board did not rely solely on the presumption of Labor Code section 3212 when the board determined that respondent's heart condition was service-connected. To the contrary, he testified that the board members also relied on the reports of the medical doctors. fn. 3 Curiously, the doctors' [255 Cal. App. 2d 421] reports were not offered into evidence by appellants. Hence, we must assume, under the presumption that official duty has been regularly performed, that even though the doctors did not express opinions as to whether respondent's condition was service-connected there was sufficient medical information in their reports to enable the pension board to arrive at its determination.

Second, the applicability of the presumption which arises under Labor Code section 3212 in a proceeding before a city pension board is clearly established in Buckley v. Roche, 214 Cal. 241 [4 P.2d 929], and Bolger v. City of San Diego, 239 Cal. App. 2d 888 [49 Cal. Rptr. 204]. Respondent relies on the dicta of French v. Rishell, supra, 40 Cal. 2d 477, for the contrary proposition. However, in French the Supreme Court was merely discussing the presumption in connection with defendant's argument on the burden of proof and we do not construe this discussion as authoritative for the rule advocated by appellants. In any event, as we have stated, there was sufficient evidence to support the trial court's decision even without the presumption.

Appellants' remaining arguments for reversal are totally devoid of merit and no further comment is necessary.

The judgment is affirmed.

Stone, J., concurred.

CONLEY, P. J.

I dissent. The majority opinion, contrary to the Constitution and statutes of the state, takes away the sole right of the Industrial Accident Commission to decide whether an employee of the city was disabled in the course of his employment and gives to a municipal pension board the power to override a finding of the state body on that subject. It seems to establish the propriety of directly opposite conclusions of a state commission and a city board on a common subject as to which the state commission was given jurisdiction by the Constitution and statutes and, apparently, opens the way logically to future raids on public treasuries.

In 1960, James O. Pathe, who had been an employee in the fire department of the City of Bakersfield for over 10 years, [255 Cal. App. 2d 422] became conscious of an adverse heart condition. On March 13 of that year, he applied to the Industrial Accident Commission, now the Workmen's Compensation Appeals Board, for benefits under the compensation system enacted by the Legislature for employees who suffered disease or injury in the course of their employment. On August 18, 1961, the commission issued "Findings and Award" in his case (No. 60 BA 1770) including Finding No. 2 reading as follows: "Said employee did not sustain an injury arising out of and occurring in the course of employment," and denied recovery, except for medico-legal costs of $50. In the meantime, the Bakersfield Pension Board of The Relief and Pension Fund for Members of the Fire Department took independent action. This fund is administered, under the city charter, by a board of trustees of which the majority of its members are employees of the fire department; the personnel of the pension board consists of the mayor, city manager, city treasurer, chief of the fire department, and three other members elected by the fire department. (Charter of the City of Bakersfield, § 165; Stats. 1915, Assembly Concurrent Resolution Number 3, p. 1552, as subsequently amended.)

Section (168) 4 of the city charter reads as follows: "Whenever any member of the Fire Department shall become disabled by reason of bodily injuries received in or by reason of sickness caused by the discharge of the duties of such member in such Department and such disability shall continue for one (1) year or shall become so physically or mentally disabled as a result of such injuries or sickness as to render his retirement from active service necessary, the Pension Board shall order and direct that such member be retired from active service and, thereafter, such member so retired shall, during his lifetime, be paid from said pension fund, in equal monthly installments, the retirement allowance as provided in Section 13.provided, however, that any such retirement allowance shall cease when the member's disability ceases and, in such event, such member shall be restored to the same rank or position which he held at the time of retirement.provided, further, that the Pension Board shall have the power and authority to hear and determine all matters pertaining to the granting and termination of any such retirement allowance. Said Board shall make its findings in writing, based upon the report or reports of at least three regularly licensed, practicing physicians, and such other evidence concerning such disability as shall be presented to it. One of such physicians shall be the Health Officer of the City of Bakersfield, one shall be [255 Cal. App. 2d 423] selected by the member applying for such retirement allowance and at least one shall be selected by said Pension Board."

In the month of July 1961, without waiting for a ruling by the Industrial Accident Commission, on Mr. Pathe's application to that organization, as hereinbefore stated, the pension board purportedly made an order that Pathe's disability was contracted in and by reason of the discharge of his duties as a fireman and retired him from active service on a service-connected disability. In this connection, the record does not show that Mr. Pathe ever made application to the pension board for a service-connected disability; there is no record in the minutes of the board of the holding of any formal proceeding to retire Mr. Pathe on a service-connected disability; while it was the usual custom of the board on any matter before it to vote and to enter the result in the minutes, there are no minutes in this instance; there were no written findings as to whether the disability was service-connected, as required by the city charter; there were reports from three doctors relative to the physical condition of Mr. Pathe, but none of them indicated that his heart condition was service-connected, and in fact it is conceded that the doctors were not even asked to give their opinion on the question of service connection of his heart condition, but that they only were requested to give their opinions as to whether he was capable of continuing his active duties as a fireman; there was evidence before the trial court that in the "discussion" by the pension board members the board took no evidence on the subject but only considered as applicable the presumption set forth in section 3212 of the Labor Code relative to heart conditions of firemen and that such presumption was the only "evidence" before the board at its informal meeting to support its conclusion that Pathe was entitled to a service-connected pension during retirement.

Almost two years after the Industrial Accident Commission had ruled specifically that the heart condition of Mr. Pathe was not service-connected, the city attorney advised the pension board that in his opinion it could not pay Mr. Pathe the greater pension on a service-connected basis but only the smaller monthly sum which was due to every retired employee of the fire department if his illness was not service-connected. This modification was made without a formal hearing in the month of March 1963. It was not until March 7, 1966, almost five years after the ruling of the Industrial Accident Commission, [255 Cal. App. 2d 424] that this petition for a writ of mandate was filed against the City of Bakersfield and its pension board; the petition in this proceeding demanded that a writ of mandate issue ordering the pension board to restore the benefits to Pathe that he would have received as the result of a service-connected disability.

The demurrer of the respondents below was overruled and an answer was filed by them. The trial court, after hearing testimony issued a memorandum opinion in favor of the petitioner; findings and a judgment were entered and a writ of mandate ordered, directing the board to pay a greater pension each month in accordance with the theory that the disability was service- connected. Thus, the principal question on appeal is whether in the circumstances of this case the Industrial Accident Commission had superior authority to decide if Mr. Pathe's disability was service-connected.

At this point, a necessary distinction should be kept in mind between the situation which is considered in cases such as Flaherty v. Board of Retirement, 198 Cal. App. 2d 397, 402-406 [18 Cal. Rptr. 256], in which by legislative enactment an entity independent of the employer was given jurisdiction to determine whether an employee was entitled to service-connected retirement benefits irrespective of the holding on that question by the Industrial Accident Commission, in which event a finding on the subject by the Industrial Accident Commission is not binding on the other entity, and the situation here present in which the city and the employee are concededly subject to a determination of the question by the state commission. In the instant case, there is no question but that Mr. Pathe was an employee of the City of Bakersfield, or that the city as employer, and hence the pension board as an agency of the city, were subject to the jurisdiction of the Industrial Accident Commission. In such circumstances, the case of French v. Rishell, 40 Cal. 2d 477 [254 P.2d 26], points out that the doctrine of res judicata is applicable when the city employer of the sick or injured employee is a party to a proceeding before the Industrial Accident Commission and that the principle applies to a subsequent ruling of the city's pension board, even though the pension board, as such, was not a party to the proceeding before the Industrial Accident Commission, saying at page 482: "Under the city charter, the pension board acts as an agent of the city, and, in this representative capacity, it is bound by the commission's decision if the city is bound. [Citing cases.]" This, then, is the situation[255 Cal. App. 2d 425] --Bakersfield is the employer; Mr. Pathe is the employee; the local pension board is an agent of the city and is bound, just as the city is, by the action of the Industrial Accident Commission. In these circumstances, it would seem that the Industrial Accident Commission has full overriding power to determine whether the employee was injured in the course of his employment. Section (179) 15 of the Bakersfield City Charter provides that preceding sections of the charter "... shall in no way alter, modify, change, or abrogate any of the terms, conditions or provisions of that certain act of the legislature known and referred to as the Workmen's Compensation, Insurance and Safety Act or any amendments thereto."

Section 21 of article XX of the California Constitution provides in part as follows: "The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workmen's compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workmen for injury or disability, and their dependents for death incurred or sustained by the said workmen in the course of their employment, irrespective of the fault of any party. A complete system of workmen's compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workmen and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workmen in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury; full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects including the establishment and management of a State Compensation Insurance Fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance [255 Cal. App. 2d 426] of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State Government."

Pursuant to the constitutional provision, the Legislature passed a comprehensive Workmen's Compensation Act, now incorporated, as amended, in division IV of the Labor Code.

In Healy v. Industrial Acc. Com., 41 Cal. 2d 118, 122 [258 P.2d 1], it is said: "If, however, there is any conflict between charter provisions and the compensation sections of the Labor Code, the latter must prevail. Under power expressly granted to it by the Constitution, the Legislature has established a complete system of workmen's compensation which obviously is a subject of state-wide concern, and it is well settled that in such matters the general law is paramount."

In the earlier case of Eastlick v. City of Los Angeles, 29 Cal. 2d 661, it is said at page 665 [177 P.2d 558, 170 A.L.R. 225]: "... a city, by adopting a charter, becomes independent of general laws only as to 'municipal affairs,' and ... in matters of general statewide concern the general law is paramount ...." (See also Lowman v. Stafford, 226 Cal. App. 2d 31, 36-39 [37 Cal. Rptr. 681]; Loustalot v. Superior Court, 30 Cal. 2d 905 [186 P.2d 673]; Buttner v. American Bell Tel. Co., 41 Cal. App. 2d 581, 583-584 [107 P.2d 439]; Fitzpatrick v. Fidelity & Cas. Co., 7 Cal. 2d 230, 233 [60 P.2d 276]; Sacramento v. Industrial Acc. Com., 74 Cal. App. 386, 394-396 [240 P. 792]; Hawthorn v. City of Beverly Hills, 111 Cal. App. 2d 723, 727-731 [245 P.2d 352]; 1 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d Ed.), §§ 3.08 [2] [a]; 3.06 [1]; 3.08 [2] [b].)

No court, except the Supreme Court and the Courts of Appeal, has power to review, reverse, correct or annul any order of the Industrial Accident Commission (Lab. Code, § 5955; 1 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d Ed.), § 3.06 [3]; Loustalot v. Superior Court, supra, 30 Cal.2d 905). And it would seem to follow that in the circumstances shown by this case, the ruling of the Industrial Accident Commission should take precedence over any contrary decision by a city pension board on the same point, and that the pension board is without right to make a finding directly opposed to that of the Industrial Accident Commission on the question of whether the illness of Mr. Pathe was service-connected. In passing, it must be noted that the trial court fell into error by adopting the statement of counsel for the respondent that the provision found in section (166) 2(y) of the charter, "... The decision of such [255 Cal. App. 2d 427] Disability and Retirement Board in such cases shall be final and conclusive," applied to any decision of the board, whereas a simple reading of the section shows that it refers only to a definition of the word Widow.

It should be observed also that even if the Industrial Accident Commission did not have a superior right to decide this question, and the jurisdiction of the two bodies had been concurrent and equally weighty, the Industrial Accident Commission would have had a superior right to decide this question because Mr. Pathe conferred jurisdiction to the Industrial Accident Commission by filing therein an application for compensation approximately one year prior to the ruling of the local pension board. In Scott v. Industrial Acc. Com., 46 Cal. 2d 76, 81 [293 P.2d 18], the general rule is thus stated: "... When two or more tribunals in this state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the action might have been initiated. Thereafter another tribunal, although it might orginally have taken jurisdiction, may be restrained by prohibition if it attempts to proceed. [Authorities cited.] One reason for the rule is to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy; another reason is to protect litigants from the expense and harassment of multiple litigation. [Authorities cited.]" Entirely apart from the controlling right of the Industrial Accident Commission to pass on the question at issue here, the proof received by the pension board did not justify the action taken by it under the provisions of the Bakersfield City Charter.

Section (177) 13 of the charter referred to in Section 168 (4) quoted above provides for two different pension rates for retired firemen as follows: "Upon retirement for disability as provided in Subsection (a) of this section, a member,

"(a) If his disability shall be determined by the Retirement Board to be the result of injury or illness incurred in the performance of duty, shall receive

"(1) An annuity which shall be the actuarial equivalent of his accumulated contributions, excluding his accumulated dependent contributions, unless he shall exercise his option as provided in Section 11, subsection (d), at the time of his retirement; and

"(2) A pension which, when added to the annuity purchased by his accumulated normal contributions, shall be [255 Cal. App. 2d 428] equal to a monthly retirement allowance of one-half (1-2) of his final compensation.

"(b) If his disability shall be determined by the Retirement Board to be not the result of injury or illness incurred in the performance of duty, shall receive 1

"(1) An annuity which shall be the actuarial equivalent of his accumulated contributions, excluding his accumulated dependent contributions, unless he shall exercise his option as provided in Section 11, subsection (d), at the time of his retirement; and

"(2) A pension which, when added to the annuity purchased by his accumulated normal contributions, shall make his retirement allowance equal to: one and one-quarter (1 1/4) per centum of his final compensation multiplied by the number of years credited to him, provided such allowance is at least one-fourth (1/4) of his final compensation; or one and one-quarter (1 1/4) per centum of his final compensation multiplied by the number of years of service credited to him were his service to continue until his attainment of the age of fifty-five (55) years, provided such retirement allowance shall not exceed one-fourth (1/4) of such final compensation.

"(c) Upon the death of a member who has been retired by reason of disability as a result of injury or illness incurred in the performance of duty, the retirement allowance shall be continued to his widow to whom he was married at least one (1) year prior to his retirement throughout her life or until she remarries. Upon the death of a member who has been retired by reason of disability which is not the result of injury or illness incurred in the performance of duty, two-thirds (2/3) of the retirement allowance shall be continued to his widow to whom he was married at least one (1) year prior to his retirement and who is of the same age as said member throughout her life or until she remarries. If such widow is of a different age than said member, then the retirement allowance which shall be so continued to her shall be the actuarial equivalent of the retirement allowance which would have been continued to her had she been the same age as said member. If there be no such widow or if any such widow shall die, then the allowance which would have been paid to her had she survived such member and been eligible therefor or had she continued to live, shall be paid to the legally appointed guardian of the child or children of such deceased member until such child or children shall die or shall have attained the age of eighteen (18) years. If payment of the allowance shall terminate by reason of the remarriage of the widow or the [255 Cal. App. 2d 429] attainment of the age of eighteen (18) years by such child or children before the total of the monthly payments made shall equal the sum of the member's contributions, with interest thereon, as of the date of his retirement, then an amount equal to the difference between said total and said sum shall be paid in one amount to his remarried widow or, if there be no such widow, to his child or children; provided, however, that such amount shall not be paid to any widow who was not married to such member at least one (1) year prior to his retirement."

The evidence received by the trial court did not indicate an opinion of any doctor that Mr. Pathe's heart condition was service-connected. The record in this respect is most illuminating. Mr. Paul Adams, the assistant secretary of the board, testified:

"Q. Does the record indicate the Board made any findings in writing?

A. There are no references in the minutes. I don't understand why.

Q. Is there anything in the record at all making a finding of a service connected disability?

A. Not to my knowledge. * * *

Q. And in this particular instance, there's nothing entered into the minutes representing whether or not Mr. Pathe's disability was service connected or not, is that correct?

A. I have not been able to find any reference in the minutes to that effect."

Mr. Adams earlier had testified:

"Q. Now I believe you stated that the Pension Board did have the reports of three doctors and that those doctors did not make any finding as to whether Mr. Pathe's heart condition was service connected or not. Is that correct?

A. That's correct. They were not requested to make such a finding. They were requested only to determine whether or not Pathe could continue as a fireman."

At page 14 of the reporter's transcript the same witness testified:

"Q. You said there was a discussion of the Board and they made a finding that it was job connected.

A. Yes, sir.

Q. This was based upon three doctors' reports?

A. No, sir. It was not. It was not based--the doctors' reports [255 Cal. App. 2d 430] didn't stipulate in any manner as to whether the disability was job incurred."

John McAteer, another fireman member of the board, testified:

"Q. Did any of those doctors, any one of those three doctors, in their reports indicate in any way whether the case was job incurred or not?

A. They did not."

Instead of relying on required medical opinions of doctors and finding accordingly, the board relied on the presumption set forth in section 3212 of the Labor Code that a fireman with heart trouble had sustained it in the course of his employment; however, the Supreme Court has recently said that such a presumption is not evidence which is effective in a proceeding before any organization except the Industrial Accident Commission itself (French v. Rishell, supra, 40 Cal. 2d 477, 480-481).

Thus, the pension board not only did not have any medical opinion on the question whether the heart trouble was service-connected, but no legitimate evidence of any kind to justify such a conclusion. And its failure to make written findings as required by the city charter was fatal to an award of a service-connected pension. Apart from all other questions, it would seem that the mode was the measure of the power. (Glass v. Ashbury, 49 Cal. 571; Cowell v. Martin, 43 Cal. 605; Whitmore v. Brown, 207 Cal. 473, 481 [279 P. 447]; Zottman v. San Francisco, 20 Cal. 96 [81 Am.Dec. 96].) It thus appears that there was no legitimate basis for the issuance of the writ of mandate and that the judgment should be reversed, even if we were to assume that the local pension board had jurisdiction to pass on the question whether Mr. Pathe's illness was service-connected.

I would reverse the judgment and direct the trial court to adopt new findings and a new judgment not inconsistent with the foregoing dissenting opinion.

FN 1. That the decision of the Industrial Accident Commission is not binding on the retirement board from the jurisdictional viewpoint but only under the doctrine of res judicata is clearly indicated by the case of Flaherty v. Board of Retirement, 198 Cal. App. 2d 397 [18 Cal. Rptr. 256]. In that case an employee of a fire protection district which had joined the county retirement system made an application to the Industrial Accident Commission for a workmen's compensation award and the commission determined that his injury was service-connected. The employee also applied to the county retirement board for a service-connected disability pension and his claim was rejected. The appellate court held that the decision of the Industrial Accident Commission was not binding on the retirement board under the doctrine of res judicata because, under the county employees retirement law of 1937, the county retirement association is an entity which exists separately and independently of the fire protection district and its management is vested in its own retirement board.

FN 2. Similar irregularities apparently occurred in the past. In this connection Mr. Adams testified as follows:

"Q. Mr. Adams, do you have any explanation or idea why this determination was not entered in the minutes?

A. No, sir.

Q. In past cases has the Board issued, written in writing, their determination?

A. Not to my knowledge, sir.

Q. In other words, they do not follow the strict letter of the Code?

A. If that's required by the Charter, I would presume such to be the case. It's probably an oversight of the Board.

Q. They haven't in any of the other cases gotten out written notice of determination either, have they?

A. Not to my knowledge."

Surely appellants do not contend that all of the past actions of the retirement board are also invalid.

FN 3. Captain McAteer, a member of the board, under direct examination by Mr. Hays, testified as follows:

"Q. Was there a determination made on the question of whether or not it was job connected at that particular meeting to which you have reference?

A. Yes.

Q. What determination was made?

A. On the findings of the three doctors' reports that had been previously received, the presumption that a heart condition is job incurred with firemen, it was determined this was job incurred, and that Mr. Pathe be retired."

And on cross-examination by City Attorney Hoagland the witness stated:

"Q. And a determination made. Is that what you testified to? A determination made it was service connected?

A. Yes, I believe that's right.

Q. Based upon the three doctors' reports and a presumption, is that correct?

A. Yes, sir.

Q. Do you recall who the doctors were?

A. I didn't until I refreshed my memory. It was Dr. Kearns, Dr. Bosonetto, and Dr. Einstein."