I dissent.
I cannot agree with that portion of the majority opinion wherein it is said:
“In respect to the issue of fraud, upon which appellants’ case must, in the final analysis, stand or fall, the record discloses substantial evidence in support of the trial court’s finding that no fraudulent representations were made. ’ ’
The gist of appellants’ case is that they were induced to sign waivers of a portion of their monthly salaries as fixed by law, on the representations that during the years in question the city’s revenues were insufficient to enable it to pay policemen and firemen in full for their services and at the same time retain the entire force. Appellants challenged the truth of these representations, and as I view the record, showed that the city’s revenues were amply sufficient to have enabled it to pay the employees in full.
That the alleged representations were made is conceded. Therefore, the truth or falsity of such representations concerning the sufficiency of the city’s revenues becomes the crux of the cases now before us.
The evidence established and the court found:
“That it is also true that in each of the following fiscal years money was received by the City of Los Angeles in payment of delinquent taxes for prior fiscal years and that at the close of each of said following fiscal years there was surplus money in various funds over and above the amount of outstanding demands and liabilities payable out of such various funds which was transferred to the reserve fund in accordance with Section 382 of the Charter of the City of Los Angeles, as follows:
“1932-33 $ 27,351.22
1933- 34 512,185.19
1934- 35 1,249,296.79
1935- 36 1,256,859.29
*333‘ ‘ That it is further true that the amount of taxes uncollected at the close of each of said fiscal years was as follows:
“1932-33 $2,678,794.65
1933- 34 2,101,634.58
1934- 35 1,631,913.80
1935- 36 1,156,233.06
and that more than 95 per cent of the foregoing amounts of delinquent taxes for each of the aforesaid fiscal years, except 1935-36, have since been collected with penalties for delinquency, and as to the fiscal year 1935-36 more than 94 per cent has been collected, and that of the taxes levied for and remaining uncollected at the close of said fiscal years more than 60 per cent were allocated in the annual budget to the support of the budgetary departments of the city government, including the Police Department.”
Section 382 of the city charter referred to in the foregoing findings of the court, insofar as here pertinent, provides that:
“At the close of each fiscal year the Controller and Treasurer shall transfer all surplus money remaining in each fund over and above the amount of outstanding demands and liabilities payable out of such fund to the ‘reserve fund’, . . . except such surplus money as is in the several bond funds, interest and sinking funds, trust funds, the fire and police pension fund, the harbor revenue fund, the library fund, the park fund, the permanent improvement fund, the playground and recreation fund, the power revenue fund and the water revenue fund, but the Council may by ordinance, direct that any or all such surplus money in either the harbor revenue fund, the power revenue fund or the water revenue fund be transferred to such reserve fund with the consent of the board in charge of such fund, but not otherwise.”
It is to be noted that as a prerequisite to its transfer to the “reserve fund,” under the charter provisions such money must be “surplus moneys remaining in each fund over and above the amount of outstanding demands and liabilities payable out of such fund.”
The evidence shows and the findings establish that the foregoing total amount of “surplus moneys” thus transferred to the “reserve fund” during the years in question was $3,045,-692.49, or more than enough to have paid to all police and firemen their full salaries as fixed by initiative ordinance, without any reduction whatever.
The fact that collection of delinquent taxes was deferred by *334reason of delayed redemption of property from tax sale, does not alter the fact that the avails, when received into the city treasury become a part of the fiscal year fund for the year for which the tax was levied (Newton v. Brodie, 107 Cal.App. 512, 518 [290 P. 1058]; City of New Orleans v. Fisher, 180 U.S. 185 [21 S.Ct. 347, 45 L.Ed. 485, 492]).
I have no quarrel with the holding in the majority opinion that public officers and employees may validly waive the full amount of their salary as fixed by statute or ordinance. But certainly no validity can attach to such waivers if they are obtained by false representations on the part of representatives of the employer political subdivision.
Respondent’s contention that the causes of action now engaging our attention are barred by the statute of limitations is, in my opinion, without merit. The applicable statute is subdivision 4 of section 338, Code of Civil Procedure, which provides for a three-year period of limitation. Without conflict, the evidence establishes that appellants did not discover the facts constituting the alleged fraud until some three or four months before the instant actions were instituted.
Law and good morals should be one and inseparable. To me it seems unconscionable that the police and firemen should be required to waive 10 per cent and later 9 per cent of their salaries on the representation that the city’s revenues were insufficient to pay them the salaries provided by initiative ordinance, when in truth and in fact the city during all of said years was transferring to the “reserve fund” “surplus moneys” remaining in various funds, over and above the amount of outstanding demands and liabilities payable out of such funds. And when the collections of delinquent taxes, properly allocated to the liabilities of the fiscal year for which they were levied, were more than sufficient to pay the city’s police and firemen the full amount of salaries authorized by ordinance.
In my opinion, the judgment should be reversed and the causes remanded with directions to the court below to take appropriate steps, in the exercise of its equity jurisdiction, to compel payment to officers and members of the police and fire departments of the full amount of salary withheld from them during the fiscal years 1932-1933 to 1935-1936 together with the interest thereon.
A petition for a rehearing was denied May 25, 1948. White, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied July 1,1948.