I dissent.
Section 135(1) of the charter of the city of Los Angeles provides that: “The right of an officer or employee of the Fire Department to hold his office or position and to the compensation attached to such office or position is hereby declared to be a substantial property right of which he shall not be deprived arbitrarily or summarily, nor otherwise than as herein in this section provided. No officer or employee of the Fire Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Fire Department, (other than by resignation) except for good and sufficient cause shown upon a finding of ‘guilty’ of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Bights. ...” It is also provided that the charge must be based on some act committed or omitted within one year prior to the filing of the complaint.
Section 135(12) provides in part that the “Board of Rights, shall at the conclusion of the hearing, make its specific findings of ‘guilty’ or ‘not guilty’ (on each specific charge) which must be based upon the evidence adduced before it at such hearing and not otherwise and render and certify its decision in writing.”
The only charge against plaintiff was that he was in ill health and unable to perform his duties because of physical disability. The two paragraphs of section 135 of the charter above quoted certainly connote some sort of misconduct. It appears to me that it takes quite a stretch of the imagination to say that one may be found “guilty” or “not guilty” of poor health. It most assuredly is not something over which an individual has any control.
The majority, in holding that plaintiff may be removed from the fire department under the quoted provisions of the charter, say that a comparable provision is found in section 19570 et seq. of the Government Code. I most emphatically do not agree. Section 19572(e) of that code provides specifically that an employee may be disciplined for physical or mental disability. No such provision is made in the section here under consideration.
*507Section 182¼ of the charter provides for retirement of a fireman who is disabled other than in the line of duty, provided he has served in the department for five years or more since the date of his last appointment. Plaintiff’s illness occurred shortly after he had served his probationary period and so he does not come within this provision. Section 108 permits the transfer of physically disabled personnel to other civil service departments in the event that the employee has served for at least three years, or has become disabled because of service-connected disability. Plaintiff does not come within this category either, so there is very clearly a hiatus in the charter which the majority has filled by indulging in judicial legislation. Since no provision was made for disability which was not service connected and which occurred prior to the five year period of service, this court decides that plaintiff can be removed from his position upon a finding of “guilty” of poor health.
The majority opinion contains the following statement: “In numerous decisions, the discharge or retirement of public employees physically or mentally unable to perform the duties called for in their positions has been upheld.” This statement is allegedly supported by the following authorities which, in my opinion, are all distinguishable from the case under consideration.
In In re Carney, 182 Va. 907 [30 S.E.2d 789], the act involved provided that: “Whenever the Supreme Court of Appeals of Virginia shall have reasonable cause to believe that the judge of any court of record in this State ... is afflicted with an illness or disability, mental or physical, which renders such judge . . . permanently incapacitated or incompetent to discharge the duties of his office, it shall be the duty of the Court to enter an order directing an inquiry to determine such judge’s . . . capacity and competency. ...” (Italics added.) This case involved a situation where there was specific statutory authority for removal or retirement of the judge from office.
In Sganga v. Teaneck Tp., 130 N.J.L. 218 [32 A.2d 505], there was no discharge involved. A police officer, due to defective vision, was unable to perform any police duties other than desk work and the court held that the township was justified in denying him a pension and in putting him on sick leave at half salary.
In Balacek v. Board of Trustees, 263 App.Div. 712 [30 *508N.Y.S.2d 1007], a fireman who was found to be totally and permanently physically unfit for duty was retired, apparently at an annual pension.
In Loucks v. Board of Education, 258 App.Div. 1003 [16 N.Y.S.2d 733], a schoolteacher was dismissed for physical disability. But there is nothing in the case to show whether or not any particular legislative act was involved.
In Gentner v. Board of Education, 219 Cal. 135 [25 P.2d 824], a schoolteacher who had, because of the Teachers’ Tenure Law, achieved the status of a “permanent teacher” was dismissed because of incompetence and unfitness to teach. The School Code in effect at that time (Stats. 1933, ch. 391, p. 1017) provided for dismissal for “immoral or unprofessional conduct, commission or aiding or advocating the commission of acts of criminal syndicalism . . . dishonesty, incompetency, evident unfitness for service, persistent violation of or refusal to obey the school laws of California, or reasonable regulations prescribed for the government of public schools.” This case presents another example of dismissal in accordance with specific statutory authority.
In Tilton v. Board of Education, 25 Cal.App.2d 746 [78 P.2d 474], a teacher was retired for physical incapacity (defective hearing) and the question presented for determination was whether she was to be given active employment from the date of her retirement until her dismissal at the end of the year. She was retired pursuant to the provisions of section 5.890 of the School Code and no question was raised as to the propriety of her eligibility for retirement or as to the physical facts which necessitated it.
In School District No. 1 v. Teachers’ Retirement Fund Assn., 163 Ore. 103 [95 P.2d 720, 96 P.2d 419, 125 A.L.R. 720], a statute which provided for a pension plan for teachers under the age of 60 who should become disabled by reason of illness or accident was involved. The board of directors of the school district adopted a rule requiring every applicant to take a medical examination and where a physical disability was discovered, the applicant was to sign a waiver of any claim for disability benefits from the Teachers’ Retirement. Fund Association. The waivers were held void as contrary to public policy.
I have no quarrel with eases holding that a public employee may be retired on a pension or removed from office or position for physical disability when there is statutory authority therefor. I do object strenuously to such judicial *509legislation as is found in the majority opinion. If the legislative body intends that an employee, in the position of the plaintiff here, may be removed from his position, it is its sole prerogative to say so. It is not the function of this court to determine that the charter provision, so obviously meant to provide for the discharge of an employee guilty of misconduct, applies to one suffering from a physical disability. If, as I am convinced it does, the charter makes no provision for the removal of a person in the category in which plaintiff finds himself, undoubtedly the situation could be remedied by the proper authorities in a very short period of time. It is not the duty of this court to supply the missing links in the legislative chain.
I would, therefore, reverse the judgment with directions to the trial court to enter judgment in favor of plaintiff directing his restoration to his position in the Department of Fire of the City of Los Angeles without loss of pay.
Shenk, J., concurred.
Appellant’s petition for a rehearing was denied March 31, 1952. Shenk, J., and Carter, J., were of the opinion that the petition should be granted.