I concur with the majority that real party in interest petitioner below (hereafter Lambert) is not entitled, on the present record, to a free transcript of his administrative pension proceedings. I do not agree that one seeking review of administrative proceedings is never entitled to such transcript unless the costs of preparation are paid in advance of receipt of the transcript.
I also disagree that Lambert, as stated by the majority, “has been afforded the essentials of due process in regard to notice, opportunity to *721be heard, and a fair hearing.” These are issues going to the merits of judicial review of the administrative proceedings and are not before us on this petition for “prohibition and mandate.” The sole issue before this court in this proceeding is whether Lambert is entitled to a transcript of the administrative proceedings, either at no cost or without prepayment of the cost of preparation.
In the trial court1 and in briefing before this court, Lambert asserted he was entitled to a free transcript at the expense of the public agencies because of his indigency and his need to file such a transcript to withstand any further demurrer by the public agencies.2 In oral argument before this court, Lambert conceded the transcript costs could be assessed against him by the court at some future time but that he was entitled to have the transcript without advance payment of such costs.
An examination of the procedural steps herein discloses the transcript request was initiated by Lambert with a “Request for Record” pursuant to Code of Civil Procedure section 1094.6.3 Petitioners, without more, ordered the proceedings be transcribed, then demanded payment of the $428.20 transcription costs as a prerequisite of delivery of the transcripts. Section 1094.6, subdivision (c) provides the complete record of the proceedings “shall be prepared by the local agency” and “shall be delivered to the petitioner within 90 days after he has filed a written request therefor.” Further, that the “local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record.” (Italics added.) If petitioners herein were proceeding pursuant to section 1094.6, they were obligated to deliver the transcript to Lambert within 90 days and thereafter seek their costs from the court. This interpretation is mandated by the mandatory “shall” in the preparation and delivery portions of section 1094.6, subdivision (c) and the permissive “may” in the payment portion.
However, section 1094.6, subdivision (g) provides the section shall be applicable to a local agency only if the governing body thereof by ordi*722nance or resolution adopts the provisions. It did not appear from the record whether such adoption had occurred. This court ordered the rec-cord augmented by any ordinances pertaining thereto. City of Sacramento adopted by ordinance the filing time provisions of section 1094.6 but not the preparation and delivery of the records provisions of 1094.6, subdivision (c).4
The anomaly is that petitioners assume that section 1094.6 in its entirety has been adopted by the City of Sacramento as they argue with vigor (albeit faulty reasoning) that section 1094.6, subdivision (c)5 must be construed to require payment of costs upon delivery of the transcript to a 1094.5, subdivision (a) petitioner, not subsequent to the proceedings as a taxable cost. Any other interpretation, they contend, would render superfluous the proviso in section 1094.5, subdivision (a) that transcript costs are taxable and recoverable by the prevailing party. Petitioners misconstrue the two sections. Section 1094.5 authorizes administrative writs of mandamus for review of all final administrative orders or decisions resulting from a proceeding, in which by law, a hearing is required at which evidence shall be taken and discretionary determination of the facts is vested in an “inferior tribunal, corporation, board or officer.” Section 1094.6 expressly applies only to local agencies.6 The period for filing a petition for review is 90 days as opposed to the 30-day period prescribed by Government Code section 11523 for state actions. Section 11523 expressly provides for payment by petitioner below of the costs of preparation of the record prior to delivery thereof. Construing the two sections as applying to separate and distinct agencies, state as opposed to local, no violence is due to the accepted principles of statutory construction enunciated in Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640 [335 P.2d 672].
*723However, the evidence before this court- on the record as augmented by the court, demonstrates that only the time requirements for judicial review were adopted by the petitioner City of Sacramento and not the preparation and delivery of records and transcript provisions. Such procedure is authorized by Government Code section 50022.2, which provides any local agency may enact any ordinance which adopts “any code by reference, in whole or in part...” On the record before us, section 1094.6, except for the time filing provisions, is not applicable to the case at bar.
The majority misconstrues the holding of Woodard v. Personnel Commission (1979) 89 Cal.App.3d 552 [152 Cal.Rptr. 658]. Woodard does not purport to hold that an indigent petitioner in an administrative writ procedure is entitled to a free transcript for him or herself. Woodard simply holds that the court, pursuant to section 1094.5, may order the local agency to prepare and file the transcript with the court, where presumably, it would be available for review by such petitioner. The Woodard court specifically noted that this issue had been left unresolved in Civil Service Commission v. Superior Court (1976) 63 Cal.App.3d 627 [133 Cal.Rptr. 825].
In the case at bar, if the trial court perceives it crucial that the transcript be available to the court, section 1094.5 provides authority to enable the court to order the transcript filed with the court, where it would be available for Lambert’s use.7 Costs would be assessed in favor of the local agency if it were the prevailing party. I would reverse the judgment and remand the case to the trial court for proceedings consistent with the views expressed herein.
The trial court’s order provides the transcript shall be “at no cost to [Lambert].”
Without a transcript of the administrative proceedings, Lambert was unable to plead the necessary facts to demonstrate the administrative agency had abused its discretion. The trial court treating a “motion for judgment on the pleadings” as a general demurrer sustained the demurrer with leave to amend on the ground that a transcript was not attached to the petition for mandate filed in the lower court.
Unless otherwise indicated, all code references are to the Code of Civil Procedure.
See City of Sacramento, Ordinance No. 3921, 4th Series, section 34.1409 through section 34.1414 and particularly section 34.1411, which provides: “Any judicial action taken by the applicant to set aside, annul or vacate any decision, finding or action by the commission pursuant to the provisions of this Chapter, shall be filed within the time limits prescribed in California Code of Civil Procedure Sec. 1094.6.”
Petitioners erroneously cite section 1094.6, subdivision (b) as controlling on the recovery of costs. This subdivision delineates the time limits for filing a petition. Costs are provided for in section 1094.6, subdivision (c).
This section was apparently enacted in response to the problem of the period of limitations for seeking review of decisions by local agencies. Government Code sections 11501 and 11523 establish a statute of limitations for certain state agencies (30 days). However, Allen v. Humboldt County Board (1963) 220 Cal.App.2d 877 [34 Cal.Rptr. 232] held Government Code section 11523 did not control review of local agency decisions which were subject to the statute of limitations for civil actions.
This procedure comports with the Supreme Court’s interpretation of Woodard, supra, in the recent case of Darley v. Ward (1980) 28 Cal.3d 257, at pages 261-262 [168 Cal.Rptr. 481, 617 P.2d 1113], wherein the court stated: “ Woodard v. Personnel Commission, supra [citation], held that an indigent petitioner’s mandamus remedy cannot be foreclosed simply because the agency contends that review is impossible without stipulated facts or a full hearing record. In such cases the agency may be compelled to cooperate in providing one or the other.”