Terry v. City of Berkeley

• Decision Date: 25 November 1953
• Citation: 41 Cal.2d 698,263 P.2d 833
• Court: California Supreme Court
• Parties: TERRY v. CITY OF BERKELEY et al. S. F. 18585.

Page 833

263 P.2d 833

41 Cal.2d 698

TERRY v. CITY OF BERKELEY et al.

S. F. 18585.

Supreme Court of California, In Bank.

Nov. 25, 1953.

Rehearing denied Dec. 23, 1953.

Fred C. Hutchinson, City Atty., and Robert T. Anderson, Dep. City Atty., Berkeley, for appellants.

Cornish & Cornish, Francis T. Cornish, Howard W. Wayne, Berkeley, and Robert H. Kroninger, Oakland, for respondent.

SHENK, Justice.

This is an appeal from a judgment for the plaintiff in an action by a retired police officer for declaratory relief and for an accumulated amount alleged to be due him from a pension fund pursuant to an ordinance of the defendant city of Berkeley.

The plaintiff was a member of the Police Department of the city of Berkeley from August, 1925, to May 1, 1940, when he was retired because of physical disability incurred in the line of duty. At the time of his retirement and for more than three years immediately prior thereto he held the rank of 'Mounted Patrolman' and received the salary attached to that rank of $185 per month. At that time Berkeley Ordinance No. 2250-N.S. provided that under the conditions applicable to the plaintiff's retirement a pension would be paid during the period of his disability. Section 13 of the ordinance fixed the amount of the pension in the following language: '* * * he shall be paid from the Fund during the period of his disability a pension equal to one-half of the average salary attached to the rank or ranks held during the three years immediately preceding the date of retirement * * *.' Accordingly, the plaintiff's pension was determined to be $92.50 a month at the time of his retirement, and payments of that amount were made to him. Shortly after his retirement the salary attached to the rank of mounted patrolman was increased and additional periodic increases later became effective. Finally, in February, 1951, subsequent to the commencement of this action, the salary was increased to $334.80 per month. The amounts received by the plaintiff have remained at $92.50 a month. He asserts that he is and has been entitled to one-half of the fluctuating salary attached to the rank he held rather than to one-half the monthly amount paid to him during the three years immediately prior to his retirement. The trial court agreed with the interpretation of Section 13 asserted by the plaintiff and awarded to him the sum of $3,095.74, the difference between $92.50 and one-half of the salary attached to the rank of mounted patrolman for the years within the period of the statute of limitations and the elapsed time since the filing of the complaint. In addition the court awarded in his favor the declaratory relief sought by the plaintiff as to future payments.

The question involves the construction of Section 13 prior to its amendment as hereinafter indicated. More precisely the question is the proper application of the term 'salary' as used in that section. The plaintiff contends that at any particular time it is the salary then attached to the rank held for the three years immediately prior to retirement. The defendants contend that it is a fixed amount, the equivalent of the salary actually earned during the three year period.

The plaintiff's basic contention is that the three year period defines only the rank held and not the salary earned. It finds support in the language of the ordinance itself which refers to the 'average salary' as that 'attached to the rank or ranks held during the three years.' The plaintiff argues that had the framers of the ordinance intended that the pension be fixed by the average salary earned during the three year period they would have so indicated by describing the 'average salary' as that which 'was attached to the rank or ranks held during the three years', rather than by using the phrase 'the average salary attached' which indicates a presently existing salary. He contends that the framers were aware of such a distinction as evidenced by the language they employed in Section 10 to establish a pension ascertainable by reference to a fixed salary independent of salary fluctuations within ranks. That section provides: 'Upon the death of any person receiving a pension * * * a pension equal to one-third of the average salary upon which said pension * * * was based' shall be awarded to certain survivors.

The plaintiff relies upon Casserly v. City of Oakland, 1936, 6 Cal.2d 64, 56 P.2d 237, wherein a provision of the charter of the City of Oakland provided that a pension should be 'equal to one-half of the salary attached to the rank held' at the date of retirement. The court held that this provision provided for a fluctuating pension, which increased or decreased as the salaries paid to active employees increased or decreased. The language employed in the present case differs from that in the Casserly case only in the addition and substitution of the underlined words in the following quotation of the charter provision in the latter case: 'equal to one-half of the average salary attached to the rank or ranks held during the three years immediately preceding the date of retirement.' The plaintiff contends that the additional language merely changes the method of determining the 'rank' on which pension payments are to be based. While the particular rank in the Casserly case was determined by reference to the rank held at retirement, in the present case it is determined by reference to the rank or ranks held for three years prior to retirement. As the salary of the rank in the Casserly case fluctuated the pensioner's benefits were also held to fluctuate. As the average salary of the rank or ranks held in the present case fluctuates, the plaintiff argues that his benefits should also fluctuate unless the Casserly case is to be disregarded. The court there held, 6 Cal.2d at page 66, 56 P.2d at page 238, 'the salary attached to the rank at the time the payments fall due, and not the salary at the time the pension was awarded measures its amount.'

In Klench v. Board of Pension Fund Com'rs, 1926, 79 Cal.App. 171, 249 P. 46, 47, a statute provided that a retired police officer was entitled 'during his lifetime, (to) a yearly pension equal to one-half of the amount of salary attached to the rank which he may have held on such police force at the date of such retirement'. The following language from that case is quoted in the Casserly case, 6 Cal.2d at pages 66-67, 56 P.2d at page 238: '* * * it is our belief that the word 'salary' * * * was intended to refer to the rank of the retired police officer and not to the time at which he was retired. In other words, the section as phrased seems clearly enough to indicate that what the Legislature intended thereby to declare was that, on being retired under said act, a member of the police department should be paid a pension based upon...