City of Long Beach v. Allen

• Decision Date: 10 July 1956
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF LONG BEACH, a municipal corporation, Plaintiff and Respondent, v. Clyde ALLEN et al., Defendants, Donald F. Cope, Otis H. Hoyt, Fred L. Smith, Arthur H. Wigney, Archer H. Wombacher and William C. Wright, Defendants and Appellants. Civ. 21243.

Page 356

300 P.2d 356

143 Cal.App.2d 35

CITY OF LONG BEACH, a municipal corporation, Plaintiff and Respondent, v. Clyde ALLEN et al., Defendants, Donald F. Cope, Otis H. Hoyt, Fred L. Smith, Arthur H. Wigney, Archer H. Wombacher and William C. Wright, Defendants and Appellants.

Civ. 21243.

District Court of Appeal, Second District, Division 2, California.

July 10, 1956.

Kenneth Sperry, Long Beach, for appellants.

Walhfred Jacobson, City Atty., Clifford E. Hayes, Deputy City Atty., Long Beach, for respondent.

FOX, Justice.

By this appeal Cope, Hoyt, Smith, Wigney, Wombacher and Wright, retired Police officers of the city of Long Beach, seek to ascertain the effect on their pensions of the salary ordinances passed since their retirements.

At the time of their respective retirements each of these men had served more than 20 years in the police department and for more than one year in the promotional rank ¹ held by each at the time of retirement. Under section 187, subdivision 2 of the city charter, each was entitled upon retirement to receive a fluctuating pension based on the applicable percentage of the salary currently provided for 'the rank or position held by him one year prior to the date of retirement.' The salary ordinance then in effect, and which had been in force for many years prior to their retirements, provided for two rates of pay, 'a' and 'b,' for inspectors and lieutenants. The 'a' rate was paid during the first six months the officer was in the new rank. After the expiration of this period he was automatically paid at the higher rate. There was, however, only one pay rate for the rank of captain. At the time of their respective retirements, the appellants had qualified for and were receiving the highest salary then provided for and paid to all active members of corresponding rank.

After the retirement of appellants the city council passed a salary ordinance that became effective September 1, 1948, which provided five rates of pay for each position in the police department, including the positions formerly held by appellants. These rates were designated by the letters 'a,' 'b,' 'c,' 'd' and 'e.' They provided for salary increases after various lengths of service; the last two, however, were merit raises to be given only upon the recommendation of the head of the department and approval of the city manager. The ordinance contained a provision that in the event the rate of pay designated therein for an officer or employee was less than the rate of pay of such officer or employee on August 31, 1948, the salary of such person should be at the pay rate next higher than that established for his salary on the latter date. Thus all employees would receive the same or higher salaries upon the transition from the old to the new salary ordinance. To illustrate, under the former salary ordinance an inspector in the 'b' or highest rate received $315 per month. In the ordinance of September 1, 1948, the salary scale for an inspector was as follows:

                 A     B     C     D     E
                $273  $288  $305  $322  $341
                

Since, upon the transition, an inspector must not be paid less than the $315 per month he had been receiving, it follows that he moved into the D rate of $322 per month. The same relative situation applied with respect to lieutenants, so that officers of that rank who were receiving the highest salary were also placed in the D salary bracket. As to the position of captain, which had only one salary rate of $400 per month under the former ordinance, that rank naturally fell into the 'c' rate under the new ordinance, which carried a salary of $403.

The trial court held, in effect, that appellants were only entitled to receive a fluctuating pension based upon an intermediate salary rate as provided in the various ordinances throughout the period from September 1, 1948, to September 1, 1954, to wit, the 'd' rate of pay as currently provided for their respective positions in case of all defendants except Captain Wright, whose pension should be based on the 'C' rate of pay, and that appellants were 'not entitled to have their fluctuating monthly pensions based upon the highest salary which had been provided for and paid to the active members of the police department who have held the same rank or position as those previously held by said defendants, respectively, for one year or more at the time of their respective retirements * * *' It is from this declaratory judgment that these retired police officers appeal.

Appellants contend that a proper construction of section 187, subdivision 2, of the city charter requires the payment of a monthly benefit based upon the highest salary currently provided for and paid to active employees of the same rank as that held by them for one or more years prior to retirement.

The position of the City is revealed by the following statement from its brief: 'The interpretation given to the charter section by officials of the respondent City, which interpretation was concurred in by the trial court, provides for the payment of a pension to the appellants based on the salary presently paid to the employees during their first year of service in the promotional ranks. Any increase thereafter is dependent upon the recommendation of the head of the department and the City Manager, as all employees in the promotional ranks involved in this appeal were filling positions with salaries fixed at either the 'c' or 'd' rate.'

It is well settled that pension provisions are to be liberally construed in favor of the applicant, Gibson v. City of San Diego, 25 Cal.2d 930, 935, 156 P.2d 737; Terry v. City of Berkeley, 41 Cal.2d 698, 702, 263 P.2d 833, and that employees of a city whose charter provides pension benefits for its employees, as does the city of Long Beach, acquire vested contractual rights in a pension since it is a part of their compensation. Allen v. City of Long Beach, 45 Cal.2d 128, 287 P.2d 765. When such an employee has been retired after rendering the called-for performance '[t]he pension has been fully earned,...