Clark v. City of Pasadena

• Decision Date: 08 February 1951
• Citation: 227 P.2d 306,102 Cal.App.2d 198
• Parties: CLARK v. CITY OF PASADENA et al. Civ. 18108.
• Court: California Court of Appeals Court of Appeals

Page 306

227 P.2d 306

102 Cal.App.2d 198

CLARK v. CITY OF PASADENA et al.

Civ. 18108.

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

Feb. 8, 1951.

J. H. Morris, Hollywood, Walter H. Duane, San Francisco, for appellant.

H. Burton Noble, City Atty., Frank L. Kostlan, Asst. City Atty., Robert E. Michalski, Deputy City Atty., all of Pasadena, for respondents.

WILSON, Justice.

By this appeal we are required to construe portions of the charter of the city of Pasadena relating to pensions of retired members of the police department.

Petitioner is a police officer of the city of Pasadena. He filed with the Retirement Board an application for retirement upon the pension to which he claims he is entitled under the provisions of the city charter adopted in 1919. Upon denial of his application he filed in the superior court a petition for a writ of mandate to compel the board to comply with his demand. Defendant answered and pleaded as a defense that he is entitled to such benefits, if any, as are provided in amendments to the city charter adopted in 1935 and 1947. On defendants' motion judgment on the pleadings was entered in their favor from which petitioner has appealed.

The answer cannot be considered on the motion for judgment on the pleadings. Such motion must be determined on the same principles as if it were a demurrer to the complaint on the same ground. Douglass v. Dahm, 101 Cal.App.2d ----, 224 P.2d 914, 916. However, since a freeholders' charter is a public statute, Adams v. Wolff, 84 Cal.App.2d 435, 440, 190 P.2d 665; Leahey v. Department of Water and Power, 76 Cal.App.2d 281, 286, 173 P.2d 69, of which the court takes judicial notice, Code Civ.Proc. sec. 1875(3); Thompson v. City of Los Angeles, 82 Cal.App.2d 45, 47, 185 P.2d 393; Teachout v. Bogy, 175 Cal. 481, 485, 166 P. 319, the same defense is available without recognition of the allegations in the answer.

In October, 1925, petitioner became and at all times since has been an employee of the police department in good standing; he was 56 years of age at the time his petition for retirement was filed; since 1939 he has held the rank of detective and for more than one year prior to his application for retirement his monthly salary had been $359.55. Having been a member of the police department for more than 20 years and having reached the age of 56 years he asserts the right, pursuant to subsection (d) of section 11 added to article 6 of the City Charter in 1919, ¹ Stats.1919, pp. 1505, 1506, to be retired upon a monthly pension of $179.77, one half of the salary he had received for the preceding year.

Defendants maintain that the amendments to the charter adopted in 1935 and 1947 are the guide to be followed in fixing retirement allowances for police officers and that those amendments repealed the 1919 amendment which included subsection (d) of section 11 of article 6, while petitioner contends that the latter provision is still in force by reason of the fact that the 1935 and 1947 amendments are void for uncertainty.

By an amendment to the city charter in 1935 article 6, entitled 'Police and Fire Departments and Retirement System', was revised and amended. Stats.1935, p. 2321. Subsection (a) of section 14, p. 2328, provided: 'Members of the Retirement system may retire for service at their option upon attaining an age of at least fifty-seven years if they be members of the Fire Department, or sixty years if they be members of the Police Department, but only after rendering at least twenty years of service to the city in either or both of said departments. * * *' By subsection (d) ² of section 14, p. 2332, the retirement compensation was changed from an amount equal to one half of the amount of salary attached to the rank or position held by the retiring member for a period of one year next preceding the date of retirement to approximately one half of the member's final compensation. The term 'final compensation' is defined in section 10 of article 6, p. 2326, as 'the average monthly compensation earnable by a member during the ten years immediately preceding his retirement, or death before retirement.'

Subsection (b) ³ of section 14 of article 6, pp. 2328-9, provides the formula for computing the retirement allowance. Upon a casual first reading of subsection (b) it might appear to have been drafted by an advanced student of obscurantism but upon a close examination and analysis it is not so vague and uncertain as not to be understandable and interpretable with reasonable definiteness, although there is much to be desired in precision of expression and its clarity could be greatly improved upon.

It is agreed that the charter amendments of 1935 became effective on July 1 of that year. Prior thereto members of the fire and police departments did not contribute to the retirement fund, the city having contributed the entire amount. The formula for computation of the retirement allowance is composed of two parts. Since under the amendment a member of the retirement system and the city contribute equal amounts to the retirement fund it is clear that the first part of the formula refers to the total of the amounts so contributed by the member and the city (or twice the sum contributed by the member), plus accumulated interest, to be computed upon the basis of actuarial tables and rates approved by the triement board. Actuarial tables, rates and valuations are provided for in section 9, p. 2325.

The second or 'other part' of the formula is based on the member's service previous to July 1, 1935, commonly referred to as 'prior service.' With reference to such 'other part' it is provided in subdivision (b) of section 14, as amended in 1935 (footnote 3), that the retiring member shall receive 'the same percentage of his final compensation for each year of service rendered by him * * * prior to [July 1, 1935] as the [combined] contributions of the member and the city are calculated to provide upon retirement * * * at * * * sixty years of age * * *.' 'Final compensation,' as heretofore stated, is the member's 'average monthly compensation * * * during the ten years immediately preceding his retirement'. Since the retiring member is to receive 'one-half of his final compensation' which is based on his 'average' monthly compensation for the next preceding 10 years (see subsection (d) of section 14, as amended in 1935, footnote 2), one half or 50 percent is employed as the basis of calculation. The percentage to be used for the purpose of determining the retirement allowance is calculated at the beginning of the member's membership in the retirement system by dividing 50 percent by the total number of years which the member will be required to serve in order to be eligible for retirement at the age of 60 years for a policeman. When the quotient resulting from such computation is multiplied by the number of years of the member's service prior to July 1, 1935, the product ensuing will represent the portion of the member's retirement allowance to which he is entitled by reason of such 'prior service.' This analysis of the method of computation provided in the charter may be illustrated by an example. If a member of the police department has had five years of service prior to July 1, 1935, and 15 years thereafter, and has attained the age of 60 years, he is eligible for retirement. The second or 'other part' of his retirement allowance is computed in this manner: Fifty percent divided by 20 years of service will yield a quotient of 2.5 percent. Assuming the member's 'final compensation' as above defined amounts to $300 a month, such sum multiplied by 2.5 percent will result in a product of $7.50. Multiplying that sum by the member's 5 years of prior service amounts to $37.50, which is the amount per month which the member will receive as the second or 'other part' of his retirement allowance.

By an amendment to the charter approved by the Legislature in 1947 subsection (a) ⁴ of section 14 of article 6 was amended, Stats.1947, p. 3487, so as to give members of the retirement system the option of retiring at the age of 51 after having rendered at least 20 years of service but reducing the retirement allowance which he would have received if he had remained in the service until the normal retirement age has been reached--57 for firemen and 60 for policemen.

We find no ambiguity or uncertainty in this provision. If a member of the retirement system remains in service for the normal period he will receive a retirement allowance computed as hereinbefore described, but if he choses to retire at the age of 51 after 20 years of service his retirement allowance is proportionately decreased. If one member of the retirement system remains in service until he reaches the age of 60 and another retires at 51 it is assumed that the latter will draw his retirement allowance for a greater number of years than the former; hence the total amount of the monthly...