Cochran v. City of Long Beach

• Decision Date: 17 February 1956
• Citation: 139 Cal.App.2d 282,293 P.2d 839
• Court: California Court of Appeals Court of Appeals
• Parties: Donald C. COCHRAN, Petitioner and Appellant, v. CITY OF LONG BEACH, etc., et al., Respondents. Civ. 21113.

Page 839

293 P.2d 839

139 Cal.App.2d 282

Donald C. COCHRAN, Petitioner and Appellant, v. CITY OF LONG BEACH, etc., et al., Respondents.

Civ. 21113.

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

Feb. 17, 1956.

Kenneth Sperry, Long Beach, for appellant.

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

ASHBURN, Justice.

The question in this case is whether petitioner, a retired patrolman of the Long Beach Police Department, must accept a pension of a fixed amount or is entitled to a pension which fluctuates from month to month and year to year in propertion to the salary of a patrolman then on active duty.

Petitioner having been permanently injured on March 15, 1952, while in the performance of duty as a member of the Police Department of the City of Long Beach, was forced to retire from active duty on the following day, March 16. After appropriate proceedings therefor, the City Council granted petitioner a disability pension dating from March 16, 1953 instead of March 16, 1952, and refused to order any payments for the intervening period of one year. Petitioner filed the instant proceeding in mandate to compel respondent City to grant a pension from March 16, 1952, in an amount equal to one-half of the salary attached to his rank of patrolman in said Police Department; petitioner specifically relied upon § 187, subdivision 3 of the City Charter, alleging that he was 'entitled to be retired from active service and to receive a disability pension in an amount equal to one-half of the salary attached to the rank or position held by him at the time of his inability to continue in such service, to wit, March 15, 1952.' The court granted the application, directed respondents to make an order granting petitioner a disability pension dating from March 23, 1952, and 'payable monthly in an amount equal to 50% of the average monthly salary earned by petitioner during the five years immediately preceding March 23, 1952, which said average monthly salary shall be determined by dividing the total salary earned by petitioner during said five-year period by the actual number of months or portion thereof during which he earned such salary.' Petitioner appeals from 'that portion of the judgment which limits the disability pension payable to petitioner to an amount equal to fifty per cent (50%) of the average monthly salary earned by petitioner during the five years immediately preceding March 23, 1952, and which fails to order the respondents to grant him a disability pension equal to fifty per cent (50%) of the salary currently attached to the rank formerly held by petitioner, to wit, that of Patrolman in the Long Beach Police Department, as said salary varies from time to time in accordance with the provisions of Section 187, subdivision (3) of the Long Beach City Charter.'

Petitioner entered the service on November 1, 1941, suffered permanent injury on March 15, 1952, and was compelled to retire on March 16, 1952. When he entered the department, subdivision 3 of section 187 of the Charter was in effect. It was enacted in 1925 and provided that 'such person so retired shall, during his lifetime, be paid from said pension fund a yearly pension equal to one-half (1/2) of the amount of the salary attached to the rank or position held by him in such department at the date of such retirement order.' Stats.1925, p. 1335. This language has been construed to provide a fluctuating pension, one which increases or decreases as salaries paid to active employees increase or decrease. Casserly v. City of Oakland, 6 Cal.2d 64, 56 P.2d 237; Terry v. City of Berkeley, 41 Cal.2d 698, 700, 263 P.2d 833. The basic concept is that 'pension payments are deferred compensation', Wallace v. City of Fresno, 42 Cal.2d 180, 184, 265 P.2d 884, 885; and the statutes are to be liberally construed to effectuate their beneficent purpose. Terry v. City of Berkeley, supra, 41 Cal.2d 698, 702, 263 P.2d 833.

As appears from Allen v. City of Long Beach, 45 Cal.2d 128, 287 P.2d 765, 766: 'On March 29, 1945, the City of Long Beach undertook to withdraw substantially all pension rights granted by section 187 of its charter to employees of the police and fire departments, and we held that the action of the city was invalid as to persons employed before that date. Kern v. City of Long Beach, 29 Cal.2d 848, 179 P.2d 799. Those who thereafter entered the police and fire departments were offered no pension benefits until 1950 when the city entered into a contract with the state, pursuant to section 20450 et seq. of the Government Code, for the purpose of making such persons members of the state employees' retirement system. In 1951 section 187.2 of the charter was enacted altering the pension rights of policemen and firemen employed prior to March 29, 1945.'

Said section 187.2, adopted on June 5, 1951, provides: '(b) The amount to be paid as a pension to each person who shall be granted a pension subsequent to the effective date of this amendment pursuant to the rights thereto vested by reason of the provisions of Section 187 of this Charter prior to the repeal thereof by the adoption of Section 187.1 hereof, shall be based in each instance upon the applicable percentage of the average monthly salary earned during the five (5) years immediately preceding the retirement or death of the person whose service formed the basis for such right to a pension. Such average monthly salary shall be determined by dividing the total salary earned by such person during said five-year period by the number of months during which such person earned such salary.' Stats.1951, p. 4635. The effect of this enactment is to substitute a pension of a fixed amount for the fluctuating type previously guaranteed by subdivision 3 of § 187.

This court held in Rustad v. City of Long Beach, 122 Cal.App.2d 106, 264 P.2d 955, that § 187.2 is valid in its application to members of the department whose employment began before March 29, 1945. The controlling facts were exactly parallel with those at bar. Rustad had joined the fire department in July, 1941, was injured in September, 1950 (before § 187.2 was enacted), but his disability and right to pension were not determined until December 3, 1951. The court concluded that § 187.2 governed his pension right, and at page 108 of 122 Cal.App.2d, at page 956 of 264 P.2d emphasized the fact that § 187 subdivision 3, was repealed and § 187.2 enacted 'before he became disabled and entitled to be paid his pension'. Relying on Terry v. City of Berkeley, supra, 41 Cal.2d 698, 263 P.2d 833, and similar cases, the court determined that § 187.2 was a reasonable change which could be made without impairment of any vested right if the change was effected before the right to payment of a pension had accrued. Petitioner Cochran was employed in 1941, was injured in March, 1952, and became entitled to payments beginning in March, 1952. Section 187, subdivision 3, was repealed and § 187.2 was enacted 'before he became disabled and entitled to be paid his pension' as in the Rustad case.

The Terry case was decided on November 25, 1953; Rustad on December 17, 1953 and hearing denied February 10, 1954; Wallace v. City of Fresno, supra, 42 Cal.2d 180, 265 P.2d 884, was decided on January 29, 1954. The court in the Wallace case reiterated the rule applied by this court in Rustad, saying at page 183 of 42 Cal.2d, at page 886 of 265 P.2d: 'A public employee who serves under pension provisions similar to those contained in the 1923 ordinance acquires a vested contractual right to a substantial pension. This right arises before the happening of the contingency which makes the pension payable, and it cannot be constitutionally abolished by subsequent changes in the law. Kern v. City of Long Beach, 29 Cal.2d 848, 852 et seq., 179 P.2d 799. In discussing the nature of an employee's rights we recognized in the Kern case that a public pension system is subject to the implied qualification that the governing body may make reasonable modifications and changes before the pension becomes payable and that until that time the employee does not have a right to any fixed or definite...