English v. City of Long Beach

• Decision Date: 06 July 1954
• Citation: 126 Cal.App.2d 414,272 P.2d 875
• Court: California Court of Appeals Court of Appeals
• Parties: ENGLISH et al. v. CITY OF LONG BEACH et al. Civ. 20020.

Page 875

272 P.2d 875

126 Cal.App.2d 414

ENGLISH et al. v. CITY OF LONG BEACH et al.

Civ. 20020.

District Court of Appeal, Second District, Division 3, California.

July 6, 1954.

Hearing Denied Sept. 2, 1954.

Irving M. Smith, City Atty., Clifford E. Hayes, Deputy City Atty., Long Beach, for appellants.

Kenneth Sperry, Long Beach, for respondents.

SHINN, Presiding Justice.

In this proceeding in mandate the judgment directs the City of Long Beach and certain individuals in their respective capacities to take the necessary action for and to make payment of certain sums accrued and to accrue under the pension rights of petitioners as the surviving wife and minor daughter of Henry W. English, deceased, who was a patrolman in the Police Department of the city. Stats.1931, p. 2785, § 187. The litigation has a history, Cal.App., 209 P.2d 403; 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547; 114 Cal.App.2d 311, 250 P.2d 298. In the present proceeding it was stipulated that the death of Mr. English resulted from injuries received in the course of his employment as a member of the Long Beach Police Department. By stipulation the cause was submitted on petitioners' motion for judgment on the pleadings and upon the questions of law which we shall presently discuss. The judgment followed an order granting the motion.

Mr. English ceased active service April 5, 1950 because of service connected disability. He did not apply for a disability pension. He died April 11, 1950. At that time a pension was granted by the City Charter in the amount of 50 per cent of the salary attached to the rank or position held by the employee at the time of death. Nelda D. English was entitled to the pension from the time of the death of Mr. English until she remarried, September 6, 1951; thereafter the daughter, Susan Cheryl, was entitled to receive the pension until she became 18 years of age. City Charter, sec. 187(4).

Petitioners' right to a pension which vested in them upon the death of Mr. English was not limited to 50 per cent of the amount of salary as of the time of death but followed any changes that might be made in the salary attached to the rank of patrolman. Casserly v. City of Oakland, 6 Cal.2d 64, 56 P.2d 237; Terry v. City of Berkeley, 41 Cal.2d 698, 263 P.2d 833. The salary of a patrolman which was $305 per month from April 11, 1950 to July 1, 1951, was increased to $335 per month from July 1, 1951 to July 18, 1951, $355 per month from July 18, 1951 to July 1, 1952, and, from July 1, 1952 to date, to $370 per month.

Mrs. English applied to the city for a widow's pension February 14, 1951 and thereafter, effective June 5, 1951, a Charter Amendment, section 187.2 was adopted. St.1951, p. 4635. The substance of the amendment to be considered is that it altered the basis for determining the amount of the pension. Instead of a pension of 50 per cent of the salary attached to the rank or position of the employee from time to time it was fixed by the amendment at 50 per cent of the salary payable at the effective date of the amendment, and the amendment purported to apply to all pensions theretofore granted under section 187.

The questions are the following: (1) Was the amendment effective to change the pension from a fluctuating amount to a fixed amount as to both petitioners; (2) was it effective as to Cheryl; (3) did the court err in striking the cross complaint of the city by which it was sought to cancel the contract of employment of Mr. English upon the ground that he had obtained employment with the city through fraud.

The city contends that the charter amendment is valid if it left petitioners with a reasonable and substantial pension. This has frequently been held to be a proper test of the validity of changes in pension plans made before the pension has been fully earned and become payable. Kern v. City of Long Beach, 29 Cal.2d 848, 179 P.2d 799; Packer v. Board of Retirement, 35 Cal.2d 212, 217 P.2d 660; Palaske v. City of Long Beach, 93 Cal.App.2d 120, 208 P.2d 764; Allen v. City of Long Beach, 101 Cal.App.2d 15, 224 P.2d 792; Sweesy v. Los Angeles etc. Retirement Bd., 17 Cal.2d 356, 110 P.2d 37; Brophy v. Employees Retirement System, 71 Cal.App.2d 455, 162 P.2d 939; McCarthy v. City of Oakland, 60 Cal.App.2d 546, 141 P.2d 4; Brooks v. Pension Board, 30 Cal.App.2d 118, 85 P.2d 956. It was adopted in two unreported decisions of the Appellate Department of the Superior Court of Los Angeles County, cited by the city, which sustained the validity of the charter amendment here in question. Larson v. City of Long Beach, Superior Court Civil No. A-8063 and Thompson v. City of Long Beach, Superior Court Civil No. A-8064. The Appellate Department decisions were stated by the court to be based upon the reasoning in the Kern, Packer, Palaske and Allen cases. Shortly thereafter the Supreme Court decided Terry v. City of Berkeley, 41 Cal.2d 698, 263 P.2d 833, supra. In that case Terry had retired with a right to a pension the amount of which, the court held, would fluctuate with any increase or decrease of salary attached to the position held at the time of retirement. Thereafter the pension ordinance was amended to provide a pension based upon the salary at the time of retirement and which would not increase or decrease with any change of salary. After Terry had retired several salary increases were granted but the city, relying on the amendment of the ordinance, refused to pay him more than the initial amount of his pension. He sued and recovered judgment for the accumulated amounts based upon the increases of salary attached to the position. The judgment was affirmed. The city contended, as it contends here, that the change in the petitioner's pension rights was valid if it left Terry a reasonable and substantial pension. Reliance was placed upon the decisions listed above. As to those it was said that the court had not had before it, 41 Cal.2d a pages 702, 703, 263 P.2d at page 836: '* * * the question of the obligation due a pensioner after his status had become fixed by the happening of the contingency which made the pension due and payable. The cited cases are authority for the proposition that reasonable changes detrimental to the pensioner may be made in pension provisions for public employees or their beneficiaries before the happening of the contingency. * * * In the present case the plaintiff had been retired; he had rendered the called-for performance; he had done everything possible to entitle him to the payment of his pension and all conditions precedent to the obligation of the city were fulfilled upon the determination that he be retired as a result of his service-connected disability. The pension payments are in effect deferred compensation to which the pensioner becomes entitled upon the fulfillment of the terms of the contract and which may not be changed to his detriment by subsequent amendment. State of Mississippi, for Use of Robertson v. Miller, 276 U.S. 174, 48 S.Ct. 266, 72 L.Ed. 517; Kern v. City of Long Beach, supra, 29 Cal.2d 848, 179 P.2d 799; Kavanagh v. Board of Police Pension Fund Com'rs, 134 Cal. 50, 66 P. 36; Vero v. Sacramento City E. R. System, 41 Cal.App.2d 482, 107 P.2d 82; 20 Cal.Jur. 998. * * * [T]he amended section did not affect the plaintiff's retirement benefits.'

In the case of Mr. English, as in the case of Terry, the attempted change was from a fluctuating amount to a fixed amount and the effect of the attempted change was to deprive the beneficiary of the benefit due to the increases in salary. The city refuses to recognize the authority of the decision in the Terry case by insisting that the decisions of the Appellate Department of the Superior Court are controlling, for the reason that the Supreme Court of the United States refused to review them. The contention is obviously without merit.

In Wallace v. City of Fresno, 42 Cal.2d 180, 265 P.2d 884, a retired member of the Police Department had been convicted of a felony, which fact, under the pension ordinance in effect at the time he entered the service of the city, would not have given the city the right to terminate his pension. Later ordinances, adopted before his retirement, purported to give the city that right. In holding these provisions to be unreasonable and unenforceable as to Wallace the court said, 42 Cal.2d at page 185, 265 P.2d at page 887: 'A city has no more right to adopt an amendment which does not come within the purposes of the rule permitting modifications than a private insurance carrier would have to change an annuity policy by making a unilateral amendment under which the insured's interest might be terminated upon his conviction of a felony.'

We find no merit in the argument of the city that if in the future salaries are reduced below the June 5, 1951 level pensions will then receive more than they would be entitled to under the fluctuating scale, and in the...