Jorgensen v. Cranston

• Decision Date: 21 December 1962
• Citation: 211 Cal.App.2d 292,27 Cal.Rptr. 297
• Court: California Court of Appeals Court of Appeals
• Parties: Mae Hull JORGENSEN, Plaintiff, Respondent and Cross-Appellant, v. Alan CRANSTON, Controller of the State of California, Defendant, Appellant and Cross-Respondent. Civ. 10415.

Page 297

27 Cal.Rptr. 297

211 Cal.App.2d 292

Mae Hull JORGENSEN, Plaintiff, Respondent and Cross-Appellant, v. Alan CRANSTON, Controller of the State of California, Defendant, Appellant and Cross-Respondent.

Civ. 10415.

District Court of Appeal, Third District, California.

Dec. 21, 1962.

Wilke, Fleury & Sapunor, Sacramento, Frederick S. Farr, Carmel Henry I. Jorgensen, Pacific Grove, for appellant.

Stanley Mosk, Atty. Gen., by William J. Power, Deputy, Sacramento, for respondent.

PIERCE, Presiding Justice.

Cross-appeals have been filed. The State Controller appeals from the judgment granting a writ of mandate to Mae Hull Jorgensen, widow of Judge Henry G. Jorgensen, directing said Controller to pay her the allowances provided by the Judges' Retirement Law as amended in 1959. Mrs. Jorgensen appeals from that part of the judgment which denies her interest.

Henry Jorgensen died on April 17, 1954, while holding office as a superior court judge. He had served in that capacity continuously for over 25 years, and was over the age of 70 years and was therefore eligible for retirement. At the time of his death his widow, under the Judges' Retirement Act (Gov.Code, § 75104), was entitled to receive the amount of the judge's accumulated contribution to the Judges' Retirement Fund, $4,232.35. She was paid this amount. Thereafter said law was twice amended as regards benefits to widows. In 1957 it was amended (Stats. 1957, c. 2065, p. 3661, sec. 4) by the addition of section 75104.4, providing (so far as pertinent here):

'The surviving spouse of any judge who dies before retirement and after becoming eligible for retirement * * * shall receive an allowance equal to one-half of the amount of the unmodified retirement allowance that would be payable to the judge were he living and retired under this chapter.'

In 1959 the first part of the section quoted above was amended (Stats. 1959, c. 2105, p. 4874, sec. 1) to read: 'The surviving spouse of any judge who dies on or after January 1, 1954, but before retirement,' etc. (Emphasis indicates amendment.) This made it a very clear expression of legislative intent that the 50% allowance was to apply retroactively to the widows of judges who had died as early as January 1, 1954. The Controller refused to make the payments to Mrs. Jorgensen as called for by the 1959 amendment, contending that said amendment insofar as it grants benefits to the widows of judges who had died prior to its enactment is unconstitutional; that it violates sections 31 and 32 of Article IV of the California Constitution forbidding, respectively, the Legislature from making Three cases, Home v. Souden, 199 Cal. 508, 250 P. 162, Sweesy v. Los Angeles County Peace Officers' Retirement Board, 17 Cal.2d 356, 110 P.2d 37, and Brummund v. City of Oakland, 111 Cal.App.2d 114, 244 P.2d 441 (hearing by Supreme Court denied), have fixed in California the rule that where a judge and his spouse are members of a retirement system under which the latter is entitled to be paid a pension (whether in lump sum or in monthly allowances) upon the judge's death, she is entitled to receive any increase in payments thereafter provided by statutory enactment or amendment (intended to act retroactively), even though such increase is enacted after the retirement or death of the judge; that allowance of such increases does not violate either the constitutional prohibition against gifts of public moneys nor against allowance of additional compensation for services already rendered by a public officer. The Controller recognizes the rule but challenges its applicability to a widow who has already beeen paid all sums to which she was entitled under the law before amendment. He also suggests (but does not urge with much emphasis) that since the benefits under the Judges' Retirement Law prior to the amendments in question, were not payable to Mrs. Jorgensen in her status as a spouse but as the judge's named beneficiary, the rule therefore is inoperative.

gifts of public money or from granting any extra compensation or allowance to a public officer for services rendered by him.

Before examining these contentions specifically, we refer preliminarily to principles which are axiomatic (but which sometimes seem to become mislaid in judicial thingking):

'If a statute * * * is unconstitutional it is void, and the courts have power to treat it as a nullity, and will do so, or such parts as are in contravention of the fundamental law. But until it is shown to be plainly and manifestly in conflict with the constitution the presumption of its validity will hold good; all doubts will be resolved in its favor. Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law.' (2 Lewis' Sutherland Statutory Construction, 2d Ed. p. 926, sec. 497; see also Lundberg v. County of Alameda, 46 Cal.2d 644, 652, 298 P.2d 1.)

Another well-established principle is pertinent to this inquiry: That 'pension legislation must be liberally construed and applied to the end that the beneficent results of such legislation may be achieved. Pension provisions in our law are founded upon sound public policy and with the objects of protecting, in a proper case, the pensioner and his dependents against economic insecurity. In order to confer the benefits intended, such legislation should be applied fairly and broadly.' ¹

The pension case in California which is closest on its facts to the instant case is Home v. Souden, supra, 199 Cal. 508, 250 P. 162. There, as here, the public employee (Home was a fireman) was a member of a retirement system providing a pension to his wife in the event of his death. (Death, under the law there involved, had to occur in the course of his duties.) There, as here, a statutory amendment increased the allowance after the death of Home in line of duty. The court construed the legislative intent to give the statute retroactive effect and it held that such construction did not place the law in violation of the constitutional prohibition against gifts. The court cited and relied upon O'Dea v. Cook, 176 Cal. 659, 169 P. 366; Aitken v. Roche Also closely similar to the instant case is Sweesy v. Los Angeles County Peace Officers Retirement Board, supra, 17 Cal.2d 356, 110 P.2d 37, although there the public officer, who was a member of the retirement system, had retired but had not died when the change in the law increasing pension benefits was enacted. He died thereafter. After finding a legislative intent to make the increase retroactive, the court held that Sweesy's widow was entitled to the increased allowance, the court saying (on page 361, 110 P.2d on page 39):

48 Cal.App. 753, 192 P. 464; Kavanagh v. Board of Police Pension Fund Commissioners, 134 Cal. 50, 66 P. 36.

'It must be accepted as the settled law of this state that unless the contrary intention plainly appears persons having a pensionable status are entitled to receive any increase of benefits which may be provided. Sweesy's pension rights vested at the time he was retired from service, that is, upon the happening of the contingency upon which the pensionable right depended.' (Emphasis supplied.)

In Sweesy, supra, as in the case at bench, the respondent had relied upon Lamb v. Board of County Police Officers Retirement Comm., 29 Cal.App.2d 348, 84 P.2d 183, in which the widow of a police officer was held not entitled to a pension. But the court in Sweesy (17 Cal.2d on page 363, 110 P.2d on page 40) distinguished the Lamb case, saying:

'The case * * * has no persuasive force herein. In that case there was no applicable pension system in existence at the time the officer was retired for disability resulting from performance of duty. The answer to the question whether a pensionable status may be created retroactively to include persons who had already been retired may not afford a guide in resolving the question whether an amendment to the pension law may afford additional benefits by way of a widow's pension to members who already had acquired a retired pensionable status under the law. It does not follow that because the pension would be a gratuity in the one case, it also is in the other.'

The Sweesy case is the first, so far as our study discloses, to use the phrase 'persons having a pensionable status.' It is used again in Brummund v. City of Oakland, 111 Cal.App.2d 114, on page 121, 244 P.2d 441, on page 445, where the court states:

'As said in the Sweesy case, supra, a pension is not a gratuity when based on services rendered under a pension statute. The pension provisions are a part of the contemplated payment for those services and in a sense a part of the contract of employment itself. Thus, petitioner's husband rendered services as a member of the fire department under a pension statute giving his wife a 'pensionable status' which was a part of his contract of employment.'

The Attorney General representing the State Controller attempts to distinguish the foregoing cases upon the theory that 'the pensionable status' concededly enjoyed both by Judge Jorgensen and Mrs. Jorgensen during his lifetime was lost, so the argument goes, at the latest when the widow received the sum of $4,232.35--all the benefits which the Judges' Retirement Law then afforded--after the judge's death. We cannot agree.

The words 'pensionable status' although not precisely defined either in Sweesy or Brummund was intended by the courts using this language to encompass the expectation in the public officer or employee and his spouse that if the former (the 'breadwinner') continues faithfully in his governmental position until his death or eligible retirement, his widow upon his death will receive not only the pension benefits then provided by the retirement system but any benefits which the Legislature, in its discretion, may thereafter provide to then active judges for the benefit of their...