Skaggs v. City of Los Angeles

• Decision Date: 22 October 1954
• Citation: 43 Cal.2d 497,275 P.2d 9
• Court: California Supreme Court
• Parties: Heber A. SKAGGS, Plaintiff, Respondent and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Board of Pension Commissioners of the City of Los Angeles, Defendants, Appellants and Respondents. L. A. 22977.

Page 9

275 P.2d 9

43 Cal.2d 497

Heber A. SKAGGS, Plaintiff, Respondent and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Board of Pension Commissioners of the City of Los Angeles, Defendants, Appellants and Respondents.

L. A. 22977.

Supreme Court of California, In Bank.

Oct. 22, 1954.

Morris Lavine, Los Angeles, for plaintiff and appellant.

Roger Arnebergh, City Atty., Bourke Jones and John J. Tully, Jr., Asst. City Attys., Los Angeles, for defendants and appellants.

SCHAUER, Justice.

From a judgment awarding plaintiff the recovery of certain sums found to be due him as pension payments from the city and declaring his right to receive the pension in the future, both parties appeal. Defendant attacks the judgment in its entirety, while plaintiff appeals from the portion thereof which denies him recovery of pension payments for a period of some five years preceding the date from which the court determined the past due payments should be computed. We have concluded that plaintiff should prevail with respect to both appeals.

The facts are not disputed and findings were waived by the parties. On April 1 1925, plaintiff became a police officer of the City of Los Angeles, and on April 1, 1945, he completed 20 years of aggregate service in the police department and became eligible to retire upon a service pension. During his period of service to the city, four per cent of his salary was deducted and paid into the police pension fund as required by section 186 1/2 of the Los Angeles city charter. Some three months later, on July 4, 1945, he was arrested on suspicion of having committed bribery on the previous day, and on July 5, 1945, the chief of police relieved plaintiff from duty and filed against him charges of conduct unbecoming an officer. ¹ The charges, set forth in five counts, concerned plaintiff's conduct in connection with charges then pending against one Kelly Petillo. On July 9, 1945, plaintiff filed an application for a hearing before a board of rights on the charges against him, and on the same day applied to the board of pension commissioners for retirement upon a service pension.

In April 1946, plaintiff was convicted of bribery in the superior court, based upon the same matters as those set out in the charges which the chief of police had filed against him. Plaintiff appealed.

Some three months later, on July 23, 1946, the board of rights, following a hearing and with the conviction in the criminal case before it, found plaintiff guilty of three of the counts filed by the chief of police and as penalty ordered that plaintiff be removed from his position in the police department. The following day the chief of police executed the order of removal, declaring it effective as of July 5, 1945 (the day the chief had relieved plaintiff from duty and filed the charges against him). ²

In May, 1947, the district court of appeal reversed plaintiff's superior court conviction on the bribery charges (People v. Skaggs (1947), 80 Cal.App.2d 83, 181 P.2d 390) and on August 12, 1947, he was acquitted upon a new trial. On September 8, 1947, he filed with the chief of police a request to be reheard on the matter of his removal. The chief denied the request on September 30, 1947, and on January 6, 1948, the district court of appeal denied plaintiff a writ of mandate to compel his reinstatement as a police officer and the payment of salary from the date of his removal. (Skaggs v. Horrall (1948), 83 Cal.App.2d 424, 188 P.2d 774.) The following month, on February 24, 1948, the board of pension commissioners denied plaintiff's application for retirement on service pension. In November, 1948, plaintiff again asked the chief of police for a rehearing upon his removal and in December, 1948, the chief again denied the request.

On February 16, 1951, plaintiff filed with the Los Angeles city clerk and with the board of pension commissioners a claim for some $8200 as pension payments commencing as of July 9, 1945 (the date he had applied to the board for retirement on pension), with interest thereon, and to have monthly pension payments in sums fixed by the city charter continue during plaintiff's life. Four days later (on February 20, 1951), before the claim was acted upon, plaintiff filed this action for recovery of past accruing pension payments and to establish his right to future payments. The court concluded that he was entitled to the pension, but that by reason of the claim provisions found in section 376 of the city charter his right to recover past installments was limited to the period commencing six months prior to February 16, 1951 (the date he filed the claim with the city clerk and the board of pension commissioners). Judgment was entered accordingly.

As grounds requiring reversal of the judgment defendant first urges the bar of the three-year statute of limitations found in subdivision 1 of section 338 (see also section 312) of the Code of Civil Procedure, which applies to 'An action upon a liability created by statute, other than a penalty or forfeiture.' Although more than five and one-half years elapsed between the date the chief of police relieved plaintiff from duty and the filing of this action, it was expressly held in Dillon v. Board of Pension Com'rs (1941), 18 Cal.2d 427, 431, 116 P.2d 37, 136 A.L.R. 800, that 'The running of the statute of limitations * * * is tolled during the period of the board's (Board of Pension Commissioners of Los Angeles) deliberations, that is, from the time the claim (pension application) is filed until the board's decision is rendered.' Here, as already stated, plaintiff applied to the pension board for retirement on July 9, 1945, but the board did not act upon plaintiff's application until February 24, 1948. Since plaintiff filed this action on February 20, 1951, it was within the three-year period, exclusive of the period of the board's deliberations. There is no merit in defendant's suggestion that plaintiff's 'misbehavior' prevented the pension board from acting during the period (from July 9, 1945, to July 24, 1946) between the date he applied for a pension and the date the chief of police executed the order removing him from office, and that therefore the limitations statute was not tolled during such period. MacIntyre v. Retirement Board of City & County of San Francisco (1941), 42 Cal.App.2d 734, 737, 109 P.2d 962, relied upon by defendant, did not involve the statute of limitations, and, in addition, the statement in the opinion that 'Appellants have not permitted respondents (the board) 'to act," referred to the mandamus action instituted by appellants and not to charges of misconduct filed against them in the police department.

Defendant next contends that the trial court erred in receiving in evidence and considering the provisions of Los Angeles city ordinance 67778. ³ The pension provisions applicable to members of the police department are found in Article XVII (i. e., sections 180-189) of the city charter. Section 181 as it read at the time plaintiff applied for retirement (Stats.1927, p. 2008, et seq.) provided, so far as here material, 'that after twenty years' aggregate service, on request of such member (of the police department) who shall have become a member * * * prior to the taking effect of his amendment, or by the board for the good of the department, such member shall be retired and paid in equal monthly installments * * * a limited pension as follows: * * *.' Plaintiff became a member of the department in 1925, 'prior to the taking effect of this amendment' in 1927.

Despite the mandate of the quoted charter provision that 'after twenty years' aggregate service, on request of such member * * * such member shall be retired and paid * * * a limited pension' (italics added), defendant suggests that the provisions of section 3 of ordinance 67778 are 'incompetent, irrelevant and immaterial in that, despite the language therein contained, they are ineffectual for any purpose for they cannot change, limit or modify' the pension provisions of the charter. (See Essick v. City of Los Angeles (1950), 34 Cal.2d 614, 621, 213 P.2d 492; Montgomery v. Board of Administration, Etc. (1939), 34 Cal.App.2d 514, 520, 93 P.2d 1046, 94 P.2d 610.) Although it was held in both the Essick and the Montgomery cases that an ordinance which violates a charter limitation is ineffectual, it is not shown that the ordinance here in question does constitute such a violation since there appears to be no charter provision which precludes the city from providing by ordinance for confirmation of the fact that its employee has completed the number of years of service required to entitle him to retirement on a pension. The provision of charter section 180 that 'The Board of Pension Commissioners shall administer the fire and police pension system of the city * * *' would hardly seem to establish such a limitation.

Moreover, the declarations of section 3 of the ordinance that upon completion of the period of service specified by the charter entitling a member of the police department to retire under its provisions, the right to retire at any time thereafter 'shall be a fully matured, absolute, vested property right, reserved for such member as a constituted and granted right to retire; and no event * * * shall ever operate as a forfeiture or divestiture thereof,' rather than being inconsistent with, appear to be merely confirmatory of, the mandatory charter provisions found in section 181 (quoted hereinabove), and in accord with established principles of law applicable to pensions.

In Dryden v. Board of Pension Com'rs (1936), 6 Cal.2d 575, 578-579, 59 P.2d 104, it is stated that 'The deceased was a member of the police department for approximately fourteen years before his death, during the entire period of which he paid his required 4 per cent of each salary check received. A pension based upon such facts is not a gratuity. It is a periodical...