The above entitled appeals have been consolidated for hearing and determination upon a single set of briefs. In each, the city of Long Beach and certain of its officers have appealed from a judgment entered in an action for declaratory relief brought by members of the police and fire departments of the city wherein they sought a determination of their pension rights under section 187 of the city charter of Long Beach, which section was repealed on March 29, 1945, by the adoption of section 187.1. The effect of the repeal upon the pension rights of employees who had been in the service of the city prior to the effective date of the repeal was
The Supreme Court further stated, however, that while an employee may acquire a vested contractual right to a pension, his right is not rigidly fixed by the legislation in effect during any particular period in which he serves. "The employee does not have a right to any fixed or definite benefits, but only to a substantial or reasonable pension. There is no inconsistency therefore in holding that he has a vested right to a pension but that the amount, terms and conditions of the benefits may be altered." Following this reasoning, it was held by this court in the Palaske case, supra, that an employee who had not completed the minimum term of 20 years' service at the time of the repeal was entitled upon retirement after 20 years' service to a pension of 50 per cent of his annual salary, but that since the city had the power to make reasonable modifications in the system, such employee had no vested right to earn the additional pension permitted under the terms of section 187 by continuing in the service after he became eligible for retirement.
The findings and judgments of the trial court herein were made on July 6, 1949. (The decision of this court in the Palaske case was filed on July 29, 1949.) The trial court found that the plaintiffs in each case were entitled to retire on a pension of one-half of the salary attached to the rank held by the respective plaintiffs one year prior to the dates of their respective retirements after serving the minimum term (20 years in the Allen case and 25 years in the Adams case) plus an additional pension of 1 2/3 per cent for each additional year of service up to the maximum authorized by section 187 prior to its repeal. The court further found that the employees in the Allen case will be entitled to a disability pension as outlined in section 187 and further, that the city auditor was not authorized or required to make any deductions
It is the position of appellants that under the decision in the Palaske case, supra, none of the respondents are entitled to a pension in excess of 50 per cent; that certain respondents in the case of Adams v. City of Long Beach, Civil No. 17544, who did not enter the permanent classified service of the city until after the effective date of the repeal on March 29, 1945 (having been theretofore employed on a temporary basis), are entitled to no benefits whatsoever under section 187; and, with respect to the finding that the auditor was not authorized to make deductions from the plaintiffs' salaries, that such finding should stand if the decision in the Palaske case is held applicable, but that if the city is required to pay the increased pension under section 187 then it should be entitled to make the deductions authorized by section 187.
Respondents contend that their right to increase their retirement benefits by continuing in their employment with the city, as authorized by section 187 prior to its repeal, was an important and integral part of their contract with the city, and that this point was determined in their favor in the Kern case, supra, where the Supreme Court said (p. 856): "Accordingly, we conclude that petitioner has a vested pension right and that respondent city, by completely repealing all pension provisions, has attempted to impair its contractual obligations. This it may not constitutionally do, and therefore the repeal is ineffective as to petitioner." The point is made that when the Supreme Court rendered its decision in the Kern case the employee had served 22 years, or 2 years over the required minimum, and that the court did not limit his pension to one-half his salary, but ordered that a peremptory writ of mandate issue "directing respondents to grant petitioner's application for a retirement pension as provided by section 187, subdivision (2), of the city charter before the repeal." Respondents also rely upon the language of the court in the Kern case that "... The permissible scope of changes in the provisions need not be considered here, because the respondent city, with a minor exception, has repealed all pension provisions." By this language, it is contended, the Supreme Court properly characterized section 187.1 as an outright repeal.
Respondents further contend that "the theory of implied modification as contended for by appellants, is contrary to settled principles of law," in that the attempted outright
Respondents urge that the decision of this court in Palaske v. City of Long Beach, supra, is not determinative of the question here. They point out, first, that in their complaints they alleged, and the trial court found, "that in accepting and continuing in said employment with the city of Long Beach as aforesaid, each and all of said plaintiffs relied upon the provisions of section 187 of the city charter of said city and the various benefits therein provided, including the right to earn and receive a retirement pension upon the completion of 20 or more years of service, as provided by subdivision (2) of said section 187; that during the past 10 years numerous opportunities of engaging in other employment which would have paid a higher current rate of compensation than that actually being received by plaintiffs and each of them from the defendant city, was offered to each and all of said plaintiffs, but that in reliance upon the belief that they were earning the right to receive the various benefits provided by said section 187, plaintiffs and each of them continued to serve in the police or fire department of said defendant city as aforesaid." This reliance element, it is said, was not pleaded or considered in the Palaske case. "In the Palaske case, however," say the respondents, "the principal question before the court related to the right of the petitioner to have the time served by him in the armed forces counted towards his retirement pension.... and although the decision does concededly contain language which supports appellants' position, the net result of the decision was to hold that Palaske was not
"Applying the principles set forth in Kern v. City of Long Beach, supra, it appears that it was within the power of the city to modify its pension plan to provide that on and after the effective date of the amendment an employee who was entitled to retire might do so or not, as he saw fit, but that if he chose to continue as an employee he could not thereby earn any additional pension above that to which he was entitled on the effective date of the amendment.
".... .... .... .
"We are in accord with appellants' contention that since the city had the power to modify the pension plan although it could not repeal it altogether, that section 187.1 should be construed as effective to limit respondent's pension right to 50 per cent of his salary. While the attempted repeal of all rights was void, the provision limiting pension rights is separable therefrom. It appears from the amendment that the electors of the city intended to reduce the liability for pensions created under section 187 to the extent of their power constitutionally to do so, and intended to preserve pension rights only to those who were eligible for retirement on the effective date. Although they could not deprive respondent and others similarly situated of all pension rights, they had the power to modify such rights, and it would seem to follow, therefore, that respondent is entitled only to those rights accorded by the amendment — that is, a limited pension. Those who were eligible for retirement on the effective date were entitled to the pension they had earned on the effective date and no more, while those who reached the 20-year mark subsequent to the effective date became eligible for retirement on a 50 per cent pension and no more."
"Sec. 9. CERTIFICATION IN ABSENCE OF LISTS: PROVISIONAL APPOINTMENTS. When no priority or eligible list exists for a position under the classification for which the requisition has been made by the appointing power, and when no priority or eligible lists exist for other classifications of similar nature and duties, the Board may certify names of persons deemed by it to be best qualified for such position, such persons having prior thereto submitted to the Board evidence of experience and ability to perform the duties of the position to be filled. All appointments made pursuant to such certification shall be temporary and shall remain in force only until such time as a priority or eligible list is provided for such classification and a regular appointment can be made to fill the position but in no event shall such temporary appointment be effective for a period in excess of 150 days." (Emphasis added.)
The employees here involved were given temporary positions in the absence of eligible lists for the positions of patrolman or fireman, their appointment letters reading in part as follows: "Your appointment is for a temporary period of time only, and your services hereunder may be terminated at any time by the City Manager, and your said appointment shall in no event be effective, or remain in force, for a period in excess of 150 days from said effective date of this appointment." These employees each received two or more provisional appointments before they received permanent appointments after passing competitive examinations. The examinations were held and permanent appointments made subsequent to the effective date of the repeal of section 187.
It is the position of appellants that these temporary appointments expired by their own terms and by operation of law at the end of 150 days, and if the employees were to remain in the service of the city after such period a new temporary appointment or contract had to be made. At the time these employees filed applications to take competitive examinations for permanent positions, section 187 of the charter had been repealed, and therefore the provisions of said section did not constitute a part of any contract of employment between them and the city. It is true they had hopes of passing the examinations and receiving permanent appointments, but there was no assurance that they would pass such examinations or pass the strenuous physical examination required under the civil service rules.
Subdivision (5) of section 187 provided, with reference to the police department, that "For the purpose of the provisions contained herein the Police Department shall consist of all members of such Police Department appointed under civil service rules and regulations and sworn in, as provided by the provisions of the Charter of the City of Long Beach, and including such members of such departments as are not required to be under civil service rules and regulations, to perform the duties of a regular police officer of the City of Long Beach under whatever designation they may be described in any salary or departmental ordinance providing compensation for the members of said Police Department; ...." (Emphasis added.) A similar provision is contained in the section with reference to the fire department.
It is respondents' position that the manner of appointment had solely to do with the civil service status of these employees, that is, whether or not they were subject to summary dismissal, but that their right to a pension should be determined solely by the provisions of section 187 just quoted. They performed the same duties as regular members and deductions were made from their salaries. The construction urged by appellants, it is said, is contrary to the settled principle that pension statutes are to be liberally construed in favor of the prospective pensioner. Reliance is placed upon the cases of Giese v. City of Los Angeles, 77 Cal.App.2d 431 [175 P.2d 562], and McKeag v. Board of Pension Commissioners, 21 Cal.2d 386 [132 P.2d 198]. It is further argued that the failure of the chief examiner to perform his duty of holding examinations in order to provide eligible lists should not be permitted to prejudice the rights of these employees; that although the appointments were temporary in form, in substance they constituted permanent positions, citing Powers v. Board of Public Works, 216 Cal. 546 [15 P.2d 156].
The judgment in Allen v. Long Beach, Civil No. 17545 (Superior Court No. LBC-14131), is modified as follows: The third paragraph thereof is amended by adding thereto the words "provided, however, that said contractual rights are limited, with respect to a retirement pension, to an annual pension equal to one-half of the salary attached to the rank held by such plaintiff or plaintiffs one year prior to the date of their respective retirements, and no more."
The fourth paragraph of said judgment is modified by striking therefrom the words "and an additional one and two thirds per cent (1 2/3%) of such salary for each year over twenty (20) years and less than thirty (30) years in the aggregate served by such member before retirement, or a maximum pension equal to two-third (2/3rds) of the salary attached to such rank for an aggregate service of thirty (30) years or more in any capacity or rank whatever, in either of such Departments."
The next to the last paragraph of said judgment, reading "It is further ordered, adjudged and decreed that such of the plaintiffs as have already been retired are entitled to recover from the defendant, CITY OF LONG BEACH, the difference, if any, between the amounts already received by them on
The judgment in Adams v. Long Beach, Civil. No. 17544, Superior Court No. LBC-14130, is modified as follows:
The third paragraph thereof is amended by adding thereto the words "provided, however, that said contractual rights are limited, with respect to a retirement pension, to an annual pension equal to one-half of the salary attached to the rank held by such plaintiff or plaintiffs one year prior to the date of their respective retirements, and no more."
The fourth paragraph of said judgment is modified by striking therefrom the words "and an additional one and two-thirds per cent (1 2/3%) of such salary for each year over twenty-five (25) years and less than thirty-five (35) years in the aggregate served by such member before retirement, or a maximum pension equal to two-thirds (2/3rds) of the salary attached to such rank for an aggregate service of thirty-five (35) years or more in any capacity or rank whatever, in either of such Departments."
The judgment is further modified by adding thereto the following:
"That the plaintiffs Victor W. Armitage, Thomas Jack Bradley, William R. Carter, Truman W. Cleveland, Donald A. Fox, William H. Hocking, Virgil M. Jones, William T. Jones, Kenneth K. King, Herbert L. Lindbergh, John W. Makemson, Robert H. Morgan, Harold R. Morse, Phillip E. Stanson, John William Whatley, Jr., and George Thomas Walters, are not entitled to any pension benefits under said section 187 of the Charter of the City of Long Beach."
As so modified, the judgments are affirmed, without costs to either party.
Doran, J., and Drapeau, J., concurred.
A petition for a rehearing was denied January 2, 1951, and respondents' petition for a hearing by the Supreme Court was denied February 5, 1951. Carter, J., voted for a hearing.