Plaintiffs, 36 in number, brought this action for a declaration of their rights to pensions under the charter of the city of Long Beach. Nineteen of the plaintiffs are employees of the police or fire departments. The remaining 17 have retired as members of one or the other department. Plaintiffs appeal from portions of the judgment, and the questions involved are common to all of them.
Under section 187 of the city charter, a member of either department could retire after 20 years of service and would be entitled to receive as a pension 50 per cent of the amount of salary received by him one year prior to retirement, plus 1 2/3 per cent thereof for each year of service in addition to 20 years and not to exceed 30 years. On March 29, 1945, section 187.1 of the charter was adopted. This section purported to repeal section 187 and, with a single exception to be mentioned, to terminate all rights to retirement pensions. In Kern v. City of Long Beach, 29 Cal.2d 848 [179 P.2d 799], it was denied the effect of a general repeal upon the ground that those who were members of either department at the time of the attempted repeal had "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." (P. 856.)
Section 187.1 contained a proviso to the effect that any member of either department who had served 20 years or more on the effective date of the amendment, March 29, 1945, would be entitled to retire at any time within five years thereafter and to be paid a pension of such percentage of his salary as he would have been entitled to receive had he retired on the effective date of the amendment.
After the Kern case was decided, the question arose whether this proviso was effective to place a limitation upon the amounts that might be earned by continuous service under the plan established by section 187, namely, an increase at
In the Allen case the District Court of Appeal was asked to reverse its holding in the Palaske case and declined to do so, adopting as a part of its opinion the following from the former decision (p. 28): "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." Plaintiffs now ask us to disregard the quoted holding in the Kern case and also to disapprove of the holdings in the Palaske and Allen cases to the same effect. It is said that the point did not require decision in the Kern case and received practically no consideration by the court in the Allen case. We are not sympathetic to the criticism of either decision.
In Packer v. Board of Retirement, 35 Cal.2d 212, 214 [217 P.2d 660], where the point was directly involved, in referring to the decision in the Kern case, the court said: "It was recognized, however, that the employee was not entitled to any fixed or definite benefits, but only to a substantial pension, and that the statutory language was subject to the implied qualification that the governing body may make reasonable
It is contended by the present plaintiffs that the proviso of section 187.1, which limits the amount of the employee's pension, cannot stand inasmuch as the attempted repeal of section 187 was void as to vested pension rights; the proviso was not severable from the attempted complete repeal and must fall with it. This contention was urged to and rejected by the District Court of Appeal in the Palaske case and that holding was specifically approved and followed in the Allen case, the court stating (p. 27): "After due consideration of the arguments advanced by respondents, we adhere to the conclusion reached in the Palaske case, wherein this court held that the proviso in the repealing amendment saving pension rights to those who had completed the minimum term of service was separable from the invalid portion of the amendment which attempted to repeal all pension rights as to others...." In each case the court stated its reasons for so holding, and we consider them to be sound and sufficient. In each case the point was unsuccessfully urged in a petition for hearing. Being familiar with the two decisions it is not difficult for us to understand that counsel are driven to the expediency of asserting they were not well considered. However, the practice of diligent counsel of leaving no stone unturned to escape the consequences of an adverse decision is not uncommon or surprising. Here it is unavailing. Not only are we well satisfied that the former decisions reflect the mature judgment of the court on the points decided, but after giving the problems independent consideration we are fully in accord with the reasoning and the conclusions of the District Court of Appeal in both the Palaske and Allen cases.
In the present action, following the former decisions, the court determined that each of the plaintiffs is entitled to receive as a retirement pension provided by section 187 such percentage of his salary as he would have been entitled to
It was determined by the judgment that the requirement that employees must retire within five years after March 29, 1945, in order to preserve their pension rights, was inoperative and void. The validity of this provision of the judgment is not here involved.
The judgment, as to the portions appealed from, is affirmed.
Wood (Parker), J., and Vallee, J., concurred.
A petition for a rehearing was denied June 12, 1951, and appellants' petition for a hearing by the Supreme Court was denied July 19, 1951.