Burger v. Employees' Retirement System

DOOLING, J.

Plaintiff appeals from a judgment in an action for declaratory relief. Plaintiff is a retired member of the fire department of the city and county of San Francisco

[701]

engaged in gainful employment. He was retired, not because of disability, on a pension on November 14, 1944, and at all times involved in this action he was under the age of 62 years.

The San Francisco charter prior to January 16, 1945, in section 163 thereof contained the following provision:

“Should any retired person, except persons retired for service prior to January 8, 1932, and persons retired because of disability . . . engage in a gainful occupation prior to attaining the age of sixty-two, the retirement board shall reduce that part of his monthly pension . . . which is provided by contributions of the city and county, to an amount which, when added to the amount earned monthly by him in such occupation, shall not exceed the compensation on the basis of which his pension . . . was determined.”

On January 16, 1945, the Legislature approved an amendment to this charter section which had been ratified by the voters at the election of November 7, 1944. By this amendment the language above quoted was cast into a paragraph designated “(b)” and the following language was added to the section:

“The provisions of paragraph (b) of this section shall be inoperative during the existing war between the United States and the Axis powers and for six (6) months after the termination of said war.”

The question presented is whether the “termination of said war,” as that language is used in the amendment quoted, occurred on December 31, 1946, with the President’s official declaration of the cessation of hostilities, thereby making paragraph (b) section 163 of the charter again operative six months thereafter. The trial court by its judgment so determined and further adjudged that after June 30, 1947 (six months after December 31, 1946) paragraph (b) of section 163 became again operative and “the deduction . . . from the monthly pension ... of Thomas J. Burger for the month of July, 1947 (the month put in issue) as a result of Thomas J. Burger’s earnings from outside gainful occupation during said month, was, and is, proper under the provisions of section 163 of the Charter. ...”