Stamper v. City of Los Angeles

WILSON, J.

Respondent, the widow of Roscoe C. Stamper, who at the time of his death was a police officer of the city of Los Angeles, petitioned for and obtained a writ of mandate requiring the city and its pension commission to grant and allow a pension to which she alleged she was en

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titled by virtue of the provisions of the city charter. The appeal is from the judgment ordering the writ to issue.

The decedent was appointed a police officer in the Los Angeles Police Department on October 1, 1924, and remained a member of the department until his death on February 10, 1945. During the period of his service he was absent from duty without pay two days. On three voluntary signed requests he was granted leaves of absence from duty without pay and on account of sickness an aggregate of 147 days. The last day on which he worked was February 8, 1945, accounting for two days’ absence on February 9 and 10. His total absences amounted to 151 days. Deductions were made from his compensation at his regular rate of pay for the days on which he was absent. He worked overtime a total of 564 hours, or 70% days, for which he was compensated at his regular rate of pay.

Section 183 of the charter (Stats. 1927, pp. 2008, 2023)

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provides that the widow of a member of the police department is entitled to a pension if such member shall die “while eligible to retirement from such department on account of years of service.” Under the provisions of section 181 (Stats. 1927, pp. 2008, 2020) a member of the department may be retired at his own request “after twenty years’ aggregate service.”

The question is whether decedent had had twenty years’ aggregate service in the police department. If so he was eligible to retirement on the date of his death and the widow is entitled to her pension. If his aggregate service was less than 20 years he would not have been, if living, eligible under the charter to retire on February 10, 1945, consequently petitioner, as the widow of an ineligible officer, would not be entitled to a pension.

Between October 1, 1924, the date of decedent’s appointment, and February 10, 1945, the date of his death, the elapsed time was 20 years 132 days. Appellants contend that in computing the “aggregate service” of the decedent he is not entitled to credit for the 151 days’ absence by reason of the fact that he was absent from duty and off the payroll, and therefore his aggregate service was 19 days less than the required 20 years. Save for his overtime which we shall