Murphy v. City of Piedmont

NOURSE, P. J.

The petitioner sued the City of Piedmont and certain designated officials for a writ of mandate to compel them to entertain and determine her application for a pension as the widow of a former chief of the city fire department. The cause was tried on an agreed statement of facts, and the petitioner had judgment.

The conceded facts are that deceased was chief of the fire department from August 16, 1930, to December 27, 1932, the date of his death; the city is governed by a freeholders’ charter adopted February 27, 1923; on February 26, 1929,

[571]

this charter was amended by adding section 37-a, which reads as follows:

“Pension Plan: The Council, by Ordinance, shall prepare and provide a pension plan for all employees in the Police and Fire Departments of the City of Piedmont. When such a pension plan shall have been passed by Ordinance it will be retroactive from the date of the adoption of this amendment to the Charter, and on the First Thursday in September of each year, the City Council, if necessary, shall levy a tax to provide extra revenue for maintaining said pension plan.” No action was taken pursuant to this amendment until December 5, 1935, when ordinance number 68, new series, was enacted providing a complete pension and retirement plan. Section 14 of this ordinance provided that all its provisions should be retroactive and in full force from and after February 26, 1929.

In addition to the facts stipulated below the parties here concede that the matter of pensioning mmiicipal officers and employees is a municipal affair; that the retroactive provisions of the charter and ordinance are not inhibited by the Constitution, but are valid and enforceable unless they have defeated some vested‘right of the petitioner; that the charter amendment of 1929 is not self-executing; and that mandate is the proper remedy in a matter of this nature. But they do not agree that the respondents are the proper parties.

Briefly, the petitioner contends that, because there was no effective pension plan in operation under the charter when her husband died in 1932, she is entitled to proceed under the general law (Stats. 1905, p. 412; Deering’s Gen. Laws, 1931, Act 2592), and she has accordingly sued the pension board provided for by that statute. The respondents contend that the charter is controlling, that the ordinance enacted under it is the full measure of petitioner’s rights, and that the pension board created by the ordinance is the only body having jurisdiction to award the relief. It may be added that the reason for this difference between the parties is that the state law would grant petitioner a somewhat higher pension than she could recover under the ordinance.