City of Long Beach v. Allen

FOX, J.

Harold J. Irwin joined the Long Beach Police Department as a patrolman on March 25, 1942. He was assigned to duty as a motorcycle patrolman on November 1, 1944. He was killed on March 20, 1945, while in the performance of his official duties. He left two minor children—Joyce Ann and John Richard—who, as such, are entitled to a fluctuating pension “in an amount equal to one-half (½) of the salary attached to the rank or position” (§187(4) of the city charter) which their father held in the department at the time of his death.

Under the provisions of the initiative salary ordinance of 1926, the salary for patrolman was set up on a five step plan. This plan has been carried through subsequent salary ordinances for the position of patrolman and motorcycle patrolman. The salary ordinance in effect on the date of Irwin’s death provided for an initial salary at the “a” rate for the first six months of employment and a salary at the “b” rate for the second six months. After one year the employee was entitled to receive pay at the “c” rate; after two years at the “d” rate; and after three years at the “e” rate. These step increases were automatic upon the employee’s serving the required respective periods. At the date of Irwin’s death he lacked five days of having completed three

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years’ service as a member of the police department and was being paid at the “d” rate for motorcycle patrolman, viz., $249 per month.

The trial court found that “at the time of his death said Harold J. Irwin was receiving the “d” rate of pay and lacked but five days of having completed three years of service as a motorcycle patrolman, which at that time would have entitled him to receive the highest or “e” rate of pay. That the pension of the cross-complainants Joyce Ann and John Richard Irwin should have been based upon the “e” rate of pay ...” Judgment was accordingly entered for them based on the highest rate of pay for their father.

The city takes the position that the pension of the children should be based on the “d” salary rate which their father was actually receiving at the time of his death. The city’s position must be sustained.

We must start with the basic premise that the children derive their pension rights through their father and by reason of his position as a member of the Long Beach Police Department. That position carried with it a “d” salary. The children became entitled to a pension immediately upon the death of their father. That pension was fixed by the charter as one-half of the salary attached to the position which Irwin held in the police department at the time of his death. The salary attached to the position that he held was the amount fixed by ordinance that was payable to him monthly for his services. That was the “d” salary for motorcycle patrolman. The children were therefore entitled to one-half of that amount as a pension. At the time of his death Irwin was not entitled to an “e” salary rate. Since the children derive their pension rights through their father they cannot be entitled to a pension based on a salary rating their father had never received and which he admittedly was not entitled to receive. In this connection it should be noted that as a member of the police department Irwin was required to pay a certain percentage of his monthly salary into the pension fund. (See