Hostetter v. City of Los Angeles

FORD, J.

— The question presented on this appeal is whether the City of Los Angeles was entitled to deduct from each payment made to a disabled fireman an amount as a contribution to the fire and police pension fund pursuant to a provision of the city charter. The trial court held that such deduction was improper. The City of Los Angeles has appealed from the judgment granting a peremptory writ of mandate.

The petitioner, an employee of the fire department of the city, became disabled because of an injury received in the course and scope of his employment. His disability was of such a nature that he was unable to return to duty. Payments were

[398]

made to him pursuant to the provisions of section 24 of ordinance No. 89,935.

1

The challenged deduction (which counsel for the city characterize as a retention) was made on the assumption that the provisions of section 186% of the city charter

2

were applicable to each payment.

3

[399]

The city argues that the “deduction” of 6 percent of the amount of salary is actually a retention which, as credited to the fire and police pension fund, constitutes public moneys rather than an amount as to which the employee has any property interest since there is no provision for a refund of such moneys to the employee for any reason whatsoever (citing

Goodwin

v.

Firemen’s Relief & Pension Fund,

72 Cal.App.2d 445 [164 P.2d 512].) Upon such reasoning the city bases its contention that the base salary of petitioner was the salary provided for him in ordinance No. 89,935 less the amount of 6 percent for which provision is made in section 186% of the city charter, being the same amount he would have actually received had he been performing his full duties as a fireman, and that, accordingly, the petitioner was being paid “an amount equal to his base salary” as required by section 24 of the ordinance. That position is untenable. The Supreme Court rejected reasoning of that nature in