Jordan v. Retirement Board

KNIGHT, J. —

Respondent’s demurrer to appellant’s petition for a writ of mandate was sustained without leave to amend, and from the judgment entered thereon this appeal was taken.

The purpose of the proceeding was to compel the respondent board to grant appellant’s application for a widow’s pension; and the facts of the case, as they are alleged in the petition for the writ, are as follows: Frank Jordan was appointed a member of the fire department of the city and county of San Francisco on March 31, 1905. In February, 1914, while engaged in the performance of his duties as a hoseman he was overcome with smoke, which caused an asthmatic condition, and that same month he was retired on a pension. Some nine years later, to wit, in July, 1923, he married appellant, and the marriage relationship continued

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up to the time of his death, which occurred on August 31, 1935; and it is alleged that he died as the result of the ailment for which he had been retired. Shortly after his death appellant filed her application for a widow’s pension, but it was rejected by the respondent board, whereupon she instituted the present proceeding.

The following are the charter provisions of the city and county of San Francisco necessary to be considered in determining the controversy: In 1905, at the time Jordan became a member of the department, and in 1914, at the time of his injuries and retirement, section 4, chapter VII, article IX, of the charter provided for an annual pension to be paid to any member of the fire department who became physically disabled by reason of any bodily injury received in the performance of his duty, the same “to be paid to him during his life and to cease at his death”. Also at the time of his injuries and retirement section 5, chapter VII, article IX, of the charter provided for a pension for the widow of a fireman who died as a result of injury sustained in the performance of duty within a year from the date of such injury. In 1925, which, as will be noted, was ten years or more after Jordan’s retirement and approximately two years subsequent to his marriage to appellant, said section 4 was amended, whereby, among other things, this provision was added: “provided, that should said retired officer or member die leaving a widow, such widow shall, as long as she may remain unmarried, be paid an annual pension equal to one-half the salary attached to the rank held by said officer or member of the Department at the time of his retirement . . . .” In 1929, section 5 was amended so as to provide that if a member of the fire department died as a result of any injury received during the performance of his duty, or from sickness caused by the discharge of his duty, his widow, as long as she remained unmarried, was entitled to a pension equal to one-half of the salary attached to the rank held by the decedent at the time of his death. And in 1932, which, as will be observed, was some three years prior to Jordan’s death, the city and county of San Francisco adopted a new charter, wherein the provisions relating to “Present Retired Members and Present Beneficiaries, Fire Department”, were embodied in section 170 thereof; and it was therein provided that any member