Jackson v. Otis

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment against him following his failure to amend his

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complaint after a demurrer to the same had been sustained by the court. The plaintiff sues as a resident and taxpayer of Alameda County to restrain the payment of a police pension to defendant Charles E. Keyes. The individual members of the board of police pension fund commissioners of the city of Alameda and the city treasurer are joined as defendants.

Briefly stated, the demurrer raised the following question of law: Is defendant Keyes, after having been retired from the Alameda police department and placed on the pension list," prohibited from drawing his pension because of his election to and occupation of the office of constable, and is the said board prohibited from paying this pension which it desires to pay? The appellant states the question, in essence, as being whether or not the two offices, i. e., retired member of the police force upon pension and constable are incompatible within the decisions interpreting the common law, admitting that if the two are not incompatible, as that term is used in said decisions, the demurrer was properly sustained.

A copy of Ordinance No. 97 (New Series) of the city of Alameda was annexed to the complaint. It is by virtue of the provisions of this ordinance that the defendant Keyes has been receiving his pension. It provides, among other things: “Section 7. Any person retired for disability under this ordinance may be summoned before the Board herein provided for at any time hereafter, and shall submit himself thereto for examination as to his fitness for duty, and shall abide the decision of such Board with reference thereto, and all the members of the Police force who may be retired under the provisions of this ordinance shall report to the Chief of Police on the first Mondays of April, July, October and January, of each year; and in cases of emergency may be assigned to and shall perform such duty as said Chief of Police may direct and such person shall have no claim against the City for payment for such duty so performed.”

The appellant cites authorities from other jurisdictions. None of them present the precise legal situation with which we are dealing here, and although they might be somewhat helpful if we were without authority in this state upon the question, our appellate court has heretofore considered a situation very closely analogous to that presented in the