Daly v. Otis

California Court of Appeal May 29, 1928 No. Docket No. 5909.Published

Before: Sturtevant

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Holding. The court held that the plaintiff was entitled to a pension because the record failed to establish that his dismissal from the police department was for any of the specific causes that would trigger a forfeiture of pension rights under the city ordinance.

Issues

Whether the plaintiff's dismissal from the police department resulted in a forfeiture of his pension rights under the city ordinance.
Whether the record sufficiently established that the plaintiff was dismissed for a cause that would disqualify him from receiving a pension.

Disposition. reversed

Quotations verified verbatim against the opinion

“It thus appears that on the undisputed facts the plaintiff heretofore became eligible to receive a pension and nothing appears on the face of the record showing that he has forfeited that right.”

STURTEVANT, J.

The plaintiff commenced an action against the defendants to obtain a writ of

mandamus

commanding the defendants to draw a warrant in favor of the plaintiff in payment of an alleged pension. The defendant answered and a trial was had before the court sitting without a jury. The trial court caused a judgment to be entered in favor of the defendants and the plaintiff has appealed. He has brought up what purports to be the judgment-roll, but it contains no findings.

The city of Alameda is governed under a freeholders’ charter. (Stats. 1917, p. 1752.) That charter created the office of city manager. The city manager has the power to appoint a chief of police and subordinate police officers; to make rules and regulations for the government of the police department; and to remove by dismissal officers from the police department. (Art. 7, sec. 8.) It is provided in section 10 of the same article as follows: “Any charge brought by the city manager against a member of the police department or fire department who has been in the service of the city for five years at the time of the taking effect of this charter, which charge, if sustained, would warrant dismissal, shall be heard and determined by a board to be known as the police and fire board. Said board shall consist of the mayor, the police judge and the city attorney. A majority vote shall control. Any charge involving a penalty less than dismissal shall be determined by the city manager.” It is not required by the provisions of any statute, ordinance, or rule, properly before us, that any of the proceedings regarding a charge be reduced to writing, nor that any records be made thereon. By an initiative measure a pension ordinance was adopted March 21, 1925. The plaintiff entered the police department November 10, 1911, and continued to act until November 9, 1925. From anything contained in the transcript it does not appear whether the city manager had promulgated any rules. Under the settled law of this state no question of fact may be presented to courts of appeal in the briefs of counsel except such matters as may be quoted from the tran

[244]

scripts on file.

(Johnston

Daly v. Otis

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STURTEVANT, J.

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