Rumetsch v. City of Oakland

California Court of Appeal Nov 9, 1933 No. Docket No. 9047.Published

Before: Nourse

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Holding. The court held that the term "ten years of service" in the Oakland city charter requires ten years of active performance of duties as a police officer, rather than mere membership in the department while on retirement. Consequently, a widow is not entitled to a pension under section 96, subdivision 2, if her husband did not complete ten years of active service.

Issues

Whether "ten years of service" under the Oakland city charter implies active performance of duties or mere membership in the police department.

Disposition. reversed

Quotations verified verbatim against the opinion

“We cannot escape the conclusion that the expression means just what the words imply—ten years of service as a police officer”

“though one may be a “member” of the department for certain purposes while retired from duty and pensioned he is not during the period of retirement an “active member” or one performing “service” as such officer.”

NOURSE, P. J.

The petitioner commenced this proceeding in

mandamus

to require the trustees of the police relief and pension fund to award her a pension. Her application had been denied by the trustees after a hearing. She had judgment in the superior court.

The facts are undisputed. Herman Rumetsch entered the police department of the City of Oakland on December 16, 1911; on November 15, 1917, he was injured while in the performance of his duties; on April 1, 1919, he was retired on a pension which he was paid until the date of his death—March 1, 1931; he performed no police duty after the date of his injury.

The petitioner is the surviving widow of Herman Rumetsch. She seeks relief under the provisions .of section 96, subdivision 2, of the Oakland city charter, ■ which reads: “When a member of the Department shall die from causes other than those specified in Subdivision (1) of this section after ten years of service, then his widow, and if there be no widow, then his children, and if there be no widow or children, then his mother, if dependent upon him for support, shall be entitled to the sum of One Thousand (1,000) Dollars.”

The single question involved in this proceeding is whether the word “service” as used in the foregoing paragraph implies merely membership in the department or whether it means the performance of services or duties as such member. The charter uses the word to convey both meanings. Section 95 provides that any member of the police department who has become physically disabled “may be retired from the department upon an annual pension” and that when his disability shall cease he shall be “restored to the service”. Section 102, relating to the fire department, authorizes the trustees to “retire and relieve from service” any member of the age of fifty-five unfit for duty, and also to retire any member on his own request “who has served twenty-five years”. Section 103 permits the retire

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ment of firemen disabled in the performance of duty and provides that when his disability shall cease “he shall be restored to the service”. Section 94, relating to the police department, authorizes the trustees to “retire and

Rumetsch v. City of Oakland

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NOURSE, P. J.

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