Hermanson v. Board of Pension Commissioners

THE COURT.

This is a petition for a writ of mandate. Petitioner, while in the course of his duties as a member of

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the fire department of the city of Los Angeles, was injured, and on February 25, 1925, was granted a pension of $1,020 per year, for disability. He received monthly payments until March, 1927, when, without notice to him and after examination by three practicing physicians, the respondent board concluded that his disability had ceased, and terminated the pension as of March 15, 1927. Petitioner was directed to report for active duty, and refused to do so. No demand for pension payments was made by him until over three years later, when, on April 17, 1930, he made such demand. Thereafter, on or about June 3, 1930, he commenced this proceeding in

mandamus

to compel respondents to make all payments which would have been made under the pension for the three-year period, and thereafter to continue payments indefinitely. The theory of petitioner is that the order terminating the pension was void because made without prior notice to him and opportunity for a hearing; and that the pension has been in existence during this whole period and is still in force.

The trial court found that subsequent to the order of termination petitioner was not wholly disabled from performing his duties, and that he was not entitled to the writ. Petitioner appealed.

Section 182 of the Los Angeles city charter, by an amendment made after petitioner’s pension had been granted, provides that the Board of Pension Commissioners shall have power “to hear and determine all matters pertaining to the granting and termination of any pension award”, and that the board shall make written findings, based upon the report of at least three physicians, “and such other evidence concerning such disability as it may have before it”. Petitioner contends that under this section the board was exercising a judicial function, that “to hear and determine” meant to consider evidence on both sides, and that to proceed without notice to petitioner, and to terminate his pension without an opportunity for him to be heard constituted a deprivation of a vested right without due process of law.