Begley v. City of Berkeley

BRAY, J. Plaintiff appeals on the judgment roll alone from an adverse judgment entered upon an order sustaining demurrer without leave to amend to his complaint for a writ of mandate to compel defendants to grant him a certain pension.

Question Presented

Does plaintiff have any standing under the Berkeley firemen’s pension ordinance?

Facts

Prior to October 30, 1909, plaintiff became a member of the Berkeley Fire Department and has never resigned nor been discharged. In 1934 he became disabled as a result of injuries received in active service. He was then granted a disability pension under the provisions of the Firemen’s Relief and Pension Law.* He has been paid and is being paid an amount equal to one-half of the salary currently paid to the rank of captain. Berkeley adopted ordinance Number 2188-N.S. effective April 28, 1938. This ordinance was amended by ordinance Number 2254-N.S. effective April 20, 1939.† The state law provides that any person retired for disability shall report quarterly to the department. Plaintiff did this regularly from 1934 to October 30, 1939, and kept himself and has continued to keep himself available for emergency service. On that date he was told not to report further. He then (and some 30 years after he first joined the department) requested the form of application for a pension required by the ordinance to be provided by the fire pension board. It being refused him, plaintiff then made a written application to the board, claiming to have been a member of the department for over 30 years, and asking for a hearing to determine his status and pension rights. A hearing was denied and a determination had that he was not entitled to any pension under the ordinance.

[628]Is Plaintiff a Member of the Fire Department ?

The determination of plaintiff’s rights under the ordinance depends first upon whether he is a member of the fire department, and if so, secondly, whether there is any provision in the ordinance which because of his receiving pension under the state law excludes him from the benefits of the ordinance. The ordinance, if applicable, provides as it would affect plaintiff that “any member of the Fire Department” having served 30 years in the aggregate- is entitled to retire from the service and receive a pension of an amount equal to two-thirds of the current salary of the rank of captain. The state law provides that a fireman physically disabled by reason of bodily injury received in performance of his duty may be retired and receive the pension provided by the act. Whenever his disability ceases the pension ceases and he shall be restored to active service. He may be summoned at any time for examination as to his fitness for duty and must abide by the decision and order of the board provided by the act (a different board than the one provided by the ordinance). He must report quarterly (as above stated) and in cases of great public emergency he may be assigned to duties by the fire chief without pay. He shall receive no further pension if he fails to report himself for examination or to obey the orders of the board. “[N]o person who has resigned or been dismissed from said fire department shall be entitled to any relief from such fund ...” (Stats. 1905, p. 412.) It is clear from the above provisions that a fireman retired for disability under the state law is nevertheless still a member of the department. (See Kavanagh, v. Board of Police Pension Fund Commrs., 134 Cal. 50 [66 P. 36] ; Aitken v. Roche, 48 Cal.App. 753, 758 759 [192 P. 464]; United States v. Tyler, 105 U.S. 244 [26 L.Ed. 985]; Home v. Souden, 199 Cal. 508, 512 [250 P. 162]; Sweesy v. Los Angeles etc. Retirement Board, 17 Cal.2d 356, 360 [110 P.2d 37].)