Lamb v. Board of County Peace Officers Retirement Commission

84 P.2d 183, 29 Cal. App. 2d 348, 1938 Cal. App. LEXIS 345

• Court: California Court of Appeal
• Decided: November 21, 1938
• Docket: Civ. 11857
• Status: Published

Opinions

McCOMB, J.

From a judgment in favor of respondents after the trial court sustained a demurrer .without leave to amend to a petition for a writ of mandate requiring the Board of County Peace Officers Retirement Commission of the County of Los Angeles to make an order allowing petitioner a retirement allowance petitioner appeals.

The material facts alleged in the petition for a writ of mandate are:

August 14, 1930, petitioner, a Los Angeles County motorcycle' officer, received injuries while engaged in the performance of his duty, which totally and permanently disabled him. Thereafter he was awarded permanent disability compensation by the industrial accident commission of the state of California.

December 4, 1937, he applied to the Board of County Peace Officers Retirement Commission of the County of Los Angeles for a disability retirement allowance under the 1937 amendment to the County Peace Officers Retirement Act (Stats. 1931, chap. 268, p. 477; Act 5845, vol. Two, Deering’s Gen. Laws, (1937) p. 2774). The last paragraph of section 11 of the act as amended reads as follows:

“Section retroactive. The provisions of this section shall be retroactive as to the past service of any member who shall be entitled to the benefits contained herein.” (Stats. 1937, chap. 303, p. 665; vol. Two, Deering’s Gen. Laws, (1937) Act 5848, p. 2778.) This application was denied.

This is the sole question necessary for determination:

Is a county motorcycle officer who is totally and permanently disabled at a time when there is no retirement act in force applicable to him entitled to a pension under the provisions of a subsequently enacted statute, when a later amendment to the act attempts to make it retroactive “as to the past services of any member”?

This question must be answered in the negative. A pension is a gratuity when it is granted for services previously rendered and which at the time they were rendered gave rise to no legal obligation. (O’Dea v. Cook, 176 Cal. 659, 661 [169 Pac. 366].) The law is settled that the legislature has no power to make any gift or authorize the making of any gift of any public money or thing of value to any individual, municipal or other corporation (sec. 31, art. IV, Const, of the state of California), nor does the legislature have power to grant or authorize any court or municipal authority to grant any extra compensation or allowance to any public officer after services have been rendered by him. (Sec. 32, art. IV, Const, of Calif.)

Applying the above-stated rules to the instant case, it is evident that the pension which petitioner is endeavoring to collect is a gratuity, because, due to his permanent disability, he has not rendered any service to the state or any subdivision thereof subsequent to the enactment of the law authorizing the pension which he desires.

Therefore, since it is a gratuity, the legislature was without authority to adopt the portion of section 11 of Act 5848 set forth supra, which attempted to make the provisions of the pension act retroactive, for the reason that sections 31 and 32 of article IV of the Constitution of the state of California, the substance of which so far as applicable here is hereinabove set forth, denied to the legislature the authority to grant or authorize any subdivision of the state to grant an annuity gift or extra compensation to any public officer for services previously rendered.

The eases relied upon by petitioner, such as Home v. Souden, 199 Cal. 508 [250 Pac. 162] ; O’Dea v. Cook, 176 Cal. 659 [169 Pac. 366]; Kavanagh v. Board of Police P. F. Commrs., 134 Cal. 50 [66 Pac. 36]; Jones v. Cooney, 82 Cal. App. 265 [255 Pac. 536]; Klench v. Board of Pension Fd. Commrs., 79 Cal. App. 171 [249 Pac. 46]; Aitken v. Roche, 48 Cal. [192 Pac. 464]; Sheehan v. Board of Police Commrs., 47 Cal. App. 29 [190 Pac. 51], are cases which are factually different from the instant case or where the language of the court relied upon is contrary to the constitutional provisions above mentioned.

For the foregoing reasons the judgment is affirmed.

Or ail, P. J., concurred.