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District Court of Appeal, Second District, Division 3, California.


Civ. 13041.

Decided: May 08, 1942

J. H. O'Connor, Co. Counsel, and W. B. McKesson, Deputy Co. Counsel, both of Los Angeles, for appellants. Henry C. Rohr, of Los Angeles, for respondent.

The plaintiff, a former school teacher claiming retirement salary under the district retirement plan established in the Los Angeles City School District, brought this proceeding in mandamus against the district retirement board in charge of the operation of that plan to compel the board to pay her such salary, which they had refused to do. The case was submitted to the trial court on the pleadings and a written stipulation of facts. Judgment was given for the plaintiff, from which defendants appeal.

The stipulation of facts shows that, after plaintiff had served as teacher in the Culver City School District for six and one–half years, the last seven days of which were in the Betsy Ross School, a part of that district including the Betsy Ross School was, on February 7, 1930, regularly annexed to the Los Angeles City School District. The latter district paid plaintiff's salary for teaching between February 7, 1930, and June 30, 1930 (perhaps because she continued to teach in the Betsy Ross School, but this fact does not appear). On July 1, 1930, plaintiff was employed by the Los Angeles City School District as a teacher, and she was reemployed by it from year to year until June 30, 1939, at which time her employment with this district was “severed” because she had attained the age of 65 years. The Los Angeles City School District retirement plan was established on September 1, 1937, plaintiff elected to become a member of it, and she made payments into its funds, as required, until June 30, 1939. Since her application for district retirement salary she has been informed that these payments would be returned to her on request. The undenied allegation of the petition is that this application was made on January 18, 1940.

District retirement salaries are in addition to the general retirement benefits provided by the School Code for all teachers and other employees in the public school system of the state, and are provided for in part V of division V of the School Code, consisting of sections 5.1100 to 5.1111 as added by St.1937, p. 154 et seq. Upon an authorizing vote of the qualified electors of a school district, the governing board of such district must establish a plan for a “district retirement salary” for teachers and such other employees as it may determine. § 5.1101. Section 5.1103, dealing with the contents of such a plan, provides for a retirement salary which may be either a fixed sum or a variable amount based upon the amount of the earnings of the employee, subject to such provisions as may be made in said plan for minimum benefits. Section 5.1104, covering the same subject, as amended in 1937, provided, in part: “Every district retirement plan adopted pursuant to the provisions hereof, shall provide that only those teachers and other employees who have served as teachers or employees of the district for at least twenty years of full time service immediately preceding such retirement, and who shall have reached a minimum age specified in such district retirement plan, which age shall not be less than sixty years, shall be entitled to a district retirement salary; provided that such plan may provide for the retirement of teachers or other employees on account of disability after fifteen years of service immediately prior to the retirement, the proportion of the disability retirement salary to the full retirement salary to be specified in the plan.”

The stipulation of facts does not state that plaintiff has retired but merely that her employment was “severed,” by reason of her age. However, it does appear that she had served more than three years continuously in the Los Angeles City School District, from which it would follow that she had attained the status of a permanent teacher. See School Code, § 5.500, as amended by St.1935, p. 1880. This being so, the severance of her employment by reason of her having reached the age of 65 must be regarded, under sections 5.505 and 5.506 of the School Code, as added by St.1935, pp. 1881, 1882, as a retirement on account of physical disability.

It will be noted from the foregoing statement of the facts that the plaintiff does not have the twenty years' full time service as a teacher of the Los Angeles City School District which is required by section 5.1104 to entitle her to a district retirement salary; nor does she have the fifteen years of service immediately prior to retirement necessary under that section to entitle her to a disability retirement salary, unless she may properly add her six and one–half years of service in the Culver City School District to her service in the Los Angeles City School District in computing her service for that purpose. She contends that these two periods of service may be so aggregated, calling attention to the fact that the part of section 5.1104 providing for disability retirement salary does not expressly require the fifteen years' service to be in the district. In spite of that omission, we think such a requirement must be read into the section by construction. The general provision for a district retirement salary expressly and clearly limits the right thereto to those who have served as teachers or employees of the district for at least twenty years. The provision for disability retirement is attached to this general provision as a proviso or limitation. It purports to decrease the required period of service in case of disability retirement but not to remove the limitation as to the place of service. If it had the effect last mentioned it would dispense with the necessity of any length of service at all in the district as a condition of district retirement––a result not likely to have been intended by the legislature. A proviso in a statute limits the principal part of the statute “only as far as it expressly or impliedly purports to do so.” McAlpine v. Baumgartner, 1937, 10 Cal.2d 409, 417, 74 P.2d 753, 757. A proviso “is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms.” McAlpine v. Baumgartner, supra, 10 Cal.2d at page 418, 74 P.2d at page 757; Dufton v. Daniels, 1923, 190 Cal. 577, 580, 213 P. 949. We therefore conclude that the whole period of service specified in the proviso here must have been in the district from which the retirement salary is sought.

In 1939 the legislature added section 5.1104a to the School Code, which reads as follows: “Any district retirement plan heretofore or hereafter established by a governing board which governs more than one district may provide that service by any teacher, or other employee included in said plan, in all of the districts in which such teacher or other employee has served and for which said plan is adopted may be counted in the aggregate in determining eligibility toward retirement. The provisions of this section shall apply to any district which has become a part of any district for which a retirement plan is established by annexation, merger, consolidation or in any other manner.” Stats.1939, ch. 58, p. 481, § 5.1104a. Plaintiff contends that this provision applies to her case and gives her the right to aggregate her periods of service in the two districts and thus obtain a retirement salary from defendants. No such effect can be given this section. It deals with “districts,” as such, not with territory constituting only a part of a district. The Culver City School District, in which plaintiff served, was not, at the time of her service, one of the districts for which the plan operated by defendants was adopted, and it has never since become a part of any such district; hence neither sentence of section 5.1104a can aid her. Moreover, this section merely extends a permission to the board establishing a district retirement plan, on which, so far as appears, that board here has not acted.

Plaintiff urges upon us in argument certain purported provisions of the retirement plan adopted in the Los Angeles City School District and contends that they authorize her to count her Culver City service toward the service necessary for a retirement salary. These provisions are not set forth in the pleadings or in the stipulation of facts, and they are not matters of which we can take judicial notice. City of Oakland v. Brock, 1937, 8 Cal.2d 639, 641, 67 P.2d 344. We cannot, therefore, consider them; but if they were properly before us they could not be permitted to override the provisions of law above considered which limit the terms of such a plan.

The judgment is reversed and the trial court is directed to enter judgment for the defendants.

SHAW, Justice pro tem.

SCHAUER, P. J., and SHINN, J., concurred.