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District Court of Appeal, Second District, Division 2, California.


Civ. 12486

Decided: April 20, 1940

Francis A. Cochran and Carl B. Sturzenacker, both of Los Angeles, for appellant. J.H. O'Connor, Co. Counsel, and Beach Vasey, Deputy Co. Counsel, both of Los Angeles, for respondents.

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 pension, petitioner appeals.

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

Norris M. Sweesy was employed as a county peace officer from January 13, 1911, to and including May 31, 1935, at which time Mr. Sweesy was retired for service by action of the board of retirement. In 1931, while Mr. Sweesy was rendering services as a peace officer, the County Peace Officers' Retirement Law (Stats.1931, chap. 268, p. 477, Act 5848, vol. 2, Deering's Gen.Laws [1937] p. 2774) was enacted, which at the time made no provision for a pension for a widow of an officer retired for service. In 1937, two years after Mr. Sweesy's retirement, section 11 of the Peace Officers' Retirement Act was amended to provide for a pension for widows of officers retired for service. 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. 2, Deering's Gen.Laws (1937), Act 5848, p. 2778.

Subsequent to the 1937 amendment Mr. Sweesy did not render any services as a peace officer. February 26, 1939, he died, leaving surviving the petitioner, who is his widow. She applied to the respondents for the pension provided for widows of officers retired for service, as set forth in paragraph 3 of section 11 of the County Peace Officers' Retirement Act. Stats.1937, chap. 303, p. 665; vol. 2, Deering's Gen.Laws (1937), Act 5848, p. 2777. This application was denied.

This is the sole question necessary for us to determine:

Is the widow of a peace officer retired from the service of a county at a time when the retirement act provides for a pension to such officer but makes no provision for a pension to his widow in the event of his death entitled to a pension under an amendment to such act adopted subsequent to the retirement of, and rendition of any services by, such officer but prior to his death, when the 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 are rendered gave rise to no legal obligation. Lamb v. Board of Peace Officers, etc., 29 Cal.App.2d 348, 350, 84 P.2d 183.

The law is established 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 Cal. 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.; Robinson v. Dunn, 77 Cal. 473, 475, 19 P. 878, 11 Am.St.Rep. 297.

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 it is conceded that her husband did not render any service to the state or any subdivision thereof subsequent to the enactment of the law authorizing the pension which she 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.

In Lamb v. Board of Peace Officers, etc., supra, it was held that an officer who was totally and permanently disabled prior to the effective date of the County Peace Officers' Retirement Act, supra, and who did not render any service subsequent to the adoption of such act, could not collect retirement compensation for his injury. There is no logical distinction between a statute which authorizes payment of pensions to retired officers passed after the retirement of an officer and one granting a pension to the widow of an officer who has been retired and renders no services subsequent to the adoption of the act, if such payment was not authorized during the time the deceased officer rendered services to the state or some subdivision thereof.

Kavanagh v. Board of Police P.F. Comm'rs, 134 Cal. 50, 66 P. 36; Jones v. Cooney, 82 Cal.App. 265, 255 P. 536; Klench v. Board of Pension Fd. Com'rs, 79 Cal.App. 171, 249 P. 46; and Aitken v. Roche, 48 Cal.App. 753, 192 P. 463, are logically distinguishable from the instant case for the reason that in these cases the statute in effect when services were being rendered and which became a part of the contract of employment, provided that the employee should receive a certain percentage of the pay attached to the rank held by him at the time of his retirement. Thus the officer in each of the cases just mentioned rendered services at a time when the statute expressly stated the basis of his compensation upon retirement.

In O'Dea v. Cook, 176 Cal. 659, 169 P. 366, plaintiff was the widow of a former member of the police department who had been injured in line of duty and died as a result of his injuries more than two years thereafter. At the time of his injury the charter of the city of San Francisco provided that the widow of a policeman killed while in the performance of his duty should be paid a monthly pension equal to one-half of the salary attached to the rank held by the decedent at the time of his death. There was no provision as to how soon the death should take place after the injuries in order to entitle the widow to a pension. After Mr. O'Dea sustained his injuries and prior to his death the charter was amended to provide that an injured policeman must have died within one year after the date of his injury in order to entitle his widow to a pension. The Supreme Court in deciding the case held that the charter amendment was not retroactive so as to deprive the officer's widow of the pension to which she was entitled under the pension provision of the charter at the time of his injury and that her rights were controlled by the provision of the charter in force at the time of the injury and not according to its terms as amended after her husband was injured and prior to his death. It is thus evident that O'Dea v. Cook, supra, is factually different from the instant case and, therefore, not in point in the case now before us.

Home v. Souden, 199 Cal. 508, 250 P. 162, relied upon by petitioner is contrary to the constitutional provisions above mentioned, as is pointed out in Lamb v. Board of Peace Officers, etc., supra, and was overruled by the decision in the latter case, when the decision in such case became final after the denial of a hearing by our Supreme Court.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.

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