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


Civ. 19780.

Decided: December 09, 1953

Elsan H. Stafford, in pro per. Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondents.

In August, 1946, petitioner entered the service of Los Angeles County as a deputy sheriff, and became a member of the County Peace Officers' Retirement System. Thereafter he paid into the fund created by the system all fees, dues and contributions required by law. In January, 1950, petitioner was retired by reason of the amputation of his left leg, caused by a gunshot wound which he received in the line of duty. In May, 1950, the Industrial Accident Commission awarded petitioner $5,603.53 for his injury. This award was paid in one sum by the State Compensation Fund, which was the insurance carrier of Los Angeles County. At that time petitioner was not receiving a pension under the retirement system. He has since made repeated demands for the payment of a pension, but respondent has refused the same. Thereupon petitioner sought a writ of mandate to compel such payment. A demurrer was sustained, without leave to amend, to his amended petition. He appeals from the ensuing judgment of dismissal.

In 1931 the state Legislature passed the Peace Officers' Retirement Law, which has since been codified as Government Code, Title 3, Div. 4, Pt. 3, Chap. 4, Section 31900 et seq. This act was duly adopted by Los Angeles County as the basis for its Peace Officers' Retirement System.

Section 32055 of the Government Code provides that ‘Upon retirement of a member for service connected disability, he shall receive an annual pension, payable in monthly installments, equal to one-half of his terminal salary * * *.’ However, section 32081 of the same code provides in part that ‘If any beneficiary receives compensation under any workmen's compensation act * * * the [retirement] benefits shall be modified as follows:

‘(a) If the amount is paid in one sum * * * the beneficiary shall not receive any retirement payments until the total amount of the retirement payments which would otherwise be paid equals the total amount received under the workmen's compensation act * * *.’

Respondent based its refusal to make retirement payments to petitioner on this latter section. This decision by respondent was correct.

Petitioner's first contention is that section 32081 of the Government Code is not here applicable, since he was not receiving retirement payments at the time the award under the workmen's compensation act was made and paid, and hence he was not then a ‘beneficiary’ under the retirement system. He bases this argument on section 31908, Government Code, which defines a ‘beneficiary’ as ‘* * * any person in receipt of a pension, or other benefit provided by the retirement system.’ While it is true petitioner was not at that time receiving pension payments, nevertheless he was in receipt of ‘other benefits' under the system because the right to a future retirement allowance may be considered a benefit. Palaske v. City of Long Beach, 93 Cal.App.2d 120, 127, 208 P.2d 764. ‘The term ‘beneficiary’ is not limited to one in possession of the benefit. It comprehends one who is named as the person to whom a benefit will accrue at a certain time or upon certain contingencies, and especially one who, upon the accrual of such time or such contingencies, has become entitled to the benefit.' State ex rel. Curran v. Brookes, 144 Ohio St. 582, 60 N.E.2d 62, 67. It is thus clear that petitioner is a beneficiary under section 31908, and therefore section 32081 is here applicable. But, argues petitioner, the latter section is ambiguous and uncertain and is without meaning and legal effect. There is no merit at all in this argument. The language is simple and clear. The section means exactly what it says. As applied to petitioner's situation, the unmistakable meaning of this and the other sections of Chapter 4, when read together, is that a member of the system who is retired for physical disability resulting from injury in the line of duty is entitled to receive a pension equal to one-half of his terminal pay less any sum he receives as an award for such injuries under the workmen's compensation act. Petitioner, nevertheless, argues that the receipt of such an award does not affect his right to receive pension payments. The simple answer to this argument is that the legislative enactment, which is the foundation of his pension benefits, provides to the contrary, as above pointed out. In support of his argument, however, petitioner urges the pertinency of Larson v. Board of Police and Fire Pension Com'rs, 71 Cal.App.2d 60, 162 P.2d 33; Johnson v. Board of Police and Fire Pension Com'rs, 74 Cal.App.2d 919, 170 P.2d 48, and Holt v. Board of Police and Fire Pension Com'rs, 86 Cal.App.2d 714, 196 P.2d 94. Those cases all dealt with a section of the Long Beach city charter which said that the pension provision was intended to be in lieu of and take the place of the workmen's compensation act. That was the converse of the problem that we have in the instant matter; consequently thoses cases are wholly inapplicable.

Petitioner further argues that he cannot be deprived of the benefits of the judgment he obtained under the workmen's compensation act without violating constitutional inhibitions. The complete answer to this argument is that petitioner has not been deprived of any of the benefits of the workmen's compensation award for he has received full payment thereof.

Petitioner's next proposition is that his pension had become a vested right and could not thereafter be impaired in violation of constitutional inhibitions. He argues that since he has contributed to a common fund from which he is entitled to receive a pension it would amount to an impairment of his contractual rights to allow respondents to withhold his pension just because he received payment of an award against his employer's insurance carrier. Petitioner's pension is a vested right, but only a vested right to the amount provided for in the Peace Officers' Retirement Law. That law provides, in section 32081, supra, for the deduction from retirement payments of the amount received under the workmen's compensation act. That is precisely what has taken place in petitioner's case. He has received exactly that for which he bargained. This is made crystal clear by section 32080, Government Code, which reads: ‘It is the intention of this chapter that pensions allowed for injury incurred in line of duty shall not be cumulative with the benefits under workmen's compensation awarded for the same injury or disability.’

Petitioner's final contention is that to permit a deduction from a pension of an amount equal to that received as workmen's compensation unjustly enriches the retirement fund. There is no support for this claim. All pension payments to petitioner and other retired peace officers are paid by the County Employees Retirement System. The County is required to appropriate funds to this system and such appropriations, as well as the contributions of the members, are adjusted by the Board of Supervisors from time to time as circumstances necessitate. The Retirement Board is limited in the use it can make of its funds. It is, of course, not in business, generally. These funds are in the nature of trust funds and can be paid out only in accordance with the laws that authorized the establishment of the system and govern its operations. The County Employees Retirement System is simply an agency through which pension payments are made in accordance with the law. The fact that it may not be required to make payment on a pension for some particular period does not mean that the system is thereby becoming unjustly enriched to that extent. It rather means that contributions and the appropriations of the County will thus be correspondingly less.

On the other hand, if petitioner receives his pension without any credit thereon for his workmen's compensation award the County would be paying twice for the same injury in that the County pays premiums to the State Compensation Insurance Fund and the rate varies according to the accident experiences of the insured. Such a result is unmistakably contrary to the intention of the Legislature as expressly stated in Section 32080, Government Code.

The judgment is affirmed.

FOX, Justice.

MOORE, P. J., and McCOMB, J., concur.

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