TERRY v. CITY OF BERKELEY

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

TERRY v. CITY OF BERKELEY et al.*

Civ. 15324.

Decided: March 27, 1953

Fred C. Hutchinson, City Atty., and Robert T. Anderson, Asst. City Atty., Berkeley, for appellants. Cornish & Cornish, Francis T. Cornish and Howard W. Wayne, Berkeley, for respondent.

Plaintiff, a mounted patrolman in the police department of defendant, City of Berkeley, was retired in 1940 on a pension of $92.50 per month. The trial court awarded him a judgment covering the period not barred by the statute of limitations for the difference between $92.50 per month actually paid him and his pension calculated upon the salary of mounted patrolmen as increased after his retirement and further adjudging that future pension payments to him should be made on the same basis.

The plaintiff was retired under section 13 of Ordinance No. 2250–N.S. which fixed the measure of the pension to be paid in the following language: ‘he shall be paid from the Fund during the period of his disability a pension equal to one-half of the average salary attached to the rank or ranks held during the three years immediately preceding the date of retirement.’

Plaintiff relies in support of the judgment on the cases which have held that where a pension is measured by the salary ‘attached to the rank’ of the pensioner at the time of his retirement the pension is a fluctuating one which increases with corresponding increases in the pay for the rank. Casserly v. City of Oakland, 6 Cal.2d 64, 56 P.2d 237; Klench v. Board of Pension Fund Com'rs, 79 Cal.App. 171. 249 P. 46. We agree with defendants and appellants that in view of the peculiar wording of the ordinance here in question such a construction cannot be given to it.

The measure of the pension here involved is ‘one-half of the average salary attached to the rank or ranks held during the three years immediately preceding the date of retirement.’ Where the pensioner held only one rank during the three years preceding his retirement there can only be one effective construction placed upon these words.

‘One-half of the average salary attached to the rank’ is arrived at by taking the sum of two or more salaries attached to that rank and dividing the total by the number of salaries thus added together. Upon retirement of a pensioner who had held the same rank for the preceding three years it would require an averaging of the salary attached to that rank during that three year period to determine the initial pension. If, for example, during the first year the salary attached to such rank was $160 per month, during the second year $185, and during the third year $195; the average salary attached to the rank held during the three years preceding retirement would be one-third of the sum of the three salaries, or $180 per month. Suppose then after the pensioner's retirement the salary attached to the rank is increased to $200, with what would $200 be averaged to fix the measure of the pension, if it is fluctuating? The average is required to be of the salaries attached to that rank and unless ‘held during the three years immediately preceding the date of retirement’ fixes the salaries to be averaged there is no way of determining what salaries are to be taken into consideration in determining the average salary. The only possible measure of the average salary attached to a single rank held by the pensioner for three years immediately preceding retirement is the average of the salaries attached to that rank during that three year period.

Respondent points out that in his case his salary was constant during the three year period immediately preceding his retirement. This accidental fact can have no bearing on the proper construction of the ordinance. While the average of a constant figure is that constant it is still impossible to average that constant over the three year period immediately preceding retirement and give any recognition to a new figure which did not occur in that three year period, and it is equally impossible to find in the language of the ordinance any other group of salaries of which the average is to be taken.

It is obvious that if the singular noun ‘rank’ had been omitted the average salary attached to the plural ‘ranks' held during the three year period immediately preceding might be calculated on a fluctuating basis. As the salaries attached to the several ranks changed the average of the new salaries could be taken; but there is no conceivable fashion in which such a formula can be applied in the case of a single rank.

Respondent would have us read the ordinance as if ‘average salary’ qualified only the plural ‘ranks' and not the singular ‘rank’, or as if it read: ‘equal to one-half the salary attached to the rank or one-half the average salary attached to the ranks held during the three year period.’ This we cannot do. The order of the words makes it too clear for argument that ‘average salary attached to’ qualifies ‘rank’ which follows it immediately as well as ‘ranks'. Statutes must be construed to give effect to every word where possible, 23 Cal.Jur., Statutes, sec. 133, pp. 758–760; County of Los Angeles v. Frisbie, 19 Cal.2d 634, 641–642, 122 P.2d 526, and the construction which we put upon the ordinance is the only one which gives sensible meaning to the singular word ‘rank’ in conjunction with the other words used in the ordinance.

Respondent suggested for the first time on oral argument that the ‘average salary attached to the rank’ might be intended to take care of cases where a range of salary was attached to the same rank, e. g., from a minimum of $160 to a maximum of $180. The very fact that this construction did not occur to respondent earlier suggests that it is not a normal or natural one. The average of $160 and $180 is $170. If this construction was placed on the ordinance and policeman A receiving $160 and B receiving $180 were both retired, each by that formula would receive the same pension, 1/212 of $170, although before retirement B was receiving $20 per month more than A. Furthermore when applied to more than one rank held during the three year period this suggested formula breaks down since the ‘average salary attached to the * * * ranks' clearly contemplates averaging the salary attached to rank X with that attached to rank Y, where the pensioner has occupied both ranks during the three year period.

Respondent argues that pension statutes are to be liberally construed and that a fluctuating pension is the more equitable type. We may conceded both of these statements and it still remains true that where only one sensible meaning can be given to a statute the legislative discretion cannot be usurped by a court to give it another.

The judgment is reversed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.