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

George G. EICHELBERGER, Eisie Haggerty and Lewis Wescott, Plaintiffs and Appellants, v. CITY OF BERKELEY, a municipal corporation, Fire Pension Board, Laurence L. Cross, John D. Phillips, Pauline Young, William Meinhelt, John Holstrom, Mrs. Ruth Cunningham, and Weldon L. Richards, Defendants and Respondents.

Civ. 16338.

Decided: July 26, 1955

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

Three plaintiffs appeal from a judgment in cases consolidated in first instance insofar as it denies their claims that they were entitled to higher pensions or death benefits than paid to them by the City of Berkeley. Other plaintiffs, among whom is the plaintiff Brennan, who were successful in the first instance, are not parties to this appeal. The facts have been stipulated to in the trial court.

On April 28, 1938, Ordinance No. 2188–N.S. of the City of Berkeley, regulating pensions and death benefits of firemen, became effective. It provided for pensions and benefits of one-half or one-third of ‘the average salary attached to the rank or ranks held during the three years immediately preceding the date of retirement.’ (Sections 7, 8, 9, 10, 11, and 13) and further contained Section 24 which read in part: ‘The pensions granted under the terms of this ordinance shall not increase nor decrease with any changes in salary subsequent to the date of the granting of the pension for the rank or ranks upon which the pension was based * * *.’

On April 20, 1939 Ordinance No. 2254–N.S., amending the above Ordinance No. 2188–N.S., became effective. Section 12 of the new ordinance amended Section 24, supra, so as to read in part: ‘The pensions granted under the terms of this ordinance shall not decrease with any changes in salary subsequent to the date of the granting of the pension for the rank or ranks upon which the pension was based * * *.’

Plaintiffs Eichelberger and Wescott retired after long service entitling them to pensions, on February 25, 1939 and July 1, 1938 respectively. Plaintiff Elsie Haggerty is entitled to a pension as widow of George Haggerty, who died as a result of the performance of his duty as a member of the Fire Department on August 18, 1938. The court below held that in the calculation of their pensions the City of Berkeley correctly did not consider increases in salary subsequent to the dates of the granting of the pensions for the rank or ranks upon which the pensions were based, in accordance with the provision of Section 24, supra, as it read at the time of the granting of the pensions, whereas it was the position of appellants, urged also on appeal, that they were entitled to increase of pension on the basis of salaries as increased, at least since the effective date of the above amendment (April 20, 1939).

Appellants' first contention is, that they were so entitled even under the 1938 ordinance provisions, because Section 24 allegedly conflicted with the earlier sections, the language of which in Terry v. City of Berkeley, 41 Cal.2d 698, 263 P.2d 833, was held to grant a pension fluctuating with changes in the basal salaries, and because in the conflict the earlier sections must prevail as specific provisions against a general one and as more favorable to the pensioners. The contention is so obviously without merit that we ignore the question whether the argument was offered for the first time on appeal to reject it on the merits. Evidently the sections were intended to be and must be construed together. In Terry v. City of Berkeley, supra, 41 Cal.2d at pages 701, 702, 263 P.2d 833, it was said that the provisions of the ordinance there under consideration similar to those in the earlier sections here involved, might be susceptible to more than one interpretation and that then a liberal construction in favor of the applicant should be followed. Here the ambiguity has been resolved by the express language of Section 24, which is conclusive.

It is next urged that even if the 1938 ordinance provided for fixed pensions, the amendment of 1939 would entitle appellants from its effective date to a pension open to increase. It is contended that such construction was intended and desirable and that it would not be a retroactive application of the amendment. The contention runs counter to the rules of the California cases. They hold that in general the pension rights become finally determined upon the happening of the contingency on which the right to the pension depends on the basis of the pension law then in effect, Holmberg v. City of Oakland, 55 Cal.App. 270, 203 P. 167; Compare Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 392, 182 P.2d 159, although the amount of the benefits may remain fluctuating in accordance with a provision of the pension law to that effect. Casserly v. City of Oakland, 6 Cal.2d 64, 56 P.2d 237. Until the happening of the contingency the employee does not have a vested right to any fixed or definite benefits, but only to a substantial or reasonable pension. Wallace v. City of Fresno, 42 Cal.2d 180, 183, 265 P.2d 884. After the happening of the contingency the pension provisions may not by subsequent amendment be changed to the detriment of the pensioner. Terry v. City of Berkeley, supra, 41 Cal.2d 698, 703, 263 P.2d 833. A subsequent amendment increasing existing benefits is not invalid as a gift of public money, Home v. Souden, 199 Cal. 508, 512, 250 P. 162; Brummund v. City of Oakland, 111 Cal.App.2d 114, 119, 244 P.2d 441, but it will not be applied retroactively to a person entitled to benefits prior to the enactment unless the intention to make it so applicable clearly appears from the terms of the enactment. Holmberg v. City of Oakland, supra, 55 Cal.App. 270, 203 P. 167. In Brophy v. Employees Retirement System, 71 Cal.App.2d 455, 460, 162 P.2d 939, 942, it is said: ‘The contention that the 1945 amendment should be given retroactive effect is unsound. It is elementary law that all statutes are interpreted to operate prospectively unless their language clearly compels an interpretation that they were intended to operate retroactively. * * * In Holmberg v. City of Oakland, 55 Cal.App. 270, 271, 203 P. 167, a charter provision that a police officer injured in the performance of his duty ‘shall be entitled to receive * * * such medical * * * treatment * * * as may be required during the continuance of his disability * * *’ was held not retroactive and therefore not applicable to an officer disabled by injuries sustained prior to the effective date of the charter provision.' See similar expressions in O'Dea v. Cook, 176 Cal. 659, 662, 169 P. 366; Jordan v. Retirement Board, 35 Cal.App.2d 653, 657, 96 P.2d 973; Chaney v. Los Angeles County Peace Officers' Retirement Bd., 59 Cal.App.2d 413, 415, 138 P.2d 735. The amendment of the ordinance does not contain any language clearly showing that it was intended to operate retroactively. Appellants rely in this respect on the expression ‘The pensions granted under the terms of this ordinance’ in Section 24, of Ordinance No. 2188–N.S., as amended in 1939, and urge that this must mean all pensions granted under Ordinance No. 2188–N.S. both in its original form and as amended. It can, however, also be construed as meaning granted under the ordinance as amended and there is no indication that this form of amendment was chosen with the intention to reach the result of a retrospective application. The above rule against retroactive construction requires us then to apply the amendment prospectively only.

Appellants' further contention that an application of the provision for pensions on an increased basis to payments to appellants subsequent to the effective date of the amendment is not a retroactive application is without merit. A retroactive application is one which gives to a previous transaction or event a different legal effect from that which it had under the law when it occurred. Holt v. Morgan, 128 Cal.App.2d 113, 117, 274 P.2d 915. The facts on which the right to pension are predicated are the service and the retirement or death, which here took place prior to the amendment of 1939, which altered said right. Compare Aetna Cas. & Surety Co. v. Industrial Acc. Comm., supra, 30 Cal.2d 388, 392, 393, 182 P.2d 159, 161, where it is said: ‘The authorities support the conclusion that a statute changing the measure or method of computing compensation for disability or death is given retrospective effect when applied to disability or death resulting from an injury sustained before the effective date of the statute.’ Appellants rely on People ex rel. Albright v. Board of Trustees of Firemen's Pension Fund, 103 Colo. 1, 82 P.2d 765, 118 A.L.R. 984, but that case which takes a view opposite to the above is not the law in California.

The contention that the application of the amendment prospectively only deprives plaintiffs of their constitutional right to equal protection of the laws is also without merit. The equal protection clauses do not prevent reasonable classification, according to difference in time, C. Dudley De Velbiss Co. v. Kraintz, 101 Cal.App.2d 612, 617, 225 P.2d 969, and a similar classification has been upheld as to amendment of pensions. Allstot v. City of Long Beach, 104 Cal.App.2d 441, 445, 231 P.2d 498. No case has been cited to us or found by us declaring a favorable amendment of pension rights for future pensioners only to be violative of the equal rights of employees previously pensioned. Cases cited herein before show that this is the normal procedure and that those whose rights have been fixed according to the law in effect at the time of their prior pensioning have no right to complain that those pensioned at a later time obtain higher benefits under a later enactment. See especially Jordan v. Retirement Board, supra, 35 Cal.App.2d 653, 658, 96 P.2d 973.

Judgment affirmed.

NOURSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.

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Docket No: Civ. 16338.

Decided: July 26, 1955

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

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