Appeal from Circuit Court, Multnomah County. William M. Dale, Jr., Judge. No. 379-292.
Edward Brekke, Milwaukie, for appellant.
Ellis E. Gerdes, Senior Deputy City Attorney, Portland, for respondents.
Langtry, Judge. Schwab, Chief Judge, and Foley, Judge.
Plaintiff appeals from a final judgment order entered in favor of defendants after the trial court sustained a demurrer to plaintiff's second amended complaint.
Plaintiff is a former Portland city policeman. Defendants are the mayor and other administrative officers of the city, named in their capacities as officers and trustees of the Portland Fire and Police Disability and Retirement Fund, and the City of Portland.
The complaint alleged that plaintiff became a member of the police force on August 5, 1965, that he had made compulsory contributions of $2,300.07 to the
fund while he was a member of the police department, that he had resigned from the force October 16, 1969 and thereafter demanded that defendants refund the compulsory contributions he had made and that defendants had refused to do so. The fourth paragraph of the second amended complaint alleged the retirement fund exists under provisions of "Article 2" of the city charter adopted in 1918 "* * * under authority of the Oregon Revised Statutes 238.510 to 238.570 * * *" (which were not enacted until 1945, Oregon Laws 1945, ch 172) and that the "Charter" was amended by the electors of the city effective July 1, 1949. This was apparently intended to imply that Article 2 of the charter was thus amended. Plaintiff further alleged:
"That defendants set out a requirement of five (5) years of active service in the Bureau of Police for the City of Portland, before an employee is entitled to a refund of any contributions paid in by plaintiff to said fund; that said requirement is capricious, discriminatory, unreasonable, ambiguous and unconstitutional, and not binding upon this plaintiff, and further this requirement is contrary to the spirit and legislative intent as set out in the provisions of Oregon Revised Statutes, Chapters 237 and 238.
"In denying the request of plaintiff, and with-holding the funds of plaintiff, defendants have offended the due process clause of the 14th Amendment to the Constitution of the United States, by taking funds of plaintiff without just compensation, and further it ...