Phillis

In separate counts of a single complaint plaintiff J. D. Phillis, fireman, and J. J. O’Brien, policeman, seek relief, principally declaratory, with respect to their pension rights under the Charter of the City of Santa Barbara. The controversy grows out of a charter amendment which substitutes a fixed pension for a fluctuating one and imposes other limitations upon the pension right which are plainly to the disadvantage of the employees and accompanied by no compensatory advantages.

The trial court held that the actions are barred by section 338, subdivision 1, of the Code of Civil Procedure, and appellants insist that the city is estopped to rely upon the defense of limitation. General demurrer to the second amended complaint was sustained with leave to amend within 15 days. Plaintiffs elected to stand upon their second amended complaint, judgment that they take nothing followed, and this appeal is taken therefrom.

Phillis was a member of the city’s fire department from June 29, 1918, until May 1, 1947 (some 29 years) when “he was compelled to resign from active duty because of circumstances beyond his control.” O’Brien held a position in the police department from August 18,…