Opinion
No. 31329
Decided August 4, 1948.
Municipal corporations — Police relief fund — Duty of trustees to make rules within statutory authorization — Section 4628, General Code (106 Ohio Laws, 557) — Trustees not empowered to favor individual beneficiary by suspending rules — Trustees without authority to double amount of pension properly awarded — Duty of trustees to correct award upon subsequently discovering illegality.
1. Section 4628, General Code (106 Ohio Laws, 557), which imposed upon the trustees of a police relief fund the duty to make all rules for the distribution of the fund, the qualifications of beneficiaries, and the amount of benefits, with power to allow certain prior-service credit, conferred only that duty to adopt rules of such nature only, and did not confer upon the trustees the power to suspend their rules as to an individual beneficiary.
2. Where a board of trustees of a police relief fund, pursuant to its rules adopted under authority of Section 4628, General Code (106 Ohio Laws, 557), properly awarded a pension in a certain amount, it was without authority to suspend its rules and award a pension to such beneficiary in double the amount, and where the board subsequently discovered the illegality of the latter award, it had the duty to correct it.
APPEAL from the Court of Appeals for Cuyahoga county.
This is an appeal from a judgment of the Court of Appeals for Cuyahoga county allowing a writ of mandamus directed to the Board of Trustees of the Police Relief Fund of the City of Cleveland, hereinafter called the board, ordering such board to reinstate Adolph J. Wichman, hereinafter called the relator, on the police pension rolls of the city of Cleveland at the rate of $100 per month.
Relator was appointed a member of the police department of the city of Cleveland on August 7, 1907, and served as a policeman until on or about March 13, 1929 (a period of almost 22 years). In March of 1929, he was dismissed from the police force for misconduct in office, and on appeal to the civil service commission the order of dismissal was sustained.
In May of 1929, relator made an application for a pension in accordance with section 25 of the rules and bylaws of the board.
Section 25, at that time, read as follows:
"Be it further provided, that any member of this department who has served twenty consecutive years and who is discharged for any other offense than dishonesty or being convicted of a felony shall receive one-half of the above-stated compensation and in the event of such member leaving after his death, after his retirement, a widow or minor children under sixteen years of age, they shall receive the amount provided for dependents under rules heretofore adopted."
In accordance with such application, the board granted relator a pension under section 25 (half pay) and relator was placed on the pension pay roll at $50 per month.
In August 1929, relator appeared before the board and requested an increase in his pension from $50 per month (one half) to a full pension. The board granted him a full pension of $100 per month.
The minutes of the meeting of the board show the following resolution relating to such increase:
"Adolph J. Wichman appeared before the board and requested that his pension be increased from one-half to full pension. A motion was made by member Conley, seconded by member Perry, that the rules and regulations be suspended, and that Adolph J. Wichman be granted full pension, effective September 1, 1929. Passed by unanimous vote of the board."
The sum of $100 per month was paid to relator until July 25, 1945. On July 25, 1945, the board by regular action reduced payments to relator from $100 to $50 per month, effective July 1, 1945, basing its action on a report of the Bureau of Inspection and Supervision of Public Offices covering an examination of the police relief fund of the city of Cleveland from October 1, 1927, to September 30, 1930. The report indicated that the action of the board of August 1929, granting relator a full pension, was illegal.
Relator instituted this action in mandamus in the Court of Appeals for Cuyahoga county to compel his return to the pension rolls at full pension, alleging that he was discharged from the Cleveland police force; that on or about the 25th of May 1929 he was placed on the police relief fund pension roster, as hereinabove set forth, and was allowed one-half pension, to wit, $50 per month. Relator alleged further that on or about August 25, 1929, he was found to be qualified for full pension under section 24 of the rules and bylaws of the board, which provided "that any member who becomes incapacitated for duty through being disabled by disease or injury contracted or received while in the performance of his duty or having served fifteen (15) consecutive years becomes incapacitated for duty through any sickness or injury shall receive the same compensation as above stated" (referring to section 23 stating the amount of full pension); and that he was thereupon placed on full pension as of the first day of September 1929, pursuant to section 24.
Relator alleged further that the action of the board in July 1945, reducing the payments to relator from $100 per month to $50 per month, was without right or authority.
The board filed an amended joint answer and cross-petition, wherein the board denied that on or about the 25th day of August 1929 it allowed relator a full pension for the reason that he had become incapacitated for duty. The board alleged further that its action in suspending its rules and granting full pension at the rate of $100 per month was unlawful and ineffective in law.
By way of cross-petition, respondents alleged that for a period of six years last past there had been paid in excess of what relator was entitled, the sum of $3,800 and prayed judgment against relator for such sum.
In the board's brief filed in this court it is stated:
"* * * The board of trustees, not desiring to press the prayer of its cross-petition request that this court treat the same as having been dismissed or withdrawn and give it no further consideration herein."
Messrs. Stanton, Mercer, Hagan Cassidy and Mr. J. Raymond Slemmons, for appellee.
Mr. Lee C. Howley, director of law, and Mr. James M. McSweeney, for appellants.
With respect to the relator's contention that he made application for a pension on the basis of disability under section 24 of the rules and bylaws, applying to a member who became incapacitated for duty through being disabled by disease or injury contracted or received while in the performance of his duty, the record discloses no credible evidence that relator was disabled while in line of duty as a member of the police department entitling him to retire upon full pension short of 25 years service. Although relator testified that he made application for disability pension on account of having a hernia, there is no record in the file of the board that relator appeared before the regular physician of the division of police, and there is no report in the files or records of the board from the doctor, nor is there any record in the minutes of the board that an application for pension under section 24 was ever received, considered or acted upon. There is nothing in the record to show any reason for the subsequent increase in relator's pension, the board's minutes showing merely that on motion of one of its members the rules and regulations were suspended and relator's pension was increased from one-half to a full pension.
This brings us to a consideration of the principal question for our decision, namely, whether the action of the board of August 1929, as found by the Bureau of Inspection and Supervision of Public Offices, was and continued to be illegal and ineffective to give to relator any right other than to $50 per month as granted in accordance with the rules and regulations of the board at its meeting of May 25, 1929.
The police relief fund was established under the authority of Sections 4616 to 4631, inclusive, General Code. The board derived its rule-making authority at the time this pension was granted from Section 4628, General Code (106 Ohio Laws, 557), which provided as follows:
"Such trustee shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof, with power also to give credit for prior continuous actual service in the fire department or in any other department of the city rendering service in fire prevention, but, no rules or regulations shall be in force until approved by the director of public safety or the marshal of the municipality, as the case may be."
Before the rules and regulations of the board were adopted in furtherance of the provisions of Section 4628, General Code, supra, the board had no power to act in any manner whatsoever. That section imposed the duty on the board to formulate rules and regulations in regard to the qualifications of beneficiaries and the amount to which they would be entitled; the board was not given an arbitrary discretion as to the granting or refusing of a pension. It was compelled to enact rules governing the disbursement of its funds, and without rules such board could not create a pension roll.
In the case of State, ex rel. Dieckroegger, v. Conners, 122 Ohio St. 359, 171 N.E. 586, involving a denial of a pension by the Board of Trustees of the Police Relief Fund of the City of Cincinnati to a policeman discharged upon charges other than dishonesty, cowardice or conviction of a felony, and involving the power conferred upon such board of trustees by Section 4628, General Code, paragraphs one and two of the syllabus read as follows:
"l. The police relief fund of the city of Cincinnati was established and is maintained by virtue and under authority of statutory law, and the powers of the board of trustees of the police relief fund with respect to such fund are the powers conferred by statute.
"2. A discretion has not been conferred by statute upon the board of trustees of the police relief fund to deny a pension to a retired or dismissed police officer who is entitled to a pension by the rules of such board duly adopted and in force at the date of his retirement or dismissal."
In that case, on page 364, Judge Robinson, writing the opinion, said:
"When the Legislature by Section 4628 made it the mandatory duty of the board of trustees of the police relief fund to make rules and regulations for the distribution of the fund, including the qualifications of those to whom any pension shall be paid and the amount thereof, the Legislature vested in the board of trustees of the police relief fund discretion only to prescribe the rule by which qualifications for pension will be determined and the rule by which the amount of such pension will be computed. Manifestly, the requirement that qualification be determined by rule excludes any implication that the Legislature intended that the board of trustees of the police relief fund should determine qualification in any other manner; and the same is true of the requirement that the amount be determined by rule." See, also, State, ex rel. Little, v. Carter, 111 Ohio St. 526, 146 N.E. 56, 57; Holmes et al., Board of Trustees, v. State, ex rel. Delaney, 93 Ohio St. 480, 113 N.E. 1070.
In view of the above authorities, we have reached the conclusion that where a board of trustees of a police pension fund is required by law to enact rules and regulations, with the power to specify by rule duly adopted the qualifications of those to whom a pension shall be paid and the amount thereof, the board has no power to waive such rules, or the requirements thereof, for any purpose whatsoever unless the power to do so is specifically reserved in it by law. Not being so reserved, the board, in the instant case, was without authority to waive its rules, and the resolution of the board adopted in August 1929, suspending the rules and regulations and granting relator a full pension was illegal and ineffective. Such increase in pension being illegal and ineffective, it became the duty of the board, on discovery of the illegality of the award through the report of the Bureau of Inspection and Supervision of Public Offices, to correct it, which was done by the adoption of the resolution of July 25, 1945, reducing the payments to relator from $100 to $50 per month.
In view of the board's request that this court treat the cross-petition as having been dismissed, no consideration is being given to the questions raised by such cross-petition.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.