Opinion
No. 31094
Decided March 10, 1948.
Municipal corporations — Fireman's pension — Writ of mandamus issued to compel payment for stipulated period — Maximum pension thereafter paid but later reduced by board of trustees — Pension a gratuity and not vested right to maximum award — Section 4612-1, General Code (117 Ohio Laws, 29), inapplicable — Mandamus denied to compel payment of difference between maximum and reduced pension.
IN MANDAMUS.
This action in mandamus originated in this court.
The relator is a retired fireman of the city of Columbus and the respondents are members of the board of trustees of the firemen's pension fund of that city.
The petition of the relator alleges, inter alia, that on March 10, 1936, under rule 15 of that board, he was entitled to voluntarily retire from the fire department; that by the consideration of this court on March 24, 1937, the board was ordered to award, and thereby he was vested with the right to receive, a pension of $100 per month; that the pension fund is wholly sufficient to pay his claim; and that the board arbitrarily and without reason failed and refused to pay him $10 per month from May 1, 1944, to January 1, 1946, inclusive, or a total sum of $200. The prayer of the petition is for a writ of mandamus commanding the payment to relator of the alleged accrued pension of $200, as provided by the rules of the pension board and "orders of this court."
The answer admits that on March 10, 1936, certain rules and bylaws were in full force and effect, sets forth the text of rule 15 providing for a minimum pension of $1,200 per annum, admits that relator was entitled to retire and denies that this court on March 24, 1937, or on any other date, ordered payment of a pension of $100 per month to relator. The answer alleges further that on May 5, 1936, while relator's application for a pension was pending, he filed in this court, under cause No. 25985, a petition in mandamus praying for a writ commanding payment of a pension of $100 per month, beginning March 3, 1936; that this court on March 24, 1937, in cause No. 25985, ordered a writ of mandamus to issue directing the payment of $50 to relator, representing pension money due him from March 9, 1936, to and including March 23, 1936; that relator received $100 per month as pension from March 9, 1936, to and including the month of April 1944, $90 per month as pension from April 1944 to and including the month of December 1945, and $100 per month since that time; that the board of trustees in April 1944 voted to reduce, by 10 per cent, maximum pension awards and in December 1944 voted to continue the reduction to and including December 1945; and that such reduction was ordered by the trustees because the pension fund was insufficient to pay all pensioners the amounts of pensions provided for by rules and regulations in existence prior to such reduction in pensions effective May 1, 1944.
Additional allegations of the answer need not be recited.
The cause was submitted on demurrer by relator to the answer of the respondents.
Mr. Leonard P. Henderson, for relator.
Mr. Richard W. Gordon, city attorney, Mr. Baxter Evans and Mr. Robert E. Leach, for respondents.
Relator's brief states the sole question presented is: Did the right to receive a pension become vested in relator by reason of the judgment and orders of this court on March 24, 1937? If such right did vest, relator then contends the pension board had no authority to do other than was ordered by this court, namely, pay relator a pension of $100 per month.
The demurrer admits all the well pleaded allegations of the answer and searches the entire record. State, ex rel. Deal, v. Industrial Commission, 120 Ohio St. 269, 166 N.E. 198; 31 Ohio Jurisprudence, 781, Section 202.
The relator by his demurrer admits the allegation of the answer that this court in cause No. 25985 issued a writ of mandamus directing the payment of $50. The sole question determined in the former mandamus proceeding was the right of relator to receive that sum as a pension for 14 days. See State, ex rel. Hayes, v. Pfeifer et al., Board of Trustees of Firemen's Pension Fund of City of Columbus, 132 Ohio St. 335, 7 N.E.2d 409. No other right to a pension vested in relator by the writ issued in that case.
The demurrer in the instant case admits that subsequent payments were made as alleged in the answer. The relator's pension was granted when such a pension was a gratuity rather than a vested or contractual right. ( Mell et al., Trustees, v. State, ex rel. Fritz, 130 Ohio St. 306, 199 N.E. 72.) The board of trustees then had discretionary power to modify pension awards made prior to May 26, 1937, the effective date of Section 4612-1, General Code (117 Ohio Laws, 29), which date was after March 24, 1937, when this court ordered a writ issued in the former mandamus proceeding.
The demurrer is sustained as to the petition and overruled as to the answer, and a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.