Opinion
No. 34794
Decided November 21, 1956.
Workmen's compensation — Retired city policeman — Entitled to award only to extent it exceeds pension — Section 1465-61, General Code (Section 4123.02, Revised Code) — Constitutional law.
APPEAL from the Court of Appeals for Franklin County.
In March 1950, relator, then a police officer, sustained an injury in the course of his employment with the police department of the city of Hamilton, for which injury he was awarded on January 25, 1952, workmen's compensation in the sum of $30 per week for 75 weeks, to begin as of July 19, 1951. On May 15, 1952, he retired on a pension of $100 per month which he has continued to receive since the date of his retirement. On December 23, 1952, the Industrial Commission vacated the award "pursuant to the decision of the Supreme Court handed down in the case of" State, ex rel. City of Columbus, v. Industrial Commission, 158 Ohio St. 240, 108 N.E.2d 317, and on September 21, 1954, entered an order reciting in part:
"* * * the commission find that the claimant is receiving a pension from the city of Hamilton in the amount of $100 per month beginning May 15, 1952; compensation was paid from May 15, 1952, to December 24, 1952, at the rate of $130 per month, whereas the claimant was entitled to only $30 per month or $6.92 per week which is the difference between the claimant's pension and compensation payable by the Industrial Commission."
In response to relator's application filed on February 1, 1955, for an award based on permanent partial disability, the commission, on March 24, 1955, awarded compensation for a period of 15 weeks at the rate of $6.92 per week.
Relator instituted this action in mandamus in the Court of Appeals, contending that the proviso in Section 1465-61, General Code (Section 4123.02, Revised Code), effective at the time the accident in question occurred, is discriminatory and unconstitutional, and seeking a writ requiring the commission to award to him $30 per week for 15 weeks, claiming he is entitled to both his pension of $100 per month from the city and his award of workmen's compensation of $130 per month.
The Court of Appeals found, as disclosed by its journal entry, "that the exclusion of police and firemen in cities from participation in the Workmen's Compensation Act, contained in Section 4123.02 of the Revised Code [Section 1465-61, General Code], is unconstitutional, being based upon an invalid classification, discriminating improperly between police and firemen in cities and police and firemen in villages," and granted the writ as prayed for.
An appeal as of right brings the cause to this court for review.
Mr. R. Brooke Alloway and Mr. Marc Fiehrer, for appellee.
Mr. C. William O'Neill, attorney general, Mr. James L. Young and Miss Blanche E. Krupansky, for appellant.
This court is of the opinion that the Court of Appeals was in error in so holding. The judgment of the Court of Appeals is reversed and final judgment is rendered for the commission for the reasons stated in the opinion by Judge Lamneck in State, ex rel. English, v. Industrial Commission, 160 Ohio St. 443, 117 N.E.2d 22.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, BELL and TAFT, JJ., concur.