Summary
In State ex rel. Simmons v. Wieber, 145 Ohio St. 121, 60 N.E.2d 687, the Board of Trustees of the Pension Fund of the Cleveland Police Department sought to rescind its previous action in placing Simmons' name upon the pension rolls as a result of a credit for his military service in World War 1 which preceded the pensioner's appointment to the police force.
Summary of this case from Fitzgerald v. ManningOpinion
No. 30208
Decided April 11, 1945.
Police relief fund — Cleveland — Mandamus to compel restoration of beneficiary's name to roll — Pension granted for service in police department and U.S. Navy — Pension rights rescinded after period expired for restoration to former position — Estoppel — Sections 21, 32 and 33, Cleveland Police Relief Fund Rules — Section 486-16, General Code.
APPEAL from the Court of Appeals of Cuyahoga county.
Relator, a former member of the Cleveland police department, filed a petition in mandamus in the Court of Appeals for Cuyahoga county complaining that he had been unlawfully removed from the Cleveland relief and pension fund roll and praying for a peremptory writ of mandamus commanding appellants to restore his name to the roll of the Cleveland police pension fund in accordance with their order of March 20, 1942, and to pay the relator all of the amounts which he would have received from and after August 1, 1943, the same as if his name had not been unlawfully removed from such roll.
Relator's petition sets forth certain of the rules and bylaws which had been adopted by the board of trustees of the police relief and pension fund. Among these rules were the following:
"Section 21. Any member of the division of police who has served for a period of twenty-five (25) years, or for such period which when added to and combined with service credit given under authority of Sections 4628 and 4628-3 of the General Code of Ohio, or either of said sections, and by these rules shall equal twenty-five (25) years, may voluntarily retire by filing with the board of trustees of the police relief fund an application for retirement and shall be placed upon the police relief roll at a rate of pension equal to fifty (50) per cent of the salary for the rank the member held at time of retirement; * * *
"Section 32. Pursuant to the provisions of General Code Section 4628-3 those members of the division of police who have been honorably discharged from the armed forces of the United States and who have served in the army, navy, or marine corps of the United States in time of war, or when armed expeditions were conducted, shall be credited with such service in the army, navy or marine corps, not exceeding thirty months, against the requirements of service in the division of police imposed by any rule now or hereafter made with reference to such requirements.
"Members of the division of police seeking to avail themselves of this credit for war or expeditionary service shall present to the secretary the honorable discharge from the army, navy, or marine corps, or a photostatic copy thereof, or if filed with the recorder or other official of any state or subdivision, the evidence of such filing. It shall be the duty of the secretary to submit such honorable discharge, or record thereof, to the board, which shall thereupon by entry upon the minutes thereof determine the extent of the credit to be allowed for such service when and if the member shall apply to be retired and his name placed upon the police relief fund roll."
"Section 33. The granting of a pension to any person hereafter pursuant to the rules adopted by the trustees shall operate to vest a right in such person, so long as he shall remain the beneficiary of such pension fund, to receive such pension at the rate so fixed at the time of granting such pension. The pension status and rights of the beneficiary shall be fixed and established by the rules in force and effect at time of granting of pension and shall not be changed, altered or affected by any rule made subsequent thereto."
In his petition relator further averred "that on or about March 2, 1942, having served 23 years, two months and five days in the police department and being allowed 23 months by the defendant board for service with the United States Navy, for service with the United States Navy prior to his employment on the police department, having so served in the U.S. Navy in times of warfare or when armed expeditions were conducted a total of 1,085 days, the relator duly made application to the board of trustees of the police relief fund to be retired from the police department and to have his name placed on the police relief rolls as of March 20, 1942; that his said application was thereafter duly presented to the defendant board of trustees at its regular meeting of March 30, 1942, with all members being present; that the facts in support of said application were thereupon duly considered by the said defendant board and the unanimous finding, judgment, and decision and order of the defendant board in connection therewith was thereupon made and entered upon the duly approved minutes of the defendant board for the said meeting, which finding, judgment, decision and order is as follows:
" 'In accordance with the provisions of section 32 of the rules and bylaws of the Cleveland police relief fund service, credit towards retirement was granted to Sergeant Arthur Simmons to the extent of twenty-three (23) months. The application for pension of Arthur E. Simmons, sergeant of police to have his name placed upon the Cleveland police relief fund rolls having served 23 years and one month and the additional 23 months service credit allowance, was approved and pension granted in accordance with the rules and bylaws, effective March 20, 1942. (Copy of military discharge papers on file).'
"Relator further avers that pursuant to the said order of the defendant board his name was duly placed upon the pension roll of the Cleveland police relief fund and he was thereafter regularly paid a monthly pension of $108.90 by the defendant board from said date until August 1, 1943, a period of approximately 17 months, and a period in excess of the one year within which the civil service laws permit the reinstatement to his former position of a legally classified municipal employee who has retired from service; that the personal and business status of the relator was thereupon necessarily greatly changed in view of his retirement by the defendant board from his life long employment and his being placed on the police relief rolls by said defendant board.
"Relator further avers that on or about August 30, 1943, that the defendant board at its regular monthly meeting of said date summarily made the following order as appears in the minutes of the defendant board for its regular meeting of that date, to wit:
" 'The board unanimously agreed to remove the name of Arthur Simmons from the Cleveland relief and pension fund rolls as they believe him to be illegally receiving a pension.
" 'The board, after investigation, found that Mr. Simmons did not have ample time in the department to be qualified to receive a pension under section 24 of the rules and bylaws. The motion to remove him from the rolls effective August 1, 1943, was made by member Zupnick, seconded by member Bruder and passed unanimously.' "
Relator's petition alleges, and for the purpose of the demurrer it must be taken as true, "that relator was never discharged from the division of police for any reason, nor has he died."
Appellants filed a demurrer to relator's petition and it was stipulated between the parties that if the demurrer was overruled the court should order a peremptory writ of mandamus to issue in accordance with the prayer of the petition and if the demurrer was sustained the final judgment was to be entered for the defendants since neither of the parties desired to plead further.
The Court of Appeals found that the demurrer was not well taken and overruled the same and a peremptory writ of mandamus was issued in accordance with the prayer of the petition.
The case having originated in the Court of Appeals the appeal to this court is filed as of right.
Mr. George J. McMonagle, for appellee.
Mr. Lee C. Howley, director of law, Mr. Joseph H. Crowley and Mr. Robert M. Morgan, for appellants.
This case differs from the Newness case, ante, 115. In that case the trustees sought a declaratory judgment before taking action. In the instant case the trustees acted and placed the relator's name upon the pension roll. After granting him a pension the trustees sought to rescind their action but such rescinding action was not taken until it was too late for the pensioned policeman to be restored to his former position.
Section 486-16, General Code, provides, in part:
"Any person holding an office or position under the classified service who has been separated from the service without delinquency or misconduct on his part may, with the consent of the commission, be reinstated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department."
As the relator had been permitted to draw pension for more than a year he was no longer eligible for reinstatement.
Among the rules of the trustees is section 24 which provides:
"Any member of the division of police who has served twelve and one-half years (12 1/2) and is discharged for any offense other than being convicted of a felony shall be placed upon the police relief roll and receive a rate of pension equal to six-sixteenths (6/16) of his or her salary at time of discharge. Provided, however, that such felony must have been malum in se and not merely malum prohibitum. * * *"
Relator's petition alleges and the demurrer admits that relator was never discharged from the division of police for any reason.
It would be anomalous indeed if a man who had served twenty-three years, two months and five days in the police department and having been credited with twenty-three months of war service should now be denied a pension.
In the per curiam opinion of the court below it was said:
"As we view the attached pleading we find it unnecessary to consider whether or not, under the statutes, ordinances and rules of the board the relator was legally entitled to credit for United States military service rendered prior to his service in the Cleveland police department. We therefore do not pass upon that question. * * *
"It is our judgment that respondents ought to be and are now estopped from summarily otherwise interpreting the rules under which it operates."
We are of the opinion that under the facts and circumstances of this particular case the judgment of the Court of Appeals ought to be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.