Decided December 10, 1969.
Police and Firemen's Disability and Pension Fund — Right of claimants to additional benefits — Enforced by mandamus — County in which action may be brought — Section 742.46, Revised Code, construed.
APPEAL from the Court of Appeals for Franklin County.
Appellants are retired members or survivors of members of the police and fire departments of the city of Lakewood who are entitled to and are receiving benefits from the Police and Firemen's Disability and Pension Fund.
Appellees are members of the board of trustees of that fund created by Chapter 742, Revised Code, and as such are charged with the administration, control and management of the fund.
Chapter 742, Revised Code, became effective on November 5, 1965, as the state-wide retirement system for police and firemen, and the assets and liabilities of each local police fund and firemen's fund, including those of the city of Lakewood, were transferred to the state fund on January 1, 1967.
Subsequent to the transfer of assets, appellants made demand upon appellees for certain additional benefits, claiming that the basis upon which their pensions are computed is incorrect. Appellees refused to make such additional payments.
Appellants then sought a writ of mandamus in the Court of Appeals for Franklin County to compel the payment of additional pension benefits. Issues were joined by answer, and the cause was heard upon the pleadings, stipulations, briefs and oral argument. Upon oral argument the jurisdiction of the Court of Appeals was questioned because of the provisions of Section 742.46, Revised Code. That section provides:
"The granting of a benefit or pension to any person under Sections 742.01 to 742.49, inclusive, of the Revised Code, vests a right in such person to obtain and receive the amount of such benefit or pension granted to him subject to Sections 742.01 to 742.49, inclusive, of the Revised Code.
"Such right may be enforced by an action in mandamus instituted in the Court of Common Pleas in the county in which the person granted such benefit or pension resides."
The great majority of the relators are residents of Cuyahoga County.
The Court of Appeals held that it was without jurisdiction in this matter and dismissed the cause without prejudice.
An appeal from that judgment is before this court as a matter of right.
Messrs. Fedor Fedor, for appellants.
Mr. Paul W. Brown, attorney general, and Mr. Larry G. Brake, for appellees.
The conclusion to be reached in this appeal would, at this point, seem to be distinguished by its simplicity in an order of affirmance.
However, appellants contend that the situs of their cause of action is in Franklin County, for the reason that under the provisions of Section 2307.35, Revised Code, actions against a public officer for an act done by him by virtue or under color of his office, or for neglect of his official duty, must be brought in the county where the cause of action arose; that the official place of business of the Police and Firemen's Disability and Pension Fund is in Franklin County, and their business is carried on therein; and that, therefore, this action in mandamus was properly brought in Franklin County.
The right which appellants assert is to have their claims for additional pensions allowed by the trustees of the Fund. The wrong allegedly suffered by appellants is the failure of respondents to allow such claims and to pay them. Those facts occurred in Franklin County, and, therefore, appellants' cause of action arose in Franklin County.
Unless there exists some statutory direction to the contrary, a mandamus action under the facts of this case may be brought in Franklin County. The language of Section 742.46, Revised Code, wherein reference is made to the fact that a party, allegedly aggrieved, may file a mandamus action in the Court of Common Pleas of the county wherein he resides, is permissive and not mandatory.
Accordingly, the judgment of the Court of Appeals, holding that it was without jurisdiction in the cause and ordering the cause dismissed without prejudice, is prejudicially erroneous and contrary to law. Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings.
MATTHIAS, O'NEILL, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
TAFT, C.J., dissents because Section 742.46, Revised Code, provides relator with an adequate remedy in the ordinary course of the law by an action in the Common Pleas Court of his residence.
SCHNEIDER, J., dissents.