State ex rel. Cunat v. Trustees of Cleveland Police Relief & Pension Fund

• Decision Date: 05 May 1948
• Docket Number: 31288-31291.
• Court: Ohio Supreme Court
• Parties: STATE ex rel. CUNAT v. TRUSTEES OF CLEVELAND POLICE RELIEF & PENSION FUND et al. STATE ex rel. HANRAHAN v. TRUSTEES OF FIREMEN'S RELIEF & PENSION FUND OF CITY OF CLEVELAND et al. STATE ex rel. GAUL et al. v. SAME. STATE ex rel. MAY et al. v. TRUSTEES OF CLEVELAND POLICE RELIEF & PENSION FUND et al.

79 N.E.2d 316

149 Ohio St. 477

STATE ex rel. CUNAT v. TRUSTEES OF CLEVELAND POLICE RELIEF & PENSION FUND et al.

STATE ex rel. HANRAHAN v. TRUSTEES OF FIREMEN'S RELIEF & PENSION FUND OF CITY OF CLEVELAND et al.

STATE ex rel. GAUL et al. v. SAME.

STATE ex rel. MAY et al. v. TRUSTEES OF CLEVELAND POLICE RELIEF & PENSION FUND et al.

Nos. 31288-31291.

Supreme Court of Ohio

May 5, 1948

Syllabus by the Court.

Members of the fire and police departments of the city of Cleveland who retired in good standing from such departments and were duly awarded pensions after the effective dates of Sections 4612-1 and 4628-1, General Code (giving vested rights to pensions), and before the effective date of Sections 4612-4 and 4628, General Code, as amended (suspending the payment of pensions during the time pensioners hold 'an elective or appointive full-time salaried office or position in the service of the state or any political subdivision thereof'), and prior to the effective date of rules of the trustees of the pension funds involved likewise suspending pension payments, are not affected by the latter sections or such rules, and are entitled to receive the pensions granted them even though they re-enter public service of the character described in the statutes, which service is not in the departments from which they retired.

In Mandamus.

These four actions in mandamus invoke the original jurisdiction of this court. The causes are submitted upon the petitions answers, replies and agreed statements of fact.

All the relators are former members of the fire or police departments of the city of Cleveland and retired in good standing from their respective departments after long periods of service. Those who were firemen retired and were pensioned after the effective date of Section 4612-1, General Code, and those who were policemen retired upon pension after the effective date of Section 4628-1, General Code. These enactments are commonly known as the 'vested right' statutes.

Moreover all the relators retired prior to the time the General Assembly amended Sections 4612-4 and 4628, General Code, to provide that the payment of pensions should be suspended during the time the pensioners re-engaged in public service of a described character.

In conformity with the above amendments, on September 22, 1947, the trustees of the Firemen's Relief and Pension Fund of the city of Cleveland and the trustees of the Cleveland Police Relief & Pension Fund passed similar resolutions to the effect that those persons presently receiving pensions or disability benefits under the existing rules and regulations of the respective relief and pension funds, who are holding an elective or appointive full-time salaried office in the service of the state of Ohio, or any political subdivision thereof, shall not be entitled to any payments on or after September 24, 1947, while they are so employed.

Since all the relators held full-time salaried positions (one an elective office) in the service of political subdivisions of the state of Ohio at the time of and ever since September 22, 1947, their pension payments were discontinued. None of the relators, however, was re-employed in the fire or police departments of the city of Cleveland.

Each relator asks for a writ of mandamus ordering his restoration, as of September 24, 1947, to the pension rolls and the continuing payment of a pension in the amount he was receiving on such date.

Sanborn, Brown & Corlett, of Cleveland, for relators.

Lee C. Howley, Director of Law, and Robert J. Selzer, both of Cleveland, for respondents.

ZIMMERMAN Judge.

In 1947, the General Assembly amended Section 4612-4, General Code, relating to benefits and pensions for firemen, and Section 4628, General Code, relating to benefits and pensions for policemen, the effective date of each of such amendments being September 25, 1947. Both of such sections as amended close with the following language:

'No person shall be entitled to receive pension or disability payments pursuant to the provisions of this section while he is holding an elective or appointive full time salaried office or position in the service of the state or any political subdivision thereof.'

Section 4612-1, General Code, passed in 1937, 117 Ohio Laws, 30, amended in 1939, Ohio Laws, 286, and appearing under the heading 'Firemen's Pension Fund,' reads in part:

'The granting of relief or pension to any person or persons pursuant to the rules adopted by the trustees shall operate to vest a right in such person or persons to obtain and receive the amount fixed by the board of trustees.'

Section 4628-1, General Code, enacted in 1937 and appearing under the heading 'Police Relief Fund,' provides:

'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.'

In recent years this court has decided several cases with respect to pension awards to those who had been engaged in public service. See Mell et al. Trustees v. State ex rel. Fritz, 130 Ohio St. 306, 199 N.E. 72; State ex rel. White, Guardian, v. City of Cleveland, 135 Ohio St. 13, 18 N.E.2d 807; State ex rel. Carroll v. McCarthy, 139 Ohio St. 654, 41 N.E.2d 863; State ex rel. Lemperle v. McIntosh et al. Trustees, 145 Ohio St. 107, 60 N.E.2d 786; State ex rel. Hall v. Board of Trustees, Ohio, 78 N.E.2d 719.

The Mell case, decided in 1935, announced that, even where a pensioner has made compulsory contributions to a pension fund, the pension granted him by public authorities is a gratuity and does not partake of a vested or contractual right; wherefore 'an existing board of trustees of a pension fund has discretionary power to modify pension awards theretofore made by it or by predecessor boards, by increasing or reducing the amount thereof, provided the same is done reasonably and not arbitrarily.'

Subsequent to such decision and patently to change the rule established thereby, the General Assembly passed the 'vested right' statutes.

Referring to Section 4628-1, General Code, Judge Williams spoke as follows in the Lemperle case, supra [145 Ohio St. 107, 60 N.E.2d 788]:

'A pension, granted after the statute took effect, is vested insofar as the power of the trustees is concerned. The...