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

• Decision Date: 24 November 1948
• Docket Number: 31288-31291.
• Citation: 82 N.E.2d 743,150 Ohio St. 377
• Court: Ohio Supreme Court
• Parties: STATE ex rel. CUNAT v. TRUSTEES OF CLEVELAND POLICE RELIEF & PENSION FUND et al. and three other cases.

82 N.E.2d 743

150 Ohio St. 377

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

Nos. 31288-31291.

Supreme Court of Ohio

November 24, 1948

Sanborn Brown & Corlett, of Cleveland, for relators.

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

ZIMMERMAN Judge.

This opinion is supplemental to the one reported in 149 Ohio St 477, 79 N.E.2d 316, and should be considered therewith. The syllabus to the former opinion reads as follows: '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 the departments from which they retired.'

Upon the original presentation of these cases, it was represented to this court and assumed by both sides that all the relators herein were awarded pensions or disability benefits between the effective dates of the so-called 'vested right' statutes, Sections 4612-1, and 4628-1, General Code, and the effective date of Sections 4612-4 and 4628, General Code, as amended, which latter sections provide among other things and in effect that the payment of pensions or disability benefits shall be suspended during the time pensioned firemen or policemen re-engage in remunerative public service for the state or any political subdivision thereof.

It now appears from the supplemental stipulations of fact, filed subsequent to the original opinion and before rehearing was allowed, that only some of the relators are within the above category. They are James Cunat, Orley May, Mason Nichols James Seidhamel, Joseph Sweeney, John A. Wolf, Mark M. Price, Sr., George A. Hanrahan, George A. Smith, John J. Miller, Thomas F. McManaman, Richard Benjamin, James O'Neill, William J. Saunders, Joseph F. Sweeny, George T. O'Malley and Herman C. Boege.

These relators come squarely within the terms of the quoted syllabus and may not, because of their present public employment, be deprived of the pensions or disability benefits previously awarded them.

According to the supplemental stipulations of fact, the relators James F. Gaul, Thomas E. Barrett, John Flynn and John Toner, engaged in public service for pay with the state or its political subdivisions, were awarded their pensions or disability benefits some time prior to the effective dates of the so-called 'vested right' statutes, referred to above.

What is their status?

The case of State ex rel. Lemperle v. McIntosh et al., Trustees, 145 Ohio St. 107, 60 N.E.2d 786, following the principles announced in the cases of Mell et al., Trustees, v. State ex rel. Fritz, 130 Ohio St. 306, 199 N.E. 72, and State ex rel. Carroll v. McCarthy, 139 Ohio St. 654, 41 N.E.2d 863, holds that the so-called 'vested right' statutes deny the trustees of a relief and pension fund the power to take away or impair the right of a pensioner to a pension granted subsequently to the effective dates of those statutes, but does not affect the trustees' right to pass rules altering pensions previously granted.

In the course of the opinion in the Lemperle case, supra, the remark is made [145 Ohio St. 107, 60 N.E.2d 788]: 'It cannot be denied that there are now two classes of pensioners, those whose pensions are gratuitous and those whose pensions are vested. This classification or distinction was created not by the rule [of the trustees] but by the enactment of the vested-interest statute. Previous to its adoption certain pension rights were outstanding and subsisting,...