Bailey v. City of Tampa, 33558
| Decision Date | 12 May 1965 |
| Docket Number | No. 33558,33558 |
| Citation | 175 So.2d 533 |
| Parties | DeWitt C. BAILEY, Chauncey K. Haynes, Hampton V. Murrell, Rozwell E. Kenna, Louis Steward, Newell N. Wright, Petitioners, v. CITY OF TAMPA, a municipal corporation of the State of Florida, Julian B. Lane, as Mayor of said City, Hobart D. Peihank, as Chairman of the Board of Trustees of the Fire and Police Pension Fund and Finance Director of said city, et al., Respondents. |
| Court | Florida Supreme Court |
Writ of Certiorari to the District Court of Appeal, Second District.
Mitchell & Mitchell, Tallahassee, and Cowart & Dollar, Miami, for petitioners.
Wm. Reece Smith, Jr., and Theodore C. Taub, Tampa, for respondents.
Upon careful re-examination of the record in the light of oral argument, we are convinced there is no conflict between the decision of the District Court of Appeal and any decision of this Court or another District Court of Appeal justifying exercise of jurisdiction by this Court, so the writ of certiorari is discharged.
We have for consideration a petition for writ of certiorari seeking review of a decision of the District Court of Appeal, 2nd District, in the case of DeWitt C. Bailey, et al., v. City of Tampa, et al., 163 So.2d 528 (Fla.App.2nd).
The petitioners, DeWitt C. Bailey, Chauncey K. Haynes, Hampton V. Murrell, Rozwell E. Kenna, Louis Stewart and Newell N. Wright, are retired police officers of the City of Tampa and members of the Police and Fire Pension Fund of the City of Tampa. They filed complaint for declaratory decree in the Circuit Court for Hillsborough County to determine their rights to participate in the benefits of F.S. Chapter 185, F.S.A., the general law creating the state's Municipal Police Officers' Retirement Fund. The City and other officials of the City were named as defendants in the suit, and filed their answer to the Bill of Complaint.
The chancellor upon final hearing dismissed the Bill of Complaint and upon appeal the District Court of Appeal, 2nd, affirmed.
Chapter 21590, Laws of Florida, Special Acts 1941, provided for the creation of the City Pension Fund for Firemen and Policemen in the City of Tampa. Twelve years subsequent to the enactment of Chapter 21590, the Legislature passed Chapter 28230, Laws of Florida 1953, a general law. As amended, it appears in the Florida Statutes as Chapter 185 and created the state's Municipal Police Officers' Retirement Trust Fund.
Chapter 21590 provided for the levy of one mill upon all the taxable property in the city and an additional mill levy to meet the annual requirements of said firemen and policemen pension fund, until the proceeds derived from said levies, taken together with other revenues provided by said chapter or any other law, had accumulated a reserve in the fund of $500,000, after which the City was authorized to levy whatever was required to maintain the fund in an amount not less than $500,000.
This pension system under Chapter 21590 is an elective one, and those policemen and firemen not electing to participate therein are covered by the general city employees' retirement system. Each member of this system executed an individual contract with the City setting forth the mutual obligations of the parties.
The policemen's contribution to the fund originally was 2% of their wages, but was subsequently increased to 4%.
To satisfy its obligations under the pension contracts, the City levied at least one mill until 1960. The City followed a policy of varying its property tax contribution so that the fund balance at the end of a year showed a gradual increase. In 1959 the fund balance was $1,427,077.33, and in 1960, 1961 and 1962 the City contributions were materially decreased below the revenue a one-mill levy could produce.
From the inception of the City pension fund for firemen and policemen, the proceeds from a 1% tax on fire insurance policy premiums as authorized by F.S. Chapter 175, F.S.A., has been deposited in the fund for the exclusive benefit of municipal firemen.
In 1953 the City adopted Ordinance 1571-A which imposed a 1% tax on casualty insurance premiums as authorized in 1953 by said F.S. Ch. 185, F.S.A., for the exclusive benefit of policemen. However, the City followed the policy of commingling the tax monies produced by Ch. 185 with other revenues in its police and firemen's pension fund and used the same along with other revenue in the fund to pay benefits to policemen as provided in their contracts.
Regarding issues presented in the appeal to the District Court of Appeal, we quote from its opinion as follows:
In other words, the contention of the six retired policemen in the circuit court and in the District Court of Appeal was that they were entitled to the retirement benefits of Ch. 185 in addition to those provided by Ch. 21590, as amended, as specified in their retirement contracts, and that consequently none of the retirement pension benefits arising from the operation of the provisions of either of said laws, general or local, could be affected or reduced by the funds provided by the other law.
The District Court of Appeal examined the cases of Jackson v. McGrath (1945), 155 Fla. 565, 20 So.2d 907, and City of Miami v. Carter (Fla.1958), 105 So.2d 5, relied upon by appellants, but concluded they did not support appellants' position. For example, in its consideration of City of Miami v. Carter, the District Court of Appeal said this Court construed F.S. Ch. 175, F.S.A., to require that when a city levies the 1% tax upon fire insurance policy premiums it must:
'1. Deposit the proceeds of such tax in a 'firemen's relief and pension fund', a 'city pension fund for firemen and policemen' or in a similar special fund.
It also held that F.S. Ch. 175, F.S.A., and F.S. Ch. 185, F.S.A., have the same meaning, effect and intent except the former relates to firemen and the latter to policemen.
It upheld the chancellor who ruled: Ch. 185 authorizes a municipality to set up its own retirement plan for policemen; that the City of Tampa had such a plan which met the standards prescribed in F.S. § 185.35, F.S.A.; that the taxes levied on insurance premiums may be placed in the City's existing pension fund for the exclusive use of their policemen or such funds may be used to pay extra benefits to policemen (F.S. § 185.35, F.S.A.); and that Ch. 185 does not require that the tax monies derived thereunder be kept in a general or joint fund for firemen and policemen, provided proper control accounts are maintained so that separation or identification of the funds for the benefit of policemen is maintained. The chancellor found such controls were provided which prevented the use of said funds for other than the pensions the policemen were entitled to. The chancellor concluded:
'* * * and it is the court's belief that the City of Tampa has adequately met this prerequisite and the other necessary requirements for legal and proper utilization of the tax funds in the adoption of proper ordinances, the entry of proper contracts with beneficiaries and in its accounting and administration of the funds for the benefit of policemen.'
Appellants insisted that the contractual obligations of the City to policemen participating in the local pension plan had been reduced by utilization of said tax proceeds accruing to it under Ch. 185; that said Chapter has benefited the City rather than the policemen. But the District Court of Appeal rejected this contention.
In their petition for writ of certiorari, petitioners contend the decision of the District Court of Appeal conflicts with Jackson v. McGrath and City of Miami v. Carter, supra, and with City of Miami v. Hall, 105 So.2d 499 (Fla.App. 3rd).
Accepting the view of the District Court of Appeal that Ch. 185 has similar meaning and effect as to city policemen as does Ch. 175 to city firemen, it is appropriate that said cases relied upon by petitioners be examined to determine if a direct conflict exists with the instant case decision invoking our certiorari jurisdiction.
It is my view there is conflict between the decision of the District Court of Appeal and the holding in City of Miami v. Carter, supra. It appears in the latter case that from 1939 to 1952 the City of Miami, pursuant to F.S. Ch. 175, F.S.A., imposed a 1% tax on the gross receipts of all premiums collected on fire and tornado insurance policies covering property within the city; that in 1939 the City of Miami created 'The Miami City Employees' Retirement System,' and during the years 1940 through 1952 paid into such fund all proceeds of said 1% tax on insurance premiums. The firemen, who were plaintiffs in the case, contended they were deprived of the full benefit of said funds. The City on the other hand insisted that said premium taxes produced $434,946.00 from 1939 through 1951 and the City had...
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Artz v. City of Tampa
...of the legislature, the 3.5% multiplier would be effective only if approved by special act of the legislature. See Bailey v. City of Tampa, 175 So.2d 533, 534 (Fla.1965) (Ervin, J., dissenting from discharge of certiorari review) (explaining that the legislature, in 1941, created Tampa's Pe......