Board of Fire Com'rs of City of Baltimore v. Potter, 176

• Decision Date: 28 February 1973
• Docket Number: No. 176,176
• Citation: 300 A.2d 680,268 Md. 285
• Parties: The BOARD OF FIRE COMMISSIONERS OF the CITY OF BALTIMORE et al. v. Thomas F. POTTER.
• Court: Maryland Court of Appeals

Page 285

268 Md. 285

300 A.2d 680

The BOARD OF FIRE COMMISSIONERS OF the CITY OF BALTIMORE et al. v. Thomas F. POTTER.

No. 176.

Court of Appeals of Maryland.

Feb. 28, 1973.

Simon Schonfield, and J. Warren Eberhardt, Asst. City Solicitors (George L. Russell, Jr., City Sol., Baltimore, on the brief), for appellants.

Samuel M. Campanaro, Baltimore, for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES and LEVINE, JJ.

MURPHY, Chief Judge.

This appeal is from an order of the Baltimore City Court (Harris, J.) granting a writ of mandamus directing that appellants, Board of Fire Commissioners of the City of Baltimore (the Fire Board), the Mayor and City Council of Baltimore (the City) and the Trustees of The Fire and Police Employees' Retirement System of the City of Baltimore (Retirement System) pay appellee. Thomas F. Potter (Potter), his full salary from December 11, 1970 to June 3, 1971; and commanding the Retirement System to revise its records to indicate June 3, 1971 as the effective date of Potter's retirement from the Fire Department on special disability retirement benefits.

Potter, a Battalion Chief with thirty-four years service with the Fire Department, was placed 'off-duty' by the Department's physician on June 12, 1970 due to a 'line of duty' injury to his right heel sustained on June 3, 1970. He thereafter was hospitalized three times and underwent surgery four times prior to December of 1970. On December 4, 1970, at the Department's suggestion, Potter applied to the Retirement System for special disability retirement benefits pursuant to Baltimore City Code (1966 Ed.), Article 22, § 34(e), which provides:

'Upon the application of a member or the head of his department, any member who has been totally and permanently incapacitated for duty as the result of an injury arising our of and in the course of the actual performance of duty, without wilful negligence on his part, shall be retired by the Board of Trustees, provided that the medical board shall certify that such member is physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired.'

Informed by the Retirement System of Potter's application, the Fire Board removed Potter from the Department's payroll on December 11, 1970. Shortly thereafter, the Fire Board promoted another employee to fill Potter's position as Battalion Chief. From December 11, 1970 to January 4, 1971, Potter received no payments from either the Fire Board or the Retirement System. Between January 4, 1971 and April 1, 1971, the Retirement System paid Potter ordinary service retirement benefits as a voluntary stop-gap measure pending final decision on his application for special disability benefits. ¹

On April 1, 1971, the Retirement System approved Potter's application for special disability benefits to 'become effective the first day following the last day for which he will be paid on the regular departmental payroll.'

On April 5, 1971, the Fire Board, having received confirmation that the Retirement System had approved Potter's application for special disability benefits, requested a supplemental appropriation from the City to pay Potter his full salary from December 11, 1970 to June 3, 1971 pursuant to Baltimore City Code, Article 9, § 13, which provides:

'Any member of the Fire Department of the City of Baltimore, receiving injury or becoming disabled, while in the discharge of his duties, so as to prevent him from following his daily occupation or attending to his duties as a member of said department, such member shall, for the space of twelve months, provided his disability shall last that time, receive his usual salary.'

The Fire Board's request for the supplemental appropriation was denied; the denial was based on an opinion of the City Solicitor, dated June 25, 1971, which concluded that because salary benefits payable under Article 9, § 13 can only be made to a 'member of the Fire Department,' after Potter was determined to be within the mendatory retirement provisions of Article 22, § 34(e), he was no longer a 'member' of the Department and thus was not entitled to benefits under Article 9, § 13. The City Solicitor ruled that the effective date of Potter's retirement on special disability benefits was December 4, 1970, this being the date of Potter's application therefor, and that he was eligible for full salary benefits under Article 9, § 13 only from June 3, 1970 to December 4, 1970.

Potter claimed that he was entitled to one year full salary under Article 9, § 13, and, at the expiration of that year, to special disability retirement benefits under Article 22, § 34(e). He urged that the benefits provided by Article 22, § 34(e) supplemented those provided under Article 9, § 13, the latter providing protection to the injured employee during the fixed and definite recuperative period of a year (provided his disability shall last that time), and the former section providing for his retirement benefits in the event the injuries he sustained were found by the Retirement System to be permanent and the employee no longer able to perform his duties in the Fire Department. In support of his position, Potter maintained that both ordinances were mandatory; that they were not inconsistent with each other; that they could be construed so as to complement each other; that the ordinances constituted remedial legislation and required a liberal construction in favor of the employee in order to effectuate their benevolent purposes; and that administrative officials charged with their enforcement had consistently so construed the ordinances.

Answering Potter's suit, the appellants contended that he was entitled to full pay through December 11, 1970, but that after that time, when it became apparent from Potter's physical condition, and from his application for special disability retirement benefits, that his injury would permanently incapacitate him, the provisions of Article 22, § 34(e) became operative and interdicted Potter's claim to full salary benefits under Article 9, § 13. Applying the definitions contained in the 'Pension Ordinance,' Article 22, §§ 30 and 31, ² appellants maintained that from the date Potter received pension benefits he was no longer a 'member' of the Fire Department within the meaning of Article 9, § 13. Appellants maintained that by enactment of Article 22, § 34(e), Article 9, § 13 was repealed, either expressly by Article 22, § 40(c) ³ or by necessary implication to the extent of the inconsistency.

The parties agreed that Potter was not entitled to simultaneously receive both Article 9, § 13 salary payments and Article 22, § 34(e) special disability retirement benefits; that the former required that the recipient be a member of the Department, the latter that he be retired from that position as a beneficiary of the Retirement System; and that the requirements were Mutually exclusive and the monies could not be simultaneously received.

At the trial before Judge Harris evidence was introduced-not disputed by appellants-that prior to Potter's case it was the long-standing administrative practice of the City and the Fire Board to pay a fireman, injured in the line of duty, his full salary for one year subsequent to his date of injury (if his disability lasted that long) in accordance with the provisions of Article 9, § 13.

In deciding that Potter was entitled to his full salary for one year under Article 9, § 13, and thereafter to special disability retirement benefits under Article 22, § 34(e), Judge Harris, in a very lucid analysis, said:

'An examination of Article 9, Section 13 and Article 22, Section 34(e) reveals, although different verbiage is used, that both ordinances relate to employees who have been injured in the course of their employment i. e., 'line of duty' injuries. Statutes which relate to the same general subject matter, and which are not inconsistent with each other, should be construed together so that, if possible, they will harmonize with each other and be consistent with their general object and scope, even though they were passed at different times and contain no reference to each other. May v. Warnick, 227 Md. 77 (175 A.2d 413) (1961). However, if the provisions of such statutes are irreconcilable, the later statute governs to the extent of the conflict. Department of Motor Vehicles v. Greyhound Corp., 247 Md. 662 (234 A.2d 255) (1967). (Article 22, Section 34(e) is the later ordinance here, having been enacted in 1962; Article 9, Section 13 was originally enacted in 1879).

'Thus, the inquiry of this Court narrows to the question of whether there is any manifest inconsistency between Article 9, Section 13 and the relevant sections of Article 22.

'This Court finds no inconsistency between them. The only limitation which Article 9, Section 13 places upon a member of the Fire Department, in collecting his full salary for a twelve month period subsequent to the date of his injury, is that the injury must last for that period of time. Article 22, Section 34(e), does not place any limitation on the period of time in which a member must be retired to be paid special disability benefits. Compare Sections 34(a) (Service Retirement Benefits) and 34(c) (Ordinary Disability Retirement Benefits), under which the Board of Trustees must retire a member in service not less than thirty nor more than ninety days following the date of the filing of the application for retirement.

'If Article 22, Section 34(e) included a time period during which it becomes mandatory for a fireman, injured in the line of duty, to be retired, perhaps the defendants' argument would be valid. However, absent any express authorization in the ordinance for the defendants to remove the petitioner from the 'active' payroll, and absent any mandatory retirement period (less than the twelve month period following the injury as provided in Article 9,...