Board of Trustees of Police Pension Fund of City of Terre Haute v. State ex rel. Russell

• Decision Date: 28 September 1966
• Docket Number: No. 30856,30856
• Citation: 219 N.E.2d 886,247 Ind. 570
• Parties: BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF TERRE HAUTE, Indiana, Ralph Tucker, Frank Riddle, Paul B. Sheehan, George Maloof, Carl L. Belt, John S. Beasley, Gerald E. Walls, James L. Swift, James E. Michaels, as Members of the Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, Appellants, v. STATE of Indiana on Relation of Carl M. RUSSELL, Relator, Appellee.
• Court: Indiana Supreme Court

Page 886

219 N.E.2d 886

247 Ind. 570

BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF TERRE HAUTE, Indiana, Ralph Tucker, Frank Riddle, Paul B Sheehan, George Maloof, Carl L. Belt, John S. Beasley Gerald E. Walls, James L. Swift, James E. Michaels, as Members of the Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, Appellants, v. STATE of Indiana on Relation of Carl M. RUSSELL, Relator Appellee.

No. 30856.

Supreme Court of Indiana.

Sept. 28, 1966.

Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellants.

N. George Nasser, Terre Haute, for appellee.

MYERS, Judge.

This was an action based upon a complaint for mandate by relator Carl M. Russell ex rel. the State of Indiana against the Board of Trustees of the Police Pension Fund of the City of Terre Haute (hereinafter referred to as the Board) and the individual members thereof to mandate the Board to order relator to appear before an examining physician appointed by the Board for the purpose of undergoing a physical examination as required by law and to delete a requirement adopted by the Board that any one becoming a member of the Police Pension Fund must be at least five feet nine inches in height. An answer in two paragraphs was filed by respondents setting up the requirement of the Board as an affirmative defense. A reply was filed by relator which closed the issues. Trial was held by the Hon. Joe W. Lowdermilk, as Special Judge, without the intervention of a jury. A stipulation was agreed upon by all the parties as comprising all the evidence in the cause, and it was introduced as such. Omitting formal parts, it reads as follows:

'Relator and respondents stipulated and agree that the following comprise all the evidence in said cause and shall be introduced in evidence as such.

'It is stipulated and agreed by the parties to this action that on July 16, 1963, the Board of Public Works and Safety of the City of Terre Haute, Indiana, selected Relator and others for appointment to the Police Department of the City of Terre Haute, pursuant to the recommendation of the Mayor of said city, and directed Chief of Police Riddle to cause Relator to appear before the Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, to submit to a physical examination as said Board of Trustees required for membership in said Police Pension Fund of said city.

'That said Board of Trustees of said Pension Fund, the respondents herein, on July 16, 1963, refused to refer Relator to said Police Pension Fund's physician for purpose of having Relator examined by their physician as a prerequisite to appointment to the Police Department of the City of Terre Haute and for membership in said Police Pension Fund of said city, for the reason Relator did not meet the height qualifications established by said Board of Trustees for membership in said Police Pension Fund.

'It is further stipulated and agreed that on October 17, 1962, respondents as Trustees of the Police Pension Fund of the City of Terre Haute passed and adopted a requirement, that as part of the physical examination for membership in said Pension Fund, an applicant for membership in said Pension Fund must be not less than five feet nine inches in height.

'It is further agreed and stipulated that Relator at time of his application for membership in said Police Pension Fund, to-wit, July 16, 1963, he was five feet eight inches, which fact was before the Board of Trustees of the Police Pension Fund at the time it refused to send Relator to the Police Pension Fund doctor.

'It is further agreed and stipulated that the Board of Public Works and Safety on April 6, 1963, adopted a resolution, pertaining to the height of a police applicant wherein an applicant must be not less than five feet eight inches in height in their stocking feet and not less than 150 pounds nor more than 225 pounds in weight, sound in body and health * * * That Relator meets these qualifications.

'It is stipulated and agreed that respondents contend they have a legal right to set the minimum height of five feet nine inches as part of their physical examination for admission to said Pension Fund. Relator disputes this right and says that the height of any applicant is not part of a physical examination.

'It is stipulated and agreed that Relator, who is and was five feet eight inches, contends the Board of Works and Safety's rule pertaining to the height of five feet eight inches is the necessary prerequisite for admission to the Police Department and makes him eligible to membership in said Police Pension Fund. Respondents disagree with this contention and say that their rule of five feet nine inches is binding on any applicant.

'That said parties hereto submit this stipulation to the Court so that same may be made a part of the record in said cause for final determination by this Court.'

Thereafter a decree was entered which, omitting formal parts, reads as follows:

'The parties having heretofore entered into an agreed stipulation of facts in this cause in lieu of other evidence, and the Court having taken its finding under advisement, and now having considered the stipulation of facts submitted, the briefs on the law, and being duly and fully advised in the premises, now finds for the Relator, Carl M. Russell, that he is entitled to an order of this Court requiring the defendants, Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, Ralph Tucker, Frank Riddle, Paul B. Sheehan, George Maloof, Carl L. Belt, John S. Beasley, Gerald E. Walls, James L. Swift, James E. Michaels, as members of the Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, to designate the medical physician to accept the relator as a candidate for the purpose of undergoing such physical examination as required by law. Said examinations is (sic) to be effective as of July 16, 1963, and thereafter.

'IF IT THEREFORE ORDERED AND ADJUDGED AND DECREED by the Court that the respondents, Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, and said individual members thereof, are hereby mandated and ordered to have relator to appear before an examining physician appointed by such Board of Trustees and for the purpose of said relator submitting to a physical examination as required by law; said examination to be effective as of July 16, 1963, and thereafter.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that said Board of Trustees of the Police Pension Fund of the City of Terre Haute, Indiana, and said members thereof, who are the respondents herein, are mandated and ordered forthwith to delete from its physical examination requirements all matters pertaining to the minimum height of candidates for appointment to the police department of the City of Terre Haute, Indiana.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said relator herein present himself for a physical examination before an examining physician appointed by such Board of Trustees as required by law and said respondents herein are mandated and ordered to have the physical examination for said relator to determine if he is lawfully entitled to become a member of the police department of the City of Terre Haute, Indiana.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant pay the costs of this action.'

Motion for new trial was filed based upon the ground that the decision of the court was contrary to law which was overruled, and this appeal followed. Appellants assign as error the overruling of the motion for new trial.

It is argued by appellants that he decision is contrary to law because it constitutes an invasion by the trial court of the exclusive province of the Board of Trustees to determine just what physical requirements should be passed by applicants to the police force and Pension Fund. In support of their contention, they cite Burns' Ind.Stat., § 48--6407, 1963 Replacement, which says in pertinent part:

'No person shall be appointed or reappointed as a member of the police force of any such city (this section includes the City of Terre Haute) unless he shall successfully pass such physical examination as may be required by the trustees of the police pension fund of such city.'

Also cited are subsequent sections of the statute which refer to police officers who were in active service at the time of passage of the act who (1) belonged to the Pension Fund (Burns', § 48--6407), and those who (2) did not belong at the time of passage of the act (Burns', § 48--6408). The former were required to have previously passed physical examination required by the Board of Trustees, and the latter were required to successfully pass such physical examination as required by the Board before they were entitled to benefits.

Appellants say in their brief (pp. 34--35):

'The purpose of the physical examination is obvious. It is to prevent the pension fund from being excessively drained by the appointment of policemen not meeting the highest standards of health and physical ability. This purpose is covered in the express powers granted the trustees.'

It is then argued that...