Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, s. 10850

• Decision Date: 28 January 1957
• Docket Number: Nos. 10850,10851,s. 10850
• Citation: 142 W.Va. 217,96 S.E.2d 225
• Court: West Virginia Supreme Court
• Parties: The BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR RELIEF FUND OF The CITY OF HUNTINGTON v. The CITY OF HUNTINGTON, a Municipal Corporation, et al. The BOARD OF TRUSTEES OF FIREMEN'S PENSION OF RELIEF FUND OF The CITY OF HUNTINGTON v. The CITY OF HUNTINGTON, a Municipal Corporation, et al.

Page 225

96 S.E.2d 225

142 W.Va. 217

The BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR RELIEF FUND

OF The CITY OF HUNTINGTON v. The CITY OF HUNTINGTON, a Municipal Corporation, et al.

The BOARD OF TRUSTEES OF FIREMEN'S PENSION OF RELIEF FUND OF

The CITY OF HUNTINGTON v. The CITY OF HUNTINGTON, a Municipal Corporation, et al.

Nos. 10850, 10851.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1956.

Decided Nov. 20, 1956.

Dissenting Opinion Jan. 28, 1957.

Syllabus by the Court

1. Though the provision of Code 1931, 8-6-16, as last amended and reenacted by Section 16, Article 6, Chapter 136, Acts of the Legislature, Regular Session 1953, requiring boards of trustees of policemen's and firemen's pension or relief funds of municipalities, subject to the provisions of Code 1931, 8-6, as amended and reenacted, to make a report of the condition of their respective funds on the 31st day of December of each year is mandatory, the dereliction on the part of such boards of trustees in that regard should not be invoked to thwart the strong salutary legislative policy which underlies the provisions of Code 1931, 8-6, as amended and reenacted, that members of paid police and fire departments of the municipalities of this State, subject to the provisions of the statute, should have the security and protection which is inherent in the establishment of solvent policemen's and firemen's pension or relief funds.

2. Under the rule of stare decisis and the holding of this Court in the case of Hamilton v. Mayor and Council of City of Charleston, 116 W.Va. 521 , Pt. 2 Syl., that the council of a municipality, subject to the provisions of Code, 1931, 8-6, as amended and reenacted, and not the boards of trustees of policemen's and firemen's pension or relief funds, is the sole levying body thereof, the Legislature may not vest in the boards of trustees of policemen's and firemen's pension or relief funds in cities of more than eight thousand three hundred population the authority to fix and determine the amount that the council or other governing bodies of such municipalities, subject to the provisions of the statute, shall levy in support of such funds.

3. Though under Section 3, Article VIII of the West Virginia Constitution, this Court has original jurisdiction in habeas corpus, mandamus and prohibition, the Court will not, in the first instance and in the absence of arbitrary action on the part of the council or other governing body of a municipal corporation, engage in determining or controlling the fiscal affairs of any municipal corporation in the State of West Virginia.

4. The words contained in Chapter 8, Article 6, Section 14, Code 1931, as last amended and reenacted by Chapter 124, Acts of the Legislature, Regular Session 1955, 'and, if necessary, in excess of one cent, but not in excess of three and one-half cents so as to meet the estimated expenditures of the boards of trustees of the respective funds', should not be construed as a valid and constitutional delegation to the boards of trustees of the policemen's and firemen's pension or relief funds of a municipality, subject to the provisions of the statute, as vesting in such boards of trustees the power to determine the amount of levies necessary to augment or maintain their respective funds; and the council of a municipality is not divested thereby of its power to determine and make the necessary levies, if any, in excess of one cent on each one hundred dollars valuation of property within the municipality.

5. The trust funds in the hands of the boards of trustees of the policemen's and firemen's pension or relief funds, established under the provisions of Code 1931, 8-6, as amended and reenacted, are public funds of the municipality under which such boards of trustees are created and operate.

6. Code 1931, 8-6-16, at last amended and reenacted by Section 16, Article 6, Chapter 136, Acts of the Legislature, Regular Session 1953, indicates a legislative intent that the trust funds provided by Code 1931, 8-6-14, as last amended and reenacted by Chapter 124, Acts of the Legislature, Regular Session 1955, should be maintained on a solvent basis.

7. The provision of Code 1931, 8-6-14, as last amended and reenacted by Chapter 124, Acts of the Legislature, Regular Session 1955, which reads: 'The levies authorized under this section, or any part of them, may by the council or other governing body be laid in addition to all other municipal leview, and to that extent beyond the limit of levy imposed by the charter of such municipality; and such levies shall supersede and if necessary exclude levies for other purposes if such priority or exclusion is necessary under limitation upon taxes or tax levies imposed by law', inhibits the council of a municipality, subject to the provisions of Code 1931, 8-6, as amended and reenacted, from depleting the funds in the hands of the boards of trustees of the policemen's and firemen's pension or relief funds of municipalities, subject to the statute, by failure to make proper levies in order to supplement and maintain other municipal levies.

8. The question whether the levying of a tax in excess of the minimum levy provided for by Code 1931, 8-6-14, as last amended and reenacted by Chapter 124, Acts of the Legislature, Regular Session 1955, is necessary to maintain the policemen's and firemen's pension or relief funds on a solvent basis is a legislative declaration of a matter which is primarily of a juristical nature.

9. Though the ascertainment of a legislative fact, which is primarily of a juristical nature, ordinarily will not be opened for judicial determination, this Court, under its holding in the case of Berry v. Fox, 114 W.Va. 513 , will give 'weight and dignity to a legislative declaration in respect of an existing condition as of fact but actually juristical.'

10. Where, under the original jurisdiction of this Court, Section 3, Article VIII of the Constitutional of West Virginia, proceedings in mandamus are instituted in this Court to require the Council of the City of Huntington to reconvene for the purpose of laying sufficient levies under Code 1931, 8-6-14, as last amended and reenacted by Chapter 124, Acts of the Legislature, Regular Session 1955, in excess of the minimum levy prescribed by the statute of one cent on each one hundred dollars valuation of property as listed in the City of Huntington, in which proceedings it appears from the record that the minimum levy of one cent on each one hundred dollars valuation of property, made by the Council of the City of Huntington, as shown by its budget for the fiscal year 1956-1957, is insufficient to maintain the policemen's and firemen's pension or relief funds of that municipality on a solvent basis, this Court will issue a writ of mandamus, directed to the Mayor and members of the Council of the City of Huntington, commanding the Council of the City of Huntington to be reconvened and lay levies for the fiscal year 1956-1957 in excess of the minimum levy of one cent on each one hundred dollars valuation of property as listed in the City of Huntington, but not more than three and one-half cents on each one hundred dollars valuation of property, being the limits prescribed by Section 14 of the statute, as last amended and reenacted but in issuing such writ this Court will not, in the first instance, determine the amount of the levies in excess of the minimum amount provided by Code 1931, 8-6-14, as last amended and reenacted, which may be necessary to raise the necessary sums of money to meet the required expenditures of the policemen's and firemen's pension or relief funds of that municipality as estimated by such council.

Ducker, Keadle & McCreight, Huntington, for relators.

Russell C. Dunbar, Huntington, for respondents.

RILEY, Judge.

These are companion proceedings in mandamus, in one of which the petitioner is the Board of Trustees of the Policemen's Pension or Relief Fund of the City of Huntington, a corporation, and in the other the petitioner is the Board of Trustees of the Firemen's Pension or Relief Fund of the City of Huntington, a corporation. In both proceedings the City of Huntington, a municipal corporation, George E. Theurer, Mayor of the City of Huntington, David Fox, Jr., Elmer Kitchen, C. J. Lattin, Roy O. Deskins, Jesse B. Simons, Jack L. Gibson, Harold R. Ridenour, Herman S. Rice, A. J. Meadows, James D. Boardwine, Charles A. Adkins, Milford Jenkins and Joe Duffey, as members of the Council of the City of Huntington, are respondents. The proceedings were instituted under the original jurisdiction of this Court, wherein petitioners in their respective petitions seek a peremptory writ of mandamus, commanding and directing the respondents to levy on each one hundred dollars valuation of real and personal property listed for taxation in the City of Huntington at a rate not to exceed three and one-half cents on each one hundred dollars of property valuation as will produce the amount of tax moneys necessary to pay in full the estimated expenditures submitted by the petitioners to the Council of the City of Huntington as the fiscal and levying body thereof for the fiscal year beginning July 1, 1956, and ending June 30, 1957.

In their respective petitions the petitioners allege that each is an existing corporation, created by ordinance of the City of Huntington, adopted on June 7, 1926, by the Council of the City of Huntington, a municipal corporation, under and by virtue of Code 1931, 8-6-14, as last amended and reenacted by Chapter 124, Acts of the Legislature 1955; that each petitioner is vested by law with the right and duty of administering the funds and property comprising the Policemen's and the Firemen's Pension or Relief Funds of the City of Huntington, and possesses all of the powers and duties as set forth in Code 1931, 8-6-14, as amended and reenacted.

The petition in which the Board of Trustees of the Policemen's...