Board of Trustees of Policemen's Pension Fund of City of Pueblo v. Starasinich, 17052

• Citation: 264 P.2d 1033,128 Colo. 556
• Decision Date: 04 January 1954
• Docket Number: No. 17052,17052
• Parties: BOARD OF TRUSTEES OF POLICEMEN'S PENSION FUND OF CITY OF PUEBLO et al. v. STARASINICH.
• Court: Supreme Court of Colorado

Page 1033

264 P.2d 1033

128 Colo. 556

BOARD OF TRUSTEES OF POLICEMEN'S PENSION FUND OF CITY OF PUEBLO et al. v. STARASINICH.

No. 17052.

Supreme Court of Colorado, En Banc.

Jan. 4, 1954.

John H. Marsalis, Pueblo, for plaintiffs in error.

Frank A. Bruno, H. D. Reed, Denver, for defendant in error.

HOLLAND, Justice.

Defendant in error Starasinich, hereinafter referred to as petitioner, on his petition in the district court was awarded pension benefits growing out of injuries received during his twenty-three years of service as a policeman under civil service by the city of Pueblo, from which position he was discharged on July 30, 1949 for misconduct. He filed his petition for reinstatement in the district court in December of 1949, and later amended. He was awarded back payments in the sum of $2,726.22, with interest from May 1, 1951 through January 31, 1953, and a monthly pension of $123 being one-half of his monthly pay at the time of discharge, from and after February 1, 1953. The Board of Trustees of the Policemen's Pension Fund of the City of Pueblo and its individual members are here by writ of error to review this judgment.

Plaintiffs in error contend that the petitioner was not qualified or eligible for a pension based on disability under section 524, chapter 163, '35 C.S.A., which is as follows 'If any member [or] officer of any police department shall become mentally or physically disabled so as to render necessary his retirement from service in such department, said board of trustees shall retire such member from service in such department, and he shall receive from the pension fund * * *.'

They contend that the applicant must be a member of the police department at the time of his application in order to be eligible, and further, that discharge or resignation thereby terminating membership forfeits any claim to a pension unless provided otherwise by statute. It further is contended that the trial court did not have jurisdiction or authority to award a pension, because the pension board had not acted upon the merits of petitioner's claim, but had personally advised him that he had 'no status' for a pension; that this duty delegated to the pension board is executive and not administrative in character and grants to the board the right of discretion to determine a case on its merits and unless its decision was clearly arbitrary, capricious or showed an abuse of discretion and was contrary to the evidence, the court was without jurisdiction to disturb such decision; finally, that if the trial court clearly determined that petitioner did have status to apply for a pension, then the court had authority only to order the board to hear and determine petitioner's application and report its findings back to the court; and that the court did not have jurisdiction to exercise the functions duly delegated to the board to hear and determine the merits of the case. Petitioner contends that the statutes and ordinances require only that he be a member in good standing at the time of suffering his injury and disability, and that there is no requirement that he be a member in good standing at the time of his application; that his discharge for misconduct has no effect upon his application for pension when such application is based upon a physical disability suffered and incurred prior to the time of discharge and while the applicant was a member in good standing; that the denial of petitioner's application by the pension board was not based upon any theory of misconduct; and that the trial court had authority to determine the pension status of the case, because such determination was upon stipulated facts. The substance of the stipulated facts is to the effect that on June 19, 1926, petitioner was duly certified to the position of patrolman in the police department by the Civil Service Commission of Pueblo, and entered upon his duties immediately; that he continued therein until July 30, 1949; that from the date of his appointment to and including the date of his discharge he contributed one per cent of his monthly salary to the Policemen's Pension Fund; that on July 28, 1949, upon complaints of alleged misconduct, he was suspended from his duties, and after a hearing, on July 30, 1949, was discharged from the service; that at that time his salary was $246 per month. The evidence shows that at the time he was certified to enter upon his duties, it was shown by a physical examination that he had no disability; that on March 15, 1942, he was injured while in the course of his duty and was hospitalized and as a result of this injury, suffered sixty per cent loss of hearing in both ears; and the condition is now diagnosed as mastoiditis; that for more than fourteen years he suffered from an injury to his knees while in the performance of his duties as a patrolman; that he received treatment by the police surgeon of the city of Pueblo from time to time, which treatment required a withdrawal of fluid from both knees. These conditions, as a result of...