City of Cincinnati v. Gamble

• Decision Date: 07 May 1941
• Docket Number: 28232,28233 and 28234.
• Citation: 138 Ohio St. 220,34 N.E.2d 226
• Parties: CITY OF CINCINNATI v. GAMBLE et al., Board of Trustees of Retirement System, et al. STATE ex rel. ELLIS, City Solicitor, v. STEWART et al. (two cases).
• Court: Ohio Supreme Court

34 N.E.2d 226

138 Ohio St. 220

CITY OF CINCINNATI

v.

GAMBLE et al., Board of Trustees of Retirement System, et al.

STATE ex rel. ELLIS, City Solicitor, v. STEWART et al. (two cases).

Nos. 28232, 28233 and 28234.

Supreme Court of Ohio

May 7, 1941

Syllabus by the Court.

1. By virtue of Sections 3 and 7 of Article XVIII of the Constitution, a municipality, irrespective of whether it has adopted a charter, has powers of local self-government and may adopt and enforce within its limits such local police sanitary and other similar regulations as are not in conflict with general law.

2. A municipality's powers of local self-government are, under Section 13, Article XVIII of the Constitution, subject to the authority of the General Assembly (a) to pass laws limiting the power of municipalities to levy taxes and incur debts for local purposes and (b) to require reports as to financial conditions and transactions and provide for examination of vouchers, books and accounts of municipal authorities or of public undertakings conducted by such authorities.

3. In matters of state-wide concern the state is supreme over its municipalities and may in the exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state.

4. In general, matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty.

5. The establishment of retirement allowances, pensions and death benefits for firemen and policemen is governed by Sections 4600 et seq. and 4616 et seq., General Code, respectively.

Appeal from Court of Appeals, Hamilton County.

These three actions were filed originally on the 8th day of February 1939, in the Court of Common Pleas of Hamilton county, Ohio, and all were submitted and heard together. Each was disposed of in the trial court on a general demurrer to the answer. The appeals likewise were submitted and heard together in the Court of Appeals and in this court.

Cause No. 28232 is an action in injunction in which the plaintiff seeks a restraining order and mandatory injunction to terminate the application of the retirement system of the city of Cincinnati to policemen and firemen, and to restore to the general fund of the city and to policemen and firemen amounts previously contributed to such retirement fund.

The second amended petition names as defendants, the city auditor, the city treasurer, the chief of police, the chief of the fire department and the members of the board of trustees of the retirement system. The following facts appear in the allegations of the amended petition together with references to certain statutes:

On April 23, 1902, the General Assembly passed House Bill No. 934 (95 Ohio Laws, 223), which authorized the levy of taxes in municipalities to provide for firemen's and policemen's pension or relief funds and to create boards of trustees for the administration of the funds. On May 12, 1902, the council of the city of Cincinnati passed two separate ordinances declaring, pursuant to Sections 1(a) and 2(a) of such House Bill No. 934 (now Sections 4600 and 4616, General Code), the necessity for establishing a firemen's pension fund and a police relief fund, respectively. So there have been, and still continue to be in existence, in the city of Cincinnati, legally established firemen's pension and police relief funds established in accordance with such House Bill No. 934.

After the commencement of the action, Section 4600, General Code was amended (118 Ohio Laws, 283) by providing that in all municipalities having fire departments supported in whole or in part at public expense and employing two or more full time regular members, there shall be established and maintained a firemen's relief and pension fund, and by providing further for the appointment of a board of trustees of such fund. In this same bill Section 4614, General Code, was also amended by providing that the newly created board of trustees should be successor to the existing board of trustees of the firemen's pension fund.

Since the commencement of this action, Sections 4609 and 4625 have been amended so as to provide in substance that firemen and policemen shall contribute two per cent of their salaries to the firemen's relief and pension fund and to the police relief fund respectively.

On June 24, 1931, the council of the city of Cincinnati passed an ordinance to establish a retirement system for certain employees of the city. Section 20-42, paragraph 1-a provides:

'All persons who become employees of the city on and after the first day of August, 1931, shall become members of the retirement system and shall receive no pension or retirement allowance from any other pension or retirement system supported wholly or in part by the city, nor shall they be required to make contributions to any other pension or retirement system of the city.'

On the same date the council also passed certain other ordinances which contained these provisions:

Section 20-12, reads: 'Any person appointed to a position on the police force on and after August 1, 1931, shall be ineligible to receive any portion of the fund administered by the Board of Trustees of the Police Relief Fund as constituted by Article IV, Section 8, of the Administrative Code.'

Section 20-32, provides: 'Any person appointed to a position on the fire force on and after August 1, 1931, shall be ineligible to receive any portion of the fund administered by the Board of Trustees of the Firemen's Pension Fund as constituted by Article IV, Section 15, of the Administrative Code.'

The amended petition continues:

'Plaintiff says that notwithstanding the existence and continuance of the legally constituted police relief and firemen's relief and pension funds of the city of Cincinnati as provided by the aforesaid acts of the General Assembly of Ohio * * * the defendants have required all policemen and firemen employed by the city and entering its service on and after August 1, 1931, to become members of the said retirement system of said city of Cincinnati, and have deducted or caused to be deducted and placed in funds under the control of the defendants varying sums of money from the compensation of such police and firemen. Plaintiff further says that under the alleged authority of the provisions of the aforesaid ordinances, said board of trustees of the retirement system has exercised and still exercises control, management and administration of the funds provided for in said ordinances for the members of the police and fire departments entering said service since August 1, 1931; that said board authorizes two persons to sign vouchers drawn on said fund; that it authorizes withdrawals from said funds by resolution adopted by it; that said board certifies the rates of contributions payable by members of the police and fire departments of said city who joined said respective forces since August 1, 1931; * * * and that it certifies the amount to be deducted from the salary of each such policeman and fireman on account of said retirement system.

'That said defendant C. O. Sherrill as such city manager has submitted and still submits to said retirement board statements containing information as required by said ordinances, with reference to police and firemen joining said service since August 1, 1931.

'That said Stephen W. McGrath as city treasurer of said city has deducted and continues to deduct from the pay roll the portion of the compensation which each such policeman or fireman joining said service since August 1, 1931, is required by said ordinance to contribute to said retirement system.'

The second amended petition further states that the several defendants will continue to enforce this provision of the ordinances governing the retirement system with respect to firemen and policemen entering the city service since August 1, 1931.

The answer admits these allegations of the second amended petition and sets up two affirmative defenses. In the first of these it is alleged that the state systems for the firemen's relief and pension fund and the police relief fund are not sound and adequate, all-embracing systems of retirement allowances, pension provisions and death benefits; that the purpose of the system adopted by ordinance in 1931 was to provide 'assured retirement allowances, pensions and death benefits for all city employees in certain classes, including firemen and policemen thereafter employed by the city, based on sound actuarial methods of financing and distribution'; and that it is no longer necessary to use the state retirement system for firemen and policemen appointed since August 1, 1931.

In the second affirmative defense Section 3, Article XVIII of the Constitution, is set out and the claim made that the ordinances are within the home-rule powers granted to municipalities by the Constitution.

Causes Nos. 28233 and 28234 are proceedings in mandamus by which the relator seeks to have city officials carry out the provisions of the state statutes regarding the choosing of members of the board of trustees of the firemen's relief and pension fund and of the board of trustees of the police relief fund of the city of Cincinnati.

In each, the answer specifically pleads that the city of Cincinnati has adopted and amended a charter under the provisions of the Constitution which give municipalities that right; that under authority of provisions in the charter the city adopted and amended an administrative code containing provisions for the election of the board of trustees of the firemen's relief and pension funds and of the board of trustees of the police relief fund of the city of Cincinnati and that since about April, 1927, the trustees of such funds have been...