Comley ex rel. Brown v. Lawlor

• Decision Date: 27 July 1934
• Citation: 119 Conn. 155,174 A. 415
• Parties: COMLEY, State's Atty., ex rel. BROWN v. LAWLOR et al. COMLEY, State's Atty., ex rel. DWYER v. CASEY et al. COMLEY, State's Atty., ex rel. O'BRIEN v. BOARD OF TRUSTEES OF POLICEMEN'S RELIEF FUND et al.
• Court: Connecticut Supreme Court

174 A. 415

119 Conn. 155

COMLEY, State's Atty., ex rel. BROWN v. LAWLOR et al.

COMLEY, State's Atty., ex rel. DWYER v. CASEY et al.

COMLEY, State's Atty., ex rel. O'BRIEN v. BOARD OF TRUSTEES OF POLICEMEN'S RELIEF FUND et al.

Supreme Court of Errors of Connecticut.

July 27, 1934

Appeal from Superior Court, Fairfield County; Ernest A. Inglis Judge.

Application by William H. Comley, State's Attorney, on the relation of Lloyd J. Brown, for a writ of mandamus requiring the respondents, James D. Lawlor and others, to make present and future payments to the relator, from the Fireman's Relief Fund. Judgment for the relator, and appeal by the respondents.

No error.

Application by William H. Comley, State's Attorney, on the relation of John C. Dwyer, for a writ of mandamus requiring the respondents, James Casey and others, to make present and future payments to the relator from the Policeman's Relief Fund. Judgment for the relator, and appeal by the respondents.

No error.

Application by William H. Comley, State's Attorney, on the relation of Patrick O'Brien, for a writ of mandamus requiring the respondents, Board of Trustees of the Policemen's Relief Fund and others, to make present and future payments to the relator from the Policeman's Relief Fund. Judgment for the relator, and appeal by the respondents.

No error.

John T. Cullinan, Albert L. Coles, and Harry Schwartz, all of Bridgeport, for appellants.

Philip Reich and Samuel Reich, both of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, AVERY, and PEASLEY JJ.

PEASLEY, Judge.

These three cases were briefed and argued together, and as the major issue is the same in each, they will be discussed together. The city of Bridgeport by its charter provides for the payment of pensions to retired members of its police and fire departments. What construction should be placed upon the provisions of section 87 of the Charter is the basis of the principal controversy in each of these cases. The respondents in the Brown case constitute the board of trustees of the Fireman's Relief Fund, and the respondents in the other two cases constitute the board of trustees of the Policeman's Relief Fund. After amendment of section 87 of the Charter in 1915 (15 Sp. Laws 1907, p. 528, § 87, as amended by 17 Sp. Laws 1915, p. 345, § 1), the relevant part of it reads as follows: " the board of police commissioners and the board of fire commissioners respectively, shall have power to retire from their respective departments any policeman or police officer or any fireman or fire department officer, *** who in the opinion of the board of commissioners, irrespective of age or term of service, has become permanently disabled for the performance of his duties by reason of mental or physical disability resulting from injury received or exposure endured in the performance of his duty. *** Any policeman or police officer or fireman or fire department officer so retired shall be entitled to receive from the pension fund provided in section one hundred fifteen of an act revising the charter of the city of Bridgeport, approved August 1, 1907, a yearly amount equal to one-half of the yearly compensation received by such policeman or police officer or fireman or fire department officer at the time of his retirement."

The General Assembly at its 1927 session amended the above-quoted portion of section 87 of the charter (20 Sp. Laws 1927, p. 456) by striking out the last paragraph thereof and inserting in lieu thereof the following: " Any policeman or police officer or fireman or fire department officer who shall have been retired since 1920 or who shall be retired because he has become permanently disabled as aforesaid, shall be entitled to receive from the pension fund provided for in Section 115 of said act, approved August 1st, 1907, a yearly amount equal to two-thirds of the yearly compensation received or to be received by policemen, or police officers, firemen or fire department officers of corresponding grade and rank. ***"

The findings show that each of the relators had been severely injured prior to his retirement. Each was retired by his respective board after 1920. From the date when the 1927 amendment went into effect, each has been paid a lesser amount of pension than that provided in that amendment. Each has paid his proper assessments to the fund from which his pension was paid.

The relator Brown petitioned his board for retirement on the ground of permanent disability. Dr. Curley, who is conceded to have been the official fire department surgeon, after examining Brown reported to the fire board that in his opinion Brown was suffering from chronic psycho-neurosis, with unfavorable outlook, and expressed his belief that as Brown could not be expected to do fire duty again, retirement was the proper thing, and the board by its unanimous vote retired him from the department.

The relator Dwyer was a mounted policeman; while on duty on horseback he was thrown from his horse and suffered a fractured skull and brain injury. Police Surgeon Adams reported to the board of police commissioners that Dwyer was physically unfit for duty, that his ailment was directly traceable to his injury, and recommended his retirement. The record of his retirement by the board shows that it was done pursuant to the provisions of section 87 of the charter, the vote reciting the section 87 grant of power in the board.

The relator O'Brien was a traffic patrolman. While so acting, in an attempt to stop a team of runaway horses he was dragged about three hundred feet and rendered unconscious, and sustained injury to his sacroiliac joint and his neck. After leaving the hospital he was removed to his home, where he remained for about two years. As a result of his injury he was for a long time compelled to wear an iron brace extending from the base of his spine up his back, and on occasions still has to wear it. The board of police commissioners referred O'Brien to the board of police surgeons, who reported back that O'Brien was suffering from the effects of chronic sacroiliac strain, with no apparent improvement and unanimously recommended his retirement. At the time of the trial of O'Brien's case, there were no formal written minutes of meetings of the board of police commissioners available; but on the face of the board of police surgeon's report appears the indorsement: " Final Action-that recommendation be adopted and O'Brien be retired on half pay as of 6/15/28." On June 16, 1928, John A. Lyddy, as clerk of the board of board of police commissioners, without specific instructions from the board, but in accordance with his usual procedure in such matters, wrote to the city clerk of Bridgeport, the city comptroller, and the city treasurer, advising that the recommendation to the board of police commissioners to retire O'Brien had been accepted and O'Brien retired.

The trial court reached the conclusion that each of the relators was retired by his respective board because in its opinion he had become permanently disabled for the performance of his duties by reason of mental or physical disability resulting from injury received or exposure endured in the performance of his duties. The appellants attack this conclusion of the trial court on the ground that the board, having the question of retirement before it, could not reasonably have formed the opinion necessary to retirement. They argue that " it is elemental that an opinion of a municipal commission, reached in good faith, is not an unvarying guarantee of intelligent thought or action," and contend that under the quoted charter provisions " it became possible for the respective commissions to reach an opinion in good faith, but with corresponding unintelligence ***." These contentions, unsupported by precedent, ignore the rule of law that where a special board of commissioners is created, it is to be presumed that it is competent for the task assigned. Hunter's Appeal from Commissioners, 71 Conn. 189, 197, 41 A. 557.

The claim is also pressed that nowhere in the minutes of the meetings of these...