O'Connell v. Rese, 440

• Decision Date: 27 June 1952
• Docket Number: No. 440,440
• Citation: 54 N.W.2d 301,334 Mich. 208
• Parties: O'CONNELL v. RESE et al. RABIDEAU v. RESE et al. * Motion
• Court: Michigan Supreme Court

Page 301

54 N.W.2d 301

334 Mich. 208

O'CONNELL v. RESE et al.

RABIDEAU v. RESE et al. ^*

Motion No. 440.

Supreme Court of Michigan.

June 27, 1952.

Dale H. Fillmore, Corp. Counsel, Dearborn, Attorney for Defendants-Appellants. Robert E. Childs, Detroit, of counsel.

Kassoff & Young, Detroit, for plaintiffs-appellees. Norman W. Stern, Detroit, of counsel.

Before the Entire Bench.

REID, Justice.

The separate petitions of the two petitioners have been consolidated for the purpose of consideration on this appeal. Each petitioner petitioned the circuit court for a peremptory writ of mandamus requiring defendant board of meet and approve of his petition filed with the defendant board for the purpose of placing him on service retirement annuity or 'pension roll' of the defendant city.

Each petitioner claims and defendants admit that he had served over 20 years of creditable service as fireman in the employ of defendant city.

The only question in this case is whether the defendant board is vested with discretion and on what grounds to grant or to deny the applications of plaintiffs who are eligible for retirement so that each petitioner 'shall receive [or not receive] a service retirement annuity.'

At the first meeting of defendant board at which plaintiffs' petitions were considered, it seems that not all members were present, but at a later meeting held October 9, 1951, all members were present, but the petitions were not approved by the required majority.

The sections of the amended charter of the city of Dearborn which are of importance in determining the issue in this case are as follows:

's 21.16. Each trustee shall be entitled to one vote in the meetings of the board. Five members of the board shall constitute a quorum. At least five concurring votes shall be necessary for a decision by the trustees at any meeting of the board. The members of the board shall serve without additional compensation.

's 21.17. The mayor of the city shall be ex-officio chairman of the board, and the mayor pro-tem shall be exofficio vice-chairman. The board shall adopt its own rules of procedure and shall keep a record of its proceedings. The board shall hold meetings regularly, at least one in each month, and shall designate the time and place thereof. All meetings of the board shall be public.

's 21.27. (a) Any member in service may file with the board his written application for retirement setting forth on what date not less than 30 days nor more than 90 days subsequent to the execution and filing thereof he desires to be retired; provided that the said member at the time so specified for his retirement shall have 20 or more years of creditable service as a policeman or fireman in the employ of the city.

'(b) Any member who has attained age 60 shall be retited forthwith, or on the first day of the calendar month next succeeding that in which the member shall have attained age 60. On recommendation of the department head, the board may continue such a member in service for periods not to extend in yond the attainment of age 65. This paragraph shall not apply to any member until five years from the effective date of this charter amendment.

's 21.28. Upon retirement from service according to the provisions of § 21.27 of this chapter, a member shall receive a service retirement annuity equal to one-fiftieth of his average final compensation multiplied by his total years of creditable service; provided, however, the service retirement annuity of a member or beneficiary shall not exceed one-half his average final compensation, or seven-tenths of the annual rate of pay received by a patrolman first class, or a fireman first class, whichever amount is the lesser.'

Defendants' answer to plaintiff O'Connell's petition for mandamus among other things alleges:

'Defendants allege that petitioner O'Connell was on the date of filing said application for retirement 44 years of age, was in excellent health and was in the prime of life; that he had received upwards of 20 years of training in the Dearborn fire department at city expense, and because of these facts the discretion of the defendant retirement board existed whereby the city should not lose the benefit of the investment which it had made in plaintiff O'Connell; that no clear legal right was alleged to be existing in the plaintiff to the relief prayed for and no clear legal duty was alleged to be existing and none in fact existed in the defendants to grant plaintiff's application for retirement; that chapter 21 of the charter of the city does not in any place impose upon defendants the duty of granting retirement to an applicant, but on the contrary, the language is clearly discretionary with the defendant retirement board as to whether the application for retirement will be allowed, particularly when the applicant is strong and able bodied and has ability to continue as an employee of the city.'

The trial court in his opinion, among other things, stated:

'Reading the provisions of § 21.27 (a) with a view to a fair meaning of the context of the section itself, as well as in relation to the provisions of the other sections hereinbefore set forth, it seems to the court a fair conclusion that eligibility for retirement of and able bodied policeman or fireman is complete when he has completed 20 or more years of creditable service, and that when he has done so, he has fulfilled all requirements necessary to such eligibility, and is entitled to be retired, unless some special circumstance or event takes his case out of the purvue of the section of the charter relative to such retirement. That the board has discretionary power, within limits, is evident from the language of certain provisions of the retirement act itself, more particularly § 21.16. The reason given by defendants for refusal to act favorably in the instant case, namely, the city's investment by reason of its training of a fireman or policeman for a period of 20 years or more, does not seem to the court to rest upon any reasonable basis either in law or equity. When placed against the background of the present case, such claimed reasoning is too shallow to merit credence. Retirement allowance of a pension is controlled by the provisions of the retirement act itself and not by theories, worthy or otherwise, foreign to a fair construction of the prescribed terms of the act itself. * * *

'To hold that petitioners are not entitled to favorable action by the board for the novel reasons set forth by defendant in his pleadings and in his presentation of the case is, in the opinion of the court, to do violence to the fair intent of the language set forth in § 21.27 (a), and is, in effect, arbitrary and captious to a point bordering on fraud. The petitioners have fulfilled every requirement set out by the charter. No emergency or...