Davis v. Peters

• Decision Date: 21 October 1949
• Docket Number: No. 2732.,2732.
• Parties: DAVIS v. PETERS et al.
• Court: Texas Court of Appeals

224 S.W.2d 490

DAVIS v. PETERS et al.

No. 2732.

Court of Civil Appeals of Texas. Eastland.

October 21, 1949.

T. D. Cobbs, Jr., San Antonio, for appellant.

Spears & Brenan, San Antonio, for appellees.

COLLINGS, Justice.

This is an action for writ of mandamus which arose from a controversy concerning the construction and application of Article 6243f, Vernon's Ann.Civ.St., which deals with the subject of pensions for firemen, policemen and fire alarm operators in cities having a population of 200,000 to 293,000 inhabitants.

Appellees, who are four policemen of the City of San Antonio, sought by this suit to require appellant, C. Ray Davis, as City Treasurer of such City, to receive deductions from appellees' wages as city policemen for the benefit of the Pension Fund. The matter was brought before the court originally as two suits and then consolidated.

The trial was before the court without a jury and judgment was entered for a preemptory writ of mandamus against appellant Davis, but appellees' prayer for attorneys' fees was denied. On appeal, appellant complains of the action of the court in issuing the writ of mandamus and appellees complain of that portion of the judgment refusing attorneys' fees.

The substance of the material portions of Article 6243f is as follows: Section 1 of the Act provides for the creation of a Pension Board of seven members, which is charged with the duty of disbursing the Pension Fund set up under the Act, and designating the beneficiaries of the Fund. Section 2 provides that the Board "shall control and administer the Fund and shall order payments therefrom in pursuance of the provisions of this Act." After defining other powers, it is further provided that: "The Board shall have the complete authority and power to a administer all of the provisions of this Act and any implied powers under this Act."

Section 3 provides that: "Each fully paid Fireman, Policeman, and Fire Alarm Operator, in the employ of such City, who desires himself or his beneficiaries to participate in said Fund, shall file a written statement with the Board of his desire to participate in said Fund, and authorize said City to deduct not less than five per cent (5%) nor more than ten per cent (10%) of his wages each month to form a part of the Fund known as The Firemen, Policemen, and Fire Alarm Operators' Fund."

Section 4 of the Act provides, in part, that: "There shall be deducted for such Fund from the wages of each Fireman, Policeman, and Fire Alarm Operator in the employment of such City, upon a vote of the majority of the members of the said Board of Trustees, not less than five per cent (5%) nor more than ten per cent (10%) of the wages earned by such employee when he has filed application therefor."

Section 5 provides for the holding of regular monthly meetings of the Board; how the funds shall be disbursed; and how the records shall be kept.

Section 6 provides that: "The Treasurer of said City shall be Treasurer of said Fund. All money for said Fund shall be paid over to and received by the Treasurer for the use of said Fund, and the duties thus imposed upon such Treasurer shall be additional duties for which he shall be liable under his oath and bond as such City Treasurer, but he shall receive no compensation therefor."

Section 7 is as follows: "Any person who, at the establishment of said Fund or thereafter, shall have been duly appointed and enrolled in the Fire Department, Police Department, or Fire Alarm Operators' Department of any such city and who shall have signed an application for participation in said Fund and has allowed deductions from his salary under any former law and is in good standing; and those who have filed written application within forty-five (45) days after the organization of such Board, or who shall file his application within forty-five (45) days after becoming a member of such departments, having served the probationary period, if any, and who, shall have allowed such deductions from his salary; and any person heretofore duly appointed or enrolled in the Fire Department, Police Department, or Fire Alarm Operators' Department of any such City, who is not now a member of the Pension Fund, may file his application with the Board within forty-five (45) days after this Act becomes effective and apply for participation therein; but such applicant shall pass a physical examination of the same character that is required for original admission into the respective department in which he serves, and shall pay into such Fund a sum of money equal to the amount of salary deductions he would have paid had he joined immediately upon becoming eligible to participate in the benefits of said Fund; as well as the beneficiaries hereinafter named shall be entitled to participate in said Fund."

Appellees herein, Peters, Bichsel, Dobbs and Guerrero, contend that each is a duly appointed and enrolled member of the Police Department; that each is entitled to participate as a member of the Firemen, Policemen and Fire Alarm Operators' Pension Fund. Appellant Davis contends that Peters and Bichsel, though members of the Police Department, had not made application to participate in the Fund in the time prescribed by the Pension Law; and that Dobbs and Guerrero were not members of the Police Department and were not eligible to participate in the Fund; and that neither of the appellees had shown any right to a writ of mandamus.

Appellees Peters, Bichsel and Dobbs were originally employed by the City of San Antonio as policemen prior to April 22, 1941, when the Pension Law in question went into effect, and participated in the Pension plan as it existed under a prior law which is referred to as the "old pension law." When the present Pension Law went into effect, they immediately filed application for participation in the new Fund, and did participate in and contribute to such Fund for a period of several months thereafter, after which each of said three appellees voluntarily withdrew therefrom and ceased to participate in or contribute to such Pension Fund. Appellee Dobbs thereafter, in June of 1943, voluntarily ceased to be employed as a Policeman of the City until May 16, 1948.

Appellee Guerrero was first employed by the City of San Antonio as a Policeman on January 1, 1943, but did not at that time make application for admission into the Pension Fund. He was informed by the then Commissioner not to do so. He voluntarily left the Police Department in August of 1943, and except for a brief period of employment covering the month of January, 1945, was not again employed by the City until the time of his purported reinstatement to the Police Department on April 2, 1948. Almost immediately after such reinstatement, he applied for admission into the Pension Fund.

All four appellees herein have passed required physical examinations, have expressed a desire to participate in the fund and a willingness to have a five percent deduction from their wages contributed to the Fund. Each is of an age that he can serve a full 20 years before reaching the age of retirement provided in the Pension Act. All of the appellees have tendered to appellant as City Treasurer, amounts sufficient to equal wage deductions determined by the Pension Board to be due the Fund.

The Pension Board is composed of seven members. On July 2, 1948, the Board voted by a majority of three votes to two to accept appellees Guerrero and Dobbs into the Pension Fund. At a later meeting on July 28, 1948, the Board again brought up the cases of Guerrero and Dobbs for consideration and on this occasion, the vote was three for and three against their acceptance into the Fund.

On July 2, 1948, the Pension Board, with three members voting, voted two to one to reinstate Peters and Bichsel into the Pension Fund and again took the case under consideration on July 28th when six members were present and voted four to two to approve their reinstatement into the Fund.

Appellants contend in Point No. 1 that the case should be reversed because appellees Peters and Bichsel did not prove that each had applied for membership in the Fund within the time specified by law. The basis of this contention is that appellees filed their applications for participation in the Fund in April and May of 1948, which was more than forty-five days after their original employment. We cannot agree with this contention....