Dickey v. Jackson

• Decision Date: 11 December 1917
• Docket Number: 31644
• Citation: 165 N.W. 387,181 Iowa 1155
• Parties: GEORGE W. DICKEY, Appellee, v. C. C. JACKSON et al., Appellants
• Court: Iowa Supreme Court

165 N.W. 387

181 Iowa 1155

GEORGE W. DICKEY, Appellee, v. C. C. JACKSON et al., Appellants

No. 31644

Supreme Court of Iowa, Des Moines

December 11, 1917

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

Affirmed.

H. W Byers, Guy A. Miller, and Paul A. Hewitt, for appellants.

F. T Van Liew, for appellee.

WEAVER J. GAYNOR, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

The opinion states the case.--Affirmed.

WEAVER J.

The plaintiff was, for a considerable period, a duly appointed and acting member of the police force of the city of Des Moines, Iowa, and as such was a regular contributor to the policemen's pension fund organized and maintained in that city under the statute authorizing and providing for such fund. Code Supp., 1913, Sections 932-j to 932-r, inclusive. For the support of such fund, the city by its proper authorities regularly deducted one per cent, from plaintiff's salary or wages as policeman, and continued so to do until October 9, 1914, when, acting under the order and direction of his superiors, he engaged in certain physical tests, in the course of which he fell and received injuries permanently disabling him. By reason of the injuries so sustained, plaintiff was placed on the pension roll of said fund at the rate of $ 41.25 per month, being one half the monthly salary he was receiving at the date of his retirement from active service. The city continued to recognize plaintiff's right to said pension, and paid the same until July 7, 1916, when the trustees of the pension fund, acting on their own instance, removed plaintiff from the pension roll, and refused further payments to him. The grounds of such action are set forth in a written order which we here quote, as follows:

"Before the Trustees of the Policemen's Pension Fund. In the Matter of Pension to George W. Dickey. ORDER.

"And now on this 7th day of July, A. D. 1916, this matter came on for hearing upon the initiative of the trustees of the Policemen's Pension Fund of the city of Des Moines, and said trustees find that, on the 22nd day of December, 1914, an order was entered herein retiring the said George W. Dickey upon a monthly pension in the sum of $ 41.25 from the 21st day of November, 1914, until further ordered; and it further appearing that the said George W. Dickey has made application for compensation under the provisions of Chapter 147 of the Acts of the Thirty-fifth General Assembly, and is asserting his rights and claims under said Chapter 147, and has been awarded compensation by a board of arbitrators, and has been and is being paid by the city of Des Moines thereunder, and the trustees of the Policemen's Pension Fund of the city of Des Moines being of the opinion that the said George W. Dickey may have his rights under the provisions of Chapter 147 for compensation, and that, if the said George W. Dickey does have his rights as claimed by him, that his right to compensation under said chapter is exclusive and compulsory and obligatory upon both the city of Des Moines and said George W. Dickey, and that, if the said George W. Dickey is entitled to compensation under said act, he is not entitled to any pension from the Policemen's Pension Fund.

"Wherefore the order heretofore entered on the 22nd day of December, 1914, is hereby rescinded, and the city treasurer is directed to make no further payments to the said George W. Dickey from the said Policemen's Pension Fund of the city of Des Moines."

The plaintiff, claiming that the foregoing order is illegal, and that, in making same and in removing plaintiff from the pension roll, the trustees acted in excess of their jurisdiction and authority in the premises, brought this action in certiorari for a review of the record and for an amendment of the order complained of. The matter was submitted to the trial court upon a stipulation covering the facts hereinbefore stated, and further conceding that no notice of the proceedings to remove him from the pension roll was given to the plaintiff; that he was never examined by physicians for the purpose of ascertaining whether his disability still continued; that no hearing was had or witnesses examined upon the question of his remaining upon said roll; and that he was not present when the matter was considered or the order made. Accompanying the defendants' return to the writ of certiorari are copies of the proceedings which resulted in placing the plaintiff upon the pension roll, showing that the same were conducted substantially according to the provisions of the statute providing for such fund. There was also shown a copy of an award made by an arbitration committee under the Workmen's Compensation Act of this state, showing that plaintiff had claimed compensation from the city of Des Moines for the injury received by him October 9, 1914, and that he had been awarded such compensation to be paid by the city as follows: $ 10 per week for 52 weeks, ending October 23, 1915; $ 8 per week from the date last named until March 23, 1916; and thereafter $ 5 per week for such period as will make the entire period of compensation 300 weeks.

Upon the showing made by the return of the writ and the stipulated facts, the trial court found for the plaintiff, and entered judgment annulling the order removing him from the pension roll, and directing the city treasurer to make payment to the plaintiff of his monthly pension of $ 41.25. From this judgment, the defendants have appealed.

The statute providing for a police pension fund (Code Supp 1913, Section 932-j et seq.) makes its organization compulsory in all cities having an organized police department. Such fund is supported by an annual tax, and by grants, donations and gifts for that purpose, together with membership fees of $ 5 each by the members of the police force, and by an annual deduction of one per cent. from their salaries. Any member of the force who shall be injured or disabled in the discharge of his duty, and upon examination is found, by a physician appointed by the trustees, to be physically or mentally permanently...