Duncan v. Graham

• Decision Date: 22 June 1928
• Docket Number: 49.
• Citation: 142 A. 593,155 Md. 507
• Parties: DUNCAN v. GRAHAM ET AL.
• Court: Maryland Court of Appeals

142 A. 593

155 Md. 507

DUNCAN v. GRAHAM ET AL.

No. 49.

Court of Appeals of Maryland

June 22, 1928

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Suit by Alexander E. Duncan against R. Walter Graham, Herman Kerngood, William Horst, Mary T. Walsh, and Pearl Heaps constituting the Board of Trustees of the Employees' Retirement System of Baltimore City, and others. Judgment for defendants, and plaintiff appeals. Reversed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Charles C. Wallace and Roger B. Williams, both of Baltimore, for appellant.

A Walter Kraus, City Sol., and Simon E. Sobeloff, Deputy City Sol., both of Baltimore, (C. Morris Harrison, of Baltimore, on the brief), for appellees.

BOND C.J.

On a taxpayer's bill in equity to restrain payment of accidental death benefits from the employees' retirement fund of Baltimore City to the widow of J. Archer Bell, city register, at the time of his death on June 27, 1927, it is contended that the city government is without power to include the allowance of such benefits in its retirement system, and that even if the city had the power and the ordinance exercising it were valid, the accident causing death here was not one upon which the benefits would, according to the terms of the ordinance, be payable. The ordinance provides for payment of accidental death benefits only in case the accident has occurred while the employee was in the actual performance of duty, and Mr. Bell was struck by an automobile and killed while on his way from a bank to his office in the city hall. The trustees of the fund concluded that the accident did occur while Mr. Bell was in the actual performance of duty, and awarded the benefits. The court below decided that it was within the power and authority of the city to include the allowance of these benefits in its retirement system, and that the conclusion of the trustees on the occurrence of the accident during the performance of duty should be upheld. This court has, however, come to a different conclusion on the construction of the authorizing statute, and holds that it has not given the city power to include this general provision for payment of accidental death benefits, and that therefore the provision in the ordinance and the present award under it are invalid. That conclusion renders it unnecessary, of course, to consider the question whether the particular accident was covered by the terms of the ordinance.

The Enabling Act is the Act of 1924, c. 411, and it gives the city power:

"To establish and maintain a general system of pensions and retirements for the benefit and advantage of its officers, agents, servants and employees, with necessary classifications and terms of admission; to provide for the inclusion in such system, with the consent of a majority of its members, any existing pension system for officers, agents, servants and employees by whatever authority appointed, the salary or compensation of the members of which is paid by the mayor and city council of Baltimore; to provide that upon the establishment of any such system of pensions and retirements, the officers, agents, servants and employees theretofore or thereafter appointed, by whatever authority, whose salary or compensation is paid by the mayor and city council of Baltimore, shall be eligible, subject to such exceptions, limitations and restrictions as may be deemed expedient, to admission to such pension or retirement system; and to provide that such officers, agents, servants and employees thereafter appointed, by whatever authority, shall not be eligible to admission to any other pension system, the revenues of which are derived wholly or partly from appropriations made by the mayor and city council of Baltimore, from license fees or from fines and forfeitures imposed under laws or ordinances in force in the city of Baltimore."

There was added a proviso saving from the operation of the statute the system of pensions for policemen.

The ordinance makes elaborate provision for pensions and retirements of employees, with payments to be made to them while living, and then adds two beneficial or insurance features: "ordinary death benefits," paying to the estates of employees or to designated beneficiaries having insurable interests the accumulated contributions made by the employees and half of their yearly compensation; and upon proper proofs that the deaths have resulted from accident occurring in the performance of duty, then "accidental death benefits," paying the accumulated contributions, and paying pensions of half a year's compensation to widows during widowhood, dependent children during minority, or dependent parents during life.

The system provided is one which in some or all its parts has been designed and adopted in other countries and states to arrange for municipal employers beneficial aids for their employees similar to those which have been adopted by private employers of large numbers of workmen. The features of the plan were made a subject of study by the Institute of Government Research, of Washington, and the discussion in its publication (Meriam, Principles Governing Retirement of Public Employees, 1918) appears to...