Hecht v. Crook

• Decision Date: 10 January 1945
• Docket Number: 76.
• Citation: 40 A.2d 673,184 Md. 271
• Parties: HECHT v. CROOK et al.
• Court: Maryland Court of Appeals

40 A.2d 673

184 Md. 271

HECHT v. CROOK et al.

No. 76.

Court of Appeals of Maryland

January 10, 1945

Appeal from Superior Court of Baltimore City; Edwin T. Dickerson Judge.

Mandamus proceeding by Lee I. Hecht against Howard E. Crook and others to compel payment of retirement benefits, From an order dismissing the petition, the applicant appeals.

Affirmed.

Hector J. Ciotti and Isaac Hecht, both of Baltimore, for appellant.

Helen Elizabeth Brown and Hamilton O'Dunne, Asst. City Solicitors, both of Baltimore (Simon E. Sobeloff, City Solicitor and Avrum K. Rifman, Asst. City Solicitor, both of Baltimore, on the brief), for appellees.

Philip B. Perlman, Chas. C. G. Evans, R. E. Lee Marshall, F. Murray Benson, Charles C. Wallace, Paul F. Due, Wilson K. Barnes and Wirt A. Duvall, Jr., all of Baltimore, amici curiae.

Before DELAPLAINE, COLLINS, GRASON, MELVIN and HENDERSON, JJ.

HENDERSON Judge.

This appeal is from an order of the Superior Court of Baltimore City dismissing a petition for a writ of mandamus filed by the appellant, Lee I. Hecht, to require the Board of Trustees of the Employees' Retirement System of Baltimore City to grant his application for retirement benefits under the provisions of Baltimore City Ordinance No. 553 (1925-1926), and amendments thereto, and to require the Board of Estimates of the Mayor and City Council of Baltimore to provide for and pay to the Employees' Retirement System such an amount of money as may be necessary to comply with the award. The particular benefit sought by the applicant was under an amendment to Section 6 of the original pension ordinance adopted in 1939 (ordinance 942), reading as follows:

'(11) (a) Notwithstanding anything to the contrary in this Ordinance, should a member be removed from a regular permanent position of the City without fault upon his part, after the completion of twenty years of creditable service and the attainment of age fifty, or after the completion of twenty-five years of creditable service regardless of age, such member may elect, in lieu of the withdrawal of his accumulated contributions, to have such contributions paid to him in an annuity of equivalent actuarial value, in which event he shall also be paid a pension equal to the ordinary disability pension that would have been payable at such time had he been retired on an ordinary disability retirement, and the Board of Estimates of the Mayor and City Council of Baltimore shall provide for and pay to the Retirement System for the purpose of paying such pension the additional amount so required. The payment of all such pensions and the continued payment of such pensions shall be contingent on the payment annually by the Mayor and City Council of Baltimore of the additional amount so required to meet the current disbursement of such pensions. Should such a beneficiary be restored to active service, his retirement allowance shall cease, he shall again become a member of the Retirement System, and he shall contribute thereafter at the same rate he paid prior to his retirement. Any prior service certificate on the basis of which his service was computed at the time of his retirement shall be restored to full force and effect, and in addition upon his subsequent retirement he shall be credited with all his services as a member, provided his pension upon such subsequent retirement shall not exceed the pension he was receiving prior to restoration plus such pension as may have accrued on account of his membership service after restoration.'

Under the original pension ordinance (No. 553), benefits are provided in the case of retirement from service due to age (optional after 60, mandatory after 70), physical or mental disability, or accidental disability. Benefits are also provided in case of death or accidental death. In the event of separation from service except by death or retirement, a member is entitled to a return of his accumulated contributions, with interest compounded at four per cent. there are also certain optional allowances in the form of annuities or payments to the estate or to the beneficiaries or dependents of the member.

The provisions for the payment of accidental death benefits were held to be invalid by this court in Duncan v. Graham, 155 Md. 507, 142 A. 593, as beyond the scope of the enabling act, section 20A of the City Charter (1938 Ed.), but by ch. 113 of the acts of 1929, section 20B was enacted to authorize a system of allowances and payments to be made to the beneficiaries and dependents of the members of the Retirement System after the death of such members '(whether accidental or otherwise and/or whether occurring in the actual performance of duty, or otherwise)'; section 20C of said Act made this authorization retroactive, and section 20D confirmed and ratified all awards theretofore made.

The essential facts in the case are stipulated. Mr. Hecht was appointed by the Mayor as a Judge of the Appeal Tax Court on September 24, 1923, to fill an unexpired term expiring March 1, 1926. He held the office by successive appointments of three years each until March 1, 1943, and continued to serve as a holdover until October 18, 1943, when his successor qualified. The appointments were made under the authority of section 25 of the City Charter (1938 Ed.), which prescribes a three-year term, and an oath of office. The Appeal Tax Court was created in 1874 as a subdivision of the municipal corporation. The appellant was not a classified employee of the city, and not subject to the laws, rules or regulations of the City Service Commission. He became a member of the Employees' Retirement System on March 27, 1926, by voluntary application and acceptance by the Board of Trustees under the authority of Section 3(3) of Ordinance No. 553. That section authorized the Board to make optional with any class of elected officials, or officials appointed for fixed terms, their individual entrance into membership. At the time the appellant surrendered his office he had an unbroken period of creditable service totalling twenty years and eighteen days, and was fifty-five years of age.

In due course he applied for the benefits of section 6(11)(a) (ordinance 942) and was given a hearing before the Board of Trustees. His application was denied, upon the advice of the City Solicitor, on the ground that the applicant had not been removed from a regular permanent position of the city, within the meaning of the ordinance. It was conceded that his surrender of the office was due to the expiration of his term and the appointment of a successor, without fault upon his part.

The Board of Trustees of the Retirement System is charged with the general administration of the system under section 5(1) of the Ordinance. Under subsection (7) it is authorized, subject to the limitations of the Article, to establish rules and regulations for the transaction of its business. 'Employee' is defined in section 1(2) as 'any regular and permanent officer, agent, servant or employee of the City', and to include persons paid by the city, however appointed, except those appointed by the governor, and certain others. The Board of Trustees, 'in all cases of doubt * * * shall decide who is an employee within the meaning of this Article.' No appeal is provided from the decisions of the Board. The City Solicitor is designated as the legal adviser to the Board.

A preliminary question is presented as to whether mandamus is a proper remedy to compel the Board of Trustees to allow the appellant's claim. The point was strongly pressed by the city in its brief and argument. The court below was of the opinion that the Board acted in the exercise of its discretion and judgment in determining that the applicant was ineligible for the benefits claimed, and that its decision is not reviewable. But in the opinion of this Court, we think the question is open to review.

The decision of the Board was not based upon a finding of disputed fact; it was based solely upon the legal interpretation of the language of the Ordinance. There is no express language in the Ordinance providing that the decisions of the Board upon legal questions should be final, or that its rules should have the force of law. In this respect the case is distinguishable from Metcalf v. Cook, 168 Md. 475, 178 A. 219. It is also distinguishable from cases where the action sought to be enforced involves the exercise of judgment under the police power, rather than the interpretation of a statute, such as Brack v. Wells, Md., 40 A.2d 319; Durkee v. Murphy, 181 Md. 259, 29 A.2d 253; Graham v. Gaither, 140 Md. 330, 117 A. 858; Walter v. Montgomery Co., 180 Md. 498, 25 A.2d 682; and Engle v. City Com'rs of Cambridge, 180 Md. 82, 22 A.2d 922. The action in these cases might be described as purely executive, whereas the action in the case at bar is quasi judicial.

This court pointed out in the recent case of Dal Maso v. Board, etc., County Com'rs, 182 Md. 200, 34 A.2d 464, that the latter term does not imply any power in the Legislature to clothe administrative boards with judicial authority. Nevertheless, the fact remains that innumerable controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry.

One of the earliest instances in the Maryland reports where the writ of mandamus was granted is found in Runkel v Winemiller, 1799, 4 Har. & McH. 276, 1 Am.Dec. 411, where a minister was wrongfully dispossessed of his office and the emoluments of the living. It was pointed out that the General Court possessed the same authority as that possessed by the Court of King's Bench to issue the prerogative writ, 'to prevent disorder, from a failure of justice, where the law has established...