Kinsey v. Adkins
| Decision Date | 21 December 1973 |
| Docket Number | No. 13406,13406 |
| Citation | 157 W.Va. 375,201 S.E.2d 288 |
| Court | West Virginia Supreme Court |
| Parties | J. W. KINSEY v. B. W. ADKINS et al. |
Syllabus by the Court
1. Where the legislature has provided that the decisions of the pension board are final the general rule that there will be no review in the courts is applied unless there is a showing that the board acted in an arbitrary and capricious manner or clearly abused its discretion.
2. The rights of a pensioner under a plan or system which provides for contributions to the fund by the pensioner vest when all the conditions entitling him to a pension have been fulfilled.
3. A provision in the statute that the decisions of the pension board shall be final and conclusive does not make the action of the board in denying a pension conclusive where such denial violates the clear provisions of the law.
4. A wide discretion is conferred upon a pension board charged with administering a public employees' pension plan and judicial review is ordinarily limited to ascertain whether or not the board acted arbitrarily and capriciously or exceeded its jurisdiction.
5. Mandamus does not lie to review or control the action or decision of a pension board having authority over pension matters where the action or decision is one resting in the discretion of such board and such action or decision is not arbitrary or capricious.
Ross Maruka, Fairmont, for relator.
Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondents.
This original proceeding in mandamus was instituted by J. W. Kinsey, hereinafter referred to as the petitioner, against B. W. Adkins, B. H. Cassell, R. L. Bonar, Chauncey H. Browning, Jr. and John H. Kelly, as members of the West Virginia Department of Public Safety Retirement Board, hereinafter referred to as respondents, to compel them to retire petitioner from active service with the West Virginia Department of Public Safety and to award him total disability benefits in accordance with the provisions of the death, disability and retirement fund which the respondents administer. A rule was issued September 17, 1973 and made returnable October 16, 1973 at which time the case was submitted for decision on the arguments and briefs on behalf of the respective parties.
The petitioner is a member of the West Virginia Department of Public Safety, having the rank of Trooper. Petitioner joined the Department on December 5, 1965 but on March 28, 1968 petitioner, while performing official duties, sustained an injury to his right foot as a result of an accidental self-inflicted shotgun blast. Petitioner lost a portion of his right heel mass and subsequently petitioner was transferred to the Logan Detachment as a night radio operator. Petitioner contends he is no longer able to perform adequately the duties required of him as a member of the Department of Public Safety. Petitioner contends he is physically permanently disabled and on April 14, 1973 applied for an award of disability retirement to the retirement board and submitted the medical reports of Dr. Kuhn, Dr. Seltzer and Dr. Pushkin. All of the medical reports concluded that the petitioner was not physically able to perform the activities ordinarily performed by state police officers. By letter dated July 10, 1973 the retirement board denied petitioner's application.
The respondents' primary contention is that under Code, 15--2--27, as amended, the decisions of the retirement board are supreme and final and the statute provides that there shall be no appeal therefrom, and, thus, this Court has no jurisdiction to hear the case. On the other hand, petitioner contends he has a vested property interest in the fund since he makes monthly contributions to it and a denial of relief would be a taking of private property without due process of law.
The petitioner relies on the case of Spencer v. Yerace, W.Va., 180 S.E.2d 868, which held that a member of a police department of a municipality who was permanently disabled to the extent that he could not perform all of the ordinary duties of an active policeman, and who had satisfied all of the other requirements of the statute, was entitled to the pension provided by statute. Under those circumstances the Court held it was the duty of the board of trustees of the pension fund to award him a pension and that mandamus would lie to compel the board to make the award. The Spencer case was decided under the provisions of Code, 8--22--24, as amended, pertaining to the pension relief fund of municipal policemen while the case at bar is covered by the statute pertaining to the retirement and disability fund for the members of the Department of Public Safety. Code, 15--2--27, as amended, contains provisions that are not in the municipal policemen's retirement fund. Code, 15--2--27, as amended, reads as follows: (Emphasis supplied)
Code, 15--2--28b, as amended, reads...
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