Lage v. City of Marshalltown

• Decision Date: 10 April 1931
• Docket Number: No. 40747.,40747.
• Citation: 235 N.W. 761,212 Iowa 53
• Parties: LAGE v. CITY OF MARSHALLTOWN.
• Court: Iowa Supreme Court

212 Iowa 53

235 N.W. 761

LAGE

v.CITY OF MARSHALLTOWN.

No. 40747.

Supreme Court of Iowa.

April 10, 1931.

Appeal from Municipal Court of Marshalltown; L. R. Sheets, Judge.

Action at law to recover a judgment for the balance due on policemen's pension. The facts are fully stated in the opinion. The cause was tried to the court upon an agreed statement of facts, resulting in a judgment in favor of the plaintiff. The defendant City appeals.

Reversed.

R. A. Rockhill, of Marshalltown, for appellant.

Adams & Kearney, of Marshalltown, for appellee.

STEVENS, J.

Appellee is the widow of William Lage, deceased, a former member of the police force in the appellant city and the assignee of the claims of several disabled or retired policemen for unpaid pensions. The facts are stipulated, and only questions of law are involved.

Appellee and her assignors are all entitled to receive monthly payments from the police pension fund of appellant city. Commencing with August, 1929, and continuing up to April 1, 1930, pro rata payments only were made to appellee and her assignors. The default of appellant, it is charged, was due to its failure to levy a sufficient amount to meet the requirements of the policemen's pension fund. Prior to 1929, the levy did not in any one year exceed one-fourth of a mill. Under section 6310 of the Code of 1927, a maximum annual levy might have been made of one-half mill. We understand from concessions made by counsel at the time of the oral argument of the case that the maximum amount allowed by statute has, since above date, been duly levied and collected.

The sole question of law involved is whether appellant city is liable in an action at law, either upon contract or for damages, for the amount due because of its failure to levy a sufficient tax to pay the monthly pensions in full.

[1] Section 6310 of the Code is mandatory in so far as it imposes the duty upon certain cities to levy annually a tax for the purpose of creating a firemen's and policemen's pension fund. The annual tax thus to be levied shall not, however, exceed one-half mill for each of the said fire or police departments. The per cent. of the levy to be made by municipalities for pension purposes is left, somewhat at least, to the discretion of the proper taxing agents of the municipality. It may be assumed that the duty resting upon the taxing officers is to make the levy upon such basis as will, within the limitations provided, produce an amount sufficient to pay all legitimate claims against the respective funds. We find nothing in the record tending to indicate that the failure on the part of appellant to provide a sufficient tax was due to bad faith or indifference on the part of the officers charged with the duty of making such levy. As to whether this is, or is not, material, we express no opinion. It may, no doubt, be fairly assumed that the error was one of judgment only.

[2][3][4][5][6] The contentions of appellee are based upon two propositions: (1) That the relationship between the municipality and the pensioner is contractual and therefore damages will lie for a breach thereof; and (2), if not contractual, that the municipality is liable to the pensioners because of the carelessness and negligence of its officers in failing to make an appropriate levy to maintain an adequate fund on hand. So far as we are advised, statutes similar in terms and purpose to our own which have been enacted in many states have never been held to establish a contractual relationship between the member of a police or fire department in such sense at least as that the same may not be repealed prior to the vesting in the officer of a right to demand and receive a pension. Pecoy v. City of Chicago, 265 Ill. 78, 106 N. E. 435;People v. Abbott, 274 Ill. 380, 113 N. E. 696, Ann. Cas. 1918D, 450;State v. Board of Trustees, 121 Wis. 44, 98 N. W. 954;Commonwealth v. Walton, 182 Pa. 373, 38 A. 790, 61 Am. St. Rep. 712;Cobbs v. Home Ins. Co., 18 Ala. App. 206, 91 So. 627;Klench v. Board of Pension Fund Commissioners, 79 Cal. App. 171, 249 P. 46;Jackson v. Otis, 66 Cal. App. 357, 225 P. 890;Douglas v. Pension Board, 75 Cal. App. 335, 242 P. 756;State v. City of Memphis, 147 Tenn. 658;251 S.W. 46, 27 A. L. R. 1257;Phœnix Assur. Co. v. Fire Dept., 117 Ala. 631, 23 So. 843, 42 L. R. A. 468.

The proposition suggested has arisen most frequently in cases in which the constitutionality of statutes of the character in question was involved. The rule above stated is not obviated by the fact that a per cent. of the policemen's or firemen's salary is required to be, and has been, deducted for the purpose of maintaining the pension fund. Pecoy v. City of Chicago, supra; Pennie v. Reis, 132 U. S. 464, 10 S. Ct. 149, 33 L. Ed. 426. The holding of the Nebraska court in State v. Love, 89 Neb. 149, 131 N. W. 196, 34 L. R. A. (N. S.) 607, Ann. Cas. 1912C, 542, relied upon by appellee, is, in all respects, consistent with the cases cited. In numerous of the cases referred to, as an examination thereof will show, the court held that the statutory provision for awarding pension to police officers and firemen constitutes an inducement thereto to enter and remain in service, and that the pension allowed is in the nature of compensation. In other of the cited cases pensions are referred to as mere bounties or gratuities allowed by law to retired or disabled police officers and firemen. The constitutionality of statutes enacted in the various states has, however, been uniformly sustained upon the ground that they are awarded for a public purpose and are not in any strict sense gifts or bounties. Statutes providing for mere gifts to such officers would clearly transcend constitutional limitations. Gray v. City of Salem (Mass.) 171 N. E. 432. We find a statement in Dickey v. Jackson, 181 Iowa, 1155, 165 N. W. 387, 389, to the...