Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont

• Decision Date: 02 November 1943
• Docket Number: 9481.
• Citation: 27 S.E.2d 486,126 W.Va. 183
• Parties: MAINELLA v. BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR RELIEF FUND OF CITY OF FAIRMONT.
• Court: West Virginia Supreme Court

27 S.E.2d 486

126 W.Va. 183

MAINELLA v. BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR RELIEF FUND OF CITY OF FAIRMONT.

No. 9481.

Supreme Court of Appeals of West Virginia.

November 2, 1943

Ward Lanham, of Fairmont, for appellant.

E M. Showalter and Howard Boggess, both of Fairmont, for appellee.

LOVINS Judge.

In a suit instituted by John Mainella against The Board of Trustees of the Policemen's Pension or Relief Fund of the City of Fairmont, the Circuit Court of Marion County entered a decree adverse to the defendant who seeks review by appeal.

Plaintiff was an active policeman of the City of Fairmont from September 1, 1931, until March, 1938, when he was relieved from duty on account of his unusual conduct indicating mental derangement. He was paid a pension at the rate of ninety dollars a month for the greater portion of the time between the commencement of his disability and June 13, 1941. The exact dates when the payments commenced and ended are not discernible from the record.

Plaintiff entered the Weston State Hospital on or about March 7, 1938 stayed there for some time, whence he was discharged after an examination showing his health as "having improved." The exact date of his discharge from the Weston State Hospital does not appear, but the record divulges that subsequently he was treated in a hospital in Pittsburgh, Pennsylvania, until some time in September, 1938. After discharge from the latter hospital he was examined by four physicians, the results of the examinations being shown in four letters addressed to the Mayor of the City of Fairmont and which were delivered to that official by plaintiff. One physician reported that plaintiff was in "excellent mental and physical condition"; two said that he was in good physical condition", and the fourth stated that he was in "good condition". The examinations and reports thereof apparently resulted from private arrangement therefor made by plaintiff, the defendant having no connection therewith.

In January, 1939, plaintiff orally applied to the Mayor of the City of Fairmont to be reinstated as an active policeman. He was advised by the mayor to file a bond, appear before the Board of Directors of the City and request that he be returned to active police duty. Pursuant to the advice so given, plaintiff filed a bond with a corporate surety thereon, which was delivered to the mayor, but before approval of the bond the surety thereon withdrew its assent and refused to act further as surety for plaintiff. No further action to restore plaintiff to a status as an active policeman appears to have been taken.

Plaintiff was employed by the state road commission for short periods of time during two summers. He was employed as a coal loader from March 4, 1941, until November 30, 1942, during which time he was paid wages totaling forty-three hundred seventy-eight dollars and fifteen cents.

Defendant derives its corporate existence from Section 10, Chapter 53 Acts of the Legislature, 1937, and Code, 8-6-11. On June 13 1941, defendant passed a resolution which provided that plaintiff should be denied further pension payments for the reasons that he was gainfully employed at a salary in excess of that of a regular policeman and that payment of pension in such cases was not authorized by law. Plaintiff requested that defendant amend the resolution, the effect of the amendment being that pension payments to him would be discontinued so long as he was able to earn lucrative wages. The defendant declined to amend the original resolution. This suit was then brought under the provisions of the Uniform Declaratory Judgments Act, Chapter 26, Acts of the Legislature, 1941.

The trial chancellor, after a hearing on the pleadings and evidence, decreed that plaintiff is a member of the police department of the City of Fairmont but is not on active duty by reason of disability; that he is entitled to participate in the pension fund of the department so long as his disability and legal eligibility therefor continue; and that defendant pay the costs.

The following contentions are made by defendant: that it was error to overrule the defendant's demurrer to the bill of complaint on the ground of nonjoinder of necessary parties and that the court erred in decreeing and declaring (a) that plaintiff is a member of the police department of the City of Fairmont; (b) that plaintiff is not on active duty by reason of disability; and (c) that plaintiff is entitled to participate in the policeman's pension fund during the time he is legally eligible therefor and his disability continues.

This suit presents the question usually appearing in suits for declaratory relief. Is there an actual controversy? Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes. The pleadings and evidence must present a claim of legal right asserted by one party and denied by the other before jurisdiction of a suit may be taken. Plaintiff's right to receive a pension or restoration to duty as an active policeman and defendant's duty with respect thereto are conferred and imposed by Section 18, Chapter 69, Acts of the Legislature 1935. In this suit plaintiff asserts alternative rights: restoration to duty as an active policeman or payment of a pension as a disabled one. As to the first right the defendant is not given full authority to deny or grant the same; official action by the City of Fairmont and its mayor being necessary to restore plaintiff to duty. Defendant has power, after an examination by a medical board, as provided in Section 18 aforesaid, to grant and pay plaintiff a pension as a disabled policeman, paying such pension out of funds provided by corporate action of the City of Fairmont. Defendant by passing its resolution on June 13, 1941, denied the right of the plaintiff to further payment of his pension. The facts pleaded and proved clearly show an actual controversy as to the rights and status of the plaintiff, a denial in part by the defendant, and, therefore, a court may assume jurisdiction thereof and finally determine the same.

The principal ground of defendant's demurrer is the nonjoinder as parties of the Board of Directors of the City of Fairmont, the City of Fairmont, a municipal...