Mell v. State ex rel. Fritz
| Decision Date | 18 December 1935 |
| Docket Number | 25627. |
| Parties | MELL et al. v. STATE ex rel. FRITZ. |
| Court | Ohio Supreme Court |
Error to Court of Appeals, Summit.
Action in mandamus by the State, on the relation of one Fritz against one Mell and others, constituting the Board of Trustees of the Firemen's Pension Fund of the City of Akron. To reverse a judgment allowing the writ, respondents bring error.-[Editorial Statement.]
Reversed.
This is an action in mandamus originally instituted in the Court of Appeals of Summit county by defendant in error, a retired fireman, against the board of trustees of the firemen's pension fund of the city of Akron to enforce payment of the pension awarded to him upon his retirement.
For convenience, we shall hereinafter refer to defendant in error as the ‘ relator’ and to the board of trustees of the firemen's pension fund of the city of Akron as the ‘ board.’
The following are the facts pertinent to the issues involved:
On April 1, 1930, after forty-three years of service in the fire department of Akron, the relator was retired on a pension which was fixed by the then board at $170.06 per month; that being the amount to which he was entitled under the rules and regulations then in effect and governing such fund. At that time the board consisted of five firemen and the director of public safety. On April 3, 1929, section 4600, General Code, was amended, effective July 11, 1929 and provided for a new board consisting of two firemen, two councilmen, and two citizens. A new board was not elected in Akron until long after the amended law went into effect and no meeting was held by the new board following its election until April 16, 1930. The order fixing relator's pension was therefore fixed by the hold-over members of the old board, and the relator was paid $170.06 monthly until May 1, 1934. Shortly prior to such date, the current board adopted new rules and regulations which raised some pensions and reduced others. The effect of the new rules and regulations was to reduce the pension of relator to $125 per month. He thereupon filed suit in mandamus in the Court of Appeals asking for an order to compel the board to pay him the pension granted to him by the old board; namely, $170.06 per month. The writ was allowed in the Court of Appeals as prayed for, and the board now prosecutes error to this court to reverse the judgment of the Court of Appeals.
Board of trustees of municipal firemen's pension fund had discretionary power to reduce pension award theretofore made by predecessor board, where board acted reasonably and not arbitrarily.
Syllabus by the Court .
1. A pension granted by public authorities is a gratuitous, rather than a vested or contractual, right.
2. An existing board of trustees of a pension fund has discretionary power to modify pension awards theretofore made by it or by predecessor boards, by increasing or reducing the amount thereof, providing the same is done reasonably and not arbitrarily.
Charles C. Benner and Jerome Taylor, both of Akron, for plaintiffs in error.
Ralph L. Kryder and Paul E. Werner, Jr., both of Akron, for defendant in error.
The sole question presented for our determination is whether the board has the power to reduce or increase pensions of those already receiving them.
The Court of Appeals of Summit county denied the existence of such right, and cited in support of its position Holmes et al., Trustees, v. State ex rel. Delaney, 93 Ohio St. 480, 113 N.E. 1070; State ex rel. Dieckroegger v. Conners, 122 Ohio St. 359, at page 366, 171 N.E. 586; and State ex rel. Eden v. Kundts et al., Trustees, 127 Ohio St. 276, 188 N.E. 9, 10.However, we do not deem the above cases authority for the determination of the issue here raised. We are here concerned with the right of the board to increase or decrease pensions of those already receiving them, which question was neither raised, discussed, nor determined in the cases above mentioned. As counsel for the board point out, the case of Holmes et al., Trustees, v. State ex rel. Delaney, supra, concerned itself with the question of the right to revoke and suspend entirely the pension paid to a retired policeman, and this court held that the board had no such authority in view of the rules and regulations then existing. No rules were then in effect giving the board the right to thus suspend the pension, and the act was consequently unauthorized. In the instant case, the board of trustees did act pursuant to existing rules and regulations governing the question of increasing or reducing the amounts of pensions.
In the case of State ex rel. Dieckroegger v. Conners supra, the rules of the board entitled the retiring police officer to a pension, and the board acted...
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