Meyer v. Board of Trustees of Firemen's Pension & Relief Fund for City of New Orleans

• Decision Date: 02 February 1942
• Docket Number: 36401.
• Citation: 199 La. 633,6 So.2d 713
• Court: Louisiana Supreme Court
• Parties: MEYER v. BOARD OF TRUSTEES OF FIREMEN'S PENSION & RELIEF FUND FOR CITY OF NEW ORLEANS.

6 So.2d 713

199 La. 633

MEYER v. BOARD OF TRUSTEES OF FIREMEN'S PENSION & RELIEF FUND FOR CITY OF NEW ORLEANS.

No. 36401.

Supreme Court of Louisiana

February 2, 1942

Francis P. Burns and Claude W. Duke, both of New Orleans, for appellant.

A G. Williams, of New Orleans, for appellee.

HIGGINS Justice.

This is an action by a widow against the Board of Trustees of the Firemen's Pension and Relief Fund for the City of New Orleans, in which she is seeking a pension in the sum of $15 per month from November 28, 1936, to the date of her death or until she remarries. This suit is based upon Section 12 of Act 43 of 1902, as amended by Act 27 of 1914, which reads, as follows:

'Section 12. Be it further enacted, etc., that if any member of said fire department shall, while responding to an alarm of fire or while working at or returning from a fire, be killed or receive injuries which shall result in the death of the injured fireman within six months from the time said injuries are sustained, and shall leave a widow, or child or children under the age of fourteen years, surviving, said Board of Trustees shall direct the payment from said pension and relief fund to such widow, while unmarried, of fifteen dollars monthly, and for each child, until it reaches the age of fourteen, six dollars monthly; should he leave no widow or children, but a widowed mother dependent upon him for support, the said board shall pay her the sum of fifteen dollars monthly, as long as she remains unmarried; provided the combined pension shall not exceed one-half the monthly salary of the deceased member at the time of his death; and further, that the said pension shall not operate as a bar to the payment of any death benefits otherwise provided in this act.' (Italics ours.)

The petitioner alleges that she was married to John Lacey, the deceased, on October 20, 1920, and that there was no issue of the union; that her husband was employed by the Fire Department of the City of New Orleans as a chauffeur on Pumper No. 5 and was stationed at 821 Magazine Street that about 8 o'clock on the night of November 27, 1936 an alarm was sounded in the neighborhood of Annunciation and Calliope Streets; that her husband, in the performance of his duty drove the fire engine or Pumper No. 5 to the place from where the alarm was given; that it was necessary for him to drive upon some very rough streets, particularly Annunciation Street, which was roughly surfaced with cobble stones; that due to the roughness of the streets, he was subjected to severe shock and strain and was thrown about on the seat of the fire engine and his head was brought in violent contact with a part of the engine or the apparatus thereon or the fixtures thereof, causing a concussion of the brain or fracture of his skull from which a hemorrhage resulted; that upon returning to the fire station, he complained of feeling ill and stated that during the ride he had 'felt something snap in his neck and a sudden pain in his head'; that he remained on duty at the fire station that night suffering from a severe headache, nausea and vomiting spells, which continued during the following day (November 28) while at his home; that on the evening of November 28, he reported for duty at the station and while sitting on a chair, about 6:45 p. m., he slumped over in an unconscious condition; and that he was immediately taken to the Charity Hospital, where he was pronounced dead, the cause of his death being diagnosed as 'cerebral hemorrhage'. The petitioner also alleged that she made amicable demand on the Board for the pension, which was refused.

The defendant, in its answer, admitted the employment of the deceased as a fireman; that he had responded to the fire alarm; that he died on the date in question; and that it had refused the widow's claim for the pension. The defendant denied that the deceased had received any injuries while engaged in his duties as a fireman and averred that his death resulted from 'natural causes'. It also pleaded that its decision on the plaintiff's application was final and conclusive under the provisions of Section 3 of Act 43 of 1902, as amended by Act 27 of 1914, and not subject to review by the Court. This section reads, as follows:

'Be it further enacted, etc., that the said Board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assessed for the relief or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mothers, and for the payment of death benefits, and shall assess each member of the fire force not less than one per cent., nor more than two per cent., of the salary of such members, to be deducted and withheld from the monthly pay of each member so assessed, the same to be placed by the treasurer of said fund to the credit of such fund, subject to the orders of such board. The said board shall make all needful rules and regulation for its government in the discharge of its duties, and shall hear and decide all applications for relief, pensions and death benefits under this act, and its decisions on such applications shall be final and conclusive, and [not] subject to review or reversal except by the board. The board shall cause to be kept a record of all its meetings and proceedings.' (Italics and brackets ours.)

When the case was called for trial on its merits, the defendant's counsel objected to the plaintiff offering any testimony or evidence on the ground that the petition did not disclose any right or cause of action, which exceptions and objection were predicated upon Section 3 of the statute already specially pleaded. Counsel for the plaintiff then stated to the court that if the construction placed upon Section 3 of the statute by the defendant that the court had no jurisdiction of the case were accepted, it would make that part of the statute unconstitutional for four reasons: First, there would be an encroachment upon the powers of the judiciary; second, there would be a denial of equal protection of the law; third, there would be a delegation of legislative power and discretion without proper safeguards; and fourth, there would be a denial of due process of law.

Upon the conclusion of the trial, the judge overruled the special plea, the exceptions and the objection to the evidence on the ground that to construe Section 3 of the act as the defendant sought to do would be giving the Board the exclusive authority and power to finally decide pension claims thereunder on both questions of law and fact and thereby deprive the court of its jurisdiction vested in it by the Constitution and, thus, make that section of the statute unconstitutional. On the merits of the case, he concluded that the evidence showed that the deceased while responding to a fire alarm received injuries which resulted in his death the next evening and that his widow was, therefore, entitled, under Section 12 of the Act, to receive the pension as prayed for, and judgment was accordingly entered.

The defendant appealed.

If the construction placed by the defendant on the pertinent language of Section 3 of the statute, that the decisions of the Board on the applications for pensions shall be final and conclusive and not subject to review by the courts on questions of law and fact, is accepted, this would undoubtedly make that part of the law unconstitutional.

Under the provisions of Section 12 of the statute, the plaintiff, as the widow of the deceased, was entitled to receive a pension, provided her husband's death resulted from injuries received while answering a fire alarm. Her statutory right to a pension became vested upon the happening of his death and the fulfillment of these other requirements. If the construction placed upon Section 3 of the Act by the defendant that the Board has the exclusive power and authority to decide claims for pensions, without the claimant having the right to have its decision reviewed by the courts, is adopted as correct, it is easy to see that the Board, at will and upon purely arbitrary grounds, could deprive the claimant of her vested stautory rights. This result, for all practical purposes would be equivalent to the Legislature delegating to the Board the right to amend the provisions of Section 12 of the statute which fixes the rights of the claimant. The decision of the Board neither creates the widow's rights nor vests them in her. The law and the happening of certain events vest in her the right to the pension.

Under the terms of the statute, a certain percentage of the plaintiff's deceased husband's salary as a fireman was placed in the pension fund and, therefore, the statute in the instant case cannot be considered as granting a gratuity to the widow. When the plaintiff's husband died, under the facts set fourth in her petition, she had a vested right, under Section 12 of the statute, or a right and cause of action, which the court had jurisdiction to entertain. Pennie v. Reis, 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426; Dodge v. Board, etc., of Chicago, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57; State ex rel. McKay et al. v. Board of Trustees of Firemn's Pension and Relief Fund, 141 La. 427, 75 So. 103; 43 C.J.Mun.Corp.Sec. 1421, p. 817; Hayes v. City of Hoboken, 93 N.J.L. 432, 108 A. 868, and Clarke v. Earle, 42 N.J.L. 94-97.

Section 6 of Article 1 of the Constitution (Bill of Rights) provides: 'All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.' (Italics ours.)

Article VII of the Constitution of...