State ex rel. Board of Trustees of Policemen's Pension or Relief Fund of City of Bluefield v. City of Bluefield

• Decision Date: 02 July 1969
• Docket Number: No. 12828,12828
• Citation: 153 W.Va. 210,168 S.E.2d 525
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR RELIEF FUND OF the CITY OF BLUEFIELD v. CITY OF BLUEFIELD, etc., et al.

Page 525

168 S.E.2d 525

153 W.Va. 210

STATE ex rel. BOARD OF TRUSTEES OF POLICEMEN'S PENSION OR

RELIEF FUND OF the CITY OF BLUEFIELD v. CITY OF BLUEFIELD, etc., et al.

No. 12828.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1969.

Decided June 24, 1969.

As Amended July 2, 1969.

Syllabus by the Court

1. 'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369, (135 S.E.2d 262).

2. In applying the clear and unambiguous provisions of Code, 8--6--14, as amended, any city having a policemen's pension or relief fund must levy taxes for the full amount of the estimated expenditures and in addition thereto an amount equal to ten per cent of such estimated expenditures as surplus reserve, without deducting from such amount to be levied the four per cent of the salaries of the members of the police department collected from such members and the arrest fees provided for in the Code, 8--6--14a, as amended. The statute further provides that interest, if any, to be received from the investments of the board shall be credited against the amount to be levied so that the total yield of the levy shall be less by the amount of the interest.

3. Under the provisions of Code, 8--6--11, the Board of Trustees of a Policemen's Pension or Relief Fund is a corporation and may sue and be sued, plead and implead, contract and be contracted with; and with such powers given to the Board it is not only implied but necessary that it shall from time to time be required to employ an attorney to represent it either as a plaintiff or a defendant in a law suit or with regard to other legal matters and that such attorney must be paid a reasonable amount for his services. Such fee by an attorney is a proper expenditure and should be considered under the estimated expenditures upon which taxes should be levied for the payment thereof.

4. The amount paid to members of the department who resign after serving two years should be refunded out of the regular policemen's funds into which were placed the original deductions from their salaries, and such amount is not to be included in the estimated expenditures forming the basis for the levy for the fund in any tax year.

Joseph M. Sanders, Bluefield, for relator.

Walter V. Ross, Bluefield, Wade H. Ballard, III, Peterstown, Michael C. Smith, Union, for respondents.

BERRY, Judge.

This mandamus proceeding invoking the original jurisdiction of this Court was instituted by the Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, which will hereinafter be referred to as petitioner, against the City of Bluefield, a Municipal Corporation, the mayor, members of the Board of Directors, and the Treasurer of the City of Bluefield, hereinafter referred to as respondents. It involves the construction of Code, 8--6--14, as amended, and related sections with regard to the method of making the annual levy for expenditures of the policemen's fund of the City of Bluefield. The petitioner is charged with the administration of the fund and seeks to compel the respondents to approve the statement of estimated expenditures for the fiscal year beginning July 1, 1969 and ending June 30, 1970, submitted by it for the amount of money that should be raised by the levy for the fiscal year 1969--1970. The respondents reduced the amount requested by the petitioner. A rule was awarded on April 23, 1969 returnable April 29, 1969 and the case was continued by agreement of the parties to May 13, 1969 at which time it was submitted for decision of this Court on arguments and briefs.

The petitioner alleges that the Board, as required by law, filed a statement of estimated expenditures prior to January 17, 1969 for $34,983.04 for the coming fiscal year. Instead of levying taxes for the amount of estimated expenditures requested by the petitioner, the respondent City, by its officials and board of directors, only placed in the proposed budget the sum of $16,010 which could be raised by a levy of approximately two and one-fourth cents on each $100 of assessed valuation. The amount of money requested by the petitioner for the estimated expenditures could have been levied by the respondents under the provisions of Code, 8--6--14, as amended, wherein it is provided that not less than one cent nor more than five cents on each $100 of all personal and real property shall be levied for such purposes.

Included in the statement of expenditures was the sum of $3500 for attorney's fee to pay for the attorney who represented the petitioner in this proceeding. Considerable time and work had been spent by the attorney in connection with this matter and the fee was to cover all of the work done or to be done and the amount had been tentatively agreed upon by the attorney and the petitioner. However, a definite amount was later agreed upon for the attorney's services in the amount of $3100 which was indicated by a statement filed as an exhibit with the petition and signed by all of the trustees except the mayor of the City of Bluefield who was the chairman. In addition to the basic amount requested by the petitioner there was to be added thereto 10% Of such estimated expenditures, as provided by statute, the said 10% Of the estimated amount to be accumulated and invested, if possible, as a surplus reserve. The statute provides that interest from the invested reserve fund shall be deducted from the amount levied each year. Included in the estimated expenditures submitted by the petitioner were sums for two officers in the amounts of $5122.27 and $3220.32 over whom there was some dispute with regard to whether they were entitled to pensions.

The statute also requires the respondents to assess and collect from each member of the police department each month the sum of 4% Of actual salary or compensation of such member and the amount collected shall become a 'regular' part of the policemen's pension fund. Code, 8--6--14a, as amended, provides for arrest fees in the amount of $1.00 for each person arrested to be collected and paid into the policemen's pension or retirement fund. These sums as indicated on an itemized statement amounted to $6,288.24 and $1,239.36 respectively and one of the arguments in this proceeding is over what disposition is to be made of these amounts.

In making up its budget the city credited these deductions and arrest fees against the amount proposed to be levied, and also disapproved the two contested items for pensions, which latter apparently the petitioner does not object to and agrees that the last two items were properly deducted. The city also disapproved the item for attorney's fee. The proposed expenditure included two sums in the amount of $633.01 and $803.98 which apparently had been paid by the fund as refunds to two officers who had resigned from the police force. The statute provides that if an officer resigns after two years of service he may have his contributions refunded to him without interest. The respondents did not consider these payments as proposed expenses and deducted said amounts from the estimated expenditures submitted by the petitioner. The petitioner contends that these refunds constitute a continuing problem as over $14,000 has been paid out to policemen who have resigned in the past ten years, and this is depleting the fund.

After deducting or crediting the various amounts mentioned above the respondents considered the amount to be raised by levy to be about.$19,000 less than that asked for by the petitioner and accordingly placed in the city's proposed budget the sum of $16,010 which was substantially the amount remaining after the amount of estimated expenditures asked for by the petitioner had been reduced by the amount not allowed by the respondents.

It is alleged in the petition that the reserve fund is several hundred dollars less than $20,000, the exact amount depending on whether the book or market value is used, and that the respondent has for several years followed the procedure it did this year of deducting the salary withheld and arrest fees from the amount stated by the petitioner to be that which must be raised by levy, and that the directors having failed to allow any extra amounts for resigned officers the accumulation of expenditures has gradually reduced the reserve fund and caused some of the investments to be sold. The amount remaining in the operating fund has varied in the last seven fiscal years from practically nothing to a sum of about $3,000, and there has been nothing to invest in the reserve fund, all of which has caused the total fund to be in danger of insolvency.

The petitioner attempted to pay the attorney's fee but the mayor who was an exofficio member of the board refused to approve it and the city treasurer refused to disburse the money. The petitioner contends it has the power to hire an attorney and adequately compensate him.

All cities in this state maintaining such pension fund have to levy a budgetary amount for the fund and have to decide what to do with regard to the 4% Collected from the salaries of the policemen and the arrest fees as to whether to deduct these from the amounts requested by the various pension boards for estimated expenditures. The question of what to do with regard to the payments made to the police who resigned is necessary to be answered in order to know whether it should be included as a necessary expenditure and included in the budget for taxes to be levied therefor or whether it should be deducted from the amount of money in the regular pension fund. The petitioners allege that of the fifteen or more large cities in this state about half of the cities do it one...