State ex rel. Carroll v. McCarthy

• Decision Date: 13 May 1942
• Docket Number: 29038.
• Parties: STATE ex rel. CARROLL v. McCARTHY
• Court: Ohio Supreme Court

41 N.E.2d 863

139 Ohio St. 654

STATE ex rel. CARROLL v. McCARTHY

No. 29038.

Supreme Court of Ohio

May 13, 1942

Appeal from Court of Appeals, Lucas County.

Alexander S. Greenbaum, of Akron, for appellant.

Martin S. Dodd, Director of Law, and Jas. Slater Gibson, both of Toledo, for appellees.

BY THE COURT.

This action in mandamus originated in the Court of Appeals of Lucas county, Ohio. The issues were made up by the amended petition, answer and reply. From the pleadings the following undisputed facts appear:

The relator, Daniel K. Carroll, was appointed a member of the fire department of the city of Toledo, Ohio, on May 15, 1909. He retired therefrom and was allowed a pension beginning September 1, 1934, at the rate of $80 per month, which he continued to draw until August 1, 1938. At that time he accepted a position as chief of the fire department for the village of Ottawa Hills, Lucas county, and received a salary derived from taxes levied and collected in Lucas county.

The respondents plead that rule XIX was amended by the board of trustees of the firemen's pension fund, effective June 1 1935.

Rule XIX, as amended, reads as follows:

'Any pensioner, widow, or any other beneficiary of the firemen's pension fund, who accepts a position with the federal, state, county or city government, or any position, the salary of which is derived from any taxable source, shall upon such acceptance of such position, be automatically removed from the pension fund pay roll, and shall remain suspended as long as he or she is employed. Upon proof to the board of pension fund trustees of the relinquishment of such position, they shall immediately be reinstated and again receive the benefits of the fund under however, the rules, regulations and schedules in effect on the date of their reinstatement.'

Relator's reply admits rule XIX was in existence on August 1, 1938, but denies that it was passed and enacted in accordance with rule XXVI and denies that it has any legal effect or force against the relator.

Rule XXVI, in effect at the time rule XIX was amended, reads as follows: 'All rules and regulations may be altered or amended in any manner by vote of two-thirds of all the members of the Board of Trustees of the Firemen's Pension Fund at a regular meeting of said board; provided, however that previous notice of such alteration or amendment shall have been given in writing to the board of trustees at least two weeks before the same shall be acted upon, and no such alteration or any change in transacting the business of the board shall go into effect or be legal until approved by the majority of the board.'

Since there is no bill of exceptions, it is impossible to determine whether rule XIX was amended in accordance with the method provided in rule XXVI.

The...