State ex rel. Frye v. Bachrach

• Decision Date: 22 January 1964
• Docket Number: No. 37869,37869
• Citation: 175 Ohio St. 419,25 O.O.2d 438,195 N.E.2d 803
• Parties: , 25 O.O.2d 438 The STATE ex rel. FRYE, Appellee, v. BACHRACH et al., Trustees of Firemen's Relief and Pension Fund of City of Cincinnati, Appellants.
• Court: Ohio Supreme Court

Page 419

175 Ohio St. 419

195 N.E.2d 803, 25 O.O.2d 438

The STATE ex rel. FRYE, Appellee, v. BACHRACH et al., Trustees of Firemen's Relief and Pension Fund of City of Cincinnati, Appellants.

No. 37869.

Supreme Court of Ohio.

Jan. 22, 1964.

Syllabus by the Court

1. The right to a firemen's pension arises only by fulfilling the statutory conditions relating thereto.

2. A member of the Firemen's Relief and Pension Fund who had less than 25 years of active service in the fire department when he entered the military service during the national emergency attending World War II may not add such military service in computing the 25 years required for pension eligibility unless he was honorably separated from the armed forces on or before September 30, 1948, and made application for reinstatement in the fire department within 90 days from the date of such separation. (Sections 741.17 and 741.18(A), Revised Code, applied.)

3. A member of the Firemen's Relief and Pension Fund who had served 15 or more years in the fire department and entered the military service during the national emergency attending World War II, remaining therein until 1959, and has not applied for reinstatement in the fire department shall be deemed to have voluntarily resigned from active service in the fire department rather than to have been discharged from such department for any reason other than dishonesty, cowardice, intemperate habits, or conviction of a felony. (Subsections (E) and (I) of Section 741.18, Revised Code, applied.)

This action in mandamus was instituted in the Court of Common Pleas to compel the trustees of the Firemen's Relief and Pension Fund of the city of Cincinnati to place the name of relator, appellee herein, on the pension rolls.

From April 15, 1919, until November 5, 1940, appellee was an active member of the fire department. On October 30, 1940, a military leave of absence for one year was granted appellee, which was subsequently extended for the duration of the war. On November 5, 1940, he went on active duty as a reserve officer in the United States Army. Appellee never returned to his service with the fire department but remained in the army until 1959.

At the time of appellee's entry into the armed forces in 1940, he had some 21 years and six months of service with the fire department. During the years from 1946 on he had some correspondence with the department, indicating at first that he intended an early return thereto but later indicating that it would be necessary for him to remain in the army after December 31, 1946, for temporary overseas duty. In 1948, the personnel officer wrote to him inquiring as to his intention to return to the department. In 1949, while still a member of the armed forces, he discussed his pension rights with a city officer but was informed that he was not entitled to a pension because he was not entitled to credit for his military service. In the same year, 1949, he had some further correspondence both as to his rights to his job and to his pension. He never, at any time, made application for reinstatement to his job in the department.

On October 21, 1957, he applied to the trustees of the pension fund for the payment of his pension, which application was denied. He thereupon brought this present action in mandamus. The Court of Common Pleas allowed the writ, its judgment was affirmed by the Court of Appeals, and the cause is before this court pursuant to the allowance of a motion to certify the record.

James W. Farrell, Jr., City Solicitor, and William A. McClain, Cincinnati, for appellants.

Nicholas Bauer and Robert C. Martin, Cincinnati, for appellee.

GRIFFITH, Judge.

The basic question raised by this action in mandamus is whether military service can be credited to time served as a city fireman in determining the right to a fireman's pension, where such fireman does not rejoin the fire department within the statutory time.

It is appellee's contention that, since he was on a military leave of absence, his time in the armed forces must be credited to his time of service in the fire department in determining his pension rights.

The right to participate in the Firemen's Relief and Pension Fund is governed by statute. The applicable provision of Section 4612-4, General Code, which now appears in Section 741.18, Revised Code, reads in part as follows:

'A member of the fund who has completed twenty-five years of active service in the fire department and has attained fifty-two years of age may, at his election, retire from the fire department * * *.' The language of this section is clear and unambiguous.

Under this section, two basic conditions must occur to entitle one to participate in the fund, the completion of 25 years of active service with the department and the attainment of the age of 52.

Primarily, it is the meaning of the phrase, 'active service,' which raise the question in the instant case.

Since appellee was on a military leave of absence from the fire department, can his military service be considered 'active service' in the department in relation to his pension rights under the statute?

The phrase, 'active service,' connotes an actual participation in the employer's business. Such phrase does not include activities performed while on a leave of absence for the purpose of following another pursuit, even though such absence may be involuntary due to induction in the armed forces. Although during the tiem one is on a leave of absence there is a continuity of the employment status, the employee is not in the active service of the employer. Leave of absence means absence from service. During a leave of absence, active service for the employer has beem temporarily suspended, but the employment status continues to a limited extent. Such status continues to the extent that one on a leave of absence has a right to return to the active service of the employer. See Rumetsch v. City of Oakland, 135 Cal.App. 267, 26 P.2d 677.

In other words, while one is...