State ex rel. Lemperle v. McIntosh

• Decision Date: 11 April 1945
• Docket Number: 30129.
• Citation: 60 N.E.2d 786,145 Ohio St. 107
• Parties: STATE ex rel. LEMPERLE v. McINTOSH et al.
• Court: Ohio Supreme Court

60 N.E.2d 786

145 Ohio St. 107

STATE ex rel. LEMPERLE v. McINTOSH et al.

No. 30129.

Supreme Court of Ohio

April 11, 1945

Syllabus by the Court.

The board of trustees of a police relief fund has power, by virtue of Section 4628, General Code, to adopt a rule reducing the amount of a gratuitous pension during the time the pensioner engages in a profitable occupation.

Appeal from Court of Appeals, Hamilton County.

MATTHIAS and BELL, JJ., dissenting.

The relator, Carl C. Lemperle, on October 9, 1943, brought this proceeding in mandamus in the Court of Common Pleas of Hamilton county against the Trustees of the Police Relief and Pension Fund of the city of Cincinnati and the city manager to compel his restoration to the pension roll and the payment of his pension of $75 per month from March 1, 1943.

The facts are not in dispute.

The police relief fund has been in continuous existence since its creation many years prior to March 29, 1917. On that date the relator was made a regular patrolman in the police department and continued to be a member thereof until June 1, 1924, at which time he was honorably discharged as a result of injuries sustained while engaged in the performance of his duties as a policeman. On or about the latter date he was placed on the pension rolls at $50 per month. Later this amount was raised to $60 and then to $75, and payments were made accordingly until March 1, 1943. On that date relator's name was removed from the pension roll in pursuance of rule 43(c) of the trustees which was originally adopted on February 4, 1943, and amended on January 31, 1944 (during the pendency of this action in the Court of Common Pleas), and is hereinafter quoted in its original form. No claim is made by the respondents that the relator is physically able to perform the duties of a policeman. At the time of filing the agreed statement of facts, namely, April 10, 1944, the relator was gainfully employed, earning in excess of $175 per month, but mone of his salary was derived from public funds or funds raised by taxation. Relator made demand for payment of the pension withheld and for restoration to the pension roll. The demand was refused. The police relief fund comes almost wholly from taxes, but does receive minor sums, gifts, bequests and certain fines, penalties and licenses. In addition, members of the police force contribute an amount equal to two per cent of their salaries, excluding salary amounts in excess of $3,600.

It also appears from the agreed statement of facts that there were 48 pensioners of the police relief fund up to May 26, 1937, the effective date of Section 4628-1, General Code (the vested-interest statute). Twelve members have been removed from the pension roll by reason of rule 43(c).

On March 29, 1944, the Court of Common Pleas rendered judgment in favor of relator, ordering his restoration to the pension roll and payment of his monthly pension from and after March 1, 1943.

The Court of Appeals reversed the judgment of the trial court and entered final judgment dismissing relator's petition.

This court allowed a motion to certify the record.

George A. Dornette and John M. McCaslin, both of Cincinnati, for appellant.

John D. Ellis, City Sol., and Ed F. Alexander, both of Cincinnati, for appellees.

WILLIAMS Judge.

The power of the trustees of the police relief fund to make rules and regulations is derived from Section 4628, General Code, which reads thus: 'Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof, with power also to give credit for prior continuous actual service in the fire department or in any other department of the city rendering service in fire prevention, but, no rules or regulations shall be in force until approved by a majority of the board of trustees.'

It was in the exercise of power conferred by that statute, that the trustees adopted rule 43(c), the pertinent part of which, in its original form, reads as follows:

'Section 43(c). Once each year during the first five years following retirement of a member on a pension for disability and once in every three-year period thereafter, the board may require any disability beneficiary who has not yet attained age sixty or who did not complete 25 years of service before retirement to undergo a medical examination, such examination to be made by the police surgeon at a place mutually agreed upon. Should such disability beneficiary refuse to submit to at least one medical examination in any year his allowance may be discontinued until his withdrawal of such refusal, and should his refusal continue for one year, all his rights in and to his pension may be revoked by the board.

'Should such disability beneficiary engage in a profitable occupation, or should the police surgeon certify that he is able to engage in such an occupation, the pension under these rules shall be subject to deduction as follows:

'(1) If the average monthly total of the pension allowance plus the amount earned or earnable does not exceed one hundred and seventy-five ($175) dollars, no deduction shall be made.

'(2) If the average monthly total exceeds one hundred and seventy-five dollars ($175), but does not exceed the monthly salary payable to the pensioner at the time of retirement, no deduction shall be made.

'(3) If the average monthly total exceeds one hundred and seventy-five dollars ($175) and also exceeds the monthly salary at retirement, the monthly pension shall be reduced to a sum which when added to the average amount earned or earnable per month, shall produce a total income equal either to one hundred and seventy-five ($175) dollars, or to the monthly salary received at retirement, whichever is greater.

'Should his earning capacity be later changed, the amount of his pension shall be further modified in like manner.'

Relator's counsel contend that rule 43 (c) is 'utterly capricious, arbitrary and unlawful and against public policy,' and to maintain their position point to certain claimed discriminations concerning which we will now make inquiry.

Is such rule invalid by reason of discriminations (1) between beneficiaries pensioned before the effective date of the vested-interest statute (Section 4628-1, General Code) and beneficiaries pensioned after that date and before the date the rule became effective, (2) between earned or earnable income and any other income, and (3) between disability beneficiaries and length-of-service beneficiaries or other beneficiaries? Rule 43(c) as amended January 31, 1944, eliminates the so-called discrimination between disability pensioners and length-of-service pensioners. By the amendment of the rule its provisions were made to apply to all pensioners under the age of sixty instead of disability pensioners only and one of the claimed vices was removed. No other change was effectuated by the amendment. Consequently, if the rule...