State ex rel. Russel v. Michaw, 1269S301

• Decision Date: 25 May 1971
• Docket Number: No. 1269S301,1269S301
• Court: Indiana Supreme Court
• Parties: STATE of Indiana ex rel. James RUSSEL, Appellant, v. Benjamin S. MICHAW et al., Appellees.

Page 533

269 N.E.2d 533

256 Ind. 459

STATE of Indiana ex rel. James RUSSEL, Appellant, v. Benjamin S. MICHAW et al., Appellees.

No. 1269S301.

Supreme Court of Indiana.

May 25, 1971.

Straley Thorpe, Hammond, for appellant.

W. J. Glendening, Glendening & Glendening, George Glendening, Hammond, for appellees.

DeBRULER, Judge.

Appellant filed an action in Lake County Superior Court, Room 5 seeking to mandate the appellees, Board of Trustees of the Firemen's Pension Fund of Hammond, to re-instate appellant on the pension rolls. The trial court found for appellees and that ruling is the basis of this appeal.

Appellant joined the Hammond fire force on December 14, 1969. He suffered a back injury in an off duty drag racing incident on June 10, 1962. As a result of that injury he was retired from all service as disabled by the Chief of the department, and placed on the pension rolls by the Board of Trustees of the Pension Fund, pursuant to I.C.1971, 19--1--37--13, being Burns' § 48--6527. On November 12, 1965, the Board, pursuant to I.C.1971, 19--1--37--17, being Burns' § 48--6531, opened a hearing to re-examine the question of appellant's disability. On November 10, 1966, the Board found appellant physically able to return to work in a light duty status, i.e., no stooping or heavy lifting, and on November 12, 1966, certified appellant's name and their decision to the Board of Public Works and Safety of Hammond. As required by § 48--6531, supra, the latter Board re-instated appellant to active service, restricted to light duty, as of December 1, 1966. Appellant did not report for work and appellant's name was removed from the pension rolls as of December 1. Appellant then filed this action to require the appellees to reverse their decision and re-instate appellant on the pension rolls.

Section 48--6531, supra, states that there shall be no judicial review of the board of pension trustees' decisions but this type of statutory provision has long been deemed unconstitutional and not a bar to judicial review of this kind of administration adjudication. Mann v. Terre Haute (1960), 240 Ind. 245, 163 N.E.2d 577; Public Service Commission v. Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399. We will construe appellant's action as a complaint for judicial review of the decision made by appellees on November 10, 1966, finding appellant physically able to resume active service on a light duty status. There is no dispute as to the facts and the sole question is the legality of that finding.

Appellant's first argument is that the appellees were precluded from reaching their decision by I.C.1971, 19--1--37--18, being Burns' § 48--6532, which reads in relevant part:

'No person who is over the age of thirty-five years or who fails to pass the physical examination required by the board of trustees shall be appointed, reappointed or reinstated as a member of the fire force of any city contemplated in this act. * * *' (Emphasis added.)

Appellant notes that the undisputed facts show that at the time of the appellees' decision appellant was forty-one years old and could not pass the physical exam required before a person may join the force. Appellant concludes that, therefore, appellant could not be 're-instated as a member of the force.'

We do not think this statute is applicable to the case of the return of a disabled fireman to active service. The appellant was not 're-instated as a member' of the force because he was a 'member' all the time he was disabled. In Muncie v. Horlacher (1944), 222 Ind. 302, 53 N.E.2d 631, this Court said:

'* * * when a fireman is retired he is not discharged and he does not by reason of his retirement cease to be a member of the fire force.' 222 Ind. at 307.

Appellant was a retired member who was re-instated to active service. Section 48--6532, supra, applies to cases where the fireman has not been a member for some period of time and is again made a member of the force. Such is not the case here. This view of the statute is supported by the absurd results which would flow from appellant's interpretation of the statute, e.g., any fireman over thirty-five years old becomes temporarily disabled and placed on retired status for a short time may not be reinstated to active service even though completely...