State, Ex Rel., v. Conners

• Decision Date: 28 May 1930
• Docket Number: 22158
• Parties: The State, Ex Rel. Dieckroegger, v. Conners Et Al.
• Court: Ohio Supreme Court

171 N.E. 586

122 Ohio St. 359

The State, Ex Rel. Dieckroegger, v. Conners Et Al.

No. 22158

Supreme Court of Ohio

May 28, 1930

Municipal corporations - Police relief fund - Powers of trustees statutory - No discretion to deny pension to retired or dismissed policemen - Rule 45 of Cincinnati Board of Trustees - Refusal for discharge limited to dishonesty, cowardice or felony conviction.

1. The police relief fund of the City of Cincinnati was established and is maintained by virtue and under authority of statutory law, and the powers of the board of trustees of the police relief fund with respect to such fund are the powers conferred by statute.

2. A discretion has not been conferred by statute upon the board of trustees of the police relief fund to deny a pension to a retired or dismissed police officer who is entitled to a pension by the rules of such board duly adopted and in force at the date of his retirement or dismissal.

3. Rule 45 of the board of trustees of the police relief fund of the City of Cincinnati, "Any member of the Police Department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice or being convicted of a felony, shall, upon the approval of the Board of Trustees of the Police Relief Fund, be paid a pension from said fund in amount equal to $2.00 per month for each year of consecutive service, provided the pension under this rule shall in no case be more than $50.00 per month," does not confer upon such board a discretion to deny a pension to a "member of the police department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice, or being convicted of a felony."

IN MANDAMUS.

The facts are stated in the opinion.

Messrs Zielonka & Kuertz, for relator.

Mr John D. Ellis, city solicitor, Mr. Milton H. Schmidt, and Mr John J. O'Donnell, for respondents.

ROBINSON J.

This is an original action in this court. The relator, Walter J. Dieckroegger, alleges in his petition that he was a member of the police department of the city of Cincinnati from January 25, 1913, to November 11, 1929; that on the latter date he was discharged from the police department upon charges other than dishonesty, cowardice, or conviction of a felony; that subsequent thereto he filed an application with the defendant board of trustees of the police relief fund for the payment to him of a pension for his service of nearly seventeen years, under Rule 45; that on December 28, 1929, his application was rejected and disapproved by such board.

He alleges that Rule 45, then in force, reads: "Any member of the Police Department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice or being convicted of a felony, shall, upon the approval of the Board of Trustees of the Police Relief Fund, be paid a pension from said fund equal in amount to $2.00 per month for each year of the consecutive service, provided the pension under this rule shall in no case be more than $50.00 per month."

He alleges that there are sufficient funds in the police relief fund for the payment of his pension. He prays for a writ commanding the board of trustees of the police relief fund to allow his application as of the date of such application. A general demurrer to the petition was filed by the defendants.

The police relief fund was established under the authority of Sections 4616 to 4631, inclusive, General Code. The pertinent portions of those sections are:

Sec. 4616. In any municipal corporation, having a police department supported in whole or in part at public expense, the council by ordinance may declare the necessity for the establishment and maintenance of a police relief fund."

Sec. 4621. In each municipality availing itself of these provisions to maintain the police relief fund the council thereof each year in the manner provided by law for other municipal levies, and in addition to all other levies authorized by law shall levy a tax of not to exceed three-tenths of a mill on each dollar upon all the real and personal property as listed for taxation in the municipality but sufficient in amount within the three-tenths of a mill to provide funds for the payment of all pensions granted to policemen under existing laws."

Sec. 4623. All fines imposed upon members of the police department of the municipality by way of discipline or punishment by the authority having charge or control thereof, and all rewards, fees, or proceeds of gifts and emoluments allowed by the authority in charge or control of the department, paid and given for or on account of any extraordinary service of any member of the force, and moneys arising from the sale of unclaimed property or money, after deducting all expenses incident thereto, shall be credited to the police relief fund."

"Sec. 4625. The trustees of the fund may also receive such uniform amounts from each person designated by the rules of the police department, a mem- ber thereof, as he voluntarily agrees to, to be deducted from his monthly pay, and the amount so received shall be used as a fund to increase the pension which may be granted to such person or his beneficiaries, or in the discretion of such trustees money derived from such monthly deductions shall be used to relieve members of the force who contribute thereto when sick or disabled from the performance of duty, for funeral expenses, relief of their families in case of death or for pensions when honorably retired from the force."

"Sec. 4626. The treasurer of the municipality shall be the custodian of the police relief fund, and shall pay it out upon the proper order of the trustees thereof."

"Sec. 4628. 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."

The question here made is whether the provision of Rule 45 "upon the approval of the Board of Trustees of the Police Relief Fund," confers upon that board a discretion to approve or disapprove an application of a discharged police officer for a pension, when such police officer has served fifteen consecutive...