State ex rel. White v. City of Cleveland

• Decision Date: 18 January 1939
• Docket Number: 27003.
• Citation: 135 Ohio St. 13,18 N.E.2d 807
• Parties: STATE ex rel. WHITE v. CITY OF CLEVELAND et al.
• Court: Ohio Supreme Court

18 N.E.2d 807

135 Ohio St. 13

STATE ex rel. WHITE v. CITY OF CLEVELAND et al.

No. 27003.

Supreme Court of Ohio

January 18, 1939

Syllabus by the Court.

When by a rule of the board of trustees of the police relief fund a retired member of the division of police is entitled to a pension from and after a certain date under the undisputed facts, no discretion is vested in such board of trustees to fix a later date for the commencement of the pension.

This cause comes into this court on appeal as a matter of right from a judgment of the Court of Appeals of Cuyahoga county Ohio. The action was originally brought in that court and the relief prayed for was a writ of mandamus to compel the respondents to grant a pension to relatrix's ward, out of the police relief fund of the city of Cleveland, from January 16, 1933, to May 13, 1937. The Court of Appeals granted the writ.

The cause was tried below on an agreed statement of facts.

Clayton E. White became a member of the Cleveland police force in 1923 and served until he collapsed on December 31, 1931 while directing traffic. Since that time he has been wholly incapacitated for service and his illness is due to paresis induced by syphilis. This disease resulted in brain deterioration; but he retained his position without performing any service and was carried on the payroll until January 16, 1933, up to which time he received full salary. On July 29, 1933, he was adjudged insane and thereafter his wife, the relatrix, was appointed his guardian and qualified as such on January 29, 1936. Thereupon the guardian brought a mandamus action to compel the payment of salary from January 16, 1933; and on December 16, 1936, this court affirmed the judgment of the Court of Appeals in which that court dismissed the action and refused the writ. State ex rel White v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331.

On March 25, 1937, the relatrix filed with the board of trustees of the pension fund an application for a pension. On May 12, 1937, the director of public safety declared the office of patrolman formerly occupied by relatrix's ward vacant as of January 16, 1933, and notice thereof was given to the relatrix and the civil service commission, which commission concurred in the action taken.

Prior to January 16, 1933, the date on which the salary of relatrix's ward was terminated, there was correspondence between the director of public safety and the police surgeon in which the latter stated that patrolman White was 'totally physically and mentally incapacitated as the result of paresis' and expressed the opinion that the patrolman was unfitted for patrol duty and should be placed on a pension.

On July 16, 1937, the board of trustees of the pension fund granted a pension effective May 13, 1937, on the theory, it is assumed, that that was the date on which relatrix's ward ceased to be a member of the police force.

The action was filed in the court below on September 8, 1937, and that court, in granting the writ, found that relatrix's ward was entitled to a pension from January 16, 1933, to May 13, 1937.

Alfred Clum, Director of Law, Henry S. Brainard, and Charles W. White, all of Cleveland, for appellants.

A. F. Gallagher and James H. Murray, both of Cleveland, for appellee.

WILLIAMS, Judge.

There is no question as to the right of relatrix's ward to a pension but only as to when it should begin.

In State ex rel. White v. City of Cleveland, supra, this court held that Clayton

E. White (relatrix's ward) was not entitled to a salary from and after January 16, 1933, but did not determine whether he had a pensionable status beginning on that date.

Sections 4616 to 4631, General Code, provide for a police relief fund. Under authority of Section 4628, the board of trustees adopted Section 22 of the Rules and Regulations of the police pension board, which reads:

'Any member of the division of police who becomes wholly incapacitated for duty by reason of disease or injury, which in the opinion of the board of trustees entitles him or her to compensation, shall, after proper certification of such disability by the police surgeon, be placed upon the police relief roll at a rate of fifty (50) per cent of his or her salary; provided, however, that such amount of pension shall not be less than twelve hundred dollars ($1200) per year.

'Provided, however, that when it appears to the board of trustees that such retired member who has been retired in accordance with the provisions of Section 22, is physically and mentally able to perform active duty the board shall cause such retired member to be examined by the police surgeon, who shall report the result of his examination to the board. If the police surgeon shall certify that such member is able to perform active duty the board shall then certify such facts to the director of public safety and the civil service commission with a recommendation that he or she be returned to active duty. If such member is then returned to active duty of the rank he or she held at time of retirement, together with seniority rights, then his or her name shall be removed from the police relief roll. Whenever any member of the division of police becomes incapacitated for duty by reason of disease or injury the police surgeon shall notify the board of trustees in writing of such member's disability, describing the disease or injury and permanency thereof, and shall also notify such member of his action.

'Provided, that if any member of the division of police shall object to being retired on the ground that he is not disabled, but is able to perform his full official duty, then in such case such member shall select one physician or surgeon of good repute and standing, who, acting with the police surgeon, shall select another such physician or surgeon of good repute and standing, and these three shall examine such member of the division of police, and the finding of the majority of such three members shall be final as to the ability of inability, at the time, of the member so examined to perform his full duty; and if found able, he shall be returned to duty.'

Since the rule does not provide that a pension shall date from the application therefor, made to the board of trustees, this court cannot read that qualification into the rule by judicial fiat. Therefore a pension may antedate the filing of the application. However, the filing of the application and action thereon by the board of trustees is prerequisite to the granting of a writ of mandamus. State ex rel. Juhlman v. Conners, 122 Ohio St. 355, 171 N.E. 589. That case came before the court again (123 Ohio St. 670, 177 N.E. 633), after an amended petition had been filed, and a writ of mandamus was allowed on authority of State ex rel. Dieckroegger v. Conners, 122 Ohio St. 359, 171 N.E. 586.

The general rule is that the right of a retired police officer to a pension from the police relief fund is governed by the rules in force at the time of his retirement. State ex rel. Eden v. Kundts, 127 Ohio St. 276, 188 N.E. 9; State ex rel. Dieckroegger v. Conners, supra. See also State ex rel. Mansfield v. Turnbull, 132 Ohio St. 235, 242, 6 N.E.2d 971.

The case of Mell v. State ex rel. Fritz, 130 Ohio St 306, 199 N.E. 72, was decided prior to the enactment of Section 4628-1, General Code (effective May 26, 1937), which created a vested right in...