State ex rel. Williams v. Board of Trustees of Policemen's Pension or Relief Fund of City of Charleston

• Decision Date: 02 July 1963
• Docket Number: No. 12239,12239
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Dewey E. WILLIAMS v. The BOARD OF TRUSTEES OF the POLICEMEN'S PENSION OR RELIEF FUND OF the CITY OF CHARLESTON et al.

Page 612

131 S.E.2d 612

147 W.Va. 795

STATE ex rel. Dewey E. WILLIAMS v. The BOARD OF TRUSTEES OF the POLICEMEN'S PENSION OR RELIEF

FUND OF the CITY OF CHARLESTON et al.

No. 12239.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1963.

Decided July 2, 1963.

Syllabus by the Court.

1. A writ of mandamus will issue to require the discharge by a public official of a nondiscretionary duty.

2. A member of a municipal police department for a continuous period of more than twenty six years who has reached the retirement age of sixty five years and who has complied with all the applicable statutory requirements is entitled to a pension as provided by the statute; his right to such pension or his membership status is not affected, impaired or altered by his tenure of the position of chief of police or acting chief of police during a portion of his service as a member of such police department and it is the nondiscretionary duty of a board of trustees of a municipal policemen's pension or relief fund to grant and authorize the payment of such pension to such member and mandamus lies to require the performance of such duty by such board of trustees.

Kay, Casto & Chaney, John E. Davis, Charleston, for relator.

E. Franklin Pauley, Charleston, for respondents.

HAYMOND, Judge.

In this original mandamus proceeding instituted in this Court on May 20, 1963, the petitioner, Dewey E. Williams, seeks a writ to require the defendants, The Board of Trustees of the Policemen's Pension or Relief Fund of the City of Charleston, West Virginia, a corporation, J. F. Gullian, E. D. Smith, J. O. Humphreys, members of the board, G. C. Wiseman, member and secretary of the board, and John A. Shanklin, member and chairman of the board and Mayor of the City of Charleston, to grant him the pension for which he has applied but which the board has refused to grant him and to cause such pension to be paid to him, as provided by law.

Upon the application of the petitioner this Court granted a rule, returnable June 4, 1963, at which time the defendants filed their joint and separate answer to the petition; and upon the foregoing pleadings and the exhibits filed with them, the transcript of the testimony adduced and the proceedings had before the board on May 3, 1963, and the written briefs and the oral arguments of the attorneys for the respective parties, this proceeding was submitted for decision.

As a defense to the claim of the petitioner the defendants contend that mandamus is not the proper remedy for the relief sought by the petitioner; that Section 11, Article 5A, Chapter 8, Code, 1931, as amended, to the extent that it purports to be retroactive in its effect, is unconstitutional; and that the petitioner has not complied with the requirements of Articles 5A and 6 of Chapter 8 of the Code, 1931, as amended.

The material facts are not disputed and the question presented for decision is a question of law.

The petitioner was appointed a member of the police department of the City of Charleston on July 15, 1936. He was promoted to the grade of sergeant January 10, 1942; to the rank of lieutenant September 1, 1945; and to the rank of captain July 1, 1949. While he held the rank of captain he was designated acting chief of police and held that position from April 11, 1953 until July 15, 1956, when he was assigned to the police training bureau of the department where he served until July 25, 1957. From that date until September 1, 1958, he was superintendent of police schools and administrative assistant to the chief of police and from September 1, 1958 until May 1, 1963 he served in the detective bureau as chief of detectives. From July 15, 1936, when he became a member of the department, until May 1, 1963, a period of twenty six years, eight months and fifteen days, he served as a member of the department in the various positions as indicated. During that time he was acting chief of police of the department from April 11, 1953 to July 15, 1956, a period of three years, three months and four days. Throughout the entire period of his service he paid each month into the policemen's pension fund the amount which he was required to pay as a member of the police department and, according to the record, his payments aggregate the sum of $2,197.71 and were made by the monthly deduction from his salary of the proper amounts of such payments.

The petitioner reached the retirement age of sixty five years on May 4, 1963 and previously, by letter dated May 3, 1963, he made application to The Board of Trustees of the Policemen's Pension or Relief Fund for the payment of the pension to which he claims to be entitled. By letter dated March 15, 1963, the secretary of The Board of Trustees of the Policemen's Pension or Relief Fund informed the Mayor of the City of Charleston that the petitioner would be sixty five years of age on May 4, 1963 and that the board was required to take action in connection with his retirement status. In response to this letter the mayor, as chairman of the board, called a meeting of the board to be held April 4, 1963, for the purpose of considering the retirement of the petitioner. At that meeting, which the petitioner, though present with his attorney, was not permitted to attend, the board, one member being absent, initially refused to grant and authorize the payment of a pension to the petitioner. After informing him of the action of the board and after some discussion with the petitioner and his attorney, the board rescinded its action and agreed to hold a public hearing to consider the application of the petitioner. This hearing was held on May 3, 1963, and was attended by all the members of the board and its attorney and the petitioner and his attorney. Testimony of the petitioner and the present chief of police of Charleston and exhibits filed with such testimony were introduced and a transcript of the proceedings was made and certified by a court reporter.

After considering the evidence adduced at the hearing and the arguments of the attorneys, the board, contrary to the opinion of its attorney, by a four to one vote, its chairman, the mayor, having voted to grant, refused to grant and authorize the payment of a pension to the petitioner. After the denial of his application by the board the petitioner instituted this proceeding on May 20, 1963.

There is no merit to the contention of the defendants that mandamus is not the proper remedy to obtain the relief sought by the petitioner in this proceeding.

If, under the applicable statute, the petitioner is entitled to a pension, the defendant, The Board of Trustees of the Policemen's Pension or Relief Fund of the City of Charleston, is subject to the nondiscretionary duty to grant such pension and to cause it to be paid from the policemen's pension or relief fund. This Court has held in many cases that a writ of mandamus will issue to require the discharge by a public official of a nondiscretionary duty. The W. E. Long Co.-Independent Bakers' Co-Operative v. Burdett, W.Va., 126 S.E.2d 181. See also the many cases cited in the opinion in that case.

The applicable provisions of the statute, which relate to and are dispositive of the claim of the petitioner to the pension which he seeks, are Sections 10, 14, 15, 17 and 20, Article 6, Chapter 8, Code, 1931, as amended.

Section 10 requires that in any municipal corporation in this State having a fire department or a police department, supported in whole or in part at public expense, the governing body shall, by ordinance, provide for the establishment and maintenance of a firemen's pension or relief fund and a policemen's pension or relief fund and shall create boards of trustees which shall administer and distribute the funds authorized by the statute.

Section 14, declares, in...