Van Coppenolle v. City of Detroit

• Decision Date: 04 March 1946
• Docket Number: No. 362.,362.
• Citation: 313 Mich. 580,21 N.W.2d 903
• Parties: VAN COPPENOLLE v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

313 Mich. 580

21 N.W.2d 903

VAN COPPENOLLE

v.CITY OF DETROIT et al.

No. 362.

Supreme Court of Michigan.

March 4, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Action by Olga Van Coppenolle, administratrix of the estate of Henry Van Coppenolle, deceased, against the City of Detroit and others for a writ of mandamus requiring defendants to pay to plaintiff the unpaid amount of retirement moneys claimed to be due under city charter. From a judgment denying the writ, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Wm. Henry Gallagher, of Detroit (Reymont Paul, of Detroit, of counsel), for plaintiff and appellant.

William E. Dowling, Corp. Counsel, and Nathaniel H. Goldstick, Asst. Corporation Counsel, both of Detroit, for defendants and appellees.

SHARPE, Justice.

Petitioner is the administratrix of the estate of Henry Van Coppenolle, deceased, and as such seeks a writ of mandamus requiring the city of Detroit, the commissioner of police and the city treasurer to pay to her the unpaid amounts of retirement monies claimed to be due her under the city charter.

The facts are not in dispute. Petitioner's husband, Henry Van Coppenolle, became a member of the police department of the city of Detroit in June 1912. He retired in June 1940. On August 7, 1940, he was indicted for the crime of conspiracy to violate the gambling laws of the State of Michigan. He was convicted June 6, 1942. He appealed from the judgment of conviction and died October 3, 1944. When he was indicted the police commissioner and city treasurer ordered his pension payments stopped.

The mandamus cause came on for trial. No oral testimony was taken on the hearing on the petition, but the record contains the testimony of two witnesses who testified in the criminal case and whose testimony involves plaintiff's intestate. The trial judge entered an order denying plaintiff's petition for writ of mandamus.

Upon leave to appeal being granted, plaintiff appeals and urges that neither the police commissioner nor any other city official possessed the authority to cause the name of plaintiff's intestate to be taken off the pension roll and his pension discontinued. It is also urged that plaintiff's intestate was entitled to a pension until the date of his death or, in the alternative, until such time as he was convicted for violation of the gambling laws of the State of Michigan.

The Charter of the city of Detroit, title 4, chap. 21, § 23, provides:

‘Whenever any member of the police force shall have been in the employ of the police department for a period of twenty-five years the commissioner shall, upon the application of the member, place the applicant on the list of retired policemen excepting therefrom any person who is not engaged continuously in actual police duty. * * *’ Defendants urge that plaintiff's intestate, having accepted bribes from gamblers while inspector of police, was not engaged continuously in actual police duty and was not entitled to be placed upon the pension rolls.

In his opinion denying the writ of mandamus, the trial judge stated:

‘The charges are of such nature that had they been made to the Police Commissioner during the time before his retirement he would have been subject to dismissal from the force. The reason why this action was not taken was because his misconduct was not known. He not only took bribes but he concealed the fact that he was taking bribes. His representatives are now here in this Court asking for a large amount of money when he was guilty of concealment of conduct which would (have) necessarily resulted in his dismissal. Had he been so dismissed he would not have been entitled to any retirement pension. His concealment of his misconduct is tantamount...