Vollmer v. Schrunk

• Decision Date: 08 October 1965
• Citation: 409 P.2d 177,242 Or. 196
• Parties: Ivan J. VOLLMER, Appellant, v. Terry D. SCHRUNK, Darrell G. Calloway, Ray D. Smith, Dale F. Gillman, David H. Johnson, John R. Pittenger, Doyle F. Souders, John Scarino, Victor Hefferin, Ronald Usher and Harold Petrie, members of the Board of Trustees of the Fire & Police Disability and Retirement Fund, City of Portland, Oregon, Respondents.
• Court: Oregon Supreme Court

Page 177

409 P.2d 177

242 Or. 196

Ivan J. VOLLMER, Appellant, v. Terry D. SCHRUNK, Darrell G. Calloway, Ray D. Smith, Dale F Gillman, David H. Johnson, John R. Pittenger, Doyle F Souders, John Scarino, Victor Hefferin, Ronald Usher and Harold Petrie, members of the Board of Trustees of the Fire & Police Disability and Retirement Fund, City of Portland Oregon, Respondents.

Supreme Court of Oregon, Department 2.

Argued Before Department 2 and Submitted October 8, 1965;

Reargued and Submitted November 30, 1965.

Decided Dec. 15, 1965.

Harvey J. Osborn, Portland, argued the cause and filed a brief for appellant.

Richard L. Unis, Deputy City Atty., Portland, argued the cause for respondents. With him on the brief were Alexander G. Brown, City Atty., and Delbert A. Weaver, Deputy City Atty., Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

SLOAN, Justice.

Plaintiff, a former Portland policeman, obtained a writ of review seeking to set aside an order of defendants which terminated his service connected disability benefits. Defendants are the Board of Trustees of the Fire and Police Disability and Retirement Fund of the city of Portland. The trial court decided that the action of the Board was not judicially reviewable on the writ and dismissed the action. Plaintiff appeals that decision. The disability benefits to plaintiff were terminated because he had been discharged for acts committed before he became disabled.

The writ will be allowed when the action of an inferior tribunal has exceeded its jurisdiction. ORS 34.010 et seq.; Bechtold et al. v. Wilson et al., 1947, 182 Or. 360, 379, 186 P.2d 525, 187 P.2d 675; Miller v. Schrunk et al., 1962, 232 Or. 383, 375 P.2d 823.

The problem of 'jurisdiction' in this case is not related to the express jurisdiction or power of the Board to hear and decide applications for disability benefits or to terminate the benefits upon a finding that the disability has ended. Plaintiff here claims that the Board exceeded the authority granted to it by the city charter when it terminated his benefits because of the discharge and that the Board did, therefore, usurp a power it did not have. There is no claim here that plaintiff had not been disabled or that his disability had not continued. The benefits were stopped only because of the discharge. Plaintiff did not dispute the discharge.

Section 5-115 of the Portland City Charter gives the Board the authority to grant service connected disability benefits and specifies that the benefits shall terminate when the disability ends. Section 5-115 grants the Board no other authority to discontinue them.

The Board, however relied on a provision of the Charter found within Section 5-113.

The latter section is entitled Benefits of Retirement and specifies the requirements of and qualifications for retirement. A separate paragraph of Section 5-113 provides:

'* * * Any member coming within the provisions of this article having twenty (20) years or more of active service who is discharged shall be entitled to receive his earned portion of the maximum pension upon reaching that age at which he would otherwise have been eligible to receive the maximum pension had he not been so discharged, or he may elect to receive at the time of discharge a refund of all contributions made by him, less the amount of non-service connected disbility benefits paid to him from said fund or previously established pension funds.'

We have emphasized the word 'article.' The article mentioned is Article I of Chapter 5 of the Portland City Charter. Article I is that part of the Charter relating to all Disability, Retirement and Death Benefits for the fire and police departments. The use of the word 'article' rather than 'section' is significant.

It appears to us that the use of the word 'article' by the framers of the Charter in the quoted paragraph would justify a determination that it was intended that the paragraph was a restriction on the right to all benefits, both retirement and disability, not just to retirement benefits. The Board, in the instant case, did construe the Charter in that way and applied the limitation of benefits specified in the quoted paragraph to plaintiff. The Board ruled that plaintiff's discharge deprived him of the right to disability benefits for that reason and allowed him to make the specified election.

This, we think was an authorized exercise of the Board's jurisdiction. It is not for the court to say whether we would agree or not. The Board had the jurisdiction to make the judgment and that is as far as we can examine the merits of plaintiff's claims on a Writ of Review. Baker v. Steele et al., 1961, 229 Or. 498, 366 P.2d 726.

The Board has the authority to construe the Charter and did so within jurisdictional limits. The case must be affirmed.

DENECKE, Justice (specially concurring).

I do not join in the majority opinion but concur in the result for the reason that I...