Opinion
No. 37244
Decided February 14, 1962.
Mandamus — Writ refused — Clear legal right thereto not shown — Trustees of police and firemen's pension fund — Reconsideration of retired member's claim — Discretion of trustees.
APPEAL from the Court of Appeals for Hamilton County.
This action in mandamus was instituted in the Court of Appeals against the members of the Board of Trustees of the Police Relief and Pension Fund of the City of Cincinnati. The following facts are alleged in the petition:
For 20 years prior to August 1, 1948, relator was a member of the police department of Cincinnati. On May 26, 1948, he was involuntarily retired from the department, effective August 1, 1948, on account of ordinary disability. On June 29, 1948, he applied for and was granted an award on account of ordinary disability and has received monthly payments since August 1, 1948. At the time relator applied for the award, he was not informed of the nature of his illness or the medical facts upon the basis of which his retirement was recommended. In 1959, he investigated his disability status and ascertained that the ailment for which he was awarded ordinary disability is a service-connected disability, and that the award formerly granted was based on a mistake of fact.
On February 24, 1961, relator filed an amended application asking that the award be made for a service-connected disability, and that payments be adjusted accordingly. The respondents declined to take action on the claim.
The prayer of the petition is for a writ to require respondents to consider relator's claim based on a service-connected disability and to dispose of the claim on its merits.
The respondents filed a demurrer to the petition for the reason that it does not state sufficient facts to constitute a cause of action.
The Court of Appeals sustained the demurrer and denied the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Richter Dewan, for appellant.
Mr. James W. Farrell, Jr., city solicitor, and Mr. William A. McClain, for appellees.
The relator does not allege that the board in making the award was without jurisdiction; that the order was void, illegal, contrary to law, or the result of fraud, misrepresentation, or bad faith; or that there have been changed conditions or new facts not in existence at the time the order was made. The complaint is that the order was erroneous, being based on a mistake of fact. However, the factual matters were in existence when the order was made and were or could then have been called to the attention of the board. Relator is asking for an order requiring the board to rehear and redetermine his application on the facts existing more than 12 years previously, during all of which time he received ordinary nonservice connected benefits which he originally requested. The board exercised its discretion in declining to take action on the claim.
The burden is on relator to show a clear legal right to the writ of mandamus. This he has failed to do.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.