Opinion
No. 30098
Decided April 11, 1945.
Police relief fund — Cleveland Heights — Section 19 of rules and regulations — Credit for war service — Computed only for period police department service interrupted.
In computing the years of service of a member of the police department, under Section 19 of the Rules and Regulations for the government of the Board of Trustees and the Police Relief Fund of Cleveland Heights, credit for war service (whether in warfare or in an armed expedition) may be given only for such war service as interrupted the policeman's period of service in the police department.
APPEAL from the Court of Appeals of Cuyahoga county.
For the purpose of determining whether appellant was entitled to a credit for his military service in applying for a police pension, appellees brought this action for declaratory judgment. Whether appellant is entitled to such credit depends upon the proper interpretation of the language of Section 19 of the rules and regulations of the board of trustees of the police relief and pension fund of the city of Cleveland Heights. Such section reads:
"Any member of the Cleveland Heights Police Department who has served continuously for twenty-five (25) years since January 1, 1920, and who shall have made his contributions to the police relief fund continuously since January 1, 1940, or who shall have made the contributions for a continuous period of twenty-five (25) years, upon his written application on form provided for that purpose, may voluntarily retire and shall then be placed on the police relief fund roll at a rate of pension equal to fifty (50) per cent of the salary for the rank such member held at the time of his retirement; and any such member who, at the expiration of such time, does not elect to retire shall receive upon retirement, provided his contributions be continued during his further period of service, an additional two (2) per cent by way of pension for each year of service in addition to the twenty-five (25) years; provided, however, that in no case shall the amount of pension paid to any member exceed sixty (60) per cent of the basic salary for the rank the member held at time of retirement.
"Upon the retirement of a member of the division of police entitled to benefits herein and who shall have actually served for a continuous ten (10) year period next preceding such retirement in a position to which detailed and for which he is paid a higher salary than that fixed for the position from which detailed, then upon retirement his relief compensation shall be based on the salary received in the position to which detailed at the time of his retirement.
"In computing the years of service, any member of the police department who has actively served in the armed forces of the United States in time of warfare or when armed expeditions were conducted during his period of service, and such member has been honorably discharged, a credit for such war service shall be allowed to such member, but such credit shall not in any case exceed thirty months.
"Any member of the police department wishing to obtain credit for such service in the armed forces of the United States, as above provided, shall file a written application therefor with the secretary of this board, which application shall be accompanied by an affidavit stating the length, date and place of such service. Such affidavit shall be accompanied by a photostat copy of the honorable discharge of said applicant from the armed forces of the United States wherein he rendered such service or in lieu of said photostat copy an official certificate of the proper official of the United States having custody of the government records of such honorable discharge.
"When such application has been filed with the secretary of this board, the secretary shall lay such application and all accompanying documents filed therewith before the board of trustees who shall grant a hearing on such application and investigate the facts surrounding the same and shall determine the extent of the credit, if any, to be allowed for war service under the provisions of this section and under the provisions of the Ohio General Code and shall enter its findings upon the proper records of this board."
The portion of the section to which particular attention is drawn, reads:
"In computing the years of service, any member of the police department who has actively served in the armed forces of the United States in time of warfare or when armed expeditions were conducted during his period of service, and such member has been honorably discharged, a credit for such war service shall be allowed to such member, but such credit shall not in any case exceed thirty months." (Italics ours.)
In applying for a pension appellant made proof of his enlistment in the United States Army on December 18, 1917, and his honorable discharge as of March 31, 1919, a total period of one year, three months and thirteen days in military service.
The Court of Common Pleas made the following disposition of the case as shown by its journal entry:
"This cause came on for hearing this 8th day of May, 1944, on the petition of plaintiff and answer of defendant.
"Thereupon the court, after due consideration, finds, adjudges, orders and decrees that the true construction and interpretation of the third paragraph of section 19 of the rules and regulations for the government of the board of trustees of the police relief and pension fund of the city of Cleveland Heights, Ohio, is that any member of the police department shall be allowed credit towards retirement from the police department for the time served in the armed forces of the United States during time of warfare or when armed expeditions were conducted during his period of service, irrespective of whether the time so served in the armed forces was prior to or during his time of employment in the police department."
Upon appeal the Court of Appeals reversed the judgment of the trial court "for error of law in construing the third paragraph of Section 19 of the rules and regulations adopted by the board of trustees of the police relief and pension fund of Cleveland Heights and in holding that the defendant [appellant here] is legally entitled to receive credit toward retirement from the Police Department for the period he served in the armed forces of the United States during time of warfare which preceded his period of service in the police department."
The cause is here following the allowance of a motion to certify the record.
Mr. G.E. Hartshorn, for appellees.
Mr. Andrew J. Hagan, for appellant.
We are of the opinion that in order to reverse the judgment of the Court of Appeals it would be necessary, to read out of that part of rule 19 in question here the words "during his period of service." The questioned paragraph would then read:
"In computing the years of service, any member of the police department who has actively served in the armed forces of the United States in time of warfare or when armed expeditions were conducted, and such member has been honorably discharged, a credit for such war service shall be allowed to such member, but such credit shall not in any case exceed thirty months."
If this were done it would exceed the authority conferred by Section 4628-3, General Code, which provides:
"Trustees of the police relief and pension fund are hereby authorized to adopt rules for the allowance of credit toward retirement of those members of the police department who have actively served in the armed forces of the United States army, navy or marine corps in time of warfare or when armed expeditions were conducted during their period of service, and such members have been honorably discharged; such credit shall not exceed thirty months."
We may not read out of the foregoing section the words "during their period of service" which in our opinion refer to service in the police department.
We agree with the following quotation in appellant's brief:
"All language used in each and every enactment must be considered to have a purpose and courts in construing statutory enactments must ascertain the legislative intent from the language used."
There is another rule of construction which should not to be overlooked and that is that legislative enactments are presumed to have a prospective not a retrospective effect. 37 Ohio Jurisprudence, 298, Section 1, and page 819, Section 500.
We also agree with that part of appellant's argument wherein it is said: "However, the intent and purpose of the board of trustees in drafting and adopting the rule is quite clear. The language is distinct, clear, intelligible, and free from ambiguity."
Where a legislative enactment is free from ambiguity, there is no room for interpretation.
We agree with the reasoning of the Court of Appeals in saying: "The words 'during his period of service' appearing in the middle of the sentence, which sentence comprises all of paragraph 3 of section 19 (quoted supra), was intended to refer to service in the police department and not the military service. Otherwise the phrase does not add a thing to the meaning of the paragraph. The interpretation of the paragraph contended for by the defendant-appellee is complete and is clearly expressed without the addition or inclusion of this phrase in the sentence."
We might also call attention to the fact that the years of service to be computed under rule 19 is the period of service in the Cleveland Heights police department since January 1, 1920. Appellant became a member of such police department on August 18, 1920.
It follows that the judgment of the Court of Appeals should be and it is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, MATTHIAS and HART, JJ., concur.