Opinion
No. 28297
Decided February 26, 1941.
Municipal corporations — Firemen's relief and pension fund — Member of fire department prerequisite — Abandonment of position a constructive resignation — Minor children not entitled to award from fund, when.
APPEAL from the Court of Appeals of Cuyahoga county.
On March 20, 1920, John Rieke was appointed fireman in the Cleveland fire department and continuously served until April 20, 1936, when he was duly suspended for 90 days for turning in a false alarm, intoxication and absence from duty without leave.
On July 28, 1936, at the expiration of the suspension period, Rieke failed to report for duty or to explain such failure and he thereupon became absent without leave.
On October 16, 1936, he was suspended by the fire chief pursuant to Section 119 of the Cleveland Charter, for being absent without leave for a period of 80 consecutive days. Notice of a hearing before the director of public safety was mailed to but not received by Rieke and personal service was not possible as he had disappeared to parts unknown even to his wife and children. On October 20, 1936, which was the day set for the hearing, the director of public safety was absent from the city and the hearing on the suspension was had before the executive assistant to the director of public safety, as the duly designated acting director of public safety. The acting director notified Rieke in writing that: "By your failure to appear for trial it is my opinion that you, by your conduct, separated yourself from the service of the Cleveland fire department; that such conduct means that you have resigned and your resignation is accepted effective as of October 20, 1936."
On April 10, 1938, Rieke died as the result of an automobile accident in the state of Washington. His wife was duly appointed guardian of her minor children and she made application on May 31, 1939, to have her wards made beneficiaries of the firemen's relief and pension fund, which application was denied by the respondents as members of the board of trustees.
She instituted an action in mandamus in the Court of Appeals to compel the board of trustees to award pensions to the two minor children of Rieke. The case was heard upon the petition, answer, reply and an agreed statement of facts.
A writ was denied, two judges concurring and one dissenting, and an appeal as of right was prosecuted to this court as the mandamus proceeding originated in the Court of Appeals.
Messrs. Curry McCabe and Mr. A.F. Gallagher, for appellant.
Mr. Henry S. Brainard, director of law, Mr. Charles W. White and Mr. J.H. Crowley, for appellees.
The Court of Appeals held that, under Section 119 of the Charter of Cleveland, in the absence of the director of the department only the mayor is authorized to inquire into the cause of suspension of police and fire department officers and employees, and that such quasi-judicial duty cannot be assigned to an assistant in the absence of specific charter provision.
Counsel for relatrix below contend that the only legal order issued was the 90-day suspension on April 20, 1936, and that Rieke continued to be a member of the department under suspension and without pay until his death on April 10, 1938.
Section 23 of the Rules of the Trustees of the Firemen's Relief and Pension Fund provides:
"If any member of the division of fire shall be killed or die from any cause, while a member of the division of fire, or while retired, and shall leave * * * minor child or children (as herein defined), under eighteen years of age, * * * such * * * minor child or children * * * shall be placed upon the firemen's pension roll and receive the following amounts monthly, viz: * * * (Italics ours.)
Section 29 of the rules provides:
" Members who have resigned or who have been discharged from the division of fire shall have no interest or claim on the firemen's pension fund, except as otherwise provided by these rules and by-laws." (Italics ours.)
The Court of Appeals adopted the view of counsel for the respondents that even if the action of the acting director were not valid in accepting Rieke's resignation implied from his conduct, under the facts in this case he abandoned his position and for that reason he was not a member of the department at his death, citing 22 Ruling Case Law, 560, Section 264, and Scofield v. United States (6 C.C.A.), 174 F., 1. After referring to Selby v. City of Portland, 14 Ore., 243, 12 P. 377, 58 Am. Rep., 307, wherein it is stated, at page 246, that it requires cogent proof to establish abandonment as a matter of fact, the Court of Appeals in the present case declared that stronger evidence of abandonment could hardly be secured than that Rieke did not report for duty and made no attempt to resume his duties or to retain his position during the period commencing with the expiration of his 90-day suspension and continuing until the date of his death, an interval of nearly two years.
Being a member of the division of fire was the first requisite for participation in the relief and pension fund. Abandonment may be treated as a constructive resignation. 2 McQuillin on Municipal Corporations (Rev. Ed.), 245, Section 516. Other propositions advanced by counsel for relatrix below need not be decided. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.