Opinion
No. 27064
Decided November 30, 1938.
Municipal corporations — Columbus police relief fund — Rules and regulations lawful and reasonable — Pension not payable while widow receiving workmen's compensation — Sections 1465-61, 4628 and 4628-1, General Code.
IN MANDAMUS.
The relatrix, Julia Cline, by writ of mandamus, seeks to compel the Board of Trustees of the Police Relief Fund of the City of Columbus to pay to her a pension of $50 per month commencing February 5, 1938.
The stipulation and agreed statement of facts sets forth that Robert Cline, deceased husband of the relatrix, qualified as a patrolman on February 1, 1927, was assigned to the duties of a detective on April 16, 1935, and died on February 5, 1938, from the effects of a bullet wound received in the performance of his duties while attempting to arrest bank robbers.
It is also stipulated and agreed that on March 25, 1938, the relatrix was allowed workmen's compensation as a dependent of her deceased husband, under Section 1465-61, subsection 1, General Code; that on April 8, 1938, she filed her application for a pension of $50 per month under and by virtue of a portion of Section 4 of Rule 15 of the Rules and Regulations of the board in effect on February 5, 1938; and that her application was before the board for consideration on May 2, 1938, when her counsel was present and advocated the payment of such pension.
The first defense of the answer pleads, in part, that for the year 1937 the tax of three-tenths of a mill levied for the benefit of the police relief fund was insufficient to pay all of the pensioners under the police pension rules, that it was necessary for the city council to transfer moneys from another city fund to supply the deficit and that the respondents believe that for the year 1938 it will be necessary to transfer moneys from another city fund to supplement the three-tenths mill tax in order that all pensioners may be paid the amounts to which they are entitled under the police pension rules and regulations.
The second defense of the answer alleges that on June 3, 1935, the Board of Trustees of the Police Relief Fund amended Rule 15, Section 4 of its Rules and Regulations, pertinent parts of paragraphs 5 and 6 of which now read:
"Provided further, that in the event any widow * * * of a deceased member of the division of police, is eligible to, and does receive, death benefits from the Workmen's Compensation Fund of the state of Ohio, such widow * * * shall not be eligible to receive any pension under these rules for the period of time covered by said state compensation payments * * *. This board shall not entertain applications for pensions until such widow * * * shall have been denied death benefits by the Industrial Commission of Ohio, or its successors.
"Upon the termination of payments of death benefits under the Workmen's Compensation Act of Ohio, this board, or its successors, shall award such widow, or other * * * dependents, such pensions to which they may then be entitled, and in amounts as may be fixed by the rules of the board at that time."
The answer also pleads that the Industrial Commission granted relatrix an award of $6,500, payable $18.75 weekly, and funeral expenses.
The case was submitted to this court on demurrer to the foregoing portions of the defenses set forth in the answer.
Mr. L.P. Henderson, for relator.
Mr. John L. Davies, city attorney, and Mr. Baxter Evans, for respondent.
The following questions, are submitted in the stipulation and agreed statement of facts:
Whether the fifth and sixth paragraphs of Section 4 under Rule 15 of the Rules and Regulations governing the Police Relief Fund are unreasonable, improper and contrary to the provisions of subsection 1, Section 1465-61, or Section 4628, General Code, and whether the Board of Trustees of the Police Relief Fund is endowed with the discretion, by virtue of those paragraphs of that rule, to deny or postpone the payment of pension to the widow of a police officer killed in the performance of his duty, for the sole reason that she is receiving compensation by virtue of Section 1465-61, subsection 1, General Code.
Section 4628, General Code, provides that "Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof. * * *." Under Section 4628-1, General Code, the granting of a pension pursuant to the rules adopted by the trustees operates to vest a right to receive such pension at the rate so fixed at the time of granting such pension.
The foregoing portions of the Rules and Regulations were adopted pursuant to the authorization contained in Section 4628, General Code. There was no abuse of discretion by the trustees in adopting the rules, and the rights of the relatrix to participate in the fund were governed by the rules in effect at the time of the death of her husband. ( State, ex rel. Eden, v. Kundts, 127 Ohio St. 276, 188 N.E. 9.) No pension having been granted relatrix, Section 4628-1, General Code, relating to a vested right, is not involved in this litigation.
Section 1465-61, General Code, brings within the Workmen's Compensation Act persons in the service of political subdivisions therein named, including regular members of lawfully constituted police departments, but that section, so far as it applies in this proceeding, provides in substance that the act shall not apply to policemen who are eligible to participate in any policemen's pension fund, unless the amount paid shall be less than that payable from the Workmen's Compensation Act, in which event such policemen are entitled to receive regular state compensation, less amounts received from a municipal pension fund.
We agree with counsel for respondent that one of the purposes of that section is to insure policemen an amount of money equal to the regular state compensation. That section does not require trustees to grant a pension or provide that a pension shall be paid in addition to a maximum award from the Workmen's Compensation Fund.
Having found the relatrix is not entitled to payments from the pension fund, it is not necessary to pass upon the question raised by the demurrer to the first defense of the answer as to insufficient municipal funds.
The demurrer to the answer is overruled and a peremptory writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.