New Law of Firemen’s Pensions
WHEN considering the validity of pension laws, modern higher courts recognize the legal principle that every one has a right to demand that he be governed by general rules, and a special statute which singles his case out as one to be regulated by a different law from that which is applied in all similar cases, is not legitimate legislation, but is such an arbitrary mandate as is not within the province of free governments.
Pension Law Cannot Be Changed
In other words, a state legislature may legislate in regard to a class of persons, but it cannot take what may be termed a natural class of persons, split that class in two. and then arbitrarily designate the dissevered fractions of the original unit as two classes, and enact different rules for the government of each. For these reasons a state pension law cannot be varied or changed by subsequent enaction of municipal ordinances or regulations authorized by provisions of the State Constitution. This is so because the preservation of order, the enforcement of law, the protection of life and property, and the suppression of crime are matters of statewide concern.
For example, in Axberg v. City of Lincoln, 2 N. W. (2d) 613. reported March, 1942, it was shown that suit was instituted against the city of Lincoln, Nebraska, seeking a declaratory judgment as to the rights, status and other legal relations of firemen and whether a general state pension law is applicable and valid in a city which has adopted a home rule charter.
The facts of this case are that the city of Lincoln is a city of the first class, operating under a home rule charter adopted in 1918 pursuant to the powers granted by the Nebraska Constitution. The city maintains a paid fire department. Certain paid members of the department, who entered the employment since 1923, contended that they are entitled to pension benefits under the original firemen’s pension law passed in 1895, and that an amendatory act passed in 1923 is unconstitutional and consequently does not affect their rights.
The original firemen’s pension state law provides in part as follows: “All metropolitan cities, and cities of the first class having a paid fire department, shall pension all firemen of the paid fire department.” In 1923 the state legislature amended this law to read in part as follows: “All metropolitan cities, and cities of the first class having a paid fire department, except any city of the first class that has heretofore adopted a charter for its own government, shall pension all firemen of the paid fire department.”
The question to be answered by the court was whether a statute relating to pensions for superannuated and disabled firemen is apolicable to cities which have adopted a home rule charter under constitutional provisions.
In holding in the affirmative the higher court said: “Where the legislature has enacted a law affecting municipal affairs, but which is also of state concern, the law takes precedence over any municipal action taken under the home rule charter. We have come to the conclusion, after an examination of the authorities, that a statute providing for firemen s pensions is a matter of state-wide concern applicable to all cities within the designated class, whether they be home rule cities or not. We conclude that pensions for superannuated and disabled firemen are matters of state-wide concern and that a statute providing for their payment applies to cities governed byhome rule charters the same as other cities in the designated class.”
In a similar case the Wisconsin Supreme Court said:
“So far as we have been able to discover in all jurisdictions where the question has arisen because of a conflict between a charter ordinance adopted under a home-rule provision of a Constitution and an act of the Legislature, the matter of police and fire protection has been held to be a ‘matter of state-wide concern’.”
Legal Status of Firemen
It has been held that fire protection is a thing not only of local concern, but in which the general public has a vital interest. See People v. Springfield, 370 Ill. 541. And it has also been held that the maintenance of a fire department is a matter of general public interest and not merely of local concern. See Hamilton v. Charleston. 116 W. Va. 521. See, also, Littell v. City of Peoria, 374 I11. 344.
Since the protection of life and property by the maintenance of a fire department is a matter of state concern. it is apparent that reasonable state pension law s are valid and effective. The legal effect of this well settled law is illustrated hv the decision rendered in McLaughlin v. Lovett. 163 S. W. (2d) 826, reported August, 1942.
The facts are that a widow of a retired fireman of the Fire Department of the Citv of Hot Springs, Arkansas, contended that she was entitled to a pension. The trustees of the firemen’s pension fund refused to authorize payment of a pension and the widow instituted legal action. During the trial facts were proved as follows: John Lovett after many years of faithful and efficient service as fireman, on March 15, 1933, was retired on a pension of $54 per month, which represented one-half of the salary received by him at the time of his retirement. This pension award was made to Mr. Lovett under the provisions of a state law. Mr. Lovett continued to draw this pension each month until his death, before eight o’clock on the morning of April 1, 1941.
Pension Law Passed
On this same date, April 1, 1941, an election was held by the City of Hot Springs, Arkansas, at which the proposition was presented and approved by the voters that the city should tax real property to pay pensions to widows of retired firemen. An important question presented the court was: Since John Lovett died a few hours before the new ordinance was passed, is his widow entitled to a pension?
It is important to know that higher court held the widow entitled to payment of the pension, and said:
“The primary question presented is: Was the ordinance in effect when John Lovett died? It is our view that it was. This court has many times held that the law does not consider parts of a day. We are clearly of the view, therefore, that this ordinance was in full force and effect on and after the first moment of the day it was approved, April 1, 1941.”
Also, see Bochne v. Board of Trustees Firemen’s Pension hund, 40 N. E. (2d) 94, reported March, 1942. In this case the court refused to discuss unimportant details of a firemen’s pension law, and said:
“It is not reasonable that the legislature intended to make any distinction between the widow who marries a fireman after his retirement and retires on a pension at the arrival of fifty years of age after twenty years of service of which the last five years were continuous-—and the widow who marries a fireman after his retirement on account of the disability received while engaged in his line of duty.”
Disease Increases Disability
Frequently, pensions are refused firemen, under injury provisions, because the applicant has contracted a disease which increases his usual disability. However, if the testimony discloses that the disability is within the law, the pension must be paid notwithstanding the effects of the disease.
For illustration, in Aldworth v. Bagwell, 26 A. (2d) 565, reported July, 1942, it was shown that a municipal employe was injured. He applied for retirement under the pension law. His physician made affidavit that he was disabled by a back injury resulting from a fall. Thereupon, on June 7, he was retired upon an annual pension. Under date of September 26, he was informed that, in accordance with the practice requiring members of the association receiving pensions to submit to a physical examination annually, he should arrange for an examination by the physician for the association. He was examined by a physician for the association, who reported to the trustees, and testified at the hearing that in his opinion the disability was caused by Hodgkin’s disease and not by the back injury from the fall.
The employe had X-rays taken and the roentgenologist reported: “No areas of either increased or decreased density are noted, which are at all suggestive of malignancy such as Hodgkin’s, lymphosarcoma, etc.” Therefore, the higher court held the employe entitled to receive the pension. and said:
“In this state of the proofs, we conclude that the determination of the trustees of the pension fund is not reasonably supported by the evidence. It is inescapable that the condition of prosecutor’s back is the cause of his disability and the weight of the evidence indicates that there is no relation between the gland condition. The Hodgkin’s disease probably adds to the physical discomfort of prosecutor and may decrease his ability to get about and do things, but the proofs are satisfactory that without the gland disease prosecutor would still be so disabled as to be unable to perform the duties of his office, and that such disability is the result of an injury sustained in and about the performance of his work.”
Pension Payment Discontinued
Notwithstanding the favorable verdicts rendered in the above discussed cases, it must be realized that the higher courts will not award pensions not authorized by valid laws. Moreover the fact that a pension may have been illegally authorized and paid does not prevent the court from rendering a verdict reversing the previous award.
For example, in State v. Board of Trustees of Firemen’s Relief and Pension, 120 P. (2d) 519, reported January, 1942, it was disclosed that Thomas O. Court, a member of the fire department of the city of Spokane, Washington, was retired February 20, 1934 by the board of trustees of the Firemen’s Relief and Pension Fund, on account of physical disability incurred in service, at a monthly pension of $60.75 under the provision of a state law. This state law provides, among other things, that when any member so retired dies the amount of the pension which he would have received had he lived shall be paid to his widow or if there be no widow then such payment shall be made to his minor child or children until they attain the age of eighteen years. The law further provides that when any person receiving a pension shall be convicted of a felony the board of trustees shall direct that such pension shall immediately cease, but the pension may at the discretion of the board be paid to those immediately dependent upon him, or to his legally appointed guardian.
In 1938 Mr. Court was convicted of the crime of incest and was sentenced to the state penitentiary. Thereupon the board of trustees of the Firemen’s Relief and Pension Fund ordered that the pension cease to be paid.
Notwithstanding the state law the board awarded the pension to Court’s wife and daughter, and it was paid until 1940 when the board voted to discontinue payment of the pension to Mrs. Court and the daughter.
Board Can Discontinue Pension
It was contended that the board could not discontinue the pension because it had authorized its payment in 1938. However, the higher court held that the board’s action in discontinuing the pension was valid, and said:
“It is obvious that the state law vests the board of trustees of the Firemen’s Relief and Pension Fund with discretion to discontinue payment of benefits to dependents of a fireman convicted of a felony. Appellant’s husband was convicted of a felony which worked a forfeiture of payment of all benefits to him. Her only course would be to petition the board to exercise its discretion in favor of granting the pension to her. As the board exercised its discretion its action is final.”
What Is Abandonment
Many pension litigations are based upon abandonment of the position as city fireman. Therefore, we shall review the law on this subject because if a fireman legally resigns or otherwise discontinues his services he may have difficulty in receiving a pension award.
In Selby v. Portland, 14 Or. 243, page 246, 12 P. 377, at page 378, the court said:
“I presume instances have occurred in which officers have abandoned their offices, but they have been so rare that it requires cogent proof to establish them as matters of fact. An officer, doubtless, might legally abandon his office when wrongfully ousted therefrom; his permanent removal from the territorial jurisdiction of the office would necessarily have that effect.”
Also, see Rieke v. Hogan, 36 N. E. (2d) 886, reported July, 1942, in which it was disclosed that suit was filed to compel the Board of Trustees of the Firemen’s Relief Fund of Cleveland, Ohio to award pensions to the two minor children of John Rieke, deceased, formerly a member of the Cleveland Fire Department.
The testimony proved that John Rieke was appointed a fireman in the Cleveland Fire Department on March 20, 1920, and served continuously until April 20, 1936, when he was suspended for ninety (90) days by the Fire Chief. Rieke was charged with turning in false alarms, intoxication and absence from duty, without leave. When the period of his suspension expired he did not report for duty. He never afterwards to his death on April 10, 1938, nearly two years after he was first suspended, made any attempt to resume his duties or to retain his position in Cleveland Fire Department.
Pension Not Granted
In holding that Rieke had abandoned his position as fireman, and in refusing to allow payment of a pension to his children, the court said: “The abandonment of a public office may result from an acquiescence by the officer of his wrongful removal or discharge. It is usually considered clear evidence of abandonment of an office when the officer leaves the jurisdiction and is away from his duties for an extended period.”