
    Karb et al. v. The State ex rel.
    
      Pension to members of fire department — Determination by trustees as to disability of claimant, final — Mandamus to compel trustees to make determination — Duty of medical officer— Benefits of fund available to whom — Construction of statute— Section 17, act of Aprit 13, 1892 (89 Ohio Laws, 259).
    
    1. Where a new right with its remedy is given by statute, and there is no provision for a review or appeal from the determinations of those who administer the statute, such determinations are usually final.
    2. Under section 17 of the act granting pensions to members of the fire department, 89 O. L., 259, the board of trustees of the pension fund is charged with the duty of determining whether the disability of the claimant was caused in, or induced by, the actual performance of the duties of his position as such member, and such determination, when made in good faith, is final.
    3. If the board of trustees refuses, upon proper application, to make such determination, it can be compelled by a mandamus to do so ; but if the result of such determination is against the applicant, the board cannot be compelled to further act on the case.
    4. If the determination of the board is in favor of such applicant, it then becomes the duty of the board to order his examination by the medical officer, and upon refusal, the board may .be compelled by mandamus to make such order.
    5. Upon such order being made, it becomes the duty of the medical officer to examine the applicant, and determine whether he has a partial or permanent disability, and such determination of the medical officer, when made in good faith, is final.
    6. In a case where the board of trustees has not determined that the alleg'ed disability of the applicant was ‘ ‘caused in, or induced by, the actual performance of the duties of his position as such member, ” and no order has been made by the board for his examination by such medical officer, and there has been no examination under any such order, -it is error for a court to grant a peremptory writ of mandamus against such board, commanding the admission of such applicant to the benefits of the pension fund, even though the chief engineer of the fire department may have relieved such applicant from actual service at fires, and recommended him to the board for a pension.
    
      7. In such case the mandamus should command the performance of the first act which is left unperformed by those administering the statute, and as to the performance of which they have no discretion.
    8. The benefits of such pension fund, are available only to those who are at the time of making their applications, members of the fire department, and if the applicant has been wrongfully discharged, he should be reinstated before making his applicátion.
    [Decided March 31, 1896. ]
    Error to the Circuit Court of Franklin county.
    The case in the court of common pleas was a petition in mandamus, by the state on the relation of August Pirsig, against the mayor and other persons, constituting the board of trustees for the distribution of the fireman’s pension fund of the city of Columbus. After stating the grade and class of the city of Columbus, and that the persons named constitute said board of trustees, the petition is as follows: “On the 16th day of February, 1893, and for about two years and • one-half immediately prior to said date, the relator was a member of the fire department of said city of Columbus,.and on said 16th day of February, 1893, incurred a partial permanent disability while in the actual performance of the duties of his said position in this, to wit: that while riding one of the horses belonging to said fire department for the purpose of exercising him, the saddle girth broke, and said horse ran away and fell, throwing and falling on the relator, and injuring his left knee and causing stiffness and lameness thereof, and said knee has ever since been and still is disabled, and the relator is lamed and disabled thereby; and he avers that the said injury is permanent and is a permanent partial disability of relator, and was caused and incurred in the actual performance of the duties of his position as such member of said fire department.
    “On or about the 1st day of July, 1893, on account of said disability of relator, upon an examination of the relator by a medical officer, ordered by said board of trustees, the fire chief of said department duly relieved the relator of actual service at fires, and he has ever since been relieved from such duties. The relator has remained and still is a member of said fire department. His salary was stopped at said date.
    “On or about the 9th day of August, 1893, the relator applied to the defendants and requested them to authorize the payment, monthly from the firemen’s pension fund to him, of the sum. to which he is entitled by law, on account of said disability, and made such application and demand afterwards on the 12th day of August, 1893, and at several subsequent times. But said defendants refused and still refuse to authorize said payment, or any payment to the relator, though there was then and is ample pension fund on hand to pay the said claim to the amount of $40 monthly.
    “Wherefore relator prays that a writ of mandamus issue, commanding defendants to authorize the payment to him out of the said fund, the sum of forty dollars, monthly, from and after July 1, 1893.”
    The answer admits the grade and class of the city of Columbus, that said George J. Karb .is the mayor of said city, that the persons named, constitute said board of trustees, that relator was a member of the fire department on the 16th day of May, 3 893, and denies each and every other allegation in said petition contained.
    
      The court of common pleas found in favor of the respondents and dismissed the action. The case was taken to the circuit court on appeal by the relator, and upon trial in that court, a judgment was rendered in favor of the relator against the respondents, commanding them to admit the relator to the benefits of such pension fund, and that said board authorize the payment to the relator monthly, from said fund, a sum not less than thirty nor more than forty dollars, or in proportion to the number of beneficiariés of said fund, as the condition of the fund might 'warrant.
    A motion for a new trial was overruled, and exceptions taken. A bill of exceptions, containing all the evidence, was allowed and filed, and the case comes into this court upon petition in error, seeking to. reverse the judgment of the circuit court.
    
      Gilbert II. Barger, Ellsworth O. Irvine and Florizel Smith, for plaintiffs in error.
    Since mandamus is a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, the existence of all the facts necessary to put the holder of such office in default must be shown before the writ will issue;
    
      State ex rel. v. Yeatman, 22 Ohio St., 546; Fordyce v. Goodman, 20 Ohio St., 1; Dutton v. Hanover, 42 Ohio St., 215; Ross v. Board of Education, 42 Ohio St., 374; High Ex. Leg. Rem., section 116; State ex rel. v. Hays et al., 50 Mo., 34; Commissioners of Putnam County v. Auditor Allen County, 1 Ohio St., 322; Butnett v. Auditor Portage County, 12 Ohio, 54; State ex rel. v. Commissioners, 26 Ohio St., 364; Cincinnati College v. La Rue, 22 Ohio St., 469; State v. 
      Cappeller, 39 Ohio St., 460; State v. Moore, 39 Ohio St., 487; Patton v. Sheriff,, 2 Ohio, 395; Allan v. Parish, 3 Ohio, 187; Dodge v. Gridley, 10 Ohio, 173; State v. Blake, 2 Ohio St., 147; Bloom v. Richardson, Ohio St., 387; State v. Turnpike Co., 16 Ohio St., 2 308; Medical College v. Zeigler, 17 Ohio St., 52; State v. Franklin Co., 20 Ohio St., 421; State ex rel. v. Commissioners, 35 Ohio St., 458.
    Mandamus will not be issued to control discretion confided by law to public officers, nor for much greater reason will the writ be awarded when its effect would be to dispense with the exercise of such discretion with regard to matters dependent upon such exercise.
    Where, therefore, a statute provides that in case of the partial permanent disability of a fireman, caused in the actual performance of his duties as such, the fire chief, upon an examination of such fireman by the medical officer ordered by the board of trustees of a pension fund shall have power to relieve such fireman from actual service at fires, and that said trustees, upon such member being so relieved, shall authorize the payment of a pension to such fireman, such statute confides to such trustees, medical officer and fire chief discretionary powers ; and it is an error to issue a peremptory writ of mandamus commanding the payment of a pension and thereby dispense with the exercise of such discretionary powers.
    Courts have no authority, by proceedings in mandamus, to control the discretion confided by law to inferior officers, boards or tribunals, whether it be judicial, or only quasi judicial, in its nature. Section 6742, Revised Statutes. In re Turner, 5 Ohio 542; Ex parte Black, 1 Ohio St., 30; Commissioners of Turnpike Road v. Commisioners, 1 Ohio St., 149; State v. Harris, 17 Ohio St., 616; Commissioners v. Commissioners, 24 Ohio St., 401; State v. Board Fire Commissioners, 26 Ohio St., 24; State v. Commissioners, 31 Ohio St., 351-7; State ex rel. v. Crites, 48 Ohio St., 460 ; State ex rel. v. Comissioners, 49 Ohio St., 301; 14 Amer. & Eng. Ency. of Law, 108-111; State ex rel. v. Commissioners, 36 Ohio St., 330; Conger v. Barker, 11 Ohio St., 1 Williams v. State, 35 Ohio St., 175; State v. Vanderbilt, 37 Ohio St., 640; Allen v. Russell, 39 Ohio St., 337; Heck v. State, 44 Ohio St., 536; State v. Stockley, 45 Ohio St., 304; Gardener v. Woodyear, 1 Ohio, 170; Swasey v. Blackman, 8 Ohio, 5; Ash v. Ash, 5 Ohio St., 383; Tyler v. Winslow, 15 Ohio St., 364; Jackson v. State, 36 Ohio St., 281; Bishop’s Written Laws, section 98; Daily v. U. S., 17 Ct. of Cl., 144; U S. v. 25 Fed., 470: Stokely v. De Camp, 2 Grant, Cas., 17; U. S. v. Shindler, 10 Fed., 547; Boughton v. U S., 12 Ct. of Cl., 330 ; Portland Co. v. U. S., 5 Ct. of Cl., 441; Nicoll v. U. S., 7 Wall., 70 ; Dougherty v. U. S., 6 Ct. of Cl., 90; Turner v. U. S., 9 Ct. of Cl., 367; U. S. v. Kaufman, 96 U. S., 567; Campbell v. U. S., 12 Ct. of Cl., 470; First National Bank v. U. S., 15 Ct. of Cl., 225.
    The partial permanent disability or injury for which the relator seeks a pension was not caused in or induced by the a?tual performance of the duties of his position as a fireman.
    
      (a.) He was violating his duty at the time of the accident.
    (5.) -His leg was crippled, weak and disabled for years prior to the time of the accident.
    A person so at fault will not be heard to complain. Krause et al v. Morgan, 52 Ohio St., 662; 
      Hammond v. Railroad Co., 35 W. L. B., 231; Cleveland v. Stofer, 33 W. L. B., 227.
    
      J V. Lee and D. T Ramsey, for defendant in error.
    The pleadings in mandamus have the same effect and are to be construed as in civil actions. Revised Statutes, sections 6751, 6752. State ex rel. v. Otenberger v. Hawes, 43 Ohio St., 16.
    
      First — The decision of the court is not, and the findings upon which it is based are not, sustained by sufficient evidence.
    
      Second — The decision of the court is contrary to law.
    No exceptions having been taken upon the trial, the only error assigned, as we understand it, is the ■ overruling of the motion for a new trial.
    "We submit it that the relator was entitled to judgmeut upon the testimony, the objection that the proof does not conform to the allegations of the petition is not available. Such objection should be made at the trial when the testimony is offered. Sections 5114, 5115,' Revised Statutes, Hoffman v. Gordon, 15 Ohio St., 211; Benninger v. Hess, 41 Ohio St., 69; Dayton Insurance Co. v. Kelly, 24 Ohio St., 345. The board of trustees never did pass upon the application of the relator. On the contrary, they failed and refused to pass upon it. Having’ made no determination as to his rights, their action is not final. The object and purpose of this proceeding was to compel them to perform a duty resulting from their office which they had refused to perform. In what sense their action or non-action can be regarded as final, we. do not perceive.
    
      It is immaterial whether their action was in good faith or not, if, in fact they failed .or refused to perform their duty.
    We submit that mandamus is the proper remedy, and the only remedy which the disabled fireman had. State ex rel. Anderson v. Harris 17 Ohio St., p. 608.
   Burket, J.

The relator founds his claim to a pension upon the act of April 13, 1892, 89 O. L., 259, and especially upon section 17 of the act, which is as follows:

‘ ‘In case of a partial permanent disability of any member of said fire department, caused in or induced by the actual performance of the duties of his position as such member, or which shall have occurred before the expiration of ten years’ service in said fire department, the chief engineer, fire marshal, or fire chief of such fire department,upon an examination of such partially permanently disabled member by the medical officer ordered by the board of trustees, shall have power to relieve such partially permanently disabled member from actual service at fires, and the said board of trustees, upon such member being so relieved, shall authorize the payment to such partially permanently disabled member, monthly from said pension-fund, a sum not less than thirty dollars nor more than forty dollars, or in proportion to the number of beneficiaries of said fund (as the condition of said pension fund) may warrant. The member so partially permanently disabled and relieved from active service at fires, shall remain a member of said fire department, subject to the rules governing the same, and may be ordered by the said official head of said fire department to the performance of such light duties as the medical officer ordered by said official head of said fire department may certify him qualified to perform, and the said official head of said fire department shall, out of the general fund of said fire department, fix and pay such additional compensation for the performance of said light duties as the circumstances and merit of each case (in its discretion) may warrant. Such pension and additional compensation so paid to such partially permanently disabled member mentioned in this and the preceding sections of this act, shall be in lieu of any salary received by such member at the date of his being so relieved from active service at fires, and the said city shall not be liable for the payment of any other claim or demand for services hereafter rendered by such partially permanently disabled member.”

If the subject-matter of this act — pensioning firemen — is of a general nature, and it seems to be so, it is difficult to maintain the constitutionality of the act, in view of the recent decision of this court in the ease of the City of Cincinnati v. Steinkamp, 54 Ohio St., 284; but as that question was not argued or even mentioned in the briefs of counsel, it is left undecided.

To entitle a person to a pension under this statute, it must appear that he is a member of the fire department, that he has a partial permanent disability, that such disability was caused in, or induced by, the actual performance of the duties of his position as such member, or that the disability occurred before the expiration of ten years’ service in the fire department.

As to what is meant by this sentence, ‘ ‘or which shall have occurred before the expiration of ten years’ service in said fire department, ” it is difficult to determine. To say that the “or” should be read “and,” it would make the statute read that in order to be. entitled to the pension, the disability must have occurred during the first ten years of his service as fireman, and yet it would be naturally supposed that a disability occurring after ten years of service, would be as meritorious as a like disabilily occurring earlier. To hold that the word “or,” really means “or,” then the sense would be that any partial permanent disability occurring during the first ten years of service, would entitle the fireman to a pension, even though such disability was not caused in, or induced by, the actual performance of his duties as such member. So it seems that in either sense of the word “or, ” this sentence does not comport with the spirit of the remainder of the statute, and is most likely the result of some mistake, as it seems to lead to an absurdity.

But as this sentence is not the point upon which this case turns, it may be left out of further consideration, and this case may be determined upon the other necessary facts.

How and by whom are these other necessary facts to be ascertained? It would seem that the first step should be by the disabled fireman himself in the form of an application to the board for a pension, and such was the course pursued in ■ this ease. Upon such application being made, the board of trustees must become satisfied in some manner that the applicant is a member of the fire department. That being determined in his favor, the next step is to ascertain whether his alleged disability was caused in, or induced by, the actual performance of the duties of his position as such member! By whom shall this be ascertained and determined? The statute does not expressly say, but manifestly it is to be done by the trustees, because it is by the existence of that fact, that the trustees became authorized to order his examination by the medical- officer; and as there is no other person named to ascertain that fact for them, it must follow that they must determine it for themselves. As the statute provides for no appeal or review from the finding and determination of the trustees as to what caused or induced his disability, it must follow that the findings and determination of the trustees in that behalf are' final. It is a rule of construction, that where a new'right with its remedy is given by statute, and there is no provision for a review or appeal from the determination of those who administer the statute creating the right, such determination is usually final. In such case an adverse decision cannot be overcome by appeal or original petition to a court of justice. Had the legislature intended that the cause of the disability should be ascertained by litigation in court, it would have made provision therefor in the statute. The theory of the act seems to be that the board of trustees can be trusted to do full justice in each case.

In case the board of trustees find that the alleged disability was caused in, or induced by, the actual performance of the duties of the fireman’s position as such member of the fire department, it becomes the duty of the board to order his examination by the medical officer and upon refusal to order such examination the board may be compelled to do so by mandamus.

Upon being ordered to do so by the board of trustees it becomes the duty of a medical officer to examine the applicant and determine whether he; is disabled and whether such disability is partial or total, and whether of a permanent or temporary nature, and his determination in good faith is final, as there is no provision for a review or re-examination.

Should the applicant, upon such examination, so duly ordered, be found to be partially and permanently disabled, the chief engineer, fire marshal and fire chief have jjower to relieve such applicant from actual service at fires, but such chief engineer, fire marshal and fire chief cannot be ’ compelled to exercise such power; but if they or either of them do exercise such power, and do in fact relieve such applicant from actual service at fires, and still retain him as a member of the fire department, then it becomes the duty of said board of trustees to authorize the payment to him of a pension of from thirty to forty dollars per month as the state of the pension fund may warrant, and upon refusal to do so, may be compelled by writ of mandamus.

The relator states the facts of his case very meagerly in his petition, in this, that while he avers that he made his application for pension to the board of trustees, he fails to aver that the board found and determined that his alleged disability was caused in, or induced by the actual performance of the duties of his position as such member; and while he avers that he was examined by the medical officer upon the order of the board of trustees, he fails to aver that upon such examination the medical officer found him with a partial permanent disability. But granting that these omitted averments are necessarily implied from the facts stated and allegations in the petition, if they are so implied, they are denied by the general denial in the answer, and upon the trial required proof.

How then stands the proof upon the trial? There is no evidence tending to prove that the trustees found and determined that the alleged disability was caused in, or induced by, the actual performance of the duties of the applicant’s position as such member of the fire department. There is no evidence tending to prove that any examination by the medical officer was ordered by the board of trustees, and no evidence tending to prove that the board of trustees refused to make such order. There is no evidence tending to prove that an examination was made by such medical officer under such order.

Without a determination by the trustees that the alleged disability was caused in or induced by the actual performance of the duties of his position as such member, without an order of the trustees based thereon for his examination by the medical officer, and without such examination under such order, the chief engineer, fire marshal and fire chief had no power to relieve him from actual service at fires with a view of having him placed upon the pension rolls, and if they, or either of them, did so relieve him, such action did not authorize said trustees to cause him to be placed upon the pension rolls.

Counsel for relator in their brief, in speaking of the duty of the board of trustees to pass upon his application, say: “It is sufficient to say that the board of trustees never did pass upon the application of the relator. On the contrary, they failed and refused to pass upon it. ” If this be true the board should have been compelled to act upon the application, but the result of their action would rest within their own sound judgment. Failure of the board to act, would not supply the place of favorable action by the board, because upon acting on the application, the board might find and determine that the alleged disability was not “ caused in, or induced by, the actual performance of the duties of his position as such member.”

Suppose the partial permanent disability was caused by a railroad wreck on an excursion while' the fireman was enjoying a vacation off duty, or while taking a pleasure ride with his own team, it would not be contended that such injury would entitle him to a pension; and in case of his application for a pension for such or any other injury the first duty, and first step of the trustees, after ascertaining that he is a member of the fire department must be to determine whether the alleged disability was caused in, or induced by, the actual • performance of the duties of his position as such member, or by some other cause, and such determination in good faith, must be final.

If it be true that the board refused and neglected to act upon the application of the relator, it should be compelled by mandamus to take such action, and determine how the alleged disability was ' caused, unless it should appear that the applicant, at the time of making his application, was not a member of the fire department.

If he was not a member at that time, but- had been wrongfully discharged, he must first secure a reinstatement, but if he had been properly and legally discharged before making his application, so that he was not at that time a member of the department, he was not entitled to the benefits of the pension fund, and in such case the board was under no obligation to determine the cause of his alleged disability.

A fireman may be lawfully discharged for many causes other than disability, and if he so conducts himself after he has become disabled as to warrant his discharge, and the proper officer in fact discharges him for such misconduct, he cannot thereafter while no longer in the department, legally claim the benefits of the pension fund.

It is urged by counsel for defendant in error that the petition should be amended so as to conform to the evidence.

The case is one of failure of proof, and to amend the petition so as to conform to the evidence, would so weaken the same as not to be sufficient to sustain the judgment.

Amending the petition to conform to the .evidence, is available only, when the evidence is stronger than the petition; but here the petition is much stronger than the evidence, so that an amendment would only make the case worse. It follows that the judgment of the circuit court must be reversed, and the ease remanded to that court for a new trial, or such other disposition as the facts and law of thecase may warrant.

■Judgment reversed and case remanded.  