
    The State, ex rel. Drage, v. Jones et al., Trustees of Police Relief Fund of City of Elyria, et al.
    (Decided December 22, 1930.)
    
      Mr. B. H. Bice, Mr. Leonard Smith and Mr. D. A. Baird, for plaintiff.
    
      Messrs. Fauver S Fa/uver, for defendants Myron Jones, George Stevens, and C. C. Stolzenburg.
   Washburn, J.

This is an action in mandamus, brought by the relatrix, Emily Drage, the widow of Thomas Drage, to compel the trustees of the police relief fund of the city of Elyria to declare her a beneficiary of said fund and order paid to her a pension of a certain amount per month.

She alleges in her petition facts, admitted in the answer of said trustees, which entitle her to the relief sought provided there are in force rules and regulations of said trustees for the distribution of said fund, fixing the qualifications of those to whom a pension should be paid and the amount thereof.

It is conceded that said board has not made and adopted any such rules and regulations, but it is claimed that such rules and regulations were in force before the law was passed creating the present board of trustees, and that such rules and regulations are still in force and binding upon said trustees, and, if that claim be sustained, it is conceded that the relator is entitled to the relief sought.

Previous to July 11, 1929, the law provided for the creation, management, and distribution of a police relief fund, and under said law there was such a fund in Elyria, managed by trustees chosen from the police department, and we find that rules and regulations were duly adopted which, if they are now in force and binding upon the present board of trustees, entitle the relator to the relief sought.

This case therefore turns upon the question of whether such rules and regulations are now in force and binding upon said trustees.

By the amendment of the law" which became .effective July 11, 1929 (113 Ohio Laws, 64), the old law, under which said fund had been created and its disbursement intrusted to trustees chosen by the police department, was specifically repealed and a new law passed creating a new board of trustees, to whom the ownership of said fund was transferred, and that board, as was the old board, was empowered and required to “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.” The law also provides that “no rules or regulations shall be in force until approved by a majority of the board of trustees.” Section 4628, General Code.

The law also preserves the rights of “all persons drawing pensions or entitled to them” from the old fund, but that section, Section 4629, General Code (97 Ohio Laws, 248), is of no significance so far as the relatrix is concerned, for she was not drawing a pension or entitled to one when the old law was in effect; she was not then a widow of a pensioner; she was merely the wife of a pensioner, and had no rights until she became a widow, which was long after the new law went into effect.

This section is of some significance on the general question we are considering, insomuch as there is no reference made therein to rules and regulations; and in another section (Section 4628, General Code) it is specifically provided that no rules or regulations shall be in force until approved by a majority of the new1 board of trustees.

The new law made it the mandatory duty of the new board to make rules and regulations; this it could do by adopting the old rules or regulations, or making new ones; the Legislature could have provided that the old rules or regulations should remain in force until changed by the new board, but it did not do so. On the contrary, it specifically provided that “no rules or regulations shall be in force until approved by a majority of the board of trustees.” Section 4628.

It is said that “there is no express intention to wipe the slate clean and start again on a new basis,” but it seems to us that such intention is plainly indicated by the provisions above referred to, and that such was the purpose of the changes- made in the law. The old law left the distribution of the fund to some of the very persons for whose benefit the fund was created — to the representatives of the beneficiaries of the fund. Insomuch as the law made it mandatory to raise the fund by taxation, the Legislature thought it best to give to the taxpayers a voice in the distribution of the fund by membership on the board of trustees. That membership would be of little avail if the old rules or regulations were to remain in force, with no power of change without the vote of at least one representative of the beneficiaries.

In considering this matter, it must be kept in mind that a pension of this character is in the nature of a gratuity, and that the law does not recognize a vested legal right to a pension to be granted by the government, nor in the continuance of a pension already granted, which the Legislature may not modify, or take away entirely, by repealing the statute providing for such pension; hence the Legislature had a perfect right to repeal said laws, and in doing so the rights under said laws were preserved only to the extent specified by the Legislature, and in this instance the Legislature failed to provide that the old rules or regulations should remain in force, but did make provisions which we think plainly indicate that there should be no right to be granted a pension after the new law became effective except in accordance with and under rules and regulations approved by the board of trustees created by the new law.

When the new rules and regulations are made, they may be adopted as of a date which will provide for the relatrix, if that be the desire of the trustees, but at the present time the relatrix is not entitled 'to the relief she seeks, and her petition is therefore dismissed at her costs.

At the hearing of this case we said all that was necessary regarding the advisability of the trustees agreeing upon a seventh member, so that the trustees may perform their mandatory duty to make rules and regulations fixing the qualifications of those to whom any portion of said fund shall be paid, and the amount thereof, in addition to those beneficiaries whose right to existing pensions is preserved by the law.

Writ denied.

Funk, P. J., and Pardee, J., concur.  