Tobin v. Scannell

John J. Tobin, the husband of the appellant, was a fireman in the fire department of Brooklyn for more than io consecutive years prior to November 30, 1895, when he was retired upon a pension. He died on April 6, 1896. By the provisions of section 15, tit. 13, of the charter of Brooklyn (Chapter 583, Laws 1888, as amended by chapter 153, Laws 1889), two funds were created,—one a “Firemen’s Insurance Fund,” made up of fines, rewards, fees, donations, and the percentage or tax on foreign insurance companies. Tobin received his pension from this fund. The other fund was made up from monthly deductions from the pay and pensions of members of the fire department, and was known as the “Brooklyn Fire Department Widows’ and Orphans’ Relief Fund,” and from the money so assessed the sum of $1,000 was required to be paid, by the terms of the act, to the widow of such retired pensioner. The provisions referred to have been substantially re-enacted in the Greater New York charter (chapter 378, Laws 1897), and the administration of both funds is committed to the respondent, the fire commissioner of the city of New York, as the trustee of the New York fire department relief fund, without material change, however, as to the rights of persons claiming benefits therefrom. After the death of her husband, the appellant applied for the pension of $1,000 from the widows’ and orphans’ relief fund, but was refused payment on the ground that her Jiusband had ceased, during the few months of his retirement, to contribute to that fund; but in the litigation which resulted it was held that her right to such pension was absolute. In re Tobin, 53 App. Div. 453 , 66 N. Y. Supp. 97 , affirmed in 164 N. Y. 532 , 58 N. E. 650 . Within two weeks after the decision was announced in the court of appeals, the appellant requested the respondent in writing to place her name upon the pension list of the firemen’s insurance fund as of the date of her husband’s death, and was-informed in answer and in writing that the respondent declined to act favorably upon her request. She thereupon obtained an order requiring the respondent to show cause why a writ of peremptory mandamus should not issue commanding such action on his part, and on the return of such order, upon her petitioning affidavit and the answering affidavit of the respondent, the order appealed from was granted, denying her motion in all respects.

The portion of section 15, hereinbefore referred to, which is applicable, and which refers only to the fund accumulated from other sources than the contributions of members of the department, is as follows:

“If any * * * member of the department * * shall die after ten. continuous years in the service of the department, * * * or shall die after having been retired from actual service, leaving a widow, the name of such widow may he placed on such pension roll, and there may be granted and paid to said widow a pension of three hundred dollars per year, from said fund, so long as she remains unmarried. * * * In every case 'the commissioner shall determine the circumstances thereof, * * * but nothing herein contained shall render any payment of said pension obligatory upon the said commissioner, * " * or chargeable as a matter of legal right upon the said firemen’s insurance fund. The commissioner or commissioners of the fire department, in his or their discretion, for proper cause, and after investigation, may at any time order such pension, or any part thereof, to cease.”

We are not now called upon to determine whether the word “may” is used generally in the foregoing extract in the sense of “must,” or when and in what cases, if any, it may be so construed. On the face of the statute it is made the duty of the commissioner to inquire into and to determine the circumstances of each case, and it may be fairly assumed that both in placing names upon the pension list and in subsequently striking them therefrom the law anticipates that his action shall be governed by the facts as established and determined upon investigation. It may be further assumed, in view of the nature and object of the fund and the beneficent purposes it is designed to subserve, and in the additional light afforded by the language of section 791 of the Greater New York charter, that the law contemplates that every needy and deserving widow within the scope of its terms shall receive the benefit of its provisions. Every such widow is interested in the due and lawful administration of the trust which the legislature has reposed in the respondent, and as such has at least an equitable claim to fair consideration on the merits, and an equitable right and interest in the fund itself, as distinguished from an absolute legal right to any sum or in any fixed result. Nor are we now called upon to decide whether, or how far, the action of the respondent may be reviewed by the courts, or whether such action, if subject to judicial scrutiny, may be reviewed by writ of mandamus. We think that on the record the plaintiff was entitled to require that the respondent should act upon her application in accordance with the provisions of the statute, to the end that, if aggrieved, she might intelligently take such steps for redress as the law may afford.

In her petition she sets forth such facts -as prima facie entitle her to be placed upon the list, in the absence of such circumstances, lawfully determined by the respondent, as shall render it improper or inexpedient for her to receive a pension. She could not anticipate or negative the possible, but unknown, grounds of the. rejection of her application; nor is she required to do so by any obvious analogy to the general rules of practice. In his answering affidavit the respondent alleges that the appellant’s application is too late; that she has received the fund which the decision of the courts already mentioned required should be paid her; that her husband was retired because he had consumption; and that he, the respondent, in the exercise of his best judgment and discretion, “declined to place petitioner upon the roll of the New York fire department relief fund, or of the firemen’s insurance fund of the former city of Brooklyn.”

It by no means follows that the appellant is entitled to a peremptory writ in the first instance, and having regard to the limitations of the judicial inquiry and authority in this class of special proceedings it may be that the facts will disclose that she has no ultimate right to it. An alternative will, however, afford opportunity for an investigation and determination of the rights of both parties, so far as they can be investigated and adjusted by mandamus. The order appealed from should accordingly be reversed, and an alternative writ issued commanding the respondent to determine the circumstances of the appellant’s application and claim, and to place her name on the pension roll, and pay her the pension from the time of her husband’s death, or to show cause to the contrary, in accordance with the rules of practice applicable to the case. All concur, except GOODRICH, P. J., who dissents.

(dissenting). This appeal requires a construction of the language of section 15 of title 13 of the former charter of the city of Brooklyn, as amended by chapter 153 of the Laws of 1889, and a decision as to whether the word “may,” as therein used, is tantamount to “must.” The relator is the widow of John Tobin, who died November 1, 1895, and who, after having been for more than 10 years a member of the fire department of Brooklyn, had been retired upon a' pension, in accordance with the provisions of the sec

“If any * * * member of the department * * * shall die after ten continuous years in the service of the department, * * * or shall die after having been retired from actual service, leaving a widow, the name of such widow may be placed on such pension roll, and there may be granted and paid to said widow a pension of three hundred dollars per year, from said fund, so long as she remains unmarried. * * * ' In every case the commissioner shall determine the circumstances thereof, * * * but nothing herein contained shall render any payment of said pension obligatory upon the said commissioner, * * * or chargeable as a matter of right upon the said firemen’s insurance fund. The commissioner or commissioners of the fire department, in his or their discretion, for proper cause and after investigation, may at any time order such pension, or any part thereof, to cease.”

By section 791 of the Greater New York charter the relator is entitled to receive from the respondent commissioner the same amounts to which she would have been legally entitled prior to its passage from any pension or relief fund theretofore existing in the city of Brooklyn. The relator contends that the word “may” is to be construed as “must,”' and calls the attention of the court to its previous decision in Re Tobin, 53 App. Div. 453 , 66 N. Y. Supp. 97 , affirmed in 164 N. Y. 532 , 58 N. E. 650 , in which, Mr. Justice Hirschberg writing, it was said (page 458, 53 App. Div., and page 100, 66 N. Y. Supp.):

“It is a familiar rule that, where a statute clothes a body or officer with power to do an act which concerns the public interests or the rights of individuals, though the language of the statute be permissive merely, it will be construed as imperative, and the execution of the power may be insisted upon as a duty. In such cases the word ‘may’ is construed as ‘must.’ [Citing cases.]”

This language was used with reference to the question then before the court; i. e. that the enforced deduction of one dollar monthly from the pay of a number of the department entitled his widow to the pension, notwithstanding the fact that her husband, after a time, had refused to submit to, and had not been compelled to pay, further monthly deduction. This related to a different part of the section from that now under consideration, and does not affect our present discussion. There are numerous decisions sustaining the doctrine stated by Mr. Justice Hirschberg; among them Hutson v. City of New York, 9 N. Y. 163 , 59 Am. Dec. 526 , and People v. Board of Sup’rs of Otsego Co., 51 N. Y. 401 . But in cases where an individual is concerned it is a legal right that is referred to. In the present proceeding tire question is whether the relator has an absolute legal right to the pension. If she has, the word “may” must be construed as meaning “must.” If she has no such absolute right, then the court is not bound by authority so to construe it. Resort must be had to the language of the statute to ascertain whether a positive duty to pay the pension in question is imposed upon the com