People ex rel. Bliel v. Martin — 42 N.Y. St. Rep. 861

Majority

p. 861

The People ex rel. Caroline E. Bliel, v. James F. Martin et al., Police Commissioners of the City of New York.^[1]

(Court of Appeals,

Filed February 12, 1892.)

Headnote

Mandamus—Police pension pdnd.

A mandamus cannot be granted requiring the board of police commissioners to place the name of fthe widow of a deceased officer upon the pension fund roll; the statutes do not give the widow an absolute right to a. pension, but simply vest in the board a discretion to grant or withhold a. pension in such a case, and such discretion is not reviewable by any judicial tribunal.

Appeal from judgment of the supreme court, general term, first department, affirming order denying motion for mandamus directing defendants to place the name of relator upon the police pension fund roll.. -

Geo. F. Langbein, for relatrix; David J. Dean and Jno. J. De~ lany, for resp’ts.

The relator applied for a writ of mandamus to compel the hoard of police of the city of New York to pay her a pension of $300 per year as the widow of Philip 0. Bliel, who for thirteen years previous to his death had continuously been a member of the police force of that city. Her application was denied in the courts below on the ground that the statutes did not give her the absolute right to a pension, but simply vested in the board a discretion to grant or withhold a pension in such a case.

A careful reading of the statutes leaves .no doubt in our minds that it lias always, since the first act upon the subject, rested in the discretion of the police board to grant or withhold pensions to the widows of deceased policemen. The first act was chapter 126 of the Laws of 1871, which in terms provided in § 4 that the board should have power in “ its discretion ” to grant pensions of not exceeding $300 per annum, to be paid from the police life insurance fund to the widow of any member of the police force who had served continuously for a term of not less than ten years, and in § 5 it was provided that the board might “ in its discretion at any time order any pension granted for any cause ” to cease.

By the act, chapter 389 of the Laws of 1878, the act of 1871, so far as it regulated and provided for pensions, was repealed, and it was provided in § 4 of that act that the board of trustees of the police pension fund, created by the act, should “have power to grant pensions,” as provided in the act, among other persons, to the widow of any member of the police force who should have died after ten years of continuous service. This section did not command the board, in any of the cases specified in § 4, to grant pensions, but simply provided that they should have power to grant them; and that language clearly vested them with the discretion, in any particular case, to grant or withhold a pension. This construction of § 4 is strengthened by reading § 6, which provided that the board “may, in its discretion, order' any pension granted, or any part thereof, to cease.” It cannot be supposed that the legislature meant to confer upon the board a discretion to withhold pensions after they had once been granted, and yet make it obligatory upon them, in the first instance, to grant them. This act was again, so far as it authorized the granting of pensions to the widows and children of deceased policemen, repealed by the act, chapter 574 of the Laws of 1887, and in that act it was plainly provided that the board of police “ shall have power, in its discretion,” by the majority vote of the full board, to grant a pension to the widow of any member of the police force who had served the requisite time. Here again, in very plain language, the discretion to grant or withhold a pension was conferred upon the board, and that is the last act passed upon the subject. All these acts, when read together, show a consistent policy, on the part of the legislature, to make the granting or withholding of the pension in such a case as this a matter of discretion with the board of police, to be exercised in view of all the circumstances surrounding the claimaiit and the exigencies of the fund out of which the pension could be paid. These acts are in pari materia, and may all be read with the view of ascertaining

p. 863

the legislative intention and the public policy; and when thus-read, it is clear that the police board could,'in this case, deny the pension to the relator in the exercise of their discretion: That discretion is not reviewable by any judicial tribunal. It may be wisely or unwisely, justly or unjustly exercised. It is vested in the board, and they must exercise it, and there is no authority elsewhere to review their determination.

In the numerous cases cited in the elaborate brief submitted on behalf of the relator, the courts reviewed the discretion of officers, magistrates and inferior courts in the exercise of their appellate or supervisory jurisdiction conferred upon them by statutes. Here the supreme court possessed no appellate or supervisory jurisdiction to review the determination of the board of police. It does not even appear here that the board abused their discretion, as the ground upon which they exercised it and the reasons for their refusal to grant the pension do not appear in this record. They may have found sufficient reason for their refusal in the fact that the relator had not lived with her husband for more than three years before his death, and during that time had lived in a distant state supporting herself “ by keeping a gentleman’s lodging and boarding house.”

The order should, therefore, be affirmed, with costs.

All concur.