Macfarland v. Bieber, 32 App. D.C. 513

Macfarland v. Bieber

32 App. D.C. 513 | D.C. Cir. | 1909

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The sole question presented by the record in this case is whether or not appellee acquired such a vested right in-the' pension granted by the act of Congress as could not be devested by a subsequent act of Congress. It is contended that the provision of the act of Congress requiring the commissioners to deduct from the compensation ■ of appellee, while on the fire-*519force, $1 per month, to be placed in the general relief fund, gave appellee an interest in that fund which ripened into a vested property right to the pension in question on his retirement from the service. The point here under consideration is fully disposed of by the Supreme Court of the United States in Rennie v. Reis, 132 U. S. 464, 33 L. ed. 426, 10 Sup. Ct. Rep. 149. In that case an act of the State of California providing for the reorganization of the police force of the city and county of San Francisco, among other things, required the treasurer of said city and county to “retain from the pay of each police officer the sum of $2 per month to be paid into a fund to be known as the police life and health insurance fund.” It was also provided that, upon the death of any member of the police force after the 1st day of June, 1878, there should be paid out of said fund, to his legal representatives, the sum of $1,000 and should any officer resign, by reason of bad health or bodily infirmity, there should be paid to him from said fund the amount of principal which he may have contributed to it. By a subsequent act of the State legislature, the insurance feature of the prior act was abolished, and the act changed in many other particulars. Subsequent to the passage of this act, a policeman who had been continuously in the service during the existence of the former act, and from whose compensation $2 per month had been deducted and placed in the fund, died; and his administrator brought suit to compel the treasurer to pay out of the fund thus created and in his hands the sum of $1,000. It was contended in that case that the deduction of $2 per month from the compensation of the policeman during his term of service, and the depositing of this amount in the fund, gave him a property right in the fund, which, upon his death, vested in his estate to the amount of the insurance provided for in the act under which the fund was created. The court held that the $2 deducted from his compensation each month was not a contribution by the policeman to the fund, but was an amount set apart by the State to create the fund, and that the fund thus created was subject to the control of the State. It held that no property right in *520the fund became vested until the happening of a certain event, to wit, the death of the person having this prospective interest in the fund. But the law as to its insurance feature had been repealed by the legislature of California prior to the death of the policeman in question, and the court held that he acquired no vested interest whatever in the fund, and that his estate was not entitled to the insurance.

In the case at bar, it is contended by counsel for appellee that the above ease is not directly in point, and that here the contingency necessary to give appellee a vested property right in the fund had happened before the passage of the act of Congress requiring pensioners to subject themselves to medical ’ examination, and that, having vested, it was beyond the power of Congress to destroy that right. With this contention, we cannot agree. The contingency in the case at bar which gave appellee a property right in the fund in question was one continuing by the grace of Congress, subject to be discontinued or terminated at any time by Congress. His rights in the premises were not different or superior to those of a pensioner under the general pension laws of the United States. Referring to military pensioners, the court in United States v. Teller, 107 U. S. 64, 27 L. ed. 352, 2 Sup. Ct. Rep. 39, said: “No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute, or recall at its discretion.” It was held by this court in Lochren v. United States, 6 App. D. C. 486, that there was not only no vested right in the claim for a pension, but that the granting of a pension was subject to review or reconsideration for illegality or error.

The fund out of which the pension of appellee was paid was created by Congress from the deductions from salaries and from certain fines and licenses. The situation was the same as if Congress had created this fund by direct appropriation, as it does the fund out of which military pensions are paid. No pensioner acquires any vested right in future pension payments or instalments insured by law, which Congress may not take away absolutely, or by a provision that such payments *521shall be made only upon the pensioner’s complying with certain specified requirements, as, in the present case, subjecting himself to a medical examination. The $1 per month was not contributed by appellee to the relief fund. It never came into his possession or under his control. If it had, and he had contributed it to the fund, as suggested in Pennie v. Reis, 132 U. S. 464, 33 L. ed. 426, 10 Sup. Ct. Rep. 149, we would be confronted by a very different question. The money was placed in the fund by the designated agent of the government, and it was at all times subject to the control of Congress.

A pension is not granted because of any property right the pensioner has or may acquire in it, but purely as an act of gratitude from the bounty of the government. The liability of the government to appellee was measured by the amount it owed him under existing law at the time Congress, by subsequent act, provided that further payments should cease upon his failure to comply with its provisions. Any amount due appellee at the time of the happening of the event (the making of the order discontinuing his pension), had vested, and could not he withheld. In this respect, the case at bar does not differ from the California case above cited. There, the right to the insurance vested at the death of the insured, provided the law was still in force. The whole of the amount of the insurance at once became due and payable. Here, all that had become vested was the amount of the pension due and payable on the date of its discontinuance by the order of the commissioners.

The requirement to appear for a medical examination was a reasonable one. It was for the protection of the government, since the pensions were only to he paid to policemen and firemen suffering from disabilities incurred while in its service. Appellee by his failure to appear and submit to this examination when notified, or to show cause why he failed to appear, placed in the hands of the commissioners the power to reduce or discontinue further payments of the pension. There was no basis upon which they could estimate a reduction, and *522his failure to appear was sufficient, after notice, to create the presumption that his health had been entirely restored, and that the disabilities for which the pension was originally granted no longer existed.

It was contended by counsel for appellee in the argument before us, apparently for the first time so far as the record discloses, that the notice given appellee was insufficient to warrant the commissioners in ordering the payment of his pension discontinued. It was insisted that the notice given only required him to appear before the medical board, and that,, before the commissioners could legally act in the premises, they should have notified him to appear to show cause why an order should not be made discontinuing payments. We think this additional notice was unnecessary. The only hearing accorded him by the terms of the act was the one before the board of fire and police surgeons. Of this he had ample notice. The notice given contained on its face the act of Congress. It was- a summons to appear in a proceeding that might result in the reduction of his pension or in the withholding of payment entirely. The only judgment that could directly affect him was the decision of the commissioners, and of that he was fully apprised in the notice given. We are unable to find where there was any failure to accord appellee due process of law in this proceeding.

But it is contended by counsel for appellee that until the medical board had actually examined appellee and made a report of such examination to the commissioners, there was nothing before the commissioners upon which they could act; in ■other .words, that appellee, by his refusal to appear before the medical board, could totally defeat the operation of the law. This would be equivalent to holding that a defendant could defeat an action brought against him in court by failure to appear. The sole object of preliminary notice is to bring the party personally or constructively before the court, so that the court may exercise jurisdiction over him at all stages of the proceedings. The notice given in this case was for the purpose of bringing the appellee before the medical board, in order that the commis*523sioners would have jurisdiction to consider his case and enter an order accordingly. The notice was sufficient for this purpose, and it was not in the power of appellee to defeat the ■operation of the law by refusing to appear before the medical board.

The judgment of the trial court is reversed, with costs, and remanded, with directions to discharge the writ and dismiss the petition. Reversed.

A writ of error to the Supreme Court of the United States was allowed March 2, 1909.