Leitch v. Gaither

¹⁶⁹ Offutt, J., delivered the opinion of the Court. The single question presented by this appeal is whether retired members of the Police Department of Baltimore City are entitled to receive, in addition to one half of the base pay received by active members of the department of the same grade or rank, one half of the additional compensation payable to such active members based rrpon the length of their service in the department. That question arises out of these facts: John V. Leitch, the appellant, now seventy-one years old, wras appointed on the police force of Baltimore City on April 21st, 1881, and served as a patrolman on that force until March 21st, 1921, when he was retired with a clear record for faithful and efficient service. At the time of his retirement his salary was thirty dollars per week, and since the passage of chapter 266 of the Acts of 1900 he paid during his active service two per cent, of his salary to the special fund provided by that act for the payment of retired members of the Police Department of Baltimore City.

Hnder the terms of section 777 of the Baltimore City Charter (1915 edition) he was entitled to receive upon his retirement “one-half of the remuneration of the active members of the Police Department holding the same rank or grade at the time of their retirement. As has been stated, at the time of his retirement his salary rvas thirty dollars per week, and he was entitled to receive upon his retirement fifteen dollars per week. But by chapter 507 of the Acts of 1922, it was provided that in addition to that salary “Each member of the Police Department, except the inspectors of police shall be entitled to additional compensation after serving five years to the amount of two and one-half per cent. (2%%) of the salary of his grade or position; after serving ten years five per cent.

(5%) of the salary of his grade or position; after fifteen years seven and one-half per cent (7%%) of the salary of his grade or position; after twenty years ten per cent. (10%) of the salary of his grade or position; after twenty-five years twelve and one- ¹⁷⁰ half per cent. (12%%) of the salary of his grade or position; after thirty years fifteen per cent. (15%) of the salary of his grade or position.” It further provided that the additional compensation for length of service should not become effective until January 1st, 1923.

After it became effective application was made on behalf of retired members of the department for one half of the additional compensation allowed for length of service to active members of like grade or ivank with the several applicants who had served respectively as long as they had. The Police Department thereupon refexTed the question to the Attorney General of the State who, on November 4th, 1922, ruled that salaries paid to retired members of the force were to be computed upon the base pay of active members of the force, and not upon the salary plus the additional allowance for length of service. That ruling was accepted and followed by the department, and was apparently not questioned until .the appellant in this case, on October 2nd, 1925, filed in the Superior Coux-t of Baltimore City a petition against Charles D. Gaither, Police Commissioner of Baltimore City, praying that a writ of mandamus issue requiring him to pay to the petitioner “an amount equivalent to one-half of the grade salary received by patrolmen as of the date of January 1, 1923, and in addition thereto, an allowance and payment of the additional compensation, after a service of thirty years, to the amount of fifteen per cent, of the said salary of his grade or position of patrolman as of the said date, January 1, 1923, accounting from the first day of January, 1923, to the present time, and continuously thereafter during the lifetime of your petitioner.” The respondent answered the petition, and the petitioner demurred to the answer. The court overruled the demurrer and dismissed the petition and from that ox*der the petitioner has appealed. ¹⁷¹ From this statement of the case it appears that the only question presented is one of statutory construction, and involves an examination of the several statutes fixing the compensation of active and retired members of the Police Department of Baltimore City.

The first statute to which we need refer is chapter 459 of the Acts of 1886, which, after defining the special fund referred to above, provided that “The said Board of Police Commissioners are hereby empowered, whenever in their opinion the efficiency of the service may require it, to retire any officer of police, policeman or detective and pay him, in monthly instalments out of the said fund, for life, a sum of money not to exceed one-third of the amount of money monthly paid to him as such officer of police, policeman or detective at the time of his said retirement.” Chapter 266 of the Acts of 1900 in part provided that: “A sum of money equal to but not greater than two per centum of the semi-monthly pay, salary or compensation of each member of the police force, entitled to participate in the special fund, which sum shall be deducted every pay day by the treasurer of the Board of Police Commissioners from their "pay, salary or compensation of each and every member of the police force, and the said treasurer of said board is hereby authorized, empowered and directed to deduct the said sum as aforesaid, and forthwith to pay the same to the treasurer of the trustees of the special fund; provided, however, that it shall be optional with any member of said police force to contribute the said two per centum of his salary as above provided, and participate in the benefits of the special fund; and provided further, that no member of said force shall participate in said special fund unless he contributes to said fund as aforesaid.” Chapter 567 of the Acts of 1912, which repealed and reenacted section 777 of chapter 123 of the Acts of 1898, ¹⁷² among other provisions dealing with the pay of retired members of the Police Department of Baltimore City, contains the following: “In addition to the sums of money now authorized by law to be paid out of the fund as above constituted and designated, the said Board of Police Commissioners are empowered whenever, in their opinion, the efficiency of the service may require it, to retire any officer of police, policeman, detective, clerk or turnkey appointed by them; and the said Board of Police Commissioners shall pay to such officers of police, policeman, detective, clerk or turnkey so retired, in monthly instalments, out of said fund, for life, a sum of money equal to one-half the amount of money currently paid monthly to an officer of police, policeman, detective, clerk or turnkey, as provided by law. * * * In the event at any time of an increase in the pay of officers of police, policeman, detective, clerk or turnkey, every officer of police, policeman, detective, clerk or turnkey who shall have been or shall subsequently be retired by the said Board of Police Commissioners shall be entitled to and the said Board of Police Commissioners shall pay to him in the manner and at and for the length of time provided in this section for the pay of the members of the police force who shall be retired or shall have been retired, a sum equal to one-half of the remuneration of the active members of the police department holding the same rank or grade at the time of their retirement, to the end and effect that every retired officer of police, policeman, etc., shall receive the same remuneration as every other officer of police, policeman, etc., of like grade or rank, and no less. * * * That this act shall be construed to mean that at all times hereafter the remuneration of every retired member of the police force of Baltimore City shall be one-half the remuneration or pay of those members of the police force in active service occupying a grade or rank similar to the grade or rank occupied by the retired member at the time of his retirement, and that whenever the remuneration for any of ¹⁷³ the grades or ranks of the active members of the police department are increased, the remuneration of those retired members of the police department who held the same grade or rank at the time of their retirement that the increased pay applies to, then in that event the remuneration of the retired member of that grade or rank shall be one-half of such remuneration as the increase provides for, and no less.” Chapter 507 of the Acts of 1922, in amending section 745, article 4, P. L. L. of Md., after fixing the salaries of members of the Police Department in active service, made the further provision referred to above. It is apparent from an examination of these statutes that the question before us necessarily turns upon the meaning to be given the following expressions found in chapter 567 of the Acts of 1912, codified as sections 777 and 777-1 of the Baltimore City Charter, to wit: “In the event at any time of an increase in the pay of officers of police * * * every officer of police who shall have been or shall be subsequently retired * * * shall be entitled to * * * a sum equal to one-half of the remuneration of the active members of the Police Department holding the same grade or rank at the time of their retirement, to the end and effect that every retired officer * * * shall receive the same remuneration as every other retired officer * * * of like grade and no less” (section 777), and “this act shall be construed to mean that * * * whenever the remuneration for the grades or ranks of the active members of the Police Department are increased, the remuneration of those retired members of the Police Department who hold the same grade or rank at the time of their retirement that the increased pay applies to, then, in that event the remuneration of the retired member of that grade or rank shall be one-half of such remuneration as the increase provides for and no less” (section 777-1). ¹⁷⁴ And also upon the meaning of that part of section 745 of article 4, C. P. L. L. of Md., which provides that “In addition to the salaries herein provided for, each member of the Police Department * *• * shall be entitled to additional compensation after serving five years to the amount of two and one-half per cent, of the salary of his grade or position.,” etc. ' That there is some ambiguity and an apparent conflict in these several provisions is obvious. Eor by the Act of 1912, every retired member of the police force is entitled to one-half the remuneration of the active members of the force at the time of their retirement, and in the event of an increase in the pay of active members of the force the retired members are entitled to receive one-half of the increased pay allowed to active members of the same grade or rank, but by the same statute it is provided that every retired officer shall receive the same pay that every other retired officer of like rank or grade shall receive and no less. At the time the Act of 1912 was adopted these provisions were harmonious and complementary, because at that time the pay of officers of police of the same grade or rank was uniform, and the act was based upon that fact.

But with the adoption of the Act of 1922, that condition was changed, and the pay of members of the police department of the same grade or rank was no longer uniform but varied with the length of their service, so that while a patrolman who had served less than five years would receive under the law thirty dollars a week, one who had served thirty years would receive thirty-four dollars and fifty cents a week. If therefore retired members of the force were entitled to receive one-half of the additional remuneration allowed for length of service in addition to one-half of the base pay allotted to the several grades or ranks, it became impossible to gratify that provision of the Act of 1912 which required that every retired officer of police should receive the “same remuneration” as every other retired officer of the same grade or rank and no less, unless length of service itself ¹⁷⁵ automatically by virtue of the statute creates different grades or ranks. This conclusion seems to be self evident and inevitable, because if one retired member of the force of the rank or grade of patrolman who had retired after twenty years of service receives one-half of the base pay plus one-half the allowance for length of service he would receive sixteen dollars and fifty cents a week, while another of the same grade or rank who had served thirty years would receive seventeen dollars and twenty-five cents a week, and both would not receive the same remuneration but one would receive less than the other. If that conflict is irreconcilable, the latest statute controls, and the question arises of whether the Legislature intended by the Act of 1922 to repeal so much of the Act of 1912