Trantina v. Board of Trustees

503 S.W.2d 148, 1973 Mo. App. LEXIS 1120
CourtMissouri Court of Appeals
DecidedOctober 30, 1973
DocketNo. 34986
StatusPublished
Cited by5 cases

This text of 503 S.W.2d 148 (Trantina v. Board of Trustees) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trantina v. Board of Trustees, 503 S.W.2d 148, 1973 Mo. App. LEXIS 1120 (Mo. Ct. App. 1973).

Opinion

GUNN, Judge.

Defendants-Appellants appeal from the judgment of the Circuit Court which, on review of a decision of an administrative agency, reversed a decision of the Board of Trustees of the Firemen’s Retirement System of St. Louis concerning the method used in computing retirement benefits for [150]*150the plaintiff-respondent fireman under St. Louis Ordinance No. 55177 and finding the ordinance null and void. The critical issues presented for determination are: 1) whether §§ 87.120 through 87.370 RSMo 1959, V.A.M.S., as amended, providing for the establishment of the St. Louis Firemen’s pension plan, are preemptory, and 2) if not, is a municipal ordinance adopted pursuant to enabling legislation and effecting a pension plan either voided or automatically amended upon the amendment of a section of the enabling legislation.

We find the enabling legislation to be permissive, and the ordinance neither void nor automatically amended by an amendment to the enabling legislation. We reverse the judgment.

The pertinent facts as submitted by stipulation are that plaintiff served as a member of the St. Louis Fire Department for twenty-nine and one-half years, until April, 1966, at which time he was granted a leave of absence and was thereafter no longer an active fireman but served in another capacity in St. Louis City government. In August, 1971, when plaintiff had reached the compulsory retirement age of sixty-five, he made application to the Board of Trustees of the Firemen’s Retirement System of St. Louis for pension benefits. The application was approved. However, the Board computed plaintiff’s benefits based on the provisions of St. Louis City Ordinance No. 55177 adopted in November, 1968, pursuant to the enabling legislation of §§ 87.120 through 87.370 RSMo 1959, V.A.M.S., and its amendments effective through 1967. Ordinance No. 55177 based the formula for computing benefits on § 87.175 RSMo, Supp.1967, rather than on the formula as contained in the last amendment to § 87.-175 in 1969. The benefits so computed provided for a monthly pension of $347.66. Plaintiff contends that his benefits should have been computed according to the provisions of § 87.175 RSMo, as last amended in 1969 by the passage of House Bill No. 501 j1 that if so computed plaintiff’s pension benefits would be $526.13 per month.

The Firemen’s Retirement System of the City of St. Louis is the firemen’s pension plan which was created by Chapter 335 of the Revised Code of the City of St. Louis under the enabling authority of §§ 87.120 through 87.370, RSMo 1959, V.A.M.S.

From time to time the legislature amended § 87.175,2 which sets forth the formula for computing pension benefits to provide for increased benefits. And from time to time the Board of Aldermen of the City of St. Louis would subsequently amend Section 335.230 of its Code of Ordinances to incorporate within the code the increases of pension benefits authorized by the Missouri Legislature. In November, 1968, the St. Louis Board of Aldermen adopted Ordinance No. 55177, which incorporated the provisions of § 87.175 which had been amended by the legislature in 1967 and which provided for the $347.66 formula applicable to plaintiff. In 1969, the legislature once again amended § 87.175 by House Bill 501, which provided for a formula which would permit a $526.13 monthly benefit to plaintiff, but no increase by legislation was enacted by the City of St. Louis.

Plaintiff argues that Ordinance No. 55177 was superseded by the act of legislature by the enactment of House Bill 501; that since Ordinance No. 55177 was incon[151]*151sistent with House Bill SOI, the ordinance was void and with House Bill SOI being the only prescribed formula for computation of benefits, it must apply.

We first look to the enabling act which provides and permits the City of St. Louis to establish a firemen’s pension system. § 87.125 RSMo provides:

“Any city in this state that now has or may hereafter have seven hundred thousand inhabitants or more and that has an organized fire department is hereby authorized, subject to the provisions of sections 87.120 to 87.370, to provide by ordinance for the pensioning of members of any such organized fire department and of the dependents of deceased members thereof and to take from its municipal revenue a fund for such purpose. The fund shall be under the management of a board of trustees herein described and shall be known as ‘The Firemen’s Retirement System of.’ and by such name all of its business shall be transacted, all of its funds invested and all of its cash and securities and other property held.” (Emphasis added.)

We interpret the statute in question by giving its words their plain and ordinary meaning unless the contrary is clearly apparent. State v. Brady, 472 S.W.2d 356 (Mo.1971) ; Hasekamp v. Superior Equipment Company, Inc., 490 S.W.2d 385 (Mo.App.1973).

Clearly, the words “is hereby authorized” are words of permission to the City allowing it to establish a firemen’s pension system. In Dickensheet v. Chouteau Mining Co., 200 Mo.App. 150, 202 S.W. 624 (1918) the court found that the word “authorized” was generally a word of permission and discretion; that an ordinance authorizing a city to own and operate a utility would not be mandatory but merely the giving of the right or permission to act within the city’s discretion.3

The distinction between a mandatory requirement for a pension system and one which is permissive in nature is readily apparent when comparison is made between the enabling legislation for a firemen’s pension system and the St. Louis Police Pension System established by §§ 86.200 through 86.363 RSMo 1969, V.A.M.S. § 86.203 provides:

“In all cities of this state that now have or may hereafter attain a population of seven hundred thousand inhabitants or more, there are hereby created and established retirement systems as alternative systems to those which have been established under the provisions of sections 86.010 to 86.193. Each such system shall be under the management of a board of trustees hereinafter described and shall be known as ‘The Alternative Police Retirement System of (name of city)’ and by such name all of its business shall be transacted, all of its funds invested and all of its cash and securities and other property held. The retirement systems so created shall begin operation as of the first day of October, 1957.” (Emphasis added.)

The mandate to establish a police pension plan is unequivocal. Equally explicit is that under § 87.125 the establishment of a firemen’s pension plan is permissive, the statute merely enabling St. Louis to establish such a plan.

The enabling legislation thus permits and authorizes the City of St. Louis to establish a firemen’s pension plan; it prescribes no remedies or actions to be taken in the event the City elects not to put a firemen’s pension plan in effect. There[152]*152fore, further basis exists for finding that the enabling act in this case (§ 87.120 et seq.) is not mandatory, for where there is no procedure prescribed in the event that the statute is not implemented, the statute is determined to be directory rather than mandatory. State ex rel. Ferro v.

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Bluebook (online)
503 S.W.2d 148, 1973 Mo. App. LEXIS 1120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trantina-v-board-of-trustees-moctapp-1973.