#### RUDOLPH *v.*MOSHEUVEL.

Municipal Corporations; Firemen; Pensions; Mandamus.

1. *Qucere,*whether the commissioners of the District of Columbia have power to dismiss a fireman from the service of the municipal fire department without the notice and hearing provided for by their own rules, which are given the force of law by statute.

2. The right of a member of the fire department of the District of Columbia, who has been injured while on duty, to retirement on a pension, is fixed at the time he is injured, provided he is permanently disabled and the injury is not the result of his own indiscretion; and the commissioners of the District of Columbia cannot, by dismissing him on charges thereafter made, deprive him of the pension.

3. An order directing the issuance of the writ of mandamus to compel the commissioners of the District of Columbia to assemble a medical board for the examination of the physical disabilities of the relator, a member of -the municipal fire department, and on the report of the board showing disability, to grant the relator such pension as his disability warrants, was *modified*so as to direct the board to report whether the disability, if found to exist, was due to injuries received while in the line of duty, and not the result of relator’s own indiscretion, and so as to strike out the provision commanding the commissioners, upon the coming in of the report showing relator’s disability, to grant him a pension.

No. 2268.

Submitted March 6, 1911.

Decided April 3, 1911.

Hearing or an appeal by the respondents, the commissioners of the District of Columbia, from an order of the Supreme Court of the District of Columbia directing the issuance of the writ of mandamus to compel them to grant a pension to the relator.

*Modified and affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal by Cuno H. Rudolph, John A. Johnston, and William V. Judson, commissioners of the District of Co*77lumbia, from an order directing a writ of mandamus to issue commanding them to grant a pension to the petitioner, Anthony j. Mosheuvel.

The petition alleges that relator became a private in the fire department of the District October 17th, 1896, was promoted to lieutenant July 1, 1900, and to captain August 31, 1905. That on March 20th, 1908, while engaged in the active performance of his duty at a fire in the city of Washington, he received an injury which has permanently disabled him, and which entitled him to a pension under the law. That he repeatedly demanded said pension of respondents, Ouno H. Rudolph, John A. Johnston, and William Y. Judson, commissioners of the District of Columbia, which they refused. That they passed an order dismissing relator from the service as of August 31st, 1908. That said order was made without notice of charges, and without hearing, while he was under treatment for the injuries received as aforesaid.

The appellants were not commissioners when the proceedings herein were begun, but were substituted as parties defendant, instead of their predecessors.

Their answer to the petition admitted the employment and service of relator as alleged, but did not admit that he had been permanently disabled. It alleged that the chief engineer of the fire department, now deceased, made an official report to the commissioners on July 31, 1908, stating that relator had broken bones in his ankle and heel by a fall at a fire on March 20, 1908; that his appearance at the time indicated that he had been drinking, and that he believed the accident would not have occurred but for that condition. It was further alleged that no application had been made by relator for examination by a retiring board. That on January 16th, 1908, a board had been convened to investigate a complaint of official misconduct against relator and other members of his company. That said board, before which relator appeared, reported to the chief engineer, February 7th, 1908, that the charges had not been sustained, and recommended that no further action be taken. February 12, 1908, the chief engineer referred this report to the *78commissioners for their “consideration before further action-is taken.” That, on July 31, 1908, the said chief made a report and recommendation, in accordance with which the commissioners immediately entered an order dismissing relator “for the betterment of the service.”

Issue was joined on the answer, and evidence was heard thereon before the court. Relator’s evidence tended to show that hé went to the fire on March 20, 1908, in obedience to an order, and in the performance of his duties broke nearly all the bones-of his left ankle and severly sprained his right ankle. Has not been able since to perform duty as a fireman. That the member of the board of fire surgeons who attended him was of the-opinion that he was permanently disabled, and had recommended that he be sent before the examining board for examination and retirement. That relator had an application for retirement to come up September 4th, but in the meantime was notified of his dismissal. That relator had had no notice of charges made against him by the chief engineer, had had no-hearing thereon, or opportunity to show that he was not intoxicated when hurt, and knew nothing of the same until after his dismissal. A number of witnesses testified that relator was not under the influence of intoxicating liquor when injured, and that he was hurt, without his own fault, while performing his-duty at the fire.

The respondents offered in evidence the rules regulating trials-of firemen. These rules provide for trials of firemen upon complaints, before a board. Complaints by the chief engineer,, his assistants, and foremen are required to be in writing, but not under oath; all others must be sworn to. A copy is furnished the accused, and he must be cited to appear before a board of officers convened to investigate the charges. The testimony is reduced to writing, and with the report and recommendation of the board, is forwarded to the chief engineer. The same is then forwarded to the commissioners by him, with his recommendation. Among the grounds upon which removal may be made, are use of liquor while on duty; disobedience; disrespect to a superior or others; inefficiency, or neglect of *79duty; neglect to pay a just debt; and conduct unbecoming a-gentleman. The complaint made January 16th was not offered in evidence, but from references made to it, it would seem that the ground of the same was conduct unbecoming a gentleman. The report of the investigating board finding against the complaint, and its reference to the commissioners on February 12, were read. A record of complaints made against relator were read which showed charges between July 10, 1901, and March 16, 1908, all of which were for nonpayment of bills and loans. It shows also charges made June 12, 23, 29, and 30, 1908, for nonpayment of debts. No trial appears to-have been ordered upon any of these complaints. The report of the chief engineer made July 31, 1908, was also read in evidence. This refers to the findings of the board of February 7, 1908, and reports that in his opinion the charges had been sustained by the evidence. He then makes additional charges against relator of improper conduct with women, nonpayment of debts, and concludes with the statement that his conduct at the fire of March 20, 1908, indicated that he had been drinking, and stated that if he had not been indulging in liquor at the time, the accident would not have occurred. He recommended that relator be dismissed from the service, to take effect from that date. The order. of commissioners dismissing relator was made on the same day. Other evidence tended to show that under the rules, when a fireman applies for retirement, he is referred to the board of surgeons, whose duty it is-to submit a report on his disability. This, when received by the chief engineer, is referred to a board of officers appointed by him, which considers the applicant’s record and the report of the surgeons, and recommends the amount of pension to be allowed, within the limits prescribed by the act of Congress, This recommendation goes to the commissioners for final action. This procedure was not had in relator’s case, and the records show no application by him therefor.

The court entered an order directing the writ of mandamus to issue commanding the commissioners to cause the assembling of a medical board for the examination of the physical dis*80abilities of the relator, and upon the report of said board showing disability, to grant relator such pension as his disability warrants and requires, under the rules and regulations.

*Mr. Edward H. Thomas,*Corporation Counsel, for the appellants.

*Messrs. McNeill & McNeill*for the appellee.

Mr. Chief Justice

Shepard delivered the opinion of the Court:

1. The substantially undisputed facts established by the evidence, and that are pertinent, are these:

(1) Notwithstanding the complaints that had been made against the relator between 1900 and 1905, he was never brought to trial thereon, and was promoted to the rank of captain in the fire department in the latter year.

(2) The charges made against him with others, in January 1908, were reported unsustained by the trial board, and the record was transmitted to the commissioners by the chief enginer without recommendation, February 12, 1908.

(3) Relator continued in active service until March 26, 1908, when he sustained serious, and apparently permanent, injuries .at a fire to which he had been ordered. He was unable to perform active duty thereafter.

(4) The report of the chief engineer of July 31, 1908, referred back to the report of the trial board, and reported that the charges had in fact been sustained. But these charges are not stated, and there is no evidence showing what they were.

(5) The report made additional charges against relator of conduct, which, if true, would warrant his removal under the rules; and concluded with the serious charge that he was intoxicated at the fire on March 20, 1908, and but for that would not have met with the accident which disabled him.

(6) No notice of this complaint was given to relator, and *81without hearing, the commissioners then in office immediately made the order dismissing him from the service. -

2. The act of Congress approved June 11, 1896 (29 Stat. at L. 404, chap. 419), made new provisions respecting an already established fireman’s relief fund. One dollar per month was required to be deducted from the pay of each fireman, and paid into the relief fund. This was to be used for the “relief of any fireman who, having served not less than twelve months, shall, by reason of injuries received or disease contracted in the line of actual fire duty, going to, at, or returning from a fire,” * -* * provided that no fireman shall be entitled to any benefits of the fund who may, by reason of his own indiscretion, bring on any such incapacity, injury, or disease. Sec. 2 of an act approved June 20, 1906 (34 Stat. at L. 314, chap. 3443), reads as follows:

“That the commissioners of the District of Columbia shall appoint, assign to such duty or duties, promote, reduce, fine, suspend, with or without pay, and remove all officers and members of the fire department of the District of Columbia, according to such rules and regulations as said commissioners in their exclusive jurisdiction and judgment may from time to time make, alter, or amend: Provided: That the rules and regulations of the fire department heretofore promulgated are hereby ratified, and shall remain in force until changed by said commissioners.”

The rules and regulations then in force, as well as now,have been recited above.

3. It may well be doubted if the commissioners had the power to dismiss the relator without notice and hearing as provided in their own rules that had been given the force of law by the act of June 20, 1906; but it is not necessary to decide that question as the action is not for withheld salary, but for retirement on the pension from the relief fund provided by law. Assuming the power, could they by its exercise, July 31, 1908, upon complaint preferred after the receipt of his injuries, deprive the relator of his right to retirement therefor, if the nature of those *82injuries and the manner of their receipt were such as to entitle him thereto at the time ?

We agree with the learned trial justice that the right of the relator to retirement on a pension under the terms of the law were fixed at the time that he received his injuries, provided, of course, that they permanently disabled him from duty and were not the result of his own indiscretion. The commissioners could not, by dismissing him on charges made thereafter, deprive him of the bounty provided by law, which they had no-power to suspend. Having come within the terms of the statute, no power less than that of Congress could repeal or suspend its benefits. We are therefore of the opinion that there was no error in ordering the writ of mandamus to issue commanding the-commissioners to cause the assembling of the proper board to-investigate and report the physical condition of the relator. ■ The-order was defective in this, however, that it did not further direct that said board should also report whether the physical disability, if found to exist, is due to injuries received in the-line of duty, and not the result of relator’s own indiscretion. The evidence indicates, -and it was not denied, that the injuries were received in the line of duty, and are such as to disable the relator; and it seems to show that they were not occasioned by his indiscretion. But these facts are for the ascertainment of the examining board under the rules. The-order likewise went too far in commanding the commissioners, upon the coming in of a report showing relator’s disability, to-grant him such a pension as the same may warrant.

Under the requirements of the rules, if the aforesaid report, shows the essential facts before mentioned, it must be referred to the retiring board to be appointed, whose duty it will be to-consider the same, together with relator’s record, and to make-recommendation of the amount of pension to be allowed, within the limits of the act of Congress. If the reports show the necessary facts, it is to be presumed that the commissioners will make the necessary final order granting the pension.

The judgment will be modified in the respects indicated above, and as so modified is affirmed, without costs.

*Modified and affirmed.*