Samuel Spencer v. Albert I. Bullock

EDGERTON, Circuit Judge.

The defendants, who are the Commissioners of the District of Columbia and the Chief of its Metropolitan Police Department, appeal from a judgment that they retire the plaintiff from the department and award him retirement compensation.¹

The plaintiff was suspended from the police department, because of a conspiracy indictment, from October 23, 1951 to January 29,1952. But the District Court directed his acquittal and the department restored him to duty. On February 11, 1952 he applied for retirement. He was then in active service as a police inspector. He had served 25 years and had reached the age of 55. The defendant Commissioners had asked for a study of certain testimony he had given, but no charges were pending against him.

An Act of Congress provides: “Whenever any member of the Metropolitan police department of the District of Columbia * * * has served twenty-five years or more as a member of such department * * * and having reached the age of fifty-five years, he may, at his election, be retired from the service * * and shall be entitled to receive retirement compensation from the * * * policemen and firemen’s relief fund, District of Columbia, in an amount equal to 50 per centum per annum of the salary received by him at the date of retirement * * * ” D.C.Code (1951) § 4-508, 54 Stat. 1118 (1940).

After the plaintiff had made his “election” to be retired he was asked by a Senate subcommittee, and ordered by the defendant Chief of Police, to explain the source of some of his income. He failed to do so. The Chief of Police therefore suspended him May 23, 1952. A police trial board found, also, that he had failed to file required income tax returns for 1946, 1947 and 1948. For these reasons the defendant Commissioners dismissed him from the police department September 14, 1953. They did not act directly on his application for retirement but ordered that his contributions to the retirement fund be returned to him.

We agree with the District Court that the plaintiff was entitled to retirement. The statute quoted above, § 4-508, says “any member” of the police department who has served 25 years and reached 55 “may, at his election, be retired from the service * * * and shall be entitled to receive retirement compensation * * This covers the plaintiff. We need not consider whether it would cover a member of the department who was under suspension, and therefore not actively in the service, when he elected to be retired “from” the service. Obviously it would not cover a former member who was already dismissed. The plaintiff was in active service when he made his election. He was qualified as to age and length of service. The statute imposes no other qualifications. We cannot read it as authorizing the Commissioners to deprive the plaintiff of a pension by making, after he elected to retire, the charges on which they dismissed him.²

The words “may, at his election, be retired” are equivalent to “may elect to be retired”. Since Congress was offering an “election” it said may and not shall. To say that a policeman may at his election be retired is not to say that after he has made his election the Commissioners may, at their election, refuse to retire him.

D.C.Code (1951) § 4-507, 39 Stat. 718, is not entirely consistent with § 4-508, which we are construing. Section 4-507 was enacted in 1916 and § 4-508 in 1940. To the extent of the inconsistency, the later statute supersedes the earlier.

As a matter of policy something may be said for, and against, § 4-508. (1) It may be thought to promote the quality of the police force, since relatively certain pensions tend to make a relatively attractive job. It would be no help in recruiting policemen, or in keeping them, to say that the Commissioners may always deny a man a pension if they conclude he is unworthy of one. (2) On the other hand, it may be thought that policemen are more likely to behave well if they can always be denied a pension for behaving ill. The plaintiff appears to have behaved ill. Though Congress seems to have given weight to the first of these conflicting considerations of policy, the Corporation Counsel seems to recognize only the second, for he says “The morale and efficiency of the Police Department * * * would be seriously affected by an affirmance of the decision of the lower court in this case.” On balance, morale and efficiency are perhaps as likely to be affected favorably as unfavorably. However that may be, we cannot take away rights that Congress gave.³

Affirmed.

1 . A previous order denied motions by the defendants to dismiss the complaint. Bullock v. Spencer, D.C., 112 F.Supp. 147.

2 . “The commissioners could not, by dismissing Mm on charges made thereafter, deprive him of the bounty provided by law, which they had no power to suspend.” Rudolph v. Mosheuvel, 37 App.D.C. 70, 82.

D.C.Code (1951) § 4-513 authorizes the Commissioners to “reduce or discontinue” relief for conduct very different from the plaintiff’s.

3 . The plaintiff’s refusal to testify occurred in 1952. In 1953 Congress enacted that an officer or employee, or former officer or employee, of the District of Columbia “who refuses” on the ground of self incrimination to testify on certain matters “shall forfeit” pension rights among other things. Act of June 29, 1953, 67 Stat. 108, § 409. This applies, of course, to subsequent refusals, not to previous ones,