By this action the plaintiff, the widow of a deceased fireman, seeks to recover a pension of $25 per month from May 10, 1912, the date of the death of hеr husband, a member of the defendant association, and to obtain judgment that she be placed upon the pension-rolls of the defendant while she remаins a widow. There were findings for the plaintiff for the relief asked and the defendant appeals from an order denying its motion for a new trial.
The defendant is inсorporated under Laws 1907, e. 24. By its articles and by-laws the widow of a deceased pensioner, while she remains unmarried, is entitled to a pension of $25 per month. The plaintiff’s husband died on May 10, 1912. lie was a pensioner at the time. She has not remarried.
By Laws 1913, p. 462, c. 318, approved April 16, 1913, amending section 8 of chapter 24, p. 32, Laws 1907, relative to the disposition of the pension fund, the term widow, before undefined, is defined thus:
“The term widow shall mean the wife of a fireman or pensioner who was married to the fireman or pensioner during the time that he was an active fireman, and shall not include a wife who has deserted such pensioner or fireman and has not been depending upon him for support, and shall not include the surviving common-law wife of such fireman or pensioner.”
The claim of the defendant is that the plaintiff deserted her husband, and was not depending upon him for support; that she was conducting a house of ill-fame in Wisconsin, receiving thе revenues therefrom, and thereby was precluded from receiving any pension at all; and that in any event she was entitled to no pension after April 16, 1913, the date of the passage of the act quoted.
1. The evidence is not before us. The case was tried upon a stip
2. The defendant insists that the plaintiff cannot participate in the pension fund because eng’aged in an immoral and illegal occupation. We cannot so hold. The by-laws and the articlеs, pursuant to the statute, give the pension to the widow of the deceased pensioner. The plaintiff is the widow. It is not for the court to make the contrаct or the statute but to construe and enforce them as it finds them. Gfollnik v. Mengel,
3. The act of 1913, defining the term “widow,” intended to speak as of the date of its pаssage. It was not intended to deprive a widow of pension money already accrued. It was intended that from then on only a widow as there defined should have the benefit of a pension.
4. So construed the act is not unconstitutional.
As against the state there is no vested right in the pension accruing in the future from month to month. It may be taken away. The whole pension system may be abrogated without a violation of the Constitution. A pension already accrued cannot be taken away.
A pensioner under the United States does not have a vested right in his pension. United States v. Teller,
In Macfarland v. Bieber, 32 App. D. C. 513, involving a fireman’s pension in the District of Columbia, the cоurt said:
“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 thе 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*177 of the evеnt (the making of the order discontinuing his pension) had vested, and could not be withheld.”
The same principle is recognized under similar facts in Rudolph v. United States, 36 App. D. C. 379, where the court said:
“The statute differs from a contract in that the government may withdraw the benefits conferred at any time it may deem advisable, after a party enters the service, either before or after the right to a pension accrues. It also follows that, while there is no vested right in a pension which cannot be devested by the mere exercise of the legislative will, if relators have any rights they are vested ones so long only as the statute in question rеmains in force and unchanged, subject to be devested at any time that Congress may desire.”
The same thought is expressed in Eddy v. Morgan,
“A pension is a bounty springing from the graciousness and appreсiation of sovereignty. It may be given or withheld at the pleasure of a sovereign power. Because one is placed upon a pension-rоll under a valid law is no reason why that law may not be repealed and the pension cease.”
In Head v. Jacobs,
The plaintiff to some extent relies upon Pennie v. Reis,
Some of the California cases seem to hold inferentially, but not directly, that when the right to a pension accrues, though a continuing one from month to month, it cannot be taken away; but we take it to be deducible from the cases that the repeal of a pension statute takes away the right to a pension accruing in the future without affecting the Constitution. It does not takе away a pension already accrued. The case of Stevens v. Minneapolis Fire D. R. Assn.
The public money received by the defendant association comes from a one-tenth mill tax on the property of the city and from the two per cent tax paid to the state by the insurance companies upon premiums received from insuranсe within the city. These sums can be used only for the relief of sick, injured and disabled firemen, and their widows and orphans. The association requires annual dues of $8 per annum from each member. The association has other objects, calling for the expenditure of money, to which the public moneys cannot bе devoted; and we conclude that the fact that the members pay annual dues is unimportant in the determination of this case.
The result is that the plaintiff is entitlеd to a pension from the time of the death of her husband until the passage of the act of 1913, but is not entitled to judgment placing her on the roll as a permanent pensioner.
Order reversed.