13 N.W.2d 903 | Wis. | 1944
Action by plaintiff-appellant against defendant-respondent. for declaratory relief, commenced October 1, 1942. Both parties asked for a declaratory judgment. Plaintiff demurred to the defendant's answer.
The case was tried upon the issue of law. Judgment was for the defendant. Plaintiff appeals. The material facts will be stated in the opinion.
Plaintiff was a member of the defendant city's paid fire department for many years, and contributed to the firemen's pension fund as provided in sec.
Plaintiff's action is for declaratory relief to require defendant to pay plaintiff the full amount of his pension, $67.50 per month, and also the full amount of his compensation award at the rate of $27.30 per month until a total of $5,392.80 has been paid. The defendant asks that a declaratory judgment be entered, ordering and declaring that it is entitled to deduct from any benefits paid to the plaintiff under the provisions of the award of the industrial commission and the terms of the Workmen's Compensation Act, the amount of any sum which the plaintiff received from the firemen's pension fund. The *223 court below granted the declaratory relief asked for by defendant.
The applicable 1941 statutes are printed in the margin.1 *224
Plaintiff contends that sec.
The respondent contends that the pension fund has been entirely built up by the proceeds of the taxation of fire insurance premiums as provided for in sec.
Sec. 201.59 (1) (a), Stats., provides that every city, village, or town maintaining a fire department shall be entitled for the support thereof to two per centum upon the amount of all premiums which, during the preceding calendar year, shall have been received by such city, village, or town, or shall have been agreed to be paid to any company, for insurance, including *225
property exempt from taxation, against loss by fire in such city, village, or town. The word "contribute" used in sec.
Appellant argues that the city treasurer, in transferring the moneys received from proceeds of taxation of fire insurance premiums to the pension fund, acts merely as agent for the pension fund. The fact remains that the moneys come into the hands of the city treasurer as city funds under sec. 201.59 (1) (a), Stats. Respondent concedes that it is the duty of the city treasurer to transfer the moneys to the pension fund, but contends, and we think correctly so, that the disbursement of such funds to the pension fund constitutes a contribution by the city under sec.
Respondent makes the further contention that even if it were held that the payment of receipts on fire insurance taxation by the city into the pension fund is not a contribution by the city within the meaning of sec.
Appellant argues that the phrase "may contribute" in sec.
Appellant makes the further contention that sub. (3) of sec.
Plaintiff is not entitled to both pension and compensation. The city claims the right to pay only $67.50 per month, the amount due plaintiff as a pension, and makes this payment solely from the pension fund. Since the pension payments are the larger, their deduction from the compensation payments, under the provisions of sec.
Appellant further contends that no deduction from compensation was allowed by the industrial commission. The city's right and duty to make the deduction is provided for by sec.
Finally, appellant contends that sec.
Appellant argues that under the provisions of the statute we may have policemen or firemen in two cities of the state of the same size and characteristics, yet the policemen and firemen of one of such cities, upon becoming disabled in line of duty, are denied pension or compensation benefits, while such benefits are granted to the others. It is argued that the classification in this case is arbitrary, unreasonable, and not germane to the subject of the compensation act. However, appellant concedes that under both the state and federal constitutions it is not required that all persons be treated exactly alike, and that there may be classifications of persons similarly situated, having characteristics legitimately distinguishing the members of one class from those of another class. The authorities cited by appellant to the point that the statute violates the constitutional rule of equality and uniformity do not sustain his contention. It will serve no purpose to further discuss the proposition. Defendant city has not only the right but the duty to make the deduction made in this case.
By the Court. — Judgment affirmed.
"(3) Nothing herein contained shall prevent municipalities from paying teachers, policemen, firemen and other employees full salaries during disability, nor interfere with any pension funds, nor prevent payment to teachers, policemen or firemen therefrom. . . . "
"62.13 (10) (a) Each city having a paid fire department shall have a firemen's pension fund. There shall be paid into such fund the following: Receipts from taxation of fire insurance companies or agents; three and one-half per cent of the salary of each member of the department; fines imposed on members for violation of department rules; deductions from salaries for time lost on account of sickness; rewards in moneys, fees, gifts or emoluments that may be paid or given for or on account of any service of the department or any member thereof, except when allowed to be retained by said member by resolution of the board of trustees of said fund, or given to endow a medal or other permanent competitive award; and earnings upon the deposit, loan or investment of said fund.
"(b) The board of trustees may take for such fund by grant, gift devise, or bequest any money, property, or thing of value, the amount of value of which does not exceed fifty thousand dollars of value.
"(c) Such portion of the income in any year which shall not be required to be disbursed in that year under paragraph (e) of this subsection, shall be retained as a permanent fund, and thereafter when the amount in said fund shall be one hundred fifty thousand dollars, only the income therefrom, with the other revenues of said fund, shall be available for the payment of pensions. The council may then diminish the amount paid into said fund from taxation of fire insurance companies or agents, but to such extent only as will leave sufficient income to the said fund to meet the pension requirements.
"(d) Should the income to be available in any year for the payment of pensions be less than the amount required for that year, the city treasurer shall on the first day of August pay into said fund from income tax receipts an amount equal to the deficiency. Temporary withdrawals may be made from the permanent fund to meet current disbursements when no other funds are available, but such withdrawals shall be replaced as soon as other funds can be obtained. . . ."
201.59 (1) (a) Every city, village or town maintaining a fire department, as herein provided, shall be entitled, for the support thereof, to two per centum upon the amount of all premiums which, during the preceding calendar year, shall have been received by, or shall have been agreed to be paid to any company, for insurance, including property exempt from taxation, against loss by fire in such city, village or town. . . .
"(5) No city, village or town shall be paid any fire department dues for any year unless the industrial commission shall have certified to the commissioner of insurance that the requirements of section 101.29 have been complied with as to such city, village or town. Any fire department dues paid into the state treasury for any city, village or town not entitled to receive the same may be expended by the industrial commission for making the necessary inspections within such city, village or town. In case such dues shall be withheld, where the same shall be payable into any firemen's pension fund or other special funds for the benefit of disabled or superannuated firemen, an amount equal to the fire department dues so withheld shall be paid into such pension fund from any fund of such city, village or town available therefor, and if no such fund be so available, the same shall be included in and paid out of the next taxes levied and collected for such city, village or town. . . ." *229