218 P.2d 753 | Colo. | 1950
delivered the opinion of the court.
Plaintiff in error, as plaintiff in the trial court, filed her complaint, accompanied by affidavit praying for the issuance of a citation to the Board of Trustees of the Firemen’s Pension Fund to show cause. The complaint alleged lack of jurisdiction and abuse of discretion by defendant board. A citation to show cause was issued,
Plaintiff, in seeking reversal here, files the following three specifications of points:
“I. That the Court erred in inferentially holding that the plaintiff had no right to appeal in view of Section 453 of the aforementioned act, which provided that, ‘Decisions of the Board on such applications shall be final and conclusive and not subject to revision or reversal except by said Board.’
“II. That the Court abused its discretion in holding that the affiant was not entitled to the maximum, pension of one-fourth of the current monthly rate of a fireman first grade, since the law- specifically provides that if there be no surviving widow but a surviving child, then said pension board shall order a payment equal to one-fourth of the current monthly salary.
“III. That the District Court of the City and County of Denver abused its discretion and acted capriciously in determining the matter contrary to the law applicable to the facts.”
The minor here involved is a daughter of a former member of the Denver Fire Department, who died August 14, 1942, after he had been placed on the retired list. In addition to his daughter, he left surviving him a widow, who was his second wife and the stepmother of his minor daughter. Payments in the amounts provided under the statute, where the deceased, fireman leaves both a wife and child, were duly made to the two respective beneficiaries until August 30, 1944, at which
The pertinent provisions of this act are sections 453, 457 and 458, of chapter 317, S.L. ’47, which read as follows:
“Section 453. The Board shall have power to make all needful rules and regulations for its government in the discharge of its duties, and shall hear and decide all applications for retirement, pensions, annuities and benefits under this Act. Decisions of the Board on such applications shall be final and conclusive, and not subject to revision or reversal except by said Board.
“Section 457. If any member, officer or employee of said Fire Department shall die from any cause while in the service, or while on the retired list, leaving a surviving widow, whom such officer, member or employee married previous to his application for retirement, or previous to April 5, 1945, if he was then on the retired list, such marriage having been legally performed by a duly authorized person, such surviving widow shall be awarded a monthly annuity equal to one-fourth (]/¿) of the current monthly salary of a fireman, first grade, of the said Department, so long as the widow remains unmarried. No dissolution of a subsequent marriage shall have the effect of reinstating said widow on the pension roll or authorize the granting of a pension. This section shall apply alike to widows of firemen and retired firemen who die after the date of enactment of
“Section 458. The Board shall also order the payment to such widow or the legally appointed guardian of each child of such deceased member, officer or employee of said Fire Department a monthly annuity of Twelve Dollars ($12.00) for each child, to continue until such child reaches the age of eighteen years. The total of combined annuities paid to or for the survivors of any fireman shall not exceed one-half (%) of the current salary paid to a fireman, first grade, of said Department. If there be no surviving widow as above limited and described, but a surviving child or children under eighteen years of age, then the said Board shall order a monthly payment equal to one-fourth (%) of the current monthly salary of a fireman, first grade, to be divided equally among the said children, or a monthly payment of Twenty Dollars ($20.00) for each child, whichever total amount is greater, to the guardian of said child or children for said child or children, provided that in no event shall such surviving children of a deceased or retired fireman receive an amount in excess of one-half (%) of the current salary paid to a fireman, first grade, of said Department.”
Both sides agree that the one question presented to the pension board for determination was: When a fireman entitled to pension dies, leaving a wife and dependent child, is the dependent child entitled to increased benefits upon the remarriage of the widow?
The pension board’s position is that the surviving widow’s right to a pension accrues at the time of her husband’s death. Her right continues “so long as the widow remains unmarried.” The sentence following that phrase, “No dissolution of a subsequent marriage
The pension board maintains that the phrase, “as above limited and described,” refers to a limitation and description in section 457 which excludes from the term “widow” those who, at the time of the fireman’s death, do not become entitled to receive annuities (pensions). The pensionable class “as above limited and described” includes a woman whom the deceased fireman “ * * * married previous to his application for retirement, or previous to April 5, 1945 [the effective date of the firemen’s pension act of 1945] if he was then on the retired list, such marriage having been legally performed by a duly authorized person.”
It is the board’s position that the rights of- all those who are entitled to receive benefits upon the death of a firenian under the foregoing section become fixed as of the time of the death of the fireman, namely: 1. If the sole beneficiary is a surviving widow, she takes a pension so long as she does not remarry; 2. If there is no ■surviving widow but there is a child or children surviving, then such child takes—and if there be more than one child then such children take collectively— the amount of pension that the widow (had there been one) would have been entitled to receive; 3. If the fire
Of these three contingencies for which provision is made in the statute, it is the latter which has occurred in this case and the board’s position is that the legislative intent was that no additional benefits should go to the child or children upon the remarriage of the widow, on the theory that the widow’s remarriage would ordinarily provide a new home for the child or children —the legislature not taking into account the harsh possibilities of either a natural mother or a stepmother declaring a child to be an orphan.
The argument of counsel for the minor is that when a widow remarries, and by so doing makes herself forever thereafter ineligible to receive a widow’s pension, then the family unit eligible to pension in the eyes of the law becomes the child or children of the . deceased fireman, and that thenceforward they should be treated as if their father had died leaving no widow. Counsel’s theory is that the words “as above limited and described” refer not, as the pension board contends, to the type of ceremony by which the marriage had been performed, but to the words, “so long as the widow remains unmarried.”
Plaintiff in error’s first specification deals with the jurisdiction of the court. The provision of the statute would appear to deprive the court of jurisdiction, but the question of whether that provision is in conflict with the Colorado Constitution has not been briefed. We expressly reserve the question of constitutionality of this provision that makes the action of the firemen’s pension board not subject to review by the courts. This question can be determined later, after it has been argued and thoroughly briefed.
In the instant case the position of counsel for the pension board is that its decisions are subject to review
In conclusion, we believe that the pension board properly construed the statute and that the judgment of the trial court was correct in affirming the action of the board.
The judgment of the trial court is affirmed.
Mr. Chief Justice Hilliard and Mr. Justice Moore dissent.