284 N.W. 884 | Minn. | 1939
The only assignment of error is that the amended conclusions of law are not warranted by the facts found. The controlling conclusion of law assailed is: "That relator take nothing by this action and that the alternative writ of mandamus heretofore issued *55 be and the same hereby is discharged." Whether the court's conclusion is right depends upon the applicability and construction of the statute in force at the time relator became a widow. At that time the widow's right to claim a pension was fixed by this provision of L. 1933, c. 177, § 24 (3 Mason Minn. St. 1938 Supp. § 3750-24):
"When a service pensioner, disability pensioner, or deferred pensioner, or an active member of such relief association dies, leaving
"(a) A widow who was his legally married wife, residing with him, and who was married to him while or prior to the time he was on the payroll of the fire department; and who, in case the deceased member was a service or deferred pensioner, was legally married to said member at least three years before his retirement from said fire department; * * *"
Clearly, if this provision is applicable relator is excluded, for she was not married to Mr. Krake three years before his retirement from the fire department; she was married less than four months before such time. That the law in force when the claim to pension arises governs the right to the pension is settled by Gibbs v. Minneapolis F. D. R. Assn.
"It was there held that as between the state and members of the fire department the pension was a gratuity, and the state could take it away except so far as it had accrued, without affecting a vested right or violating the Constitution; and that the term 'widow' as used in the statute was intended to apply as of that date to widows then receiving pensions as well as to widows who might thereafter claim them. If the plaintiff, the widow of Minegar, was his common-law wife, she was not entitled to a pension after April 16, 1913. The defendant paid her pension until May 1, 1913, and refused to pay it longer."
It was conceded that plaintiff was the common-law wife of the deceased fireman; and the order to show cause why defendant should not be punished for contempt was discharged. We think these two decisions are controlling here. When relator became a widow, L. 1933, c. 177 (3 Mason Minn. St. 1938 Supp. §§ 3750-1 to 3750-30), was in force, and thereunder she could not qualify as a pensioner of her husband because she had not been legally married to him three years before he became a pensioner. It is not for the court to search for a good reason for this change. That is wholly for the legislature. There is no room for construing the statute as applicable only to women who marry firemen pensioners subsequent to its passage.
Relator relies on Buckendorf v. Minneapolis F. D. R. Assn.
State ex rel. Holton v. City of Tampa,
The judgment is affirmed.
MR. JUSTICE HILTON, incapacitated by illness, took no part.