Bulger v. West

• Decision Date: 09 May 1942
• Docket Number: 35506,35507.
• Parties: BULGER v. WEST et al. BENNETT v. SAME.
• Court: Kansas Supreme Court

125 P.2d 404

155 Kan. 426

BULGER v. WEST et al.

BENNETT v. SAME.

Nos. 35506, 35507.

Supreme Court of Kansas

May 9, 1942

Syllabus by the Court.

Generally a statute operates in the future from its effective date and has no retroactive the effect unless language of statute clearly indicates that Legislature so intended.

The statutes requiring insurance companies doing business in a city such as Hutchinson to pay, through insurance commissioner, 2 percent. of all premiums on policies written on fire and lightning within the city to treasurer of firemen's relief association of the city and the statutes authorizing municipal authorities to create a firemen's pension fund cannot be construed together as constituting one enactment. Gen.St.1935, 13-758 to 13-767, 40-1701 to 40-1707.

The statutes authorizing municipal authorities to create a firemen's pension fund are not applicable to firemen who have been retired for disability prior to effective date of statutes. Gen.St.1935, 13-758 to 13-767; Laws 1937, c. 128.

Under statute providing that any employee or officer of a municipal fire department who has been retired under statutory provisions may, when the board of trustees of the firemen's pension fund deems it advisable, be transferred and pensioned under the firemen's pension fund, the trustees' action is discretionary and cannot be controlled by mandamus. Gen.St.1935, 40-1701 to 40-1707 and 13-762, as amended by Laws 1941, c. 124.

Discretionary duties of officials cannot be commanded by mandamus, in absence of a showing of fraud or other misconduct of such officials.

1. The general rule is that a statute operates in the future from its effective date; that it has no retroactive effect unless the language of the statute clearly indicates the legislature so intended.

2. Chapter 119, Laws 1935, G.S.1935, 13-758 to 13-767, relating to the pensioning of firemen, is not applicable to firemen who had been retired for disability prior to the effective date of the act.

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Two mandamus proceedings by Kathern Bulger against Glenn West and others, as the Board of Trustees of the Firemen's Pension Fund of the City of Hutchinson, Kan., and others, and by Mrs J. K. Bennett against the same defendants to require the payment of a pension to plaintiffs. From adverse judgments in each case, plaintiffs appeal.

Max Wyman, of Hutchinson (Erskine Wyman, of Hutchinson, on the brief), for appellant Bulger.

John Fontron, of Hutchinson (A. Lewis Oswald, of Hutchinson, on the brief), for appellant Bennett.

J Richards Hunter, of Hutchinson (Walter F. Jones, of Hutchinson, on the brief), for appellees.

HARVEY Justice.

These were two actions in mandamus brought in the district court against the trustees of the Firemen's Pension Fund and the directors of the Firemen's Relief Association to require the payment of a pension to plaintiffs. In each case the trial court sustained defendants' motion to quash the alternative writ, and the plaintiff has appealed. The actions raise the same legal questions, were consolidated in this court, and briefed and argued together.

In the Bulger case the motion for the writ and the writ alleged that plaintiff is the widow of C. E. Bulger, for twenty-six years a member of the fire department of the city of Hutchinson who, when 62 years of age, was retired October 10, 1932, as being unfit for service on account of physical disability; that on the date of his retirement he applied to the directors of the Firemen's Relief Association for a pension or retirement pay of $90 a month, being one-half of his salary, which was granted. He continued to receive this retirement pay until his death on April 12, 1941. That three days later the plaintiff as his widow applied to the trustees of the Firemen's Pension Fund for a pension in the same amount; that this application was granted and she received the pay for one month, when it was discontinued and further payment refused by the trustees of the Firemen's Pension Fund and the directors of the Firemen's Relief Association. She alleged she was entitled to such pension and prayed for a writ requiring defendants to restore her to the benefits of the pension fund.

In the Bennett case plaintiff alleged she is the widow of J. K. Bennett, a member of the fire department of Hutchinson from March 25, 1909, to June 1, 1933, on which date he was retired as being unfit for service because of physical disability; that on June 10, 1933, he applied to the directors of the Firemen's Relief Association for a pension or retirement pay in the sum of $70 per month, being one-half of his salary; that the application was granted and he continued to receive such payments until his death December 16, 1937; that soon thereafter the plaintiff, as his widow, applied to the trustees of the Firemen's Pension Fund and was voted a pension in the sum of $70 per month, which she continued to receive until June, 1941, when such payments were discontinued. She alleged she was entitled under the statute to receive this sum and prayed for a writ requiring defendants to restore her to the benefits of the pension fund.

To determine whether plaintiffs are entitled to the relief sought it will be necessary to consider two groups of statutes. The first is G.S.1935, 40-1701 to 40-1707, being article 17 of our Insurance Code and bearing the general title "Firemen's Relief Fund." By Chapter 257, Laws 1941, all of these sections, except the first, were amended in several details, none of which it will be necessary to notice. Briefly stated these sections require insurance companies doing business in the city to make reports and pay, through the insurance commissioner, two percent of all premiums on policies written on fire and lightning within the city "to the treasurer of the firemen's relief association of such city, said association to be composed of members of the fire department of such city and to be incorporated under the laws of this state." This fund may be invested in designated securities and "shall be held in trust and used as a fund for the relief of any member of the fire department of such city when injured or physically disabled in or by reason of the discharge of his duties as such, and for the relief of or the payment of gratuities to the widow or those dependent upon any member of such fire department who may be killed in the discharge of his duties as fireman, or who may die from the effect of injuries so received, or from disease contracted by reason of his duties as such, and for the payment of the necessary funeral expenses of any member of such fire department when killed in the discharge of his duties as fireman, or in the case of death resulting from the injuries so received or disease contracted by reason of his duties as such, or for the purchase of life, accident and health insurance upon the members of such fire department and for the further purpose of paying a pension to members of full-paid fire departments who are unfit for service after having served for a period of not less than twenty years on the department, such pension not to exceed in amount one half of the monthly salary at the date of retirement." The pensions received by the husbands of plaintiffs were paid by the Firemen's Relief Association out of the funds provided for by this statute. These statutes make no provision for the payment of a pension to the widow of a fireman who had been retired, paid a pension from the fund, and thereafter died. Counsel for appellants in this court do not seriously contend their...