Quam v. City of Fargo

• Decision Date: 29 June 1950
• Docket Number: No. 7169,7169
• Citation: 43 N.W.2d 292,77 N.D. 333
• Parties: QUAM v. CITY OF FARGO et al.
• Court: North Dakota Supreme Court

Page 292

43 N.W.2d 292

77 N.D. 333

QUAM v. CITY OF FARGO et al.

No. 7169.

Supreme Court of North Dakota.

June 29, 1950.

Syllabus by the Court.

1. Pension statutes and ordinances enacted to encourage public employees to enter the military service of the United States must be liberally construed to effectuate their beneficent purposes.

2. In the construction of an ordinance enacted under a specific statute the purpose of the statute must be considered and the ordinance construed to give effect to that purpose as far as it can consistently be done.

3. Under Section 7, Chapter 174, S.L. 1937, Section 40-4510, N.D.R.C. 1943 and Ordinances No. 676 and 687 of the City of Fargo, a member of the police department of the City of Fargo who took a leave of absence to enter the military forces of the United States is entitled to have the time he served in such forces included as part of his period of service in the department.

4. If the time that such a member has served in the police department plus the time he has served honorably in the military forces is more than 22 years he is, on his return from the service, entitled to a pension under Sec. 26 of Ordinance 676 of the City of Fargo whether he can return to active service in the police department or not. The pension is additional pay for long and faithful service.

5. The actual reinstatement of such a member into the active service in the police department is an unnecessary formality not required under the law. Sec. 31-1105, N.D.R.C. 1943.

6. A member of the police department who, after ten years' service therein, takes a leave of absence under Ordinance Nos. 676 and 687 of the City of Fargo to enter the military forces of the United States, is not entitled to participation in the pension fund for a disability suffered in the armed services during his leave of absence.

7. The words, 'honorably discharged,' as used in Sec. 7, Chapter 174, S.L. 1937, Section 40-4510, N.D.R.C. 1943, is construed to apply to all members of the military forces of the United States who have retired from active service with an honorable service record.

8. In the enactment of an ordinance the City Commission is presumed to have proceeded in accordance with statute.

9. Evidence examined and plaintiff found for reasons stated in the opinion to be entitled to retirement for 22 years service in the department, and pension from the Fargo Police Pension Fund when he attains the age of 65 years as provided in Ordinance No. 676 of the City of Fargo.

E. T. Conmy, Fargo (Conmy & Conmy, Fargo, on brief), for appellants.

Clair F. Brickner and Burnett, Bergesen, Haakenstad & Conmy, Fargo, for respondent.

GRIMSON, Judge.

This is an action brought under Chapter 32-23, N.D.R.C. 1943, asking for a declaratory judgment concerning the plaintiff's right and status under the police pension fund ordinance of the City of Fargo.

The facts in this case as shown by the evidence, are that the plaintiff was a full time employee of the Fargo Police Department from July 1, 1922, to May 1, 1927 and from May 16, 1929 to June 1, 1942. His last service was as Identification Officer at a monthly salary of $155.00. At that time he was a member of the police pension system of the City of Fargo in good standing. On June 1, 1942 he obtained a leave of absence from the Police Department to enter the military service of the United States. He entered the service on June 10, 1942. In the service he became seriously disabled 'as a result of an incident of' his 'commissioned service.' On September 22, 1947, he was retired from the service because of that disability with a certificate attesting honorable service in the Army of the United States.

On his return from service plaintiff applied for reinstatement on the police force. A board of physicians was appointed, as provided by the ordinance, who found him, 'physically incapacitated for duty with the Police Department.' He then applied for retirement benefits under the pension fund system. His civil service status was found to be in good standing. His application, however, was denied on the grounds that he was 'not legally qualified for, or entitled to, a pension.' To determine whether or not he was so entitled this action was then commenced. He seeks to establish rights to retirement benefits under the provisions of Chapter 174, S.L. 1937, 40-45, N.D.R.C. 1943, and the ordinances of the City of Fargo. The District Court held he was entitled to such benefits. The defendants appealed from that holding.

Chapter 174, S.L. 1937, Chapter 40-45, N.D.R.C. 1943, authorizes cities to establish a police pension fund financed by a special tax levy, salary assessments and such donations and rewards as may be received by the police department. It prescribed the management of said fund and the eligibility for participation therein. Sec. 5, Ch. 40-4508, N.D.R.C. 1943, provides for membership in the pension fund by any member of the police department on payment of the $5.00 membership fee and 2 per cent per annum of his annual salary. Other pertinent provisions are:

Sec. 6, Ch. 40-4509, N.D.R.C. 1943, 'Any member of said department, including officers and police matrons, who shall have served twenty-two (22) years or more in such department, and shall have reached the age of sixty years; or who shall while a member of such department become mentally or physically permanently disabled from discharging his duties, shall be entitled to be retired, and upon retirement shall be paid out of the pension fund of such department a monthly pension equal to sixty (60) per cent of the amount of salary received by him monthly at the date he actually retires from said department. If any member shall have served twenty-two (22) years in said department, but shall not have reached the age of sixty (60) years, he shall be entitled to retirement, but no pension shall be paid while he lives until he reaches the age of sixty (60) years.'

Sec. 7, Ch. 40-4510, N.D.R.C. 1943, 'Any member of the police department, who resigned therefrom to serve in the army, navy or marine reserve, or marine corp, of the United States, or as a member of the United States army and navy reserve, or in the world war 1917-1918, and has returned with an honorable discharge from such service, to the fire or police department, shall have the period of such service included as part of his period of service in the department.'

Ordinance No. 676 was enacted by the City of Fargo, effective August 19, 1941, creating a pension and retirement system for disabled or retired policemen under the authority of Chapter 174, S.L. 1937. Section 5 provides for membership fee and assessment in accordance with the statute.

Section 6 thereof provided that: 'Any member of the police department who resigned therefrom to serve in the army, navy or marine reserve, or marine corps, of the United States, or as a member of the United States army and navy reserve, or in the world war 1917-1918, and has returned with an honorable discharge from such service, to the police department, shall have the period of such service included as part of his period of service in the department. This provision shall also apply to any member who hereafter resigns for the express purpose of similar service, and returns to the department with an honorable discharge from such service; provided credit allowed for such service shall not exceed five (5) years.'

Section 51, Chapter 221, S.L. 1941, provided for a leave of absence to officers and employees of the state or its political subdivisions, who volunteered for service in the army, without loss of status and efficiency rating.

On June 1, 1942, the same day that the plaintiff resigned, Ordinance No. 687 was placed on first reading by the Fargo City Commission. This amended Sec. 6 of Ordinance No. 676 to include therein any member 'who is granted a leave of absence.' Ordinance No. 687 was enacted and put in force by the city commission on the 8th day of June 1942, two days before the plaintiff entered service.

Pension statutes should be liberally construed to carry out their beneficial policy. This is especially true of a pension statute which like this one had for its main purpose the encouragement of enlistment in the armed services of the United States. That purpose must be born in mind and those who acted under those statutes should, whenever possible, be given the benefit thereof. In Gibson v. City of San Diego, 25 Cal.2d 930, 156 P.2d 737, 740, it is said: 'Laws protecting the civil rights of public employees who enter the armed forces in time of war or emergency are favored. National, state, and municipal legislative bodies, and the people themselves by direct vote, have been alert to meet the need for special protective and encouraging measures. In a like progressive spirit both federal and state courts 'have kept pace and have evinced a firm intention to take a liberal view' of these enactments 'in order that their protective purposes may be fulfilled without undue imposition of constitutional limitations or hindrance through narrow judicial construction'. * * * We are bound by accepted rules of construction to consider the obvious purposes and objects sought to be attained by their adoption and to construe the language used, insofar as it reasonably permits, to the end of giving it vitality and efficacy in the accomplishment of such purposes and objects and fairness in its applications.' See also England v. City of Long Beach, 27 Cal.2d 343, 163 P.2d 865; Snyder v. City of Alameda, 58 Cal.App.2d 517, 136 P.2d 857; McCoy v. Board of Supervisors, 18 Cal.2d 193, 196; 114 P.2d 569, 571; People ex rel. Happell v. Sischo, 23 Cal.2d 478, 486, 144 P.2d 785, 150 A.L.R. 1431.

Clearly, Sec. 7, Chapter 174, S.L.1937, was enacted to encourage enlistment in the army. Section 6 of the Ordinance No. 676 of the City of Fargo was also enacted for that same purpose. It held out an inducement to members of the police...