Shearer v. Board of Trustees of Firemen's Pension Fund, 16296

• Citation: 218 P.2d 753,121 Colo. 592
• Decision Date: 08 May 1950
• Docket Number: No. 16296,16296
• Parties: SHEARER v. BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND.
• Court: Supreme Court of Colorado

Page 753

218 P.2d 753

121 Colo. 592

SHEARER v. BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND.

No. 16296.

Supreme Court of Colorado, en Banc.

May 8, 1950.

Roy E. Montgomery, Denver, for plaintiff in error.

J. Glenn Donaldson, Abe L. Hoffman, Denver, for defendants in error.

JACKSON, Justice.

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, addressed to the secretary of the Board, commanding him to certify to the court a full and complete transcript of the testimony taken in connection with the application of the minor, Susan Joann Johnson, for increased pension benefits together with all other documentary evidence pertaining to the case. There was due compliance with this citation, and the trial court, after reviewing the proceedings had before the Board, entered judgment dismissing the case and taxing the costs to plaintiff.

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 time the widow remarried and ceased to be entitled to draw any further pension. When she remarried she abandoned her stepdaughter, thirteen years of age, and declared the latter to be an orphan. The minor's guardian, who at the time of the widow's remarriage was entitled to and was drawing $12.00 a month for the benefit of Susan Joann, thereupon petitioned for an increased allotment for the minor, contending that from the date of the remarriage of the widow the minor was entitled to one-fourth of the base pay of a fireman first grade; and when the pension board refused this request, the guardian brought this suit.

The pertinent provisions of this act are re-enacted 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 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 (1/4) 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 this Amendment and to widows of firemen and retired firemen who are now dead, it being the intent of the General Assembly to provide for an annuity for all widows of firemen, which annuity shall increase or decrease proportionately to any increase or decrease in the current rate of pay of firemen.

'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 (1/2) 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, than the said Board shall...