State ex rel. Fox v. Board of Trustees of Policemen's Pension or Relief Fund of City of Bluefield

• Decision Date: 17 March 1964
• Docket Number: No. 12308,12308
• Citation: 148 W.Va. 369,135 S.E.2d 262
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Charles FOX v. The BOARD OF TRUSTEES OF the POLICEMEN'S PENSION OR RELIEF FUND OF the CITY OF BLUEFIELD et. al.

Page 262

135 S.E.2d 262

148 W.Va. 369

STATE ex rel. Charles FOX v. The BOARD OF TRUSTEES OF the POLICEMEN'S PENSION OR RELIEF

FUND OF the CITY OF BLUEFIELD et. al.

No. 12308.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 25, 1964.

Decided March 17, 1964.

Syllabus by the Court

1. When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.

2. Under the provisions of Section 20, Article 6, Chapter 8, Code, 1931, as amended, an applicant for a pension as a policeman must have rendered service as a member of a municipal police department for twenty years or more and while such member he must have reached the age of fifty years or more, and such service and the attainment of such age must concur while he is in the active service of the department, to entitle him to the benefits provided by the statute for the retirement of and the award of a pension to such member.

3. Though the statute does not expressly mention the kind of service required of a member of a municipal police department to entitle him to a pension, it is necessarily implied that the service rendered must be honorable service; and the statute does not permit the award of a pension to a member of a municipal police department who has pleaded guilty to numerous criminal offenses which were committed by him during his service as a member of such police department.

4. He who seeks relief by mandamus must show a clear legal right to the remedy.

Preiser, Weaver & Daugherty, George A. Daugherty, Charleston, for relator.

Philip T. Lilly, Jr., Bluefield, for respondents.

HAYMOND, President.

In this original mandamus proceeding instituted in this Court January 16, 1964, the petitioner, Charles Fox, seeks a writ to require the defendants, The Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield and Henry F. Warden, Roy W. Humphreys, Andrew L. Dodson, Homer R. Tabor and R. H. Lambert, members of such board, to pay him the pension to which he claims he is entitled and which the defendants, by Roy W. Humphreys, Secretary of the Board, have refused to do. A rule was issued upon the petition returnable February 25, 1964, and at that time this proceeding was submitted for decision upon the petition and its exhibits; the answer and its exhibits filed by the defendants; and the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

The material facts are not disputed and the questions presented for decision are questions of law.

The petitioner was born December 31, 1912, and became a member of the paid police department of the City of Bluefield February 10, 1937. He served as a member of that department continuously for a period of more than twenty five years, from February 10, 1937, until July 2, 1962, at which time he voluntarily resigned as a member of the department by a letter of that date directed to the manager of the City of Bluefield. At the time of his resignation he had not reached the age of fifty years but he had attained the age of forty nine years six months and two days. After resigning as a member of the department he became fifty years of age on December 31, 1962, and on January 1, 1963 he made written application to the board for the payment of a retirement pension which he claims under the provisions of Section 20, Article 6, Chapter 8, Code, 1931, as amended. By letter of the secretary of the board, dated January 16, 1963, addressed to the petitioner, the defendants denied the request of the petitioner for the payment of the pension to which he claims he is entitled. Exactly one year later the petitioner instituted this proceeding.

The answer filed by the defendants in support of their action in denying the right of the petitioner to a pension contains the allegation that the petitioner was not for more than twenty five years a member in good standing of the department and the undenied allegation that he has pleaded guilty to twenty four felonies, consisting of crimes of stealth and breaking and entering; that all of them were committed while he was a uniformed police officer of the City of Bluefield; and that such offenses were committed during a period of about sixteen years.

The statute which applies to and governs the questions involved in this proceeding, Section 20, Article 6, Chapter 8, Code, 1931, as amended, to the extent here pertinent, contains this language: 'Any member of a municipal fire department or police department who is entitled to benefits of said fund, and who has been in the service of such department for twenty years, and upon reaching the age of fifty years, may upon written application to the board of trustees, be retired from all service from such department without medical examination or disability; and on such retirement the board of trustees shall authorize the payment of an annual pension, payable in twelve monthly installments for each year of the remainder of his life, in an amount equal to fifty per cent of such member's average annual salary or compensation received during the five fiscal years in which such member received his highest compensation while a member of the department, or an amount of one hundred fifty dollars per month, whichever shall be greater; * * *.'

The petitioner contends that the foregoing statute does not state that such police officer must be on duty or in the service of the department when he reaches the age of fifty years and does not expressly provide that his service as a member of such department must be honorable and faithful service; and that if the petitioner has rendered service as a member of the department for a period of twenty years or more he is entitled to the payment of his pension when he attains the age of fifty years, even though at that time he is no longer in the service or a member of the department. The petitioner also contends that the pertinent provisions of the statute are ambiguous and that they should be liberally interpreted in favor of the petitioner.

On the contrary the defendants contend that the petitioner, to be entitled to the pension which he claims, must have served as a member of the department for at least twenty years and must be a member of the department when he attains the age of fifty years, and that his service as a member of the department must be honorable and faithful.

The right to a pension for a member of a municipal fire department or police department is based upon and created by the above quoted statute and such right accrues to or vests in such member only when all the statutory conditions are performed and all its requirements are complied with and satisfied. It is then and only then that a vested right to such pension accrues. State ex rel. Frye v. Bachrach, 175 Ohio State 419, 195 N.E.2d 803. The statute which creates such right is clear and free from ambiguity and for that reason it will not be interpreted but will be applied and enforced by the courts. This Court has said in many cases that when a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and that in such case it is the duty of the courts not to construe but to apply the statute. State ex rel. Wheeling Downs Racing Association v. Perry, W.Va., 132 S.E.2d 922; State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars, W.Va., 129 S.E.2d 921; J. D. Moore, Inc. v. Hardesty W.Va., 129 S.E.2d 722; Terry v. State Compensation Commissioner, W.Va., 129 S.E.2d 529; Cotiga Development Company v. United Fuel Gas Company, W.Va., 128 S.E.2d 626; In re Hillcrest Memorial Gardens, Inc., 146 W.Va. 337, 119 S.E.2d 753; State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353; Medical Care, Inc. v. Chiropody Association of West Virginia, 141 W.Va. 741, 93 S.E.2d 38; Lane v. Board of Trustees of Employees' Retirement and Benefit Fund, 139 W.Va. 878, 82 S.E.2d 179; State v. Abdella, 139 W.Va. 428, 82 S.E.2d 913; State v. Chittester, 139 W.Va. 268, 79 S.E.2d 845; State ex rel. Mountain Fuel Company v. Trent, 138 W.Va. 737, 77 S.E.2d 608; Cawley v. The Board of Trustees of the Firemen's Pension or Relief Fund of the City of Beckley, 138 W.Va. 571, 76 S.E.2d 683; Appalachian Electric Power Company v. Koontz, 138 W.Va. 84, 76 S.E.2d 863; Douglass v. Koontz, 137 W.Va. 345, 71 S.E.2d 319; State v. Epperly, 135 W.Va. 877, 65 S.W.2d 488; Raynes v. Nitro Pencil Company, 132 W.Va. 417, 52 S.E.2d 248; Hereford v. Meek, 132 W.Va. 373, 52 S.E.2d 740; The Baird-Gatzmer Corporation v. Henry Clay Coal Mining Company, 131 W.Va. 793, 50 S.E.2d 673; State ex rel. Department of Unemployment Compensation v. Continental Casualty Company, 130 W.Va. 147, 42 S.E.2d 820; State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85; Barnhart v. State Compensation Commissioner, 128 W.Va. 29, 35 S.E.2d 686; State v. Conley, 118 W.Va. 508, 190 S.E. 908; Long Flame Coal Company v. State Compensation Commissioner, 111 W.Va. 409, 163 S.E. 16; State v. Patachas, 96 W.Va. 203, 122 S.E. 545; State v. Crawford, 83 W.Va. 556, 98 S.E. 615; 50 Am.Jur., Statutes, Section 225.

It is obvious from the language of the above quoted statute that it provides a pension only for a member of a municipal fire department or police department who has been in the service of such department for twenty years and who is a member of such department when he reaches the age of fifty years. Its language expressly mentions and applies and is limited to such persons only as are members of the department who has served as such for twenty years and who while members of the department attain the age of fifty years. It does not apply to or create a pension for a person who has been a member and served for twenty years but who had ceased to be a member...