State ex rel. Krake v. Minneapolis Fire Dept. Relief Ass'n

Decision Date24 March 1939
Docket Number32098.
Citation284 N.W. 884,205 Minn. 54
PartiesSTATE ex rel. KRAKE v. MINNEAPOLIS FIRE DEPARTMENT RELIEF ASS'N.
CourtMinnesota Supreme Court

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Mandamus proceeding by the State, on the relation of Bertha Krake against the Minneapolis Fire Department Relief Association. Judgment for defendant, and relator appeals.

Affirmed.

Under statute in force at time of retired fireman's death designating as pensioner widow who was legally married to fireman at least three years before retirement, widow who had been married less than four months to fireman before his retirement was not entitled to pension from Minneapolis Fire Department Relief Association. Laws 1933, c. 177, § 24.

Syllabus by the Court .

The right of the widow of a pensioned fireman to a pension from defendant is governed by the terms of the statutes under which defendant organized and in force at the husband's death.

G. A Will, of Minneapolis, for appellant.

M. J. Timmons, of Minneapolis, for respondent.

HOLT Justice.

Relator's husband, Joseph E. Krake, became an active member of the fire department of the city of Minneapolis in 1887 and served as such until May 1, 1910, when, having attained the age of more than 50 years, he was retired on pension under the provisions of the laws under which defendant operates. On January 5, 1910, he married relator and lived with her until his death, February 26, 1937. Relator's application to be placed on defendant's pension roll as widow was rejected, and this suit for a writ of mandamus to be placed upon such roll and be awarded a widow's pension followed. Findings were made and conclusions of law in favor of defendant. Relator appeals from the judgment.

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 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 Laws 1933, c. 177, § 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 pay roll 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 Fire Department Relief Association, 125 Minn. 174, 145 N.W. 1075 Ann.Cas.1915C, 749.Defendant is incorporated under Laws 1907, c. 24, which was amended by Laws 1913, c. 318, where the term ‘ widow’ was defined, and we held that amendment was effective as of the date of its passage and cut off the pension right of a widow who did not come within the definition. In Minegar v. Minneapolis Fire Department Relief Association, 126 Minn. 332, 148 N.W. 279, a proceeding to punish defendant as for contempt for failure to pay a fireman's widow pension adjudged by the judgment entered July 28, 1913, pursuant to the findings and order for judgment filed November 9, 1912, it is to be noted that the judgment was entered after Laws 1913, c. 318, was enacted, but the action was...

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