Home Ins. Co. v. Cobbs , 20 Ala. App. 491 ( 1925 )

While I concur in the conclusion of BRICKEN, P.J., that the judgment must be reversed, I am not in accord with the reasons or the conclusions of law as written by him in his opinion.

I am of the opinion that the act of 1915, p. 898 et seq., as amended by Acts 1919, p. 111 et seq., is a mandatory act fixing the status of all paid firemen within the municipalities therein enumerated. This is to be gathered from the act itself. For instance in section 1 we find this language:

"There is hereby created in connection with the regularly organized fire department of such cities a `board of trustees,'" etc.

Section 2 provides of whom the board shall consist. Section 3 provides how the board shall be selected and sets and fixes a day and time for the selection and fixes the terms of office. Succeeding sections proceed with mandatory provisions for organization. Section 8 uses the word may, as to donations from outside sources and appropriations from the municipality. But, as to subdivisions B and C, the provisions are again mandatory:

"One dollar per month shall be deducted from the pay roll of such fire department for each member thereof" and "each fire insurance company doing business in such city shall, within thirty days after this act takeseffect, and annually thereafter * * * pay into said fireman's pension fund," etc.

Section 31:

"This act shall take effect from and after its approval by the Governor."

The original act was approved September 28, 1915, and the amended act (which applies to this defendant), February 17, 1919. There is nowhere, either in the original act or in the amended act, any clause or provision which delays its operation or permits the fire department of any city within its terms to exercise such option as would suspend the act or relieve obligations therein demanded.

I said in Cobbs, Treas., v. Home Ins. Co., 18 Ala. App. 206,91 So. 627:

"The creation of the fund and the machinery for carrying out the provisions thereof is governmental."

To support this conclusion I there cited authority. Being governmental and being designed, as was elsewhere stated in the same case, for the benefit of the public generally in the communities served, the terms of the act could not be nullified or suspended by inaction on the part of the parties upon whom the duties of organization and administration were enjoined. It was the duty of the several fire departments to have deducted $1 each month from the firemen's salaries and to have paid this money to the city treasurer. It was likewise the duty of the insurance company to have paid the amount provided to the treasurer, and such payment would have been a discharge of its obligation. The fact that others charged with certain duties had failed or even refused to perform them is no excuse for a failure on the part of this defendant, nor can the firemen themselves by inaction nullify the plain terms of the act. Whether the act creates a benefit to the individual fireman, which is to his financial advantage, is not to be considered by us in construing the law. The benefit is to the public and this question was determined by the Legislature when it enacted the law. Cobb, etc., v. Home Ins. Co., supra.

The case of Lane v. Kolb, 92 Ala. 641, 9 So. 873, has no application here. In that case the operation of the law was in effect postponed until the next general election. In the instant case the law becomes effective upon its approval by the Governor. Nor is the doctrine of a charitable trust applicable to the present case. The decision in the former appeal discussed and disposed of this latter question. The object of the act under consideration being to promote great public interest, it cannot be defeated or its execution legally postponed by inaction on the part of those charged with the duty of carrying its mandates into effect. Griffith v. N.Y. Life Ins. Co., 101 Cal. 627, 36 P. 113, 40 Am. St. Rep. 96.

I am, however, equally clear to the conclusion that Cobbs as treasurer cannot maintain this suit. Under the terms of the act (section 6, Acts 1915, p. 901) the treasurer is made the bare custodian of the fund, and, by the terms of section 7 of said act, the "board of trustees" is given the exclusive management and control of the fund provided for in said act. See, also, sections 11, 12, and 13, Acts 1915, p. 903. It also seems clear to me, though not necessary to a decision on this appeal, that the "board of trustees of the firemen's pension and relief fund" is an agency of the municipality charged with the duty of administering the fund provided and in its name should all suits be maintained for the benefit of the fund, and no penalties can be enforced for noncompliance with the terms of the act prior to the organization of the board.

The foregoing are my views of the law of this case and necessitate a concurrence in the conclusion to a reversal of the judgment.