State ex rel. Klein v. Welsh ( 1923 )

Vinje, C. J.

The substance of the argument of the relator is that since he was made ex officio city electrician and paid out of the fire department fund for his combined services as chief engineer and city electrician, though under separate salary provisions, and had paid his dues to the pension fund on his combined salaries, he should be allowed his pension of one half of the combined salaries. There is much force in the contentions, but we concur with the conclusion reached by the trial court that they cannot prevail. In the first place the pension can be claimed only by force of the statute. This provides that: •

“Any member of the fire department of any such city, having served twenty-two years or more in such department, may make application to said board to be retired from such department, or he may be retired by the said board of its own motion; in either which case the said board shall order and direct that such member shall be paid a monthly pension of a sum equal to one half the monthly compensation allowed such member as salary at the date of his retirement.” Sec. 959 — 46m, Stats. 1919;

It is quite clear from this statutory enactment that the relator must bring himself within it in order to entitle him to a pension. He must show that the services he has rendered and the salaries he has received have been as a member of the fire department. This he has not done. It clearly appears from the evidence and findings of the trial court that his sendees as a city electrician have not been rendered as a member of the fire department nor have the major portion of such services been rendered in its behalf or as belonging thereto. The fact that he may have been paid out of the wrong fund, or that there has been irregularity in the mode of payment by issuing only one order instead of two, one for each position, cannot avail him. The offices were separately created, and separate salaries for each one prescribed. It was the intent and purpose of the firemen’s pension law to bestow a pension only for discharge of firemen’s duties the requisite length of time. It did not contemplate the bestowal of such a pension for services the bulk of which had no relation to those of firemen’s duties. The fact that one man held two offices or discharged the separate duties would not warrant the tacking of the one to the other for the purpose of a pension. That can be granted only for services or offices that cóme within the provisions of the pension law.

It is true -that relator has 'made an excess payment to the pension fund. This should, and no doubt will, be refunded to him. At any rate, as stated by the trial court the matter of excess payment made by the relator into the pension fund is not before the court for determination.

By the Court. — Judgment affirmed.

Eschweiler, J., dissents.