BOARD OF TRUSTEES OF THE FIREMEN'S RELIEF v. McCOMMAS

BOARD OF TRUSTEES OF THE FIREMEN'S RELIEF v. McCOMMAS
1946 OK 332
175 P.2d 75
198 Okla. 49
Case Number: 32611
Decided: 12/10/1946
Supreme Court of Oklahoma

BOARD OF TRUSTEES OF THE FIREMEN'S RELIEF AND PENSION FUND OF CITY OF TULSA
v.
McCOMMAS, Gdn

(Syllabus.)

¶0 MUNICIPAL CORPORATIONS - Amendatory statute was not retroactive so as to reduce amount of pension theretofore awarded fireman's widow and children.
Section 4, Title 11, chap. 6B, S.L. 1945, amending 11 O.S. 1941 _ 368[11-368], is not retroactive and does not operate to affect a pension theretofore awarded a widow of a deceased member of the city fire department and minor children under the provisions of said section 368.

Appeal from District Court, Tulsa County; Leslie Webb, Judge.

Action in mandamus by Irene McCommas, guardian of Melvin McCommas and Sandra McCommas, minors, against the Board of Trustees of the Firemen's Relief and Pension Fund of the City of Tulsa. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. R. Bostick, Remington Rogers, and A.M. Widdows, all of Tulsa, for plaintiff in error.
Eldon J. Dick and L.E. Bellamy, both of Tulsa, for defendant in error.

PER CURIAM.

¶1 In this case Irene McCommas, guardian of Melvin McCommas and Sandra McCommas, brought an action in mandamus against the Board of Trustees of the Firemen's Relief and Pension Fund of the City of Tulsa to compel payment of a certain pension theretofore allowed under the provisions of 11 O.S. 1941 _ 368[11-368]. The trial court granted the writ. Defendant appeals.

¶2 The record discloses that Irene McCommas is the widow of Melvin McCommas, deceased, who died as a result of injuries sustained while in the performance of his duties as such fireman, and Melvin and Sandra McCommas are his children.

¶3 Defendant, upon application of Irene McCommas, granted her a pension of $92.50 per month under the provisions of said section 368, supra. The above section, as well as other sections of the statute, were amended by the Act of the Legislature of 1945, Title 11, chap. 6B, S.L. 1945, which amendment reduces the amount of pensions allowable to widows of deceased members of the city fire department.

¶4 Defendant paid to Irene McCommas such pension until April 22, 1944, when she again married. She was thereafter appointed guardian for the minor children and the pension was paid to her as such guardian for the benefit of the minor children until the effective date of the amendatory act, May 1, 1945. Thereafter the defendant tendered to plaintiff the sum of $45.38 per month,

Page 50

the amount of monthly pension allowable under the amendatory act.

¶5 It is the contention of defendant that section 4 of the Act of 1945 amending section 368 is retroactive and that subsequent to the effective date of such act plaintiff is only entitled to draw the pension allowable thereunder. The trial court denied this contention and rendered judgment in favor of plaintiff. The judgment must be sustained.

¶6 This is a companion case to the case of Board of Trustees of Firemen's Relief and Pension Fund of the City of Tulsa et al. v. Naughton, 197 Okla. 592, 173 P.2d 425. We there held the amendatory act herein not retroactive. This case is decisive of the question here presented.

¶7 Judgment affirmed.

¶8 GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, DAVISON, and ARNOLD, JJ., concur.