Parke v. Board of Trustees
Before: Kerrigan
Synopsis
Municipal Corporations—Extra Man op Oakland Fire Department —Member op — Death Benefit Fund.—An “extra man” in the employ of the fire department of the city of- Oakland at the time when the present charter went into effect in 1911 is a member of the department within the meaning of subdivision 2 of section 104, providing for the payment of the death benefit therein provided, since the provision of section 97 of the charter that all members of the department in good standing at the time when the charter went into \effect should be retained in their respective positions plainly implies that all persons occupying the grades enumerated in the section and such other employees as the council may provide by ordinance come within the designation “member” of the fire department.
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KERRIGAN, J.
This is an appeal by defendants from a judgment granting to plaintiff a writ of mandate addressed to the defendants, the Board of Trustees of the Firemen’s Relief and Pension Fund of the city of Oakland,- and its
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members, directing them to pay to the plaintiff the sum of one thousand dollars.
The question to be decided is whether or not the minor children of James H. Parke, deceased, who was- at the time of his death, and had been for a period of ten years prior thereto, an “extra man” in the employ of the fire department of said city, are entitled to the death benefit of one thousand dollars provided for in subsection 2 of section 104 of the city charter of 1911. If under his employment as an “extra man” Parke is to be regarded as having been a “member” of the department, then the plaintiff was, as decided by the superior court, entitled to the relief demanded.
The undisputed facts are as follows: On July 12, 1905, Parke was appointed to the position of extra man in said fire department, at which time what is known as the old city charter of Oakland was in force. Under the provisions of that charter there can be no question but that an extra man was a member of the department. In the year 1911 the present charter became effective, the pertinent portions of which applicable to the fire department read as follows:
“Section 97. The Fire Department shall consist of a chief of the Fire Department, an Assistant Chief of the Fire Department, a second assistant Chief of the Fire Department, as many Battalion Chiefs as the Council may deem necessary, a Superintendent of Engines and as many captains, lieutenants, engineers, drivers, tillermen, stokers, truckmen and hosemen as the council may deem necessary, and also such other employees as the council may provide for by ordinance. The officers and members of the fire department shall receive annual compensations, comprising their salaries and an allowance of Two dollars per month for the Firemen’s Relief and Pension Fund herein provided for, as follows: . . .
“All members of the fire department, appointed prior to September 1st, 1910, and in good standing at the time this charter goes into effect, shall be retained in their respective positions except as otherwise in this charter provided. . . .
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