Kavanagh v. Board of Police Pension Fund Commissioners

[51]

HAYNES, C.

— Appeal from a judgment awarding the plaintiff a peremptory writ of mandate requiring the defendant to pay her' the sum of one thousand dollars from a fund created by ’an act passed in 1889, entitled “An act to create a police relief, health, and life insurance and pension fund.” (Stats. 1889, p. 56.) The appeal is from the judgment rendered for the plaintiff upon the failure of defendant to answer after its demurrer to the third amended complaint was overruled.

Plaintiff is the widow of J. H. Kavanagh, deceased. Said Kavanagh was appointed and sworn as a member of the police department of the city and county of San Francisco on October 23, 1863, and served from that time until January 3, 1893, as an active member of said police force. At the date last named, said Kavanagh, having served for more than twenty years as an active patrol police-officer, and having attained the age of sixty-two years, was by the board of police commissioners placed upon the retired list of the police department, and pensioned pursuant to the provisions of section 3 of said act of 1889. Said Kavanagh never resigned, nor was he ever dismissed from said department. He died from natural causes, on August 28, 1897. There is sufficient money in said fund applicable to the payment of plaintiff’s demand, if she is entitled thereto. The foregoing facts are condensed from the complaint. The demurrer is upon the ground that it does not state facts sufficient to constitute a cause of action.

Plaintiff’s claim is based upon section 7 of said act, as amended in 1891 (Stats. 1891, p. 287), which reads as follows: “ Whenever any member of the police department of such county, city and county, city, or town shall, after ten years of service, die from natural causes, then his widow or children, or if there be no widow or children, then his mother or unmarried sisters, shall be entitled to one thousand dollars from such fund.”

Appellant contends that Kavanagh was not a

member

of the police department at the time of his death, and that therefore his widow is not entitled to any insurance under the provisions of said act, and in support of this contention cites section 3 of said act, which provides that when “ a member ” of the department has served twenty years or more, “ said board shall be empowered to order and direct that such