Board of Trustees of the Firemen's Pension Fund v. State Ex Rel. Furgason

Fansler, J. This is an action by the State of Indiana, on the relation of Virgil T. Furgason, against the Board *558 of Trustees of the Firemen’s Pension Fund of the City of Indianapolis to mandate the board to establish his status as a beneficiary of the fund, and judgment was had in favor of the appellee. Furgason, who was appointed a member of the Indianapolis Fire Department in May, 1903, remained a member continuously until the 8th day of May, 1918, when he voluntarily resigned. During his service on the fire department, and before his resignation, the Firemen’s Pension Fund Law went in to effect. He was eligible for membership, and became a member of the pension fund. It is alleged, and found by the court, that on the 12th day of May, 1924, the relator made application for “reinstatement” as a member of the fire department and that he was “reinstated,” and that thereafter, until the beginning of the action, he continued a member of the’ fire -department. At the time of his reappointment he was approximately forty-four years of age. Upon his reappointment he made application for reinstatement in the Firemen’s Pension Fund, and on the 7th day of August, 1924, the trustees indicated that he had been accepted, and he paid his dues for May, June, July, and August, 1924, and the ensuing months, receiving a receipt therefor. He submitted to a medical examination, and the medical examiner recommended that he be not accepted because his blood pressure was too high. It is contended by the appellee that, since he was reinstated as a member of the fire department, his status is as though he had always continued as such, and that, therefore, having been qualified and admitted as a member of the pension fund during his original employment, he was entitled to reinstatement therein as though his employment had never been discontinued. Appellants contend that, since he resigned from the fire department *559 of his own volition, his employment terminated, and that his new employment, whether it be termed reinstatement or employment, has no relation to his former employment insofar as it affects his right to become a member of the pension fund. It is clear that relator’s resignation from the fire department was voluntary and complete, and that he was not removed from, or divested of, his employment. After an absence of six years he applied for appointment as a fireman, and was appointed; the latter appointment having no relation to his former employment. In its generally accepted sense, reinstatement refers to a restoration to a state from which one has been removed, and it may be more correctly said that the relator was re-employed. When the relator resigned his position his connection with the fire department was completely severed, and he retained no right to the position or to any of its rights, benefits or emoluments, and no basis remained upon which he could demand reinstatement or re-employment as a matter of right or justice. It may be conceded that, if one is removed from a fire force against his will, or over his protest, or if he is granted a leave of absence, he may retain some right which may be the basis of a reinstatement, which would give him the same status as though he had continued as a member of the force, but, on appointment to the force after a resignation, he must be deemed to enter the force upon the same basis as an employee who had not therétofore any connection with the department. At the time of his reappointment the relator was forty-four years of age. §10929, Burns 1926 (§11828 Baldwin’s 1934), provides: “That in no event shall a pension be paid to any employee of the fire department who at the time of his appointment was over thirty-five years of age *560 nor to any employee who has failed to pass the medical examination.” The statute was intended to, and does restrict admission to membership in the fund to those who at the time of appointment are not over thirty-five years of age. The relator does not come within this age requirement, and' the fact of his prior service adds nothing to his rights. If it were otherwise, one who had served one year on the fire department, having been appointed when he was thirty-five years of age, having passed a medical examination, and who had resigned, might be re-employed after thirty years under guise of reinstatement, and be eligible to membership in the fund, notwithstanding the great injustice thereby worked upon those who had been continuously members of the department and members of the fund. Such a construction would be contrary to the very evident purpose and intention of the provisions of the statute. In view of our conclusion, it is unnecessary to discuss the other errors assigned. The judgment is reversed, with instructions to restate the court’s conclusions of law in conformity with this opinion, and to enter judgment thereon in favor of the appellants. Treanor, J., dissenting.