Sirgo v. Board of Trustees of the Firemen's Pension & Relief Fund of the New Orleans Fire Department

CHARLES F. CLAIBORNE, JUDGE. This case presents a contest between the widow of a deceased fireman on the one hand, and the beneficiary consti-ti^ed by the deceased on the other hand, for a death benefit under Act 43 of 1902 p. 51 as amended by Act 27 of 1914 p. 85. Louis F. Sirgo, Sr. alleges that Joseph Escobedo, his uncle, was a member of the New Orleans Fire Department at the date of his death on February 9th, 1917; that -under the Acts above mentioned creating the Firemen*s Pension and Relief Fund each member of the Fire Department is authorized to designate a beneficiary to whom $1000.00 shall be paid upon the death of the member, as a death benefit; that the deceased member Joseph Escobedo filed on May 16th, 1916 with the Board of Trustees of the Fund, on a form furnished by said Board, his death benefit, by which he made petitioner his beneficiary; that the Board refuses to pay petitioner $1000.00 which he asks that the Board be condemned to pay to him. The defendant Board admitted all the allegations of the petition, but denied that_petitioner was a nephew of Escobedo *r that Escobedo yras*»bnti tlyn to designate a beneficiary to whom $1000,00 is to be paid, at the timé of the death of the said member,' as a death benefit11; that under the acts above mentioned creating the Board it was its duty to appropriate from the funds of the Board the sum of $1000 to be paid to the beneficiary designated by the Section 21 of Act 43 of 1902 as amended by Act 27 of 1914;. that the Widow of Joseph Escobedo is also claiming from the Board the aforesaid sum of $1000.00, and has advised said Board that she will institute legal proceedings for the recov — 367 — ery of the same; therefore the Board deposited the sum of $1000.00 in the Registry of the Court for such disposition as the Court may deem legal, and prayed that Widow Escobedo he made a party to this suit. Widow Escobedo filed her answer, and denied tfc* any designation of beneficiary other than the wife or minor children or dependent mother of the fireman could legally b® made; she, specially denied that the petitioner Sirgo, had any legal right to said death benefit, and averred that his designation as beneficiary was null and void, because he was neither the wife, nor the child, nor dependent mother of the deceased; she averred that Escobedo left no children and that therefore as his widow^she is entitled to the death benefit of $1000.00 arising from the death of her husband under section 22 of the Act of 1902 and section 21 of the Act of 1914; she further averred that in the event the Court was of opinion that under section 22 of the Act of 1914 a person other than a surviving widow, minor children or dependent mother could be made beneficiary, that according to the title of the Act of 1902 and according to the terms of the act and more particularly section 22 all benefits went to the fireman while alive, and after his death to his wife, children and mother; that the title of the Act of 1914 makes no reference to the fact that said benefits could be made payable to others and even to strangers in no wise dependent upon said fireman; and that if section 22 of the Act of 1914 can be construed so as to allow the deceased to designate as his beneficiary the plaintiff Sirgo, then said section 22 is unconstitutional, null and void, as violative of Article 31 of the Constitutions of 1898 and 1913, because no reference is made in said titles to the allowance of benefits to be made to such persons not dependant upon the fireman, either in the Act of 1902 or in the Act of 1914; she further avers that if the Court holds that the object is expressed in the Act of 1914, then the said act is unconstitutional because the title then embraces two objects^ namely: The creation of a mutual benefit association and a life insurance company, which is also in violation of Article 31 of the Constitutions of 1898 and 1913. It was admitted that Sirgo was a nephew of Joseph Escobedo; — 368 — that he Was duly designated on the regular font of the lire Department atr his beneficiar?; that lire. Escobedo is his widow, and that she is. still unmarried; that she and her husband did not live together for about twenty years although not legally Separated, and that she was á good woman; that Joseph Escobedo died without leaving any children or mother. Ihere was judgment in favor of Widow Escobedo decreeing her entitled to the (1000.00, and against Sirgo, rejecting his demand. He has appealed. The first question presented is whether the Act of 1902 or the Act of 1914 amendatory thereto designate and fix the beneficiaries, or whether the fireman has a right himself to designate the beneficiary. The title of Act 43 of 1902 p. 51 reads; "An act creating a Board of Trustees of the Firemen's Pension and Relief Fund for the City of Hew Orleans; providing for the pensioning of disabled firemen, and the widows or minor children or widowed mothers of deceased firemen; authorizing the retirement from service, and relieving and pensioning members of the fire department; providing for the raiding of funds". Section 1 provides: "That the City of Hew Orleans having a paid fire department, one (1) per centum of all revenues collected or received by said city from licenses issued by said city, shall be set apart by the treasurer of said city $o whom the same Shall be paid, as a fund for the pensioning of disabled and superannuated members of the fire department, and of the widows and orphans of deceased members of the fire department, or of dependent mothers of deceased members of the fire department, and to relieve said members in case of temporary disablement)1. Section 2 designates the persons who shall compose the ■Board of Trustees of the Firemen's Pension and Relief Fund". Section 3: "That the said board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assesed — 369 — for the relief, or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mother" &c &c. Section 4 prescribes the duties of the City Treasurer in relation to funds paid by Insurance companies. Section 5 dedicates to this fund all forfeiture® and fines imposed by the Board of fire’ Commissioners. Section 6 dedicates to this fund all proceeds of sale of the personal property of the said fire Department. Section 7 dedicates to this fund all donations to the fire Department, - and provides-for the accumulation of $200flQ0.00. Section 8 authorizes the Board to invest this fund. Section 9 dedicates the interest of said fund "to the payment of pensions and relief under this act". Section 10 directs the manner in which the money of the fund shall be paid out. Section 11 provides for the payment of a sum of money to a disabled or retired fireman. Section 12 provides for the payment, in case of death of the fireman, of a sum of money to his widow and minor children, and in default of these, to his widowed mother. Section .13 provides for partial payments in case the fund is insufficient. Section 14 provides for the payment to a retired firdman. Section 15 directs the keeping of records of retired firemen and the action of the Board regarding then. It further provides: "... When the widow or children or widowed mother or either of them shall be entitled to a pension as provided by this act, such widow or children or widowed mother shall make application to the Board of Trustees through the secretary of suoh board, on a form to be provided by the Board of Trustees. Accompanying suoh application shall be the proof of the marriage of the dsoeased to the widow claimant such proof to be estab'lished by the marriage certificate or other ooapetent — 370 — evidence. Proofs of 'births of the children' shall be shown by the baptismal or the Board of Health certificates. The proof of a widowhood of a mother shall be shown by the affidavit of such mother or disinterested pdrsons". &c &c Section 16 provides for the selection of a bank in which the money of the Fund shall be deposited. Section 17 directs the Board to make an annual report to the City Council. Section 18 exempts this fund from seizure under any writ or judgment "... against any member, or his said widow, or the guardian of said minor child or children, of any deceased member, or any dependent mother of any deceased member; but the said fund shall be sacredly held, kept, secured and distributed for the purpose of -pensioning the persons named in this act, and for no other person whatsoever". Section 19 prescribes the duties of the Treasurer of the Board. Section 20 amalgamates the Relief Associations and funds of the old fire department with the Board created by this act. Section -21 reads -as follows: "That whenever an active or retired fireman shall die o.r be killed the Board of Trustees shall appropriate from the funds the sum of five hundred dollars to be paid to the beneficiarjr upon a certificate signed by the Department Physician, Chief Engineer and Chairman of the Relief Committee who shall state thereon the name of the deceased, the beneficiary,- the cause of death and other necessary information. Section 22 requires every fireman to "... file with the Secretary the names (of those) to whom death benefits are to be paid and the relations of the donor to donee existing". Seotion 23 provides for the merging of the old "Mutual Benefit and Relief Fund" into the Fireman's Pension and Relief iund" whenever the Fund shall have attained $90,000,00. — 371 — It is therefore made evident hy the title and body of this aot that the object and purpose of the Act 43 of 1902 was to create a "Pension and Relief Fund" ; and that'the persons to be bendfited by the Act were "Piremen", and, at their death, their widow and children, and in default of these their widowed mother. Sections 1, and 3, and 18 fix and designate, exclusively of any other, the beneficiaries of this Pund, and restrict them to the firemen themselves, and to their widow and children or to their widowed mother. Sections 11 and 14 fix the sum of money to be paid monthly or annually to the disabled or retired fireman, during his life. Section 12 fixes the sum to be paid, monthly in case of death of the fireman, to his widow and children under 14, and in their default to his widowed mother. These sums of money in favor of the fireman, or -their widow and children, or mother, 'payable to them monthly or annually, might be classed under the title and provisions of the act as a "pension". Abbott's Law Dictionary describes a "pension" as "a periodical allowance of money, especially one made by government in consideration of past services". Also Century Dictionary. But section 21 departs from the creation of a "pension" in its strict sense and directs the immediate payment, in bulk, of the sum of $500 to the beneficiary of the fireman. This gratuity comes more strictly and according to "most usual signification" under the title ofRelief", or "death benefit!'. Section 22 reads thus: "That every member of the department must file with the Secretary the name or names to whom death benefits are to^i.S> paid, and relations of the donor to donee exis ting". Controlled by other sections of the act, this section 22 mu3t be interpreted as restricting the right of the fireman to "file with the Secretary of the Board the names of those to whom the death benefits are to be paid", only to such persons who are entitled,-by the letter of the law, to the benefits of the act, — 372 — ■that is, the widow and children or mother of the deceased fireman, giving the relation which the fireman donor hears to the beneficiary donee, whether it he widow , child,or mother. It would seem, however, that the revenues of'the Fund were not sufficient to meet the benevolent purposes of the Act of 1902. By Act 17 of 1904 p. 20, section 22 of the act of 1902 was amended. The last sentence of the ssction, as amended reads as follows: ". . .On the death of a member an assessment of one dollar ($1.00). shall he levied upon each member of the fire department, whenever payments are to he met for a death benefit". This amendment emphasizes the fact that the object of the.Act of 1902 was not only to create a ".Pension" hut also a "Relief" or "death benefit". The Act 152 of 1912 p. 218 amends section 2 of the Act of 1902 constituting the membership of the Board. Act 27 of 1914 p. 85 makes further and material amendments to the Act of 1902. Its title reads: "An Act to amend and re-enact the title and Sections 1, 2, 3i 5> 7, 9. .14, 18, 21, and 22, and to repeal Section 4, of Act No. 43 of the General Assembly of the State of Louisiana, Session of 1902, entitled "An Act ’ creating a Board of Trustees of the Firemen's Pension and Relief Fund for the City of New Orleans; providing for the pensioning of disabled firemen, and the widow or minor children or widowed Bothers of deceased firemen, authorizing the retirement from service, and relieving and pensioning members of the fire department; providing for the raising of funds". We. have seen that the Sections l,and 3, and 18 were those which fixed and designated the persons who might become beneficiaries under-the. Act of 1902. „ "That the Title of Act 43 of the General Assembly of the State of Louisiana,- Session of 1902, be and the same — 373 — ia hereby amended and re-enaoted ao aa to read aa follows, to-wit:- An act creating a Board of Trusteea of the Firemen'a * Pension and Belief Fund for the City of Hew Orleans; providing for the pensioning of disabled firemen, and of widow and minor children, and widowed mothers of deceased firemen; authorizing the retirement from service, and relieving and pensioning members of the fire department; and providing for the raising of funds and for the payment of death benefits" , Section 2: "That Section 1 of Act Ho. 43 of the General Assembly of the State of Louisiana, Session of 1902, be and the same is hereby amended and re-enacted so as to read as follows, to-wit: Section 1. Be it enacted by the General Assembly of the State of Louisiana, That the City of Hew Orleans having a paid fire department, and one (1) per centum of all revenuesaollected and received by said city from licenses issued by said city, shall be set apart by the treasurer of said city to whom the same shall be paid, as a fund for the pensioning of disabled and superannuated members of the fire department, for the relief of said members in case of temporary disablement, for the payment of death benefits to beneficiaries of deceased members of the fire department, and for the pensioning of widows and children and dependent mothers of members of the fire department who, while responding to an alarm of fire or while working at or returning from a fire, shall be killed or shall receive injuries which shall result' in the death of the injured fireman within six months from themtirae the said injuries are sustained". The difference made by the amendment was adding to the Act of 1902 the words;. "... for the payment of death benefits to the beneficiaries of deceased members of the fire department". Section 2 amends the composition of the Board. Section 3 reads: — 374 — "That the said Board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assessed for the relief or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mothers, and for the payment of death benefits, and shall assess.each member of the fire force"&c. Section 3 of the Act of 1902 was thus amended by adding the words; "... and for the payment of death benefits". Section 12 was amended by adding the words: "... provided, the combined pension shall not exceed one-half the monthly salary of the deceased member at the time of his death; and further, that the said pension shall not operate as a bar to the payment of any death benefits otherwise provided in this act". Section 14 was amended by adding the words: "... and provided, further, that after twenty-five years of continuous service a member shall not be deprived of his pension rights or death benefits". Section 18 was amended by adding to the act of 1902, after the words: "... for the purpose of pensioning the persons named in this act" the following words: "... and for the payment of death benefits". Section 21 increases the death benefit from $500 to $1000. Section 22 is made to read as follows: "That every member of the department must file with the secretary the name or names of the person or persons to whom death benefits are to be paid, and the relation of the donor to the donee existing, if any". The provisions of the.Act of 1914 make it clear that the legislators intended that the two classes of benefits established by the Act of 1902 and accentuated by the Act of 1914,namely, .the pension and the relief or death benefit, should be controlled — 375 — by different rules. The persons who alone could become entitled ^ to the pension or death benefit were designated by the Act of 1902; the fireman had no voice in their selction. But it waB otherwise under the act of 1914. While the persons entitled to a pension were still immutably designated and fixed by the Act of 1914, that act made it-optional with the fireman to designate his pensioner might be one person and the beneficiary another. Section 2 of the Act of 1914 extends the purposes of this fund, from the widow and children or mother under the Act of 1902, and creates another class ". . . for the payment of death benefits to beneficiaries of deceased members of the fire department". Section 4 of the same act also speaks of the additional class of beneficiaries ". . . and for the payment of death benefits". While section 18 of the Act of 1902 provides that said fund should be sacredly kept for pensioning the persons named in said act, and for no other person whatsoever, the Act of 1914, section IS, amends the .Act of 1902 by saying: ". . . for the purpose of pensioning the persons named in this act, and .for the payment.of death benefits and for no other purpose whatsoever". The Act of 1914 does not say to whom this death benefit shall go. But Section 22. clearly indicates that the choice of this beneficiary shall be left to the fireman himself, It says: "Every member of the department must file with the secretary the name or names of the person, or persons to whom death benefits are to be paid, and the relation of the donor to the donee existing, if any". Section 21 reads: "That whenever an active or retired fireman shall die or be killed the Board of Trustees shall appropriate from the flund the sum of one thousand dollars ($1000.00),, to be paid to the beneficiary upon a certificate signed by the department physician, Chief Engineer and Chairman of the Relief Committee, which certificate shall state the — 376 — name of the deceased, the name of the beneficiary, the cause of death, and other necessary information". Under section 22 of the Act of 1902 the fireman on filing with the secretary the name of those to whom the death benefits were to be paid, was under obligation to state"the relation of the donor the the donee existing", whether wife, child, or mother; under the amendment of 1914, he is^&nly obliged to state the relation, "if any". The fireman "must" file the name of the beneficiary and the Board shall appropriate $1000. to be paid to that beneficiary. There is no restriction imposed upon the fireman, by the letter of the law, as to the person he must select as his beneficiary; and we can discover none in the spirit of the law. If it had been the intention of the legislature that the party entitled to the pension should also receive the death benefit, it would have said so in so many words. This act seems to have been so interpreted and understood by the Board administering the Fund, since they allowed the deceased Joseph Escobedo to filé with the secretary the name of his beneficiary Louis 3T. Sirgo, who was certainly neither his wife, nor his child, nor his mother. It has been stated in argument and not contradicted that there are several other cases similar to this one upon the books of the Board of the Firemen’s Fund. There is an Admission of record "that the plaintiff Sirgo, Sr. was duly designated on the regular form of the Fire Department as his beneficiary." We are very, much impressed with the belief that one of the ¡cain causes of the amendment of 1914 was to permit the fire-gpwf*' man to dispose of the death benefit in favor of whom^he might please. It might well happen that he had neither wife, nor child, nor mother; and yet that some one was ministering to his intellectual and physical wants, whom he felt he had the right, in common with others^to designate as his beneficiary as a reward for services rendered. The contention that the Acts of 1900 and 1914 contain two objects, one a Mutual Benefit Sooiety and the other a Life Insurance Company,' andtherefore void as violative of article 31 of the — 377 — Constitution of .the State is without force, it is equivalent to saying that in order to carry out its purposes the Legislature should have passed two acts, one providing for the Pensions and Relief to the fireman during his life, and the, other estab-/¿iS-lishing Pensions and Relief^ after his death, to tats beneficiaries designated by law or by him. We do not think so. The act contains only one great and benevolent object, the creation of a "Firemen's Pension and Relief Fund"; all the details and ramifications of the act, how the fund shal] be created, who shall administer it, who shall be benefitted by it, and to what extent, and when,, are necessary and cognate elements of the single object. The plea that the object of the act is not expressed in the title appears to us also -without merit. As far as .the Act of 1902 is concerned the object is fully and in detail expressed, under our construction of the act, that no part of it provides f.or a Pension or Relief in favor of any one except the widow and minor children and- widowed mother, of the fireman. 7 Ct. App., 306 and authorithies quoted; 136 La., 746 (749). The Act of 1914, as construed by us, purported as one of its objects, to abolish the restriction of the Act of 1902, as far as the death benefit exclusively in favor of the widow and children and mother was concerned, and to permit the fireman to select and name any beneficiary he pleased whither related to him or not. The object of that Act of 1914 is fully expressed in the title. It reads in part: "An act, To amend and reenact the title-and sections . . 21 . . of Act 43 of the General Assembly of the State of Louisiana, Session of 1902, entitled "An act &c". It was not necessary that the title of that amendatory act should state in what manner the act was amended; any amendment, germane to the act was permissible. 38 A., 626. We have already stated as our opinion that the exclusive death benefit provision under section 21 of the Act of 1902 in favor of the widow and children or mother was valid. It was only one step further, by amendment, to enlarge the purposes of that section and to extend it to-a beneficiary to be named by the fireman. 'it was — 378 — not necessary to express that object in the titl'a* The declaration in the title that the object of the ac.t wa* to a*en4 section 21 was a sufficient expression of the object of the act to make any cognate and germane amendment valid. In Lafon vs. Dufrocq, 9 A., 350, the Court said: "The act of the Legislature entitled "an act to amend the several acts relative to the police and government o'f the Town of Baton Rouge" is a substantial comp pliance with the 118th. Article of the Constitution which declares that every law enacted by the Legislature shall embrace but one object, and that shall be embraced in the title". 11 A., 54. The title of an act which states the object to be to amend and re-enact particular sections of the Revised Statutes^ or Articles of the Civil Code^or Code of Practice, or a designated act^ or specified section thereof, sufficiently expresses its object in the title within constitutional requirements, without stating the nature of the amendment when the amendment is germane to the subject covered in the original section. 29 A., 637; 30 A., 657; 41 A., 771; 49 A., 1535; 50 A., 21; 124 La., 420, 630; 131 La., 611; 813; 38 A., 626; 119 La., 189; 136 La., 509, 747; 135 La., 691, 1089; 106 La., 553; 43 L. R. A., N. S., 954; 104 S. W., 460. It is therefore ordered that the ‘judgment herein be reversed and annulled; and that the plaintiff Louis'F. Sirgo, Sr. be recognized as the benéficiary of the late Joseph Escobedo and as such entitled to the one thousand dollars death benefit; and that Thomas Connell, Clerk, be authorized and directed to pay to him the aforesaid sum of one thousand dollars and all interest accrued thereon deposited with him in this case by the Board of Trustees of the Firemen’s Pension and Relief Fund for the City of Hew Orleans; It is further ordered that Widow Joseph Escobedo pay all costs in both Courts, April '24th, 1919.