#### The State, ex rel. Little, *v.*Carter et al.

*Municipal corporations*— Police *relief fund*— Misinterpretation *of by-laws by trustees*— Mandamus—Payment *of benefits to widow*— Divorce *proceedings instituted before husband’s death.*

(No. 18610

Decided December 23, 1924.)

Error to the Court of Appeals of Summit county.

This was an action in mandamus originating in the Court of Appeals, wherein the relator prayed for a writ, commanding the board of trustees of the Akron police relief fund to constitute her a beneficiary under the rules and by-laws governing administration of the fund, and praying for an order directing the custodian of the fund to pay her certain moneys to which she was entitled as accrued pension thereunder.

The petition alleged that the defendants were *527exercising the functions of members of the board of trustees of the police relief fund, and were administering the same for the benefit of the beneficiaries entitled thereto; that Austin O. Little was a member of the police department of the city at the time of his death on February 12, 1920'; that under favor of the state law there were in force by-laws governing the police relief fund, among which was a section providing that a board of trustees should, within 30 days after the death of a member of the police department, dying in active service, if he was a married man, pay a stipulated sum to his widow while she remained unmarried. There was also a provision for the payment of a stipulated sum to the children of the deceased member. Said section of the by-laws further provided that if a member was not survived by a wife, or child under 16 years of age, a certain sum should be paid to a mother dependent upon him for support, and, if there was no such mother, such sum was to be paid to a dependent father. The by-laws provided that:

“The decision of said board of trustees shall be final on all questions of dependency arising under those sections.”

The relator averred in her petition that she was married to Little in 1911, and that he died leaving her surviving him, as widow, and a surviving child under the age of 9 years as the lawful issue of such marriage.

The respondent’s answer substantially admits all the allegations of the petition except those alleging wifehood and widowhood in the relator. In a second defense it alleged that on September 24, *5281919, the relator filed her petition for divorce against her husband; that service was had on hi-m and the cause heard by one of the judges of the common pleas court; and that at the conclusion of the hearing on November 14, 1919, and in the presence of the relator and her attorney, the court granted a divorce to relator. The allegations pertaining to the divorce were denied by the reply of the relator. The cause was heard upon the pleadings and certain stipulations made by counsel in the Court of Appeals. It was admitted that there was sufficient money in the police relief fund in charge of the trustees to pay the claim of the relator were it to be allowed. On the question of divorce the following stipulation of fact was agreed to:

“It is stipulated by and between counsel for the relator and the defendant: That on the 20th day of September, 1919, the relator, Jessie Little, commenced an action for divorce in the court of common pleas of Summit county, Ohio, against the defendant, Austin O. Little, said cause being numbered 30422. That on the 17th day of November, 1919, said cause came on for hearing, oral evidence was introduced before the court, and, at the conclusion of the evidence, the court orally announced from the bench, ‘Divorce granted, on the ground of gross neglect’ — all of which is evidenced by the transcript of testimony taken by the official stenographer a.t that time. This oral decision of the court was not recorded or journalized, and appears only in the form of transcribed notes of the court stenographer who took the testimony, and the oral announcement of the court from the bench. That, *529on the 4th day of April, 1921, the following entry was filed, was approved by the court of common pleas, and filed and recorded in the records of said court in said cause: ‘This cause is ordered dropped from the docket.’ That no other or further orders have been made in said cause.”

The reason for the denial of pension to the relator is shown by the following resolution of the board:

“Be it resolved by the board of trustees of the Police Relief Fund that Jessie Little was not the widow of Austin C. Little at the time of his decease, and is therefore not entitled to pension under Section 30 of the rules and bylaws governing the Police Relief Fund.”

On the facts admitted by the pleadings and stipulations by counsel the Court of Appeals found that the relator was not entitled to the relief prayed for, and dismissed her petition. Whereupon error was prosecuted to this court.

*Messrs. Smoyer, Glinedinst & Smoyer,*for plaintiff in error.

*Mr. H. M. Hiagelbarger; Mr,. G. T. Moore,*and *Mr. W. A. Kelley,*for defendants in error.

By the Court.

That portion of the section of the by-laws making the decision of the board of trustees final on questions of dependency has no bearing upon this case, since under the by-laws the feature of dependency may affect the dependency of others, but does not affect this widow. Under the stipulation the relator was still the member’s wife at the time of his death, and became thereafter *530his widow, within the purview of the by-laws. While it is true that she had filed an action for divorce against her husband, it indisputably appears that no decree was ever entered on the journal, nor upon any other record of the court. The only journal entry made was one dropping the cause from the docket.

According to its opinion, the Court of Appeals had no difficulty in determining that the relator was not divorced. However, it held that mandamus could not be employed to control the discretion of the trustees of the police relief fund, especially where they had “interpreted their rule not to include as a widow one who was separated from her husband, and had submitted her divorce case against him to a court.” In this state we have special statutory provisions providing for the establishment of the police relief fund, for the method of electing its trustees, and for the maintenance of the fund by taxation, and by fines and penalties imposed upon members of the department. It is not a voluntary association, but is one controlled by statutory enactment.

Section 4628, Gr'eneral Code, provides that the “trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid.”

Acting within the statutory authorization, rules and by-laws were adopted “governing the Police Relief Fund of the city of Akron.” Section 30 of those by-laws required that the board of trustees, within 30 days after a member’s death, should pay stipulated monthly sums to his widow while she *531remained unmarried. Under this by-law the board was required to pay a definite -stipulated sum named therein.

Under the conceded facts the relator was just as much the member’s wife and widow as if she had never brought the suit for divorce. No interpretation of the by-law was necessary, and, when the board sought to interpret it in such a way as to constitute one who had merely applied for a divorce not to be his widow, its action was an arbitrary one and was not an exercise of discretion. Were we to recognize the conduct of the board in this regard it would permit the board of trustees to render the plain terms of its by-law entirely nugatory. When the member died, leaving the relator incontrovertibly hisi widow, under the statute and the by-law thereunder adopted, it became the ministerial duty of the respondents to allow and pay the monthly sum stipulated in the by-law for the benefit of the widow beneficiary.

Under the facts presented the writ of mandamus may be employed to compel such action. The judgment of the 'Court of Appeals is reversed, and, proceeding to render the judgment which that court-should have rendered upon the conceded facts, judgment is here rendered in favor of the relator, and the cause is remanded to the Court of Appeals for execution.

*Judgment reversed, and judgment for plaintiff in error.*

Marshall, C. J., Robinson, Jones, Allen, and Conn, JJ., concur.