#### CITY OF LEXINGTON et al. v. WILBURN.

Court of Appeals of Kentucky.

March 5, 1954.

*778Foster - Ockermán, Lexington, for appellants.

Harry B. Miller, Jr., Lexington, for ap-pellee.

WADDILL, Commissioner.

Appellee, Jesse Lee Wilburn seeks a' declaration of his rights under KRS 95.-54Q and 95.560.

The judgment, appealed from.was entered uppn a motion for summary judgment, but for the purpose of this .opinion we shall assume the following facts to be established : In October, 1952, at which . time appellee had been a member of the Police Department of Lexington, a city of the second .class, for over 20 years,- the last .5’years of which time he had served consecutively, he.applied for a pension as provided in KRS 95.560 and the application was denied for the reason that he had not complied with certain regulations adopted by the pension board.

■ Pertinent provisions of the two 'statutes in question are as follows:

> -,“95.540 Rules; .applications; records ; reports.

> “(1) ,The board of trustees of the pension fund in cities of. the second and third clakses may- make all necessary rules for its government in the discharge-of its duties, and shall hear and. decide all applications for benefits or; pensions. Its decisions on these applications shall, be .conclusive, and not subject to revision or reversal, except by the board. A'record shall be , kept of the meetings and ¡proceedings of the board. *, 3⁄8 ' * .,

> “95.560 Pensions on retirement. (1) In cities of the second class,, the pen-" sions or benefits paid from pension funds on retirement shall be as follows: "(a) Any member óf 'the police or fire department having served twenty years or longer and the last five years thereof consecutively, may petition the board of trustees of the pension fund for retirement, and upon-it being established- that he is reasonably' entitled to retirement the board shall order paid to him monthly fifty percent of his monthly salary at the- time of retirement.

The pension fund ¡is made up of revenue from a special city tax and in addition thereto of assessments up to 4% of policemen’s and firemen’s annual salaries.

■ - Appellants, the' trustees of the fund, are -the may'or of Lexington, the City treasurer, the police ■ chief, the fire chief, ■ and' two policemen and two' fi'remén elected by the'ir own members.

In this class suit for a declaratory 'judgment, the sole question we 'are calléd upon to decide is whether KRS 95:560 is self-executing in that an applicant for a pension need only satisfy the requirements s.et forth in the, statute to be automatically entitled to the pension,' or whether the trustees of the fund may establish additional requirements in determining who is “reasonably entitled” to retirement.

In answering this question we must bear in mind that it is not the only purpose of the fund to constitute a retirement annuity. The contributors to the fund are at all times during their employment protected by the fund against death or injury. It is a distinct possibility that the income sources of the fund, which are limited by the statute, would vbe insufficient to keep the fund from being depleted ‘if the'trustees of the fund were not allowed to safeguard it by making reasonable rules to determine entitlement to benefits. Naturally, such rules, when adopted, -would have to be followed impartially by the trustees.

-The learned trial judge held that KRS1 95.560 was self-executing, and therefore,-the board of trustees of the pension fund had no discretion, under the rules and regulations ■ adopted by 1 it, to "deny pensions to-those persons who were eligible -to apply for pensions tinder 'the statute. However, we think the court- misconstrued ■the statute. As we read and construe the *779statute the legislature gave the pension board the right to adopt regulations to determine who' is “reasonably entitled” to a pension. Certainly it was within-the power of the legislature to vest in the board of trustees of the pension fund the authority to adopt rules and regulations and to make findings concerning all "matters arising under the statute. '

It is unnecessary for us to determine in this suit-the question of the fairness :or reasonableness of the -rules and regulations which were in effect at the time this action was instituted because the judgment appealed from, merely, declared that KRS 95.560 was self-executing.

Wherefore the judgment-is.-reversed for proceedings not inconsistent, .with this opinion.