#### State ex rel. Schaetzle, Respondent, vs. Knowles and others, Trustees, Appellants.

*February 23*

March *14, 1911.*

*Municipal corporations: Firemen’s pension fund: Statute construed.*

1. Under sec. 959 — 46w, Stats. (Laws of 1907, ch. 214), — providing that any member of a fire department of a city of the second, third, or fourth class “having served twenty-two years or more in such department” shall, upon retirement or discharge, have a monthly pension “equal to one half of the monthly compensation allowed such member as salary at the date of his retirement” or discharge, — one who served during a part of the twenty-two years as a volunteer, not devoting his whole time to the service, is entitled to the pension if there is a monthly compensation incident to his service at the time of its termination.

2. *It seems*that the “monthly compensation allowed ... as salary,” by which the pension is to be measured, need not he in the form of a stated amount per month, but may be a specified sum per year, payable annually, quarterly, monthly, or otherwise.

Appeal from an order of tbe circuit court for Ashland county: E. C. Higbee, Judge.

*Affirmed.*

*Mandamus*action to compel tbe trustees of tbe firemen’s pension fund of tbe city of Ashland, Wisconsin, to place tbe name of relator on tbe pension roll.

Eacts were stated in tbe petition and alternative writ appropriate to tbe question of whether relator was eligible for a pension under cb. 214, Laws of 1907. It was stated that be became a member of tbe fire department in April, 1887; that be was made captain in 1893, assistant chief May, 1895, chief in 1897, and was discharged July 1, 1909, having been in continuous service over twenty-two years, with compensation of $52 per year at first, increased later by $1 per hour actually spent at fires, and later to $250 per year upon bis being made assistant chief, further increased to $600 per year upon bis being advanced to tbe position of chief, and later to $840 per year, and lastly to $1,000 per year. Erom tbe time be en*524.tered tbe service to September, 1891, be devoted only a portion of bis time thereto and tbe rest to bis profession as a barker. Thereafter be devoted all bis time to tbe public service .as fireman. Upon tbe taking effect of cb. 214, Laws of 1901, >the city council acted thereunder and continued to do so up to tbe time relator was discharged, be contributing bis proportion of tbe pension fund. Such fund has never amounted to $50,000. There is no beneficiary thereof as yet. By reason ■of tbe facts stated relator is entitled to receive from such fund since tbe time of bis discharge $41.66 per month, or one half the monthly wages be was then receiving, so far as such fund will go for that purpose. He applied for such payment but tbe trustees refused to pass favorably on bis application.

An alternative writ was issued to coerce tbe trustees into .granting relator’s application. Tbe trustees appeared and moved to quash tbe proceedings for insufficiency of facts to •warrant tbe relief sought. Tbe motion of respondents in such proceedings and their demurrer to tbe petition were overruled.

The cause was submitted for tbe appellants on tbe brief of *W. S. Gate,*and for tbe respondent on that of *Sanborn, Lamr ■oreux '& Pray.*

MaRshall, J.

Tbe appeal presents tbe question of whether, under cb. 214, Laws of 1901, as to a fireman who "had been in service before tbe act, part of tbe time as a volunteer; one not required to spend time in tbe service so as to •preclude him from giving bis attention in part to private affairs and not drawing a monthly salary, as in case of members of paid fire departments in many cases, tbe period covered by tbe mixed vocation is countable in making up^ tbe twenty-two _years requisite to eligibility for a pension. Tbe law is as follows:

> “Any member of tbe fire department of any such city, having served twenty-two years or more in such department, may *525make application to said board to be retired from stick department, or be may be retired by tke said board of its own motion; in either wkick case said board shall order and direct that such member shall be paid a monthly pension of a sum equal to one half of the monthly compensation allowed such member as salary at the date of his retirement, or if any member shall be discharged after serving twenty-two years or more, the said board shall order or direct that such person shall be paid a monthly pension equal to one half the monthly compensation allowed to such member as salary at the date of' his discharge.” [Sec. *959*— 46n, Stats.]

W-e are unable to see any legitimate ground for reading the-foregoing as if the words — who has received a monthly salary during the whole of such time and devotéd his whole time to the service — or words of similar import were in place by implication after the words “in such department” so as to-exclude service under the conditions which characterized that of respondent during his early connection with the fire department. There is no rule of judicial interpretation which would justify or even suggest taking such liberty with the statute as we look at the matter. “Any member of the fire department of any such city, having served twenty-two years or more in such department,” does not seem to have any qualification as to whether the department is on a salary basis, or volunteer basis, part of the time. The call is for a fire department — an organization in the ordinary way as part of’ the municipal machinery — membership therein, service for the period of at least twenty-two years, and a monthly compensation incident to the service at the time of its termination.

It is by no means clear that the monthly salary feature requires the compensation to be awarded in form as a stated amount per month, instead of a specified sum per year, payable annually, quarterly, monthly, or otherwise. That feature of the law seems to be to the effect that the compensation of the ex-officer shall be one half as much per month as he re*526ceived as an equivalent for bis service covering sncb a period at the termination of his connection with the department.

The foregoing accords with the decision complained of.

*By the Gourt.*— The order is affirmed.