#### City of Morgantown *v.*Board of Trustees of The Firemen’s Pension or Relief Fund

(No. 8184)

Submitted April 30, 1935.

Decided May 7, 1935.

*247
      *Kermit R. Mason,*for relator.

*Wm. S. John,*for respondent.

Woods, Judge :

The city of Morgantown, a municipal corporation, seeks, by mandamus, to require the Board of Trustees of the Firemen’s Pension or Relief Fund to deliver certain United States government bonds, representing the fund, into the hands of the regularly appointed treasurer of the city, as the duly designated custodian thereof.

The petition, which was filed April 9, 1935, avers, among other things, that three of the trustees are in possession of government bonds valued at $10,250; that said trustees are not under bond, and have not furnished any security conditioned to account for such funds; that the city “employs a treasurer, * * * who has entered into a bond in the sum of Twenty-five Thousand Dollars ($25,000), with good and sufficient security, conditioned to faithfully discharge the duties of his office, and to account for all money that may come into his hands in his official capacity”; and that such treasurer is, by Code 1931, 8-6-15, made custodian of such funds.

The Board, in answer, avers that the section referred to has no application to permanent investments, such as government bonds, or the monthly assessments collected by it from the members of the fire department, but only to the taxes arising from the special levy provided for in section 14, and that such being the ease the bond given by the city treasurer does not insure the safe-keeping of such permanent investments; that by virtue of section 11 (Code 1931, 8-6-11) the *248board is a corporation which, may sue or be sued, and is authorized to “take and hold real estate and personal estate for the use of said Firemen’s Pension or Relief Fund,” and “do and pei'form any and all other acts and business pertaining to the trust created hereby.”

The rights of the parties must be determined by the provisions of a very recent statute, amending and re-enacting certain sections of the article involved. House Bill No. 167, passed March 8, 1935 (Ch. 69, Acts of 1935), effective from passage. Section 15, article 6, chapter 8, Code 1931, as therein amended and re-enacted, provides:

> “The treasurer of every municipality shall be custodian of all funds of the firemen’s and policemen’s pension or relief fund, and shall deposit and pay out the same upon and in accordance with any proper order of the board of trustees. Such treasurer shall be liable upon his official bond as treasurer for the faithful performance of his duties in respect to such fund or funds, and the official bond of the treasurer covering such fund or funds shall be executed with a good and financially responsible surety company, authorized to do business in this state, as surety for such funds. Such fund or funds shall not be used for any other purpose than provided herein.”

We are of opinion that “all funds” as used in the above quoted section is all inclusive and includes securities purchased with moneys coming into the firemen’s and policemen’s pension or relief fund. But before the city may require the securities involved in the instant case to be delivered over to its treasurer, it must show by affirmative averment that the bond required in said section 15, as amended and re-enacted, has been given. Having failed to so aver, the writ must be denied. *State ex rel. Smith*v. *County*Court, 78 W. Va. 168, 88 S. E. 662.

*Writ denied.*