The opinion of the court was delivered by: MCGUIRE
Motion to dismiss denied.
This is a complaint for a money judgment and mandatory injunction brought by a widow of a member of the Metropolitan Police Force, on military leave, and who died in the military service.
The complaint is brought in her own right and as next friend of her three children -- all minors and under the age of 16.
The facts are brief and simple: After the death of her husband, a Lieutenant in the Marine Corps who died in New Zealand on June 17, 1942 (Thompson had enlisted in the Marine Corps Reserve in 1929 while a member of the police force and remained in reserve status until called to active duty in November of 1940, when he went on military leave), the widow made timely application for a pension to the Police and Firemen's Retiring and Relief Board under the provisions of Title 4, Sec. 507, D.C.Code, Ed. 1940. This application was denied by the Board and its findings approved by the Commissioners on August 24, 1942. This action followed.
The pertinent section of the statute involved reads as follows: 'In case of the death of any member of the police department or of the fire department of the District of Columbia, before or after retirement from the service thereof, leaving a widow, or a child or children under sixteen years of age, the widow shall be entitled to receive relief from the said policemen and firemen's relief fund, District of Columbia, in an amount not exceeding $ 60 per month, and each child under the age of sixteen years in an amount not exceeding $ 10.00 per month.' (Italics supplied.)
The part of the section immediately preceding (Title 4, Sec. 507, supra) provides for retirement on application for officers 'disabled through injury received or disease contracted in the line of duty as to incapacitate * * * ' and under other circumstances not material here.
It is argued therefore that the part entitling relief to the widow and children in case of death must be read in pari materia and construed to mean death as a result of injury or disease sustained or contracted in line of duty.
I cannot agree. The section cited together with others with which we are not directly concerned constitute the pension system of the District of Columbia for policemen.
They all have their origin in the act of February 23, 1885, 23 Stat. 316, chap. 145. This act created a police fund to 'be used for the relief of any policeman who, by injury received or disease contracted in line of duty, or having served not less than fifteen years, shall become so permanently disabled as to be discharged from service therefor; and in case of his death from such injury or disease, leaving a widow or children under sixteen years, for their relief.' The relief provided by this act 'shall not exceed for any one policeman or his family the sum of fifty dollars per month.'
This is substantially the provision as found in the present law (Title 4, Sec. 507, supra) with this notable exception; the clause 'in case of his death from such injury or disease, leaving a widow * * * ' is changed, in that there is no qualifying or limiting language with reference to the phrase 'in case of the death.'
This appeared for the first time in the District of Columbia appropriation bill for the fiscal year 1917 which became law September 1, 1916, 39 Stat. 718, ch. 433, Sec. 12, Title 4, Sec. 507, D.C.Code, Ed. 1940, and has remained an integral part of the police pension law ever since.
True, the District Court of last resort in construing the section as it was previous to the 1916 change, has held that it must be read pari materia with the paragraph which immediately preceded it and in relation to the original act of 1885 -- and that the words 'in case of the death from injury or disease' meant a service connected injury or disease. Rudolph v. United States ex rel. Stuart, 1911, 36 App.D.C. 379.
Nor does the legislative history of the section with reference to it shed light of different character upon the subject. Apparently there was neither committee hearing, or report with respect to it.