
    Heffernan et al. v. The State, ex rel. Holloway, Gdn.
    (Decided January 16, 1931.)
    
      Mr. A. B. Underwood, director of law, Mr. M. E. Snyder and Mr. Alexander S. Greenbaum, for plaintiffs in error.
    
      Mr. G. T. Moore and Messrs. Musser, Kimber & Huffman, for defendant in error.
   Washburn, J.

An action in mandamus was brought in the common pleas court to compel the board of trustees of the police relief fund of the city of Akron to designate Ruth Irene Holloway, an infant daughter of a former policeman, as a beneficiary of such fund, and to order paid to her a monthly pension.

Upon trial the court granted the relief sought, and that judgment is before this court for review upon a petition in error,

It is conceded that the judgment should be affirmed if said policeman died while in actual service within the meaning of rule 19, as made by said board, which provides for a pension for the child or children of a member of the police department “who died either in actual service, or while on the pension roll.”

Said policeman was a regular and active member of said police department on January 27,1930, when, at 11 p. m., in accordance with the rules and regulations of the department, he went off duty for the day; before morning, while in civilian clothes, and at a place outside of the city of Akron, he was shot, and within twenty-four hours thereafter he died. He went to said place solely for purposes of his own, entirely disconnected with any police service, and his being shot was due entirely to his conduct, which it is claimed was not only unlawful but criminal, and for the purpose of this decision we assume that at the time he was shot he was violating the criminal laws of the state and that the person who shot him was fully justified in doing so.

Within the meaning of said rule, when does a policeman die in actual service? Is it only when he dies in the performance of his duty? Is it within the rule if he dies from heart failure while walking his beat, and not within the rule if he dies from heart failure while walking along the street after his duties for the day have been performed?

There is no provision in this or any other rule of the board which makes the right to a pension under rule 19 depend upon whether death is caused by the service rendered, or whether the death is in any way the result of the service rendered; all that is required is that the officer die while in “actual service. ’ ’

The rules of the police department require a policeman to devote all of his time to the service; of necessity he is allotted certain periods for rest and recuperation, during which time he is off duty, hut he is subject to call at all times; during the time allotted for resting so as to be able to return to duty, is he not in actual service, within the meaning of said rule 19 ?

After careful consideration, we are of the opinion that the trial court was right in holding that said decedent was in actual service. Any other construction of the language used would limit pensions to cases of death of a policeman while in the performance of duty; and, as death from natural causes almost never occurs while on duty, pensions would in most cases be confined to cases of death by violence —eases where death was the result of the service; if it had been the intention of those who made said rules to so limit the benefits from said fund, it would have been easy to have used language clearly indicating said intention, such as “while in the performance of his official duty.” In other rules where such limitation was intended, such language is used, and the failure to use such language in rule 19 indicates an intention not to confine pensions to cases of death while in the performance of duty, and we think that the general object and purpose of the rules as a whole indicate such intention, and that, within the meaning of rule 19, a duly appointed and qualified policeman who regularly works during recurring duty hours is in actual service while off duty during the regularly recurring rest hours provided for by the rules and regulations of the police department.

Therefore the policeman in question in this case died while in actual service, and the beneficiary has a right to the pension, unless the fact that such policeman was engaged in unlawful and criminal conduct at the time he was shot operates in some manner to deprive her of that right.

As to that, it is claimed that, when such policeman engaged in such conduct, he ipso facto ceased to be a policeman.

With that contention we do not agree; he was a policeman until his relation to the department was terminated either by death or in accordance with the rules of the department.

It is further contended that the object of the police pension law is to promote the efficiency of the service, and that such object would be defeated by the granting of a pension to the child of a policeman who was killed while engaged in criminal conduct, or violating the laws which it was his sworn duty to uphold, and that those who adopted said rules never intended such result.

We are not permitted to determine the intention of the framers of the rules by our idea of what the rules ought to be; their intention must be ascertained from a consideration of the language used in rule 19, in connection with the provisions of the other rules adopted by them. It seems to us that the words “actual service,” in the phrase “died while in actual service,” are descriptive of a period of time, and do not refer to what the policeman is doing at the time of death; cause of death is not made a factor; and we find nothing to indicate an intention to make the pension provided for in rule 19 depend upon the conduct, whether lawful or criminal, of the policeman who dies while in actual service.

In another rule, it is provided that the right of a policeman to a pension shall be forfeited if he is injured while playing football, or while- engaged in prize fighting, automobile racing, etc.; but no similar provision is made for forfeiture of the right to a pension under rule 19. It may be readily granted that the rules should contain such provision, but the court cannot amend the rules, or by interpretation supply an omission made by those who adopted the rules. The board has power to amend and perfect its rules, but, until that is done, the court must enforce them as they are.

Judgment affirmed.

Funk, P. J., and Pardee, J., concur.  