dissenting. I agree with the majority that the issue in this case is purely one of statutory construction, but I am unable to read out of § 2, Act 206 of 1959, the legislative intent the majority seems to read into it.
Officer Kerr retired from the Little Rock Police Department February 5, 1952, and received a retirement pension in the amount of $125 per month. On December 19, 1952, he married the petitioner, Lucille Kerr, and they remained married to each other until Officer Kerr’s death on August 31, 1957. Mrs. Kerr has not remarried but remains the widow of Jack Kerr. Officer Kerr retired and started drawing his benefits under the provisions of Act 67 of 1941 which remained in effect until repealed by Act. 206 of 1959.
The Policemen’s Pension and Relief Fund was originally created by Act 250 of the Acts of the General Assembly for 1937. As originally enacted, it applied to cities of not less than 16,000 inhabitants and by amendment in 1939 the number of inhabitants was lowered to 8,000. The 1937 Act, after providing for the creation, financing and administration of the pension fund, then provided by § 8 as follows:
"If any member of said department shall, while in the performance of his duty, be killed or dies as a result of injuries received in the performance of his duty, or shall die of disease contracted by reason of his occupation, or shall die from natural causes while in said service, shall leave a widow or child or children under the age of 16 years survive, the said board of trustees shall direct a payment from said pension and relief fund monthly to such widow, while unmarried, of fifty ($50.00) dollars, and for each child until it reaches the age of 16 years ten ($10.00) dollars, should he leave no widow or children, but a widowed mother, solely dependent upon his support, the board shall pay the sum of fifty ($50.00) dollars monthly, as long as she remains unmarried. Provided, that any member of the police department retired and pensioned under the provision of this Act shall die while so retired and pensioned, leaving a widow or children or widowed mother surviving, shall be entitled to a pension under this act.”
It is clear to me that if Officer Kerr had retired and been pensioned under the provisions of this 1957 Act, his widow would have been entitled to pension benefits following his death. When Officer Kerr did retire and start receiving his pension in 1952, there were two Policemen’s Pension Fund Acts in effect. As above stated, the 1937 Act applied to cities with 8,000 or more inhabitants and Act 67 of 1941, under which Officer Kerr received his pension, provided for a policemen’s pension and relief fund in cities having a population of 75,000 and a paid police department in excess of 60 policemen. After providing for financing and administration of the fund under this 1941 Act, § 18 then provided as follows:
“If any policeman or retired policeman shall die, leaving a widow, the Board shall pay the widow a pension of Fifty ($50.00) Dollars per month so long as she remains unmarried, and if the deceased shall leave surviving him children under the age of eighteen (18) years, each child shall be paid Ten ($10.00) Dollars per month until it reaches the age of eighteen (18) years, if it remains unmarried. Provided that no family of a deceased policeman or deceased retired policeman shall receive a total pension of more than Seventy-Five ($75.00) Dollars per month. Provided further, that if any policeman marries after he is retired, his widow shall not be entitled to any pension under this Act.” (Emphasis added).
It will be noted that the 1941 Act provided the same monthly benefits to the widow and dependent children as did the 1937 Act except that the 1941 Act limited the total amount to be paid a widow and dependent children to $75 per month, and the 1941 Act provided benefits for dependent children until 18 years of age rather than 16 as provided in the 1937 Act. The 1941 Act also provided that if a policeman should marry after retirement, his widow would not be entitled to a pension under the Act.
The 1941 Act repealed all laws or parts of laws in conflict with it, and the only law in conflict with it was the 1937 Act as amended in 1939. Thus the 1937 Act remained in full force and effect except in cities having a population of 75,000 and police department in excess of 60 policemen. It was while both the 1937 and 1941 Acts were in effect that Officer Kerr retired from the police force, started receiving his pension, and married Mrs. Kerr in 1952, and died in 1957. Mrs. Kerr, was the widow of Officer Kerr after his death and would have been eligible for widow’s benefits under the 1937 Act had Officer Kerr been receiving benefits under that Act rather than under the 1941 Act applicable to cities of 75,000 population. The only reason Mrs. Kerr was not entitled to a pension upon the death of Officer Kerr was because the 1941 Act simply said: “If any policeman marries after he is retired, his widow shall not be entitled to any pension under this Act.” Officer Kerr married Mrs. Kerr after he retired, so there is no question that Mrs. Kerr was not entitled to a pension under the 1941 Act.
In 1959 the situation changed as to widows and dependent children of deceased policemen, for by Act 206, of 1959, the 1941 Act applying to cities of 75,000 was repealed outright in its entirety, § 2 of the 1959 Act being as follows:
“From and after the effective date of this act policemen’s pension and relief funds that have been established in cities of seventy-five thousand population, or over, shall be assessed, collected, administered and benefits paid in accordance with the provisions of Act No. 250 of the Acts of the General Assembly of The State of Arkansas of 1937, and all Acts amendatory thereto. Provided, however, that nothing herein shall alter, amend or change, increase or diminish, any retirement benefits being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman, at the time this act goes into effect. Provided, further, that the ten per centum of all fines and forfeitures collected by the police department of such city for violations of city ordinances and added to such pension funds as provided by said Act 250 of 1937, as amended, shall not apply to any city that now has, or hereafter has, an assessed property valuation in excess of $80,000,000.00” (Emphasis added).
The only reason Mrs. Kerr did not start receiving a pension under the 1937 Act upon the death of Officer Kerr in 1957, was because the 1937 Act was in conflict with the 1941 Act and no longer applied to cities having a population of 75,000. It is my opinion, therefore, that when the 1941 Act was repealed in 1959, the conflicting provisions of the 1937 Act were no longer conflicting and again became applicable to all cities having at least 8,000 inhabitants, and that the appellant Lucille Kerr became eligible for pension benefits under the provisions of the 1937 Act.
The majority recognize the rule announced in Looper v. Gordon, 201 Ark. 841, 147 S. W. 2d 24, where we said:
“Pension acts should be -liberally construed in favor of those to be benefited. The rule is stated in 43 C. J. 813, § 1408, as follows: 'Like other pension laws, pension acts applicable to members of the police force will be liberally construed.’ Again in § 1493, the rule is stated: 'As in the case of other statutes, pension acts applicable to firemen should be construed to give force and effect to the legislative intent as embodied therein. The purpose of the acts being regarded as beneficial, they should be liberally construed in favor of those to be benefited.’ ”
It seems to me that the majority reads far more legislative intent into the proviso of § 2 of the 1959 Act than I am able to read out of it. We may reasonably assume that there were dependent children between the ages of 16 and 18 drawing $10 per month under the provisions of the 1941 Act and when the 1941 Act was repealed by the 1959 Act, the legislature simply provided: "... that nothing herein shall alter, amend or change, increase or diminish, any retirement benefits being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman, at the time this act goes into effect.” (Emjphasis added). I simply cannot read into this language any legislative intent at all relative to the rights of a widow to whom a pension is not being paid. As I construe the language, it only applies to retirement benefits “being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman.” (Emphasis added).
I would reverse the judgment in this case and remand with directions to grant the petition for a writ of mandamus directing the respondents to process Mrs. Kerr’s petition for benefits under the 1937 Act.
Byrd and Holt, JJ., join this dissent.