dissenting:
I respectfully dissent from the decision of the Court in this case. It is my opinion that the addition of the words “who has complied with Section 6 of this Article”, to the first proviso of Section 4 by the 1949 Amendment, was not intended to have the far reaching effect attributed to them by this Court.
The employees retirement and benefit fund legislation, first enacted at the Regular Session of the Legislature, 1947, was applicable to all cities of this State with a population of more than 15,000. These cities were authorized, but not required, to establish such funds. Any change that was made by Acts of the Legislature, 1949, was applicable, not only to the Wheeling fund, but to all others.
Section 6 contains a table providing for the sums to be paid to an employee upon retirement conditioned upon the number of years that he had been in the employment of the city. For example, with twenty-three years of “total *883service credits”, he would be entitled to retirement payments based upon fifty per cent of his average salary for his last fifteen years of service. The minimum service for retirement required “ten years of total service credits”, and retirement payments would be based upon twenty-five per cent of average salary for the term of service. Under Section 8, death benefits would not be payable unless the deceased employee had had ten or more years total service credits at the time of his death. If it had been the intention of the Legislature to remove the five year waiting period from those entitled to death benefits, while retaining it as to those entitled to retirement benefits, it certainly would have been done by language other than the vague and indefinite phrase “who has complied with Section 6 of this Article.”
It must be noted that there was a further proviso added to Section 4 by the 1949 Amendment: “Provided further, That the municipality with the approval of the trustees of said fund may retire any member prior to the expiration of said five years.” That language, standing alone, would have provided for a violent change in the Act, the entire table contained in Section 6 would have become useless, prior service would have meant nothing, and such funds would have been placed in a most precarious position as to solvency. Without some restrictive language, the last quoted proviso would have permitted a municipality, with the approval of the trustees of the fund, to employ an individual one day and place him on retirement the next day. I would interpret the words, “who has complied with Section 6 of this Article”, as being a restraint upon the new proviso so that no employee, even with the consent of the municipality and the approval of the trustees of the board, would be eligible for retirement and participation in the fund until he had complied with Section 6 by earning at least a minimum of ten years of total service credits. These were the only changes made in the original Act by the 1949 Amendment, and, inasmuch as both changes were contained in provisos to Section 4, it must be presumed that they had some relationship to *884each other, in the absence of unambiguous language to the contrary.
While the Court has applied the language of this statute, rendering the testimony relative to the construction given to it by the board of trustes of the fund who had the duty of executing it as immaterial and irrelevant, it is interesting to note that the board consistently refused to award death benefits prior and subsequent to the 1949 Amendment. Ironically, the husband of the relator was a member of that board, and one of the sponsors of the legislation. Perhaps the contemporaneous construction of the statute by the members of the board, charged with the duty of enforcing it, has not been recognized and acquiesced in over a sufficient period of time to lend credence to it. Assuming that to be true, I would reach the same result by interpretation of the Amendment to the first proviso to Section 4 in the manner heretofore stated.
I would reverse the judgment of the Circuit Court of Ohio County and discharge the writ of mandamus. '