Roy G. ROBINSON, Appellant,
POLICE PENSION BOARD for the CITY OF TUCSON, Appellee.
[85 Ariz. 385] William F. Kimball, Tucson, for appellant.
F. Dale Healy, Jr., Tucson, for appellee.
This appeal is by plaintiff who sued in the trial court for a declaratory judgment that, as to him and others similarly situated, the Legislative amendment in 1952 of the 'Police Pension Act of 1937' was void and unconstitutional, and praying for the fixing of his pension under the terms of the first [85 Ariz. 386] of the two legislative enactments. The trial court by its judgment upheld the applicability and constitutionality of the amendment. The instant appeal presents another facet to the problem determined in the recent case of Police Pension Board for City of Tucson v. Denney, 84 Ariz. 394, 330 P.2d 1. Incidentally, the present case was decided below and this appeal taken and briefs written by the parties prior to our decision in the Denney case.
The undisputed facts are these: Roy G. Robinson, plaintiff-appellant, retired from the Tucson city police force on July 16, 1953, after having completed more than twenty years of service. He claimed pension benefits under the terms of the Police Pension Act of 1937 (Ch. 40, L. '37) which was enacted after he became a policeman. A 1952 amendment (infra) forms the basis for the allowance made to plaintiff by defendant-appellee Police Pension Board for City of Tucson. We shall hereafter refer to the parties as 'plaintiff' and 'the Board'.
The Board conceded plaintiff was entitled to a pension but computed the amount due under the provisions of Ch. 93, S.L.1952, the pertinent part of which reads:
'Computation of pension upon voluntary retirement or upon mandatory retirement; limitation
'A. A member of the police department whose membership began prior to July 1, 1952 and who serves the department twenty years in the aggregate may, upon application, be retired, and shall be paid during his lifetime a monthly pension equal to fifty per cent of the average monthly compensation received by him during the period of five years immediately prior to the date of application for retirement. * * *' (Now appearing as A.R.S. § 9-925, subd. A),
whereas plaintiff contends it should have been computed upon the basis of the 1937 law (as amended in 1939), which appears as Section 16-1808(b), A.C.A.1939. The latter statute provides for fifty percent of the average monthly compensation received by him during the period of one year immediately prior to the date of application for retirement. Were this statute followed, plaintiff's pension would be increased monthly by $22.54.
Plaintiff in his own behalf, and for others similarly situated, brought this action to have the statutes in question construed. Issues were framed and, there being no factual question to determine, the court granted the Board's motion for summary judgment. It found that as a matter of law the 1952 amendment, supra, was neither void nor unconstitutional as to plaintiff or others similarly situated, and that hence the action of the Board was correct. After entry of judgment this appeal followed.
[85 Ariz. 387] The single question presented by this appeal is whether it was constitutionally competent for the Legislature to change the basis of computing the amount of pension in a manner unfavorable to the plaintiff, especially at a time so near to the end of the period at which the plaintiff would become entitled to a pension and his right to it be earned and perfect. In different words the question is one as to whether in 1952, when the amendment took effect, the rights of plaintiff under the 1937 law providing for the pension were so perfect and vested that he could not be constitutionally deprived of them.
The underlying problem is the correct determination of the extent and nature of the plaintiff's rights under the 1937 Act providing for the pension, and their status at the time of the amendment. If those rights rested upon contract and were vested it must be clear that plaintiff could not be deprived of them by the unilateral action of the Legislature. This is a firmly established principle in our Constitutional system.
In finding an answer to this question the following quotation from McQuillin, 3rd Ed., Vol. 3, Section 12.144, is helpful:
'According to the majority view, the law as to pensions existing at the time one enters into public service does not form a part of the contract of employment in the sense that the rights to the benefits which would accrue under the then existing law are vested property rights of which such person cannot be deprived by any subsequent act of the Legislature. * * *'
This rule so clearly represents the holding of the majority, countrywide, that it may fairly be said that support for a contrary view may be cited from only three states,--California, of which Kern v. City of Long Beach,29 Cal.2d 848, 179 P.2d 799, is typical; Washington, as represented by Bakenhus v. City of Seattle,47 Wash.2d 695, 296 P.2d 536; and Georgia, as represented by Bender v. Anglin,207 Ga. 108, ...