Connick v. City of Chehalis

Finley, J.

(concurring in the result)—This court recognized in Bakenhus v. Seattle (1956), 48 Wn. (2d) 695, 296 P. (2d) 536 , and Eisenbacher v. Tacoma (1958), ante p. 280, 333 P. (2d) 642 , that the legislature can, constitutionally, modify pension and relief rights of policemen and firemen so long as the modifications are equitable to the employee. This, then, should be the basic premise of the court in dealing with all questions involving statutory pension rights of policemen and firemen. I believe this requires the court to look first, always, to the latest legislative enactment —to determine whether the legislature intended it to apply *292 to the pensioner before the court; and, if so, whether it can constitutionally be applied to such pensioner.

If we adopt this approach in the case at bar,- we would examine the firemen’s pension and relief acts in the reverse order of their passage.

The superior court judgment in the instant case was entered on March 1, 1957. This was prior to the effective date of chapter 82, Laws of 1957, pages 330-336, so the possible modification of appellant’s pension rights by § 3 of that act is not before us; we should reserve judgment on that question until it is properly presented.

Appellant retired prior to the enactment of chapter 382, Laws of 1955, pages 1563-1573. The 1955 act does not reveal a legislative intention that it be applicable to persons who have retired.

The 1947 act (Laws of 1947, chapter 91, p. 581), by its own terms, was not intended to apply to firemen employed prior to January 1, 1947. Appellant became a member of the Chehalis fire department in 1926.

In Eisenbacher v. Tacoma, supra, we held that the 1935 act (Laws of 1935, chapter 39, p. 100) could not constitutionally be applied as a limitation on the pension rights of firemen employed prior to its enactment.

This takes, us to the 1929 act (Laws of 1929, chapter 86, p. 144). The question of whether that act can constitutionally be applied as a limitation on the pension rights of a fireman employed prior to its enactment has never -been presented to this court.

As indicated in the majority opinion, the 1929 legislature rejected proposed legislation which clearly would have granted a fluctuating pension and enacted a provision which definitely established fixed pension benefits based on the salary received by the pensioner immediately prior to retirement. (The fluctuating pension would have been tied to the rank the pensioner held at retirement—varying upward or downward in amount with the changes in pay awarded to active members holding that rank.)

Assuming, arguendo, that appellant is correct in his in *293 terpretation of the 1919 act (Laws of 1919, chapter 196, p. 668), and, therefore, that he would have been entitled to a fluctuating pension under the 1919 act, can the 1929 act be applied as a limitation on his pension rights?

During inflationary periods a static pension would not be as favorable to a retired fireman, in terms of purchasing power, as would a fluctuating pension; but during deflationary periods the static pension would be the more favorable to the retired fireman. The historic trend of the cost of living is inflationary, so, on the whole, a change from fluctuating to static pension rights would be detrimental to a fireman. However, we must look to the whole 1929 act to determine whether, taken as a whole, the changes effected were equitable to the fireman.

We find the following benefits in the 1929 act: (a) Children of a deceased fireman who are over eighteen years of age, and incompetent, were made eligible to receive a pension in certain instances; (b) Pension benefits were provided during periods of sickness incurred in the line of duty; (c) Firemen who retired after one year of service but before fifteen years, because of disability not incurred in the line of duty; or those who died from causes other than injuries incurred in the line of duty, were entitled to receive back their contributions plus interest; (d) The contributions from the fund to the funeral expenses of firemen were increased.

In addition to the assumed change from fluctuating to static pensions, we find another detriment effected by the 1929 act: the term widow was defined so as to exclude a wife who married a fireman after he was drawing a pension.

On the whole, it cannot be said that the detriments outweigh the benefits. Therefore, in my best judgment, even assuming a modification from fluctuating to static pension rights is effectuated by the 1929 act, it is valid as applied to appellant.

On the basis indicated herein I concur in the result reached by the majority.