statute authorizing payment of pensions to former Colorado Supreme Court justices did not offend article V, section 34, since it served a valid public purpose
How later courts described this case
- statute authorizing payment of pensions to former Colorado Supreme Court justices did not offend article V, section 34, since it served a valid public purpose
- judicial pensions were granted primarily for the benefit of the state rather than the benefit of the individual recipient
Written by the judges who cited it.
The opinion
Mr. Justice Burke
dissenting.
I am unable to concur in the conclusion of the court. I think the issue has been lost in a wilderness of words. For example, I agree a man must be alive to get a pension, but doubt if that necessity is dependent upon adjudication. I agree that if no one can be pensioned defendants in error cannot be; at least no adequate answer to that assertion occurs to me. That question, however, is not here. We might with equal propriety declare that unless the constitutional sections involved were regularly adopted the act of 1939 did not violate them, and then address ourselves to the validity of their passage. The constitutionality of the act of 1925 is not before us. It is, as appears from the opinion, and more clearly from the record, simply dragged in by a casual comment of counsel. That this is an appellate tribunal seems to have been overlooked. An issue can only get before us by plea and adjudication in the trial court, inclusion in the writ, presentation by assignment and final *460 submission here. As to the act of 1925 this record meets no one of these requirements.
Decisions of the federal courts, and others not controlled by constitutional prohibition similar to ours, are wholly inapplicable. Neither are we concerned with the numerous attempts to define pensions. Most of these are applicable only to the particular facts of the particular case. Since such grants are of many kinds, each based upon its own peculiar considerations, such as to schoolteachers, firemen, soldiers, policemen, and persons disabled in the performance of a public, but not mandatory, service, the particular cases have small value save to the authors of text books. Converting an opinion into a treatise is a task for a Marshall.
The sole issue here is, Does the act of 1939 violate sections 28 or 34 of our Constitution, in so far as it authorizes payment of pensions to former judges of this court who were not on the bench when it, or any similar act then applicable to them, was in force? It is conceded in the court’s opinion that said sections forbid all purely private grants and that those here in question can only be upheld on the theory of public benefit. The conclusion is that the legislature must have considered the benefit public or it would not have passed the statue. If that theory be good all constitutional restraints on legislation are abolished. If these pensions are forbidden by the Constitution they are void. If not so forbidden they are clearly within the discretion of the legislature.
My position is that there must be some reasonable theory of public benefits. If there be such the soundness of it rests with the legislature. If, as here, there is no such theory, the grant is purely private and the constitutional inhibition stands. The only logical suggestions of public benefits are those mentioned and repudiated in the court’s opinion. Upon them Judge Dillon’s conclusion rests but they have no application to defendants in error. They could neither have come into the service, *461 stayed in it, nor left it, because of the act of 1939. Hence I think they are not permitted by the Constitution to take under that act and the judgment of the court should be reversed.
Mr. Chief Justice Hilliard and Mr. Justice Otto Bock concur in the foregoing.