Crumpacker, J.
The appellee Edwin H. Pritchard, for himself and all others similarly situated, filed complaint in the Marion Circuit Court wherein he alleges that he and those he represents are members of the Field Examiners’ Retirement Fund which was created and set up agreeable to the provisions of Chapter 107 [443]*443of the Acts of 1941, Burns’ 1943 Replacement, § 60-241, et sequi, and that they retired as active field examiners in the service of the Department of Inspection and Supervision prior to 1947. That since their retirement they have been receiving benefits under the provisions of said act appropriate to their ages and years of service. That in 1947 the legislature amended the Act of 1941, supra, in such manner that greater contributions are required of field examiners and upon their retirement they are paid increased benefits. Acts of 1947, ch. 149; Burns’ 1943 Replacement (1949 Supp.), § 60-245, et sequi. The complaint further alleges that the appellee and those he represents are entitled to the increased benefits provided by the act as amended in 1947 upon proper application therefor. That he made such application and tendered to the fund the full amount of all contributions required by :said act as amended and demanded that he be paid the increased benefits provided thereby. That the trustees in charge of said fund, the appellants herein, refused to accept his contribution and denied that he and those like him are entitled to additional benefits. The complaint asks that “Chapter 107 of the Acts of 1941, as amended by Chapter 149 of the Acts of 1947, be interpreted for the purpose of declaring the rights, status, and legal relations of the plaintiff and all other persons similarly situated” in respect to said fund. The appellants’ answer admits all of the allegations of this complaint except that charging that the appellee • is entitled to benefits under the 1947 amendment. This left but a single issue in the case. Are members of the Field Examiners’ Retirement Fund who retired prior to 1947 within the purview of the act as amended .and therefore entitled to the additional benefits it affords ? This being a question of law the case was tried on the pleadings and no evidence was introduced. The [444]*444question was resolved by the court in favor of the appellee and this appeal followed.
The appellant’s position may be summarized as follows: (1) The benefits provided by the act in question constitute pensions payable out of public funds. (2) As the public purpose served by an act offering prospective pensions out of public funds to state employees ceases to exist upon the retirement of such employees, there is grave doubt as to the constitutionality of an act that increases a pension after retirement because it involves the use of public money for purely private purposes. (3) A statute should be construed to avoid constitutional objection and therefore the Act of 1941, supra, as amended in 1947, should be held inapplicable to the appellee who had already retired when the amendment increasing pensions was enacted.
On the other hand the appellee contends that said act as amended creates an annuity rather than a pension. That where a statute provides for acceptance or rejection of a retirement plan it amounts to an offer of an annuity contract to all those within the class to whom the offer is made and upon acceptance becomes a binding contract. That he and all others similarly situated are within the class to whom the offer was made. That he accepted it and has tendered performance of all obligations the offer imposed upon him and is entitled to the benefits the amended act provides.
As to the distinction between pensions and annuities both the appellants and the appellee refer us to the case of Raines v. Board of Trustees Pen. Fund (1937), 365 Ill. 610, 7 N. E. 2d 489, and both lean heavily thereon in support of their respective contentions. We agree that such distinction and its importance are ably pointed out in that case and therefore we quote from the court’s opinion as follows:
[445]*445“The whole difficulty in this case arises from a failure to distinguish between a pension fund and an annuity fund derived in part from voluntary contributions made under a statutory option to contribute or refrain from contributing. A ‘pension’ is in the nature of a bounty springing from the appreciation and graciousness of the sovereign, and may be given, withheld, distributed, or recalled at its pleasure. People v. Retirement Board, 326 Ill. 579 (158 N. E. 220, 54 A. L. R. 940) ; Porter v. Loehr, 332 Ill. 353 (163 N. E. 689) ; Pecoy v. City of Chicago, 265 Ill. 78 (106 N. E. 435). For this reason it is held that a pensioner has no vested right in a pension fund. It has also been held that the character of a pension fund is not changed by compulsory contributions by way of exactions from the salaries or wages of public officers and employees. It is said that such payments into the fund are not in fact payments by the officer or employee, and the employment is accepted with knowledge that certain amounts will be deducted each month and placed in the pension fund; that the money is not first segregated from the public fund so as to become private property and then turned over to the pension fund, but is set aside or transferred from one public fund to another, and remains public money over which the person from whose salary it is deducted has no control, and in which he has no right. Pecoy v. City of Chicago, supra; Highes v. Traeger, 264 Ill. 612 (106 N. E. 431) ; Pennie v. Reis, 132 U. S. 464 (10 S. Ct. 149), 33 L. Ed. 426; State v. Board of Trustees of Policemen’s Pension Fund, 121 Wis. 44, 98 N. W. 954.
“There is a wide difference between voluntary contributions to a fund under a statutory elective right and being compelled to suffer deductions without any such right. In the latter case the' officer or employee has no voice in determining whether or not he will suffer such exactions. They are imposed by the statute and deducted even if against his will. In the other case it is wholly a matter of choice with him. He may elect to come within the terms of the act and receive its benefits, [446]*446or he may forego that privilege at his option, with no other effect than to deprive him of participating in the fund. If he does not elect to contribute, he receives and retains the full amount of his salary or wages. If he elects to contribute, the amounts are deducted by his direction. The effect is the same as if his full salary were paid to him and after it became his private means he in turn contributed to the retirement fund. In such case there is neither reason nor authority to hold that the fund remains public money in which he has no right or interest.”
The Illinois court’s final conclusion was that the statute under consideration, very similar in purpose and principle to the one here involved, created a fund whose benefits are annuities and not pensions. The importance of the decision in connection with our present problem lies in the fact that it establishes certain clearly defined tests for determining the nature of the fund with which we are dealing. The first and most obvious test is whether or not the persons in the class affected are permitted a choice as to whether or not they will subject themselves to the obligations and avail themselves of the privileges of the act.
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Crumpacker, J.
The appellee Edwin H. Pritchard, for himself and all others similarly situated, filed complaint in the Marion Circuit Court wherein he alleges that he and those he represents are members of the Field Examiners’ Retirement Fund which was created and set up agreeable to the provisions of Chapter 107 [443]*443of the Acts of 1941, Burns’ 1943 Replacement, § 60-241, et sequi, and that they retired as active field examiners in the service of the Department of Inspection and Supervision prior to 1947. That since their retirement they have been receiving benefits under the provisions of said act appropriate to their ages and years of service. That in 1947 the legislature amended the Act of 1941, supra, in such manner that greater contributions are required of field examiners and upon their retirement they are paid increased benefits. Acts of 1947, ch. 149; Burns’ 1943 Replacement (1949 Supp.), § 60-245, et sequi. The complaint further alleges that the appellee and those he represents are entitled to the increased benefits provided by the act as amended in 1947 upon proper application therefor. That he made such application and tendered to the fund the full amount of all contributions required by :said act as amended and demanded that he be paid the increased benefits provided thereby. That the trustees in charge of said fund, the appellants herein, refused to accept his contribution and denied that he and those like him are entitled to additional benefits. The complaint asks that “Chapter 107 of the Acts of 1941, as amended by Chapter 149 of the Acts of 1947, be interpreted for the purpose of declaring the rights, status, and legal relations of the plaintiff and all other persons similarly situated” in respect to said fund. The appellants’ answer admits all of the allegations of this complaint except that charging that the appellee • is entitled to benefits under the 1947 amendment. This left but a single issue in the case. Are members of the Field Examiners’ Retirement Fund who retired prior to 1947 within the purview of the act as amended .and therefore entitled to the additional benefits it affords ? This being a question of law the case was tried on the pleadings and no evidence was introduced. The [444]*444question was resolved by the court in favor of the appellee and this appeal followed.
The appellant’s position may be summarized as follows: (1) The benefits provided by the act in question constitute pensions payable out of public funds. (2) As the public purpose served by an act offering prospective pensions out of public funds to state employees ceases to exist upon the retirement of such employees, there is grave doubt as to the constitutionality of an act that increases a pension after retirement because it involves the use of public money for purely private purposes. (3) A statute should be construed to avoid constitutional objection and therefore the Act of 1941, supra, as amended in 1947, should be held inapplicable to the appellee who had already retired when the amendment increasing pensions was enacted.
On the other hand the appellee contends that said act as amended creates an annuity rather than a pension. That where a statute provides for acceptance or rejection of a retirement plan it amounts to an offer of an annuity contract to all those within the class to whom the offer is made and upon acceptance becomes a binding contract. That he and all others similarly situated are within the class to whom the offer was made. That he accepted it and has tendered performance of all obligations the offer imposed upon him and is entitled to the benefits the amended act provides.
As to the distinction between pensions and annuities both the appellants and the appellee refer us to the case of Raines v. Board of Trustees Pen. Fund (1937), 365 Ill. 610, 7 N. E. 2d 489, and both lean heavily thereon in support of their respective contentions. We agree that such distinction and its importance are ably pointed out in that case and therefore we quote from the court’s opinion as follows:
[445]*445“The whole difficulty in this case arises from a failure to distinguish between a pension fund and an annuity fund derived in part from voluntary contributions made under a statutory option to contribute or refrain from contributing. A ‘pension’ is in the nature of a bounty springing from the appreciation and graciousness of the sovereign, and may be given, withheld, distributed, or recalled at its pleasure. People v. Retirement Board, 326 Ill. 579 (158 N. E. 220, 54 A. L. R. 940) ; Porter v. Loehr, 332 Ill. 353 (163 N. E. 689) ; Pecoy v. City of Chicago, 265 Ill. 78 (106 N. E. 435). For this reason it is held that a pensioner has no vested right in a pension fund. It has also been held that the character of a pension fund is not changed by compulsory contributions by way of exactions from the salaries or wages of public officers and employees. It is said that such payments into the fund are not in fact payments by the officer or employee, and the employment is accepted with knowledge that certain amounts will be deducted each month and placed in the pension fund; that the money is not first segregated from the public fund so as to become private property and then turned over to the pension fund, but is set aside or transferred from one public fund to another, and remains public money over which the person from whose salary it is deducted has no control, and in which he has no right. Pecoy v. City of Chicago, supra; Highes v. Traeger, 264 Ill. 612 (106 N. E. 431) ; Pennie v. Reis, 132 U. S. 464 (10 S. Ct. 149), 33 L. Ed. 426; State v. Board of Trustees of Policemen’s Pension Fund, 121 Wis. 44, 98 N. W. 954.
“There is a wide difference between voluntary contributions to a fund under a statutory elective right and being compelled to suffer deductions without any such right. In the latter case the' officer or employee has no voice in determining whether or not he will suffer such exactions. They are imposed by the statute and deducted even if against his will. In the other case it is wholly a matter of choice with him. He may elect to come within the terms of the act and receive its benefits, [446]*446or he may forego that privilege at his option, with no other effect than to deprive him of participating in the fund. If he does not elect to contribute, he receives and retains the full amount of his salary or wages. If he elects to contribute, the amounts are deducted by his direction. The effect is the same as if his full salary were paid to him and after it became his private means he in turn contributed to the retirement fund. In such case there is neither reason nor authority to hold that the fund remains public money in which he has no right or interest.”
The Illinois court’s final conclusion was that the statute under consideration, very similar in purpose and principle to the one here involved, created a fund whose benefits are annuities and not pensions. The importance of the decision in connection with our present problem lies in the fact that it establishes certain clearly defined tests for determining the nature of the fund with which we are dealing. The first and most obvious test is whether or not the persons in the class affected are permitted a choice as to whether or not they will subject themselves to the obligations and avail themselves of the privileges of the act. If field examiners are required by the act to be members of the retirement fund and their contributions thereto are compulsory and not voluntary it would seem that retirement benefits are pensions. Sec. 5 of the act provides that: “Each field examiner and each such other employees as are members of the retirement plan, shall pay . . .” Sec. 6 provides that: “All field examiners who are in the service of said department on July 1, 1941, or who are on leave of absence granted within twelve (12) months prior thereto, shall automatically become members of the retirement plan when the provisions of section 5 (§ 60-245) of this act... have been complied with . . [447]*447The appellants contend that the words we have emphasized by italics make membership in the fund and contributions thereto compulsory and therefore its benefits are pensions. We do not so construe these sections. Sec. 5 does not say that all field examiners shall make contributions to the fund but refers only to those who are members thereof and Sec. 6 makes membership automatic only in the event contributions are made according to the provisions of Sec. 5. Thus it seems to us that if a field examiner chooses to make contributions to the fund he becomes a member and participates in benefits. If he chooses otherwise he is still a field examiner but acquires no interest in the retirement plan.
The second test suggested by the Raines case is this: Does the plan involve the administration and distribution of public funds? We think not. The contributions of field examiners are voluntary and come from private sources. It is true that the state is a substantial contributor to the fund but its share thereof, as well as that of the field examiners, is irrevocably turned over to the board of trustees and held for a special purpose separate and apart from public monies. The state has no control whatever in the administration of the fund but that function rests exclusively with the trustees whose authority is limited only by the provisions of the act. A retirement plan with such a structure is incompatible with the idea that it “is in the nature of a bounty springing from the appreciation and graciousness of the sovereign, and may be given, withheld, distributed, or recalled at its pleasure.” In arriving at these conclusions we have necessarily considered the fact that the legislature itself characterizes the benefits derived by compliance with the act as annuities and the recipients thereof as annuitants. These words occur repeatedly in the act [448]*448and as they have frequently been impressed with judicial construction it must be presumed that the legislature used them as so construed unless the contrary clearly appears or some other construction is necessary to give effect to an evident legislative intent. Steiert v. Coulter (1913), 54 Ind. App. 643, 102 N. E. 113, 103 N. E. 117; The City of Rushville v. The Rushville Natural Gas Company (1892), 132 Ind. 575, 28 N. E. 853, 15 L.R.A. 321.
This brings us to the consideration of the following problem. The Act of 1941, supra, offered an annuity contract to all field examiners who accepted the offer and complied with its terms. The appellee accepted and, until his retirement sometime prior to 1947, performed all the contractural obligations on his part to be performed. Under the terms of his contract his monthly benefits upon retirement were determined by multiplying the sum appropriate to the age at which he retired, as fixed by the statute, by the number of his years of accredited service. That is what he bargained for and that is what he is getting. The act as amended in 1947, however, offers increased benefits upon the payment of increased contributions and the appellee insists that by paying the difference between what he has actually contributed and what the act as amended requires of him he is entitled to its increased benefits. He bases this contention on that general principle of statutory construction to the effect an amendment must be considered as a part of the original act and the entire act as amended must be given the same construction as if the amendment had been a part of the original act. Million v. Metropolitan, etc., Co. (1933), 95 Ind. App. 628, 172 N. E. 569; Russell v. State (1903), 161 Ind. 481, 68 N. E. 1019. The application of this principle, however, is limited to acts done subsequent to the date of the amendment. [449]*449Given v. State (1903), 160 Ind. 552, 66 N. E. 750; Ullman v. Thompson (1914), 57 Ind. App. 126, 106 N. E. 611. Although we must treat the amended act as though it were written that way originally, we cannot give the amendment retrospective effect to the extent that it takes away or impairs vested rights acquired under the original act or creates new obligations in respect to transactions already past. 50 Am. Jur., Statutes, § 476, and cases cited. The rights and obligations of the parties in the annuity contract the appellee now holds became vested prior to the 1947 amendment. The effect of the amendment as advocated by the appellee would materially alter said contract and impose additional obligations on the appellants.
Judgment reversed and cause remanded with instructions to enter judgment declaring the rights of the parties in harmony with this decision.
Note. — Reported in 90 N. E. 2d 518.