Sonnabend v. City of Spokane

333 P.2d 918, 53 Wash. 2d 362, 1958 Wash. LEXIS 321

• Court: Washington Supreme Court
• Decided: December 29, 1958
• Docket: 34654
• Status: Published

Opinions

Hill, C. J.

The 1957 legislature fixed a new maximum-pension provision for retired and disabled policemen, and provided that “all existing pensions shall be increased to not less than one hundred fifty dollars per month as of July 1, 1957.” Laws of 1957, chapter 84, § 2, p. 343.

From a mandate of the superior court of Spokane county to increase the pension of three retired policemen to one hundred and fifty dollars a month, the city of Spokane appeals.

One of the policemen had been receiving a disability pension of $75 a month since 1938; another, a retirement pension of $80.50 since 1939; and, the third, a disability pension of $79.31 since 1942.

At the time of their retirement, or disability, they were entitled, under the most favorable applicable statute, to a pension of one-half of the pay for the rank which they had held for one year preceding their disability or retirement, and the pensions were computed on that basis. There was a maximum-pension rate at the time of their retirement or disability with which we are not here concerned; but no minimum.

The city of Spokane, acting through its police pension board, has taken the position that this attempt to raise the pension of those whose retirement and disability pay had been fixed at a lesser amount (than'$150), either by the statutes in effect at the time of retirement, or by some earlier statute relied upon by the retiring or disabled police officers, could not be increased by a statute enacted after their service had terminated and their retirement or disability pension had been fixed.

The city relies upon two constitutional provisions in support of its position: Art. II, § 25, and Art. VIII, § 7. We shall refer only to the former, which reads:

“Extra Compensation, Prohibited—The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office.”

(An amendment approved at the November, 1958, election adds this sentence: “Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted.” This amendment has no bearing on this case. The issue before us is whether or not the superior court of Spokane county erred in issuing the writ of mandate appealed from under the constitutional provision in effect at the time the writ issued, i.e., on February 20, 1958.)

We have held, frequently and recently, that pensions of this character (retirement and disability) are deferred compensation. Bakenhus v. Seattle (1956), 48 Wn. (2d) 695, 296 P. (2d) 536; Aldrich v. State Employees’ Retirement System (1957), 49 Wn. (2d) 831, 307 P. (2d) 270.

It is obvious that the raising of the pensions of the three retired police officers is the granting of extra compensation “after the services shall have been rendered.” The granting of such extra compensation is prohibited by the constitutional provision we have quoted. State ex rel. Eshelman v. Cheetham (1899), 21 Wash. 437, 58 Pac. 771; State ex rel. Port of Seattle v. Wardall (1919), 107 Wash. 606, 183 Pac. 67.

In State ex rel. Thomson v. Giessel (1952), 262 Wis. 51, 53 N. W. (2d) 726, construing Art. IV, § 26 of the Wisconsin state constitution (which is identical with Art. II, § 25 of our constitution heretofore quoted in full), the Wisconsin supreme court held that an attempt by the Wisconsin legislature to increase the pensions of school teachers, who had theretofore retired, was unconstitutional. The Wisconsin court said, p. 56,

“ . . . The teachers’ contracts for retirement benefits were contracts with the state and the compensation provided therein may not thereafter be increased by the legislature when the teaching is over. Their contract compensation was not expressed in purchasing power. Contracts can be so drawn and many of them are, whereby compensation is governed by a ‘cost of living’ index or some other standard. The instant contracts, however, did not demand performance by the state in terms of goods, wares or merchandise. Compensation was expressed in dollars, and additional dollars are extra compensation, which the constitution forbids the legislature to grant.”

(Despite the later case of State ex rel. Holmes v. Krueger (1955), 271 Wis. 129, 72 N. W. (2d) 734, the reasoning of the Giessel case, just quoted, is sound, unless we are prepared to say of policemen, as the Wisconsin court said in Holmes v. Krueger, supra, of school teachers, that they are not public officers, servants, agents or contractors because they are not paid from the state treasury.)

See, also, Koehnlein v. Allegheny Co. Emp. System (1953), 373 Pa. 535, 97 A. (2d) 88; Jameson v. Pittsburgh (1955), 381 Pa. 366, 113 A. (2d) 454.

It is unnecessary to labor the obvious. We are not unaware of the effects of inflation upon fixed incomes, be they salaries and wages, or pensions; nor are we unaware of the complete inadequacy of the pensions now being paid to these retired police officers, two of whom have suffered disabilities in the performance of duty; however, sympathy for their distress affords no justification for ignoring established constitutional restraints.

We have no choice but to say that under Art. II, § 25 of our state constitution, as it was in 1957, the 1957 legislature could not raise the pensions of those retired or disabled police officers whose pension rates had been fixed by acts in effect at the time of their retirement, or by earlier and more favorable acts.

The mandate issued by the superior court of Spokane county is quashed, and that court is directed to dismiss the application for a writ of mandate.

Donworth, Weaver, Ott, and Foster, JJ., concur.