Campbell v. Kelly, 13350

• Decision Date: 05 February 1974
• Docket Number: No. 13350,13350
• Citation: 202 S.E.2d 369,157 W.Va. 453
• Court: West Virginia Supreme Court
• Parties: William C. CAMPBELL v. John H. KELLY et al.

Page 369

202 S.E.2d 369

157 W.Va. 453

William C. CAMPBELL v. John H. KELLY et al.

No. 13350.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 5, 1973.

Decided Feb. 5, 1974.

Syllabus by the Court

1. The provisions of Article VI, Section 33 of the Constitution of the State of West Virginia in force between 1961 and 1971 did not preclude the enactment of a legislative pension program, as such pension program did not constitute either an 'allowance' or 'emolument' as those words were used in Article VI, Section 33 before its amendment in 1971.

2. The term 'compensation' as used in Article VI, Section 33 of the Constitution of the State of West Virginia, as amended in 1971, does include legislative pensions and, therefore, the Legislature may only enact such pension programs based upon legislative service during and after 1971 as are recommended by the Citizens Legislative Compensation Commission.

3. The provisions of Chapter 127, Acts of the Legislature, Regular Session, 1971 which provide annuities to legislators based on service before 1971 are constitutionally valid under Article VI, Section 33 of the Constitution of the State of West Virginia before the amendment of that section in 1971, and Article VI, Section 33 of the Constitution, as amended in 1971; however, insofar as Chapter 127 has provisions which are more favorable to legislators than the provisions applicable to other members of the Public Employees Retirement System, based on service during and after 1971, Chapter 127 exceeds the authority granted the Legislature by Article VI, Section 33 of the Constitution, as amended in 1971, because those provisions of Chapter 127 which are uniquely favorable to legislators are in excess of the authority conferred by the Resolution of the Citizens Legislative Compensation Commission.

4. Membership in a retirement system does not create a contract in which a member of the Legislature is interested within the meaning of Article VI, Section 15 of the Constitution of the State of West Virginia.

5. Legislative pensions do not constitute 'extra compensation' nor 'salary' within the meaning of Article VI, Section 38 of the Constitution of the State of West Virginia.

6. The provisions of Chapter 127, Acts of the Legislature, Regular Session, 1971 which accord legislators who served both before 1971 and after 1971 the option of having their pensions computed upon the basis of service before 1971 using a multiple of eight, or service after 1971 without any multiple are not in excess of the authority conferred by the Resolution of the Legislative Compensation Commission.

7. The title to Chapter 118, Acts of the Legislature, Regular Session, 1961 is sufficient under Article VI, Section 30 of the Constitution of the State of West Virginia.

8. The question of whether the legislative pension program enacted by the Legislature from 1961 to 1971 constitutes a denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States has not been decided in this proceeding as the relator lacks standing to assert denial of equal protection because he is not a member of the class which allegedly would be adversely affected by such denial.

Rolla D. Campbell, Huntington, for relator.

Chauncey H. Browning, Jr., Atty. Gen., John L. McClaugherty, Special Asst. Atty. Gen., Charleston, for respondents.

NEELY, Justice:

This proceeding in mandamus was brought by William C. Campbell in his personal capacity as a citizen, voter, and taxpayer of the State of West Virginia against the trustees of the West Virginia Public Employees Retirement System and others concerned with the administration of the Public Employees Retirement System to require cessation of further payments to retired members of the West Virginia Legislature whose pensions are based on legislative service before 1971 and to compel the recovery on behalf of the State of retirement pension benefits which have already been paid. Although the relator has standing to bring this action as a citizen and taxpayer, Delardas v. County Court of Monongalia County, W.Va., 186 S.E.2d 847 (1972), he is also the Chairman of the Citizens Legislative Compensation Commission, which under Article VI, Section 33 of the Constitution of West Virginia, as amended in 1970, has the responsibility for establishing the maximum compensation for legislators.

The legislative pension system under attack was first established in 1961 when pension plans were inaugurated for various other classes of personnel in the employ of the State. Chapter 5, Article 10 of the Code of West Virginia, 1931, as amended, established the Public Employees Retirement System and provided that members of the Legislature could participate on the same basis as other State employees. Although there were intermittent amendments to the Public Employees Retirement Act, the first amendment which affected the Legislature occurred in 1967 when Code, 5--10--2 was changed to define 'final average salary' for legislators as 'their actual compensation serving as a member of the Legislature multiplied by four.' Chapter 158, Acts of the Legislature, Regular Session, 1967. Under that act the salary upon which a legislator's pension would be based became his constitutionally established salary of $1500 per year multiplied by four, or a base salary for retirement credit purposes of $6000 per year. While legislators were to receive a pension which would be four times as much as any other state employee with an equivalent salary, legislators were required to pay four times the normal contribution into the fund.

Code, 5--10--2 was again amended in 1968 to provide, among other things, that a legislator's pension base would be computed by taking the constitutionally established salary of $1500 per year and multiplying by eight. Chapter 43, Acts of the Legislature, Regular Session, 1968. Finally, Code, 5--10--2 was amended in 1970 to provide that legislators could also include compensation received from other participating public employers, including the State of West Virginia, in computing their average salary for retirement purposes, and that legislators who had already retired would be entitled to the benefits of the changes made by that amendment. Chapter 63, Acts of the Legislature, Regular Session, 1970.

In November 1970, the voters of West Virginia amended Article VI, Section 33 of the Constitution of the State of West Virginia which had previously established a $1500 per year maximum salary for legislators, and created the Citizens Legislative Compensation Commission which was authorized to recommend to the Legislature at four year intervals the maximum compensation to be paid to legislators. Pursuant to this constitutional amendment, the Governor appointed the seven members of the Commission, and on January 26, 1971 the Commission adopted a resolution recommending an annual salary of $3300 per year and authorizing the Legislature to provide for specific food and lodging allowances and certain other expenses. Under the Commission's recommendation, legislators could become members of the Public Employees Retirement System on the same basis as any other officer or employee of the State.

After receiving the resolution of the Commission, the Legislature amended Code, 5--10--2 to provide that a member of the Legislature who served before January 1971 could have his 'final average salary' computed either on the basis of an annual salary of $1500 augmented by a multiple of eight, or on the basis of the average of actual salary for three consecutive years of credited service, whichever were higher. Chapter 127, Acts of the Legislature, Regular Session, 1971. The annuity was continued at 2% Of final average salary multiplied by the years of credited service; however, the annuity of any legislator, or of any former legislator could be increased from time to time during the period of retirement when and if the legislative compensation paid under Chapter 4, Article 2A, Section 2 of the Code of West Virginia, 1931, as amended, to an active member of the Legislature were increased to the point where a higher annuity would be payable to a retirant if he were retiring as of the effective date of the latest increase in such legislative compensation. Finally the 1971 amendment provided that the contribution of any member of the system who served as a legislator after the effective date of the 1971 constitutional amendment, and with respect to whom 'final average salary' would be computed on the basis of any year in which there were a multiple of eight in effect, should contribute on the basis of his legislative compensation the sum of $540 each additional year he participates in the system as a member of the Legislature.

The relator challenges the constitutional validity of the legislative pension program between 1961 and 1971 as well as certain provisions in the pension program as enacted in 1971 upon the following grounds:

(1) Article VI, Section 33 of the Constitution of the State of West Virginia before the amendment ratified on November 3, 1970, and effective in 1971, prohibited pension benefits to legislators from 1961 to 1971.

(2) The provisions of Chapter 127, Acts of the Legislature, Regular Session, 1971 which accord benefits to legislators based on service after 1971 which are greater than those accorded other public employees are in excess of the authority conferred on the Legislature by the Resolution of the Citizens Legislative Compensation Commission and, therefore void under Article VI, Section 33, as amended in 1971.

(3) Membership in the retirement system creates a contract in which a member of the Legislature is interested in contravention of Article VI, Section 15 of the Constitution.

(4) Payment to any legislator of retirement benefits over those in effect at the beginning of the term at which he was elected is void under Article VI, Section 38 of the...