City of Jacksonville Beach v. State ex rel. O'Donald

• Decision Date: 13 March 1963
• Docket Number: No. 31907,31907
• Citation: 151 So.2d 430
• Parties: CITY OF JACKSONVILLE BEACH, a Municipal Corporation, et al., Petitioners, v. STATE of Florida on the relation of Fay O'DONALD, Respondent.
• Court: Florida Supreme Court

Page 430

151 So.2d 430

CITY OF JACKSONVILLE BEACH, a Municipal Corporation, et al., Petitioners, v. STATE of Florida on the relation of Fay O'DONALD, Respondent.

No. 31907.

Supreme Court of Florida.

March 13, 1963.

Rehearing Denied April 16, 1963.

Stephen Stratford and Walter G. Arnold, Jacksonville, for petitioners.

Harry B. Fozzard, Jacksonville, for respondent.

THOMAS, Justice.

Fleming O'Donald, deceased husband of relator, was an employee of the petitioner-City and was a member of the City's pension fund created by Chapter 19914, Sp.Acts of 1939, as amended by Chapter 23371, Sp.Acts of 1945. He retired 1 September 1950 and thereafter until his death, 19 December 1960, received the sum of $137.36 per mouth which represented 50% of his average yearly salary for the three years preceding retirement.

The act provided that upon the death of a pensioner without children his widow should receive 75% of the amount theretofore paid the husband until she should die or remarry.

In 1951, the year after O'Donald had retired and started receiving the pension, a new, comprehensive retirement plan was enacted by the legislature in Chapter 27643. It secured to those who had already retired continued payment of their pensions but eliminated contingent benefits to a widow upon the death of her pensioner-husband. It was provided, however, that an employee could within six months of the effective date of the act exercise an option to take a reduced pension and have a certain amount paid upon his death to anyone he named who had an insurable interest in his life, and that any payments then being made to a widow should not be interrupted.

Relator's husband did not exercise the option but continued to receive monthly the amount of $137.36 until he died. The widow then made a demand for 75% of this sum. When her request was declined she sought by mandamus to secure the payments she alleged were due her under the contract between her husband and the City pursuant to Chapter 19914, supra, as amended. The writ of mandamus was quashed because the Circuit Judge concluded the relator had shown no clear legal right to it, and from this order an appeal was taken to the District Court of Appeal, First District, which reversed the Circuit Court. State ex rel. O'Donald v. City of Jacksonville Beach, et al., Fla.App., 142 So.2d 349.

The District Court of Appeal certified to this court its decision as being one of great public interest so we proceed to determine the controversy as we are empowered to do by Sec. 4(2) of Art. V of the Constitution as amended in 1956, F.S.A.

The City and its officials, who had been defendants in the Circuit Court and appellees in the District Court of Appeal and who now assume the role of petitioners here, represent that the question with which the District Court of Appeal dealt was whether or not 'a retired public employee or his contingent beneficiary have [sic] a vested or contractual right in a public pension plan so as not to be effected [sic] by subsequent legislation affecting the contingent beneficiary.' And in their presentation they assert that the District Court of Appeal recognized the difference between mandatory and voluntary pension plans then applied the law governing voluntary plans to the system involved in this case which is mandatory 'in nature.'

We do not feel obliged to elaborate on the distinction between voluntary and mandatory retirement plans, even if, in view of the development of such systems and their obvious purposes not only to secure protection of employees but also to provide efficient public service by trained personnel, Greene et al. v. Gray et al., Fla., 87 So.2d 504, there is still occasion to retain the distinction. In the factual situation of this case an explanation of the origin and need for the distinction seem inapposite.

The right of the employee-husband vested at least at the time he actually retired. We adopt this premise although in State ex rel. Holton v. City of Tampa et al., 119 Fla. 556, 159 So. 292, 98 A.L.R. 501, it was indicated that even after the right to a pension vested, the legislature could modify the pension payments, but this was qualified by the language that such could be done affecting all employees 'in the active service.' The pronouncement was further qualified by the statement that this could be done as long as a reduction was not so great as to amount to a deprivation as distinguished from a regulation. Apparently a measure of this kind was said to be constitutional until the amount of reduction reached some indeterminate point then below that point would become unconstitutional.

Evidently the reference to employees 'in the active service' was related to what the...