Jordan v. O'Brien

Decision Date24 June 1971
Docket NumberNo. 41751,41751
Citation79 Wn.2d 406,486 P.2d 290
PartiesV. Antoinette JORDAN, a widow, Petitioner, v. Robert S. O'BRIEN, Treasurer of the State of Washington, Respondent.
CourtWashington Supreme Court

Bovey & Vovos,

Gordon L. Bovey, Spokane, for petitioner.

Slade Gorton, Atty. Gen., Philip H. Austin, Asst. Atty. Gen., Olympia, for respondent.

STAFFORD, Associate Justice.

This is an original proceeding in mandamus. The petitioner, Antoinette Jordan (widow of the late Judge Thomas G. Jordan) seeks to compel the respondent, State Treasurer, to pay her an additional pension benefit. Respondent contends he lacks authority to make the requested payment.

The stipulated facts establish that Judge Kuykendall (having attained the mandatory retirement age of 75) was required to retire December 31, 1949. Const. art. 4, § 3(a) (amendment 25). In anticipation thereof, on December 30, 1949, Arthur B. Langlie (then Governor of the state) informed Thomas G. Jordan he was to be appointed Kuykendall's successor. The proposed appointment was announced December 31, 1949. Judge Kuykendall retired the same day.

On January 3, 1950, the Governor signed and mailed a commission and oath of office covering the appointment. Judge Jordan received these documents on January 4, 1950, at which time he signed and filed the oath. From then on Judge Jordan was continually re-elected as a superior court judge and served in that capacity until December 31, 1968, when, having reached the age of 75, he was required to retire.

At the time of retirement, his annual compensation was $22,500. Having served as a judge in excess of 18 years, he was entitled to receive a pension 1 equal to at least one half of his monthly compensation. 2

When the Judge died on May 19, 1969, the petitioner was, and still is, fully qualified as the widow of a retired superior court judge. Thus, she was, and still is, entitled to receive an amount equal to one half of his pension benefits. 3

It is also stipulated that petitioner, by virtue of a community property agreement, has succeeded to unpaid pension benefits, if any, alleged to have accrued to the judge during his lifetime. Further, if he was entitled to increased pension benefits, petitioner is entitled to a proportionate increase in her own right.

To decide whether Judge Jordan was entitled to increased pension benefits, we must first determine the date upon which his judicial service began.

Article 4, section 28 of the Washington State Constitution provides in part:

Every judge * * * of a superior court Shall, before entering upon the duties of his office, take and Subscribe an oath * * * which oath shall be filed * * *

(Italics ours.) RCW 2.08.080 restates the requirement as follows:

Every judge of a superior court Shall, before entering upon the duties of his office, take and Subscribe an oath * * * which oath shall be filed * * *

(Italics ours.)

Clearly, the first day on which Judge Jordan could have assumed judicial office was January 4, 1950, the day on which he signed and filed the oath of office. The Governor's prior announcement of a proposed appointment is not material. Thus, Judge Jordan's entitlement to pension benefits must be measured from that date. Simple calculation indicates that Judge Jordan served 18 years and 361 days (I.e., 4 days short of 1 full year beyond the qualifying 18th year).

The next question is whether, having served less than one complete year beyond the qualifying 18 years, Judge Jordan was entitled to the Additional pension benefits provided for in RCW 2.12.015. 4

Respondent contends the 4 day shortage prevents the accruing of additional pension benefits because they are computed solely in increments of Completed years of service (I.e., '* * * for each year of full service after eighteen years'). It is asserted that the statute is plain and unambiguous, leaving no occasion to apply rules of construction. The statute means exactly what it says. Shelton Hotel Co. v. Bates, 4 Wash.2d 498, 104 P.2d 478 (1940); State ex rel. Blankenship v. Gaines, 136 Wash. 610, 241 P. 12 (1925). In support of the foregoing position, respondent cites Webster's New World Dictionary of the American Language, p. 1693 (1966), which defines a Year as 'a period of 365 days (in leap year, 366 days) * * * a period of 12 calendar months reckoned from any date * * *'

Respondent urges that it would be untenable to hold a 'year' does not mean a 'year'. The legislature cannot be presumed to have indulged in a useless act and no construction should be given an act that leads to an absurdity, he states. In re Horse Heaven Irrig. Dist., 11 Wash.2d 218, 118 P.2d 972 (1941).

On the other hand, petitioner asserts the correct interpretation of RCW 2.12.015 does not provide a limitation computed by increments of completed years of service (I.e., 365 days) on an all-or-nothing basis. She argues, that the statute creates a formula by means of which an additional pension benefit may be computed by using one-eighteenth of the retiree's salary for a year as the base from which calculations may be made. We agree.

Statutes must be construed so no word, clause or sentence is superfluous, void or insignificant. Martin v. Department of Soc. Sec., 12 Wash.2d 329, 121 P.2d 394 (1942). Respondent's theory fails to give adequate, or correct, significance to several key words and phrases.

RCW 2.12.015 does not provide merely that a retiree may receive a pension benefit for additional service after eighteen years. It provides: 'he shall receive in addition to other pension benefits to which he may be entitled under this chapter (chapter 2.12), An additional pension benefit'. When the right of anyone depends upon giving the word Shall an imperative construction, Shall is presumed to have been used in reference to that right or benefit, and it receives a mandatory interpretation. State v. Mavrikas, 148 Wash. 651, 269 P. 805 (1928); State ex rel. Nicomen Boom Co. v. North Shore Boom and Driving Co., 55 Wash. 1, 103 P. 426 (1909); Wheeler v. Chicago, 24 Ill. 105, 76 Am.Dec. 736 (1860); Wisdom v. Board of Sup'rs, 236 Iowa 669, 19 N.W.2d 602 (1945).

Use of the imperative Shall is consistent with petitioner's contention that in any event a retiree is entitled to Some additional pension benefit, the total of which is determined by the amount of full service performed after eighteen years. The mandatory language is inconsistent with respondent's theory that, despite continued full service rendered after eighteen years, a retiree is entitled to Nothing until he has completed an additional full year of service.

The statute also provides a retiree is entitled to an additional pension benefit based upon one-eighteenth of his salary 'for each year of Full service after eighteen years'. It does not provide that it shall be based upon 'a Full year of service after eighteen years' (an interpretation basic to respondent's position). The adjective Full modifies the word Service, it does not modify the word Year.

Respondent's brief seemingly equates the term Full service with a Year of service, contending 'it is this period of full service which is needed before additional benefits are allowed and nothing less.' As previously indicated, this is neither in accord with the language of the statute nor does it agree with common English usage. Merriam-Webster Third Int'l Dictionary, 919 (1966), defines the adjective 'full' as 'not temporary, substitute, or provisional.' On page 2075 of the same volume, 'service' is defined as 'the employment of a public servant * * * the duties, work, or business...

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8 cases
  • Burr v. Lane
    • United States
    • Washington Court of Appeals
    • January 14, 1974 that right or benefit, and it receives a mandatory interpretation. 1 Wash.App. at 462, 462 P.2d at 576. See also Jordan v. O'Brien, 79 Wash.2d 406, 486 P.2d 290 (1971). The apparent purpose of the attorney's fee provision in the garnishment statute is to encourage garnishees, who are inv......
  • Cooper's Mobile Homes, Inc. v. Simmons
    • United States
    • Washington Supreme Court
    • September 25, 1980
    ...natural grandparents even though falling within the literal interpretation of the intestate succession statute); Jordan v. O'Brien, 79 Wash.2d 406, 409-10, 486 P.2d 290 (1971) (term "year" does not necessarily mean "a period of twelve months" for purposes of acquiring pension benefits); Gai......
  • Milton v. Waldt
    • United States
    • Washington Court of Appeals
    • November 2, 1981
    ...v. Department of Social & Health Services, 19 Wash.App. 489, 576 P.2d 78 (1978). More apposite to this case is Jordan v. O'Brien, 79 Wash.2d 406, 410, 486 P.2d 290 (1971), involving construction of a statute providing that a judge "shall" receive an additional benefit upon specified conditi......
  • Scannell v. City of Seattle
    • United States
    • Washington Supreme Court
    • July 29, 1982 presumed to have been used in reference to that right or benefit and it receives a mandatory interpretation. Jordan v. O'Brien, 79 Wash.2d 406, 410, 486 P.2d 290 (1971). We, therefore, construe the clauses containing "shall" as mandatory, such that the City has a duty to provide all empl......
  • Request a trial to view additional results

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