Rockenfield v. Kuhl, 47806
| Decision Date | 06 February 1951 |
| Docket Number | No. 47806,47806 |
| Parties | ROCKENFIELD v. KUHL, Chief of Fire Department et al. |
| Court | Iowa Supreme Court |
M. E. Rawlings, and Geo. F. Davis, of Sioux City, for appellants.
Crary, DeWitt & Crary, of Sioux City, for appellee.
On May 1, 1922, the Board of Trustees of the Firemen's Pension Fund of Sioux City, Iowa, granted plaintiff a disabled fremen's pension pursuant to what is now Chapter 410, Iowa Code 1950, I.C.A. It was thereafter regularly paid him until on or about November 15, 1943.
On that latter date plaintiff pleaded guilty to a felony charge. On November 26, 1943, the Board of Trustees of the Firemen's Retirement System (organized under Chapter 411 of said code) voted to terminate his pension for that reason and in claimed accordance with then Code section 6316, now section 410.8, Iowa Code 1950, I.C.A.
On November 25, 1949, this suit was commenced to compel restoration of the pension payments and collection of back unpaid installments. From a judgment and decree for plaintiff defendants have appealed.
I. For convenience and brevity we shall refer to chapter 410 as providing a pension and 41 a retirement, system.
The pension system was in existence long prior to 1934 when the retirement system originated. Chapter 75, Acts 45th General Assembly, Extra Session. The board of trustees in charge of pension funds was composed of the fire chief, city treasurer and city solicitor or attorney. See present Code section 410.2, I.C.A.
The Act creating the retirement system set up a separate seven member board to handle the funds of that system, consisting of the same three officials who constitute the pension board, plus two firemen (elected by the members of the department) and two non-official citizens appointed by the mayor with council approval.
However that same Act amended certain sections of the pension law including the section which set up the pension board, now section 410.2. See 45 Ex. G.A. Ch. 75, § 14. The Code section as it now stands has its original provision for the three member board to which is added:
'Provided, however, that in any city where contributory fire and/or police retirement systems based upon actuarial tables shall be established by this act for the benefit of policemen and/or firemen appointed to the force after the establishment of same, the board of trustees of each such system, respectively, shall also constitute the board of trustees for the management of each fund under this section as a separate and distinct fund in itself.'
We interpret this labored language to mean that in any city in which the retirement system is established the board of trustees of that system becomes also the pension board, the funds of the two systems of course to be kept separate. The language is needlessly obscure and involved, made more so by the attempt to provide simultaneously for separate firemen's and policemen's systems.
Apparently this amendment was overlooked on the trial but in the view we take the oversight is immaterial.
II. The claim of authority to remove plaintiff from the pension roll on account of conviction for felony is based on the concluding language of code section 410.8. After prescribing the method of determining disability for retirement purposes the statute concludes: 'After any member shall become entitled to be retired, such right shall not be lost or forfeited by discharge or for any other reason except conviction for felony.'
There is no affirmative provision for terminating a disabled fireman-pensioner's right to his pension, once established, except by a finding by proper procedure (including medical examination) that his disability has terminated. See Code sections 410.13 and 410.14, I.C.A. The latter section expressly says: 'Such disabled member shall remain upon the pension roll unless and until reinstated in such department by reason of such examination.'
We have held that while a pension is not a matter of contract or vested right so far as concerns the right of the lawmaking power to change it by modifying or repealing the law, nevertheless when the right once has accrued it becomes vested 'so far as relates to the obligations of the custodians of the fund to pay'. Gaffney v. Young, 200 Iowa 1030, 1033, 205 N.W. 865, 867.
Nor are we unmindful of the reluctance of courts to sanction statutory construction that favors forfeitures. State ex rel. Shaver v. Iowa Telephone Co., 175 Iowa 607, 622, 623, 154 N.W. 678; 37 C.J.S., Forfeitures, § 4b; State ex rel. Woodbury County Anti-Saloon League v. McGraw, 191 Iowa 1090, 1093, 1094, 183 N.W. 593; Reiger v. Turley, 151 Iowa 491, 501, 131 N.W. 866.
We are not disposed to read into this negative statement of the statute pertaining to a right to be retired, an affirmative authority to forfeit a pension right already existing. It surely would not be asking too much of the legislature intending such a forfeiture, that it say so unequivocally, or at least affirmatively, and provide proper procedure for accomplishing the intended result. We prefer to construe the language strictly against the pension autority as applicable to a situation where the member has 'become entitled to be retired' but has not yet been placed on the pension roll.
It is elementary that laws creating pension rights are to be liberally construed with the view of promoting the objects of the legislature. 48 C.J. 787 (Pensions § 3B); 40 Am.Jur., Pensions, § 4 (page 963). This of course means strict construction against the authority. A careful reading of other sections of the statute prescribing procedure for terminating the pension right by reinstatement of the pensioner to active duty, confirms us in our interpretation of the language here considered. Sections 410.9, 410.13, 410.14, Code 1950, I.C.A.
III. Defendants plead and argue the three year statute of limitations. Section 614.1, paragraph 4. The court applied paragraph 5, the five year statute, holding barred only the recovery of instalments that were due five years or more before suit was instituted.
The present proceeding is twofold in character: It is brought (a) to compel the defendant trustees to return plaintiff to the pension rolls; and (b) to recover back installments of pension.
We think plaintiff's right to be and remain on the pension rolls is a continuing one, the right to which cannot be lost by failure to assert it. Assuming plaintiff was unlawfully...
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