State ex rel. Albright v. City of Spokane, 37270

• Citation: 64 Wn.2d 767,394 P.2d 231
• Decision Date: 16 July 1964
• Docket Number: No. 37270,37270
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the relation of Mary E. ALBRIGHT, Respondent, v. The CITY OF SPOKANE, a municipal corporation, Neal R. Fosseen, its Mayor, A. A. Brown, its City Clerk, Emmett J. Lancaster, its City Treasurer, Wesley W. Natwick, John H. Robertson, and Homer C. Hall, comprising the Board of Trustees of the Police Relief and Pension Fund of the City of Spokane, Appellants.

Page 767

64 Wn.2d 767

394 P.2d 231

The STATE of Washington on the relation of Mary E. ALBRIGHT, Respondent, v. The CITY OF SPOKANE, a municipal corporation, Neal R.

Fosseen, its Mayor, A. A. Brown, its City Clerk, Emmett J.

Lancaster, its City Treasurer, Wesley W. Natwick, John H.

Robertson, and Homer C. Hall, comprising the Board of

Trustees of the Police Relief and Pension Fund of the City

of Spokane, Appellants.

No. 37270.

Supreme Court of Washington, En Banc.

July 16, 1964.

John P. Tracy, Jr., City Atty., Howard A. Anderson, LeRoy C. Kinnie, Dudley L. Wilson, Don R. Shaw, Jr., Spokane, for appellants.

Kizer, Gaiser, Stoeve, Layman & Powell, Benjamin H. Kizer, Spokane, for respondent.

ROSELLINI, Judge.

The relator brought this action to obtain an order directing one of the appellants, the Board of Trustees of the Police Relief and Pension Fund of the City of Spokane, to issue pension checks to her in accordance with the provisions of Laws of 1961, chapter 140, p. 1688. The action was resisted on the ground that the law in question violates the provisions of amendment 35 to the state constitution. The trial court found this contention to be without merit and ordered the Board of Trustees to honor the relator's application.

The facts are not in dispute. The relator's husband, Harry C. Albright, retired for years of service as an officer of the police division of Spokane, August 12, 1949. The law at that time did not provide for a pension to a surviving spouse upon the death of the retired officer.

In 1959, the legislature for the first time provided for monthly payments to a surviving spouse of 'any member of the police department * * * or * * * any such member who is hereafter retired * * *.' Laws of 1959, chapter 78, § 2, p. 490. This law did not provide a pension to a surviving spouse of a member of a police department who died or retired prior to the effective date of the act.

Chapter 140, Laws of 1961, amended the 1959 Act by providing that whenever a member of the police department of any such city

'* * * shall die, or shall have heretofore died, or whenever any such member who has been heretofore retired or who is hereafter retired for length of service * * * shall have died, or shall die, * * *.'

a pension shall be paid to his surviving spouse. Officer Albright died June 20, 1962, more than a year after the effective date of the statute.

The constitutionality of Laws of 1961, chapter 140, § 1, was questioned in the case of State ex rel. Bolen v. Seattle, 61 Wash.2d 196, 377 P.2d 454. The members of the police department whose widows sought pensions in that action had died prior to the effective date of the statute. In holding that the statute as applied to the facts before the court was in conflict with amendment 35 to the state constitution, we said:

'While the constitution as amended authorizes legislation increasing existing pensions, it does not authorize the legislature to grant a widow a pension when there was no right thereto at the time of the death of the husband. The respondents [surviving spouses] were widows when the statute was enacted, at which time they had no pension rights. A subsequent act granting a pension to such a class is not an increase of an existing one.'

In this case, the husband was receiving a pension at the time the statute was enacted, and the question before us is simply whether the granting of a pension to his widow would constitute an increase in that pension or would amount to the creation of a new pension where none had theretofore existed.

Amendment 35 to the state constitution, adopted November 1958, provides as follows:

'The legislature shall never grant any extra compensation to any public officer, agent, employee, 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. Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted.'

Prior to the adoption of this amendment, we had held that the legislature could not enact a law increasing pensions of retired police officers. Sonnabend v. Spokane, 53 Wash.2d 362, 333 P.2d 918. After its adoption, we approved an act increasing the amount payable per month to persons receiving pensions. Luders v. Spokane, 57 Wash.2d 162, 356 P.2d 331.

The position of the appellants is that the amending sentence means that the legislature now has the authority to increase the amount of an existing...