State ex rel. Nielson v. McCarty
| Decision Date | 26 January 1955 |
| Docket Number | No. 8149,8149 |
| Citation | 76 Idaho 153,279 P.2d 879 |
| Parties | The STATE of Idaho, on Relation of N. P. NIELSON, Auditor of State of Idaho, Plaintiff-Respondent, v. Leo J. McCARTY, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Cox, Ware & Stellmon and Paul W. Hyatt, Lewiston, for appellant.
Robert E. Smylie, Atty. Gen., Robert Hodge, Asst. Atty. Gen., and J. Ray Durtschi, Asst. Atty. Gen., for respondent.
This appeal presents for determination a construction of the Judges' Retirement Compensation Law, Sections 1-2001 to 1-2007, I.C., and the amount of retirement compensation to be paid appellant. The facts necessary for a decision are as follows:
Appellant was appointed and served as a district judge from November 16, 1948, to December 31, 1950. Because of his age (seventy years) he was ineligible for re-election. On retirement from office, December 31, 1950, he became eligible, under the Judges' Retirement Compensation Law, for retirement payments under the provisions of Ch. 104, 1947 S.L., as amended by Ch. 130, 1949 S.L., Section 1-2001 to 1-2007, I.C.
Appellant contends that, under the law, he is entitled to be paid the sum of $270.83 per month commencing January 1, 1951, conditioned on his paying into the fund by deductions from his retirement compensation, the sum of $1,056.94, which additional sum he would have paid into the retirement fund had he served for a ten year period.
The State Auditor so interpreted the law and on and between January, 1951, and February, 1952, paid appellant $2,735.38 figured on the basis that appellant was entitled to $270.83 per month, less the sum of $1,056.94. The Auditor brought this action to recover an alleged overpayment of $1,931.78. The trial judge found that appellant had been overpaid in said sum and entered judgment against him for that amount, from which judgment this appeal is prosecuted.
Appellant contends that under the Judges' Retirement Compensation Law he is entitled to be paid fifty percent of the salary he was receiving when he retired from office, less what he would have paid into the Judges' Retirement Fund had he held office for ten years, and that the overpayment cannot be recovered bacause such overpayment, if any, was due to an error of law on the part of the disbursing officer having charge of the Fund.
The original Judges' Retirement Compensation Law was enacted by the 1947 S.L., Ch. 104, effective May 3, 1947, and Section 1 provides:
'Each person who is now serving as a justice of the supreme court or a judge of a district court of this state shall, upon attaining the age of seventy years, or who now is seventy years of age, and upon retirement from office either by expiration of his term or by voluntary retirement, be entitled to receive and to have paid to him the annual retirement compensation hereinafter provided.
By the provisions of the above-quoted section of the act, judges and justices entitled to retirement compensation were divided into two classes; first, judges and justices serving at the time the act became effective (1947), and second, judges and justices thereafter elected or appointed. Appellant was not in office the effective date of the act, and therefore comes within the classification of one thereafter elected or appointed. By the terms of the act, he was entitled, on retirement, to be paid 'that proportion of one-half of the annual salary or compensation of the office at the time of his retirement which his period of service bears to ten years'. This section was amended by 1949 S.L., Ch. 130. Thereby other classes of judges entitled to retirement compensation were created and other matters not pertinent here enacted.
It is the contention of appellant that Section 1, Ch. 130, 1949 S.L. supersedes Section 1, Ch. 104, 1947 S.L. and that when Ch. 130, 1949 S.L. was enacted and became effective, appellant was serving as a district judge and therefore is entitled to the full retirement compensation, subject to his paying into the fund the amount that he would have paid had he served for a period of ten years.
The 1949 ame...
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