West v. Anderson

• Citation: 1 S.E.2d 671,187 Ga. 587
• Decision Date: 12 January 1939
• Docket Number: 12509.
• Parties: WEST et al. v. ANDERSON.
• Court: Supreme Court of Georgia

1 S.E.2d 671

187 Ga. 587

WEST et al. v. ANDERSON.

No. 12509.

Supreme Court of Georgia

January 12, 1939

J. C. Savage, C. S. Winn, Bond Almand, and J. C Murphy, all of Atlanta, for plaintiffs in error.

Hirsch & Smith, Welborn B. Cody, and Edward L. Cody, all of Atlanta, for defendant in error.

Section 1 of the act of August 24, 1931 (Ga.L.1931, pp. 223, 226 227), amending the act of August 13, 1924 (Ga.L.1924, p 167), provides that firemen of Atlanta, after serving 25 years in active service, shall be paid $100 a month for life that 'in case of death of a pensioner, his widow, if any, shall receive during her life and until remarried, the amount of pension being paid to said pensioner at the time of his death;' that 'if pensioner leaves no widow, but leaves orphan children under the age of 16 years, such orphan child or children shall receive until reaching the age of 16 years the pension being paid to said pensioner at the time of his death;' that 'upon the death of any pensioner under this Act, from any cause, who has no dependent entitled to his pension, the money he has paid into the pension fund shall be paid to his beneficiaries or to his estate at his death;' and that 'upon the death of an unmarried pensioner who is supporting a widowed mother, the amount of pension being paid to him at the time of his death shall thereafter be paid to his said mother during the period of her life or until she marries.' Section 3 of the act of 1931 provides that 'upon the death of such member while receiving this pension, his widow, if any, shall continue to draw the same during her life or until she remarries; and if no widow, his minor child or children shall draw the same until reaching the age of 16.'

Syllabus Opinion by the Court.

JENKINS Justice.

1. 'A constitutional Act of the Legislature is equivalent to a contract, and when performed, is a contract executed; and whatever rights are thereby created, a subsequent Legislature cannot impair.' Winter v. Jones, 10 Ga. 190(5), 54 Am.Dec. 379; Herrington v. Godbee, 157 Ga. 343, 347, 121 S.E. 312, and cit.

2. Under the ruling in Trotzier v. McElroy, 182 Ga 719, 186 S.E. 817, the act of March 28, 1935 (Ga.L.1935, p. 450), which sought to reduce 'pensions' payable to retired firemen of Atlanta, their widows, and other beneficiaries, by virtue of the act of August 13, 1924 (Ga.L.1924, p. 167), as amended by the act of August 24, 1931 (Ga.L.1931, pp. 223, 226, 227), these 'pensions' were not mere gratuities, but 'the prior acts created a contract to create a fund to which the fireman is required to contribute.' 'For this reason,' it was held in that case that 'section 4 of the act of 1935 [p. 452], supra [reducing the amounts of 'pensions'], is violative of article 1, § 10, [cl.] 1, of the Constitution of the United States [U.S.C.A., Code, § 1-134], which forbids any State to pass any ex post facto law or law impairing the obligation of a contract; and therefore it is void.' In West v. Trotzier, 185 Ga. 794, 196 S.E. 902, the ruling in the first Trotzier case was followed, and the acts of 1924 and 1931 were held valid against a constitutional attack. In Hollis v. Jones, 184 Ga. 273, 191 S.E. 127, involving similar acts relating to Atlanta policemen, the decision in the first Trotzier case was extended and made applicable to a widow of a policeman, where, after his death, and before the enactment reducing the amount of 'pension,' the widow had been receiving the 'pension' provided by the previous acts. The instant case does not involve any question of sufficiency of the fund to pay the 'pension,' as in the case of Hollis v. Jones, 187 Ga. 14, 199 S.E. 203. The present case differs from the others cited only in the fact that here the retired fireman, who was drawing the pension when the act of 1935 was passed, was not the plaintiff, as in the first Trotzier case, nor had the widow here commenced to receive the payments before the act reducing the amount, as in the West and the first Hollis cases. We now hold that where, before the act of 1935, reducing the amounts of 'pensions,' an Atlanta fireman had been retired in 1932, and was receiving a 'pension' of $100 a month under the prior acts up to the time of his death in 1937, and where during the period of such payments and at the time of his death he had a wife, such widow, even though she had not yet drawn the 'pension'...