Dillon v. . Wentz
41 S.E.2d 202
N.C.
1947
Check Treatment
Denny, J.

Tbe City of Charlotte having elected to have its employees become eligible for participation in tbe North Carolina Local Gj-overnmental Employees’ Retirement System, and its active firemen having joined said System, tbe question presented on this appeal is: Shall tbe Charlotte Firemen’s Retirement Fund Association be dissolved and its assets liquidated, and, if so, bow shall tbe assets of tbe Association be distributed ?

A careful consideration of tbe Acts under which this Association operated leads us to tbe conclusion that its status was that of an unincorporated mutual benefit association. And when tbe operations of such an association have been discontinued and its purposes abandoned by common consent, “a court of equity will decree its dissolution and distribute such assets as remain, after tbe payment of its indebtedness, among its members according to the amount contributed or paid by each.” 38 Am. Jur., 589. Tbe Association at all times was under tbe exclusive control of tbe active members thereof and tbe trustees elected by them. Tbe City of Charlotte bad no authority to make any deductions from tbe salaries of its firemen for tbe benefit of tbe Assosciation, until tbe firemen themselves by a two-thirds vote of tbe active members thereof, fixed tbe amount to be deducted from their respective salaries. Tbe City of Charlotte at no time bad any interest in or control of tbe funds of tbe *122 Association. Therefore, the contention of the appellants that the members of tbe Fire Department of the City of Charlotte are legally bound to continue making contributions to the Association for the benefit of the appellants and other beneficiaries of the Association, is without merit. It is the general rule that laws creating benefits of this character may be amended or repealed, and that mutual benefit associations may be discontinued and their assets liquidated. And until a member of such an Association has a matured claim within the terms of the Act creating the fund, he has no vested right therein. His interest in the fund is a mere expectancy. Pennie v. Reis, 132 U. S., 464, 33 L. Ed., 426; Passaic Nat. Bank Trust Co. v. Eelman, 116 N. J., 279, 183 Atl., 677; Retirement Board of Alleghany County v. McGovern, 316 Penn., 161, 174 A., 400; Griffith v. Rudolph, 298 Fed., 672.

The question as to whether or not the assets of this Association could be transferred to and administered by the North Carolina Local Governmental Employees’ Retirement System, under the provisions of G. S., 128-25, is not raised or presented on this appeal. Hence, we think on the record before us, the court very properly ordered the dissolution of the Association.

If the appellants were mere pensioners and their pensions were being paid by the City of Charlotte out of tax funds, they would have no vested interest which could be enforced as to future payments. 40 Am. Jur., 981. “No person has a vested right to his pension. Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute, or recall, at its discretion.” Walton v. Cotton, 60 U. S., 19, 15 L. Ed., 658; U. S. v. Teller, 107 U. S., 64, 27 L. Ed., 352; Frisbie v. U. S., 157 U. S., 160, 39 L. Ed., 657; 54 A. L. R., 943n. Pensions are charitable gifts. In re Smith, 130 N. C., 638, 41 S. E., 802; People ex rel. Donovan v. Retirement Board Policemen’s Annuity & Benefit Fund, 326 Ill., 579, 158 N. E., 220, 54 A. L. R., 940; Re Snyder, 93 Wash., 59, 160 Pac., 12, affirmed in 248 U. S., 539, 63 L. Ed., 410. But a different situation arises where the annuity or benefit has accrued and is payable out of a retirement fund created wholly or in part from contributions made by the members of the retirement system. Stevens v. Minneapolis Fire Department Relief Asso., 124 Minn., 381, 145 Minn., 35; Trotzier v. McElroy, 182 Ga., 719, 186 S. E., 817; Retirement Board of Alleghany County v. McGovern, supra.

The appellants and other beneficiaries whose claims had accrued and who were receiving life benefits from the Association at the time the order for its dissolution was signed, .have a vested interest in the accumulated assets of the Association. Such 'claimants, whether receiving benefits under the 1933 or 1941 Act, are entitled to hav*e their claims satisfied in full before the active members of the Association are entitled to receive anything. For so long as this Association was functioning, its *123 active members bad no vested interest in its assets. Under tbe terms of the 1941 Act, it was necessary for a member to resign or be dismissed, not as a member of the Association, but as a member of the Fire Department of the City of Charlotte, in order for him to be entitled to a refund of seventy-five per cent of all moneys he had paid into the Association. The transfer of his membership from this Association to the State Retirement System is not tantamount to a resignation or dismissal from the Fire Department of the City of Charlotte. Consequently, the judgment of the court below is erroneous in so far as it holds that the claims of the beneficiaries under the 1941 Act and the claims of the active members for a refund of seventy-five per cent of the total contributions made by them to the Association, are on a parity and should be paid pro rata.

The active firemen of the City of Charlotte, who were members of this Association on 18 March, 1946, regardless of their present status of employment, are entitled to receive pro rata on the total of their respective contributions to the Association, all the remaining assets of the Association after the matured claims referred to above have been satisfied in accordance with the judgment of the court below as modified herein.

Finally, the appellants insist that the assets of this Association should not be liquidated but held intact by its trustees as a trust fund, for the payment of the monthly benefits of those whose claims have vested or matured prior to the' institution of this action. In this we do not concur.

Moreover, the appellants are not in a position to object to that portion of the judgment below which provides for the payment of their claims on the basis of their cash value as of 15 December, 1945, as may be determined under the mortuary tables of the State of North Carolina, according to the age of the respective claimants on the above date. The judgment in that respect is in conformity with their prayer, and they are bound thereby. Johnson, v. Sidbury, 226 N. C., 345, 38 S. E. (2d), 82; Carruthers v. R. R., 218 N. C., 377, 11 S. E. (2d), 157. “A party cannot complain of an instruction given at his own request.” Bell v. Harrison, 179 N. C., 190, 102 S. E., 200. Neither should he be permitted to challenge the correctness of provisions contained in a judgment which were inserted at his request or in conformity with his prayer. Ordinarily an appeal will not lie from an order entered at the request of a party, and “it is immaterial that such request was in the alternative,” Larson v. Hanson, 210 Wis., 705, 242 N. W., 184. Boyer et al. v. Burton, 79 Ore., 662, 149 Pac., 83; Silcox v. McLean, 36 N. M., 196, 11 Pac. (2d), 541; Schoren v. Schoren, 110 Ore., 272, 222 Pac., 1096; Blumenfeld & Co. v. Hamrick, 18 Ala. App., 317, 91 Sou., 914; In re Gurnsey’s Estate, 61 Cal., 178, 214 Pac., 487; State v. Howell, 139 La., 336, 71 Sou., 529.

*124 Tbe judgment of the court below, except as modified herein, is affirmed.

Modified and affirmed.