Engen v. James
448 P.2d 977
Idaho
1969
Check Treatment

*1 P.2d 977 Sr., Plaintiff-Respondent, ENGEN, C. Arnold Chairman, JAMES, Robert Nuttle E.

Elmer Breithaupt, man, Thom, Delbert Robert Hippler, Hanson, Gittel, V. Elton A. Ivan McHugh, Hudson, Ernest John Howard Schmidt, Mayor Hurrell, Law Reine Chairman, Gardner, ex-officio rence constituting Retire Board of Police Defendants-Ap Commissioners, ment Fund pellants.

No. 10222.

Supreme of Idaho. Court

Jan. *2 Rnudson, d’Alene, ap-

E. T. Coeur pellants. d’Alene, Kimball, H. Coeur

Charles appellee.

SMITH, Chief Justice. city stipulated. The facts are “Police- of Coeur d’Alene established a man’s Fund” in accordance with Retirement 50, chap. Code, provisions Title of Idaho Appellants the board of constitute police fund commissioners d’Alene, desig- Coeur hereinafter sometimes nated as board.

July 18, 1941, appointed a respondent was policeman by d’Alene. of Coeur payroll police He remained de- 15, partment July until 1960. At that police. he held the rank of chief of 15, 1960, pursuant petition, to granted him retirement benefits on account large part of illness attributable in policeman. services as a Respondent has, aas result of this dis- ability retirement, continued to receive $2,700.00 year payable per monthly from fund, being the retirement such amount salary one-half the received chief police during year prior to his retire- ment. 1966, 19, respondent petitioned

December the board for retirement based accumulation of con- subsequent tinuous service. 50-2116(i) enactment 1965 of I.C. § repeal, reenactment, modification, April pro- as of óf relating police- visions establishment fund, 67, 429, men’s retirement S.L. ch. §§ Respondent 253-276. contended that his disability should be counted part service,” “continuous would effect an increase of his benefits equal to an amount one-half the current police. rate office chief He based his contention on the 2116(i),1 of I.C. section § 50— 429, Formerly I.C., legislature, Act. Tit. ch. 50, ch. S.L. 1. The 1967 comprises I.C., Fund Act ch. 15. Retirement Tit. Policeman’s revised the Appellants, however have taken I.C. enacted fund act proper of its context. 50-1516(a) (5) out and included in S.L. legislature written, grant re- As refers refused 262. The board ch. disability retirement, ground where determinations spondent’s petition on the *3 eligibility that there- for previously and the board of been retired fore, is not effect on his retirement are not reviewable. amendment had no the applicable rights. here. 1967, May 4, respondent this commenced admit, candidly appellants As judgment in the district declaratory action proceed complaint the this establishes that having submitted court. The cause been declaratory ing judgment arises under the decision, for the court upon stipulated facts act, I.C., 12, 10, ch. and I.R.C.P. Tit. findings conclusions entered of fact and Here, (recodified 1967 I.C. 50-2108 § holding appellant of law effect that was import 50-1508) similar as I.C. § years entitled to retirement based city police having a in a that the board of continuous I.C. § power the man’s retirement fund “have period (1961 amendment); that the of state in all to sue or be courts sued years service was attained for continuous of the administra arising in all matters out periods ap- the reason the combined of that this tion, enforcement of management and pellant’s of his active service and question whether act.” The basic years; that rate of exceeded 25 and the respondent to 50-2116(i) grants the compensation

his retirement would increase police the from additional benefits obtain pay to one-half the current rate of obviously is man’s retirement fund. job (chief police) which classification question arising out the administration 14, 1960, disability. held the time of act; therefore, management or (1965 enactment). 2116(i) Judg- I.C. § this action. proper party 50— board is a accordingly, ment which was entered from respond denied Moreover, the board since appeal this ensued. has ex thus petition, respondent ent’s and remedies, he hausted his administrative Appellants, by assignments, their effect We, there judicial relief. entitled to was holding contend that trial court erred in con fore, justiciable is a hold that there language that under the contained two troversy presented as between amendment, respondent 2116(i), I.C. § 50— parties bar, respondent’s at eligible became for the increased benefits proper declaratory judgment for equal salary to one-half current Randall, 58 Whitney form of action. classification,” “job e., police, i. chief of The district (1937). P.2d 384 disability.” “which he held at time juris court, properly assumed therefore Appellants present cite the 50-1516 diction. (5),which states, (a) “The decision of the that the eligibility Appellants further contend said board as to allowances or final,” enforce proposition power to district had no re had been legislative trial court this court have no enactment the com prior to jurisdiction pealed April review the determination May 4, 1967. action on this board. mencement of prior (i), enactment, with his a 1965 50-2116 combined eligible repealed; appears him this makes sub-section as a 50-1516(h). this as I.C. Since altered form tirement application may, upon however, appeal chapter, to the this deals with the statute revision, board, current one-half the as it be retired at existed the 1967 job classification, be used in former section numbers will rate specified. opinion equivalent, the time he held at unless otherwise its disability.” (i). has “When a period been disabled and when said and has contention. or town appellants’ merit in is no There payrolls been carried on the such de- im- presented here of question There is no partment accumulated right of unquestioned pinging on acts. time.” own alter its legislature repeal his verified

Rather, respondent submitted com- It is admitted that cannot board on to the petition ply with two of this defini- conditions the board informed December tion, e. he had accumu- i. by letter petition of such him of the denial payroll lated service and be on the 1967. The January dated department for that of time. ruling the district court were both *4 question The essential whether time of existed as law as it 2116(i), policeman’s I.C. sub- added to petition, December 1966. 50— retirement act fund created new legis- sequent repeal the statute right. judge, learned in a district case. this is thus irrelevant lature opinion reviewing succinct memorandum Moreover, recently that held this court history, legislative held the sec that employees pension rights “the right. did agree tion create a new with We plans Fund Act as Retirement such Idaho’s law, interpretation out his set as vested, modi- subject only to reasonable follows: keeping the purpose of fication maintaining its pension system flexible [Chapter “The dealt 1965 act 262] City Idaho integrity.” et al. only Hanson with I.C. 50-2116. deleted Thus, Idaho, if Falls, 446 P.2d 634 (1968). provision disabil- that reinstated after rights acquired pension had ity pre-disabil- that an officer add could existing 2116(i), those under ity post-disability service to service 50— by a rights him could not be taken from eligibility. added retirement The 1965act legislature. later This follows act of the subsection as (i) follows: ‘When compensatory from the nature policeman has been disabled and when plans, held in the cited case. as combined with service as any Appellants new next contend eligible makes him for retirement rights granted by (i) should 50-2116 may, chapter, of this he respondent, since he not be available to board, upon application to the be retired already “retired,” had and hence been at one-half the current rate They further had vested. classification, job equivalent, its (enacted contend 50-2114 I.C. § disability.’ held at the time 1947) right permanent retire- covers the ment, only for those who sig- “The act Title of is also (under years age) have served “shall 50-2116, ‘Amending nificant: Section twenty-five years than accumula- less Code, by injured providing that an ** tively They “twenty- note may disability period use his years five of Accumulated Service” eligibility, computing (enacted defined in (i) pay.’ by providing the rate of retirement 1947) follows: “After the 1965 act an had the officer Twenty-five “(i) Years Accumu- following possibilities: has An who lated Service: individual twenty-five years 1. Retirement regularly employed constituted

been service. active police department in a or town Disability any 2. time en- having of Idaho without state disabled, occupation subject to reinstatement gaged gainful other reinstated, or, duty then twenty-five had if not and has receipt of separation benefits. police accumulated with same duty will Adding time and dis- be resolved in favor active of the later enactment.” eligibility nme toward permanent retirement. Appellants next contend that even if plaintiff payroll. I.C. quires benefits. I.C. der of edly and he was no monishing tween insofar subject for accumulated service that the be carried on the involved is five 1965 fectively “Defendants “The *5 “Defendants [*] “The construction of promoting liberally only years. 50-2114(a) 50-2114 and that true under the 1947 act. But act to its twenty-five [*] created permanent retirement [respondent] abolished earning permanent Board that I.C. guided by duty construed act provisions. [*] proposition longer [appellants] contend that [appellants] controls a [I.C. time and welfare his service new payroll years accumulated [*] on the retired under I.C. 50-2118 right. with 50-2116(i)] and that when distinction was undoubt- [*] contend that for (i) section terminated laws * * * is requires twenty- persons officer object under 4? here ad- be- or- act ef- vice ness no application of ment retrospective application of the statute.- ment under the That ent does not constitute a tively. They ment, said order shall the services of a person based spondent last amendment) ed contentions. retirement (including disability retirement) statute “When the board I.C. 50-2116(i) (1947 enactment), which retirement would disability only as a attributable section should not inure to injury in on We admittedly previously retired, paid policeman.” age long (1961 * * relief under I.C. cannot deals First, ato I.C. cite the granted the course did the statute terms as the wholly issues enactment) which with length create I.C. § operates only prospec- agree 50-2116(i) disability provision a terminate or I.C. 50-2114(a) (1961 respondent, disability of service. Re with partially Since there was order of retire- in such retroactive and since the duty, § “incapacitat 50-2116, right, appellants’' continued. of I.C. § or granting respond to ser retire retire states,. police since end ill or general Several are statements “If is between 50- there conflict I.C. made regarding retroactivity statutes; 50-2116(i) the later 2102(i) and I.C. then see 37A p. Words and (per Phrases 217 It is later enactment must control. edition, manent 1950). retrospective “A by implica- legislature and amends law is rights, obligations, one which affects 50-2102(i). tion provision of I.C. ’ acts, transactions and conditions which prescribed length is no Since there performed are adoption or prior exist to the policeman eligible for make a service to of the statute.” American States Water only possible Service Johnson, Co. California v. 31 thing 2116(I) refer could 50— Cal.App.2d 606, 88 P.2d 770 (1939); Ware providing to in that active service Heller, v. Cal.App.2d 817, 63 148 P.2d 410 pro- is either the added (1944). Another statement of the same- twenty-five years active ser- vision principle following: is the twenty-five years accumulated or vice (ex- law, “A restrospective There is service. no retroactive or twenty- sense, the legal away cept disability) less than based is one takes or (i) impairs rights acquired I.C. 50-2116 vested five If of service. laws, existing it must meaning obliga- logical or creates a is have new tion, .Any imposses duty, conflict 50-2102(i). attaches apply to new

695 them, respect quent depends, transactions or some 82 a time enact past.” drawn from antecedent to the considerations Reynolds States, ment.” v. Statutes United 292 U.S. C.J.S. 443, 800, (1934). 54 S.Ct. L.Ed. 1353 78 States, F.Supp. 40 Ohlinger United 135 v. That case dealt with an ex- (D.C. Jean, 112 1955); Henry v. hospital soldier benefits for (La.App.1959); So.2d American Pan 171 expenses during ization F.Supp. Corp. Gibbons, Petroleum v. 168 passage also certain statute. See Barber, ; (D.C. 1958) 867 Utah Barber v. Hart, 427, 154, Cox v. 260 U.S. 43 S.Ct. 67 5, (1950); 327 Mich. 41 U.S. N.W.2d 463 High (1922). In ex rel. L.Ed. 332 State 138, Knight, Steel Union v. Ill.2d Credit 32 Co., smith v. Brown Funeral 236 Service ; Pape Department (1965) 204 N.E.2d 4 249, involving (1938), Ala. 182 18 So. 736, Industries, of Labor and 43 Wash.2d necessary altering the statute reserves short, (1953). P.2d 241 a statute insurance, ap following life statement “legal changes it retroactive unless pears: only “The Act then look to would effect” previous events. transactions or making requirements the future in its Dye v. District No. 32 of Pulaski School operation, past future County, 355 Mo. 195 S.W.2d computation information on which a Collieries, (1946); Black Duff v. Diamond be made to ascertain be ef an amount to ; (1930) Tenn. 33 S.W.2d 63 State operation. fective such future A law is Savings ex rel. American v. Whit Union it merely not retroactive because looks to tlesey, P. (1897). 17 Wash. past purpose.” for such Cf. State ex 50—2116(i), as enacted Bishop rel. v. Board of Education of Mount change “rights existing did not District, Village Coun Orab School Brown *6 respondent; and did nor conditions” of ty, (1942). 139 Ohio St. N.E.2d 913 40 it change “legal previous effect” the of bar, right In the case at which re- the event. This is not a an em case where spondent to did not accrue seeks enforce ployee fully and a retired sub until after the in 1965 of the enactment benefits, sequent law would increase his question, in statute the anterior and perhaps pension right even create the to a passage purposes merely to its is used for Here, re previously which not did exist. computation. Given these circumstanc- spondent, en as of the time of the 1965 apply es, I.C. 50-2116(i) we hold that does § did not 50—2116(i), actment of I.C. still § respondent, to and construction that retirement; right permanent have the to retro- does not constitute retroactive or is, disability period that time his service and spective application thereof. years, up only that added 24 time to Therefore, required right the to refer court is constrained e., statute, the i. to benefits of the new to City Angeles, 243 Cal. to Brooks Los compute together disability time and App.2d Cal.Rptr. (1966), a 52 case determining present similar the but one, to which holds the eligibility, did not create contrary holding herein. In that to our right change after of status until case the facts were to those in the similar in full section was force. bar, case at and enact involved California this, is the law In cases such as ments similar construed to those of Idaho However, operation of statute based settled that herein. distinction between does upon relating whole antecedent facts part inor statutes of two states application disability crucial, not constitute retroactive and accounts is supreme opinion the United the difference law. The court of in the cases. XVII, Angeles is not “A Article States stated rule: statute Los merely provides because charter retroactive that service-connect rendered disability pensions paid its subse- requisites facts ed life * ** disability * * * only and cease “when the and to determine whether respond- or not member shall have ent is fact permanent ceases entitled to the reg- duty.” active Under ular retirement been restored to at the increased pay rate of statutory held that the as he enactment contends. provision permitted combination stipulated The facts do indicate that re- disability purposes both spondent became an active applied only retirement time computing City July 18, Coeur d’Alene on had been dis- the case where officer actively and that he served on the force un- subsequently restored abled July til granted when he was a dis- duty. The under the Idaho statute situation disability retirement —a total retire- quite created different. ment for the full amount only long as receive act, being one-half of the sal- continues. When the ary he had received during preceding terminates, benefits, regardless so do the year police. as chief interesting duty. resumes active whether stipulated note that the facts disclose this Thus, was able where the California court retirement order of was policeman’s to view granted by the “because Board illness adequately by either of two inde- covered great part attributable in to his services as e., pendent systems (i. or normal policeman.” The record is silent as to the retirement), it held the section which nature re- illness which rendered systems, might its face connect the two spondent totally rendering disabled from reality merely questionable clarified police department. service to the system. element in the normal record silent is also on whether Here, still requested has ever or so much as indicated system policemen his desire to be reinstated to active service intended 2116(i) in Idaho. any capacity. SO— pur- bring policemen disabled within merely “plaintiff facts state has continued system. view of this date.” to receive said retirement respond- presume re- Judgment Costs to From this statement we must affirmed. any steps spondent ent. has not taken toward turning duty with the de- to active *7 partment. McFADDEN, JJ., concur. TAYLOR and worthy that on March It is also of note SPEAR, McQUADE, Justice, with whom drastically was concurs, Justice, dissenting: by providing, supplemented amended and First, I state that this court is labor- must among things that : other ing handicap in re- under a tremendous by incapacitated Any “(a) paid parties by be- solving the raised the issues * * * aas result injury by or illness meager contained cause of the information duties his performance the of official of stipulation in facts the of department paid police a a member as of and, the trial court cause was submitted to disability as such long retired course, insufficient facts of same prevents degree a shall continue in Because these facts now before this court. dis- during such efficient skimpy' instance stipulated are so as —for * from the said paid be ability shall respondent’s the record does not contain * * * as disability fund benefit fol- disability retirement request for

written lows : granting such nor the order of Board wholly to retirement, attributable July “(1) disability For presumably 18, 1960—it monthly policeman, paid the acts service as a appears must resort to to me we one-twenty-fourth equal to in order sum parties their failure to act or of salary attached amount the annual involved properly construe statutes of police person said be in he held in the such reinstated rank which If thereafter town, department, be department city, shall or service of of credited with year preceding next the number con- one of of retirement; tinuous credit- date such service with which he was ed at the time dis- retirement "(2) disability For attributable ability. part paid policeman, as a service amount to monthly an benefit “(7) person, any Such a who reason by police the board fixed is not reinstated in his de- commissioners, but commensurate fund partment, separation receive bene- shall proportion with the such serv- extent entitlement, pro- according to as fits disability relates to such ice-connected 50-2115, vided under Idaho Section person’s infirmity. pre-existing injury or Laws, (1961 pp. Code.” Session 599- may decrease said board increase or 600) whenever im- monthly such any The record contains no reference person’s pairment earning capacity by require the Board to a medical decrease, warrants increase but in an respondent any examination of at time dur- monthly paid no event shall benefit ing the drawing has been full dis- person provided such exceed the benefit spite of the fact under sub-paragraph above. original granted respondent’s order re- however, “(3) Provided, tirement because attributable illness paid is entitled to receive com- great part policeman. to his services as a pensation Compen- under Workmen’s Therefore assume Board we must that the it sation the state require any Law in fact did not such medical exists, or shall be amend- re- examination to determine how much of hereafter ed, payable spondent’s disability the amount this act attributable shall by be reduced to which paid policeman amount service as a said paid policeman is entitled under quoted. the 1961 amendment hereinbefore Compensation Workmen’s Law. From or failure these acts act on “(4) part Board, board I can fund require shall ex- commissioners except medical reach no other conclusion applicants was, all retire- aminations fact, 1960 retirement in- shall, ment by reason at disability, parties tended be a involved to board, peri- require discretion said of re- total odic persons spondent. medical examinations supported This conclusion is ceiving retirement allowance. the fact that respondent has not rendered general The said shall prescribe service to since retirement, required e., July rules medical examinations the date of his i. *8 hereunder, I960; may provide by and dis- petitioning and his the Board for permanent any by regular continuance retirement and retirement rights bringing require allowance all un- to and this to the Board forfeiture of person retirement, respondent der act who such this allow has con- refuses clusively to such examination. his never to submit evidenced intention de- return to active with the service “(5) The the said as to decision partment. eligibility allowances or final. Taking assumed into consideration these “(6) disability beneficiary is de- there- When facts and the to be drawn conclusions herein, reasoning termined the said board be not in- from set forth capacitated prevents Appeals degree in a in Brooks California Court City Cal.App.2d Angeles, 243 Los efficient Cal.Rptr. persuasive, allowance shall be cancelled is (1967), most forthwith. provisions and, opinion, be these court con- my should followed California in majority opinion recog- cluded The court. : contrary the result nizes that Brooks is plaintiffs, re- “If have been who attempts majority by the and reached tired further service under sections from noting distinguish the factual situations two (on disability), 182j4 182 and account of in terminology in used our some difference duty, not be restored to active have Angeles city charter. in the Los statutes and permitted be retired also were now I do not attempted distinction With this years (for or more under section agree. appear they it service), would receiving all received to continue plaintiffs would be entitled In Brooks ”* * * they disability pensions. present been disability pensions and had not their precisely duty. is to active restored not The court ruled that it was reasonable are we the factual situation with which that the retirement to conclude section of faced at hand. One in cause charter were intended sections of the pen- for “service” provided charter create a result. “disability” pensions, sions rather than pointed is be that there here out must been re- officers had which the retired nothing relied in the various statutes twenty expiration of ceiving, after him, if his by respondent prohibiting herein years employment dates. or more from their upheld, petitioning for be from contentions particular part relied section permanent dis- being granted both part: upon by provided officers retirement, aggregate computing “In eight ceiving receiving for and has been * * * service of member regular years, and the section, purposes there shall in- of this The mere this action. which he seeks time, periods cluded the voluntarily agreed respondent fact that any, while such member was on relinquish complaint his amended * * *.” retirement under legal affect (i) manner does not following paraphrased this in court same, reasoning of right to the manner: applicable to equally court Brooks plaintiffs’ way, claim “Stated another at hand. cause years is that since 20 or more have here, pertinent For additional reasons elapsed they ap- from the times were the California concluded pointed they entitled to employees, interpretation reasonable they pensions though have even the time involved disability pensions been retired may be included disability retirement many years still and are disabled required for computing the of service duty.” not been restored to active have disability has only if regular retirement exactly the contention This is restored has been person and the terminated herein. duty. to active pointed further that under The court out agree. I With this there was certain sections of the charter be re- my opinion, this cause should that a member shall be disabled manners, either one of shall there- solved in two retired service and from further *9 per- trial court to lifetime, that it remanded to pension, during after receive provide parties if the mit the with pension shall cease determining these shall the facts essential disability ceases if the member issues, judgment reverse duty. An- been restored have court, deny respondent pensions trial provided that so other section and order (a) 50-2114 tirement granted in full and ef- should remain force disability retirement construing to full period granted. fect (which receiving) long has been degree illness continues in

prevents provided in efficient service as as amended the 1961 Ses-

I.C. 50-2116 Laws, pp. (now codified as

sion 9). 50-1516 in volume

448 P.2d 986 BONNER, county

COUNTY OF Idaho, Plaintiff-Respondent, State of DYER, Defendant-Appellant.

Glenn

No. 10274.

Supreme Court of Idaho.

Dec.