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Bank v. Fleming
Bank,
309,
State
74 Colo.
No.
Pensioners Protective Association et v. al. et al.
Davis (150 974) P. [2d] Rehearing July 31, Decided June 1944. denied *2 Mr. Noah Atler, A. Mr. Frank Mr. Samuel Chutkow, Joseph Irving Mr. Berenbaum, Mr. J. Lindner, Mannix, in error. for plaintiffs General, Mr. H. Law- Attorney
Mr. Gail Ireland, L. Meyer, Assist- Mr. Donald H. Deputy, Hinkley, rence George in Thomas, Assistant, for defendants Mr. K. ant, error.
En Banc. of the delivered the opinion Hilliard Justice Mr. court. petition fees and costs attorney allowance of
A relief ad- rendered, and on services suit, of predicated Association, Protective in Davis v. Pensioners judged, found, 142. The trial court 380, 135 P. (2d) Colo. reasonably, plaintiffs ten earned that, had counsel for sympathetic dollars, toward allowance thousand and was concluding in such therefor amount, but, that the main- a was suit held that it was state, gave judgment tainable, and of denial. state- reported contains mentioned case above sum- ample a sufficient detail, in
ment of the situation mary Public Welfare Board of of is that Stаte parties- personnel —the of which were —-admin- per- finding istering age pension the old expense centage apart set to cover of the fund produced a sum excess administration, such requirements regard, permitting in that instead pension resulting surplus to rеmain in acting pensioners, pursuant to and, direct interest statutory surplus enactment, transferred such contingent emergency of our hold- fund. The sum *3 ing that the transfer was violative matter, in the was hence void. Constitution, the of plain- litigation, the the for which
As the result of responsible, petitioners and, as here, were therein, tiffs approximating announcement, a sum the time of our of Old dollars returned to the thousand was four hundred testimony Age the Director of Fund, and the of Pension Department fund would showed that such the Welfare greater by cоnsiderably sum enriched continue to be recovery per month. The ef- dollars than ten thousand solely prospective, was in the inter- fected, immediate and age pensioners, inactive, not those est of the old those less than It active, in its attainment. was a class suit. The properly petitioners is that of the contention authorized by in the matter, made them and reason- disbursements able they compensation prevailed counsel whom had litigation, appears, as the to conduct should con- moneys chаrges against the thus restored to the stitute thereby pension justice fund, work measurable responsible therefor. appearing, aggregate in circumstances the If, of illegally pension the sums fund, diverted from the which were restored decree in a cause thereto court prosecuted by petitioners against the State Welfare may subjected Board as trustee thereof, the ex pense accomplishment involved in the thereof, court proper disbursements would constitute a item, and coun reasonably еnjoy sel legiti fees, admeasured, would like macy. §§74-76. Opposition 14 Am. Jur., Costs, to the petition by any beneficiary pension is not voiced of the groups pensioners, having part fund, indeed, some no proper, formally in the petition suit have endorsed the joined prayer here and Only in the for its allowance. opposes. Sufficiently the trustee fund stated, the objections, legal (1) all in character, are: The fund was never under the control of the court, hence, within the purview petition, subject of the (2) not to its order; inviolability age pension of the precludes old petitioned (3) allowances; contemplates sovereignity, permissible. invasion of state The last point found favor with the trial court. Considering age pension that the old moneys whatever source constituting it, is wholly special functioning and administered a board may regarded thereto, relation we think it not be fund, or the board so administer other than as a trust ing premises Indeed, the other than as trustee thereof. jurisdiction ex the basis of indicated constituted Generally, case. Davis ercised and decision and any perhaps always, trust fund and its administra subject inquiry. In tion become approved view, made and orders broad we below *4 whereby pension fund, the the in relation to trustee was required desist further diversion thereof, from and already to restore thereto that which had been diverted. fund, the Since, in interest control thereof large, consistently, perceive, was exercised as we like exercise should attend the incidents. In short, hav ing jurisdiction of a assumed class cause to restore fairly succеeded, moneys fund, diverted to a trust which legitimacy claims of the decline to consider we re- against portion thereof, the restored prosecution. sponsible presentation successful its and for pen the from to take 2. do not seek Petitioners disbursemеnts, they only court sion that their ask counsel, properly compensation for their taxed, and paid of out judicially determined, be and ascertained already diverted moneys had welfare board appearing, imposing and sum from that fund in the But for petitioners thereto. to be restored which the caused pension thereof, the the trustee misdirected acts of for the but diminished, and fund would not have been thoughtfulness painstaking petitioners, efforts and any restoration. there not have been counsel, would petitioners en Equity prompts are the conviction regarded pension as of its status titled to have they petition in their determined acted, before and they accomplished light relation thereto. in of what nothing pensioners, petitioners, in their themselves seek they They only in be reimbursed behalf. ask that own outlay was, it which, little as costs, their small and not otherwise burden, counsel, and that constituted profit their therefrom, be made to feel that success pensioners generally merits ful effort in behalf of recognition. think that favorable modest We cannot equitable on their would be violative of action legal principles. indicate that trial much to There is only
judge declined views, similar entertained conformity of his convic proceed therewith because sought petitioners reсovery being would tion that sovereignty. state violative of state, be as pause. given studied con question us Our has same point present. The is not however, is that clusion, judgment judge In on Re Benedictine his based trial Parry 1088; 39 Pac. v. Board 69, 21 Colo. Bill, Sisters’ (2d) 251; Colo. P. State v. Correctiоns, 93 *5 Company, (2d) Colorado Postal 104 Colo. 91 P. Attorney arguing emphasized The General, here, Analysis same cases. of those authorities the record here reciting should furnish the answer. After Benedictine inquiry provisions Sisters’ “that none of of the constitution held violated,” rеferred to be we will appropria- Legislature legally might that the “make an property private paying purpose tion” for for the just public use without which for the state had “taken sought re- compensation.” Parry case, architects In the building covery plans the Board which for a drawn * * * hos- at the state erect Corrections “intended to pital “plans to be at intended were Pueblo,” which appropria- used, an used, and were in an effort to obtain being Legislature,” tion from the failed. No fund which compen- оut available of which the architects could Company sated, the suit failed. Colorado Postal State v. against was a direct suit the state. Of course it was holding. not maintainable, and that was the sum of our wholly special, Here, in contrast, marked there is a origin. аnd of constitutional It is administered statutorially board, thereof, denominated as “trustee” in which relation, as we held in the it is case, Davis subject control and is direction. dependent upon legislative not appropriation. state, sovereign capacity, in its has, and can have, no interest therein. No relief sought the state, as such, was originally, nor does the under consideration in- spoliation sovereign volve forays or in, inroads or any on, moneys state fund. The public involved are not They segregated funds. speciаl stand desig- for a ‘public nated use. “The term belong- funds’ means funds * * ing to the state *. The apply term special does not funds, which are voluntarily collected or contributed, for the sole benefit of the contributors, and of merely the state is the custodian.” 50 §40. C.J. 854, Clearly, as we think, the cases on which the welfare distinguishable relies are board applicable. and not petitioners re- We are are entitled convinced that legal involved, lief, and services since the value of the questioned, court, as found trial and fixed *6 of al- an order reasonable, and seems there should be costs, for all taxable sum, lowance that as well as discharged the con- whole to be in accordance with cluding paragraph opinion. this conclusion, however,
Our not be understood should cоnstituting as board or the reflection the welfare Attorney original The diversion of the fund General. statute, was consistent with the and was voided because judicially the statute declared to be unconstitu- was opposition petition here tional. The board’s to the is in keeping duty guard with its the fund over it which Attorney appearance control, exercises and the of the behalf conforms his General same constitution- duty. al judgment
Let the of denial of the reversed, pay, the trial court to order defendants in error to or paid, registry cause to be into the of the district court City County Denver, and the sum of ten thou- ($10,000.00), propor- sand dollars costs, and out of the age pension tionate amount due the old fund from the unexpended portion (5) per of the five cent administra- fund, tive to be distributed as said district court direct.
Mr. Justice Burke dissents. Goudy did not participate.
Mr. Justice Burke dissenting. Mr. Justice the obvious. I think demonstrate difficult to
It is language. speaks lucid for itself in Section Constitution Amendment) Age (the Pension Old XXIV article Age moneys deposited in the Old “All Pen- reads: purposes remain inviolate sion Fund shall for for part shall no thereof be transferred created, and which any any appropriated or other other used or for ” purpose for that this claim To me inconceivable it is attorneys’ the section if $10,000 fees be allowed would attorneys’ part fees read “No thereof shall be used for any purpose.” Certainly payment of at- or torneys’ other purposes for
fees was not one of the part of the fund was created. We have said that now fund shall be used therefor. That to me a direct seems plain prohibitiоn violation of a of the Constitution. I think it is fundamental that taxes can be levied only public people purposes. collected for have by amendment act, an declared their most solemn age of old payment the state their Constitution, the benefit persons pensions qualified to certain by public money people. is collected of the whole only be deposited public can official law, awith provided statute. paid private persons as out to *7 money the state. paid the Until I think it remains sо for a and collected these are levied Otherwise taxes by private are purpose the treasurer held and while rightfully private property. is the treasurer If so and by money custody as commanded the disburses any obligation can mandate, the statute оr how replace it? Yet the amendment rest the state to paid provides per month shall be that a minimum of $45 by qualified. depletion to If then of the fund this point a $10,000 reduces available amount to where (that payment hap- .the can made has commanded nоt be pened past happen again) and could the state is by good directed make Constitution to the deficit. appears conclusion, me, inevitable as it is that supplies fund is fund of the state. If one sells county public paid, a it for the benefit is that he be but part payment he owns no of the fund from which will provided by be made. It is taxation and remains the property county until disbursed. If there be no money payment ordinarily in the fund from which is county supply must it from other sources. attorneys nothing These have saved to the state. The money activity simply taken out result of is their pockets put one in another. of the state’s by penny. profit state Those has no who benefitted salvage expense are alone liable for the thereof. Who- get any Age attempts portion ever of this Pеn- Old statutory levy sion Fund, save as the of its beneficiaries only and collection, can do so an action state. I This, think, is action such an and it is forestalled recognized you rule that can not sue a sov- ereignty. foregoing
For the reasons I dissent. 15,498.
No. Best,
Garcia v. Warden. 864) (150 [2d] P. Rehearing 31, July 1944. denied Decided June *8 plaintiff Mr. E. V. error. Holland,