*1 merit; affirm' the accordingly we would medical obtain position he could where judgment. necessary by using the available attention if fellow-employee automobile, sending a or being Justice, JOHNSON, MERCER J. Augustin arrived along to see GORDON disqualified, the Honorable pos- other safely. There are office doctor’s Court, Santa FARLEY, Superior Judge of conclusion inferences sible from stead County, was Cruz called to sit be drawn. negligence could participated the determination appeal. this duty to opinion also our It not alone does medical attention furnish em- certainty. an
spring a moral would
ployer in the of due care exercise might known that an have
should bodily harm life or serious loss of
suffer duty to provided, the aid was medical unless Therefore, action arises. affirmative
take here, where, conclude jury could Roy ROBINSON, Appellant, G. healthy apparently inmale was an
there presence working life prime of BOARD for the POLICE PENSION CITY TUCSON, Appellee. developed OF heat who environmental high circulatory collapse dis- nausea, and motor No. 6592. prudent order, man would reasonable Supreme Court Arizona. suffering employee was believe May 20, order to hold as stroke. from heat negligence, there was no law that matter being where men said that
it must temperatures sun
worked prudent reasonable higher, a
degrees anticipate heat stroke. We would
man men could believe to that fair-minded
think find contrary with reason that loss bodily harm would or serious life provided. medical aid unless
suffered ques- the remaining considered
We upon by majority, passed
tions wholly opinion they are without
in our *2 Kimball,
William Tucson, F. appel- for lant. Healy, Jr.,
F. Dale Tucson, appellee. for UDALL, Justice. appeal plaintiff
This
who sued in
declaratory
the trial court
judgment
that,
to him and
similarly
others
situated,
Legislative
amendment in 1952 of the
“Police Pension Act of 1937” was void and
unconstitutional, and praying for
fixing
of his
under the terms of the first
serves
de-
July
The
who
enactments.
the two legislative
partment
years
twenty
aggregate
upheld the
judgment
trial court
its
retired,
upon application,
may,
constitutionality
plicability and
appeal presents
amendment. The instant
paid
lifetime
during
shall
problem determined
facet
another
per
equal
fifty
monthly pension
cent
Board
Pension
Police
the recent case of
monthly compensation
average
Denney,
Ariz.
of Tucson
by him
received
present
Incidentally,
387 question single presented by The this to the benefits which would accrue appeal constitutionally is whether under the then existing law vested competent change Legislature property person such the basis of computing subsequent deprived by the amount cannot be ** plain- sion in a manner act unfavorable to of the Legislature. tiff, especially at the end a time so near This rule clearly represents so the hold plaintiff at which the would ing of the majority, countrywide, become entitled to may fairly support be said perfect. to it be earned and In different contrary view be cited from question words the is one as to whether in states, California, three of which Kern — effect, 1952, when the amendment took City Beach, 29 Cal.2d plaintiff pro- rights of under 179 P.2d typical; Washington, as perfect viding were so represented by Seattle, Bakenhus v. constitutionally vested he could Wash.2d and Geor deprived of them. gia, represented Anglin, Bender v. 207 Ga. very A S.E.2d 756. com
. problem is the cor underlying appended annotation is plete to a rect nature determination of extent and reported A.L.R.2d 437. plaintiff’s rights under the Act pension, providing for and their status cases, quite California numerous, at the time those amendment. were considered the Nebraska court rights rested contract and were vested Lickert Omaha, 144 Neb. clear it must could N.W.2d but the reasoning in them deprived unilateral of them action rejected; and when the various and firmly Legislature. This is a estab contradictory in the statements California principle sys in our Constitutional lished cases are considered it must be conceded tem. standing that their authority greatly lack weakened. The of certitude in the question an answer this finding holdings of the court is illus- California McQuillin, quotation from following *4 case, supra trated the Kern Cal.2d [29 12.144, helpful: Ed., is Vol. 3rd 803], in which the “vested view, majority “According to the theory right” given effect, was but the pensions existing as to in court also declared the same case: public enters into service does one time appears, part a of the contract em- “Thus it form when not the cases together, are considered sense that an ployment em- right acquire con- when in truth in fact is a may a vested and it ployee only if the right pension a but can have an existence tractual to bring into fixed uncertainties of the future it rigidly is right not this appears legislation being. ef- The distinction in uncount- specific terms reasonably decisions, ed fair particular period in a during any number fect Nestos, statutory example being lan- of them Wirtz serves. The which he quali- subject implied N.D. 530: 200 N.W. guage is make has sistency sonable that the a system. fication that fits, right but modifications vested pension. therefore only amount, any fixed or definite right a governing terms There substantial and to a holding that changes in the and does body no incon- conditions or bene- may rea- but he tion which not tingent, not continued existence of dition of existence “ '* vested, future things only [*] may vested, when it event; on an event or condi- until the right happen. depends is happening right it present comes expectant, is con- on into altered.” be of the benefits submit We the 1952 amend ment, point precise question, on the may not of that case Under the facts unconstitutional on its oth- either face as the result reached be said that similarly situated, and others lack- term service just, than er is not. There is no middle ground, would or it days officer before the ing Act, them, retire, as to hence should either pensioned and to be entitled upheld en- down stricken unreason amended as so Charter was when the arbitrary. court It should be noted able pension. tirely to eliminate applicable Police Pension Act to de- all naturally properly was astute keep having popula the those cities of the State dealings “That the double feat ear, twenty break tion of than in not less thousand promise our word incorpo habitants, hope,” very circuitous and to those smaller but a to our support result who ordinance rated cities towns taken route 9- such a fund. have created A.R.S. the court. § reached Hence, actuarial soundness right” terms “vested “con- When any given city, the fund or whether “expectancy” interest” tingent reasonably change is shown to meaning ascertained and their considered preserve required there to the integrity of wholly incongruous to think of it seems system, being is not “vested” a matter *5 inquiry, judicial Legislature fairly has for the We do not believe it can power modi- said plenary make reasonable before the facts court that any is, changes disparagement fication unreasonable and in the law plaintiff’s course, pension rights operative inchoate on statewide basis. arises out County amendatory legislation complained Peace of the Sweesy Angeles v. Los P.2d of. Board, judgment Officers’ R. We hold that of the Cal.2d 37, 40, learned trial court both with rea court stated: accords son and authority. with the better
“ * * * question Therefore, Judgment affirmed. of what benefits would be warranted by either the con- individual or mass PHELPS, J., KELLY, J., C. legis- tributions to the fund for the cur. body, lative for the courts, respective board or the whose disqualified by rea- Justice JOHNSON
functions in such cases are to admin- son of having By been judge. the trial interpret provisions ister stipulation parties, Judge retired the law as written. HENRY C. KELLY was called to sit in appears It the same contentions his stead accordance with Article raised, are and the same authorities cited Section Constitution of Arizona. in the instant urged case as were Denney case, considered in supra. BERNSTEIN, (dissenting). Justice upheld There we Legisla- readily agree I that “the rationale of the suspend pension payments ture to Denney basically case is determinative of recipient such a was receiving appeal,” the instant but I am constrained salary an officer of a disagree with the conclusions of the political State; subdivision of the here court enactment here proviso a less drastic we have of broaden- reviewed is “less drastic” change in the pensions ing base on which are to be pension scheme than was sustained in the computed. Both have to do with main- Denney case and that the change here system taining the beyond challenge one whose pension fund making the more sound. It adversely affected. in addition prin- our view ciples earlier Constitution, enunciated in this opinion, Our Article A.R.S., rationale case is like those of basical- California and Wash- appeal. ly prohibits determinative instant ington, the state and gov- local Beach, making Kern v. from ever ernmental subdivisions' they by subsidy or Cal.2d were “any grant, donation or association, individual, parently decided otherwise, under different constitu- ** provisions.” Accordingly, to tional corporation Bakenhus *6 Seattle, 695, problem 698, 296 P.2d 48 constitutional Wash.2d avoid the serious are, were, 536, 538; 207 Anglin, posed, we see v. also Bender which would expressed 108, 756, Ga. More- reject 112, required to the view 60 S.E.2d Kinney over, represent v. Con- see, pensions to courts, g., recognize e. that Board, 330 Appeal compensation during the deferred earned Retirement tributory State 59; v. 302, Roach employment 113 N.E.2d course of held out Mass. 41, 116 Retirement, part promise 331 Mass. of of inducement and Board of employment of acknowledge what 850; Board to McCarthy State v. N.E.2d See, is an apparent age. g., e. 850, fact of this 116 N.E.2d 46, Retirement, 331 Mass. supra; Weinberg, Bender v. Anglin, pension employees’ 852, government that Significant Planning in Trends Pension donations gratuitous programs involve Employees, Public 11 Public Personnel state, prospective which from Kneir, (1950); City Rev. 78 Government prior right whatever no have sioners can Thus, in the United States 487-489.1 donation, at least receipt necessarily said, Denney wisely case due becomes pension donation time a 3-4, 394, 84 Ariz. 330 P.2d reason,” as said “For this payable. Washington, “the Supreme Court “ * * follow certain which jurisdictions those [were] cases per- the officer re- majority given cannot that must be rule so-called Subject though spected. out for, pointed to reasonable here, as was suasive provisions passing opinion increasingly majority mentions in when be 1. The employed prior prominent private appellant a feature of was first came ployment em Appellant’s contracts. of the 1937 for enactment leaving employment in not he now relies. bearance law analyzed imply (which majority also can a fact series means acceptances result, employment affirmative a difference make should term) Denney case, 84 Ariz. for each contract must be con held analytically specifi legal equiva as the I wish to sidered P.2d 330 employment entering proposition. my cally first to that lent of dissent note promise outstanding. A.L.I., entered Cf. Appellant 90; City of Contracts Restatement Section with service Sparling, Cal.App.2d 711, v. 87 em Hunter mind, in such he did continue but 807; years Foods, Inc., v. Hunt West after ployment some sixteen Cal.App.2d 597, for, provided 225 P.2d 978. pension was changes Angeles, Los P.2d modification and 50 Cal.2d 484; the legislature. Beach, Cal. Allen % 2d ‡ Bakenhus sjc 5|s “ of Seattle, supra. dis- If the Court now * * * fairly courts parages (all the authority cases of those well in agreement that, prior retire- incidentally, except case, Washington ment, permitting reasonable decided after ma- cited necessary pensions modification jority), also must be critical of pension systems kept since must be quoted case. If it relies on the permit flexible to in ac- adjustments portion Corpo- 3 McQuillin’s Municipal cord with and at changing conditions rations 12.144, ignore it must the same time maintain the immediate addition to entered the text system carry out its benef- p. Supplement, Cumulative policy. permissible scope icent that “Any pension plan revision of struc- change is to determine courts ture, however, adversely affects Necessarily presented. on the record rights of the participants, must bear some such modifications be reason- must material par- relation the theory *7 able.” ticular system and its successful result, although the conclusion operation or it prospective will have reached the case at vari- plication only rights mem- of new Hickey Pittsburgh ance with Pension v. bers. It has also been held that the dis- Board, 300, 233, 378 Pa. 106 A.2d 52 A.L. advantages resulting to a members from perhaps R.2d because the 430— revision should by comparable be offset reviewed, change there forbidding com- new advantages.” “wholly If it finds it pensation governmental agencies, two incongruous to of pen- think the to a subject a so much involved within ”, being sion as step it ‘vested’ take a must political of realm unreviewable choice-—- developmental reverse to the trend of the approach that suggested the decisional cases influenced “the generally now ac- Pennsylvania, California and Wash- cepted theory pensions part are a of See, g., cases. cases ington e. recent compensation an employee which, of to Harvey Alle- v. Retirement Board of ordinary circumstances, under he as County, 421, 197; 392 Pa. A.2d gheny paid much entitled as he is wages to him Allegheny Retirement Board of Wright v. he actually performed,” work has 231; Rupert 390 Pa. 134 A.2d County, Annotation, 437, 441, 52 A.L.R.2d Fund, re- Relief Pension and Policemen’s v. opinion A.2d ject expressed Abbott v. Pa. considered 3in the Den- light foregoing, Sec- Read in Municipal Corporation Law of the Antieau, 4], ney utiliz- Ariz. 330 P.2d that a vested 22.11, p. 257, to the effect [84 tion ing words, gov- recognizes its own that a adopted rights rule such “certain employee possesses ernmental represents “the Supreme California Court rights rights” in the nature of contractual “certitude” be- seeks better view”. promise fixed at employer provide,2 it yond the cited cases what Denney the uni- employment, subject time of attempt to must abandon change employer only lateral courts other effort of case as well as the reasonably equities change the such be is shown to competing to reconcile the required plan adjust to to flexibility em- and the state in favor of “changing time stability, conditions and at the same ployee consistent with in favor of system maintain concepts law. See of contract traditional carry policy.” ques- out Aspects its beneficent Note, Pension Plan Contractual case, then, in each to “on be answered Modification, 251. tion 56 Col.L.Rev. Allegheny County Harvey See, g., line of stitute an unbroken California e. Supreme authority, Board, Court drawn from Pa. Retirement experience painstaking reflection, 203: 141 A.2d that, may the Allen case [Allen said in summarize the law re- thus “We public employe Beach], lating Cal.2d a to system 767: as follows: a retirement employee’s pen- complied employe “An vested has contractual An who “1. rights may necessary sion to to receive modified re- all with conditions purpose keeping a be affected tirement allowance cannot a retirement adjust- pension system permit subsequent legislation adversely by to flexible which changing changes con- ments in accord with terms of the retirement conditions the same time maintain the in- tract. system. tegrity [Citing employe cases.] has not attained An who “2. reasonable, eligibility allow- Such modifications must be receive a retirement legislation subject may which and upon courts determine ance changes facts of ease what the terms of the retirement each permissible change. change To a reasonable if the' stitutes contract reasonable, alterations of of the actuarial soundness sustained enhancement pension rights employees’ must bear retirement fund. theory employe not attained relation An who has material “3. system operation, eligibility and its a retirement allow- successful receive sion legislation pension plan subject changes not be re- ance disadvantage employees changes the terms of retire- sult should *8 by comparable change accompanied if the does rea- be vantages. new ad- ment contract * * * sonably actuarial soundness enhance the City also v. fund.” See Cochran retirement Beach the 282, Cal.App.2d 839; cases, 293 suffice it 139 P.2d California Glaes- As for the City Berkeley, disparity Cal.App. say 148 whatever of view er v. 61; Chapin early 614, City time the deci- 2d 307 the the existed Cal.App.2d Commission, 40, 149 in Lickert 307 were reviewed P. sions Omaha, 75, 644, the 2d 657. 144 Neb. 12 N.W.2d Kern, Abbott cases con- Allen and recent presented,” integrity the the is of the fund record whether If showing. required could reasonably contrary not make a change is shown to ab any assumption preserve appropriate is I would system, e., regard, sound- sence of i. its actuarial evidence in to enhance ness, or, that, is apparently deter- think it fund to be if the as the court even ifi case, augment jeopardy, mined in available to is a reasonable means are it change paramount payments promoting reducing interest without plaintiff’s implicit promise state without detriment were an serious employee. 9- employment. 9-923 Cf. A.R.S. §§ A.C.A.1939, 16- 16-1812 and §§ question The mere statement of that an- 1810, or variable providing additional First, considering swers itself in this case. municipal contributions to the fund monthly average likelihood that ity insuring as the means of the actuarial compensation employees of most will be event, any fund. if soundness of the In greater year preceding if measured present majority the notion —to which the retirement than if five- measured yet pays lip only even service—that rea year period retirement, is preceding permitted sonable modifications change self-evident legislative life, meaningful can here reviewed would reduce the implemented by opportunity an providing many law, employees relying earlier on the challenge e., reasonableness, i. as it plaintiff’s pension. would reduce the basis, rational legislative modifica for a No change more af- sweeping drastic or presentation tion relevant facts. prospective fecting pensioner, short of Compare Sinclair, 264 Corp. v. Chastleson fund, total elimination 543, 405, 841; U.S. S.Ct. 68 L.Ed. legislature conceivable. can without Line, Inc., Schappi of Hammond v. Bus any showing of reduce the Justification 218; 275 U.S. 72 L.Ed. S.Ct. payable pensioner prospective amount ato Co., Borden’s Farm Products v. Bald Inc. plaintiff by like $22, reason no win, 293 U.S. 55 S.Ct. 79 L.Ed. appears why it cannot reduce the amount 281; Thompson Co., v. Consolidated Gas payable brief, the in- one dollar. if 55, 69-70, 300 U.S. 57 S.Ct. 81 L. summarily ap- change stant 510; Ed. United States v. Carolene Prod proved, become Co., ucts U.S. 58 S.Ct. Second, nothing. proceeding motion 1234; 82 L.Ed. Polk Company v. defendant, summary judgment, Glover, 5, 10, 305 U.S. 59 S.Ct. course, challenged L. has not shown that the required reasonably preserve change Ed. State Board of Barber Examiners *9 Tucson; v. Edwards, affecting policemen 76 Ariz. correcting Hughes (3) 420-421. that Mr. other As Chief means Justice by the page case, situation, at said in 293 U.S. suggested such as Borden’s that “ such page above statutory provisions cited S.Ct. suitably only with enacting where legislative legislation action effect to have respect challenged, policemen, basis employed rational later * * * predicated particular eco- render sufficiently impracticable so as * * * outside are nomic which the means not unreasonable facts chosen a notice, facts these sphere judicial remedial solution. properly subject of evidence below I would reverse the decision be- inquiry feared findings.” such that, in con- remand so for trial difficulties, answer it is meet to cause its formity Denney case spirit with sort with that the difficulties are view, the and what better I consider the reasonableness, courts, assessing findings based court can have the benefit of far Thus, so long familiar. been facts, fiat. legislative on relevant enactment shown reasonably required one situation —for STRUCKMEYER, dis- J., concurs city— sent. example, protect the fund one the two situations in another and
but not separately, facility treated with
cannot account may be taken into fact States See United legislation.
aid Co., To supra. with- Products Carolene P.2d 746 case, inquiry and decide from the draw ZANCANARO, Appellant, Emil opinion, though majority as does question to de- “no factual were there CROSS, Plumbing N. dba Norman Cross judicial assume notice termine” is Heating Co., Appellee. & are not known' facts economic 6444. No. (1) priori, are unknowable: which, a Supreme Court of Arizona. city Tucson was inade- fund May 27, 1959. depletion danger of serious or in quate Rehearing enacted; June modification was Denied city of some-Arizona the fund (2) legis- ameliorative posture and inwas easily be enacted without could
lation