This сase was originally carried to the Supreme Court of Georgia. The Supreme Court transferred it to this court as one of that class of cases that involve “the mere application of unquestioned and unambiguous provisions of the Constitution to a given state of facts.”
Webb v. Whitley,
The uncontradicted facts and the statutory law involved in this case are as follows:
Petitioner’s deceased husband, James G. Webb, began his еmployment as a fireman of the City of Atlanta in 1912, and served in that employment for more than 34 years.
Under an Act of 1924 (Ga. L. 1924, p. 167), any paid member of the fire department in a city having a population in excеss of 150,000 by the United States census of 1920 or any subsequent United States census could retire from active service as a matter of right after twenty-five years active service, and the retired member would thereafter be paid monthly for the rest of his life one-half of the salary he was receiving at the time of his retirement. An Act of 1931 (Ga. L. 1931, pp. 223, 225) amended Section 4 of the Act of 1924 so that if one-half the salary the member was receiving at the time of his retirement was less than *155 $100, the member would be paid $100 monthly after his retirement for the rest of his life. In case of the death of a pensioner, his widow, if any, would receive during her life and until remarried, the amount of pension being paid to the pensioner at the time of his death.
An Act of 1935 (Ga. L. 1935, pp. 450, 452) amended the 1924 Act to reduce the monthly amounts of pensions, but neither appellant nor appеllees express any contentions involving the 1935 Act. In 1945 the legislature passed an Act (Ga. L. 1945, p. 1080) which amended the 1924 Act so that Section 4 provided: “When such member shall retire as a matter of right, he shall be paid thеreafter for the rest of his life 55% of the monthly salary or pay that he was receiving at the time of such retirement, but the maximum amount to be paid to any fireman as a pension shall be the sum of $100.00 per month ... In case of death of such pensioner, his widow, if any, shall receive during her life or until remarried, a sum equal to three-fourths of the amount the pensioner was drawing at the time of his death . .
On April 9, 1945, after the effective date of the 1945 Act, petitioner’s husband signed a statement which was filed with the •board of trustess and which contained the following clause: “I hereby authorize City Comptroller to make deductions from my salary in order that I mаy participate in the 1924 Pension Act as amended.”
Thereafter, the 1924 Act was amended by Ga. L. 1947, pp. 717, 719, which added the following to Section 4: “The amount of pension herein authorized shall be increased by 4% for each full year such member shall serve before retiring in excess of 25 years and not in excess of 35 years.”
The petitioner’s husband, James Webb, retired from active service as a member of the fire department on April 1, 1947. At that time his salary was $304.75 a month. The Board of- Trustees of the Firemen’s Pension Fund fixed his pension at $136 a month. After his death on August 30, 1952, the board fixed the monthly amount of pension to be paid petitioner as his widow at $102 a month effective September 1, 1952.
Petitioner claims that she is entitled to a monthly pension of $207.23. This amount would be $152.38, the amount provided *156 by the Act of 1924 as originally amended by the Act of 1931, plus $54.85. The latter amount is 4% оf the former multiplied by the 9 years which petitioner’s husband served in excess of 25 years, and is claimed under the amendatory Act of 1947. She also claims unpaid sums which she contends have accrued from the date of her husband’s retirement.
Petitioner argues that denial of these claims, based upon the amendatory Act of 1945, is in violation of Art. I, Sec. X, Par. I of the Constitution of the United States and Art. XII, Sec. I, Par. I of the Constitution of this State in that the amendment impaired contractual obligations due petitioner under the 1924 and 1931 Acts and in violation of Art. XII, Sec. I, Par. Y of the Constitution of Georgia of 1877 because the 1945 Act affected her vestеd rights granted by the former Acts. These constitutional provisions are restricted to the protection of
vested
rights; they do not render inviolate mere contingent or speculative interests. See Ochiltree v. Iowа R. Contracting Co., 21 Wall 249 (22 LE 546);
Phillips v. J. L. Peed Co.,
The obligation of the City of Atlanta to pay benefits to firemen under the Acts of 1924 and 1931 amounted to a contractual relationship between the city and each fireman with considerаtion flowing from both parties, giving to the fireman a vested right protected by the inhibition against the impairment of the obligation of a contract under both the State and Federal Constitutions.
Trotzier v. McElroy,
“Where contributions arе required to the pension fund, and where services are rendered while the pension or retirement statute is in force, so that the statute becomes a part of the contract of employment and is a part of the compensation for the services rendered, a contract is created under the rulings stated in the
Trotzier
case.”
Burks v. Board of Trustees,
supra. Thus
*157
the contractual rights granted by the statute become vested in the fireman immediatеly upon any participation in active service while the statute is in effect, irrespective of whether at the time in question the fireman has completed sufficient length of service then to be eligiblе for retirement as a matter of right. See
Bender v. Anglin,
The fireman, however, by execution and delivery of a written statement by which he authorizes deductions from his wages for the express purpose of participating in the pension benefits provided by the statute as amended, irrevocably consents tо the law as changed by amendment and surrenders any right to claim benefits as originally provided by the pension law, where in return for his consent he receives consideration by way of additional benefits and chаnged contributions.
Hartsfield v. Mitchell,
Clearly, if petitioner had a vested right to benefits provided by the 1924 Act as amended by the Act of 1931, neither the 1945 amendment nor the consent subsequently given by her husbаnd would have been effective to alter that right. However, the *158 petitioner’s right to receive benefits under the pension law essentially was derivative and until it could be said to have vested in her, it depended entirely for its continued existence upon those rights which were vested in her husband. To the extent that the wife’s rights were not vested separately in her but were merely contingent, at the time her husband gave his consent to the change in the law, his consent was effective to change her contingent rights also.
The status of a dependent with respect to a contract created under a pension law has been stated to be that of a third party beneficiary. State v. City of Jacksonville Beach, (Fla. App.) 142 S.2d 349, 357. We are aware of the general rule that unless the power to do so is reserved, the duty of a promisor to a third party donee beneficiary cannot be released by the promisee or affected by any agreement between the promisee and the promisor. Restatement, Contracts, § 142. This prinсiple finds some support in Georgia cases involving ordinary life insurance policies. E.g.,
Perry v. Tweedy,
It is true that in the absence of her husband’s consent to the law as changed by the 1945 amendment, petitioner would have acquired a vested interest in the contract between him and the city immediately upon his retirement.
West v. Anderson,
The 1924 and 1931 Acts provided no benefits for the fireman’s widow unless the fireman died as a pensioner (see
Burks v. Board of Trustess,
This holding is not to be interpreted to mean that the 1945 amendment would have affected the widow’s interest without the husbаnd’s consent prior to his retirement. Her contingent interest, though itself not directly protected by constitutional provisions, would have been sustained by the continuance of the vested interest in her husband, which was protected.
Judgment affirmed.