FIREMEN'S PENSION ACT ‑- WHETHER THE AMOUNT OF A FIREMAN'S PENSION OF A FIREMAN WHO WAS CONTINUOUSLY EMPLOYED FROM DECEMBER, 1923, TO JANUARY, 1952, APPLYING FOR RETIREMENT BY REASON OF LENGTH

FIREMEN'S PENSION ACT ‑- WHETHER THE AMOUNT OF A FIREMAN'S PENSION OF A FIREMAN WHO WAS CONTINUOUSLY EMPLOYED FROM DECEMBER, 1923, TO JANUARY, 1952, APPLYING FOR RETIREMENT BY REASON OF LENGTH OF SERVICE, IS CONTROLLED BY THE PROVISIONS OF THE 1919 FIREMEN'S RELIEF AND PENSION ACT, OR THE 1935 AMENDMENT THERETO, OR THE REPEALING ACT OF 1947.

The amount of the pension to be paid to a fireman employed continuously as a fireman from December, 1923, to January, 1952, applying for retirement by reason of length of service, is governed by the Firemen's Relief and Pension Act of 1919 and the amendments thereto, including the 1935 amendment, but is not affected by the 1947 repealing act.

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                                                                November 5, 1952

Honorable A. B. Comfort
Representative of the 26th District
State Legislature
915 Pacific Avenue
Tacoma 2, Washington                                                                                                              Cite as:  AGO 51-53 No. 423

 Dear Mr. Comfort:

             Receipt is hereby acknowledged of your letter of August 26, 1952, in which you inquire as to whether the amount of a fireman's pension of a fireman who is continuously employed by the City of Tacoma from December 1923 to January 1952, applying for retirement by reason of length of service, is controlled by the provisions of the 1919 Firemen's Relief & Pension Act, or the 1935 amendment to that act, or the repealing act of 1947.

             Our conclusion may be summarized as follows:

             The limitation on the amount of a pension to be paid to a fireman employed continuously as a fireman from December 1923 to January 1952, applying for retirement by reason of length of service, is governed by the Firemen's Relief & Pension Act of 1919 and the amendments thereto, including the amendment of 1935, but is not affected by the repealing act of 1947.

              [[Orig. Op. Page 2]]

                                                                     ANALYSIS

             The Firemen's Relief and Pension Fund, chapter 196, of the Laws of 1919, provides for two situations whereby an eligible fireman may become entitled to a monthly pension.

             The first, is by reason of the length of service of twenty years and having reached the age of 55.  These requirements having been met, the recipient becomes entitled to a monthly pension of one‑half of the salary in the position be held for one year immediately preceding his date of retirement.  The second, is awarded upon a finding of a physical or mental disability occasioned by the performance of, or as a result of his duties as defined in the act.  If retired for this cause the party becomes entitled to one‑half of the salary of the rank held immediately preceding retirement, so long as the disability continues.

             Chapter 39, Laws of 1935, amended the act of 1919, and insofar as it is pertinent to this question it placed a limit on the amount of retirement pay not to exceed $125.00 per month.

            A new Firemen's Relief and Pension Act was set up by the enactment of chapter 91, of the Laws of 1947, which repealed all former laws on the subject.  However, in the 1947 act a saving clause was inserted in section 12 of that act which provides:

             "* * * Provided, That the repeal of said laws shall not affect any 'prior fireman,' his widow, child or children, * * * to receive payments and benefits from the Firemen's Pension Fund created under this act, in the amount, and in the manner provided by said laws which are hereby repealed and as if said laws had not been repealed."

             Section 1, subparagraph (11) of the act of 1947, defines "prior fireman" as follows:

             "'Prior Fireman' shall mean a fireman who was actively employed as a fireman of a fire department prior to the first day of January, 1947, and who continues such employment thereafter."

              [[Orig. Op. Page 3]]

            In the case of Jolly v. Bremerton, 31 Wn. (2d) 873, 199 P. (2d) 587, at page 876, the court states:

             "* * * while Laws of 1947, chapter 91, § 12, repealed the prior firemen's pension law, the repealing clause provides that the repeal of the prior laws shall not affect any 'prior fireman' in the matter of his rights to receive payments and benefits from the firemen's pension fund 'created under this act, in the amount and in the manner provided by said laws which are hereby repealed as if said laws had not been repealed.'

             "Manifestly, the effect of the foregoing provision is to keep in effect for 'prior firemen' the old pension law; * * *

             "It is patent that the legislature intended to continue the old pension law for firemen who were employed prior to January 1, 1947, and who continued employment thereafter, and to make the new pension law applicable to firemen who commenced work in a fire department on or subsequent to January 1, 1947."

             As we earlier stated, in 1935 the legislature amended the 1919 Firemen's Pension Act by placing a ceiling of $125.00 on the amount of the monthly retirement allowance, where formerly it merely had provided for a monthly pension allowance of one‑half of the pay of the rank held for one year immediately preceding the retirement date, without limitation on the amount.  The 1935 amendment states at section 12, chapter 39, Laws of 1935, that:

             "Nothing contained in this act shall affect, or be construed as affecting, the validity of any act done, obligation entered into or rights accrued, or any proceedings had or pending, under the act of which this act is amendatory."

              [[Orig. Op. Page 4]]

            The saving clause of section 12 of the 1935 amendment,supra, delineates certain situations which are not to be affected by the 1935 amendment.  These situations would seem to be three in number:

             (1) shall not "affect * * * the validity of any act done, * * * under the act of which this act is amendatory."  This clause would seem to refer to an affirmative act done by a claimant for the purpose of bringing to the attention of the municipal firemen's pension board the claimant's request for consideration of his claim, for retirement or disability benefits under the 1919 act, or an act done by the board pursuant to an affirmative act on the part of a claimant, or without such request in their discretion accomplished in accordance with the provisions of the 1919 act.

             (2) shall not "affect * * * the validity of any * * * obligation entered into * * * under the act of which this act is amendatory."  The legislature here no doubt refers to action taken by the municipal firemen's pension board under the 1919 act, and that any obligation made regarding the disposition of funds, in conformance to the provisions of the 1919 act are not to be affected by the 1935 amendment.

             (3) shall not "affect * * * the validity of any * * * rights accrued * * * under the act of which this act is amendatory."

             The crux of the question presented is contained in what the legislature intended by the terminology "rights accrued."  The term "right" or "rights" has a long standing and recognized meaning, and in the absence of evidence indicating a contrary intent it must be presumed that the term is used in its recognized sense.

             The term "right" is usually defined as "a claim or title to an interest in anything whatsoever that is enforceable by law."  Bayley v. Miller, 45 Ind. App. 475, 91 N.E. 24.

             In the Restatement of the Law of Conflict of Laws, at § 42B, the term right is defined:

             "* * * A right, as the term is used in the restatement, is a legally enforceable claim of a person against another that the other shall do a given act or shall not do a given act.  The relation indicated  [[Orig. Op. Page 5]] by the term 'right' may also be stated from the point of view of a person against whom the right exists.  This person has a duty; that is, he is under a legally enforceable obligation to do or not to do an act.  * * *"

             The term "accrue" means:

             "To come into existence as an enforceable claim; to vest as a right; as, a cause of action has accrued when the right to sue has become vested.  * * *"  Leahey v. Department of Water and Power, 76 Calif. App. 2d. 281 [[76 Cal. App. 2d 281]], 173 P. (2d) 69, at page 72.

             In the Oklahoma case of In re Ross, 201 Oklahoma 476 [[201 Okla. 476]], 207 P. (2d) 254, the question presented was much the same as we are here confronted with.  That case concerned the law which applied in regard to the amount to be paid the widow of a retired fireman.  The deceased was receiving a pension under the 1941 law which provided that upon his death his widow should receive his pension in the same amount.  However, prior to his death in 1945 the law was amended to the effect that the widow was to receive not in excess of 66 2/3 percent of the husband's pension.

             In Oklahoma the constitution of the state provides (Article 5, section 54) that the repeal of a statute cannot affect any accrued right.  The court said:

             "* * * the right of plaintiff to receive a pension did not accrue until the death of her husband.  An accrued right is defined as a matured cause of action, or legal authority to demand redress."

             Therefore, a person who became employed as a fireman in December of 1923, would not have an accrued, vested or matured right to a pension under the 1919 Firemen's Relief and Pension Act, until December, 1943, presuming that he was also 55 years of age.  Patently then he could not have an accrued right which would entitle him to a pension under the 1919 act as contemplated by the saving clause of section 12, chapter 39, Laws of 1935.

              [[Orig. Op. Page 6]]

            We therefore conclude that the amount of the pension to be paid to a fireman employed continuously as a fireman from December 1923, to January 1952, applying for retirement by reason of the length of service, is governed by the Firemen's Relief and Pension Act of 1919 and the amendments thereto including the 1935 amendment, but is not affected by the 1947 repealing act.

 Very truly yours,
SMITH TROY
Attorney General 

STEPHEN C. WAY
Assistant Attorney General