
    BYRD v. CITY OF DALLAS et al.
    (No. 923-5011.)
    Commission of Appeals of Texas, Section B.
    May 23, 1928.
    
      1. Constitutional law <&wkey;190 — Municipal corporations <§=^>176(3), 871, 957(I) — Statutes authorizing pensions to police and fire department employees held not unconstitutional gratuity or application of public funds to private purposes (Rev. St. .1925, arts. 6229-6243; Const, art. I, § 16, art. 3, §§ 44, 51-53, art.-8) § 3, art. 16, § 6).
    Rev. St. 1925, arts. 6229-6243, authorizing payment of pensions by cities having population of over 10,000 to employees of police and fire departments who have served 20 years in either of such departments and have filed written statements indicating desire to become beneficiaries and have contributed a portion of their salary to fund, held not violative of Const, art. 1, § 16, art. 3, §§ 44, 51-53, art. 8, § 3, art. 16, § 6, prohibiting application of public funds to private purposes or. gratuitous grants of such funds to individuals, corporations, or purpose, right to participate in such fund not being a gratuity or donation, but part of agreed compensation of said employees.
    2. Constitutional law &wkey;>26 — Legislature may pass any law not forbidden by federal or state Constitution.
    The Legislature has right to pass any law which its wisdom suggests not forbidden by some provision of the federal or state Constitution.
    3. Municipal corporations <&wkey;>l87, 200 — That police and fire department employees being retired after 20 years’ service were not incapable held not to show maladministration of pension fund (Rev. St. 1925, art. 6235).
    Under Rev. St. 1925, art. 6235, providing that member of the police or fire' department who has contributed portion of his salary to pension fund and has served 20 years or more shall be entitled to be retired from service on his application at one-half of salary, fact that employees being retired on pension were experienced, capable men, able to do their work, when placed on retired list, did not show maladministration of the pension fund; incapacity, inability, or indigence not being requisites to retirement on pension.
    4. Municipal corporations <&wkey;>l76(3) — Required 20 years’ service to entitle police and fire department employee to retirement on pension need not be served subsequent to enactment of statute (Rev. St. 1925, art. 6235; Const, art. 3, § 44).
    Under Rev. St. 1925, art. 6235, providing that member of police or fire department who has contributed portion of his salary to pension fund and has served 20 years or more shall be entitled to be retired from service on his application at one-half salary, the required 20 years’ service need not be served subsequent to the enactment of the statute to entitle applicant to pension, notwithstanding Const, art. 3, § 44, prohibiting additional compensation for services already performed.
    5. Constitutional law <&wkey;70(3) — Policy or wisdom of legislation is for Legislature, not for courts.
    Courts are not concerned with the policy or wisdom of legislation, but they can deal only with the power of the legislative body to pass such legislation.
    Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by W. R. Byrd against the City of Dallas and others. Judgment for defendants, and plaintiff appealed to Court of Civil Appeals, which certified questions.
    Questions answered.
    Claude O. Westerfield and V. A. Collins, both of Dallas, for appellant.
    Jas. J. Collins, Hugh S. Grady, W. H. Knight, and H. P. Kueera, all of Dallas, for appellees.
   SPEER, J.

This question is before us upon the following certificate from the Fifth district:

“Appellant, W. R. Byrd, brought an injunction suit against appellees, the city of Dallas and the board of trustees of the firemen, policemen and fire alarm operator’s pension fund to enjoin them from paying out pensions to Louis W. Brown, Sam Dimean, Theo Harrison, John W. Rj’an, and J. H. Tanner, retired policemen, and T. A. Myers, retired chief of the Dallas fire department, as authorized under the charter of the city of Dallas and the pension laws of the state enacted by the Legislature in 1919.
“The suit is prosecuted on the theory tljat chapter 10 of the General Laws of Texas, enacted at the regular session of the Thirty-Sixth Legislature, commonly known as the ‘City Pension Laws,’ is unconstitutional, and that the provisions of the charter of the city of Dallas, authorizing such pensions, and the ordinances, substantially the same as the said legislative enactment, are unconstitutional. The provisions of chapter 10 of the acts at the regular session of the Thirty-Sixth Legisjature have been carried into chapter 1 of title 109 of the Revised Statutes of 1925, and constitute articles 6229 to and .including article 6243.
“The city of Dallas in 1916, prior to the legislative enactment, passed an ordinance with substantially the same provisions as the said legislative enactment. On December 7, 1921, ordinances were passed by the city of Dallas substantially the same as the said state enactment, except that the number of trustees is increased by adding thereto chiefs of the police and fire departments, and there is appropriated from the general revenues of the city each year a sum of money equal to 1 per cent, of the salaries of all those who could become, under the terms of the ordinance, beneficiaries of the pension fund. Previous to the passage of these ordinances, there had been submitted to the qualified voters of the city of Dallas, apparently authorized by article 6242, supra, the question as to whether the governing body of the city of Dallas should be empowered to appropriate, from the public revenues each year, for the purpose of augmenting the pension fund, an amount of money not less than 1 per cent., nor greater than 2 per cent., of the salaries of those entitled to become beneficiaries of such fund. At an election regularly held for this purpose, a majority of those voting recorded themselves in favor of the appropriation, and it was in pursuance of the authority thus granted that an appropriation from the general revenues of the city, equal to said 1 .per cent., has been made each subsequent year. The pension fund of the city of Dallas therefore consists of the fund authorized by the said legislative enactment and of the said 1 per cent, authorized by ordinances of the city of Dallas. The pensioners named in appellant’s petition for injunction are each being paid monthly fifty per cent, of the salary such pensioner was drawing at the time he was retired and placed on the pension list. All employees of the city of Dallas, who may be beneficiaries of this fund, are appointed and hold their position during good behavior.
“The petition for injunction not only challenged the validity of above-named laws and ordinances by proper allegations, but also contained allegations charging maladministration of the pension fund by the trustees charged with the duty of administering this fund under said law and ordinances, in that it is charged that the parties named as pensioners were experienced, capable men, and well able to do their work,' at the time they were placed on the retired list and made beneficiaries of this fund, and that they are still able and capable to do such work. With this allegation as a basis, it is further alleged that in permitting the named parties to draw a pension, the said trustees are guilty of fraud on the pension fund. It is also charged that, because of the alleged unconstitutionality of the legislative enactment and the city ordinances in conformity thereto, the use of all the public funds, that have gone into and become a part of the pension fund, is unlawful and a diversion of public moneys, and, further, that the ordinances, appropriating the said 1 per cent, from the public revenues, are illegal and void.
“The appellees filed an answer, full and complete, denying specifically all charges of maladministration by the trustees, and specially pleaded that the city pension law, as enacted by the Legislature, and the ordinances passed by the city of Dallas in pursuance thereof, became a part of the contract of employment of the policemen, firemen, and fire alarm operators, and, as such, the payment of pensions to them thereunder was a payment of a part of their stated compensation for services rendered, previously withheld, and that the ordinances passed by the city of Dallas and the state pension law are constitutional.
“There was a trial in the court below, in which judgment was rendered in favor of appellees denying the injunction, and the appeal was duly prosecuted to this court and submitted on briefs and oral arguments. Because of the importance of the case, and because there is doubt in the minds of the members of this court as to the correct solution of certain issues involved in the case, this court has deemed it advisable to certify the following questions to your honorable court for adjudication:
“Question No. 1. Is that portion of title 109, Revised Statutes of 1925, embraced in articles numbered from 6029 [6229] to 0043 [6243], inclusive, a valid enactment, or is it invalid, because of the limitations on legislative power contained in sections 44, 51, 52, and 53 of article 3, and section 3 of article 8, and section 6 of article 16„of the state Constitution?
“Question No. 2. Is an ordinance of the city of Dallas, appropriating from the general revenues of said city an amount of money equal to 1 per cent, of the combined salaries of the fully paid policemen, firemen, and fire alarm, operators, and applying same to the city pension fund, a valid ordinance, such appropriation of such money having been authorized by a majority vote of the voters of such city prior to the enactment of such ordinance?
“Question No. 3. In view of the fact that neither the legislative enactment in question, nor the ordinances of the city of Dallas, specifically authorize a review of the actions of the trustees as to their administration of this pension fund, can the plaintiff, whose only interest in the subject-matter of this suit is that of a resident taxpayer, maintain a suit to enjoin such trustees because of alleged maladministration of this fund?
“In connection with question No. 3, we call the court’s special attention to the provisions of article 6239, supra.
“Question No. 4. In determining whether an applicant for a pension has served the1 requisite number of years, can his years of service previous to this legislative enactment be taken into consideration, or must he have served the time required to entitle him to a pension subsequent to such legislative enactment?
“In connection with question No. 4, we call the court’s special attention to the provisions of article 6235, supra, and to section 16 of article 1, and to sections 44 and 53 of article 3, of the state Constitution.”

The sections of the Constitution, so far as pertinent, referred to in. the certificate, are as follows:

“Sec. 44 (art. 3). The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of the same; nor grant by appropriation or otherwise, any amount of money out of the treasury of the state, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the state, unless authorized by pre-existing law.”
“Sec. 51 (art. 3). The Legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporations whatsoever,” with certain stipulated exceptions.
“Sec. 52 (art. 3). The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the state to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever,” etc.
“Sec. 53 (art. 3). The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into, and performed in whole oi^ in part,” etc.
“Sec. 3 (art. 8). Taxes shall be levied and collected by general laws and for public purposes only.”
“Sec. 6 (art. 16). No appropriation for private or individual purposes shall be made.”
“Sec. 16 (art. 1). No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts', shall be made.”

That portion of title 109, Revised Statutes of 1925, embraced in articles 6229 to 6243, authorizes the payment of pensions by incorporated cities having a population of over 10,000 to employees such as those mentioned in the certificate. By the terms of the act the fund created for the payment of such pensions is to be administered by a board of trustees composed of the mayor, two aider-men or commissioners, two citizens, the chief of police, and the chief of the fire department. The plan contemplates that the employees mentioned who desire to be beneficiaries of the scheme and to participate in the fund shall file a written statement with the city clerk indicating such desire and authorizing the city to deduct 1 per cent, of the employee’s wages each month to form a part of the pension fund. Articles 6230, 6231. The fund may be increased by donations, rewards (article 6231), and from public funds upon the majority vote of the voters of such city or town (article 6242).

Article 6234 declares:

“Any person who at the establishment of saiá fund, or thereafter shall have been duly appointed and enrolled in the fire department, police department or fire alarm operator’s department of any such city or town, to which application is made for participation in said fund by such person and who has filed his written application within thirty days after the organization of such board, or who shall file his application within thirty days after becoming a member of either of such departments and who shall have allowed said deductions from his salary, as well as the beneficiaries hereinafter named, shall be entitled to participate in said fund.”

Article 6235 further declares:

“Whenever any member of said departments who shall have contributed a portion of his salary, as provided herein, shall have served twenty years or more in either of said departments, he may be entitled to be retired from said service upon application, and shall, if the board approves, be entitled to be paid from such funds a monthly pension of one-half of the salary received by him at the time of his retirement.”

That portion of title 109 of the Revised Statutes referred to in the certificate is not in any wise obnoxious to the provisions of the Constitution cited. Without discussing in detail these provisions of the Constitution, it is sufficient to say each of them is intended to prevent the application of public funds to private purposes; in other words, to prevent the gratuitous grant of such funds to any individual, corporation, or purpose whatsoever. This limitation upon the power of the Legislature is a wholesome one and is plainly stated in unequivocal terms. It is academic to say the Legislature has power to pass any law which its wisdom suggests that is not forbidden by some provisions of the Constitution (federal or state). If the pension provided for in this act is a' gratuity or donation to the beneficiary, it is clearly forbidden by the fundamental law. On the other hand, if it is a part of the compensation of such employee for services rendered to the city, or if it be for a public purpose, then clearly it is a valid exercise of the legislative power.

There is no reason why a city may not engage its servants and employees upon any terms of payment acceptable to both parties. The plan authorized by the statute contemplates in legal effect that as cqmpensation the officers and employees named shall receive the salaries agreed upon to be paid periodically and shall be entitled to participate in the fund provided for pensions according to the statutory plan. The law pertaining to such employment is necessarily a part of the contract of employment and is read into the contract as fully as though it had been actually Incorporated therein. Trinity, etc., Co. v. Lion, etc., Co. (Tex. Com. App.) 229 S. W. 483; U. S. Fidelity, etc., Co. v. Henderson County, (Tex. Com. App.) 276 S. W. 203, 1119. Wlien an officer or employee coming within the statute is employed and evidences his assent to the pension scheme, he thereupon has a binding contract with his employer for the stipulated salary and likewise to be “entitled to participate” in the fund upon the terms prescribed. The right to participate in such fund is therefore not a gratuity or donation in any sense. It is as much a part of the agreed compensation as is the monthly stipend. See State v. Love, 89 Neb. 149, 131 N. W. 196, 34 L. R. A. (N. S.) 607, Ann. Cas. 1912C, 542; Commonwealth v. Walton (Pa.) 38 A. 790, 61 Am. St. Rep. 712; Whitehead v. Davie, 189 Cal. 715, 209 P. 1008; Jackson v. Otis, 66 Cal. App. 357, 225 P. 890; O’Dea v. Cook, 176 Cal. 659, 169 P. 366; People ex rel. v. Abbott, 274 Ill. 380, 113 N. E. 696, Ann. Cas. 1918D, 450; Cobbs v. Home Insurance Co., 18 Ala. App. 206, 91 So. 627.

These conclusions call for an affirmative answer to questions 1 and 2.

As to question 3, the maladministration referred to appears to be an allegation that persons being retired upon pension “were experienced, capable men', and were able to do their work at the time they were placed on the retired list and made beneficiaries of this fund, and are still able and capable to do such' work.” Article 6235, already quoted, prescribed the only requisites to retirement upon pension, and it nowhere embraces incapacity, inability, indigence, or the like. Service, and contribution to the fund, are the only requirements made to entitle an applicant to the benefits of the fund. So, that we answer this question “No”; no maladministration is shown.

With respect to question 4, we answer that article 6235 of the statute declares:

“Whenever any, member of said departments who shall have contributed a portion of his salary, as provided herein, shall have served twenty years or more in either of said departments, he may be entitled to be retired from said service upon application, and shall, if the board approves, be entitled to be paid from such funds a monthly pension of one-half of the salary received by him at the time of his retirement.”

This does not expressly stipulate that the 20 years’ service shall be subsequent to the statute, nor is such intention implied. On the contrary, the language is unambiguous that any member who shall have served 20 years or more, without respect to the time of such servieé, shall be entitled to participate in the fund. In principle, it is as though the provision was for an age pension, as upon becoming 60 years of age. Upon the happening of such event while in the service the employee would be entitled to the pension irrespective of the length of the term of his service. Such an interpretation of the statute does not make it obnoxious to the constitutional prohibition against additional compensation for services already performed. The contract for the pension after 26 years in the service may, and often will, result in inequality of compensation for similar service rendered after the contract. But this is wholly a matter of discretion for the employing municipality and does not render the contract or the legislation authorizing it void. The courts are not concerned with the policy or wisdom of legislation, but they can deal only with the power of the legislative body and leave to that body, where it properly belongs, the responsibility for the exercise of that power.

We therefore recommend that questions 1 and 2 be answered “Yes,” and that question 3 be answered “No,” and that question 4 be answered as immediately above shown.

CURETÓN, O. J.

Opinion of the Commission of Appeals answering certified questions is adopted and ordered certified. 
      ®s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     