Policemen's & Firemen's Retirement Fund v. Rothrock , 625 S.W.2d 577 ( 1981 )

STEPHENSON, Justice.

The trial court entered judgment in favor of the respondents, construing KRS 95.859 and KRS 95,862 to increase pensions retroactively. The Court of Appeals affirmed with one judge dissenting. We granted discretionary review and reverse.

The respondents comprise three groups: (1) former policemen and firemen who retired after July 1, 1956, but before June 21, 1974, on the basis of age or length of service; (2) former policemen and firemen who retired after July 1, 1956, but before June 21, 1974, on the basis of physical disability; and (3) former policemen >and firemen, or their widows, who retired prior to July 1, 1956, for any reason. All the respondents are receiving benefits from the Paducah Policemen’s and Firemen’s Benefit Fund.

The statutes which govern the fund are those applicable to second-class cities, KRS 95.851 to KRS 95.991 first enacted in 1956 with an effective date of July 1, 1956.

As enacted in 1956, KRS 95.859 provided in part:

The rate of retirement annuity shall be two and one-half per cent (2½%) of average salary, as defined in KRS 95.851(m) for each year of total service up to and including twenty (20) years, one per cent (1%) of average salary for each of the next five (5) years of total service, one-half per cent (½%) of average salary for each year of total service after twenty-five (25) years, subject to a maximum of sixty per cent (60%) of average salary.

In 1972 KRS 95.859 was amended to include:

. .. Provided, however, that no retiree, or his surviving widow, whether he retired before or after June 16, 1972, under this Section shall receive a pension of less than one hundred dollars ($100.00) a month and when social security benefits are increased the minimum shall be increased by a like amount, provided that the increase shall not exceed five per cent (5%).

In 1974 KRS 95.859 was amended to provide an increased rate for retirement as follows:

The rate of retirement annuity shall be two and one-half per cent (2½%) of average salary, as defined in KRS 95.851(m), for each year of total service up to and including thirty (30) years, subject to a maximum of seventy-five (75%) per cent of average salary.

As enacted in 1956, KRS 95.862 provided: In the event a total and permanent occupational disability occurs, the member shall receive an annuity equal to sixty per cent (60%) of his last rate of salary. This benefit shall begin at such time as his salary may cease, and shall be paid during his entire lifetime. Upon his death, his eligible widow and minor children, if any, shall receive the benefits as provided under KRS 95.860.

In 1974 KRS 95.862 was amended to increase disability rates as follows:

(1) In the event a total and permanent occupational disability occurs, the member shall receive an annuity equal to seventy per cent (70%) of his last rate of salary.”

We have set out the statutes and amendments in full for the reason the trial court found that the legislature intended the benefits were to be retroactive and applicable to the three categories of respondents here. A majority of the Court of Appeals’ panel affirmed on this basis. Both the trial court and the Court of Appeals relied heavily on Board of Trustees of Policemen’s Pension Fund v. Schupp, 233 Ky. 269, 3 S.W.2d 606 (1928). We have examined Schupp and are of the opinion that whatever validity it possessed is no longer applicable. Schupp involved construction of a 1926 amendment to section 2872a8 Kentucky Statutes, first enacted in 1910 pertaining to disability or widows’ benefits in the then pension plan for police departments in first-class cities.

The dollar increases in the 1926 amendment were given retroactive effect. As expressed in the Court of Appeals’ dissent: “Schupp has no application to the present case. Whatever the legislature may have intended when it enacted a statute in 1926 is not relevant to the question of what the legislature intended when it enacted a different statute many years later.”

The statutes here enacted first in 1956 contained a completely new scheme for policemen and firemen’s pensions. In addition a part of this pension plan contained another section, KRS 95.879, enacted in 1956, which in part provides:

Any service retirement annuity, disability retirement annuity, or any other annuity provided herein shall be payable in equal monthly installments as life annuities, and shall not be increased, decreased, revoked or repealed, except for error, or except where specifically otherwise provided. (Emphasis added.)

In addition to this limiting statute within the same chapter as the sections here, the legislature has expressed a general principle in KRS 446.080(3): “No statute shall be construed to be retroactive unless expressly so declared.”

The 1972 amendment to KRS 95.859 above expressly made the minimum pension retroactive to 1956, but expressly limited it to this time by the reference “under this Section”. Other than that instance there is no language in the statutes expressly making them retroactive; thus, we are of the opinion the plain language of the statutes has prospective effect only.

The opinion of the Court of Appeals and the judgment of the trial court are reversed with direction to the trial court that the respondents’ complaint be dismissed.

PALMORE, C. J., and AKER, LUKOW-SKY, STEPHENS, STEPHENSON and STERNBERG, JJ., concur. CLAYTON, J., dissents.