West v. Anderson , 187 Ga. 587 ( 1939 )

Jenkins, Justice.

1.. “A constitutional act of the legislature is equivalent to a contract, and when performed, is a contract executed; and whatever rights are thereby created, a subsequent legislature cannot impair.” Winter v. Jones, 10 Ga. 190 (5) (54 Am. D. 379); Herrington v. Godbee, 157 Ga. 343, 347 (121 S. E. 312), and cit.

2. Under the rulings in Trotzier v. McElroy, 182 Ga. 719 (186 S. E. 817), the act of March 28, 1935 (Ga. L. 1935, p. 450), which sought to reduce “pensions” payable to retired firemen of Atlanta, their widows, and other beneficiaries, by virtue of the act of August 13, 1924 (Ga. L. 1924, p. 167), as amended by the act of August 24, 1931 (Ga. L. 1931, pp. 223, 226, 227), these-“pensions” were not mere gratuities, but “the prior acts created a contract to create a fund to which the fireman is required to contribute.” “For this reason,” it was held in that case that “section 4 of the act of-1935, supra [reducing the amounts of ‘pensions’], is violative of art. 1, sec. 10, par. 1, of the constitution of the United States [Code, § 1-134], which forbids any State to pass any ex post facto law or law impairing the obligation of a contract, and therefore it is void.” In West v. Trotzier, 185 Ga. 794 (196 S. E. 902), the ruling in the first Trotzier case was followed, and the acts of 1924 and 1931 were held valid against, a constitutional attack. In Hollis v. Jones, 184 Ga. 273 (191 S. E. 127), involving similar acts relating to Atlanta policemen, the decision ip the first Troizier case was extended and made applicable to a widow of a policeman, where, after his death, and before the enactment reducing the amount of “pension,” the widow had been receiving the “pension” provided by the previous acts. The instant case does not involve any question of sufficiency of the fund to pay the “pension,” as in Hollis v. Jones, 187 Ga. 14 (199 S. E. 203). The present case differs from the others cited only in the fact that here the retired fireman, who was drawing the pension when the act of 1935 was passed, was not the plaintiff, as in the first Troizier ease, nor had the widow here commenced to receive the payments before the act reducing the amount, as in the West and the first Hollis cases. We now hold that where, before the act of 1935, redircing the amounts of “pensions,” an Atlanta fireman had been retired in 1932, and was receiving a “pension” of $100 a month under the prior acts up to the time of his death in 1937, and where, during the period of such payments and at the time of his death, he had a wife, such widow, even though she had not yet drawn the “pension” at the time of the act of 1935, and was not entitled thereto until after the death of the husband, nevertheless had such a vested right as, by virtue of art. 1, sec. 10, par. 1, of the constitution of the United States (Code, § 1-134), and art. 1, sec. 3, par. 2, of the constitution of the State (Code, § 2-302), could not be altered by the later act. Such a right was not merely contingent, but was more analogous to a vested remainder or salable interest, subject to be divested and to go to other beneficiaries upon her dying or remarrying before receiving payments. See, in this connection, as to vested remainders: Code, §§ 85-703, 85-708; McDonald v. Taylor, 107 Ga. 43 (32 S. E. 879); Lumpkin v. Patterson, 170 Ga. 94 (5) (152 S. E. 448); Chewning v. Shumate, 106 Ga. 751 (32 S. E. 544); Doe v. Newton, 171 Ga. 418 (3) (156 S. E. 25); Melton v. Camp, 121 Ga. 693, 695 (49 S. E. 690); Smith v. Frost, 144 Ga. 115 (86 S. E. 235); Speer v. Roach, 145 Ga. 852 (90 S. E. 57). See, as to salable and assignable rights and interests: Code, §§ 29-103, 85-1803, 85-1804, 85-1805, 96-102; Wilcoxon v. Harrison, 32 Ga. 480 (3); Isler v. Griffin, 134 Ga. 192 (4), 195 (67 S. E. 854); Hill v. O’Bryan, 104 Ga. 137 (2), 142 (30 S. E. 996), and cit.; Rosenberg v. Phelps, 159 Ga. 607 (3), 609 (126 S. E. 788); Brown Guano Co. v. Bridges, 34 Ga. App. 652, 656 (130 S. E. 695).

3. Under the preceding rulings, the court properly granted a mandamus absolute in favor of the-widow of the deceased pensioner.

Judgment affirmed.

All the Justices concur.