B-134170, NOVEMBER 25, 1957, 37 COMP. GEN. 366

B-134170, NOVEMBER 25, 1957, 37 COMP. GEN. 366

POLICEMEN AND FIREMEN'S RETIREMENT BENEFITS - ADDITIONAL SURVIVORSHIP ANNUITIES - APPLICABILITY IN VIEW OF THE DEFINITION OF "MEMBERS" IN SECTION 12 (K) (1) OF THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT AMENDMENTS OF 1957 AS EMBRACING ONLY EMPLOYEES WHO ARE OR WERE EMPLOYED ON OR AFTER THE EFFECTIVE DATE OF THE ACT--- OCTOBER 1, 1957--- INCREASED SURVIVOR ANNUITIES AS PROVIDED IN THE 1957 ACT ARE APPLICABLE ONLY WHERE BOTH THE RETIREMENT OF THE MEMBER AND HIS DEATH OCCUR ON OR AFTER OCTOBER 1, 1957.

TO A. R. PILKERTON, GOVERNMENT OF THE DISTRICT OF COLUMBIA, NOVEMBER 25, 1957:

YOUR LETTER OF OCTOBER 18, 1957, REQUESTS OUR DECISION AS TO WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT A VOUCHER ENCLOSED WITH YOUR LETTER IN FAVOR OF MRS. BELLE HOLMES FOR $46, REPRESENTING AN ADDITIONAL AMOUNT FOR SURVIVOR ANNUITY FOR SEPTEMBER 1957, COMPUTED UNDER PUBLIC LAW 85-157, APPROVED AUGUST 21, 1957, 71 STAT. 391.

YOU SAY THAT MRS. BELLE HOLMES IS THE WIDOW OF LIEUTENANT OLLIE B. HOLMES OF THE DISTRICT FIRE DEPARTMENT WHO RETIRED ON JULY 1, 1941, AND DIED SEPTEMBER 2, 1957. YOU POINT OUT THAT UNDER THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY RETIREMENT ACT (39 STAT. 718, AMENDED BY 63 STAT. 565), AS IT EXISTED PRIOR TO THE 1957 AMENDMENT BY PUBLIC LAW 85- 157, MRS. HOLMES WOULD BE ENTITLED TO AN ANNUITY OF $125 A MONTH WHILE, IF THE 1957 AMENDMENTS ARE APPLICABLE, SHE WOULD BE ENTITLED TO $171 A MONTH- -- A DIFFERENCE OF $46. SECTION 8 OF PUBLIC LAW 85-157 PROVIDES THAT THE EFFECTIVE DATE OF THE ACT SHALL BE OCTOBER 1, 1956. LIEUTENANT HOLMES DIED ON SEPTEMBER 2, 1957, AFTER SUCH EFFECTIVE DATE; HOWEVER, HE HAD RETIRED, AS INDICATED, LONG BEFORE THAT DATE, NAMELY, IN 1941. THE QUESTION THUS RAISED IS WHETHER HIS WIDOW, WHO BECAME SUCH AFTER THE EFFECTIVE DATE OF THE ACT, IS ENTITLED TO THE INCREASED SURVIVOR ANNUITIES TO WIDOWS OF FORMER RETIRED MEMBERS AS PROVIDED FOR IN SECTION 12 (K) (1) OF THE ACT, OR WHETHER SUCH AN INCREASED SURVIVOR ANNUITY IS ALLOWABLE TO A WIDOW OF A RETIRED EMPLOYEE ONLY WHERE THE EMPLOYEE RETIRED ON OR AFTER OCTOBER 1, 1956, THE EFFECTIVE DATE OF THE ACT.

SECTION 12 (K) (1) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IN CASE OF THE DEATH OF ANY MEMBER BEFORE RETIREMENT, OR OF ANY FORMER MEMBER AFTER RETIREMENT, LEAVING A WIDOW OR DEPENDENT WIDOWER, SUCH WIDOW OR DEPENDENT WIDOWER SHALL BE ENTITLED TO RECEIVE AN ANNUITY IN THE GREATER AMOUNT OF (1) $1,800, OR (2) 30 PERCENTUM OF SUCH MEMBER'S BASIC SALARY AT THE TIME OF DEATH, OR 30 PERCENTUM OF THE BASIS UPON WHICH THE ANNUITY, RELIEF, OR RETIREMENT COMPENSATION BEING RECEIVED BY SUCH FORMER MEMBER AT THE TIME OF DEATH WAS COMPUTED. SUCH ANNUITY SHALL BEGIN ON THE FIRST DAY OF THE MONTH IN WHICH THE MEMBER OR FORMER MEMBER DIES, AND SUCH ANNUITY OR ANY RIGHT THERETO SHALL TERMINATE UPON THE SURVIVOR'S DEATH OR REMARRIAGE. * * *

THE TERM "MEMBER" IS DEFINED IN SECTION 12 (A) (1) TO MEAN "ANY OFFICER OR MEMBER OF THE METROPOLITAN POLICE FORCE, OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, OF THE UNITED STATES PARK POLICE FORCE, OF THE WHITE HOUSE POLICE FORCE, AND ANY OFFICER OR MEMBER OF THE UNITED STATES SECRET SERVICE DIVISION TO WHOM THIS SECTION SHALL APPLY.' " WIDOW" IS DEFINED IN SECTION 12 (A) (3) AS "THE SURVIVING WIFE OF A MEMBER WHO WAS MARRIED TO SUCH INDIVIDUAL WHILE HE WAS A MEMBER.' THE TERM "FORMER MEMBER" IS NOT DEFINED IN THE ACT EXCEPT AS INDICATED BY SECTION 12 (A) (7) WHICH DEFINES "ANNUITANT" AS "ANY FORMER MEMBER WHO, ON THE BASIS OF HIS SERVICE, HAS MET ALL REQUIREMENTS OF THIS SECTION FOR TITLE TO ANNUITY AND HAS FILED CLAIM THEREFOR.' YOU CITE AS POSSIBLY PERTINENT TO THE QUESTION SECTION 2 OF THE ACT, WHICH PROVIDES:

IT IS THE INTENT OF CONGRESS IN ENACTING THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT AMENDMENTS OF 1957 TO GIVE THE MEMBERS COMING UNDER SUCH ACT BENEFITS SUBSTANTIALLY SIMILAR TO BENEFITS GIVEN BY THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956 TO OFFICERS AND EMPLOYEES COVERED BY THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED.

ALSO YOU REFER TO SECTION 4 OF THE ACT, WHICH READS AS FOLLOWS:

NOTHING IN THIS ACT SHALL BE DEEMED TO REDUCE THE RELIEF OR RETIREMENT COMPENSATION TO WHICH ANY PERSON IS ENTITLED ON THE EFFECTIVE DATE OF THIS ACT AND THE RIGHTS OF SUCH PERSONS AND THEIR SURVIVORS SHALL CONTINUE IN THE SAME MANNER AND TO THE SAME EXTENT AS IF THIS ACT HAD NOT BEEN ENACTED.

AN ACT IS PROSPECTIVE FROM ITS EFFECTIVE DATE UNLESS THE LEGISLATURE EXPRESSLY PROVIDES OTHERWISE. UNITED STATES V. ST. LOUIS RAILWAY COMPANY, 270 U.S. 1; 26 COMP. GEN. 592, AND CASES CITED THEREIN. IT IS EXPLICITLY PROVIDED IN SECTION 8 OF PUBLIC LAW 85-157 THAT ITS EFFECTIVE DATE IS OCTOBER 1, 1956. ALSO, AS PREVIOUSLY INDICATED, THE TERM "MEMBER" IS DEFINED IN SECTION 12 (A) (1) TO MEAN AN OFFICER OR MEMBER OF THE METROPOLITAN POLICE FORCE, ETC. IT THUS APPEARS THEREFROM, AS WELL AS FROM THE LANGUAGE OF THE PARTICULAR SECTIONS SETTING OUT THE CONDITIONS UNDER WHICH THE BENEFITS ARE TO BE ALLOWED, THAT THE ADDITIONAL RETIREMENT BENEFITS ARE ALLOWABLE ONLY TO EMPLOYEES WHO ARE OR WERE, ON OR AFTER THE EFFECTIVE DATE OF THE ACT, OFFICERS OR MEMBERS AND NOT TO THOSE WHO PREVIOUSLY MAY HAVE BEEN SO EMPLOYED BUT HAD BEEN RETIRED PRIOR TO OCTOBER 1, 1956. THAT THERE WAS NO INTENT TO EXTEND THE ADDITIONAL BENEFITS OF THE ACT TO THOSE ALREADY RETIRED IS ALSO CLEARLY BROUGHT OUT IN THE SENATE DEBATES ON THE BILL WHICH BECAME PUBLIC LAW 85-157. SEE THE DISCUSSION REPORTED IN THE SENATE CONGRESSIONAL RECORD FOR JUNE 3, 1957, PAGE 7336. THE GIST OF SUCH DISCUSSION IS SET OUT IN THE FOLLOWING EXCERPT FROM THE REMARKS OF SENATORS YOUNG AND BIBLE, THE LATTER OF WHOM WAS THE CHAIRMAN OF THE COMMITTEE WHICH REPORTED THE BILL:

MR. YOUNG. ADDITIONAL BENEFITS ARE BEING PROVIDED ONLY FOR THOSE WHO

MR. BIBLE. AFTER OCTOBER 1956.

MR. BIBLE. AFTER OCTOBER 1956.

CERTAIN OF THE STATEMENTS MADE BY SENATOR WILLIAMS IN CONNECTION WITH THE DEBATE ON THE BILL, SENATE CONGRESSIONAL RECORD FOR AUGUST 10, 1957, PAGES 13038, 13041, AND 13045, SUGGEST THAT HE UNDERSTOOD THE BILL WOULD PERMIT PAYMENT OF THE ADDITIONAL BENEFITS TO WIDOWS OF THOSE RETIRED PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 85-157. HOWEVER, SUCH STATEMENTS MADE BY ONE NOT A MEMBER OF THE COMMITTEE WHICH CONSIDERED THE BILL--- PARTICULARLY WHERE HE OBJECTED TO THE PROVISION, AS HE UNDERSTOOD IT--- CANNOT BE TAKEN AS EXPRESSING THE CONGRESSIONAL INTENT OF THE PROVISION.

CONSIDERING THAT THE DEFINITION OF MEMBERS EMBRACES ONLY EMPLOYEES WHO ARE OR WERE EMPLOYED ON OR AFTER THE EFFECTIVE DATE OF THE ACT, THE WIDOWS OF EMPLOYEES WHO HAD RETIRED PRIOR TO THAT DATE ARE NOT WIDOWS OF FORMER MEMBERS AS THE TERM IS EMPLOYED IN SECTION 12 (K) (1) OF THE ACT, SINCE THEIR HUSBANDS WERE NOT MEMBERS BECAUSE NOT EMPLOYED ON OR AFTER OCTOBER 1, 1956; AND THEY ARE THUS NOT ENTITLED TO THE ADDITIONAL BENEFITS PROVIDED IN SECTION 12 (K) (1). IN THAT LIGHT THE PROVISIONS OF SECTION 12 (K) (1) PROVIDING FOR INCREASED ANNUITIES TO WIDOWS OF FORMER MEMBERS, IN CASE OF THE DEATH OF ANY MEMBER AFTER RETIREMENT, APPLY ONLY WHERE BOTH THE RETIREMENT OF THE MEMBER AND HIS DEATH OCCUR ON OR AFTER OCTOBER 1, 1956. SUCH CONSTRUCTION OF THE ACT ACCORDS WITH SECTION 2 OF PUBLIC LAW 85-157, IN THAT NO ADDITIONAL BENEFITS WERE GIVEN CIVIL SERVICE ANNUITANTS OR THEIR SURVIVORS WHO HAD PREVIOUSLY RETIRED BY THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956, 70 STAT. 743, 5 U.S.C. 2251. SEE SECTION 403 THEREOF, 70 STAT. 760, 5 U.S.C. 2251 NOTE.

SECTION 4 OF PUBLIC LAW 85-157 APPEARS TO BE MERELY A SAVINGS CLAUSE PRECLUDING LESSENING OF BENEFITS TO WHICH ANY PERSON IS ENTITLED ON THE EFFECTIVE DATE OF THE ACT AND WOULD NOT PREVENT INCREASES OTHERWISE ALLOWABLE THEREUNDER.

IN THE LIGHT OF WHAT IS SET OUT ABOVE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.