Montana Attorney General Opinion 17-123

Opinion No. 123. Municipal Corporations - Cities and Towns-Fire Department Relief As- sociation, Right to Participat~ in by Fonner Firemen. HELD: Former part 'time and vol- unteer firemen are not barred by Chap- ter 200, Laws 1937, from participating in the fire department relief fund for injuries sustained prior to the passage rf said chapter by which only full time "'remen may be employed in cities of the second class. Hon. W. A. Brown State Examiner The Capitol Dear Mr. Brown: July 27. 1937. You have asked my opinion upon the question of whether former part time and volunteer firemen of cities of the second class, who, prior to the enact- ment of Chapter 200, Laws of 1937, were members of the fire department relief association by virtue of being members of an organized fire depart- ment, are barred from further partici- pation in a fire department relief fund. The question is a general one as no particular facts are stated. 134 OPINIONS OF THE ATTORNEY GENERAL Chapter 200, Laws of 1937, providing for the minimum compensation of members of the fire department of cities of the second class, virtually did away with part time and volunteer fire- men of cities of the second class. Sec- tion 5130, R. C. M. 1935, provides in part as follows: "* * * Noone serving as a sub- stitute or on probation, nor any per- son who has not been confirmed a member of an organized fire depart- ment is eligible for membership in the relief association. * * *" \Vhile we do not find that our Su- preme Court has passed upon the spe- cific question, the authorities are col- lected and the law is stated generally in 43 C. J. 818, Section 1422: "If the right of an officer to share in a pension fund created by the state depends upon the happening of a par- ticular event, his interest in the fund is a mere expectancy and liable to be defeated at any time before the hap- pening of the event by the action of the legislature in repealing the law creating the pension, or making new and different provisions for the dis- tribution of the fund. And the right of the legislature thus to revoke the pension is not affected by the fact that a given sum was retained from the officer each month. since such sum, although called in law a part of his compensation, is in fact an appropria- tion of that amount by the state each month to the creation of the fund. Where the event on which a pension to a police officer becomes payable actually has happened, the right to the pension is vested in the view of some courts, but other courts con- sidering the pension for this purpose merely as a bounty hold that the state may recalled or withhold it at any time." Since no facts are stated, we are unable to pass upon any particular case. We think, however, that where a volun- teer fireman. for example. was actually injured, or some event had occurred before Chapter 200. Laws of 1937, be- came effective. which would have al- lowed him to participate in the funrl had not said Chapter 200 been pas~ed. it would onlv be equitable and just th?t he be permitted to participate in such fund for such injury. On the other hand, where the event has not oc- curred, e. g., death, or the age is reached at which a pension is paid, before the passage of the Act, we do not think there is such a vested right as would permit participation.