concurring.
While disposed to agree with the majority view that relator is not entitled to the writ under the terms of the- statute, I think the same result should have been reached by declaring unconstitutional the so-called “option” provisions of the law in so far as they permit of a person like relator, who has never *598been a teacher, to enjoy a teacher’s pension. This, of course, in no way challenges the rights of teachers themselves to enjoy the retirement benefits which the law provides.
Courts do, it is true, tend to avoid constitutional questions, when the particular cause may be disposed of on other grounds, but, to borrow the words of the Court of Appeals of New York when confronted with a situation rather similar to the present, “While it may be possible to dispose of this particular appeal without deciding this question of constitutionality, nevertheless it is fairly presented to us, and public interests require that it it should be determined.” People, ex rel, Unger v. Kennedy, 207 N. Y., 533, 540, 101 N. E. 442. See also Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209. Both cited cases upheld the statutes in question, but since the public interest seems to be the controlling factor, the same rule ought to apply whether the court intends to strike down or uphold the statute, especially in a case like the present, in which the state itself, through its Attorney General, suggests and argues the invalidity of the particular provisions in question. Teachers of the public schools being the important element of our population that they are, the sooner and more completely they are advised of their rights or lack of them, the better.
As respondent’s brief appears properly to concede, the literal significance of the constitutional proviso, “no person shall be eligible for a pension under this amendment who has not taught twenty years in the State of Texas”, is to bar respondent’s claim, because admittedly he has never been a teacher. There is nothing in the words “eligible” or “pension” to indicate the contrary. It is common knowledge that the word “pension” is applied to one who benefits from state payments earned or merited by another quite as often as to one who actually rendered the service from which the benefits arise. If relator were successful in this suit, surely it would not be thought unusual to refer to the income he would receive as a “pension”. Admittedly part of it would come from moneys contributed by the state as distinguished from that contributed by a teacher through salary deductions. The words “but shall be entitled to a refund of the moneys paid into the fund” do suggest that the authors of the amendment may have been thinking of an original contributor rather than an assignee or “nominee”, but it is at best only a suggestion. And at the same time, the phrase considered alone is not inconsistent with the idea that the salary contributions of the teacher might be refunded to anyone en*599titled thereto — whether it be the teacher in question, her heirs or an assignee.
Aside from this one statement about refunds, there is nothing in the wording of section (48(a) suggesting a qualification of the strong statement limiting pensions to those who have taught at least twenty years in Texas, and accordingly the action of the legislature, in permitting pensions to non-teachers such as relator, is in conflict with the Constitution.
As I understand the argument upholding the constitutionality of the “option” provisions of the law, it is this: That, even assuming the word “pension” in section 48(a) to be broad enough to include payments to a beneficiary or assignee of a retiring teacher and accordingly, by its literal significance, to bar relator, who is not a teacher, from receiving such payments, nevertheless a literal interpretation would be at variance with a common sense construction of the section as a whole. In this behalf it is said that the section does not contain any restrictions as to how pensions are to be paid to the teachers who earn them and that, since an earned pension has a value, which may be actuarially computed in terms of money at the time of retirement, the Constitution in effect purports to award each retiring teacher such a value, which he or she may dispose of to a non-teacher or anyone else at will; and that accordingly the restriction of pensions to persons who have taught twenty years or more must be taken to apply only to the matter of who may originally earn a pension. It is said that, for example, the legislature could without violating section 48(a), make a pension payable in a cash lump sum, in which event it would be absurd to suppose that the retiring teacher could not give that sum to anyone he or she might elect. The difficulty with this argument arises from the very last proviso of section 48(a), underscored in the majority opinion, which is an important restriction of general character and is obviously designed to prevent any one individual from enjoying double benefits from state funds by reason of pensions. It would prevent the same retired teacher from earning a second teacher’s pension or some other type of pension based in part or whole on state payments. It would also necessarily forbid a non-teacher from enjoying two or a dozen teacher’s pensions, as assignee or “nominee” of several retired teachers, or from enjoying in the same capacity, a teacher’s pension, while at the same time receiving some other type of pension either in his own right or as assignee. Surely if one who originally earns a retirement benefit cannot qualify for another such benefit, his or her as*600signee should not be allowed to do so. But, if the argument is sound that the benefit rights contemplated by section 48(a) are in effect the same as a cash lump sum payable to the teacher on retirement and therefore transferable at will, it also follows that the assignee is free to accept benefit assignments from an unlimited number of teachers, and even to do that and at the same time qualify for some other pension in his own right. If the legislature should be free to make the benefits payable in a cash lump sum to the retiring teacher, how would the state ever protect itself from paying double benefits to the same individual as assignee? I therefore think section 48(a) authorizes payment of benefits to teachers only and does not authorize the assignment of benefit rights. This view, of course, in no wise limits a teacher’s right to dispose at will of his or her own salary contributions to the pension fund. It is only the matter of the state’s contribution which is involved.
Opinion delivered March 2, 1949.
Rehearing overruled March 30, 1949.