(dissenting)^I agree with the majority's position as to RCW 41.26.030(3); I do not agree with its views on equal protection or the application of this constitutional guaranty to the Port police.
The principle of equal protection does not require that things different in fact be treated in law as though they were the same. It does require, however, that those who are similarly situated be similarly treated. Tussman & tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949); Jenkins v. State, 85 Wn.2d 883, 540 P.2d 1363 (1975). When a statute provides that one class is to receive different treatment from another, equal protection guaranties require that: (1) the legislation must apply alike to all persons within the designated class; and (2) reasonable grounds must exist for making a distinction between those who fall within the class and those who do not. Belancsik v. Overlake Memorial Hosp., 80 Wn.2d 111, 492 P.2d 219 (1971); Jenkins v. State, supra; Rinaldi v. Yeager, 384 U.S. 305, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966). The equal protection clause of the Fourteenth Amendment denies to states the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 64 L. Ed. 989, 40 S. Ct. 560 (1920).
I believe the exclusion of the Port police from the LEOFF system is irrational: persons similarly situated are being dissimilarly treated and the reasons given by the majority for excluding Port police from LEOFF are based on criteria wholly unrelated to the objectives of the LEOFF statute.
*427The majority relies on four grounds for asserting there is a rational exclusion of the Port police from LEOFF:
(1) "the solvency and integrity of the LEOFF fund";
(2) the "port police territorial area of responsibility is not 'identical' [with city and county police officers]"; (3) "city and county police are covered by civil service laws; Port police are not"; and (4) "port districts have authority to establish their own pension and retirement system". Not one of these reasons stands up under careful scrutiny.
On the matter of the solvency and integrity of the LEOFF fund, the majority cites Caughey v. Employment Security Dep't, 81 Wn.2d 597, 599, 503 P.2d 460, 56 A.L.R.3d 513 (1972), and states: "When the state administers a finite fund, a statutory discrimination will not be set aside if any state of facts can reasonably be conceived to justify it." The majority neither argues nor demonstrates the inclusion of the Port police presents a danger to LEOFF. The Caughey court relied on Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). Except in the fantasies of children, all funds are, of course, finite — i.e., "having definite or definable limits or boundaries". Webster's Third New Int'l Dictionary (1971). The sort of calculus urged by the majority would allow legislators to pick and choose classifications with impunity, secure in the knowledge that if any fund was involved they could point to it as being a "finite fund".
Yet an analysis of Dandridge and Caughey indicates the courts had considered factors other than the simple finitude of funds in holding equal protection inapplicable. Those factors distinguish Dandridge and Caughey from the case at hand. In neither Dandridge nor Caughey did the claimed recipients contribute directly to the "fund" from which payments were demanded. Dandridge involved public welfare moneys; the Caughey claim was for unemployment benefits. See RCW 50.24.010. Nor were the claimants required to subscribe to the public welfare or employment benefits systems. In contrast, fire fighters and law enforcement personnel must belong to LEOFF (RCW 41.26.040), *428and each member is required to pay a certain sum into the pension system. RCW 41.26.080. See also RCW 41.26.085.
Finally, the holding in Dandridge, on which the Caughey court relied, is not based on the finite character of the fund. Rather, the Supreme Court said:
We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State's legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient's grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.
(Footnote omitted.) Dandridge, at 486. The finite character of LEOFF is not an adequate bar to membership by persons similarly situated and does not overcome the requirements of equal protection.
The second ground is that the territorial responsibility of Port police is not identical with city and county police officers, yet the majority concedes the duties of the Seattle Port police are identical with the duties of city and county police. See RCW 53.08.280. The fact that county and city police may have overlapping jurisdictions with the Port as well as a wider jurisdiction on Port property is irrelevant. County sheriffs have similar overlapping jurisdictions with city police. It hardly can be contended seriously this distinction in and of itself would permit the legislature to bar city police from LEOFF. The classification must be rational. This classification is not.
Next, the majority claims that county and city police are under civil service, and the Port police are not, and that this is a sufficient distinction. Without discussing whether the basic proposition is a reasonable classification, the fact is *429that not all police officers who are covered by LEOFF are required to be under civil service. While most deputy sheriffs must be under civil service to qualify for LEOFF, there are a number of exceptions. See RCW 41.26.030(3)(b). In Class A and Class AA counties, the undersheriff, inspector, chief criminal deputy, chief civil deputy, and jail superintendent are exempt from civil service; in first-, second- and third-class counties three positions comparable to under-sheriff, chief criminal deputy and chief civil deputy are exempt from civil service; and in all other counties one position to be appointed by the sheriff is exempt. RCW 41.14.070. RCW 41.12.010, which provides for civil service for police of cities and towns, exempts "cities having a police force of not more than two persons including the chief of police". All of these officers — none of whom is covered by civil service- — qualify under LEOFF. RCW 41.26-.030(3). The classification claimed by the majority to exclude Port police simply does not exist. To use this criterion to prevent Port police from being covered is wholly arbitrary.
Finally, the majority argues that, since port districts have authority to establish their own pension and retirement systems (RCW 53.08.170), this is a sufficient classification to meet the requirements of equal protection. It makes the observation that the legislature "may separately classify law enforcement officers and fire fighters" and then, without further analysis, states, "That the statutory objective is the same for both groups and is sought to be achieved by a single pension system does not militate against the classifications". The fundamental distinction the majority makes is not that there is a difference between a Port police officer and other law enforcement officers. In fact, it has been conceded that there is no difference between Port police and those law enforcement officers specifically authorized to be covered under RCW 41.26. Rather, the distinction is that one governmental employer, a port district, is not required to bring its employees under any state pension system coverage. RCW 41.40.410; 53.08.170. This argument might *430have some force except that the fire fighters for the Port who as port employees are covered by the broad language of RCW 53.08.170 are, nevertheless, required to be members of LEOFF. Thus, the distinction as to the classifications of the employer is empty and the insistence of the majority that the treatment given fire fighters in LEOFF is of no concern to the Port police — or this court — is without force. The fact that the Port may set up its own retirement and pension system does not allow it to keep its fire fighters out of a pension system which has as its purpose:
to provide for an actuarial reserve system for the payment of death, disability, and retirement benefits to law enforcement officers and fire fighters, and to beneficiaries of such employees, thereby enabling such employees to provide for themselves and their dependents in case of disability or death, and effecting a system of retirement from active duty.
RCW 41.26.020.
Since this "classification" of the employer does not exclude one group of its law enforcement and fire fighting employees from LEOFF, it is not a rational classification to exclude another group. There is not one system for fire fighters and another for law enforcement officers. There is only one system — LEOFF.
A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
(Italics mine.) Jenkins v. State, 85 Wn.2d 883, 888, 540 P.2d 1363 (1975).
The legislative scheme which deprives the Port police of the benefits of LEOFF is arbitrary and irrational and, therefore, is an unconstitutional legislative classification.
On this basis, I would affirm the trial court.