(concurring specially) .
I am in general agreement with the proposition that the Legislature has the power *161to prescribe the conditions upon which it will allow work to be done for the State or for one of the political subdivisions of the State. It was upon this ground that the Supreme Court of the United States in Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 127, 48 L.Ed. 148, held constitutional a statute of Kansas which made it unlawful for any one thereafter contracting to do any . public work to require or permit any laborer to work longer than eight hours per day and which required such contractors to pay the current rate of daily wages. The statute was attacked as being in derogation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Said the Court:
“ * * * we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work for it or for one of its municipal agencies should permit or require an employee on such work to labor in excess of eight-hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state. On the contrary, it belongs to the state, as the guardian and trustee for its people; and having control of its affairs, to prescribe the conditions upon which it will permit public work to ¡be done on its behalf, -or on behalf of its municipalities. No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.
“If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best, — as undoubtedly it is, — and that to make it a criminal offense for -a contractor for public work to permit or require his employee to perform labor upon that work in excess of eight hours each day is in derogation of the liberty both of employees and employer, it is sufficient to answer that no employee is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his -agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.
^ ‡ í{í ifc
“Some stress is laid on the fact stipulated by the parties for the purposes of this case, that the work performed ¡by defendant’s employee is not dangerous to life, limb, or health, and that daily labor on it for ten hours would not be injurious to him in any way. In the view we take of this case, such' considerations are not controlling. We rest our decision upon the broad ground that the work being of a public ' *162character, absolutely under the control of the state and its municipal agents acting by- its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others; and that has not been done.”
Upon this same elementary principle that the State may prescribe the conditions upon which it will allow work to be done on its behalf, statutes or ordinances have been upheld as constitutional which (1) established a minimum daily wage -to be paid laborers on public work, Malette v. City of Spokane, 77 Wash. 205, 137 P. 496, 51 L.R.A.,N.S., 686, Ann.Cas.1915D, 225, and Jahn v. City of Seattle, 120 Wash. 403, 207 P. 667; (2) prohibited the hiring of aliens on public works or gave citizens preference (see section 34-12-1, Utah Code Ann.1953) Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas.1917B, 287; Crane v. People, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218; and Jahn v. City of Seattle, supra; (3) gave preference for hiring on public works to persons who had resided in the state six months or more, Ebbeson v. Board of Public Education in Wilmington, 18 Del.Ch. 37, 156 A. 286; (4) gave preference in hiring on public works to war veterans, State ex rel. Raines v. City of Seattle, 134 Wash. 360, 235 P. 968. The principle found an interesting application in Seattle High School Chapter 200 of the American Federation of Teachers v. Sharples, 159 Wash. 424, 293 P. 994, 996, 72 A.L.R. 1215 where an action' was brought to enjoin the directors of a school district from enforcing a resolution adopted by the board of directors that no teacher would be employed or continued in employment while he or she was a member of the American Federation of Teachers and that each teacher hired by the board should sign a declaration that he is not and would not become a member during the term of his contract. The contention was made that the resolution was not a proper exercise of the police power, but the court held that “the right of the state and its municipalities to say upon what conditions a public work shall be or not be performed is not a right arising from the exercise of the police power” but that the right rested upon the “simple ground that ‘it belongs to the state as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities.’ ” It was also contended in that case that the resolution of the board was in derogation of the due process clause of the Constitution of Washington and of the Fourteenth Amendment to the Constitution of the United States. The court recognized that a teacher had the right to follow his ' profession, but stated that “the right of freedom of contract as it exists in this case to refuse for any reason or no reason at all to engage the professional services of any person is in no sense a denial of the consti*163tutional right of that person to follow his chosen profession.”
While I find nothing in the case of Atkin v. Kansas, supra, which suggests' that the conditions imposed by the State upon public employment must be reasonable, such a qualification was made in the Opinion of the Justices, 303 Mass. 631, 22 N.E.2d 49, 57, 123 A.L.R. 199, where the Justices advised the Senate and House of Representatives of Massachusetts that certain proposed statutes which would exclude all married women from public employment of every nature and would prohibit both a husband and wife from being employed by the State would be unconstitutional. Said the Justices:
“Undoubtedly the General Court [Legislature] under the Constitution has broader power to deal as employer with employees than to regulate the conduct of the general public. But it does not follow that there are no constitutional limitations upon the power of the General Court as employer. The General Court does not in all particulars have the same freedom of action as a private employer with respect to the employment of citizens.
“ * * * Since it (the General Court) is a public agency directing the expenditure of money raised by taxation, it cannot make arbitrary discrimination and favor the employment of one class of citizens to the exclusion of others.”
The Justices concluded that a statute which would exclude married women from public employment could have no real tendency to advance the public welfare but would merely advance the welfare of a particular class of citizens at the expense of another class.
In the two cases before us, the Legislature has by Chap. 79, Laws of Utah 1953, determined that it will not permit the hiring of any person by the State or by any of its political subdivisions when the power of appointment is or can be exercised by a person who is related within specified degrees to him, or by a board of which such latter person is a member. As expressed by Chief Judge Willard Bartlett in his concurring opinion in People v. Crane, 214 N.Y. 154, 108 N.E. 427, L.R.A.1916D, 550, ’and quoted by Justice Folland in his dissenting opinion in Bohn v. Salt Lake City, 79 Utah 121, 8 P.2d 591, 609, 81 A.L.R. 215:
“The statute is nothing more, in effect, than a resolve by an employer as to the character of his employees. An individual employer would communicate the resolve to his subordinates by written instructions or by word of mouth. The state, an incorporeal master, speaking through the Legislature, communicates the resolve to its agents by enacting a statute.”
If, as required by the opinion of the Justices, supra, there must be a reasonable basis for a legislative act excluding a class of taxpayers from public employment, I *164cannot say such a basis does not exist here. The evils of nepotism are well’known and it was within the prerogative of the Legislature to attempt to eliminate that evil. As an aside, however, I think it must he admitted that in the case of teachers in our public schools, the evil is not found in the degree that it may exist in the case of other employees of the State or its subdivisions. In most respects, our public schools are safeguarded by statute against the evils of nepotism. Teachers are professional people certificated by the State Department of Education. They are hired by annual contracts by a board of local citizens — not by a single employer. Their pay is set according to fixed standards; there is usually no variation in pay between teachers with the same educational achievement and teaching experience; hence there is little opportunity for a board of education to pay one teacher more than another unless some basis in fact exists. School must be in session a required number of days each year. Indeed, the operation of the public school system does not lend itself with ease to the evils of nepotism as does other public employment.
Aside from the matter which I will next consider, I conclude that Chapter 79 is constitutional, not upon the ground that it is a proper exercise of the police power of the State, but upon the ground that it is a reasonable condition imposed by the State as an employer upon the right to seek or be retained in public employment. It is therefore unnecessary for me to consider the contentions made by the plaintiffs that said law.is not within the realm of the police power of the State. A different question would, of course, be presented if the statute applied to private contract of employment.
In the case of Atkin v. Kansas, supra, the Supreme Court of the United States said: “Its [the Legislature’s] action touching such a matter is final so long as it does not, by its regulations, infringe on the personal rights of others; * * I now consider whether the statute under consideration in this case infringes upon the personal rights of the plaintiffs.
As appears from the stipulation of facts in the instant cases, the plaintiffs are members of local teachers’ retirement associations in their respective school districts. These associations were organized pursuant to section S3-28-1 et seq., Utah Code Annotated 19S3, which authorizes their creation in school districts in cities of the first and second class. When an association has been organized in a district, all teachers in that district are required to join it and contributions to the retirement fund of the association are deducted from their salaries. The board of education of the district matches the contribution of the teachers. Upon reaching the age of sixty years and after teaching thirty years, a member is eligible for retirement and is entitled to receive an annuity of not to exceed $600.
*165Unlike most retirement systems there is no provision in the retirement act for returning contributions to members who leave the employment of the district in which the association 'is organized. The only authorization to return contributions is in the case of the death of a member before he retires. In such case, his contributions are returnable to any of his relatives who were dependent upon him for support. Section 53-28-14, U.C.A.1953. However, if a member accepts employment in another school district he may (1) transfer his membership to the association in that district, if one has been organized therein, or (2) he may continue his membership as an absent membership by sending to the association an amount equal to the contribution he would have made had he not left that district, plus the amount the board of education in that district would have contributed as matching funds. Section 53-28-13, U.S.C.A.1953.
The authorities are in agreement that the rights of members of a retirement system must be determined by the language and purpose of the act establishing or providing for the establishment of the system, and we have held, as it has been held in other jurisdictions, that teachers’ retirement acts should be liberally construed to effectuate the purpose of such acts, viz., to provide security for teachers in the public schools and create an incentive for qualified persons to enter and remain in the profession. Driggs v. Utah State Teachers Retirement Board, 105 Utah 417, 142 P.2d 657, 663; Newcomb v. Ogden City Public School Teachers’ Retirement Comm., Utah, 243 P.2d 941; Woods v. Reilly, 147 Tex. 586, 218 S.W.2d 437. So liberally have we construed teachers’ retirement acts in favor of the teachers that we have held that when a member of a retirement system has fulfilled all conditions precedent to obtaining an annuity or a pension and has been placed on the retired list, he has a vested right to receive a pension in the amount provided for by the retirement act at the date of his retirement. Driggs v. Utah State Teachers Retirement Board, supra; Newcomb v. Ogden City Public School Teachers’ Retirement Comm., supra. But until a member fulfills all the conditions precedent, he has no vested right to a pension or an annuity and the system may be abolished leaving him without the expectancy of a pension. Hansen v. Public Employees Retirement System, Utah, 246 P.2d 591. However, because a member prior to retirement does not have a vested right to a pension does not mean that he may not have Vested rights in the retirement fund to which he has made contributions.
In view of the purpose of teachers’ retirement acts and the rule that such acts should be liberally construed in favor of the teachers, I am led to the conclusion that members of local teachers’ retirement associations in this state have an interest in the fund to which they have contributed and that that interest can only be extinguished in accordance with the provisions *166of the act at the time they make their contributions. If a member voluntarily leaves the employ of the district in which the association to which he belongs has been organized; if he leaves because the board of education does not renew his contract; or if he dies while a member but leaves no dependent relatives, he knows that under the Act there will be no return of his contributions. But unless the Legislature impliedly reserved the right to deal in any manner it may choose with a member’s contributions, he is assured by the Act that except (1) if he voluntarily withdraws from employment, or (2) if the board will not renew his contract, or (3) if he dies before retirement, he cannot be deprived of his interest in the fund.
We stated in Newcomb v. Ogden City Public School Teachers’ Retirement Comm., supra, that it would not be consonant with the purpose of the local teachers’ retirement act for us to hold that the Legislature reserved the right to abolish local retirement associations and thereby terminate the payment of annuities to retired teachers. We stated that such a reservation on the part of the Legislature would defeat its very purpose in providing for the organization of associations because teachers would have no assurance whatever of receiving retirement pay after they had fulfilled all the conditions precedent to receiving it. We quoted with approval from Kern v. City of Long Beach, 29 Cal.2d 848, 179 P.2d 799, 803, as follows:
“It is obvious that this purpose would be thwarted if a public employee could be deprived of pension benefits and the promise of a pension annuity would either become ineffective as an inducement to public employees or it would become merely a snare and a delusion to the unwary.”
What was said by us in that case is appropos here. It would be highly incongruous with the purpose of the act for us to now hold that the Legislature reserved the right to make unlawful the continued employment of a few members of a retirement association after they had taught for a long period of time and made compulsory contributions to a retirement fund of which they have no way of obtaining a refund, when they and the board of education which employs them are willing and anxious that they continue their employment, simply because of the fortuitous circumstance that some one related to them gained election to the board many years after they joined the association. Had the act specified in express language that the Legislature reserved the right to work a forfeiture of their interest in the fund at any time and for any reason which occurred to the Legislature it is manifest that the beneficient purpose of the act would have been doomed to defeat at the outset. It strains my credulity to believe that the Legislature *167intended to reserve any such power when it enacted the enabling act for local associations. The invitation of the act to make contributions toward retirement pay is as the court said in Kern v. City of Long Beach, supra, “a snare and a delusion to the unwary” if the Legislature can at any time, without abolishing the association, work a forfeiture of the interest in the fund of a few members of the association because of some fortuitous event, for which they are in no way responsible.
In 1949 when the Legislature provided for the dissolution of local teachers’ retirement associations provision was made for the distribution of the funds of the association among annuitants, members and claimants. Chap. 91, Laws of Utah, 1949. Again, when the Legislature in 1951 abolished the Public Employees’ Retirement System it provided for a return of contributions to those members who were not yet entitled to retirement benefits. Chap. 21, Laws of Utah 1951, First .Spec.Sess. as amended by Chap. 4, Laws of Utah 1952, Second Spec.Sess. Thus it is arguable that the Legislature has in two instances recognized that members in a retirement system who have not qualified for retirement pay do have an interest in the funds to which they have contributed.
The plaintiffs Backman and Tanner have taught 27 years and 33% years, respectively, in their districts. Most of those years of service were rendered before their brothers gained election to the ¡board in the district in which they were employed. Chapter 79 would force the plaintiffs to leave the district in which they have taught for this many years, thereby terminating their membership in the retirement associations organized in those districts, and working a loss of their interest in the retirement fund to which they have contributed unless they can (1) find employment in another district in which an association has been- organized to which they can transfer their membership, or (2) unless they choose to continue their membership in absentia by paying their contributions voluntarily, plus the matching contribution which the board of education formerly paid. The first alternative is speculative since there are only five cities in this state of the first or second class, and we are not apprised in how many of those cities associations have been organized to which the plaintiffs could transfer their membership if they should succeed in gaining employment in one of those districts. The second alternative is equally unsatisfactory since it requires those members to pay twice the contribution of other members in order to protect their interest in the fund.
I thus conclude that Chap. 79 as it affects the plaintiffs and other members of local teachers’ retirement associations similarly situated is unconstitutional since it may work a forfeiture .of the interest of those members in the retirement fund to which they have contributed. Further than this I cannot go at this time in declaring *168the constitutionality of Chap. 79. It may be that in the case of other school teachers and other public employees there are certain vested rights which may be cut off by the retroactive feature of Chap. 79. Thus the constitutionality of the statute as it applies to persons other than the plaintiffs and those similarly situated must be determined upon the record in each case.