(concurring). The final clause appearing in the form of agreemeut signed by plaintiffs1 is wholly void for want of authority in the retirement act for inclusion thereof in the required “agreement.”
The form of agreement called for by section ll was designed to bind the signing member “to all provisions of this act” as the act stood at the time of execution of the agreement; not to the act plus all amendments the legislature might decide to enact and place in effect with or without knowledge of those affected thereby (retirants especially). Indeed, there would be no contractual relationship between a participating member or retirant and the State had the statute permitted the State to impair at will the rights of such member or retirant absent vigilance and written notice.3 Unseemly, too, is the idea that a member or retirant may repeal for himself an impairing amendment with others of his class left bound thereby.
*185I agree specifically with Justice Dethmers’ summation :
“We hold that a valid contract was entered into between judges aud the State, that the State’s agreement thereunder to pay the judges certain benefits created vested rights for the judges upon their retirement, that these are enforceable and cannot be impaired or diminished by the State. This should be deemed to include not only the benefits provided by statute at the time of entry into the contract and of retirement, but, also, those later added by statutory amendment. The legislature may add to but not diminish benefits without running afoul of constitutional prohibition against impairment of the obligation of a contract.”
This suggests inclusion in our record of what the defendant board has already done under guidance of former Attorneys General T. M. Kavanagh and Adams, now justices seated here, specifically with respect to retirants distinguished from member judges.4
December 13, 1960, the executive secretary of the defendant board requested that Attorney General Adams advise whether the board should “start paying [three] retired Supreme Court justices” a retirement annuity figured at one-half the salary currently being paid one justice or that currently being paid the other justices. The request for that opinion, *186and Attorney General Adams’ response, explain fully how three retirants have received annuities at the higher figure. The request:
“Honorable Paul L. Adams Attorney General — State of Michigan Lansing, Michigan Dear Sir:
“The judges’ retirement act, PA 1951, No 198, as amended by PA 1956, No 224, provides in section 14: ‘Upon- a member’s retirement from service who is then ¿'justice of the Supreme Court, as provided in this act, he shall annually receive a retirement annuity of 1/2 of the annual salary being currently paid by the State to a justice of the Supreme Court, payable during the remainder of the member’s life. * * * The retirement annuity herein required to be paid shall also be paid to those members already on retirement in a sum equal to that which they would receive if - they retired after the effective date of this amendatory act.’
“PA 1960, No 163, effective 8/17/60, provides: ‘Sec. 6. Each justice of the Supreme Court shall receive an annual salary of $25,500 payable out of the moneys appropriated by the legislature. Section 2.' Justices of the Supreme Court in office on the effective date of this amendatory act shall not receive any increase in annual salary until the expiration of their respective terms of office.’
“Justice Theodore Souris, who was appointed to the Supreme Court, effective 1/5/60, for a term expiring when a successor is elected and qualified, was elected to the Supreme Court on 11/8/60. His pay \yill be $25,500 effective 11/9/60. Other Supreme Court justices are receiving $18,500.
“In view of the fact that Justice Souris is receiving $25,500 per year, should the judges’ retirement system start paying retired Supreme Court justices a .benefit figured at 1/2 of $25,500,'. effective 11/9/60, rather than the present benefit they are receiving, figured at 1/2 of $18,500 or $9,250. There are three *187Supreme Court justices on retirement at the present time who would be affected by' this decision.5
“May we call your, attention to Opinion No 2810, dated 12/18/56, and Opinion No 2875, dated 2/28/57, which deal with this section of the judges’ retirement act. The 1956 opinion concludes that the provisions of section 14, establishing a sliding scale for retirement pensions and making the same applicable to all pensioners including those already retired, is not in violation of the Constitution. The 1957 opinion specifically provides that a justice retiring 12/30/56, receiving a salary of $15,000 by reason of the constitutional prohibition against increases during the term, shall have his pension computed on the basis of $18,500, the statutory salary currently being paid to justices.
“Your prompt opinion on the question of whether or not the three retired Supreme Court Justices’ pensions should be recomputed on the basis of the $25,500 salary provided in PA 1960, No 163, will be greatly appreciated. . .
Sincerely,
Lawrence L. Farrell
Executive Secretary” ■
March 2,1961, Attorney General Adams responded by memorandum opinion No M-751. It reads:
“Mr. Lawrence L. Farrell
Executive Secretary
Judges’ Retirement System 330 Lewis Cass Building Lansing 13, Michigan
Memorandum Opinion.No M-751
Dear Mr. Farrell:
“You have asked my opinion on the following questions:
*188“1. Are presently retired Supreme Court justices entitled to annual pension benefits computed on the basis of one-half of $25,500, because of the amendment to section 6, chapter 1, PA 1915, No 314, by PA 1960, No 163?
“2. If they are entitled to an increase, when does it take effect?
“You have referred to two opinions of the attorney general, being Opinions Nos 2875 and 2810. In these opinions the attorney general disposed of your first question. Based on these opinions the answer to your first question is ‘yes.’
“PA 1960, No 163, went into effect on August 17, 1960. This is the effective date of the increase to annuitants. See Marie v. Board of Higher Education of City of New York, 303 NY 154 (100 NE2d 384).
Very truly yours,
Paul L. Adams
Attorney General”
The question whether plaintiffs may proceed to judgment, by invocation of this Court’s original jurisdiction, is discussed in the opinions of Justices Dethmers and Souris. That question was raised, not by any party, but by a member of the Court during oral argumént. I vote short shrift for it, the majority opinion on rehearing of Superx Drugs Corporation v. State Board of Pharmacy, 375 Mich 314, considered. There, despite the iterated and reiterated fact that the attorney general raised the same question at the very outset (see 372 Mich 22, 29, 375 Mich 314, 321), the majority above has permitted Superx to bypass the administrative procedure act. That is a precedent I mean to follow. If a giant corporation backing Superx is to receive such a favor, these retired and now infirm judges should have it, the question not having been raised as against their instant proceeding until argument day.
*189Due warning of my vote in such regard was given in the Superx opinion released May 10, 1965 (375 Mich at 321, 322). There this appears:
“All similarly situated litigants have a right now to say: ‘If, in the face of the specific question having been raised at the outset, the Supreme Court is going to let Superx bypass review under the administrative procedure act, have we not a right to the same benison?’ ”
I agree that a writ should issue as prayed.
Kelly, J., concurred with Black, J.The clause as signed by plaintiffs reads:
“The undersigned further agrees that should any future change be made in said judges’ retirement act, the undersigned shall be deemed to have consented thereto, and to be bound thereby, unless the undersigned, within 30 days from the effective date of said change or amendment, files written notice with the retirement board of his objections thereto.”
If the clause is good, all retirants had better stay in Michigan— preferably Lansing—to guard against the possibility of immediate effect amendments which, failing that 30-day notice, could impair or even destroy that which of contractual right is theirs.
Excepting plaintiff Miller, these plaintiffs beeame retirants after effectiveness of the amendment of section 14 of the judges’ retirement act in 1956 (No 224) [OLS 1956, § 38.814 (Stat Ann 1959 Cum Supp § 27.125[14])], and prior to effectiveness of the 1961 amendment of section 14 (No 169) [CLS 1961, § 38.814 (Stat Ann 1962 Rev § 27.125[14])]. The amendment of 1956, insofar as it applied to circuit judges, was described by Attorney General Kelley this way (opinion given the defendant board August 13, 1964) :
“This amendment injected into section 14 a device known as an escalator clause. It was contemplated that those who retired would have their pensions adjusted when the salary of active circuit judges changed so that they would always receive one-half of the amount of [State] salary being paid to active circuit judges.”
One of the “three Supreme Court justices on retirement” whs Justice Bushnell. He retired January 10, 1955 (341 Mich -iii). prior to enactment of the amendment of 1956.