(concurring specially) — I am satisfied that the legislature by chapter 200, Acts of the Fifty-seventh General Assembly, amending section 410.10, Code of 1954, did not in fact create any new rights or modify the applicable law, that it did no more than invade the court’s judicial function of construing the enacted statutes, and since the action was between the same parties, involving the same facts and same law, the prior judgment was res judicata. I am unwilling to conclude that the legislature could not, by proper enactment, extend to Joseph E. Young and anyone in like situations the right to participate in that pension system, or that the judgments previously rendered on Young’s claim would in such ease be res judicata. I am satisfied the opinion of the majority, insofar as it attempts to deny or discourage any further legislative action in this field, is both unnecessary and improper.
I did not join in the former decision in Young v. O’Keefe, 248 Iowa 751, 82 N.W.2d 111, because I did not believe the doctrine of res judicata was applicable and found no necessity for reference to it therein. My fears were not groundless for here the majority not only needlessly apply those conclusions to this case, but cite the finding and reasoning in that decision as authority for its present use. To that extent I disagree.
Our judgment in the second Young v. O’Keefe case, supra, denied Young’s claim due to the fact that he failed to show any new right applicable to him, because the enlarged benefits had *1013not been made retroactive. Unquestionably, new rights were established, which if it were determined were retroactive would apply to him. He is a surviving “spouse.” As to- those extended benefits or rights which he contended were extended to him by the Fifty-sixth General Assembly, there had been no previous judgment to estop his second action. The rule applicable is found in Security Savings Bank v. Connell, 198 Iowa 564, 568, 200 N.W. 8, 10, 36 A. L. R. 486, where we said: “Moreover, the force of the estoppel, if estoppel there be, is in the judgments themselves ; not in the finding or reasoning of the court by which the conclusions were reached.” Linton v. Crosby, 61 Iowa 293, 16 N.W. 113.
Our judgment in Young v. O’Keefe, supra, as I view it, was simply that the claimed benefits were not available to Young because the statutes involved were not made retroactive. In other words, rights which he claimed were nonexistent. Neither had the law been changed to include him and his class. To that extent the decision was sound, but the findings and reasoning upon which the application of the doctrine of res judicata conclusion was reached was mere dictum and unsound. How would a construction of the amended statute creating new rights in Young, as retroactive, “run into the doctrine of res judicata”? Insofar as that erroneous conclusion is repeated in this case in Division III of the majority opinion, I respectfully dissent. If the Fifty-sixth or Fifty-seventh General Assembly had clearly made the extended benefits for the surviving spouse retroactive, claimant’s following action would not have been estopped and the judgment in his first case would not amount to res judicata. New statutory rights were then involved. The authorities, I believe, are overwhelming that hold a judgment is not res judicata as to rights which were not in existence at the time of the rendition of the judgment. 30 Am. Jur., Judgments, section 206, page 943; 50 C. J. S., Judgments, section 650, page 92.
It is said in 30 Am. Jur., supra, page 943: “However, where, after the rendition of a judgment, subsequent events occur, .creating a new legal situation or altering the legal rights or relations of the litigants, the judgment may thereby be precluded from operating as an estoppel.” Security Savings Bank v. Connell, *1014supra, 198 Iowa 564, 568, 200 N.W. 8, 36 A. L. R. 486; Cox v. Revelle, 125 Md. 579, 94 A. 203, L. R. A. 1915E 443; 37 A. L. R.2d, annotation, page 836.
In the Connell case this court held that a decree to the effect that bank stock is, under a statute, assessable for a certain year only when the value of tax-exempt Federal securities held by the bank is first deducted, is not an adjudication that such deduction must be made in a subsequent year after the unconstitutionality of the said statute has been judicially determined. We said therein at page 573 of 498 Iowa: “The subsequent determination that the statute was unconstitutional so changed the legal situation, as affecting the right to the deduction claimed, that the prior decrees holding the bank entitled to the deduction are not'binding as res judicata in respect to the tax in subsequent'years.”
In the Cox case, supra, the court held that an adjudication as to the leasable character of certain oyster grounds under one Act of the legislature will not justify the denial by the court of the state’s power to condemn such property for public purposes under a later enactment.
In the recent Florida case of Wagner v. Baron, cited by appellee, Fla., 64 So.2d 267, 37 A. L. R.2d 831, the court said: “The cases are legion which hold that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different from that applicable to the second action * * * or a change in the law between the first and second judgment, creating an altered situation.” Mission Theatres v. Twentieth Century-Fox Film Corp., 88 F. Supp. 681, 684; Sunnen v. Commissioner of Internal Revenue, 8 Cir., 161 F.2d 171, 178; Bush v. Commissioner of Internal Revenue, 2 Cir., 175 F.2d 391; Williams v. Ledbetter, 87 Ohio App. 171, 94 N.E.2d 377; Young Men’s Christian Assn. v. Sestric; 362 Mo. 551, 242, S.W.2d 497; Hurd v. Albert, 214 Cal. 15, 3 P.2d 545, 76 A. L. R. 1348; Mullane v. McKenzie, 269 N. Y. 369, 199 N. E. 624, 103 A. L. R. 758, and others cited.
In Wagner v. Baron, supra (64 So.2d at 268), the Florida court said: “Clearly, a judgment is not res judicata as to rights which were not in existence and which; could not have been *1015litigated at the time the prior judgment was entered.” Obviously any other conclusion would border on the ridiculous.
In the first Young case, 246 Iowa 1182, 69 N.W.2d 534, we held applicant had no rights under the then-existing law because “widow” did not include “widowers.” Widowers had no existing rights at that time. After the statute had been amended by the Fifty-sixth General Assembly the law gave those rights to the surviving “spouses.”' Clearly if this had been the law when Young’s wife had died, he would have been included, but we said there was nothing to indicate the amended statute was retroactive and, in the second case between the parties, again denied his claim. On that basis the decision was correct, but to hold that the legislature Aid-not have the power to thereafter grant to Young and his class such benefits clearly exceeds . judicial authority.
In the case of Utter v. Franklin, 172 U. S. 416, 423, 424, 19 S. Ct. 183, 186, 43 L. Ed. 498, 501, the court dealt with this question. In holding that a judgment decreeing bonds to be invalid is not res judicata as to their validity after a subsequent statute has cured their defect, the court said:
“We think it was within the power of Congress to validate these bonds. '* * * There was nothing at that time to -have prevented Congress from authorizing such municipalities to issue bonds in aid of railways, and that which Congress could have originally authorized it might-subsequently confirm and ratify. This court has repeatedly held that Congress has full legislative power over the Territories, as full as that which a state legislature has over its municipal corporations. American Ins. Co. v. [356 Bales of Cotton] Canter, 1 Pet. 511, 7 L. Ed. 242; National Bank v. County of Yankton, 101 U. S. 129, 25 L. Ed. 1046.” Continuing, the court said: “The fact that this court had held the original Pima County bonds invalid does not affect the question. They were invalid because there was no- power to issue them. They were made valid by such power being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that case was res adjudicada only of the issues then presented, of the facts as they then appeared, and of the legislation then existing.” (Emphasis supplied.)
*1016It must be clear in tbe instant case that originally the legislature could have authorized the payment of pension benefits to widowers, as well as widows, and that it could have made the law retroactive to cover existing situations. What it could have done originally it has the power to subsequently grant and extend. Had it done so in any proper manner, this court should not interfere.
The first amendment granted rights to all spouses. The statute as amended by the Fifty-seventh General Assembly did not extend or confirm rights in existing widowers prior to the first amendment, but simply directed the court to interpret the statute as retroactive. We had already interpreted it as not being retroactive, and the legislature cannot directly change- that determination. However, I am not content with the conclusion that the legislature does not have the power, if properly exercised, to extend to applicant and those in his class the right to claim pension benefits of the municipality, under such statutes.