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Blough v. Ekstrom

AUGUST 12, 1957.

JOHN BLOUGH ET AL., PLAINTIFFS-APPELLEES,

v.

GUST EKSTROM ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded, with directions.

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

This is a complaint by seven plaintiffs, John Blough, LeRoy Dearth, George Gould, J. Duncan Graham, Arnold Gustafson, J. Maurice McGill, and William Rafferty, in seven counts — one for each plaintiff — against the named defendants as the Board of Trustees of the Police Pension Board of Rockford. Each Count, respectively, alleges that the respective plaintiff concerned was in service as a policeman in the Police Department of Rockford for varying periods of time — the plaintiff Blough from December 6, 1945 to June 13, 1948, the plaintiff Dearth from April 25, 1948 to November 15, 1948, the plaintiff Gould from August 19, 1945 to March, 1950, the plaintiff Graham from July 1, 1943 to June 7, 1952, the plaintiff Gustafson from March 17, 1947 to March 12, 1951, the plaintiff McGill from July 1, 1942 to March 1, 1949, and the plaintiff Rafferty from July 24, 1944 to September 16, 1950. Each Count, respectively, then alleges that during such service there was deducted from the plaintiff's pay certain contributions to the police pension fund, in accordance with the police pension act, which were delivered to and held by the defendants, or their predecessors, as the Board of Trustees of the Police Pension Board of Rockford; subsequent to the termination of his services the plaintiff made demand on the defendants for refund of his contributions, which has been refused; Ch. 24, Ill. Rev. Stats., 1955, par. 904a provides that:

"In case any police officer is separated from the service of such city, village or incorporated town before he has served twenty years, all contributions made by him to the fund shall upon request of the police officer be returned to him.";

the plaintiff's service terminated before he had served twenty years; and there is now due each plaintiff varying amounts, for which judgments are prayed. A motion, as amended, to dismiss was overruled. The motion, as amended, to dismiss was based primarily upon the contention that Ch. 24, Ill. Rev. Stats., 1955, par. 904a, upon which the plaintiffs rely, was approved March 31, 1953, became effective then or sometime thereafter, was intended to operate prospectively only and not retroactively, and since all of the plaintiffs had ceased performing their services prior to the effective date of the statute it did not apply to them. The defendants' answer admits the factual allegations of the complaint, but denies there is anything due and owing the plaintiffs, and realleges the substance of the grounds set forth in their motion, as amended, to dismiss, to the effect the complaint states no cause of action, and prays judgment for the defendants. A motion by the plaintiffs for judgment in their favor on the pleadings was allowed, and judgments were so entered for the respective plaintiffs, in the varying amounts prayed in the complaint, against the defendants. The defendants have appealed. There are no controverted questions of fact.

Ch. 24, Ill. Rev. Stats., 1955, par. 904a, the present statute, reads, in full, as follows:

"In case any police officer is separated from the service of such city, village, or incorporated town before he has served twenty years, all contributions made by him to the fund shall, upon request of the police officer, be returned to him.

Acceptance of such refund shall bar such police officer and his dependents from any further participation in the benefits accorded by this Act, subject to restoration upon re-entry into service and payment to the fund of the amount of the refund plus interest at the rate of 2% from the date of the refund until the date of repayment."

That provision constitutes section 14, as added by an Act approved March 31, 1953, of "An Act to provide for the setting apart, formation, and disbursement of a police pension fund in cities, villages, and incorporated towns having a population of not more than 200,000 inhabitants," approved June 14, 1909, as amended. The Act approved March 31, 1953 is called, literally, "An Act to add section 14 to" etc., and it says that "Section 14 is added to" etc., and "the added Section to read as follows" etc.: Laws, 1953, p. 28. The whole statute, or act approved June 14, 1909, as amended, of which that section 14 is now a part, as so added in 1953, is Ch. 24, Ill. Rev. Stats., 1955, pars. 892-904g, and becomes relevant to the issues herein.

All of the plaintiffs, former police officers of Rockford, were separated from that service prior to March 31, 1953, the date of approval of the act adding that section 14, Ch. 24, Ill. Rev. Stats., 1955, par. 904a — to the present statute. The defendants urge that section 14, par. 904a, was intended to and does operate prospectively only, and not retroactively, and the plaintiffs having been separated from the service prior to the effective date of that section it is not applicable to them. The plaintiffs urge that that section was intended to and does operate retroactively, as well as prospectively, and allows and requires a return of the contributions made to the fund by the plaintiffs as former police officers who had become separated from the service prior to the effective date of that section.

The original act approved June 14, 1909, Laws, 1909, p. 133, contained no provision at all for the return or refund to police officers who became separated from the service before serving 20 years, or any number of years, prior to becoming eligible for a pension, of the contributions made by them to the police pension fund. Evidently that condition of the law prevailed for many years — until 1943. Previously, in 1931, the statute was amended to add a new section — section 14 — thereto, Laws, 1931, p. 373, which 1931 amendment, though not now material, we shall set forth to preserve the continuity of events. It read:

"Sec. 14. Nothing in this Act contained shall be held to apply to special police officers, nor to police officers appointed for temporary duty only, nor to appointees serving probation, nor to temporary appointees."

Then, in 1943, by an act approved July 23, 1943, Laws, 1943, p. 428, that section 14 (as added in 1931) was, with other sections, amended to read in this manner:

"Sec. 14. Nothing in this Act contained shall be held to apply to special police officers, nor to police officers appointed for temporary duty only, nor to temporary appointees, but this Act shall apply to officers serving initial probationary periods. Such officers shall make contributions in the same manner as other police officers. In case any police officer retires from the service of such city, village or incorporated town before he has served ...


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