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Salmons v. Dutz

FEBRUARY 21, 1958.

HARRY SALMONS, PLAINTIFF-APPELLANT,

v.

CHARLES DUTZ, RICHARD KERRIGAN, JAMES MCCALL, LOUIS MUMBOWER, AND EARL MINDER, AS MEMBERS OF THE BOARD OF TRUSTEES OF POLICE PENSION FUND OF CITY OF LINCOLN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Logan county; the Hon. FRANK S. BEVAN, Judge, presiding. Affirmed.

PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

This is an action for a declaratory judgment involving the construction of Section 1 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," as amended (Par. 892, Chap. 24, Ill. Rev. Stats. 1955), commonly designated as the "Down-State Police Pension Fund Act" and the validity of a certain rule adopted by the Board of Trustees of the police pension fund of the city of Lincoln, Illinois implementing the provisions of said Act.

For convenience the portion of said Par. 892 pertinent on this review will be referred to herein as the "Act" and the same reads as follows:

"`Policeman,' or `policemen,' as used in this Act, shall include all persons who at the time this Act becomes effective, are now or have been or shall be employed by the police department or police service of such city, village or incorporated town, and all persons who are now, have been or shall hereafter be appointed to any position which is classified by the Civil Service Commission of such city, village or incorporated town, as in or a part of or connected with police service or police department of any such city, village or incorporated town, and all persons appointed, reappointed, reemployed or reinstated, sworn or designated by law as policemen of such city, village or incorporated town, and including any person who has served, is serving or shall hereafter serve in any capacity in the legally constituted police department or as a member of the police department or police service of any such city, village or incorporated town; provided, however, that no such policeman shall be entitled to receive any benefits under the terms of this Act unless (a) he shall make written application to the Board of Trustees hereinafter provided for to come under the provisions of this Act, (b) he shall be found upon the examination of a duly licensed physician selected by said Board of Trustees to be physically and mentally fit to perform the duties of a policeman, and (c) he shall pay to the Fund a sum equal to the amount he would have paid had deductions been made from his salary during the period of his service extending from the date the municipality became subject to the provisions of this Act or the date of his original entry into the service, whichever is later; and provided, further, that no person appointed, reappointed, reemployed or reinstated to such police department or police service after July 1, 1953, shall be considered a policeman within the provisions of this Act unless at the time of his first appointment therein he was between the ages of twenty-one (21) and thirty-five (35), and unless he shall make written application to said Board of Trustees to come under the provisions of this Act and shall be found upon a medical examination of a duly licensed physician selected by said Board of Trustees to be then physically and mentally fit to perform the duties of a policeman."

The rule in question provides that police officers of the city of Lincoln in order to qualify for benefits from the pension fund are required to make contributions thereto at the rate specified in the Act from the date of their original entry into the service.

On July 1, 1921, the city of Lincoln had a population of more than 5,000 but less than 20,000 inhabitants and on that date became subject to the provisions of the Act. However, the city took no action to comply with the Act until February 3, 1954 at which time it adopted an ordinance creating a police pension fund, providing for a Board of Trustees of such fund, and thereafter monthly deductions were made from the salaries of policemen in the amount required by the Act and turned into said fund. Prior to February 3, 1954, no such deductions were made from the salaries of any of the city's policemen.

The plaintiff was appointed a member of the police department of the city of Lincoln on May 1, 1945. Since February 3, 1954, contributions to the police pension fund have been deducted from his salary. He has not paid into the fund the amount which would have been deducted from his salary as pension fund contributions during the period from May 1, 1945 to February 3, 1954.

The controversy between the parties arises over the construction which is to be placed upon clause (c) of the Act which reads as follows:

"that no such policeman shall be entitled to receive any benefits under the terms of this Act unless. . . (c) he shall pay to the Fund a sum equal to the amount he would have paid had deductions been made from his salary during the period of his service extending from the date the municipality became subject to the provisions of this Act or the date of his original entry into the service, whichever is later."

As set forth in the complaint, the theory of plaintiff is that the following words in clause (c) to-wit: "the date the municipality became subject to the provisions of this Act" does not mean the date the city of Lincoln attained a population bringing it within the scope of the Act but was intended by the legislature to mean the date on which said city complied with the Act by establishing a police pension fund which was on February 3, 1954 and that the contributions of plaintiff should begin as of said date. Defendants, on the other hand, contend that the Act should be construed to mean that plaintiff, in order to qualify for benefits thereunder, is required to make contributions to the police pension fund covering the period from the date of his entry into the service on May 1, 1945 to February 3, 1954.

The trial court rejected plaintiff's theory and entered a declaratory judgment construing the words "from the date the municipality became subject to the provisions of this Act" to mean the date the city became subject to the provisions of the Act and holding valid the rule adopted by the Board of Trustees. From that judgment plaintiff has perfected this appeal.

In considering the question raised on this appeal, recognition must be accorded the well established principle that a statute is not open to construction where the language thereof is clear and unambiguous and conveys a clear and definite meaning. 50 Am. Jur. Sec. 225. If the legislative intention be plain from the language used the courts are not permitted to give the Act any other meaning than that therein expressed. In Sup v. Cervenka, 331 Ill. 459, the rule to which we refer is thus stated:

"It is an elementary rule in the construction of a statute that the intention of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When that language is plain and unambiguous and conveys a clear and definite meaning there is neither necessity nor authority for resorting to statutory construction. If the words of a statute are plain and the legislative purpose manifest, that purpose must be given effect. The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the legislature. They cannot read into a statute something that is not within the manifest intention of the law-making body as gathered from the statute itself. To depart from the meaning expressed by the words is to alter a statute — it is to legislate and not to interpret. If the obvious meaning of a statute should be followed by harsh consequences, such a result cannot influence the courts in administering the law."

In applying this rule to the instant case, the first question to be determined is whether the Act when given its plain and ordinary meaning renders its provisions susceptible of misunderstanding. The Act covers three matters, viz., (1) it defines the word "policeman" as used in the Act, (2) it specified the conditions under which a policeman is entitled to benefits under the Act and (3) requires that persons appointed, reappointed, reemployed or reinstated must meet certain requirements in order to qualify for coverage under the Act. In addition to the foregoing, it contains a provision relating to persons appointed, reappointed, ...


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