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Bowden v. Flannery

AUGUST 5, 1958.

IRENE BOWDEN, PETITIONER-APPELLANT,

v.

WALLACE FLANNERY ET AL., TRUSTEES OF THE POLICE PENSION FUND OF CITY OF KANKAKEE, ILLINOIS, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Kankakee county; the Hon. C.D. HENRY, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

On July 30, 1953, Irene Bowden filed her petition in the circuit court of Kankakee County praying for the issuance of a writ of mandamus directing the Board of Trustees of the Police Pension Fund of the City of Kankakee to forthwith pay to petitioner a pension equal to one-half of the amount of salary attached to the rank which her deceased husband, Gilbert C. Bowden, held on the police force of the City of Kankakee for one year immediately prior to his death.

After the defendants had answered, the plaintiff filed a reply and a motion for judgment on the pleadings. This motion for judgment was heard and taken under advisement and while under advisement, the parties entered into a stipulation and the case was submitted to the court upon the pleadings and stipulation resulting in an order denying plaintiff the relief sought and dismissing her petition. To reverse that judgment plaintiff appeals.

It was stipulated that Gilbert C. Bowden was the husband of appellant and died on October 15, 1952, and at that time was a member of the police force of the City of Kankakee; that from May 15, 1935, decedent served continuously through March 3, 1945, on said police force and also from July 24, 1950, continuously through October 6, 1950, and also from June 26, 1951, continuously through October 13, 1952; that on April 14, 1953, satisfactory proof of the foregoing facts was presented to the board of trustees of the police pension fund, and that board ordered and directed a pension equal to one-half of the salary of decedent for the year preceding his death, be paid to his widow, effective December 1, 1952, upon payment by his widow of contributions equivalent to the amount which would have been contributed by decedent had he contributed to said pension fund during his periods of service following March 3, 1945.

It was further stipulated that on April 28, 1953, the board of trustees of said pension fund held a special meeting without notice to Irene Bowden; that at this special meeting the chief of police of the City of Kankakee testified that decedent on July 24, 1950, was employed as a temporary patrolman and was re-appointed such temporary patrolman every thirty days by the chief of police or by the acting chief of police of the City of Kankakee. It was further stipulated that at this special meeting held on April 28, 1953, the board of trustees reconsidered its order of April 14, 1953, reversed the same and declined to pay any pension to appellant, finding as a fact that Bowden, had been re-appointed as a temporary patrolman every thirty days commencing July 24, 1950 continuously through October 16, 1950 and commencing June 21, 1951 and continuing through October 13, 1952.

It was further stipulated that the necessary funds to pay a pension to appellant were available and that the duties of decedent throughout his service as a member of the police force were the same as performed by regular patrolmen; that the average monthly salary received by decedent during the period of one year prior to his death was $257.83 and that decedent contributed to the police pension fund regularly and continuously from May 15, 1935, through March 3, 1945, but not thereafter.

It was further stipulated that from May 15, 1945, through October 4, 1951, Gilbert C. Bowden made repeated applications for reinstatement to the Police and Fire Commission but these applications were never approved nor was any physical examination ever provided for or taken by him and that because of such lack of reinstatement by the Police and Fire Commission his contributions to the police pension fund were neither deducted from his salary nor accepted by the commission; that from July 24, 1950, his name was carried on the pay roll records of the City of Kankakee under the description of "extra patrolman," and a copy of the pay roll voucher for the last half of the month of April 1952 which reflects the manner in which Bowden was carried on the pay roll records of the City of Kankakee was attached to the stipulation and made a part thereof.

Appellant contends that her husband, at the time of his death, was not a temporary employee of the city but a member of the police force of the City of Kankakee and had been a member thereof for more than ten years; that the original decision of the board of trustees entered on April 14, 1953, so found and its order directing the payment of a pension to appellant was final and irrevocable and that the subsequent order of April 28, 1952, reversing that order was void and of no effect.

Counsel for appellees insist that at the time of his death, Bowden was a police officer appointed for temporary duty only within the meaning of Section 19 of the Pension Act (Ill. Rev. St. 1951, Chap. 24, par. 904f). Counsel insist that decedent had not been a member of the police force for the requisite number of years and as decedent had not qualified himself for the payment of a pension to his widow under the statute, the trial court did not err in dismissing the petition. Counsel further insist that certiorari is the proper remedy available to appellant in the event appellees proceeded illegally or exceeded its authority on April 28, 1953, when the board reconsidered its action of April 14, 1953, and denied a pension to appellant.

From the pleadings and the stipulation of the parties, it appears that Bowden's service as policeman covered three periods. The first, which ended in 1945, fell short by two months and twelve days of the required statutory period of ten years; that five years later, in the summer of 1950, he served by appointment of the chief or acting chief of police as a temporary patrolman for two months and thirteen days and commencing in June, 1951, he again served, by appointment of the chief or acting chief of police, as temporary patrolman continuously to the time of his death. It further appears that these temporary appointments were never approved by the Police and Fire Commission of the City of Kankakee and that Bowden's repeated applications for reinstatement as a member of the police department were never approved by the commission and after March 3, 1945, decedent made no contributions to the police pension fund.

Kankakee is a city of more than 5,000 and less than 200,000 inhabitants and its police pension fund was created and is being administered according to the provisions of the Act providing for the setting apart, formation and disbursement of a police pension fund approved June 14, 1909, as amended. (Ill. Rev. Stat. 1951, chap. 24, secs. 892-904g inc.)

Section 1 of that Act provides for the creation of the pension fund and directs that 5 per cent of the monthly salary of each member of the police department shall be set apart by the treasurer of the city and become a part of the police pension fund. This section further provides that "policeman" or "policemen," as used in the Act, shall include all persons employed in the police department or service of the city, "provided, however, that no such policeman who has not contributed to the police pension fund during the entire period of his service 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 whole of his such period of service."

Section 2 of the Act provides for the creation of a board of trustees whose duty it is to disburse the pension fund and designate the beneficiaries thereof. The applicable portion of Section 6 of the Act provides that whenever any member of a police force shall die after ten years service therein and while still in the service of the city, leaving a widow, then upon satisfactory proof of such fact being made to the board, the board shall order and direct that a pension equal to one-half of the amount of salary attached to the rank which such policeman may have held on such police force for one year immediately prior to his death, shall be paid to such widow.

Section 10 of the Act provides for the organization of the board and directs that the board shall hold quarterly meetings and special meetings upon the call of the president. This section provides that the board shall issue certificates signed by its president and secretary to the persons entitled thereto of the amount of money ordered paid to such persons from ...


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