APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a judgment of the Circuit Court upholding the decision of the Board of Trustees of the Judges Retirement System which denied a widow's annuity increase to the plaintiff. The Board held that the annuity granted plaintiff under the provisions of the Judges Retirement Act, (Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-128 (2) (b) (2)), did not include a pro rata portion of the 1 1/2% automatic increase in judges retirement annuities as provided for under Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-125.1.
Plaintiff is the widow of the Honorable James M. Corcoran, a former Associate Judge of the Circuit Court of Cook County who died on August 19, 1969. At the time of his death, Judge Corcoran was an active participant in the Judges Retirement System of Illinois. (See Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-101 to 18-165.) As a participant, the judge would regularly contribute a portion of his salary to the system and in return was entitled to a lifetime annuity upon his retirement. In the event of his death prior to retirement his widow, if any, would be entitled to an annuity under the provisions of the statute as follows:
"(2) for the widow of a participant, the widow's annuity shall be the greater of 66 2/3% of the annuity her husband would have been entitled to on the date of his death if he were then an annuitant or 7 1/2% of the last salary of the decedent. Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-128 (2) b) (2)."
In plaintiff's case, the 66 2/3% figure was the applicable one.
The statute governing the retirement system was amended effective August 15, 1969, as follows:
"A participant who retires from service after June 30, 1969, shall in the month of January of the year next following the year in which the first anniversary of his retirement occurs have the amount of his then fixed retirement annuity payable monthly increased by 1 1/2%, and such fixed retirement annuity as granted at retirement increased by a further 1 1/2% in January of each year, thereafter, up to a maximum increase of 30% over a period of 20 years. [Emphasis added.]
The foregoing provision is not applicable to any member who retires before he has made contributions (at the rate of 1% as hereinafter provided in Section 18-133) for this additional annuity for not less than the equivalent of 1 full year. Such participant shall make arrangements to pay to the system a balance of such contributions based upon his last salary as will bring the 1% contributions, computed without interest, to the equivalent of or completion of 1 year's contributions. [Emphasis added.]
Beginning July 1, 1969, in addition to the rates of contribution prescribed in Section 18-133, each participant shall contribute 1% towards the automatic increase in retirement annuity provided in this Section. This contribution shall be made concurrently with contributions otherwise made for annuity purposes. Each such additional contribution shall be credited in an account entitled `automatic annuity increase reserve' to be used together with equivalent State contributions to defray the cost of the specified annuity increments. Any balance in such reserve as of the beginning of each fiscal year shall be credited with interest at 4% per annum * * *" Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-125.1.
Subsequent to her husband's death, plaintiff petitioned the Board of Trustees of the Retirement System to have included in her widow's annuity computation the 1 1/2% automatic increase. The Board determined that the automatic increase did not apply to the widow's annuity. Plaintiff then filed suit in Circuit Court seeking to have the statute interpreted in her favor. That court upheld the decision of the Board, and this appeal followed.
On appeal the first issue raised by the plaintiff is that the statute, regardless of how it is construed, establishes her right to the annuity. She makes varied arguments in support of this issue. One such argument is that the legislative intention is clearly set out in the statute and favors her position. In the event we deem the statute ambiguous, plaintiff argues that the application of any of a number of rules of statutory construction, which she sets out, would result in allowance of the annuity increase.
• 1 Rather than set these arguments out at length, we will only say that after thoroughly considering all of the arguments, we agree with the argument of the State that the automatic increase is not applicable to the plaintiff's annuity.
The plaintiff, under Section 18-128 (2) (b) (2) of the statute, as previously set out, was entitled upon her husband's death to "66 2/3% of the annuity her husband would have been entitled to on the date of his death if he were then an annuitant." To become an annuitant under the statute, Judge Corcoran would have had to retire from active service. (Ill. Rev. Stat. 1969, ch. 108 1/2, par. 18-113.) Therefore, we must ask whether if Judge Corcoran had retired from service on August 19, 1969, instead of suffering his untimely death, would ...