APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
J. DUNNE, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Frederick Davis, a Chicago police officer and the husband of plaintiff-appellant (hereafter plaintiff), was killed in the line of duty on 14 December 1968. He left surviving two minor sons. Under the law in effect at the date of Davis' death (Ill. Rev. Stat. 1967, ch. 108 1/2, art. 5: Policemen's Annuity and Benefit Fund Cities over 500,000, par. 5-101 et seq.), both sons were entitled to, and did, receive a child's annuity in the amount of $40 a month (Ill. Rev. Stat. 1967, ch. 108 1/2, pars. 5-151, 5-152). Subsequently, plaintiff filed a two-count complaint in the circuit court of Cook County, seeking to have the child's annuity payments increased based upon subsequent amendments to section 5-152 of the Illinois Pension Code, which amendments have more than doubled the 1968 amount of a child's annuity. Count I, in which plaintiff sought a declaratory judgment, was dismissed by the trial court on the grounds that the relief sought could be obtained only by administrative review. In Count II of the complaint, plaintiff sought review under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.) of an order of the Board of Trustees of the Policemen's Annuity and Benefit Fund (hereafter Board) holding that Davis' two minor sons were not entitled to any increase in the amount of their child's annuity. The trial court upheld the action of the Board and plaintiff appeals.
Plaintiff's initial contention is that Davis' minor sons should be entitled to the increased child annuity benefits despite the fact that Officer Davis died prior to the effective date of any of the amendatory acts involved. Under the law in effect at the time Davis died leaving plaintiff as his surviving widow, his minor sons were entitled to a child's annuity in the amount of $40 a month (Ill. Rev. Stat. 1967, ch. 108 1/2, par. 5-152). The relevant amount of child's annuity was subsequently increased by successive amendments to the fourth paragraph of section 5-152 as follows: in 1969 to the sum of $60 a month (Ill. Rev. Stat. 1969, ch. 108 1/2, par. 5-152); in 1971 to the sum of $60 a month until July 1, 1971, and thereafter to 10% of the policeman's final salary (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 5-152); and in 1972 to the sum of $60 per month until July 1, 1972, and thereafter to an amount equal to 10% of the salary attached to the classified civil service position of a first-class patrolman at the date of the policeman's death (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 5-152).
The first paragraph of section 5-152 provides in relevant part: "A child's annuity shall be payable in the following cases of policemen who die on or after the effective date: (a) A policeman whose death results from injury incurred in the performance of an act or acts of duty; (b) a policeman who dies in service from any cause * * *." (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 5-152.) Plaintiff urges this court to construe the term "effective date" in the above-quoted sentence to mean the date on which a municipality first became subject to the provisions of article 5 of the Illinois Pension Code. In support of such construction, plaintiff relies upon the statutory definition of "effective date" in the Act (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 5-107);
"`Effective date': January 1, 1922, for any city covered by the `Policeman's Annuity and Benefit Fund Act of the Illinois Municipal Code' on the date that this Article comes in effect; and January 1 of the year following the date that any other city first comes under the provisions of this Article."
Plaintiff contends that under this definition this court adopt her interpretation of the applicability of the successive amendatory acts to increase the amount of the child's annuity of each of the two minor sons of Officer Davis.
We agree that the terms "effective date" in the first paragraph of section 5-152 means the effective date of article 5 of the Illinois Pension Code. The difficulty is that the first paragraph of section 5-152 has nothing to do with the amount of the child's annuity. The first paragraph relates solely to the entitlement of a surviving child of a policeman to an annuity of whatever amount, and operates to add another entitlement requirement to the entitlement requirements provided in section 5-151.
The relevant amount of the annuity to which the qualifying child is entitled is provided solely in the fourth paragraph of section 5-152, and the subsequent amendatory acts providing increased amounts all do so by amending the said fourth paragraph.
The relevant amount is initially determined by first determining a specified circumstance as of the date of the death of a policeman who comes within one of the four specified classes of policemen spelled out in the first paragraph. That circumstance is whether a widow does or does not survive the policeman as of the date of his death. Under the amount provisions in effect in 1968, if a widow survives, the initial amount of the child's annuity is $40 per month and the annuity remains at that amount while the widow continues to survive and while the child continues to be entitled. If no widow survives, the initial amount of the child's annuity is $60 per month and the annuity remains at that amount during the time that the child continues to be entitled. If a widow survives at the date of the death of a qualified policeman but then herself dies while the child is still entitled, then the amount of the child's annuity becomes $60 per month for the balance of the period for which the child remains entitled.
We conclude that, from the fact that the term "effective date" in the first paragraph means the effective date of article 5 of the Illinois Pension Code as per the definition in section 5-107, plaintiff can find no support for her contention that Officer Davis' minor sons are entitled to the increased child annuity amounts provided in the fourth paragraph by the subsequent successive amendatory acts.
Plaintiff's interpretation must rather depend on a contention that these subsequent amendatory acts do not express a legislative intent that the 1968 determination of the annuity amount shall be forever controlling as to Officer Davis' minor sons. The successive increases in the annuity amounts are not expressly restricted solely to cases in which the date of the death of the qualified policeman occurs after the effective date of the respective amendatory act. Plaintiff must contend that, when the date of the death of the qualified policeman is prior to the effective date of the amendatory act, then the determination of amount continues to be controlled by the circumstance existing at the said date of the policeman's death (namely, whether or not, at that date, a widow did or did not survive), but the increased amount is controlled by whether the widow who survived at the prior death date still survives at the effective date of the amendatory act or whether the said widow has since died during the child's minority and before the effective date of the amendatory act. It is not contended, of course, that the increased amounts are retroactive to the date of the existing child annuitant's initial entitlement, but simply that the increased amounts apply in future to child annuitants who exist on the effective date of the amendatory act as well as to children who thereafter first become child annuitants.
In support of this contention of plaintiff as to the legislative intent, we take judicial notice of the fact that when, in 1972, the legislature decided that existing police widow annuitants should not enjoy subsequent increases in the amount of the widow's annuity, the legislature expressly so provided by adding a paragraph to that effect to the section dealing with maximum annuities for policemen and their widows. (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 5-148.) Since no comparable provision has been enacted in respect of existing police child annuitants, there is a negative inference that the legislature did not intend to exclude existing police child annuitants from enjoying the benefit of subsequent increased annuity amounts.
In opposition, the Board also relies on a negative inference. The Board calls our attention to the fact that, when the legislature intended existing child annuitants of deceased firemen to enjoy the benefits of subsequent increased child annuity amounts, the legislature expressly so provided (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 6-148), and no comparable provision has been enacted in respect of existing child annuitants of deceased policemen.
Examining the Board's negative inference in greater detail, we note that, until the comparable firemen's child annuity section (namely, section 6-148) was amended in 1970, the first paragraph ...