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Young v. Bd. of Trustees of Pension Fund

OPINION FILED FEBRUARY 21, 1978.

JEAN YOUNG, PLAINTIFF-APPELLEE,

v.

THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF WORTH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This is an action for administrative review of a decision of the Board of Trustees of the Police Pension Fund of the Village of Worth, Illinois (Pension Board), which declared plaintiff, Jean Young, ineligible to participate in the Worth Police Pension Fund. The decision of the Pension Board followed its hearing on an examination of the pension fund by the State of Illinois Department of Insurance (Department). After a review of the administrative record and consideration of argument, the circuit court reversed the Pension Board's decision. Defendants, the Pension Board and the Department, appeal contending that the Pension Board's decision was not against the manifest weight of the evidence.

On April 7, 1959, the village by ordinance appointed a fire and police commission with "the powers and duties as set forth in Article XIV of the Revised Cities and Villages Act." (Ill. Rev. Stat. 1959, ch. 24, par. 14-1 et seq.) In August of 1959 plaintiff was appointed as a radio operator or desk operator for the Worth Police Department. She was appointed by the village president and board of trustees. In May of 1963 the village president and board of trustees appointed her to the position of policewoman, at which time she received a commission card to that effect. Plaintiff, born on January 7, 1928, was 35 years of age at the time. Although she had taken no examinations prior to this time, in October of 1964 plaintiff took an examination of the village fire and police commission. She was thereafter placed on an eligibility list and was appointed as a patrolwoman by the board of fire and police commissioners. Once her appointment became effective October 5, 1964, plaintiff, for the first time, began making contributions to the Worth Police Pension Fund.

On September 4, 1974, a Department examiner declared plaintiff ineligible for participation in the Police Pension Fund because, pursuant to the applicable statute, she was excluded. (Ill. Rev. Stat. 1963, ch. 108 1/2, par. 3-109.) The statute specifically excluded any person whose first appointment to the police force occurred on or after July 1, 1963, if such person had then attained his 36th birthday. Plaintiff was 36 years old when she was appointed a patrolwoman by the board of fire and police commissioners. Following the receipt of the examiner's directive, the Pension Board held hearings and, thereafter, rendered a decision declaring plaintiff ineligible to participate in the Police Pension Fund because she was appointed to the police force subsequent to her 36th birthday.

Plaintiff then filed a complaint for administrative review. The circuit court reversed the Pension Board's decision, finding it against the manifest weight of the evidence. On appeal the Pension Board and the Department seek reversal of the circuit court's decision.

I.

In ruling plaintiff ineligible to participate in the fund, the Pension Board interpreted section 3-109 of the policemen's pension fund for municipalities 500,000 and under (Pension Code). (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 3-109.) That section provided in part:

"This Article shall not apply to the following persons: (a) Any person appointed to the police force of a police department before his 21st birthday, or any person appointed on or after July 1, 1963, if he has attained his 36th birthday, at the time of his first appointment, * * *. This paragraph shall not be construed to make ineligible a person reappointed to the police force after his 36th birthday, provided he is otherwise qualified, and at the time of his first such appointment was either a participant in, or eligible to participate in, any annuity or pension fund then provided by any existing annuity or pension statute."

As plaintiff was 35 years of age when she was appointed a policewoman by the village president and board of trustees, and 36 years of age when she was appointed a patrolwoman by the board of fire and police commissioners, the question arises as to when she was appointed or reappointed. If plaintiff was properly appointed in 1963 or properly reappointed in 1964, then she is eligible to participate in the pension fund. If, however, plaintiff was not properly appointed in 1963 or reappointed in 1964, then she is ineligible.

A.

Pursuant to section 10-2-1 of the Illinois Municipal Code, in every municipality with a population of at least 5,000 and not more than 250,000, the village president with the consent of the village board of trustees must appoint a board of fire and police commissioners. (Ill. Rev. Stat. 1961, ch. 24, par. 10-2-1.) This was also true in the prior version. (Ill. Rev. Stat. 1959, ch. 24, par. 14-1.) When a special census determined that the population of the village of Worth was in excess of 5,000, the village president and board of trustees passed on April 7, 1959, "AN ORDINANCE APPOINTING A FIRE AND POLICE COMMISSION." The board of fire and police commissioners was given the powers and duties enumerated by statute. The ordinance was to be in full force and effect from and after its adoption and approval.

When the village president and board of trustees appointed plaintiff a policewoman in 1963, the power to make such appointments was not in the village board, but was in the board of fire and police commissioners. Section 10-2-4 of the Illinois Municipal Code then provided:

"The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department unless the council or board of trustees shall by ordinance as to them otherwise provide * * *." (Emphasis added.) (Ill. Rev. Stat. 1963, ch. 24, par. 10-2-4.)

Thus, the Pension Board and the Department contend that plaintiff was never properly appointed in 1963 by the village president and the board of trustees, nor was she reappointed in 1964 by the board of fire and police commissioners. Instead, they maintain that plaintiff was first appointed in 1964 when she was 36 years of age; the Pension Board and the Department, therefore, conclude that plaintiff was first appointed at an age which rendered her ineligible to participate in the pension fund. So far as we can determine from the record, plaintiff ...


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