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Kostelnak v. Retirement Bd.





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


Plaintiff, Eugene Kostelnak, brought this action to review the decision of the Retirement Board of the Tolicemen's Annuity and Benefit Fund of the City of Chicago (the Board) denying him the supplemental annuity established in section 5-167.2 of the Illinois Pension Code. (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 5-167.2.) The circuit court of Cook County affirmed the administrative decision, and this appeal was taken. Plaintiff claims the Board's denial of benefits was inconsistent with legislative intent and a misapplication of the terms of the statute. Further, plaintiff contends that where there is a printing error in the statute and the Board awards annuities to groups unanticipated by the legislature, arbitrary and capricious disbursement practices result, denying him equal protection of the law.

On May 23, 1967, at the age of 43, plaintiff withdrew from the Chicago Police Department after serving the 20 years requisite for a pension. He was eligible to begin receiving the minimum annuity on November 11, 1973, his 50th birthday. An annuity of $183.83 per month was awarded by the Board under section 5-132(c) which reads:

"If he is less than age 50 on withdrawal, he may, upon attainment of age 50 or over, become entitled to the annuity provided in this Section or, he may, upon application before age 50, receive a refund of the deductions from salary, plus interest at 1 1/2% per annum if he is entitled to refund under Section 5-163." Ill. Rev. Stat. 1975, ch. 108 1/2, par. 5-132(c).

On July 15, 1977, plaintiff petitioned the Board for a supplemental annuity pursuant to section 5-167.2 of the Illinois Pension Code (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 5-167.2), which states in pertinent part:

"Beginning with the monthly annuity payment due in January 1, 1972, the fixed and granted monthly annuity payment for any policeman who retired from the service, before September 1, 1976, at age 50 or over with 20 or more years of service and entitled to an annuity on July 1, 1973, shall be not less than: (1) $225 to January 1, 1973; (2) $250 from January 1, 1973 to July 1, 1975 and $350 thereafter."

Following a hearing, the Board found plaintiff did not meet all requirements for eligibility, and thus was ineligible for the additional increment. Plaintiff then petitioned for administrative review in the circuit court, and when the decision of the Board was affirmed, took this appeal.


Plaintiff first raises a constitutional claim of denial of equal protection. He argues that a numerical error, the reversal of the numbers 6 and 7 in the qualifying date ("before September 1, 1976"), occurred after the General Assembly's passage of the bill but prior to the Governor's signature and caused the Board to pay benefits to persons not intended to be covered in House Bill 919 (House Bill 919 of the 79th General Assembly, approved August 28, 1975, Pub. Act 79-631). The equal protection aspect of the Board's application of the allegedly erroneous statute is disputed by the parties; however, if indeed an incorrect date was included in section 5-167.2 set out above, and House Bill 919 and the enactment presented to and signed by the Governor were not identical formulations, then the threshold question is under which date, 1967 or 1976, plaintiff's rights must be construed.

• 1 Both parties agree that the date "1976" in the phrase "before September 1, 1976" which appears in both the session laws and in the bill as signed by the Governor is not the date (1967) contained in House Bill 919, as passed by the General Assembly. The stipulation or agreement of the parties is not sufficient to substantiate claims that there was an irregularity in the enactment procedures. (See Freitag v. Union Stock Yard & Transit Co. (1914), 262 Ill. 551, 556, 104 N.E. 901.) Upon examination of the enrolled bill signed by the Governor, it is apparent that it states 1976, while House Bill 919 as voted on and passed by the General Assembly states 1967. *fn1 It is pertinent to note that House Bill 919 did not purport to amend the questioned date in section 5-167.2. This conclusion is buttressed by a historical review of the evolution of the section.

Section 5-167.2, which provides for a supplemental annuity, similar to a cost of living increase, was originally adopted in 1969 by the 76th General Assembly (House Bill 1720, approved October 6, 1969, Pub. Act 76-1727). At that time the pertinent language read "before September 1, 1967." Then in 1971 the legislature amended section 5-167.2 but did not change the pertinent language. (House Bill 818, approved September 23, 1971, Pub. Act 77-1621). This section, next amended by the 78th General Assembly in 1973 (House Bill 1871 approved September 12, 1973, Pub. Act 78-833), established the pertinent paragraph now under consideration but with the identical language of its predecessors, "before September 1, 1967." House Bill 919 in the form as passed by the legislature read "before September 1, 1967." It is obvious to us that an error in typing, the 1967 changed to 1976, occurred in preparing the legislation to be signed by the Speaker of the House, President of the Senate, and to be approved by the Governor.

Our supreme court in Carey v. Elrod (1971), 49 Ill.2d 464, 275 N.E.2d 367, appeal dismissed (1972), 408 U.S. 901, 33 L.Ed.2d 327, 92 S.Ct. 2488, when confronted with a mechanical error, looked to the intent of the legislature, in the course of the legislation, to read into the statute language omitted by oversight. In Carey, the legislature deleted certain procedural provisions from the Election Code. The supreme court stated it could find no intent on the part of the legislature to abolish these procedural provisions, and that the change was an oversight resulting from successive amendments to the bill. Further, the court held the intent was to eliminate reference to masters in chancery to cause the section to conform to the then new judicial article. Therefore, the supreme court interpreted the statute to still include the paragraph specifically deleted by the legislature. It should also be noted that in Carey the legislature, when made aware of its amendments, took action to restore the language. In the instant case the legislature has taken no action to change the date, and so far as we know, it is not aware of the problem of House Bill 919.

In the instant case, the prior enactment (as represented by House Bill 1871) was substantially parallel to House Bill 919 as passed by the legislature. The date in both bills reads 1967. Indeed a comparison of the two pieces of legislation demonstrates a legislative intent to retain the same pension qualifying factors but to increase the annual annuity for the annuitant. We cannot locate any indication of a legislative intent to change the date from 1967 to 1976.

• 2 Therefore, following the reasoning in Carey, we interpret section 5-167.2 to read "1967" instead of "1976." (See Ill. Rev. Stat. 1975, ch. 108 1/2, par. 5-167.2; see also People ex rel. Cason v. Ring (1968), 41 Ill.2d 305, 242 N.E.2d 267; cf. Community Consolidated School District No. 210 v. Mini (1973), 55 Ill.2d 382, 386, 304 N.E.2d 75, appeal ...

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