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Kozak v. Retirement Board

OPINION FILED FEBRUARY 18, 1983.

VIVIAN E. KOZAK, APPELLEE,

v.

RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Albert Green, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 8, 1983.

We are called upon here to construe the words "current annual salary" as they are used in section 6-140 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 6-140). The relevant portion of the statute for the purposes of this appeal was amended effective January 1, 1972, and as amended at that time, the statute reads:

"The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972, and it shall be payable to the widow until the fireman, had he lived, would have attained the age prescribed for compulsory retirement.

Thereafter the widow shall receive annuity of an amount equal to 40% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 108 1/2, par. 6-140.

The amendment also provided that it was applicable to widows already receiving benefits as well as those qualifying for pensions after its effective date.

Plaintiff, the widow of a Chicago fire department battalion chief killed in the line of duty in 1970, seeks administrative review for herself and similarly situated annuitants of an order of the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (a city administrative agency). The challenged order, which became effective on January 1, 1974, froze the annuities of widows then receiving benefits at a figure based on fire department salaries in 1973 and directed that future widows were to receive an annuity fixed by the annual salary of their firefighter husbands at the time of their death.

From the time of her husband's death in 1970 until 1972, the plaintiff received an annuity based on the amount of his salary at the time of his death. In 1972 and 1973 the retirement board construed and applied the amendment quoted above to require that the annuity be computed on the annual salary of currently employed firefighters, and as their salaries were changed from time to time the amount of the annuity was to be adjusted to reflect those changes. Battalion chiefs received raises in both of those years, and the plaintiff's annuity was increased because of those raises.

The plaintiff filed a complaint with the retirement board disputing the change brought about by the interpretation of the statute which froze the amount of the existing annuities effective January 1, 1974, at the levels then prevailing regardless of future salary increases firefighters might receive. The retirement board's decision was adverse to the plaintiff, and on administrative review, the circuit court of Cook County dismissed the complaint on the ground that a widow's annuity under the amended statute is a vested annuity, fixed in amount at the death of the firefighter. The appellate court reversed, holding that the statute required the pension to be computed according to the current annual salary and not the salary at the time of decedent's death. (99 Ill. App.3d 1015.) The issue is whether the introduction of the words "current annual salary" by the 1972 amendment made the amount of the annuity flexible, changing to reflect salary changes in the fire department, as the appellate court concluded, or whether those words still leave the amount fixed based on whatever the firefighter's salary was when he died, as the circuit court decided. We believe that the appellate court applied the proper interpretation of the statute.

The words used in a statute are to be given their ordinary and popularly understood meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189.) The appellate court relied in part on the definition in the Random House Dictionary of the English Language Unabridged Edition (1966) to determine the meaning of "current." There, the word is defined as meaning "passing in time or belonging to the time actually passing; new, present, most recent." Webster's Third New International Dictionary 557 (1971) defines its meaning as "occurring in or belonging to the present time." We accept and apply these definitions, which are supported by the following cases: Warren Co. v. Commissioner (5th Cir. 1943), 135 F.2d 679; Graham v. Miller (3d Cir. 1943), 137 F.2d 507; American Fruit Growers, Inc. v. United States (9th Cir. 1939), 105 F.2d 722, 726; Commissioner v. Keller (7th Cir. 1932), 59 F.2d 499.

As we read them the words of the statute are plain and unambiguous, and they must be given effect as they appear in the statute. We should not attempt to read the statute other than in the manner in which it was written; nor in applying plain and unambiguous language is it necessary to search for any subtle or not readily apparent intention of the legislature. As this court stated in Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 133:

"The language of * * * the statute is plain and certain and must be given effect by the courts>. We cannot read into the statute words which are not within the plain intention of the legislature as determined from the statute itself. [Citations.] We cannot restrict nor enlarge the plain meaning of an unambiguous statute. [Citation.]"

The retirement board argues that the words "at the time of his death" refer to current annual salary, and so the salary on which the annuity is computed is the current annual salary at the time of the firefighter's death. It is clear, however, that the words "at the time of his death" refer to "the classified position to which the firefighter was certified." Were this not so the statute would be lacking in any indication of what the determinative time is for ascertaining the position to which the fireman was certified. The retirement board concedes that the words "at the time of his death" refer to the classified position to which the fireman was certified, but contends that they also refer to "current annual salary." If that interpretation is well founded, there would be no need for the word "current." That word would not be needed to tell us that the applicable salary level is the compensation the fireman was receiving on the date of his death. Each word, clause or sentence of a statute must, if possible, be given some reasonable meaning. (Hirschfield v. Barrett (1968), 40 Ill.2d 224.) To accept the construction the retirement board advances for the words "at the time of his death" ...


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