Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 30, 1983.
The plaintiff, Harold Redding, filed a complaint for mandamus in which he requested the defendant, Board of Trustees of the Police Pension Fund of the Village of Oak Park, Illinois (Board), to pay him a pension based upon the salary attached to his rank of patrolman for the year prior to his retirement in lieu of the disability pension he had been receiving since 1962. The trial court entered judgment on the pleadings in favor of the plaintiff, and the Board appeals.
The plaintiff joined the police force of the village of Oak Park on March 17, 1956. He subsequently was injured on duty and began receiving a disability pension in April 1962. On April 5, 1978, the plaintiff became 50 years of age. On January 28, 1981, he notified the Board that he elected to receive a regular pension pursuant to section 3-111 of the Illinois Pension Code. (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 3-111.) That section provided that a policeman who has creditable service of 20 years or more and has reached age 50 and who is no longer in the service as a policeman shall be entitled to a yearly pension equal to 50% of the salary attached to the rank he held on such police force for one year immediately prior to his retirement. Furthermore, the pension is increased for each additional year of the policeman's creditable service over 20 years. The plaintiff asserted that he was entitled to credit for 24 years of service in calculating the amount of his pension.
When the Board ignored plaintiff's request for a regular pension, the plaintiff filed his complaint for mandamus. In its answer the Board affirmatively alleged that the plaintiff retired on permanent disability on March 23, 1962, or in the alternative, on April 5, 1978 (his 50th birthday). Both parties filed motions for judgment on the pleadings. The trial court entered judgment in favor of the plaintiff finding:
"under the provisions of former section 3-114 and section 3-111 of the Illinois Pension Code it is the duty of the defendant Board to pay plaintiff a regular pension in lieu of the disability pension he is receiving, said regular yearly retirement pension to be based upon 24 years of service and at the rate of 58% of the salary attached to the rank of patrolman for the year immediately prior to plaintiff's election to retire on January 28, 1981."
Before evaluating the Board's argument that this finding was erroneous, we will first discuss the applicable law concerning a policeman's pension.
Section 3-114 of the Illinois Pension Code provided:
"Whenever a policeman becomes physically or mentally disabled to an extent which necessitates the suspension of his duty on, or retirement from, the police force, he shall be paid a pension of 1/2 of the salary attached to his rank on the police force for 1 year immediately prior to the time of suspension of duty or retirement. Whenever disability ceases and the policeman resumes his police duty, the pension shall cease. If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force, be paid a regular pension in lieu of such disability pension." (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 3-114.)
In People ex rel. Anastasia v. Civil Service Com. (1973), 10 Ill. App.3d 583, 295 N.E.2d 127, the appellate court held that this section clearly provided that a policeman who received disability payments and then elected to retire would receive a regular pension based on the salary attached to his rank for one year immediately prior to his retirement.
Subsequently, our legislature repealed section 3-114 (effective October 1, 1973) and replaced it with new sections that altered the amount a disabled policeman was entitled to receive upon electing to retire. (Ill. Rev. Stat. 1973, ch. 108 1/2, pars. 3-114.1, 3-114.2, 3-116.1.) The appellate court discussed the effect of these amendments in Peifer v. Board of Trustees (1976), 35 Ill. App.3d 383, 342 N.E.2d 131. In Peifer the plaintiff in May 1973 (prior to the effective date of the repeal of section 3-114) had requested the pension board to convert his disability pension to a retirement pension. In October 1973 the Board offered the plaintiff a pension based on the recent amendments to the statute. The plaintiff filed a declaratory judgment action to determine his right to elect to retire pursuant to the provisions of section 3-114 and to be paid a regular pension under provisions of section 3-111. The trial court granted defendant's motion to dismiss. On appeal, this court held that the amendments could not be used to diminish the retirement benefits for which the plaintiff had become eligible under section 3-114. The court stated that to allow such a reduction would violate section 5 of article XIII of the 1970 Illinois Constitution (effective July 1, 1971), which provides:
"Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired."
In Kraus v. Board of Trustees (1979), 72 Ill. App.3d 833, 390 N.E.2d 1281, the court stated that section 5 of article XIII of the 1970 Illinois Constitution prohibits legislative action which directly diminishes the benefits to be received by those who became members of the pension system prior to the enactment of the legislation, though they were not eligible to retire. Thus, the police officer in Kraus, who joined the force in 1956, was placed on disability in 1967, and sought to retire in 1976, was entitled to receive a pension based on the relevant sections of the Pension Code in effect at the time the constitution became effective. See also Kuhlmann v. Board of Trustees (1982), 106 Ill. App.3d 603, 435 N.E.2d 1307.
• 1 Applying this precedent to the facts in the instant case, we believe it is clear that the plaintiff, who joined the police force in 1956, has a clear legal right to receive a pension based on the pertinent sections of the Pension Code ...