Bd. of Trustees of Police Pension Fund of Glen Ellyn v. Village of Glen Ellyn

• Decision Date: 03 May 1949
• Docket Number: Gen. No. 10295.
• Citation: 85 N.E.2d 473,337 Ill.App. 183
• Parties: BOARD OF TRUSTEES OF POLICE PENSION FUND OF GLEN ELLYN et al. v. VILLAGE OF GLEN ELLYN.
• Court: United States Appellate Court of Illinois

337 Ill.App. 183

85 N.E.2d 473

BOARD OF TRUSTEES OF POLICE PENSION FUND OF GLEN ELLYN et al.

v.VILLAGE OF GLEN ELLYN.

Gen. No. 10295.

Appellate Court of Illinois, Second District.

March 8, 1949.

Rehearing Denied May 3, 1949.

Appeal from Circuit Court, DuPage County; Win G. Knoch, Judge.

Proceeding by Board of Trustees of the Police Pension Fund of Glen Ellyn and others, against Village of Glen Ellyn, a municipal corporation, to recover funds which defendant allegedly diverted from the Police Pension Fund for the years 1932 to 1945. From the judgment, defendant appeals, and plaintiffs cross appeal.

Judgment affirmed in part and reversed and remanded as to the remainder with directions.Walter M. Fowler, of Chicago, for appellant.

Werner W. Schroeder, and Theodore W. Schroeder, both of Chicago, for appellees.

BRISTOW, Justice.

The defendant, village of Glen Ellyn, is prosecuting this appeal from a decree entered by the circuit court of DuPage County, allowing plaintiffs, Board of Trustees of the Police Pension Fund of Glen Ellyn, et al., to recover judgments for funds which defendant allegedly diverted from the pension fund from 1932 to 1945, with interest thereon, totalling $18,289.51, and for the sum of $12,469.03 which allegedly would have been paid into the fund if defendant had levied and collected certain taxes.

The essential queries presented herein are: whether the village of Glen Ellyn had a population of 5,000 or more in 1930, under the terms of the Police Pension Fund Act (ch. 24, § 892, Ill.Rev.Stats.); whether the money defendant allegedly diverted from the fund for its own use can be recovered by plaintiffs; and whether under any legal theory liability can be imposed for the amount which defendant might have collected for the fund had it levied a tax in accordance with the Police Pension Fund Act.

The Police Pension Fund Act, operative since 1909, with certain amendments not material to this inquiry, provides for the formation and disbursement of a fund in villages having a population of not less than 5,000, nor more than 200,000. (ch. 24, § 892-904b, Ill.Rev.Stats.)

The relevant sections thereof provided, in 1930: ‘That in all cities, villages and incorporated towns having a population of not less than 5,000 and not more than 200,000 inhabitants, said population to be determined by the United States government statistics, there shall be set apart the following moneys to constitute a police pension fund: First-Three-fourths of all money received for licenses upon dogs. * * * Third-Ten (10%) per cent of all fines collected for violation of city ordinances. * * * Eighth-Ten (10%) per cent of all revenue collected from licenses by such city, village or incorporated town not heretofore mentioned in this Act. * * * Tenth-The city council or board of trustees of any such * * * village * * * shall levy a tax annually of three-twentieths of a mill on the dollar on all taxable property of such * * * village * * *. Such tax shall be levied and collected in like manner with the general taxes of such * * * village * * * and shall be in addition to all other taxes which such * * * village * * * is now or hereafter may be authorized to levy upon the aggregate valuation of all property within such * * * village * * *, and shall not in any event be included with any limitation of rate for general corporate purposes, as now or hereafter provided by law, but shall be excluded therefrom and be in addition thereto. * * *’

With reference to ascertaining population, the Cities and Villages Act, of which the foregoing pension fund provisions are a part, provides: ‘Whenever in this Act any provision thereof is based upon the number of inhabitants, the number of inhabitants of the municipality shall be determined by reference to the latest census taken by authority of the United States, or this state, or of that municipality. It is the duty of the secretary of state, upon the publication of any State or United States census to certify to each municipality the number of inhabitants, as shown by that census. And the several courts in this state shall take judicial notice of the population of any municipality, as the population appears from the latest Federal, State, or municipal census so taken.’ (Ch. 24, § 1-9, Ill.Rev.Stats.)

Plaintiffs submitted in evidence that First Series Population Bulletin for Illinois of the Fifteenth Census of the United States, issued by the Bureau of the Census, entitled, ‘Number and Distribution of Inhabitants,’ in which the population of the village of Glen Ellyn is designated as 7,680. To this document plaintiffs attached the certificate of the Director of the Census stating that this bulletin, issued on December 24, 1930, in connection with the Fifteenth Census is an official publication of the Bureau of the Census, and shows the population of the village of Glen Ellyn as 7,680 on April 1, 1930, and also the certificate of the Chief Clerk of the Department of Commerce certifying that the party signing as Director of the Census held that office. Both certificates bear the seal of the Department of Commerce.

Defendant urged that this publication was of no legal significance on the ground that the Secretary of State of Illinois had issued no certificate of population in 1930 to the village of Glen Ellyn as provided in the aforementioned statute. Defendant offered the testimony of the clerk of the Index Department of the Illinois Secretary of State's office, who stated that he was unable to find a certificate of the village in the office record. However, this clerk was not employed in the Index Department prior to 1935.

In addition to the aforementioned publication of the Bureau of the Census, plaintiffs offered evidence designed to show actual knowledge on the part of the village president and board members that the population was in excess of 5,000 in 1930 and thereafter. The former Superintendent of Police testified that he requested the village president in 1931 to establish a police pension fund since the population exceeded 5,000 under the 1930 census. This conversation was corroborated by the former village president. The Superintendent, moreover, also made requests of other members of the village board in 1931.

Plaintiffs submitted the testimony of other members of the village board who served during 1933 to 1939, and who stated that they knew that the population exceeded 5,000, and that there were conversations between the members of the board regarding the establishment of a police pension fund. The village attorney also testified that he had discussed the matter of population with the board, and advised the members to set up a fund, otherwise they might be confronted with a law suit. Moreover, the present Superintendent of Police, who has served since 1937, stated that he had conversations with the village president in 1937 regarding the establishment of a fund; and the county clerk testified that he had prepared and mailed to the officials of the cities and villages in the county a book showing, among other things, the population of the Village of Glen Ellyn in 1930.

With reference to defendant's population in 1940, the Federal Census shows it as 8,055. There is a conflict in defendant's contentions and evidence pertaining to the receipt of the Secretary of State's 1940 certificate of population. In its answer defendant denies the receipt at any time of any such certificate of population. Moreover, the village clerk testifying on defendant's behalf, stated that he did not think the village received an official report of the population, and did not recall signing a receipt therefor. Nevertheless, in its statement of facts in the brief herein, defendant claims that it adopted the ordinance establishing the police pension fund pursuant to the 1940 certificate of the Secretary of State.

It is uncontroverted, however, that no funds were set apart, nor taxes levied, nor Board of Trustees of a Police Pension Fund established pursuant to the statutory mandate, until April 8, 1946. The Board, as organized, consisted of two members appointed by the village president, two elected by the Police Department, and the first pensioner.

On October 6, 1946, the plaintiff Board demanded that the village repay the fund the percentage of the fines and license fees designated in the statute, which the village collected during the years 1931 to 1945, together with interest thereon, as well as the sum which would have been paid into the fund if defendant had levied and collected a tax of three-twentieths of a million the assessed value of all property.

The Village denied the claim, and plaintiffs commenced this proceeding on the theory that the Village of Glen Ellyn held the money received from fines and licenses which should have been set apart in the fund as trustees for the benefit of the said pension fund; that the village is liable for interest for wrongfully withholding money; and that liability should be imposed on either a negligence or implied contract basis for the money which would have been received had the tax been levied.

In its answer defendant denied all liability and asserted that, inasmuch as the Secretary of State did not certify the population of the Village of Glen Ellyn in 1930, it was without power or authority to ascertain the population and establish the fund; that the village is not liable for the negligence of its officials since the functions set up in the Police Pension Fund Act are governmental; that no appropriations were made and no tax levied because the maximum amount of taxes were levied; that no deductions were made from policemen's salaries; that no pension board of three members, as provided prior to 1943, ever existed; that no damages were suffered by plaintiffs; that the alleged cause of action was barred by the statute of limitations; and that the Police Pension Fund Act was unconstitutional.

After trial on the merits, the circuit court awarded p...