Beutel v. Foreman

• Citation: 123 N.E. 270,288 Ill. 106
• Decision Date: 05 June 1919
• Docket Number: No. 12554.,12554.
• Parties: BEUTEL v. FOREMAN et al.
• Court: Supreme Court of Illinois

288 Ill. 106

123 N.E. 270

BEUTEL

v.FOREMAN et al.

No. 12554.

Supreme Court of Illinois.

April 15, 1919.

Rehearing Denied June 5, 1919.

Error to Circuit Court, Cook County; Charles M. Walker, Judge.

Petition by Joseph B. Beutel and others for writ of mandamus against Oscar G. Foreman and others, as Trustees of the Police Pension Fund of the City of Chicago. Judgment for the named plaintiff, and defendants bring error. Reversed and remanded.

Samuel A. Ettelson, Corp. Counsel, of Chicago (James W. Breen and Roy Gaskill, both of Chicago, of counsel), for plaintiffs in error.

Grant Newell and Joseph B. Beutel, both of Chicago, for defendant in error.

CARTER, J.

A petition was filed by defendant in error and others in the circuit court of Cook county, praying that a writ of mandamus issue against Oscar G. Foreman and others, as trustees of the police pension fund of the city of Chicago, commanding them to order that a yearly pension equal to one-half the amount of his salary be paid each of the petitioners. After the pleadings were settled a hearing was had in the circuit court, and a final order and judgment entered in favor of Joseph B. Beutel, as prayed in the petition. From that judgment a writ of error was sued out from the Appellate Court for the First District, and the cause was transferred from the Appellate Court to this court, apparently on the ground that the constitutionality of a statute was involved.

The brief and argument of plaintiffs in error, and some of the earlier documents in this case, gave the name of defendant in error as Nicholas Berwick, who was the first one named in the petition for mandamus, whereas the testimony was taken and judgment entered in the trial court as to Joseph B. Beutel, wherefore the title has been changed by proper proceedings in this court, and is now as given above.

The record shows that defendant in error, Beutel, after completing a service of 20 years as a member of the police force of the city of Chicago, filed on March 31, 1917, an application for a pension with the plaintiffs in error, the board of trustees of the police pension fund of the city of Chicago; that on July 12, 1917, his application was deniedon the ground that the Police Pension Fund Act, as amended on July 1, 1917 (Laws 1917, p. 274), provided that no policeman should be pensioned after a service of 20 years until he should have reached the age of 50 years. Plaintiffs in error deny that Beutel was 50 years of age on July 1 or July 12, 1917, and argue that therefore, under amended section 3 of the Police Pension Fund Act, he was not entitled to a pension.

Section 3 of said act, as amended July 1, 1917, reads, in part, as follows:

‘Whenever any person shall have been or shall hereafter be appointed and sworn as a probationary or regular policeman in any such city, and shall have served for a period of twenty (20) years or more as such policeman in the police force of any such city, or where the combined years of service of such person in the police department and fire department of any such city shall aggregate twenty (20) years or more, in either such case when such person shall have arrived at the age of fifty (50) or more years he may make application to said board for retirement, and said board shall order and direct that such policeman, after his retirement from the police force, shall be paid a yearly pension.’

The Police Pension Fund Act (Hurd's Rev. St. 1917, c. 24, §§ 391-419k) for a few years prior to July 1, 1917, provided that a policeman should be entitled to his pension after a service of 20 years, but did not have any provision that this could not be paid until he arrived at the age of 50 years, as does the amended act of July 1, 1917, and it is argued by counsel for defendant in error that when he retired from the police force, on March 31, 1917, the law as then in force entitled him to a pension before he reached the age of 50 years, if he had served 20 years continuously on the police force of the city of Chicago, and that the amendment of section 3, in force July 1, 1917, if it is intended to be retroactive and applies to this case, is unconstitutional and void. It is contended by counsel for plaintiffs in error, and conceded by counsel for defendant in error, that said amendment to section 3 was intended to be retroactive and apply to all policemen who were entitled to pensions under said act.

While it is true that a statute is not generally deemed to be retroactive, but prospective only, in its force, a statute will be given a retroactive effect when it was clearly the intention of the Legislature that it should so operate. Hathaway v. Merchants' Loan & Trust Co., 218 Ill. 580, 75 N. E. 1060,4 Ann. Cas. 164. In the construction of statutes it is the duty of the court to take the words found in the statute, and to give to each its ordinary, usual meaning. Eddy v. Morgan, 216 Ill. 437, 75 N. E. 174. We agree that, fairly construed, the amendment to section 3 of the Police Pension Fund Act, read in connection with the other sections of the act, was intended to be retroactive, and to apply to all persons who were entitled to pensions under said act, and that therefore it included the defendant in error within its provisions.

Counsel for defendant in error earnestly insist that the Pension Act in force previous to July 1, 1917, gave him a contract and property right in his pension at the time he filed his application for the same, and therefore the amendment in question must be held to be unconstitutional, because of violating a property right vested in him. The Legislature cannot pass a retrospective or an ex post facto law impairing the obligation of a contract, nor can it deprive a citizen of any vested right by a mere legislative act. Dobbins v. First Nat. Bank, 112 Ill. 553. This is a principle of general jurisprudence.

‘But a right to be within its protection must be a vested right. It must be something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the state induces amendment or repeal of the laws these individuals have no cause to complain.’ 1 Lewis' Sutherland on Stat. Const. (2d Ed.) § 284; People v. Clark, 283 Ill. 221, 119 N. E. 329.

Counsel for plaintiffs in error contend that no person entitled to a pension has a vested legal right in said pension; that pensions, considered in connection with vested rights, must be held to be bounties of the...