Blough v. Ekstrom

• Decision Date: 12 August 1957
• Docket Number: Gen. No. 11007
• Citation: 14 Ill.App.2d 153,144 N.E.2d 436
• Parties: John BLOUGH et al., Plaintiffs-Appellees, v. Gust EKSTROM et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 436

144 N.E.2d 436

14 Ill.App.2d 153

John BLOUGH et al., Plaintiffs-Appellees, v. Gust EKSTROM et al., Defendants-Appellants.

Gen. No. 11007.

Appellate Court of Illinois, Second District.

Aug. 12, 1957.

McConnell, Kennedy & McConnell, Peoria, LaVerne E. Anderson, Rockford, for appellants.

Berry & Simmons, Rockford, for appellees.

CROW, Justice.

This is a complaint by seven plaintiffs, John Blough, LeRoy Dearth, George Gould, J. Duncan Graham, Arnold Gustafson, J. Maurice McGill, and William Rafferty, in seven counts,--one for each plaintiff,--against the named defendants as the Board of Trustees of the Police Pension Board of Rockford. Each Count, respectively, alleges that the respective plaintiff concerned was in service as a policeman in the Police Department of Rockford for varying periods of time,--the plaintiff Blough from December 6, 1945 to June 13, 1948, the plaintiff Dearth from April 25, 1948 to November 15, 1948, the plaintiff Gould from August 19, 1945 to March, 1950, the plaintiff Graham from July 1, 1943 to June 7, 1952, the plaintiff Gustafson from March 17, 1947, to March 12, 1951, the plaintiff McGill from July 1, 1942, to March 1, 1949, and the plaintiff Rafferty from July 24, 1944 to September 16, 1950. Each Count, respectively, then alleges that during such service there was deducted from the plaintiff's pay certain contributions to the police pension fund, in accordance with the police pension act, which were delivered to and held by the defendants, or their predecessors, as the Board of Trustees of the Police Pension Board of Rockford; subsequent to the termination of his services the plaintiff made demand on the defendants for refund of his contributions, which has been refused; Ch. 24, Ill.Rev.Stats., 1955, par. 904a provides that:

'In case any police officer is separated from the service of such city, village or incorporated town before he has served twenty years, all contributions made by him to the fund shall, upon request of the police officer, be returned to him.';

the plaintiff's service terminated before he had served twenty years; and there is now due each plaintiff varying amounts, for which judgments are prayed. A motion as amended, to dismiss was overruled. The motion, as amended, to dismiss was based primarily upon the contention that Ch. 24, Ill.Rev.Stats., 1955, par. 904a, upon which the plaintiffs rely, was approved March 31, 1953, became effective then or sometime thereafter, was intended to operate prospectively only and not retroactively, and since all of the plaintiffs had ceased performing their services prior to the effective date of the statute it did not apply to them. The defendants' answer admits the factual allegations of the complaint, but denies there is anything due and owing the plaintiffs, and realleges the substance of the grounds set forth in their motion, as amended, to dismiss, to the effect the complaint states no cause of action, and prays judgment for the defendants. A motion by the plaintiffs for judgment in their favor on the pleadings was allowed, and judgments were so entered for the respective plaintiffs, in the varying amounts prayed in the complaint, against the defendants. The defendants have appealed. There are no controverted questions of fact.

Ch. 24, Ill.Rev.Stats., 1955, par. 904a, the present statute, reads, in full, as follows:

'In case any police officer is separated from the service of such city, village, or incorporated town before he has served twenty years, all contributions made by him to the fund shall, upon request of the police officer, be returned to him.

'Acceptance of such refund shall bar such police officer and his dependents from any further participation in the benefits accorded by this Act, subject to restoration upon reentry into service and payment to the fund of the amount of the refund plus interest at the rate of 2% from the date of the refund until the date of repayment.'

That provision constitutes Section 14, as added by an Act approved March 31, 1953, of 'An Act to provide for the setting apart, formation and disbursement of a police pension fund in cities, villages and incorporated towns having a population of not more than 200,000 inhabitants', approved June 14, 1909, as amended. The Act approved March 31, 1953 is called, literally, 'An Act to add Section 14 to' etc., and it says that 'Section 14 is added to' etc., and 'the added Section to read as follows' etc.: Laws, 1953, p. 28. The whole statute, or act approved June 14, 1909, as amended, of which that Section 14 is now a part, as so added in 1953, is Ch. 24, Ill.Rev.Stats., 1955, pars. 892-904g, and becomes relevant to the issues herein.

All of the plaintiffs, former police officers of Rockford, were separated from that service prior to March 31, 1953, the date of approval of the act adding that Section 14,--Ch. 24, Ill.Rev.Stats., 1955, par. 904a,--to the present statute. The defendants urge that Section 14,--par. 904a,--was intended to and does operate prospectively only, and not retroactively, and the plaintiffs having been separated from the service prior to the effective date of that section it is not applicable to them. The plaintiffs urge that that section was intended to and does operate retroactively, as well as prospectively, and allows and requires a return of the contributions made to the fund by the plaintiffs as former police officers who had become separated from the service prior to the effective date of that section.

The original act approved June 14, 1909, Laws, 1909, p. 133, contained no provision at all for the return or refund to police officers who became separated from the service before serving 20 years, or any number of years, prior to becoming eligible for a pension, of the contributions made by them to the police pension fund. Evidently that condition of the law prevailed for many years,--until 1943. Previously, in 1931, the statute was amended to add a new section,--Section 14,--thereto, Laws, 1931, p. 373, which 1931 amendment, though not now material, we shall set forth to preserve the continuity of events. It read:

§ 14. Nothing in this Act contained shall be held to apply to special police officers, nor to police officers appointed for temporary duty only, nor to appointees serving probation, nor to temporary appointees.'

Then, in 1943, by an act approved July 23, 1943, Laws, 1943, p. 428, that Section 14 (as added in 1931) was, with other sections, amended to read in this manner:

§ 14. Nothing in this Act contained shall be held to apply to special police officers, nor to police officers appointed for temporary duty only, nor to temporary appointees, but this Act shall apply to officers serving initial probationary periods. Such officers shall make contributions in the same manner as other police officers. In case any police officer retires from the service of such city, village or incorporated town before he has served twenty years, all contributions made by him to the fund, plus a reasonable interest thereon, shall be returned to him.'

Then, in 1947, by an act approved August 8, 1947, Laws, 1947, p. 529, that Section 14 was repealed,--the repealer language reading: 'Section 14 of said Act is repealed.' From that date, August 8, 1947, of that repeal of the former Section 14 as it had been amended July 23, 1943 to provide for the return or refund of police officers' contributions upon their retirement under certain circumstances, until the adding of the present Section 14 by the act approved March 31, 1953,--Ch. 24, Ill.Rev.Stats., 1955, par. 904a,--there was again no provision at all for the return or refund to police officers who had become separated from the service prior to becoming eligible for a pension of the contributions made by them to the police pension fund. The law in that respect, in other words, was during that period the same as what it had been from the adoption of the original act, June 14, 1909, up to the amendment of the previous Section 14, July 23, 1943. As of 1953, that is to say, when the present Section 14 was added, there had been since 1909,--for 44 years,--no provision in the statute for the return or refund of officer's contributions upon their becoming separated from the service prior to becoming eligible for a pension,--except for a brief 4 year period between 1943-1947.

The statutory police pension fund provided for by this statute requiring compulsory participation and compulsory contributions by the police officers confers no vested rights upon the police officers or other participants; the act is based on the sovereign power of the State to provide for the general welfare of the employees and society generally and it is not in the nature of a contract between the police officers or other participants and the State or municipality; the Legislature may alter, amend, or repeal a statute of this type without interfering with any vested contractual rights, because there are no such vested contractual rights: Keegan v. Board of Trustees, etc., 1952, 412 Ill. 430, 107 N.E.2d 702. Such a pension under such a statute is in the nature of a bounty springing from the appreciation and graciousness of the sovereign, and may be given, withheld, distributed, or recalled at its pleasure; the compulsory contributions into the fund by way of exactions from the salaries of the police officers are not in fact payments by the officers; their employment is accepted with knowledge that certain amounts will be deducted each month and placed in the pension fund; such are not first segregated from the public funds so as to become the private property of the officers and then turned over to the pension fund, but are set aside or transferred from one public fund to another, and remain public money to be dispensed or withdrawn at will and over which the officer from whose salary they are deducted has no control and in which he has no right: Raines v. Board of Trustees, etc., 1937...