Eddy v. Morgan

• Decision Date: 23 June 1905
• Citation: 75 N.E. 174,216 Ill. 437
• Parties: EDDY et al. v. MORGAN et al.
• Court: Illinois Supreme Court

216 Ill. 437

75 N.E. 174

EDDY et al.

v.MORGAN et al.

Supreme Court of Illinois.

June 23, 1905.

Appeal from Appellate Court, First District.

Petition by Margaret Morgan and others for a writ of mandamus to compel Arthur J. Eddy and others, as the police pension board of Chicago, to grant a pension to the petitioners. From a judgment of the Appellate Court affirming a judgment awarding the writ, defendants appeal. Reversed.

Rehearing denied October 12, 1905.

John W. Beckwith (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellants.

Thomas H. Owens (John E. Owens, of counsel), for appellees.

An appeal is prosecuted from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county awarding a writ of mandamus against appellants. In October, 1904, appellees filed their petition in said circuit court for said writ of mandamus, in which it is alleged, in substance: First. That James Morgan was duly appointed and sworn to serve, and did serve, on the regular police force of Chicago for 20 years or more. Second. That he was retired by the police pension board on November 30, 1891, because he had seved 20 years or more, and was entitled to a pension under section 3 of the pension law, and was granted a pension by the board because he was a superannuated officer. Third. That James Morgan died February 21, 1897. Fourth. That appellee Margaret Morgan is his widow, and that she has not remarried since his death. Fifth. That an amendment to section 3 (page 123) of the pension law of 1887 was passed and approved in 1899, which provided that after the decease of the pensioner the pension shall be paid to the widow, or a child or children under 16 years of age, etc. Sixth. That this amendment to section 3 was omitted from the act of 1887 by inadvertence and oversight, and that this amendent, so passed in 1899, was intended to cure this omission, and to give the widows and children under[216 Ill. 439]16 years of age the same rights they would have had if the act had read originally as it now reads Seventh. That the said amendment was passed after repeated efforts on the part of the appellee Margaret Morgan and others, and that each succeeding Legislature from 1887 up to 1899 was appealed to to remedy the defect and omission in the original act of 1887. Eighth. That the question of the retrospectiveness of the amendment of 1899 was fully discussed and understood by the members of the General Assembly of 1899, and that the appellee Margaret Morgan and others were present, and heard said discussion. Ninth. That the appellees petitioned the Legislature at various times to amend the act of 1887 so as to include the widows and children of pensioned officers who had died prior to the year 1899, and that some of the members of the Legislature of 1899 were also members of prior Legislatures, and that members of the assembly were familiar with the law, and that this amendment was intended to be restrospective. Tenth. That the pension board decided the act was retrospective, and placed appellee Margaret Morgan's name on the pension roll, in pursuance of said amendent, on July 18, 1899, and that she so received and drew her pension up to September 20, 1904, and the board exacted, and she did sign, a waiver to a claim for back pension. Eleventh. That the appellants, the pension board, without notice took her name from said pension roll, and refused to pay her pension. Twelfth. That the amount she is entitled to is $47.65 per month. Thirteenth. That a proper demand was made by appellee Margaret Morgan for her pension, and said demand was refused by the appellants. Fourteenth. That there is sufficient money in said pension fund with which to pay appellees the pension claimed by them.

In 1877 the Legislature passed an act providing for the creation of a relief fund for the police and fire departments of cities and villages. Laws 1877, p. 62. That act provides a method for raising the fund, creates a board of trustees, and provides for the application of it to beneficiaries. Section 6 (page 63), is the only section that has any application to the questions raised here, and is as follows: ‘Sec. 6. When, in the judgment of the board, a sufficient amount shall have accumulated in said fund to justify the application thereof to the use for which the same is hereby created, if any member of the police or fire departments, while in the actual performance of duty, shall become permanently disabled, so as to render proper his retirement from membership, a sum not exceeding six hundred dollars ($600) per annum, or such less sum as, in the judgment of the board, the fund will justify, shall be paid to such member out of said fund; or if any member, while in the actual discharge of duty, shall be killed, or shall die from the immediate effects of an injury received by him while in such discharge of duty, or shall die after ten years' service in the police or fire departments, and while still in the service of the same, and shall leave a widow, or if no widow, any child or children under the age of sixteen (16) years, a sum not exceeding six hundred dollars ($600) per annum, or such less sum as, in the judgment of the board, the condition of the fund will justify, shall be paid to such widow so long as she shall remain unmarried, or to such child or children while under the age of sixteen years.’ That section, as is seen, only authorized a retirement on a pension of a member of either of said forces when permanently disabled, and did not extend the benefit of the pension to the widow of the retired officer or fireman. In 1879 (Laws 1879, p. 72) the act was so amended that it did extend to widows the benefit of the pension that their husbands enjoyed while under retirement. In 1887 the Legislature saw fit to provide by separate acts for the pensioning of firemen and members of the police force, and to discontinue the further application of the provisions of the previous joint acts. Each of the acts provided for the creation of a relief fund, and a board of commissioners, and other details not here of importance, and the only questions that arise upon this case relate to the beneficiaries. The act relating to the police fund was approved April 29, 1887 (Laws 1887, p. 122), and the act in relation to the firemen's fund was approved May 13, 1887 (Id. p. 117), and both became effecitve July 1st of that year. 1 Starr & C. Ann. St. 1896, c. 24, pp. 837, 840. Section 3 of the act of 1887 (Laws 1887, p. 123), in relation to the police fund, provided that when a person had served 20 years on the police force and had reached the age of 50 years he might be pensioned on half pay. Section 4 authorized the retirement of disabled officers on half pay. Section 6 provided that where a member should be killed or die from injuries in the line of his duty his widow should be pensioned to equal one-half his salary, and that after 10 years' service if a member of the force died from any cause his widow should be pensioned. But that act did not extend to the widows the benefit of a pension of those dying while in retirement. The provisions of the act concerning the firemen's fund were somewhat different. Section 7 (page 124) authorized the retirement on half pay of the firemen who became permanently, physically or mentally, disabled by reason of service. Under section 6, if a member was killed or died of injuries received in the line of his duty, or from disease contracted by reason of his occupation, or should die from any cause during service or during retirement, there should be paid to his widow $30 a month and to his children under 16 years of age $6 each, but the total amount to the family should not exceed one-half the monthly salary of the deceased member at the time of his death or at the date of his retirement. Section 10 provided for the retirement of a fireman becoming 50 years of age and serving 22 years or more on a pension equal to one-half of his salary at the time of retirement, and extended to his widow until her remarriage the benefit of his pension.

It will be seen that the two acts contain different requirements as to the age and conditions of retirement, and that the latter act extended to the fireman's widow the pension of a retired fireman, while the act touching the police found did not extend the benefit of a retired policeman's pension. In 1899 section 3 (page 123) of the act of 1887, in regard to the police pension fund, was amended so as to read as follows: ‘Sec. 3. Whenever any person at time of taking effect of said act to which this is an amendment, or thereafter shall be duly appointed and sworn, and have served for the period of twenty years or more upon the regular constituted police force of said city, village or town of this state subject to the provisions of this act, said board shall order and direct that such person, after becoming fifty years of age and his services upon such police shall have ceased, and all officers entitled to and having been pensioned under said act to which this is an amendment, after the taking effect of this act, shall be paid from such a fund a yearly pension equal to one-half the amount of the salary attached to the rank which he may have held on said police force for one year next preceding the expiration of said term of twenty years. And after the decease of such member, his widow or minor child or children under sixteen years of age, if any surviving him, shall be entitled to the pension provided for in this act of such a deceased husband or father, but nothing in this or any other section of this act shall warrant the payment of any annuity to any widow of a deceased member of such police department after she shall have re-married. That all acts or parts of acts in conflict with the provisions of this act are hereby repealed.’ Laws 1899, p. 101.

The amendment consisted of adding to the section the portions in italics, and the...