Miner v. Stafford

• Decision Date: 22 June 1927
• Docket Number: No. 18120.,18120.
• Parties: MINER v. STAFFORD et al.
• Court: Illinois Supreme Court

326 Ill. 204

157 N.E. 164

MINER

v.STAFFORD et al.

No. 18120.

Supreme Court of Illinois.

June 22, 1927.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Rock Island County; C. J. Searle, Judge.

Petition by Phoebe Miner for a writ of mandamus to Elmore H. Stafford and others, as Trustees of the Rock Island Police Pension Fund. A judgment awarding the writ was affirmed by the Appellate Court (239 Ill. App. 346), and defendants bring error.

Reversed and remanded, with directions.

Farmer, J., dissenting.

Huber & Reidy, of Rock Island, for plaintiffs in error.

Kenworthy, Dietz, Shallberg, Harper & Sinnett, of Moline, for defendant in error.

DUNN, J.

Edward Miner, an employee of the police force of the city of Rock Island, was killed in the performance of his duty on October 15, 1922. His salary was $120 a month. He left a widow, Phoebe Miner. On February 1, 1924, she made application to the board of trustees of the police pension fund for a pension, and on March 1, 1924, the board of trustees entered an order allowing her a pension in the sum of $50 a month from the date of her husband's death during her life until she should remarry. Claiming to be entitled to a pension in the sum of $60 a month from July 1, 1923, she made a demand upon the board of trustees of the police pension fund for an allowance of that amount from July 1, 1923, which the board of trustees refused. Thereupon she filed a petition in the circuit court for a writ of mandamus requiring the board of trustees to allow a pension at the rate of $60 a month. The court sustained a demurrer to the petition, but the Appellate Court, upon her appeal, reversed that judgment and remanded the cause, with directions to overrule the demurrer. 239 Ill. App. 346. This was done, and, defendants electing to stand by the demurrer, a judgment was entered awarding the writ of mandamus. The defendants appealed, the Appellate Court affirmed the judgment, and a writ of error has been awarded to review the record.

Section 6 of the Police Pension Fund Law of 1909 was in force at the time the petitioner's husband was killed, and provided as follows:

‘Whenever any member of the police force of any city, village or town shall lose his life while in the performance of his duty or receive injuries from which he shall thereafter die, leaving a widow, or child, or children under the age of sixteen years, or parent who is dependent upon such policeman for maintenance and support, then, upon satisfactory proof of such facts made to it, such board shall order and direct that a yearly pension equal to one-half the salary received by said member, not to exceed $600 per year, shall be paid to such widow during her life,’ etc. Laws of 1909, p. 136.

It was amended in 1923 so as to read in the same language, except that the limitation of $1,250 is substituted for that of $600. Laws of 4923, p. 253.

Under the act in force at the time of her husband's death, the defendant in error was clearly entitled to a pension of $50 a month, the payment of which could be enforced by a writ of mandamus against the board of trustees of the police pension fund. The next session of the Legislature changed the limit for which a pension could be allowed from $600 to $1,250, and, under the amendment, if a policeman having a salary of $120 a month was killed in the performance of his duty his widow would be entitled to a pension of $60 a month. The defendant in error claims that this change in amount applies to her, and that the board of trustees on her application, made after the passage of the amendment, which went into effect July 1, 1923, should have allowed her a pension at the rate of $60 from that date instead of one for $50 a month from the date of her husband's death. The only question in the case is the application of the amendment of 1923 to pensions for loss of life while in the performance of duty before that date. The language of the amendment of 1923 does not indicate any intention on the part of the Legislature that it should have any retrospective effect. It refers, not to cases where any member of the police force has lost his life while in the performance of his duty leaving a widow who was dependent upon him, but to cases where a member of the police force shall lose his life leaving a widow who is dependent on him. The language refers to the future and not to the past. The amendment indicates no intention to increase the right to which had already accrued before the passage of the law.

[1] It is a well-settled rule of statutory construction that a statute will not be given a retrospective effect unless the intention of the Legislature to give it such effect is clearly shown. People v. Chicago & Alton Railway Co., 289 Ill. 282, 124 N. E. 658;People v. Deutsche Gemeinde, 249 Ill. 132, 94 N. E. 162. The defendant in error contends that the amendment, by changing only the figures in the limitation of the amount of the widow's pension, intended to remove the limitation of pensions of widows of policemen who were killed in service prior to the passage of the amendment, and not to increase the pensions only of widows of policemen whose death occurred after the passage of the amendment. Her position is that the amendment simply amounted to a repeal of the limitation in the old law and substitution of a new and larger limitation; that the previous section having been amended as the same is repeated in the amendatory act, all those portions of the old section which are not repeated in the new are repealed.

[2] Where the Legislature enacts an amendatory statute providing that a certain act or a certain section of an act should be amended so as to read as the same is repeated in the amendatory act, all such portions of the old act or section as are not repeated in the new act are repealed without any express words for that purpose, but such portions of the old law as are retained, either literally or substantially, are regarded as a continuation of the old law and not as a new enactment. Merlo v. Coal & Mining Co., 258 Ill. 328, 101 N. E. 525. The rule in such cases is stated in Endlich on Interpretation of Statutes, § 294:

‘A statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendment had always been there, and the amendment itself so thoroughly becomes a part of the original statute that it must be construed in view of the original statute as it stands after the amendments are introduced and the matters superseded by the amendments are eliminated.’

So it is said in Black on Interpretation of Laws, § 131:

‘An amendment of a statute by a subsequent act operates precisely as if the subject-matter of the amendment had been incorporated in the prior act at the time of its adoption, so far as regards any action had after the amendment is made, for it must be remembered that an amendment becomes a part of the original act, whether it be a change of word, a figure, line, or entire section, or a recasting of the whole language.’

Black cites in support of this proposition Holbrook v. Nichol, 36 Ill. 161. In that case a power of attorney authorizing a...