Sup v. Cervenka

• Decision Date: 25 October 1928
• Docket Number: No. 18423.,18423.
• Citation: 163 N.E. 396,331 Ill. 459
• Parties: SUP v. CERVENKA et al.
• Court: Illinois Supreme Court

331 Ill. 459

163 N.E. 396

SUP

v.CERVENKA et al.

No. 18423.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Second Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; William J. Lindsay, Judge.

Mandamus proceeding by Charles J. Sup against John Cervenka and others, as trustees of Firemen's Pension Fund, to compel siad trustees to pay petitioner an increased pension. Judgment awarding writ was affirmed by Appellate Court (244 Ill. App. 352), and respondents bring certiorari.

Reversed.Samuel A. Ettelson, Corporation Counsel, of Chicago (George F. Mulligan and Roy S. Gaskill, both of Chicago, of counsel), for plaintiffs in error.

Oscar F. Nelson and Joseph A. Ricker, both of Chicago (O. David Zimring, of Chicago, of counsel), for defendant in error.

DE YOUNG, C. J.

Charles J. Sup served as an active member of the fire department of the city of Chicago from January 3, 1917, until January 1, 1924. While engaged in extinguishing a fire on December 25, 1922, he suffered a broken nose, arm, and leg. As a result the board of trustees of the firemen's pension fund ordered his retirement from active service as of January 1, 1924, and placed him upon a pension. At the time of his retirement Sup held the rank of fireman, first class, at an annual salary of $2,000. His pension equaled one-half of his salary and was paid him regularly in monthly installments of $83.33 each. On October 1, 1924, the annual salary of a fireman whose rank was of the first class was increased from $2,000 to $2,200. Sup demanded a proportionate increase of his pension, but the demand was refused. He then filed his petition for a writ of mandamus in the superior court of Cook county to compel the trustees of the firemen's pension fund to pay him a pension equal to one-half of the increased salary from the time the increase became effective instead of the pension originally awarded him. The superior court awarded the writ, commanding the trustees to pay Sup a pension to be computed on the basis of salaries paid from time to time to firemen in the active service holding the rank Sup held at the time of his retirement. The respondents prosecuted an appeal to the Appellate Court for the First District, and that court affirmed the judgment of the superior court (244 Ill. App. 352.) Thereafter a petition for a writ of certiorari was allowed by this court, and the case is here for review.

The facts are not controverted, and the question presented for determination is the construction of section 9 of the act entitled:

‘An act to provide for a fireman's pension fund and to create a board of trustees to administer said fund in cities having a population exceeding two hundred thousand (200,000) inhabitants.’ Cahill's Stat. 1927, p. 515; Smith's Stat. 1927, p. 535.

The pertinent parts of that section read:

‘If any firemen of any such city while in active service or on leave of absence shall become and be as so physically or mentally disabled as to render necessary his retirement from active service, said board shall order the retirement of such disabled fireman and he shall be paid a monthly pension equal to one-half the amount of salary attached to the rank which he may have held in such fire service at the date of his retirement. * * * If, after placing a fireman on the pension roll, the board shall become satisfied that such retired fireman has recovered from such physical or mental disability, said board shall order the suspension of the payment of his pension and that said fireman report back to the marshal or chief of the fire department of such city, who shall thereupon order the reinstatement of such fireman in active service in the same rank or grade that such fireman held at the time of his retirement.’

The plaintiffs in error contend that the amount of the pension of a disabled fireman authorized by section 9 must be based upon and determined by the salary which he received at the time of his retirement and not by any subsequent increase of salary. The defendant in error, on the contrary, insists that since the disabled fireman is not wholly retired from service in the fire department but is obliged to resume the performance of active duties in that department when his disability ceases, the proper construction of section 9 is that the pensioner shall receive one-half of the salary currently paid to his rank, and not one-half of the salary which was attached to his rank at the date of his retirement.

[1][2][3][4] It is an elementary rule in the construction of a statute that the intention of the Legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When that language is plain and unambiguous and conveys a clear and definite meaning there is neither necessity nor authority for resorting to statutory construction. If the words of a statute are plain and the legislative purpose manifest, that purpose must be given effect. The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the Legislature. They cannot read into a statute something that is not within the manifest intention of the lawmaking body as gathered from the statute itself. To depart from the meaning expressed by the words is to alter a statute-it is to legislate and not to interpret. If the obvious meaning of a statute should be followed by harsh consequences, such a result cannot influence the courts in administering the law. The responsibility for the justice or wisdom of legislation rests upon the Legislature, and it is the province of the courts to construe and not to make the laws. United States v. Fisher, 109 U. S. 143, 3 S. Ct. 154, 27 L. Ed. 885;United States v. Goldenberg, 168 U. S. 95, 18 S. Ct. 3, 42 L. Ed. 394;United States v. Plowman, 216 U. S. 372, 30 S. Ct. 299, 54 L. Ed. 523;United States v. First Nat. Bank of Detroit, 234 U. S. 245, ...