People ex rel. Serbin v. Calderwood

77 N.E.2d 849, 333 Ill. App. 541, 1948 Ill. App. LEXIS 265
CourtAppellate Court of Illinois
DecidedFebruary 25, 1948
DocketGen. No. 44,069
StatusPublished
Cited by5 cases

This text of 77 N.E.2d 849 (People ex rel. Serbin v. Calderwood) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. Serbin v. Calderwood, 77 N.E.2d 849, 333 Ill. App. 541, 1948 Ill. App. LEXIS 265 (Ill. Ct. App. 1948).

Opinion

Mr. Justice Burke

delivered the opinion of the court.

On May 23, 1946, Jack.A. Serhin, as relator, filed a complaint in the circuit court of Cook county against the members and secretary of the Board of Trustees of the Police Pension Fund of Evanston praying for a writ of mandamus commanding them to recognize him as having been a member of the police force of that city for 20 years by including the time spent in the military forces of this Republic during World War I, that his name be placed on the pension roll and that he be paid a pension. Issue was joined. On October 8, 1946, the court found in favor of relator and entered judgment that a writ of mandamus issue commanding defendants to direct that relator be paid, (upon cessation of his service as a member of the- police department and the payment to the Police Pension Fund of a sum equal to 3 per cent per month of his present salary for the period of his military service), a pension equal to one-half of the salary attached to the rank held by him for one year immediately prior to cessation of his police service. Defendants appeal.

Relator’s theory of the case is that he is entitled to compute as part of his service as a patrolman of the. Evanston police force (for the purpose of qualifying for a pension), the period of time he served in the military forces of the United States during World War I, upon tendering to the pension board an amount sufficient to cover what he would have contributed had he been a regular contributor during such period; that having completed 20 years of police service, so computed, having reached the age of 50 years, and having tendered sufficient money to cover the contributions required, he is entitled to have the board direct that he be paid a pension upon cessation of his service; and that it is the board’s duty, enforceable by mandamus, to make such an order. Defendants’ theory is that the statute does not give relator the right to credit for the time he spent in the military service as part of his period of service on the police force, and places no duty upon them to recognize his demand; that it is impossible to compute the amount he would have contributed to the Police Pension Fund had he been a member of the police force during the period in which- he served in the military forces; that the ability to compute and pay such sum into the Pension Fund is a necessary prerequisite to his right to a pension; that he is not entitled to a writ of mandamus; and that the judgment has no foundation in law.

Relator became a civil service patrolman on the Evanston police force on July 16, 1927. With the exception of 36 days, during which he was suspended, he continuously performed. his duties as a patrolman. During this period he was enrolled as a member of the Police Pension Fund and the statutory deductions were made from his salary and placed in the fund. On April 15, 1946, he wrote the defendants applying for a retirement pension on the ground that he had completed 20 years of service by computing as part of this period the time spent in the military service. He enclosed with his application a check for $104.40 covering the contributions he deemed requisite for the period of military service. On April 25, 1946, the defendants, through the secretary, wrote relator denying his application for a pension on the ground that military service rendered prior to his becoming a member, of the police department could not be computed in making up the 20 years service required to qualify for a retirement pension. The check for $104.40 was then returned. In denying relator’s application, defendants did so on the sole ground that he is not entitled to have computed as a part of his claimed service the time spent in the military forces of the United Stated during World War I. There was evidence from which the court had the right to and did find that relator served in the United States Army from August 21, 1917 to March 24,1919, when he was honorably discharged. It will be noted that he did not become a patrolman until July 16,1927, more than eight years after the completion of his military service.

This case requires the construction of the second paragraph of par. 894, ch. 24, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 100.259], reading:

“Any member of any such regularly constituted police force may compute as a part of his twenty (20) year period of service, time spent in the service of the military or naval forces of the United States during the Spanish American War, during the war between the United States and Germany which began in the year 1917, or during the war between the United States and the Third German Reich and Imperial Japanese Government which began in the year 1941, by paying into the fund a sum equal to the amount he would have contributed if he had been a regular contributor during such period or periods.”

The pension act under discussion was adopted in 1909. The veterans’ service credit provision (subpar. 2 of par. 894) was added by an amendment in 1937. The amendment affected policemen who served in the Spanish American War or World War I. In 1943, the paragraph was amended to embrace veterans of World War II. In that session of the General Assembly the Firemen’s Pension Act was amended to read that military service could be counted toward a fireman’s pension service when such military service was entered upon when he was an active fireman. Eelatox asserts that the best proof that the legislature did not intend the construction advanced by defendants is that although it amended the firemen’s act in that regard, it did not likewise amend the policemen’s act, although the section under discussion (of thp policemen’s act) was amended in another respect in that session.

The 1947 session of the General Assembly again amended par. 894 of the police pension act to read:

“All periods of such policeman’s service in the military, naval or air forces of the United States of America when entered upon when he was an active policeman of such city, village or incorporated town, either on account of any war in which the United States of America was a belligerent party, or as required by any Act of Congress, shall be included and counted as a part of such policeman’s twenty years ’ period of police service, provided that such policeman, upon applying for such permanent pension, and in accordance with the rules of the said board, with reference thereto, shall pay into the fund a sum equivalent to the amount he would have contributed if he had been a regular contributor during such period or periods of military, naval or air service, if and to the extent that the city, village or incorporated town in which he shall have been so acting as a policeman shall not have made such contributions to the pension fund. ’ ’

Eelator states that the 1947 amendment removes all doubt about the meaning of the section prior to the enactment of the last amendment; that if the statute, before its recent amendment, is to b.e interpreted as the defendants maintain, then the 1947 amendment is meaningless; that in the future in order to take advantage of the preference provision a policeman will have to enter upon such service at a time when he is on the police force; that such was not the law previous to the amendment; and that the fact that the law was amended is the best proof of this. Eelator also maintains, and we agree, that the 1947 amendment cannot affect his rights, should the judgment be affirmed, as such judgment was entered ten months previous to the effective date of the 1947 amendment. Relator citieLindley v.

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Bluebook (online)
77 N.E.2d 849, 333 Ill. App. 541, 1948 Ill. App. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-serbin-v-calderwood-illappct-1948.