{
  "id": 3381062,
  "name": "Elbert M. Oliver, Appellant, v. Retirement Board of the Municipal Employees' Annuity and Benefit Fund of Chicago, Appellees",
  "name_abbreviation": "Oliver v. Retirement Board of Municipal Employees' Annuity & Benefit Fund",
  "decision_date": "1941-06-25",
  "docket_number": "Gen. No. 41,712",
  "first_page": "38",
  "last_page": "46",
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    "name": "Illinois Appellate Court"
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      "cite": "375 Ill. 641",
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  "last_updated": "2023-07-14T15:39:13.733352+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Elbert M. Oliver, Appellant, v. Retirement Board of the Municipal Employees\u2019 Annuity and Benefit Fund of Chicago, Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Burke\ndelivered the opinion of the court.\nElbert M. Oliver was born on May 27, 1897. On August 27, 1927, he was appointed to the position of motor truck driver in the classified service of the city of Chicago. On October 14, 1932, while so employed he injured his right knee. Because of this injury he was forced to quit working on January 8, 1933. At the time he was injured he was the father of four children under 18 years of age, namely, Erna, born August 10, 1919; Elbert, Jr., born July 9, 1921; Harry, born July 17, 1923, and Ira, born April 17, 1925. Since such injury Erna and Elbert, Jr. have arrived at the age of 18 years. Ira died on May 19, 1933. The youngest child, Harry, will become 18 years of age on July 17, 1941. Oliver was a contributor to and a participant in the fund being administered by the Retirement Board of the Municipal Employees Annuity and Benefit Fund of Chicago, and on February 17, 1933, that Board granted to him a \u2018\u2018 Duty Disability Benefit \u2019\u2019 and a \u201cChild\u2019s Disability Benefit.\u201d From January 9, 1933, to February 28, 1935 he received \u201cDuty Disability Benefit\u201d of approximately 75 per cent of his salary as of July 1, 1931. During this period he also received a \u201cChild\u2019s Disability Benefit\u201d of approximately 15 per cent of his salary as of July 1, 1931. However, on April 1, 1935 the Board claimed that his payments from January 9, 1933 to February 28, 1935 were excessive, and though he still had eligible dependent children, his total payments were reduced to approximately 75 per cent of his salary as of July 1, 1931. The Board asserted that the overpayments amounted to $741.95 and this amount was deducted from subsequent payments. His salary on July 1, 1931 was $2,250 per year. During this period of economic distress experienced by the city during 1931 and subsequent years, a reduction of one and one-half days\u2019 pay per week, or 78 days per year, amounting to practically 21 per cent, was made by authority o^ the city council in the wages paid to city employees subsequent to July 1, 1931. This reduction brought plaintiff\u2019s salary down to $1,811.64. On February 9, 1940 Oliver served a notice on the Board for payment of benefits under the provisions of pars. 1089 and 1100\u00bd, ch. 24, Ill. Rev. Stat. 1939 (secs. 46 and 57\u00bd) [Jones Ill. Stats. Ann. 100.051, 100.066]. On May 17, 1940 the Board rejected Oliver\u2019s demand. Thereupon he filed a complaint in the superior court of Cook county for a writ of certiorari and the writ was issued. The return to the writ set up the facts substantially as above recited. The court entered judgment that the writ of certiorari be quashed. The court certified that a constitutional question was involved. Plaintiff appealed to the Supreme Court, which in turn transferred the case to this court. (375 Ill. 641). In transferring the case the Supreme Court said (642):\n\u201cThe trial court certified that a constitutional question is involved. Counsel for appellant here states that he has some doubt about the existence of a constitutional question in the appeal, but that because of the certificate of the trial court he felt the matter should be presented here. Cases involving only the construction of a statute do not involve a constitutional question and the certificate of the trial judge that a constitutional question is involved does not confer upon this court jurisdiction on direct review.\u201d As suggested by the Supreme Court, this case involves the construction of two sections of a statute. In the briefs filed in the Supreme Court neither party contended that any part of the two sections was unconstitutional. Sec. 46 (par. 1089) ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.051], reads:\n\u201cBenefit to be known as \u2018Duty Disability Benefit\u2019 shall be provided for municipal employees in the service who shall become disabled as the result of injury incurred in the performance of any act or acts of duty.\n\u201cBenefit to be known as 'Child Disability Benefit\u2019 shall be provided for municipal employees disabled as stated in the preceding paragraph who shall be the parents of any unmarried child or children less than eighteen (18) years of age.\n\u201cAny municipal employee less than sixty-five (65) years of age, who shall become disabled ... as the result of injury incurred ... in the performance of any act or acts of duty, shall have a right to receive Duty Disability Benefit, during any period of such disability for which such municipal employee shall not receive nor have a right to receive salary, of an amount equal to seventy-five (75) per cent of his salary as it shall be at the time of such injury; . . . Any such municipal employee shall also have a right to receive Child\u2019s Disability Benefit of amounts of ten (10) dollars a month on account of each child (the issue of such municipal employee) less than eighteen (18) years of age; provided, the total amount of Child\u2019s Disability Benefit which shall be granted or paid to any such municipal employee shall not exceed fifteen (15) per cent of the salary as aforesaid, to such municipal employee. . . .\u201d Sec. 57\u00bd (par. 1100\u00bd) reads:\n\u201cNotwithstanding the provisions of any foregoing section or sections of this Act, it shall be assumed that, for the compensation annuity and disability benefit purposes of this Act, the annual salary of any participant in or contributor to this fund, shall be the amount, not in excess of three thousand dollars ($3,000.00), set out and appropriated for the position held by such participant or contributor in the annual budget or appropriation bill of such city: Provided, however, that for the purpose of computing compensation annuity and duty disability benefit under this Act, from and after July 1, 1931, where the disability or death has resulted or shall result from injury incurred on or after July 1, 1931, such salary shall be assumed to be not less than the same amount, not in excess of three thousand dollars ($3,000.00), that such salary was on July 1, 1931. ...\u201d The act providing for the employees\u2019 annuity and benefit fund was approved by the Governor on July 29, 1921. Sec. 46 (par. 1089) was amended in 1923, 1931 and 1935. Sec. 57\u00bd (par. 1100\u00bd ) is an added section approved October 4, 1932. Because of an \u201cemergency clause\u201d sec. 57\u00bd , became effective immediately. As plaintiff was injured on October 14, 1932, after this added section went into effect, his rights in the instant case are governed by sec. 46 (par. 1089) and sec. 57\u00bd (par. 1100\u00bd ). Sec. 57\u00bd (par. 1100\u00bd ) provides that for the purpose of computing duty disability benefits the salary of the employee affected shall be assumed to be not less than such salary was on July 1, 1931, but does not mention the \u201cChild\u2019s Disability Benefit.\u201d Although sec. 46 (par. 1089) was amended in 1935, the provision for a \u201cChild\u2019s Disability Benefit\u201d was not altered. Before the enactment of sec. 57\u00bd , the minimum \u201cDuty Disability Benefit\u201d was 75 per cent of the salary of the employee at the time of his injury and while incapacitated he would receive 25 per cent less than his salary during such period. When the city reduced the salaries of all employees in 1931, this 25 per cent added to the reduction of 21 per cent, left an injured employee receiving as duty disability allowance 40 per cent less than the salary he would receive if he were working. The legislature sought to remedy this evil and so enacted sec. 57\u00bd , which provided that duty disability benefit should be allowed on the basis of the employee\u2019s salary as of July 1, 1931, if such salary were \u201cnot in excess of $3,000.00 per year.\u201d'\nPlaintiff refers to the salary fixed as of July 1, 1931 as the \u201cpegged salary.\u201d It is conceded that the effect of sec. 57\u00bd is to give the injured employee a duty disability benefit of practically 94 per cent of his actual salary at the time of such injury, without taking into consideration any right he may have to a \u201cChild\u2019s Disability Benefit.\u201d Plaintiff contends that the provisions for \u201cChild\u2019s Disability Benefit\u201d (sec. 46) are not in any way affected by sec. 57\u00bd , and that since the salary basis for computing \u201cChild\u2019s Disability Benefit\u201d is not changed by sec. 57\u00bd , the \u201cChild\u2019s Disability Benefit should be computed under sec. 46 on the basis of the present salary. He maintains that \u201cDuty Disability Benefit\u201d should be based on his salary as of July 1, 1931, and the \u201cChild\u2019s Disability Benefit\u201d on his salary as of the time he was injured. Plaintiff insists that sec. 57\u00bd does not furnish an excuse to the Board for wiping out the \u201cChild\u2019s Disability Benefit.\u201d If the contention of plaintiff is upheld, he will receive approximately 108 per cent of his actual salary as of the day he was injured. Respondent suggests that to so hold would render see. 57\u00bd unconstitutional, and cites the case of Porter v. Loehr, 332 Ill. 353, in support of the proposition that an act increasing a pension after the services have been rendered is unconstitutional. In that case the Supreme Court struck down certain enactments increasing the pensions of retired policemen for services previously rendered, as in violtion of sec. 19, art. 4, of the Constitution of this State, which provides, among other things, that \u201cthe general assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made. \u2019 \u2019 The principle recognized in the Porter case is not applicable to the instant case because at the time of plaintiff\u2019s disabling injury, both secs. 46 and 57\u00bd were in full force and effect. The cases cited by defendant are cases wherein employees already receiving pensions attempted to take advantage of pension increases provided by subsequent legislation.\nOur Supreme Court has held that pension statutes are to be liberally construed in favor of the persons to be benefited thereby. Our view is that the language of secs. 46 and 57\u00bd is clear and unambiguous. In Colton v. Board of Trustees, Firemen\u2019s Pension Fund, 287 Ill. 56, our Supreme Court said (59):\n\u201cIn the construction of statutes courts should consider every part and give sensible and intelligent meaning to every provision so far as possible, but the legislative intent must be found in the act and the court must take the words found in the statute according to their ordinary and usual meaning.\u201d Sec. 46 provided for two separate and supplemental benefits to disabled employees, namely, a \u201cDuty Disability Benefit\u201d and a \u201cChild\u2019s Disability Benefit.\u201d It will be noted that in providing for a \u201cDuty Disability Benefit\u201d this section states that any such employee shall \u201calso\u201d have a right to receive a \u201cChild\u2019s Disability Benefit.\u201d It is obvious that by providing for a \u201cChild\u2019s Disability Benefit\u201d in addition to a \u201cDuty Disability Benefit\u201d the legislature intended that employees with eligible dependent children should receive larger benefits than employees without eligible dependent children. Sec. 57% affects only the salary basis for computing \u201cDuty Disability Benefits\u201d and does not purport to alter any of the provisions regarding* \u201cChild\u2019s Disability Benefit\u201d; nor does this section mention the percentages of salary to be applied in arriving* at the amount of the employee\u2019s benefit. We are of the opinion that the provisions for a \u201cChild\u2019s Disability Benefit\u201d were not in any way affected by the act of October 4, 1932. In fact, \u201cDuty Disability Benefit\u201d and \u201cChild\u2019s Disability Benefit\u201d are only two of the many different kinds of payment provided for by the act. Sec. 57\u00bd merely establishes a pegged instead of a fluctuating salary basis for computing compensation annuity payments and \u201cDuty Disability Benefit\u201d only. No other classes of payments are mentioned therein. As we have seen, the legislature amended sec. 46 in 1935. At that time the members of the General Assembly knew of the existence of sec. 57\u00bd. Had they wished to provide for a different basis of paying \u201cDuty Disability Benefit\u201d and \u201cChild\u2019s Disability Benefit\u201d they would in all probability have done so at that time. Sec. 57\u00bd is not and could not be an amendment to sec. 46. Sec. 13 of art. 4 of our Illinois Constitution provides that when it is sought to amend, the section amended shall be inserted at length in the new act. The legislature did not set a maximum ratio of benefits to present salaries. The effect of the ruling of the Board and of the trial court is to virtually wipe out a \u201cChild\u2019s Disability Benefit\u201d to employees with eligible dependent children whenever a reduction in salary amounted to 16% per cent or more.\nRespondent urges that while the instant proceeding appears on its face to be certiorari to review the action of the Board taken on May 17, 1940, it is in reality an attempt to have the court review the action of the Board taken in March 1935, reducing plaintiff\u2019s \u201cDuty Disability Benefit\u201d payments. Respondent suggests that proceedings to review the order of the Board entered in March 1935 should have been filed within a reasonable time after the entry of such order, that more than five years elapsed before the petition for certiorari was filed, and that the procedure followed by plaintiff of filing his claim in February 1940 for the purpose of procuring a review of the order of the Board entered in March 1935, amounts to a circumvention of the law and should not be permitted. Under the heading of Points and Authorities, respondent does not mention the proposition of laches. We have carefully read the record and do not find that the respondent at any time raised the point that the complaint for a writ of certiorari was not filed in due time. It is a well-established rule that a point not raised in the trial court cannot be urged in this court.\nBecause of the views expressed, the judgment order of the superior court of Cook county is reversed and the return to the writ of certiorari is quashed.\nJudgment order reversed and return to writ of certiorari quashed.\nHebel and Denis E. Sullivan, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice Burke"
      }
    ],
    "attorneys": [
      "John F. Cusack and James J. Cusack, Jr., both of Chicago, for appellant; Robert Irmiger, of Chicago, of counsel.",
      "Barnet Hodes, Corporation Counsel, for appellee; George F. Mulligan, Assistant Corporation Counsel, of counsel."
    ],
    "corrections": "",
    "head_matter": "Elbert M. Oliver, Appellant, v. Retirement Board of the Municipal Employees\u2019 Annuity and Benefit Fund of Chicago, Appellees.\nGen. No. 41,712.\nHeard in the third division of this court for the first district at the December term, 1940.\nOpinion filed June 25, 1941.\nJohn F. Cusack and James J. Cusack, Jr., both of Chicago, for appellant; Robert Irmiger, of Chicago, of counsel.\nBarnet Hodes, Corporation Counsel, for appellee; George F. Mulligan, Assistant Corporation Counsel, of counsel."
  },
  "file_name": "0038-01",
  "first_page_order": 76,
  "last_page_order": 84
}