157 N.E. 164 | Ill. | 1927
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 re-marry. 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. This was *206 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 $1250 is substituted for that of $600. (Laws of 1923, 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 ofmandamus 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 $1250, 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 *207 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 pensions, the right to which had already accrued before the passage of the law.
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 and Alton Railway Co.
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 *208
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 and Mining Co.
The doctrine declared is the established rule of law and has been announced and followed in many cases. As applied to the present case it means that in any case arising under the law after the amendment the law is to be construed and will operate precisely as if the statute had from its first enactment been in the same words as after the amendment was adopted. The case which is now before us *210 for consideration did not, however, arise after the amendment of the section. It arose before the amendment, and the rule referred to by Endlich and Black has no application to it. This case is, that the defendant in error's husband was killed on October 15, 1922, while in the performance of his duty as a police officer, leaving the defendant in error his widow, who was dependent on him for support, and that his salary was $120 a month. These facts constituted a cause of action which entitled the defendant in error to a writ of mandamus against the plaintiffs in error requiring them to allow her a pension of $50 a month and is governed by the statute in force when it arose. It was not affected by the subsequent change in the statute, which did not in express terms or by necessary implication declare that it should apply to cases which had arisen in the past. The act to revise the law in relation to the construction of the statutes, contained in chapter 131 of the Revised Statutes of 1874, enacts in section 4: "No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act." *211
The provisions of the above section were applied in the case of Farmer v. People,
The judgments of the Appellate Court and of the circuit court are reversed and the cause is remanded to the circuit court, with directions to sustain the demurrer to the petition.
Reversed and remanded, with directions.
Mr. JUSTICE FARMER, dissenting. *212