# Swibaker v. Board of Trustees Firemen's Pension Fund

> Appellate Court of Illinois · January 21, 1986 · 140 Ill. App. 3d 550

URL: https://www.frixlaw.com/law-library/cases/7021325

## Case

- **Full name:** DONALD SWIBAKER v. BOARD OF TRUSTEES FIREMEN'S PENSION FUND
- **Court:** Appellate Court of Illinois
- **Decided:** January 21, 1986
- **Citations:** 140 Ill. App. 3d 550; 94 Ill. Dec. 805; 488 N.E.2d 1052; 1986 Ill. App. LEXIS 1744
- **Precedential status:** Published
- **Opinion:** Dissent by McCullough
- **Judges:** McCullough, Trapp
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7021325

## Opinion text

PRESIDING JUSTICE McCULLOUGH, dissenting:
The payment of an increased pension to Swibaker based on the salary of a fire captain at the time of Swibaker’s election to transfer from disability to retirement would be violative of the constitutional provision prohibiting the expenditure of public funds for private purposes (Ill. Const. 1970, art. VIII, sec. 1). The majority indicates that this question has been waived by the Board because it was not raised prior to the filing of its reply brief. 87 Ill. 2d R. 341(e)(7).
This court should consider this question because it is necessary to achieve a just result and maintain a uniform body of precedent. (Hux v. Raben (1967), 38 Ill. 2d 223 , 230 N.E.2d 831 .) Because the payment of an increased pension to Swibaker under the circumstances present would constitute an expenditure of public funds for a private purpose, section 4 — 113 is inapplicable to persons such as Swibaker.
In Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 898 , 392 N.E.2d 101, 104 , the court stated in part:
“[Under plaintiff’s construction of the amended statute, the pension to which he would become entitled when he reached the age of 50 was increased without requiring any payments into the fund by him. But such a construction would render the statute unconstitutional as permitting the expenditure of public funds for private purposes. (Ill. Const. 1970, art. VIII, sec. 1(a); Porter v. Loehr (1928), 332 Ill. 353 , 163 N.E. 689 .)”
Article VIII, section 1(a), of the 1970 Illinois Constitution provides:
“(a) Public funds, property or credit shall be used only for public purposes.” Ill. Const. 1970, art. VIII, sec. 1(a).
Under the plaintiff’s construction, he would not be required to contribute any additional money to the pension fund in order to receive the pension increase established by the amendment. Such a result is not constitutionally permitted.
The decision of the trial court should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7021325. Public record. Not legal advice.