January 30, 2001 										SECOND DIVISION

										January 30, 2001	

No. 1-99-0280

RACHELL GARNER, individually and as

mother and next friend of 

KIMBERLY GARNER,

		Plaintiffs-Appellees,

v.

CITY OF CHICAGO, CITY OF CHICAGO

BOARD OF TRUSTEES OF THE POLICEMEN'S

AND FIREMEN'S DEATH BENEFIT FUND,

MATT L. RODRIGUEZ, EDWARD ALTMAN and

WHITNEY W. ADDINGTON,

		Defendants-Appellants, and

EDWARD M. BURKE,

		Defendant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Dorothy Kinnaird,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	This appeal involves the interpretation of a Chicago Municipal Ordinance which provides benefits to family members of slain police

officers.  Plaintiffs-Appellees, Rachell and Kimberly Garner

(collectively the "Garners"), are the widow and child of Sergeant

Michael Garner ("Decedent").  Decedent, a police officer employed

by the City of Chicago, died on July 12, 1997.  Defendants-

Appellants are the City of Chicago; the City of Chicago Board of

Trustees of the Policemen's and Firemen's Death Benefit Fund (the

"Board"); Matt L. Rodriguez, Superintendent of the Chicago Police Department (the "Superintendent"); Edward Altman, Commissioner of

the City of Chicago Fire Department; and, Whitney W. Addington,

President of the City of Chicago Board of Health.  Also named as a

Defendant is Edward M. Burke, a Chicago Alderman and Chairman of

the City of Chicago Committee on Finance ("Alderman Burke")(when

addressed collectively, Defendants-Appellants will be referred to

as the "City").  Alderman Burke, however, retained his own counsel

and supports the Garners' position on the question to be decided by

this court.   

	The trial court granted the Garners' request for declaratory

relief and the dispute between the parties on appeal centers around

the trial court's interpretation of  section 3--8--040 of the

Chicago Municipal Code ("section 3--8--040"). Chicago Municipal

Code § 3-8-040 (1999).  Section 3--8--040, in conjunction with other provisions in the ordinance, provides benefits to family

members of police officers or firefighters who are killed while in

the line of duty.

	Section 3--8--040 of the Chicago Municipal Code states, in

pertinent part:

		"It shall be the duty of the superintendent of

police in the case of a policeman, and of the fire

commissioner in the case of a fireman, upon the

occurrence of any injury in the performance of

duty, to have immediate medical care and hospital

treatment given to such injured policeman or fireman, to make or cause to be made a complete and

careful investigation of all facts surrounding the occurrence, to obtain the statements of all material witnesses, and to present the said report

without delay to the said board of trustees for

consideration and action thereon, including the

determination as to whether or not such injury

arose from violence or other accidental cause and

was received by the deceased policeman or fireman

while he was in the performance of his duty.  Such

report shall show the actual date and hour of the

injury, the place of occurrence, the names and

addresses of witnesses and the apparent nature and

extent of the injury."  Chicago Municipal Code § 3-

-8--040 (1999).

	In their complaint for declaratory judgment, the Garners

asserted that Decedent was killed while in the performance of his

duty.  The Garners also claimed that under section 3--8--040 the

Superintendent is required to conduct an investigation whenever a

police officer is killed in the performance of his duty.  They also

argued that, under section 3--8--040, the Superintendent must

submit the results of the investigation to the Board, which then

makes the decision as to whether or not the family members are

entitled to benefits.  After the Superintendent refused to issue a

report concerning Decedent's death, the Garners filed the instant declaratory judgment action in the circuit court.  The circuit

court held that the Superintendent acted in violation of section 3-

-8--040 by not issuing a report and ordered the Superintendent to

conduct an investigation concerning the death of Decedent.  The

circuit court also ordered that the results of the Superintendent's

investigation  be submitted to the Board.  The record reveals the

following facts. 

	Decedent died of multiple gunshot wounds on the evening of

July 12, 1997.   That evening Decedent had been in a tavern with

Cindalyn Meadows ("Meadows"), a woman with whom he was having an

affair.  After drinking at the tavern, Decedent and Meadows drove

their own automobiles to the 7000 block of South Bell Street,

Chicago, Illinois.  After they both parked, Meadows got into

Decedent's car. 

	Meadows, an eye-witness to the shooting, indicated that while

they sat together in Decedent's automobile, another car stalled

near Decedent's car.  At one point, one of the men gathered around

the stalled car approached Decedent's vehicle.  The man, later

identified as Stanley Wofford ("Wofford"), appeared to be gesturing

to Decedent like he was asking if Decedent wanted any drugs.   

Decedent then indicated that he did not want to communicate with

Wofford and "waved him away."  Wofford walked away but, soon

thereafter, approached Decedent's automobile again to inquire if

Decedent had any jumper cables to start the stalled car.  Decedent

responded that he had no jumper cables and Wofford, again, walked away.  

	A few minutes later, a black two-door automobile pulled up

along side Decedent's car.  According to Meadows, the driver of the

black car was Wofford who asked Decedent: "Where do you come from?"

and "What do you want?"  Wofford then exited the black vehicle with

an automatic handgun in his hand.  In response, Decedent exited his

automobile carrying his own handgun.  A physical altercation ensued

between Decedent and Wofford.  During the struggle, Decedent was

shot multiple times and was pronounced dead on the morning of July,

12, 1997.

	After investigating the incident, the Superintendent found

that Decedent was not acting in the performance of his duty at the

time of death.  Further, the Superintendent concluded, pursuant to

section 3--8--040, that he did not have to report the circumstances

of Decedent's death to the Board.  The Garners thereafter filed

their complaint for declaratory, injunctive and other relief in the

circuit court.   The circuit court dismissed the original complaint

and allowed the Garners to re-plead their declaratory judgment

count.  The Garners filed an amended complaint in which they

requested a declaration that section 3--8--040 required the

Superintendent to conduct an investigation concerning Decedent's

death and to submit the results of that inquiry to the Board.  At

the hearing before the circuit court, the Garners orally moved for

judgment on the pleadings concerning the above declaration.   The

trial court granted judgment on the pleadings and as indicated earlier ordered the Superintendent to conduct an investigation

concerning the Decedent's death and to submit a report to the Board

for review.  This appeal followed.   

	The sole question on appeal concerns the interpretation of

section 3--8--040.  Specifically, under the facts of this case,

could the Superintendent, in conformity with section 3--8--040,

unilaterally determine whether or not the Decedent, a police

officer, was injured while in the performance of his duty as

opposed to reserving that decision for the Board.  As the  question

involves the construction of a municipal ordinance, a question of

law, this Court's standard of review is de novo. Daley v. American Drug Stores, Inc., 294 Ill. App. 3d 1024, 1026, 691 N.E.2d 846 (1998). 

	The language at issue in section 3--8--040 has been set out

above and will not be repeated here.  We note however that the

language of sections 3--8--030 and 3--8--50 are also relevant in

construing section 3--8--40.  Section 3--8--030 states, in

pertinent part: "A board composed of four members shall constitute

a board of trustees authorized to carry out *** provisions dealing

with the policemen's *** death benefit fund, and shall be charged

with the duty of administering that fund ***."  Chicago Municipal

Code § 3--8--030 (1999).  Section 3--8--050 states, in relevant part:

		"No such award or payment shall be made unless

satisfactory proof shall have been presented to the board of trustees that death occurred

within one year from the date of injury, that

such injury arose from violence or other

accidental cause, that such injury was

received while in the performance of duty, and

that such injury was the direct cause of

death.  The amount of the award shall be

determined by order of court, entered by a

court of competent jurisdiction, declaring

heirship."  Chicago Municipal Code § 3--8--050

(1999).

	The Garners contend that they properly alleged that Decedent

was injured while "in the performance of his duty" in paragraph 10 of their amended complaint which states:

		"On July 12, 1997, Michael Garner [Decedent]

was assigned by the Chicago Police Department

to work narcotics as a plain clothes officer

and was parked in an unmarked City of Chicago

police vehicle, at which time he was in

possession of his department issued radio,

cellular phone, badge, identification Chicago

Police baseball cap and was armed with an

approved and registered handgun."

The amended complaint additionally provides in Paragraph 19:

"Sergeant Garner's [Decedent's] actions in confronting Wofford and attempting to disarm, subdue and arrest him were actions in the

performance of his duty as a Chicago police officer."  Moreover, the Garners claim that because Wofford was carrying a firearm upon

a public street, Decedent had a duty to apprehend Wofford under the

Illinois Code of Criminal Procedure, and thus, Decedent was injured

while in the performance of a police duty when he was killed.  725

ILCS 5/107-16 (West 1998).  Based upon the allegations contained in

the amended complaint and the language of the statute, the Garners

argue that it is the Board's function to determine whether an

officer is fatally injured while in the performance of his duty.

	In response, the City claims it was the Superintendent's

function to determine whether an injury occurred while in the

performance of duty and that it was reasonable for the

Superintendent to have determined that Decedent was not injured in

the line of duty because: (1) he was drinking in a private car; (2)

he was with a woman; and (3) he "wound up in" an altercation that

was unrelated to his duties.  The record demonstrates however that the Superintendent never explained what factors he relied upon in

determining that Decedent was not injured while in the performance

of his duty at the time he was killed.  

	We make no determination as to whether or not Decedent was

actually injured while "in the performance of his duty" at the time

of his death as that is not the issue on appeal; we only decide

whether the Superintendent had the authority to unilaterally

determine that Decedent was not injured while in the performance of his duty.  We conclude that under the statute at issue only the

Board could make that determination and that the Garners were

entitled to declaratory relief.  

	First, the Illinois Code of Criminal Procedure provides the following:

		"It is the duty of every *** policeman, when a

criminal offense or breach of the peace is

committed or attempted in his or her presence,

forthwith to apprehend the offender and bring

him or her before a judge, to be dealt with

according to law; to suppress all riots and

unlawful assemblies, and to keep the peace,

*** ."  725 ILCS 5/107-16 (West 1998). 

	Given the fact that the Garners alleged that Decedent, at the

time of this occurrence, was attempting to disarm Wofford who was

unlawfully carrying a firearm, we conclude the allegations of the

complaint raised a question of whether or not Decedent was injured

while "in the performance of duty" at the time of his death.  

	Second, Illinois courts have interpreted the language "the

performance of duty" very broadly as noted by the comment below:

		"The nature of a policeman's job is that he be

fit and armed at all times, whether on or off

duty, and subject to respond to any call to

enforce the laws and preserve the peace. ***

[Citation.]  However, since he is always obligated to attempt to prevent the commission

of crime in his presence, any action taken by

him toward that end, even in his official off-

duty hours, falls within the performance of

his duties as a police officer."  Banks v. City of Chicago, 11 Ill. App. 3d 543, 549-50, 297 N.E.2d 343 (1973).  

We note that this proposition has been qualified to exclude

officer's conduct that, "was entirely in pursuit of personal

goals."  Wolf v. Liberis, 153 Ill. App. 3d 488, 493, 505 N.E.2d 1202 (1987).  In this case, the City argues that Decedent was in

the pursuit of personal goals.  We disagree.

	In Wolf, the officer was following his intoxicated fiancee home in his own vehicle.  The fiancee was intoxicated to the point

where she drove her car through a store-front window.  Upon

witnessing this incident, the officer backed his fiancee's auto

from the store front and instructed her to remain there while he

went to call the police.  The officer then attempted to exit the

scene in his own vehicle.  Several onlookers attempted to prevent

him from leaving the scene and the officer replied that he was "on

duty."  The onlookers grabbed the officer's steering wheel in an

attempt to thwart him from leaving.  When this occurred, the

officer lost control of his vehicle and ran head-on into another

automobile killing the decedent.  Wolf, 153 Ill. App. 3d at 492.  

	Unlike Wolf, Decedent's conduct in this case cannot be characterized as "entirely in pursuit of personal goals" as the

amended complaint alleges that Decedent was attempting to disarm

Wofford.  Although there is some dispute between the parties

regarding the interpretation of the facts leading to the shooting,

there is apparently no dispute that Wofford was brandishing a

weapon on a publiccity street at the time of this occurrence. We also

recognize that Banks and Wolf did not involve the interpretation of the ordinance at issue and instead involved the question of whether

liability could be imposed against a municipality for the tortious

acts of a police officer in the scope of employment.  Nonetheless,

these cases are instructive for understanding the meaning of the

phrase in the performance of duty.  For purposes of this case, we

conclude that the Garners' amended complaint raised a question of

whether Decedent was injured while "in the performance of his duty"

at the time of this occurrence because it alleged that a crime was

being committed in Decedent's presence, the unlawful use of a

weapon and that Decedent was attempting to disarm the offender. 

Thus, under Banks and §5/107-16 Decedent was obligated to attempt to disarm Wofford and "any action taken by him toward that end even

in his official off-duty hours, falls within the performance of his

duties as a police officer."  Banks, 11 Ill. App. 3d at 549-50; 725 ILCS 5/107-16 (West 1998).  

	Third, we point out that at the hearing on November 13, 1998,

the trial judge interpreted section 3--8--040 by reading sections

3--8--030, 3--8--040 and 3--8--050 together and determined that, where a question is raised concerning a line of duty death, the

Board must  be charged with evaluating whether the death occurred

within the performance of the officer's duty.  The trial court also

concluded that the Superintendent's duty was to complete a report

and to submit such report to the Board for a determination as to

whether the death occurred while in the performance of duty.

	The City claims that the trial court's construction of section 3--8--040 was erroneous because the plain meaning of section 3--8--

040 limits the Board's discretion to confer benefits in cases where

the Superintendent has first determined that an officer was killed

in the performance of duty.  According to the City, section 3--8--

040 establishes the Superintendent as a "gatekeeper," where he is

charged with unilaterally determining whether or not an officer is

killed while in the performance of duty.  We disagree.  

	As noted by the Garners:  "Under the well established rules of statutory construction, the words used in the statute must be given

their ordinary and popularly understood meaning, and the relevant

language must be read within the context of the entire provision of

which it forms an integral part."  Illinois Wood Energy Partners, L.P. v. County of Cook, 281 Ill. App. 3d 841, 850, 667 N.E.2d 477 (1995).  In our view, sections 3--8--030, 3--8--040 and 3--8--050

must be read together to determine the intent of the ordinance as

a whole.  We note that the second part of section 3--8--040 is

particularly instructive, where the ordinance's language states the

following:

		" It shall be the duty of the superintendent

of police ***, *** to present said report

without delay to the said board of trustees

for consideration and action thereon,

including  the determination as to whether or

not such injury *** was received by the

deceased policeman *** while he was in the

performance of his duty *** ."  Chicago

Municipal Code § 3--8--040 (1999).

This section clearly delegates the determination of whether or not

the injury occurred "in the performance of his duty" to the Board,

not the Superintendent. Further, section 3--8--050, the following

provision in the ordinance states, in pertinent part: "No such

award or payment shall be made unless satisfactory proof shall have

been presented to the board of trustees that death occurred ***

while in the performance of duty, and that such injury was the

direct cause of death *** ."  Chicago Municipal Code § 3--8--050

(1999).  

	In addition, although section 3--8--060 of the ordinance was

not considered by the trial court, that section further suggests

that the Board, not the Superintendent, makes the determination of

whether the officer's death occurred "in the performance of his

duty."  Section 3--8--060 states, in relevant part, "Said board of

trustees shall submit to the comptroller a report of its findings

***, stating that such [officer's] death was the result of injury received in the performance of duty, in all cases where such is the

determination of the board ***."  Chicago Municipal Code § 3--8--

060 (1999).  In our view, the language in section 3--8--060 also

demonstrates that the intent of the City Council was to grant the

Board the power to determine whether or not an officer was fatally

injured while in the performance of duty.

	Reading the language of the above provisions together, we find

that the intent of the City Council was for the Superintendent to

conduct an investigation and to submit his report to the Board for

review.  Thereafter, only the Board is charged with making the

determination as to whether or not the officer was injured "while

he was in the performance of his duty."  Although such a reading of

the ordinance eliminates the unilateral decision by the

Superintendent of a line of duty death it allows for the

determination of benefits to be made by the full Board.  Only this

interpretation gives meaning to the language of section 3--8--040

that a report be tendered without delay to the Board for

"consideration and action thereon, including the determination as

to whether or not such injury was received while the officer was in

the performance of his duty."

	Beyond its own interpretation of section 3--8--040, the City

offers no authority in support of its construction.  The City does

cite several cases on statutory interpretation: Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656 (1990)("A statute should be construed so that no word or phrase is rendered superfluous or meaningless"); Niven v Sequeira, 109 Ill. 2d 357, 365, 487 N.E.2d 937 (1985) (same language as Kraft, Inc.); Snyder v. Olmstead, 261 Ill. App. 3d 986, 989-90, 634 N.E.2d 756 (1994)("... each word, clause, or sentence of a statute must not be

rendered superfluous but must if possible be given some reasonable

meaning."); and Kaszubowski v. The Board of Education of the City of Chicago, 248 Ill. App. 3d 451, 457-58, 618 N.E.2d 609 (1993)(same language as Snyder).  However, we do not find these cases persuasive as they represent only general propositions of

statutory construction.  In this case, as noted above, we are most

persuaded by the proposition that the ordinance's provisions must

be read together for purposes of understanding the overall

objective of the statute.  

	As we interpret the statute, the duties of the Superintendent

are: (1) "to have immediate medical care *** given to such injured

policeman ***"; (2) "to make or cause a complete and careful

investigation of all facts surrounding the occurrence"; (3) "to

obtain statements of all material witnesses", and (4) "to present

said report without delay to said board of trustees for

consideration and action thereon, ***."  Chicago Municipal Code §

3--8--040 (1999).  Although the City claims that these duties are triggered "upon the occurrence of any injury in the performance of

duty," there is no language in this section directing the

Superintendent to first determine whether or not such injury was

received while in the performance of duty.  This specific charge is delegated only to the Board by the language "including the

determination as to whether or not such injury *** was received ***

in the performance of his duty."  Chicago Municipal Code § 3--8--

040 (1999).

	The most compelling argument advanced by the City is that the Garner's interpretation of section 3--8--040 creates a "could have

been" standard that is not expressly drawn in the ordinance.  Under

the Garner's interpretation, the City claims that the

Superintendent's function would be to conduct an investigation and to report it to the Board in every case where it is alleged that

the death "could have been" received "in the performance of duty."

	Further, the City claims that Alderman Burke's interpretation

of section 3--8--040 creates another standard that is not expressly

contemplated in the ordinance.  According to Alderman Burke, there

are three sets of circumstances where every fatal injury or death

of a police officer could be appropriately categorized.  First,

there are situations where the officer was clearly not "in the

performance of duty" such as the off-duty officer who suffers a

heart attack in his home.  Second, there are situations where the

officer is clearly on-duty such as the on-duty officer who responds

to a police dispatch and is killed or injured in a shoot out. 

Third, there are situations where "reasonable minds might differ"

as to whether the officer's fatal injury occurs "in the performance

of duty" such as "when a police officer has chosen to act as a

police officer when off-duty and suffers a fatal injury."

	The City responds by claiming that there is absolutely no

language in section 3--8--040 where a "could have been" in the

performance of duty standard or a "reasonable minds might differ"

standard has been adopted.  In effect, the City contends that the

Garners and Alderman Burke are reading a summary judgment standard

into section 3--8--040 that does not exist.  According to the City,

section 3--8--040 does not require that, when there is a genuine

issue of material fact as to whether or not the officer was killed

"in the performance of duty,"  the Board, instead of the

Superintendent, is charged with making a determination on the

question.  The City warns that an adoption of the Garners' or

Alderman Burke's interpretation of section 3--8--040 would lead to

considerable litigation concerning officers in "close cases" or

cases where "reasonable minds might differ" as to whether or not

the officer was "in the performance of duty." 

	Although one could argue that the first portion of section 3--

8--040 is ambiguous because the language has yielded two different

interpretations concerning who has the authority to determine

whether the fatal injuries occurred while in the performance of

duty, in these instances our supreme court has stated that:  

		"[T]he language of the statute is normally the

best indication of the legislature's intent.

[Citation.] Where the meaning of the enactment

is unclear from the language itself, the court

may look beyond the language employed and consider the purpose behind the law and the

evils the law was designed to remedy.

[Citation.]" Wagner v City of Chicago, 166 Ill. 2d 144, 149, 651 N.E.2d 1120 (1995).

Section 3--8--010 of the ordinance establishes that the purpose of

the enactment is, "for the payment of allowances of money to the

family or dependents of any policeman *** of the city of Chicago in

case he is killed or fatally injured while in the performance of

his duties, ***."  Chicago Municipal Code § 3--8--010 (1999).  Section 3--8--30 authorizes the Board to carry out the provisions

of the death benefit fund and to administer that fund.  Chicago

Municipal Code § 3--8--30 (1999).   To that end, we determine that under the language of the statute the Board, not the

Superintendent, is properly charged with making the determination

of whether or not an officer was injured "while in the performance

of his duty." 

	As earlier recognized, the City maintains that the plain

language of section 3--8--040 assigns a threshold determination of

whether the officer's death or injury occurred  "in the performance

of duty" to the Superintendent.  The City also claims that the

ordinance must be construed as a whole.  Specifically, it refers to

the second part of section 3--8--040 referred to by this court

above.  The City's interpretation of the latter half of section 3--

8--040 is that the responsibilities of the Board are only triggered

in the event the Superintendent first determines the officer died or was injured "in the performance of his duty."  Thus, the City's

construction of section 3--8--040 as a whole is that the

Superintendent is charged with making a unilateral determination as

to whether or not the officer was injured while "in the performance

of duty."  Until such determination has been made, the Board has no

responsibilities under section 3--8--040.

	As stated above, we disagree with the City's construction of

section 3--8--040 in this case.  Construing the statute as a whole

we have reached the opposite conclusion.  Again, we point out that

the language of the statute no where states the Superintendent

shall first determine whether or not an officer's death occurred

"in the performance of duty."  This determination has been clearly

delegated to the Board by the language in the latter part of

section 3--8--040 which states, in relevant part, "including the

determination as to whether or not such injury *** was received by

the deceased policeman *** while he was in the performance of his

duty *** ."  Chicago Municipal Code § 3--8--040 (1999).  We

conclude that the City Council intended that only the Board  make the determination as to whether or not a police officer was injured

while "in the performance of his duty."  This interpretation is

consistent with elementary principles of statutory construction set

forth by controlling case law.  "Generally, in construing municipal

ordinances, the same rules are applied as those which govern the

construction of statutes. [Citations.]"  In re Application of the County Collector of Kane County v. American National Bank and Trust Co.,  132 Ill. 2d 64, 72, 547 N.E.2d 107, (1989).  Our supreme court also stated in Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91, 606 N.E.2d 1111 (1992), in relevant part:

		"The primary rule of statutory interpretation is

that a court should ascertain and give effect to

the intention of the legislature.  The legislative

intent should be sought primarily from the language

used in the statute. [Citation.]  The statute

should be evaluated as a whole; each provision

should be construed in connection with every other

section. [Citation.]"  

Deferring to the cases cited above concerning statutory

construction, the intent and purpose of section 3--8--040 appears

to be carried out by granting the Board the authority to determine

whether the officer was or was not injured while in the performance

of his duty.

	Additionally, if the statute is interpreted as the City

suggests, the language which authorizes the Board to determine

whether or not the officer's injuries occurred while in the

performance of duty is rendered meaningless because the

Superintendent would make this determination.  Section 3--8--030

would also be rendered meaningless because it would not be the

Board that would carry out the provisions of the ordinance, but

essentially the Superintendent.  "Statutes are to be construed in a manner that avoids absurd or unjust results."  See Croissant v. Joliet Park District, 141 Ill. 2d 449, 454 566 N.E.2d 248 (1990);  Stewart v. Industrial Commission, 115 Ill. 2d 337, 341, 504 N.E.2d 84 (1987).  We conclude that a construction of section 3--8--040

that would effectively eliminate the purpose of the Board would

yield such an unjust and absurd result.

	The City's argument, that section 3--8--040 does not contain

language requiring the Superintendent to tender the Board cases

where a police officer "could have been" killed in the performance

of his duty, is accurate.  In addition, section 3--8--040 does not

contain any language adopting a "reasonable minds might differ"

standard.  Yet, we remain with interpreting the language of 

section 3--8--040 and are charged with providing it practical

meaning. 

	We conclude that, in this case, it is reasonable that such a

decision should be made by the Board as opposed to a unilateral one

made by the Superintendent.  Accordingly, we hold that under

section 3--8--040, the Superintendent should have: (1) provided

immediate medical care and hospital treatment to the Decedent; (2)

made a complete and careful investigation of all facts surrounding

the occurrence; (3) obtained statements of all material witnesses;

and (4) presented that report without delay to the Board for

consideration and action thereon.  Chicago Municipal Code § 3--8--

040 (1999).  

	 Furthermore, our interpretation of section 3--8--040, granting the Board the authority to decide whether Decedent was or

was not "in the performance of his duty" eliminates the stigma of,

or any actual partiality, bias or favoritism that could be

associated with the Superintendent making a unilateral decision. 

Further, the confusion and litigation that the City warns of does

not appear to be of considerable magnitude.  In sum, in a situation

like this one, where the complaint raises a question of whether or

not the officer was fatally injured "in the performance of his

duty" based upon factual allegations which include, among other

things, that a crime was being committed in the officer's presence,

the Superintendent must conduct an investigation and report his

findings to the Board.  In our view, the purpose of the ordinance

and of the Board, itself, was and is to render decisions conferring

death benefits to families and beneficiaries of deceased police

officers fatally injured while in performance of police duty.

	As an ancillary matter, we reject the arguments made by the

Garners and by Alderman Burke that Section 3--8--040 is "akin" to

the pension laws in this State.  After reviewing applicable

sections of the Pension Code and relevant case law, we conclude

that the pension laws are distinguishable from the ordinance in

this case.  Given our conclusion on the question to be decided, we

find it unnecessary to engage in any discussion comparing and

contrasting section 3--8--040 with the Illinois pension laws.

	Finally, we offer no opinion as to whether or not Decedent was

killed "in the performance of his duty" under section 3--8--040 for the purpose of entitlement to benefits, we have only determined

that the Garners were entitled to declaratory relief based upon the

allegations contained in their amended complaint.  A decision of

whether or not Decedent's injuries arose from violence or other

accidental course and whether those injuries were received while

Decedent was in the performance of his duty will properly be made

by the Board upon tender of the required investigative report by

the Superintendent.   

	The decision of the trial court is affirmed.

	Affirmed. 

	GORDON and SOUTH, JJ., concur.