delivered the opinion of the court:
Pеtitioner, the Fair Employment Practices Commission of the State of Illinois (FEPC), appeals from an order of the trial court which dismissed its petition to enforce a subpoena against respondents, Rush-Presbyterian-St. Luke’s Medical Center (Rush) and Charles A. Freeman, Associate Administrator of Human Resources for Rush (Freeman). The petition was dismissed upon motion of respondents on the ground that Rush was exempt from the provisions of the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 851 et sеq.).
The FEPC contends on appeal that the trial court erred in finding that Rush was sufficiently “affiliated with” a church or religious organization as to exempt it from the statutory definition of an “employer” contained in section 2(d) of the Fair Employment Praсtices Act (Ill. Rev. Stat. 1973, ch. 48, par. 852(d)). In addition, the Illinois Division of the American Civil Liberties Union has filed an amicus curiae brief with this court which contends that section 2(d) is unconstitutional on its face as violative of the establishment of religion, equal proteсtion, and due process clauses of the United States Constitution as well as article I, section 17, of the 1970 Illinois Constitution.
The pertinent facts follow.
On September 6, 1973, Dr. Julia Apter filed a sexual discrimination charge with the FEPC against her employer, Rush. The FEPC instituted an investigation which included the service of a subpoena on Freeman for the production of certain documents and materials. On March 22, 1974, Rush filed two petitions with the FEPC which sought respectively to dismiss the charge and to revoke the subpoena, both predicatеd on the basis that Rush was not an “employer” as defined by section 2(d) of the Act. The petitions were denied by the FEPC and Rush was directed to comply with the subpoena. Subsequently, the FEPC was advised by Rush’s attorney that the subpoena would not be honored.
On Seрtember 5, 1974, the FEPC petitioned the trial court to enforce the subpoena. In response Rush filed a motion to dismiss which again alleged that it was not within the definition of an employer contained in section 2(d) of the Act. Documentary exhibits, answers tо discovery interrogatories, and an affidavit of one of Rush’s employees were introduced into evidence at a hearing on the motion to dismiss. The evidence indicates that Rush as it is presently constituted was created by a merger in 1969 of Rush Mеdical College and Presbyterian-St. Luke’s Health Center, the new corporation taking the name of Rush-Presbyterian-St. Luke’s Medical Center. Its articles of incorporation are silent as to its connection with any church or religious organization. The so-called “pastoral care” program at Rush provides staff chaplains for hospital patients, and the appropriation for the program amounts to two-tenths of one per cent of Rush’s entire operating budget. Fоr the years 1970-1975 the Presbytery of Chicago and the Protestant Episcopal Church contributed only *7,959 to Rush’s total operating budgets of *75,000,000. In letters from representatives of the Presbytery of Chicago and the Episcopal Diocese of Chicagо, it was stated that the Presbytery had only an informal relationship with Rush and did not exercise any control over it, and that the Episcopal Diocese had only tacitly agreed to an “affiliation” with Rush and also exercised no control over it. Although its previous bylaws had provided for 50 trustees, six of whom were to be clerical trustees, the current bylaws of Rush, adopted on October 28, 1970, make no provision for the appointment of clerical trustees. On March 21, 1975, the trial court granted Rush’s motiоn to dismiss. In its written order the trial court found:
(1) that Rush is exempt from the Act because it is affiliated with the Presbytery of Chicago of the United Presbyterian Church and the Protestant Episcopal Church, Diocese of Chicago;
(2) that Rush did not waive its exemption from coverage of the Act when it answered the substance of the charge filed by Dr. Apter; and
(3) that section 2(d) of the Act as construed by the court does not violate amendments I, V, or XIV of the United States Constitution or article I, sections 2, 3 or 17, of the Illinоis Constitution.
Throughout the proceedings before the trial court the FEPC was represented by the Illinois Attorney General. However, on April 21,1975, the FEPC by its own house counsel filed a notice of appeal from the dismissal order.
Of initial concern is the argument of Rush that this appeal should be dismissed as filed in violation of article V, section 15, of the 1970 Illinois Constitution because it is prosecuted by counsel other than the Illinois Attorney General. It is argued that since all appellate proceedings have been conducted by the counsel of the FEPC rather than the Attorney General, the appeal is unauthorized and should be dismissed. It has been held that the Illinois Attorney General is the sole advisor and counsel of all executive offiсers, boards, commissions and departments of the State. (Fergus v. Russel (1915),
We next consider the amicus curiae brief filed by the American Civil Liberties Union. The sole issue raised there is that section 2(d) of the Fair Employment Practices Act is unconstitutional on its face. A variety of constitutional arguments are asserted to support that contention. However, the merits of that contention need not be аddressed for such issue was not raised in the trial court and therefore cannot be raised upon appeal. (People v. Amerman (1971),
The sole contention raised by the FEPC upon appeal is that the trial court erred in finding that Rush was sufficiently “affiliated with” a church or religious institution to be exempt from the statutory definition of an “employer” contained in section 2(d) of the Fair Employment Practices Act which provides in pertinent part:
“The term ‘employer does not include any not for profit corporation or association organized for fraternal or religious purposes, nor any school, educational or charitable institution owned and conducted by, or affiliated with, a church or religious institution, nor any exclusively social club, corporation or association that is not organized for profit.”
The term “affiliated with” is not defined by the Act. In the absence of statutory definition indicating a different legislative intent, words are to be given their common dictionary or commonly understood meaning. (People v. Dednam (1973),
The primary purpose of statutory construction is to ascertain the intent of the legislature. (People v. Dednam; Tan v. Tan (1972), 3. Ill. App. 3d 671,
Having determined that “affiliated with” requires more than the demonstration of a mere connection or association, we conclude that the instant record does not support the finding of the trial court that Rush was affiliated with the Presbytery of Chicago and the Episcopal Diocese of Chicago. Contrary to Rush’s argument that its predecessor’s historical religious affiliations must be considered, such information is irrelevant to its presеnt status under the Act. It is the status of a defendant at the time of the alleged unfair employment practice that determines whether the defendant is exempt from the provisions of the Act. (Fair Employment Practices Com. v. Tenerovitz.) Rush’s historical dеvelopment has no bearing on that determination. However, the following factors were operative at the time of the alleged violation. Its articles of incorporation and current bylaws are silent as to its connection with а religious institution. Moreover, Rush’s current bylaws have changed from a prior requirement concerning the placement of clerical members on the board of trustees. Its religious activities and the appropriations for those activitiеs are minimal in comparison to its overall budget. The same is true as to the financial contributions to Rush from those religious institutions with which it claims affiliation. Representatives of the two religious institutions to which Rush claims affiliation have indicated that any сonnection between their institutions and Rush is merely informal at best, and at the sufferance of each. We believe that in the aggregate, these factors demonstrate that Rush was not affiliated with a church or religious institution within the meaning of section 2(d) of the Act. The relationships of record are simply too tenuous on which to predicate such an exemption.
For the reasons stated, the trial court erred in finding that Rush was exempt from the provisions of the Fair Employment Practices Act. Therefore, the order of the Circuit Court of Cook County dismissing the petition to enforce the subpoena of the FEPC is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
DEMPSEY and McNAMARA, JJ., concur.
Notes
By amendment, effective Octоber 1,1975, section 2(d) of the Fair Employment Practices Act was modified in its exemption of religious institutions. The amended subsection provides in pertinent part:
“The term ‘employer’ does not include any religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.”
However, the amendment is not applicable to the instant appeal as the underlying charge was filed before its effective date.