BERNARD F. JORDAN et al., Appellees, vs. METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Appellants.
No. 34732
Supreme Court of Illinois
November 26, 1958
Rehearing denied Jan. 22, 1959.
15 Ill. 2d 369
We find no error in the decree of the circuit court of Champaign County and it is, accordingly, affirmed.
Decree affirmed.
BERNARD F. JORDAN et al., Appellees, vs. METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Appellants.
Opinion filed November 26, 1958—Rehearing denied Jan. 22, 1959.
RUSSELL W. ROOT, and KIRKLAND, FLEMING, GREEN, MARTIN & ELLIS, both of Chicago, (THOMAS M. THOMAS, THOMAS F. SCULLY, and DAVID PARSON, of counsel,) for appellants.
Mr. JUSTICE DAVIS delivered the opinion of the court:
This case presents the question of the constitutionality of the 1957 amendment to section 26 of the Chicago Sanitary District Employees’ and Trustees’ Annuity and Benefit Fund Act, (
Plaintiffs, certain classified civil service employees of the Metropolitan Sanitary District of Greater Chicago who have attained, or will shortly attain, the age of 67 years, obtained a declaratory judgment in the superior court of Cook County that the enactment, which provided for compulsory retirement of such employees at age 67 with certain provisions for temporary re-employment, was unconstitutional, and that an amendment to the rule, which added attainment of 67 years of age as cause for discharge from service, was invalid. Defendants, the district, its trustees, the members of the civil service board and trustees of its employees’ annuity and benefit fund, by appropriate answer, admitted the allegations of the plaintiffs’ pleadings concerning their employment and their status in service, but denied the unconstitutionality of the enactment and the invalidity of the rule. Upon the issues of law presented by the pleadings, the court allowed plaintiffs’ motion for judgment, entered judgment in accordance with the prayer of the complaint and issued an injunction permanently restraining defendants from removing or compulsorily retiring plaintiffs under the provisions of the enactment and rule.
The court found the enactment violative of
The enactment is entitled: “An Act to amend Section 26 of ‘An Act to provide for the creation, setting apart, maintenance and administration of a Sanitary District Employees’ and Trustees Annuity and Benefit Fund in sanitary districts organized under an Act entitled “An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois Rivers,” approved May 29, 1889, as amended, and including within their territorial limits two or more cities, villages, or towns having a total population exceeding one million inhabitants,’ approved July 7, 1931, as amended.” It supplements section 26 as follows: “Any sanitary district employee, other than a trustee, shall be compulsorily retired from service upon attainment of 67 years of age; provided that the corporate authorities of the sanitary district may employ any former employee on a temporary basis after he attains 67 years of age and prior to attainment of 72 years of age if an annual physical examination conducted by a physician designated by such corporate authorities indicates that such employee is physically fit to continue in his employment, and an employee so continued in service on a temporary basis may at his option as provided in Section 15 of this Act make contributions for service rendered prior to 70 years of age.” Section 26, both before and after the adoption of the enactment, provided for a service retirement pension for employees retiring from service at age 60, having rendered 5 years of service; for employees retiring at age 55, having rendered 15 years of service; and for employees re-
Neither do we believe that the enactment embraces more than one subject. The term “subject” is comprehensive in its scope, and an act may include all matters germane to its general subject, including the means necessary or appropriate to the accomplishment of the legislative purpose. (People ex rel. Brenza v. Gebbie, 5 Ill.2d 565; People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600.) The constitutional requirement seeks to prohibit only the inclusion of discordant provisions which by no fair intendment can be considered as having any legitimate relation to each other. (People ex rel. Brenza v. Gebbie, 5 Ill.2d 565, 587; People ex rel. City of Chicago v. Board of County Comrs., 355 Ill. 244, 247.) The provisions of the enactment are all germane to its general subject, are appropriate to accomplish the legislative purpose and have a legitimate relation to each other. Tested by these principles, the act complies with the constitutional mandate and the contention that the act embraces more than one subject is without merit.
The court below also held that the enactment was violative of the following language of
The Metropolitan Sanitary District of Greater Chicago was established under an act of the General Assembly approved May 29, 1889, as amended, and entitled “An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers,” (Laws of 1889, pp. 125-137;
In 1931 the General Assembly passed “An Act to provide for the creation, setting apart, maintenance and administration of a Sanitary District Employees’ and Trustees Annuity and Benefit Fund in sanitary districts organized under an Act entitled ‘An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers.‘” This act set up a retirement program for the employees of the sanitary district, provided for its administration by a retirement board, specified qualifications for service retirement pensions, set out provisions for return of salary deductions to the resigning or discharged employees and required the proper authorities of the district to furnish the board all information, reports and data concerning employees, needed by the board in the performance of its duties. (Laws of 1931, pp. 479-526;
In 1935, the General Assembly enacted “An Act to amend ‘An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers,‘” approved May 29, 1889, as amended, by adding sections 4.1-4.36 thereto, which created a civil service board, brought
A careful examination of the sections of the Chicago Sanitary District Act alleged to have been amended reveals no violation of
The essence of plaintiffs’ argument is that the provisions for compulsory retirement at age 67 more logically belong in the Sanitary District Act and that, with the adoption of the enactment, it became necessary to refer not only to its provisions but to the civil service provisions of the Sani-
If we assume the enactment amended by implication certain provisions of the Sanitary District Act, this would not render it unconstitutional. Where a law is complete in itself, it is valid although its effect may be to repeal, modify, or amend existing laws by implication. (Alexander v. City of Chicago, 14 Ill.2d 261, 270; Starck v. Chicago and North Western Railway Co., 4 Ill.2d 611, 616; People v. Deatherage, 401 Ill. 25, 42.) It is not necessary, when a new act is passed, that all prior acts modified by it by implication shall be re-enacted and published at length. (Co-ordinated Transport, Inc. v. Barrett, 412 Ill. 321, 330.) This principle also applies to amendatory legislation when the amendment is within the scope of the title of the act
The trial court also held that the enactment was invalid because it unlawfully delegated legislative authority to administrative officers in violation of article III. Plaintiffs urge that this is so because the right to determine which of the sanitary district employees who have reached age 67 shall have the opportunity to continue in service is left to the unguided discretion of the corporate authorities of the sanitary district. They rely principally upon Malloy v. City of Chicago, 365 Ill. 604, wherein this court decided that a statute providing for the retirement of policemen and firemen at age 63, if so ordered by the head of the department, was invalid because it vested in the officers a discretion, not only as to the administration of the act but also to determine what the law is, or to apply it to one and refuse its application to another in like circumstances. The enactment, unlike the legislation in the Malloy case, provides absolutely for the compulsory retirement of the employees involved at a given age. Under its provisions retirement at age 67 is determined not by the action of any administrative official, but by operation of law.
It is well established that the legislature may constitutionally provide a mandatory retirement age for public employees. (Malloy v. City of Chicago, 369 Ill. 97; Dodge v. Board of Education, 364 Ill. 547.) In Malloy v. City of Chicago, 369 Ill. 97, at page 103, in considering the right of the legislature to prescribe a compulsory retirement age, we stated: “We have upheld similar provisions of the School law for the retirement of teachers at the age of sixty-five. Where an office is created by statute it is wholly within the power of the legislature creating it, and the length of term may be altered at pleasure or the office may
In People ex rel. Akin v. Kipley, 171 Ill. 44, we held the Civil Service of Cities Act, approved March 20, 1895, to be constitutional. (
In the exercise of these legislative powers, the General Assembly by the enactment of section 11 of the Civil Service of Cities Act (
Plaintiffs urge that we invalidate, as an unlawful delegation of legislative power, the 1957 amendment to sec-
The Metropolitan Sanitary District Act was approved May 29, 1889. It contained no provisions for civil service until amended in 1935. Under section 4 of the original act, the trustees were authorized to exercise all powers and manage and control the affairs of the district. Such powers, in connection with employment, were restricted by the 1935 civil service amendment, subject to the exemption set forth in section 4.13. (
If the legislature has power to exempt employees from civil service, as done by section 11 of the Civil Service of Cities Act and section 4.13 of the Metropolitan Sanitary District Act, it has the power to restore to the sanitary district, without civil service restrictions, the rehiring of persons over 67 years of age. The legislature may grant to its municipal agencies such powers as it deems necessary and it may withdraw or alter such granted powers.
Under our view, this enactment does not involve a delegation of legislative power but, rather, a partial withdrawal of a legislative restriction heretofore imposed upon the power of the sanitary district to hire employees.
In passing the enactment the General Assembly has tacitly recognized that the re-employment of such retired employees will, upon occasion, be required to insure the availability of skilled workers in this vital field of public sanitation.
The trial court also held the statute violative of the due-process clauses of the State and Federal constitutions, both of which provide that “No person shall be deprived of life, liberty or property, without due process of law.” (Sec-
Plaintiffs assert, however, that the due-process provisions of the constitutions have been held to protect personal as well as property rights. In this connection they have cited cases in which due process has been invoked to protect the right of the individual citizen to pursue his profession or calling on equal terms with others similarly situated. (Cf. People v. Brown, 407 Ill. 565.) Such cases
Plaintiffs charge that the rule, which is an amendment to rule 11.041, is invalid. It adds to the other causes for discharge the following: “10. Have reached the age of 67 years.” At a hearing conducted by the board, after notice and the filing and service of charges, it was found that each of the plaintiffs had attained the age of 67 years. The correctness of the finding is admitted. The trial court temporarily enjoined the enforcement of the rule and the injunction was later made permanent.
The civil service board is authorized by statute to discharge civil service employees of the sanitary district for cause. (
The judgment and order of the superior court of Cook County is reversed and the cause is remanded to that court, with directions to enter an order dissolving the injunction and dismissing the complaint.
Reversed and remanded, with directions.
Mr. CHIEF JUSTICE DAILY, dissenting:
The opinion adopted by the court gives sanction to a statute which, to me, clearly embodies an unlawful delegation of legislative power and results in an unsettling and crushing blow to the civil service system.
By the enacting clause of the amendment under scrutiny, the legislature has fixed the age of 67 years as the compulsory retirement age for sanitary district employees. Standing alone, the enactment is unobjectionable, for, as correctly stated in the majority opinion, it is well established that the legislature may constitutionally determine a mandatory retirement age for public employees. To the enacting clause, however, the legislature had added the proviso that the sanitary district “may employ any former employee on a temporary basis after he attains 67 years of age and prior to the attainment of 72 years of age if an annual physical examination conducted by a physician designated by such corporate authorities indicates that such employee is physically fit to continue in his employment, and an employee so continued in service on a temporary basis may, at his option, as provided in Section 15 of this Act, make contributions for services rendered prior to 70 years
While it may be conceded that the hiring of temporary employees is a matter of local concern, and that the legislature could, under proper circumstances, constitutionally delegate the power to the district to employ retired employees on such a basis, the fallacy of the majority opinion is that it construes the proviso without regard to the enactment it modifies. Ordinarily the office of a proviso is to qualify, restrain or except something from the generality of the enacting clause. (In re Day, 181 Ill. 73; Chicago, Burlington and Quincy Railroad Co. v. Doyle, 258 Ill. 624.) Thus it is held that provisos should be strictly construed, (Doubler v. Doubler, 412 Ill. 597,) that they should be read and applied so as to accomplish the purpose of the law, (Winner v. Kadow, 373 Ill. 192,) and that the enactment and the proviso should be construed together. (See: Aiken v. Will County, 321 Ill. App. 171, leave to appeal denied 385 Ill. 630.) When these familiar rules of statutory construction are applied in this case it becomes manifest that the entire amendment unlawfully allows the true determination of the time of retirement to rest in the uncontrolled discretion of the corporate authorities. To avoid this result, the majority opinion has treated the enactment and the proviso as separate and unrelated laws.
Reading the enactment and the proviso together, it is clear that an employee, although presumably retired at age 67, may, by virtue of the proviso, be continued in his employment up to age of 72 years, or for an additional five years. This continuation of employment is not based upon public need, emergency, or other grounds upon which classification or discrimination might constitutionally be justified, but solely upon an arbitrary power of selection vested in the corporate authorities of the sanitary district. It is true that an employee must be physically qualified to be continued in his employment, but such requirement in no man-
To me the statute under consideration cannot be distinguished in effect and principle from the one struck down in Malloy v. City of Chicago, 365 Ill. 604. There the statute provided that police or firemen who had attained the age of 63 years “shall be retired from active service upon the order of the head of the police or fire department as the case may be,” and this court held it was an invalid delegation of legislative authority inasmuch as it vested the department heads with discretion to apply it to one person and to refuse its application to another in like circumstances. Here the statute fixes the retirement age for sanitary district employees at age 67, but the proviso permits the corporate authorities to continue employment up to age 72. They may permit all employees reaching 67 years to continue, they may permit a few, or they may permit none. Likewise, they may permit employment to continue only to such year as they choose between ages 67 and 72. Clearly, therefore, the corporate authorities are given an uncontrolled discretion to determine at what precise age after age 67 that any of its employees will actually retire. This, as pointed out in the Malloy case, is a wholly unlawful delegation of legislative authority.
With little analysis, and with no regard for much of the language of the statute, the majority opinion interprets the proviso only as permitting the district to employ retired employees on a temporary basis. Any distinction be-
Furthermore, it is my opinion that extending the true and actual retirement date of an employee under the guise of “temporary” employment, or “continuance” in employment, results in irreparable harm to the civil service system. Courts of this State have expressly stated that one of the fundamental purposes of civil service laws is to protect municipal employees by assuring them against discharge without cause, (McArdle v. City of Chicago, 216 Ill. App. 343,) by removing their employment from political pressure, (Board of Library Directors v. Snigg, 303 Ill. App. 340,) and by providing that appointments are made on fitness and merit. (People ex rel. Akin v. Kipley, 171 Ill. 44.) By sanctioning a statute that makes such an employee‘s retirement date depend on selection by the corporate authorities, this court has departed from these precepts. With this court‘s condonation of the present statute as a guide, it is neither impossible nor improbable that any municipal
I reiterate that I do not say that the legislature may not authorize the temporary employment of retired employees in a proper case, such as where there is a shortage of skills or the public convenience and necessity demands it. The present statute, however, seeks only to permit a continuation of employment beyond retirement age, and selection for such employment is made to relate to the whim and uncontrolled discretion of the corporate authorities, rather than to merit, skill or public need. Nor do I deny that the legislature, having created the civil service system, has the power to change the laws affecting the system. It may not, however, ignore constitutional limitations and delegate the legislative authority as it has done in this case. On this ground, the decision of the court below should be affirmed.
Mr. JUSTICE BRISTOW joins in this dissent.