Bovinette v. City of Mascoutah
| Decision Date | 25 September 1973 |
| Docket Number | No. 45513,45513 |
| Citation | 302 N.E.2d 313,55 Ill.2d 129 |
| Parties | Ernest E. BOVINETTE, Appellant, v. The CITY OF MASCOUTAH et al., Appellees. |
| Court | Illinois Supreme Court |
Walker & Williams, Belleville (Martin W. Imber, Belleville, of counsel), for appellant.
Norman L. Nold, Freeburg and Robert L. Jennings, Belleville, for appellees.
Plaintiff, Ernest E. Bovinette, filed a complaint for declaratory judgment in the circuit court of St. Clair County contending that his employment as chief of police of the City of Mascoutah had been wrongfully terminated and that he is entitled to that office and to the salary. The City filed a motion to dismiss the complaint, which the circuit court allowed. The appellate court affirmed the trial court (7 Ill.App.3d 492, 288 N.E.2d 12), and we granted leave to appeal.
The complaint alleges that the City of Mascoutah on February 1, 1971, became subject to the provisions of division 2.1 of article 10 of the Illinois Municipal Code (). Division 2.1 provides for the creation of a Board of Fire and Police Commissioners and specifies its authority. The complaint further alleges that no charges were ever filed against the plaintiff with the Board of Fire and Police Commissioners and that no hearing was held. He contends that he was wrongfully discharged in that he was not discharged by the Board of Fire and Police Commissioners as required by statute.
The City, in its motion to dismiss, alleges that it is a municipal corporation operating under the managerial form of municipal government as provided in article 5 of the Illinois Municipal Code () and that pursuant to section 5--3--7 the city manager has the right to appoint and dismiss employees and officers of the City. The motion also alleges that the plaintiff had previously tendered his resignation and that it had been accepted.
Article 5 of the Illinois Municipal Code provides for the managerial form of municipal government. In section 5--3--7(2) it is provided that the powers and duties of the municipal manager shall be 'To appoint and remove all directors of departments.' The City points out that in article 5 there is no provision that all officers and members of the police department, including the chief, shall be appointed and discharged only as provided in division 2.1 of article 10 where it is in effect, whereas in article 4, which provides for the commission form of municipal government, there is such a provision. The City argues therefore that under the managerial form of municipal government the manager has the authority to hire and discharge the chief of police without regard to the provisions in division 2.1 of article 10. We do not agree.
There is no language in division 2.1 of article 10 which can be construed as exempting from its provisions those municipalities operating under the managerial form of municipal government. Section 10--2.1--1 provides:
'In Every municipality with a population of at least 5,000 and not more than 250,000 which is not subject to Division 1 of this Article, and in every municipality with a population of less than 5,000 which adopts this Division 2.1 * * * the mayor of the city, with the consent of the city council * * *, Shall appoint a board of fire and police commissioners.' (Emphasis added.)
The application of this section is thus made mandatory as to the City of Mascoutah, which has a population of in excess of 5,000 and has not adopted the provisions of division 1 of article 10. Division 1 relates to civil service.
Section 10--2.1--4 provides for the appointment of members of the fire and police departments of municipalities operating under Division 2.1 and provides:
'The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department, unless the council or board of trustees shall be ordinance as to them otherwise provide; except that in any municipality which adopts or has adopted this Division 2.1 and also adopts or has adopted Article 5 of this Code, the chief of police and the chief of fire department shall be appointed by the municipal manager, if it is provided by ordinance in such municipality that such chiefs, or either of them, shall not be appointed by the board of fire and police commissioners.'
Thus in all municipalities operating under Division 2.1 all members of the fire and police departments, including the chiefs, must be appointed by the Board of Fire and Police Commissioners. However, as to the chiefs, the municipality may provide that they be appointed by someone other than the Board of Fire and Police Commissioners, but if that municipality is one that has adopted article 5, which provides for the managerial form of municipal government, then if an ordinance is adopted providing that the Board of Fire and Police Commissioners shall not appoint the chiefs, that appointment must be made by the municipal manager. We must note, however, that this exception relates solely to the appointment of the chiefs and does not refer to their discharge.
As to the authority to discharge, section 10--2.1--17 provides that 'no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.' This section further provides that the Board of Fire and Police Commissioners shall conduct a hearing following which it may discharge or suspend the officer or member if he is found guilty.
Plainly the legislature intended these sections to apply to cities operating under the managerial form of municipal government provided in article...
To continue reading
Request your trial
-
Harvel v. City of Johnston City
...(Williams v. Illinois State Scholarship Comm'n (1990), 139 Ill.2d 24, 150 Ill.Dec. 578, 563 N.E.2d 465; Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 302 N.E.2d 313.) From the plain meaning of section 9 of the Structural Work Act (Ill.Rev.Stat.1987, ch. 48, par. 69) if the worker di......
-
Kukla v. Village of Antioch
...Commissioners Act is only mandatory for municipalities with a population of over 5,000. ¶ 10-2.1-1; Bovinette v. City of Mascoutah, 55 Ill.2d 129, 131, 302 N.E.2d 313, 315 (1973). Antioch in 1980, as we have already noted, fell short of that figure by 581 persons. We therefore presume that ......
-
Lopez v. Fitzgerald
...Telephone Association v. Illinois Commerce Com. (1977), 67 Ill.2d 15, 20-21, 7 Ill.Dec. 76, 364 N.E.2d 63; Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 133, 302 N.E.2d 313; Droste v. Kerner (1966), 34 Ill.2d 495, 503, 217 N.E.2d 73, Cert. denied and appeal dismissed (1967), 385 U.S......
-
McDonald's Corp. v. Levine
...that a court will not restrict or enlarge the plain meaning of a statute nor inject provisions into it. (Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 133, 302 N.E.2d 313.) Therefore, as to Count I we conclude that the trial court erroneously dismissed the action as to McDonald's an......