Fahey v. Cook County Police Dept. Merit Bd.

• Decision Date: 18 July 1974
• Docket Number: No. 57994,57994
• Citation: 21 Ill.App.3d 579,315 N.E.2d 573
• Parties: , 8 Empl. Prac. Dec. P 9741 John B. FAHEY, Plaintiff-Appellant, v. COOK COUNTY POLICE DEPARTMENT MERIT BOARD et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 573

315 N.E.2d 573

21 Ill.App.3d 579, 8 Empl. Prac. Dec. P 9741

John B. FAHEY, Plaintiff-Appellant, v. COOK COUNTY POLICE DEPARTMENT MERIT BOARD et al Defendants-Appellees.

No. 57994.

Appellate Court of Illinois, First District, Third Division.

July 18, 1974.

Richard F. McPartlin, Chicago, for plaintiff-appellant.

Bernard Carey, State's Atty., Sheldon Gardner, Charles A. Powell, Asst. State's Attys., and Michael F. Baccash, Evanston, for defendants-appellees.

DEMPSEY, Justice:

The plaintiff, John B. Fahey, a sergeant in the Classified Service of the Cook County Police Department, brought this action for declaratory judgment seeking a finding that a provision of the Rules and Regulations of the Cook County Police Department Merit Board, which established a mandatory retirement age of 60, was illegal, void and unconstitutional. The defendants filed a motion to dismiss, which the court allowed in a written judgment order and memorandum. The plaintiff's petition to vacate and modify the judgment order was denied. He appeals from both orders.

The sole issue presented is whether the Merit Board had authority to enact a rule providing for the compulsory retirement of members of the Cook County Police Department when they became 60 years old.

Fahey was appointed a deputy sheriff in September 1956. In 1963, when the statute creating the Police Merit Board went into effect, he achieved merit status as a patrolman. Three years later, he was promoted to the rank of sergeant. In February 1972 he received a letter from the Chief of the Cook County Sheriff's Police Department advising him that he would be retired from the department on his 63rd birthday, April 1, 1972, in accordance with Article VIII of the Merit Board's rules and regulations. That rule, enacted in January 1972, provided:

'Retirement will be mandatory at age 60 except upon application approved by the Sheriff for extension of not more than one year at a time.'

Fahey requested an extension of employment, but it was not granted, and in March 1972 he filed this action, alleging that Article VIII was void and illegal and in conflict with the removal provisions of the governing statute (Ill.Rev.Stat., 1971, ch. 125, para. 62); that it infringed on a power reserved to the legislature, in violation of the separation of powers provision of the Illinois Constitution; and that because the rule permitted exceptions without stating standards for their determination, it violated the due process clauses of the Federal and State Constitutions. It was further alleged that Fahey was in excellent health; that all but a year of his service had been in the criminal investigative field and that he was presently supervising sergeant in the Office of Investigative Services, and an active member of the faculty of the department's training academy; that he had an excellent record of service and had never been suspended or disciplined.

The defendants' motion to dismiss, filed on April 5, 1972, cited sections 6 and 8 of the pertinent statute (Ill.Rev.Stat., 1971, ch. 125, paras. 56, 58) as authority for the Merit Board's promulgation of Article VIII. The motion stated that on April 3rd Article VIII had been amended and that it now provided:

'Retirement will be mandatory at age 60 for members of the Cook County Police Department.'

The defendants asserted that Fahey had no right to be retained in his employment because he was over 60 years of age. On April 24th the trial court granted the motion to dismiss. Fahey filed a petition to vacate or modify the judgment, pointing out that the Cook County Board of Commissioners had enacted an ordinance setting a compulsory retirement age of 75 for any employee employed by the County 'other than independent contractors, those employees whose retirement is controlled by State statute and elected County officials.' In June 1972, the court denied the petition, but amended its order of April 24th by adding the following:

'The Cook County Police Merit Board has the inherent power to fix a compulsory retirement age for deputy sheriffs and that such a regulation does not unconstitutionally invade the exclusive power of the General Assembly to legislate granted by the Illinois Constitution of 1970, Article II, Section 1.'

The Merit Board has cited no authority to support the court's reasoning. The court's memorandum referred to the dissent of two justices in Morrison v. Department of Highways (1955), 229 La. 116, 85 So.2d 51, and to language in Finch v. State Department of Public Welfare (1956), 80 Ariz. 226, 295 P.2d 846. Neither is persuasive. in Morrison the majority held that mere age was not just cause for removal from protected merit employment, absent some statutory authority. The dissent was prompted not by any perception of inherent powers in the department, but rather by the fact that the Louisiana Constitution vests in that State's Civil Service Commission the broad power to adopt rules 'regulating employment, . . . removal, qualifications, and other personnel matters . . ..' In Finch the Arizona court asked the rhetorical question whether a statute requiring retirement at age 70 had removed the 'inherent' power of the defendant agency to fix a retirement age for its employees, and concluded that it did. But the use of the word 'inherent' was unsupported by authority, contrary to Arizona case law and unnecessary to the outcome of the decision. The controversy arose over a conflict between a statute which set compulsory retirement for affected employees at age 70 and an agency rule which required retirement at 65. The statute prevailed.

In Arizona, as in Illinois and elsewhere, administrative agencies possess no inherent or common law powers. Kendall v. Malcolm (1965), 98 Ariz. 329, 404 P.2d 414; Oliver v. Civil Service Commission of the City of Chicago (1967), 80 Ill.App.2d 329, 224 N.E.2d 671. See also, 1 Am.Jur.2d Administrative Law, sec. 73. The theory of inherent power was rebuffed in People ex rel. Hurley v. Graver (1950), 405 Ill. 331, 90 N.E.2d 763:

'The assertion that the power of the (city civil service) commission over employees of the city of Chicago is complete except to the extent the City Civil Service Act serves as a restraint upon their pervasive power is not a correct statement of the law. The commission's powers are delegated and its authority must find its source in the City Civil Service Act.' In this appeal the Merit Board has chosen not to rely on the theory of inherent power. Instead, it maintains that the statute by implication grants it the authority to fix an age for the compulsory retirement of deputy sheriffs, a contention based on inferences drawn from sections 6 and 8 of the County Police Department Act (Ill.Rev.Stat., 1971, ch. 125, paras. 56, 58):

' § 6. Pursuant to recognized merit principles of public employment, the Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business. . . .

' § 8. The appointment of deputy sheriffs in the Police Department and of employees in the Department of Corrections shall be made from those applicants who have been certified by the Board as being qualified for appointment. . . . All persons so appointed shall, at the time of their appointment, be not less than 21 years of age, or 20 years of age and have successfully completed 2 years of law enforcement studies at an accredited college or university. . . . In addition, all persons so appointed shall be not more than the maximum age limit fixed by the Board from time to time, be of sound mind and body, be of good moral character, be citizens of the United States have no criminal record, possess such prerequisites of training, education and experience as the Board may from time to time prescribe, and shall be required to pass successfully mental, physical, psychiatric and other tests and examinations as may be prescribed by the Board. . . .'

In Illinois, the boards and commissions regulating merit employment systems exercise purely statutory powers and must find within the governing statutes warrant for the exercise of any claimed authority. People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 90 N.E.2d 729 (State Civil Service Commission); People ex rel. Hurley v. Graber (1950), (Chicago Civil Service Commission); People ex rel. Gilbert v. Hurley (1948), 336 Ill.App. 205, 83 N.E.2d 512 (State Civil Service Commission); see also, 15 Am.Jur. (2d) Civil Service, § 8. Administrative agencies possess only such authority as is legally conferred by express provision of law or such as, by fair implication and intendment, is incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which those agencies were created. 1 Am.Jur. (2d) Administrative Law, §§ 70, 72; 81 C.J.S. States § 66d; Essling v. St. Louis County Civil Service Comm. (1969), 283 Minn. 425, 168 N.W.2d 663. Thus, it has been said that such bodies cannot extend the substantive provisions of a legislative enactment nor create substantive rights through exercise of their rulemaking powers. People v. Kueper (1969), 111 Ill.App.2d, 42, 249 N.E.2d 335; Madsen v. Industrial Comm. (1943), 383 Ill. 590, 50 N.E.2d 707; 1 I.L.P., Adm.Law & Procedure, § 24. The restraint should apply with special force to ruels enacted by civil service boards and commissions, since civil service statutes are deemed a necessary part of the contract of employment of each employee covered by them. People ex rel. Jocobs v. Coffin (1918), 282 Ill. 599, 119 N.E. 54; People ex rel. Polen v. Hoehler.

In view of these principles, we find no implied power in the Merit Board to determine a compulsory retirement age for the members of the Cook County Police Department. The authority claimed by the board is not evident on the face of the statute. To the contrary, it appears inconsistent with the express provisions of the statute and...