Malloy v. City of Chicago

• Decision Date: 07 April 1937
• Docket Number: No. 23765.,23765.
• Parties: MALLOY et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

365 Ill. 604

7 N.E.2d 320

MALLOY et al.

v.CITY OF CHICAGO et al.

No. 23765.

Supreme Court of Illinois.

Feb. 12, 1937.

Rehearing Denied April 7, 1937.

Petition for mandamus by Dennis M. Malloy and others against the City of Chicago and others. From a judgment of dismissal, plaintiffs appeal.

Reversed and remanded, with directions.Appeal from Superior Court, Cook County; James J. Kelly, judge.

Samuel A. & Leonard B. Ettelson, of Chicago (Samuel A. Ettelson, Edward C. Higgins, and Carl J. Appell, all of Chicago, of counsel), for appellants.

Barnet Hodes, Corp. Counsel, Quin O'Brien, Alexander J. Resa, and Carl Hjalmer Lundquist, all of Chicago, for appellees.

STONE, Justice.

Appellants filed a petition for mandamus in the superior court of Cook county against the city of Chicago and divers officials thereof, to compel the reinstatement of appellants to their positions in the police and fire departments of that city, from which they had been involuntarily retired through the Policemen and Firemen Retirement Act, adopted June 19, 1935 (Smith-Hurd Ill.Stats. c. 24, § 866a et seq.; Ill.Rev.Stat.1935, chap. 24, par. 725(1) et seq.), and an amendment to section 12 of the Civil Service Act for cities adopted on the same day. Smith-Hurd Ill.Stats. c. 24 1/2, § 51; Ill.Rev.Stat.1935, chap. 24, par. 697.

Other than the usual jurisdictional averments of a petition of this character, the charge of the petition is that the Policemen and Firemen Retirement Act, and the amendment to section 12 of the Civil Service Act for cities, are unconstitutional and void. The prayer of the bill is that the defendants, and each of them, so far as their duties are prescribed by law, shall do all acts necessary to bring about the reinstatement of the petitioners. A motion was filed by the defendants to dismiss the petitions for insufficiency in law. This motion was allowed. Appellants bring the cause here on direct appeal, because the validity of a statute is involved.

The ground on which the Policemen and Firemen Retirement Act is attacked is that it is incomplete, in that it delegates to the heads of the police and fire departments power to determine who shall be retired, but establishes no rule or criterion to guide their action, and so makes the tenure of civil service employees in those departments dependent upon the whim or caprice of the heads of the departments. It is contended also that section 12 of the Civil Service Act, as amended, is invalid because, (1) it discriminates against policemen and firemen, and (2) because it attempts to interfere with the courts by declaring what shall constitute conclusive evidence. The appellees have called attention to many alleged defects in the petition, but the main question concerns the validity of these statutory provisions. Without considering, in detail, the objections to the sufficiency in form of the petition, it is enough to say that the petition sufficiently sets out the questions concerning the validity of these acts.

By section 1 of the Policemen and Firemen Retirement Act (Smith-Hurd Ill.Stats. c. 24, § 866a) it is provided that, in cities having a population exceeding 200,000 inhabitants, policemen or firemen who have attained the age of sixty-three years ‘shall be retired from active service upon the order of the head of the police or fire department of such city, as the case may be.’ Sections 2, 3 (Smith-Hurd Ill.Stats. c. 24, §§ 866b, 866c) define the terms ‘policeman,’ ‘fireman,’ ‘retire,’ and ‘retirement.’ Section 5 (Smith-Hurd Ill.Stats. c. 24, § 866e) is as follows: ‘No such policeman or fireman in the service of such city who has attained the age of sixty-three (63) or more years or who on or before December 31, 1935, shall attain the age of sixty-three (63) years, shall be retired under this Act or under any ordinance authorized by this Act prior to December 31, 1935, but shall be retired on said date if so ordered by the head of the department concerned. After December 31, 1935, the policeman or fireman concerned shall be retired upon his attainment of the designated retirement age if so ordered by the head of his department.’ The objection to this act is that it is incomplete and leaves the retirement of policemen and firemen to the whims of the head of these departments without rules to guide their action. It has frequently been held by this court that, while the method and manner of enforcing an act of the General Assembly must, of neessity, be left to the reasonable discretion of administrative officers, yet a statute which vests in such 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, is void, as an unwarranted delegation of legislative authority. People v. Yonker, 351 Ill. 139, 184 N.E. 228;Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333;Kenyon v. Moore, 287 Ill. 233, 122 N.E. 548;Board of Administration v. Miles, 278 Ill. 174, 115 N.E. 841.

Counsel for appellees argue that consideration of section 12 of the Civil Service Act for cities, as amended June 19, 1935, shows that no discretion is vested in the heads of the departments as to the retirement of policemen and firemen, but that they are bound by the provisions of that act, as well as by the Policemen and Firemen Retirement Act, to retire all policemen and firemen when the conditions of those acts are met. They invoke the well-known rule that statutes of this character should be read together. Section 12 of the Civil Service Act for cities, as amended, provides that officers or employees of the classified civil service of any city, who have been appointed under the rules of the Civil Service Commission and after examination, shall not be removed or discharged except for cause upon written charges, except as in section 12 provided. The amendment of that section of June 19, 1935 (Smith-Hurd Ill.Stats. c. 24 1/2, §...