Malloy v. City of Chicago

• Decision Date: 21 June 1938
• Docket Number: No. 24627.,24627.
• Citation: 15 N.E.2d 861,369 Ill. 97
• Parties: MALLOY et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

369 Ill. 97

15 N.E.2d 861

MALLOY et al.

v.CITY OF CHICAGO et al.

No. 24627.

Supreme Court of Illinois.

June 21, 1938.

Mandamus proceeding by Dennis M. Malloy and others against the City of Chicago and others to compel the payment of salaries of plaintiffs as firemen and policemen of the City of Chicago from the date of their involuntary retirement on December 31, 1935, to May 21, 1937. From the judgment, the defendants appeal, and the plaintiffs cross-appeal.

Affirmed in part, reversed in part, and remanded with directions.Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Barnet Hodes, Corp. Counsel, of Chicago (Fred V. Maguire, Carl Hjalmar Lundquist, and Walter V. Schaefer, all of Chieago, of counsel), for appellants.

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

PER CURIAM.

The superior court of Cook county awarded a writ of mandamus against appellants commanding the payment of salaries of appellees as firemen and policemen of the city of Chicago from the date of their involuntary retirement on December 31, 1935, to May 21, 1937. The question of the validity of an ordinance ratifying the retirement orders brings the cause to this court on a direct appeal.

Appellees were retired by the heads of their respective departments under the provisions of the 1935 Police and Firemen Retirement Act, on account of their having reached the age of sixty-three years. They instituted suit for reinstatement as of December 31, 1935, and for the payment of their salaries thereafter. The constitutionality of the statute under which they were retired was challenged. It was also alleged that the provision in section 12 of the Civil Service act, Ill.Rev.Stat.1937, c. 24 1/2, § 51, for cities, that the age stated in an application for appointment as policeman or fireman shall be conclusive evidence against applicant, is unconstitutional. On motion of the defendants, the petition was stricken for insufficiency in law and the suit was dismissed. On appeal to this court we held the Police and Firemen Retirement Act of 1935 was unconstitutional (Malloy v. City of Chicago, 365 Ill. 604, 7 N.E.2d 320), but denied the contention as to the Civil Service act. The judgment was reversed and the cause remanded, with directions to require the defendants to answer. Thereafter, before the mandate was filed in the superior court, the city council of the city of Chicago on February 24, 1937, adopted a retirement ordinance under the provisions of the 1935 amendment to section 12 of the Civil Service act for cities, and an ordinance ratifying the retirement of appellees December 31, 1935. No retirement ordinance under that act had been previously adopted by the city. On May 21, 1937, the civil service commission of the city entered orders retiring appellees and others from service.

After the cause was reinstated in the trial court, appellants filed an amended answer to which a motion to strike was interposed. The cause was heard on the pleadings. Under the issues thus raised the trial court held that the 1935 amendment of section 12 of the Civil Service act for cities, the retirement ordinance, and the orders of the city civil service commission of May, 1937, are valid; that the ratification ordinance is invalid; that by accepting monthly payments from the annuity and benefit funds since their retirement appellees are not estopped to claim their respective salaries, and are entitled thereto from December 31, 1935, or such other dates of their respective retirements, to May 21, 1937, less the monthly payments with interest at four per cent, so received; and that the amended answer is insufficient in law in so far as it sets up the payment by the city to successor de facto officers of the sums appropriated for the salaries of twelve appellees who are retired lieutenants of the police department. The right of appellees to be restored to their respectiveoffices was denied. The appeal and cross-appeal present the issue on each question decided.

That part of section 12 of the Civil Service act for cities, as amended in 1935, Ill.Rev.Stat.1937, c. 24 1/2, *s 5u, under which the retirement ordinance was adopted, provides, in substance, that whenever the city council of any city adopting the act shall designate, by ordinance, or any general law of this State shall prescribe, any age not less than sixty-three years for the legal employment or the automatic or compulsory retirement of policemen or firemen, they shall be forthwith retired upon reaching the designated age. It imposes upon the civil service commission of such cities the duty to discharge or retire any such policemen or firemen in the classified civil service at the time and in the manner provided by such ordinance or law, and to certify the same to the proper branch or department head. It further empowers the city council of any city adopting the act to provide, by ordinance, a legal employment age or not less than sixty-three years for such policemen or firemen, and for their automatic or compulsory retirement upon attaining the designated age.

Appellees claim the amendatory act violates section 13 of article 4 of the constitution, Smith-Hurd Const. art. 4, § 13 because the powers therein delegated to city councils are not embraced within the scope of the title nor in the subject matter of the section prior to the amendment. We do not agree with that contention. The title of the original act is repeated verbatim in the amendatory act. In such case the title of the amendatory act is as broad, and the amendment is as comprehensive, as the act amended, and any provision which might have been inserted in the original act may be incorporated in the amendatory act without violating the constitutional provision that the subject of the act shall be expressed in the title. City of Evanston v. Wazau, 364 Ill. 198, 4 N.E.2d 78, 106 A.L.R. 789;Michaels v. Barrett, 355 Ill. 175, 188 N.E. 921. The title of the original act is ‘An Act to regulate the Civil Service of Cities.’ Laws 1895, p. 85. For cities adopting the act it establishes a commission, provides for appointments, promotions, suspensions, removals, and discharge of officers and employees, the duties, salaries and expenses of the commission, and, in general, regulates the whole subject of civil service in such cities in accord with the regulatory purpose stated in the title. Every act must embrace but a single subject, but it may include other provisions which are not foreign to the general subject and legitimately tend to accomplish the legislative purpose with reference to the general subject. People v. Joyce, 246 Ill. 124, 92 N.E. 607,20 Ann.Cas. 472. To render a provision in the body of an act void, as not embraced in the title, such provision must be incongruons with, or must have no proper connection with or relation to the title. If, by any fair intendment, the provisions in the body of the act have a necessary or proper connection with the title, the act is not objectionable. The title need not contain all the details of the act or be an index to its contents, but needs only to set out, generally, the subject matter. People v. Huff, 249 Ill. 164, 94 N.E. 61;People v. Huey, 277 Ill. 561, 115 N.E. 739. It is apparent that the retirement of appointees under the civil service is within the scope of regulation and could properly have been included in the original act. It, therefore, was proper to include it in the amendatory act. Moreover, section 12, prior to the amendment, pertained to the removal or discharge of officers or employees in the civil service. The amendment relates to the same subject matter,-i. e., terminating such employment.

The further claim that the 1935 amendment is in...