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People Ex Rel. Gasparas v. Village of Justice

OCTOBER 16, 1967.

PEOPLE OF THE STATE OF ILLINOIS EX REL. MIRKO GASPARAS, ET AL., PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,

v.

VILLAGE OF JUSTICE, A MUNICIPAL CORPORATION, ETC., ET AL., DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a two-count complaint, plaintiffs sought: (1) a writ of mandamus commanding the Village of Justice, its President and Board of Trustees, and the members of the Fire and Police Board of the Village of Justice, to grant civil service status to each of the plaintiffs, as members of the Village of Justice Police Department, in accordance with the terms of the Board of Fire and Police Commissioners Act, Division 2, Article 10 of the Illinois Municipal Code (Ill Rev Stats 1961, c 24, § 10-2); and (2) a declaratory judgment that the sole authority to appoint police officers of any kind or description in and for the Village of Justice since July 28, 1965, was the Board of Fire and Police Commissioners of the Village of Justice, and that any appointments to the Police Department made after July 28, 1965, by the Board of Trustees were void.

In two separate judgment orders, the court denied Count I and granted Count II. The Village of Justice appeals and six of the plaintiffs cross-appeal from portions of the judgment orders. The Board of Fire and Police Commissioners does not appeal from any portion of the orders.

There appears to be no serious dispute as to the facts in this case. Section 10-2-1 of the Municipal Code (1961) provided that in every municipality with at least 5,000 persons and not more than 250,000, the president of the village, with the consent of the board of trustees thereof, shall appoint a board of fire and police commissioners. As a result of a special federal census taken July 28, 1965, it was determined that the population of the Village of Justice was 5,252 persons. On August 5, 1965, and pursuant to the provisions of section 10-2-1 of the Municipal Code (1961), the Village of Justice passed and approved an ordinance establishing a board of fire and police commissioners, which specifically reserved the right of the President and Board of Trustees to make appointments to the office of Chief of Police.

On August 10, 1965, a new Board of Fire and Police Commissioners Act became effective, being sections 10-2.1-1 to 10-2.1-28 inclusive of chapter 24 of the Illinois Revised Statutes of 1965. On the same date and by the same Act, sections 10-2-1 to 10-2-25 were repealed. Section 10-2.1-28 of the new Act provided:

"The repeal of a statute or part thereof by this Act shall not affect any action pending or rights existing at the time this Act takes effect.

"The provisions of this Act insofar as they are the same or substantially the same as those of any prior statute, shall be construed as a continuation of such prior statute and not as a new enactment."

On October 7, 1965, defendants Raymond Copp, Wallace Leack and Joseph Franks were appointed members of the Board of Fire and Police Commissioners by the President and Board of Trustees of the Village. Also on October 7, 1965, without the filing of written charges or a hearing, the President and Board of Trustees of the Village discharged the plaintiffs from their respective offices in the Police Department of the Village. Thereafter, the President and Board of Trustees appointed six police officers (not the plaintiffs), five on November 4, 1965, and one on February 3, 1966.

As to Count I, at the hearing in the trial court it was stipulated that plaintiff Mirko Gasparas was entitled to be certified to civil service status with the rank of Captain of Police. After hearing the evidence and in a judgment order, the court found that the six remaining plaintiffs "were part-time members of the Police Department of the Village of Justice on July 28th, 1965 and on August 10th, 1965 and at all times between said dates, and were not full-time members of the Police Department of the Village of Justice, Illinois, and therefore do not qualify for certification as members of the Police Department of the Village of Justice under either the statute as it existed on July 28th, 1965 nor the statute as it existed on August 10th, 1965 and thereafter." As to these plaintiffs, the complaint was dismissed.

As to Count II, the court declared in a second judgment order that since the time the Village of Justice became subject to the provisions of the Fire and Police Commissioners Act on July 28, 1965, the President and Board of Trustees had "no right to appoint police officers in said Village of Justice of any kind or description, with the exception of the Office of Chief of Police, which right to make said appointment of said Chief of Police was reserved by the President and Board of Trustees in the ordinance creating the Board of Fire and Police Commissioners, passed and approved . . . on August 5, 1965."

The court further declared that the six specific police appointments (not the plaintiffs) made by the President and Board of Trustees after July 28, 1965, were void, and "that the only valid appointments of police officers of any kind or description in said Village of Justice since July 28, 1965, can only be made by the Board of Fire and Police Commissioners of said Village of Justice in accordance with the Board of Fire and Police Commissioners Act of the State of Illinois aforesaid." It was further ordered that the President and Board of Trustees "be and they are hereby perpetually enjoined from making any appointments to the Police Department of the Village of Justice, Illinois, with the exception of the Office of Chief of Police of said Village."

Considered first is the appeal of the Village from the foregoing parts of the judgment order based on Count II. It is the theory of the Village "that the Board of Fire and Police Commissioners Act of the State of Illinois applies only to full time policemen and firemen and that the President and Board of Trustees of defendant Village of Justice have a clear right to appoint part-time police officers."

The Village contends that "the Board of Fire and Police Commissioners Act of the State of Illinois was never intended by the legislature to apply to part-time police personnel." The Village agrees that "once a municipality becomes subject to the Board of Fire and Police Commissioners Act the Board of Fire and Police Commissioners is the only legal body that can appoint and hire full-time police officers. However, there is nothing in the Act which prevents a municipality through its Board of Trustees from employing police officers on a part-time basis." The Village further asserts that neither the provisions of Chapter 24 nor any of the cases cited by plaintiff contain anything which would make part-time appointments of police officers illegal, and that "in 1965 the legislature saw fit to clearly state and we think, affirm, that the provisions of the Act apply only to full-time personnel. The legislature did not say that the only policeman who can be appointed in municipalities must be appointed on a full-time basis."

To show that the legislature intended that the Act would only apply to "full-time personnel," the Village points to the language of various parts of the Act, such as:

(1) Section 10-2.1-4, which states in part:

"Any full time member of a regular fire or police department of any municipality which comes under the provisions of this Division or adopts this Division 2.1 or which has adopted any of the prior Acts pertaining to fire and police commissioners, is a city officer."

(2) Division 3 as it existed on July 28, 1965, in which it is said in section 10-3-1:

"`[P]oliceman' means any member of a regularly constituted police department of a municipality, sworn and commissioned to perform police duties. . . . The term `policeman' as used in this Section 10-3-1 does not include any of the following persons: Part time policemen, special policemen, night watchmen. . . ."

(3) Also, section 10-8-2 (repealed March 18, 1963), which provided for the creation of a pension fund for policemen in villages having a population of not ...


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