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Edwards v. City of Marion

DECEMBER 28, 1970.

VIVIAN

v.

EDWARDS, EXECUTOR OF THE ESTATE OF CHARLES EDWARDS, DECEASED, PLAINTIFF-APPELLEE,

v.

THE CITY OF MARION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Williamson County; the Hon. C.E. WRIGHT, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Charles Edwards brought this action for a declaratory judgment that he was illegally discharged as chief of police of the City of Marion, or in the alternative that he was illegally discharged as a member of the City of Marion Police Department, for the purpose of determining his right to pension benefits and recovering salary accrued from the date of his discharge. The trial court entered judgment that Edwards had been legally discharged as chief of police of the City of Marion by the city council, but that he had not been discharged as a member of the police department and that he was a duly appointed member of that department until the date of his death. All parties appeal.

Edwards was appointed chief of police by the Marion City Council on June 21, 1954. He had been a deputy sheriff and never held any position on the City of Marion Police Department other than chief of police. In 1957 the City of Marion became subject to the provisions of Article 14 of the Revised Cities and Villages Act known as the Fire and Police Commissioners Act (Ill. Rev. Stat. 1957, ch. 24, par. 14 et seq., hereinafter referred to as "the Act".) Pursuant to the Act, the City Council appointed a board of fire and police commissioners on August 12, 1957. Thereafter, on June 30, 1959, the city council, acting under the authority granted by Section 4 of the Act, adopted Ordinance No. 372 providing that "the Chief of Police and the Chief of the Fire Department shall be appointed by the Council and said appointments need not be made from the members of the Police and Fire Departments respectively." On May 8, 1967, acting under the authority of this ordinance, the city council dismissed Edwards as chief of police. No charges were ever filed before the board of fire and police commissioners nor was any hearing held prior to his discharge as provided in Section 10-2.1-17 of the Act (Ill. Rev. Stat. 1967, ch. 24, par. 10-2.1-7.) Edwards died on October 21, 1968 and his widow, Vivian Edwards, as executor of his estate was substituted as plaintiff.

The relevant portions of Sections 10-2.1-4 and 10-2.1-17 provide:

"Fire and police departments — Appointment of members — Certificates of appointments. 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 by 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 the Code, the chief of police and the chief of the 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.

If a member of the department is appointed Chief of Police or Chief of the Fire Department prior to being eligible to retire on pension he shall be considered as on furlough from the rank he held immediately prior to his appointment as chief. If he resigns as Chief or is discharged as Chief prior to attaining eligibility to retire on pension, he shall revert to and be established in such prior rank, and thereafter be entitled to all the benefits and emoluments of such prior rank, without regard as to whether a vacancy then exists in such rank.

All appointments to each department other than that of the lowest rank, however, shall be from the rank next below that to which the appointment is made, except that the chief of police and the chief of the fire department may be appointed from among members of the police and fire departments, respectively, regardless of rank, unless the council or board of trustees shall have by ordinance as to them otherwise provided." Ill. Rev. Stat. 1967, ch. 24, par. 10-2.1-4.

"Removal or discharge — Investigation of charges — Retirement. Except as hereinafter provided, 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. The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days. If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages and testimony of witnesses and the production of books and papers relevant to the hearing." Ill. Rev. Stat. 1967, ch. 24, par. 10-2.1-17.

The essence of the judgment of the trial court was that Edwards, having held the position of chief of police for more than one year prior to the time the City of Marion was subject to the provisions of the Fire and Police Commission Act (Ill. Rev. Stat. 1957, ch. 24, par. 14 et seq.), was blanketed into office on the date the Act became effective and was thereafter entitled to its provisions (Ill. Rev. Stat. 1957, ch. 24, par. 14-11; People ex rel. Siegal v. Rogers, 397 Ill. 187); that by virtue of his appointment as chief of police of the City of Marion, Edwards was also a member of the police department of that city; that Ordinance No. 372 adopted on June 30, 1959 reserved to the city council the power to appoint and discharge the chief of police, but only as the chief of police and not as a member of the police department; that the power to remove Edwards as a member of the police department was vested only in the board of fire and police commissioners in accordance with the provisions of Section 10-2.1-17 of the Act; and that upon Edwards' discharge as chief of police by the city council he remained a member of that police department until the date of his death on October 21, 1968, since he had never been discharged as a member of the department pursuant to the provisions of section 10-2.1-17.

The cardinal rule in the interpretation and construction of statutes is that the legislative intention should be ascertained and given effect. This is done primarily from a consideration of the legislative language itself which affords the best means of its exposition and if the legislative intent can be ascertained therefrom, it must prevail and be given effect. The words employed in a statute should be given their plain and ordinary or commonly accepted or popular meaning, unless to do so would defeat the legislative intent. Droste v. Kerner, 34 Ill.2d 495.

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 in the manner provided. Emphasis added.

• 1 Initially, the issue is whether the chief of police is an "officer or member" of the police department within the meaning of that phrase as it is used in Sections 10-2.1-4 and 10-2.1-17. The first sentence of Section 10-2.1-4 states that the board of fire and police commissioners shall appoint all officers and members "including the chief of police and the chief of the fire department" indicating that the chiefs of those departments are either officers or members. In Division 3 of the Act setting the salary of policemen, "policeman" is defined as "any member of a regularly constituted police department of any municipality sworn and commissioned to perform police duties and includes the chief of police * * *. Emphasis added. Finally, the ordinance which established the police department of the City of Marion in 1929 provides that the department "shall consist of such officers of the city as are by law clothed with police powers, a chief of police, a traffic patrolman, two police officers and such other police officers as the City Council shall from time to time by ordinance or resolution prescribe." Emphasis added. We conclude, therefore, that the chief of police is an "officer or member" of the police department, covered by the provisions of the Fire and Police Commissioners Act unless otherwise excluded by the terms of the Act.

• 2, 3 The plain meaning of section 10-2.1-17 is that no officer or member of a police department subject to the provisions of the Act may be discharged except in accordance with those provisions and any discharge not in accordance with those provisions is ineffective. In 1957, when the City of Marion became subject to the Act, Edwards had held his position for more than one year as chief of police, and thus as a member of the department, so that, on the effective date of the Act, he was blanketed into office and was entitled to all the provisions of the Act, including Section 10-2.1-17. People ex rel. Siegal v. Rogers, supra, Ill. Rev. Stat. 1957, ch. 24, par. 14-11.

• 4 Since the city council did not comply with the provisions of section 10-2.1-17, their attempted discharge of Edwards as a member of the police department of the City of Marion was ineffective and he remained ...


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