Appeal from the Circuit Court of Sangamon County; the Hon. J.
Waldo Ackerman, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1974.
Defendants, the City of Springfield, its Civil Service Commission, and its Commissioner of Public Health and Safety, appealed from the decree of the circuit court of Sangamon County which held unconstitutional and enjoined the enforcement of an ordinance adopted by the defendant City reducing the mandatory retirement age of its policemen and firemen from 63 years to 60 years of age, and ordered the reinstatement to active duty of the plaintiffs, Charles Peters, Joseph Endres, and Ferdinand Sugent, firemen who were retired under the ordinance. We allowed defendants' motion under Rule 302(b) and ordered the appeal taken directly to this court.
The defendant City has adopted and is operating under division 1 of article 10 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, pars. 10-1-1 through 10-1-48), which provides for civil service in municipalities. Section 10-1-18, inter alia, provides that municipalities which have adopted division 1 "may by ordinance provide an age limit of not less than 63 years as the maximum age for the legal employment of any person employed as a policeman or fireman * * *." In holding the ordinance invalid the trial court found that it conflicted with section 10-1-18 of the Municipal Code and
"8. That the Plaintiffs, Joseph Endres and Charles Peters have not been allowed to earn their maximum pension as provided by Article 4 of Chapter 108 1/2, Illinois Revised Statutes (1971) because of the mandatory retirement of them by the City of Springfield prior to age 63 in accordance with the above referred to City Ordinance.
9. That said ordinance is in violation of the 1970 Constitution of the State of Illinois, Section 5 of Article 13 thereof in that said City Ordinance, by forcing Plaintiff Joseph Endres and Plaintiff Charles Peters to retire before obtaining their maximum pension benefits, diminishes and impairs their pension rights as they existed at the time of their employment as firemen of the City of Springfield.
10. That with respect to all three Plaintiffs, the City Ordinance here in question violates Section 6(i), Article 7, of the 1970 Illinois Constitution, in that the State of Illinois having previously legislated a mandatory age of retirement for firemen, the City of Springfield, as a home rule unit, is required to legislate concurrently with the State when setting its mandatory age of retirement.
11. That the Defendant, City of Springfield, has failed to legislate concurrently with the State statutory enactment imposing a minimum mandatory retirement age for firemen."
In their joint brief, defendants and amicus curiae, the Illinois Municipal League, argue that "state statutes which pre-date the 1970 Illinois Constitution are not limitations on a home rule government's power to legislate pertaining to its government and affairs" and that "plaintiffs' contractual rights in their pension fund do not include the right to work to any certain age * * * or until they could receive the maximum benefits * * *." In its brief, amicus curiae City of Chicago argues that home-rule units may enact ordinances superseding statutes enacted prior to the effective date of the 1970 Constitution and that the ordinance does not impair or diminish any vested contractual pension benefit of the plaintiffs.
Plaintiffs contend that the trial court correctly held that the defendant City was without authority to enact the ordinance, and that the ordinance impaired plaintiffs' pension benefits in violation of section 5 of article XIII of the 1970 Constitution. Fire Fighters Local No. 2, International Association of Firefighters (hereafter Fire Fighters), as amicus curiae, contends that the ordinance violates section 5 of article XIII and section 16 of article I of the 1970 Constitution and that in its enactment the defendant City "exceeded its home rule powers."
The rationale of the trial court's decision and the principal basis for the arguments advanced by plaintiffs and amicus Fire Fighters that the ordinance is violative of section 6(i) of article VII of the Constitution is that in enacting the civil service code for municipalities, the General Assembly had established a statutory scheme fixing procedures and minimum standards; that the debates of the delegates to the constitutional convention show an intent to preserve these existing statutory schemes which fix procedures and minimum standards and place them beyond the power of home-rule units to establish different procedures or lower standards; that under the provisions of section 9 of the transition schedule of the constitution the existing statutory scheme remained in force and effect, and that under the provisions of section 6(i) the defendant City may act concurrently with the State but cannot establish different procedures or set lower standards. In support of their argument plaintiffs and Fire Fighters cite the debates of the constitutional convention with respect to a provision proposed for inclusion in what became section 6 of article VII. The Local Government Article, as proposed by the Local Government Committee, contained section 3.2(d), which provided: "The General Assembly may by general law provide standards and procedures for the exercise of powers and performance of functions granted by paragraph 3.1(a)." (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1578 (hereinafter cited as Proceedings).) Section 3.1(a), to which 3.2(d) referred, became section 6(a) of article VII of the Constitution as adopted. In commenting on section 3.2(d) the majority report stated: "It is a necessary `savings clause' intended to preserve order and uniformity in the myriad of situations where lack of statutory standards and prescribed procedures could lead to chaos and confusion. Requirements of notice, hearing and public meetings are examples of subjects that would fall under this paragraph." (7 Proceedings 1645.) The minority report asserted that section 3.2(d) was unnecessary, and that sections 3.2(b) and 3.2(c) (now sections 6(h) and 6(i) of article VII) provided the General Assembly with the power to enact any necessary or appropriate standards or procedures. They argued further that section 3.2(d) would defeat the power granted by section 6(a) of article VII if the General Assembly, by inaction, failed to enact standards and procedures for the exercise of powers and performance of functions granted by section 6(a) of article VII. 7 Proceedings 1909-1911.
When the proposed article reached the floor of the convention a motion was offered to delete section 3.2(d). The chairman of the Local Government Committee agreed to delete the word "standards" from the provision, stating that it was intended to deal with procedural uniformity. (4 Proceedings 3114.) This was not acceptable to the opponents of the section and it was suggested that "minimum" be inserted before "standards." The chairman again emphasized that it was meant to deal with procedure and it was suggested that the provision be amended to read "procedural standards." (4 Proceedings 3115.) The motion to delete section 3.2(d) was finally voted upon and carried. 4 Proceedings 3118-3119.
A reading of the majority and minority reports (7 Proceedings 1591 and 1909) and the debate on the proposed provision (4 Proceedings 3113-3118) shows that the members of the convention recognized a need for legislative power to standardize certain areas of local governmental activity. The controversy centered around the manner in which the General Assembly must exercise this power and the method selected by the convention is contained in sections 6(g), (h), (i) and (l) of article VII.
In Kanellos v. County of Cook, 53 Ill.2d 161, and People ex rel. Hanrahan v. Beck, 54 Ill.2d 561, we approved ordinances adopted pursuant to section 6(a) of article VII, which were in conflict with existing statutes enacted prior to the effective date of the Constitution. The rationale of those decisions is that a home-rule unit may exercise a power conferred upon it under the provisions of section 6(a), even though such exercise of the power conflicts with a statute enacted prior to the adoption ...