APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The plaintiff, John B. Fahey, a sergeant in the classified service of the Cook County Police Department, brought this action for declaratory judgment seeking a finding that a provision of the Rules and Regulations of the Cook County Police Department Merit Board, which established a mandatory retirement age of 60, was illegal, void and unconstitutional. The defendants filed a motion to dismiss, which the court allowed in a written judgment order and memorandum. The plaintiff's petition to vacate and modify the judgment order was denied. He appeals from both orders.
The sole issue presented is whether the Merit Board had authority to enact a rule providing for the compulsory retirement of members of the Cook County Police Department when they became 60 years old.
Fahey was appointed a deputy sheriff in September 1956. In 1963, when the statute creating the Police Merit Board went into effect, he achieved merit status as a patrolman. Three years later, he was promoted to the rank of sergeant. In February 1972 he received a letter from the chief of the Cook County Sheriff's Police Department advising him that he would be retired from the department on his 63rd birthday, April 1, 1972, in accordance with article VIII of the Merit Board's rules and regulations. That rule, enacted in January 1972, provided:
"Retirement will be mandatory at age 60 except upon application approved by the Sheriff for extension of not more than one year at a time."
Fahey requested an extension of employment, but it was not granted, and in March 1972 he filed this action, alleging that article VIII was void and illegal and in conflict with the removal provisions of the governing statute (Ill. Rev. Stat. 1971, ch. 125, par. 62); that it infringed on a power reserved to the legislature, in violation of the separation-of-powers provision of the Illinois Constitution; and that because the rule permitted exceptions without stating standards for their determination, it violated the due process clauses of the Federal and State constitutions. It was further alleged that Fahey was in excellent health; that all but a year of his service had been in the criminal investigative field and that he was presently supervising sergeant in the Office of Investigative Services, and an active member of the faculty of the department's training academy; that he had an excellent record of service and had never been suspended or disciplined.
The defendants' motion to dismiss, filed on April 5, 1972, cited sections 6 and 8 of the pertinent statute (Ill. Rev. Stat. 1971, ch. 125, pars. 56, 58) as authority for the Merit Board's promulgation of article VIII. The motion stated that on April 3rd article VIII had been amended and that it now provided:
"Retirement will be mandatory at age 60 for members of the Cook County Police Department."
The defendants asserted that Fahey had no right to be retained in his employment because he was over 60 years of age. On April 24th the trial court granted the motion to dismiss. Fahey filed a petition to vacate or modify the judgment, pointing out that the Cook County Board of Commissioners had enacted an ordinance setting a compulsory retirement age of 75 for any employee employed by the county "other than independent contractors, those employees whose retirement is controlled by State statute and elected County officials." In June 1972 the court denied the petition, but amended its order of April 24th by adding the following:
"The Cook County Police Merit Board has the inherent power to fix a compulsory retirement age for deputy sheriffs and that such a regulation does not unconstitutionally invade the exclusive power of the General Assembly to legislate granted by the Illinois Constitution of 1970, Article II, Section 1."
The Merit Board has cited no authority to support the court's reasoning. The court's memorandum referred to the dissent of two justices in Morrison v. Department of Highways (1955), 229 La. 116, 85 So.2d 51, and to language in Finch v. State Department of Public Welfare (1956), 80 Ariz. 226, 295 P.2d 846. Neither is persuasive. In Morrison the majority held that mere age was not just cause for removal from protected merit employment, absent some statutory authority. The dissent was prompted not by any perception of inherent powers in the department, but rather by the fact that the Louisiana Constitution vests in that State's civil service commission the broad power to adopt rules "regulating employment, * * * removal, qualifications, and other personnel matters * * *." (229 La. 116, 126, 85 So.2d 51, 54.) In Finch the Arizona court asked the rhetorical question whether a statute requiring retirement at age 70 had removed the "inherent" power of the defendant agency to fix a retirement age for its employees, and concluded that it did. But the use of the word "inherent" was unsupported by authority, contrary to Arizona case law and unnecessary to the outcome of the decision. The controversy arose over a conflict between a statute which set compulsory retirement for affected employees at age 70 and an agency rule which required retirement at 65. The statute prevailed.
• 1 In Arizona, as in Illinois and elsewhere, administrative agencies possess no inherent or common law powers. (Kendall v. Malcolm (1965), 98 Ariz. 329, 404 P.2d 414; Oliver v. Civil Service Commission of the City of Chicago (1967), 80 Ill. App.2d 329, 224 N.E.2d 671. See also 1 Am.Jur.2d Administrative Law § 73 (1962).) The theory of inherent power was rebuffed in People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 346, 90 N.E.2d 763:
"The assertion that the power of the [city civil service] commission over employees of the city of Chicago is complete except to the extent the City Civil Service Act serves as a restraint upon their pervasive power is not a correct statement of the law. The commission's powers are delegated and its authority must find its source in the City Civil Service Act."
In this appeal the Merit Board has chosen not to rely on the theory of inherent power. Instead, it maintains that the statute by implication grants it the authority to fix an age for the compulsory retirement of deputy sheriffs, a contention based on inferences drawn from sections 6 and 8 of the ...