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Sibley v. Health & Hosp. Governing Com.

AUGUST 15, 1974.

CHARLES SIBLEY, PLAINTIFF-APPELLEE,

v.

THE HEALTH & HOSPITALS' GOVERNING COMMISSION OF COOK COUNTY ET AL., DEFENDANTS-APPELLANTS. BURIL UPSHIRE, PLAINTIFF-APPELLEE,

v.

THE HEALTH & HOSPITALS' GOVERNING COMMISSION OF COOK COUNTY ET AL., DEFENDANTS-APPELLANTS. THE PEOPLE EX REL. CATHERINE CALLAGHAN ET AL., PLAINTIFFS-APPELLEES,

v.

THE MERIT SYSTEM ADVISORY COMMITTEE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, the Hon. DONALD J. O'BRIEN, and the Hon. F. EMMETT MORRISSEY, Judges, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

We are asked in this consolidated appeal to decide whether the Health and Hospitals' Governing Commission of Cook County (hereinafter the Commission) has the power to establish a mandatory retirement program for its employees.

The Commission was created by the legislature to operate the Cook County Hospital and certain other medical institutions. (Ill. Rev. Stat. 1971, ch. 34, par. 5011 et seq.) On February 15, 1972, the Commission adopted a resolution establishing a compulsory retirement program for all its employees effective as of January 1, 1973. The resolution set forth 65 years as the maximum age for employment with the Commission with graduated application to employees between the age of 65 and 70 as of the effective date. The resolution also included a provision for deferment from retirement in individual cases.

All the petitioners are employees of the Commission. All had been certified and appointed in the classified service of Cook County Hospital as civil service employees. Each remained within the civil service system until they became career employees within the Commission's statutorily required merit system. All the petitioners, except Dempsey Smith, were members of bargaining units represented by unions. The compulsory retirement provision was contained in the Commission's contracts with the unions. On December 31, 1972, all the petitioners were retired by the Commission because of age.

On December 29, 1972, petitioner Charles Sibley filed his complaint for injunction in the circuit court of Cook County, seeking to enjoin the Commission from terminating his employment because of age. On February 15, 1973, Judge Daniel A. Covelli entered such an injunction. The injunctive order also reinstated Sibley in his position as a custodial worker at Cook County Hospital and awarded him back pay.

On March 29, 1973, petitioners Catherine Callaghan, Jesse Brown, Willie Wright, Dempsey Smith, John Richmond and Edgar Bedar filed a complaint for mandamus, requesting the Commission to reinstate them to their positions at Cook County Hospital. They alleged that their employment was improperly terminated because of age. On July 8, 1973, Judge F. Emmett Morrissey entered an order commanding that they be restored to duty and awarding them back pay.

On June 20, 1973, petitioner Buril Upshire filed his complaint for injunction. On June 29, 1973, Judge Donald O'Brien entered an injunction restraining the Commission from terminating Upshire's employment for age, and reinstating him to his position as a laundry worker at Cook County Hospital. The Commission has appealed all three orders, and we have entered an order consolidating the three appeals.

The Commission initially contends that, even in the absence of specific legislative authority, it has the inherent power to establish a compulsory retirement program. The Commission, referring to certain language in the Act, argues in the alternative that the Act impliedly grants it the authority to fix an age for compulsory retirement.

• 1, 2 It is well settled that an administrative body, such as the Commission, exercises purely statutory powers and must find within the enabling statute the authority to exercise the power it claims. (People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 90 N.E.2d 729; Funkhouser v. Coffin (1921), 301 Ill. 257, 133 N.E. 649.) Administrative bodies possess no inherent or common-law powers. (Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 569; Oliver v. Civil Service Commission (1967), 80 Ill. App.2d 329, 224 N.E.2d 671.) In People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 90 N.E.2d 763, the court, in rejecting the concept of inherent power for administrative agencies, stated at page 346:

"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."

The trial judges in the present matter correctly held that the Commission did not have the inherent power to fix a compulsory retirement age for its employees.

In making its alternative argument that the legislature impliedly gave it power to set a compulsory retirement age, the Commission refers to certain express powers furnished to it in the Act:

"§ 5020. * * * As agent for the county, the Commission shall have the following powers: to operate, maintain and manage such hospitals, facilities and programs; to make and enter into contracts to accomplish any or all of its purposes; to establish rules and regulations for the use, operation and management thereof; * * * as agent for the county, the Commission shall fix all salaries, wages or other compensation, or benefits and working conditions of all employees or other persons performing services for the Commission.

§ 5026. * * * The Commission shall adopt rules and regulations based on such [merit] principles governing the appointment, training, promotions, transfers, lay-off, removal, discipline, fringe benefits and welfare of its employees. * * * No merit or career employee may be discharged, demoted or suspended ...


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