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Wilkes v. Deerfield-bannockburn Fire Dist.

OPINION FILED DECEMBER 12, 1979.

RICHARD L. WILKES ET AL., PLAINTIFFS-APPELLANTS,

v.

DEERFIELD-BANNOCKBURN FIRE PROTECTION DISTRICT ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY STROUSE, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 11, 1980.

Plaintiffs, Richard L. Wilkes and Jack G. Keyes, who are firemen employed by the Deerfield-Bannockburn Fire Protection District, commenced this action in the Circuit Court of Lake County against defendants Earle S. Rappaport, Jr., Obert B. Fladeland and Ethel M. Beauregard, who are the members of the board of trustees of the district, and Jack Gagne, its fire chief; these parties are also the trustees of the district firemen's pension fund. Insofar as is relevant to this appeal, plaintiffs sought to require defendants to pay into the firemen's pension fund the unpaid salaries of firemen which accrued during temporary, disciplinary suspensions as constituting a fine or penalty within the terms of section 4-119 of the Illinois Pension Code (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 4-119). Subsequently, an additional count was added to the complaint in which a determination was sought that the trustees of the fire-protection district illegally maintain and operate an ambulance service without authority for such service having first been approved by referendum pursuant to section 22 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1977, ch. 127 1/2, par. 38.5) (hereinafter cited as the Act).

After hearings, the trial court found that salaries withheld for disciplinary reasons do not constitute "fines or penalties" within the meaning of the statute and, further, that defendants were properly operating an ambulance or rescue service pursuant to the authority of section 11 of the Act (Ill. Rev. Stat. 1977, ch. 127 1/2, par. 31) and the board of trustees was not required to conduct the referendum provided for in section 22 of the Act. Plaintiffs appeal from the judgment entered pursuant to these findings.

We consider first whether compensation withheld from a fireman during a period of disciplinary suspension from duty must be paid into the pension fund. We conclude it does not and affirm the order of the trial court in that regard.

Section 4-119 of the Illinois Pension Code (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 4-119) provides as follows:

"Donations. All rewards and moneys, fees, gifts and emoluments that may be paid or given for or on account of extraordinary services by the fire department, or any member thereof (except when allowed to be retained by competitive awards), shall be paid into the pension fund.

The Board may take by gift, grant, transfer, devise or bequest, any money, real estate or personal property of any description; and such money, real estate or personal property so obtained and also all fines and penalties imposed upon firemen, shall be paid into the pension fund. All moneys raised under Section 4-118 of this Article shall in like manner be paid into the pension fund, and treated as part thereof." (Emphasis added.)

• 1 While what may constitute a fine or penalty in the context of section 4-119 has not been considered by a reviewing court, these terms have commonly accepted meanings and have been consistently applied. A fine is generally defined as a pecuniary punishment or sum of money exacted from a person guilty of an offense. (People ex rel. Mayfield v. City of Springfield (1959), 16 Ill.2d 609, 613, 158 N.E.2d 582, 585; Sawyer v. Barbour (1956), 142 Cal.App.2d 827, 835, 300 P.2d 187, 191; State v. Addington (1907), 143 N.C. 683, 686, 57 S.E. 398, 399.) The word penalty, on the other hand, is considered to be broader in scope and to include fines, forfeitures and other forms of punishment. (McHugh v. Placid Oil Co. (1944), 206 La. 511, 530-31, 19 So.2d 221, 227; State ex rel. Jones v. Howe Scale Co. (1914), 182 Mo. App. 658, 663, 166 S.W. 328, 330.) In the context of section 4-119, however, it is apparent the legislature used the terms synonymously. It is concerned only with the disposition of money or property given or paid to the fire department or its members, and provides it should then be paid over to the pension fund. The fireman in this case, while suspended, received no salary nor was he required to pay a fine or penalty to the district. He was not permitted to work for the specified period and understandably was not then paid for that period. Presumably, the district might find it necessary to employ someone else to replace a suspended fireman and, if the construction urged by plaintiff is followed, that would require the district to then pay two salaries each time it sought to discipline a fireman by suspension, i.e., one to his replacement and one to the pension fund. We conclude that the legislature did not intend that salaries withheld from firemen for disciplinary reasons should be paid into the firemen's pension fund. See People v. Todd (1975), 59 Ill.2d 534, 322 N.E.2d 447; Community Consolidated School District No. 210 v. Mini (1973), 55 Ill.2d 382, 304 N.E.2d 75, appeal dismissed (1974), 416 U.S. 923, 40 L.Ed.2d 279, 94 S.Ct. 1921.

Plaintiffs also contend that fire-protection districts have no authority to operate an ambulance service without first receiving approval by referendum pursuant to section 22 of the Act. Defendants respond that fire-protection districts are also authorized to provide the ambulance and rescue services to which plaintiffs object pursuant to section 11 of the Act and that compliance with section 22 is necessary only if a levy of the special tax therein provided is to be made to finance the service.

Section 11 of the Act, upon which defendant relies for its authority to provide the service in question, in relevant part, states as follows:

"The board of trustees of any fire protection district incorporated under this Act has the power and it is its legal duty and obligation to provide as nearly adequate protection from fire for all persons and property within the said district as possible and to prescribe necessary regulations for the prevention and control of fire therein. Consistent with this duty, the board of trustees may provide and maintain life saving and rescue equipment, services and facilities." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 127 1/2, par. 31.

Section 22 of the Act, which plaintiff asserts requires referendum approval by the voters of the district before defendant may furnish the ambulance service in issue, provides, in relevant part, as follows:

"The Board of Trustees of any fire protection district incorporated under this Act is authorized under the terms and conditions hereinafter set out, to provide emergency ambulance service to or from points within or without the district; to contract with providers of ambulance service; to combine with other units of governments for the purpose of providing ambulance service; to levy a tax for the provision of ...


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