APPEAL from the Circuit Court of Franklin County; the Hon. DON
A. FOSTER, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
This appeal raises the issue of appellant's eligibility as an amputee to be employed as a fireman by the defendant, the City of West Frankfort, Illinois. The plaintiff, Paul D. Melvin, filed his complaint seeking a declaratory judgment in the circuit court of Franklin County on March 12, 1979. In it plaintiff sought a ruling that section 10-2.1-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 10-2.1-6) is unconstitutional and void as it restricts the hiring of amputees for duties within municipal fire and police departments in the State of Illinois; he requested attendant remedies including his enforced hiring, back wages and other contingent employment benefits. The trial court denied all relief based upon the pleadings submitted and plaintiff appeals from that judgment. Additionally, Melvin seeks permission to amend his pleadings in this court in order to make a claim against West Frankfort pursuant to the Federal civil rights statute (42 U.S.C. § 1983 (1976)). Appellant asks us to determine whether the present refusal of employment is violative of article I, section 19 of the Illinois Constitution of 1970 which in pertinent part forbids discrimination against the physically handicapped unrelated to individual ability. Also presented are the allied issues of whether appellant was denied employment in violation of the due process and equal protection provisions of the constitutions of either the State of Illinois or the United States. Also raised is the contingent question of whether he is entitled to maintain an action for compensatory damages if it be determined that the municipality engaged in the enforcement of an unconstitutional statute. We reverse and remand.
The record in this cause is limited to the pleadings which consist of a "Complaint For Declaratory Judgment" with certain exhibits appended, defendant's response in the form of a combined motion to dismiss or in the alternative to strike portions of the complaint, and memoranda in support of and opposition to the defendant's motion. By order defendant's motion has been treated as a motion for judgment on the pleadings limited to the threshold question of the constitutional validity of section 10-2.1-6 as it has been applied to the plaintiff.
It can be ascertained from the facts asserted in the pleadings that Melvin applied to the Board of Fire and Police Commissioners of West Frankfort in hope of obtaining work as a regular duty fireman, submitting to the required physical and written examinations in the summer of 1978. He received satisfactory marks and would otherwise have been entitled to placement on an employment eligibility list had it not been for an opinion rendered by the defendant's city attorney. He was informed by letter of September 5, 1978, that he could not be placed on the list for the sole reason that section 10-2.1-6 (Ill. Rev. Stat. 1977, ch. 24, par. 10-2.1-6) forbade his employment. The statute, a subparagraph of the Illinois Municipal Code of 1961 concerned with the examination of applicants, applicant disqualifications, and the removal of employees of the various boards of fire and police commissioners, dictates that:
"The examinations shall be practical in character and relate to those matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek appointment. No person shall be appointed to the police or fire department if he does not possess a high school diploma or an equivalent high school education. The examinations shall include tests of physical qualifications and health. No person shall be appointed to the police or fire department if he has suffered the amputation of any limb unless the applicant's duties will be only clerical or as a radio operator." (Emphasis added.)
Although the complaint declares that plaintiff has suffered the amputation of one of his legs below the knee, it asserts that he has been able to perform the duties required of a fireman. This is said to be demonstrated by his successful completion of the examinations referred to and by his service as an auxiliary fireman for the defendant. Attached as an exhibit is a letter signed by West Frankfort Fire Chief Thomas Aaron stating that plaintiff's performance as a volunteer had been satisfactory and without limitation.
Appellant's counsel cites article I, section 19 of the Illinois Constitution of 1970 in the complaint alleging that its provisions invalidate the amputee legislation. The Illinois Bill of Rights requires that:
"All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer." (Ill. Const. 1970, art I, § 19.)
In count II counsel charges that the statutory provision and its application to the plaintiff violate the fourteenth amendment of the Federal Constitution by denying him due process and equal protection of the law. On May 1, 1980, the trial court held the statute constitutional under both the Illinois Constitution and the fourteenth amendment of the United States Constitution.
• 1 A motion for judgment on the pleadings admits as true the well-pleaded facts contained within the pleadings of the opposing party, as well as all fair inferences that may be derived from them. (A.A. Erickson Bros. v. Jenkins (1963), 41 Ill. App.2d 180, 188, 190 N.E.2d 383.) We must accept as fact what is evident from the pleadings, namely that the denial of employment is wholly based upon a positive statutory prohibition binding upon the cities and villages governed by the Municipal Code.
Upon first examining the merits of the case we see that section 10-2.1-6, when considered as a whole, serves primarily to delineate rules of eligibility for employment and procedures for hiring; among the former are age, education, health, and character qualifications. All of these categories are subsumed within the subject matter of employment practices. When enacted in 1967 the portion of section 10-2.1-6 here under attack must necessarily have been intended to insure quite literally that able-bodied and fully qualified persons were to be employed by municipal police and fire departments. The objective of protecting the health and safety of all within a given municipality would appear to have been the paramount consideration within legislative cognizance. Although now assailable, we may speculate that a presumption and inference were then made which placed in question the capacity of amputees to perform the rigorous duties such personnel may at any moment be called upon to execute. And perhaps the General Assembly deliberately chose to draw such an ineligible class so as to prevent the determination of individual ability on a case-by-case basis for the sake of administrative economy and efficiency. Whatever the underlying policy motivation, the statute as it is presently worded does not permit distinctions to be made. Neither does it act as a total and unqualified bar to employment as a provision is made which exempts clerical and radio dispatch work.
However, the legislature has repeatedly enacted and revised statutes relating to the employment eligibility of physically disabled persons since 1967. And since that time a new State constitution has provided such persons with a powerful franchise, one which is the basis of our present decision. For it is the express policy of this State that eligibility for employment be based upon individual capacity. To that end it has elected to prohibit distinctions in hiring handicapped individuals which are not related to the ability of a particular applicant to satisfactorily perform particular work.
• 2 In discerning constitutional will and legislative intent, courts> are guided by the same general principles of construction. (See Wolfson v. Avery (1955), 6 Ill.2d 78, 94, 126 N.E.2d 701.) Where the objective has been to determine the meaning and intent of a constitutional provision, courts> have long consulted the record of constitutional debate in order to give effect to the policy involved. (See People ex rel. Keenan v. McGuane (1958), 13 Ill.2d 520, 527, 532, 150 N.E.2d 168, cert. denied (1958), 358 U.S. 828, 3 L.Ed.2d 67, 79 S.Ct. 46.) Article I, section 19 was proposed and adopted at the 1970 Constitutional Convention. At the time of its ratification no other State constitution contained a similarly explicit and specific expression of policy. (Ill. Ann. Stat., Ill. Const. 1970, art. I, par. 19, Constitutional Commentary, at page 675 (Smith-Hurd 1971).) In our view, article I, section 19 is facially unambiguous in its application to the instant case. The extensive constitutional debate concerning this section reveals that language which would have permitted the General Assembly to later establish reasonable exemptions from the broad ban against discriminatory practices was proposed and reproposed without success. The delegates chose to adopt the existing unalloyed statement. 5 Record of Proceedings, Sixth Illinois Constitutional Convention 3678-79, 3684, 3686, 3687.
Even before the adoption of this constitutional provision, the General Assembly enacted legislation which arguably contradicts the statute here under attack. In 1969, under section 5 of "The White Cane Law" (Pub. Act 76-663, eff. August 6, 1969), it gave expression to the following policy:
"§ 5. It is the policy of this State that the blind, the visually handicapped and the otherwise physically disabled shall be employed in the State Service, the service of the political subdivisions of the State, in the public schools and in all other employment supported in whole or in part by public funds on the same terms and conditions as the able-bodied, unless it is shown that the particular disability ...