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Herbert v. Bd. of Fire & Police Comm'rs





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Plaintiffs Andrew K. Herbert (Herbert) and John A. Drezen (Drezen) filed a single action for (1) declaratory judgment that their service in the Illinois National Guard, and Drezen's service in the United States Army Reserve, be decreed "service in the United States Army;" and (2) a writ of mandamus ordering defendant Board of Fire and Police Commissioners of the City of Rolling Meadows (the Board) to apply preferential points allegedly earned from such military service to rankings on a police department promotional list. The Board filed a motion to strike and dismiss the complaint. After receiving memoranda from the parties and hearing oral argument, the circuit court granted the Board's motion and ordered the complaint stricken with prejudice.

In appealing this decision, Herbert and Drezen ask this court to decide whether service in the Illinois National Guard or the United States Army Reserve comes within the ambit of the statute which grants promotional preference to those having engaged in "a military or naval service of the United States." *fn1

Herbert and Drezen are members of the police department of the city of Rolling Meadows. Sometime in 1979, each man took a sergeant's eligibility examination. Herbert requested that he receive preference points pursuant to the quoted statute for his service in the Illinois National Guard for over 9 years ending in 1957. Drezen requested points under the same statute for his service in the Illinois National Guard from 1958 through 1963 and service in the United States Army Reserve during parts of 1963 and 1964. Herbert's request was denied outright; Drezen's was initially granted but was later rescinded. The final sergeant's eligibility list, published in October 16, 1979, listed Drezen in position 5 and Herbert in position 6. Apparently this left both below the cutoff level for promotion. On December 11, 1979, the instant action was instituted to contest these results.


• 1 Our resolution of this appeal will be dictated by our construction of the statutory provision involved and by application thereof to be specific facts of this case. The statute lacks a legislative history to guide our interpretation efforts. Consequently, our focus turns to other principles of statutory construction. The controlling principle in the present circumstances is that which directs words in a statute should be given their plain, commonly understood meaning in the absence of an indication of legislative intent to the contrary. Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 194, 381 N.E.2d 222; Miller v. Department of Public Aid (1981), 94 Ill. App.3d 11, 17, 418 N.E.2d 178.

When the statute under scrutiny is read precisely as it is worded, the following four requirements are discerned which an applicant must meet in order to be eligible for preference thereunder. The applicant must have:

(1) engaged in some type of military service or naval service "of the United States" at any time for a one year period;

(2) received an honorable discharge from such service;

(3) entered into inactive or reserve duty in such service at some point thereafter for any amount of time; and

(4) appeared on a qualified promotional eligibility roster.

In our view, as will be discussed, the applicant must meet each and every one of these entitlement requisites.

We note the existence of a Second District decision, Gaines v. City of Rockford Fire & Police Com. (1979), 71 Ill. App.3d 64, 389 N.E.2d 3, which addresses the same subject matter. That court construed the statute to primarily require the applicant to have been engaged in "active" military or naval service of the United States for a period of at least one year. No explicit rationale supporting the holding that the service need have been "active" was set forth. As a corollary qualification, either the applicant's honorable discharge from such active service or his entry into an "inactive status in the reserves" must have been shown, according to the Second District's reading of the provision. The court made no mention of the requirement that the applicant's name appear on a promotional eligibility roster.

Although nothing in the explicit language of the statute indicates that the service required must have been "active" service, and despite the absence of any rationale to support the Gaines holding that such is in fact the intent of the legislature, we agree with that segment of Gaines. First, we point to the antecedent statutory provisions to the present version. Upon enactment in 1945, the promotional preference provision (then combined with the veteran's preference provision now found at Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-8) referred to specific time frames, all of which were periods in which the United States was at war, in delimiting the type of "military or naval service of the United States" which was a requisite to eligibility for the statutory benefit. (See 1945 Ill. Laws 520-21, ยง 14-6.2) The section emerged in its present form, referring only to service "at any time for a period of one year," in 1969. (Ill. Rev. Stat. 1969, ch. 24, par. 10-2.1-10.) In our opinion, this history of the provision shows that the legislature was and continues to be concerned with providing benefits to those who have served the United States in "active service." Previously, such active service must have occurred during certain specified years; as presently structured, the statute requires only active service on one year's duration performed at any time. Second, a construction which allowed any type of service, as opposed to only active service, would create an anomaly in the statute. Conceivably, under such a construction, an applicant who engaged only in an inactive service of the United States for one year and who was honorably discharged from ...

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