Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
This is a consolidated appeal involving three city employees who were discharged for violating the city residence requirement. The circuit court reversed the Personnel Board's decisions in the three cases, holding the ordinance to be unconstitutionally vague. *fn1 Defendant Personnel Board appeals from that ruling.
The ordinance in issue is chapter 25, section 30 of the Chicago Municipal Code, which provides:
"All officers and employees in the classified civil service of the City shall be actual residents of the City. Any officer or employee in the classified civil service of the City who shall fail to comply with the provisions of this section shall be discharged from the service of the City in the manner provided by law." (Emphasis added.)
The factual situation in each case varies, but we need not discuss the evidence at length because the sufficiency of evidence is not material to the constitutional issue raised. The three plaintiffs, Richard W. Bastian, Norman C. Byttow, and John Green, are similarly situated with respect to the administration of the ordinance and we will describe a composite of their circumstances to provide a backdrop for our legal analysis.
All three plaintiffs were long-term city employees at the time they were discharged for violating the ordinance. Bastian and Byttow had been firemen for over 20 years and Green had worked for the water department for over 25 years. All are legally separated from their wives. Plaintiffs own, in joint tenancy with their estranged wives, homes outside of Chicago where the wives and children live. Plaintiffs spend some time at the suburban homes, to visit their children or to make repairs, and they also pay some or all of the household expenses and child support or maintenance.
Plaintiffs also rent apartments in Chicago and are registered to vote there. During their hearings before the Board, Bastian and Byttow offered evidence of other substantial connections to Chicago and had numerous witnesses testify in corroboration. Green's connection in Chicago appear weaker than those of the other two plaintiffs. *fn2
Defendants' evidence on the charges against plaintiffs consisted of investigators' reports involving surveillances of their homes and canvasses of their neighbors. In each case, the suburban homes and the Chicago apartments were watched on several different dates in the early mornings. Evidence indicated that on more than one occasion, each plaintiff was observed leaving the suburban home in a car at approximately 6 or 7 a.m., on days that he reported for work. Investigators also testified that they did not observe plaintiffs enter or leave their Chicago apartments on the occasions that the surveillance was conducted there. The investigators further testified as to the results of canvasses they conducted of the plaintiffs' neighbors. Typically, the investigators would testify that one or more of the suburban neighbors recognized a photograph of the plaintiff but few if any persons from the Chicago apartment building could identify the photographs.
The Personnel Board in each case ruled, without specific findings, that the evidence supported the charges. After reviewing the proceedings the trial court reversed, holding that the ordinance was unconstitutionally vague. The court further held that if the reviewing court disagreed as to the constitutionality of the ordinance, the decisions were not against the manifest weight of the evidence.
This case illustrates how the "plain meaning" of words can be the subject of extended and exhaustive debate. Defendants argue that the term "actual resident" has a common meaning, generally understood by the public (but apparently not so clear to lawyers). Additionally, they contend that the term "residence" has acquired a definite legal meaning through the case law, and therefore puts persons on notice of what is required. To support their position that the ordinance is not constitutionally vague they cite several cases which have construed "residence" as requiring that a person have a physical presence in a particular locale plus the intent to make that place his permanent abode. (Hughes v. Illinois Public Aid Com. (1954), 2 Ill.2d 374, 380, 118 N.E.2d 14; Miller v. Police Board (1976), 38 Ill. App.3d 894, 349 N.E.2d 544.) They further contend that the modifier "actual" strengthens the definition by eliminating the possibility of a constructive or sham residence.
Plaintiffs recognize that the above definition of residence, which equates with "domicile," has been employed by the courts>; however, they point out that the legal definition of residence varies according to its context. A person can only have one domicile, or permanent abode, at a time; however, he may have several residences. See United States v. Stabler (3d Cir. 1948), 169 F.2d 995, 998; Reese & Green, That Elusive Word, "Residence," 6 Van. L. Rev. 561 (1953); see also Lister v. Hoover (7th Cir. 1981), 655 F.2d 123, 128 ("With apologies to Gertrude Stein, a resident is not a resident is not a resident. Resident status necessarily varies with the state program at issue.").
The trial court, quoting from Black's Law Dictionary, agreed with plaintiffs that residence and domicile, though closely related, have different legal meanings and that residence is susceptible to more than one meaning. Accordingly, the court struck down the ordinance for vagueness.
• 1-3 We are aware of no Illinois cases to date that have squarely considered this constitutional challenge to the ordinance. The constitutional permissibility of requiring city employees to live in Chicago is not questioned; nor is it seriously doubted that the drafters of the ordinance intended for city employees to establish permanent homes in Chicago rather than sham residences. *fn3 The due process infirmity of the ordinance, however, lies chiefly in its application; the lack of standards which allows for arbitrary and discriminatory enforcement. "[A] provision not objectionable on its face may be adjudged unconstitutional because of its effect and operation." (16 Am.Jur.2d Constitutional Law sec. 802, at 948 (1979).) "Not only the final purpose of the laws must be considered * * * but the means of its administration * * *." *fn4 (16 Am.Jur.2d Constitutional Law sec. 228, at 665 (1979).) Although an agency's interpretation of its rules must be accorded substantial discretion (Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App.3d 971, 320 N.E.2d 371) the legislative body cannot give an agency "power in its absolute and unguided discretion to apply or withhold application of the law or to say to whom a law shall or shall not be applicable." (People v. Tibbitts (1973), 56 Ill.2d 56, 59, 305 N.E.2d 152, 155.) Therefore, due process is violated if a ...