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Fagiano v. Police Board

OPINION FILED OCTOBER 4, 1983.

FRANK FAGIANO, APPELLEE,

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., APPELLANTS. RICHARD W. BASTIAN ET AL., APPELLEES,

v.

THE PERSONNEL BOARD OF THE CITY OF CHICAGO ET AL., APPELLANTS.



Appeals from the Appellate Court for the First District; heard in that court on appeals from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1983.

These appeals, at one time consolidated but severed before oral argument, are treated together here for purposes of opinion. The cases involve the validity of a residence requirement for certain municipal employees contained in an ordinance of the city of Chicago, and the validity of a Chicago police department city residence rule based upon the ordinance. In Bastian v. Personnel Board, No. 57315, the personnel board of the city ordered the discharge of two firemen, Richard Bastian and Norman C. Byttow, and an engineering technician of the city's water department, John Green, for violating chapter 25, section 30, of the Chicago Municipal Code, which requires civil service employees to be "actual residents" of the city. The circuit court of Cook County, reviewing the decisions upon individual petitions by Bastian, Byttow and Green for writs of certiorari, reversed the personnel board's decisions. The circuit court considered that the decisions were not contrary to the manifest weight of the evidence, but held that the ordinance was unconstitutionally vague. The three cases were consolidated for appeal and the appellate court affirmed. 108 Ill. App.3d 672.

In Fagiano v. Police Board, No. 57313, a Chicago police officer, Frank Fagiano, was discharged for violations of several police department rules, under one of which he was required "to actually reside" within the city limits. The circuit court of Cook County, acting upon a complaint by Fagiano for administrative review, sustained the Chicago police board's findings that he had violated the residency rule and another rule which is not considered on this appeal. The appellate court, however, in a Rule 23 order (87 Ill.2d R. 23), based upon its decision in Bastian, reversed the portion of the judgment sustaining the police board's findings. (108 Ill. App.3d 1205.) We granted petitions for leave to appeal the Bastian and Fagiano judgments under Rule 315 (87 Ill.2d R. 315) filed by the defendants, who are the boards and various city departments and officers, and allowed the defendants' motion to consolidate those decisions for this appeal.

The ordinance that the appellate court held unconstitutionally vague 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."

Rule 25 of the Chicago police department, which the appellate court also held to be invalid, similarly requires officers "to actually reside within the corporate boundaries of the City of Chicago."

The appellate court, in its opinion in Bastian, stated that the word "residence," which may have more than one meaning in the law depending upon the context of its use, was too vague to guide administrative agencies in applying the ordinance. The court specifically pointed to the difficulty in applying the ordinance where the employee has two dwellings, one in the city and one elsewhere. To illustrate the need for greater clarity or specificity, the court pointed to eight other decisions of the personnel board involving firemen charged with violating the ordinance. The appellate court said that the actions of the board were not consistent in those cases, and on this basis the court held that the ordinance was not only unconstitutionally vague, but also had been applied in such a manner as to violate the plaintiffs' due process rights.

We judge that the appellate court erred.

A legislative enactment is unconstitutionally vague if its terms are so indefinite that "persons of common intelligence must necessarily guess at its meaning and differ as to its application." (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 299-300, appeal dismissed (1980), 444 U.S. 1062, 62 L.Ed.2d 744, 100 S.Ct. 1001.) We have recently observed: "Statutes enjoy a strong presumption of constitutionality. To hold a statute unconstitutionally vague, its terms must be so ill defined that their meaning will be determined `by the opinions and whims of the trier of fact rather than any objective criteria.' (People v. La Pointe (1982), 88 Ill.2d 482, 499.)" (People v. Greene (1983), 96 Ill.2d 334, 338-39.) And we have said: "This court has held that a statute does not violate the due process clauses of the United States or Illinois constitutions, on grounds of vagueness, if the duty imposed by the statute is prescribed in terms definite enough to serve as a guide to those who must comply with it." Chastek v. Anderson (1981), 83 Ill.2d 502, 507.

It is true, as was pointed out in Reese & Green, That Elusive Word, "Residence," 6 Vand. L. Rev. 561 (1953), which the plaintiffs have cited, that "residence" as a legal term, while commonly used in statutes, does not, unlike "domicile," have a fixed and constant meaning. The authors show that it is a variable term, the meaning of which courts> must ascertain from the purposes of the statute or ordinance, although in most cases it has been construed to be synonymous with domicile (6 Vand. L. Rev. 561, 561-62.) The authors provide examples of the term's being interpreted differently in various contexts, such as in statutes concerning divorce jurisdiction and income taxation.

This, of course, does not require a conclusion that the use of the word here is unconstitutionally vague. Words may differ in meaning according to the context of their use. This does not mean that in every context the meaning of the word is unclear; the meaning may be clear in the particular context. We consider that in the context here "residence" was intended to be synonymous with domicile, which has been defined as "the place where a person lives and has his true, permanent home, to which, whenever he is absent, he has an intention of returning." Peirce v. Peirce (1942), 379 Ill. 185, 192.

The plaintiffs' briefs refer to decisions in various areas where courts> stated that "residence" and its variations were without a fixed meaning. (Lister v. Hoover (7th Cir. 1981), 655 F.2d 123, 128 (statute concerning State university tuition); Myers v. Commissioner (4th Cir. 1950), 180 F.2d 969, 971 (tax statute); United States v. Stabler (3d Cir. 1948), 169 F.2d 995, 998 (statute governing venue for denaturalization proceedings); Hughes v. Illinois Public Aid Com. (1954), 2 Ill.2d 374, 380 (public aid statute); Rosenshine v. Rosenshine (1978), 60 Ill. App.3d 514, 517 (domestic relations statute); Stein v. County Board of School Trustees (1967), 85 Ill. App.2d 251, 255, aff'd (1968), 40 Ill.2d 477 (statutes governing the right to vote).) In none of those decisions, however, was the statute containing the terms held to be unconstitutionally vague. The plaintiffs do not cite any decision holding a statute unconstitutionally vague through use of the word "residence."

Reese and Green themselves note that residence in a State or a subdivision of a State is a common statutory requirement for eligibility to hold office, and in that context, the term is generally regarded as synonymous with domicile. 6 Vand. L. Rev. 561, 571-72.

Courts> considering laws requiring police officers or firemen to reside near or within a governmental unit have found them adequately clear and defined to be understood and interpreted. (See Annot., Validity, Construction, and Application of Enactments Relating to Requirement of Residency Within or Near Specified Governmental Unit as Condition of Continued Employment for Policemen or Firemen, 4 A.L.R.4th 380, 405-07 (1981).) Those courts> have judged the enactments to require the police officers and firemen to establish their permanent homes within the prescribed area. See Miller v. Police Board (1976), 38 Ill. App.3d 894 (police department rule that officers reside in the city meant that officers must have their permanent abode or home there, and that requires their physical presence and intent to make that location their permanent home); Mercadante v. City of Paterson (1970), 111 N.J. Super. 35, 40, 266 A.2d 611, 614, aff'd (1971), 58 N.J. 112, 275 A.2d 440 (statutes requiring municipal officers to reside in the municipality, and permitting policemen and firemen to hold their offices during their residence in the municipality, required them to have their "real and principal residence, in short, domicile," in the municipality, so as to foster the identity with the community which may well have been the legislature's goal); Contento v. Kohinke (1973), 42 A.D.2d 1025, 348 N.Y.S.2d 392 (town resolution that police officers must reside in the town requires the officer to have a continual or extended physical presence at an abode in the town, not simply that he have one of his locations there at which he spends time ...


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