Appeal from the Circuit Court of Du Page County; the Hon. John
Teschner, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
This appeal presents the issue of whether a police officer in a municipality subject to division 2.1 of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-1 et seq.) is entitled to veterans' preference points on an examination for promotion to the rank of sergeant under section 10-2.1-11 of the Code (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-11) for the period between his induction into the military service of the United States and the time he reported for duty.
Plaintiff, William Blazejewski, was inducted into the United States Marine Corps on January 26, 1966. He reported for duty on April 4, 1966. Two years later, on April 3, 1968, he was transferred to the Marine Corps Reserve, and subsequently received an honorable discharge on January 26, 1972.
Plaintiff later became a police officer for the village of Hinsdale. He and other police officers for the village took an examination for promotion to the rank of sergeant. On December 18, 1982, the board of fire and police commissioners of the village (the board) posted a preliminary eligibility list for such promotion which rated the officers according to the sum of their composite score on the examination and their seniority points. That list was subject to claims for veterans' preference points. Plaintiff was fourth on this preliminary list, 3.26 points behind the third candidate for promotion. Promotions were to be made from the three officers with the highest rating on the final list.
Section 10-2.1-11 provides, in pertinent part, that a police officer who is a veteran as described in section 10-2.1-10 (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-10) is entitled to additional points in the amount of "7/10 of one point for each 6 months or fraction thereof of military or naval service not exceeding 30 months." The parties do not dispute that the plaintiff was a veteran as described in section 10-2.1-10. Six days after the preliminary eligibility list was posted, the plaintiff submitted a written claim for 3.5 veterans' preference points, which would have made him third on the final eligibility list. The board, however, allowed him only 2.8 points for the 24 months of service he performed after reporting for duty and before being transferred to reserve duty. The board gave him no points for the period between his induction and the time of his reporting for duty. As a result, the plaintiff remained fourth on the final eligibility list which was posted December 29, 1982.
On June 17, 1983, the plaintiff filed an action against the board, seeking a declaratory judgment that he was entitled to 3.5 veterans' preference points, and for a writ of mandamus directing the board to award that number of points.
The board's answer admitted the facts alleged in the petition and set forth above, with the exception of the dates of the plaintiff's induction and honorable discharge. The answer affirmatively alleged that the plaintiff commenced active duty with the Marine Corps on the date he reported following his induction, that he concluded his active duty on the date he was transferred to the Marine Corps Reserve, and that he, therefore, had a total of two years of "active service." Attached to the board's answer and incorporated therein was a photocopy of the official armed services' report of the plaintiff's discharge from the Marines, which stated that the plaintiff had two years, no months, and no days of "active service."
Plaintiff subsequently filed an affidavit attesting that he was inducted on January 26, 1966, and moved for summary judgment. The board did not file any counteraffidavits, but a motion for judgment on the pleadings. The trial court entered an order denying the plaintiff's motion for summary judgment, granting the board's motion for judgment on the pleadings, and plaintiff has brought this appeal.
Plaintiff argues that the controversy is controlled by People ex rel. Dietz v. Sheehan (1959), 23 Ill. App.2d 122, 162 N.E.2d 258, which involved section 10 1/2 of "An Act to regulate the civil service of cities" (Ill. Rev. Stat. 1957, ch. 24 1/2, par. 49), a statute that was repealed upon the enactment of the Illinois Municipal Code. (1961 Ill. Laws 576.) Section 10 1/2 awarded veterans' preference points to certified civil service employees in connection with promotional examinations. As applicable to Dietz, the statute provided for the award of "six-tenths of one point for each 6 months or fraction thereof of military or naval service not exceeding 30 months." Dietz was a police officer for the city of Chicago who took a promotional examination for the rank of sergeant. He sought an award of 3.0 veterans' preference points under the statute but was granted only 2.4 points. He then filed an action for a writ of mandamus directing the civil service commission of Chicago to award him the points he requested. At issue was whether the period between his induction into the army and the time he reported for duty should be considered "military service" for which he was entitled to points under the statute. The appellate court held that it was, and, in reaching that conclusion, stated:
"From the moment of induction he was a member of the Armed Forces and subject to the jurisdiction of the military. [Citations.] The fact that an inductee is given a two-week period before reporting for duty in no way alters his status as a member of the Armed Forces or as being in the military service. The changeover from civilian to military status occurs at the moment of induction. The period between induction and reporting for service is comparable to a period of leave during which a member of the Armed Forces remains in military service although he goes about his private business or pleasure. [Citation.]" (People ex rel. Dietz v. Sheehan (1959), 23 Ill. App.2d 122, 124.)
The court also noted that the statute did not use the words "actual service" found in a rule of the civil service commission construed in another case. 23 Ill. App.2d 122, 125.
Other veterans' preference statutes and rules have been construed in similar fashion. In Hurley v. Crawley (D.C. Cir., 1931), 50 F.2d 1010, the court held that a man inducted into the military service, who reported for duty as ordered, who helped move cots around in the military hospital, but who was ultimately found physically disqualified for military service, was a "soldier" within the meaning of the applicable provision. In reaching that conclusion, the court placed considerable emphasis on the fact that upon induction, the drafted individual was subject to military punishment by military courts. See also Donohue v. Huie (1940), 259 App. Div. 645, 20 N.Y.S.2d 347, aff'd (1941), 285 N.Y. 557, 33 N.E.2d 241 (reversing a decision of the trial court (Donohue v. Huie (1940), 173 Misc. 362, 17 N.Y.S.2d 962) which had held that a person similarly situated was not "an honorably discharged soldier * * * having served as such in the Army * * * of the United States during * * * the World War" (17 N.Y.S.2d 962, 963) within the meaning of the applicable veterans' preference law); and Lore v. Forbes (1939), 173 Misc. 1066, 19 N.Y.S.2d 631, aff'd (1940), 259 App. Div. 806, 19 N.Y.S.2d 655. But see Dunn v. Commissioner of Civil Service (1933), 281 Mass. 376, 183 N.E. 889 (holding that a similarly situated person had not "served" in the army under the applicable veterans' preference provision); and City of New York v. City Civil Service Com. (1983), 60 N.Y.2d 436, 458 N.E.2d 354.
The board urges that we not follow Dietz, arguing that the rationale for its holding has been undermined by two subsequent Illinois decisions, viz, Gaines v. City of Rockford Fire & Police Com. (1979), 71 Ill. App.3d 64, 389 N.E.2d 3, and Herbert v. Board of Fire & Police Commissioners (1981), 97 Ill. App.3d 1138, 423 N.E.2d 1298. Those cases involved a construction of section 10-2.1-10 which, as noted above, defines who is a veteran entitled to preference points under section 10-2.1-11. It should be remembered that the board is not challenging plaintiff's status as a veteran under section 10-2.1-10, but that it is arguing that Gaines and Herbert undermined the rationale of Dietz. Section 10-2.1-10 provides:
"Every member of the classified service of the fire or police department of any municipality coming under the provisions of this Division 2.1 who was engaged in a military or naval service of the United States at anytime for a period of one year and who was honorably discharged therefrom, who is now or who may hereafter be on inactive or reserve duty in such military or naval service, not including, however, persons who were convicted by court-martial of disobedience of orders where such disobedience consisted in the refusal to perform military service on the ground of alleged religious or conscientious objections against war, and whose name appears on existing promotional eligibility registers or any promotional eligibility register that may hereafter be created as provided for by this Division ...