dissenting:
The opinion adopted by the court gives sanction to a statute which, to me, clearly embodies an unlawful delegation of legislative power and results in an unsettling and crushing blow to the civil service system.
By the enacting clause of the amendment under scrutiny, the legislature has fixed the age of 67 years as the compulsory retirement age for sanitary district employees. Standing alone, the enactment is unobjectionable, for, as correctly stated in the majority opinion, it is well established that the legislature may constitutionally determine a mandatory retirement age for public employees. To the enacting clause, however, the legislature had added the proviso that the sanitary district “may employ any former employee on a temporary basis after he attains 67 years of age and prior to the attainment of 72 years of age if an annual physical examination conducted by a physician designated by such corporate authorities indicates that such employee is physically fit to continue in his employment, and an employee so continued in service on a temporary basis may, at his option, as provided in Section 15 of this Act, make contributions for services rendered prior to 70 years of age.” Ill. Rev. Stat. 1957, chap. 42, par. 382.26. (Emphasis supplied.)
While it may be conceded that the hiring of temporary employees is a matter of local concern, and that the legislature could, under proper circumstances, constitutionally delegate the power to the district to employ retired employees on such a basis, the fallacy of the majority opinion is that it construes the proviso without regard to the enactment it modifies. Ordinarily the office of a proviso is to qualify, restrain or except something from the generality of the enacting clause. (In re Day, 181 Ill. 73; Chicago, Burlington and Quincy Railroad Co. v. Doyle, 258 Ill. 624.) Thus it is held that provisos should be strictly construed, (Doubler v. Doubler, 412 Ill. 597,) that they should be read and applied so as to accomplish the purpose of the law, (Winner v. Kadow, 373 Ill. 192,) and that the enactment and the proviso should be construed together. (See: Aiken v. Will County, 321 Ill. App. 171, leave to appeal denied 385 Ill. 630.) When these familiar rules of statutory construction are applied in this case it becomes manifest that the entire amendment unlawfully allows the true determination of the time of retirement to rest in the uncontrolled discretion of the corporate authorities. To avoid this result, the majority opinion has treated the enactment and the proviso as separate.and unrelated laws.
Reading the enactment and proviso together, it is clear that an employee, although presumably retired at age 67, may, by virtue of the proviso, be continued in his employment up to age of 72 years, or for an additional five years. This continuation of employment is not based upon public need, emergency, or other grounds upon which classification or discrimination might constitutionally be justified, but solely upon an arbitrary power of selection vested in the corporate authorities of the sanitary district. It is true that an employee must be physically qualified to be continued in his employment, but such requirement in no manner limits the district’s power of selection. As the statute is drawn, the necessity of taking a physical examination applies only to those employees selected for continuation in the first instance, and there is no requirement that 67-year-old employees be retained even though successful in the examination. Under this system one employee may be continued in service for an additional five years, if he is fortunate enough to be selected, yet another employee may be denied the same opportunity even though equally qualified by health, experience, and skill.
To me the statute under consideration cannot be distinguished in effect and principle from the one struck down in Malloy v. City of Chicago, 365 Ill. 604. There the statute provided that police or firemen who had attained the age of 63 years “shall be retired from active service upon the order of the head of the police or fire department as the case may be,” and this court held it was an invalid delegation of legislative authority inasmuch as it vested the department heads with discretion to apply it to one person and to refuse its application to another in like circumstances. Here the statute fixes the retirement age for sanitary district employees at age 67, but the proviso permits the corporate authorities to continue employment up to age 72. They may permit all employees reaching 67 years to continue, they may permit a few, or they may permit none. Likewise, they may permit employment to continue only to such year as they choose between ages 67 and 72. Clearly, therefore, the corporate authorities are given an uncontrolled discretion to determine at what precise age after age 67 that any of its employees will actually retire. This, as pointed out in the Malloy case, is a wholly unlawful delegation of legislative authority.
With little analysis, and with no regard for much of the language of the statute, the majority opinion interprets the proviso only as permitting the district to employ retired employees on a temporary basis. Any distinction between an employee’s status before age 67 and after that age is a pure fiction. While the proviso does employ the word “temporary,” it speaks in terms of such an employee being physically fit “to continue in his employment,” and states that an employee “so continued in service” may make contributions to the annuity fund. When the words employed are given their plain meaning, it is apparent that the proviso does not anticipate re-employment of skilled workers as need may require, but a mandatory retirement at age 67 for some, and a continuation of the employment of others at the unbridled discretion of the corporate authorities. Moreover, it escapes me how it can be concluded that the enactment “unconditionally” terminates the civil service tenure of employees reaching the age of 67 years, when the proviso permits them to make contributions to the annuity fund during the continuation of their employment, up to age 70. Most certainly these contributions are not gratuities and are paid and received in anticipation of larger benefits resulting from longer tenure.
Furthermore, it is my opinion that extending the true and actual retirement date of an employee under the guise of “temporary” employment, or “continuance” in employment, results in irreparable harm to the civil service system. Courts of this State have expressly stated that one of the fundamental purposes of civil service laws is to protect municipal employees by assuring them against discharge without cause, (McArdle v. City of Chicago, 216 Ill. App. 343,) by removing their employment from political pressure, (Board of Library Directors v. Snigg, 303 Ill. App. 340,) and by providing that appointments are made on fitness and merit. (People ex rel. Akin v. Kipley, 171 Ill. 44.) By sanctioning a statute that makes such an employee’s retirement date depend on selection by the corporate authorities, this court has departed from these precepts. With this court’s condonation of the present statute as a guide, it is neither impossible nor improbable that any municipal corporation employing the civil service system could seek and obtain from the legislature a mandatory retirement age as low as 50 years, thus giving the corporate authorities even greater latitude in maintaining an arbitrary control over its civil service employees through the device of temporary employment. Under such a system, towards which the present statute represents a step, public employment would once more become dependent upon the forces and chances of political tides.
I reiterate that I do not say that the legislature may not authorize the temporary employment of retired employees in a proper case, such as where there is a shortage of skills or the public convenience and necessity demands it. The present statute, however, seeks only to permit a continuation of employment beyond retirement age, and selection for such employment is made to relate to the whim and uncontrolled discretion of the corporate authorities, rather than to merit, skill or public need. Nor do I deny that the legislature, having created the civil service system, has the power to change the laws affecting the system. It may not, however, ignore constitutional limitations and delegate the legislative authority as it has done in this case. On this ground, the decision of the court below should be affirmed.
Mr. Justice Bristow joins in this dissent.