dissenting:
I respectfully dissent because I find the wording of the Police Department rule on which Lieutenant Miller’s discharge was based too vague and indefinite to deal adequately with a police officer who maintains two homes, one of which is outside Chicago and within easy commuting distance. The rules of conduct of the Police Department at the time charges were preferred against Lieutenant Miller provided: “Prohibited acts include: Rule 24 Failure to reside within the corporate boundaries of the City of Chicago.”
In view of shorter workweeks and better transportation, it is not uncommon for people, including police officers as well as other public employees, to have two homes within commuting distance of each other. The Supreme Court in People v. Carman (1943), 385 Ill. 23, 27, 52 N.E.2d 197, pointed out that the word “reside” is “defined as abiding in a place; one who resides” and that “It is a synonym of live, dwell, abide, sojurn, stay or lodge.” I do not see how it can be seriously disputed that the respondent was dwelling, staying or lodging at his Harlem Avenue apartment in Chicago.
The Police Department requirement that an officer reside in Chicago was adopted for purposes entirely different than the residence determinations in the cases relied on by the majority. Those cases dealt with inheritance rights, registration for voting, right to receive public aid and the jurisdiction in which one may seek a divorce. None of those cases hold that a person may not regularly and frequently absent himself from his domicile or residence in the State of Illinois or in any city in the State. For example, in Garrison v. Garrison (1969), 107 Ill. App. 2d 311, 246 N.E.2d 9, a woman who went to Florida every fall, stayed there throughout the winter in a home she and her husband owned and whose children went to school in Florida was regarded as a resident of Kane County, Illinois, for the purpose of seeking a divorce. The court pointed out that, “The word ‘residence’ may have a variety of meanings depending upon the context in which it is used.” (107 Ill. App. 2d 311, 314.) In In re Estate of Quinn (1936), 283 Ill. App. 597, a widow was held to be “residing in this state” for the purpose of receiving a widow’s award even though during her entire 8-year marriage to her deceased husband she had lived with him in Ireland and she had never at any time in her life been physically present in the United States. The facts of the cases the majority relies upon have no relevance to the reason the Police Department requires officers to reside in Chicago, and applying the language of those cases dealing with domicile and residence to the Police Department rule before us in this case does not supply guidelines for dealing with the reality that some police officers may maintain a dwelling or home in Chicago and a second dwelling or home within commuting distance of Chicago.
The rationale for the Police Department rule is threefold: It is to have police support the city by which they are employed with their presence, their money, their taxes, and their license fees as well as to vote in the city. It is also to have police officers available in Chicago in the event of an emergency. Finally, the knowledge a police officer acquires of his own neighborhood by living in it may prove useful in solving crimes. Notwithstanding its purpose, salutary as it may be, the rule as it read at the time Lieutenant Miller was charged with violating it, did not prevent a police officer from maintaining a second home outside the city and spending his offdays and several nights or weeks a month there.
Even the presence of a police officer’s wife with him in Chicago during the days he is in the city does not guarantee that they well not spend much of their time in a second home outside the city. The difficulty with the rule is that it failed to recognize this pattern of living. A public employee is entitled to have the rules of conduct applicable to him defined so that they are clear on their face without the need to refer to case law. For that reason, I believe that unless redrafted to notify police officers in a precise manner which clearly explains what elements the Police Board will look to in determining where a police officer resides and under what circumstances an officer may use a second home outside the city, the rule is incapable of fair enforcement.
The fact the Lieutenant Miller spent much of his time in a home a short distance outside Chicago owned by a land trust of which his wife was beneficiary and in which she resided during the 2-month period in question with one of his three daughters and that he paid the expenses of that home does not establish that Lieutenant Miller did not reside in Chicago within the requirements of the rule. In view of the absence of any explanation in the rule of the meaning of “reside,” I do not believe the Police Board has demonstrated by the manifest weight of the evidence that Lieutenant Miller did not reside at his Harlem Avenue address even though he may have maintained that dwelling for the purpose of complying with the rule. If intention is controlling, it appears clear that Lieutenant Miller intended to reside in Chicago so that he would be in compliance with the rule.
The majority opinion by referring to the residence of his wife and daughter in Villa Park as the strongest evidence that Lieutenant Miller’s permanent residence is there has the effect of requiring that not only must an officer reside in Chicago, but his wife and children must also live in the city. As I read the majority opinion, there is no way an officer could reside in Chicago within the meaning of the rule unless his wife and children also lived in Chicago, except if he was separated from his wife. If that is the intention of the rule, the Police Board rather than this court should be the authority to draft a rule clearly stating that. Apparently the Police Board itself regarded its rule as inadequate because after charges were preferred against the defendant the rule was amended by inserting the word “actually” before the word “reside.” I would affirm the circuit court with the recommendation to the Police Board that it amend its rule to set forth in a clear and specific manner the circumstances, if any, under which a police officer may own and occupy a second home outside the city.