dissenting:
I do not believe the Civil Service Commission of the city of Harvey has the statutory authority to require residency of its classified service employees. I therefore dissent, and do so for the reasons stated in the appellate court decision. 54 Ill. App. 3d 21, 23-24.
Like the plaintiffs, I do not dispute the constitutionality of a residency requirement for civil servants. Nor do I dispute the prerogative of Harvey to enact such a requirement. There are sound policy reasons for it. My disagreement with the majority is that there has been an improper delegation of this responsibility to a statutory creature with a very limited competence. There is no presumption in favor of its regulations. A municipal civil service commission “must find in the statute its warrant for any authority claimed.” People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 343. Accord, Boner v. Drazek (1973), 55 Ill. 2d 279, 288. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551.
I see nothing in the Commission’s enabling statute (Ill. Rev. Stat. 1975, ch. 24, par. 10—1—1 et seq.) which might reasonably provide the Commission with the authority to promulgate the residency requirement. The majority, by reading together sections 10—1—5, 10—1—7 and 10—1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1—1—1 et seq.), concludes the Commission had specific authority to provide for a residency requirement. Section 10—1—5 authorizes the Commission to make rules for examinations, appointments and removals. Section 10—1—7 permits “specified limitations as to residence” for “applicants for offices or places in the classified service” (emphasis added). Section 10—1—18 provides that “no officer or employee in the classified civil service of any municipality who is appointed under the rules and after examination, may be removed or discharged *** except for cause ***.” There is nothing else the majority points to in article 10, division 1 (Ill. Rev. Stat. 1975, ch. 24, pars. 10—1—1 to 10—1—48) to support its position.
Section 10—1—7’s reference to residency limitation is quite clearly a reference to applicants only and not to persons in classified service. As the appellate court pointed out, controverting the majority’s reasoning “is the provision in section 10—1—18 of the Code that a person in classified service may be removed only for cause shown, and the further provisions in that section relating to mandatory retirement of firemen and policemen upon reaching an age prescribed by statute or municipal ordinance, in which situation the commission’s role is simply to oversee the retirement or discharge of that person. Since the legislature granted to the civil service commissions authority to deal with the question of the age of applicants for classified positions, but withheld such authority with regard to removal, it cannot be reasonably inferred that the grant of authority to the commissions to deal with the question of residency of applicants for such positions constituted also a grant of authority to prescribe residency requirements as a condition of continued classified service. No presumption of jurisdiction obtains in favor of a civil service commission (People ex rel. Hurley v. Graber), and no reasonable inference may be made from the pertinent portions of the Illinois Municipal Code upon which to predicate a conclusion that the legislature intended civil service commissions to adopt rules and regulations relating to residency as a cause for removal from classified service.” (54 Ill. App. 3d 21, 24.) For these reasons, I believe the appellate court decision should have been affirmed.