It is fundamental that administrative agencies cannot extend the substantive provisions of a legislative enactment or create substantive rights through exercise of their rulemaking powers. Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 583, 315 N.E.2d 573, 576. The issue then becomes what are the statutory functions of the merit commission and in what areas has regulation been upheld as incident to carrying out those statutory functions.
An express grant of power to an administrative body or officer includes the authority to do all that is reasonably necessary to execute that power or to perform the duty specifically conferred. Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App.3d 341, 347, 365 N.E.2d 667; Meana v. Morrison (1975), 28 Ill. App.3d 849, 854, 329 N.E.2d 535; Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 583, 315 N.E.2d 573. Section 3-7015 of the Merit Act provides that the Merit Board "shall investigate the enforcement of this Division and its rules, and the conduct and action of the appointees herein provided for."
Administrative agencies possess only the authority expressly conferred upon them by statute, or that which by fair implication and intendment is incident to the authority expressly conferred for the purpose of accomplishing the objectives of the agency. Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 315 N.E.2d 573. Plaintiffs argue that section 9 of the Sheriff's Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 159) clearly refers only to the ability of the commission to set up rules for itself, not for the operation of the sheriff's office, while the commission contends that this language sanctions the subject rules.
( Peoples Gas Light Coke Co. v. Illinois Commerce Comm'n (1987), 165 Ill. App.3d 235, 520 N.E.2d 46.) This limit on the powers of an administrative agency applies with special force to civil service rules because these are deemed part of the employment contract. Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 315 N.E.2d 573. Whether the Code authorized the merit promotions, of course, depends on an interpretation of the Code.
• 2 The authority of the Department to act as it did in the instant case may be implied from the terms of the Act. ( Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 583, 315 N.E.2d 573, 576.) Section 2a of the Act provides in pertinent part:
An administrative body, such as the Board exercises purely statutory powers and must find within its enabling statute the authority to exercise the power it claims. ( Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 315 N.E.2d 573.) In Fahey this court stated at pages 583, 584:
The plaintiffs, on the other hand, argue that under accepted rules of statutory construction the fact that in some instances the legislature has specifically provided a prohibition on political activities but has not done so under section 58.1 of "An Act to revise the law in relation to counties" is strong evidence that the legislature did not intend to empower the Commission to promulgate such a rule. Both parties rely on the case of Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 315 N.E.2d 573, in support of their respective positions. In the course of holding that the Cook County Merit Board had no authority to set a mandatory retirement age, the Fahey court reasoned:
The agency has only such authority as is conferred by express provision of law or is found, by fair implication and intendment, to be incident-to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which the agency was created. Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 583, 315 N.E.2d 573, 576. • 2 While there is no express authority in the Personnel Code authorizing Rule 9.
Thus, the Civil Service Commission has no statutory authority to subject the officers to examinations to retain their positions. Fahey v. Cook Co. Police Dep't Merit Board, 21 Ill.App.3d 579, 315 N.E.2d 573, 577-78 (1974) (rules, which were adopted, were beyond Board's authority and therefore void.). Thus, we hold that the district court properly granted summary judgment to the officers, excluding Kokaska.
Therefore, we remand these cases to the superior court with instructions to remand them to the Commission for hearings in accordance with the Surety Fund Claims Act. See also Kauer v. Amemiya, 56 Haw. 182, 532 P.2d 664 (1975) (per curiam) (Director of Consumer Protection Agency was without power to promulgate rules under the consumer protection statute); Fahey v. Cook County Police Dep't Merit Bd., 21 Ill. App.3d 579, 315 N.E.2d 573 (1974) (Police Merit Board had no authority to promulgate rule on compulsory retirement age). See generally, 1 K. Davis, Administrative Law Treatise §§ 5.01-5.