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People Ex Rel. Hurley v. Graber

OPINION FILED JANUARY 18, 1950

THE PEOPLE EX REL. STEPHEN E. HURLEY ET AL., PETITIONERS,

v.

JOSEPH A. GRABER ET AL., RESPONDENTS.



ORIGINAL PETITION for mandamus.

PER CURIAM:

Rehearing denied March 20, 1950.

The People of the State, on the relation of the three members of the civil service commission of the city of Chicago, the commissioner of police, the comptroller and the treasurer of the city of Chicago, filed in this court an original petition for a writ of mandamus, directing the defendants, Hon. Joseph A. Graber, a judge of the superior court of Cook County, and Hon. Cornelius J. Harrington, a judge of the circuit court of Cook County, to expunge from the records of the superior court an order directing that a writ of prohibition issue against the petitioners who were defendants in People ex rel. Steinway et al. v. Hurley et al. and to expunge from the records of the circuit court two orders enjoining the members of the civil service commission from demoting the plaintiffs in McLaughlin v. Hurley et al. and Golden et al. v. Hurley et al. The defendants interposed answers to the petition, the answers have been ordered to be considered as demurrers to the petition, and, upon these pleadings, the cause is submitted.

Fred Casey and eleven others appear as amici curiae in support of the position of the petitioners. Terence J. Ryan, a sergeant in the Chicago police department, past commander of Police Post 207, American Legion, Department of Illinois, on behalf of himself as a party in interest and representative of a class in interest, has filed an intervening petition and appears as amicus curiae in behalf of the position of defendants.

In People ex rel. Duffy v. Hurley, 402 Ill. 562, on March 24, 1949, two amendments to section 10 1/2 of the City Civil Service Act, designated as Senate Bill 625 and Senate Bill 692, approved on July 21 and August 8, 1947, relating to giving preference and advantage to persons under civil service who had rendered military service in past wars, (Ill. Rev. Stat. 1947, chap. 24 1/2, par. 49,) were held to constitute an invalid delegation of legislative power because of vagueness, indefiniteness, and uncertainty in the application of military service credits to persons on promotional lists of cities operating under the act, leaving the application of various methods of computing the value of the military credit to administrative officers. Tracy Duffy was a police sergeant in Chicago who successfully passed the examination for the position of police lieutenant in May, 1941. He placed number 128 on the promotional eligible list and, by September 9, 1947, had advanced to number 9. On the day last named, as a result of military credits given to others on the list, certain eligibles were advanced and Duffy, a nonveteran, was lowered to position number 17. Thereafter, Duffy instituted a mandamus action in the circuit court of Cook County, alleging the constitutional invalidity of the amendments added to section 10 1/2 of the City Civil Service Act in 1947 and sought an order commanding the civil service commission and the police commissioner of Chicago to restore him to his proper relative standing on the list. Judgment was rendered awarding a writ of mandamus, as prayed, and, upon appeal, we affirmed the judgment. Subsequently, in obedience to the mandate of this court, Duffy was restored to his previous standing on the list of eligibles and has since been promoted to the rank of lieutenant on the police force.

The petition for mandamus alleges that, conformably to our mandate in the Duffy case, the members of the civil service commission, hereafter referred to as petitioners, revised the existing promotional registers by taking from the war veterans, whose names appeared on the existing eligible promotional registers, the military credit provided for in section 10 1/2 of the City Civil Service Act, as amended, and advancing those persons who were not entitled to military credit; that, from the existing eligible promotional registers, as last revised, the petitioners have certified the three applicants for each vacant promotional position having the highest grade and those persons have been appointed by the appointing power and are now occupying positions in the classified civil service of the city; that, insofar as the police department is concerned, all positions are occupied and no vacancies presently exist in any of the promotional positions in the department; that there are innumerable persons whose names appear on existing promotional eligible registers who are entitled to certification and appointment in the classified civil service, as provided for in the statute and the rules and regulations of the civil service commission, but who cannot receive certification and appointment because the positions are occupied by persons who are certified and appointed by virtue of being afforded military credit prior to our decision in the Duffy case.

On April 19, 1949, the corporation counsel of the city of Chicago rendered an opinion in response to a request from the civil service commission "as to whether under existing law this Commission may recognize or allow any military credit to anyone in respect of any such promotional list theretofore or hereafter posted by it, and, if so, how and under what circumstances." This opinion was to the effect that our decision "in striking down military preference on promotional lists is broad enough in its terms to affect the military credit provisions relating to promotional examinations which appeared in the original section 10 1/2 of the Cities Civil Service Act," and that, accordingly, petitioners were required to refuse to recognize or allow any military credit to anyone with respect to promotional lists in the classified civil service; that the commission must proceed on the theory that those persons who have been promoted as a result of the unlawful award of military credit have no rights in the positions to which they have been promoted, can claim no protection in those positions, and have acquired no status therein, and that both the commission and the commissioner of police must take the necessary steps to remove from these promotional positions such persons as have been unlawfully appointed and appoint thereto the persons who would be rightfully entitled to them without military credit; that an employee so separated from the promotional position should be restored to the eligible list at the point where his grade in the examination, exclusive of any military credit, would place him, and that the employee should be restored to the position in the next lower rank or grade last previously held by him.

On April 18, 1949, one day prior to the rendition of the opinion of the corporation counsel, Lester J. Steinway and other sergeants of police filed in the superior court of Cook County a petition, and thereafter an amended petition with additional plaintiffs who were sergeants and lieutenants, for a writ of prohibition to prohibit and restrain the petitioners from demoting them from their respective positions in the classified service in the department of police. An order was entered on April 29, 1949, prohibiting and restraining petitioners from taking any action to demote or cause to be demoted Steinway and nineteen others from their positions as sergeants and Irving C. Alexander and three others as lieutenants in the classified service of the department of police.

Petitioners charge that Judge Graber lacked the power or jurisdiction to enter the orders directing the issuance of the permanent writ of prohibition for the reasons, among others, that the civil service commission is an administrative body, a part of the executive department of the city of Chicago; that the petitioners, under the City Civil Service Act and the rules and regulations of the commission, have complete and absolute power and jurisdiction over all the civil service employees of the city and, in consequence, have the power to demote the plaintiffs named in the amended petition for writ of prohibition who have been promoted to their positions as the result of the unlawful award of military credit.

On April 19, Thomas J. McLaughlin filed in the circuit court of Cook County a complaint for injunction, seeking an order restraining petitioners, the commissioner of police, the comptroller and the city treasurer, from demoting him from his position as captain of police. On April 22, John J. Golden, Thomas H. McCann, James C. Kelly and Edward Barcal filed in the circuit court a complaint for injunction seeking like relief, namely, an order restraining the demotion of Golden and McCann from their positions as lieutenants of police and Kelly and Barcal from their positions as sergeants. On April 26, Judge Harrington entered orders directing the issuance of the temporary injunctions during the pendency of the actions and, in the Golden case, "until they are removed as provided by law."

The petition for mandamus alleges that nine other complaints for injunction and petitions for writs of mandamus have been filed in the circuit and superior courts of Cook County against the six petitioners here. An additional allegation is made that there are still pending and undisposed of in the circuit and superior courts three other petitions for writs of mandamus against the six petitioners. It is alleged, further, that, on May 5, 1949, notices were served on them in three cases in the superior and circuit courts, representing an aggregate of nineteen plaintiffs, stating their intentions to file petitions for a rule to show cause why petitioners should not be held in contempt of court for failure to comply with writs of mandamus heretofore issued and for failing to cancel military credit unlawfully given and to certify and appoint the plaintiffs in the respective actions.

Concluding allegations are that, by reason of these orders, the petitioners have been prohibited by the writ of prohibition from demoting persons previously promoted as a result of military preference; that they have been restrained by the issuance of injunctions from demoting persons heretofore promoted as a result of the grant of military preference; that, on the other hand, they have been ordered by writs of mandamus to certify and appoint persons and are now threatened with contempt proceedings for failure to demote persons unlawfully promoted with military credit, and that it is impossible for them to obey all of these orders. For these and other reasons, petitioners sought a writ of mandamus in this court.

By his answer, the defendant Judge Graber, avers that the civil service commission, having certified persons for promotion, and these persons having been appointed by the legally constituted appointing officer to the positions, their appointments became final, complete, irrevocable and not subject to reconsideration, and that, thereafter, the commissioners had no power, authority or jurisdiction to demote these persons, the occupants of promotional positions in the department of police, except for cause, upon written charges and after a hearing, conformably to section 12 of the Civil Service Act. Answering further, said defendant avers that the civil service commission is a quasi-judicial body and exercises, or threatens to exercise, quasi-judicial functions. Referring to the allegations of the petition for mandamus as to the power of a judge of the superior court to issue writs of prohibition, the averment is made that the members of the commission in their motion to strike the petition for writ of prohibition, stated, "It is the intention of the defendants to revise the sergeants eligible list by eliminating military credit and, if necessary, demote those sergeants who have been certified and appointed to their positions by reason of their application of military credit and appoint in lieu thereof the persons who would be rightfully entitled to the positions without military credit." Defendant asserts the power of the commission over the civil service employees of the city of Chicago is limited to those delegated by the General Assembly and set forth in the City Civil Service Act, as amended. Said defendant denies that the present petitioners have no remedy for the various orders referred to in the petition for mandamus, stating that they had the right to appeal from any and all such orders and that the validity of each and every order could be tested upon appeal. Concluding averments of Judge Graber's answer are that the superior court of Cook County, and he as one of of its judges, has general original jurisdiction to entertain and award writs of prohibition; that members of the civil service commission of the city of Chicago, in addition to performing administrative duties, exercise quasi-judicial functions and constitute a quasi-judicial body; that they have no right, power, jurisdiction or authority to demote any member of the classified civil service of the city; that the right to occupy a public office in the classified civil service of the city is a personal right which the courts of law have jurisdiction to protect by appropriate common-law writs; that a threat publicly made by a quasi-judicial body to act in a matter or manner in which it has no jurisdiction, power or authority to act affords a sufficient basis for a court of law to assume jurisdiction by a writ of prohibition to prevent the threat and acts being effected; that each of the plaintiffs in the cause before him, upon being duly appointed to his promotional position and entering into the duties thereof, was removed from his position of lower rank in the department, and that, under the provisions of the City Civil Service Act, the commission has no power, jurisdiction or authority to demote, or to reinstate, them in their former positions of lower rank in the department of police.

The answer of the defendant Judge Harrington is substantially to the same effect. The averment, among others, is made that, upon the hearing of McLaughlin's motion for a temporary injunction, an assistant corporation counsel appeared in open court and stated that the petitioners intended to remove McLaughlin as captain of police by a "blanket order" of the civil service commission wherein they would "demote" all persons certified and appointed to their incumbent positions by reason of being granted additional credits for military service. Referring to the four plaintiffs, Golden, McCann, Kelly and Barcal, in the other complaint for injunction, said defendant averred that no charges had been filed or were pending against them; that they had not been removed under the provisions of section 12 of the City Civil Service Act; that the president of the civil service commission announced publicly and to the press that, because of the decision of this court in the Duffy case, the commission would order the demotion of those members of the police department who had been promoted to higher ranks due to the awarding to them of additional credits for military service and advanced on the eligible list because thereof; that these police officers had not been guilty of any fraud or deception in the promotions made; that the commission, being a statutory body, exercises purely statutory powers, and must find in the applicable statute its warrant for the exercise of the authority claimed, and that there is no provision in either the Civil Service Act or the rules of the commission itself giving any authority, power or jurisdiction to the commission to revoke a certification after an appointment has been made, or to order the demotion of a person from his position in the classified service. Other averments are that, if illegally ousted, the police officers would be compelled to resort to ...


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