Appeal by defendants from the Superior Court of Cook county;
the Hon. JOHN A. SBARBARO, Judge, presiding. Heard in the first
division of this court for the first district at the October
term, 1950. Reversed. Opinion filed June 1, 1951. Rehearing
denied June 13, 1951. Released for publication June 22, 1951.
MR. PRESIDING JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 13, 1951
Defendants, the members of the Civil Service Commission of the City of Chicago, and interveners, plumbers in the classified civil service of the city, appeal from a judgment awarding the writ of mandamus directing the commission to cancel its call for promotional and original examinations for plumbing inspector, cancel and expunge from its records its reclassification order changing the classification of the position of plumber and to issue a call for an original examination for plumbing inspector. The relators, hereafter called plaintiffs, are licensed plumbers, noncivil service employees of the city serving for many years as plumbing inspectors under temporary appointments.
Pursuant to section 3 of "An Act to regulate the civil service of cities" (Ill. Rev. Stat. 1949, chap. 24 1/2, par. 41) [Jones Ill. Stats. Ann. 23.042], hereafter called the Civil Service Act, the commission adopted rules classifying the offices and places of employment in the service of the city. By Rule I the classified service was divided into five main branches, with further division into classes within each branch. We are concerned only with the part of the rule relating to Branches II and III, as follows:
"Branch II. Operation and Construction. Embracing positions the duties of which involve operation, maintenance and upkeep of municipal activities and the construction and betterment of municipal works and works over which the city is required to exercise supervision or regulation."
"Class K. Building Trades, embracing positions the duties of which require practical skill in the recognized building and construction trades and supervision thereof."
"Branch III Health and Welfare. Embracing positions the duties of which relate to public health work and work in connection with the various activities for the public welfare."
"Class O. Inspectional Service, embracing positions the duties of which relate to the inspection of premises and conditions."
The service was further divided into grades, "uniform to all branches and classes, . . . designated and defined as follows: . . .
Grade 2. Junior Grade. Positions of routine duties.
Grade 3. Senior Grade. Positions of intermediate responsibility."
Section 9 of the Civil Service Act (Ill. Rev. Stat. 1949, chap. 24 1/2, par. 47) [Jones Ill. Stats. Ann. 23.048] is in part as follows:
"The commission shall, by its rules, provide for promotions in such classified service, on the basis of ascertained merit and seniority in service and examination and shall provide, in all cases where it is practicable, that vacancies shall be filled by promotion. All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination. . . ."
No examination for plumbing inspector has been held since 1911. The position was and is classified in Branch III, Class O, Grade 3. Prior to the reclassification of the position of plumber in controversy here, there were no positions in the next lower rank or grade to the position of plumbing inspector. On September 12, 1949 the commission reclassified the position of plumber by changing it from Branch II, Class K, Grade 3, to Branch III, Class O, Grade 2, and called a promotional examination for plumbing inspector, defining plumbers Grade 2 as eligible for promotion. It also called an original examination for plumbing inspector. This action was ordered canceled by the trial court on the ground that the reclassification constituted an abuse of discretion, the work of the plumber not being of the same line, type or character as the work of the plumbing inspector. Plaintiffs contend that the proper classification of a position in the classified service is a question ...