Appeal from the Superior Court of Cook county; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed and remanded with
MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.
This is a mandamus proceeding to compel nullification of a civil service examination and resultant list for sign hangers in the city of Chicago. The court denied the writ and plaintiffs have appealed.
The Civil Service Commission called the examination October 18, 1951 and after several delays it was given April 11, 1953. When they took the examination plaintiffs were employed as sign hangers by the city, under temporary appointments. Moscato had been appointed in October 1951, Finucane in April 1952 and Hahn in May 1952.
Two hundred twenty-two applicants took the examination and one hundred twenty-one, including plaintiffs, passed. Moscato was given a mark of 70, Finucane a mark of 71.67 and Hahn a mark of 74.67. These marks placed them respectively number 119, number 105 and number 71 on the eligible list. The places were not high enough to qualify them for certification to positions of sign hanger provided in the city budget. They were discharged from their temporary positions and thereafter brought this suit.
The principal issues made by the pleadings were whether the Civil Service Act was violated because the examination did not include physical qualification and health tests; whether the examination was sufficiently practical and relevant to test the relative capacities of the applicants; and whether these failures rendered the examination void. The court found that the failure to include physical qualification and health tests violated the Civil Service Act. The writ, however, was denied. The question here is whether this ruling was erroneous.
Defendants admit that the examination did not include physical qualification and health tests. The trial court's finding implies that plaintiffs had a clear right to the writ because it found the act was violated but it refused the writ because the harm to follow awarding the writ would outweigh the good to result in granting it.
In People ex rel. McCormick v. Western Cold Storage Co., 287 Ill. 612, at page 618, the court said:
"There may be circumstances under which the writ will not operate fairly, will occasion confusion or disorder or will not promote substantial justice, and under which the court may therefore deny the writ though the petitioner has a clear legal right. This discretion . . . must be exercised according to legal principles, and ordinarily, where a clear legal right is shown, petitioner is entitled to the writ."
The trial judge in the instant case thought he should take judicial notice "from the testimony" of the harmful effect of awarding the writ. We have been unable to find any testimony which would justify this notice; there is no evidence that any harmful results would follow. People ex rel. Herlihy Mid-Continent Co. v. Nudelman, 370 Ill. 237, 241. We conclude that the decision was an abuse of discretion, if plaintiffs showed a clear legal right to the writ.
The question pending involves a construction of Sec. 6 of the Cities Civil Service Act (Ill. Rev. Stat. 1953, Chap. 24 1/2, Pars. 39-77a [Jones Ill. Stats. Ann. 23.040-23.080(a)]). The pertinent parts of that section are:
"All applicants . . . shall be subject to examination, which shall be public, competitive, and open . . . with specified limitations as to residence, age, health, habits and moral character. . . . Such examinations shall be practical in their character, and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions . . ., and shall include tests of physical qualifications and health, and when appropriate of manual skill; provided, however, whenever an applicant shall be unable to pass the physical examination solely as a result of an injury . . . received . . . as the result of the performance of an act of duty . . . as a temporary employee in the position for which he is being examined, such physical examination shall be waived and the applicant shall be considered to have passed. . . ." (Emphasis added.)
In the first sentence of the section the use of the word shall is clearly imperative requiring the examinations to be public, open and competitive. The first several clauses, preceding the proviso, in the second sentence quoted we think set down the norms for examination and consequently the use of shall therein is again imperative, requiring that examinations be practical, relevant to duties and include tests of "physical qualifications and health." We think that shall include is implied as an imperative before the phrase "when appropriate of manual skill." This implied imperative is made relative by the term "when appropriate" requiring manual skill tests when reasonably proper. The discretion given with respect to manual skills is absent from the preceding imperatives in that sentence and confirms their imperative character. The use of shall in the proviso expresses simple futurity in its first use anticipating the injury and expresses a mandate with respect to waiver because of the injury. In Teece v. Boyle, 345 Ill. App. 88, 98, this court stated that "the connotation of the word `shall' is not fixed" and its meaning "must be gained primarily from the legislature's intent as shown by the context." The uses of shall in Sec. 6 support the court's statement.
The waiver proviso in the second sentence quoted contemplates a physical examination, of the injured applicant, included in the examination for the position. The second paragraph of Sec. 6 which we did not deem necessary to set out here, provides for a "second examination" prior to appointment, of an eligible under certain circumstances. This clearly presupposes the examination provided for in the sentence we have analysed above.
We conclude that the legislature intended that "tests of physical qualifications and health," must be included in the examination for the position of sign hanger. Arguments of defendants about the expense, time and inconvenience involved should be made to the legislature. We agree with the finding of the trial court that the examination violated Sec. 6 of the Cities Civil Service Act and that a clear right has been shown for issuance of the writ. We need not decide whether the ...