Appeal from the Superior Court of Cook county; the Hon. DONALD
S. McKINLAY, Judge, presiding. Judgment reversed.
JUDGE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 30, 1957.
This is an appeal from a judgment of the Superior Court of Cook county entered December 14, 1955, ordering a writ of mandamus to issue commanding the respondents to restore Robert E. Ballinger, petitioner, as a patrolman in the classified service of the Chicago police department and to pay him salary from November 21, 1953 to February 21, 1954. A cross-appeal was taken by the petitioner from the portion of the order with reference to the allowance of salary.
Respondents contend that petitioner is barred by laches from maintaining the suit; that the proceedings taken in the case were in accord with the Civil Service Act and the rules of the commission; that the matter before the trial court was an attempted review of a matter within the discretion of the department head and of the civil service commission and hence is not subject to review by the courts in a mandamus proceeding provided that the officers, as it is contended they did, acted within their statutory powers and not arbitrarily or capriciously.
Petitioner urges that there was no unreasonable delay in filing suit and that in any case he has a satisfactory excuse for the lapse of time involved; that the department head acted illegally in that he usurped the powers granted to the civil service commission since by his action he annulled the certification of eligibility by the commission; that the reason assigned by the commissioner as grounds for removing the petitioner was invalid and insufficient in law; that the civil service commission failed to give a valid or legal consent to the removal of petitioner since it conducted no investigation of any kind to determine the truth or falsity or relevancy of the assigned reason for removal.
The name of the petitioner was posted by the civil service commission on its eligible list on April 20, 1953, he having taken both mental and physical examinations. On September 18, 1953 he was certified by the commission for appointment to the position of patrolman, and on September 23, 1953 he was appointed by the commissioner of police as a patrolman and sworn in. Under the Civil Service Act and the rules of the commission he was appointed as a probationary police officer for a period of six months. Under the practice of the Chicago police department, the chief surgeon of that department examined petitioner on September 30, 1953. After the examination the surgeon became suspicious of petitioner's lung condition. He then found that petitioner's questionnaire gave a history of tuberculosis. Further investigation revealed that the petitioner had on September 27, 1950 been rejected for military service on the ground of "pneumothorax pleural diffusion." The chief surgeon asked the petitioner to go to St. Luke's Hospital for a chest x-ray, and on October 12, 1953 the doctor received a report from the hospital. He thereupon wrote to the commissioner of police advising him to suspend petitioner because he was a potential risk. On November 10, 1953 the commissioner of police sent a communication to the civil service commission asking authority to discharge petitioner based on the report of the chief surgeon indicating a tubercular condition. The report of the chief surgeon, attached to the communication from the commissioner of police, recited that the petitioner had been admitted to the Municipal Tuberculosis Sanitarium March 4, 1945, that he was discharged September 10, 1946; that from March 18, 1946 to June 1, 1951 artificial pneumothorax was given on his left side; that an x-ray report dated October 12, 1953 from St. Luke's Hospital reads: "Old pathology in the left lung, adhesions in the left diaphragm. Thickening of the pleura and generalized thickening of the pleura of the entire lung. The upper lobe of the left lung is not well aerated, probably due to faulty breathing and thickened pleura"; and that because of the above findings and history of tuberculosis, he is a poor risk for the police department. The petitioner was then suspended and was discharged on November 21, 1953. He was not notified of the discharge. The instant suit was filed on November 1, 1954.
The court overruled the respondents' motion to strike the petition. Respondents filed an answer. A hearing was had before the court and at its conclusion the court entered the judgment from which these appeals are taken.
Section 10 of the Act to Regulate the Civil Service of Cities (Ill. Rev. Stat. 1953, chap. 24 1/2, par. 48) provides that the department head should notify the civil service commission of a position to be filled and should fill such place by the appointment of the person certified to him by the commission, which appointment shall be made on probation for a period to be fixed by the rules of the commission. The rules of the commission, section 5 of rule IV, provide that the period of probation shall be six months. The Act further provides that at or before the expiration of the period of probation the head of the department may, with the consent of the commission, discharge the probationer upon assigning in writing his reason therefor to the commission.
During the probationary period an appointee may be discharged upon complying with the Act without notice or hearing. Fish v. McGann, 205 Ill. 179 (in which case the court laid down the rule that the appointee is not in the classified service until the probation period has expired); Kenyon v. City of Chicago, 135 Ill. App. 227. The petitioner strenuously contends that since he had passed the physical examinations conducted by the civil service commission and was certified by it, this certification was binding on the department head, and if the department head could conduct a further physical examination it would mean that he would be taking over the right and duty which was by statute vested solely in the commission. There seems to be no question as to the right and power of the commissioner of police to, from time to time, conduct physical and mental examinations in order to determine whether or not patrolmen are able to perform the duties required of them. People ex rel. Wayman v. Steward, 249 Ill. 311. It would seem to be an anomaly to hold, where an appointment of a police officer has been made on probation in order that it might be determined whether his conduct, capacity and physical condition are such as would enable him to assume the necessary duties of the office, that the hands of the commissioner of police are tied and he must, even if his investigation indicates that the probationer is not in his opinion qualified to perform his duties, still permit the probationer to go through his probationary period and enter into the classified service. In People ex rel. Walter v. Woods, 168 App. Div. 3, 153 N.Y.S. 872, the court held that the commissioner of police should not be deprived during the probationary period from making a thorough investigation into the applicant's personal records in order to determine whether he has the proper qualifications for a police officer, in spite of the fact that he has been certified by the civil service commission, and the court points out the civil service commission and examiners have not the facilities for making a thorough investigation or outside inquiries into his personal records.
[3-8] The petitioner relies on the case of Wolff v. Hodson, 285 N.Y. 197, 33 N.E.2d 90, in which the court held that where an appointment had been made from the eligible list furnished by the civil service commission and where the appointee, a special investigator in the department of welfare, had held the position for more than a year, the civil service commission could not, without a hearing, arbitrarily remove him from his position. The ground advanced for such removal was that he had made false statements in his application. The basis for the court's opinion seems to be that the appointee was dismissed without a hearing and that the civil service commission having certified him could not revoke the certification, and the court says that the appointing officer cannot question the determination of the commission as certified to him as to eligibility, even though the commission was in error. The statement in the opinion on which the petitioner relies is dicta; neither has it any application to the case before us, since here we are dealing with an appointee to the police department, a semi-military organization upon which is placed the duty of protecting the lives and property of the citizens of the city. The purpose of the probationary status of the appointee is to enable the commissioner of police, in his sound discretion, to determine as to whether or not the probationer has the necessary qualifications to become a police officer. It is well established that mandamus will not lie to review a discretionary act of an administrative agency, a department head, or the civil service commission. The only question presented to the courts is to determine whether or not the administrative body has acted within its defined powers, and if the court has determined that the action of the administrative body is outside of its powers, its resulting void order may be ordered expunged from its records. The court may, when it is the clear legal duty of an administrative body vested with discretion in the premises to act, compel by mandamus such administrative body to act, but the court may not compel such agency to act in any particular way. People ex rel. Elmore v. Allman, 382 Ill. 156; Reddick v. People ex rel. Mason, 82 Ill. App. 85. Here, as we have stated, the commissioner of police had the power to order an examination of the probationer. That examination was made, and the physician who made it came to the conclusion from the evidence before him that the probationer did not have the necessary physical qualifications to enable him to be a policeman. The chief surgeon made his report to that effect to the commissioner of police and the commissioner, in accordance with the statute, requested the discharge of the probationer, which request was granted. It must be presumed that the public officials acted in good faith and with honest motives. Smith v. Board of Education, 405 Ill. 143; Michuda v. Sanitary District of Chicago, 305 Ill. App. 314.
On the hearing a physician testified in favor of the petitioner to the effect that the conditions indicated in his history, including the x-ray reports, did not render him a poor risk for the police department. The chief surgeon for the police department, together with another physician, testified that they did. The question was one of scientific fact on which qualified men could and did have a difference of opinion. Its determination was within the sound discretion of the commissioner of police, and in reaching a conclusion he was entitled to rely upon the opinion of his departmental medical officers. Neither the trial court nor this court in a mandamus action can substitute its judgment for that of the medical officer, the commissioner of police and the civil service commission. The action taken by them was not arbitrary or capricious.
Petitioner also urges that no valid consent was given by the civil service commission for his removal, and he argues that the letter from the department head to the commission, which stated that the petitioner had a tubercular condition, together with the report from the chief surgeon, was not sufficient inasmuch as it did not specifically set out a conclusion as to the petitioner's then existing physical condition; that there was no statement he was unable to perform his duties, simply that he was a poor risk for the police department; and that thereupon it became incumbent upon the civil service commission to make a further investigation before consenting to the discharge. We know of no such rule of law. As we have stated, it must be assumed that the acts of the civil service commissioners were in good faith. The report of the police surgeon was comprehensible even to a layman and sufficient to justify the commission in giving its consent to the discharge of the petitioner; and in any case there is nothing in the record to indicate that the commissioners did not consult medical authorities with reference to the report. The fact that the letter from the department head did not state that the petitioner was unable to perform his duties is immaterial. The statements therein made were sufficient on which to base a discharge.
Another ground urged by the respondents is that the petitioner was barred by laches from bringing his mandamus action. The question was properly raised in the pleadings, both in the motion to strike and in the answer.
It has been held in cases where a petition for a writ of certiorari had been filed seeking to review the rulings of the civil service commission in regard to civil service employees that laches may properly be invoked. In Connolly v. Upham, 340 Ill. App. 387, a case involving the dismissal of a petition for a writ of certiorari, the court in its opinion reviewed and analyzed the cases of Clark v. City of Chicago, 233 Ill. 113, City of Chicago v. Condell, 224 Ill. ...