Appeal from the Superior Court of Cook county; the Hon. DONALD
S. McKINLAY, Judge, presiding. Judgment affirmed.
JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 16, 1959.
Two suits, one for a writ of prohibition and one for mandamus, were filed by plaintiffs and were consolidated in the trial court. Defendants moved for a judgment on the pleadings. That motion was sustained and the suits dismissed, from which order this appeal was taken.
The petition for writ of prohibition sought to prevent the Civil Service Commission of the city of Chicago from certifying the names of persons for promotion to the rank of police captain from a promotional register published by the commission on December 29, 1958. The petition for writ of mandamus sought to order the commission to expunge the 1958 register and the examination upon which it was based and to compel the publication of a register of eligible persons who passed an examination held December 4, 1954. The basic issue presented to us is whether the Civil Service Commission could lawfully expunge the promotional examination held December 4, 1954, leaving it free to hold the 1958 examination.
Relators, to whom we shall hereinafter refer as plaintiffs, are seventeen police lieutenants of the city of Chicago who had taken the 1954 examination. Defendants are the Commissioners and the Secretary of the Civil Service Commission. Intervenors are twenty-seven police lieutenants whose names appear on the promotional register resulting from the 1958 examination. No list from the 1954 examination has ever been published, and plaintiffs do not know whether they passed that examination.
Plaintiffs contend that the commission has only such power as is delegated to it by the Civil Service Act; that the power to cancel an examination and an unpublished register is not granted to it by the Act and that, therefore, the order canceling the 1954 examination was void and the 1954 list must be posted. This turns on the construction of Section 48, Ch. 24 1/2, Ill. Rev. Stat. (1959) (Civil Service Act), which reads as follows: "Said Commission may strike off names of candidates from the register after they have remained thereon more than two years." It is plaintiffs' contention that this means that the commission can strike the names of candidates only after the list has been published. Nowhere in this section is the word "register" qualified or modified by the words "posted" or "published."
The policy behind this provision is to maintain an up-to-date register, the vitality of which may be guaranteed by the discretion placed in the commission to meet changing conditions and circumstances. Toward that end, the commission is authorized to strike a register which is no longer suitable to fulfill the function for which it was intended. That policy applies whether a promotional register is published or not.
Plaintiffs argue that if we allow the commission to strike down an unprepared, unpublished register, then it can strike down the results of any examination merely by refusing to publish the resultant register. The history of the 1954 register must be kept before us in our consideration of that argument. The commission did not arbitrarily refuse to publish a register resulting from the 1954 examination, as the history of the long and involved litigation concerning that examination will disclose. From the time the 1954 examination was given, it has been involved in four lawsuits, two of which have previously reached this court: Malkin v. City of Chicago, 6 Ill. App.2d 151, 127 N.E.2d 145 (1955), and Sullivan v. Sheehan, 20 Ill. App.2d 380, 156 N.E.2d 374 (1959). In Malkin v. City of Chicago, supra, police lieutenants who had been listed in a promotional register posted July 30, 1951, obtained an injunction on August 14, 1954, restraining the commission from canceling the 1951 register. That injunction remained in effect until this court on May 13, 1955, reversed the trial court's decision, 6 Ill. App.2d 151, 127 N.E.2d 145, holding inter alia, that the commission's discretion governed the question of whether or not the 1951 register should be continued, citing as authority section 48 of the statute, which in effect dissolved the injunction.
On December 21, 1954, the commission advised plaintiffs that they were prevented from posting the list because of the injunction secured in the Malkin case. On March 14, 1955, the suit of People ex rel. Lawler v. Hurley was filed in the Circuit Court No. 55 C 4113, by candidates on the then published 1951 police captain promotional register, seeking a declaratory judgment to the effect that the 1954 examination was void. That suit was dismissed as moot on February 27, 1958, since all candidates on the 1951 promotional register had been promoted.
On August 26, 1957, the Superior court, in Sullivan v. Sheehan, No. 57 S 12694, entered a temporary injunction restraining the commission from publishing the 1954 promotional register. That was followed by a vacation of the injunction on November 1, 1957, and an order of court of January 29, 1958, declaring that the commission had authority to and should expunge the 1954 promotional register and examination. On January 30, 1958, the commission by order expunged the 1954 promotional examination and register and announced that a new examination for police captain would be held commencing February 27, 1958. On February 16, 1959, we reversed the order of the trial court in Sullivan v. Sheehan, supra, and held that the plaintiffs in that cause had received all the relief prayed for in their complaint, the case thereby becoming moot. However, we directed the trial court to dismiss the complaint so that its order directing the Civil Service Commission to expunge the 1954 examination would not have the force of res judicata. 20 Ill. App.2d 380, 156 N.E.2d 374. We have given the history of this litigation since it reveals the circumstances under which the commission acted.
In considering plaintiffs' argument that to sustain the commission's action in striking the 1954 register makes it possible for competitive examinations to be ignored by mere inaction, we cannot assume that a coordinate branch of the government will be faithless in the discharge of its statutory duties. In People ex rel. Heineck v. Holding, 207 Ill. App. 38 (1917), at page 42, the court, referring to a similar argument made in that case, said:
"It may be argued that such a power invites abuse, but to this it may be answered that the power seems clearly and unmistakably given by the statute, and, moreover, it would seem that it is impossible to create a system for the appointment of public officials and employees, whose fair operation will not depend to some extent upon the fidelity of the commissioners appointed to supervise its workings."
Section 44 (Ill. Rev. Stat. Ch. 24 1/2 (1959)) places control of examinations in the hands of the commissioners, and Section 53 grants the commission a general power to investigate the enforcement of the Act, the commission's rules, its staff and the conduct of civil service appointees. Plaintiffs maintain that the latter section, the investigatory warrant of the statute, apparently was designed to enable the commission to assemble data in order to make suggestions for more effective accomplishment of the purposes of the Act in its annual report to the City Council. Our courts have held that this is one of the offices of that section. People ex rel. Baird v. Stevenson, 270 Ill. 569, 110 N.E. 814 (1915); People ex rel. Gilbert v. Hurley, 336 Ill. App. 205, 83 N.E.2d 512 (1948). However, such is not the sole function of Section 53. In People ex rel. Heineck v. Holding, supra, the court had before it a similar question with regard to the commission's power to cancel an examination which it found had been improperly conducted. In interpreting a statute similar to our present Sections 44 and 53, that court said, at pages 41-2:
"The power of the commissioners must, of course, be determined by the terms of the statute, and we find that while commissioners are authorized to appoint examiners, the statute expressly directs that the commissioners shall control all the examinations, and later provides that they shall investigate the action of the examiners. The purpose of these provisions is clear. The provisions of the statute were intended to create conditions under which appointment to positions in the county service should be on the basis of merit. To this end a commission is created, charged with the duty of faithfully carrying out the provisions of the statute. . . . To say that it has these powers and duties and no power to set aside an examination, which in its opinion had been irregularly or improperly conducted, would be a distinct contradiction in terms. . . . We are of the opinion that it necessarily follows that when an investigation of the action of the examiners discloses facts which, in the opinion of the commissioners, convince them that an examination has been unfairly or improperly conducted, it is not only within their power, but it is their duty, under the statute, to set that examination aside." (Emphasis supplied.)
The foregoing language is germane to the instant case. The commission had jurisdiction to expunge a register such as the one here in question, not only on the ground of unfairness or ...