Appeal from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding. Judgment reversed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion December 31, 1969.
Relator filed a petition for a writ of mandamus on June 19, 1967, against the defendants to compel them to certify and appoint him as a Captain of the Chicago Police Department. Defendants appeal from a judgment after trial awarding such a writ to the relator, and from the denial of their motion to vacate the judgment. While defendants have raised several issues on appeal, we consider it necessary to discuss only their contention that relator was not entitled to the writ of mandamus because of laches.
The pleadings reveal that Lieutenant John J. Cronin took an examination held by the Civil Service Commission of the City of Chicago for the position of Captain of Police. The examination took place on January 23, 1965, and the eligibility list for promotion to Captain was posted on March 24, 1965. Relator charged that through an error *fn1 he was given an efficiency rating of 83 rather than 92 by the Chicago Police Department, and that the incorrect efficiency rating was sent to the Commission. As a result of the error, relator's final grade average was entered as 74.37 instead of 77.07 and he was placed No. 56 on the eligibility list. If he had been given an efficiency rating of 92, he would now be No. 10 on the list and eligible for immediate appointment to Captain.
The defendants pleaded that petitioner was guilty of laches, and also set forth a Chicago Police Department order, approved by the Civil Service Commission, which defined methods and procedures to be used in determining efficiency ratings for candidates for promotion to the rank of Captain. A Lieutenant was rated by his immediate superior, whose preliminary rating report was reviewed by a Rating Board created by the Superintendent of Police. This board gave the final efficiency rating, which would be forwarded to the Superintendent for review and approval, and then forwarded to the Commission. Since the publication of said promotional list, 17 Lieutenants had been promoted to the rank of Captain.
At trial, Captain Francis J. Lynch, Cronin's immediate superior on the department, testified that he gave Cronin an efficiency rating of 92. Cronin testified that he learned of that mark from Lynch a few months after the promotion list was posted in 1965. He learned of his final efficiency grade of 83 when he visited the Commission about two years after the examination. He waited the two years before going to the Commission because at the time the list was posted, he expected that 75 men would be made Captains, and he was No. 56 on the list. He inquired at the Commission when his expectation did not materialize.
In their post-trial motion, defendants, among other points, attached an affidavit from Colonel John C. Bucher, Personnel Director of the Chicago Police Department, which stated that if all the candidates for promotion to Captain received their preliminary efficiency rating as their final grade as sought by relator, there would be 20 candidates whose grade averages would be higher than relator.
[1-3] Laches is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration, and other circumstances causing prejudice to an adverse party, as will operate as a bar to a suit. Ring v. Lawless, 190 Ill. 520, 60 N.E. 881 (1901). And the doctrine of laches is applicable to mandamus proceedings. People ex rel. Mulvey v. City of Chicago, 292 Ill. App. 589, 12 N.E.2d 13 (1937).
In People ex rel. Ballinger v. O'Connor, 13 Ill. App.2d 317, 142 N.E.2d 144 (1957), this court stated at page 329:
". . . our courts have taken the view that the bar of laches applies both to certiorari and mandamus and that six months has been established as the limitation period during which petitions for such writs must be filed, unless a reasonable excuse is shown for the delay."
In accord, People ex rel. Cifaldi v. Wilson, 38 Ill. App.2d 302, 187 N.E.2d 353 (1962).
In the instant case, the examination took place on January 23, 1965, and the eligibility list was posted on March 24, 1965. The petition for mandamus was filed on June 19, 1967. Consequently the proceedings were instituted 27 months after the posting of the eligibility list for Captain. We hold that relator's inordinate delay in prosecuting this action bars him from relief.
Relator attempts to distinguish the Ballinger and Cifaldi cases, supra, by arguing that those cases involved the discharge of policemen, where the facts of dismissal became immediately known to all parties, while here he did not learn his efficiency rating until he visited the Commission two years later. However we believe that the 6-month limitation rule enunciated above is just as appropriate and necessary in the case at bar as in proceedings concerned with the discharge of civil service employees. Relator cannot be permitted to sleep on his rights and agree to what has been done without taking action, especially where the means of ascertaining the facts were readily available had inquiry been made. He learned of the preliminary efficiency rating which he had received from his immediate superior shortly after the posting of the list. He knew that his posted grade contained an evaluation of his efficiency. He also knew that information about his final efficiency rating and about his posted grade was always available to him at the Commission. Nevertheless, expecting to be promoted, he waited two years before even making an inquiry of that body. His own testimony revealed that he was negligent in protecting his rights. Particularly in the instant case, there was an obvious need for prompt action by relator. Seventeen Lieutenants had been promoted to Captain from the list. Moreover, if all candidates for promotion to Captain had received their preliminary efficiency rating as their final efficiency mark, there would be 20 candidates whose grade averages would be higher than relator's posted average. Relator would be given unfair advantage over the other candidates for promotion; and further, the Commission would be confronted with insoluble problems in determining the status of the grades of the other candidates years after the examination. Thus the issuance of a writ in favor of relator would not only cause confusion to the public service, but would be prejudicial and harmful to the morale and discipline of the police department.
It has been held that the limitation period for seeking mandamus writs would be six months unless reasonable excuse is shown for the delay. Schultheis v. City of Chicago, 240 Ill. 167, 88 N.E. 563 (1909); People ex rel. Ballinger v. O'Connor, supra; People ex rel. Cifaldi v. Wilson, supra. Here the only explanation offered for the 27-month delay in instituting proceedings was relator's testimony that he expected 75 men to be promoted from the list, and since he was No. 56, he anticipated that he would be promoted. Such a vague expectation on his part, unsupported by any fact, was insufficient to justify ...