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Levin v. Civil Service Com.

OPINION FILED MAY 22, 1972.

IRVING LEVIN, APPELLEE,

v.

THE CIVIL SERVICE COMMISSION OF COOK COUNTY ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 29, 1972.

This is an appeal from an order entered by the circuit court of Cook County directing the issuance of a permanent injunction restraining the Civil Service Commission of Cook County from holding civil service examinations for certain positions in the office of county assessor of Cook County and restraining the Cook County assessor and the president of the Board of Commissioners of Cook County from the performance of certain acts.

The plaintiff filed his complaint on behalf of himself as an employee of the Cook County assessor's office and on behalf of a class composed of the clerical help and deputies employed by the Cook County assessor's office except the chief deputy assessor. It is alleged that a civil service examination has been announced covering the positions of Clerk I, Clerk II and Typist II in the office of the Cook County assessor. Plaintiff seeks an injunction prohibiting the holding of a civil service examination for any position in the Cook County assessor's office; restraining the president of the Board of Commissioners of Cook County from taking any action to create any vacancies in or make any appointments to positions in the Cook County assessor's office and restraining the Cook County assessor from notifying the president of the county board or the Civil Service Commission of any positions to be filled pursuant to the civil service statute or appointing anyone to a position in the assessor's office pursuant to the law in relation to civil service. The complaint also seeks a declaratory judgment that the civil service statute relating to Cook County is unconstitutional. The statutory provisions involved are those relating to Cook County officers and employees. Ill. Rev. Stat. 1969, ch. 34, pars. 1101 through 1141.

Leave was granted to the Attorney General of Illinois to intervene as a party defendant and leave was also granted to certain persons to intervene as representatives of a class of persons who are employed under the Cook County civil service statute.

The statute in question contains the following provisions. Section 61.18 (Ill. Rev. Stat. 1969, ch. 34, par. 1105) provides for the appointment of the civil service commissioners for Cook County. Section 61.20 (par. 1107) provides that the commissioners shall classify all the offices and places of employment in the county (with certain exceptions) and provides further: "The offices and places so classified by the Commission shall constitute the classified Civil Service of said county and no appointments to any of such offices or places or removals therefrom shall be made except under and according to the rules hereinafter mentioned." (Emphasis supplied.)

Section 61.21 (par. 1108) authorizes the Commission to make rules to carry out the purposes of the Act. Section 61.23 (par. 1110) provides for the giving of examinations by the Commission. Section 61.25 (par. 1112) provides that the Commission shall make a register for each class of positions of persons whose general average standings upon the examination for such class are not less than the minimum fixed by rules and who are otherwise eligible. This paragraph further provides that such persons shall take the rank upon the register as candidates in the order of their relative excellence as determined by the examination.

Section 61.27 (par. 1114) provides for appointments to classified service and states that when a classified position is to be filled the president of the county board and said Commission shall be notified and the Commission shall certify to the appointing officer the name of the candidate standing highest on the register for the class or grade of such position and provides that the appointing officer shall fill such position by the appointment of the person certified by the Commission.

The office of Cook County assessor was created by the Illinois General Assembly and came into existence on February 13, 1932, to replace the five-man Board of Assessors (Smith-Hurd Stat. 1933, ch. 120, par. 282). Section 6 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 487) now provides: "* * * Such county assessor may also employ such other clerical help and deputies as may be necessary, each one of whom * * * shall be appointed by the county assessor in accordance with the terms and provisions of the law in relation to civil service * * *." (Emphasis supplied.)

Under the rules of the Civil Service Commission, if a vacancy occurs in a classified position the following is the general procedure for the filling of the same. Notice of the vacancy is given to the Civil Service Commission which then certifies to the appointing power the name of a person eligible for such position from the eligibility register. If there are no persons on the eligibility register qualified for the position in which the vacancy occurs then the Commission may grant authority to the appointing officer to make a temporary appointment. However, within 30 days thereafter the Civil Service Commission must conduct an examination for this position, thereby establishing an eligibility list from which the position held by the temporary appointee may be filled.

In spite of the provisions of the above statutes and the rules of the Civil Service Commission, the evidence produced at the hearing shows that no civil service examination has been conducted for the positions held by the members of the plaintiff's class for 32 years. In 1967 the Civil Service Commission announced the giving of an examination for certain positions in the assessor's office. However, the circuit court of Cook County issued an injunction restraining the holding of the examinations. The appellate court reversed without deciding the merits of the case because the injunction had been issued in violation of the mandatory provision concerning bonds then contained in the injunction statute. (Ill. Rev. Stat. 1967, ch. 69, par. 9; see Belpedio v. Civil Service Com., 108 Ill. App.2d 131.) The opinion in Belpedio was filed on April 2, 1969, and on August 27, 1969, the Civil Service Commission announced the examinations here in question. The complaint in this case to enjoin the holding of such examinations was filed on September 17, 1969.

The plaintiff is 72 years old and was appointed as a temporary employee in the assessor's office pursuant to authority granted to the appointing power by the Civil Service Commission as provided in its rules referred to above. The same is true as to the appointment of other members of the class. There are five members of the class serving in Typist II positions, seven serving in Clerk I positions, and 79 in Clerk II positions. The shortest period of time that any member of the class has served under such appointment as a temporary employee is one year and the longest period of time thus served is 28 years. Plaintiff has served under such appointment in a Clerk II position for two years.

Following the hearing the court issued the injunction prayed and declared the civil service statute and rules of the Civil Service Commission as applied to the class of persons represented in this case unconstitutional as depriving the members of the class of property without due process of law. With this conclusion we do not agree.

Plaintiff in this court contends that a person, including a public employee, has a right to follow his chosen profession or occupation and that this right to work falls within the concept of property protected by the due process clauses of the State and Federal constitutions. With this contention we have no dispute. This court has long held that the right to work is a property right. (Frorer v. People, 141 Ill. 171; Braceville Coal Co. v. People, 147 Ill. 66; Ritchie v. People, 155 Ill. 98; Mallin v. Wenham, 209 Ill. 252; Massie v. Cessna, 239 Ill. ...


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