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Kraft v. Solon

SEPTEMBER 18, 1975.

WILLIAM F. KRAFT ET AL., PLAINTIFFS-APPELLANTS,

v.

JOSEPH M. SOLON, CHAIRMAN OF THE CIVIL SERVICE COMMISSION OF COOK COUNTY, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

William F. Kraft filed a verified complaint in the circuit court of Cook County seeking a declaratory judgment that an original entrance examination for a civil service position given by the original defendants, collectively referred to as the Cook County Civil Service Commission (hereinafter the Commission), was illegal. He further requested a temporary restraining order and permanent injunction prohibiting that body from certifying and appointing persons on the resultant eligible test list to the existing vacancies. Kraft obtained such an order prohibiting the Commission from certifying and appointing the above-specified applicants during the pendency of this suit. The complaint was later adopted with modification by five intervening plaintiffs, and the trial court permitted 20 successful test applicants to intervene as additional party defendants. Subsequently, the court denied the Commission's motion to dismiss the suit, but at the same time dissolved the temporary restraining order. This interlocutory appeal by plaintiffs follows.

A detailed account of the pertinent facts and events involved in this appeal is necessary for a full understanding of the issues in this case.

At the time this controversy arose, Kraft and the other plaintiffs held various civil service positions in the Cook County Highway Department. Additionally, they held temporary appointments for the position of Highway Engineer III.

On January 8, 1974, the Commission posted an announcement that an original entrance examination be given to fill vacancies for the position of Highway Engineer III in the Cook County Highway Department. On February 9, plaintiffs took the written part of the examination, consisting of 140 multiple choice questions and problems. The resultant eligible list was posted on April 15. Plaintiffs' names did not appear on that list.

According to the Commission's rules, the proficiency of an applicant is to be measured on a scale of 100. No person's name can appear on the eligible list whose general average is below 70% with at least 60% being attained on any given subject of the examination. The average scores on this eligible list ranged from 89.39 to 70.

Plaintiffs obtained their test results. Kraft correctly answered 64 questions on the written test, which on the curve fashioned by the Commission gave him a grade of 59.46. His below-60 score on this part of the test meant his grade of 88.68 in the "Education and Experience" category could not be considered to determine his general average. The other plaintiffs achieved scores lower than Kraft's.

Kraft filed his complaint on May 10, 1974. His principal allegation was that the test was illegal since a promotional examination had not been given. He also challenged the examination as given in respect to the grading procedures employed by the Commission, the method of awarding military credits, and the practical nature of the test. The complaint also sought to restrain the Commission from certifying and appointing anyone on the eligible list. After notice was given to the Commission, the trial court, on May 13, granted the injunction "pending disposition of the issues herein, or until further order of the court." In the order the court expressly recognized that absent the maintenance of the status quo, the existing vacancies for the position of Highway Engineer III could be filled from the challenged eligibility list with the result that plaintiffs would be denied their right to promotion to such positions and to the attendant salary and pension rights.

On May 17, the Commission filed a written motion to dissolve the injunction or in the alternative to amend it by requiring the posting of bond. That same day the court directed each plaintiff to post a bond of $1,000. On May 29, the Commission filed a motion to strike and dismiss the complaint. Plaintiffs' attempt to commence discovery was delayed until the court ruled on this motion. On July 22, the court denied the Commission's motion to strike and dismiss the complaint. However, the court dissolved the temporary restraining order. The trial court stayed enforcement of its dissolution order to and including July 26.

On July 26, plaintiffs took action on three fronts. They requested the trial court to extend its order staying the dissolution of the injunction, which was denied. They filed their notice of interlocutory appeal from the order of dissolution. Plaintiffs also filed an emergency motion in this court to stay the dissolution of the injunction pending the outcome of this appeal. On August 6, we granted the requested relief conditioned on the posting by plaintiffs of an additional bond. On August 9, defendants filed a motion to reconsider, alleging that between July 27 and August 7 the Commission had taken steps to certify those on the eligible list and that such action served to moot this appeal. We denied the motion.

On appeal the parties have urged various theories in support of their respective positions. They can all be reduced to the presentation of two questions: (1) Did the trial court abuse its discretion in dissolving the injunction? (2) Did the action taken by the Commission while plaintiffs' emergency motion was pending in this court serve to moot this appeal?

This appeal actually relates to a very small part of the overall case. We are simply called upon to decide the propriety of the trial court's action in failing to maintain the status quo until plaintiffs' case is disposed of on the merits. This appeal does not dispose of the substantive and ultimate rights of the parties. The trial court found merit to plaintiff's complaint in initially granting the preliminary injunction and in subsequently denying the Commission's motion to dismiss the complaint. Thus we will not in this appeal consider the merit of plaintiffs' suit, since it would encompass, in essence, a collateral prohibitive review of the interlocutory order of the trial court denying the motion to dismiss the cause of action. (See McDougall Co. v. Woods (1928), 247 Ill. App. 170; George F. Mueller & Sons, Inc. v. Daly (1970), 124 Ill. App.2d 265, 260 N.E.2d 319.) The various orders entered by the trial court clearly indicate that the sole basis for the court's order of dissolution was its perception that the status quo did not have to be preserved.

• 1 We shall comment initially on plaintiffs' contention that absent a showing of a change in law or facts subsequent to the time a court enters a preliminary injunction, the court lacks the power to dissolve the injunction, even if it was erroneously issued. Several cases are cited in support of this proposition. (Material Service Corp. v. Hollingsworth (1953), 415 Ill. 284, 112 N.E.2d 703, overruled in part on other grounds, G.S. Lyon & Sons Lumber & Manufacturing Co. v. Department of Revenue (1961), 23 Ill.2d 180; Benson v. Isaacs (1961), 22 Ill.2d 606, 177 N.E.2d 209; Field v. Field (1967), 79 Ill. App.2d 355, 223 N.E.2d 551.) These cases are inapposite since they relate to the power of a court to modify or vacate a permanent injunction. In the present case no final disposition has been made regarding the ultimate rights of the parties. Temporary restraining orders and preliminary injunctions are merely provisional remedies grounded in equity to maintain the status quo. As such the court has the inherent power during the pendency of a case before it to issue and vacate these orders. (See Litzelman v. Town of Fox (1936), 285 Ill. App. 7, 1 N.E.2d 915; Fox Film Corp. v. Collins (1925), 236 Ill. App. 281; Lake Shore & Michigan Southern Ry. Co. v. Taylor (1890), 134 Ill. 603, 25 N.E. 588.) Thus the trial court clearly possesses the power to dissolve a preliminary injunction absent a change of facts or law from the time of issuance to the time of dissolution.

However, power and propriety require separate considerations. There must be sufficient basis in the record to support the action taken by the court. (Grossman v. Grossman (1940), 304 Ill. App. 507, 26 ...


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