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People Ex Rel. Mathes v. Foster

OPINION FILED SEPTEMBER 2, 1976.

THE PEOPLE EX REL. DWIGHT LOWELL MATHES, PETITIONER-APPELLANT,

v.

JOHN D. FOSTER ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding. MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

The People ex rel. Dwight Lowell Mathes filed a petition in the Circuit Court of Sangamon County against respondents John D. Foster, James Hatcher and Alfred Langenbach, as members of the Civil Service Commission of the State of Illinois, and Nolan B. Jones, Director of Personnel of the State of Illinois, seeking a writ of mandamus. Upon motion of respondents, the petition was dismissed for failure to state a cause of action and the cause stricken. Petitioner appeals.

Petitioner alleged that he was an employee of the Bureau of Employment Security of the State of Illinois, having obtained that position by competing in an open examination and by selection from a published eligibility list. He alleged that he was within a reasonable and logical promotional line for certain positions which had nevertheless been filled from within the department "without the holding of objective examinations, the publication of and selection from eligibility lists." The complaint alleged that it was the statutory duty of the defendants, under the provisions of the Personnel Code of the State of Illinois (Ill. Rev. Stat. 1973, ch. 127, par. 63b101 et seq.) to fill positions only by open competitive examination and by establishing an eligibility list. He requested a writ of mandamus requiring:

"The Respondents jointly and severally to submit proposed rules for the conduct of objective examinations to this Court and the publication of and selection from eligibility lists personnel within the Bureau of Employment Security to fill, by promotion, all new or vacant positions within the classified civil service, and that such rules, upon approval of this Court, be implemented."

• 1 If the petition stated some grounds for relief in mandamus it should not have been stricken even though petitioner would not be entitled to all of the relief prayed. (Illinois Watch Case Co. v. Pearson, 140 Ill. 423, 31 N.E. 400.) Mandamus should be awarded only where the petitioner has established a clear right to this extraordinary remedy. (White v. Board of Appeals, 45 Ill.2d 378, 259 N.E.2d 51.) However, "[a] doubt as to the law arising in connection with the construction of a statute does not justify a court in refusing to issue a writ of mandamus, where otherwise proper. It is the court's duty to solve such doubt." Mitchell v. Short, 251 Ill. App. 357, 363.

Section 8 of the Personnel Code (Ill. Rev. Stat. 1973, ch. 127, par. 63b108) provides for the Director of Personnel to prepare and submit to the Civil Service Commission for its approval rules for the positions and employees subject to the Act. The dispute in this case concerns the interpretation to be given to the requirements for the promulgation of rules by the terms of several sections of the Act. Section 8b.1 provides:

"§ 8b.1. For open competitive examinations to test the relative fitness of applicants for the respective positions. Tests shall be designed to eliminate those who are not qualified for entrance into or promotion within the service, and to discover the relative fitness of those who are qualified. The Director may use any one of or any combination of the following examination methods which in his judgment best serves this end: investigation of education; investigation of experience; test of cultural knowledge; test of capacity; test of knowledge; test of manual skill; test of linguistic ability; test of character; test of physical fitness; test of psychological fitness * * *." (Ill. Rev. Stat. 1973, ch. 127, par. 63b108b.1.)

Section 8b.2 provides:

"§ 8b.2. For promotions which shall give appropriate consideration to the applicant's qualifications, record of performance, seniority and conduct. An advancement in rank or grade to a vacant position constitutes a promotion." (Ill. Rev. Stat. 1973, ch. 127, par. 63b108b.2.)

Section 8b.3 provides:

"§ 8b.3. For the establishment of eligible lists for appointment and promotion, upon which lists shall be placed the names of successful candidates in order of their relative excellence in the respective examinations. The Director may substitute rankings such as superior, excellent, well-qualified and qualified for numerical ratings and establish eligible lists accordingly. * * *"

Section 8b.5 provides:

"§ 8b.5. For the appointment of the person standing among the 3 highest on the appropriate eligible list to fill a vacancy, or from the highest ranking group if the list is by rankings instead of numerical ratings, except as otherwise provides in Sections 4b, 4e and 17a of this Act." (Ill. Rev. Stat. 1973, ch. 127, par. 63b108b.5.)

Prior to 1963, section 8b.2 stated:

"For promotions which shall give appropriate consideration to the applicant's qualifications, record of performance, seniority and conduct. Vacancies shall be filled by promotion whenever practicable in the best interest of the service, and promotion shall be by competitive examination whenever practicable. An advancement in rank or grade to a vacant position ...


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