Errant v. People ex rel. Williams

Mr. Presiding Justice Freeman delivered the opinion of the court. Appellant’s counsel raise a number of objections to the judgment complained of, first to the effect that appellee is not entitled to the writ of mandamus since the party applying for it has failed to show a .clear legal right, and the writ should not issue in doubtful cases; second, that costs were improperly awarded against the commissioners ¿nd execution improperly issued; and third, that by the amended answer sought to be filed Richard T. Fox was shown to have a legal interest in the cause and was a necessary party, that it was therefore error to refuse to allow the amended answer to be filed and to bring in said Fox. In the argument, however, appellants’ counsel expressly “waive any advantage we may-have by reason of lack of proof or insufficient allegations in the petition or for any other reason whatever” in order to obtain a decision upon the merits. They tell us the sole desire of appellants is to have the court advise them as to what their powers are in the premises, and do not wish to have the judgment reversed unless at the same time the court should determine the main issue. The questions to be determined are stated by appellee’s counsel to be, first, what is the meaning of the phrase “in all cases where it is practicable,” as used in section 9 of the Civil Service Act ? and second, are ward superintendents of the rank next below that of the assistant superintendent of streets in charge of street and alley cleaning ? Section 3 of the Civil Service Act requires the commissioners to “classify all the offices and places of employment in such city with reference to the examinations hereinafter provided for, * * *. The offices and places so classified by the commissioners shall constitute the classified civil service of such city; and no appointments to any of such offices or places shall be made except under and according to the rules hereinafter mentioned.” Section 4 of the Act requires the commission to “make rules to carry out the purposes of the act and for examinations, appointments and removals in accordance with its provisions, and the commission may from time to time make changes in' the original rules.” Section 9 of the Act requires that the commission “shall by its rules provide for promotions in such classified service on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases where it is practicable that vacancies shall be filled by promotion. All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination.” It is contended in behalf of the commission that the clause “in all cases where it is practicable” vests in it discretionary power to determine that question, and that this discretion may not be reviewed by any court except in a proceeding brought directly for that purpose. It appears that, the commissioners have announced that in their judgment it was impracticable to fill the position in controversy, that of assistant superintendent in charge of street and alley cleaning, by a promotional examination. It is insisted on the other hand that by the statute it is the commissioners’ duty to determine that it is practicable to fill a vacancy by promotion excepting in certain contingencies, and that they cannot arbitrarily determine whether filling a vacancy by promotion is or is not practicable. Among the contingencies referred to, in which the commissioners, it is said, might properly find it impracticable to fill a position by a promotional examination, are said to be (1) when there are not at "least two members of the next lower rank; (2) when, although there are two or more persons in the next lower rank, only one of them registers for the examination; and (3) when although two or more are entitled to and do submit themselves to examination none of them succeeds in passing satisfactorily, and it it said that if there are other cases where promotional examinations are impracticable, the case where there are two or more members of a next lower rank entitled to participate in the promotional examination and who do participate and one or more of them successfully passes the examination, is not one of them. We are of. opinion that the statute requiring the commission to provide by its rules for promotional examinations “in all cases where practicable” has not vested it with an arbitrary discretion to determine, unless by its rulesj whether it is practicable that vacancies shall be filled by promotion. In Ptacek v. The People, 194 Ill., 125-132, it is said: “We- do not understand how the civil service commission could under its rules hold an original examination for the position * * * unless it is shown in some way that the vacancy in that office could not be filled by promotion.” It follows, we think, that the showing in such case must rest upon something substantial, such as a statutory prohibition, a general rule, or it may be upon evidence, and not upon a mere arbitrary assertion by the commission that the special case is one where a promotional examination is impracticable. When the case last cited was pending in the Appellate Court (94 Ill. App., 571-576) it was said: “There is no merit in the contention that it is shown by the pleas to have been impracticable to hold the examination as was required by the Civil Service Act and the rules of the board.” In that case the pleas showed that it was practicable, and it was held that the competitive examination should have been limited to employees of the next lower grade. Unless it appears in the present case that a promotional examination is impracticable under the civil service law and the rules applicable, such examination should have been held, and the announcement by the commissioners that in their judgment it was impracticable to fill the position in controversy by a promotional examination was not a final determination of the question, binding upon the court. If it was in law and fact so practicable under the rules applicable it was the clear duty of the commission to proceed accordingly, and the courts may so determine. That this is the rule in this State must, we think, be deemed settled. Ptacek v. The People, supra. It is admitted in the stipulation as to facts that “unless the respective ranks of assistant superintendent of streets in charge of street and alley cleaning and ward superintendents are to be determined by the single test of their respective salaries, the office of ward superintendent is of the next lower rank to that of assistant superintendent of streets in charge of street and alley cleaning.” It appears that the commission has by its rules (section 4, rule 2) provided that “the terms grade and rank wherever used in the Civil Service Act or Eules, shall be treated as synonymous and convertible terms. The grades shall be uniform in all classes and divisions and based upon compensation as follows: 1st grade, less than $800 per annum,” etc. There are ten of these grades, the 10th grade being “$3,000 or more per annum.” If therefore the classification by the rule last referred to is made as required by section 4 of the Civil Service Act, “to carry out the purposes of the Act,” and is within the power conferred upon the commission by that Act, then the grade or rank of civil service appointees must be deemed to be determined by such classification. The stipulation clearly imports that if the respective ranks of assistant superintendent of streets in charge of street and alley cleaning and of ward superintendents are to be determined by such classification, the office of ward superintendent is not of the next lower rank to that of said assistant superintendent. It appears from appellee’s petition that under the classification by compensation there are two appointees in the bureau of streets who rank next below the assistant superintendent of streets in charge of street and alley cleaning, and above the grade of ward superintendents. One of these is the assistant superintendent of streets and another is the clerk for street and alley cleaning. It appears from the statement of admitted facts that the assistant superintendent of streets is the superior of the ward superintendents who are under his direction in matters other than street cleaning and garbage removal, as to which matters they receive directions from the assistant superintendent in charge of street and alley cleaning. It is argued in behalf of appellee that there is no warrant for determining rank by the test of salary, that rank is regulated by the constitutional or legislative act creating the office. It is, however, the legislative body—in this case the city council—which fixes the salary of city officials, not the civil service commission. It may he that the commissioners might have adopted with equal propriety another system of grading positions, but that the system adopted is reasonable and within the power conferred upon them by the Oivil Service Act is, we think, not open to serious question. In People ex rel. Sims v. Collier, 175 N. Y., 196—203, the court said: “The duty which the civil service commissioners were called upon to perform in determining into which class of the civil service the positions occupied by the relators herein belonged was guasi-judicial in its character and involved the exercise of judgment. The statute simply directed them to classify. It did not attempt to specify the class into which the positions held by the relators should be placed. The duty was imposed upon the commissioners. If they failed to perform it at all, the courts could undoubtedly have issued writs of mandamus to compel its performance. But the writs in the proceedings at bar were not issued for that purpose. The commissioners had acted.” The statute under consideration here did not attempt to direct the commissioners how to “classify all the offices and places of employment in such city.” The method of classification was left to them, and we are of opinion that the court cannot by mandamus direct them to adopt a certain standard of classification, which others may deem preferable to that employed. The same method of classification—that of salary or compensation—seems to have been employed in the State Civil Service rules of New York (Collier on Civil Service, p. 278, section 11, rule 1). It is argued that this method “is calculated to take away all the benefits intended to be accomplished by the system of promotional examination.” If in fact ward superintendents were members of the next lower rank, competitive examination among them for the office in controversy would be required by section 9 of the Act. But- under the classification adopted they are not so next in rank. We are of opinion that in the present case promotional examination was not practicable under the Civil Service Act and the rules adopted. For the reasons indicated the judgment of the Circuit Court is reversed and judgment will be entered here dismissing the petition. Reversed and judgment here.