People ex rel. Akin v. Kipley

• Decision Date: 22 December 1897
• Citation: 171 Ill. 44,49 N.E. 229
• Parties: PEOPLE ex rel. AKIN, Atty Gen., v. KIPLEY, Superintendent of Police, et al.
• Court: Illinois Supreme Court

171 Ill. 44

49 N.E. 229

PEOPLE ex rel. AKIN, Atty Gen.,

v.KIPLEY, Superintendent of Police, et al.¹

Supreme Court of Illinois.

Dec. 22, 1897.

Petition by the people, on the relation of E. C. Akin, attorney general, for writ of mandamus to compel Joseph Kipley, as superintendent of police, and others, to declare vacancies in the police department, and to make appointments under the civil service act. Writ awarded.

Phillips, C. J., and Boggs, J., dissenting.

Edward C. Akin, Atty. Gen., Smith, Blair & Smith, Edwin Burritt Smith, and Murray Nelson, Jr., for relators.

Thos. A. Moran, John W. Ela, and Levi Mayer, for respondents.

At the June term, 1897, of this court, to wit, on June 1, 1897, the attorney general filed a motion for leave to file an original petition for mandamus. Leave was granted to file the petition, and it was so filed on June 2, 1897. The petition prays for summons for Joseph Kipley, superintendent of police of Chicago, and Adolph Kraus, Dudley Winston, and Hempstead Washburn, civil service commissioners, requiring them to answer the petition. The petition alleges that vacancies exist in the positions of assistant superintendent of police, inspectors of police, and captains of police; that such positions have not been filled in accordance with the terms of the ‘Act to regulate the civil service of cities'; that, upon the occurrence of such vacancies, it was the duty of the superintendent of police, as the head of the department of police of the city of Chicago, to notify the civil service commissioners of said city of such vacancies; that, upon such notification, it was the duty of said commissioners to submit to the said superintendent of police the names of not more than three applicants in each grade or class next below the grade or class in which the vacancy existed, for promotion to such vacancies; that said superintendent of police claims the power to fill vacancies in the positions of assistant superintendent of police, inspectors of police, and captains of police in said city; that, in violation of the provisions of this act, said superintendent has assumed to fill some of such vacancies by appointing persons not in the classified lists formulated by said civil service commission, and not designated or selected by said commission for appointment or promotion; that said superintendent has attempted to appoint one Lyman Lewis as assistant superintendent of police, and one John J. Harkness as inspector of police. The petition further alleges the passage of the ‘Act to regulate the civil service of cities,’ on March 20, 1895; the adoption of the same by the city of Chicago at the general city election held on April 2, 1895; the proclamation of George B. Swift, then mayor of said city, issued on July 1, 1895, declaring the adoption of said act, and that the same was in full force after the date of said proclamation; the appointment by said Swift, as mayor, on July 1, 1895, of three civil service commissioners under said act, to wit, John M. Clark, Robert A. Waller, and Christopher Hotz; the qualification of said commissioners; and the adoption by said commissioners of certain ‘Civil Service Rules,’ which rules are appended as an exhibit to said petition. The petition further alleges that on April 6, 1897, Carter H. Harrison was elected mayor of said city, as the successor to said Swift, and qualified as such mayor; that thereafter said Waller resigned his position as one of said civil service commissioners, and said Clark and Hotz were removed from said commission by the said Carter H. Harrison, mayor; that the respondents Winston, Kraus, and Washburn were appointed commissioners in place of said Clark, Waller, and Hotz, and have duly qualified and are acting as such commissioners. The petition also alleges that the rules of the first board of commissioners, which were adopted as aforesaid, have not been altered or changed; that, by such rules, the old board of commissioners, in the year 1895, classified the offices of assistant superintendent of police, inspectors of police, and captains of police, and thereby brought them within the terms and provisions of said civil service act; that by an opinion in writing addressed to the mayor, and signed by the respondents, who constitute the present board of commissioners, and promulgated on or about May 22, 1897, the positions of assistant superintendent of police and inspectors of police were held by the present board of commissioners not to be required to be classified under said act, and to be exempt from the rules and regulations of said commissioners. The petition also sets forth ordinances of the city of Chicago, showing that, before and at the time of the passage of the civil service act, there was established an executive department of the municipal government of Chicago, known as the department of police, embracing the superintendent of police and other officials; that there was created the office of superintendent of police, who should be the head of said department of police, and should hold his office for the term of two years, and until his successor should be appointed and qualified. The ordinances referred to in the petition also provide that said superintendent of police shall be appointed by the mayor, by and with the advice and consent of the city council. It is also alleged in the petition that, prior to the passage of said civil service act, ordinances had been adopted by the city council of Chicago relating to the department of public works, the department of health, and other departments, by which a head of each department was established in terms similar to the provisions relating to the department of police. The petition represents that on April 15, 1897, the respondent Joseph Kipley was, by Carter H. Harrison, mayor of said city, appointed superintendent of police, and was afterwards duly confirmed by the city council, and qualified as such superintendent, and caused the city to be divided, or accepted a division of said city theretofore made, into four divisions and fifteen districts, and assigned, or recognized as having been assigned, to each division an inspector of police, and to each district a captain of police. The petition prays that a writ of mandamus may issue to the said Joseph Kipley, as superintendent of police, directing and commanding him to notify the civil service commissioners of vacancies existing in the positions of assistant superintendent of police, inspectors of police, and captains of police in said city, and to said Kraus, Winston, and Washburn, as such civil service commissioners, commanding them to submit to said Kipley, as such superintendent of police, the names of not more than three applicants for promotion for each vacancy from the grade next below that in which such vacancy or vacancies exist, etc.

On June 14, 1897, the respondent Kipley filed a separate answer, in which, among other things, he set up that the said civil service act was unconstitutional and void. The said answer admits that the present civil service commissioners, on May 22, 1897, promulgated the opinion mentioned in the petition, holding that the positions of assistant superintendent of police and inspectors of police were not required to be classified under said civil service act, and were exempt from the rules and regulations of said commissioners. The answer avers that the true construction of the third and eleventh sections of said act, if the same have any force or validity, is stated in the opinion of May 22, 1897, a copy of which opinion is annexed to the answer and made a part thereof. The answer also adopts and makes a part thereof a certain opinion dated May 5, 1897, given by Charles S. Thornton, corporation counsel of said city, to the said Carter H. Harrison, mayor; therein holding that said positions of assistant superintendent of police, inspectors of police, and captains of police, and other subordinate positions in the department of public works, of building, of health, of fire, and of police, are not required to be classified under said act, and are exempt from its provisions, and from the rules and regulations of the commissioners. The answer of the respondent Kipley avers that the said respondent has followed the construction of the provisions of said act as given in the opinions aforesaid. The answer further sets up that the respondent neither admits nor denies that, by the rules referred to in the petition, the first board of civil service commissioners for the year 1895 classified the offices of assistant superintendent of police, inspectors of police, and captains of police, as stated in the petition; but in his answer the said Kipley positively denies that the said positions were by said rules, or could be, brought within the terms and provisions of said civil service act. The answer furthermore admits the existence of the vacancies in the department of police referred to in the petition, and that the said respondent Kipley has caused the same to be filled. On June 15, 1897, the people, by the attorney general, demurred to the answer of the respondent Kipley.

On June 14, 1897, the respondents Kraus, Washburn, and Winston, civil service commissioners, aforesaid, filed their answer to the petition, and filed and annexed thereto a copy of the answer filed by them in another proceeding for mandamus instituted against them, as civil service commissioners, at the same time at which the present proceeding was instituted, but to which the said Kipley was not made a party defendant. The said civil service commissioners also adopt, as part of their answer, the answer filed herein by said Kipley, except so much of Kipley's answer as attacks the validity and constitutionality of said civil service act. The answer of said commissioners admits the appointment of Lyman Lewis as assistant superintendent of police, and of John J. Harknessas inspector of police by the said Kipley, and alleges...