Brenan v. People ex rel. Civil Serv. Com'rs

• Decision Date: 21 December 1898
• Parties: BRENAN et al. v. PEOPLE ex rel. CIVIL SERVICE COM'RS.
• Court: Illinois Supreme Court

176 Ill. 620

52 N.E. 353

BRENAN et al.

v.PEOPLE ex rel. CIVIL SERVICE COM'RS.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Petition by the people, on the relation of the civil service commissioners of Chicago, against the board of education of such city and Thomas Brenan and others, for mandamus to compel the latter to make requisition upon the former for certificates of eligible candidates for positions of employment classified under the civil service act (Laws 1895, p. 85). From an order awarding the writ, defendants appeal. Affirmed.

Daniel J. McMahon, for appellants Thomas Brenan and others.

Collins & Fletcher, for appellant Alfred S. Trude.

S. P. Shope, for appellant John T. Keating.

William G. Beale and Donald L. Morrill, of counsel, for appellants.

T. A. Moran, John W. Ela, Levy Mayer, and C. R. Holden, for appellees.

CARTER, C. J.

The civil service commissioners of Chicago filed their petition in the circuit court of Cook county for a writ of mandamus to compel the board of education of the city to make requisition upon the civil service commission for certificates of eligible candidates for positions and places of employment classified under the civil service act (Laws 1895, p. 85), which said board was about to fill by appointment thereto, and to make such appointments from persons whose names should be certified by said commission. The board and its several members demurred to the petition, and contended that the civil service act does not apply to the board of education of the city of Chicago, and some of the defendants contended below, and contend here, that said act is unconstitutional. The trial court overruled the demurrer, and awarded the writ.

It is wholly unnecessary, on this appeal, to consider further the constitutional question raised, inasmuch as this court has, since the judgment below was rendered, fully considered and decided that question in People v. Kipley, 171 Ill. 44, 49 N. E. 229, and in Same v. Loeffler, 51 N. E. 785, and has held that the statute is not in conflict with the constitution. True, some additional reasons are advanced in this case, but we regard them as untenable. The only question, then, important to be considered or decided, is, does the civil service act apply to the employés of the board of education, or, rather, control such board in their employment or removal? Section 3 of the act provides that ‘said commissioners shall classify all the offices and places of employment in such city, with reference to the examinations hereinafter provided for, except those offices and places mentioned in section 11 of this act. The offices and places so classified by the commission 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 provides that the commission shall make rules for examinations, appointments, and removals in accordance with the act. Section 6 provides for free competitive examinations, of a practical character, of all applicants for offices or places in the classified service, except those exempted by section 11. Section 10 provides for notice to the commission by the head of the department in which a position in the classified service is to be filled, and for the certification by the commission to the appointing officer of the name and address of the candidate having the highest standing in the particular class or grade, and for the appointment of the person so certified on probation, but who may be discharged by such head of department during such probation upon reasons assigned in writing to the commissioners, and with their consent. Provision is also made for temporary appointments to meet exigencies in the public service. Section 11 is as follows: ‘Officers who are elected by the people, or who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, members of any board of education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, and one private secretary of the mayor, shall not be included in such classified service.’ Section 12 provides that no officer or employé in the classified service, appointed under the rules after examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense; that such charges shall be investigated by or before the commission, or some officer or board appointed by it, and that the finding, when approved by the commission and certified to the appointing officer, shall forthwith be enforced by such officer, but that nothing in the act shall be construed to limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days. There are other provisions not necessary to be referred to here.

A question is raised and discussed by counsel as to the meaning, in reference to the classified service, of the phrase in section 3, ‘all offices and places of employment in such city.’ It would do violence to the plain intent of the act to hold that offices or places of employment in the city in no wise connected with the offices or purposes of the municipal corporation are included in the act. It is plain from the scope and purpose of the statute, and the language employed in its different provisions, that offices and places of employment not so connected do not come within its provisions. Taking this view, the appellants contend that the board of education of Chicago is a public corporation under the general school laws of the state, separate and distinct from the city government; that it is no sense a department of the city government, but, even if not a public corporation, it is a state agency, charged by public law with the duty of administering, within the limits of the city of Chicago, the school laws, and with the maintenance and management of the public schools in the city, and, as such public corporation or state agency, is not subject to the civil service department of the city government. It is conceded, and is clearly true, that when the city was under its special charter, enacted, approved, and in force February 13, 1863 (Priv. Laws 1863, p. 40), the board of education was one of the departments of the city government; but the position of appellants is that substantially all of the provisions relating to schools in the act of 1863, and subsequent amendments, were repealed by the general school laws of 1872 (Laws 1871-72, p. 700) and 1889 (Laws 1889, p. 239). In 1875 the city of Chicago became incorporated under the general law for the incorporation of cities and villages, and its special charter is no longer in force, except so much of it as is not inconsistent with the general law. It is provided in section 6 of article 1 of said general law (Laws 1871-72, p. 218; 1 Starr & C. Ann. St. p. 454) that ‘all laws or parts of laws not inconsistent with the provisions of this act shall continue in force and applicable to any such city or village, the same as if such change of organization had not taken place.’ Now, the general law for the incorporation of cities and villages contains no provision whatever relating to schools. It is plain, therefore, that its adoption by the city of Chicago did not abrogate any of the provisions of its special charter relative to schools, unless, indeed, they, or some of them, are in other respects inconsistent with the general act of incorporation (Smith v. People, 154 Ill. 58, 39 N. E. 319); and no such inconsistency has been pointed out. Nor is it contended that the reincorporation of the city abrogated the provisions of the special charter relating to schools, but that they were repealed, as before stated, by the general school laws above mentioned. It is not contended that they were expressly repealed, but by implication only, as being inconsistent with such general laws. We are of the opinion that the repealing sections of the acts of 1872 and 1889, and the language used in other sections of the acts, indicate an intention not to repeal any parts of the special acts except such as were inconsistent with such general acts. The language of said sections, after naming the statutes repealed, is: ‘And all other acts and parts of acts inconsistent with this act, and...