People ex rel. Boer v. Geary

• Decision Date: 01 May 1944
• Docket Number: Gen. No. 42326.
• Parties: PEOPLE EX REL. DE BOER ET AL. v. GEARY ET AL.
• Court: United States Appellate Court of Illinois

323 Ill.App. 32

54 N.E.2d 840

PEOPLE EX REL. DE BOER ET AL.

v.GEARY ET AL.

Gen. No. 42326.

Appellate Court of Illinois, First District, First Division.

May 1, 1944.

Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Proceeding by the People of the State of Illinois, on the relation of Louis De Boer and others, against Joseph P. Geary and others, as Civil Service Commissioners of the City of Chicago, and others, for writ of mandamus to compel respondent to require the places and positions of employment in the Chicago Relief Administration to be classified in the civil service. From an order sustaining respondent's motion to strike and dismiss petitioner's first amended petition, petitioners appeal.

Reversed and remanded. Poppenhusen, Johnston, Thompson & Raymond, of Chicago (Anan Raymond and Albert E. Jenner, Jr., both of Chicago, of counsel), for appellants.

Barnet Hodes, Corp. Counsel, of Chicago (James A. Velde, Fred V. Maguire, Carl H. Lundquist, Asst. Corp. Counsel, and L. Louis Karton, all of Chicago, of counsel), for appellees.

NIEMEYER, Justice.

Petitioners appeal from an order sustaining respondents' motion to strike and dismiss petitioners' first amended petition for mandamus to compel the respondents to require the places and positions of employment in the Chicago Relief Administration to be classified in the civil service under the City Civil Service Act (Ill.Rev.Stat.1943, chap. 24 1/2, pars. 39-77) and dismissing the petition.

In February 1932 the Illinois Emergency Relief Commission was created to provide relief to residents of the State of Illinois who, by reason of unemployment or otherwise, were destitute and in necessitous circumstances and, to that end, to make use of and cooperate with counties, townships and any other municipal corporations charged by law with the duty of providing relief, and with other local relief agencies. Laws of Illinois, 1932, 3rd special session, page 191. The life of the commission was limited to March 1, 1933, but was extended from time to time until in 1941 it was superseded by the Illinois Public Aid Commission, a permanent body. Ill.Rev.Stat.1941, chap. 23, pars. 393-394. Prior to the creation of the relief commission the duty of relieving and supporting poor and indigent persons was imposed on counties and townships. Ill.Rev.Stat.1933, chap. 107, pars. 14-15. In 1935, by amendment of section 14 and repeal of section 15 of the Paupers act, the duty of relieving and supporting all poor and indigent persons lawfully resident therein was imposed on the counties. Ill.Rev.Stat.1935, chap. 107, pars. 14-15. At the second special session of the legislature in 1936 a number of the sections of the Paupers act were amended and other sections added. Laws of Illinois, 1935-1936, 2nd special session, pages 73-78. We are concerned only with amended section 14 and added sections 14a and 17a. By amendment to section 14, counties not under township organization were exempted from the duty “to relieve and support poor and indigent persons lawfully resident therein who are also lawful residents of any city, village or incorporated town having a population of more than 500,000 inhabitants and located within or partly within such county,” and by added section 14a the duty to relieve and support their poor and indigent residents was imposed on such cities, villages and incorporated towns. Added section 17a required such cities, villages and incorporated towns having a population of more than 500,000 inhabitants to “provide by ordinance for the appointment of an overseer of the poor or like officer and for such other employees and assistants as may be necessary to properly relieve and support the poor and indigent persons lawfully resident therein.” At the same session of the legislature the act creating the Illinois Emergency Relief Commission was amended to terminate its direct administration of local relief after July 1, 1936, and to make provision for allocation of moneys paid over to the county treasurer for purposes of relief, to governmental units other than the county--such as the City of Chicago--required by law to provide relief and support. Laws of Illinois, 1935-1936, 2nd special session, pages 27-29. To meet this statutory obligation the City of Chicago by ordinance July 1, 1936, created the office of Commissioner of Relief. This ordinance provided that the commissioner “shall appoint, according to law, such assistants, clerks and subordinates in his office as may be authorized from time to time by appropriation ordinances, and he may remove any such appointees according to law.” (Italics ours.) Thereafter, by sundry appropriation ordinances, the city from time to time appropriated taxes levied by it, pursuant to section 16--2 of the Cities and Villages Act (Ill.Rev.Stat.1943, chap. 24, art. 16, par. 16--2), as well as state funds allocated to the city and paid into the city treasury, for the employment and payment of the employees under the Commissioner of Relief in the Chicago Relief Administration. In 1941 these employees exceeded 2900 in number and consisted of chiefs of divisions, supervisors, directors, case workers, investigators, stenographers, clerks and other office help, messengers, maintenance men, janitors, skilled tradesmen and engineers. The annual payroll was in excess of $3,000,000.

In 1895 the City of Chicago adopted the Civil Service Act. Ill.Rev.Stat.1943, chap. 24 1/2, pars. 39-77. Section 3 of that act requires that the civil service 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 eleven 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 11 exempts from the classified service “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, police officers above the grade of captain * * *.”

Respondents confine their argument here to the contention that a correct construction of the applicable statutes is, that the employees of the office of the Chicago Commissioner of Relief were not intended by the legislature to be subject to the civil service law. They argue that this intent is established by the fact that the Chicago Commissioner of Relief is successor to and coordinate with agencies not under civil service, by the language of section 17a of the Paupers act, by circumstances attending the enactment of that section, and by other aids to statutory construction. Their claim that the commissioner of relief is successor to agencies not under civil service is not supported by the facts. The Illinois Emergency Relief Commission ceased the direct administration of local relief July 1, 1936. Up to that time the Cook County Bureau of Public Welfare was the agency through which the state administered relief within Chicago and Cook county. Its employees were and are under civil service. Ill.Rev.Stat.1943, chap. 34, par. 67d. Since July 1, 1936, relief of residents of Chicago has been administered by the Chicago Relief Administration, under the direction of the commissioner of relief. Respondents claim that he is the successor to the state commission. In 1932 the secretary (not a member) of the state civil service commission took the position that the employees of the state relief commission were not under the state civil service act. In 1935 the Attorney General gave an opinion that such employees should be classified under the civil service law. This was never done. Respondents say: “It is immaterial here whether or not the employees of the state commission should have been classified.The important fact here in seeking the intention of the legislature in providing for the creation of the Chicago Commissioner of Relief is that the employees of the state commission were actually not classified.” With this we cannot agree. Intent of the legislature cannot be predicated upon misinterpretation of the law (People v. Sergel, 269 Ill. 619, 624, 110 N.E. 124), and certainly not upon wilful disobedience of it. An examination of the state civil service act confirms the opinion of the Attorney General, which is in accord with the decision in Kraus v. Singstad, 275 N.Y. 302, 9 N.E.2d 938, holding that employees of the emergency relief agency of New York should be classified under civil service.

Neither can we give weight to respondents' claim that the Chicago Commissioner of Relief is coordinate with the agencies established for towns or precincts. The latter agencies are created for governmental...