People ex rel. Carter v. Hurley

• Citation: 123 N.E.2d 341,4 Ill.App.2d 24
• Decision Date: 09 November 1954
• Docket Number: Gen. No. 46505
• Parties: PEOPLE of the State of Illinols. ex rel.Norman CARTER, Louis Miglore, James Lowery, Thomas Daly and George Hart, Appellees, v. Stephen E. HURLEY, Albert W. Williams and John J. Ahern, members of the Civil Service Commission of the City of Chicago, and Richard M. Smykal, Acting Commissioner of the Department of Buildings and Building Inspections of the City of Chicago, Appellants.
• Court: United States Appellate Court of Illinois

Page 341

123 N.E.2d 341

4 Ill.App.2d 24

PEOPLE of the State of Illinols. ex rel.Norman CARTER, Louis Miglore, James Lowery, Thomas Daly and George Hart, Appellees, v. Stephen E. HURLEY, Albert W. Williams and John J. Ahern members of the Civil Service Commission of the City of Chicago, and Richard M. Smykal, Acting Commissioner of the Department of Buildings and Building Inspections of the City of Chicago, Appellants.

Gen. No. 46505.

Appellate Court of Illinois, First District, Second Division.

Nov. 9, 1954.

John J. Mortimer, Corp. Counsel, Chicago, L. Louis Karton, Head of Appeals and Review Division, Harry H. Pollack, Asst. Corp. Counsel, Chicago, of counsel, for appellants.

ROBSON, Justice.

This is a mandamus action by plaintiffs, who are the unsuccessful candidates in a civil service examination for building inspector, to have the court declare void the eligible register resulting from said examination which was posted by defendant members of the Civil Service Commission of the city of Chicago, and for a temporary injunction restraining the Commission and the Acting Building Commissioner of the city of Chicago from certifying as building inspectors anyone named on the eligible register. The trial court granted a temporary injunction from which this appeal is taken. Plaintiffs (appellees) filed no brief in this court.

Defendants contend that the trial court erred in exercising equity powers and granting a temporary injunction because the complaint does not set out ground for equitable relief and plaintiffs have an adequate remedy at law.

The record reveals that plaintiffs, except Carter, who was a temporary plumber, were temporary building inspectors in the building department of the city of Chicago. As temporary employees they could be hired for a period not to exceed 60 days and could be discharged at any time. The position of building inspector is classified under civil service. Vacancies existed in this classification and defendants issued a call on February 24, 1954, for a written examination which was held on April 10, 1954. There had been 518 applications filed for the examination. Four hundred and eighty-five applicants took the examination and seventy-seven passed with a grade of 70 or upward. None of plaintiffs passed this examination. On May 12, 1954, the Commission posted an eligible list of the persons passing the examination.

A complaint incorporating a prayer for injunctive relief must provide grounds upon which a court can fix its equitable jurisdiction before an injunction may issue. It must appear from the complaint not only that the acts complained of are unauthorized and injurious but that they are injurious to civil, personal or property rights as distinguished from rights political in nature. Fletcher v. Tuttle, 151 Ill. 41, 57, 37 N.E. 683, 25 L.R.A. 143; see also Payne v. Emmerson, 290 Ill. 490, 494, 125 N.E. 329; Elder v. Mall, 350 Ill. 538, 541, 183 N.E. 578; Sergel v. Healy, 218 Ill.App. 245, 254. Defendants' acts of which plaintiffs complain are those of public officers and are political in character. Payne v. Emmerson, supra. Positions or places held under civil service are in the nature of public offices, political in character, and in these plaintiffs have no property right. People ex rel. v. City of Chicago, 337 Ill. 100, 104, 168 N.E. 904; People ex rel. Akin v. Kipley, 171 Ill. 44, 71, 49 N.E. 229, 41 L.R.A. 775.

If, therefore, plaintiffs have a remedy it must be at law. Plaintiffs complain that defendants did not properly exercise their functions under the law. Plaintiffs' remedy is therefore by way of mandamus. D. Gottlieb & Co. v. City of Chicago, 342 Ill.App. 523, 531, 97 N.E.2d 468; see also People v. City of Chicago, supra; People v. Kipley, supra. But plaintiffs in the instant case combined their mandamus proceeding at law with the equitable prayer for injunctive relief. In American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334, 121 N.E.2d 585, a civil right was involved and the court held that a prayer for injunction could properly be made in a suit for declaratory judgment. We find, however, no authority in support of the proposition that plaintiffs may, in a proceeding which involves a political right only, join both mandamus and injunction, and thereby avoid the settled law in this State that courts can entertain no equitable jurisdiction in actions involving rights solely political in character. The authority we find is directly contrary. See Delahanty v. Warner, 75 Ill. 185; Sheridan v. Colvin, 78 Ill. 237; Fletcher v. Tuttle, supra, and cases therewith cited; and D. Gottlieb & Co. v. City of Chicago, supra. We therefore conclude that the trial judge erred in entering the temporary injunction.

Defendants make a further contention that the trial court erred in basing the temporary injunction on an erroneous conclusion that the Cities Civil Service Act made a physical examination prior to the written examination mandatory and that such physical examination was a necessary competitive factor. We are not called upon to decide that point in view of our decision that the trial court erred in granting the temporary injunction. However, in an effort to avoid further litigation in this cause we express our views. In the mandamus portion of its complaint, plaintiffs' principal contention is that Section 6 of the Cities Civil Service Act, Ill.Rev.Stats.1953, ch. 24 1/2, par. 44, made mandatory a physical examination prior to the written examination for building inspector and that such physical examination was a necessary competitive factor. The pertinent parts of this section read as follows:

'All applicants for offices or places in said classified service, * * * shall be subject to examination, which shall be public, competitive, and open to...