People ex rel. Clark v. Hurley

• Decision Date: 09 April 1951
• Docket Number: Gen. No. 45153
• Parties: PEOPLE ex rel. CLARK et al. v. HURLEY et al., Civil Service Commissioners of City of Chicago. . First District. First Division
• Court: United States Appellate Court of Illinois

Page 596

98 N.E.2d 596

343 Ill.App. 182

PEOPLE ex rel. CLARK et al. v. HURLEY et al., Civil Service Commissioners of City of Chicago.

Gen. No. 45153

Appellate Court of Illinois First District. First Division.

April 9, 1951.

Rehearing Denied April 27, 1951.

John J. Mortimer, Corp. Counsel of City of Chicago, Chicago, L. Louis Karton, Head of Appeals and Review Division, Sydney R. Drebin, Asst. Corporation Counsel, Chicago, of counsel, for appellants.

Michael F. Ryan, Chicago, Richard F. McPartlin, Jr., Chicago, of counsel, for appellees.

TUOHY, Justice.

Judgment was entered in the Superior Court of Cook County on December 6, 1949, for a writ of mandamus directing the Civil Service Commission of the City of Chicago to cancel the eligible register created by an examination held for "lineman" on October 28, 1947, established and posted by the Civil Service Commission on or about June 2, 1948, to expunge from the records of the Civil Service Commission the results of the examination and to cancel and nullify any action taken, or certification made, as a result of said examination; and ordering the Commission within 90 days from the date of judgment to hold an original entrance examination for the filling of vacancies in the position of lineman in the classified service of the City of Chicago. From this judgment order defendants appeal.

Plaintiffs' claim to remedy by mandamus is based upon these principal contentions: (1) that the original examination held on October 28, 1947, is void and contrary to the statute in that it did not relate to matters which would fairly test the relative capacity of the person examined to discharge duties of lineman and did not have any test of manual skill although such test was proper; (2) that the test was not truly competitive because in calculating the mark for "Experience" in said examination one point was taken off for each year of the applicant's age over thirty-five, although no previous notice of such procedure had been given and no maximum age limitation had been fixed in the call and notice for such examination; (3) that the examiners were all members of the same political party in violation of the statute; and that for these reasons any certifications and appointments made from the eligible list were void.

The evidence discloses that on October 2, 1947, the Civil Service Commission of the City of Chicago issued a call for an original examination to be held on October 28, 1947, for the filling of vacancies in the position of lineman in the classified service of the City of Chicago. The call described the duties of lineman. It set forth that the scope of the examination would be Special Subjects (5), Experience (3), and Physical (2). The plaintiffs and sixty-four other persons represented by them had been performing duties as lineman under temporary appointments for a number of years prior to the examination.

The questions used in the examination were the same as those used by different civil service commissions throughout the United States, and were procured by the Chief Examiner of the Commission, James S. Osborne, from the Civil Service Assembly of the United States and Canada. They were prepared by the Commission with the help of one WArd Hannegan, an employee of the Department of Streets and Electricity of the City of Chicago, and one Joseph Fleischer, an employee of the City of Chicago in the Bureau of Electricity. Neither of these employees graded the papers or did anything other than assist in the preparation of the questions.

The minutes of the Commission show that a total mark of 100 eas given for "Experience," allocated by giving education 15, practical experience 70, and other experience tending to qualify 15; and provided further that for every year the applicant was over 35 years of age one point should be deducted from the total grade received by the applicant for "Experience." It is not disputed that this procedure had been followed for the past 40 years and that it is a formula that has been adopted by every Civil Service Commission in the country for marking "Experience."

The proof further showed that certain weights were given to the various subjects on the examination: Special Subjects (written examination) being given a weight of 5, Experience a weight of 3, and Physical a weight of 2; that the deduction of one point a year pertained only to Experience, and therefore if an applicant got 100 in the written examination and 100 in the physical examination, or a total weight of 7, he would receive a passing grade of 70 irrespective of age.

The Civil Service Commission has never kept minutes of an examination giving notice of detailed tests, seniority, efficiency and experience; there was no rule requiring the Commission to give such notice and the practice had been not to specify in detail the points to be considered in rating applicants.

The section of the statute under which the examination was held, section 6 of an Act to regulate civil service of cities (Ill.Rev.Stat.1949, chapter 24 1/2, paragraph 44), provides in part:

"All applicants for offices or places in said classified service * * * shall be subject to examination, which shall be public, competitive, and open to all citizens of the United States, with specified limitations as to residence, age, health, habits and moral character. * * * Such examinations shall be practical in their character, and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions to which they seek to be appointed, and shall include tests of physical qualifications and health, and when appropriate of manual skill * * *. The commission shall control all examinations, and may * * * designate a suitable number of persons * * * to be examiners * * *. The examiners at any examination shall not all be members of the same political party."

The statute, it is to be noted, says that a test of manual skill shall be given when appropriate, and it leaves to the discretion of the Civil Service Commission the determination of such appropriateness. Plaintiffs urge that the determination of appropriateness of a test of manual skill is not wholly within the Civil Service Commission's discretion and that under the facts of this case it was proper and necessary for the Civil Service Commission to include a test of manual skill. While it is true that the courts have a right to review the decisions of the Civil Service Commission for the purpose of determining whether or not there has been an abuse of discretion, the law is well established that unless such discretion is exercised in such an unreasonable manner as to indicate fraud or arbitrariness, the courts have no right to interfere with the findings of the Commission. In the case of People ex rel. Elmore v. Allman, 382 Ill. 156, at page 164, 46 N.E.2d 974, at page 978, in discussing the discretionary powers of the Civil Service Commission, the court said "Before a mandamus writ may issue it must clearly appear that the petitioner has a clear right to the relief he seeks. Stott v. City of Chicago, 205 Ill. 281, 68 N.E. 736; Swift v. Klein, 163 Ill. 269, 45 N.E. 219. If the administrative body or inferior tribunal has acted without power, then mandamus is the proper remedy to expunge the void orders from its record. People [ex rel. Carlstrom] v. Shurtleff, supra [355 Ill. 210, 189 N.E. 291]; People [ex rel. Kennon] v. La Buy, supra [305 Ill. 11, 136 N.E. 870]; People ex rel. Waver [Waber] v. Wells, 255 Ill. 450, 99 N.E. 606. It is not a writ of right. People ex rel. Beardsley v. City of Rock Island, 215 Ill. 488, 74 N.E. 437; People ex rel. Akin v. Board of Supervisors, 185 Ill. 288, 56 N.E. 1044. Admittedly, mandamus does not lie to control or review the discretion of an inferior tribunal (People ex rel. Brachear v. Board of Supervisors, 308 Ill. 543, 139 N.E. 898; People ex rel. Thatcher v. Village of Hyde Park, 117 Ill. 462, 6 N.E. 33) and in mandamus actions against administrative officers, such as the commission in this case, the courts will not inquire into the merits of the matter that it may substitute its own judgment or discretion for that of the administrative body. People ex rel. Miller v. City of Chicago, 234 Ill. 416, 84 N.E. 1044, 1046. In this latter case it was said: 'Where acts and duties necessarily call for the exercise of judgment and discretion on the part of an officer, body, or person at whose hands performance...