People ex rel. Gilbert v. Hurley

• Decision Date: 30 December 1948
• Docket Number: Gen. No. 44541.
• Parties: PEOPLE ex rel. GILBERT v. HURLEY et al.
• Court: United States Appellate Court of Illinois

336 Ill.App. 205

83 N.E.2d 512

PEOPLE ex rel. GILBERT

v.HURLEY et al.

Gen. No. 44541.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1948.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding by the People of the State of Illinois on the relation of Daniel A. Gilbert against Stephen E. Hurley, John W. Clarke, and Albert H. Williams, Civil Service Commissioners of the City of Chicago, and John C. Prendergast, Commissioner of Police of the City of Chicago, for a writ of mandamus directing the respondents to correct its records concerning the age of relator so that he might receive the salary of police captain on and after August 31, 1948, until August 31, 1952 and for other relief. From a judgment for the relator the respondents appeal.

Judgment affirmed.Benjamin S. Adamowski, Corp. Counsel of City of Chicago, of Chicago (L. Louis Karton and Sydney R. Drebin, Asst. Corp. Counsel, both of Chicago, of counsel), for appellants.

Michael F. Ryan, of Chicago (Richard F. McPartlin, Jr., of Chicago, of counsel), for appellee.

FRIEND, Justice.

The plaintiff, Daniel A. Gilbert, filed a complaint for a writ of mandamus praying that the court compel the Civil Service Commission of the City of Chicago to expunge from its records and hold for naught all official documents showing the date of his birth as being August 31, 1885; that it take all necessary steps to correct its records to show the date of his birth to be August 31, 1889, and so certify to the Commissioner of Police; and that the Commissioner of Police recognize such certification so that plaintiff may continue to perform the duties and receive the salary of captain of police on and after August 31, 1948 and until August 31, 1952, if he then be in the classified service, or until he be removed or discharged as provided by law. Trial by the court upon plaintiff's complaint, the answer of defendants, plaintiff's reply and evidence adduced upon the hearing, resulted in the entry of a judgment ordering the writ to issue as prayed, from which defendants appeal.

It appears from the pleadings that on December 21, 1914 plaintiff filed his application to take the original entrance examination for patrolman in the classified civil service of the City of Chicago. Thereafter, on April 6, 1917, he was appointed patrolman and promoted successively to the ranks of sergeant of police on May 6, 1922, lieutenant of police on August 2, 1924, and captain of police on January 25, 1926. For more than 15 years last past he has been assigned to the state's attorney's office by the Commissioner of Police, and has served as chief investigator for said office. During his service in the Police Department he has received nine creditable mentions. Plaintiff alleged in his petition and now contends that the application filed by him for the original entrance examination for partolman on December 21, 1914, being application No. 1585-E, stated his date of birth as August 31, 1889, which, if true, would not make him subject to compulsory retirement until August 31, 1952.

Prior to filing his application on December 21, 1914 for the examination for patrolman, plaintiff had, on March 19, 1912, filed an application for the examination for position of police driver, in which he gave the date of his birth as August 31, 1885. Having successfully passed that examination, he was certified and appointed a police driver on September 29, 1913, and after having served less than two months in that position, he voluntarily resigned on November 18, 1913. Some time prior to December 1935 both of these original applications were lost or mislaid, and are not available.

An amendment to section 12 of the Civil Service Act which became effective July 12, 1935 (Ill.Rev.Stat.1947, ch. 24 1/2, par. 51) provides that ‘whenever the city council of any city * * * shall designate by ordinance * * * any specific age of not less than sixty-three (63) years as the maximum age for legal employment of policemen or firemen in the service of any city which has adopted or shall adopt this Act or shall designate any minimum age for the automatic or compulsory retirement of policemen or firemen in the service of such city any such policeman or fireman to whom such ordinance or law may refer or apply upon attaining said designated age of sixty-three (63) years or upwards as set out in said ordinance or law shall forthwith and immediately be retired from the service of such city in accordance with the terms or provisions of such ordinance or law,’ and ‘that in the case of any such policeman or fireman who shall have filed an application for appointment in the classified civil service of such city the age stated in such application shall be conclusive evidence against such policeman or fireman of the age of such policeman or fireman * * *.’ (Italics ours.)

Pursuant to the provisions of the foregoing statute the City Council of the City of Chicago passed the following ordinance on February 24, 1937 (Revised Chicago Code 1931, as amended, sec. 675-A): ‘The age of sixty-three (63) years shall be the maximum age for legal employment of policemen and firemen in the classified civil service of the City of Chicago. Every policeman and every fireman in the classified civil service of the City of Chicago who has attained or shall hereafter attain the age of sixty-three (63) years shall forthwith and immediately be retired from service.’

Under section 7 of rule VI of the Rules of the Civil Service Commission, in force and effect since 1935, ‘when any such policeman or fireman in the classified civil service has filed an application for appointment in the classified civil service of the City of Chicago the age stated in such application shall be conclusive evidence of the age of such policeman or fireman.’ (Italics ours.) Pursuant to the amendment to section 12, the Commission made an examination of all applications to clarify and correct its records as to the ages of the members of the Police and Fire Departments for the purpose of compulsory retirement in the future, and it is alleged in plaintiff's complaint ‘that inadvertently or otherwise the records of the Commission pertaining to the age of the plaintiff were in dispute because (a) the previous application for police driver, from which position he resigned, bore the date of birth August 31, 1885, and (b) his application for entrance examination as a patrolman shows the date of his birth as August 31, 1889; that the latter only can and should fix the age for compulsory retirement of the plaintiff.’

It appears that on August 27, 1945 an official communication from James M. McSweeney, Secretary of the Chicago Police Department, to the Commissioner of Police, in reply to an inquiry made by the Chicago Civil Service Commission at that time, included the name of the plaintiff, Captain Daniel A. Gilbert, among others, and certified that the records of the Department of Police showed that Gilbert's birth date was August 31, 1889, and that ‘no subsequent changes were made.’

It further appears that under the provisions of An Act to provide for the creation, setting apart, maintenance and administration of a policemen's annuity and benefit fund, approved June 29, 1921 (Ill.Rev.Stat.1947, ch. 24, par. 954), there was imposed on the proper officers of the city the duty to ‘(c) Procure for and transmit to the retirement board, in such form and at such time or times as shall be specified by said retirement board, all information requested by said retirement board concerning the service, age, salary, residence, marital condition, wife or widow, children, physical condition, mental condition, and death of any policemen employed by such city, in particular, information concerning service rendered by any such policeman prior to the first day in the month of January of the first year after the year in which this Act shall come in force and effect in such city. (d) Convey to the retirement board all information required by said retirement board concerning each newly appointed policeman immediately after the appointment of such policeman. (e) Certify to the retirement board, as of some day in each year to be fixed by said retirement board, the name of each policeman to whom this Act applies.’ In compliance with this statute, the Police Department certified all information pertaining to plaintiff, including the date of his birth, and it is alleged in the complaint that this information was taken from application No. 1585-E filed with the Civil Service Commission, and that the records of the Police Department furnished to the Retirement Board of the Policemen's Benefit Fund ‘show that the plaintiff Captain Daniel A. Gilbert was then a police patrolman in the 27th precinct and gave the date of his birth as August 31, 1889.’

The complaint alleges, and it is not denied, that shortly prior to December 24, 1947 the Civil Service Commission, through its secretary, notified plaintiff that there was to be a hearing to ascertain his correct age for the purpose of determining whether he should be included among those to be retired in 1948. That hearing was held January 9, 1948. Two days before the hearing a written stipulation was entered into between counsel for the respective parties that certain attached photostatic copies of the official records of the Police Department and of the Police Pension Board showing the date of plaintiff's birth ‘shall be introduced and filed with the Chicago Civil Service Commission in the matter of the hearing by the Chicago Civil Service Commission pertaining to the age stated in application and correct age of Daniel A. Gilbert as a member of the Department of Police of the City of Chicago, for the purpose of determination by the Civil Service Commission of the correct age and age stated in application of Daniel A. Gilbert when he became a patrolman in the Department of Police of the City of Chicago.’ (Italics ours.) The...