People ex rel. Hurley v. Graber

• Decision Date: 18 January 1950
• Docket Number: No. 31147,31147
• Citation: 90 N.E.2d 763,405 Ill. 331
• Parties: PEOPLE ex rel. HURLEY et al. v. GRABER et al.
• Court: Illinois Supreme Court

Page 763

90 N.E.2d 763

405 Ill. 331

PEOPLE ex rel. HURLEY et al. v. GRABER et al.

No. 31147

Supreme Court of Illinois.

Jan. 18, 1950.

As Modified on Denial of Rehearing March 20, 1950.

Benjamin S. Adamowski, Corporation Counsel, of Chicago (L. Louis Karton, Carl H. Lundquist, and Sydney R. Drebin, of Chicago, of counsel), for petitioners.

Edmund D. Adcock and Murphy, Pearson & O'Connor, of Chicago, for respondent Joseph A. Graber.

Michael F. Ryan and Sheehan & Egan, of Chicago (Richard F. McPartlin, Jr., of Chicago, of counsel), for respondent Cornelius J. Harrington.

Roland V. Libonati and Lane, Duffy & Connell, of Chicago (Eugene F. Connell and Thomas J. Duffy, of Chicago, of counsel), for amicus curiae.

David H. Caplow, of Chicago, for intervening petitioner.

PER CURIAM.

The People of the State, on the relation of the three members of the civil service commission of the city of Chicago, the commissioner of police, the comptroller and the treasurer of the city of Chicago, filed in this court an original petition for a writ of mandamus, directing the defendants, Hon. Joseph A. Graber, a judge of the superior court of Cook County, and Hon. Cornelius J. Harrington, a judge of the circuit court of Cook County, to expunge from the records of the superior court an order directing that a writ of prohibition issue against the petitioners who were defendants in People ex rel. Steinway et al. v. Hurley et al. and to expunge from the records of the circuit court two orders enjoining the members of the civil service commission from demoting the plaintiffs in McLaughlin v. Hurley et al. and Golden et al. v. Hurley et al. The defendants interposed answers to the petition, the answers have been ordered to be considered as demurrers to the petition, and, upon these pleadings, the cause is submitted.

Fred Casey and eleven others appear as amici curiae in support of the position of the petitioners. Terence J. Ryan, a sergeant in the Chicago police department, past commander of Police Post 207, American Legion, Department of Illinois, on behalf of himself as a party in interest and representative of a class in interest, has filed an intervening petition and appears as amicus curiae in behalf of the position of defendants.

In People ex rel. Duffy v. Hurley, 402 Ill. 562, 85 N.E.2d 26, on March 24, 1949, two amendments to section 10 1/2 of the City Civil Service Act, designated as Senate Bill 625 and Senate Bill 692, approved on July 21 and August 8, 1947, relating to giving preference and advantage to persons under civil service who had rendered military service in past wars (Ill.Rev.Stat.1947, chap. 24 1/2, par. 49), where held to constitute an invalid delegation of legislative power because of vagueness, indefiniteness, and uncertainty in the application of military service credits to persons on promotional lists of cities operating under the act, leaving the application of various methods of computing the value of the military credit to administrative officers. Tracy Duffy was a police sergeant in Chicago who successfully passed the examination for the position of police lieutenant in May, 1941. He placed number 128 on the promotional eligible list and, by September 9, 1947, had advanced to number 9. On the day last named, as a result of military credits given to others on the list, certain eligibles were advanced and Duffy, a nonveteran, was lowered to position number 17. Thereafter, Duffy instituted a mandamus action in the circuit court of Cook County, alleging the constitutional invalidity of the amendments added to section 10 1/2 of the City Civil Service Act in 1947 and sought an order commanding the civil service commission and the police commissioner of Chicago to restore him to his proper relative standing on the list. Judgment was rendered awarding a writ of mandamus, as prayed, and, upon appeal, we affirmed the judgment. Subsequently, in obedience to the mandate of this court, Duffy was restored to his previous standing on the list of eligibles and has since been promoted to the rank of lieutenant on the police force.

The petition for mandamus alleges that, conformably to our mandate in the Duffy case, the members of the civil service commission, hereafter referred to as petitioners, revised the existing promotional registers by taking from the war veterans, whose names appeared on the existing eligible promotional registers, the military credit provided for in section 10 1/2 of the City Civil Service Act, as amended, and advancing those persons who were not entitled to military credit; that, from the existing eligible promotional registers, as last revised, the petitioners have certified the three applicants for each vacant promotional position having the highest grade and those persons have been appointed by the appointing power and are now occupying positions in the classified civil service of the city; that, insofar as the police department is concerned, all positions are occupied and no vacancies presently exist in any of the promotional positions in the department that there are innumerable persons whose names appear on existing promotional eligible registers who are entitled to certification and appointment in the classified civil service, as provided for in the statute and the rules and regulations of the civil service commission, but who cannot receive certification and appointment because the positions are occupied by persons who are certified and appointed by virtue of being afforded military credit prior to our decision in the Duffy case.

On April 19, 1949, the corporation counsel of the city of Chicago rendered an opinion in response to a request from the civil service commission 'as to whether under existing law this Commission may recognize or allow any military credit to anyone in respect of any such promotional list theretofore or hereafter posted by it, and, if so, how and under what circumstances.' This opinion was to the effect that our decision 'in striking down military preference on promotional lists is broad enough in its terms to affect the military credit provisions relating to promotional examinations which appeared in the original section 10 1/2 of the Cities Civil Service Act,' and that, accordingly, petitioners were required to refuse to recognize or allow any military credit to anyone with respect to promotional lists in the classified civil service; that the commission must proceed on the theory that those persons who have been promoted as a result of the unlawful award of military credit have no rights in the positions to which they have been promoted, can claim no protection in those positions, and have acquired no status therein, and that both the commission and the commissioner of police must take the necessary steps to remove from these promotional positions such persons as have been unlawfully appointed and appoint thereto the persons who would be rightfully entitled to them without military credit; that an employee so separated from the promotional position should be restored to the eligible list at the point where his grade in the examination, exclusive of any military credit, would place him, and that the employee should be restored to the position in the next lower rank or grade last previously held by him.

On April 18, 1949, one day prior to the rendition of the opinion of the corporation counsel, Lester J. Steinway and other sergeants of police filed in the superior court of Cook County a petition, and thereafter an amended petition with additional plaintiffs who were sergeants and lieutenants, for a writ of prohibition to prohibit and restrain the petitioners from demoting them from their respective positions in the classified service in the department of police. An order was entered on April 29, 1949, prohibiting and restraining petitioners from taking any action to demote or cause to be demoted Steinway and nineteen others from their positions as sergeants and Irving C. Alexander and three others as lieutenants in the classified service of the department of police.

Petitioners charge that Judge Graber lacked the power of jurisdiction to enter the orders directing the issuance of the permanent writ of prohibition for the reasons, among others, that the civil service commission is an administrative body, a part of the executive department of the city of Chicago; that the petitioners, under the City Civil Service Act and the rules and regulations of the commission, have complete and absolute power and jurisdiction over all the civil service employees of the city and, in consequence, have the power to demote the plaintiffs named in the amended petition for writ of prohibition who have been promoted to their positions as the result of the unlawful award of military credit.

On April 19, Thomas J. McLaughlin filed in the circuit court of Cook County a complaint for injunction, seeking an order restraining petitioners, the commissioner of police, the comptroller and the city treasurer, from demoting him from his position as captain of police. On April 22, John J. Golden, Thomas H. McCann, James C. Kelly and Edward Barcal filed in the circuit court a complaint for injunction seeking like relief, namely, an order restraining the demotion of Golden and McCann from their positions as lieutenants of police and Kelly and Barcal from their positions as sergeants. On April 26, Judge Harrington entered orders directing the issuance of the temporary injunctions during the pendency of the actions and, in the Golden case, 'until they are removed as provided by law.'

The petition for mandamus alleges that nine other complaints for injunction and petitions for writs of mandamus have been filed in the circuit and superior courts of Cook County against the six petitioners here. An additional allegation is made that there are still pending and undisposed of in the circuit and superior courts three other petitions for writs of mandamus against the six petitioners....