People ex rel. Kelly v. Dunham

• Decision Date: 02 February 1942
• Docket Number: Gen. No. 40303.
• Citation: 38 N.E.2d 983,313 Ill.App. 18
• Parties: PEOPLE EX REL. KELLY ET AL. v. DUNHAM ET AL.
• Court: United States Appellate Court of Illinois

313 Ill.App. 18

38 N.E.2d 983

PEOPLE EX REL. KELLY ET AL.

v.DUNHAM ET AL.

Gen. No. 40303.

Appellate Court of Illinois, First District, First Division.

Jan. 19, 1942.

Rehearing Denied Feb. 2, 1942.

Appeal from Superior Court, Cook County; Donald S. McKinlay, Judge.

Mandamus proceeding by the People of the State of Illinois, on the relation of Thomas J. Kelly and others, against Robert J. Dunham and others to require defendants to restore the relators to positions they had held as policemen and employees of various park districts in Chicago when the districts were superseded by the Chicago Park District. From an adverse judgment, the relators appeal.

Reversed and remanded, with directions.

Michael F. Ryan, of Chicago, for appellants.

John O. Rees, of Chicago (Martin G. Loeff, of Chicago, of counsel), for appellees.

McSURELY, Presiding Justice.

This is an appeal by plaintiffs from an adverse judgment in a mandamus proceeding.

Plaintiffs alleged that they were policemen and employees of various Park Districts in Chicago when, on May 1, 1934, these Districts were superseded by the ChicagoPark District; that they were not under civil service before that date but became members of the classified civil service of the Chicago Park District pursuant to certain provisions of the Act creating the District; that after May 1, 1934, they were continued as policemen and employees, but subsequently, on various dates, were served with lay]off notices; that the defendants refused to place them on any reinstatement list and refused to recognize them as members of the classified civil service of the Chicago Park District; that there were vacancies but defendants refused to restore plaintiffs to these positions and proposed to fill the vacancies with new employees, who were taking an original civil service examination. They asked that the defendants be ordered to restore them to their positions, and for other relief.

Defendants answering denied that plaintiffs held the positions which they claimed, before or after May 1, 1934; denied that they had made demands for reinstatement and admitted that their names had not been placed on a reinstatement list; that defendants intended to fill vacancies with persons who should successfully pass the entrance examinations; alleged that plaintiffs were guilty of laches, and that since plaintiffs were not under civil service before May 1, 1934, in the parks superseded by the Chicago Park District Act, they did not become members of the classified civil service of the Chicago Park District by operation of law.

The court heard evidence without a jury, and in its judgment found that the petitioners were not guilty of laches and that no other or further demands on respondents than shown was necessary. The court also found that the several petitioners each performed the kind of work alleged by them in their petitions and that this was performed on May 1, 1934, and for some time prior to and after that date. The court further found, however, that by reason of certain sections of the statutes, petitioners were not entitled to the mandamus sought, and their petitions were dismissed.

The particular sections which the trial court held defeated petitioners are, § 3a of the act relating to civil service in park systems (Ill.Rev.Stats.1941, ch. 24 1/2, par. 81,) and § 14 of the act relating to the Chicago Park District. Ch. 105, par. 333.14.

Before May 1, 1934, when the Chicago Park District Act went into effect, there were 22 independent park districts. The employees of three of these were under civil service, but the employees of the remaining 19 were not. This action is brought on behalf of the employees of these 19 superseded districts.

The trial court construed § 14 of the Chicago Park District Act as including in the classified civil service only those employees who had a civil service status prior to May 1, 1934, the date the act became effective. The second paragraph of § 14, which it is thought supports this position, reads as follows: “Every officer and employe in the classified civil service at the time this act takes effect shall be assigned to a position having, so far as possible, duties equivalent to his former office or employment, and such officers and employes shall have the same standing, grade, and privilege which they respectively had in the districts from which they were transferred, subject, however, to existing and future civil service laws.”

Defendants argue that the words “Every * * * employe in the classified civil service at the time this act takes effect,” can mean only those employees of the three park districts who before May 1, 1934, had been under civil service, and excludes the employees of the remaining 19 park districts, who, therefore, are not entitled to be assigned to positions, as stated. Construed as an isolated provision this construction might follow, but when construed with other provisions it is clear that the legislature intended to make all who were employees of all the park districts on the date the act went into effect, whether they had been formerly under civil service or not, members of the classified civil service of the new Chicago Park District.

The first paragraph of § 14 of the Chicago Park District Act (ch. 105, par. 333.14) provides that the act relating to Civil Service in park systems shall apply to the Chicago Park District upon the coming into effect of this act. This adopted the Parks Civil Service Act into the Park District Act of May 1, 1934. Section 1 of this Civil Service act, Ill.Rev.Stat.1941, c. 24 1/2, § 78, provides that all places of employment in any park district shall be classified and filled in the manner provided for in the Civil Service act. Hence, all park employees, by the Park District Act, on and after May 1, 1934, when it went into effect, must be under civil service.

The pivotal question, then, is as to the construction of § 3a of the Parks Civil Service Act. This is as...