99 Ill. App. 489 | Ill. App. Ct. | 1902
delivered the opinion of the court.
The petitioner being a patrolman when the civil service law went into effect, was what is known as a “holdover.” Thereafter, by direction of the superintendent of police he took the civil service examination as to his qualifications as a patrolman.
Whether this direction was compulsory and whether he might not have refused to comply with it is now of no consequence. He did take the examination and having done so, and successfully passed such examination, he became under the civil service law an eligible; his name went upon the list of eligibles. If such position was inconsistent with the rights of a “ holdover” the latter were by him waived. He thus became entitled to have his name certified in due course to the superintendent of police for appointment as a patrolman. The civil service commissioners appoint no one to office; they determine as to eligibility and prepare lists of eligibles, from which, upon request, names are in proper order certified to those having power to appoint. Petitioner, not having been so certified, is an eligible, but not an appointee under the civil service law.
We do not regard the alleged fact, that before and after his examination appellant was duly certified by the civil service commission upon the police pay-roll “ as a patrolman entitled to pay under the act,” estops the commission, the mayor or superintendent, to deny that he is or was a patrolman in the classified civil service under that act.
The designated officials are acting, not in their own interests, but thaVof the public; as such officers they can not be estopped by any act of theirs. The public have all the while a right to demand that they obey the law and do their entire duty thereunder. If, either mistakenly or intentionally, they have failed to do this, neither they as officials, nor the public, are estopped thereby. Appellant has acquired and can acquire no right to have them persist in wrong doing.
Appellant insists that as a patrolman, appointed before the civil service law went into effect, he could not be removed by the superintendent; nor by the mayor, except upon a formal charge, the reasons for which must be reported to the council at a meeting thereof held not more than ten days after such removal. As before stated, appellant can not occupy inconsistent positions. Whether his place as an eligible is consistent with his claim to yet possess all the rights he had as a holdover it is not necessary that we now determine.
He asked to have his name placed upon the list of eligibles for appointment; not for retention of his place as one who had been appointed. If he had failed in his examination could he have maintained his place as a holdover patrolman ?
His present contention in effect is, that he is entitled to hold his old place, and that no one, not even one who stood higher than did he at the examination, can be certified to take it.
If his petition be true it would seem that he is, in due course, entitled, as an eligible, to be certified to the superintendent for appointment.
Petitioner alleges that March 19, 1888, he was appointed police patrolman, “at once entered upon the discharge of his duties,” “ and which office of police patrolman he has held from thence hitherto.”
The allegation is only that he has held the office, not that he has performed or offered to perform the duties thereof. At common law the utmost strictness was required in pleadings upon applications for mandamus. High on Extraordinary Eemedies, Secs. 448-450.
Our statute has established new rules as to some matters but has not in terms, if at all, modified the rule as to the strictness with which mandamus pleadings are regarded.
The petition is verified, but consistently therewith the petitioner may, since his name was stricken off the roll, have been living in Cairo, and been there engaged in merchandising. Twenty-two months elapsed before, so far as appears, petitioner objected to the striking of his name from the payroll; during which time it does not appear that he has performed or offered to perform any of the duties of a police patrolman.
Nor does he offer to hereafter discharge such duties; he merely asks that his name be placed upon the pay-roll “ to the end that he ” may “ obtain his pay as other officers are paid.”
In mandamus proceedings the writ will not be awarded to restore to place one irregularly removed, where it appears that a right of removal exists, which, if he be restored, can and is likely to be exercised and made effectual. High on Extraordinary Eemedies, Secs. 409-410-411.
In McNeill v. City of Chicago, 93 Ill. App. 124, a case similar to this, it was held that the allegation that his name had been stricken from the pay-roll, taken in connection with the charge that he was, in 1888, a police patrolman, and has remained such “ from thence hitherto ” does not amount to a statement that he was discharged, but amounts to an allegation that he is yet such patrolman.
The judgment in that case, overruling a demurrer to the petition, was reversed. The same action will be had here. The judgment of the Circuit Court is therefore reversed ■? and the cause remanded, and that court is directed to overrule the demurrer with leave to appellees to answer the petition. Eeversed and remanded, with directions.
