People ex rel. Witherell v. City of Chicago
131 Ill. App. 266
Ill. App. Ct.
1907
Check Treatment
Mr. Presiding Justice Freeman

delivered the opinion of the court.

The substance of the relief asked for is that a promotion examination for assistant superintendent of police be set aside on account of certain alleged irregularities. These are said to be, (1) throwing the examination open to captains when under the rules it should have been open to inspectors only, since the latter are next lower in rank to an assistant superintendent of police,' (2) that the mayor, who appoints and can remove the commissioners, brought undue influence to bear upon them and the examiners in the matter of marking to the advantage of Herman F. Schuettler, then a captain of police, (3) that other applicants were under surveillance at the examination while Schuettler was not, and the latter was informed a month in advance that certain tests were to be used in the examination and availed himself of the information which was not given to others.

We find no error in the action of the Circuit Court expunging certain parts of the petition, including a part of the prayer for relief. It is proper to expunge such portions of pleadings as are superfluous and immaterial, not subject to special demurrer and which if traversed by plea or answered would raise false issues. Stover Mfg. Co. v. Millane, 89 Ill. App., 522-537, and case there cited. “Surplusage, however, is not a subject for demurrer.” Heard’s Stephen on Pleading, 9th Am. ed., p. 423. In the present case the allegation that the examiners were “unduly influenced” by the mayor, even though it be true, manifestly is not sufficient ground for a peremptory writ of mandamus to set aside the examination. It may be true that undue and improper interference by the city official having the power of appointment and removal of the civil service commission is reprehensible. But it is not clear that it affected the examination or its results, arid it fails to show any clear right to the writ sought. In that part of the prayer for relief which was expunged it was sought to command the civil service commissioners to compute anew the general averages of those examined in a specific way,- omitting from consideration certain subjects, “city information,” “efficiency,” and lung-muscle tests. The petition shows that the rules referred to permit the commission at any examination to add other subjects than those specially designated. The • allegations expunged, to the effect that the examinations were not “practical,” that other applicants were watched carefully at the examination and Schuettler was- not, do not support the prayer. Some discretion is vested by the act in the commission, which the court may not question in this proceeding. In Spelling on Extraordinary Relief it is said (see. 1436) that “it is important in all cases to bear in mind the distinction between the right to exercise a reasonable discretion by one selected on account of his -supposed fitness to perform particular official functions and to exercise in the performance a wise discrimination, and the condition presented where one so selected and required by law to do a certain act has totally refused to take any action whatever.” It was, we think, fairly within the discretion of the commission to determine whether the examination for police officers should include certain physical and other tests, and this discretion will not ordinarily be controlled by the court. Reddick v. The People, 82 Ill. App. 85-92. It is only when there is a clear legal right that municipal authorities vested with discretion in the premises can be compelled by mandamus to act, “but not to act in any particular way.” Idem.

The principal contention of counsel for plaintiff in error is that captains not being members of the next lower rank were not eligible to the examination for promotion to the position of assistant superintendent of police when there were inspectors taking the examination, and that therefore the examination may be set aside by writ of mandamus, because it is said the writ will issue to compel the performance of an official act in a proper manner, citing Van Dorn v. Anderson, 219 Ill. 32-36. In this case, however, the writ is sought not to perform an official act, but to set aside an act already performed.

Section 454 of the Act to regulate the civil service of cities (R. S. chap. 24) contains the provision that 11 all examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination.” The petition shows that inspectors were members of the next lower rank to that of assistant superintendent of police. It appears that rule 7 of the rules adopted and published by the commission, and which were in full force and effect at the time when the commission advertised for the promotional examination in controversy, provided that competition should be limited to the members of the next lower rank or grade where the same was constituted of at least two eligible persons, and if there were not two such persons, or if they failed to pass, then persons in the next lower grade could be admitted. In the present case it is made to appear that the examination was taken by at least two inspectors and by captains, of whom Herman F„ Schuettler was one.

The claim of plaintiff in error is that the examination of the captains under these circumstances was void. If this is so, then that part of the prayer for relief which was expunged and which asks that the writ issue to place. Schuettler on the eligible list where the averages as properly computed from such examination would place him, is certainly not tenable. If the examination was void as to all captains, none of them would seem to be entitled to a place on the eligible list by reason of having taken it.

Counsel for the city do not dispute that under the law the examination should be competitive among members only of the next lower rank, viz., the inspectors of police who took the examination. It is urged, however, that the writ will not issue to compel the commission by mandamus to undo what- has already been done, though erroneously. In Spelling on Extraordinary Belief, section 1436, supra, it is said that “mandamus does not lie to compel a party holding an official position to reverse a decision already rendered in the exercise of discretionary powers.” As a general rule the writ is granted to compel the doing of something which ought to be done and which there is,, a clear legal right to have done, not to raido action that has already been taken. It is refused, even in cases where the action taken has been clearly illegal, as in People v. Reardon, 3 N. Y. Supplement, 560 (562), where election inspectors had proceeded illegally in counting ballots. In that case also as a result of the illegal count the office had been filled and it was held that “the question of the claimants’ right cannot be tried by mandamus;” that the appropriate remedy was quo warranto. See also Hayes v. Morgan, 81 Ill. App. 665-669; State ex rel. v. Russell, 51 N. Y. Rep. 465.

The prayer of the expunged portion of the petition is “that said examination be by said commission set aside and held for naught on account of the aforesaid irregularities.” If the office of assistant Superintendent of police has been filled as a result of the examination in controversy, the incumbent’s right cannot be tried in this proceeding. We are of opinion that mandamus will not lie to set aside and so undo what has already been done, even though it ought not to have been done. Sweet v. Conley, 20 R. I. 381-385.

The judgment of the Circuit Court must therefore be affirmed.

Affirmed.