| Ill. App. Ct. | May 6, 1901
delivered the opinion of the court.
The controlling question presented upon this appeal is as to whether, under the provisions of the civil service act and the rules adopted by the board of civil service commissioners of the city of Chicago, and upon the facts presented by the various pleas of the respondent, the examination by which respondent was selected for appointment to the office of assistant chief or superintendent of police, was regular and lawful.' Question is also raised as to whether the office of assistant chief or superintendent of police of the city of Chicago is in law an office usurpation of which can be reached by a proceeding in quo warranto.
The contention of the relator is that the examination was irregular and unlawful, because it was made a public examination, open to all citizens, and was not limited to employes of the next grade below the grade of assistant chief or superintendent of police. Aside from this contention there is no suggestion that the respondent was not eligible to the appointment, or that the examination was improperly conducted, or that respondent was not entitled to preferment over others taking the examination.
The information fails to present that there were any employes of the next grade below the grade of assistant chief or superintendent of police, viz., the grade of inspector of police. But if the relator was bound to make any such averment, the Tack was not taken advantage of below. And respondent, by his pleas, has done that which the relator failed to do, viz., set forth the facts as to employes occupying the grade of inspector. By the pleas it is made to appear that five persons occupied the grade or rank of inspector in the police department of the city of Chicago when the examination in question was held, and that two of these five refused to enter any examination for appointment to the office of assistant chief or superintendent of police.
Upon this state of the pleadings we have in this behalf only to inquire if the provisions of the law and the rules of the board of civil service commissioners required the examination to be a promotional examination, limited to the employes of the grade below the grade of assistant chief or superintendent, viz., employes of the grade of inspector.
Section 3 of the civil service act provides that the commissioners shall classify all the offices and places of employment in the city with reference to examinations provided for, and provides that such offices and places so classified shall constitute the classified civil service of such city, and that no appointments to any of such offices or places shall be made except under and according to the rules afterward mentioned in the act.
Section 4 provides that the commissioners shall make rules to carry out the purposes of the act and for examinations, appointments and removals in accordance with its provisions, with power to make changes in such rules.
Section 5 provides for publication and notice of the taking effect of rules or changes in rules.
Section 6 provides that ail applicants for offices or places in the classified service, with certain exceptions not here of importance, shall be subjected to examination, which shall be public, competitive and free to all citizens of the United States, with specified limitations.
Section 9 provides that the commission shall by its rules provide for promotions in such classified service on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases where it is practicable that vacancies shall be filled by promotion; and that all examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination.
The board of civil service commissioners of the city of Chicago, acting under the provision of section 4 of the act, adopted certain rules for examinations and promotions in the department of police of the city of Chicago.
Section 1 of rule 10 provides that all original appointments of the police force shall be as second class patrolmen.
Section 3 of the same rule provides that all promotions in the police department shall be from grade to grade and shall be made upon voluntary, open, competitive examination. The competition in such examinations shall be limited to the employes in the next lower grade.
We are unable to perceive any reason why the provisions of these rules, adopted by the board of commissioners, in accordance with the spirit and the terms of the civil service act, should not be held to be obligatory. The board had power to change these rules within the limitations,imposed by the act, and upon giving the prescribed notice of such change by publication. But they did not have power to disregard them while they remained in force and effect and unchanged. Section 3 of rule 10, requiring that the examination for appointment to the office of assistant chief or superintendent of police should be limited to employes of the next lower grade, i. e., inspectors, was in force and effect when this examination was held. There were employes of the grade of inspectors. The competitive examination should have been limited to them. But in disregard of the provisions of the rule, the examination was made open to all citizens of the United States; so says the plea, a,nd respondent, who was not of the grade of an inspector of police, but who is averred by his plea to have been an acting lieutenant, was permitted to compete in the examination, and as a result of such examination was certified by the commissioners and appointed upon such certification to the office of assistant chief or superintendent of police. The proceeding was irregular and contrary to the provision of the civil service act and the rules adopted by the commissioners.
It is urged that section 1 of rule 7 of the board of commissioners provides that competition in examinations shall be limited to employes in the next lower grade, etc., unless the commissioners shall deem it for the interest of the service to admit to competition employes in other grades, etc.
It is sufficient to say that the provisions of this rule extends only to examinations rvhen it is not in the rules of the board “ otherwise provided,” and does not extend or apply to the police department, where it is “ otherwise provided” by the third section of rule 10, as above indicated.
There is no merit in the contention that it is shown by the pleas to have been impracticable to hold the examination as was required by the civil service act and the rules of the board. The pleas show that there were at least three incumbents of the grade of inspector, who, so far as appears, may have all entered such an examination as the law requires, had such a one been held.
We are of opinion that the position in the police department occupied by respondent is such an office as can be reached, in case of p, usurpation of it, by quo warranto proceeding. People v. Loeffler, 175 Ill. 585" date_filed="1898-10-24" court="Ill." case_name="People ex rel. Akin v. Loeffler">175 Ill. 585; City v. Luthardt, 91 Ill. App. 324" date_filed="1900-10-04" court="Ill. App. Ct." case_name="City of Chicago v. Luthardt">91 Ill. App. 324.
In the Loeffier case, the Supreme Court held that nothing contained in Section 24, Article 5, of the State Constitution, operates to define such a position under a municipal government as the one here in question as being other than a public office.
In City v. Luthardt, this court held that a chief, clerk of the detective bureau of the department of police, who received a salary of $1,500 per annum, was a municipal officer.
In 2 Blackstone’s Com. 36 (Cooley’s Ed.), the author said :
“ Offices are a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging.”
Chancellor Kent described offices as consisting in “ a right and correspondent duty to execute a public or private tr.ust and to take the emoluments belonging to it.” 3 Kent’s Com. (12th Ed.) 454. '
In U. S. v. Maurice, 2 Broclcenbrough, 96, Chief Justice Marshall, delivering the opinion of the court, said :
“ An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. * * * Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed, under a covenant express or implied, to do an act or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed hv the government, and not by contract, which "an individual is appointed by government to perform, who enters on the duties appertaining to his station without any contract defining them, ifxthose duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”
In U. S. v. Hartwell, 6 Wallace, 385, the question arose as to whether a clerk in the office of the assistant treasurer of the United States was an officer, and the court said:
“ An office is a public station conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument and duties. The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe.”
And the court held that the position held by the clerk was a public office.
See People v. Canty, 55 Ill. 33" date_filed="1870-09-15" court="Ill." case_name="People ex rel. Wider v. Canty">55 Ill. 33, wherein the position of city marshal in the police department of a city was treated as a public office. Also McCornick v. Pratt, 17 L. R. A. 243, and note.
We are of opinion that the position occupied by respondent is clearly a public office, and not a mere employment or agency. The stipulation shows that the office held by respondent carried with it a salary of four thousand dollars per annum. The office was within the classified service of the city of Chicago. Sec. 3 of the Civil Service Act, and Sec. 1 of Eule 1 of the Board of Commissioners; McNiel v. City, 93 Ill. App. 124" date_filed="1901-01-24" court="Ill. App. Ct." case_name="McNeill v. City of Chicago">93 Ill. App. 124.
The appointment of respondent to the office of assistant ■chief or superintendent of police of the city of Chicago having been made contrary to the provision of the civil service act and the rules of the commissioners appointed under the act, he is not entitled by law to hold the office, and the judgment of ouster was right.
The judgment is affirmed.