{
  "id": 5341419,
  "name": "Peter C. McArdle, Petitioner, Appellant, v. City of Chicago et al., Defendants, Appellees",
  "name_abbreviation": "McArdle v. City of Chicago",
  "decision_date": "1912-08-12",
  "docket_number": "Gen. No. 16,503",
  "first_page": "142",
  "last_page": "156",
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      "cite": "172 Ill. App. 142"
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T15:03:04.791769+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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    "judges": [],
    "parties": [
      "Peter C. McArdle, Petitioner, Appellant, v. City of Chicago et al., Defendants, Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Graves\ndelivered tlie opinion of the court.\nOn May 11,1908, appellant filed in the Circuit Court of Cook county his petition for a writ of- mandamus to he directed to the City of Chicago, its mayor and certain other officers, commanding that he he restored to the honors, duties, responsibilities and emoluments of the office of \u201cCement Tester\u201d of the City of Chicago, from which office he avers he had been previously ousted. A demurrer was interposed to the petition. Upon a hearing the demurrer was sustained and the petition was dismissed. This is an appeal from that order.\nAppellees contend that the petition does not disclose a clear right in the petitioner to have the relief prayed for and that the demurrer was properly sustained.\nThe following allegations appear in the petition, i. e.:\n\u201cThat prior to May 23, 1898, the City of Chicago, which is hereby made party defendant hereto, maintained in its Public Works Department a branch or bureau, which was then termed Testing Laboratory, Bureau of Engineering\u2019, in charge of one Charles J. Kelly, who enjoyed the title of Chief Cement Tester, and in said laboratory, cements, sands, brick and other building material furnished by contractors on municipal work were subjected to tests to ascertain if they conformed to the terms of contracts and specifications under which they were furnished to the City of Chicago.\n\u201cThat said Charles J. Kelly held his position as such Chief Cement Tester as a temporary appointee and he had sole charge of the laboratory and had one assistant under him.\n\u201cAnd on or about June 1, 1898, the said Commissioner of Public Works by.one H. J. Spengler, Assistant Engineer of Tunnels, assigned yonr petitioner to the position theretofore held by said Charles J. Kelly as Cement Tester, the said assignment being made by letter, which your petitioner prays may be taken as part hereof and is in the words and figures following:\n\u2018June 1,1898.\nMr. Charles J. Kelly,\nCement Tester.\nDear Sir:\nAs per Civil Service certification, the bearer, Peter C. McArdle, is assigned as cement tester to take your place. Will you kindly turn over to him all your records, and other material, and show him every courtesy?\nJ. H. Spengler,\nAsst. Eng. Tunnels.\u2019\n\u201cThat your petitioner on such assignment immediately took charge of said laboratory and the one assistant therein employed at the time of said assignment and has ever since until the receipt of the communication hereinafter set forth, of March 12, 1908, from John Ericson, City Engineer, continuously, uninterruptedly and without question from any source, remained in charge of said laboratory and all the tests made therein, and was during all said period the Chief Tester thereof and in charge thereof.\n# * * # * # * # * *\n\u2022 \u201cThat at said last mentioned time (December, 1905) your petitioner filled the highest position in said testing laboratory which was open; that he could achieve no promotion and no higher salary than he had, by any promotional examination under the Civil Service Law and the Rules of the Civil Service Commission.\n\u201cThat by reason of the work as added from time to time to said laboratory, the labor and responsibility of your petitioner as the person in charge thereof increased and your petitioner was informed of the further contemplated increase and in and about said month of December, 1905, he applied to his superior officers to recognize his increased labor and responsibilities and added professional attainments, as well as his faithful service in said laboratory and the efficiency to which he had brought it, in an increase of salary, and your petitioner having theretofore qualified for appointment to service under the United States of America in support of his request for this recognition, submitted to his superior officers the evidence of his qualifications for such service and also a communication from the Chief Engineer of the Geological Survey, Department of the Interior, United States, offering to your petitioner the position in the United States Service of Cement Expert.\n\u201cThat the then City Engineer, Commissioner of Public Works and Mayor took the matter under consideration and recognizing the facts aforesaid, on or about December 15, 1905, came to a decision which, reduced to writing and signed by the then acting City Engineer, was in writing also approved by the then Commissioner of Public Works and Mayor, which decision is hereby made part hereof and is in the words and figures following, viz:\n\u2018Chicago, Dec. 15, 1905.\nJ. M. Patterson,\nCommissioner of Public Works.\nI deem it advisable and practicable to enlarge the work now covered by P. C. McArdle, Cement Tester, Burean of Engineering, to the extent of adding to his duties which he is now performing the testing of all oils used for pumping machinery, the testing of brass and cast iron castings used in the water works shops, the testing of brick, sand, paints, varnishes, and all other materials that are used in construction, and ultimately instead of hiring inspecting engineers to send to the various shops where machinery is under construction, to send men directly from this Bureau.\nI am fully satisfied that Mr. McArdle is fully capable, and has the knowledge to take hold of this class of work, and to make a success of it, and his honesty and integrity are highly recommended. If you approve of this plan it will add to Mr. McArdle\u2019s duties and responsibilities, and I recommend that his salary be made $250 per month and arrangement be made at once to carry out the above suggestions.\nTours truly,\nW. A. Shaw,\nEngineer in Charge.\u2019\n\u201cThat at the time of the said decision and approvals thereof, there were in full force and effect certain rules o\u00ed said Civil Service Commission known as Bules II., V. and IX., which were and are in the words and figures following, viz:\n\u2018Bule II.\n**********\nDivisions and Grades.\nSec. 5. Change of Compensation: Increasing the compensation of any position in the classified service, whereby the grade of such position as established by the classification is changed, whether done by ordinance or otherwise, shall not affect the tenure of the incumbent of such office or place of employment, unless in the opinion of the Commission such changes shall involve a change' in duties requiring a different examination.\nBule V.\nSec. 6. Duties Bather Than Name to Be Considered: In certifying to requisitions, the duties of the position to he filled, rather than the name by which it is called, shall be considered, and it shall be the duty of the Commission to inquire into the requirements of the position for which a requisition has been made and to certify from that list of eligibles which shall, in its judgment, nearest conform to the requirements of the position to be filled.\nBule IX.\nBeports to be Made.\nSec. 1. Appointing Officers to Beport: For the purpose of certification to the Comptroller for the payment of salaries, as required by Section 30 of said Act, and in order that the Commission may keep proper record of changes in the service, each appointing officer shall immediately report to the Commission, as required by Section 13 of said Act:\n(c) Every change in the compensation of any officer or employee serving under him.\n* * * * * * * * * *\nSec. 2. Change or Abolition of Office or Compensation : \"When any office or place of employment is created or abolished, or the compensation attached thereto altered, the officer or board making such change shall immediately report it, in writing, to the Commission.\nSec. 3. Civil List:. A list to be known as the Civil List of the City of Chicago, shall be kept in the office of the Commission, to contain the name of every person employed in, or receiving compensation in, the classified service. The list shall show respecting every officer and employe: The title of his office, the time he has held such office, the time he has been in the service of the City of Chicago, and the places in that service he has filled.\nSec. 4. Payments of Salaries: As provided in Section 31 of said Act, no payment in compensation for services rendered, after the taking effect of these rules, can be made by the City, or any of its officers, to a person holding a position in the classified service until it appears either that he was employed in such position before these rules took effect, or that he has been employed under the provisions of the same, and is holding his position in accordance therewith. \u2019\n\u201cThat the foregoing rules are all the rules of said Commission bearing upon the subject therein treated, and the statute creating said Civil Service Commission and in force at the time aforesaid, provided as follows, viz:\n\u2018Sec. 13. _ Reports to Commission: Immediate notice in writing shall be given by the appointing power, to said Commission, and all appointments, permanent or temporary, made in such classified Civil Service, and all transfers, promotions, resignations, or vacancies from any cause in such service, and of the date thereof; and a record of the same shall be kept by said Commission. When any office or any place of employment is created or abolished, or the compensation attached thereto altered, the officer or board making such change shall immediately report in writing to said Commission.\u2019\n\u201cThat in accordance with the provisions of said rules and the said statute in such case made and provided, the appointing officers of the department in which your petitioner held his said place of employment, immediately and on or about December 18, 1905, reported in writing to said Civil Service Commission the alterations of the compensation to your petitioner as Cement Tester, viz: Salary increased from $125 per month to $250 per month, on City Engineer\u2019s Miscellaneous Roll.\n\u201cThat at its meeting of the 18th of December, 1905, said Civil Service Commission received said report and spread a minute thereof on the records of said meeting.\n* * # # # * # * * *\n\u201cThat in-each and every appropriation made for said Testing Division since your petitioner\u2019s salary was so increased as aforesaid, an appropriation has been made for $3,000 for the the salary for the fiscal year appropriation of your petitioner under the title of \u2018Chief Tester in Charge.\u2019\n* * * * * * * * * *\n\u2018 \u2018 That all payments made out of said appropriations of $3,000 for the years 1906, 1907 and 1908, for \u2018Chief Tester in Charge,\u2019 up to and including the February, 1908, payment, have been paid to your petitioner, and to him alone, and on his said salary of $3,000 per year, or $250 per month, and never until the occurrence hereinafter set forth has any officer of the City or any other person questioned your petitioner\u2019s right to have his said salary of $3,000 per year or $250 per month paid from and out of said sums of $3,000 each in, said respective appropriation bills for \u2018Chief Tester in Charge,\u2019 and in each and every payroll from December, 1905, to and including February, 1908, your petitioner\u2019s salary at $250 per month has been set off to him under the designation \u2018 Cement Tester,\u2019 and the Comptroller of the City of Chicago has during said period honored said payrolls, and they were each duly approved by the Civil Service Commission, and out of said appropriations of $3,000 for Chief Tester in Charge, the City Treasurer has paid your petitioner\u2019s said salary on said payrolls.\n* # & # # # * * * #\n\u201cThat said sum of $3,000 in said appropriation bill of 1908 for \u2018Chief Tester in Charge,\u2019 was expressly inserted therein for your petitioner\u2019s salary; that the members of the City Council Finance Committee, when said item was under consideration, were informed and knew that the said item was for your petitioner\u2019s said salary, and for none other; that the City Council when passing, and the Mayor of the City of Chicago when signing said appropriation bill, knew and were and had been publicly informed on the floor of the council chamber that said appropriation was for your petitioner\u2019s said salary and for none other.\n\u201cThat ever since the said 18th of December, 1905, and until the occurrence hereinafter mentioned, the City Engineer has in the monthly payrolls of his bureau set forth your petitioner\u2019s monthly salary at the sum of $250 and returned his, your petitioner\u2019s title in such payrolls as \u2018 Cement Tester; \u2019 that the Comm issioner of Public Works has monthly approved said payrolls and your petitioner\u2019s salary therein stated, and submitted the same with his approval thereof to the Civil Service Commission, and that said Civil .Service Commission has monthly during that period certified the same to the City Comptroller, and the said City Comptroller has at all times during the period last aforesaid, recognized the said appropriation of $3,000 for \u2018Chief Tester in Charge\u2019 as being the fund from which your orator\u2019s salary as \u2018Cement Tester\u2019 is payable, and the said City Treasurer has paid his, your petitioner\u2019s, said monthly salary from said appropriation of $3,000.\n\u2018 \u2018 That there was not in existence at any time during the period covered by the matters herein alleged, either de jure or de facto, any office, in or under the City of Chicago called or known by the name of \u2018 Chief Tester in Charge,\u2019 or of any similar designation, nor was there in existence during said period either de jure or de facto any position or place of employment in the official or classified service of the City of Chicago called or known by the name of \u2018Chief Tester in Charge,\u2019 or of any similar designation, nor was there during said period anywhere on the records of the said Civil Service Commission of the City of Chicago the record of any position or place of employment either de jure or de facto, called or known by the title \u2018 Chief Tester in Charge,\u2019 or by any similar designation and your petitioner further alleges and charges that when and wherever said title of \u2018Chief Tester, in Charge\u2019 or any similar title was used in the departments of the City of Chicago and in the records and ordinances of the City of Chicago, it was used exclusively to designate the position of Cement Tester, to which your position had been as aforesaid certified and appointed.\u201d\nThe demurrer admits these averments to be true.\nIt is inferentially conceded by appellees, and indeed cannot be denied, that the petition sufficiently discloses that the office of \u201cCement Tester\u201d existed in Chicago as a branch of its Public Works Department, called Testing Laboratory, Bureau of Engineering, from and including 1898, until and including 1908; that it was within the City Civil Service Law then in force in the City' of Chicago; that in 1898 petitioner was duly and regularly appointed to that office under the City Civil Service Law and the rules, practices and usages of the City Civil Service Commission, and that he continued to hold and fill that position, at least until December, 1905; that petitioner and his predecessor in office, while in charge of the office of Cement Tester, was, in fact, chief of that laboratory. It is not claimed by appellees that any proceeding, conducted for the ostensible purpose of creating a new or higher position in that department, or in connection with that laboratory, to be known as \u2018 \u2018 Chief Tester in Charge, \u201d or of promoting appellee to a new or higher position to be known by that title, was ever had, but it is strenuously insisted by them that the proceedings that took place in December, 1905, by which additional duties were imposed on petitioner and additional compensation was provided for him, and the subsequent proceedings by which appropriations were made in 1906, 1907 and 1908 for a \u201cChief Tester in Charge,\u201d and such funds paid to petitioner, amount, by implication, to the creation of a new position superior to the position of Cement Tester and the promotion of petitioner to such position without a compliance with the Civil Service Laws and Rules, and that such promotion was, therefore, void.\nFrom the averments of the bill it is manifest that in December, 1905, it was intended by the persons then acting in the premises to increase the duties and pay of petitioner as \u201cCement Tester,\u201d but not to create any new position or to promote petitioner to a new position. It is further manifest that no new position was formally created and no promotion of petitioner was formally made. Before a court can hold that such was the unintentional and inadvertant result of the acts of the parties, such acts must have been of a character to preclude any other construction. Otherwise, the specific and positive averments in the petition that there never was such an office or officer as \u2018 \u2018 Chief Tester in Charge, \u2019 \u2019 and that the petitioner from the time he was first made \u201cCement Tester\u201d continued to be such, and such only until unlawfully ousted in 1908, must prevail.\nTo promote is, according to Webster\u2019s International Dictionary, \u201cTo exalt in station, rank or honor; to elevate, raise, prefer, advance.\u201d As applied to the Civil Service Laws of New York, the courts of that state have defined the term to mean the advancement of an official or employee to a higher position who had previously been appointed to one of an inferior degree. McGuire v. Byrnes, 70 Hun, 760.\nThe acts disclosed by the petition, which appellees claim amount to a promotion, are the assignment to petitioner of additional duties to perform, the raising of petitioner\u2019s salary, and appropriation of the sum of $3,000 for the years 1906, 1907 and 1908 under the title \u201cOne Chief Tester in Charge,\u201d and the payment of the money so appropriated to petitioner.\nThe work of the Cement Tester in the Testing Laboratory, when petitioner was inducted into that position, was, as shown by the petition, the testing of cements, sands, brick and other building materials (not enumerated), furnished by contractors on municipal work, to ascertain if they conformed to the terms of contracts and specifications under which they were furnished to the City of Chicago. The added duties recommended by the engineer in charge were, \u201cthe testing of oils used for pumping machinery, the testing of brass and iron castings used in the waterworks shop, the testing of brick, sand, paint, varnishes and other materials, that were used in construction, and ultimately, instead of hiring inspecting engineers to send to the various shops where machinery is under construction to send men directly from this Bureau.\u201d So far as the materials to be tested are concerned, there is nothing added. Every one of the materials included in this recommendation, namely, oils, brass and iron castings, brick, sand, paints, varnishes and other materials that are used in construction are \u201cbuilding materials\u201d and are included in the list of materials being tested when petitioner first became Cement Tester, namely, \u201ccements, sands, brick and other building material,\u201d and those not so used were of the same general character as those, so used. The difference between the added and the original duties being that the original duties required the testing of only so much of such materials as were furnished by contractors on municipal work, while by the recommendation all such materials used in construction, whether furnished by contractors or obtained from other sources were to be tested by petitioner. The added duties were, therefore, in volume and not in hind of work. It certainly has never been, and cannot be, held that increasing the amount of work to be done by an officer of a given class is a promotion.\nIt must be conceded that a promotion involves not only the induction of the one promoted into the higher position, but likewise the removal of such one from his former subordinate position, so that it goes without saying that if petitioner was promoted from \u201cCement Tester\u201d to \u201cChief Tester in Charge,\u201d he was, after such promotion, no longer \u201cCement Tester.\u201d\nBy Section 5 of Bule II of the City Civil Service Commission, quoted above, it is expressly provided that increasing the compensation of a position shall not affect the tenure of office of the incumbent of such position, wnless in the opinion of the Civil Service Commission such changes shall involve a change in duties requiring a different examination. The petition in this case shows that after the salary of petitioner was changed from $1,500 to $3,000 per year in December, 1905, this change was duly reported to the City Civil Service Commission under Section 13 of the City Civil Service Laws, and Buie IX of that Commission, above quoted, and that the Commission required of petitioner no other, different or additional examination, but on the contrary, from month to month from December, 1905, to March, 1908, that Commission approved and certified petitioner\u2019s pay rolls for $250 per month under the title of \u201cCement Tester,\u201d thereby approving in the most unqualified manner the increase in petitioner\u2019s compensation, without requiring the additional examination required if the Commission was of the opinion that such a change in salary involved such a change in duties as to require an additional examination. This amounted to a finding that the Commission was not of the opinion that the change in salary involved such a change in duties as to require such an examination. Such a determination involved the judgment, opinion and discretion of the Commission, and is not subject to review here. County of St. Clair v. People, 85 Ill. 396; Kelly v. City of Chicago, 62 Ill. 279; People v. Dental Examiners, 110 Ill. 180; City of Chicago v. People, 114 Ill. App. 145-155. That being the finding of the Civil Service Commission, it follows that the tenure of office of petitioner as \u201cCement Tester\u201d was not affected by the increase in his salary, and that when he was ousted in March, 1908, he was still holding and filling that position.\nIt is true that for three years an appropriation ordinance was passed including an appropriation of the sum of $3,000 for \u201cOne Chief Tester in Charge.\u201d The object and office of an appropriation ordinance is to set aside such \u201csums of money as may be necessary to defray all necessary expenses and liabilities\u201d of the city. An office cannot be filled, created or abolished by an appropriation ordinance. The fact that no appropriation is made to pay the salary of a certain officer of a city might prevent for a time such officer from collecting his salary, but it would in no way affect his tenure of office. Neither would the fact that an appropriation ordinance includes an appropriation for an office that does not exist create such office. We think no inference can be drawn for or against the petitioner in this case from the appropriation ordinances referred to. Neither is the fact that the money appropriated for \u201cOne Chief Tester in Charge\u201d was paid to petitioner, significant in determining the question before us, in view of the fact that the averments of the petition show that the appropriation was in fact intended for and paid to him as, and by, the title of \u201cCement Tester.\u201d Chicago v. Luthardt, 191 Ill. 516.\nThe contention of appellee that there was a promotion of petitioner from the office of \u201cCement Tester\u201d to the office of \u201cChief Tester in Charge,\u201d by implication or in effect, is not supported either by the isolated or combined averments of the petition. On the contrary, we think the petition clearly shows not only that petitioner was never promoted from the office of \u201cCement Tester,\u201d but that no such office as \u201cChief Tester in Charge,\u201d so called, existed in the City of Chicago during the time in question.\nIt is further urged by appellees that the petition is faulty because more relief- is prayed for than the petitioner is in any event entitled to, and that for that reason the demurrer was properly sustained. Waiving the question as to whether the petitioner can obtain all the relief prayed for, if, in his petition, he has asked for some relief that he has shown himself clearly, entitled to, the petition is still good, even though he may have sought some relief he can not obtain. Illinois Watch Case Co. v. Pearson, 140 Ill. 423.\nAfter a careful consideration of the petition in question in the light of the objections made to its sufficiency by appellees, we are forced to the conclusion that it discloses a clear right in petitioner to at least part of the relief prayed for, and that the demurrer to it should have been overruled.\nThe order of the Circuit Court, sustaining the demurrer and dismissing the petition, is, therefore, reversed and the cause is remanded to that court with directions to overrule the demurrer.\nOrder reversed and cause remanded with directions.",
        "type": "majority",
        "author": "Mr. Justice Graves"
      }
    ],
    "attorneys": [
      "McArdle & McArdle and John A. Watson, for appellant.",
      "Edward J. Brundage, Clyde L. Day and William H. Sexton, for appellee; Herbert J. Friedman, of counsel."
    ],
    "corrections": "",
    "head_matter": "Peter C. McArdle, Petitioner, Appellant, v. City of Chicago et al., Defendants, Appellees.\nGen. No. 16,503.\n1. Civil service \u2014 increase in salary and volume of work does not constitute creation of new office. Where the duties of a city cement tester are increased in volume but not in kind together with a raise in salary, which is appropriated and paid for a number of years under the title \u201cOne Chief Tester in Charge,\u201d this does not constitute the creation of a new office.\n2. Civil service \u2014 effect of approval of increased pay roll tty commission. Where the civil service commission approves and certifies the increased pay roll attached to an office without requiring an additional examination, it amounts to a finding that such change in salary did not involve such a change in duties as to require an examination.\n3. Mandamus \u2014 when demurrer to petition will he overruled. Where a petition for mandamus shows that the complainant is entitled to some of the relief prayed for, a demurrer thereto will be overruled.\nMandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.\nReversed and remanded with directions.\nOpinion filed August 12, 1912.\nRehearing denied June 24, 1912.\nMcArdle & McArdle and John A. Watson, for appellant.\nEdward J. Brundage, Clyde L. Day and William H. Sexton, for appellee; Herbert J. Friedman, of counsel."
  },
  "file_name": "0142-01",
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