{ "id": 3221036, "name": "People ex rel. Michael Lynch, Appellee, v. City of Chicago et al., Appellants", "name_abbreviation": "People ex rel. Lynch v. City of Chicago", "decision_date": "1933-06-30", "docket_number": "Gen. No. 36,383", "first_page": "360", "last_page": "371", "citations": [ { "type": "official", "cite": "271 Ill. App. 360" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "220 Ill. 485", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3345888 ], "pin_cites": [ { "page": "502, 503" } ], "opinion_index": 0, "case_paths": [ "/ill/220/0485-01" ] }, { "cite": "240 Ill. 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3425555 ], "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill/240/0167-01" ] }, { "cite": "248 Ill. App. 339", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 12253974 ], "weight": 2, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-app/248/0339-01" ] }, { "cite": "256 Ill. 364", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4713997 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill/256/0364-01" ] }, { "cite": "145 Ill. 427", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5485806 ], "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill/145/0427-01" ] }, { "cite": "96 Ill. 467", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2718195 ], "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill/96/0467-01" ] }, { "cite": "205 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3282250 ], "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill/205/0281-01" ] } ], "analysis": { "cardinality": 597, "char_count": 18684, "ocr_confidence": 0.542, "pagerank": { "raw": 2.558227017718413e-07, "percentile": 0.8150928876548401 }, "sha256": "f247cf8b9555c84efe89baf934b20a485a2bb3196b8f046fc0cbfb09129c6e6a", "simhash": "1:16aee8afd1370073", "word_count": 3107 }, "last_updated": "2023-07-14T19:16:30.679272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People ex rel. Michael Lynch, Appellee, v. City of Chicago et al., Appellants." ], "opinions": [ { "text": "Mr. Justice G-ridley\ndelivered the opinion of the court.\nOn July 10,1931, Michael Lynch, a police patrolman, filed his petition for a writ of mandamus against the City of Chicago, its mayor, its commissioner of police, certain other of its officials and its three civil service commissioners. Defendants filed a general and special demurrer. Subsequently the petition was amended by the striking out of certain words so that its prayer was for the issuance of the writ commanding defendants \u201cto forthwith place the name of petitioner upon the roster of the department of police, and upon the department of police pay roll, as a sergeant, to the end that petitioner may at once enter upon the duties \u2022 of a sergeant in said department of police, subject to the laws, rules and ordinances pertaining to the office of sergeant.\u201d On August 8, 1932, after hearing arguments upon the demurrer, the court overruled it and, defendants electing to stand by the demurrer, entered the judgment order appealed from, wherein the-court adjudged that a peremptory writ of mandamus issue, directed to the three civil service commissioners (naming them), and commanding them \u201cto forthwith certify from, the eligible list posted December 24,1927, by the then civil service commission of the City of Chicago, the name of Michael J. Lynch, to James P. All-man, commissioner of police of the City of Chicago, or his successor in office, for the office or position of sergeant in the classified service of the department of police, . . . and commanding said Allman, as commissioner of police, \u201cto appoint and assign Michael J. Lynch ... to duty as a sergeant of police, \u2019 \u2019 in said classified service (Grade 4, Class S, Branch IV) and commanding all the defendants in their official capacities \u201cto recognize the petitioner herein, Michael J. Lynch, as a sergeant of police\u201d in said classified service and \u201cto forthwith place the name of Michael J. Lynch as a sergeant of police upon the roster and pay roll\u201d of said department of police, etc.\nThe petition, divided into 24 paragraphs, is long and repetitious. The allegations in paragraphs 1 to 10, inclusive, concern petitioner\u2019s position as a patrolman. As to these allegations no point is made by defendants, but the issue is as to the sufficiency of the well-pleaded facts, alleged in the other paragraphs of the petition, to establish petitioner\u2019s right to the relief prayed. The allegations in paragraphs 11 to 23 inclusive, are in substance as follows:\n(11) That pursuant to due notice a promotional examination, to create an eligible list of candidates for the position of sergeant of police, was held on January 29, 1927; that petitioner and others took the examination ; that thereafter \u201cthe eligible list of the successful candidates . . . was posted on December 24, 1927', by the then civil service commissioners\u201d; that petitioner\u2019s name appeared \u201cas No. 87 on the original list as posted\u201d; that he \u201cpassed with an average of 77.19\u201d; that \u201chis present standing, after certifications from the list, is No. 7 on said list\u201d; that \u201con January 2, 1930, said list was canceled\u201d; that certifications for promotions were made from the list from time to time, and 100 patrolmen were certified; that many of them, claiming \u201cmilitary preference, who were not entitled to same,\u201d were certified because of \u201cmilitary preference\u201d; that their averages \u201cwere ivrongfully, illegally and arbitrarily changed\u201d by the then commissioner of police, and certified by the civil service commissioners, in violation of the civil service law; and that \u201cmore than 14, illegally, and without warrant of the civil service law,\u201d were certified and appointed sergeants of police, \u201cin violation of the rights of your petitioner.\u201d\n(12) That there were more than 14 vacancies in the position of sergeant of police \u201cfor many months prior to January 2, 1930, when said list was canceled.\u201d\n(13) That although petitioner successfully passed the competitive and promotional examination for sergeant, and although his name appeared on said eligible list on December 24, 1927, the commissioner of police, at the time the list was \u201ctaken down\u201d on January 2, 1930, and for a long time prior thereto, \u201crefused to notify the commissioners of the vacancies existing for the promotional office of sergeant,\u201d and said commissioners \u201crefused to certify the petitioner\u2019s name, in the order in which it should have been certified, to the commissioner of police for appointment as sergeant\u201d; that the refusals were made \u201cnotwithstanding the facts that 590 sergeants were appropriated for in the annual appropriation bill of the city for the year 1929, and 585 sergeants for the year 1930, and 572 sergeants for the year 1931\u201d; that there were more than 14 vacancies in the rank of sergeant in the classified service; and that it became the duty of the commissioner of police to notify the civil service commissioners of, and the duty of said commissioners to certify from the top of said eligible list, those eligible for appointment as sergeants, including petitioner.\n(14) That under the Civil Service Law for cities and the rules of the civil service commission of Chicago, it was the duty of said commissioner of police to notify the commission of the vacancies existing in the position of sergeant, and also the duty of the commission to certify to the commissioner of police, \u201cthe name and address of the candidate standing highest upon the register\u201d; that notwithstanding these duties, said officials, \u201carbitrarily and without due regard to law, and in violation thereof and the rights of your petitioner, refused to comply with the provisions of the Civil Service Law in this respect\u201d; and that because thereof petitioner \u201cwas not promoted to the rank of sergeant,\u201d as he was entitled to be.\n(15) That more than 1,900 men took said examination, and 300 successfully passed the same; that from said list \u201cthe first 78 were certified and promoted to the rank of sergeant\u201d; that after these certifications were made \u201cthe standing on said list was as follows:\u201d (Here follows a long list with petitioner\u2019s name and address as number 8-from the top); that \u201cmore than 14, exclusive of said 78, were illegally certified and appointed\u201d; that when said list was \u201ctaken down\u201d as aforesaid, and when this petition was filed, \u201cmore than 14 other vacancies existed and now exist in the rank of sergeant\u201d; that it was the duty of the commissioner of police to notify the commission \u201cof the vacancies existing,\u201d and the duty of the commission \u201cto certify from said list 14 names of those standing highest on said eligible register for promotion to sergeant\u201d; that no change has been made in the status of the situation and said vacancies still exist; that no other certifications or promotions have been made \u201cfrom the present eligible register and from any other eligible register of sergeants\u201d; that an order of court. ordering the commission to certify and the commissioner of police to appoint petitionei to the rank of sergeant, \u201cwill not disarrange the public service, but on the contrary will promote justice, reward merit and conform to the spirit and letter of the Civil Service Law. \u2019 \u2019\n(16) That immediately prior to January 2, 1930 (when the first eligible list was canceled as alleged in paragraph 11) \u201cthe first 14 of the successful candidates on said eligible list for the promotional rank of sergeant\u201d . . . are as follows: (Here are set forth a list of 14, showing their respective \u201caverages,\u201d their relative standings on the list on December 24,1927, and their standings on January 2,1930. Petitioner is No. 7 on this list.)\n(17) That the commission \u201cwrongfully, illegally and arbitrarily changed the eligible list of the successful candidates that took said promotional examination for sergeant of police, . . . and caused the averages of more than 14 patrolmen, who had passed said examination with an average lower than petitioner\u2019s and whose places on said list were lower than petitioner\u2019s, to be wrongfully, illegally and arbitrarily changed, and caused more than 14 of said patrolmen to be given an average higher than the average given to them originally and an average higher than that given to petitioner, and did wrongfully, illegally and arbitrarily place their names upon said list before petitioner\u2019s name, . . . and illegally appointed and illegally promoted to the rank of sergeant . . . 14 of said patrolmen, whose names were below that of your petitioner on said eligible list.\u201d\n(18) That, after the list had been posted on December 24, 1927,\u2018 the civil service commissioners \u201cdid then and \u25a0there wrongfully, illegally and arbitrarily cause said list to be changed, and did then and there wrongfully, illegally and arbitrarily . . . give to 14 patrolmen, whose general averages in said examination and whose places upon said list were lower than that pf your petitioner, an average higher than that of your petitioner, and they were illegally promoted to the rank of sergeant ... in violation of petitioner\u2019s rights, upon the ruling of said commissioners that said 14 patrolmen were entitled to preference because of \u2018Military Preference,\u2019 . . . who were not legally entitled to said \u2018Military Preference\u2019 because of the fact that they had none.\u201d\n(19) (In this paragraph, reference being again made to the claimed refusal of the commissioner of police to notify the commission of existing vacancies and the claimed refusal of the commission to certify the names of those standing highest on the list for the promotional appointment as sergeants, it is alleged that such refusals were \u201cfraudulent and contrary to law,\u201d but no facts are stated showing in what the fraud consisted.)\n(20) That petitioner \u201chas continuously made demands, from December 24, 1927, up to the time of filing this petition, that he be certified and appointed to the office of sergeant in the classified service\u201d; that \u201cupon each and every occasion\u201d of making demand, he \u201chas been promised by the City of Chicago, through its mayor, commissioner of police and civil service commissioners, that he would be appointed to said office\u201d; that he \u201crelied upon the promises\u201d; that shortly prior to the filing of the present petition he \u201cdid again demand\u201d of the city, through said officials, that he receive said appointment; that \u201cthen, for the first time,\u201d said city, through said officials \u201cdid refuse to appoint petitioner to the office of sergeant\u201d; that \u201ca new examination was held and the list posted in March, 1931\u201d; that \u201cno certificates have been made from said eligible list\u201d; that the vacancies that existed in the rank of sergeant \u201cstill exist\u201d; that \u201cthere are 14 vacancies in the office of sergeant of police ... . which have not been filled and which should have been filled from the list in force and effect from December 24, 1927 to January 2, 1930\u201d; that had the commissioner of police and the commission complied with the statutes, \u201cpetitioner would have been certified and appointed to the rank of sergeant . . . prior to January 2, 1930\u201d; that no change has been made in the situation since said list was canceled and \u201csaid vacancies still exist and have not been filled\u201d; and that \u201cno certifications or appointments have been made from said eligible list posted in March, 1931, for the rank of sergeant. \u2019 \u2019\n(21) (In this paragraph is the allegation that petitioner \u201cis now, and was during all the time that said list was in force and effect, a police patrolman on active duty\u201d in the police department of the city.)\n(22) That \u201cit was the policy of the administration, to wit, the then mayor, commissioner of. police and civil service commissioners, to refrain from filling the vacancies occurring after February 1, 1930\u201d; that because thereof no change has been made in the existing status, \u201cexcept the illegal promotion of those on said eligible list, whose places and averages were lower than that of petitioner\u201d; that \u201cno new promotions have been made from the new eligible list\u201d; and that \u201c14 vacancies still exist in the office of sergeant, and did exist prior to December 24, 1929, because of the fact that said office was appropriated for in the annual appropriation bills of the city council, as hereinbefore described. \u2019 \u2019\n(23) That petitioner \u201chas made demand\u201d on the city and other defendants that his name be placed on the police pay roll as a sergeant, but that the demand has been refused.\nThe well-pleaded allegations of fact of the petition (as distinguished from conclusions not admitted by the demurrer) are, in substance, that for a long period of time prior to January, 1927, petitioner had been acting as a police patrolman in the classified service of the police department of the city; that on January 29, 1927, he took a promotional examination, which he had a right to take, for the position of sergeant of police; that he successfully passed the examination and his name was placed on the eligible list or register, which \u201cwas posted on December 24, 1927\u201d; that his name was \u201cNo. 87\u201d on the list; that more than two years after the list had been posted, without his having received the appointment as a sergeant, to wit, \u201con January 2, 1930, said list was canceled\u201d; that at the time of such cancellation petitioner\u2019s name was \u201cNo. 7\u201d of the candidates whose names had not been certified for appointment; that at said time there existed, and still exists, \u201c14 vacancies\u201d in the position of sergeant in the classified service of the city; that petitioner\u2019s demands to be appointed as a sergeant to one of the vacancies had been refused; that in 1931 a \u201cnew examination\u201d for the position of sergeant was had (which examination petitioner did not take); that the new list \u201cwas posted in March, 1931\u201d; and that prior to the time of the filing of this petition (July 10, 1931) no certifications had been made from the new list and said 14 vacancies still existed. In addition to the above allegations of fact there are statements, many times rep\u00e9ated, to the effect that prior to the cancellation of the old eligible list on January 2,1930, the civil service commission \u201cwrongfully, illegally and arbitrarily\u201d changed that list so as to place the names of others thereon, and whose stated grades were lower than petitioner\u2019s grade, ahead of petitioner\u2019s name; that said commission \u201cwrongfully, illegally and arbitrarily\u201d gave \u201cmilitary preference\u201d to certain of the persons, \u201cwho ivere not entitled to same,\u201d and placed them on said list ahead of petitioner and afterward certified them to the positions of sergeants; and that, although there existed and continued to exist the 14 vacancies, the commission \u201cwrongfully, illegally and arbitrarily\u201d refused to certify petitioner to one of said vacancies. The facts as to how said list was changed, or as to how and to whom military preference was given when it should not have been given, are not disclosed. We think that the statements, last above mentioned, should be considered as mere conclusions of petitioner, and not proper allegations showing a clear right to the writ of mandamus as prayed. (12 Ency. Pl. & Pr. 1033; Stott v. City of Chicago, 205 Ill. 281, 291; LaValle v. Soucy, 96 Ill. 467, 469; People v. Town of Mount Morris, 145 Ill. 427,432; People v. Webb, 256 Ill. 364, 373; McDevitt v. Finn, 248 Ill. App. 339, 343.)\nAnd we are of the opinion that the well-pleaded facts, as alleged in the petition, are not sufficient to warrant the court\u2019s judgment, which commands the present civil service commissioners \u201cto forthwith certify ,from the eligible list posted December 24, 1927, . . . the name of Michael J. Lynch . . . for the office or position of sergeant of police,\u201d etc. In the 11th paragraph of the petition it is alleged that the eligible list, as posted on said date, \u201cwas canceled on January 2, 1930\u201d (i. e., more than two years after it was posted, and more than a year before petitioner filed the present petition). Because of a provision contained in section 10 of the \u201cAct to regulate the civil service of cities\u201d (Cahill\u2019s St. ch. 24, If 694) it is apparent that said cancellation of the list was lawful and proper. The provision is: \u201cSaid commission may strike off names of candidates from the register after they have remained thereon more than two years.\u201d We think that when said old eligible list was canceled it became functus officio, that is, it \u201chad become of no virtue whatsoever\u201d (2 Bouvier\u2019s Diet., Rawle\u2019s 3rd ed., p. 1323), and petitioner\u2019s name, not being on any list, could not legally be certified by the commission for the position of sergeant. Furthermore, inasmuch as the position of sergeant of police is a promotional one, it is governed by section 9 of said act, Cahill\u2019s St. ch. 24, Tf 693, one of the provisions of which is that \u201cit shall be the duty of the commission to submit to the appointing power the names of not more than three applicants for each promotion having the highest rating.\u201d This is authority for the commission to submit the names of three applicants for each promotion, so as to give a discretion to the appointing power as to which of the three shall be appointed. (See McDevitt v. Finn, supra.) And, clearly, under these provisions of the section, the commission should not be compelled to certify the name of but one. Furthermore, we are of the opinion that the petition shows on its face such laches on petitioner\u2019s part as is a bar to the relief as prayed. If he was improperly and unlawfully displaced from his proper position on the eligible list, by the advancement and certification of others lower on the list than he, he should have taken steps by appropriate suit before said list became more than two years old and was canceled on January 2, 1930. He does not show by proper allegations any excuse for the delay. It is decided in this State that in a mandamus proceeding the defense of laches, appearing on the face of the petition, may be raised by demurrer. (Schultheis v. City of Chicago, 240 Ill. 167, 170; Kenneally v. City of Chicago, 220 Ill. 485, 502, 503.)\nFor the reasons indicated the judgment of the superior court of August 8, 1932, appealed from, is reversed and the cause is remanded with directions to the court to sustain defendants \u2019 demurrer, and for further proceedings not inconsistent with the views herein expressed.\nReversed and remanded with directions.\nSullivan, P. J., and Soanlan, J., concur.", "type": "majority", "author": "Mr. Justice G-ridley" } ], "attorneys": [ "William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.", "Michael F. Ryan, for appellee." ], "corrections": "", "head_matter": "People ex rel. Michael Lynch, Appellee, v. City of Chicago et al., Appellants.\nGen. No. 36,383.\nOpinion filed June 30, 1933.\nRehearing denied July 11, 1933.\nWilliam H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.\nMichael F. Ryan, for appellee." }, "file_name": "0360-01", "first_page_order": 412, "last_page_order": 423 }