People ex rel. Gullett v. McCullough , 254 Ill. 9 ( 1912 )

Mr. Justice Dunn

delivered the opinion of the court:

This cause has been submitted for decision on demurrer to an amended petition for a writ of mandamus filed originally in this court, upon leave granted, for the purpose of testing the validity of the amendment , to the State Civil Service law, approved on June io, 1911, (Laws of 1911, p. 222,) as applied to certain employees. The three petitioners are, respectively, the assistant chief clerk, the chief corporation clerk and the book-keeper in the office of the Secretary of State, and the prayer of the petition is that the Auditor of Public Accounts be directed to issue to the petitioners, warrants on the State Treasurer for the respective amounts due to them upon pay-rolls, certified by the Secretary of State, for the months of July and August, 1911, without the certificate of the State civil service commission required by section 31 of the Civil Service law.

The petition sets forth the various duties imposed by law upon the Secretary of State, and avers that these duties are in the main ministerial, and are so numerous that it is impossible for the Secretary of State personally to perform them all, and that they are necessarily delegated to a large number of assistants of various kinds, who perform them under the direction of the Secretary of State. These duties naturally fall into departments, over each of which has been placed a chief assistant. The duties of the relator James W. Gullett, as assistant chief clerk, are, under the direction of the chief clerk, who is the chief assistant or deputy of the Secretary of State, to assist in supervising the work of the office and in the absence of the chief clerk to perform his duties; to pass upon the legality of petitions of foreign corporations for license to do business in this State and perform or direct all work in respect to such licenses; to direct or assist in the performance of any other work assigned him. In the absence of the chief clerk he has general supervision, of all the work of the office, with discretionary power on all questions, handles all fees received, directs their entry in the proper accounts, reports them to the Secretary of State, and decides and disposes of all matters relating to the legality of foreign and domestic corporations referred to him. Acting either as chief clerk or assistant chief clerk, he has authority to give and enforce, and does give, directions to subordinates in the various departments, being subject at all times to the directions and control of the Secretary of State. The relator Hezekiah B. Williams is the head of the corporation department, and his duties are, under the supervision of the chief clerk, to handle, decide and dispose of all matters regarding the formation of domestic corporations or changes therein; to see that all papers filed in connection with such formation and changes are according to law; to supervise and direct the work of those clerks under him, and to check the fees payable in connection with the organization or increase of capital stock of domestic corporations. The relator James C. Peek is the book-keeper, whose duty it is to check the expense accounts and pay-rolls and keep full and complete records and books of account of all moneys received and disbursed by the Secretary of State.

The relators have been performing their respective duties since the election of the Secretary of State, in 1908. The General Assembly, by an act approved June 10, 1911, to provide for the expenses of the State government until1 the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly, appropriated to the Secretary of State for clerk hire, among other sums, $3000 per annum for an assistant chief clerk, $2400 per annum for a chief corporation clerk and $2000 per annum for a book-keeper, and authorized and directed the Auditor of Public Accounts to draw warrants on the State Treasurer for such sums on monthly pay-rolls, duly certified to by the head of the department. On July 31, T911, the Secretary of State duly certified to a pay-roll, as required by the Appropriation act, showing that the relators were entitled to receive for services rendered during the month of July, 1911, James W. Gullett $250, H. B. Williams $200 and J. C. Peek $166.66. A similar pay-roll was certified on August 31, 1911, for the month of August. The services certified in these pay-rolls were actually performed by the relators. The pay-rolls were presented to the Auditor on their respective dates, and he was then, and afterward, requested to issue warrants to the relators but refused, claiming that he was not authorized to do so upon the certified pay-roll of the Secretary of State without the further certificate of the State civil service commission required by section 31 of the Civil Service act.

The relators insist that the certificate of the civil service commission is unnecessary, for the reason that the Civil Service act, as applied to officers whose offices are created by the constitution, is null and void because it violates the following provisions of the constitution: First, that which declares that the powers of the government of this State are divided into three distinct departments,—the legislative, executive and judicial; second, that which declares that the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General; third, that which directs that the executive officers, except the Lieutenant Governor, shall perform such duties as may be prescribed by law.

The State Civil Service act follows closely, section for section, the City Civil Service act and is substantially a copy of it, only such changes being made as are rendered necessary to adapt it to the State service instead of municipal service. The City Civil- Service act was passed in 1895 and has been in force in the city of Chicago since November of that year. Controversies as to' its constitutionality soon arose, and cases involving that question were brought to this court and decided upholding the constitutionality of the act and of the principle for the appointment of emploj^ees in the public service upon which it is founded. (People v. Kipley, 171 Ill. 44; People v. Loeffler, 175 id. 585.) A good deal of space in the arguments of counsel is devoted to a consideration of the wisdom and respective merits of the two systems of appointment, which have long been known as the “spoils system” and the “merit system.” With this discussion we have here no concern. However important to the State and its citizens the method adopted for appointments to the public service may bé, no one contends that the courts have any authority to pass upon the wisdom of that method. The question presented here is the constitutional power of the legislature to adopt the method it has adopted, and not the wisdom of its action. Every presumption is to be indulged in favor of the validity of the act, for no act is to be regarded as beyond the power of the legislature unless there is no reasonable doubt that it is so. People v. Nelson, 133 Ill. 565; People v. Hazelwood, 116 id. 319; Hawthorn v. People, 109 id. 302.

The State Civil Service act, first passed in 1905, applied only to offices and places of employment in the charitable institutions of the State, and, with subsequent amendments, has since been in force. The amendment of 1911 extended its operation to all offices and places of employment in the State, with certain exceptions mentioned in section 11 not now necessary to refer to. The essential features of the act, so far as the questions now raised are concerned, are, that it authorizes the appointment by the Governor, with the consent of the senate, of a commission of three members, no more than two of whom shall be members of the same political party, whose duty it shall be to classify and grade all offices and places of employment in the State service, with specified exceptions; that the commission shall provide for the examination of all applicants for appointment to the offices and places so classified, and shall prepare a register of such applicants as shall have satisfactorily passed the examinations according to the rules of the commission; that when an appointment is to be made the commission shall certify to the head of the department in which the appointment is to be made, the name of the person standing highest on the register, and the head of the department shall appoint the person so certified.

The first constitutional provision which the act is supposed to violate is article 3, which declares that the powers of government are divided into three distinct departments,—the legislative, executive and judicial,-—and prohibits any person or collection of persons, being one of these departments, from exercising any power belonging to either of the others, except as thereinafter expressly direeled or permitted. This article does not appear to be in any way involved. It is the undoubted law that the legislature may pass any law and' do any legislative act not prohibited by the constitution of the State or the United States. (People v. Hill, 163 Ill. 186; Wilson v. Board of Trustees, 133 id. 443; Munn v. People, 69 id. 80.) It is equally true that the power to appoint to office is not inherent in the executive department unless conferred by the constitution or the legislature, but thát the creation of officers, the delegation and regulation of the powers and duties of officers and the prescribing of the manner of their appointment or election are legislative functions, which are restrained only by the constitution. (Field v. People, 2 Scam. 79; People v. Morgan, 90 Ill. 558; People v. Nelson, supra; Plummer v. Yost, 144 Ill. 68; People v. Evans, 247 id. 547; People v. Loeffler, supra; Hovey v. State, 119 Ind. 403.) Whether appointments might be made by the Secretary of State or the commission, they would still be made by the executive department, and there would be no exercise of the powers of one department by another. If the constitution confers upon the Secretary of State, by some other provision, the exclusive power of appointment, the act would violate such other provision if it undertook to take such exclusive power from him and confer it on another, but it would not violate article 3.

The second constitutional provision which is supposed to be violated is the first clause of section 1 of article 5, which provides that the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General. This clause of the constitution is a declaration of a fundamental rule in accordance with which the government is to be administered, but it does not purport to give a full and complete enumeration of the various agencies through which the law is to be enforced. Neither does it declare what shall ,be the powers or the duties of any of the officers named, or that they shall be so entirely separate and distinct as to have no connection with or dependence on one another. The officers are required, in the next sentence, to perform such duties as may be required by law, and thus, except as specific directions or prohibitions are found elsewhere in the instrument, the constitution commits to the legislature the entire question of the powers and duties of all the officers of the executive department, their relations with one another and the manner and the means by which they shall enforce the laws. The fact that such officers are created by the constitution does not confer unrestricted power upon them, and, except as to such rights and powers as they derive from the various provisions of the constitution, they are entirely subject to the will of the legislature.

The constitutions of 1818 and 1848 contained the provision that the executive power of the State shall be vested in a Governor, and the Federal constitution provides that the executive power shall be vested in a President of the United States, but it was never held that these provisions conferred upon the Governor in the one case, or the President in the other, the right to proceed in the enforcement of the law, which is the special function of the executive, according to his own will and pleasure, unrestrained and uninfluenced by the action of the legislative department. Each is the head of one department of the government,— the executive,—charged with the duty of taking care that the laws be faithfully executed, but each, in the discharge of his duties, is subject to the control of those laws. The legislature may impose upon any or all of the executive officers such duties as it sees fit, not inconsistent with their duties imposed by the constitution; may change such duties from time to time; may transfer them from one officer to another, and may require two or more of such officers to co-operate in the same work to such extent as it may deem best. On this subject it was said by the Supreme Court of the United States, in Kendall v. United States, 12 Pet. 524: “The tlreory of tlie constitution undoubtedly is that the great powers of the government are divided into separate departments, and so far as these powers are derived from the constitution the departments may be regarded as independent of each other, but beyond that all are subject to regulations by law touching the discharge of the duties required to be performed. The executive power is vested in a President, and, as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed in the constitution, through the impeaching power. But it by no means follows that any officer in every branch of that department is imder the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly can not be, claimed by the President. There are certain political duties imposed upon many officers in the executive department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress cannot impose upon ■ any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the constitution, and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character.”

It is finally argued that the act violates the provision contained in section 1 of article 5 of the constitution, that the Secretary of State, together with other executive State officers, shall perform such duties as may be prescribed by law. The only duties specifically imposed upon the Secretary of State by the constitution are found in section 9 of article 4, which directs him to call the .house of representatives to order at the opening of each new assembly and preside over it until a temporary presiding officer shall have been chosen and shall have taken his seat, and in article 5, by section i of which he is required to reside at the seat of government and keep the public records, books and papers there; by section 4, impliedly, to receive and transmit to the speaker of the house of representatives the returns of elections for the officers mentioned in section 3; by section 16, impliedly, to receive and file bills passed by the General Assembly but not signed by the Governor and not returned to the General Assembly before its adjournment; by section 20, • to keep an account of all moneys received or .disbursed by him from all sources and make a semiannual report thereof to the Governor, under oath; by section 21, to make a report to the Governor at least ten days before each regular session of the General Assembly, and to furnish to the Governor, at any tibie he may require it, information in writing, under oath, upon any subject relating to the condition, management and expenses of his office; by section 22, to keep and use officially, as directed by law, the great seal of the State. The legislature cannot absolve the Secretary of State from the performance of these duties or impose them upon another. So far as the constitution confers any power upon him, he is beyond the reach of the legislature. It cannot deprive him of the custody of the great seal of State or authorize another officer to affix it to any document, and it cannot require the public records, books and documents to be kept elsewhere than at the capital. But the Secretary of State is not independent of the legislature in the performance even of these duties. He is subject to its control in all things connected with them, where the constitution has not imposed a limitation upon the power of the legislature. What are the public records, books and papers which are to be kept at the seat of government must be ascertained by an examination of the statutes. They are only such records, books and papers as some statute names. While they must be kept at the seat of government, the legislature may require them to be kept in the State house, in offices provided for that purpose. While no other officer can be authorized to use the great seal, the Secretary of State can use it only as directed by law. The legislature may regulate the form in which the records and accounts shall be' kept and reports shall be made, and, in general, control whatever the constitution has not prescribed. So the independence of the legislature on the part of the Secretary of State, even in regard to his closely circumscribed constitutional duties, is confined within narrow limits. Each of the several executive officers mentioned in the constitution, while the head of one division of the executive department, is not a co-ordinate officer with the Governor. The supreme executive power is lodged, by section 6 of article 5, in the Governor, who is the head of the executive department under the present constitution no less than under preceding constitutions. The other executive officers named are entirely subject to the control of the legislature in the conduct of their offices, except where the constitution, expressly or by implication, imposes certain duties or confers certain powers, or where the name of the office itself implies the possession of certain powers. The Attorney General is vested with many powers and duties, and these appertain to his office under the constitution. He cannot be deprived of these common law functions by the legislature, but new duties may be imposed. The officers accept their offices subject to such burdens as the legislature may impose. Their duties may be increased, the number of their assistants may be diminished, their work may be made more burdensome and the facilities for doing it lessened. The law imposes no penalty for refusing to accept the offices, but they must be accepted with their burdens.

The duties of the Secretary of State are for the most part ministerial, and it is so averred in the petition. In fact, his is a clerical office and its duties are chiefly of a clerical nature, consisting of the filing and keeping of such papers and records as the legislature may direct him to file and keep, the issuance of such licenses as the legislature authorizes him to issue, the custody and care, purchase and distribution of such public property or supplies as the legislature may direct. He has but the most limited authority except as he receives it from the legislature, and occupies no such position with relation to the State government as is occupied by the Secretary of State of the United States with relation to that government.

The petitioners are not officers of the State. No law has ever been passed creating the office either of assistant chief clerk, chief corporation clerk or book-keeper in the office of the Secretary of State. The only recognition such positions have ever received is, that from session to session appropriations of varying amounts have regularly been made for the payment of the holders of them. This amounts to no more than authority to the Secretary of State for their employment. The duties performed are a part of those imposed upon the Secretary of State, not by the constitution but by statutes.- The constitutional duties of the Secretary of State form so small a part of those he is required to perform as to be almost negligible in quantity compared with his statutory duties. They have not varied substantially since the adoption of the first constitution, which required him to keep a fair register of the official acts of the Governor, and, when required, to lay the same, and all papers, minutes and vouchers relative thereto, before either branch of the General Assembly, and to perform such other duties as should be assigned him by law. The language of the constitution of 1848 was the same. The first legislature under the constitution, by an act approved March 1, 1819, assigned to the Secretary the duty of keeping the acts, laws and resolutions of the General Assembly and other papers and records. (Laws of 1819, p. 87.) From that time to this the legislature, by numerous acts passed from time to time, has assigned duties to the Secretary of State, but with such duties as the legislature, in the course of fifty years, had added to his constitutional duties, the Secretary of State in 1869 needed only one assistant, though he employed six janitors and two night watchmen. (Debates of Const. Conv. 1076.) In the forty years and more since that time the volume of business in the office of the Secretary of State has had a very great increase, both by reason of the unexampled growth of the State in population, wealth and business and of the •addition of other statutory duties. Some of the duties prescribed by law may be found set forth in Hurd’s Statutes of 1909, chapters 124, 127, 128, 147, 114, 32.

The position of counsel for the relators is, that the constitution directs that the Secretary of State shall perform such duties as may be prescribed by law; that when any duty is prescribed by law it thereupon becomes a duty which the Secretary of State is required by the constitution to perform; that being required to perform it, he may do it by a deputy or agent; that if he performs it by a deputy or agent the act so done by his agent he does himself and thus the constitution is complied with, but that if he is compelled to accept a deputy or agent whom the law authorizes some other person to select, then the act of performance is not his act, but the duty prescribed by law to be performed by the Secretary of State he has been prevented from performing, and, contrary to the constitution, the law has required its performance by another person. The argument goes, and must go, to the extent that the law can exercise no control whatever over any appointment under the constitutional executive officers, however unimportant. If the Secretary of State is authorized to provide a janitor for a building, the selection must be the personal act of the officer, which he cannot delegate, nor can his choice be restricted in any way. If he has dozens or scores of assistants to employ, his choice is absolute and uncontrolled-. The only control the legislature can exercise is through the amount of money it may appropriate. It is also argued that by various statutes under the constitutions of 1818 and 1848, certain duties, the character of which were well known and understood, became a part oí the official functions of the Secretary of State; that the power of the Secretary of State to appoint deputies and assistants at his own will and pleasure had been exercised and acquiesced in without objection; that these duties and this power belonged to the office of the Secretary of State at the time of the adoption of the constitution of 1870, and were therefore adopted by that constitution and became a part of the organic law of the State. It cannot, however, be maintained that the statutory duties performed by the executive officers when the constitution was adopted became at that time unchangeable. Section 1 of the schedule recognized the continuance of all the statutes imposing duties on the executive officers, and the constitution contains no evidence of an intention that they should be irrepealable. Such statutes continued to be operative as statutes under the new constitution until changed by the legislature, but the power of the legislature to amend or repeal them was not affected.

The declaration that the officers of the executive department shall perform such duties as may be required by law was not intended to be a restriction on the legislature. On the contrary, it removed any restriction upon the power of the legislature to require of such officers the performance of any duties, that might be implied from the imposition of specific duties and left the whole question open to the legislature. The legislature could determine what duties each officer should perform in addition to those specifically mentioned in the constitution, and when, where, how and by what instruments he should perform those duties. The officer, in relation to the State, is neither a contractor nor an employee. In relation to the clerks and employees in his office he is not a contractor or employer or a master. The officer does not occupy the relation of an independent contractor, and arguments founded upon the doctrines of contract, master and servant and resporudeat superior have no application and little analogy. The duties which the officer is required to perform concern the State. He must perform them, not because he has contracted to, but because the law has imposed them on his office. The employees who assist him are not his employees but employees of the State. The work they are engaged in is the work of the State. They are in the public service,-—not private service. The State, and not the officer, employs and pays them, and he is not liable for their negligence. (Barker v. Chicago, Peoria and St. Louis Railway Co. 243 Ill. 482; Bowden v. Derby, 97 Me. 536; McKenna v. Kimball, 145 Mass. 555.) There is no foundation for saying that an executive officer does not perform a duty required of him by law because he performs it through an instrumentality selected by some other authority in the manner authorized by law. When the custodian of a building, whose janitors are appointed and placed under his control by some other authority, is required to keep the halls and rooms clean, and they are kept clean by the janitors under the direction of the custodian, it is a straining of language to say that this duty is performed, not by the custodian who directs the janitors, but by the authority which appointed them. The fact that for many years the legislature appropriated sums of money in gross for the payment of clerk hire, laborers, janitors, policemen and watchmen, without any specification as to their number, time of service or rate of wages, and permitted the Secretary of State to employ such assistants at his discretion, as was the case until 1895, has no tendency to indicate that this officer had any constitutional right to do so. While he was not required to perform his duties in person, he was required to perform them all for the compensation fixed by law, unless the legislature saw fit to pay clerks or other assistants for him. There was no restriction upon the legislature in regard to such assistants. It could impose such regulations and conditions in regard to them, their number, duties, manner of appointment and other circumstances of their employment, as it saw fit. Until 1895 there was no regulation as to the greater number of such assistants. A gross sum was appropriated for their payment. Since that time appropriations have been made, for the most part, of fixed annual amounts for each of a specified number of clerks and other employees, the character of whose employment has in each case been definitely stated, but the personal discretion of the various executive officers as to the individuals who should be employed has been left undisturbed until 1911. The act under consideration provides a method of determining who these individuals shall be. It takes away the uncontrolled discretion of the officers, and, with the object of increasing the efficiency of the public service, provides another method for the selection of persons in that service. The method adopted, both for appointments and promotions, is through free, public, competitive and practical examinations, having reference only to the relative capacity of the persons examined to discharge the duties of the positions they seek. The act provides for the classification of all offices and places of employment in the public service except those mentioned in section 11, the standardizing of employment in each grade, and the keeping of a record of the relative efficiency of each officer and employee in the classified service. It is based on the principle that positions in the public service are not the personal or political perquisites of any officer or party, and ought not be divided, after a political campaign, as so much loot of actual warfare, but that competency, merit and fitness ought to be the standard for all appointments or promotions in the public service. That principle is not out of harmony with the general spirit,, any specific provision or any implied doctrine of the constitution of Illinois. Whether the act of the legislature is such as most certainly to secure its observance we are not called upon to decide. It is enough that the legislature has the power to pass it.

Our attention is called to undesirable results that might follow an attempt by the commission, conspiring with the Governor, to control the appointments in the offices of the other executive officers. Such a conspiracy is not to be presumed, but the judicial department of the government is bound to presume that the other two departments are actuated by honest motives, that the legislature passed the act with a view single to the improvement of the public service, and that all the officers of the executive department will honestly and fairly endeavor to enforce it with the same view.

The need of civil service laws has been felt in other States, and they have been adopted by the national government and by the States of New York, Massachusetts and Wisconsin. The Supreme Courts of the three States named have sustained the validity of their respective laws, and New York has embodied the principle in its constitution, adopted in 1894. (Rogers v. Buffalo, 123 N. Y. 173; Opinion of Justices, 138 Mass. 601; State v. Frear, 146 Wis. 251.) Much that was said in the cases of People v. Kipley, supra, and People v. Loeffler, supra, is applicable here, although the act under consideration in those cases referred to municipal officers only. The control of the legislature over the appointment of ofhcers@of a city is no more absolute than it is over those of the State where not limited by the constitution." We have not considered the various provisions of the act in detail, but only the three constitutional objections urged against the whole act as .applied to the Secretary of State. The record does not disclose any repugnance between the act in question and the constitutional duties of the officers of the executive department. In our judgment, so far as any objections to it have been brought to our attention, the act is a valid exercise of the legislative power.

The writ of mandamus will be denied.

Writ denied.