Lindblom v. Doherty , 1902 Ill. App. LEXIS 467 ( 1902 )

Mr. Justice Adams

delivered the opinion of the court.

It is not claimed by appellee that he was not notified to appear before the civil service commission to answer the charges preferred by Frank T. Fowler, or that he did not appear in accordance with such notice, or that he objected to the jurisdiction of the commission; but he claims that the proceedings were not such as to give the commission jurisdiction to investigate his official conduct as superintendent of streets. In the case of a subordinate tribunal of limited jurisdiction, created by statute, such as the civil service commission, it isiundamental that jurisdiction must affirmatively appear on the face of the proceedings, and that no presumption will be indulged in favor of it, as in the case of a court of general jurisdiction. Jurisdiction must appear by the return to the writ. Doolittle v. Galena & C. U. R. R. Co., 14 Ill. 381; C. & R. I. R. R. Co. v. Whipple, 22 Ib. 105; Same v. Fell, Ib. 333; Commissioners of Highways v. Supervisors, etc., 27 Ib. 140; Commissioners v. Harper, 38 Ib. 103; Rue v. City of Chicago, 66 Ib. 256; Miller v. Trustees, 88 Ib. 26; Gerdes v. Champion, 108 Ib. 137; Lees v. Drainage Commissioners, 125 lb. 47; Whittaker v. Village of Venice, 150 Ib. 195.

The charges made by Frank T. Fowler, which constituted the basis of the investigation of the civil service commission, are against the board of local improvements and the individual members thereof. They are directed against the board as a board, and against the individual members thereof as members of the board. The words, “ and the individual members thereof,” can only mean that each member of the board is charged as participating in the acts of the board complained of. On the hypothesis that the civil service commission has jurisdiction to investigate charges presented as the charges in question were, against the board of local improvements, which is not by any means clear, it may perhaps have had jurisdiction to investigate the charges in question against the board as a board, and as against each member of the board as participating therein. The complaint, however, contains no charge against Lawrence E. McGann, commissioner of public works, as such, nor against John A. May, secretary of the board, as such, nor against Richard O. S. Burke, superintendent of sewers, as such, nor against John Erickson, city engineer, as such, nor against Michael J. Doherty, superintendent of streets, as such; and we can not perceive how charges not made could be legally investigated by the commission'—-how the conduct of the appellee, Michael J. Doherty, in his official capacity as superintendent of streets, could legally be investigated on charges that he participated, as a member of the board of local improvements, in alleged wrongful acts or omissions of the board. Such charges were certainly no notice to appellee that his conduct as superintendent of streets was to be investigated. In preparing his defense to the charges made, he would naturally consider only his acts as a member of the board of local improvements, and not at all his official acts as superintendent of streets. The board of local improvements was organized under “ An act concerning local improvements,” approved June 14, 1897, and in force when the charges in question were made and the investigation had. Hurd’s Rev. Stat. 1897, p. 355; Sess. Laws 1897, p. 101.

Section 2 of the act is as follows:

“ In cities of this State having a population of twenty-five thousand or more, by the last preceding census of the United States or of this State, there shall be appointed and designated, in the manner provided by law, or if no such method be provided, then by appointment of the mayor, a commissioner of public works, a superintendent of streets, a superintendent or special assessments, a superintendent of sewers and a city engineer. • * * * Such offices shall not be discontinued at an3^ time by ordinance or otherwise, but vacancies therein shall be filled in the same manner as the original appointment. The appointees to said office shall be subject to removal by the mayor, but the term of office shall be held to expire as soon after the end of the term of the mayor appointing, as their successors shall be appointed and qualified.”

The powers granted by the act and the duties imposed are granted to and imposed on the board as a whole, and no specific duties are imposed on any individual member of the board, except that, in certain sections of the act, specific personal duties are imposed on the president of the board, and by section 85 of the act it is provided, in the case of work done by a contractor:

“The president of the said board of local improvements shall either examine the said work himself, or designate some member of the board to do so, who shall make a personal examination and certify in writing as to the result thereof,” etc.

The complaint in question contains no specific charge that the president, or any member of the board, failed in the performance of any personal duty imposed on him by the act, or by virtue of it.

We are inclined to the view that the civil service commission has no jurisdiction to investigate charges against the board, of local improvements, as such, or against any member of the board, as such member; although we do not deem it necessary to the decision of the cause to pass on this question. The commissioner of public works, who is the president of the board and the head of a department of the city government, is not in the classified service, and therefore it is clear that on charges against the board and the members thereof, the commission has no jurisdiction to investigate his conduct as commissioner of public works. All the other members of the board are in the classified civil service, and any one of them is subject to investigation in his official capacity, on charges legally preferred. Sections 4 and, 12 of the civil service act are as follows:

Section 4. “ Said commission shall make rules to carry out the purposes of this act, and for examinations, appointments and removals in accordance with its provisions, and the commission may, from time to time, make changes in the original rules.”

Section 12. “ No officer or employe in the classified civil service of any city, who shall have been appointed under said rules, and after said examination, shall - be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges shall be investigated by or before the civil service commission, or by or before some officer or board appointed by said commission to conduct such investigation. The finding and decision of such commission or investigating officer or board, when approved 'by said commission, shall be certified to the appointing officer and shall be forthwith enforced by such officer. Nothing in this act shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding thirty days. In the course of an investigation of charges, each member of the commission and of any board so appointed by it, or any officer so appointed, shall have the power to administer oaths and shall have power to secure by its subpoena both the attendance and testimony of witnesses, and the production of books and papers relevant to such investigation. Nothing in this section shall be construed to require such charges or investigation in cases of laborers or persons having the custody of public money, for the safekeeping of which another person has given bonds.”

Among the rules made by the commission is rule 8, which is as follows:

“ When a removal is deemed necessary, the appointing" officer shall immediately notify the commission, in writing, of the grounds therefor. Such grounds shall be investigated by the commission, and the accused person shall be given an opportunity to be heard in his own defense, provided, however, that such officer or employe file a written statement requesting an investigation within fifteen (15) days after the date of his separation. The finding and decision of the commission shall be certified to the appointing officer, and shall be forthwith enforced by said officer. Pending such investigation, the appointing officer may suspend the accused for a reasonable period, not exceeding thirty days. Nothing in this section will t?e construed to require such charges or investigation in cases of laborers or persons having the custody of public money, for the safe keeping of which another person has given bonds.”

The power of removal is in the appointing officer, who, in the present case, was the commissioner of public works, subject to the charges made against the officer or employe being found, true, on investigation by the civil service commission. The commission can not remove. Its function is limited to the investigation of the preferred charges, and certifying the result to the appointing officer. By section 12 it is made the duty of the appointing officer to remove, in case the charges shall be found by the commission to be true and sufficient to warrant discharge. It is the appointing officer who, by section 12, may suspend a subordinate for thirty days. By section 10 appointments are to be made on probation, for a period to be fixed by the rule of the commission, and the section provides that “ at or before the expiration of the period of probation, the head of the department, or office in which a candidate is employed, may, by and with the consent of the commission, discharge him, upon assigning his reason therefor to said commission.” Section 12 does not take from the appointing officer the power of removal of a subordinate. It merely restricts the exercise of the power, by imposing conditions precedent to its exercise. The section provides:

“No officer or employe in the classified civil service of any city, who shall have been appointed under said rules, shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.”

By rule 8 of the board it is provided :

“ When a removal is deemed necessary, the appointing officer shall immediately notify the commission, in writing, of the grounds therefor.”

It is the appointing officer who, subject to the conditions of section 12, has the power of removal; it is that officer who, if he believes' he has good reasons for removal, would desire to exercise the power, and the requirement of rule 8 that the appointing officer shall notify the commission of the grounds for removal, is, in our opinion, in harmony with the spirit of the act, and warranted by it.

If any citizen has cause to complain of a subordinate officer or employe, in any office or department of the city government, the rule does not exclude him from making his complaint to the appointing officer, and producing his proofs before him, when such officer, if he deems there are sufficient grounds for the removal of the person complained of, may notify the commission of the same. That the commission is bound by its rules, made iu pursuance of section 4 of the act, is beyond controversy. Its rules made in pursuance of the act, and authorized by it, are as binding on the commission as if made directly by the legislature. Mason v. Shawneetown, 77 Ill. 533; Tudor v. Rapid Trans. R. R. Co., 154 Ib. 129, 136.

In Mason v. Shawneetown the court say:

“ When an incorporated town or city has been invested with power to pass an ordinance, by the legislature, for the government or welfare of the municipality, an ordinance enacted by the legislative branch of the corporation, in pursuance of the act creating the corporation, has the same force and effect of a law passed by the legislature, and can not be regarded otherwise than a law of, and within, the incorporation. An ordinance is the law of the inhabitants of the municipality.”

We perceive no reason why the language quoted is not, in principle, applicable to rules authorized by the legislature. Eules of court, within the power of the court to make, have the binding force of a statute. Axtell v. Pulsifer, 155 Ill. 141, 151.

In order to warrant an investigation of appellee’s conduct as superintendent of streets, it was necessary, in view of the provisions of the civil service act and rule 8 of the commission, that “ written charges ” should have been preferred against him, as such superintendent, by his appointing officer, the commissioner of public works, specifying grounds for his removal, in such manner as to apprise him of what he was called on to defend against. In Andrews v. King, 77 Me. 224, cited by appellants’ counsel, in which case the statute was that the officer should “ hold office during good behavior, subject, however, after hearing, to removal at any time by the mayor, by and with the advice and consent of the aldermen, for inefficiency or other cause,” the court say (p. 234):

“ Specifications of the alleged causes should, therefore, be formulated with such reasonable detail and precision as shall inform the people and the incumbent of what dereliction is urged against him. The charges should be specifically stated with substantial certainty, though the technical nicety required in indictments is not necessary.” See also Throop on Public Officers, Sec. 333.

In the present case no charges were preferred against appellee in his official capacity of superintendent of streets, by the commissioner of public works, his appointing officer, or by Frank T. Fowler, or any one, and therefore he had not the opportunity to be heard in his defense, on “ written charges,” which the statute guarantees him.

The commission was correct in the view which it took at its meeting of November 5, 1900, namely, that to warrant an investigation of appellee’s acts as superintendent of public streets, it was necessary that his appointing officer, the commissioner of public works, should prefer written charges against him. This view is in accordance with a written opinion of former corporation counsel William G. Beale, Esq., given to the commission December 27, 1895, which, as we think, states the law. We concur in the view of appellee’s counsel that so much of rule 8 of the commission as makes the filing of a written statement by an accused person, requesting an investigation, a condition precedent to the investigation, is not warranted by the civil service law.

Other questions are mooted by counsel, and numerous cases are cited, to which we do not deem it necessary to refer.

We are clearly of the opinion that the return to the writ not only fails to show jurisdiction of the civil service commission to investigate appellee’s official acts as superintendent of streets, but that it shows conclusively that the commission had no such jurisdiction. Therefore the judgment will be affirmed.