City of Chicago v. Fitzmaurice , 1907 Ill. App. LEXIS 730 ( 1907 )

Mr. Justice Smith

delivered the opinion of the court.

Appellee offered and the court admitted in evidence, over the objection of counsel for appellant, what purports to be the civil service rules adopted by the Civil Service Commission of the city of Chicago. It was not claimed that they were the original rules, or that the original rules had been lost or destroyed or could not be procured. The witness who was secretary of the Civil Service Commission was shown what purported to be a copy of the published rules and classification of the civil service of the city of Chicago, and was asked if that was a copy of the published rules. The court permitted him, over the objection of counsel for appellant, to answer that it was a copy of the reports of the secretary of the commission to the mayor of the proceedings of 1903, issued by the Civil Service Commission, of the rules in force January 31, 1904. The witness further testified, on cross-examination, that he did not know the rules in force January 31, 1904, or prior to that date, or subsequent to that date; that he had not examined the copy of the report closely; that he had looked it over casually. Thereupon the court admitted the report in evidence, and counsel for appellant excepted to the ruling.

In our opinion, no sufficient foundation was laid for the introduction of the copy in evidence. The only competent evidence of the rules was the original rules adopted, or a copy proved to be such by a witness who had compared the copy with the original rules and knew that it was a correct copy thereof. The rules are a public record, and the record itself, or a certified copy thereof, could be procured by appellee, for aught that appears in the record. The admission of the report was error.

We think, however, that it was unnecessary for appellee to make proof of the rules and classification of service. The evidence on both sides of the case showed that appellee took the civil service examination in March, 1898, for the position of policeman; that he passed the examination and was certified by the Civil Service Commission, on a requisition by the superintendent of police, and was appointed to and served in the position of patrolman; that on charges preferred against him he was discharged by the commission, and that on a certiorari proceeding brought by appellee in the Superior Court the proceedings of the commission were quashed and held for naught.

Thus the record shows that appellee was never discharged legally and has remained in his position of patrolman during the whole period for which he sues for his salary. We cannot see, therefore, that it was necessary for him to establish, as an original proposition, that there was such a position, and that he was duly appointed to it, for that is necessarily implied and shown, and even admitted by the charges before the commission and the trial before it. If appellee had not been a patrolman regularly appointed according to law, what need was there to file charges against him as patrolman and have a trial before the Civil Service Commission? The return in the certiorari proceeding shows that appellee was a patrolman of the city of Chicago. What was stated to be a fact and was necessarily adjudicated upon in that proceeding by the city, ought not to be a subject of litigation again in this case between the same parties. We think appellant is concluded in this case upon the question of the existence of the position, and that appellee was a patrolman duly appointed. Attorney-General v. C. & E. R. R. Co., 112 Ill. 520; Hanna et al. v. Read et al., 102 id. 596.

The ruling of the court admitting the immaterial evidence, though erroneous, was not reversible error.

It is urged that the judgment is excessive, in that it includes salary for November, 1903, amounting to $91.66.

We find no error assigned under which this' question can be raised.

The judgment of the Superior Court is affirmed.

Affirmed.