People ex rel. Plotke v. Lower , 142 Ill. App. 173 ( 1908 )

Mr. Justice Smith

delivered the opinion of the court.

The question presented by the petition is, whether or not the head of a principal department of the government of a city which has adopted the Civil Service Act is exempt from the provisions of that act, where such principal department and the office designated as its head were created after the adoption of that act.

Section 11 of the Civil Service Act exempts from the classified service provided for in the act of the head of any principal department of a city government by the following language: “Heads of any principal department of the city shall not be included in such classified service.”

The contention of appellant is that the act should be so construed that, while it confessedly excludes from its operation the heads of principal departments of the city government which were in existence in 1895, when the act went into force and effect, the heads of all principal departments which have been created since the act became operative, and those which may hereafter be' created, are included in the classified service.

The position of appellees, the Civil Service Commissioners of the City of Chicago, is that the law should be so construed as to make its operation uniform upon all principal departments, whether in existence before the act went into effect or created since that date; and that the office of smoke inspector, being the head of a principal department of the city government, is one of the offices which falls within the exemptions from the operation of the act, provided for in Section 11 of the act.

For support of the construction contended for by appellant, petitioner, reliance is placed mainly upon certain expressions in the opinion in People v. Kipley, 171 Ill. 44. The court say, on page 78 of the opinion:

“There can be no doubt that the words, as used in Section 11, were intended by the legislature to refer to heads of the principal departments as they existed under ordinances then in force.”

And again on page 79 of the opinion the court say:

“It might be that the legislature could or would create some department besides and outside of those existing at the time of the passage of the act, which should consist of several persons as heads, instead of one person. In such case such heads would come within the meaning of Section 11. But so far as the City of Chicago is concerned the departments at the time of the passage of the act had each only one head, and therefore the words used in Section 11 must refer to such heads as then existed.”

From these excerpts from the opinion it is argued that the only authority which can create additional departments with heads exempt from the operation oí the law is the General Assembly of the State, and not the legislative body of a municipality; and that the Civil Service Act repealed those portions of the Cities and Villages Act in conflict with it. And it is further inferred that the Supreme Court considered those portions of the Cities and Villages Act which authorize the city council to provide for the appointment of public officers otherwise than under the civil service law were in conflict with it, and were no longer in effect.

In considering the meaning of the expressions in the opinion in the Kipley case, it should be borne in mind, we think, that that case presented a very different situation from that shown by this record. It was there contended, and it was sought to have the court declare, that certain officers in rank under the chief of police, but who were heads or in charge of different divisions of the police department, to be heads of principal departments of the city government; and it was also sought to have the court hold that the city council might create offices which were not heads of principal departments, and by making the appointments to such offices subject to confirmation by the city council, bring them within the exemption provisions of the Civil Service Act. No new principal departments had been created, as shown by the petition in this case. We are of opinion, therefore, that the question here presented was not involved in the Kipley case, and was not passed upon by the Supreme Court.

Furthermore, we think the language of the opinion in the Kipley case above quoted was used by the court in discussing the question whether or not a department could have more than one head, and it appears clearly that what was there said referred to heads as they existed at the time of the passage of the act, and not to the departments. This appears from the sentences on page 78 of the opinion immediately following the one above quoted, namely: “At that time there was no principal department of the city government of Chicago which had more than one head. Each department had a single head. ’ ’ And this is further made clear by what is said on page 79 of the opinion from which it appears that the court, by way of argument, anticipated the creation at some future day of new principal departments of the city government, with several persons as heads, and stated such heads would come within the meaning of Section 11.

In our opinion no good reason exists for the application of one rule of construction to the heads of new principal departments created by the legislature of the State and another rule of construction to new principal departments created by the city council. In the one case the legislature exercises its power directly, and in the other the city council exercises the same power delegated to it. Nor is there any good reason for so construing the law that the head of a principal department created before the passage of the act shall be exempt under the act, while the head of a principal department which is created after the passage of the act shall be included in its operation. Such a construction would be a strained construction and would destroy the uniform operation of the act.

"We thinlr the judgment of the Superior Court in sustaining the demurrer to the petition is correct, and it is therefore affirmed.

Affirmed.