City of Chicago v. Luthardt (91 Ill. App. 324, 1900)

Mr. Justice Windes

delivered the opinion of the court.

It is claimed that the city is not liable in this action, because the acts of the chief of police of the city in refusing to allow appellee to perform the duties of his position, which acts are based upon the proceedings of the common council of said city, had at the request of said chief, in failing to make any appropriation for the salary or compensation for the year 1898 for the office or position of appellee by the name of chief clerk of the detective bureau of the department of police, were beyond the scope of the authority of said chief of police and council and contrary to the civil service law and civil service rules.

We think this claim is untenable for the reason that the' acts of the chief of police, when based, as this record shows they were, upon the proceedings of the common council giving color and a supposed authority thereto, are binding upon the city of Chicago. The city speaks and acts through the common council in such matters, and can not thus be allowed with impunity to violate the act of the legislature and the lawful rules of the civil service commission made in pursuance of and by authority of such legislative act and rules authorized thereby, and in no way questioned in this proceeding. Maher v. City of Chicago, 38 Ill. 266; City of Chicago v. R. R. Co., 105 Ill. 73-85; Art. 5, Sec. 1, Par. 2, City Charter.

Moreover, as was held in Kipley v. Luthardt, 178 Ill. 525, the attempt of the council to dismiss appellee and deprive him of his position was ineffectual, and appellee’s rights remained the same as if no action had ever been taken by the chief of police or of the council.

Appellant further claims that appellee is an employe and not an officer of the city of Chicago, and for that reason is not entitled to any compensation, as he did not perform the services he was employed to perform, and even if he is an officer he can not recover, because he rendered no services to the city for the period for which the suit is brought.

The duties of appellee’s office or position were as follows : To receive all letters and telegrams received by or referred to the chief of detectives relative to police business, number and index the same, and see that proper reports are made thereon, and that they are answered and filed, or otherwise disposed of, as may be directed; to prepare and send out all letters and telegrams issued from the detective bureau; to make out fugitive warrants and prepare requisitions for extradition of fugitives from justice wanted by the Chicago police department; to see that the books and records of the detective bureau are properly made out and kept; and to prepare and make such reports as may be required.

Numerous cases and authorities are cited by appellant, which, it is claimed, establish that because appellee’s duties were purely of a clerical character, his position was that of a mere employe of the city, and not an officer. Conceding that under the test of these authorities the position of appellee was not that of an officer in the strict sense, we think they are not applicable in the case at bar.

In the case of People v. Loeffler, 175 Ill. 585, 601, in which the Supreme Court had under consideration the question as to whether the positions covered by the civil service act were offices within the meaning of section 24, article 5 of the constitution, it was held that the offices or positions provided for under the civil service act, while not strictly offices within the meaning of the constitutional provision, were in a sense municipal offices.

The court say :

“ Inasmuch as the definition of 6 office ’ in section 24 refers to State and not to municipal offices, there is no provision in the constitution prescribing any particular mode for the appointment of officers in municipal corporations. The legislature, therefore, may provide for the appointment of officers in the municipal government in the mode adopted by the civil service act. In the absence of any constitutional restriction, the power of the legislature is ample to provide the mode of appointment to be adopted in selecting municipal officers.”

Section 3 of the Civil Service Act empowers the commissioners to classify all the offices and places of employment in the city, except those who are elected by the people and others specified in section 11 of the act, not now in question, and provides that the offices and places so classified by the commission shall constitute the classified civil service of the city. Section 4 of the same act provides that the commissioners shall make rules for carrying out the purposes of the act and for examinations, appointments and removals in accordance with its provisions. The commissioners did adopt rules, classified the offices and places of employment into two general classes known as class “A ” and class “B ” respectively. These rules provide (No. 3) that class 5