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 1898 
 
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 Citizen's associf^tlon of 
 
 Chicago, 
 
 rigest of the civil ser- 
 vice law decision
 
 DIGEST a^ 
 
 OF THE 
 
 CIVIL SERVICE LAW DECISION 
 
 AND 
 
 STATEMENT OF THE ORIGIN OF THE 
 LITIGATION 
 
 CITIZENS^ ASSOCIATION 
 
 OF 
 
 CHICAGO 
 
 1898
 
 c c 
 
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 CITIZENS' ASSOCIATION OF CHICAGO. 
 
 OFFICERS— 1898. 
 
 
 R. J. SMITH, President. 
 
 R. E. JENKIXS, Vice-President. 
 
 JOHN C. BLACK, Treasurer. 
 
 J. C. AMBLER, Secretary. 
 
 EXECUTIVE COMMITTEE. 
 
 ■r 
 
 
 % 
 
 R. J. Smith, 
 R. E. Jenkins, 
 JosiAii L. Lombard, 
 Melville E. Stone, 
 MuuRY Nelson, 
 Francis B. Peabody, 
 E. Fletcher Ingals, 
 
 W. J. Chalmers, 
 J. Harley Bradley, 
 h. h. kohlsaat, 
 Wm. a. Fuller, 
 Bryan Lathrop, 
 Jl'lius Stern, 
 ChRISToI'U Hutz. 
 
 ROOMS 33 MERCHANTS' BUILDING. 
 Office Hoirs: - . - . . 9 a. m. to 5 r. m. 
 
 TELEPHONE, MAIN 1313. 
 
 .'«i5.'J9H
 
 STATEMENT. 
 
 At the instance of the Citizens' Association two petitions 
 were filed at the June term, 1897, of the Supreme Court of 
 Illinois, praying mandamus against Joseph Ki[)ley, Superin- 
 tendent of Police of Chicago, and Adolph Kraus, Dudley Win- 
 ston and Hempstead Washburne, Civil Service Commissioners 
 of that city, in the one case, and against the said Civil Service 
 Commissioners alone, in the other. 
 
 These suits were the culmination of the struggle for the 
 enforcement of the new Civil Service Act in the City of 
 Chicago, which had been going on since the inauguration of 
 Mayor Harrison in April, 1897. 
 
 Among the first official acts of Mr. Harrison was to create 
 a vacancy in the commission by promoting Mr. Waller, the 
 sole Democratic member, to the office of City Comptroller, and 
 to remove on wholly unfounded charges of incom[)etency and 
 neglect of duty, the other members, Messrs. Clark and Hotz. 
 A new Commission was appointed consisting of Messrs. Kraus, 
 Winston and Washburne. 
 
 On A[)ril liJtli, within tliree days after the inauguration of 
 the Mayor, Mr. Thornton, the new Corporation Counsel, the 
 personal apjiointoi' of the Mayor, reversed tho ruling of his 
 predecessor, and announced in a wi-itton opinion, recjuested of 
 him by the Mayoi', that the following imnicd positions were
 
 6 
 
 not within the operation of the Civil Service Act: The Secre- 
 taries to the Commissioner of Public Works, to the Superin- 
 tendent of Police, of the Department of Police, to the Com- 
 missioner of Buildings, of tlie Fire Department and of the 
 Commissioner of Health ; the Superintendent of Streets, of 
 Water, of Sewage, of Special assessments, of Maps, of Milk 
 and Food Division, of City Telegraph, and of Isolation Hos- 
 pital ; the Assistant Superintendent of Police and of the Milk 
 and Food Division; City Engineer; Assistant Commissioner 
 of Health ; Deputy Commissioner of Buildings ; First Assistant 
 Fire Marshal; Fire Inspector; Veterinary Surgeon; Chief of 
 Division of Sanitary Inspection; Chief of Bureau of Smoke 
 Inspection; Register of Vital Statistics; Chief of Division of 
 Contagious Diseases; the four Inspectors and the fifteen 
 Captains of Police. 
 
 The theory u])on which this opinion was constructed was 
 that the positions named were " heads of principal depart- 
 ments" of the city, as that phrase was used in Section 11 of 
 the Civil Service Act, and were thus exempted from classifi- 
 cation. 
 
 The Corporation Counsel publicly opposed the Merit 
 System, and openly announced his opinion that the Civil 
 Service Act was unconstitutional and void. The new Civil 
 Service Commissioners took a more conservative stand, but it 
 was generally believed they would endeavor to meet the views 
 
 « 
 
 of the Mayor and extend the unclassified list. One of them 
 Mr, Winston, on April 23, was reported as having announced 
 his concurrence in the opinion of the Corporation Counsel. 
 
 A large majority of the City Council was clamorously 
 against the Merit system, and it was apparent that that body
 
 ^RTOuld do all in its power, as subsequent events proved, to 
 destroy the law. 
 
 Under these circumstances, the Citizens' Association 
 sought the advice of counsel for a construction of the law and 
 determined to appeal, if possible or advisable, to the courts. 
 
 There had been some suggestions, emanating from the 
 Mayor and the Civil Service Commissioners, relative to a test 
 case to secure judicial interpretation of the meaning of the 
 phrase "heads of any principal department," and having this 
 fact in mind the senior counsel of the Association called on Mr. 
 Kraus, President of the Civil Service Commission, and offered, 
 without cost to the City or the Commissioners, to aid in bring- 
 ing the matter before the Courts. The oflPer was [)eremptorily 
 rejected. 
 
 The situation was grave; the difficulties in the way of a 
 suit were serious; nice discrimination and sound judgment 
 were demanded for the occasion. After mature deliberation it 
 was determined to seek Mr, Edward C. Akin, the Attorney 
 General, and request that he lend his liame for the bringing 
 of original suits in mandamus in tiie Supreme Court. Too 
 much credit cannot be given that officer for liis course at this 
 juncture. After a full explanation, he heartily concurred with 
 Counsel for the Citizens' Association; and to his timely coun- 
 tenance and co-operation the ultimate success was largely due. 
 
 On the same day that the notice of the intention to apply 
 for writs of mandamus was served on the Civil Service Com- 
 missioners and the Superintendent of Police, the Commis- 
 sioners delivered an opinion exempting precisely the same 
 positions from the operation of the Civil Service Act as were 
 sought to be exempted by the Corporation Counsel, save only
 
 8 
 
 the Captains of Police. Thus were the fears of the Citizens' 
 Association justified. 
 
 Of the two petitions filed in the Supreme Court the first 
 was directed against Chief of Police Kipley and the Civil Ser- 
 vice Commission, and charged that the former was assuming 
 to create vacancies in the positions of Assistant Chief, Inspec- 
 tors and Captains and fill the same with appointees of his own 
 choosing, in violation of the Civil Service Act. The petitioner 
 prayed that the Chief be compelled to certify vacancies in those 
 positions to the Civil Service Commissioners, and that the 
 Commissioners be required to submit the names of eligibles to 
 fill such vacancies. 
 
 To this petition Chief Kipley, through Corporation Coun- 
 sel Thornton, made answer that the whole law was unconstitu- 
 tional ; but if constitutional insisted that under its terms the 
 Chief had the right to create vacancies in the positions named 
 and fill the same, because such positions were within the mean- 
 ing of Section 11 of the act exempting " heads of any principal 
 department" from its operation. The Commissioners adopted 
 all of the answer of the Corporation Counsel except as to the 
 alleged unconstitutionality of the law, and set up numerous 
 technical objections to the form of the petition. 
 
 The second petition alleged that the Commissioners had 
 promulgated an opinion (identical with Thornton's save as to 
 police captains), in which they held numerous positions 
 (naming them) exempt from the operation of the act, and 
 prayed that they be compelled to classify the same and bring 
 th^m within its terms. 
 
 The Commissioners made answer attacking, with technical 
 objections, the form of the petition as in the Kipley case, and
 
 9 
 
 also alleged that the positions named were not within the 
 meaning of the Act and not required by its terms to be classi- 
 fied. The answers of the Commissioners were signed bv T. 
 A. Moran, John W. Ela and Levy Mayer, attorneys for the 
 defendants. 
 
 Afterwards, in the Kipley case, a plea p//ts t/a/Tc/H coufin- 
 uance was filed setting up as a furtlier defense thfe so-called 
 Powers' ordinance. This was an ordinance introduced by 
 Alderman Powers, passed by the Council, and approved June 
 28, by the Mayor. It attempted to exempt, by designating 
 them heads of principal departments, all the positions named 
 in the opinions of the Commissioners and of the Corporation 
 Counsel, and sundry other subordinate positions. This plea 
 raised the whole question of the power of the City Council 
 to nullify, by ordinance, the provisions of the Civil Service Act. 
 
 Demurrers were filed by the petitioner to all the answers 
 and to the plea and the cases went over to the October Term 
 of the Supreme Court. 
 
 When they were reached in October, Mr. John W. Ehi and 
 Mr. Levy Mayer appeared for the Commissioners and the 
 Corporation Counsel for Ciiief Kipley. In the argument, Mr. 
 Thornton insisted that the Merit System was a failure, gov- 
 ernment under it im[)ossible, and that the whole law was 
 unconstitutional; or, if th(^ Court should not hold that vic-w, 
 then that the Powers onlinance was operative, and tiie j)osi- 
 tions therein named were there])y taken out of tlie classified 
 service. 
 
 Mr. Mayer confined himself principally to an Jittack upon 
 the form of tin- procci'ding and urged the Court to tlii'ow tlii^ 
 cases out for alleged informalities. Mr. I'^la joined with him
 
 10 
 
 in this argameut aud besides insisted upou the constructiou of 
 the meaning of "heads of any principal department" as set 
 forth in the Commissioners' opinion of May 22, and in th& 
 opinion of Mr. Thornton of April 19, except as to police cap- 
 tains. He also had something to say as to the illegality of the 
 Powers' ordinance. Both gentlemen argued for the constitu- 
 tionality of the Act. 
 
 The Citizens' Association was represented by Messrs. 
 Smith, Blair & Smith, Mr. E. B. Smith and Mr. Murry Nel- 
 son, Jr. 
 
 The essential points in the case were: First, the suffi- 
 ciency, in matter of form, of the petitioner's pleadings; second, 
 the validity of the exemptions claimed by the opinions of the 
 Commissioners and Mr. Thornton; and third, the legality of 
 the Powers' ordinance. 
 
 On the first two, Messrs. Ela and Mayer strenuously 
 opposed the Attorney-General aud the attorneys of the Citi- 
 zens' Association. 
 
 On the 22d day of December the opinions of the Supreme 
 Court were handed down. 
 
 They were written by Mr. Justice Magruder and are 
 sweeping in character. 
 
 The evils of the spoils system are enumerated ; the famous 
 aphorism of Marcy that " to the victor belongs the spoils" is 
 called a "semi-barbarous maxim" ; and it is declared that 
 the Legislature of Illinois passed our Civil Service Act in order 
 to " do away with the onerous burden of the curse " of the 
 spoils system. 
 
 Passing to the objections of the Corporation Counsel to-
 
 11 
 
 the constitutionality of the Act, the learned judge answers 
 them fully. 
 
 The general scheme of the Act is set out, and it is held, 
 citing the opinion of Justices, 138 Mass., 601; Rogers v. 
 Common Council of Buffalo, 123 N. Y., 173, and Chittenden 
 V. Wurster, 152 N. Y., 345, that it is entirely within the 
 power of the Legislature to provide for the filliug'of public 
 offices and positions according to merit and fitness, to be 
 ascertained by competitive examination: to provide for the 
 removal of such appointees, and to provide penalties for the 
 violation of the provisions of an Act drawn upon these lines. 
 
 The point made that the Act is unconstitutional because it 
 delegates to Civil Service Commissioners the exercise of judi- 
 cial functions, is also investigated and denied. The case of 
 Interstate Commerce Commission v. Brimson, 154 U. S., 447, 
 is cited by the Court as being iu point, and is followed on this 
 branch of the case. 
 
 It was contended also, by counsel for Kipiey, that Section 
 12 of the Act, which provides for a trial of charges against 
 appointees by the Commission, removal to follow a conviction, 
 is a violation of the constitutional right of trial by jury, on 
 the theory that a public office with its emoluments is the prop- 
 erty of the office holder, and that no man can be deprived of 
 his property without a jury trial. The Court recognizes this 
 as the usual claim of a spoilsman, niu\ disposes of it in vigor- 
 ous and trenchant language. 
 
 To the objection tiiat the Act is unconstitutionid, as IxMiig 
 special legislation, the Court say the contention is witiiout 
 force. 
 
 To the objection that the Act is iinconstitutional, l)ecauso
 
 12 
 
 in Section 35 it is provided that if any person shall be con- 
 victed under tlie next preceding section, his office shall, by 
 force of such previous conviction, be rendered vacant, and 
 such person shall be incapable of holding office for a period 
 of five years, the Court, on technical grounds, is inclined to 
 sustain counsel for Kipley, but takes all force from the hold- 
 ing by saying that that portion of the Act may be void and 
 all the rest remain in full force and effect. 
 
 Having thus, with painstaking effort, disposed of all the 
 so-called constitutional objections, the Court then passes to a 
 discussion of wJiat is meant by " heads of any principal 
 department,'' as contained in Section 11, the exempting sec- 
 tion of the Act. A careful argument is made on this branch 
 of the case in the opinion, and the deduction drawn that the 
 phrase means the head or heads of the six principal depart- 
 ments in the City of Chicago as they existed by virtue of the 
 City and Villages Act and the ordinances in force at the 
 time of the adoption of the Civil Service Act by the City of 
 Chicago. As those ordinances existed at that time there was 
 but one head to each of the several departments, and the Court 
 holds that "heads of any principal department" means the 
 single heads of each department, and its meaning is not to be 
 extended by construction. 
 
 On this point Mr. Justice Phillips and Mr. Justice Boggs 
 dissent. 
 
 , The ordinance of June 28th, 1897, known as the Powers' 
 ordinance above spoken of, and which was intended, so far as 
 the Council had power to do so, to emasculate the Civil Service 
 Act, is handled without gloves. It is said to be " in the 
 teeth of the Act." It is said that ordinances " must be reason-
 
 13 
 
 able in order to be valid, and that they must spring from an 
 honest exercise of legislative discretion." To permit the City 
 Council to pass such an ordinance would be to place the Civil 
 Service Act at the mercy of the spoilsman. The ordinance is 
 held invalid. 
 
 Finally the Court disposes briefly of the technical objec- 
 tions, made by Counsel for the Commissioners, to the suffi- 
 ciency of the petitions; and it is held that they set forth a clear 
 right on the part of the relator to have the act performed, and 
 a plain duty on the part of the respondents to act in the prem- 
 ises. 
 
 Accordingly it is ordered that the writ of mandamus issue 
 to the respondents, to the Superintendent of Police to give the 
 notice, and to the Commissioners to make the certification, as 
 prayed in the petition. 
 
 In the case against the Commissioners, the opinion is 
 brief, referring to the Kipley case as containing the views of 
 the Court; overruling the technical objections to the form of 
 the pleadings, and ordering the writ to issue. 
 
 Thus was fought one of the most important battles of the 
 new crusade. Never was victory more complete, and in spite of 
 vilification from spoilsmen, condemnation by pseudo friends 
 of reform and half-hearted support of timid souls, these 
 are the results: 
 
 1. The law has been sustained. The Civil Service merit 
 system has its place in the fundamental law. 
 
 2. The law is to be read and inter[)reteU according to its 
 plain intent and nifiuning, and not in momentary impulses 
 based upon short-sigliteilness or Ki)eci()nK argument of spoils-
 
 14 
 
 meu, improperly denominated "policy." The Mayor cannot 
 molest, and the Council cannot make afraid. 
 
 3, When now a candidate announces himself in favor of 
 Civil Service the public will be able to hold him, measurably, 
 at least, to his promises.
 
 15 
 
 THE FUTURE. 
 
 It will be well for city disbursiDg officers to study the pro- 
 hibitory features of the law. 
 
 It is evident that the popular pulse beats for the law, and 
 that for either party it would be good policy, if only from a 
 party view, to support it heartily, sincerely and with vigor. 
 
 It is believed that if the law shall be enforced many obsta- 
 cles will disappear. They have been fostered by enemies of 
 the law and exist in the minds of timid friends only. 
 
 Insincere and insufficient administration will surely be 
 found out and the responsible party or persons made to suffer. 
 
 It is proper to state that counsel both for Kipley and the 
 •Civil Service Commission, although the latter, according to 
 newspaper accounts, have professed to be satisfied with and 
 even claimed to have been the main instruments in bringing 
 about the results, have filed with the Clerk of the Supreme 
 Court notices of intention to apply for a rehearing. 
 
 The petitions will be considered at the February term, but 
 there should seem to l)e no doubt l)nt that rehearings will be 
 -denied. 
 
 .•J(i5;J9M
 
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