Bovinette v. City of Mascoutah, 71--207

• Decision Date: 29 September 1972
• Docket Number: No. 71--207,71--207
• Citation: 288 N.E.2d 12,7 Ill.App.3d 492
• Parties: Ernest E. BOVINETTE, Appellant, v. The CITY OF MASCOUTAH, Illinois, a municipal corporation, and William Beatty, Appellees.
• Court: United States Appellate Court of Illinois

Page 12

288 N.E.2d 12

7 Ill.App.3d 492

Ernest E. BOVINETTE, Appellant, v. The CITY OF MASCOUTAH, Illinois, a municipal corporation, and William Beatty, Appellees.

No. 71--207.

Appellate Court of Illinois, Fifth District.

Sept. 29, 1972.

Walker & Williams, Professional Corporation, Belleville, for appellant; Martin W. Imber, Belleville, of counsel.

Norman L. Nold, Freeburg, and Robert L. Jennings, Belleville, for appellees.

CREBS, Justice.

The appellant, Ernest E. Bovinette, filed a complaint for declaratory judgment seeking a declaration that his employment as Chief of Police of Mascoutah had not been properly terminated and a further declaration that he was entitled to the office and salary of Chief of Police. The Circuit Court of St. Clair County granted the city's motion to dismiss the complaint, holding that the appellant had been legally removed from office and that irrespective of the legality of the removal, he had tendered a resignation from said office which was accepted, and it is from this determination that appellant has appealed.

The complaint alleged that on March 31, 1971 the city council dismissed appellant as Chief of Police without any charges being filed or hearing being held before the Board of Fire and Police Commissioners. It was alleged that the dismissal was improper because the power of discharge was vested solely in said Board. The verified motion to dismiss admitted that appellant had been dismissed without any charges or hearing before the Board but stated that the City of Mascoutah operates under the managerial form of municipal government and that appellant's dismissal was by the City Manager, who allegedly had the power to remove the Chief of Police without utilizing the hearing procedures of the Board of Fire and Police Commissioners. The City's motion also alleged that appellant tendered his resignation on March 15 and that the resignation was accepted on March 16th. The order of the trial court dismissing the complaint, recited that it did so both on the basis that the City Manager had the power to remove appellant without the filing of charges and a hearing, and on the basis that the appellant had resigned and that his resignation had been accepted.

We first consider the question of whether the City Manager had the power to remove appellant. The Act authorizing the managerial form of municipal government is contained in Article 5 of the Cities and Villages Act wherein it is provided '* * * The powers and duties of the manager shall be: * * * (2) to appoint and remove all directors of departments * * *' Ill.Rev.Stat.1971, ch. 24, par. 5--3--7.

The Act concerning the Board of Fire and Police Commissioners is contained in Division 2.1 of Article 10 of the Cities and Villages Act wherein the following provision pertaining to such a Board under a managerial form of government is set forth: 'The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department, unless the council or board of trustees shall by ordinance as to them otherwise provide; except that in any municipality which adopts or has adopted this Division 2.1 and also adopts or has adopted Article 5 of this Code, the chief of police and the chief of the fire department shall be appointed by the municipal manager, if it is provided by ordinance in such municipality that such chiefs, or either of them, shall not be appointed by the board of fire and police commissioners. * * *' Ill.Rev.Stat.1971, ch. 24, par. 10--2.1--4. The Act then later goes on to provide that 'Except as hereinafter provided, no...