Bullis v. City of Chicago

• Decision Date: 08 October 1908
• Citation: 235 Ill. 472,85 N.E. 614
• Parties: BULLIS v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

235 Ill. 472

85 N.E. 614

BULLIS

v.CITY OF CHICAGO.

Supreme Court of Illinois.

June 18, 1908.

Rehearing Denied Oct. 8, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; A. C. Barnes, Judge.

Action by Walter Bullis against the city of Chicago. Judgment for plaintiff, affirmed by the Appellate Court (138 Ill. App. 297), and defendant appeals. Reversed and remanded.Edward J. Brundage, Corp. Counsel, Clyde L. Day, and Emil C. Wetten, for appellant.

A. D. Gash, for appellee.

DUNN, J.

This appeal is from a judgment against the appellant in favor of the appellee for salary as a police patrolman. The civil service act was adopted by the city of Chicago in 1895 (Hurd's Rev. St. 1905, c. 24a), and the appellee, having taken the examination, was on March 14, 1898, certified for appointment as patrolman and thereafter served as a patrolman until November 1, 1903, when he was suspended by the chief of police under charges, and after a hearing thereon was discharged on January 15, 1904. On certiorari proceedings begun by the appellee the superior court of Cook county quashed the proceedings resulting in his discharge, and this judgment, on appeal to the Appellate Court and from that court to the Supreme Court, was affirmed, whereupon appellee was reinstated on June 1, 1906, and thereupon began this suit for his salary from the date of his suspension until his reinstatement. A trial before the court without a jury resulted in a judgment for $2,660.20 in favor of the appellee, which has been affirmed by the Appellate Court, and the defendant has appealed to this court.

The appellee by his suit was demanding the salary of the office of police patrolman, and it was therefore incumbent on him to show the legal existence of the office and his legal right to hold it. Stott v. City of Chicago, 205 Ill. 281, 68 N. E. 736;People v. City of Chicago, 210 Ill. 479, 71 N. E. 400;McNeill v. City of Chicago, 212 Ill. 481, 72 N. E. 450;Moon v. Mayor, 214 Ill. 40, 73 N. E. 408;Kenneally v. City of Chicago, 220 Ill. 485, 77 N. E. 155. The office of policeman or police patrolman was unknown to the common law, and wherever such office exists it is the creation of the statute law or municipal ordinance. Stott v. City of Chicago, People v. City of Chicago, Moon v. Mayor, supra. The affirmance by the Appellate Court of the judgment of the trial court has settled all questions of fact adversely to appellant. Objection was made by appellant to the introduction of certain evidence produced by appellee for the purpose of showing his legal right to the office of police patrolman. By the charter of the city of Chicago passed in 1863 there was created the office of police patrolman. Chapter 10 of the charter established an executive department of the municipal government known as the board of police, having control of the police force and full power and authority over the police organization, government, appointments, and discipline within the city. Section 6 of that chapter established the police force and created the offices of 90 police patrolmen, and as many more as might be authorized by the common council on the application of the board of police. Priv. Laws 1863, p. 110. The charter was amended in 1865, and the number of police patrolmen whose appointment might be authorized by the council was limited to 200. Priv. Laws 1865, p. 288. Again in 1867 the charter was amended by authorizing the council, on recommendation of the board of police, to provide by ordinance for additional police patrolmen without limit, except that such ordinance should require a vote of three-fourths of all the aldermen elected, to be taken by yeas and nays and entered on the record. The appellee introduced in evidence an ordinance, passed in 1867, fixing the number of police patrolmen at 250, and later ordinances of 1869 and 1870 increasing this number to 400.

This was the situation when, on April 23, 1875, the city became incorporated under the general law. The effect of the organization of the city under the general law was to substitute the general law for the special charter under which the city had been acting, and all the provisions of the special charter were repealed so far as they were inconsistent with the general law. This organization of the city under the general law determined the tenure of all officers under the special charter not within the saving clause of the act, which provided that the city officers in office at the time of organization under the general law ‘shall, thereupon, exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.’ Hurd's Rev. St. 1905, c. 24, art. 1, § 3; People v. Brown, 83 Ill. 95;Law v. People, 87 Ill. 385;Crook v. People, 106 Ill. 237. The officers in office at the time of the adoption of the act who should exercise the powers conferred upon like officers by the act until their successors were elected and qualified were only those officers holding under the special charter that answer to the same officers provided for in the general law. All other offices were abolished eo instanti by the adoption of the general law. Crook v. People, supra. The only offices provided for by the law itself were a mayor, city council, city clerk, city attorney, and city treasurer. Authority was given to the city council to provide, by an ordinance passed by a vote of two-thirds of the aldermen elected, for the election or appointment of such other officers as it might deem necessary. Until the city council did provide for the appointment of patrolmen, the provisions of the city charter having been superseded by those of the general law, there was no such office as patrolman.

Appellee introduced in evidence, without objection, an ordinance passed June 28, 1875, the fifth section of which provided that the police force should consist, among other officers, of ‘police patrolmen now in the employ of the city, which may be increased from time to time.’ The law required that the offices to be created by the city council should be filled by election by the voters of the city, or by appointment by the mayor with the approval of the council. It was not therefore, a lawful exercise of power by the council to declare the individuals then in the employ of the city as police patrolmen to be officers of the city.

Appellee's name was included in a certificate of appointment of 1,900 patrolmen and he was sworn in with about 2,000 other patrolmen. Even if it were conceded that the offices of 400 police patrolmen continued after the organization of the city under the general law, it was necessary for the appellee to show that he was rightfully entitled to one of these offices, or that an additional number of offices had been created, to one of which he was rightfully entitled.

Appellee introduced in evidence article 1 of chapter 51 of the Revised Code of Chicago of 1897. Section 1477, which counsel for the appellee say in their brief was passed in 1881, though the record does not show when the same was passed, establishes a department of police, embracing, among other officers, such number of patrolmen as has been or may be provided by ordinance. In order to establish the creation of an additional number of officers, the appellee introduced in evidence, over the objectionof the appellant, the following extract from the proceedings of the city council on January 5, 1903: ‘Ald. Cullerton presented the following order: ‘Ordered that the superintendent of police be, and he is hereby, authorized to increase the number of police officers on the police force by filling vacancies wherever they exist and are necessary,...