City of Chicago v. People ex rel. Gray.
| Decision Date | 23 June 1904 |
| Citation | 71 N.E. 816,210 Ill. 84 |
| Parties | CITY OF CHICAGO et al. v. PEOPLE ex rel. GRAY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Mandamus by the people, on the relation of Cobden G. Gray, against the city of Chicago and another. There was a judgment of the Appellate Court affirming a judgment for relator, 111 Ill. App. 594, and respondents appeal. Reversed.Edwin White Moore (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellants.
A. D. Gash and James H. Hooper, for appellee.
The relator, Cobden G. Gray, a police patrolman, filed a petition for mandamus against appellants in the superior court of Cook county on May 19, 1902, to compel the city of Chicago and the general superintendent of police, O'Neill, to place petitioner's name upon the roster of police patrolmen, from which it had been omitted and excluded by one Joseph Kipley, a former general superintendent of police of said city, and to place his name upon the police pay roll, from which it had been omitted and excluded by said last-mentioned superintendent of police; also to compel the civil service commissioners of said city (naming them) to certify petitioner's name to the comptroller of said city as a person entitled to pay as a police patrolman of said city, and to compel the city and comptroller thereof, Lawrence E. McGann, to pay to the petitioner his salary of $83.33 per month, less 1 per cent. for the police pension fund, from January 31, 1900, to April 30, 1902, making the sum of $2,227.50, and to pay petitioner his said salary henceforth as the same accrues, less said 1 per cent. to be paid to the police pension fund. It is alleged in said petition that said superintendent of police arbitrarily and wrongfully, and without legal cause or excuse, caused petitioner's name to be omitted and excluded from the pay roll of the police department of said city, and that said civil service commission wrongfully refused to certify his name and salary on the police pay roll to the comptroller, and that the comptroller had wrongfully refused to pay his said salary, although the city council had made appropriations therefor in the years 1900, 1901, and 1902.
The appellants answered, in substance, that written charges had been filed by said Kipley, superintendent of police, with the civil service commission, against petitioner, wherein he was charged with immoral conduct, or conduct unbecoming a police officer; that said charges were investigated by a trial board (naming the members thereof) appointed by the civil service commission, which, after a hearing, found petitioner guilty, and that decision was approved by the civil service commission, pursuant to which petitioner was discharged from his position as police patrolman of said city on January 31, 1900, and had not since that date served as police patrolman, nor performed any duties of such office or position; that pursuant to said proceedings his name was dropped from the pay roll of said city. Also denied that any appropriation was made by the city council in 1900, 1901, or 1902 to pay petitioner as police patrolman of said city, and denied that any appropriation was made for the payment of petitioner as police patrolman of said city since January 31, 1900. The answer also avers, in substance, that there was not at the time of the filing of the petition, or at any time since that date, any money whatsoever in the possession or under the control of any of the appellants belonging to said city, or appropriated by the city council, which could or might be used for the purpose of paying petitioner his said demands.
The petitioner replied to the answer, in substance, that the said charges were not investigated by a trial board appointed by said civil service commission, as alleged in the answer, and that the board which investigated the charges was not composed of the officers and persons who, under the rules and regulations of said commission, should have constituted said board, and that its finding was therefore null and void. Petitioner further replied to said answer that the finding and decision of said board were had and procured by the fraud of the said Kipley; also that said board, under the rules and regulations of the civil service commission, which are stated in detail, should have, as a member thereof, a representative from that commission, who should, with other members sufficient to constitute a quorum, act as a board for the trial of charges such as were made against petitioner, and that said civil service commission had no such representative on such board which tried petitioner; and the replication alleges that because said trial board was not so properly constituted as aforesaid, under the rules and regulations of said civil service commission the said finding and decision were void, and were also void because of the said fraud of said Kipley.
Appellants demurred generally to both replications, but the court overruled the demurrer, and they elected to stand by it, whereupon judgment was entered by the court on October 6, 1902, that the writ of mandamus issue commanding the proper officers to place the name of relator upon the roster of police patrolmen and upon the police pay roll, and commanding the city of Chicago and Lawrence E. McGann, the comptroller, to pay relator his salary of $83.33 per month, less 1 per cent., from January 31, 1900, to September 30, 1902, making the sum of $2,639.90, and to pay him ‘his salary of $83.33 per month, less one per cent., from September 30, 1902, henceforth as the same accrues, and to pay the one per cent. thereof into the said police pension fund.’
The foregoing statement of facts is taken, in great part, from the opinion of the Appellate Court for the First District. From the judgment of that court affirming the judgment of the superior court of Cook county a further appeal is prosecuted to this court.
Appellants contend that their demurrer to the replications should have been sustained, and also that it should have been carried back and sustained to the petition.
SCOTT, J. (after stating the facts).
The pleadings filed herein in response to the answer are denominated pleas both by the Appellate Court and the parties hereto. Court and counsel were led so to do, no doubt, by certain expressions found in our statute on mandamus. This is a common-law action. The petition performs the office of the alternative writ, the answer, that of the return; and the succeeding pleading should be a common-law replication, and designated as a replication. People v. Glann, 70 Ill. 232;People v. Crabb, 156 Ill. 155, 40 N. E. 319;Chicago Great Western Railway Co. v. People, 179 Ill. 441, 53 N. E. 986.
The petition was obnoxious to a demurrer. It sought two kinds of relief, one of which must be obtained before there could be a clear legal right to the other. Relator stood discharged from the police force of the city of Chicago. Until he was reinstated and his name restored to the roll he was not, under any circumstances, entitled to maintain mandamus requiring the city or its officers to pay him. If the facts averred by the petition are true, relator was entitled to be reinstated, and the question of his right to the salary could then be litigated; but it is manifest that a reinstatement must precede any attempt to collect the salary by mandamus.
It is further stated by the petition that the action of the various officers of the city complained of ‘was and is wholly unauthorized and without justification, cause, or excuse, fraudulent, and contrary to and in disregard of the legal rights of petitioner.’ This is the statement of a legal conclusion. Petitioner should have averred the exact facts in regard to the attempted removal as he understood them to exist, so that the court could ascertain therefrom what his rights were in case the pleading was tested by demurrer.
The question whether the laches of relator has not barred his right to this extraordinary remedy, more than two years having elapsed between his removal and the filing of the petition herein, would be...
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