Egan v. City of Aurora, 12738.

• Decision Date: 04 March 1960
• Docket Number: No. 12738.,12738.
• Parties: Paul EGAN, Plaintiff-Appellant, v. CITY OF AURORA, a Municipality under the laws of the State of Illinois, Leo Boucon, William G. Konrad, H. A. Wyeth, Sr., William B. Robertson, Donald Curran, Hershell Stover, LeRoy Straud, Anthony Rukas, John (Jack) Pfiefer, Ray Schuhow, John Day and Charles Darling, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F.2d 377 (1960)

Paul EGAN, Plaintiff-Appellant, v. CITY OF AURORA, a Municipality under the laws of the State of Illinois, Leo Boucon, William G. Konrad, H. A. Wyeth, Sr., William B. Robertson, Donald Curran, Hershell Stover, LeRoy Straud, Anthony Rukas, John (Jack) Pfiefer, Ray Schuhow, John Day and Charles Darling, Defendants-Appellees.

No. 12738.

United States Court of Appeals Seventh Circuit.

March 4, 1960.

Sol R. Friedman, Joseph Keig, Sr., I. Stephen Friedman, Edwin R. Armstrong, Chicago, Ill., for appellant.

William C. Murphy, Reid, Ochsenschlager, Murphy & Hupp, Aurora, Ill. (L. M. Ochsenschlager, Aurora, Ill., of counsel), for defendants-appellee.

Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and STECKLER, District Judge.

DUFFY, Circuit Judge.

Plaintiff is the Mayor of the City of Aurora, Illinois. He brought this suit charging violation of the Federal Civil Rights Statutes, Title 42 U.S.C.A. §§ 1983 and 1985, and claims damages in the amount of $5,000,000.00.

The complaint alleges that plaintiff, as Mayor, was conducting a public meeting before a group in excess of two hundred people in the Council Chambers in the City of Aurora, when defendant Donald Curran, purporting to be acting as Chief of Police of the City of Aurora, and defendants Stover, Straud, Rukas, Pfiefer, Schuhow and Day, all purporting to be police officers of the City of Aurora, without probable cause, arrested plaintiff under color of an Illinois breach-of-the-peace statute, and incarcerated him in the city jail for a period of more than four hours. Plaintiff alleges such action was the result of a conspiracy between the above-named defendants and defendants Boucon, Konrad, Wyeth and Robertson, acting as individuals and as city commissioners of the City of Aurora, and Charles Darling who purported to be Corporation Counsel of the City of Aurora, to deprive plaintiff of his rights to freedom of speech and assembly.

The complaint was later amended by adding the following: "The defendants in all matters and things herein alleged acted with the design and purpose of depriving the plaintiff of his rights under the Fourteenth Amendment of the Constitution of the United States to freedom of speech and freedom of assembly."

Defendants moved to dismiss the action because the complaint as to each of them failed to state a claim upon which relief can be granted. Another ground of the motion to dismiss was that the District Court had no jurisdiction over the subject matter, and that the alleged claim was frivolous. In the alternative the motion also asked the Court to strike specified paragraphs of the complaint. The motion referred to portions of a "proclamation" issued by plaintiff on October 13, 1958, the day prior to the date of the meeting.

Defendants offered and filed a copy of the proclamation issued by the Mayor, and an affidavit which alleged, in part, that the Mayor was attempting to incite a public disturbance pursuant to a program of obtaining personal publicity for himself. A counter-affidavit was offered and filed by plaintiff Egan. The District Court, without a trial, directed judgment for the defendants.

Rule 12(b) provides: "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 * * *." We shall so consider the issues before us for decision.

There is no dispute that on the day before the meeting, the Mayor did issue a proclamation in manner and form as follows:

"Proclamation

"Whereas;

"A dire emergency exists in Aurora which might spread very conceivably thru out the world, when it is demonstrated openly and conclusively that the power of the people in the choice of their executive can be surmounted and destroyed to the great disadvantage of most of the people including those who did not vote for the head of the government, and such blinking and ignoring the basic and vital things in Aurora, the State of Illinois and the Great formerly idealistic and marvelous Government of the United States of America which from its inception until about 45 years ago was the almost holy light of downtrodden men everywhere, the inspiration for living to those who had faith in us and our ideals, principals and basic pronouncements were the hope of the world, in comparison we are now preserving vicious dictatory, old corrupt and tottering governments and turning all of the wealth created by our ancestors and modern day potentialities in a mad race to keep factories working and a few all powerful against the interests, well being and now the very survival of every man woman and child on this entire earth.

"I Therefore Proclaim A State Of Emergency In Aurora Illinois and ask every able bodied citizen of this country, who does not have a criminal, insane or other special unsavory record to come to the city hall council chambers at the city hall at 7 P.M., Tuesday night Oct. 14, 1958 to see if the people can be heard and get a remedy from their ills as some of our predecessors did to thro off the yoke of absolute monarcy and potential slavery in their day. I will welcome all races, all creeds and even legally registered Communists who are welcome if the are sincerely willing to help preserve our laws and bear arms for this purpose and to preserve our great heritage, priceless ideals, principals and purposes or rather and this is important, Come Back To Them, all races creeds and colors are invited to `bear arms,\' as the Constitution provides, the protection and preservation of the law in Aurora and let us once more be the City of `Lights\' which guides the way by attending this most important meeting in the history of Aurora. /s/ Paul Egan Mayor of Aurora, Illinois."

The affidavit filed upon behalf of defendants recited a course of conduct by Egan covering three years by which it is claimed he attempted to obtain continuous personal publicity by press, radio and otherwise; that he had discharged or attempted to discharge twelve persons as Chief of Police, most of whom were appointed by him, and that on one occasion he appointed a young lady as Chief of Police who was publicity agent for several Chicago...