Fish v. McGann

• Decision Date: 26 October 1903
• Citation: 205 Ill. 179,68 N.E. 761
• Parties: FISH v. McGANN.
• Court: Illinois Supreme Court

205 Ill. 179

68 N.E. 761

FISH

v.McGANN. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Petition for mandamus by Clarence E. Fish against Lawrence E. McGann.From a judgment of the Appellate Court(107 Ill. App. 538) affirming a judgment refusing the writ, petitioner appeals.Affirmed.Clarence E. Fish, pro se.

Charles M. Walker, Corp.Counsel, and William H. Sexton, Asst. Corp.Counsel, for appellee.

This is a petition for mandamus, filed by appellant in the circuit court of Cook county on April 3, 1902, against appellee, as comptroller of the city of Chicago, to compel the latter to reinstate petitioner in the position of chief clerk in the comptroller's office of the city.The petition sets up the adoption by the city of Chicago of the civil service act of 1895 in that year, and the appointment of civil service commissioners under and by virtue thereof; that in November, 1899, petitioner, after having passed an examination as required by law under the rules of said commissioners, was appointed as clerk in the city collector's office, and was afterwards transferred to the special assessment bureau, where he remained until November 8, 1900; that on or about February 20, 1901, he was appointed as a clerk in the city collector's office, which position he held until April 1, 1901; that on July 10, 1901, he took an examination for the position of chief clerk in the comptroller's office, and was on or about February 13, 1902, appointed to that position, which he held until March 31, 1902; that on March 31, 1902, without the consent of the commission, without the filing of written charges against him, without any opportunity to defend, and without any investigation before said commission, or before any board appointed by it to conduct any such investigation, he was discharged by the comptroller.The answer of appellee, respondent below, among other things, alleges that on February 20, 1901, said petitioner was appointed to the position of clerk in the city collector's office; that he was employed in said position until April, 1901; that he was laid off on or about April 1, 1901, and was tendered reinstatement on or about June 26, 1901; that he declined and refused to be reinstated, and waived his right to reinstatement, on or about June 26, 1901; that his waiver of his right to reinstatement in said position was duly accepted on or about the day last mentioned; that on July 10, 1901, an examination was held for chief clerk in the comptroller's office of the city of Chicago; that said examination was an open examination, and was not a promotional one; that petitioner took said examination, and passed the same, and was certified to the position of chief clerk in the comptroller's office of the city on January 28, 1902, and was appointed to said position on February 13, 1902.The answer further alleges as follows: ‘This respondent further says that said petitioner was appointed as a probational appointee in accordance with section 1 of rule 6 of the civil service rules, which is as follows: ‘The appointment shall be on probation for a period of six months.At the end of this period, if the conduct and capacity of the person appointed have been satisfactory, the appointment shall be deemed complete, but the appointing officer may complete the appointment at any time after the expiration of two months by certifying such completion to the commission.’This respondent, further answering, says that the following rule was also duly adopted by the civil service commission, and is now in full force and effect, and was in full force and effect at the time of the last-mentioned appointment of said petitioner: ‘If any probationer shall, upon fair trial, be found incompetent or disqualified for the performance of the duties of the position he is filling, the appointing officer shall certify the same in writing to the commission.Upon the approval of the commission such probationer shall be dropped from the service.’This respondent further says that on March 31, 1902, in accordance with the civil service law and rules, and prior to the expiration of the period of probation of the said petitioner, he discharged the said petitioner, upon assigning in writing his reason therefor to the said civil service commission; that said petitioner had a fair trial in the duties of chief clerk of the comptroller's office; that he was found incompetent and disqualified for the performance of the duties of the position; that this respondent so certified in writing to the commission, and assigned in writing his reason for the discharge of said petitioner to said commission; and that said discharge was consented to and approved of by said commission on April 4, 1902, and said petitioner was duly notified of his discharge April 5, 1902, by said commission.'To this answer the petitioner filed a demurrer, both general and special, and upon hearing the circuit court overruled the demurrer.The petitioner elected to stand by his demurrer, and thereupon the court rendered a judgment against him for costs.From that judgment appellant appealed to the Appellate Court for the First District, which court affirmed the judgment of the circuit court.From the judgment of affirmance so entered by the Appellate Court this appeal is prosecuted by appellant.

MAGRUDER, J.(after stating the facts).

1.The petitioner claims that he was improperly discharged from the position of chief clerk in the comptroller's office of the city, upon the alleged ground that he could not be removed or discharged except for cause upon written charges, and after an opportunity to be heard in self-defense, and after an investigation of such charges by or before the civil service commission.In other words, appellant claims that section 12 of an ‘act to regulate the civil service of cities'(1 Starr &C. Ann. St. 1896 [2d Ed.] par. 330, c. 24, p. 829) applies to his case.Section 12 is in part as follows: ‘No officer or employé in the classified civil service of any city, who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense.Such charges shall be investigated by or before said civil service commission, or by or before some officer or board appointed by said commission, to conduct such investigation.’Section 10 of the civil service act provides as follows: ‘The appointing officer shall notify said commission of each position to be filled separately, and shall fill such place by the appointment of the person certified to him by said commission therefor, which appointment shall be on probation for a period to be fixed by said rules.* * * At or before the expiration of the period of probation, the head of the department or office, in which a candidate is employed, may, by and with the consent of said commission, discharge him, upon assigning in writing his reason therefor to said commission.If he is not then discharged, his appointment shall be deemed complete.’Id. par. 328, pp. 828, 829.By the terms of sections 12and10, as above quoted, two cases of discharge are provided for.One applies to persons in the classified civil service, and the other applies to persons whose appointment is on probation, or persons known as ‘probationers.’As section 12 appears to apply to persons in the classified civil service, it does not apply to appellant, under the facts of the present case.The appointee, to whom section 12 applies, is not ‘in’ the classified service until the probation period has expired by the running of the six months, or until the certification of the appointing officer prior to that time, as provided for by section 1 of rule 6 enacted by the commission.Section 4(Id. par. 322) of the act provides that the commission shall make rules to carry out the purposes of the act, and for examinations, appointments, and removals in accordance with its provisions.Section 1 of rule 6 is set forth in the statement preceding this opinion.Section 2 of rule 6, providing that ‘if any probationer shall, upon fair trial, be found incompetent,’ etc., is also set forth in the statement preceding this opinion.The facts, fairly interpreted, show that appellant, when discharged, was a mere probationer, and not entitled to the hearing and investigation specified in section 12.This is so for the following reasons: The case was heard in the court below upon demurrer to respondent's answer.The object of such hearing was to determine whether the well-pleaded facts of the answer constituted grounds of defense to the petition.Johnson v. Roberts, 102 Ill. 655.A demurrer to a pleading admits the truth of the facts well pleaded, though it does not admit the conclusions sought to be drawn from them by the pleader.Compher v. People, 12 Ill. 290;Greig v. Russell, 115 Ill. 488, 4 N. E. 780;County of Christian v. Merrigan, 191 Ill. 484, 61 N. E. 479.Where, as is the case here, a demurrer is interposed to a pleading, which the court overrules, and the defendant elects to abide by the demurrer, the judgment thereupon entered is conclusive of the facts confessed by the demurrer; and no proof of such facts is necessary, other than that appearing upon the record.The facts alleged in the pleading are in such case admitted of record by the judgment of the court upon the demurrer.Nispel v. Laparle, 74 Ill. 306.The answer of respondent, the present appellee, alleged that after petitioner, the present appellant, was laid off, on or about April 1, 1901, as a clerk in the city collector's office, he was tendered reinstatement on or about June 26, 1901, which he declined and refused to accept, and that his waiver was duly accepted on or about June 26, 1901.Appellant, by his demurrer, admitted the truth of this allegation in the answer.Having thus declined and refused to accept reinstatement, he was thereby...