Fitzsimmons v. O'Neill

• Citation: 73 N.E. 797,214 Ill. 494
• Parties: FITZSIMMONS v. O'NEILL.
• Decision Date: 21 February 1905
• Court: Supreme Court of Illinois

214 Ill. 494

73 N.E. 797

FITZSIMMONS

v.O'NEILL. ^*

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, First District.

Petition by James W. Fitzsimmons against Francis O'Neill, as superintendent of police of the city of Chicago, for a writ of mandamus to compel reinstatement of petitioner in the service of the city. From a judgment of the Appellate Court (114 Ill. App. 168) reversing a judgment for plaintiff, he appeals. Affirmed.Edmund S. Cummings, for appellant.

William D. Barge (Edgar Bronson Tolman, Corp. Counsel, of coounsel), for appellee.

This is a petition, filed by the appellant on August 6, 1902, in the circuit court of Cook county against the appellee, as general superintendent of police of the city of Chicago, for a writ of mandamus, directed to appellee as such general superintendent, commanding him forthwith to restore appellant to the position of ‘foreman of the repair shop’ of the police department of the city of Chicago, held by him previous to March 19, 1902, and to permit him to perform the duties of said position, ‘and also to permit, cause, and allow the petitioner to receive and collect the salary, emoluments, and compensation attached to said position, for the service rendered by the incumbent thereof to the city.’ Answer was filed by appellee to the petition, to which answer a traverse was filed. On January 9, 1903, the cause was submitted to the court for trial without a jury. The court found the issues for the petitioner, and that the material allegations of the petition were true, and awarded the writ of mandamus substantially in accordance with the prayer of the petition. An appeal was taken to the Appellate Court from the judgment of the circuit court, awarding the writ of mandamus and costs. On May 17, 1904, the Appellate Court reversed the judgment of the circuit court, without remanding the cause, and in its judgment made a finding of facts. The present appeal is prosecuted from the judgment so entered by the Appellate Court.

The petition recites the adoption of the civil service law by the city of Chicago; the existence in the police department of the city of an office or position known as ‘foreman of the repair shop’; that such repair shop was for the manufacture and repair of wagons, ambulances, patrol boxes, etc., and other things, employed by the police department; that about 22 men were employed in such department, doing such work; that the duty of such foreman was to examine the wagons, etc., sent to the shop for repair, and lay out work for the different employés, and determine the character of the repairs to be made, and inspect them when completed, and supervise the work, and keep a record of the work done in the shop and the time of the employés, etc.; that petitioner took the civil service examination for the appointment to such office or position of ‘foreman of the repair shop’ of the police department, and received the highest mark, and was duly certified to the general superintendent of police, and by him appointed to said office or position on December 24, 1898; that petitioner continued to fill said office or position and discharge its duties until March 19, 1902, when he was prevented from a further discharge thereof; that, in the annual appropriation for the year 1902, the city council at the request of appellee failed to make an appropriation for the salary or compensation of said office or position for the year 1902; that such action by appellee and the city council was ‘for the sole and only purpose of dismissing or removing petitioner from his said position, and circumventing and evading said civil service act’; that the appropriation ordinance was passed by the council on March 17, 1902; and on March 19, 1902, appellee attempted to dismiss petitioner from said office or position by general order No. 18 of the police department, dated March 19, 1902, which order was as follows, to wit: ‘John Carr, James F. Christian, and James W. Fitzsimmons, foreman repair shop, and Patrick Malone, assistant plumber, are hereby dropped from the rolls, no appropriation having been made by the city council for their salaries for the current year. This order to take effect at 7 o'clock this p. m. [Signed] Francis O'Neill, General Supt. Police;’ that petitioner protested to the general superintendent against said order, and offered his services for the performance of the duties of said office or position, but the superintendent refused to permit him to perform such duties; that on March 31, 1902, petitioner served a written notice upon appellee that he stood ready to do the work of such position, and tendered his services, and stood prepared to perform the same instanter, but that said superintendent refused to permit him to continue in said duties on the ground that the city council had made no appropriation with which to pay petitioner's services; that the duties of said position have not been abolished, and cannot be abolished, as it is essential for the proper management of said repair department, that there should be a superintendent of the same, etc.; that from March 19, 1902, until April 1, 1902, such duties were performed without warrant of law by one Patrick J. Reid, and since the latter date up to the time of filing of the petition by one William J. Ray; that neither Reid nor Ray has taken the civil service examination for such position, and that no one has been certified by the civil service commission for such position; that Reid is a wagonmaker and Ray a laborer employed in such shop; that neither Reid nor Ray, while performing the duties formerly performed by petitioner, performed the duties pertaining to their former position, but devoted their entire time to the duties formerly done by petitioner; that such duties required the exclusive attention of one person; that all such acts are contrary to the provisions of the civil service act, and the rules established by the commission, contrary to the rights of the petitioner; and that petitioner by such means has been illegally prevented from performing the duties of such position, and has been kept out of the same, and deprived of the honor and emoluments thereof. The appellee answered the petition, admitting that he was superintendent of police of said city, and that an office or position, known as ‘foreman of the repair shop,’ existed in the police department, and that on December 24, 1898, appellant was appointed to said position in pursuance of an examination held by the civil service commission, and continued to fill the same until about March 19, 1902, and that no appropriation for said position was made by the city council for the year 1902; denies that such failure to make the appropriation was for the purpose of dismissing or removing petitioner therefrom, and circumventing or evading the civil service act; alleges that the position was unnecessary and a useless expense to the city, and for that reason alone the city council failed to make an appropriation therefor; denies that said duties have since March 19, 1902, or at any time, been performed by said Ray or Reid, or by any one, but that said position was abolished; alleges that appellee has no power to reinstate petitioner or to revive or re-create said position, and that he has no money or appropriation within his control, and belonging to the city of Chicago, wherewith to pay to petitioner the salary prayed for by him.

The finding of facts, made by the Appellate Court and embodied in its judgment of reversal, is as follows: ‘The court finds that the action of appellant herein in dropping appellee herein from the rolls, and removing him from his position as foreman of the repair shop in the police department of the city of Chicago, was had and taken in good faith, and in the interest and promotion of economy, and to save said city a useless and unnecessary expense, and not for the purpose of circumventing or evading the provisions of the civil service act; that the sole reason why said city failed to make, and did not make, an appropriation for the payment for the year 1902 of the compensation of said appellee's position, was because said city and its officers, including the appellant, were of the opinion, entertained by them in good faith, that said position was unnecessary, and involved a useless and unnecessary expense.’

MAGRUDER, J. (after stating the facts).

The finding of fact made by the Appellate Court in its judgment of reversal is binding upon this court. By the finding of that court that the action of appellee in removing appellant from his position as foreman of the repair shop in the police department was taken in good faith and in the interest of economy, and to save the city an unnecessary expense, and not for the purpose of circumventing or evading the provisions of the civil service act, and that such removal was made solely for the reason that the city did not make an appropriation for the payment of appellant's salary for the year 1902, and that the city and its officers, including appellee, were of the opinion, entertained by them in good faith, that the position was unnecessary and involved a useless expense, the main issue, presented by the pleadings and tried by the court below, is decided against the appellant.

Some criticism is made by counsel for appellant upon the character of the finding. It is said that the Appellate Court should have found specifically whether or not the duties of appellant's position were performed, after his removal, by one Ray, who had been a painter in the repair shop, and whether Ray had performed such duties exclusively after appellant's removal and without performing any other duties whatsoever. The proof tended to show that the salary of appellant, as foreman of the repair shop, was $1,200 per year, and that the salary of Ray, as painter in the repair shop, was $52.50 per month, and that, by the removal of appellant, the city was saved the expense of...