Henryson v. City of Elgin

• Decision Date: 18 January 1937
• Docket Number: Gen. No. 9149.
• Citation: 5 N.E.2d 856,288 Ill.App. 215
• Parties: PEOPLE EX REL. HENRYSON ET AL. v. CITY OF ELGIN ET AL.
• Court: United States Appellate Court of Illinois

288 Ill.App. 215

5 N.E.2d 856

PEOPLE EX REL. HENRYSON ET AL.

v.CITY OF ELGIN ET AL.

Gen. No. 9149.

Appellate Court of Illinois, Second District.

Jan. 18, 1937.

Appeal from Circuit Court, Kane County; Wm. J. Fulton, Judge.

Mandamus action by the People of the State of Illinois, on the relation of Elmer Henryson and others, against the City of Elgin and others. From a final judgment, defendants appeal and plaintiffs cross-appeal.

Judgment reversed.Healy & Beverly and Perry D. Wells, all of Elgin, for appellants.

Theodore N. Schnell, of Elgin, and James H. Scott, of Geneva, for appellees.

WOLFE, Justice.

On February 19, 1935, the plaintiffs, sixty-four in number, filed in the circuit court of Kane county their petition for a writ of mandamus to compel the defendants, the City of Elgin, and Myron M. Lehman and Morgan M. Brightman, the Mayor and the City Clerk of Elgin, to draw, issue, and sign city warrants in favor of the plaintiffs for the alleged unpaid balances of their respective monthly salaries, as policemen and firemen of the city. They claim pay for ten months of the year 1932, all of 1934, and January, 1935. During the time, some of the plaintiffs were policemen and the others firemen of the City of Elgin.

There is a stipulation in the record which, in part, is substantially as follows: “That all plaintiffs were duly appointed by the board of fire and police commissioners of the City of Elgin, and that they were members and officers of the police and fire departments for many years prior, to and during 1932, 1934 and January 1935, and performed their duties as such policemen and firemen, as required by law. The stipulation also states that, out of the salaries actually paid to the plaintiffs, during the time in question, the city deducted the legal amounts to be paid to the police and firemen's pension funds.” It is not disputed that the petition correctly sets forth the positions held by the plaintiffs as officersand members of the police and fire departments of the city, during the time in question; or that some of the plaintiffs retired from the departments on pension before January, 1935, and that some of them were appointed to their said positions after 1932. No claim is made by the plaintiffs for any unpaid salaries for the months of January and February, 1932, for reasons which hereafter appear.

The petition is drawn on the theory that the appropriation ordinances of the City of Elgin adopted at the beginning of the years 1932, 1934, and 1935, fixed and determined the salaries of the plaintiffs as policemen and firemen; that the city has paid to the petitioners less than the amounts provided for in the appropriation ordinances; and that the writ of mandamus should issue to compel the payment of the balance due each plaintiff. The petition alleges that the plaintiffs were paid their salaries during January and February of 1932, according to the salaries provided by the appropriation ordinance for that year. No claim is made for unpaid salaries for those two months. The plaintiffs make no claim for unpaid salaries in 1935, other than for the month of January. Demand for unpaid balances of salaries were made on the city by the petitioners on February 8, 1935. The amounts claimed by the plaintiffs vary, and total $20,013.51. The City of Elgin operates under the commission form of government and has so operated continuously since January 21, 1911.

Paraphrasing several paragraphs of the petition, it charges that on January 4, 1932, on January 12, 1934, and on January 9, 1935, the city passed an ordinance termed, “Appropriation Ordinance for the year, 1932, 1934, and 1935,” of the City of Elgin. That those ordinances made provisions in respect to salaries of police and fire departments of the city. These provisions, for each year, are set out in the petition. Thus, for the year 1932:

“Police Division.

“(a) Salary of City Marshal, $2,400.00.

“(b) Salary of Lieutenants, $4,200.00.

“(c) Salary of Sergeants, $9,390.00.

“(d) Salary of Patrolmen, $39,600.00.

“(e) Salary of Merchant Police, $2,796.00.

“(f) Salary of Special Police, $250.00.

“(g) Salary of Police Matron, $62.50.

“(h) Secret Service, $400.00.

“(i) Salary of Detective, $2,100.00.”

“Fire Division.

“(a) Salary of Fire Marshal, $2,400.00.

“(b) Salary of Captain No. 1 Station, $2,100.00.

“(b) Salary of Captains (5), $9,450.00.

“(b) Salary of Lieutenants (4), $7,440.00.

“(c) Salary of 25 Firemen, $45,000.00.

“(d) Salary of Repair Mechanic, $1,860.00.”

The provisions in the Appropriation Ordinance for 1934 and 1935, are in material respects the same, excepting as to the amounts appropriated.

The petition further alleges that by ordinances passed April 23, 1907, for the police department, and on April 3, 1907, for the fire department, and subsequently amended, said city made provisions for and created the offices of captain of the fire department, first deputy marshal, second deputy marshal, lieutenant, firemen, mechanic, lieutenant of police, sergeant of police, patrolman, and merchant police.

Material allegations of the petition are substantially as follows: “That said appropriation ordinances became and continued in full force and effect throughout 1932, 1934 and January 1935; that in the performance of their duties as members of said departments petitioners became and were entitled to receive their said salaries to the full amount thereof for 1932, 1934 and January 1935; that said city in fixing said salaries and in adopting said appropriation ordinances appropriating funds for the payment of said salaries and passing a tax levy ordinance in accordance therewith and based thereon, determined the amounts thereof to be received by petitioners for 1932, 1934 and January 1935; that said sums so fixed as their salaries having been thus fixed and a fund for the payment thereof having thus been appropriated in accordance with the Statute, said amounts were not subject to change or alteration by said city or any of its officers during said years; that petitioners have at no time agreed or consented to a change or a reduction in their salaries as thus appropriated.”

Further, “That during January and February 1932, petitioners received the full proportionate amount of their said annual salaries legally provided for by said appropriation ordinance less a reduction of 1 per cent for police and firemen's pension fund; that thereafter about March 1, 1932, an executive order was issued, which petitionersare informed and believe came from the office of the mayor of said city, and it was ordered that each of said petitioners herein shown to have been members of the police and fire departments during 1932 be compelled to take a 10 per cent reduction in their salaries beginning with March 1932; that said reduction was made during the months of March to October 15, 1932, inclusive; that thereafter on said date an executive order was issued, which petitioners are informed and believe came from the office of the mayor of said city, that each petitioner be compelled to take a further reduction in the sum of 15 per cent in their monthly salaries for the year 1932; that said 15 per cent reduction continued for the balance of 1932.”

Also, “That petitioners during 1934 were compelled by executive order issued, which petitioners are informed and believe came from the mayor's office, during the month of January 1934, to take a 10 per cent reduction in their salaries; that during January 1935, petitioners were compelled, by executive order as aforesaid, to take a 10 per cent reduction in their salaries. That petitioners objected and protested against the enforcement of all said orders, but were compelled to abide by the same by coercive threats of further reduction.”

These allegations of the petition are denied by the answer of the defendants. The answer alleges that the fire department is an executive department of said city composed of officers and employees as provided by ordinance of April 3, 1907, as amended; that the police department is an executive department of said city composed of officers and members as provided by ordinance of April 23, 1907; that the salaries of said officers and employees are fixed and determined by the council of said city as an administrative or executive function.

The answer further alleges that the several appropriation ordinances were passed and adopted thereby fixing the maximum amounts to be expended by the city in the period covered by said ordinances.

The answer further alleges that on February 15, 1932, the city council by executive and administrative act changed the amount of compensation to be paid to each employee and officer by deducting from the annual pay roll a sum equal to one month's pay for each member of said departments based upon the then prevailing rates of pay; that said action was taken in said manner for the purpose of retaining basic rates in order that members of such departments then eligible or to become eligible for pension might retire on the most favorable pension pay basis. That subsequent thereto and during periods mentioned in the petition, and in 1932, 1934, and January, 1935, said city council caused further changes in compensation, causing a total deduction of approximately 25 per cent. from the basic rate of pay as fixed prior to March 1, 1932.

The plaintiffs introduced in evidence an ordinance of the City of Elgin, passed April 2, 1907, which established the fire department of the city, provided for its organization, membership, and officers. Section 4 of the ordinance provides: “Each fireman and employee shall receive such salary and compensation as shall be fixed either annually in the Appropriation Ordinance, or from time to time lawfully by the City Council.” Plaintiffs also introduced in evidence an ordinance of the city, passed April 23, 1907, which established the police department of the city, provided for its organization, membership, and officers. Section 2 of the ordinance...