Hittell v. City of Chicago

Citation158 N.E. 683,327 Ill. 443
Decision Date09 December 1927
Docket NumberNo. 18210.,18210.
PartiesHITTELL v. CITY OF CHICAGO.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Error to Third Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Action by John B. Hittell against the City of Chicago. A judgment for plaintiff was affirmed by the Appellate Court (243 Ill. App. 14), and defendant brings certiorari.

Judgments reversed.

Samuel A. Ettelson, Corp. Counsel, and Frances J. Vurpillat, both of Chicago (Roy S. Gaskill and W. Arnold Amberg, both of Chicago, of counsel), for plaintiff in error.

Perlman, Goodman & Scolnik, of Chicago (Avern B. Scolnik, of Chicago, of counsel), for defendant in error.

HEARD, C. J.

Defendant in error (hereinafter called plaintiff) brought suit in assumpsit in the circuit court of Cook county against plaintiff in error (hereinafter called defendant) to recover salary claimed to be due him as chief street engineer for defendant from September 19, 1916, to March 2, 1923, and filed with his declaration an affidavit of claim. Defendant filed a plea of the general issue, supported by an affidavit of merits ‘that for and during the entire period from September[327 Ill. 444]19, 1916, to March 2, 1923, the duties of the said position of chief street engineer, also known as chief engineer of streets, were performed by an incumbent de facto of said position, and that all moneys appropriated or provided by the city council as salarly for the position of chief street engineer, or chief engineer of streets, for the period of time in question has been paid by the city in good faith to the incumbent de facto.’ A general demurrer filed by the plaintiff to the plea of the defendant was overruled. The cause was tried before the court without a jury, and judgment rendered for plaintiff in the sum of $25,500, from which judgment an appeal was taken to the Appellate Court for the First district, which court affirmed the judgment, and the record is now before this court on certiorari.

There is no controversy as to the evidentiary facts. Plaintiff since 1889 has been a civil service employee of the board of local improvements of the city of Chicago. He held different positions up to 1913, at which time he was promoted by the civil service commission to the position of chief engineer of the board of local improvements. That position he held continuously until January 19, 1916, at which time he was granted leave of absence for one year. On September 19, 1916, he returned from his leave of absence and reported for duty to the board of local improvements, to its president and to the civil service commission, and demanded on each occasion, in writing, that he should be reinstated in his position and assigned to duty. He was not reinstated and assigned to duty. On March 13, 1920, he brought suit in mandamus, as set forth in his declaration, and as a result, on March 2, 1923, he was restored and reinstated and has since occupied the position of chief street engineer and received the salary belonging thereto. Meanwhile, between May 22, 1916, and April 9, 1917, the position was occupied by Julius Gabelman by reason of temporary appointment, and between April 9, 1917, and March 2, 1923, as a regularly certified appointee, and as the result of a promotional examination held by the commission, and during all the time between May 22, 1916, and March 2, 1923, all of the money appropriated by the city council for salary for the position of chief street engineer, amounting to a total of $25,096.82, was paid to Gabelman.

It is the contention of plaintiff that the payment of salary to the de facto employee, in order that it shall constitute a defense against a suit brought by the de jure employee, must be shown to have been made in good faith, and that the payment by the defendant of the salary appropriated for chief street engineer of the board of local improvements during the period in question was not made by the defendant in good faith. Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614;People v. Bradford, 267 Ill. 486, 108 N. E. 732;People v. Coffin, 279 Ill. 401, 117 N. E. 85;People v. Schmidt, 281 Ill. 211, 117 N. E. 1037, L. R. A. 1918C, 370; and People v. Thompson, 316 Ill. 11, 146 N. E. 473, are cited in support of such contention. We have carefully examined each of these cases and many others, and while in some cases we find a statement to the effect that if the salary or compensation has been paid in good faith to a de facto employee during the time the position was in his possession such payment is a good defense on behalf of the municipality to a suit brought by the de jure employee to recover the same, in no case where the question was involved do we find that it has been held by this court that proof of the good faith of the payment to the de facto employee was a requisite element of such defense prior to a judicial determination as to which was the de jure employee. In Bullis v. City of Chicago, supra, it was said:

‘If appellee was wrongfully prevented from performing the duties of his office he may recover his salary for the time during which he was so prevented, where it has not been paid to any one performing the duties of the office.’

People v. Schmidt, supra, was a suit in mandamus where the plaintiff alleged in his petition that he had been illegally removed from the position of grain helper in the East St. Louis grain inspection office of the state-a civil service position-and...

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  • State ex rel. Gallagher v. Kansas City
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    • April 4, 1928
    ......663; Gorman v. Commissioners, 1 Idaho, 655; People ex rel. v. Schmidt, 281 Ill. 211; People ex rel. v.v. Burdett, 283 Ill. 124; Hittell v. City, 158 N.E. 683; City v. Burns, 116 N.E. 604; Leonard v. City, 93 N.E. 872; Brown v. County, 98 N.W. 562; Commissioners v. Anderson, 20 Kan. ......
  • State ex rel. Gallagher v. Kansas City
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