Kelly v. Chicago Park Dist.

• Decision Date: 24 May 1950
• Docket Number: Gen. No. 44759
• Citation: 92 N.E.2d 782,341 Ill.App. 37
• Parties: KELLY et al. v. CHICAGO PARK DISTRICT.
• Court: United States Appellate Court of Illinois

Page 782

92 N.E.2d 782

341 Ill.App. 37

KELLY et al. v. CHICAGO PARK DISTRICT.

Gen. No. 44759.

Appellate Court of Illinois, First District, Third Division.

May 24, 1950.

Michael F. Ryan, Chicago, Richard F. McPartlin, Jr., Chicago (Martin J. McNally, Chicago, of counsel), for appellants.

Philip A. Lozowick, General Attorney, Chicago Park District, Chicago (Martin G. Loeff, Assistant General Attorney, Chicago Park District, Chicago, of counsel), for appellee.

LEWE, Presiding Justice.

This suit is a sequel to People ex rel. Kelly v. Dunham, 313 Ill.App. 18, 38 N.E.2d 983, a mandamus proceeding in which this court held that plaintiffs, former policemen and employees of various park districts in the City of Chicago, became members of the classified civil service of the Chicago Park District by virtue of the provisions of chapter 105, paragraph 333.14, Illinois Revised Statutes 1941.

The present action is brought by seventeen plaintiffs to recover salaries aggregating approximately $279,000 for the varying periods of their wrongful exclusion from their respective positions as Civil Service employees of defendant the Chicago Park District. Plaintiffs were dismissed by defendant on various dates in 1934, 1935 and 1936. July 16, 1942, all of the plaintiffs were reinstated pursuant to the mandate of this court in People ex rel. Kelly v. Dunham, 313 Ill.App. 18, 38 N.E.2d 983, except Thomas J. Kelly who was retired on January 1, 1940 by virtue of an amendment to the Civil Service Act providing for compulsory retirement at the age of sixty-five. During the period of their illegal removal certain plaintiffs earned wages in another employment and others continued to work for defendant at reduced salaries. Trial by the court without a jury resulted in judgment in favor of the plaintiffs, except Thomas J. Kelly, for sums lesser in amount than claimed by each plaintiff. The trial court held that defendant was justified in its refusal to pay plaintiffs any salaries until January 19, 1942 when the judgment of the lower court in the former mandamus proceeding was reversed in this court, and that the wages earned by certain plaintiffs in another employment during the period they were prevented from performing their duties could be deducted from their salary claims. Plaintiffs appeal and defendant has filed a cross appeal. Those plaintiffs who remained in the employ of defendant during the period of their illegal removal from their classified Civil Service positions do not complain of their salary claims being reduced by crediting the amount they received from defendant during such period.

The basic question presented is whether plaintiffs after reinstatement by mandamus proceedings are entitled to their full salaries during the period of their wrongful exclusion. In the early case of City of Chicago v. Luthardt, 191 Ill. 516, 61 N.E. 410, appellee, Chief Clerk of the Detective Bureau of the Department of Police, after reinstatement by mandamus brought an action in assumpsit to recover his salary during the period of his illegal ouster. The court held that the legal right to the office carried with it a right to the salary and emoluments thereof. In Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614, the City asked the court to hold as the law propositions to the effect that the City was entitled to show in reduction of damages the amount of money earned and received or that might with reasonable diligence have been earned and received by the appellee, a police patrolman, during the period covered by his suit. The court stated at page 480 of 235 Ill., at page 617 of 85 N.E. that '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 anyone performing the duties of the office. His earnings or opportunities to earn during that time were immaterial.' Citing City of Chicago v. Luthardt, 191 Ill. 516, 61 N.E. 410; Andrews v. Portland, 79 Me. 484, 10 A. 458, 10 Am.St.Rep. 280; State ex rel. Worrell v. Carr, 129 Ind. 44, 28 N.E. 88, 13 L.R.A. 177, 28 Am.St.Rep. 163; Rasmussen v. Board of Com'rs of Carbon County, 8 Wyo. 277, 56 P. 1098, 45 L.R.A. 295. To the same effect are People ex rel. v. Thompson, 316 Ill. 11, 146 N.E. 473; People ex rel. v. Coffin, 282 Ill. 599, 119 N.E. 54; People ex rel. Verdung v. Dunham, 294 Ill.App. 613, 13 N.E.2d 1009; and People ex rel. Campbell v. Kapp, 295 Ill.App. 92, 14 N.E.2d 678. The doctrine announced in the Luthardt case is sustained by the great weight of authority and has been adhered to by our courts. The compensation belongs to the officer as an incident of his office and he is entitled to it not by force of any contract but because the law attaches it to the office and although during the time for which he claims it he has earned money in other employment. 150 A.L.R. 103.

Plaintiffs are suing to recover salary for vaious periods extending from November 1, 1934 to July 16, 1942. Defendant insists that plaintiffs could have joined their claims for salaries in their petition for mandamus and therefore all the claims are barred by the statute of limitations. In support of its position defendant cites People ex rel. v. Thompson, 316 Ill. 11, 146 N.E. 473; People ex rel. v. Coffin, 282 Ill. 599, 119 N.E. 54; People ex rel. Blachly v. Coffin, 279 Ill. 401, 117 N.E. 85, and other cases, where the court held that a judgment awarding the writ of mandamus to compel reinstatement in office may include a command to pay salary. No case has been called to our attention requiring plaintiffs to join their claims for back salaries in a mandamus proceeding. Defendant seeks to invoke the rule that where there are two different types of remedies the cause of action begins to accrue when the plaintiff may institute either one of two remedies. In our view that rule is not applicable to the present case for the reason that no action could be maintained by plaintiffs for salaries until their rights to their respective positions were first determined. See Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N.E. 984, 24 L.R.A. 59, and Bengson v. City of Kewanee, 380 Ill. 244, 43 N.E.2d 951.

Defendant maintains that plaintiffs' claims are barred because other persons were employed in the positions here in controversy and were compensated therefor. Defendant relies on Corbett v. City of Chicago, 391 Ill. 96, 62 N.E.2d 693, where the court held that payment of salary to a de facto employee made in good faith by a municipality is a good defendant against a claim made for the same services by a de jure employee. Defense of payment to a de facto employee is an affirmative defense which must be alleged and proved. People ex rel. Verdung v. Dunham, 294 Ill.App. 613, 13 N.E.2d 1009. In the instant case there is no proof nor did the trial court find that de facto employees had occupied plaintiffs' positions and had received the salaries attached thereto during the period of plaintiffs' wrongful exclusion. Manifestly, if other persons had worked in plaintiffs' positions during their absence, those persons would have been dismissed when plaintiffs were restored to duty. So far as the record shows no persons were discharged when plaintiffs were reinstated by the mandate of this court. We think the Corbett case is not determinative of this case because of the absence in the case at bar of any evidence tending to show who the persons were, if any, that occupied plaintiffs' positions during the period of their illegal removal and the payment of salaries in good faith to such de facto employees.

Next defendant contends that plaintiffs have not alleged nor proved the existence of the positions claimed by them and that the appropriation ordinances do not establish the existence of the positions so claimed. The record shows that the pleadings in the former mandamus proceeding raised these precise issues by defendant's motion to strike and their answer and that these issues were...