Kenneally v. City of Chicago

• Decision Date: 11 April 1906
• Citation: 77 N.E. 155,220 Ill. 485
• Parties: KENNEALLY v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

220 Ill. 485

77 N.E. 155

KENNEALLY

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Feb. 21, 1906.

Rehearing Denied April 11, 1906.

Appeal from Appellate Court, First District.

Petition for mandamus by James Kenneally against the city of Chicago and others.From a judgment of the Appellate Court, affirming a judgment denying the writ, petitioner appeals.Affirmed.

W. P. Black and A. B. Chilcoat(C. D. F. Smith, of counsel), for appellant.

John W. Beckwith(James H. Lewis, Corp.Counsel, of counsel), for appellees.

This is a petition for mandamus, filed in the circuit court of Cook county by James Kenneally, the appellant, who claims to have been wrongfully omitted and excluded as a policeman from the pay roll of the police department of the city of Chicago since March 14, 1898, against the appellees, the city of Chicago, the mayor of said city, the superintendent of police, and the civil service commissioners of said city, commanding the city of Chicago, the mayor, and the superintendent of police to forthwith place the name of appellant, the petitioner, upon the roster of police patrolmen, and upon the pay roll of police patrolmen of said city, to the end that the petitioner may thereafter perform without hindrance the functions of the office of, and draw the pay due him as, a police patrolman of said city from time to time, as other police patrolmen are paid; and also commanding said civil service commissioners of the city to certify the name of petitioner as a person entitled to pay as a police patrolman of said city, whenever his name shall hereafter appear as such police patrolman upon any pay roll of police patrolmen, presented to said commissioners for their certification, to the end that he may thereafter draw the salary due him as a police patrolman of said city, as other police patrolmen are paid.A special demurrer was filed to the amended petition.This demurrer was sustained, and the petition dismissed at the petitioner's costs, to which ruling of the courtpetitioner entered his exceptions.An appeal was taken to the Appellate Court, which has affirmed the judgment of the circuit court, sustaining the demurrer to the petition and dismissing the same.The present appeal is prosecuted from such judgment of affirmance entered by the Appellate Court.

The original petition was filed on January 24, 1900, and the amended petition, to which the demurrer was sustained, and which was dismissed, was filed on December 19, 1904.The amended petition alleges: That on April 23, 1875, Chicago adopted the city and village act of 1872, and is still organized under said act with the powers provided thereby, and by the amendments thereto.That, by section 1 of article 5 of said act (Starr &C. Ann. St. 1896, c. 24, par. 63) it was provided that: ‘The city council in cities, and the president and board of trustees in villages, shall have the following powers: * * * Sixty-sixth.To regulate the police of the city or village, and pass and enforce all necessary police ordinances.* * * Sixty-eighth.To prescribe the duties and powers of a superintendent of police, policemen and watchmen.’That, on April 18, 1881, the city council passed an ordinance, wherein, in article 1 of chapter 8 thereof, it was provided that a department, known as the department of police, be established, embracing the superintendent of police, a secretary to him, a captain of police for each police district, and such number of lieutenants, detectives, sergeants, and police patrolmen, as has been or may be prescribed by ordinance, and whereby there was created the office of superintendent of police, who should be the head of said department, to hold his office for two years, and until his successor should be appointed and qualified; and wherein it was provided that the superintendent of police should be appointed on the first Monday in May, 1881, or as soon thereafter as might be, and biennially thereafter; and wherein it was also provided that the superintendentshould have the management and control of all matters relating to the department, the officers, and members, and, with the consent of the mayor, should appoint all officers and members of said department, provided, etc.That the provisions of said ordinance continued in force until the adoption on July 1, 1895, of the act to regulate the civil service of cities, which act was declared by proclamation of the mayor to be thereafter in full force and effect in Chicago.That John A. Roach was elected mayor in April, 1887, and acted as such for two years thereafter.That on March 19, 1888, one George Hubbard was appointed by the mayor, by and with the advice and consent of the council, superintendent of police and was performing the duties of that office on March 19, 1888.That on March 19, 1888, the city council, by ordinance theretofore duly passed and then in force, authorized the appointment of a large number of police patrolmen, to wit, 2,500 for service on the police force.That on March 19, 1888, the petitioner, appellant herein, was a citizen of the United States and qualified elector of said city, etc.That on March 19, 1888, appellant was duly appointed by the then superintendent of police, with the consent of the mayor, to the office of police patrolman in said department of police, as one of the number of police patrolmen authorized to be appointed under said ordinance, and thereupon took the oath of office, filed his bond, and became a police patrolman of said city, and served continuously as such from March 19, 1888, until March 14, 1898, ‘and hath remained such police patrolman of the said city of Chicago, from thence hitherto.’That between March 19, 1888, and March 14, 1898, appellant was recognized as a police patrolman by the respective mayors and superintendents of police of the city, and by the city council.That no successor to him as such police patrolman was at any time during said period appointed.That the city council during said time duly appropriated money to pay the salary accruing to appellant as such police patrolman, which salary was paid to him from time to time by the proper officers of the city.That, upon the adoption by the city of the civil service act dated July 1, 1895(Starr &C. Ann. St. 1896, c. 24), all laws or parts of laws, and all ordinances and regulations of the city inconsistent therewith were repealed by virtue of section 37 of the act(paragraph 355).That, by section 3 of the civil service act (paragraph 321) it was provided that: ‘Said commissioners shall classify all the offices and places of employment in such city with reference to the examinations hereinafter provided for, except those offices and places mentioned in section 11 of this act(paragraph 329).The offices and places so classified by the commission shall constitute the classified civil service of such city; and no appointments to any of such offices or places shall be made except under and according to the rules hereinafter mentioned.’That, by section 4(paragraph 322) of said act, it was provided as follows: ‘Said commission shall make rules to carry out the purposes of this act, and for examinations, appointments and removals in accordance with its provisions, and the commission may, from time to time, make changes in the original rules.’1 Starr &C. Ann. St. 1896 (2d Ed.) p. 827, c. 24.That by rule 1 of the rules adopted by the civil service commission it was provided that the offices and places named in section 11 of the act should constitute the unclassified service, which section 11 is as follows: ‘Officers, who are elected by the people, or who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, members of any board of education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, and one private secretary of the mayor, shall not be included in such classified service.’Id. p. 829.That, by the terms of rule 2: ‘All other offices and places of employment in said city, under the provision of said act, whether permanent, temporary or substitute, shall constitute the classified service.* * * For convenience in designation, in carrying on examinations, certifying for appointments and promotions, and in making removals, the official service shall be divided into divisions, based upon the character of the service to be performed, and each division shall be divided into grades, based upon the amount of compensation.The several divisions of the official service shall be as follows: * * * Division D.-Police Service.-All positions in the uniformed police force.’That the civil service commissioners proceeded to classify the various offices and places of employment of the city, and that such classification was made under and by virtue of said act, and the rules so adopted.That all police patrolmen in the city, including appellant, were, at the time of the adoption of said rule 1 and at the time of said classification, in the uniformed police force of said city, and, by virtue of said act and rule and classification, became and were classified in division D of the official service under said civil service act, and thereupon the offices and places of employment, so classified by said commission, did ‘constitute the classified civil service of said city of Chicago.’That, by virtue of the classification of the office of said police patrolmen of said city, then and there held by them, the then incumbents of said office, including petitioner, then and there became police patrolmen de jure in the classified civil service of said city, and petitioner so continued from thence hitherto.

The petition then sets forth sections 31and32 of the civil service act in (paragraphs 349, 350) in relation to the payment of salaries by the comptroller and paymaster, etc., after...