McNeill v. City of Chicago

• Decision Date: 24 October 1904
• Citation: 72 N.E. 450,212 Ill. 481
• Parties: McNEILL v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

212 Ill. 481

72 N.E. 450

McNEILL

v.CITY OF CHICAGO et al.^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Petition for mandamus by George R. McNeill against the city of Chicago and others.A judgment for defendants was affirmed by the Appellate Court(93 Ill. App. 124), and petitioner appeals.Affirmed.W. P. Black and A. B. Chilcoat, for appellant.

John W. Beckwith, Asst. Corp.Counsel(Edgar Bronson Tolman, Corp.Counsel, of counsel), for appellees.

This is a petition for mandamus, filed by George R. McNeill, making the city of Chicago, Carter H. Harrison, as mayor of said city of Chicago, Joseph H. Kipley, as superintendent of police of said city of Chicago, and Robert Lindblom,Edward M. Carroll, and John W. Ludwig, as civil service commissioners of said city, partiesdefendant, whereby the petitioner sought to obtain an order of the court directing that his name, as police patrolman of the city of Chicago, be again placed upon the pay roll of the police department of said city, from which pay roll his name had been improperly and unlawfully stricken.

From the petition as amended it appears, after stating the incorporation of the city, the election of the mayor, the organization of the police department, including the office of superintendent of police, that defendant Kipley was in May, 1897, appointed such superintendent of police, and that said mayor and superintendent of police are still acting as such; that on June 14, 1887, the appellant was duly appointed to the office of police patrolman in Chicago, took the oath of office, entered upon his official duties as such police officer of said city, and served continuously from said date as police patrolman until May 31, 1895, ‘when he was by said superintendent of police assigned to duty as patrol sergeant of police’; that he served as such patrol sergeant until June 19, 1897, when, by order of said superintendent, appellant resumed his duties as such police patrolman of said city, ‘and hath remained such police patrolman from thence hitherto’; that during all his said service ‘he has never been charged with any misconduct or dereliction of duty in his said office, nor has ever been reprimanded for misconduct or neglect of his duties as such officer’; that on December 18, 1897, by direction of said superintendent, appellant took the civil service examination as to his qualifications as policeman of said city, which examination was conducted by the civil service commissioners under the civil service act of Illinois (Acts 1895, p. 85) in force March 20, 1895, and was ‘passed’ upon such examination with a standing of 99 upon a scale of 100, and was No. 11 upon the list of eligibles; that on March 14, 1898, appellant's name was, by and under such direction, dropped from said pay roll, and said superintendent ‘has caused the name of your petitioner to be omitted and excluded from the pay roll of the police department of the city of Chicago, and still so causes the name of your petitioner to be omitted from said pay roll’; that, by reason of said superintendent's aforesaid action, petitioner has not been paid any portion of the salary accruing and due to him as a police officer since March 14, 1898; that he has made demand upon the said city, said mayor, and said superintendent that petitioner's name should be restored to the police pay rolls of said city, to the end that he might draw his salary due him as a police officer, but that said defendants last above mentioned have, respectively, refused to comply with said demand, and still do refuse so to do; that his salary was $83.33 per month, less 1 per cent. thereof deducted by the police pension board of said city.

To this petition defendants filed an answer, in which they admit that said defendant, George R. McNeill, was on the 14th day of June, 1887, duly appointed police patrolman of the city of Chicago, as alleged in said petition, but the defendants say said appointment was made by the mayor, but without the concurrence and consent of the city council of Chicago; that said petitioner served continuously as a police patrolman in said city from the date of his appointment until the 31st of May, 1895, when he was by said superintendent appointed and assigned to duty as a patrol sergeant of police; that thereafter petitioner served continuously as such patrol sergeant of police until June 19, 1897, when, as defendants aver, he was reduced and appointed to the rank of police patrolman by the mayor and superintendent of police of the city of Chicago; that petitioner, on the 14th day of March, 1898, was ‘discharged by said Joseph Kipley, superintendent of police of the city of Chicago, by and with the concurrence and assent of the said Carter H. Harrison, mayor of said city of Chicago, and the civil service commission of said city of Chicago’; that he was discharged for the good of the service, and because, in the judgment of his superior officers, he was an inefficient officer, and because, prior to said last-mentioned date, there were upwards of 100 more police patrolmen upon the pay rolls of the department of police than had been appropriated for by the city council for said year, and on account of such deficiency in appropriation the said petitioner and upwards of 100 more police patrolmen were discharged from the service of said city and from said department ‘in manner above stated’; that the following was the order under which said petitioner was discharged:

‘City of Chicago, Department of Police.

‘Joseph Kipley, Chief of Police.

‘General OrderNo. 10.

March 14, 1898.

‘All patrolmen of the 21st, 22d, 23d, 24th, 25th, 27th, 28th, 29th and 30th precincts of the third division, not certified for appointment by the civil service commission, are hereby discharged from the force, to take effect at 5 P. M. this date.All patrolmen affected by the above order will report at the office of the civil service commission for certification, in the following order: 21st, 22d, 23d, 24th, 25th precincts at 5 P. M.; 27th, 28th, 29th and 30th precincts at 6 P. M.

‘Joseph Kipley, General Superintendent.’

The answer also admits that sections 1481and1482 of the Revised Code of Chicago, passed April 8, 1897, were in force March 14, 1898, and were as follows:

1481.‘The superintendent shall have the management and control of all matters relating to the department, its officers and members.’

1482.‘Said superintendent shall have power to remove from the police force any police patrolman, and with the concurrence of the mayor he may remove or reduce in rank any officer or member of said department.’

The answer also admits that an act of the Legislature, entitled ‘An act to regulate the civil service of cities,’ was adopted by the city of Chicago in the prescribed method, and became in force in said city in August, 1895; that all the police patrolmen of the police department of the said city at the present time are civil service employés, each having been certified and appointed to his position pursuant to civil service examination and in accordance with the civil service law and the rules of the civil service commission of Chicago, and that all positions of the police patrolmen appropriated for by the city council of Chicago are now filled by police patrolmen who have taken a civil service examination and been certified and appointed in pursuance to the civil service rules; that, if petitioner is granted a writ of mandamus restoring him to the position of police patrolman, he will crowd out and displace a civil service employé duly examined, certified, and appointed.

To this answer a replication, such as is usually filed in chancery cases, was filed.A jury was waived, and the cause tried upon the law and the facts before the court.Judgment was for the respondents, and the cause was appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and appellant brings the case here by appeal.

RICKS, C. J.(after stating the facts).

By the affirmance of the judgment of the trial court by the Appellate Court, the questions of fact were settled adversely to appellant.

There is no complaint as to the rulings of the trial court upon any matters arising in the trial, except the refusal of the trial court to hold as the law applicable to the case certain propositions submitted by appellant.These propositions are, in substance, that a police patrolman is an officer; that, under the act for the incorporation of cities and villages, such officer can only be removed by the mayor, and that he must report the same to the council within 10 days, with his reasons, and that if the council, by a two-thirds vote of the yeas and nays, disapprove such removal, the officer shall be restored; that only the mayor can remove, and he only for cause; that the superintendent of police has no power to remove a policeman, and that the ordinance set up in the answer giving him such power is ineffectual; that the order of Superintendent Kipley of March 14, 1898, purporting to remove petitioner, was wholly ineffectual; that by the civil service act, when adopted by the city of Chicago and the offices and places classified, the entire police force came within its provisions and entitled to its benefits; that, when the civil service act was adopted and the...