Murray v. City of Chicago

• Decision Date: 21 December 1960
• Docket Number: Gen. No. 48090
• Citation: 28 Ill.App.2d 395,171 N.E.2d 429
• Parties: Anthony J. MURRAY, Plaintiff-Appellee, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 429

171 N.E.2d 429

28 Ill.App.2d 395

Anthony J. MURRAY, Plaintiff-Appellee, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellant.

Gen. No. 48090.

Appellate Court of Illinois, First District, Third Division.

Dec. 21, 1960.

John C. Melaniphy, Corp. Counsel, Chicago, Sydney R. Drebin, Rita Ivy Epstein, Asst. Corp. Counsel, Chicago, of counsel, for appellant.

Francis J. Kennedy, Chicago, for appellee.

SCHWARTZ, Presiding Justice.

This is an appeal from a judgment for $3,834.78, salary claimed by plaintiff for the period during which he was wrongfully prevented from occupying the position of sergeant of police and receiving the salary appropriated therefor by the City of Chicago. Plaintiff's right to the position was litigated and determined by a judgment entered in a mandamus suit filed by him in 1952 in the Circuit court of Cook County. He was awarded a writ ordering his appointment on July 30, 1952. On December 14, 1956, he filed this suit. The issue is whether plaintiff is entitled to salary from the time he was certified for promotion to sergeant, December 15, 1951, to the date on which he was finally appointed, September 24, 1952, or whether, as the city contends, that at most he is entitled to salary only from the time the mandamus judgment was rendered, July 30, 1952, to the date of his appointment, September 24, 1952.

Plaintiff was a patrolman in the service of the city from July 1, 1929 to November 19, 1949, when he resigned. On December 21, 1949 his resignation was withdrawn and his name restored to the reinstatement list in accordance with the civil service rules relating thereto. On April 12, 1950 he was certified for return to service as a patrolman. He was allowed to waive certification, which appears to be the equivalent of a grant of leave of absence, and remained on waiver until November 27, 1951, when the waiver time expired. Plaintiff is a lawyer and sought to practice law following his resignation from the department. At the same time he desired to maintain his status in the civil service, evidently to determine whether he could provide for himself and family in the practice of law, as always a precarious undertaking. On July 19, 1951 he wrote to the secretary of the Civil Service Commission, saying that according to notice of reinstatement of July 13, 1951, he had five days to report for duty; that he kept posted on police department appointments, with the end in view of having four to six months time to wind up his legal business 'in order to report for active duty to protect my being on the eligible register as I have a wife and four children to support.' On that letter there is a notation evidently put there by the Commission: 'Approved 4 months extension. For Extension of waiver for four months Authority Granted Jul 27, 1951.' On August 7, 1951, the secretary of the commission wrote plaintiff a letter advising him that the commission had granted an extension on July 27, 1951, of four months waiver time for patrolman. It was then stated: 'At the expiration of these four months, your waiver will be withdrawn and your name restored to the reinstatement list.' During all this period plaintiff, who had passed a sergeant's examination in 1938, was number 96 on that list for promotion. On December 15, 1951, 100 men were appointed by the Commissioner of Police, but plaintiff was not among them.

According to plaintiff's uncontroverted testiony, he had ceased to practice law by December 15, 1951, having wound up his law business, and was ready to go back to work as a patrolman if not a sergeant. He went to the office of the Commissioner of Police and was told that he was a sergeant and should go down to the Civil Service Commission and talk to them. He related the facts to the president and secretary of the Commission. On February 25, 1952, 400 men were certified from the patrolman's list, and plaintiff's name was among them. Seeking reinstatement as a patrolman if he could not get an appointment as sergeant, plaintiff was advised that there would be no action in his case until an opinion was rendered by the Corporation Counsel's office, there being a question as to whether he was eligible for promotion to sergeant in view of the fact that he was not on the active list at the time of his certification. Finally plaintiff made a formal demand and instituted the mandamus suit which culminated in his being awarded the writ and his appointment on September 24, 1952.

It is the contention of the city that there can be no recovery for salary for a period during which no services were performed, and that this case is distinguishable from precedents in that plaintiff was not ousted from a position, but sought appointment to a new one. This is not the law in Illinois. In Corbett v. City of Chicago, 391 Ill. 96, 62 N.E.2d 693, plaintiffs, telephone operators in the police department, were awarded their salaries from the time of the judgment in a mandamus suit, holding that they were wrongfully denied certification, to the date of their appointment. The issue before the Supreme Court in that case was whether payment by the city of salaries to de facto employees constituted a complete defense to the plaintiffs' claim. The court affirmed the trial court, holding that payment to de facto employees was not a defense to a claim for salary made after a judicial order sustaining the plaintiffs' right to their...