People ex rel. Blachly v. Coffin

• Decision Date: 03 October 1917
• Docket Number: No. 11265.,11265.
• Citation: 279 Ill. 401,117 N.E. 85
• Parties: PEOPLE ex rel. BLACHLY v. COFFIN et al.
• Court: Illinois Supreme Court

279 Ill. 401

117 N.E. 85

PEOPLE ex rel. BLACHLY

v.COFFIN et al.

No. 11265.

Supreme Court of Illinois.

June 21, 1917.

Rehearing Denied Oct. 3, 1917.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Mandamus proceedings by the People, on the relation of Clarence D. Blachly, against Percival B. Coffin and others. From a judgment of the Appellate Court (202 Ill. App. 100), affirming a Circuit Court judgment issuing the writ, defendants bring certiorari. Affirmed.Samuel A. Ettelson, Corp. Counsel, of Chicago (Roy S. Gaskill, of Chicago, of counsel), for plaintiff in error.

Francis X. Busch, of Chicago, for defendant in error.

DUNN, J.

Clarence D. Blachly filed a petition in the circuit court of Cook county against the civil service commissioners, the commissioner of public welfare of the city of Chicago, the city treasurer and the city comptroller, to compel the reinstatement of the petitioner in the office of superintendent of the bureau of social surveys in the department of public welfare and the payment of his salary from the date of his removal from office to the time of his reinstatement. A general demurrer to the petition was overruled, and the respondents electing to stand by their demurrer, a judgment was rendered awarding the writ of mandamus in accordance with the prayer of the petition. The Appellate Court having affirmed the judgment, a writ of certiorari was awarded to bring the record here for review.

The petition, after alleging the adoption of the Civil Service Act (Hurd's Rev. St. 1915-16, c. 24a) by the city of Chicago and the appointment of the commissioners, avers that on March 23, 1914, the city council passed a certain ordinance establishing a department of the city government to be known as the department of public welfare, in the following words:

‘Be it ordained by the city council of the city of Chicago:

‘Section 1. There is hereby established an executive department of the city of Chicago which shall be known as the department of public welfare, and which shall include a commissioner of public welfare and such assistants and employés as the city council, from time to time, may by ordinance provide.

‘Sec. 2. There is hereby created the office of commissioner of public welfare. The commissioner of public welfare shall be appointed by the mayor, by and with the advice and consent of the city council. He shall have charge of the general management and control of all matters and activities pertaining to said department, and shall appoint, according to law, all subordinate officers, assistants and other employés. The salary of said commissioner of public welfare is hereby fixed at _____ per annum.

‘Sec. 3. There is hereby created a bureau of the department of public welfare which shall be known as the bureau of employment, and which shall operate the municipal lodging house for men and the municipal lodging house for women, and which shall perform such duties in the collection of information relative to working conditions, wages, hours of labor and unemployment in the city of Chicago, and in the practical relief of unemployment, as may be required by the said commissioner of public welfare. The chief officer of said bureau of employment shall be known as the superintendent of the bureau of employment.

‘Sec. 4. There is hereby created a bureau of the department of public welfare which shall be known as the bureau of social surveys, and which shall collect information and data relating to the actual living conditions in Chicago, facilities for recreation, the causes of vagrancy, crime and poverty, and shall recommend to the city council appropriate ordinances or statutes for the practical betterment of such conditions. The chief officer of said bureau shall be known as the superintendent of the bureau of social surveys.

‘Sec. 5. This ordinance shall take effect and be in force from and after its passage, approval and publication.’

On April 23d following, the civil service commission classified all the offices and places of employment in the departmentof public welfare, and afterward an examination was held for the office of superintendent of the bureau of social surveys, as a result of which the petitioner was on November 13, 1914, appointed by the head of the department of public welfare to the position of superintendent of the bureau of social surveys and entered upon the performance of the duties of the office on that day, and was paid at the rate of $3,000 per annum for that portion of the month of November during which he worked, and for December, 1914. On January 18, 1915, the city council passed an ordinance appropriating the sum of $3,000 for the office of superintendent of the bureau of social surveys. Prior to September 24, 1913, the civil service commission had passed a certain rule which has ever since remained in force, as follows:

‘ Probation.-Original appointment shall be on probation for a period of six months, but there shall be no probation period in the case of appointments from promotion lists. If any probationer, upon a fair test, shall be found incompetent or unqualified to perform the duties of the position to which he has been certified, the appointing officer shall certify the same to the commission in writing, specifying his reasons, and request the separation of such probationer. Upon approval by the commission such probationer shall be discharged. Time served on probation, whether continuous or not, shall be credited upon the period of probation.’

The petitioner performed the duties of his office for the period of six months beginning November 13, 1914, up to and including May 12, 1915, but on May 13, 1915, the mayor, desiring to supplant petitioner with some other person of his own choice, directed the head of the department of public welfare to dismiss the petitioner, and at 5 o'clock in the afternoon of that day the head of the department of public welfare caused the petitioner to be notified that she had received instructions to dismiss the petitioner from the office of superintendent of the bureau of social surveys. Afterward the commissioner of public welfare sent a written report concerning the petitioner's separation to the civil service commission, which approved her report. On May 19, 1915, another person was unlawfully appointed superintendent of the bureau of social surveys, and has since been illegally receiving compensation for such employment from the city. The civil service commission and the commissioner of public welfare refused to permit the petitioner to perform the duties of the office of superintendent of the bureau of social surveys, and they and the city treasurer and city comptroller refused to pay the petitioner his salary as the rightful and lawful incumbent of the office, though the petitioner has at all times been ready, willing, anxious, and able to perform all duties required of him in the office.

The objections of the plaintiffs in error to the sufficiency of the petition are, that it does not state facts showing the legal existence of the office of superintendent of the bureau of social surveys; that it does not show that the ordinance set forth in the petition was passed by a two-thirds vote of all the aldermen; that it does not show that the petitioner's removal was in violation of the provisions of the Civil Service Act and the rules of the civil service commission; and that it improperly joins a prayer for reinstatement of the petitioner in office with a prayer for the payment of his salary.

Courts do not take judicial notice of municipal ordinances. Such ordinances must be specially pleaded. It is essential to the sufficiency of the petition that it should show the existence of the office in which the plaintiff seeks reinstatement. The office, not being of statutory or common-law origin, could be created only by an ordinance of the city, and the petition purports to set forth such an ordinance. The plaintiffs in error contend that the existence of the ordinance is not shown, because by section 2 of article 6 of the Cities and Villages Act (Hurd's Rev. St. 1915-16, c. 24) an ordinance creating an office requires a two-thirds vote of all the aldermen elected, and the petition does not allege that the ordinance in question was passed by such a vote. The allegation in the petition is that the ordinance was legally and lawfully passed. The adverbs ‘legally’ and ‘lawfully,’ of...