People ex rel. Bourne v. Johnson

• Decision Date: 18 March 1965
• Docket Number: No. 38639,38639
• Citation: 205 N.E.2d 470,32 Ill.2d 324
• Parties: The PEOPLE ex rel. Jack F. BOURNE, Appellee, v. Lloyd M. JOHNSON, Commissioner, Department of Streets and Sanitation, City of Chicago, et al., Appellants.
• Court: Illinois Supreme Court

Page 470

205 N.E.2d 470

32 Ill.2d 324

The PEOPLE ex rel. Jack F. BOURNE, Appellee, v. Lloyd M. JOHNSON, Commissioner, Department of Streets and Sanitation, City of Chicago, et al., Appellants.

No. 38639.

Supreme Court of Illinois.

March 18, 1965.

John C. Melaniphy, Corp. Counsel, Chicago (Sydney R. Drebin and Robert J. Collins, Asst. Corp. Counsel, of counsel), for appellants.

Michael F. Ryan and Richard F. McPartlin, Chicago, for appellee.

UNDERWOOD, Justice.

This cause reaches us as an allowed petition for leave to appeal from a judgment of the First District Appellate Court (48 Ill.App.2d 307, 199 N.E.2d 68) affirming the action of the Cook County circuit court awarding a writ of mandamus to compel Chicago city officials to pay relator's back salary accured during a period subsequent to his wrongful discharge.

Relator was a civil service employee of the city of Chicago for about ten years, during which he incurred heavy indebtedness, apparently largely due to the serious illness and subsequent death of his wife. As a result of his failure to pay his debts he was suspended from his employment for five days on March 5, 1962, but was not returned to duty until April 10, 1962. On May 22, 1962, he was again suspended for the same reason and subsequently discharged from his city employment. In a separate proceeding under the Administrative Review Act the circuit court determined his discharge to have been wrongful and directed his reinstatement.

It was stipulated that from March 5, 1962, to January 4, 1963, relator was employed by a liquor store at a gross salary of $105 per week; that the hours of this employment were from 5:00 P.M. to 2:00 A.M., and that these hours were not during the hours of relator's city employment. During the period from April 11, 1962, to May 22, 1962, (the date of relator's discharge) he performed his city duties and his services for the liquor store. There is no showing of the existence of any municipal ordinance or regulation prohibiting secondary or 'moonlighting' employment of employees.

The defendant officials contend that courts erred in holding the monies earned in the liquor store employment should not be set off against the back salary. They further argue relator has not established a clear right to the writ of mandamus. Relator concedes that the right of setoff exists as to earnings by an employee during the period of wrongful discharge, but contends that this rule embraces only those earnings which would have been incompatible with the prior employment. The precise question for our consideration is, therefore, whether an employer who wrongfully discharges an employee is entitled to credit on a back-pay award for subsequent earnings of the employee from a secondary job, compatible with, and held by the employee in conjunction with the principal employment.

We have previously and specifically held the employer entitled to set off the employee's earnings from other employment against the salary accruing during the period he was improperly prevented from performing his duties. (Kelly v. Chicago Park District, 409 Ill. 91, 98 N.E.2d 738; People ex rel. Krich v. Hurley, 19 Ill.2d 548, 169 N.E.2d 107.) Defendants maintain denial of setoff in the case at bar would be contrary to these decisions, but it is apparent that neither Kelly nor Krich involved the issue here presented since the credit here sought is for earnings from a continuation of supplemental employment engaged in by relator at the same time he was performing the duties of the job from which he was wrongfully separated, whereas the cited cases dealt only with the question as to whether any earnings during the wrongful separation period could be deducted.

Defendants, in their argument, refer us to a number of other authorities including Corfman v. McDevitt, 111 Colo. 437, 142 P.2d 383, and the annotation following it in 150 A.L.R. 100; Ransom v. City of Boston, 192 Mass. 299, 78 N.E. 481, and Spurck v. Civil Service Board, 231 Minn. 183, 42 N.W.2d 720. Corfman and the A.L.R. annotation are principally concerned with the distinctions in the rule applied to 'public officers' as distinguished from 'public employees', and are not relevant to the case at bar except as they state the general rule which relator concedes, i.e.: that 'public officers' are not subject to setoff or mitigation while 'public employees' are. Ransom is to the same effect, whereas Spurck is actually authority for relator's position, since the court there, in determining the setoff the municipal employer was entitled to as against the reinstated employee, said: '* * * we feel that a fair rule under the facts and circumstances of this case is that, although relator was required only to seek other like employment, his damages should be reduced by amounts earned at any inconsistent employment during the time that he was wrongfully discharged. (Citations).' (Emphasis ours.) In holding deductible earnings from out-of-state employment during the period of wrongful discharge, that court further held: 'Clearly, relator's employment while out of the state was inconsistent with his employment in the division, since he could not have done this work at the same time that he was performing his duties with the division. For these reasons, we feel that the sums so earned should be deducted.' The clear implication is that had the employee been engaged in work consistent with the wrongfully terminated duties, there would have been no deduction.

The same inference is to be drawn from Atholwood Development Co. v. Houston, 179 Md. 441, 19 A.2d 706, where the Court of Appeals, while recognizing the general rule that the employee's damages are to be mitigated by the amounts he earned or might have earned...