People ex rel. Dinneen v. Bradford

• Citation: 267 Ill. 486,108 N.E. 732
• Decision Date: 22 April 1915
• Docket Number: No. 10003.,10003.
• Parties: PEOPLE ex rel. DINNEEN v. BRADFORD, Mayer, et al.
• Court: Supreme Court of Illinois

267 Ill. 486

108 N.E. 732

PEOPLE ex rel. DINNEEN

v.BRADFORD, Mayer, et al.

No. 10003.

Supreme Court of Illinois.

April 22, 1915.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Joe A. Davis, Judge.

Mandamus by the People, on the relation of Daniel Dinneen, against Edgar F. Bradford, Mayor of the City of Ottawa, and others. From a judgment of the Appellate Court, affirming in part and reversing in part a judgment of the Circuit Court for defendants, they appeal. Affirmed.Rector C. Hitt, of Ottawa, for appellants.

Browne & Wiley and James J. Conway, all of Ottawa, for appellee.

CRAIG, J.

Appellee, Daniel Dinneen, filed a petition for mandamus in the circuit court of La Salle county against appellants, as mayor, commissioners, and city clerk of the city of Ottawa, to compel them, as such officers, to execute and deliver to him warrants for his salary as commissioner of such city for the months of October, November, and December, 1912, and January and February, 1913. The petition alleged the city of Ottawa is under the commission form of government, and set up the nomination, election, and qualification in April, 1911, of appellant Bradford as mayor, of appellants Campbell, Palmer, and Helffrich as commissioners, and of appellant Curtis as city clerk, respectively, of such city, and the nomination, election, and qualification of the appellee as commissioner; that on May 1, 1911, they entered upon the discharge of their duties as such officers, and have continued to hold such offices, respectively, since that time. The petition further alleges the population of the city of Ottawa is between 10,000 and 15,000; that the salary of each commissioner is fixed at $900 per year, payable in equal installments of $75 per month, which salary is allowed each month by a vote of the council and paid by warrant, signed by the mayor and clerk, drawn on the city treasurer; that from the time appellee took office, to and including September, 1912, he received a warrant for his salary each month, but that since September, 1912, no salary has been allowed to him, or warrant for the same drawn and delivered to him; that the council has refused to allow him his salary for such period of time, although repeatedly requested to do so, and has continued to vote to the mayor and the other commissioners their salaries regularly ever since they were inducted into office; that on March 3, 1915, the appellee made a written demand on the council to vote to him his several monthly installments of salary for the month of October, 1912, and each succeeding month, to and including the month of February, 1913, and that the council refused to pay him any further salary, or any part of the installments of his salary in arrears; that appellee since May, 1911, has been, and still is, the duly elected and qualified commissioner of the City of Ottawa and a member of its council, and is entitled to receive the monthly installment of salary of $75 each month. The petition prays that a writ of mandamus issue directing the city council, at its next session, to allow and vote to him his salary for the months of October, November, and December, 1912, and January and February, 1913, and the mayor and city clerk to issue and deliver to him warrants for such salary, and the council to vote and direct the issuance of warrants to him for the monthly installments of his salary in the future while he continues to hold said office.

The petition was filed on March 7, 1913. On the return day of the summons appellants appeared and filed a general demurrer to the petition, which the court overruled on July 11, 1913. Thereupon appellants filed an answer, two pleas, and an additional plea, in which they admit the city of Ottawa is under the commission form of government, the election, qualification, and assumption of office by appellants and appellee, and charge that appellee has attended no meeting of the council since August 14, 1912, that he has failed and willfully refused to perform the duties of his office as commissioner since that time, and has abandoned his office, and that the council is without authority to allow or vote him such salary or that any salary is due to him. The answer and pleas further allege the adoption of an ordinance apportioning the powers and duties among the several commissioners, and that appellee was designated commissioner of the department of streets and public improvements, setting forth in detail the duties of such officer, and charge that appellee did not devote such time to the duties of that department as the nature of the office required, nor discharge the duties of such office and make the required reports pertaining to that department, and that in April, 1912, the council made a new assignment of commissioners, and assigned appellee to the department of public property, setting forth in detail the duties of that department, and charge that appellee has not discharged any of the duties of such office, but willfully neglected the same, and that by reason of such willful neglect he has abandoned such office and his right to his salary as such commissioner.

Appellee filed a general demurrer to the answer and pleas, which the court sustained on July 25, 1913. Appellants elected to abide by their answer and pleas, and judgment was rendered against them awarding the writ, directing the payment to appellee of his salary from October, 1912, to and including the month of June, 1913. Appellants prosecuted an appeal to the Appellate Court for the Second District, where the judgment of the circuit court was affirmed, in so far as it related to the salary to and including the month of February, 1913, and reversed as to the allowance from then until June, 1913, but without prejudice to the right of appellee to bring another suit for the installments of salary accruing subsequent to February, 1913. Appellants obtained a certificate of importance, and have appealed to this court, and assign as error, first, the affirming of the judgment of the circuit court in so far as it relates to the salary for the months to and including the month of February, 1913; and, second, the refusal of the Appellate Court to reverse the judgment and remand the cause, with directions to the circuit court to overrule the demurrer to the answer, pleas, and additional plea of the appellants.

The reasons urged in support of the assignment of errors are: (1) That there is no warrant, in law, for allowing to a commissioner a salary where he has not performed and discharged the duties of his office; and (2) that appellee abandoned his office and thereby forfeited his right to his salary and compensation as such officer. These contentions will be considered in the order above indicated.

The law is well settled in this state that the right to the salary is attached to and follows the legal title to the office. This is true, irrespective of the question by whom the services were, in fact, actually rendered. Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52;Waterman v. Chicago & Iowa Railroad Co., 139 Ill. 658, 29 N. E. 689,15 L. R. A. 418, 32 Am. St. Rep. 228;Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N. E. 983,24 L. R. A. 59;City of Chicago v. Luthardt, 191 Ill. 516, 61 N. E. 410;Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614. In City of Chicago v. Luthardt, supra, it is said:

‘The legal right to the office carried with it the right to the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the courts that authorities hardly need be cited.’

While this rule has been most frequently announced and applied in suits between de jure and de facto officers over the salary to an office, it is nevertheless a basic principle of law and one of general application. It has been so applied, not only in cases of protracted absence and nonperformance of duties (Bryan v. Cattell, 15 Iowa, 538), but in cases of actual suspension from office (Wardlaw v. Mayor of New York, 137 N. Y. 194, 33 N. E. 140; City of Chicago v. Luthardt, supra). An officeholder may recover the full amount of the salary accruing during the time of his suspension, without any deduction of the amount he may have earned in other employments during that time. Bullis v. City of Chicago, supra; Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787,55 Am. Rep. 835. That the duties of appellee's office were actually performed by some one is disputed. Had they been performed by a mere intruder or interloper, without warrant or authority of law, the right of appellee to recover such salary must be conceded. City of Chicago v. Luthardt, supra. That these duties may have been performed by the other commissioners under a claim of right and lawful authority to do so does not alter the situation. This would be true, also, in the case of a de facto officer.

Appellants do not contend that this is not the general rule, but insist that by the Commission Form of Government Act a radical change in the law on this subject has been made, and that by that act, as stated in appellants' brief:

‘It was undoubtedly the purpose of the Legislature to provide that the officer should have pay for services performed, and remedy the abuse of paying salaries when services were not performed.’

This contention is based upon the language of section 30 of the act as amended (Laws of 1911, p. 144), and more particularly upon the clause, ‘and their total and only compensation for the performance of their several and respective duties shall be annual salaries,’ etc., found in that section, which provides for fixing the maximum amount of salary such officers may receive; the same being fixed on a graduated scale, according to the population of the municipalities in which they serve. But this contention, in so far as it is founded on the language of this particular clause, is based upon a misconception of one of the cardinal rules of...