People ex rel. Elmore v. Allman, s. 26794

CourtSupreme Court of Illinois
Citation382 Ill. 156,46 N.E.2d 974
Docket Number26929.,Nos. 26794,26886,s. 26794
PartiesPEOPLE ex rel. ELMORE v. ALLMAN et al. PEOPLE ex rel. SWEENEY v. SAME. PEOPLE ex rel. O'KELLEY v. SAME.
Decision Date12 March 1943


Appeals from the First and Second Divisions of the Appellate Court for the First District, heard in that court on appeals from Circuit Court, Cook County; Harry M. Fisher, Judge.

Mandamus by the People, on the relation of Charles E. Elmore, by the People, on the relation of John F. Sweeney, by the People, on the relation of Aubrey G. O'Kelley, against James P. Allman and others to compel relators' reinstatement as patrolman in the Classified Civil Service of the Police Department of the City of Chicago. The Appellate Court reversed and remanded with directions a judgment for relator Elmore, 314 Ill.App. 194, 40 N.E.2d 812, and affirmed a judgment awarding the writ as to relator Sweeney, 315 Ill.App. 133, 42 N.E.2d 115, and affirmed a judgment awarding the writ as to relator O'Kelley, 315 Ill.App. 236, 42 N.E.2d 887, and relator Elmore and defendants appeal.

Judgment as to relator Elmore affirmed. Judgment as to relators Sweeney and O'Kelley reversed.Michael F. Ryan, of Chicago (Richard F. McPartlin, Jr., of Chicago, of counsel), for appellant and appellees, relators.

Barnet Hodes, Corp. Counsel, of Chicago (James A. Velde, J. Herzl Segal, Carl H. Lundquist, and L. Louis Karton, all of Chicago, of counsel), for appellants and appellees, respondents.

MURPHY, Justice.

By an order entered at a previous term, cases numbered 26886 and 26929 were consolidated with No. 26794 for oral argument and opinion. These are mandamus actions instituted in the circuit court of Cook county by petitioners who had formerly been patrolmen under the classified civil service of the department of police of the city of Chicago but whose names had been stricken from such list by order of the Civil Service Commission of the city. The prayers of the three petitions were the same, in that each asked that the relator be restored to his position as patrolman in the classified service of the department of police, that he be assigned to duties as a patrolman, that his name be placed on the roster and payroll of the department and that he be paid for past as well as future services. The prayer also included the request to expunge all orders of the commission and of the commissioner of police pertaining to the removal of the petitioners from the classified service.

The respondents in each case are the commissioner of police, the members of the Civil Service Commission and the city comptroller. They will be referred to as defendants and the several petitioners as plaintiffs.

Defendants challenged the sufficiency of the petitions by a motion to strike, which was overruled. One of the grounds alleged in support of the motion was that the petition did not show the violation of a duty which defendants owed plaintiffs and that the relief prayed could not be granted in a mandamus proceeding. The joint and several answers set up the entire proceeding before the commission as it related to the respective plaintiffs. Plaintiffs motions to strike the parts of the answers pertaining to the commission's hearing were overruled. Judgments were entered on the petition, answer and motions in No. 26886 and No. 26929. In No. 26794 evidence was heard but there is nothing in such evidence that differentiates that case from the others on the points to be considered.

Judgments were entered in favor of the respective plaintiffs and each recited that defendants's answer was insufficient in law to constitute a defense. The writ which was issued in each case commanded defendants to restore each plaintiff to his former position as a patrolman, to assign him duties as such and directed that he be paid his regular pay. In No. 26794 and No. 26886 jurisdiction was retained to pass upon the question of pay that would have accured to the patrolmen during the period of suspension but in No. 26929 the order commanded payment to plaintiff Aubrey G. O'Kelley the salary ‘lawfully appropriated for said position and remaining unexpended from the date of his illegal removal on May 10, 1940.’

On appeal to the Appellate Court, the judgments in No. 26886 and No. 26929 were affirmed but the judgment in No. 26794 was reversed and the cause remanded with directions to dismiss the petition. The difference in the conclusions reached was based upon the difference in the character of the charges and the evidence presented and not upon a diversity of opinion as to the propriety of granting the relief asked in a mandamus action. Both divisions of the Appellate Court passing on the cases held that mandamus was the appropriate action. Leave to appeal was granted in all the cases.

The first matter for consideration is as to whether the relief sought is obtainable in a mandamus action. Plaintiffs contend this question was not properly preserved for review but we can not agree with that contention. The motion of defendants to dismiss contained allegations sufficient to introduce the question into the record. The motion was overruled and each opinion of the Appellate Court contains a discussion of the question. From this we must conclude the point was urged in that court and that it is fairly presented for review.

Defendants contend that the relief sought cannot be granted in a mandamus proceeding and that since the Civil Service Act provides no method for review of hearings held before the commission, the only remedy plaintiffs have is a review by the common-law writ of certiorari. That an interested party who is aggrieved by the ruling of an administrative body has a right to have the proceeding reviewed by use of the common-law writ of certiorari is firmly established by the opinions of this court but it is not necessary in these cases to detail the circumstances under which the writ may be employed or the limitations that encompass its use. It is sufficient to say that there is a well-defined distinction between the relief granted in the two actions. In common-law certiorari the writ of a superior tribunal issues to review an official or judicial act while in a mandamus action the writ issues to compel action. 38 C.J., p. 545, § 11. A mandamus proceeding can not be made to perform the office of a writ of error or of certiorari or an appeal. People ex rel. Carlstrom v. Shurtleff, 355 Ill. 210, 189 N.E. 291;People ex rel. Kennon v. La Buy, 305 Ill. 11, 136 N.E. 870.

The city of Chicago is operating under an act entitled ‘An Act to regulate the civil service of cities.’ Ill.Rev.Stat.1941, chap. 24 1/2, pars. 39-77, sec. 1 et seq. The civil service list to which plaintiffs seek reinstatement is the one provided by that act and the hearings of the commission set up in defendants' answer to the petition for mandamus were held pursuant to the authority of section 12 (par. 51) of that act. The parts of the section insofar as material here are that the employee whose name is on the classified list shall not have his name removed from such list ‘except for cause, upon written charges and after an opportunity to be heard in his own defense.’

Plaintiffs raise no question as to the sufficiency of the notices of the hearing before the commission or the opportunity that was given them to introduce evidence. The objections they make to the proceedings before the commission and upon which they base their right to have a writ of mandamus issued are somewhat different in the respective cases and for a proper consideration of the issues a summary of each must be set forth.

In No. 26794, plaintiff Charles E. Elmore alleged that the commission had adopted certain rules in reference to the procedure to be followed in hearings for removal of names from the classified service, one of which rules provided that all charges filed with the commission ‘should state specifically the facts alleged to constitute the cause for discharge.’ Another rule gave persons who had been discharged from the classified service the right to file a petition for a rehearing. The rule prescribed the time for filing and the procedure to be followed. Elmore alleged there had been violations of such rule in that he filed a petition for rehearing which was continued from time to time without a ruling thereon but such failure to act is not urged here as a basis for a writ.

The petition discloses the charges preferred against Elmore were that he violated sections 3 and 33 of rule 389 of the police department of the city of Chicago. The charge as to section 3 was that he was guilty of conduct unbecoming a police officer and as to section 33 that he neglected to pay, within a reasonable time, indebtedness incurred while in the service of the police department. The specifications which formed a part of the charge set forth the names and addresses of Elmore's creditors and the amount due each. It was alleged that the claims were meritorious, that they had not been paid, that Elmore had no valid reason for such neglect and that such conduct on his part tended to impair his own efficiency as a patrolman and reflected discredit upon the honesty and integrity of all the members of the police force. In the form of conclusions Elmore pleaded that he was not guilty of any matter that would warrant his removal, that the charges were based on indebtedness which his financial circumstances prevented him from paying, that the specifications did not state in what manner he was guilty of conduct unbecoming a police officer, and that the action of the commission in finding him guilty was an unreasonable and arbitrary exercise of power not authorized by section 12 of the act. It does not appear that he made any application to the commission for a more specific statement of the charges preferred against him. Defendants' answer traversed certain allegations of fact and set forth the entire proceeding had before the commission,...

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