People ex rel. Heffernan v. Smykal

• Decision Date: 09 April 1957
• Docket Number: Gen. No. 46868
• Citation: 13 Ill.App.2d 342,142 N.E.2d 133
• Parties: PEOPLE of the State of Illinois ex rel. Daniel J. HEFFERNAN, Appellee, v. Richard SMYKAL, Acting Commissioner of the Department of Buildings, City of Chicago; Stephen E. Hurley, President; Albert W. Williams and John J. Ahern, Members of and constituting the Civil Service Commission of the City of Chicago; James H. Dillard, Comptroller of the City of Chicago; and David L. Hartigan, Acting Treasurer of the City of Chicago, Appellants.
• Court: United States Appellate Court of Illinois

Page 133

142 N.E.2d 133

13 Ill.App.2d 342

PEOPLE of the State of Illinois ex rel. Daniel J. HEFFERNAN, Appellee, v.Richard SMYKAL, ActingCommissioner of the Department of Buildings, City of Chicago; Stephen E. Hurley, PresidentAlbert W. Williams and John J. Ahern, Members of and constituting the Civil Service Commission of the City of Chicago; James H. Dillard, Comptroller of the City of Chicago; and David L. Hartigan, ActingTreasurer of the City of Chicago, Appellants.

Gen. No. 46868.

Appellate Court of Illinois, First District, Second Division.

April 9, 1957.

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

Michael F. Ryan, Chicago, Richard F. McPartlin, Jr., Chicago, of counsel, for appellee.

SCHWARTZ, Judge.

Defendants appeal from an order sustaining plaintiff's (relator's)motion for judgment on the pleadings and ordering the issuance of a writ of mandamus against defendants, commanding them to reinstate plaintiff immediately to his position as a building inspector in the classified service of the Department of Buildings of the City of Chicago and to be paid his back salary at the rate of $5,382 per year for certain periods set forth in the order.

The first question to be considered is whether the complaint on its face states a cause of action.If it does not, then the for judgment should have been denied, and a motion to strike previously filed by defendants and overruled by the court should have been sustained.

Plaintiff passed a civil service examination and on August 6, 1954, was appointed a building inspector.Under the law he was a probationer for a period of six months, with no tenure or other rights of a civil service employee, the law providing that within that six-month period only the head of the department could discharge him, upon assigning in writing his reason therefor to the Civil Service Commission and obtaining its consent.Plaintiff's period of probation expired February 5, 1955.On February 2nd he received a letter from the secretary of the Civil Service Commission requesting him to appear before the Commission on February 3.He appeared and was interviewed by Stephen E. Hurley, president of the Commission.

On February 4, 1955, the Acting Commissioner of the Department of Buildings sent a letter to the president of the Civil Service Commission stating that effective February 4he was terminating plaintiff's services because the experience rating sheets filed in his civil service examination contained false and misleading information as to education.On the same day a letter was sent by the Commission to the Acting Commissioner stating that an order was entered granting authority for plaintiff's discharge, and the records indicate that authority was so granted in the minutes of the Commission of February 4, 1955.On February 4th the Acting Commissioner of Buildings wrote plaintiff advising him that his service were terminated February 4th because plaintiff'made false and misleading statements in your application.'Plaintiff avers that he reported for work on February 7 and then for the first time learned of his discharge.He avers he did not receive the letter of February 4 until February 7.

One who seeks a writ of mandamus must show a clear legal right thereto.This is particularly applicable to a case in which an administrative official is commanded to perform administrative acts.The problem of employment here dealt with affects the management of a civil service system in which thousands are employed and in which integrity and discipline are important factors.It is the duty of building inspectors to discover and report with truth and accuracy violations of building laws on which the safety and health of millions depend.In this city as many as 2,000 inhabitants may be found living in a single building, such as the one involved in Kushner v. Lawton, 351 Ill.App. 422, 115 N.E.2d 581.Examining the complaint in this light, we find it inadequate, inconsistent and equivocal.

The letter from the Commissioner to plaintiff was dated February 1, 1955, and called for a review of plaintiff's Experience Rating Form.Plaintiff avers that he was interviewed with respect to the number of years he attended high school, but he does not deny and yet does not admit that the representations he made were false.There is a clear inference that they were false, because he asserts that attendance or graduation from high school was not a qualification for eligibility to participate in civil service examinations for building inspectors.Such an averment would be irrelevant if the representations plaintiff had made as to his education were true.

Plaintiff charges that it was the head of the Civil Service Commission who initiated the movement for his discharge, and not the department head; that therefore he was unlawfully discharged because it is only the department head who, with the Commission's consent, has the power to discharge a probationer.The fact is that the department head wrote the letter of February 4 to the Commission, advising it that he was terminating plaintiff's services on that date.On the same day a letter was sent from the Commission to the Building Commissioner granting authority for the discharge.Which letter came first and to whom does not appear nor do we think it is of any consequence.Plaintiff asserts that the president of the Civil Service Commission was usurping authority and that he pressured the Building Commissioner into the action taken.These are conclusions on his part.He states no facts to support them.We must assume that the Building Commissioner and the president of the Civil Service Commission knew and understood their legal powers and limitations.Plaintiff appears to think it was wrong for the president of the Civil Service Commission to inquire into the facts relating to plaintiff's statements about his education and a usurpation of authority to call the attention of the department head to the fact that these statements were false.We do not so consider it.On the contrary, we think he performed his duty.

In People ex rel. Wiechern v. Smykal, 12 Ill.App.2d 398, 139 N.E.2d 839, decided by the First Division of this court, the court had before it a similar suit brought by an employee of the Building Department who was discharged during his probationary period.In that casethe court held that a judgment on the pleadings was error and that the trial court should have sustained the motion to strike the complaint.The court cited People ex rel. Jendrick v. Allman, 396 Ill. 35, 71 N.E.2d 44, where the court held unconstitutional an amendment to the Civil Service Act providing that no person appointed in the classified civil service who was entitled to military preference should be removed or discharged because he misstated his age.The Supreme Court said this statute not only granted immunity for the consequences of a fraudulent act but rewarded it by reinstating the guilty party to a position obtained fraudulently.This, the court said, is repugnant to the constitutional provision against granting special privileges and immunities to favored classes and to basic morality.

The complaint in the case before us shifts away from the charge that it was the president of the Civil Service Commission who arranged the discharge and takes the position that the consent of the Commission was not obtained.Plaintiff bases this on an argument that there was no meeting of the minds of the Commissioner and Commission because the reason given plaintiff by the Commissioner was that plaintiff had made false and misleading statements in his application, and the reason given to the Civil Service Commission was that plaintiff's experience rating sheets contained false and misleading information.Therefore, he says, the Commission could not give a proper intelligent and valid consent.Non sequitur is the description given this kind of conclusion.Plaintiff cites People ex rel. Walker v. O'Connor, 351 Ill.App. 545, 115 N.E.2d 808, to support his position.The facts in the Walker case were substantially different from those in the instant case.There, the letter from the Chief of Police to the Commission stated that the plaintiff had submitted a false report relative to his indictment on the charge of rape.On that basis the Commission granted authority and he was discharged.The fact was that he had not made a false report (presumably the reports made by policemen to their superior officers) but made a false statement in an application.The court said this did not constitute a meeting of the minds and hence was not consent, as the Commission did not consent to the reason.In the instant case the letter sent to the Commission by the head of the department stated as the reason for discharge that 'the experience rating sheets filed in the Civil Service examination * * * contained false and misleading information as to education.'This is precisely the fact which, according to the complaint, was first uncovered by the Commission and reported to the department head as the basis for discharge.Hence, there was a...