People ex rel. McDonnell v. Thompson

• Decision Date: 17 February 1925
• Docket Number: Nos. 15289,15290.,s. 15289
• Citation: 316 Ill. 11,146 N.E. 473
• Parties: PEOPLE ex rel. McDONNELL v. THOMPSON, Mayor, et al. PEOPLE ex rel. McAULIFFE v. SAME.
• Court: Illinois Supreme Court

316 Ill. 11

146 N.E. 473

PEOPLE ex rel. McDONNELL

v.THOMPSON, Mayor, et al.

PEOPLE ex rel. McAULIFFE

v.SAME.

Nos. 15289, 15290.

Supreme Court of Illinois.

Feb. 17, 1925.

Separate petitions, consolidated for hearing, by the People, on the relation of John C. McDonnell, and by the People, on the relation of Jeremiah C. McAuliffe, against William Hale Thompson, Mayor, and others, for mandamus to compel reinstatement of relators to office.

Writs awarded.Scott, Bancroft, Martin & MacLeish, of Chicago (Edgar A. Bancroft, Vincent D. Wyman, and Lester L. Falk, all of Chicago, of counsel), for petitioners.

Samuel A. Ettelson, Corporation Counsel, of Chicago (Gilbert G. Ogden, of Chicago, of counsel), for defendants.

DUNCAN, C. J.

The relator John C. McDonnell on leave filed in this court a petition for mandamus commanding the defendants, the mayor, fire marshal, city comptroller, city treasurer, the civil service commissioners, the second assistant fire marshal, and Patrick Egan, acting second assistant fire marshal, of the city of Chicago, to forthwith recognize him as second assistant fire marshal and chief of fire prevention and public safety of said city, to place him upon the payroll, and pay him the moneys appropriated by the city councilas salary for said office from December 18, 1922, and thence until he is retired or legally removed from said office or position, as may be provided for by law, and for other and further relief. The defendants filed a joint and several answer to the petition, to which the relator filed a general and special demurrer, and the cause has been submitted on the petition, answer, and demurrer.

The facts stated in the petition and admitted by the answer are substantially the following: Relator joined the Chicago fire department in 1885, and from that time advanced grade by grade, and in 1918 was legally appointed and qualified as second assistant fire marshal, an office or position classified under the Civil Service Law (Smith-Hurd Rev. St. 1923, c. 24 1/2), and continued in that office or position until September 23, 1922, when he was brought before the civil service commission on certain charges set forth in the petition. The civil service commission on said last date entered an order on the charges, directing the discharge of the relator from his office or position, and since November 1, 1922, defendant Patrick Egan has been discharging the duties of second assistant fire marshal and drawing the compensation for such office or position. an order on the charges, directing the discharge circuit court of Cook county, the record of the civil service commission discharging the relator was ‘quashed and for naught esteemed’ by the judgment of the circuit court entered in such proceedings. The judgment of the circuit court had not been reversed or modified up to the filing of this petition. Thereafter, on January 4, 1923, the relator served a written notice upon the mayor, the city treasurer, the city comptroller, and the fire marshal, advising them that the circuit court had entered an order in the certiorari proceedings quashing the record of the proceedings of the civil service commission in the matter of the charges against the relator; that he had deposited with the city treasurer a certified copy of such order. In the notice he demanded that they restore him to the office or position aforesaid, for which he was ready, willing, and able to discharge the duties; that they pay to him the salary appropriated for said office or position from December 18, 1922, the date of the judgment of the circuit court; and that such salary be paid in the future to him and to none other. The defendants refused to recognize relator as second assistant fire marshal, and defendant Egan is still discharging the duties thereof and drawing the pay therefor. The other allegations in the petition were denied seriatim by the answer.

The defendants set up as defenses in their answer the following matters, in substance: First, that the appeal from the certiorari judgment operated as a supersedeas; second, that the certiorari judgment was erroneous and void; third, the defendant Egan, who is acting as second assistant fire marshal, was not a party to the certiorari proceedings, and is not affected by the judgment; fourth, this proceeding in mandamus is not a proper proceeding to determine the right of Egan to said office or position; and, fifth, Egan has received the pay of the office or position, and the relator cannot recover it from the city. These five points or alleged defenses to the petition constitute the real defense for the defendants. The contention of the relator is that none of these matters constitute a defense to the petition, and for that reason his demurrer to the answer should be sustained and the writ awarded to him.

Since the submission of this cause to the court the parties thereto have filed a stipulation to the effect that the relator has been restored and assigned to duty as second assistant fire marshal, and that the parties have agreed that the question of the right of the relator to reinstatement, as prayed in the petition, may be dismissed and the cause retained only for the purpose of determining the question of the relator's right to compensation for the period during which he was deprived of and excluded from his office or position. We are in doubt as to whether or nor the defendants by this stipulation mean to confess that the first four defenses set up matters that constitute no defense to the facts set up in the petition, and that they thereby admit that the relator was wrongfully removed from office and was entitled to be restored, under the facts admitted or set out in the petition, to his office or position. As the right of the...