People ex rel. Mulvey v. City of Chicago

Decision Date14 December 1937
Docket NumberGen. No. 39464.
Citation292 Ill.App. 589,12 N.E.2d 13
PartiesPEOPLE EX REL. MULVEY ET AL. v. CITY OF CHICAGO ET AL.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; Joseph B. David, Judge,

Consolidated mandamus proceedings by the People of the State of Illinois, on the relation of Michael J. Mulvey and others, and on the relation of Philip McGuire and others, against the City of Chicago and others. From judgments denying the writs and dismissing the petitions, the plaintiffs appeal. The proceedings were consolidated for hearing.

Affirmed. James W. Breen, of Chicago, (Roy D. Keehn, Charles E. McGuire, Samuel Kart, Theodore Levin, Julius H. Selinger, and Kerner, Jaros & Tittle, all of Chicago, of counsel), for certain appellants.

William Daniel Johnson, Damon, Walk & Murray, Rittenhouse & Marovitz, and Poppenhusen, Johnston, Thompson & Raymond, all of Chicago, (Maurice Walk, William Daniel Johnson, and Albert E. Jenner, Jr., all of Chicago, of counsel), for certain appellants

Samuel A. & Leonard B. Ettelson, of Chicago (Samuel A. Ettleson, Edward C. Higgins, and Carl J. Appell, all of Chicago, of counsel), for appellants in No. 39458.

Barnet Hodes, Corp. Counsel, of Chicago (Joseph F. Grossman, First Asst. Corp. Counsel, and J. Herzl Segal, Asst. Corp. Counsel, both of Chicago, of counsel), for appellees.

SCANLAN, Justice.

After twenty-three separate suits for mandamus had been filed in the superior court of Cook county, they were consolidated for trial, The People of the State of Illinois ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municipal Corporation, et al., Consolidated Causes No. 35-S-14553. There were many plaintiffs in each suit. In twenty of the suits the plaintiffs, who were employees of the City of Chicago (hereinafter called the City) in its corporate capacity, alleged that the city council, in the annual appropriation bills for the years 1932, 1933, 1934, and 1935, fixed their salaries at certain amounts and then failed to appropriate sufficient moneys to pay the salaries fixed. In three of the suits the plaintiffs were employees of the Board of Election Commissioners of the City of Chicago, the Municipal Tuberculosis Sanitarium, or the House of Correction. We shall refer later to the claims in these three suits and the defenses interposed to the same. As to the twenty suits, the defenses, briefly stated, were: First, a denial that the city council failed to appropriate sufficient moneys to pay the salaries fixed, and an allegation that the respective amounts appropriated in the annual appropriation bills for the salaries of said plaintiffs constituted their salaries and that the City's liability is limited to the amounts appropriated; second, that plaintiffs had been guilty of laches and that the City had been seriously prejudiced thereby; third, that the issuance of the writ would cause confusion, disorder, and grave public inconvenience, and would result in disarranging the public service. The twenty-three consolidated suits came on for trial by the trial court upon the pleadings and a stipulation of facts. During the progress of the hearing it was agreed that the suit People of the State of Illinois ex rel. Philip McGuire et al. v. City of Chicago, a Municipal Corporation, et al., Superior Court No. 36-S-9846, be tried separately, and it was determined adversely to the plaintiffs therein upon the pleadings. We shall refer to this suit later. On January 29, 1937, a judgment was entered in the remaining consolidated suits denying the writs asked and dismissing the petitions. The plaintiffs therein filed one appeal in this court, People of the State of Illinois ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municipal Corporation, et al., Gen. No. 39464. The plaintiffs in People ex rel. Philip McGuire et al. v. City of Chicago, a Municipal Corporation et al., 11 N.E.2d 831, filed a separate appeal in this court, but we entered an order consolidating the two appeals for hearing.

We shall first consider defendants' contention that all of the plaintiffs in both appeals have been guilty of such laches as bars their claims, even if they were valid, for the reason that if this contention is sustained the appeals must be determined adversely to all of the plaintiffs. In support of defendants' contention they call attention to the following undisputed facts: That plaintiffs knew immediately after the passage of the 1932 annual appropriation bill that sufficient moneys had not been appropriated to pay them the salaries they now claim they were entitled to under the ordinance; that instead of then asserting their alleged rights, by demand, and suit, if necessary, they acquiesced in the appropriations that were made in that bill and in the annual appropriation bills of 1933, 1934, and 1935, that were drawn in the same form and manner as the bill of 1932; that “each of the petitioners received a warrant * * * for each semimonthly period of his employment in an amount equal to such semi-monthly portion of the amount appropriated for the salary or wages of the office or position of each of said petitioners; that each of said petitioners presented, or caused to be presented to the City Treasurer each of said warrants and received and accepted the amount thereof for the labor or service stated for said period” of four years; that no demand was ever made on the City to appropriate the amount of money they now claim is due them, or any part of it, until immediately prior to the filing of the instant suits. Defendants argue that if plaintiffs had raised, in any way, the question involved in their present claims after the passage of the 1932 appropriation bill, the city council would have been warned of their position, and if the claims were deemed valid, could have met them by drastic economy, and the appropriation bills subsequently passed would have been so worded as to obviate any possible dispute as to their meaning; that the claims of plaintiffs relate to the period of the great depression, when the City, because of grave financial difficulties, was obliged, inter alia, to reduce the salaries of its employees in its enforced plan of stringent economy; that when, “immediately prior to the filing of their suits as a basis for instituting mandamus proceedings,” demand was made by plaintiffs upon the city council to appropriate the amount they now claim is due them, the council, in the annual appropriation bill for 1936, made the language that applies to plaintiffs' salaries so clear that there can be no dispute as to its meaning. Defendants further argue that the gravity of the situation brought about by the delay of the plaintiffs in making their claims appears from the allegation in the amendment to the answer that the total liability sought to be established by the instant proceedings is in excess of $22,500,000; that other allegations in the said amendment show “that granting the writ in this case will result in hopeless insolvency of the City, that its credit would become seriously impaired and it would be unable to meet its ordinary and necessary expenses unless the salaries of all officers and employes serving the City in the future were reduced so radically that no one would be willing to serve the City”; and that under the undisputed facts and circumstances the court, in the exercise of its judicial discretion, was justified in denying the writ.

People of the State of Illinois ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municipal Corporation, et al., the first of the instant suits commenced, was filed on October 11, 1935. It was stipulated that certain plaintiffs filed a suit in January, 1934, to recover back pay for the year 1931; that a mandamus writ issued therein and the city council appropriated sufficient moneys to pay said plaintiffs their 1931 “back salaries.” That suit, however, has no bearing on the instant appeals, which have to do with the pay of the said plaintiffs for the years 1932, 1933, 1934, and 1935. So far as the claims of plaintiffs in the instant suits are concerned, it was stipulated that all of the plaintiffs in all of the suits “made a formal demand on the City Council to appropriate the amount of money claimed by them immediately prior to the filing of their suits as a basis for instituting mandamus proceedings.”

In People v. Ketchum, 72 Ill. 212, it was held that the writ of mandamus is not a writ of right; that its issuance is discretionary with the court, acting upon existing facts, and viewing the whole case with due regard to the consequences of its action. That ruling has never been overruled nor modified, and has been followed in numerous cases.

The general rule that where a party has slept upon his rights and acquiesced in what has been done, equity will not afford its aid in enforcing his demand, is familiar to all. Equally familiar is another rule, that laches is properly invoked when by delay or negligence to assert a right the adverse party is lulled into doing that which he would not have done, or into omitting to do that which he would have done with reference to the subject matter of the litigation had the right been promptly and properly asserted.

“Laches consists of such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great and other circumstances causing prejudice to the other party, operates as a bar. Ring v. Lawless, 190 Ill. 520, 60 N.E. 881;Morse v. Seibold, 147 Ill. 318, 35 N.E. 369.” Carroll v. Houston, 341 Ill. 531, 538, 173 N.E. 657, 660, a certiorari case.

But plaintiffs assert that the doctrine of laches is a defense which may be interposed in a court of equity only. In Schultheis v. City of Chicago, 240 Ill. 167 at page 170,88 N.E. 563,a mandamus proceeding, the court said:

“It is asserted with great vigor that laches cannot be relied upon as a defense in any suit at law, and it is said, to quote the...

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