People ex rel. Northrup v. City Council of City of Chicago
| Decision Date | 22 January 1941 |
| Docket Number | Gen. No. 41406. |
| Citation | 308 Ill.App. 284,31 N.E.2d 337 |
| Parties | PEOPLE EX REL. NORTHRUP ET AL. v. CITY COUNCIL OF CITY OF CHICAGO ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.
Mandamus action by the People of the State of Illinois on the relation of O. E. Northrup and others, against the City Council of the City of Chicago, and others, to compel payment of additional compensation for services. From a judgment for plaintiffs, defendants appeal. Transferred from the Supreme Court, 28 N.E.2d 85, 374 Ill. 94.
Affirmed. Barney Hodes, Fred V. Maguire, and Walter V. Schaefer, all of Chicago, for appellant.
James W. Breen, of Chicago, for appellee.
Defendants bring this appeal from a judgment entered in the Circuit Court in favor of plaintiffs who sought the issuance of a writ of mandamus to compel the City of Chicago to appropriate and pay to the plaintiffs additional compensation for services rendered by them as members of the city counsel during the years 1932, 1933, 1934 and 1935. An appeal was taken to the Supreme Court of this State, as it was claimed a construction of the constitution was involved. The Supreme Court, after due consideration of the cause, transferred it to this court. 374 Ill. 94, 28 N.E.2d 85.
The cause was submitted to the trial court for a decision upon an amended petition for mandamus, an amended answer, an amended reply and a stipulation of facts. No question arises upon the pleadings.
The facts show that the original plaintiffs were thirteen individuals who served as aldermen of the City of Chicago during varying portions of the period from January 1, 1932, to December 1, 1935; that by an amended petition filed August 11, 1939, three additional living ex-aldermen (one of whom had served as chairman of the committee on finance of the city council), and the administrators of the estates of seven deceased aldermen, all of whom had also held office during varying portions of the period from January 1, 1932, to December 1, 1935, were added as parties plaintiff.
The facts further show that prior to January 1, 1930, the city council of the City of Chicago, passed an ordinance fixing the salaries of members of the city council at $5,000 per annum; that this ordinance has never been expressly repealed; that prior to January 1, 1930, the city council also passed an ordinance fixing the salary of the member of the city council who served as chairman of the committee on finance at $8,500 per annum; that this ordinance likewise has never been expressly repealed.
The facts further show that the period here involved extended from 1932 to 1935, which was a period of financial distress of world wide proportions; that in order to maintain the credit of the City of Chicago and to alleviate so far as possible the burden of taxation imposed upon its citizens, it was necessary to reduce drastically the expenditures of the city; that by the appropriation ordinances adopted by the city council for each of the years 1932, 1933, 1934 and 1935, reduced amounts were appropriated for the essential services of the city government and for the salaries of all of the officers and employees of the City of Chicago, and that by reason of these appropriation ordinances amounts less than $5,000 per year were appropriated for the salaries of aldermen.
The deceased aldermen, as well as the living ex-aldermen, are for convenience, herein described as “plaintiffs”, as each was a member of the city council of the City of Chicago when the appropriation ordinances for the years with which he is concerned were respectively adopted.
It appears that the plaintiffs, Mills and Feigenbutz, voted against the passage of the appropriation ordinance for the year 1932; that with this exception, each of the plaintiffs voted in favor of the adoption of each of the appropriation ordinances; that during all of the time the plaintiffs were members of the city council of the City of Chicago no effort was made by the plaintiffs, or by any of them, to bring about the appropriation of money to pay the salaries now claimed by them; that for each of the years 1932, 1933, 1934, 1935, 1936, 1937, 1938 and 1939, the city council of the City of Chicago levied taxes upon all of the taxable property in said city at the maximum rate permitted by law; that each of the plaintiffs was paid the total amount appropriated for his salary for each of the years in question in monthly installments, and accepted each monthly payment so made during the entire period in question.
It further appears that on May 26, 1937, the plaintiffs caused to be served on the city council a demand that an appropriation be made sufficient in amount to pay to each of the plaintiffs a sum of money which, together with the amounts already received by each of the plaintiffs, would equal the sum of $5,000 per year for the respective periods during which each of the plaintiffs served as a member of the city council, and sufficient to pay to the plaintiff who served as chairman of the committee on finance, together with the amounts already received by him, the sum of $8,500 per year during the time he occupied that position.
Plaintiffs base their right to recover on that portion of Section 11 of Article IX of the constitution Smith-Hurd Stats. which provides: “The fees, salary or compensation of no municipal officer who is elected or appointed for a definte term of office, shall be increased or diminished during such term.”
Defendants contend that this constitutional provision, properly construed, is not applicable to the claims advanced by the plaintiffs. Their defenses are estoppel, laches, limitations and gift to defendant City by plaintiffs.
The trial court found, under the stipulated facts, that it was the duty of the city council according to the provisions of the constitution to appropriate $5,000 for the annual salary of each of the plaintiffs as aldermen for each of the years 1932, 1933, 1934 and 1935, and to appropriate $8,500 for the annual salary of the plaintiff who served as chairman of the committee on finance of the city council for the period during which he occupied that position. The trial court further found that the amounts set forth in the judgment order were due to the respective plaintiffs for services as members of the city council and as chairman of the committee on finance, and directed the issuance of a writ of mandamus to compel the city council to appropriate for said purposes the sum of $55,000 and to compel other officers of the city to pay to the plaintiffs the amounts respectively found due to them.
Defendants, who are the appellants here, apparently proceed on the theory that Section 11 of Article IX of the Constitution of Illinois does not justify the action taken by the trial court in entering judgment in favor of plaintiffs and that the action of the plaintiffs in not claiming the money prior to their demand and as members of the City Council, received less without protest, and, therefore, plaintiffs “effected a gift to the City of Chicago of the difference between the sums of money actually paid to each of the plaintiffs as salary and the sum which would have been paid to the respective plaintiffs had they been compensated at the rate of $5,000 per annum for alderman, and $8,500 per annum for the alderman who served as chairman of the committee on finance.”
Defendants further contend that the court erred in not holding that the claims of all the plaintiffs are barred by laches and that the claims of others of the plaintiffs are barred by the statute of limitations.
Defendants further contend that a grave emergency having arisen, namely, the financial depression which commenced with the last decade, that such emergency would permit the construction of the constitutional provision which would meet such an emergency. In the case of People v. City of Chicago, 374 Ill. 94, 28 N.E.2d 85, 86, Mr. Justice Murphy of the Supreme Court who wrote the opinion transferring this cause to this court, referred to the case of People v. City of Chicago, 360 Ill. 25, 195 N.E. 451, and said: “In that case it was held that where a law, either by express provision or necessary implication, provides for an emergency, departure from its terms is permissible to accommodate the law to the emergency, but the justification for such departure must be found within the law and does not arise from the emergency.”
There are no words in Section 11 of Article IX which make any reference, either directly or by implication, to the subject of an emergency. So, consequently, any of the purposes however commendable which the city authorities may have had in mind, in an endeavor to reduce expenses and save money for the taxpayers, would not be applicable in the instant case as the salaries were fixed by law at $5,000 and $8,500, as has been set forth. In other words, an emergency cannot be created by the facts and used as a means of construction of a constitutional provision which has made no reference to any emergency by its terms.
In the case of People ex rel. Lyle et al. v. City of Chicago et al., 360 Ill. 25, at page 29, 195 N.E. 451, at page 453, wherein the court, in discussing a similar case, said:
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