People ex rel. Siegal v. Rogers

• Decision Date: 22 May 1947
• Docket Number: No. 29964.,29964.
• Citation: 73 N.E.2d 316,397 Ill. 187
• Parties: PEOPLE ex rel. SIEGAL v. ROGERS et al.
• Court: Illinois Supreme Court

397 Ill. 187

73 N.E.2d 316

PEOPLE ex rel. SIEGAL

v.ROGERS et al.

No. 29964.

Supreme Court of Illinois.

May 22, 1947.

Appeal from First Division Appellate Court, First District, on Appeal from Superior Court, Cook County; Ulysses S. Schwartz, Judge.

Proceeding by the People, on the relation of Frank Siegal, for a writ of mandamus to compel Harry K. Rogers, the Village of Skokie, and others to reinstate relator as a member of the police department of such village. From a judgment of the Appellate Court, 329 Ill.App. 430, 69 N.E.2d 108, reversing a judgment of the superior court for relator and remanding the cause with directions to deny the writ, relator appeals.

Reversed, and judgment of the Superior Court affirmed.McCarthy, Toomey & Reynolds, of Chicago (Frank A. McCarthy and John E. Toomey, both of Chicago, of counsel), for appellant.

Peter J. Struck, of Chicago (Thomas A. Matthews, of Chicago, of counsel), for appellees.

WILSON, Justice.

The relator, Frank Siegal, filed in the superior court of Cook county a petition for a writ of mandamus to compel defendants, the village of Skokie and the president, treasurer, clerk, trustees and fire and police commissioners of the village, to reinstate relator as a member of the police department of the village and for the payment of salary as a patrolman from the date of his allegedly wrongful discharge. Defendant answered the petition, evidence was heard and the court entered judgment that the writ issue. Upon appeal, the Appellate Court for the First District reversed and remanded the cause, with directions to deny the writ. We have granted Siegal's petition for leave to appeal.

Relator joined the police force of the village of Skokie in May, 1934, pursuant to a verbal appointment made by the village president. Early the following year, the president administered the oath of office to relator, no one else being present on this occasion. Relator has never filed an oath of office or bond with the village clerk, nor has he ever been apointed to the police force by action of the village trustees. The village, on April 17, 1945, adopted article 14 of the Revised Cities and Villages Act providing for fire and police commissioners. Ill.Rev.Stat.1945, chap. 24, par. 14-1 et seq. The employment of relator and payment of his salary continued until April 28, 1945, when he was discharged by the chief of police without charges being filed against him and without a hearing before the fire and police commission. Relator contends that the Fire and Police Commissioners Act, as amended, abolishes the distinction between de jure and de facto policemen in municipalities adopting the act and insists that he is entitled to the protection of the act.

At the outset, is must be observed that the office of policeman or police patrolman or member of a police department was unknown to the common law. Unless created by statute or by ordinance adopted under statutory authority no such office legally exists. Gersch v. City of Chicago, 250 Ill. 551, 95 N.E. 630;Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614. Because the office of policeman is not created by statute, it exists, if at all, by virtue of municipal ordinance. Ill.Rev.Stat.1945, chap. 24, pars. 9-75, 9-76, 9-83, 9-84; Moon v. The Mayor, 214 Ill. 40, 73 N.E. 408;Stott v. City of Chicago, 205 Ill. 281, 68 N.E. 736. Prior to relator's discharge, the village of Skokie had never established a police department nor created the office of policeman or police patrolman. The subject of a police force was governed by a 1906 ordinance, providing in pertinent part: ‘The village police shall consist of the regularly appointed village marshal, and such other deputy marshals * * * as may be from time to time appointed by the president and board of trustees.’ Relator does not seek restoration to the office of deputy marshal and, in any event, the ordinance was insufficient to create the office. Moon v. The Mayor, 214 Ill. 40, 73 N.E. 408. In like manner, the village appropriation ordinances, pursuant to which relator was paid as a policeman, were insufficient to create the office of policeman. Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614;Moon v. The Mayor, 214 Ill. 40, 73 N.E. 408.

Assume the lawful creation of the office of policeman and relator's appointment to the village police force becomes subject to attack. At the time of the appointment, the applicable section of the Cities and Villages Act provided, ‘The president and board of trustees may appoint * * * a village marshal, and such other officers as may be necessary to carry into effect the powers conferred upon villages, * * *.’ Smith-Hurd Stat.1933, chap. 24, par. 152. Relator having been appointed by the president alone, and never by the president and trustees, the appointment, considered as an appointment to an office, was clearly in contravention of this statute. People ex rel. Janosky v. Novotny, 273 Ill.App. 254;McKean v. Gauthier, 132 Ill.App. 376; Ill.Rev.Stat.1945, chap. 24, par. 9-84. In addition, relator failed to file an oath of office with the village clerk, as required by statute. Smith-Hurd Stat.1933, chap. 24, par. 87.

Defendants contend that in the absence of an ordinance creating the office of policeman and by reason fo the failure to observe the statutory requirements pertaining to appointment to office, relator was no more than a de facto officer of the village of Skokie during his entire period of service on the village police force. The village bottoms its case on the long-established rule that an officer seeking by mandamus to compel reinstatement to office or the payment of compensation must show that he is an officer de jure, and not merely an officer de facto. People ex rel. Dunderdale v. City of Chicago, 327 Ill. 62, 158 N.E. 424;People ex rel. Jacobs v. Coffin, 282 Ill. 599, 119 N.E. 54;Gersh v. City of Chicago, 250 Ill. 551, 95 N.E. 630; McNeill v. City of Chicago, 212 Ill. 481, 72 N.E. 450;Stott v. City of Chicago, 205 Ill. 281, 68 N.E. 736. Relator contends, however, that the distinction between de jure and de facto police officers has been abolished by the Fire and Police Commissioners Act or, in the alternative, that the act gives him the status of a municipal officer. Adopted by the village at a referendum election on April 17, 1945, the act provides for the establishment of a special civil service commission and regulates the examination, appointment and discharge of officers and members of the fire and police departments. Relator bases his right to reinstatement on the provisions of the statute relating to discharge, and the issue presented for our determination is the proper construction of the act, as amended. Originally enacted in 1903, section 12 of the act then prescribed as follows: ‘No officer or member of the fire or police department of any such city, who shall have been such for more than one year prior to the passage of this act, or who shall have been appointed under the rules and examination provided for by this act, shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.’ Laws of 1903, p. 99. In Moon v. The Mayor, 214 Ill. 40, 73 N.E. 408, this court held that a policeman summarily discharged after more than one year's service prior to the passage of the act must show that he was a de jure officer in order to be protected by its provisions, and that the absence of a city ordinance creating the office of policeman resulted in him being merely a de facto officer.

In 1937, the General Assembly amended section 12 by adding the following paragraph: ‘The term officer or member of the fire or police department of such city, village or incorporated town as used herein shall include all officers and members of the fire and police departments of such cities, villages or incorporated towns who shall have been employed as regular members of such fire or police department for more than one year. Such regular employment for more than one year shall constitute such officers or members city officers.’ Ill.Rev.Stat.1937, chap. 24, par. 854. Section 12 of the Fire and Police Commissioners Act was renumbered section 11 of article 14 in the enactment of the Revised Cities and Villages Act of 1941 and the verbiage of the discharge provisions was slightly modified so that the relevant portion now reads: ‘No officer or member of the fire or police department of any municipality which adopts this article, who has held that position for more than one year prior to the adoption of this...