Reed v. City of Peoria

• Citation: 318 Ill.App. 271,47 N.E.2d 863
• Decision Date: 15 April 1943
• Docket Number: Gen. No. 9815.
• Parties: REED ET AL. v. CITY OF PEORIA ET AL.
• Court: United States Appellate Court of Illinois

318 Ill.App. 271

47 N.E.2d 863

REED ET AL.

v.CITY OF PEORIA ET AL.

Gen. No. 9815.

Appellate Court of Illinois, Second District.

Feb. 24, 1943.

Rehearing Denied April 15, 1943.

Appeal from Circuit Court, Peoria County; Henry J. Ingram, Judge.

Mandamus proceeding by Clement Reed and others against the City of Peoria, a municipal corporation, and others, to compel respondents to reinstate petitioners as members of the Fire Department of the City of Peoria. From an order of dismissal, petitioners appeal.

Reversed and remanded with directions. Londrigan & Londrigan, of Springfield, and Leo Cavanaugh, of Peoria, for appellants.

C. E. McNemar and J. Edward Radley, both of Peoria, for appellee.

WOLFE, Justice.

On January 13, 1942, the four appellants Clement Reed et al. filed their petition for the writ of mandamus directed to the mayor, chief of the fire department, members of the Board of Fire and Police Commissioners and the city comptroller of the City of Peoria to reinstate the appellants, hereafter called petitioners, as members of the fire department of the City of Peoria.

On April 5, 1910, the electors of the City of Peoria adopted the provisions of the Fire and Police Commissioners' Act which provided for the appointment of a board of fire and police commissioners in cities (villages and incorporated towns) of this State having a population of not less than seven thousand, nor more than two hundred thousand, and prescribed the powers and duties of such board. Laws of 1903, p. 97; chap. 24 par. 843 et seq. Ill.Rev.Stat. of 1939.

The respondents filed a motion to dismiss the petition stating two grounds therefor, which in this Court are the chief points of contention between the parties. It is stated in the motion: (a) “The petition does not set forth the facts as to the adoption of the city ordinance creating the offices held by petitioners, nor does it show their successive nominations to their alleged offices and confirmations therein, nor does it in any manner show any facts that they are the legally qualified successors of any former officers, nor does it allege any facts to specifically show that any such former firemen were legally appointed. (b) The petition does not set forth any fact upon which this court can determine as to whether or not at any time since the Act relied upon by them in said petition was passed, that any fireman was ever legally appointed as a de jure officer.”

Before the hearing on the motion the parties agreed, in open court, that upon a decision of the trial court on the motion they would stand by their pleadings, and that the decision should be conclusive upon the merits of the case. The motion was sustained and an order entered dismissing the petition.

The trial judge stated his reasons for sustaining the motion, and the same has been incorporated in the record. It is mentioned in the statement, first, that the petition fails to state that the office of city fireman was created by an ordinance of the City of Peoria, and since there is no such office, the petitioners are not de jure officers, and the writ of mandamus will not be granted to reinstate a person to an office who is not a de jure officer. Second, after quoting section 12 of the Fire and Police Commissioners' Act, the court further stated that the section does not obviate the necessity of an ordinance creating a fire department and designating the number of members thereof to make operative the provisions of the act, and constitute the members de jure officers.

Section 12 of the act was amended in 1937 by adding a paragraph thereto, as follows: “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.St.1939, Chap. 24, Par. 854. In 1941 the act was again amended, Smith-Hurd's Illinois Statute, Chapter 24, § 14--11, as follows: “All officers and members of either the fire or police department of any municipality holding their positions by virtue of one of the methods specified in paragraph 1 of this section, are city officers and shall be entitled to the protection afforded by this article.” The act was amended in other particulars, but did not take effect until January 1, 1942.

Pertaining to that part of the statement referring to the necessity of creating a fire department and “designating the number of members” of the fire department, it should be stated that an ordinance of the City of Peoria, passed in 1910, fixed the number of the members of the fire department of the city. Attention is called to ordinances of the city. In 1910 an ordinance was enacted providing as follows: “Fire Department Created. There is hereby established an executive department of the municipal government of the City of Peoria, which shall be known as the Fire Department, and shall embrace one Fire Marshal, two Assistant Fire Marshals and such number of engineers, firemen, pipemen, drivers, truckmen and other employees as the City Council may, from time to time, by ordinance or resolution provide.” Par. 786, chap. 22 of the Ordinances of the City of Peoria. Paragraph 817 was also included in 1910 in said chapter 22, as follows: “Firemen--Appointment. There shall be appointed Eighty-one firemen, who shall occupy such positions as may be designated by the Fire Marshal. Each fireman shall receive as compensation for his services the sum of eight hundred and forty dollars per year, payable in equal weekly installments upon the regular pay days established by the City Council.”

On November 5, 1940, a new Municipal Code was adopted by the City of Peoria. The provisions of the Code relative to the fire department of the city are set forth in the brief and argument of the petitioners. That these provisions of the ordinance establish and create a fire department of the City of Peoria can not be doubted. They prescribed the duties of the fire department and the fire marshal; grant authority to the fire marshal, or any subordinate in command at a fire, if such action is necessary to prevent the spread of fire or the public safety requires it, authority to demolish property at a fire. Other provisions of the Code are inconsistent with the idea that the City of Peoria has not created a fire department. The City of Peoria by ordinance has established a fire department.

There is no ordinance of the City of Peoria creating the office of city fireman. See, Krawiec v. Industrial Com., 372 Ill. 560, 25 N.E.2d 27;City of Metropolis v. Industrial Comm., 339 Ill. 141, 171 N.E. 167. The Fire and Police Commissioners' Act provides that the commission shall appoint all officers and members of the fire and police department. The appointments of the petitioners by the commission is not denied. Three of the petitioners were appointed members of the fire department on September 1, 1937, and the other, on October 1, 1939, and they served on the fire department from the date of their appointments until July 5, 1941, when they were discharged by the commission contrary to the provisions of the Fire and Police Commissioners' Act. Reed et al. v. Board of Fire and Police Commissioners et al., 316 Ill.App. 114,43 N.E. 849. During the time of service of the petitioners, the city council of Peoria appropriated money to pay the salaries of the members of its fire department, and the petitioners received salaries as city firemen.

The allegations of the petition for the writ of mandamus need not be stated in detail. It asks for the writ to reinstate the petitioners to their positions on the fire department of the City of Peoria. The petition also alleges that under section 12 of the Fire and Police...