Stott v. City of Chicago

• Decision Date: 26 October 1903
• Citation: 68 N.E. 736,205 Ill. 281
• Parties: STOTT v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

205 Ill. 281

68 N.E. 736

STOTT

v.CITY OF CHICAGO et al. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Petition by J. A. Stott against the city of Chicago and others for a writ of mandamus requiring defendants to place petitioner's name upon the police pay rolls. From a judgment of the Appellate Court (98 Ill. App. 105) affirming a judgment dismissing the petition, petitioner appeals. Affirmed.W. B. Black and A. B. Chilcoat, for appellant.

Charles M. Walker, Corp. Counsel, and Roswell B. Mason, Asst. Corp. Counsel, for appellees.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county dismissing the petition of appellant praying for a writ of mandamus to the city of Chicago, the mayor and superintendent of police thereof, respectively, commanding them to place petitioner's name upon the police pay rolls of said city of Chicago, to the end that petitioner might draw the pay of a police patrolman.

On the 20th day of June, 1900, appellant filed his petition in the superior court of Cook county, in which it is alleged that the city of Chicago is organized under the general law relating to cities and villages; that Carter H. Harrison is, and ever since the month of April has been, the mayor of said city; that from the 18th day of April, 1881, there has been, and still is, ‘an executive department’ of the municipal government of said city of Chicago, 'known as the department of police, which department was created by an ordinance of said city of Chicago, and by which ordinance said executive department was made to, and does, embrace the superintendent of police and secretary to said superintendent, one captain of police for each police district, and such number of lieutenants, detectives, sergeants, and police patrolmen as has been or may be prescribed by ordinance'; that by the ordinance creating said department there was created the office of superintendent of police, which by the provisions of said ordinance was to be filled by appointment by the mayor of said city, by and with the advice and consent of the city council of said city, on the first Monday of May, 1881, and biannually thereafter; that Joseph Kipley was on the first Monday of May, 1879, duly appointed by the mayor of said city as such superintendent, and by reappointment has continued to be, and still is, such superintendent; that, on the 1st day of December, 1890, petitioner was a citizen of the United States above the age of twenty-one years, and for more than two years had been a continuous resident of the city of Chicago, and was then a qualified elector of said city; that he had never been a defaulter to the said city; that in the month of December, 1890, said petitionerwas duly appointed to the office of police patrolman in the said department of police in said city, and thereupon took the oath of office prescribed for such policemen to take, and at once entered upon his official duties as such police officer, and has held said office of police patrolman from thence hitherto; that petitioner still is a police patrolman of the city of Chicago, duly appointed and qualified, and entitled to all the rights and privileges of said office; that petitioner took the prescribed civil service examination, which he passed as duly qualified for said office; that by reason of such examination and prior military service petitioner was entitled ‘to stand at the head of eligibles for appointment upon the police force of said city’; that on March 14, 1898, the superintendent of police of said city ‘arbitrarily, wrongfully, and without legal excuse’ caused petitioner's name to be dropped from the police pay roll, and that by reason thereof petitioner has since been unable to obtain payment of his salary as a police patrolman; that defendants, or some of them, claim that said action of the police superintendent was tantamount to a discharge of petitioner as a police patrolman, which the petitioner denies; that no charges were ever preferred against petitioner, no trial had, no report to the city council of such discharge by the mayor, nor were any reasons presented therefor by said mayor or other person; that for nearly three years prior to March 14, 1898, petitioner was, from month to month, duly certified by the civil service commission upon the police pay rolls of said city as a patrolman entitled to pay, and payment was made from month to month; that various appropriations had been made for the payment of police patrolmen, including petitioner.

Pleas were filed, to which demurrers were sustained as to all except the third. Demurrer to the third plea was overruled, and petitioner elected to stand by his demurrer, on which judgment was rendered dismissing the petition. The sufficiency of both the petition and the plea are, under the pleadings, presented for consideration.

The principal averments of said plea were that the petitioner had not been a police patrolman of the city of Chicago since March 14, 1898; that on that date petitioner was ‘discharged by Joseph Kipley, superintendent of police of said city of Chicago, by and with the concurrence and assent of the said Carter H. Harrison, mayor of said city of Chicago, and the civil service commission of said city of Chicago’; that he was discharged for the good of the service, and in the judgment of his superior officers he was an inefficient officer, and because of the insufficiency of appropriations for the payment of the salaries of police patrolmen the discharge of some of them was necessary. The order under which it is claimed petitioner was discharged is as follows: ‘City of Chicago, Department of Police. Joseph Kipley, Chief of Police. General order No. 10. All patrolmen of the 21st, 22d, 23d, 24th, 27th, 28th, 29th and 30th precincts of the third division, not certified for appointment by the civil service commission, are hereby discharged from the force, to take effect at 5 p. m. this date. All patrolmen affected by the above order will report at the office of the civil service commission for certification, in the following order: 21st, 22d, 23d, 24th, 25th precincts at 5 p. m.; 27th, 28th, 29th and 30th precincts at 6 p. m. Joseph Kipley, General Superintendent.’ It is further averred that sections 1481 and 1482 of the Revised Code of Chicago, passed April 8, 1897, were in force March 14, 1898, and were as follows:

‘Sec. 1481. The superintendent shall have the management and control of all matters relating to the department, its officers and members.

‘Sec. 1482. Said superintendent shall have power to remove from the police force any police patrolman, and with the concurrence of the mayor he may remove or reduce in rank any officer or member of said department.’

It is further averred that by the word ‘superintendent,’ contained in said sections, is meant the superintendent of police of the city of Chicago; that an act of the Legislature entitled ‘An act to regulate the civil service of cities' was adopted by the city of Chicago in the prescribed method, and became in force in said city in August, 1895; that all the police patrolmen of the police department of said city are civil service employés; that if petitioner is granted a writ of mandamus restoring him to the position of police patrolman he will crowd out and displace a civil service employé duly examined, certified, and appointed.

RICKS, J. (after stating the facts).

The position assumed by appellant in this case, as we understand it from the brief and argument, is that this application or petition is for the purpose of restoring him to the pay rolls, his contention being that he is still a police patrolman of the city of Chicago, and that his pay is illegally withheld. He alleges in his petition that in 1890 he was appointed to the office of police patrolman, and served in that capacity and received his compensation thence to the 14th day of March, 1898, when, as he contends, without lawful authority, his name was dropped from the pay roll. He alleges further that the defendants claim that he was removed from office, but this he denies, and asserts that at that time the civil service act was in operation in the city of Chicago, and that he could not be removed from office except in compliance with that act, and that the plea interposed does not sufficiently show that he was removed in the manner pointed out by that act, and that, if that act be held not applicable to his case, then he could only be removed from office by the mayor, who was required by the statute to report his removal to the city council for its action, and if the city council should, by a two-thirds vote of all its members authorized by law to be elected, by yeas and nays disapprove of such removal, he would thereby become restored to his office; that the plea fails to aver sufficiently that he was removed by the mayor, or that the mayor ever reported his removal to the city council; and that, therefore, in any event, his removal became ineffectual.

The writ of mandamus, though no longer a prerogative writ, only becomes a writ of right when it shows upon its face that the petitioner has a clear right to the relief he seeks. Swift v. Klein, 163 Ill. 269, 45 N. E. 219. According to appellant's own contention, the main purpose of his application for the writ is to entitle him to receive or enforce the payment of his compensation. Although, as between himself and the public, he may be a de facto officer, and his official acts be given the force and virtue of the acts of an officer de jure, yet when the case is the assertion of his individual right, based upon his official character, he is required to show that he is an officer de jure. Home Ins. Co. v. Tierney, 47 Ill. App. 600;People ex rel. v. Weber, 86 Ill. 283;Same v. Same, 89 Ill. 347;People v. Tierman, 30 Barb. 193;People v. Hopson, 1 Denio, 574. In People ex rel. v. Weber, 86 Ill. 283, it is said: ...