Fish v. McGann

Mr. Presiding Justice Ball delivered the opinion of the court. The object of the demurrer in this case was to determine whether the well pleaded facts of the answer constituted grounds of defense against the issuance of the writ of mandamus. Johnson v. Roberts, 102 Ill. 658. By filing the demurrer the petitioner admitted the truth of all the material facts set up in the answer, but not the legal conclusions, if any, drawn from them by the pleader. Compher v. People, 12 Ill. 293; Greig v. Russell, 115 Ill. 488; County of Christian v. Merrigan, 191 Ill. 487. When a demurrer is overruled and the party filing it elects to stand by his demurrer, no proof of the facts alleged is necessary. By the judgment of the court upon the demurrer these facts are admitted of record. Nispel v. Laparle, 74 Ill. 308. The answer alleges that after the petitioner was laid off as a clerk in the city collector’s office in April, 1901, he was tendered a reinstatement, which he declined and refused to accept, and his waiver of such right of reinstatement was then duly accepted. The demurrer admits the truth of this statement, the legal effect of which was to sever his relations with the city, and thereby, by his voluntary act, to strip from him all advantages, if any, arising from his prior employment by the city as a clerk under the civil service rules. The answer further alleges that the petitioner, after passing a civil service examination, was appointed chief clerk in the comptroller’s office February 13, 1902; that on March 31, 1902, finding the-petitioner incompetent and disqualified for the performance of that position, the respondent discharged him, and so certified in writing to said commission, giving his reasons for so doing, and that said .discharge was consented to and approved by said commission April 4, 1902, and said petitioner was duly notified of his discharge upon the following day by said commission. From this allegation it appears that the petitioner had been in the employ of said city under the civil service rules but fifty-one days when finally discharged. Section 1 of rule 6 of the civil service rules provides that appointees thereunder shall be on probation for a period of six months. At the end of that time the appointment shall be deemed complete. The appointing officer, if he will, may end this probation term, after two, months’ service, by certifying such completion to the commission. The reading of this section shows that the appointee is not “in” until that probation term has expired by lapse of time, or is cut short by the certificate of the appointing officer; and he is therefore not entitled to the right of a hearing upon written charges before he can be discharged. Such a probationer comes under the rule that if, in the interim, upon fair trial, he be found incompetent or disqualified for the performance of the duties of the position he is filling, the appointing officer shall certify the same in writing to the commission, and, if that body approve, the probationer shall be dropped from the service. A strict compliance with this rule upon the part of the respondent is set up in the answer. The demurrer admits its truth. In our opinion the petitioner was lawfully discharged from the service, and therefore he has no legal ground of complaint. For some reason not known to us, we have not been favored with a brief for the respondent. If counsel knew how much our labors are lessened by hearing “ the other side,” they would not neglect this plain duty. The judgment of the Circuit Court is affirmed.