O'Neill v. Fitzsimmons

Mr. Justice Stein delivered the opinion of the court. In City of Chicago v. The People ex rel. Byrne (ante, p. 145,) we hold that the Civil Service Act was not intended to deprive a municipality of the power to abolish an office or position, if the power be exercised reasonably and in good faith and that the person who had been holding the abolished office or position was not entitled to a hearing under the clause of the act which prohibits a removal except upon written charges and a hearing thereon. The reasoning in that case leads to the same conclusion where an employee of a municipality is discharged from his position in good faith in the interest and from motives of economy, Such has been the uniform ruling of the courts of New York under a law similar to ours. People ex rel. Corrigan v. The Mayor, 149 N. Y. 215; Phillips v. Mayor, 88 N. Y. 245; Langdon v. Mayor, 92 N.Y. 428; Lethbridge v.Mayor, 133 N. Y. 232; McNamara v. Mayor, 152 N.Y. 228. Counsel for appellee does not dispute the proposition that an employee may be discharged for lack of funds, but contends that appellee was not discharged in good faith. There is little if any conflict in the proof. Appellant, as chief of police of the city of Chicago, was notified by its comptroller 16 that there was just so much money available,” that he “ would have to exercise economy,” that the appropriation requested by him wa's too large and could not possibly be made by the city council, that he would have to modify his original estimates, and to exercise his judgment where economy could be practiced with the least detriment to the service. Acting upon the suggestions of the comptroller and believing that the superintendent of construction could successfully fill appellee’s position in addition to his other duties, appellant did not ask for an appropriation to pay appellee, and no appropriation was made. Appellee as foreman of the repair shop had under him twenty-one men, to wit, ¡,three blacksmiths, three helpers, three woodworkers, two carpenters, three harness makers, four painters and three laborers. During the first one or two weeks after appellee’s discharge Eeid, one of the men under him, took his place, and from that time until the trial (not quite ten months) William J. Eay, one of the four painters, acted as foreman and performed the same duties that appellee had formerly, and did nothing else. Do additional men were employed in the shop after appellee’s discharge. He had been paid for his services $100 a month, and Ray $52.50 a month. Ray’s pay remained the same after taking appellee’s place. There was thus a clear saving of $100 a month. Upon the foregoing facts and in view of appellee’s admission that he did not charge appellant with “ moral turpitude,” we are of opinion that the latter in discharging the former for want of an appropriation was acting in good faith and from motives of economy, and - was not seeking to . circumvent or evade the provisions of the Civil Service Act. True, there were nine men in the repair shop who were not appropriated for, eight of whom remained in the service notwithstanding. But appellant explains this by his testimony that where a position (like appellee’s) was filled by one man only, and no appropriation was made, the one man was discharged; but where there was a group of men filling the same position and only part of them were appropriated for, appellant kept them all at work on what he called “ the vacation principle,” that is to say, an order for enforced vacation. The fact that some three months after appellee’s "dismissal appellant received from the city authorities a considerable sum of money and paid the men for the lost time does not shed any light on what his motives were at the time he notified appellee and two others in the same situation that they were “ dropped from the rolls.” Appellant testifies that he did not in one single instance depart from the rule whereby he discriminated between a position held by one man only and a position held by several; and there is no proof to the contrary. There is also a total lack of proof tending to show any animus or feeling of dislike or hostility on the part of appellant toward appellee. As held in City of Chicago v. The People, supra, the alleged violations of the Civil Service law in taking Ray from his work as g, painter and giving him the position of foreman are matters in which appellee may be interested as a citizen, but not as petitioner in a mandamus proceeding. If the city or any of its officers have been violating the law in this respect, appellee is not the proper party to raise the question, nor is this the proper proceeding to consider it. It may be (although we do not so decide) that .under the operation of the Civil Service law and the rules of the commission appointed in pursuance thereof appellee will be entitled to be restored to his position when a new appropriation is made therefor. The order of mandamus will be reversed with a finding of facts. Reversed.