199 N.E. 810 | Ill. | 1935
Edward Behnke, appellee, filed an amended petition in the circuit court of Cook county for a writ of mandamus to compel his re-instatement as food inspector in the State Department of Agriculture and for salary due after he was laid off. Walter W. McLaughlin, Director of the Department of Agriculture, and others, as defendants, interposed demurrers to the petition, which were overruled. Defendants elected to stand by their demurrers and judgment was entered in accordance with the prayer of the petition. The case comes here on direct appeal because the State is an interested party, the payment being sought out of State funds.
Behnke, a civil service employee, was laid off from his position, effective March 11, 1933, in a letter he received from the director of Agriculture. The letter in part recited: "The reason for abolishing this position is that the territory previously covered by Mr. Behnke has been consolidated with other territories and the work will be handled by these other food inspectors; further, such position is unnecessary for reasons of economy and reduction of expenses in the conduct of the affairs of the Division of Foods and Dairies." On March 13 Behnke protested by letter against the lay-off, then writing that he "believes that he has been discriminated against as 'these other food inspectors' referred to in said notice of lay-off, have been appointed to the position later than he, and that he has priority rights to said position." On May 30 Behnke personally demanded of the director that he be re-instated. A similar demand was also made on the State Civil Service Commission, and both demands were futile. On June 7 Behnke was prepared to file his petition for a writ of mandamus, *276 but on the request of the Civil Service Commission he refrained from filing it and instead petitioned the commission under section 14 of the Civil Service act, (Smith's Stat. 1935, chap. 24 1/2, p. 722; Ill. State Bar Stat. 1935, chap. 126a, p. 2988;) for an investigation of his alleged illegal ousting, claiming that the lay-off was not an act of good faith. The Civil Service Commission did not proceed to conduct the investigation upon its own motion. Behnke thereafter filed his petition for the writ of mandamus in August. However, he did not file a written statement with the Civil Service Commission, under section 12 of the Civil Service act, within five days following his discharge and ask for a hearing under that section. He has admitted in his brief that such action would have been futile, as he was not laid off because of political, racial or religious reasons.
Behnke charges that he was not discharged but was simply "laid off," and that the failure to re-instate him was a clear violation of section 5 of rule 7 of the Civil Service Commission, which reads: "The appointing officer in any department may reduce the number of employees by lay-off whenever it becomes necessary, through lack of funds or work. Such employees shall be placed in the order of lay-off at the head of the eligible list. All temporary employees shall be laid off first."
The failure of the commission to make the investigation upon its own motion under section 14, as promised, if Behnke would not file his original petition for the writ, has no bearing upon the case. Under section 14 Behnke had petitioned not only for an investigation of his matter but also asked the commission to re-instate him. Section 14 is the general investigation section of the Civil Service act and the re-instatement asked could not be given thereunder. (People v. Ames,
We do not find it necessary to decide in this case that Behnke possesses the right to institute mandamus proceedings under the circumstances, because his amended petition for the issuance of the writ is legally insufficient. The petitioner must show that he has a clear legal right for which mandamus is the proper remedy. (People v. Board of Review,
The judgment of the circuit court of Cook county sustaining the amended petition for the writ of mandamus is reversed.
Judgment reversed. *278