Charles H. Gersch, Plaintiff in Error, vs. The City of Chicago et al. Defendants in Error.
Opinion filed June 20, 1911.
1. Offices—there is no statute in force creating the office of police patrolman in Chicago. The office of police patrolman in Chicago was not created by the city’s special charter nor preserved when the city adopted the Cities and Villages act, and there is now no statute in force creating such office. (Bullis v. City of Chicago, 235 Ill. 472, adhered to.)
2. Mandamus—when existence of ordinance creating office is essential to suit. The existence of an ordinance creating the office of police patrolman is essential to the maintenance of a mandamus suit to compel the placing of petitioner’s name upon the roster of police patrolman of Chicago and upon the pay-roll and to certify his name for payment of salary as such police patrolman.
3. Courts—it is for the legislature, and not the courts, to correct defects in the law. The fact that there may be a defect in the law in regard to the method provided by the Cities and Villages act for creating offices and filling them, and therefore, by reason of such defect, an inconsistency between such act and the Civil Service act, does not authorize the courts to usurp the functions of the legislature, in correcting such defect or inconsistency.
Writ of Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.
On February 15, 1911, the plaintiff in error filed a petition in the superior court of Cook county praying for a writ of mandamus to place his name upon the roster of police patrolmen of the city of Chicago and upon the payroll and to certify his name for payment of his salary as such police patrolman. A demurrer was sustained to the petition, and the petitioner having elected to stand by it, the petition was dismissed at his costs. The petitioner has sued out a writ of error from this court to review the judgment on the ground that by it his right to share in the police pension fund is abridged, in violation of the four*552teenth amendment to the constitution of the United States and of section 2 of article 2 of the constitution of this State.
The petition sets out very fully the provisions of the charter of the city of Chicago of 1863 in regard to the police department, the amendment thereof and a number of ordinances of the city upon the subject of the police; the adoption by the city of the Cities and Villages act on April 23, 1875 1 the passage on June 28, 1875, of an ordinance for the re-organization of the police department, and on April 13, 1881, of another ordinance on that*subject; the adoption on March 25, 1895, of the City Civil Service act by the voters of the city and its going into effect on July 1, 1895. All these facts are alleged as they appeared in the case of Bullis v. City of Chicago, 235 Ill. 472. The petition also alleges the appointment of a board of civil service commissioners, and their adoption of rules and classification of the offices and places of employment in the city. It is then alleged that Charles H. Gersch, the plaintiff in error, was appointed to the office of police patrolman on August 17, 1876, by the general superintendent of police, took the oath of office, entered upon the performance of his duties and continued therein until wrongfully discharged; that he continued in office and was recognized as police patrolman by the mayors, superintendents of police and city councils and' no successor was appointed for him but money was appropriated for his salary, and his salary as such police patrolman was paid to him until July 1, 1893, when he was promoted to police patrol sergeant, the duties of which office he performed until June 1, 1895, when he was promoted to police desk sergeant, which office he held when the Civil Service act went into effect, July 1, 1895; that thereupon he became a member of the classified civil service of the city of Chicago and so continued as police desk sergeant until November 23, 1907, when he was wrongfully reduced to the office of police patrolman,, in which he *553served until December 2, 1910, when his name was dropped from the pay-roll by order of the superintendent of police, wrongfully and without warrant of law, without any written charges, without trial and for no alleged misconduct. During all the time from July 1, 1895, to December 2, 1910, all pay-rolls of officers and employees of the city of Chicago, including police patrolmen and sergeants in the police force, have been certified by the board of civil service. commissioners, and the plaintiff in error has been so certified and paid.
A. B. Chilcoat, for plaintiff in error.
Edward J. Brundage, Corporation Counsel, and Robert R. Jampolis, for defendants in error.
Mr. Justice Dunn
delivered the opinion of the court:
In Bullis v. City of Chicago, 235 Ill. 472, and in numerous other decisions both before and since, many, if not all, of which are cited in Preston v. City of Chicago, 246 Ill. 26, questions decisive against the contention of the plaintiff in error have been determined. At the foundation of his case lies the proposition that the office of police patrolman was created by the charter of the city of Chicago in 1863 and was not abolished when the city adopted the Cities and Villages act. The cases referred to have decided this proposition against him, and have decided that there is now in force no statute creating the office of police patrolman and that a suit of this character cannot be maintained without an ordinance creating the office. His counsel devotes himself to a vigorous argument that these cases were wrongly decided and the positions announced in them should be abandoned, but we are not convinced and it would be useless to repeat the argument. Not only does the petition fail to allege any ordinance creating such office, but counsel states in his .brief that there is no such ordinance, and *554that therefore it follows that if the court adheres to its former decisions there are no policemen, either de jure or de facto, in the city of Chicago. This may be true, and it may be true that there is a defect in the law in regard to the method authorized by the Cities and Villages act of creating offices and filling them, and an inconsistency, because of such defect, between that act and the City Civil Service act. If so, it is the province of the legislature and not the court to correct such defect or inconsistency.
Under the former decisions of the court, to which we adhere, the demurrer was properly sustained.
Judgment affirmed.