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Towers v. Schull

OPINION FILED OCTOBER 19, 1954.

JOHN A. TOWERS, PETITIONER-APPELLANT,

v.

B.H. SCHULL, DIRECTOR OF DEPARTMENT OF MINES AND MINERALS OF STATE OF ILLINOIS, RESPONDENT-APPELLEE.



Appeal by petitioner from the Circuit Court of Sangamon county; the Hon. CLEM SMITH, Judge, presiding. Heard in this court at the October term, 1954. Judgment affirmed. Opinion filed October 19, 1954. Released for publication November 4, 1954.

MR. JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.

John A. Towers, petitioner, was appointed a state mine inspector in 1948. On August 25, 1953 respondent B.H. Schull, Director of the Department of Mines and Minerals of the State of Illinois filed with the Mining Board of which, by statute, he is a member, a statement charging petitioner with certain alleged violations of the Coal Mining Act and departmental regulations, which statement was served on petitioner. On September 15, 1953, respondent, by letter, discharged petitioner and on September 18 petitioner replied asking for a hearing before the Mining Board. On September 23 petitioner was notified by letter that he might appear before that Board on October 8. On October 5 petitioner was notified that the Board meeting had been postponed until October 26, 1953.

On October 7, 1953 petitioner filed a petition in the circuit court of Sangamon county for a common-law writ of certiorari to review and reverse respondent's order of dismissal, and on the same day, by order of that court the writ issued directing respondent to certify to the court a record of the proceedings in the matter before October 21st. On October 14 respondent filed a motion to quash the writ together with a return to the writ which set forth a record of all relevant matters in the case. Petitioner thereupon filed his motion to quash the return. On October 26, 1953 the circuit court denied petitioner's motion and sustained respondent's motion. Petitioner has appealed to this court.

State mine inspectors are appointed by the Mining Board for an indefinite term. (Ill. Rev. Stats. 1953, ch. 93, par. 4.03 [Jones Ill. Stats. Ann. 82.204(3)].) The statute also provides that they may be removed by proceedings initiated by aggrieved miners or mine operators (Ill. Rev. Stats. 1953, ch. 93, par. 4.24 [Jones Ill. Stats. Ann. 82.204(24)]) and plaintiff contends that this method is exclusive. We do not agree.

It has been held that "where an office is filled by appointment and a definite term is not fixed by constitutional or statutory provision the office is held at the pleasure of the appointing power and the incumbent may be removed at any time." Quernheim v. Asselmeier, 296 Ill. 494, at p. 498, 129 N.E. 828; Morgan v. County of Du Page, 371 Ill. 53, 20 N.E.2d 40; Anderson v. City of Jacksonville, 380 Ill. 44, 41 N.E.2d 956; People v. City of Chicago, 374 Ill. 157, 28 N.E.2d 93. See also Corpus Juris Secundum, Vol. 67, p. 244. If paragraph 4.24 was the only method of removing a mine inspector it would mean that he would be removable only for causes obvious to miners or mine operators. It would be impossible for the Mining Board or its executive director, charged with the responsibility of enforcing the rules and regulations of such board adopted under legislative authority, to remove an inspector for violation of the Mining Act or such regulations. We do not believe the legislature intended this result.

The history of the Mining Act supports this interpretation and shows that the present intent of the legislature was not to restrict the power of the Mining Board to discharge its employees.

Section 14 of an Act entitled, "An act to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein," in force July 1, 1899 (Session Laws 1899, p. 300) provided: "Upon a petition signed by not less than three coal operators, or ten coal miners, setting forth that any State Inspector of Mines neglects his duties, or that he is incompetent, or that he is guilty of malfeasance in office, or guilty of any act tending to the injury of miners or operators of mines, it will be lawful for the commissioners of labor of this State to issue a citation to the said inspector to appear, at not less than fifteen days' notice on a day fixed, before them, when the said commissioners shall proceed to inquire into and investigate the allegations of the petitioners; and if the said commissioners find that the said inspector is neglectful of his duty, or that he is incompetent to perform the duties of said office, or that he is guilty of malfeasance in office, or guilty of any act tending to the injury of miners or operators of mines, the said commissioners shall declare the office of inspector of the said district vacant, and a properly qualified person shall be duly appointed, in the manner provided for in this act, to fill said vacancy."

In 1911 the Act was revised, and the above section with minor changes not here important, appeared as sec. 3(h) of ch. 93, Hurd's Revised Statutes 1912.

As of July 1, 1949, sec. 3(h) read as follows: "Upon a petition signed by not less than three coal operators, or ten coal miners, setting forth that any state inspector of mines neglects his duties, or that he is incompetent, or that he is guilty of malfeasance, or guilty of any act tending to the unlawful injury of miners or operators of mines, it shall be the duty of the Department to issue a citation to the inspector to appear before it within a period of fifteen days on a day fixed for said hearing, when the Department shall investigate the allegations of the petitioners; and if the Department shall find that the inspector is neglectful of his duty or is incompetent or that he is guilty of malfeasance or guilty of any act tending to the injury of miners or operators of mines, the Department shall declare the position of said inspector vacant, and a properly qualified person shall be duly appointed, in the manner provided for in this Act, to fill said vacancy." (Ill. Rev. Stats., ch. 93, par. 3(h).)

In 1951 the legislature again amended this section to provide as follows: "Upon a petition signed by not less than three coal operators or ten coal miners, or by the Department, charging any state inspector of mines with neglect of duty, incompetency, malfeasance or guilt of any act tending to the unlawful injury of miners or operators of mines, it shall be the duty of the Department to hold a public hearing within 15 days to determine the validity of charges. The inspector shall be given notice of the hearing and shall have the right to counsel and to call witnesses on his own behalf at the hearing. If the Department shall find that the inspector is neglectful of his duty, incompetent, guilty of malfeasance or guilty of any act tending to the injury of miners or operators of mines, the Department shall declare the position of the inspector vacant, and a properly qualified person shall be duly appointed, in the manner provided for in this Act, to fill the vacancy. Inspectors shall be removed only in accordance with the provisions of this subsection." (Ill. Rev. Stats. 1951, ch. 93, par. 3(h).)

The 1951 amendment made a substantial change in this subsection. For the first time the Department of Mines and Minerals was required to file a petition to set in motion a proceeding to remove a state inspector of mines.

The legislature by an act effective July 1, 1953 passed the present Act known and cited as "The Coal Mining Act" and repealed the prior legislation on that subject (secs. 1.01 to 37.05, ch. 93, Ill. Rev. Stats. 1953 [Jones Ill. Stats. Ann. 82.201(1)-82.237(5)]).

Section 4.24 thereof, in effect at the time of petitioner's discharge, provides: "Upon a petition signed by not less than three coal operators, or 10 coal miners, setting forth that any State Mine Inspector neglects his duties, or that he is incompetent, or that he is guilty of malfeasance, or guilty of any act tending to the unlawful injury of miners or operators of mines, the Mining Board shall issue a citation to the State Mine Inspector to appear before it within a period of 15 days on a day fixed for a hearing, when the Mining Board shall investigate the allegations of the petitioners. If the Mining Board finds that the State Mine Inspector has neglected his duty or is incompetent or that he is guilty of malfeasance or guilty of any act tending to the injury of miners or operators of mines, the Mining Board shall declare the position of said State Mine Inspector vacant, and a properly qualified person shall be duly appointed, in the manner provided for in this Act, to fill the vacancy."

This Act has removed the limitation placed upon the Mining Board to discharge a State Mine Inspector ...


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