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People v. Niewinski

APRIL 9, 1957.

PEOPLE OF STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

JOSEPH NIEWINSKI AND MARKUS SVENDSEN, PLAINTIFFS IN ERROR.



Writ of error to the Criminal Court of Cook county; the Hon. JOHN T. DEMPSEY, Judge, presiding. Judgment affirmed.

JUDGE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Joseph Niewinski and Markus Svendsen, police officers of the City of Chicago, were indicted under Section 9-92 of the Cities and Villages Act (chap. 24, par. 9-92, Ill. Rev. Stat. 1953) and tried before a jury and found guilty. They were each fined $500 and removed from their positions as officers and policemen of the city of Chicago. Motions for a new trial and arrest of judgment were overruled, and plaintiffs in error sued out this writ of error to review the judgment of the court.

The matter is submitted to this court on a stipulation entered into between the State's Attorney of Cook County and the plaintiffs in error (hereafter referred to as defendants), through their attorneys. In the stipulation appears the following paragraph:

"The sole question presented for review is the claim of the defendants that section 9-92 (chap. 24, Par. 9-92, Ill. Rev. Stats. 1953) making removal from office mandatory on a finding of guilty, can apply only to elective and appointive officers and is repugnant to section 12, (Chap. 24 1/2, Par. 51 Ill. Rev. Stats. 1953) governing removal of persons appointed under Civil Service."

The stipulation also sets out that the two defendants were originally indicted on two counts, count one charging a violation under section 208 of the Criminal Code (chap. 38, par. 449, Ill. Rev. Stat. 1953), and count two charging a violation under the Cities and Villages Act. At the conclusion of all the evidence the State's Attorney was allowed by the court to dismiss count one. Count two in substance set out that the defendants, officers and policemen of the city of Chicago, on December 28, 1953 verbally and maliciously threatened to accuse one Robert Frederickson of the crime of selling liquor to minors, with the intent of extorting from him the sum of $500, and that the defendants were guilty of malconduct.

An abstract of the evidence is also set out in the stipulation, and is to the effect that the defendant Niewinski talked to Frederickson by telephone from the tavern of which Frederickson was the manager and told him there had been a minor in the tavern, that he (Frederickson) was in serious trouble and should come down to the tavern at once and bring some money with him to straighten things out. Frederickson thereupon came to the tavern, and the defendants told him that if he paid $500 the matter would be forgotten. Frederickson said he could not get that much money and the defendants then went with Frederickson to the police station to which they were assigned. They again talked to him there, and he told them he could get $100 that night which he would give them and would pay $200 the following night. The offer was accepted. Frederickson obtained and gave them $98. The defendants failed to return for the $200 the next night. On a showup Frederickson identified the two defendants as the officers who obtained the money from him. They denied the charge.

Under the stipulation no question is here raised concerning the conduct of the trial of the defendants, nor is it disputed that they were guilty of the misdemeanor for which they were tried and convicted. There are only two questions presented to us for determination: first, Did section 9-92 of the Cities and Villages Act apply to police officers? and second, Was that portion of the section which made removal from office mandatory on a finding of guilty repugnant to section 12 of the City Civil Service Act?

Section 92, article 9, of the Cities and Villages Act (par. 9-92, chap. 24, Ill. Rev. Stat. 1953), provides:

"Every municipal officer who is guilty of a palpable omission of duty, or who is guilty of willful and corrupt oppression, malconduct, or misfeasance in the discharge of the duties of his office, shall be liable to indictment in any court of competent jurisdiction and, on conviction, shall be fined not exceeding $1,000. The court in which such conviction is had shall enter an order removing the convicted officer from office."

The defendants in their reply brief admit they were either de facto or de jure officers of the city. That being so, they fall within the scope of section 92, article 9, of the Cities and Villages Act dealing with "every municipal officer." The defendants, however, strenuously urge that notwithstanding the fact they are de facto or de jure officers they do not come within the purview of the mandatory clause of the above section since they are civil service employees, whose removal is governed by section 12 of the City Civil Service Act (par. 51, chap. 24 1/2, Ill. Rev. Stat. 1953), which provides:

". . . No officer or employee in the classified civil service of any city who shall have been appointed . . . shall be removed or discharged except for cause; upon written charges and after an opportunity to be heard in his own defense."

[2-5] It is well established law that where there is no constitutional limitation involved the legislature has complete control over all offices created by statute. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished and compensation taken away from the incumbent. Groves v. Board of Education, 367 Ill. 91. In People v. Kipley, 171 Ill. 44, in passing on the constitutionality of the Act to Regulate the Civil Service of Cities, the court discusses the philosophy underlying the enactment of such laws, and points out that their purpose is to do away with the "spoils system," to improve the efficiency of employees coming within their scope, and to establish a system under which the right to employment and promotion is determined according to merit and fitness based upon competitive examinations free to all. The court says:

"A public office is not property, nor are the prospective fees of an office the property of its incumbent. An office is a mere right to exercise a public function or employment. It is not the subject of sale, purchase or incumbrance. The term `office' implies a delegation of a portion of the sovereign power of the government to the person filling the office. Its duties are to be performed for the benefit of the public and in the public interest. (19 Am. & Eng. Ency. of Law, 381, 382)."

The court points out that the right of an incumbent in office is not based upon a contract or grant, but that such office is conferred upon him as a public trust to be exercised for the benefit of the public, and that the legislature has the power, within constitutional limitations, to control the municipalities created by it and may direct how municipal officers may be ...


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