Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Judgment reversed and cause remanded
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 25, 1960.
The order from which this appeal was taken was entered on October 7, 1957, directing that a peremptory writ of mandamus issue forthwith to George L. Ramsey, respondent, Commissioner of Buildings of the City of Chicago, to appoint the relator, William F. Thornton, Assistant Chief of Inspections in the Building Department of the City of Chicago, as of August 9, 1957. The order also sustained plaintiff-relator's motion to strike certain portions of defendant's answer. The complaint for mandamus was filed by the relator on August 13, 1957. The respondent made a motion to strike the complaint, which was denied by the court and respondent directed to answer. Thereafter respondent filed his answer, which was the basis of the motion to strike. The order itself does not specify that portion of the answer which was stricken. The notice of motion to strike referred to Paragraph 3 of the answer. The motion itself spoke only of "particularly those portions which seek to plead another cause of action pending before the Civil Service Commission of the City of Chicago." It appears that within this double reference of the notice of the motion and the motion is contained all of the allegations of fact which were stricken by the order of the court. The order, which merely stated "that the plaintiff's motion to strike would be sustained," was necessarily predicated upon the allegations of fact in the pleadings and the motions. There was no evidence taken before the court below.
We therefore consider the facts set forth in those pleadings.
From on or about August 16, 1954, the relator, hereinafter referred to as Thornton, had been employed as a Building Inspector by the Department of Buildings of the City of Chicago, working under the jurisdiction of the respondent, hereinafter referred to as Ramsey.
On July 9, 1957, Ramsey as Commissioner of Buildings of the City of Chicago filed charges against Thornton as a Building Inspector before the Civil Service Commission, in which he charged that Thornton "was guilty of conduct unbecoming an employee of the City of Chicago," in that, while he was an employee as Building Inspector, he had been engaged in another business or vocation in violation of a certain section of the Municipal Code of Chicago, which required "every employee in the Department of Buildings shall devote all of his efforts to such employment and shall not be engaged in other business or vocation."
On July 9, 1957, Thornton was notified that charges had been filed against him before the Civil Service Commission for his removal as Building Inspector, and that the Commission had ordered a trial date.
On the trial date, July 17, 1957, Thornton appeared before the Civil Service Commission by counsel, and his case was continued again until September 18, 1957.
Previous to August 2, 1957, Ramsey requested a certification from the Civil Service Commission of the City of Chicago of a person qualified to fill a vacancy in the Building Department of the City of Chicago as Assistant Chief of Inspections. Ramsey was Commissioner of Buildings and as such was the executive head of that Department.
On August 2, 1957, the Civil Service Commission addressed a notice to Thornton, stating that his name had been reached for certification and appointment to the position of Assistant Chief of Inspections in the Building Department and directed him to report to the medical examiner.
On August 9, 1957, the medical examining physician of the Civil Service Commission and the Secretary made a report that William F. Thornton had been medically and physically examined and found fit for certification to the position of Assistant Chief of Inspections in the Building Department of the City of Chicago.
On that same day Ramsey refused to appoint Thornton to that position.
On August 12, 1957, Thornton served a written demand on Ramsey, demanding his appointment as Assistant Chief of Inspections in the ...