APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
A mandamus action was filed by the People of the State of Illinois on the relation of Edward Wojcik seeking relator's reinstatement to the position of Chief of Police of the Village of Harwood Heights, Illinois, and for the salary differential between the rank of Lieutenant of Police and the rank of Chief of Police from the date of relator's removal from the latter rank. The trial court upon the petition, answer and a stipulation of facts granted the writ and gave judgment for relator's costs.
Defendants appeal contending that the mayor of a municipality, subject to the Fire and Police Commissioner Act, may, in accordance with a municipal ordinance, summarily remove a chief of police without the filing of charges and the granting of a hearing, as provided for by Ill. Rev. Stat. 1969, ch. 24, par. 10-2.1-17.
In the year 1960 the Village of Harwood Heights became subject to the provisions of article X, division 2.1, of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10-2.1-1 et seq.), commonly referred to as the "Fire and Police Commissioners Act," and has been subject to the provisions of said Act at all times since.
On April 9, 1970, Mayor Majeske, with the approval of the Village Board of Trustees, appointed relator for an indefinite term to the rank of Chief of Police from his prior rank of Lieutenant of Police.
Ordinance No. 1314, "AN ORDINANCE ESTABLISHING A POLICE DEPARTMENT," was passed and approved by the President and Board of Trustees of the Village of Harwood Heights on April 6, 1971. Sections 6.003 and 6.005 of that ordinance provide as follows:
"Ordinance 1314 sec. 6.003
OFFICE OF CHIEF CREATED. There is hereby created the office of police chief. The chief shall be appointed by the president by and with the advice and consent of the board of trustees; provided, that if the person appointed chief was at the time of such promotion a member of the department he shall retain his status and rank while serving as chief and shall revert to such status and rank when his term as chief has ended."
"Ordinance 1314 sec. 6.005
DISCHARGES. No certified policeman shall be discharged from the department except after a hearing on charges before the board of fire and police commissioners as provided by law; provided, that this shall not be construed as affecting the power of the president and board of trustees to appoint and remove the chief of police."
On March 7, 1972, Mayor Majeske, with the approval of four of the six trustees of the Village, appointed one Ronald Rentner as "Acting Chief of Police of the Village of Harwood Heights," with an expiration date of April 30, 1972. Subsequent to this appointment the relator was returned to his rank of Lieutenant of Police in the police department. On May 2, 1972, Mayor Majeske appointed Ronald Rentner to the position of Chief of Police, which appointment was unanimously approved.
It was stipulated that the relator was separated from his rank as Chief of Police without the filing of charges and without being given an opportunity to be heard in his own defense under the provisions of Ill. Rev. Stat. 1969, ch. 24, par. 10-2.1-17. On March 7, 1972, and April 11, 1972, relator made a demand upon defendants for a hearing before the Board of Fire and Police Commissioners, for reinstatement, and for payment of lost salary, which demands were denied.
Defendants contend that under the proviso found in Ill. Rev. Stat. 1969, ch. 24, par. 10-2.1-4 *fn1 they have the authority to provide by ordinance for the appointment of the Chief of Police by means other than through the Board of Fire and Police Commissioners. They further argue that the power to discharge is included in the power to appoint, and that the requirements of Ill. Rev. Stat. 969, ch. 24, par. 10-2.1-17 *fn2 are thus not applicable to the Chief of Police. ...