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Beard v. Bd. of Fire & Police Comm'rs

AUGUST 8, 1974.

WILBERT BEARD, PLAINTIFF-APPELLANT,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF CAIRO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Alexander County; the Hon. DOROTHY W. SPOMER, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

This is an appeal under section 13 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 276) of an order of the Board of Police and Fire Commissioners of the City of Cairo, dated November 4, 1970, which found appellant, Wilbert Beard, guilty of refusal to obey the orders of City Commissioner Meisenheimer and imposed a 30-day suspension without pay. The Board found the evidence insufficient to sustain a related charge of insubordination and dismissed that charge. The decision of the Board was affirmed by the Circuit Court of Alexander County on December 18, 1972.

Since there is no contention that the decision of the Board is contrary to the manifest weight of the evidence, the sole question on review is whether under the commission form of government the commissioner of public property (to whom the Police Department is assigned) is authorized, in the absence of a chief of police, to issue direct orders to senior officers on matters involving police expertise and experience.

The facts, which are undisputed, are as follows: Prior to September 26, 1970, the Cairo chief of police had resigned and the senior officer, Captain Abell, had been hospitalized. While no acting chief of police was formally appointed, the apparent understanding among the sergeants who were next in seniority was that they would each have charge of their respective shifts. On September 26, 1970, City Commissioner Meisenheimer verbally ordered the sergeants on duty to have officers on the street in the downtown business district where picketing was anticipated that afternoon. The appellant was in charge of the 2-to-10 P.M. shift that day. When the commissioner went downtown that afternoon to observe the picketing, he found that the order had not been complied with and that police officers were sitting in their cars near the site of the picketing.

To clarify the situation, the city commissioner held discussions with senior officers to reiterate his policy of having policemen "walking the streets" in case of picketing. The appellant expressed his disagreement with this policy in a private meeting on the subject. On the morning of October 3, the city commissioner caused to be posted on the bulletinboard written but unsigned orders to this effect as picketing was anticipated that day. He instructed another sergeant to make sure appellant took note of the order.

The city commissioner went downtown that afternoon upon being informed that picketing was in progress and that officers had remained in their patrol cars. Appellant refused to place officers on the street after being ordered by the city commissioner. However, there is evidence that after the commissioner left to confer with the mayor, he (appellant) did in fact place officers on the street, ostensibly under the command of the city commissioner.

Appellant contends principally that the commissioner had no authority to issue or enforce his order because he was not a "superior officer" within the meaning of Rule 22 of the Rules and Regulations of the Cairo Police Department (hereinafter referred to as "Rules") which requires obedience to orders of "superior officers."

At the outset it should be noted that none of the statutory or judicial authority cited by either party is dispositive on his issue. However, there are indications in the cited authority as to the probable and proper scope of the commissioner's powers.

Rule 22 provides that:

"Policemen are to obey strictly and execute promptly and in good faith the orders of their superior officers.

`Superior officer' is defined in section 1 of the Rules as: * * * an officer having supervision either temporarily or permanently over officers of lower rank."

Appellant contends that to be a superior officer the commissioner must first be shown to be an officer, which he cannot be because he is an elected official with no police training. The term "officer" is not defined in the Rules. Appellant, however, offers two statutory definitions which, it is argued, exclude the commissioner from the status of officer. The act governing rules of statutory construction (Ill. Rev. Stat. 1969, ch. 131, sec. 1.20) provides as follows:

"`General superintendent of police,' * * * `chief of police,' * * * `city marshal,' * * * mean `policemen employed in the service of a municipality' * * * who are or shall hereafter be appointed and sworn as policemen."

Appellant contends the commissioner does not fall within this formulation because he is not "employed in the service of a municipality" and ...


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