Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Adams County,
the Hon. Richard F. Scholz, Jr., Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On February 28, 1978, the plaintiff, Rosemarie S. Walter, brought this action for a writ of mandamus asking for reinstatement of her tenured teaching position with defendant, the board of education of Quincy School District No. 172, and asking for damages in the nature of back pay from the time of her dismissal. The circuit court of Adams County entered judgment for the defendant board of education. Notice of appeal was filed on August 20, 1980, but before the appellate court could hear the case, the plaintiff died in an automobile accident. The executor of plaintiff's estate filed a suggestion of death and motion for substitution of parties with the appellate court. A divided appellate court denied the motion, finding that the plaintiff's mandamus action abated with the plaintiff's death. 95 Ill. App.3d 313.
The executor filed with this court a petition for leave to appeal along with a renewed motion for substitution of the estate of Rosemarie Walter as plaintiff in this action. We granted the executor's petition for leave to appeal (73 Ill.2d R. 315).
The issues before this court are threefold: first, whether the damages portion of the plaintiff's mandamus action survives the plaintiff's death; second, if not, whether the executor should be allowed to amend the complaint; and third, if the damages portion of the mandamus action survives, whether the board of education failed to tender Rosemarie Walter a teaching position that the board was legally obligated to offer.
A writ of mandamus is issued as an exercise of judicial discretion only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. (White v. Board of Appeals (1970), 45 Ill.2d 378; La Salle National Bank v. Village of Riverdale (1959), 16 Ill.2d 151.) Where an administrative officer or board has arbitrarily failed to act, mandamus will lie to compel that officer or board to perform a duty which the plaintiff is entitled to have performed. Taylor v. State Board of Education (1978), 56 Ill. App.3d 387.
The majority of the appellate court stated that it felt "bound" by our decision in People ex rel. McPherson v. Western Life Indemnity Co. (1914), 261 Ill. 513, and concluded that the request for damages in the petition for mandamus was incidental to the request for reinstatement and therefore abated when the plaintiff died.
In People ex rel. McPherson v. Western Life Indemnity Co. (1914), 261 Ill. 513, John McPherson filed a petition for mandamus to compel the Western Life Indemnity Company to accept certain payments upon a life insurance policy issued by Western Life as premium payments. The petitioner wanted his membership restored and an order issued that the policy be maintained provided that the monetary payments were being made. McPherson won at trial and Western Life appealed. As the case was being appealed, the petitioner died.
The court in McPherson recognized that the mandamus action brought was an entirely personal one; mandamus was not referred to in the now-repealed statute on abatement (Hurd's Ill. Rev. Stat. 1903, ch. 1, pars. 1 through 26) as one that would survive; and there was no provision in the mandamus statute that provided for survival of the action upon the death of the petitioner.
After concluding that death operated as an abatement, the court went on to say: "In this case the main object of issuing the writ was to compel the appellants to restore the petitioner to membership in said insurance company and to keep and treat his policy or contract of insurance in force during his life. It is conceded by counsel for appellee that the only part of the prayer of the petition that could now be enforced would be to compel the appellants to accept and apply on the policy the payments of premium tendered to them before the death of McPherson. The acceptance of this money was a mere incident to restoring the original relator to his membership in the said insurance company and treating his policy as in force." 261 Ill. 513, 516.) What the appellees in McPherson requested was for the court to require acceptance of the premium payments so that the insurance would be reinstated and therefore effective at the time of the petitioner's death.
The plaintiff in the instant case, in filing the complaint for mandamus asked that the trial court declare her dismissal as a tenured teacher to be in violation of section 24-12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-12). The complaint sought reinstatement, "any and all actual and compensatory losses and damages" that arose out of the plaintiff's dismissal, and $10,000 in punitive damages.
The facts of this case are significantly different from McPherson v. Western Life Indemnity Co. McPherson does not control the outcome here. If the plaintiff had succeeded on the merits of her argument concerning the alleged failure on the part of the board of education to rehire her, compensatory damages for discharge could have been awarded in the amount of the salary she would have received from the time that the board failed to reemploy her until she would have been reinstated. Those damages which amount to a claim for back salary are not a mere incident to the complaint for reinstatement but constitute a separate claim that was properly brought as part of this mandamus action.
It is clear that while mandamus will not lie when the only claim asserted is for a breach of contract, an action for mandamus is appropriate when reinstatement is sought; and a claim for back salary can be brought as part of the action. Both claims are linked to one another, in that they are both based upon the same theory that there existed a right to reinstatement. See Elevator Operators & Starters' Union, Local 117 v. Newman (1947), 30 Cal.2d 799, 807-08, 186 P.2d 1, 6.
Had Rosemarie Walter not sought reinstatement but rather only brought suit to recover damages, an action for breach of contract would have been in order. (See Bessler v. Board of Education (1977), 69 Ill.2d 191.) Bessler, a non-tenured teacher, brought an action for mandamus seeking reinstatement and back pay. This court held that plaintiff was not entitled to reinstatement but that she was entitled to damages for breach of contract. There is no doubt that had the claim for damages been brought as an action in contract it would not have abated because such an action would ...