{
  "id": 5411462,
  "name": "Joel A. Kagann, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the Village of Woodridge, et al., Defendants-Appellees",
  "name_abbreviation": "Kagann v. Board of Fire & Police Commissioners",
  "decision_date": "1975-04-28",
  "docket_number": "No. 73-206",
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    "judges": [],
    "parties": [
      "Joel A. Kagann, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the Village of Woodridge, et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nPlaintiff appeals from a declaratory judgment which adjudged that he was not entitled to \u201crevert to, and be established in\u201d the rank of captain in the Police Department of the Village of Woodridge (as plaintiff had requested in his letter dated November 19, 1971, resigning as chief of police), and dismissed plaintiff\u2019s suit with prejudice. The trial court decided this case upon the complaint, the answer thereto and upon a stipulation of facts between the parties. Thus, the facts are not controverted.\nOn July 1, 1962, plaintiff was duly appointed chief of police of the Village by its corporate authorities and continued to perform his duties as chief until November 19, 1971. In the years 1963 and 1965 and June of 1967, he entered into written employment contracts covering his services as police chief. The 1967 contract specified, among other things, that he was entitled to vacation and \u201call of the benefits as set forth * * * under the category of Captain in Ordinance # 67-8.\u201d That ordinance established \u201cthe salaries and benefits for\u201d Village police officers, which included hospitalization and accident insurance, life insurance, pension, holidays and uniform allowance.\nIn the meantime on September 16, 1965, the corporate authorities passed a resolution which \u201cconferred upon\u201d plaintiff \u201cthe rank of Captain of the Police Department,\u201d after reciting that they had \u201cfirst established the rank of Captain of Police\u201d of the Village, and referring to plaintiff's services as its chief of police for several years, and their desire to confer upon him the rank of captain. It should be noted that Ordinance # 63-1, adopted in January, 1963 (which amended the \u201ccomposition\u201d section of an earlier ordinance, # 59-20, \u201cestablishing a police department for the Village\u201d) provided that the police department \u201cshall consist of the Chief of Police and such Captains [etc.] as may, from time to time, be appointed as by Statute and Ordinance provided.\u201d\nOn March 21, 1966, the Village, having attained a population of [over] 5,000, became subject to division 2.1 of article 10 of the Illinois Municipal Code as added by Act approved August 10, 1965 (Ill. Rev. Stat. 1965, ch. 24, par. 10 \u2014 2.1\u20141 et seq.). On May 19, 1966, they passed Ordinance # 66-5 creating a Board of Fire and Police Commissioners for the Village (\u201cCommissioners\u201d) and granting to it the powers conferred under section 10 \u2014 2.1\u20144 of the Municipal Code, but retaining for the mayor, subject to the advice and consent of the Board of Trustees of the Village, the power to appoint the chiefs of the Fire and Police Departments.\nAt their meeting on June 15, 1966, the commissioners adopted a motion that the plaintiff \u201cbe classified as permanent rank of Captain of Police in accordance with Chapter 24, Section 10 \u2014 2.1\u20147 of Illinois Statutes.\u201d The minutes of their June 20 meeting set forth that a \u201cletter was written to the Mayor * * * dated June 14 [sic], 1966, approving the classification of [two identified patrolmen] and Captain Joel Kagann as permanent ranks.\u201d At that same meeting they unanimously adopted a motion that plaintiff \u201cbe considered on furlough from the rank Captain [sic] while serving as Chief of Woodridge Police Department.\u201d By letter dated June 20, 1966, addressed to \u201cCaptain Kagann,\u201d signed by all the commissioners, they informed him of the adoption of the motion \u201cto consider you on furlough from the rank of Captain of Police while you are holding the position of Chief of Police.\u201d The commissioners also issued to plaintiff an \u201cOfficial Commission,\u201d dated June 14, 1966, declaring that he was \u201cclassified to the office of Permanent Rank of Police Captain.\u201d On October 22, 1967, they issued to plaintiff a wallet-sized card also captioned \u201cOfficial Commission,\u201d identifying plaintiff as having been \u201cappointed to the office of Permanent Rank of Captain * * * on September 16, 1965\u201d; on the reverse side of the card appeared his name, his title: \u201cCaptain of Police,\u201d his star number: 2, date of appointment: September 16, 1965, other descriptive identification data (such as his sex, height, weight, color of hair and eyes), and a line for the signature of the holder, Joel E. Kagann.\nIn November, 1968, Ordinance # 59-20 (which had been amended by Ordinance # 63-1, above referred to) was further amended by Ordinance # 68-28 to read as follows:\n\u201cThere is hereby created a Police Department which shall consist of the Chief of Police; one Captain of Police, one Sergeant of Police; seven Patrolman [sic] of Police\u201d.\nThere were other amendments from time to time of Ordinance # 59-20, further increasing the number of patrolmen or adding sergeants and lieutenants, or both.\nOn November 19, 1971, plaintiff tendered his resignation as chief of police in a letter addressed to the mayor of the Village, the last paragraph of which reads as follows:\n\u201cWith this resignation, I hereby notify the Mayor and Board and the Board of Fire and Police Commissioners of my intention in accordance with section 10 \u2014 2.1\u20144 of Chapter 24, Illinois Revised Statutes, to revert to my classified rank of Captain of Police effective immediately.\u201d\nOn the same day the Mayor in writing accepted the resignation, thanked plaintiff for his \u201cmany years of service and cooperation [sic],\u201d and added the following:\n\u201cIn reference to your request to revert to the rank of Captain of Police, effective immediately, is denied. You of course have a route of appeal if you so desire.\u201d\nA few days later, on November 22, plaintiff reported to the acting chief of police of the Village requesting that he be \u201cestablished in the Rank of Captain,\u201d and that request being denied, he made a written demand on November 30, 1971, on the commissioners and the village administrator (and acting police chief) that he \u201cbe established in his rank of Captain of Police,\u201d and paid the salary provided for that rank ($1399 per month), beginning November 22, 1971. That demand was likewise denied.\nDuring his tenure plaintiff received the salary annually appropriated by the Village for \u201cPolice Chief.\u201d There were also annual appropriations for salaries of \u201cPolice Officers\u201d in bulk amounts. Section one of Ordinance # 67 \u2014 8 adopted on June 1, 1967, referred to in the 1967 employment contract between plaintiff and the Village, set forth a table of monthly salaries for various ranks of police officers, including captain, in nine classes of tenure of service. The monthly salaries set forth for captain of police ranged from $730 for the first 6 months of service (Class !)\u2022 to $859 for 15 years of service or more (Class 9). Section two thereof established the table for fringe bnefits for each rank including captain. By Ordinance # 71-10, adopted in September, 1971, Ordinance # 67-8 and subsequent ordinances dealing with salaries and benefits of police officers were further amended by establishing the monthly salary for captain to range from $1113 (Class 1) to $1543 (Class 10 \u2014 covering 9 to 10 years tenure); for Class 8, covering 5 to 7 years of service, the captain\u2019s monthly salary was set at $1399.\nImmediately prior to November 19, 1971, the date of plaintiff\u2019s resignation as police chief and of his request to \u201crevert to\u201d the rank of police captain, plaintiff\u2019s monthly salary as chief of police was $1345, and he was a member of and had been contributing to, the police pension fund.\nAs stated by the trial court, in its opinion, the question presented is \u201cwhether * * * plaintiff is entitled to the classified rank of Captain in the Police Department of the Village * * The trial court concluded that plaintiff failed to prove that he was entitled to that rank because \u201c[t]he statutory requirements for the creation of [that] rank * * * and the appointment thereto of plaintiff # * *\u201d had \u201cnever been accomplished in the manner prescribed by law * * The court\u2019s reasoning was: (1) no \u201cordinance\u201d was adopted by the corporate authorities of the Village establishing the office of Captain of Police, and (2) plaintiff \u201cnever performed any services\u201d in the rank of Captain, \u201cor drew pay for performing duties\u201d of that rank.\nPlaintiff contends that (1) the actions of the corporate authorities of the Village and of the commissioners were sufficient to create the office of police captain and to entitle plaintiff to revert to that office upon his resignation as chief of police, and (2) the defendants are estopped by their actions from claiming that plaintiff is not entitled to reinstatement as a member of the Police Department and to \u201chis rank of Captain.\u201d\nThere can be no question here but that the Village did adopt an ordinance (#63-1) in January, 1963, whose composition section created or provided for the office of captain of police. Moreover, it is abundantly clear from the record that by their formal resolution in September, 1965, the corporate authorities had in mind that office or rank of \u201cCaptain of Police\u201d which they had earlier \u201cestablished,\u201d when they determined to and did confer upon plaintiff the rank of captain of police.\nAfter the Village came under the provisions of the Fire and Commissioners Act and created in May, 1966, the Board of Fire and Police Commissioners, the commissioners, less than a month later, \u201cclassified\" plaintiff in the \u201cPermanent Rank of Captain of Police in accordance with * * * Section 10 \u2014 2.1\u20147\u201d of the Fire and Police Commissioners Act (Ill. Rev. Stat. 1965, ch. 24, par. 10 \u2014 2.1\u20147), and considered him \u201con furlough from\u201d that rank \u201cwhile serving as Chief of 6 \u00b0 \u201c Police * # They notified the mayor of the Village of their action and issued an \u201cOfficial Commission\u201d to plaintiff in his \u201cPermanent Rank of Captain.\u201d It should be noted that at no time in the intervening 6% years did the corporate authorities or the Commissioners ever repeal or repudiate any of those actions until their refusal in November, 1971, when plaintiff requested and asked for but was refused acknowledgment and reinstatement to \u201chis\u201d rank of captain of police concurrent with his resignation as chief of police.\nIndeed, in the intervening years the corporate authorities repeatedly adopted, by ordinance, amendments to its \u201ccomposition\u201d ordinance which acknowledged the existence of the rank of captain of police. In the 1967 employment contract between the plaintiff and the Village they provided for plaintiff\u2019s entitlement to the vacation and other fringe benefits set forth \u201cunder the category of Captain\u201d in an earlier 1967 ordinance. Also, in the intervening years the commissioners in October, 1967, after the 1967 contract was entered into with plaintiff issued to him another \u201cOfficial Commission\u201d certifying to his classification to the office of captain of police. That commission acknowledged that prior thereto, namely in September, 1965, plaintiff had been appointed to the \u201cpermanent\u201d rank. The earlier commission issued by the commissioners in June of 1966 also acknowledged and confirmed plaintiff\u2019s appointments to the prior rank of captain of police and of his \u201cfurlough\u201d status from that rank while he was serving as chief of police.\nIt is obvious that the actions of the corporate authorities in September, 1965, as well as those of the commissioners in June, 1966, and October, 1967, were intended to establish plaintiff in the prior \u201cPermanent Rank\u201d of police captain so as to provide him with the protection afforded by the provisions of Division 2.1 of Article 10 of the Illinois Municipal Code.\nSection 10 \u2014 2.1\u20144 of that Code (Ill. Rev. Stat. 1969, ch. 24, par. 10 \u2014 2.1\u20144) provides in part as follows:\n\u201cThe board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department * * *.\nIf a member of the department is appointed Chief of Police # # # pr^r to being eligible to retire on pension he shall be considered as on furlough from the rank he held immediately prior to his appointment as chief. If he resigns as Chief * * * prior to attaining eligibility to retire on pension, he shall revert to and be established in such prior rank, and thereafter be entitled to all the benefits and emoluments of such prior rank, without regard as to whether a vacancy then exists in'such rank.\u201d\nPlaintiff was a \u201cmember\u201d of the Village\u2019s police department at least from September, 1965, when the corporate authorities conferred upon him the rank of captain. In June, 1967, after the 1965 employment agreement as chief of police had expired the corporate authorities of the Village again \u201cengaged\u201d or appointed him as chief of police.\nDefendants, however, contend that plaintiff is not entitled to revert to his \u201cprior rank\u201d under that section because (1) plaintiff\u2019s appointment as captain of police was not made by ordinance (and the September, 1965, resolution was therefore ineffective), (2) he never performed the duties of \u201cCaptain of Police,\u201d but only as \u201cPolice Chief\u201d, and (3) appropriation ordinances did not provide for the salary of police captain.\nDefendants argue that an ordinance w\u00e1s required to effectuat\u00e9 plaintiff\u2019s appointment as captain of police because Ordinance # 63 \u2014 1 providing for the composition of the police department contemplated that such appointment would be done by \u201cstatute and ordinance.\u201d Our examination of the record does not reveal that there was any Village ordinance in 1965 when the rank of captain was conferred upon him which regulated the manner of appointment to ranks, positions or employments of any kind in the police department. The 1965 resolution of the Village did not amend or purport to amend Ordinance # 63 \u2014 1, it merely implemented it. Moreover, there is no statute which requires the passage of an ordinance for the creation of a position or an employment by a municipality. People ex rel. Jacobs v. Coffin, 282 Ill. 599, 607; People ex rel. Siegal v. Rogers, 397 Ill. 187, 195; People ex rel. Bubash v. Board of Fire & Police Commissioners, 14 Ill.App.3d 1042, 1047.\nIt is true, as defendants point out, that Illinois authorities such as Jacobs, Siegal and Bubash, in construing the Fire and Police Commissioners Act, stated that performance of duties of the rank, coupled with an appropriation ordinance, were sufficient to establish the rank or office and protection in such rank. It should be noted that the statements in those cases do not purport to name those factors as the sole or essential requisites for the existence of the position.\nDefendants in effect are arguing that if plaintiff had performed any duties as \u201cCaptain of Police\u201d even for one day or for one hour, and received a salary as \u201cCaptain\u201d for such services he would have fulfilled those requirements. Obviously, under the circumstances here such argument goes too far. When the Fire and Police Commissioners Act became effective as to the Village in March, 1966, and was adopted by the Village in May, plaintiff held the rank of captain of police. He also was serving as chief of police and held that rank, and was blanketed in under the Act as chief and also as a member of the Police Department. Edwards v. City of Marion, 130 Ill.App.2d 895.\nSection 10 \u2014 2.1\u20144 of the Fire and Police Commissioners Act, as amended in 1965, authorizing the chief of police of a municipality to revert to and be established in his prior rank, recognizes the concept of duality of employment which the corporate authorities had in mind when they conferred upon plaintiff the rank of captain by the 1965 resolution.\nThe mere fact that appropriation ordinances of the Village did not specifically provide for a salary to \u201cPolice Captain\u201d is of no moment. Since plaintiff was also chief of police he was being remunerated therefor pursuant to appropriation ordinances. There was therefore no need to provide for a specific appropriation to pay plaintiff as captain of police, particularly in view of the fact that the appropriation ordinances always provided for a bulk sum appropriation for \u201cpolice officers.\u201d\nIn view of our holding we refrain from considering plaintiff s persuasive argument that the defendants are estopped from claiming that plaintiff is not entitled to reinstatement as a member of the Police Department and to his rank of captain.\nTherefore, judgment is reversed and the cause is remanded with instructions to find for the plaintiff.\nReversed and remanded with directions.\nT. MORAN and DIXON, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "Richard F. McPartlin, of Chicago, and William E. Corrigan, of Wheaton, for appellant.",
      "Alfred P. Bianucci, of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "Joel A. Kagann, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the Village of Woodridge, et al., Defendants-Appellees.\n(No. 73-206;\nSecond District (1st Division)\nApril 28, 1975.\nRehearing denied June 4,1975.\nRichard F. McPartlin, of Chicago, and William E. Corrigan, of Wheaton, for appellant.\nAlfred P. Bianucci, of Chicago, for appellees."
  },
  "file_name": "0209-01",
  "first_page_order": 233,
  "last_page_order": 239
}