#### Michael D. Harnett, Defendant in Error, v. City of Chicago, Plaintiff' in Error.

Gen. No. 21,790.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John C. Wokk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed.

Opinion filed March 8, 1917.

Statement of the Case.

Action by Michael D. Harnett, plaintiff, against City of Chicago, defendant, to recover the difference be*253tween the salary of a patrolman and that of a sergeant in the police service of the defendant during the interim in which he was acting as a patrolman after demotion as a sergeant. From a judgment for plaintiff for $937.50, defendant brings error.

Abstract of the Decision.

1. Officers, § 68 * —what must "be proved by party seeking to recover salary of office. Where a party seeks to recover the salary of an office, he must show the legal existence of the office and his right to hold it.

2. Municipal corporations, § 134*—what ordinance of City of Chicago did not create position of sergeant in police department. The ordinance of April 18, 1881, of the City of Chicago, creating the police department and certain positions, did not create the position of detective sergeant, patrol' sergeant, desk sergeant, or sergeant, hy the use of the words “such number of lieutenants, detective sergeants, patrol sergeants, desk sergeants, patrolmen, and other employees as may be provided hy ordinance,” but left such positions to he thereafter created by ordinance.

3. Municipal corporations, § 134*—how office of police sergeant in City of Chicago not created. The Act of 1863 relating to the *254charter of the City of Chicago did not create the office of sergeant of police.

*253The plaintiff was certified by the Civil Service Commission as eligible for the position of police sergeant March 18,1907, when he was appointed as sergeant and acted as such to February 17, 1908. He was then demoted to police patrolman, and acted as such to August 9, 1911, when he was promoted to detective sergeant, and acted thereafter for two years as patrol sergeant and one year as desk sergeant.

Samuel A. Ettelson, for plaintiff in error; Boy S. Gaskill and George A. Curran, of counsel.

A. G. Dicus, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Goodwin

delivered the opinion of the court.

*2544. Municipal corporations, § 134 * —how office of police sergeant is not created. The office of sergeant of police was not created by the sixty-sixth and sixty-eighth clauses of section 1 of article V of the Cities and Villages Act [J. & A. tf 1334(66), 1334(68)].

5. Municipal corporations, § 131*—when ordinance is not controlling as to demotion of police officer. Section 1909 of an ordinance of April 1, 1911, of the City of Chicago, is not controlling as to a demotion of a police officer from sergeant to patrolman on February 17, 1908, as such ordinance was not in effect at the time of such demotion.