delivered the opinion of the court.
Vaughn v. City of Chicago, 198 Ill. App. 114 (1916)
Feb. 16, 1916
·
Illinois Appellate Court
·
Gen. No. 21,089
198 Ill. App. 114
Owen B. Vaughn, Plaintiff in Error, v. City of Chicago, Defendant in Error.
Gen. No. 21,089.
(Not to he reported in full.)
Error to the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
Affirmed.
Opinion filed February 16, 1916.
Statement of the Case.
Mandamus by Owen B. Vaughn, petitioner, against the City of Chicago, respondent, to reinstate him in position as carpenter, from which position the Civil Service Commission of respondent city had removed him. From a judgment in favor of respondent entered upon a demurrer to the petition, petitioner brings error.
The petition averred that the office or position to which he sought reinstatement was created by ordinance; that such position was that of carpenter for which he had taken a civil service examination and which he duly passed; that he qualified for the position; that charges against him were not heard by the Civil Service Commission but by a police trial board "composed of three persons, two of whom were members of the Civil Service Commission.
The petition also averred that a judgment of the Municipal Court of Chicago for wages due him in such *115position "was res ad judicata of facts which were set up in the action in. the Municipal Court and also in this position, and that respondent was estopped from denying them.
Abstract of the Decision.
1. Mandamus, § 139 * —what person seehing reinstatement in office or position must allege in petition. A person seeking reinstatement in office or position by a writ of mandamus must show in his petition the legal existence of the office or position, his clear right to the office or position and the duty on the part of respondents to perform the act sought to be enforced.
2. Mandamus, § 150*—whai allegations in petition are admitted on demurrer. While in a petition for mandamus all allegations in the petition that are well pleaded are admitted by the demurrer, mere conclusions of the pleader are not so admitted.
3. Mandamus, § 139*—when petition for reinstatement in position demurrable. Where petitioner in mandamus for reinstatement to position of carpenter in the police department of Chicago relied on city ordinances and the petitioner did not set up the provisions of the ordinances nor the substance thereof, but simply his conclusions that the office or position was established by the ordinances, whether such ordinances created the office or position was a question of law, and the petition was clearly demurrable.
4. Civil service, § 23*—when findings of police trial board are conclusive. Where a police trial board hearing charges against an employee of the police department is composed of two members of the Civil Service Commission, such board need not report its decision to the Civil Service Commission, as the findings of the trial board are, under such circumstances, conclusive.
5. Judgment, § 508*—when not res adjudicada as to legal existence of office and right thereto. Where a petitioner for mandamus to reinstate himself in the position of carpenter in the Chicago police department averred that, in an action in the Chicago Munici*116pal Court for salary due him, he set up facts showing the legal existence of the office he was seeking and that a judgment in such court was res adjudicate, of the legal existence of the office and his right thereto, held that such judgment was not res adjudicate, as it may have been rendered upon the ground that the petitioner had performed the services for which he was seeking pay, and especially as such judgment had been reversed by the Appellate Court.
*115A. D. Gash and A. G. Dicus, for plaintiff in error.
Richard S. Folsom, for defendant in error; John E. Foster, of counsel.