Carroll v. Houston

Citation173 N.E. 657,341 Ill. 531
Decision Date05 December 1930
Docket NumberNo. 19906.,19906.
PartiesCARROLL v. HOUSTON et al.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Commissioner's Opinion.

Error to First Brach Appellate Court, First District, on Appeal from the Superior Court, Cook County; L. P. Harriss, Judge.

Certiorari proceeding by Dennis J. Carroll against Thomas J. Houston and others, Civil Service Commissioners of the City of Chicago, to review an order of the commission discharging petitioner as captain of police. Judgment quashing record of proceeding was affirmed by the appellate court, and respondents bring certiorari.

Reversed and remanded, with directions.

Samuel A. Ettelson, Corp. Counsel, James W. Breen and Francis J. Vurpillat, all of Chicago, for plaintiffs in error.

Benjamin C. Bachrach, of Chicago, for defendant in error.

PARTLOW, C.

On May 4, 1928, defendant in error, Dennis J. Carroll, filed his petition in the superior court of Cook county against plaintiffs in error, the civil service commissioners of the city of Chicago, for a writ of certiorari to review an order of the commission discharging defendant in error as a captain of police of said city upon charges filed against him. On November 2, 1928, the court ordered the writ to issue. The record of the commission was filed on December 3, 1928. A motion was made to quash the writ, and it was overruled. The next day the petition was amended, and an order was entered requiring the commission to return a transcript of the evidence taken on the charges. Upon a hearing, the court quashed the record of the proceedings on the ground that there was no evidence fairly tending to sustain the charges against defendant in error. An appeal was prosecuted to the Appellate Court, where the judgment was affirmed, and the case comes to this court on a writ of certiorari.

Defendant in error became a member of the police department of the city of Chicago on December 12, 1910. Under civil service rules he was promoted to captain, and on February 25, 1927, he was transferred to 2-A district, commonly known as the Stanton Avenue district, which is bounded on the north by Thirty-First street, on the south by Thirty-Ninth street, and extends from the lake to the railroad. On June 29, 1927, charges were filed with the civil service commission by the superintendent of police against defendant in error, and notice was served upon him. On July 21, 1927, additional charges were filed. The charges, in substance, were that he took an active part in politics, in violation of the rules of the department; that he was guilty of conduct unbecoming a police officer; that he neglected his duty; that he was inefficient in the service; and that he willfully maltreated persons under arrest. Under each count there was a specification as to the misconduct charged. The activity in politics consisted in taking part in the mayoralty campaign in 1927. The neglect of duty consisted of permitting houses of prostitution to exist and operate in the district. The maltreatment of persons consisted of raids conducted in the district on March 5, 6, and 7, 1927, in which persons were arrested without warrants and were locked up over Sunday without being booked and without an opportunity to furnish bond. Defendant in error answered the charges, and with his counsel attended the trial and submitted evidence. On August 16, 1927, the commission found that he was guilty of conduct unbecoming an officer, that he was guilty of neglect of duty, that he was inefficient in the service, and that he was guilty of maltreatment of persons under arrest. Specific findings were made upon each of these charges substantially in accordance with the specifications. On September 1, 1927, defendant in error filed with the commission what he terms a petition for a rehearing, which in substance recited that, if an order of reinstatement were entered, the conduct of defendant in error thereafter would be such that his superior officers would have no just cause for complaint. Defendant in errorin his amended petition for certiorari alleged that the members of the commission told him to file his petition for a rehearing, and it would be considered by the commission at the first available opportunity, that he waited for action upon the petition, but it never was acted upon, and that this was the reason his petition for certiorari was not filed until May 4, 1928, which was almost nine months after his order of discharge was entered.

Plaintiffs in error insist that the only office of a common-law writ of certiorari is to certify the record of an inferior tribunal for review; that the court, upon an inspection of the record alone, not including the transcript of the evidence taken on the hearing, determines whether such record establishes the jurisdictional facts pertaining to the person, the subject-matter, and the proper legal procedure for removal under section 12 of the Civil Service Act (Smith-Hurd Rev. St. 1929, c. 24 1/2, § 14); that the judgment of the court will be either that the writ be quashed or that the record be quashed; that, when the writ is issued, all that is required is that the inferior tribunal certify and return its record of the proceeding, which must recite the facts upon which its jurisdiction depends; and that it is only where the jurisdictional facts do not appear of record that the inferior tribunal must certify, not only what is technically denominated the record, but also such facts or evidence as may be necessary to determine the question as to the jurisdiction of the tribunal.

Under a common-law writ of certiorari it is not necessary that the evidence be certified or that there be a certificate of facts outside of the record, but the trial must be upon the record, alone. Donahue v. County of Will, 100 Ill. 94;Chicago & Rock Island Railroad Co. v. Whipple, 22 Ill. 105. The court has no power to pass upon the findings and conclusions of the inferior tribunal, but it may examine the proceedings to determine whether the inferior tribunal had jurisdiction, and the facts upon which the jurisdictionis founded must appear in the record, which also must show that the inferior tribunal acted upon evidence. If the inferior tribunal had jurisdiction to hear and determine the case, and it proceeded legally, the court is powerless to review the order on the ground that the inferior tribunal wrongfully removed the defendant from office. People v. City of Chicago, 234 Ill. 416, 84 N. E. 1044;Joyce v. City of Chicago, 216 Ill. 466, 75 N. E. 184;City of Chicago v. People, 210 Ill. 84, 71 N. E. 816;People v. Lindblom, 182 Ill. 241, 55 N. E. 358;Wilcox v. People, 90 Ill. 186. Ordinarily, the question of the sufficiency of the evidence will not be reviewed by the higher court, for the reason that the return to the writ contains nothing but the record, but, where the question is whether jurisdictional facts were or were not established, the record must show facts giving the inferior tribunal jurisdiction, and this evidence may properly be reviewed by the court. Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N. E. 767.

In Funkhouser v. Coffin, 301 Ill. 257, 133 N. E. 649, it was held that the only office which a common-law writ of certiorari performs is to certify the record from an inferior to a superior tribunal; that the superior tribunal, upon an investigation of the record, alone, when the return is sufficient, determines whether the inferior tribunal had jurisdiction,...

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34 cases
  • Voss v. Lincoln Mall Management Co.
    • United States
    • United States Appellate Court of Illinois
    • 9 February 1988
    ...38 Ill.Dec. at 475, 403 N.E.2d at 706.) Just as a writ of certiorari might be quashed if improperly issued (Carroll v. Houston (1930), 341 Ill. 531, 537, 173 N.E. 657, 659; Connolly v. Upham (1950), 340 Ill.App. 387, 393, 92 N.E.2d 207, 210, appeal denied, 341 Ill.App. xv), we may reconside......
  • People ex rel. Mulvey v. City of Chicago
    • United States
    • United States Appellate Court of Illinois
    • 14 December 1937
    ...party, operates as a bar. Ring v. Lawless, 190 Ill. 520, 60 N.E. 881;Morse v. Seibold, 147 Ill. 318, 35 N.E. 369.” Carroll v. Houston, 341 Ill. 531, 538, 173 N.E. 657, 660, a certiorari case. But plaintiffs assert that the doctrine of laches is a defense which may be interposed in a court o......
  • People ex rel. Casey v. Health and Hospitals Governing Commission of Illinois
    • United States
    • Illinois Supreme Court
    • 5 October 1977
    ...time of discharge or explain in the complaints the reasons why it was not filed within that six-month period. E. g., Carroll v. Houston, 341 Ill. 531, 537, 173 N.E. 657; People ex rel. Macauley v. Burdette, 285 Ill. 48, 50-51, 120 N.E. 519; Schultheis v. City of Chicago, 240 Ill. 167, 170, ......
  • Oliver v. Crook
    • United States
    • United States Appellate Court of Illinois
    • 14 December 1943
    ...with lapse of time more or less great, and other circumstances causing prejudice to the adverse party, operates as a bar. Carroll v. Houston, 341 Ill. 531, 173 N.E. 657;Forest Preserve District v. Emerson, 341 Ill. 442, 173 N.E. 477;Morse v. Seibold, 147 Ill. 318, 35 N.E. 369.” (Italics our......
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