City of Aurora v. Schoberlein

• Decision Date: 23 October 1907
• Citation: City of Aurora v. Schoberlein , 230 Ill. 496, 82 N.E. 860 (Ill. 1907)
• Parties: CITY OF AURORA v. SCHOBERLEIN.
• Court: Illinois Supreme Court

230 Ill. 496

82 N.E. 860

CITY OF AURORA

v.SCHOBERLEIN.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, Kane County; Charles A. Bishop, Judge.

Proceeding by the city of Aurora against Adam Schoberlein, as fire marshal. From the judgment, the city appeals. Reversed.

C. F. Clyne, N. J. Aldrich, and B. P. Alschuler, for appellant.

Raymond & Newhall and F. R. Reid, for appellee.

CARTWRIGHT, J.

On July 10, 1905, written charges against appellee, fire marshal of the city of Aurora, were presented to the board of fire and police commissioners of said city in pursuance of section 12 of an act entitled ‘An act of provide for the appointment of a board of fire and police commissioners in all cities of this state having a population of not less than seven thousand nor more than one hundred thousand, and prescribing the powers and duties of such board,’ in force April 2, 1903. Laws 1903, p. 99. After an investigation, at which appellee was heard in his own defense, the board found him guilty as charged and made an order removing him from office. Within 10 days after the entry of the order appellee filed with the secretary of the board a bond for an appeal to the circuit court of Kane county, in which said city is located, and on November 21, 1905, the secretary transmitted to the court a transcript of the proceedings before the board, in compliance with section 18 (page 100) of said act, which purports to allow an appeal to the circuit court from any order of a board created under that act. The record recites that appellant filed its motion to dismiss the appeal on the ground that section 18 is unconstitutional and void, and the court denied the motion. No bill of exceptions was taken at the time, and there was no extension of time for tendering such a bill. The appeal was subsequently called for trial before another judge, and the court ordered a trial de novo, against the objection of appellant, and called a jury against like objection. The files of the proceeding consisted of the written charges, the evidence produced before the board, and the order of removal, and the jury were sworn to try the issues joined and a true verdict render according to the evidence. Both parties introduced testimony relating to the charges, and at the conclusion of the evidence the court, on motion of appellee, instructed the jury to find him not guilty. A verdict of not guilty was thereupon returned,and the court entered an order reversing the order of the board removing appellee from office, and ordered the board forthwith to reinstate and re-employ him as fire marshal, and to allow him to perform the duties and services connected with that office and collect the salary and compensation allowed therefor, and also rendered judgment against appellant for costs. From the judgment an appeal was prosecuted to this court, and among other assignments of error is one that the circuit court had no jurisdiction of the subject-matter, and that section 18 of said act authorizing an appeal is unconstitutional and void.

Counsel for appellee contend that we cannot entertain the appeal, for the reason that the question of the validity of the statute which purports to authorize an appeal to the circuit court was not preserved for review. They are correct in saying that the ruling of the court on the motion to dismiss the appeal was not preserved by the motion for a new trial before another judge. Guyer v. Davenport, Rock Island & Northwestern Railway Co., 196 Ill. 370, 63 N. E. 732;Cella v. Chicago & Western Indiana Railroad Co., 217 Ill. 326, 75 N. E. 373. There was a motion in arrest of judgment, which was general in terms and sufficient to raise the question of the jurisdiction of the court; but if there had been neither motion to dismiss nor motion in arrest of judgment the question of jurisdiction could be raised by assignment of error in this court. The assignment of error is based on matters apparent on the face of the record and requires no bill of exceptions. Jurisdiction of the subject-matter cannot be conferred by agreement of parties, and a want of jurisdiction cannot be waived by failing to object. The question of jurisdiction of the subject-matter may be raised for the first time on appeal or error. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200, 75 N. E. 473; 2 Cyc. 680; 12 Ency. of Pl. & Pr. 186. If the want of jurisdiction of the subject-matter results from the unconstitutionality of an act purporting to confer jurisdiction, an Appellate Court has no power to decide the question, and an appeal is properly brought direct to this court.

The board of fire and police commissioners of the city of Aurora is a branch of the executive department of the city government, and all the acts and powers of the board are purely ministerial or executive. The Legislature could not confer upon the board any judicial power whatever. By article 3 of the Constitution the powers of the government are divided into three distinct departments, the legislative, executive, and judicial, and it is provided that no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as thereinafter expressly directed or permitted. By section 1 of article 6 the judicial powers are vested in certain courts, and a board of fire and police commissioners cannot assume or exercise any part of the judicial power. George v. People, 167 Ill. 447, 47 N. E. 741. Neither does the act purport to give to such boards any judicial power. They are authorized by statute to remove an officer for cause, after a hearing and an opportunity to make a defense, and that authority implies the power to judge of the existence...