City of Chicago v. Mayers

• Decision Date: 08 February 1966
• Docket Number: Gen. No. 50603
• Citation: 68 Ill.App.2d 442,216 N.E.2d 298
• Parties: CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellee, v. Fred B. MAYERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 298

216 N.E.2d 298

68 Ill.App.2d 442

CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellee, v. Fred B. MAYERS, Defendant-Appellant.

Gen. No. 50603.

Appellate Court of Illinois, First District, Second Division.

Feb. 8, 1966.

Rehearing Denied March 21, 1966.

William A. Cain, Chicago, for appellant.

Raymond F. Simon, Corporation Counsel of City of Chicago, Chicago, Sydney R. Drebin, Marvin E. Aspen, Asst. Corporation Counsels, of counsel, for appellee.

LYONS, Justice.

This is an appeal from an order denying a petition asking for the return of records of identification taken from defendant at the time of his arrest for disorderly conduct.

Defendant was arrested December 10, 1962 in the City of Chicago and charged with a violation of Chapter 193, Section 1, of the Municipal Code of Chicago, designated 'Disorderly Conduct.' He was fingerprinted and photographed by the police of the City of Chicago. Defendant appeared before the Honorable Edith A. Sampson. The matter was postponed, by order of court, to February 5, 1964. Thereafter, defendant was found not guilty and discharged.

On April 5, 1965, defendant served a notice of motion and a petition upon the Corporation Counsel for the City of Chicago and upon the State's Attorney of Cook County stating in the notice that he would present said petition on April 9, 1965. Said petition requested the return of records of identification, which records consisted of fingerprints and photographs taken from defendant upon his arrest and alleged that there was no authority for the invasion of defendant's right of privacy in that the matter involved only a quasi-criminal charge of disorderly conduct of which charge defendant was found not guilty and discharged; that defendant was a teacher and the records of identification on file with the Police Department of the City of Chicago and with the Department of Public Safety constituted a continuing menace to the future position and economic welfare of said defendant; that under Section 206--5 of the Code of Criminal Procedure, Ill.Rev.Stat.1965, c. 38, § 206--5 had defendant been charged with a serious crime, as enumerated in said section, he would upon discharge, acquittal, or release without conviction, be entitled to a return of all photographs, fingerprints, or other records of identification presently in the custody of the Department of Public Safety; and that defendant, as a result of the records of identification being in the custody of the authorities, suffered great pecuniary loss, embarrassment and defamation of his social standing and will continue so to suffer in the future.

Neither the Corporation Counsel on behalf of the City of Chicago, nor the State's Attorney on behalf of the Department of Public Safety, filed an answer or other pleading in opposition to the petition of defendant. The trial court denied the motion and petition of defendant.

Defendant's theory of the case is that the trial court erred in its denial of defendant's petition for the return of the records of identification in that the original charge of Disorderly Conduct was a civil proceeding in form; that the original charge being civil, the Civil Practice Act must apply and thus the failure of the City of Chicago and Department of Public Safety to answer or otherwise plead required the trial court to consider as true all of the well pleaded facts of the petition, and grant the relief prayed; that the legislature of the State of Illinois has empowered the Department of Public Safety as the only agency to cope with the task of criminal identification and investigation; that the City of Chicago has no inherent authority to take records of identification of an accused and therefore the court erred in not returning said records of identification after the accused had been acquitted; and that the denial of the defendant's petition for the return of the records of identification was improper in that defendant's rights were violated.

Plaintiff's theory of the case is that the Superintendent of the Chicago Police Department, Orlando W. Wilson, has custody and control of the identification records of the Chicago Police Department; that the petition was properly denied by the trial court in that Superintendent Wilson was not named as a party, and along with the Department of Public Safety, was not served with a copy of the petition;...