Drury v. Hurley

• Decision Date: 08 November 1949
• Docket Number: Gen. No. 44764.
• Citation: 88 N.E.2d 728,339 Ill.App. 33
• Parties: DRURY v. HURLEY et al.
• Court: United States Appellate Court of Illinois

339 Ill.App. 33

88 N.E.2d 728

DRURY

v.HURLEY et al.

Gen. No. 44764.

Appellate Court of Illinois, First District, Second Division.

Nov. 8, 1949.

William J. Drury brought a certiorari proceeding against Stephen E. Hurley and others, Civil Service Commissioners of the city of Chicago, to review a decision of the Civil Service Commission ordering petitioner's removal from the police department.

The Superior Court for Cook County, John A. Sbarbaro, J., sustained a motion to quash the respondents' return and reversed their decision, and respondents appealed to the Supreme Court which transferred the cause. 402 Ill. 243, 83 N.E.2d 575.

The Appellate Court, Friend, P. J., reversed the judgment, and held that the commission could properly discharge a police officer for refusal to waive immunity from prosecution which might arise out of his testimony before a grand jury.Benjamin S. Adamowski, Corporation Counsel, Chicago (L. Louis Karton, Sydney R. Drebin, Asst. Corporation Counsel, Chicago, of counsel), for appellant.

Clarence M. Dunagan, Chicago, Emmet F. Byrne, Chicago, for appellee.

FRIEND, Presiding Justice.

William J. Drury and Thomas E. Connelly filed separate petitions for writs of certiorari to review the action of the Civil Service Commission of the City of Chicago which had ordered them discharged from their positions as lieutenant and captain of police, respectively, in the classified service of the Department of Police in the City of Chicago, because of their refusal to execute in writing immunity waivers when summonded and prior to testifying before the March 1947 grand jury concerning matters arising out of their investigation of the shooting of one James M. Ragen. In September 1946 the two officers had been assigned by the Commissioner of Police to investigate some 80 unsolved murders, including the shooting on June 24, 1946 of Ragen, which resulted in his death some time afterward. In due course they interviewed three witnesses from whom they obtained signed statements that they could identify the occupants of the moving truck from which Ragen had been shot. Partly on the strength of their testimony and that of the two petitioners, who also testified before the grand jury on March 17, 1947, without claiming immunity, three men were indicted for the murder. Later, two of the witnesses recanted their testimony and when again called before the grand jury on April 2, 1947 stated that they could identify no one implicated in the Ragen shooting. Petitioners were forthwith summoned and each in turn appeared before the grand jury. As matters developed they had reason to believe that they were suspected of having conspired to obtain an unfounded indictment of the Ragen murder suspects, through subornation of perjury, bribery and threats, and that their testimony might be sought in an inquiry as to their own conduct in an investigation of that crime. Accordingly, when asked to sign immunity waivers, they refused to do so, and were excused without questioning. They were thereupon promptly suspended by the Commissioner of Police who subsequently filed with the Civil Service Commission charges that they were guilty of conduct unbecoming an officer (1) in refusing to waive immunity, and (2) in unlawfully conspiring among themselves and others to procure an indictment of three persons for the murder of Ragen. Because of the similarity of the charges and by stipulation of counsel, the cases against both police officers were jointly heard by the Civil Service Commission which found that the evidence before it was insufficient to sustain the charge of unlawful conspiracy relating to the procurement of the indictments, but held that refusal to sign the immunity waiver was in effect a refusal to testify unless immunity be granted them, and was therefore conduct unbecoming a police officer and cause for dismissal. The discharged officers instituted separate proceedings for writs of certiorari to review the action of the Civil Service Commission. The trial judge who heard the petitions entertained motions to quash the writs, and in a written opinion found that ‘the Commission acted very carefully and certainly exercised no prejudice against the plaintiffs herein in its conduct of said proceeding. * * * it gave ample opportunity to the plaintiffs to be heard in their own defense and in its finding and decision reflects what the record shows, a frank and honest statement of the facts favorable to each of the plaintiffs,’ but gave as his reasons for sustaining the officers' motions (1) that while they did refuse to sign an immunity waiver when called before the grand jury, they at no time refused to testify, and (2) that as a matter of law the refusal of the officers to waive their constitutional privilege in advance of testifying did not constitute cause for removal. Because the trial court held that the discharge of petitioners for failure to execute in writing an immunity waiver would deprive them of their constitutional rights, defendants perfected a direct apeal to the Supreme Court of Illinois, which held, Drury v. Hurley, 1949, 402 Ill. 243, 83 N.E.2d 575, 576, that ‘there is no constitutional question involved in this proceeding such as would give us jurisdiction’, and accordingly transferred the cause to this court for determination.

The Civil Service Act (Ill.Rev.Stat. 1947, ch. 24 1/2, par. 51, sec. 12) provides that a municipal civil service employee may not be removed ‘except for cause, upon written charges and after an opportunity to be heard in his own defense.’ No provision being made for review, courts in this state have held that common law certiorari is proper. Kammann v. City of Chicago, 1906, 222 Ill. 63, 78 N.E. 16;People ex rel. Fosse v. Allman, 1946, 329 Ill.App. 296, 68 N.E.2d 203. Since Doolittle v. Galena and Chicago Union Railroad Co., 1953, 14 Ill. 381, almost without exception Illinois courts have held that review on certiorari should be confined to two questions: Did the administrative agency have jurisdiction? and, Did it proceed legally? Thus, in Wilcox v. People ex rel. Lipe, 1878, 90 Ill. 186, the court held that ‘where the law has vested a quasi judicial power, even in subordinate administrative officers, the court will only inquire whether the officer has acted within the power, and will not attempt to substitute its own judgment or discretion for that of the officer, and will not supply any other conditions to the exercise of their discretionary power than such as the law has provided.’ Later, in People ex rel. Maloney v. Lindblom, 1899, 182 Ill. 241, 55 N.E. 358, 360, the court held that ‘On a return to a writ bringing the record before the court the only proper inquiry is whether the inferior tribunal had jurisdiction, and proceeded legally,-i. e. followed the form of proceedings legally applicable in such cases * * *.’ Still later, in People ex rel. Holland v. Finn, 1927, 247 Ill.App. 53, this court found that ‘The record returned pursuant to the writ established the jurisdictional fact pertaining to the person, the subject matter and the grounds for discharge and a proper legal procedure for the removal of petitioner under section 12 of the Civil Service Act * * *. The writ shows the charges and specifications filed as cause of the removal, the summons, the proof of service, the appearance of the accused and the finding that he was guilty, in which findings are set out the facts which were actually found and which are substantially in the language of the charges and specifications, and that therefore he was guilty of conduct unbecoming a police officer or an employee of the police department and of immoral conduct, as alleged in the charges. This establishes jurisdiction of the commission and that there has been a proper legal proceeding for the removal of the petitioner.’ In Kammann v. City of Chicago, supra [222 Ill. 63,78 N.E. 17], which involved the removal of an employee in the classified civil service for cause after an investigation of written charges before the Civil Service Commission, the court pointed out that the applicable statute is silent as to what constitutes ‘cause’ and held that ‘Manifestly the right to determine that question is left with the civil service commission, and we have held that this statute does not require the commission to specify, in written rules, every case which shall be deemed cause for removal. Joyce v. City of Chicago, 216 Ill. 466, 75 N.E. 184.’ In City of Chicago v. People ex rel. Gray, 1904, 210 Ill. 84, 71 N.E. 816, 819, the court held that ‘After a trial is held in the manner pointed out by the statute before the proper board, and evidence is taken tending to show the guilt of the person charged, we are of the opinion that the action of the civil service commission, based on the finding of the board, is final, and not reviewable by the courts, * * *. The statute does not contemplate a review of the action of the commission which results in the discharge of an officer or employe of the city after a lawful trial before the proper board, by any tribunal whatsoever.’ In People ex rel. Miller v. City of Chicago, 1908, 234 Ill. 416, 84 N.E. 1044, 1046, it was held that ‘Under the decisions of this court, we think the finding of the trial board, approved by the civil service commission, as shown by this record, cannot be set aside by the courts. * * * The contention of appellee in this regard, if upheld, would practically amount to a review of the evidence by the courts in all investigations conducted by the civil service commission or under its direction. This is not the law. As was said in City of Aurora v. Schoeberlein, 230 Ill. [496] 504, 82 N.W. 860 such a review by the courts ‘would be the exercise of executive powers, which the separation of departments of the government precludes the court from exercising.’' The more recent case of Hopkins v. Ames, 1931, 344 Ill. 527, 176 N.E. 729, is to the same effect.

However, in...