Illinois Crime Investigating Commission v. Buccieri

• Decision Date: 19 January 1967
• Docket Number: No. 39957,39957
• Parties: ILLINOIS CRIME INVESTIGATING COMMISSION, Appellee, v. Fiore BUCCIERI et al., Appellants.
• Court: Illinois Supreme Court

Page 236

224 N.E.2d 236

36 Ill.2d 556

ILLINOIS CRIME INVESTIGATING COMMISSION, Appellee, v. Fiore BUCCIERI et al., Appellants.

No. 39957.

Supreme Court of Illinois.

Jan. 19, 1967.

Rehearing Denied March 28, 1967.

John Powers Crowley, Chicago (Anna R. Lavin and John J. Muldoon, Chicago, of counsel), for appellants.

William G. Clark, Atty. Gen., Springfield (Richard E. Friedman, First Asst. Atty. Gen., and Richard A. Michael, Asst. Atty. Gen., of counsel), for appellee.

UNDERWOOD, Justice.

This appeal from the circuit court of Cook County challenges the constitutionality of section 13 of the Illinois Crime Investigating Commission Act, (Ill.Rev.Stat.1965, chap. 38, par. 203--13,) and the validity of certain actions of the commission under authority of the act.

On November 17, 1965, the commission adopted a resolution which, after first reciting purposes consistent with the legislative intent expressed in section 1 of the act (par. 203--1), resolved to conduct public hearings on January 12, 13 and 14, 1966, in the city of Chicago, to determine the extent to which organized criminal elements are involved in the 'loan shark' or 'juice' racket in Cook County. Two days later subpoenas were issued, as authorized by section 13, commanding the fifteen defendants to appear at a certain date, time and place to give testimony and to answer such questions as might be put to them. The subpoenas, together with copies of the commission's resolution, were served on defendants at various times during November and December, 1965. Defendants did not appear or testify in response to the subpoenas, but did, through counsel, notify the commission of their belief that the subpoenas were ineffective at law and of their intention not to appear.

Section 13 of the act provides in pertinent part: 'In case of disobedience to a subpoena, the Commission may invoke the aid of any circuit court of the State in requiring the attendance and testimony of witnesses, and the production of documentary evidence. Any circuit court of the State may, in case of contumacy or refusal to obey a subpoena issued to any person, issue an order requiring such person to appear before the Commission, or to produce documentary evidence, if so ordered, or to give evidence touching the matter on question, and any failure to obey such order of the circuit court may be punished by that court as a contempt upon itself.' In accordance with this provision the commission, on January 20, 1966, filed a petition in the circuit court of Cook County naming each defendant in a separate count and praying for an order requiring defendants to obey the subpoenas. Notice of the filing of such petition was sent to defendants and their attorneys by mail. Thereafter, defendants appeared by their attorneys and collectively made a motion to strike and dismiss the petition. It is the order denying such motion and directing them to appear and attend before the commission from which this appeal has been prosecuted.

Basing their position on the fundamental and undeniable premise that notice and opportunity to be heard are essential elements of due process of law (People v. Lavendowski, 329 Ill. 223, 160 N.E. 582; Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027), it is the contention of defendants that the portion of section 13, heretofore quoted, violates due process because it fails in express terms to provide for notice and opportunity to be heard when the aid of a circuit court is sought to compel obedience to a Subpoena. They recognize there was in fact notice and hearing in this case, but insist that the constitutionality of the section is to be tested not by what was done under it, but what may, by its authority, be done. See: Stuart v. Palmer, 74 N.Y. 183.

While the problem presented is not a new one, it does not appear to have received a uniform solution in this jurisdiction. In Durkin v. Hey, 376 Ill. 292, 33 N.E.2d 463, where a section of the Unemployment Compensation Act provided for an application to a circuit court for an order compelling the production of books or documents, we held the legislature must have contemplated notice and hearing, stating at page 298, 33 N.E.2d at page 466: 'Otherwise, it would clearly violate the due process clause of both the State and Federal constitutions. We must assume that the legislature intended that such orders could only be entered upon due notice and hearing.' Prior to that, in People ex rel. Joyce v. Strassheim, 242 Ill. 359, 90 N.E. 118, it was also implied that the parole law contemplated a hearing before the parole board not expressly provided for. On two other occasions, however, a different construction was made of statutes which failed to expressly provide for notice and hearing. In People v. Marquis, 291 Ill. 121, 125 N.E. 757, 8 A.L.R. 874, which involved a section of the Search and Seizure Act permitting the destruction of property seized, it was held that the failure of the statute to provide for notice to the persons whose rights and property were affected caused the section to violate due process of law. Reaching the same result was People v. Gale, 339 Ill. 162, 171 N.E. 186, where the court considered a section of the Motor Vehicle Act which permitted a judicial determination of the ownership of a vehicle without notice to all parties in interest. And although the defendants urge the result of the Gale and Marquis decisions upon us, it is our opinion that Durkin and Strassheim represent the proper view.

Under the fundamental rules of statutory construction as laid down by this court from time to time, it has long been held that it is our duty to construe acts of the legislature so as to uphold their constitutionality and validity if it can reasonably be done, and, further, that if their construction is doubtful, the doubt will be resolved in favor of the validity of the law attacked. (People v. Illinois State Toll Highway Comm., 3 Ill.2d 218, 120 N.E.2d 35; People ex rel. Dolan v. Dusher, 411 Ill. 535, 104 N.E.2d 775; People v. Newcom, 318 Ill. 188, 149 N.E. 269.) Complementary principles of equal force and stature are that the legislature is presumed to act in view of the constitution and not to intend a violation of its provisions or the enactment of a void law. (Follett's Illinois Book and Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 190 N.E.2d 324; People ex rel. Bell v. New York Central Railroad Co., 10 Ill.2d 612, 141 N.E.2d 38.) Similarly, it will be presumed the legislature did not intend absurdity, inconvenience or injustice. (Illinois National Bank v. Chegin, 35 Ill.2d 375, 220 N.E.2d 226; People ex rel. Barrett v. Thillens, 400 Ill. 224, 79 N.E.2d 609.) Based upon these rules and principles, as well as the commonplace knowledge that notice and opportunity to be heard are the essence of procedural due process, we hold that the legislature, in enacting section 13, necessarily contemplated and intended that orders to compel obedience to subpoenas issued by the commission could only be entered upon due notice and hearing.

It is next contended by some of the defendants that the mailed notice of the hearing served upon them was inadequate, and suggested that only personal service would suffice to give the circuit court jurisdiction of their persons. While it would appear there is authority from which analogy could be drawn to uphold the validity of mailed notice in a proceeding such as this, (cf. Cudahy Packing Co. v. National Labor Relations Board, 10 Cir., 117 F.2d 692; Goodyear Tire & Rubber Co. v. National Labor Relations Board, 6 Cir., 122 F.2d 450, 136 A.L.R. 883,) we do not reach that point in this case. By making a general appearance, defendants submitted to the jurisdiction of the court and waived the adequacy of the notice served upon them. Lord v. Hubert, 12 Ill.2d 83, 87, 145 N.E.2d 77; Kelly v. Brown, 310 Ill. 319, 323--324, 141 N.E. 743.

Defendant also claim that the trial court should have allowed them to answer plaintiff's petition after their motion to dismiss was denied. This contention requires consideration of the question, new to this court, of the proper scope of judicial review of administrative subpoenas. This issue has frequently been before the Federal courts, and it is now there established that judicial review is limited to a consideration of the constitutionality of the statute, whether the contemplated agency proceedings are included within the statutory authority, the reasonableness of the demand and the relevance of the information sought. (Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; Endicott Johnson Corp. v. Perkins, 317 U.S., 501, 63 S.Ct. 339, 87 L.Ed. 424; Adams v. FTC (8th cir.), 296 F.2d 861; Crafts v. FTC (9th cir.), 244 F.2d 882.) Courts cannot consider whether the agency has probable cause for its proposed action, defenses on the merits of the administrative proceedings, or procedural irregularities. (National Labor Relations Board v. C.C.C. Associates,...