People ex rel. Cassidy v. Fisher

• Decision Date: 10 October 1939
• Docket Number: No. 25118.,25118.
• Citation: 372 Ill. 146,22 N.E.2d 937
• Parties: PEOPLE ex rel. CASSIDY, Atty. Gen., v. FISHER, Judge.
• Court: Illinois Supreme Court

372 Ill. 146

22 N.E.2d 937

PEOPLE ex rel. CASSIDY, Atty. Gen.,

v.FISHER, Judge.

No. 25118.

Supreme Court of Illinois.

Oct. 10, 1939.

Original petition for mandamus.

Original proceeding in mandamus by the People, on the relation of John E. Cassidy, Attorney General, for a writ of mandamus requiring Harry M. Fisher, as Judge of the Circuit Court of Cook County, to expunge an order entered on January 24, 1939, in a habeas corpus proceeding, releasing Ben Cutler on bond and continuing the cause to May 25, 1939. On respondent's motion to dismiss the cause.

Cause dismissed.John E. Cassidy, Atty. Gen. (A. B. Dennis, of Springfield, of counsel), for petitioner.

Thomas J. Courtney, State's Atty., of Chicago (Jacob Shamberg, of Chicago, of counsel), for respondent.

JONES, Justice.

The People, on the relation of the Attorney General, filed an original petition in this court for a writ of mandamus requiring Harry M. Fisher, as judge of the circuit court of Cook county, to expunge an order entered on January 24, 1939, in a habeas corpus proceeding, releasing Ben Cutler on bond and continuing the cause to May 25, 1939. The petition further prays that respondent be required to enter an order commanding the managing officer of the Illinois Security Hospital at Menard to take Cutler into custody and imprison and hold him under an order of the county court of Cook county committing him to the Dixon State Hospital as a feeble-minded person. Respondent filed a motion to strike the petition and dismiss the cause. Thereafter, on June 13, 1939, while this proceeding was pending, respondent filed a motion to dismiss the cause for want of an actual controversy, alleging the questions had become moot by a hearing in the habeas corpus proceedings before respondent, on May 31, 1939, wherein respondent entered an order discharging Cutler. Petitioner filed objections to the motion and it was taken with the case.

The facts set out in the petition, and admitted by the motion to strike, show that Cutler's commitment to the Dixon State Hospital was on June 13, 1930. He was thereafter transferred to the Illinois Security Hospital at Menard. On January 4, 1939, upon a hearing before respondent, a writ of habeas corpus was quashed, the petition was dismissed and Cutler was remanded to the Illinois Security Hospital. On January 11, 1939, another petition for a writ of habeas corpus was stricken. On leave granted, an amended petition was filed, alleging Cutler had fully recovered. A return was filed denying Cutler had recovered, and alleging his several escapes from the Dixon State Hospital, numerous arrests on criminal charges during the periods of escape, with two sentences to the house of correction, and his transfer to the Illinois Security Hospital. On or about January 12, respondent orally ordered the managing officer of the latter institution to deliver Cutler to the sheriff of Cook county. On January 24, without hearing any evidence, respondent entered the order releasing Cutler on bond in the sum of $1,000, signed by Cutler and his wife, and continued the cause to May 25. While the habeas corpus proceeding was at this stage the petition in this cause was filed.

Petitioner's claims in support of the petition allege that the order to deliver Cutler to the sheriff was void as invading the powers and prerogatives of the executive department of the State government; that the release of Cutler on bond and continuance of the cause to May 25 was void for the same reason, and because it amounted to a parole, and that each of the orders was made without authority or jurisdiction to do so. The objections to the motion of June 13 to dismiss the cause as moot deny that it has become moot, and allege that the order of discharge is void; that respondent had no jurisdiction to enter it because it appears from the petition for the writ of habeas corpus and the return thereto that Cutler was not entitled to be discharged, and that the committing court is the only jurisdiction in which the order of commitment can be modified. The objections ask that respondent be further required to expunge the order of discharge, or, in the alternative, for leave to amend the petition to include it.

The first question to be determined is whether the cause has become moot. This requires a consideration of the nature of a habeas corpus proceeding and the effect of an order of discharge. The office of the writ of habeas corpus is to obtain the release of persons illegally restrained of their liberty. It is authorized only where the proceeding or judgment is absolutely void or the detention has become illegal by reason of some act, omission or event which has subsequently taken place, as provided in section 22 of the Habeas Corpus Act (Ill.Rev.Stat.1939, c. 65, § 22). People v. Hill, 350 Ill. 129, 183 N.E. 17;People v. Windes, 283 Ill. 251, 119...