People ex rel. Fosse v. Allman

• Decision Date: 06 September 1946
• Docket Number: Gen. No. 43190.
• Citation: 68 N.E.2d 203,329 Ill.App. 296
• Parties: PEOPLE ex rel. FOSSE v. ALLMAN, City Com'r of Police et al.
• Court: United States Appellate Court of Illinois

329 Ill.App. 296

68 N.E.2d 203

PEOPLE ex rel. FOSSE

v.ALLMAN, City Com'r of Police et al.

Gen. No. 43190.

Appellate Court of Illinois, First District, Third Division.

June 26, 1946.

Rehearing Denied Sept. 6, 1946.

Appeal from Circuit Court, Cook County; Cornelius Harrington, Judge.

Proceeding by the People, on the relation of Andrew M. Fosse, against James P. Allman, Commissioner of Police of the City of Chicago, the Civil Service Commissioners thereof, and the City Comptroller for a writ of certiorari to review the record of the Civil Service Commission in the matter of relator's discharge from the position of patrolman in the classified service of the city police department. From a judgment quashing the commission's return to the writ, defendants appeal.

Affirmed.Barnet Hodes, of Chicago (J. Herzl Segal and L. Louis Karton, both of Chicago, of counsel), for appellants.

Michael F. Ryan, of Chicago (Kirkland, Fleming, Green, Martin & Ellis, of Chicago, of counsel), for appellee.

BURKE, Justice.

Andrew M. Fosse filed a petition for mandamus in the Circuit Court of Cook County against the Commissioner of Police, the Civil Service Commissioners and the Comptroller of the City of Chicago to compel restoration to the position formerly held by him as a patrolman in the classified service of the Department of Police, from which he was discharged after a hearing before the Civil Service Commission. After the opinion of the Supreme Court in People ex rel. Elmore v. Allman et al., 382 Ill. 156, 46 N.E.2d 974, upon leave of court, he changed the form of action to certiorari and filed an amended complaint for a writ of certiorari to review the record of the Civil Service Commission. Defendants' motion to strike the amended complaint for certiorari was denied and a writ issued. The Commission filed its return. The court sustained plaintiff's motion to quash the return and defendants appealed.

On November 28, 1941 plaintiff was a patrolman in the classified service of the Department of Police of the City of Chicago. On December 12, 1941 charges were filed against him.

Defendants state that on certiorari to review the proceedings of the Commission, courts have power only to inspect the record to determine whether the record establishes the jurisdictional facts pertaining to the person, the subject matter and the grounds for discharge, and a proper legal procedure for removal under Section 12 of the Civil Service Act, Ill.Rev.Stat.1945, c. 24 1/2, § 51, and that where the record shows such facts the court possesses no power to inquire into the discretion exercised by the Commission or to set aside its findings and compel reinstatement of a discharged employee. We are of the opinion that defendants' statement of the law, as above given, is supported by the authorities. Plaintiff does not argue to the contrary. Defendants maintain, further, that the Commission is not required by law to include in its return to a writ of certiorari a transcript of the evidence given at the hearing, and that the absence of a transcript of the evidence is not ground for quashing the return. Plaintiff insists that the jurisdictional facts must be established by the record; that ‘the mere recital that evidence was heard and the mere purported ‘findings' of the Commission are not sufficient to show jurisdiction; that they are but conclusions; that with no transcript of testimony or certificate of evidence in the return there is nothing from which the court can see that the jurisdictional facts were established by any evidence proving, or tending to prove, them.’

The purpose of the writ of certiorari is in all cases to prevent injustice. Board of Supervisors v. Magoon, 109 Ill. 142. It is not a writ of right, the petition being addressed to the discretion of the court. It is awarded where inferior tribunals are shown to have exceeded their jurisdiction, or in cases where they have proceeded illegally and no appeal is allowed and no other mode of directly reviewing their proceedings is provided. The Commission, being a part of the executive and not of the judicial branch of the government, no appeal will lie from its decision even though the statute should purport to grant one. City of Aurora v. Schoeberlein, 230 Ill. 496, 82 N.E. 860. The only office which the writ performs is to certify the record of a proceeding from an inferior to a superior tribunal. Funkhouser v. Coffin, 301 Ill. 257, 133 N.E. 649. The trial is on the record alone. Crocher v. Abel, 348 Ill. 269, 180 N.E. 852. The court will only examine questions of law arising out of the proceedings of an inferior tribunal. The complaining party does not have an opportunity to have the case retried. As long as the Commission had jurisdiction and followed the form of proceedings legally applicable, the court is without power to disturb the order where there is evidence which fairly tends to sustain the order. The decision of the Commission on the facts is final and not reviewable by the courts. People ex rel. Miller v. City of Chicago, 234 Ill. 416, 84 N.E. 1044. The power to remove from office, however, is not an arbitrary one. ‘Where a statute provides that an officer may be removed, but only for cause and after an opportunity to be heard, the power thus granted is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, for in no other way can he have an opportunity to be heard.’ Funkhouser v. Coffin, 301 Ill. 257, 133 N.E. 649, 650. There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction. Nothing is taken by intendment in favor of such jurisdiction but the facts upon which the jurisdiction is founded must appear in the record. Funkhouser v. Coffin, 301 Ill. 257, 133 N.E. 649. This jurisdiction must appear affirmatively in the record.

The only power which the Civil Service Commission has to remove from office is conferred on it by Sec. 12 of the Civil Service Act, the pertinent portion of which reads: ‘Excepting as hereinafter provided in this section, no officer or employe in the classified civil service of any city who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. * * * The finding and decision of such commission or investigating officer or board, when approved by said commission, shall be certified to the appointing officer, and shall forthwith be enforced by such officer.’ This statute forbids the exercise of the power of removal ‘except for cause, upon written charges and after an opportunity to be heard.’ The jurisdictional facts upon which the Commission must base its power of removal are: (1) Cause, (2) written charges and (3) an opportunity to be heard in his own defense. This latter jurisdictional fact contains two parts: (a) Notice of the charges and the time and place of hearing and (b) the participation in the hearing by the person charged and the introduction of testimony. These are the statutory prerequisites to the exercise of the power of removal. Plaintiff admits that the return is sufficient to show that written charges were filed and that plaintiff received a copy of them with the specifications, together with notice of the time and place of a hearing. Also, that the return shows a finding of guilty. Plaintiff contends that the return is not sufficient to show the following necessary jurisdictional facts: (a) Cause, (b) that a hearing was had at which witnesses testified and at which hearing plaintiff participated, and (c) that evidence and testimony tending to prove the charges was offered, received or heard. Plaintiff asserts that the recitals in the return are not enough to show jurisdiction; that they are nothing more than mere conclusions; and that the testimony must be included, which is the only sure and safe way to show that the required jurisdictional facts were actually present.

We agree with plaintiff that where the jurisdiction of the Commission is challenged, the return should include the transcript of the testimony. In the instant case the testimony is a part of the record of the Civil Service Commission. The return so recites. The courts are not precluded by the Commission's mere recital. ‘The record must show that the board acted upon evidence, and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order.’ Funkhouser v. Coffin, 301 Ill. 257, 133 N.E. 649. In the Funkhouser case the court cited as authority the cases of Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N.E. 767;Tazewell Coal Co. v. Industrial Comm., 287 Ill. 465, 123 N.E. 28; and Glos v. Woodard, 202 Ill. 480, 67 N.E. 3. In the Funkhouser case counsel for the commissioners argued that the decisions of the court in the Hahnemann and Tazewell cases were under a special statute which required the evidence to be preserved and that, therefore, those authorities were not in point. Answering this contention the court said (301 Ill. 262, 133 N.E. 651):

‘We cannot so hold. It is clear that in the Hahnemann Hospital case the court was not laying down the rule simply because that statute required the evidence to be preserved, but in accordance with the general rule governing the common-law writ of certiorari, for it cites the general doctrine as to this writ laid down in 4 Ency. of Pl. and Pr. 262, 11 Corpus Juris 205, and 5 R.C.L. 265; and the rule laid down by these authorities was applied to the common-law writ of certiorari whether or not a special statute applied as to the preservation of the evidence in the record, such as required by the Workman's Compensation Act. The holdings of this court are that the return...