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People Ex Rel. Kennedy v. Hurley





Appeal by defendants from the Circuit Court of Cook county; the Hon. HARRY M. FISHER, Judge, presiding. Heard in the second division of this court for the first district at the December term, 1951. Judgment reversed and cause remanded with directions. Opinion filed October 28, 1952. Rehearing denied December 9, 1952. Released for publication December 9, 1952.


Rehearing denied December 9, 1952

This is an appeal from an order entered June 28, 1951 quashing a return to a writ of certiorari and directing the restoration of relator to his position as a police officer of the City of Chicago. The sole basis for the order was that respondents had not returned a transcript of the evidence. That transcript, according to respondents' certification, had been lost in the period of eleven years intervening between the time of the discharge and the trial.

In April 1940 charges were filed with the Civil Service Commission against relator by the Commissioner of Police of the City of Chicago. Specifications and a list of eighteen witnesses were appended. The record shows that all the steps provided for by the Civil Service Act were taken by the Commission. On April 15, 1940, after a hearing, the Commission found in substance that from about May 1, 1938 to November 1, 1938 relator was or purported to be the head of a "Private Property Protective Union," and in that capacity and while in police uniform, he approached certain special private detectives and sought to collect dues, to compel one of them to take over the business of another, and to do other things obnoxious to those private citizens, using threats to obtain his end. Details of names, times and places are set forth in the findings, and it is particularly stated that as to one of those occasions the activities occurred while relator was assigned to police duty, naming the post and district he was supposed to be traveling, and finding that this outside activity was without permission of his superior officer. The Commission directed his discharge from the service.

On August 9, 1940 relator filed a petition for mandamus to compel his reinstatement, and on March 25, 1943, he changed his complaint to a petition for a writ of certiorari. Respondents answered on April 19, 1943. On June 16, 1950 respondents filed a motion to dismiss because of the delay in prosecution. The court overruled that motion. The answer was accordingly amended. On February 20, 1951 the court ordered the writ to issue. Respondents duly filed their return, which included the record before referred to. Appended to the record was a certificate signed by the three respondents which recited that the return of the record was "* * * true, full and complete * * * except for the transcript of evidence taken at said hearing, which said transcript has been lost." (Italics added.) When the matter came on for hearing the court turned to counsel for relator and inquired whether he wanted to get his man back on the force or was looking for back salary. After this there were numerous dialogues concerning waiver of relator's claim for salary, which finally wound up on an inconclusive note. This phase of the matter will be further considered in our discussion of the question of laches. Without further hearing on any of the other points involved, the order quashing the return was entered June 28, 1951.

The first question presented is whether failure to produce the transcript of evidence upon a return of the writ was fatal to the order of discharge.

Following enactment of the Civil Service Act, a series of decisions definitely limited the power of the courts in cases of this character. City of Aurora v. Schoeberlein, 230 Ill. 496; People v. City of Chicago, 234 Ill. 416; McQuade v. City of Joliet, 293 Ill. 515; Hopkins v. Ames, 344 Ill. 527; Schlau v. City of Chicago, 170 Ill. App. 19; Johaaski v. City of Chicago, 274 Ill. App. 423; and Drury v. Hurley, 339 Ill. App. 33. These decisions hold that the Civil Service Commission is part of the executive department of government and that the administration of a police department is an executive Act; that there is no title or property in a public office; and that, therefore, under the separation of powers provision of article 3 of the Illinois Constitution, the removal of an officer is not judicially reviewable. In the earliest case on this question, City of Aurora v. Schoeberlein, supra, the court made a clear distinction between that class of cases affecting the employment or discharge of employees in civil service, and those cases involving individual or property rights where the court had jurisdiction under some other form of procedure. We discussed the above cases in Harrison v. Civil Service Commission, 347 Ill. App. 405.

Shortly after passage of the Civil Service Act, efforts were made through certiorari proceedings to induce courts to review civil service proceedings. In one of the earliest cases in which certiorari was sought for the review of civil service proceedings, People v. Lindblom, 182 Ill. 241, the court held that certiorari applied, but that the only question which could be considered on such review was whether the Civil Service Commission had jurisdiction and had followed the form of proceedings legally applicable. Not until the case of Funkhouser v. Coffin, 301 Ill. 257 (1922), was this limitation on review extended. There, plaintiff, after charges had been filed against him, was removed from his position as second deputy superintendent of police. The Commission's findings recited nothing more than that he was "guilty as charged." No specific findings of fact were made. The court said (p. 261):

"It is manifest that the finding that the appellee was guilty as charged is a mere conclusion of law. No fact was stated by which the court was able to see that the conclusion was true. `A quasi judicial tribunal of inferior jurisdiction must recite the facts, or preserve the facts themselves, upon which its jurisdiction depends.' (Troxell v. Dick, 216 Ill. 98.) `But the recital that due notice was given is not sufficient in a case of this kind. * * * Such recital is a mere conclusion of law. Facts must be stated from which the court is able to see that this conclusion is true.' (Highway Comrs. v. Smith, 217 Ill. 250.)"

The Funkhouser case was construed in the same year in Cord v. Coffin, 226 Ill. App. 326 (1922). There, the Commission's finding was similar to that in the Funkhouser case, that is, "guilty as charged." In construing the Funkhouser case, the court held that the proper method to pursue was to have the record recite the particular facts which the Commission found and which it considered constituted a cause for removal.

Following this, in a number of cases the Appellate Court held that it was sufficient if the findings of the Commission were specific and not in the general language of the finding in the Funkhouser case. Buttimer v. Geary, 229 Ill. App. 524 (1923); People ex rel. Holland v. Finn, 247 Ill. App. 53 (1927); and Murphy v. Houston, 250 Ill. App. 385 (1928). In the Buttimer case, supra, the trial court, for alleged informality, struck the transcript of the evidence which had been returned. The court, after holding that a trial such as this was not a common law or criminal proceeding but an investigation, in which the formality required in actions at law was not essential, said that what was required in a return was a recital of the facts, or the evidence of them. In People ex rel. Holland v. Finn, supra, so far as appears from the statement of facts, no transcript of the evidence was returned. The court nevertheless held that the finding setting out specific facts established the jurisdiction of the Commission, and cited the Funkhouser case as one of the authorities therefor.

In Carroll v. Houston, 341 Ill. 531 (1931) (opinion by Commissioner Partlow) relied on by both parties in the instant case, the trial and appellate courts were reversed and the order of the Commission sustained. In the opinion the following language occurs:

"Under a common law writ of certiorari it is not necessary that the evidence be certified or that there be a certificate of facts outside of the record but the trial ...

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