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People Ex Rel. Stone v. Wilson

JUNE 16, 1969.




Appeal from the Circuit Court of Boone County, Seventeenth Judicial Circuit; the Hon. ARTHUR V. ESSINGTON, Judge, presiding, Petition for writ of mandamus below dismissed.


Fred Stone appeals from the denial of his petition for Writ of Mandamus directed against the defendants as members of the board of trustees of the police pension fund of the City of Belvidere. He was denied certification for reinstatement to the police department of that city.

Stone had been a Belvidere policeman from 1934, until he left the force as its Chief on January 16, 1954. During his service he sustained an injury which became the basis for his request for a disability pension which was granted.

In 1967 relator notified the Board that his disability had ceased and he wished to be reinstated and returned to active duty and, as a consequence, was examined by a medical doctor. On March 9, 1967 the Board held a hearing and denied the request. The mandamus suit was filed in September of 1967.

Stone has argued that the Board had no discretion to refuse reinstatement upon a medical examination showing recovery from the disability, and that the court below ruled contrary to the manifest weight of the evidence. Defendants suggest that judicial review has been barred by failure to seek review in the time and in the manner provided by the Administrative Review Act (Ill Rev Stats 1967, c 110, §§ 265, 267), but that, in any event, the record supports the action of the trial court.

Defendants emphasize the failure to take action within the thirty-five days from the date of service of the decision sought to be reviewed. Relator points out that this objection was not raised in the trial court and must be considered as waived. To the extent that this argument constitutes a challenge to the court's jurisdiction over the person of the defendants we agree that it has been waived. See Motorola, Inc. v. Illinois Fair Employment Practices Commission, 34 Ill.2d 266, 272-3, 215 N.E.2d 286 (1966); Leffler v. Browning, 14 Ill.2d 225, 228, 151 N.E.2d 342 (1958).

But the more fundamental issue raised by the record is whether the court had jurisdiction of the subject matter of the mandamus action. If it did not, the jurisdictional issue cannot be waived and is fatal to the judgment when raised at any time. Sweitzer v. Industrial Commission, 394 Ill. 141, 68 N.E.2d 290 (1946); In re Petition To Annex Certain Territory to Village of Willowbrook, 37 Ill. App.2d 393, 402, 185 N.E.2d 696 (1962); Meyer v. Meyer, 328 Ill. App. 408, 418-419, 66 N.E.2d 457 (1946).

A court may and should of its own motion dismiss the proceedings where want of jurisdiction appears. Village of Glencoe v. Industrial Commission, 354 Ill. 190, 188 N.E. 329 (1933); United States v. Storer Broadcasting Co., 351 U.S. 192 (1956).

The statute, under which the initial proceedings were had before the Pension Board, provided expressly, that the "provisions of the Administrative Review Act . . . shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board. . . ."

The Administrative Review Act (Ill Rev Stats 1967, c 110, § 265) includes the review of acts of administrative agencies which adopt its provisions, and expressly states that,

"In all such cases, any other statutory, equitable or common law mode of review . . . shall not be employed. . . ."

Numerous cases have held that mandamus is a common law mode of review, and that the Administrative Review Act (supra) was designed to provide a single, uniform method by which administrative decisions of a state governmental agency could be reviewed. See Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 37, 101 N.E.2d 71 (1952); Pearce Hospital v. Public Aid Commission, 15 Ill.2d 301, 307, 154 N.E.2d 691 (1958); People ex rel. Chicago & N.W. Ry. Co. v. Hulman, 31 Ill.2d 166, 169, 201 N.E.2d 103 (1964); The People ex rel. Carpentier v. Goers, 20 Ill.2d 272, 277, 170 N.E.2d 159 (1960); People ex rel. Goldfarb v. White, 54 Ill. App.2d 483, 203 N.E.2d 599 (1964).

It is our opinion that the court below, although one of general jurisdiction, was required to act under the statute conferring special jurisdiction in Administrative Review cases, with jurisdiction of the subject matter limited by the language of the statute. Section 9 of the Judicial Article (Art VI, § 9) provides that "The Circuit Court shall have unlimited original jurisdiction of all justiciable matters and such powers of review of administrative action as may be provided by law." We believe this section recognizes the continued existence of substantive rules which have denied original jurisdiction courts the power to hear a particular and limited subject matter, when a method of judicial review is offered which is constitutionally permissible and remedially adequate.

Where an applicable statute prescribes a specific and exclusive form of review, all other forms are excluded; and if a court, after acquiring jurisdiction of a subject matter, transcends the limits of the conferred jurisdiction, its judgment becomes void. Sweitzer v. Industrial Commission (supra) 147-8; City of Freeport v. Kaiser, 311 Ill. App. 197, 203, 35 ...

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