APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiffs Quinlan and Tyson, Inc., a real estate brokerage firm, and Jody Taylor, a sales representative of Quinlan and Tyson, filed a complaint in the circuit court of Cook County asking for administrative review (Ill. Rev. Stat. 1973, ch. 110, § 264 et seq.) of a finding by defendant Evanston Fair Housing Review Board that Quinlan and Tyson and Jody Taylor were guilty of engaging in various discriminatory practices in violation of the Fair Housing Ordinance of the city of Evanston. (Evanston, Ill., Code 1970, ch. 25 1/2, § 25 1/2-1 et seq.) The circuit court set aside the findings of the Evanston Fair Housing Review Board and defendants City of Evanston and the Evanston Fair Housing Review Board take this appeal.
The apparent applicability of two recent Illinois Supreme Court decisions, Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22, and Paper Supply Co. v. City of Chicago, 57 Ill.2d 553, 317 N.E.2d 3, regarding the use of the Administrative Review Act by municipal administrative agencies requires comment before proceeding to the merits of this appeal. We conclude that, although these two cases require invalidation of that section of the Evanston ordinance incorporating the Administrative Review Act, they do not require a dismissal of the instant appeal for lack of jurisdiction.
The Evanston Fair Housing Ordinance under which plaintiffs were charged and convicted states:
"Any broker whose license has been suspended or revoked, or any complainant aggrieved by the decision of the Board, shall have full right to appeal from such order of suspension or revocation in accordance with procedures specified in the Administrative Review Act of Illinois." (Evanston, Ill., Code 1970, ch. 25 1/2, § 25 1/2-17.)
It was apparently pursuant to this authorization that plaintiffs sought administrative review in the circuit court of Cook County of the Board's findings. However, after the circuit court had set aside the Board's findings, the Illinois Supreme Court decided Paper Supply Co. v. City of Chicago, 57 Ill.2d 553, 317 N.E.2d 3.
In Paper Supply Co., the city of Chicago had made the Administrative Review Act applicable to the administrative decisions rendered under Chicago's "head-tax" ordinance. However, the court held such a provision invalid, stating:
"The method of judicial review of the decisions of the defendant city's administrative agencies is not a `function pertaining to its government and affairs' within the contemplation of section 6 of article VII of the Constitution of 1970 [Home Rule provisions], and the determination of the manner or method of such review is not within the powers conferred upon the City." 57 Ill.2d 553, 580.
The court relied on Paper Supply Co. in the subsequent case of Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22. In Cummings, the Chicago Fair Housing Ordinance had incorporated the Administrative Review Act of Illinois in a provision almost identical to the provision now before us in the Evanston Fair Housing Ordinance. However, again, the court invalidated that provision, holding that the city did not have the power to choose the particular method of judicial review of its administrative agencies.
• 1 It is clear that if the home-rule provisions of the Illinois Constitution did not grant the necessary power to the city of Chicago to choose a particular method of judicial review, neither did the city of Evanston have the necessary power to do so. In Cummings the court invalidated a provision strikingly similar to the provision before us. We have no alternative but to do likewise.
• 2 However, although the section in the Evanston ordinance conferring jurisdiction in the circuit court through the Administrative Review Act was invalid, it does not necessarily follow that the circuit court was without jurisdiction. The Administrative Review Act did not expand the subject matter jurisdiction of the circuit courts. Circuit courts have historically had jurisdiction to review administrative decisions as provided by law. (Ill. Const. (1870), art. VI, § 9; Ill. Const. (1970), art. VI, § 9.) The purpose of the Act was to dispense with the use of mandamus, certiorari, injunction and other actions as a means of reviewing the decisions of administrative agencies, and thus to provide a single uniform method of review. (People ex rel. Builders Supply & Lumber Co. v. Village of Maywood, 22 Ill. App.2d 283, 160 N.E.2d 689.) The Administrative Review Act provides a simple single procedure for a review from specified administrative decisions, but it was not intended to be a trap for the unwary or to establish a bar to relief. (Chestnut v. Lodge, 34 Ill.2d 567, 216 N.E.2d 799.) It thus appears that the Administrative Review Act did not change or expand the subject matter jurisdiction of the circuit courts; it merely provided a single vehicle for the exercise of that jurisdiction in specified cases.
Consequently, the instant facts do not present a lack of subject matter jurisdiction, but rather, the utilization of the improper vehicle for exercising that jurisdiction. As the cases decided before enactment of the Administrative Review Act make clear, the proper method for review of administrative decisions was by writ of certiorari. (People ex rel. Elmore v. Allman, 382 Ill. 156, 46 N.E.2d 974.) And although the Administrative Review Act has replaced certiorari for review of State administrative agencies, it appears certiorari has remained the appropriate method for review of municipal administrative agencies. In view of the foregoing principles, two possible dispositions of the instant case emerge: *fn1
(1) a remand of the instant case so that plaintiffs may petition the circuit court for a writ of certiorari, or (2) that this court view the instant record as though a writ of certiorari had already been granted. However, after a review of the law applicable in a certiorari proceeding, we conclude that a remand of the instant case would serve no useful purpose, and accordingly, we will view the instant case as though certiorari had been granted by the circuit court. *fn2
• 3, 4 The procedure for judicial review of administrative decisions by way of certiorari is not unlike the procedure for review by way of the Administrative Review Act. In a certiorari proceeding, the relevant records of the administrative agency are brought before the court. The record must show that the agency acted upon evidence, and it must contain the testimony upon which the decision of the agency was based. (Carroll v. Houston, 341 Ill. 531, 173 N.E. 657.) The trial is to consist only of an inspection of the records of the agency. (Goodfriend v. Board of Appeals, 18 Ill. App.3d 412, 305 N.E.2d 404.) In such proceedings, the court cannot consider any matter not appearing of record. (People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785.) The only province of the trial court is to consider the record and ascertain whether the agency had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency. Where the agency is not arbitrary in its findings and there is evidence in the record of its proceedings which fairly tends to support the finding, a reviewing court is not justified in substituting its judgment for the discretion and judgment of the agency. (Prendergast v. Retirement Board, 325 Ill. App. 638, 60 N.E.2d 768.) In such cases the question before the court is never whether the agency's decision is wise or discreet, but only whether there is any evidence fairly tending to support the order reviewed. Mayor v. Dean, 62 Ill. App. 41; Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453.
• 5 In view of these principles, it is clear that no useful purpose would be served by a remand of the instant case for the issuance of a writ of certiorari. The circuit court could consider no additional testimony or record than that which is before this court. Similarly, neither the circuit court nor this court should weigh the evidence, draw inferences of fact, or substitute its judgment for that of the administrative agency. As set out above, the role of a reviewing court in a certiorari proceeding is limited and clearly defined. Since the circuit court would be in no more advantageous position to review this record than this court already is, we will consider the record as though certiorari had been granted by the circuit court. Cf. Mandis v. Gorski (1965), 24 App. Div.2d 181, 265 N.Y.S.2d 210.
It must be emphasized that the procedural facts presented by this case are highly unusual. Until the supreme court decided Paper Supply Co., the use of the Administrative Review Act by municipal administrative agencies had not been questioned by either the courts or the members of the bar. The litigants in the instant case cannot be faulted for not having anticipated the holding in Paper Supply Co. To now require these parties to return to the circuit court and start the litigation anew would be unduly harsh and, in view of the reasons above, unneeded. To require these parties to commence a new action merely to put a different label on the record already before us would elevate the technical subtleties of pleading to a degree far greater than that required to maintain an orderly system of justice and would result in unneeded delay and expense. Instead, this court will apply the fundamental principle that courts should consider the substance of litigation and not the form. In so doing, effect will be given to the dictates of the Civil Practice Act that require the rules of civil practice to "be liberally construed, to the end that controversies may be speedily ...