APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order reinstating plaintiff, a suspended Chicago police officer, and restoring him to duty while charges were pending before the police board seeking his discharge.
Plaintiff was arrested and charged by complaint with (1) the possession of marijuana, in violation of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 705); (2) the possession of robetusin, in violation of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402); and (3) the improper use of the vehicle license plates of another, in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 3-703.) Thereafter, on preliminary hearing, plaintiff's motion to quash the arrest and suppress the evidence was sustained, and there was a finding of no probable cause. An appeal has been taken therefrom which remains pending.
Plaintiff then brought this suit, in which he alleges that on the day following his arrest, the superintendent of police suspended him and filed charges with the Police Board, seeking his permanent discharge, and that "on information and belief" his suspension was based "solely and only" on the filing of the criminal charges against him, and that his due process and equal protection rights were violated, because (1) the mere pendency of criminal charges against him was not cause for suspension, since the superintendent did not suspend other named officers against whom criminal charges have been placed; and (2) that any cause which may have existed was dissipated by the criminal court's finding of no probable cause. He prayed for (1) an injunction prohibiting the hearing by the Police Board of any charges seeking his discharge; and (2) his reinstatement as a police officer. Defendants moved to strike and dismiss, contending the court lacked jurisdiction and that the complaint failed to state a cause of action.
Before there was a ruling on this motion, plaintiff notified defendants he would move "for temporary relief until such time as disposition of charges pending before the police board * * * are made." There is nothing in his notice of motion or in the record to indicate the nature of the relief desired. Thereafter, a hearing was held and, on the pleadings and arguments, the court ordered plaintiff reinstated and restored to duty "until such time as a disposition is had on the charges pending before the police board * * *." Subsequently, an order was entered denying the stay of the restoration, and defendants have appealed both orders. During the pendency of the appeal, this court granted a stay of the restoration order.
In their brief, defendants state the issue presented for review as follows: "Whether the Superintendent of Police is required to retain in service, pending disposition of charges seeking his discharge, a police officer whom the superintendent believes to be unfit." Plaintiff, in his brief, however, admits the power to suspend prior to the removal hearing but argues that this power may be exercised only for cause, which he maintains is lacking here.
• 1 We initially note that the trial court's jurisdiction was contested in defendant's motion to strike and dismiss, and that there was no ruling on this motion prior to the entry of the restoration order. Jurisdiction over subject matter cannot be conferred by waiver (Klaren v. Board of Fire & Police Commissioners, 99 Ill. App.2d 356, 240 N.E.2d 535) and may be raised at any time, even on appeal. (Werner v. Illinois Central R.R. Co., 379 Ill. 559, 42 N.E.2d 82.) As stated in Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 302, 31 N.E.2d 299:
"It is a familiar rule that when a court has no jurisdiction of the subject matter, it cannot be conferred by consent, and when lack of jurisdiction appears the court should decline to proceed further in the cause. * * * Whether the question of jurisdiction was raised in the lower court is immaterial. There can be no waiver of jurisdiction of the subject matter where the trial court lacked jurisdiction to enter the order appealed from."
Neither does the court acquire jurisdiction by a mere recital in an order, which is contrary to what is shown in the record (Koplin v. Thomas, Haab & Botts, 73 Ill. App.2d 242, 219 N.E.2d 646) and, although there is a presumption in courts of general jurisdiction that the trial court has jurisdiction (Logsdon v. Nolen, 108 Ill. App.2d 46, 248 N.E.2d 525), it applies only where the record is silent on the question. (People ex rel. Carlstrom v. Shurtleff, 355 Ill. 210, 189 N.E. 291.) Here, the complaint asserts the pendency of charges before the Police Board and, from other allegations therein, it appears clear that plaintiff's suspension and the charges filed with the Board were steps in the administrative process which would culminate in its decision. Under such circumstances, it is the general rule that administrative remedies should be exhausted before resort to the courts is had to challenge the administrative decisions. Klaren; Oliver v. Civil Service Com., 80 Ill. App.2d 329, 224 N.E.2d 671.
In view thereof, we must ascertain whether the action of the superintendent in suspending and filing charges was a decision reviewable by the court. We note that article VI, section 9, of the Illinois Constitution (Ill. Const., art. VI, § 9) provides in part that "Circuit Courts shall have such power to review administrative action as provided by law." In this regard, the pertinent statutes are:
Section 2 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 265), which provides:
"This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies ...