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Rasky v. Anderson

OPINION FILED MAY 26, 1978.

BENJAMIN A. RASKY, PLAINTIFF-APPELLANT,

v.

JOAN G. ANDERSON, DIRECTOR, DEPARTMENT OF REGISTRATION AND EDUCATION, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE MEJDA delivered the opinion of the court:

Plaintiff, Benjamin A. Rasky, filed suit against defendants, the Department of Registration and Education (Department) and its director, Joan Anderson, seeking a declaratory judgment and injunctive relief. The trial court granted defendants' motion to dismiss plaintiff's suit "because the Court finds that the present action is premature and that plaintiff has failed to exhaust his administrative remedies." Plaintiff on appeal argues that the trial court erred, since the law is that one may attack the constitutionality of a statute on its face without prior resort to related administrative remedies. See People ex rel. Kreda v. Fitzgerald (1975), 33 Ill. App.3d 209, 338 N.E.2d 76; Hill v. Daley (1975), 28 Ill. App.3d 202, 328 N.E.2d 142.

We dismiss the appeal. The pertinent facts follow.

On or about January 25, 1977, plaintiff received notice and a complaint stating that the Department would seek the suspension or revocation of his real estate broker's license. The complaint charged that plaintiff owned and operated several buildings which violated the Municipal Code of Chicago, and that in allowing certain conditions (i.e., roach infestation, debris and dirt in the hallways, lack of hot water) to persist plaintiff had violated sections 15(e)11 and 21 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1975, ch. 114 1/2, pars. 115(e)(11), 115(e)(21), *fn1 as well as rule XI of the rules promulgated by the Department pursuant to said Act. A hearing was set for February 22, 1977; however, the matter was continued until June 14, 1977.

On June 14, 1977, plaintiff filed the instant action in the circuit court seeking a declaratory judgment that certain pertinent provisions of the Act, *fn2 as well as the Department's rule XI, were unconstitutional and requesting that the court stay any proceedings by the Department to revoke or suspend his broker's license. Meanwhile, at the Department's offices the hearing was held ex parte before the Real Estate Examining Committee (Committee), plaintiff having failed to appear until some 15 minutes after the conclusion of the hearing despite proper notice to him of both its time and place.

On July 15, 1977, the trial court dismissed plaintiff's action as noted earlier, without reaching the merits of his complaint. On July 20, 1977, the Committee made its findings of fact and conclusions of law based on the June 14 hearing, and recommended to the director of the Department that plaintiff's broker's license be revoked. On August 2, 1977, plaintiff was notified of this recommendation and informed that he had 20 days therefrom to petition the director for a rehearing. His petition was denied, and in fact his broker's license was revoked by the Department on October 21, 1977.

Plaintiff did petition the court to reconsider its dismissal order of July 15. The court denied the motion and this appeal follows.

OPINION

As a threshold issue we first must consider whether the subsequent revocation of plaintiff's broker's license has rendered this case moot. We conclude that it has.

• 1 The proposition is established that a court of review will not ordinarily dispose of an appeal on its merits where the court has notice of facts that demonstrate that no actual rights or interests of the parties will be affected thereby. (Wheeler v. Aetna Casualty & Surety Co. (1974), 57 Ill.2d 184, 311 N.E.2d 134.) It is the duty of this court to decide actual controversies which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. (In re Mullins (1975), 35 Ill. App.3d 47, 341 N.E.2d 140.) An abstract question is one in existence, but for which no effectual relief can be granted. Harney v. Cahill (1965), 57 Ill. App.2d 1, 206 N.E.2d 500.

• 2 In the instant case it is no longer within the power of this court to render any effective relief to plaintiff. His broker's license has already been revoked, and while plaintiff could have contested and appealed that decision pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, pars. 264 through 279), he failed to do so. The revocation has become a final, non-appealable order, not subject to attack through the instant proceedings. Therefore, our pronouncements upon the issues raised by plaintiff in this appeal, even if favorable to him, would have no effect in restoring his license. A reversal could not act to prohibit an action which already has occurred and cannot be recalled with any practical effect. (See In re Mullins.) Plaintiff should have pursued his administrative remedies, and perhaps have consolidated his causes on appeal to this court.

Thus, we conclude that the instant appeal is moot in light of our inability to render any effective relief to plaintiff. Courts> are not required to review questions of a refusal to grant declaratory or injunctive relief where the relief sought involves a matter that has become moot. (Knight v. Board of Education ...


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