{ "id": 5113410, "name": "People of State of Illinois ex rel. Orlando Vestuto, Appellee, v. Timothy J. O'Connor, Commissioner of Police of City of Chicago et al., Appellants", "name_abbreviation": "People ex rel. Vestuto v. O'Connor", "decision_date": "1953-10-07", "docket_number": "Gen. No. 45,956", "first_page": "539", "last_page": "545", "citations": [ { "type": "official", "cite": "351 Ill. App. 539" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "351 Ill. App. 545", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5111544 ], "opinion_index": 0, "case_paths": [ "/ill-app/351/0545-01" ] }, { "cite": "337 Ill. App. 661", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5016520, 5012300 ], "opinion_index": 0, "case_paths": [ "/ill-app/337/0661-01", "/ill-app/337/0661-02" ] } ], "analysis": { "cardinality": 447, "char_count": 7180, "ocr_confidence": 0.571, "pagerank": { "raw": 2.3854832030610603e-07, "percentile": 0.7972588363259788 }, "sha256": "44d8938ad7d17fbfeb4ad5de0e9e3e9ca832011caf782a6440c26a96c14e226f", "simhash": "1:31e7c1372b8947e8", "word_count": 1173 }, "last_updated": "2023-07-14T20:54:13.542784+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of State of Illinois ex rel. Orlando Vestuto, Appellee, v. Timothy J. O\u2019Connor, Commissioner of Police of City of Chicago et al., Appellants." ], "opinions": [ { "text": "Mr. Justice Kiley\ndelivered the opinion of the court.\nThis is a mandamus suit to compel the reinstatement of relator Orlando Vestuto to the Chicago Police Department from which he had been discharged. Defendants moved to strike the complaint. The motion was denied and they stood by the motion. Judgment was entered for the relator ordering the writ to issue. Defendants have appealed.\nThe motion to strike admitted the following facts: Vestuto completed the Civil Service examination for patrolman in March, 1947. The list of successful candidates was posted September 12, 1947. The Commission investigated his moral character, found it good and certified him October 16, 1951 to the Commissioner of Police for appointment. Vestuto performed the duties that were assigned him until November 17, 1951, when he was suspended. He was discharged November 23, 1951.\nSection 10 of the City Civil Service Act (chap. 24\u00bd, Ill. Rev. Stat. [1951, \u00a7 48; Jones Ill. Stats. Ann. 23.049]) authorizes the Police Commissioner, as a \u201cdepartment head,\u201d to discharge patrolmen during the probationary period of six months, \u201cby and with the consent of said commission . . . upon assigning in writing his reas.on . . . .\u201d November 16, 1951 the Police Commissioner requested authority to discharge Orlando Vestuto for having been \u201cArrested November 5, 1934. Charged with burglary and malicious mischief.\u201d Attached to the letter-was a report: \u201cFrom Sgt. James Ryan\u201d on \u201cSubject: Character investigation of candidate Patrolman Orlando Vestuto. Juvenile Court Record.\u201d There followed a statement that Orlando Vestuto, 13 years of age with three other boys, 10 to 15 years old, had in 1934 entered a window of Mitchell School and wrecked and damaged the principal\u2019s office and other rooms, threw ink, paper and \u201c. . . took fountain pen, pencils, paste, a $3.00 cake and a $6.50 pair of shoes, damaged furniture etc.\u201d The school\u2019s damages were $650 and the statement indicated Vestuto had \u201cNo Record.\u201d Vestuto was committed to the Chicago Parental School for four months.\nAfter this commitment Vestuto returned to Mitchell School and was graduated in 1936. He entered the United States Army as a private in 1944, served in the South Pacific and was honorably discharged in 1946 as a sergeant. He worked as a laborer and bricklayer apprentice before appointment to the police department. When suit was filed he was 30 years of age and was living with his wife and two children. Both of his children were attending Mitchell School when Vestuto was discharged from the police force.\nRule II, sec. 6 of the Rules of the Commission provide among other things that before \u201cfinal action\u201d by the Commission, a probationer, \u201cappointee,\u201d upon proof of \u201cbad character and immoral conduct\u201d shall be given an opportunity to be heard. People ex rel. Bergquist v. Gregory, 337 Ill. App. 661. It is conceded that the Commission Rules have the binding effect of the Civil Service Act. It is conceded also that Vestuto was given no opportunity to be heard.\nWe presume that the \u201cconsent\u201d required under sec. 10 of the City Civil Service Act was intended as a check upon the arbitrary action of a department head. We presume too that the \u201copportunity to be heard\u201d in Rule II, sec. 6 of the Commission Rules was intended as a restraint against arbitrary action by the Commission itself. The right to have his discharge consented to by the Commission was a substantial right of Vestuto.\nThe term consent implies an intellectual act giving assent (People v. Walker, Gen. No. 45957 [351 Ill. App. 545], opinion filed concurrently with this opinion). Consent implies a knowledge of the facts. We think that the knowledge needed for consent is that which the ordinary prudent person would require before giving assent to as serious a matter as the discharge of a probationary patrolman. Getting the knowledge in this case did not involve formal pleadings, witnesses and attorneys.\nJudging the \u201cconsent\u201d of the Commission as of the time it was given in this case, we think the record shows that it does not meet the test. The Commission had before it a letter from the Police Commissioner, accompanied by the report of a police sergeant, of the unlawful conduct of a juvenile 13 years of age. We cannot assume that \u00bfhere was anything more before it, even a positive identification of the juvenile and the probationer, because the case is here on the pleadings and Vestuto was not heard. We think this falls far short of the basis for the \u201cconsent\u201d intended by the Legislature. We conclude that the Commission did not \u201cconsent\u201d as required by sec. 10 of the Act, and accordingly that the discharge was wrongful.\nWe have affirmed the judgment on a ground different from that of the trial court\u2019s decision. We are not limited to the reason given by the trial court.\nDefendant claims this suit should be barred because relator did not proceed under the Administrative Review Act. (Chap. 110, Ill. Rev. Stat. [1951, \u00a7\u00a7 264-279; Jones Ill. Stats. Ann. 104.094(1)-104.094 (16)].) There is no merit to this contention. The discharge of the relator was by the Police Commissioner and not by the Commission. The provisions of the Administrative Review Act apply to proceedings before administrative agencies as defined in the Administrative Review Act. (Chap. 110, par. 264, Ill. Rev. Stat.) We think the Police Commissioner in discharging Vestuto was not a \u201cperson . . . having power under law to make administrative decisions\u201d as the Act defines administrative decisions. Defendants make no showing to the contrary.\nIt is our view that the action of the Police Commissioner was not a \u201cdecision, order or determination\u201d which terminated the \u201cproceedings\u201d before an administrative agency. We think the term \u201cproceeding\u201d contemplates an administrative process which presents an issue for hearing and disposition by an impartial third agency. This conclusion is supported by a consideration of the provisions of the Act which limit review to 35 days after serving a copy of the \u201cdecision . . . upon the party affected thereby,\u201d (chap. 110, par. 267, Ill. Rev. Stat. [1951; Jones Ill. Stats. Ann. 104.094(4)]) and extends review to \u201call questions of law and fact\u201d and \u201cno new or additional evidence\u201d shall be heard, and the findings of fact \u201cshall be prima facie true and correct.\u201d (Chap. 110, par. 274, Ill. Rev. Stat. [1951; Jones Ill. Stats. Ann. 104.094(11)].) The action of the Commissioner did not measure up to an administrative proceeding.\nFor the reasons given the judgment is affirmed.\nAffirmed.\nFeinberg, P. J. and Lewe, J., concur.", "type": "majority", "author": "Mr. Justice Kiley" } ], "attorneys": [ "John J. Mortimer, Corporation Counsel, of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, and Earl A. Deutsch, Assistant Corporation Counsel, both of Chicago, of counsel.", "Michael F. Ryan, of Chicago, for appellee; Richard F. McPartlin, Jr., of Chicago, of counsel." ], "corrections": "", "head_matter": "People of State of Illinois ex rel. Orlando Vestuto, Appellee, v. Timothy J. O\u2019Connor, Commissioner of Police of City of Chicago et al., Appellants.\nGen. No. 45,956.\nOpinion filed July 2, 1953.\nRehearing allowed July 28, 1953.\nNew opinion filed October 7, 1953.\nReleased for publication December 14, 1953.\nJohn J. Mortimer, Corporation Counsel, of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, and Earl A. Deutsch, Assistant Corporation Counsel, both of Chicago, of counsel.\nMichael F. Ryan, of Chicago, for appellee; Richard F. McPartlin, Jr., of Chicago, of counsel." }, "file_name": "0539-01", "first_page_order": 565, "last_page_order": 571 }