text:
    Daniel W. Roderick, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 22,478.
    1. Civil service—when no vacancy in classified service occurs. Under section 6 of rule 8 of the Civil Service Commission, providing that upon the expiration of a leave of absence an officer shall be reinstated in his -position, but if such leave exceeds 30 days and the position has been in the meantime filled by certification his right to reinstatement shall be postponed until another vacancy occurs in a position of his legal grade, etc., and section 9, giving an employee taking leave of absence precedence for reinstatement from the eligible register of positions of the same class and grade according to seniority, and section 1 of rule 4 providing that “whenever a vacancy in the classified service occurs the appointing officer shall make requisition for certification,” etc., there is no “vacancy” when an employee in the classified service takes leave of absence for one year and at the same time hands in his resignation to take effect at the expiration of the year, when such resignation is not accepted, although more than 30 days has expired since the beginning of such leave of absence.
    2. Civil service—when appointing officer need not make requisition for certification. Under section 1 of rule 4 of the Civil Service Commission, the appointing officer is required, whenever a vacancy in the classified service occurs, to make requisition for certification only where positions in the classified service are permanently unoccupied or where there is no person legally occupying such position, and consequently is not -required to make such requisition when an officer has taken a leave of absence for one year and his resignation, which is filed at the time of the taking of such leave is not accepted.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed November 5, 1917.
    Farrell & Thompson, for plaintiff in error; Hope Thompson, of counsel.
    Samuel A. Ettelson, for defendant in error; Roy S. Gaskill, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.

On November 4, 1915, Robert W. Weinhardt, who then held the position of superintendent of machinery of the Chicago fire department, requested of the head of his department a leave of absence without pay for a period of one year after November 16, 1915. The application for the leave was made in writing and was granted. At the same time Weinhardt delivered to the fire marshal a written resignation of his position, to take effect November 16, 1916. This resignation was received by the fire marshal but was not accepted by him prior to the filing of the petition of the plaintiff.

The plaintiff, Daniel W. Roderick, filed a petition in the Circuit Court of Cook county; in which he alleged, in addition to the foregoing, that he, petitioner, and Weinhardt, had participated in an original examination held under the direction of the Civil Service Commission of Chicago, November 5, 1913, for the position of superintendent of machinery in the fire department; that as a result of this examination Weinhardt obtained first place and petitioner second place on the eligible list for appointment to this place"; that on February 14, 1914, Weinhardt was legally appointed to the place and that he performed the duties thereof until November 16, 1915.

On November 16, 1915, Weinhardt, in accordance with the leave of absence granted him, began his furlough, and on December 22, 1915, Roderick filed his petition for a writ of mandamus, by which proceeding he sought to compel the fire marshal to make a requisition to the Civil Service Commission for the certification of an eligible to fill the vacancy created, as it was alleged, by the leave of absence granted to Weinhardt, and to compel the Commission to certify the name of petitioner for the appointment

Many of the material allegations of the petition are admitted by the answer filed by respondents, but it denies that the resignation of Weinhardt had been duly accepted by the fire marshal or that it had been approved by the Commission. The answer, however, does admit that the resignation of Weinhardt was received by the fire marshal, to take effect at the end of the year for which the leave of absence had been granted. It was further denied in the answer that a vacancy existed in the position of superintendent of machinery, and it was asserted that there could be no vacancy in law created until the expiration of the leave of absence given to. Weinhardt and the acceptance and approval of his resignation by the fire marshal and also by the Civil Service Commission.

The answer denied that it was the duty of the fire marshal to notify the Civil Service Commission that a vacancy existed in the office in question, or to make a requisition for the certification of the person standing highest on the list of eligibles.

It was further denied in the answer that the fire marshal had appointed, or attempted to appoint, any person to the position in question, and it was alleged therein that the duties of said position had been, after November 16, 1915, when necessary, performed by other employees of the department without pay, and that none of the money appropriated for the payment of the salary of the position had been expended therefor since November 10,1916.

A demurrer was filed to the answer of the defendants, which was overruled, and the petitioner electing to stand by his demurrer has brought the case here for review.

As stated by counsel for petitioner, the points at' issue in this case are really only two:

“First. Does a vacancy exist in the office or place of employment of Superintendent of Machinery in the Fire Department of the City of Chicago; and second, if so, is it the duty of the respondents to take the necessary steps to bring about the instalment of petitioner in said petition?”

It may be conceded at the outset that if a vacancy exists in the position in question, and if it is the duty of the respondents to take necessary steps to fill such vacancy, then 'the petitioner is entitled to be certified to the position. It is conceded in the answer .of respondents that the duties of the position which the petitioner seeks are not, since the leave granted to Weinhardt took effect, being performed by any person having a legal right to the position or the emoluments thereof. Section 6 of rule 8 of the Civil Service Commission is as follows:

“Holding Positions Open. Upon the expiration of a leave of absence, an officer or employee shall be reinstated in his position; provided, however, that if such absence with leave exceeds thirty days, or, in case of injury in the service, sickness or other disability, ninety days, and the position in the meantime has been filled by certification, he shall be reinstated only when a vacancy in a position of his legal civil service grade and of the same class, grade, salary and character of work exists, and then in the order of his seniority in the position. The person displaced by the reinstatement of an officer or employee absent with leave, as hereinbefore provided, shall have his name restored to the eligible list, in accordance with his seniority in the position.”

Section 9 of this rule is in part as follows:

“Reinstatement. When any officer or employee has been given a leave of absence in accordance with the rules of the Civil Service Commission, or has been laid off in accordance with said rules, the person taking such leave or the person so laid off shall have precedence for reinstatement from the eligible register of positions of the same class, grade and salary and the same character of work, according to the seniority in his position.”

Section 6 of rule 8 provides that upon the expiration of a leave of absence, an officer shall be reinstated in his position, but it is provided in the rule that if his leave exceeds 30 days, and the position in the meantime has been filled by certification, his right to reinstatement was postponed until another vacancy occurred in a position of his legal grade service, etc. As we read section 6, it is clear that it was not intended in every case that the right of a person employed in the classified service, who had taken a leave of absence for more than 30 days, to reinstatement to his position, would be postponed until another vacancy had occurred and his name was reached in regular order again upon the eligible list. Standing alone and unconnected with the proviso which follows it, the first clause of section 6 makes- absolute the right to reinstatement of the employee who takes a leave of absence from his position. The proviso limits this right to reinstatement so that if the leave of absence is for more than 30 days, and the position “in the meantime has been filled by certification,” such employee’s right to reinstatement is postponed in the manner provided for in the section.

It is conceded in the instant case that though the leave of absence granted to Weinhardt was for more than 30 days, and he had not been in the service of his department for more than 30 days prior to the filing of this petition, the position had not “in the meantime” been filled by certification.

Much argument is had in the briefs of counsel over the meaning of the word “vacancy.” We do not think it is necessary to determine the exact’ meaning of the word as used in the statute or in the rules of the Civil Service Commission. It is quite clear that whatever meaning may be given to this term, no such vacancy existed in the position in question as would authorize the court to direct, by the exercise of a peremptory writ of mandamus, the certification of the petitioner to the place. It may be conceded that the respondents did have full authority, under section 6, to fill the position left unoccupied by the leave of absence granted to Weinhardt by certifying petitioner to this place; but we can find no language in the rules or the statute which would authorize a holding that they were required to make such appointment.

We are inclined to the opinion that rather too much importance is given by counsel for petitioner to the use in the rules of the word “reinstate.” We are not inclined to hold that the rules impart any formal meaning to the word, or that it was intended to impose by its use any special status upon a civil service employee who had been granted a leave of absence. The word as used in the rules was undoubtedly intended to define the right of a person to return to a position from which he had been given a leave of absence. Its use does not necessarily imply a “vacancy” in the position in the sense, as contended, that the head of the department is required to fill the position by certification.

Section 1 of rule 4 of the rules of the Civil Service Commission requires that “whenever a vacancy in the classified service occurs the appointing officer shall make requisition for certification,” etc. It is urged by counsel that this rule is clear and mandatory, and we think they.are right in their contention. It is perfectly clear from the paragraphs of the statutes quoted by counsel, and from the rules of the Civil Service Commission and the decisions of the Supreme Court in cases People ex rel. Akin v. Kipley, 171 Ill. 44, and People ex rel. Akin v. Loeffler, 175 Ill. 585, that this rule is mandatory, but when it is read in connection with sections of rule 8, already quoted, it becomes obvious that the^word “vacancy” as used in section 1 of rule 4 has reference to cases where positions in the classified service are permanently unoccupied or where there is no person legally occupying such position; it does not include cases where a holder of such position has obtained a leave of absence therefrom for a limited period, except as hereinbefore indicated.

The argument of counsel for the petitioner is predicated in part on the theory that there is a vacancy in the office in question; that an appropriation is available for the payment of the salary for such office, and that the head of the department is required by law, under the circumstances of the case, to take steps to fill the position. We do not think it necessary to determine the question whether, where an office in the classified service has become vacant by resignation, the head of the department in which such position is, must in every such ease take steps to fill such position, even though it may, under such circumstances and in the best interests of the efficient operation of the department, be, in his judgment, unwise to fill such position.

We think that the case at bar is one where, under the rules of the Civil Service Commission, the fire marshal was not required to fill the position from which Weinhardt had obtained a leave of absence.

As stated, we are inclined to agree with counsel for the defendants that while the fire marshal in his discretion might have taken the necessary steps to fill the position in question by appointment from the eligible list, the rules did not impose upon him the duty of taking such steps, where, in the exercise of a sound discretion, he might deem such appointment unnecessary. Holding, however, as we do, that a vacancy did not exist in the office in question within the purview of the rules of the Civil Service Commission, it is not required of us to determine other questions argued by counsel.

The judgment of the Circuit Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    Pauline Witkowsky, Plaintiff in Error, v. Charles E. Affeld et al., Defendants in Error.
    Gen. No. 23,037.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pabtnebship—what is duty of surviving partner as to accounting. A surviving partner is required to make a prompt and complete accounting as to all partnership assets in his possession in the court where the estate of the deceased .partner is being administered.
    2. Pabtktebhip, § 280

      —what is capacity in which surviving part- - ner holds assets of. The surviving partner becomes, by the death of the partner, a trustee, in effect, of all the interests of the deceased, at the time of his death, in the partnership assets for the benefit of those entitled to a distributive share of the deceased partner’s estate.

      Error to the Circuit Court of Cook county; the Hon. Thoiias G. Windes, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed November 5, 1917.
    Statement of the Case.
    Bill by Pauline Witkowsky, complainant, against Charles E. Affeld, Albert Tonk, Charles B. Affeld, Jr., and James Witkowsky, defendants, for an injunction against the wrongful use of insurance records in keeping complainant from obtaining access to such records, and for a receiver.
    From a decree dismissing the bill for want of equity, complainant brings error.
    Oscar M. Wolff, for plaintiff in error.
    Richberg, Ickes, Davies & Lord, for defendants in error; Donald R. Richberg and John S. Lord, of counsel.

      See Illinois jiotes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cmnnlative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

3. Partnership—what is right of surviving partner as to deriving personal benefit at expense of representatives of deceased partner. A surviving partner sustains a fiduciary relationship towards the representatives of the deceased partner which prohibits him from deriving any personal benefit from a deceased partner’s interest in the partnership assets at the expense of such representatives.

4. Partnership—what is effect of contract upon failure of surviving partner to render accounting to beneficiary of deceased partner. The fact that a surviving partner has not complied with a fiduciary obligation imposed upon him by the partnership relation to render an accounting to the beneficiary of the deceased partner under the will is immaterial where a contract is entered into defining and fixing all the rights of the parties.

5. Partnership—when fiduciary relation not created between firm organised by widow of deceased partner and one organised by surviving partner. Where, after a dispute between the surviving partner and the representatives of the deceased partner respecting the use of insurance records used in the partnership business, a contract was entered into between the firm organized by the surviving partner and a firm organized by the widow of the deceased partner, whereby such records were to be kept by the firm of which the surviving partner was a member and were to be made accessible to the other firm, it was held that a fiduciary relation was not created between the surviving partner’s firm and the other firm.

6. Contracts, § 187*—when construed in accordance with interpretation or conduct of parties. Where the language used in a contract is ambiguous or its meaning doubtful, the court may have resort to other aids than the language used in the contract to determine its meaning, such as the interpretation placed upon the contract by the parties themselves or by their conduct, but these aids will not be resorted to where the language of the contract is clear and not doubtful.

7. Insurance—records of agency as assets. An insurance agency has no good-will and its records are not assets capable of reduction to a money value.

8. Injunction, § 4*—when mandatory will not be issued. On a bill to restrain the firm organized by the surviving partner of an insurance partnership from making a wrongful use of certain insurance records of the former partnership and denying complainant, the widow of the deceased partner, her rights under an express contract regarding the use of such records, held that the records were of such doubtful property value that the right to use them under the contract would not be enforced by a mandatory injunction.

9. Partnership—when contract between partnerships for unrestricted access to insurance records of former partnership limited to specified period. Under a contract between two firms, one of which had as a member the surviving partner of an insurance partnership and the other the widow of the deceased partner, providing that all of the parties should cause to be inserted in the proper place in the records of the former partnership a complete underwriting record of all policies or business renewed by any of the parties during the period from a certain previous date to the making, and that so long as either of the members of the firm organized by the widow continued in business each member was to be given unrestricted access to and use of the underwriting records of the former firm, the right of unrestricted access is limited to such designated period.

10. Specific performance—when contract between two partnerships for joint use of records of former partnership mil not be specifically enforced. A contract between two partnerships, requiring a joint use of certain records of another former partnership and performance of certain services by one partnership, will not be enforced by specific performance where it would necessarily require the court to supervise a considerable portion of the business and transactions of one party before it could be determined whether its orders were being complied with.

11. Specific performance, § 1 —when contract will not be specifically enforced. A contract will not be enforced by specific performance where, from its provisions, it may be seen that the court would not be placed in a position where it could effectually enforce its decree with respect thereto.

12. Specific performance, § 3*—when of contract properly denied. Relief by specific performance of a contract may be denied by a court, in its discretion, where the remedies of the parties under the contract are not mutual, or where the granting of such relief will compel the performance of personal services.


text:
    Frederick W. Restorick, Appellee, v. John W. Restorick, Appellant.
    Gen. No. 23,079.
    (Not to he reported in full.)
    Abstract of the Decision.
    Evidence, § 128

      —when secondary evidence of contents of letters in possession of nonresident improper. In attachment proceedings by an heir of an estate to recover from his brother, another heir, a certain sum of money alleged to be due in addition to the money received for a cottage as part of Ms share; where plaintiff's case was based upon an ambiguous letter from defendant stating that he had made a settlement of the estate with a certain person and that he had a cottage for plaintiff and “some money, about 150 pounds,” that the cottage was valued at 110 pounds, and he wanted plaintiff to let him know what to do about the house and he would send him a “check for the lot,” and the testimony of defendant, who was serving in the British army, was taken by deposition, field that it was improper to admit secondary evidence of the two letters sent by plaintiff in answer to defendant’s letter until a notice to produce such letters had been served on defendant and he had been allowed a chance to explain the ambiguities in such letter.
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed November 5, 1917.
    Statement of the Case.
    Attachment proceedings by Frederick W. Restorick, plaintiff, against John W. Restorick, defendant. From a judgment for plaintiff for $882.25, defendant appeals.
    Teller, Hart & Pennish, for appellant.
    Mark D. Goodman and Blum & Blum, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and ¿section number.

   Mr. Justice Dever

delivered the opinion of the court


text:
    George W. Gist and William M. Gist, trading as Gist Brothers Company, Defendants in Error, v. Wyoming Land & Irrigation Company, Plaintiff in error.
    Gen. No. 23,298.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 103

      —when evidence shows failure to perform, contract is due to conduct of defendant. In an action by contractors against an irrigation company to recover for breach of a contract whereby plaintiffs were to construct two canals for defendant,, evidence held, sufficient to show that plaintiffs were ready to perform the contract for the construction of one of such canals and that they were prevented from so doing by the conduct of defendant, and that plaintiffs were entitled to recover the profits which would have accrued to them if they had been allowed to perform the work.

      Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 5, 1917.
    Statement of the Case.
    Action by George W. Gist and William M. Gist, trading as Gist Brothers Company, plaintiffs, against the Wyoming Land & Irrigation Company, a corporation, defendant, to recover for breach of a contract whereby plaintiffs were to construct two irrigation ditches for defendant. From a judgment for plaintiffs for $71,302.75, defendant brings error.
    Garnett & Garnett, for plaintiff in error; Eugene H. Garnett, Charles L. Billings and Henry B. Rathbone, of counsel.
    Thomas B. Lantry and Busby, Weber & Miller, for defendants in error.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

2. Damages, § 200*—when instruction on right of anticipated profits for breach of contract is not erroneous. In an action to recover for loss of profits for breach of a contract, an instruction as to what anticipated profits, if any, the jury might consider in fixing the amount of plaintiffs’ damages, held not erroneous when considered with other instructions.


text:
    Consumers Company, Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 23,485.
    1. Appeal and error, § 1034

      —what judicial notice will be taken of on appeal. The Appellate Court will take judicial notice of the increasing number of motor trucks used for carrying freight and merchandise on the streets in thickly settled communities and of the inherent danger to pedestrians from the operation of such vehicles on public highways.
    2. Automobiles and garages, § 1*—when ordinance regulating operation of motor trucks in streets will be sustained. A municipal ordinance regulating the operation in the streets of motor trucks for the transportation of freight and merchandise will be sustained if there exist substantial reasons for its enactment and its more important provisions, without subjecting it to critical examination and analysis.
    3. Automobiles and garages, § 1*—what is power of council as to passage of ordinance regulating use of motor trucks on streets. A city council has power to pass an ordinance for the protection of persons lawfully on the streets from the risk of injury or death from motor trucks being operated on the streets.
    4. Automobiles and garages, § 1*—what considered-in passing upon reasonableness of ordinance regulating operation of motor

      trucks on streets. In passing upon the reasonableness of an ordinance regulating the operation of motor trucks on city streets, regard will be had to the fact that the council had to deal with a special and, in the main, new object.
    5. Municipal corporations, § 93

      —Who has burden of proof to show unreasonableness of ordinance. The burden is on one attacking an ordinance on the ground that it is unreasonable to show clearly and affirmatively that it is unreasonable.
    6. Automobiles and garages, § 1*—what is duty of council in passage of ordinance regulating use of motor vehicles on streets. In the exercise of its power to legislate in a reasonable and fair manner for the protection of people using the streets against danger of injuries from colliding with motor vehicles operating in the streets, it is the right and duty of the council to provide such protection with as little expense and annoyance to the owners and operators of such vehicles as possible.
    7. Automobiles and garages, . § 1*—when ordinance regulating use of motor trucks on streets does not provide for unreasonable classification. If the classification of motor trucks in an ordinance regulating their operation in- the streets is not capricious and arbitrary but is based upon a reasonable theory, the ordinance will not be held invalid as unreasonable.
    8. Automobiles and garages, § 1*—When motor vehicle fender ordinance is not invalid as providing for an unreasonable classification. The provision of a fender ordinance requiring fenders to be attached to a class of motor trucks of a freight-carrying capacity is not invalid on the ground that it provides an unreasonable classification.
    9. Automobiles and garages, § 1*—what is test in determining validity of ordinance requiring fenders on certain class of motor trucks. In determining the validity of an ordinance requiring fenders on a certain class of motor trucks, the test is not whether the council acted with the highest degree of wisdom in drafting the ordinance, but whether there is a reasonable basis for its provisions.
    10. Automobiles and garages, § 1*—What is reasonable basis for classification of motor trucks in fender ordinance. There is such a substantial distinction between freight-carrying and passenger-carrying motors and between the operation of them as to furnish a reasonable basis for the classification of motor trucks on such lines in an ordinance providing for the use of fenders on motor trucks using the streets.
    11. Automobiles and garages, § 1*—when evidence insufficient to show invalidity of fender ordinance. An affidavit, made on information and belief, that owners of motor trucks which exceed a certain carrying capacity will not be able to procure fenders for them as required by a city ordinance is not sufficient ground for holding the ordinance invalid where the affidavit is directly contradicted by other affidavits.
    12. Automobiles and garages, § 1

      —when motor fender ordinance not invalid as discriminating in favor of makers of fenders. The fact that before the passage of a motor fender ordinance certain tests of fenders were made, and that the ordinance provides that where such tests comply with all of its provisions a certificate of efficiency shall be issued to the makers, does not render the ordinance invalid as unfairly discriminating in their favor.
    13. Automobiles and garages, § 1*—when motor truck fender ordinance does not dispense with further tests of fenders after change. The provision in an ordinance requiring fenders on motor trucks, held not to dispense with further tests of fenders which have been changed after having been submitted for test.
    14. Municipal corporations, § 90*—when ordinance not invalidated as a whole because of invalidity of part. The invalidity of a provision in a motor fender ordinance dispensing with tests of fenders which have been changed after once undergoing the test does not invalidate the whole ordinance.
    15. Automobiles and garages, § !*•—when provision in ordinance relative to height of fender for motor vehicles is not unreasonable. The provision in a motor fender ordinance that a “fender of a projecting type shall be provided with mechanism for varying the height of at least the lower portion of same from a minimum distance of 4% inches to not less than 10 inches above the road surface” is not unreasonable and does not render the operation of such trucks impracticable.
    16. Automobiles and garages, § 1*—when motor fender ordinance is not invalid as conferring unreasonable power upon municipal' executive board as to testing fenders. The provisions of a motor fender ordinance conferring power upon a municipal bureau to supervise certain prescribed tests of fenders, such fenders to be approved by the superintendent of police after the tests are made, does not confer an unreasonable and arbitrary power upon an executive board and does not give the bureau power to prevent the free and equal use of the streets.
    17. Automobiles and garages, § 1*—when motor truck fender ordinance is not invalid as imposing double tax on owners. The provision in an ordinance requiring that motor trucks of a specified class be equipped with approved fenders, held not to impose a double tax on owners of vehicles subject thereto by reason of the fact that it requires persons, firms and corporations desiring a test for a fender to deposit the sum of $200 to cover the expense of such tests, but such provision is merely a regulation.
    18. Automobiles and garages, § 1

      —what is power of cities to adopt motor vehicle fender ordinance. Under the power conferred upon cities to regulate the use of the streets, they may adopt an ordinance requiring certain classes of motor vehicles to be equipped with approved fenders.
    19. Appeal and error, § 1712*-—when point not argued deemed waived. On appeal, a point which is merely suggested in the statement of facts and is not supported by authorities nor urged on the argument is deemed to have been waived.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.
    Injunctional order reversed.
    Opinion filed November 5, 1917.
    Rehearing denied November 18, 1917.
    Samuel A. Ettelson and Sears, Wiley & Shermin, for appellants.
    Butz, Von Ammon & Johnston and William A. Jennings, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vote. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal from, an interlocutory decree entered by the Circuit Court of Cook county on May 26, 1917.

The bill of complaint prayed for an injunction to restrain the City of Chicago from the enforcement of an ordinance known as the Fender ordinance, ■ which was passed to take effect and be in force January 1, 1917. On motion of counsel for complainant the court below entered an interlocutory order of injunction as prayed for in the bill of complaint.

The ordinance in question (with the exception of sections 4 and 5 thereof) is as follows:

“Section 1. It shall be unlawful for any person, firm, or corporation to use and operate on the streets, alleys or public places within the City of Chicago, any motor truck of fifteen hundred pounds capacity or more, which for the purpose of this ordinance shall be understood to be a motor driven commercial vehicle designed and used for the purpose of conveying freight, goods, wares, merchandise and machinery, or any or all of the same, unless such motor truck is provided with a fender complying with the requirements of Section 2 hereof, securely fastened to the front end of same and designed so as to afford an effective means of preventing injury to the life or limb and promote the health and safety of pedestrians and other persons on the public streets, alleys or ways, by reason of the use and operation of such heavy and powerful motor truck, as aforesaid, and of a type approved by the General Superintendent of Police as hereinafter provided for.

“Section 2. Every such fender to be so used and attached to such motor truck shall be so constructed that, it shall comply with the following specifications: The maximum projection in front of truck when ready for service shall not exceed 24 inches. The projections outside of the rims of the front wheels of the truck shall be not less than 2% inches nor more than 3y2 inches. The diagonals from the comers of chassis to the outermost projections of the respective corners of the fender shall not exceed 26 inches. The protective height of the fender shall be such that no portion of a person struck by same can come in contact with any portion of the vehicle other than the fender or the mudguards. The flexibility shall be sufficient to reasonably reduce the shock of impact, and for this purpose the material used shall have a resiliency equal to that of steel wire cable three-eighths of an inch in diameter or flat steel wire five-eighths of an inch wide and three-thirty-seconds of an inch thick, and if netting is used it shall have a mesh of not less than three and one-half inches from center to center; provided that if leather, canvas or other substance affected by the weather is used it must be amply protected from the weather. The width of the basket or shelf for picking up a person struck by the fender shall be at least 18 inches, and the covering net, filler or other material of which the same is constructed shall be securely riveted, welded or brazed to the frame work of the fender. The side and top edges of vertical portions of the fender protecting the front of the truck shall be rounded with a radius of not less than 3 inches. _ A fender of a projecting type shall be provided with mechanism for varying the height of at least the lower portion of same from a minimum distance of 41/2 inches to not less than ten inches above the road surface. Cast iron shall not be used in any portion of the fender, and all materials other than metal shall be amply protected from the weather. The strength of the parts shall be such as not to be deranged by ordinary traffic service and sufficient to pick up, without failing in any of its parts, when running at the maximum speed permitted by law, a person weighing two hundred pounds. The fender shall not depend for its protective efficiency on either manual, pedal or automatic operation, and such means if applied shall be used only to increase its efficiency.

“Section 3. No type of fender shall be approved by the General Superintendent of Police unless it has been subjected to the tests herein prescribed under the direction of the Clerical, Mechanical, and Inspection Bureau of the Department of Police and has developed the standard of efficiency required by this ordinance, or unless it shall be hereafter subjected to such tests and shall develop the required efficiency. The said bureau shall judge the efficiency of the/fenders tested in accordance with the provisions of this ordinance and report the same to the General Superintendent of police. All tests shall be under the direction of the said Clerical, Mechanical and Inspection Bureau, and the head of said bureau shall make all arrangements, based on the application for same, and supervise the furnishing of materials and appliances, but the said bureau shall inspect all such materials and appliances and. pass on the sufficiency of same and shall designate the places where, the time when, and the conditions under which said tests shall be made. Any person, firm or corporation desiring such a test for a fender shall make application therefor on a form to be furnished by the General Superintendent of Police and shall deposit with the City Collector the sum of two hundred dollars to cover the expense of such tests. The applicant shall also furnish a full description of the fender to be tested and the material used therein, and three sets of blue prints of working drawings of the fender of a size to be designated by the said bureau, and the Department of Police shall cause three photographs to be taken of the fender attached to the truck and ready for the tests. One set of such blue prints and photographs shall be for the use of said bureau, one set for the files of the Department of Police, and one set shall be attached to the certificate of approval in case the fender is approved.”

(Sections 4 and 5 contain elaborate provisions' for the making of tests required ■ under the ordinance.)

“Section 6. As soon as a test is completed a report showing the results of same shall be prepared by the said Clerical, Mechanical and Inspection Bureau of the Department of Police, one copy of which shall be delivered to the applicant and the other to the General Superintendent of Police. In all cases where the protective efficiency of a fender shall meet the requirements of the tests herein prescribed and it conforms to the mechanical requirements herein set forth, the said bureau shall state in such report that the requirements of the tests have been met and that the applicant is entitled to a certificate of approval. Upon the receipt of such report showing that the applicant is entitled to same, the General Superintendent of Police shall issue a certificate of approval in such form as he may prescribe. In all cases where the tests herein provided for have already been made on any fender submitted for test, under the direction of the Clerical, Mechanical and Inspection Bureau of the Department of Police, and the said tests, according to the written report made to the General Superintendent of Police, have demonstrated the protective efficiency of such fender to be equal to that required for approval as prescribed herein, snch fender so tested shall be allowed the percentage fixed herein as it may be entitled to same according to said report, and the G-eneral Superintendent of Police shall issue such certificate of approval without requiring further tests.

“Section 7. The issuance of such certificate of approval to any applicant for same shall permit the use of the fender so tested and approved on all vehicles requiring same under the provisions of this ordinance, and such approval shall extend to all fenders of like pattern and materials made, sold, leased, loaned, rented or attached by the person, firm or corporation receiving such certificate of approval or his, their or its assigns; and to the end that no counterfeit or imitation shall be substituted for such fender, the City Collector shall issue name plates in such numbers as may be required containing the number of the certificate, the name of the fender, the words 'Approved by the City of Chicago, ’ and the date of the approval certificate. Such plates shall be sold only to the person, firm or corporation receiving such certificate, or his, their or its assigns, or the duly authorized agent of same, and the price of same shall be fifty cents for each plate. All fenders used on the streets, alleys, or public places of the city attached to the vehicles requiring same under the provisions of this ordinance shall bear the name plates as provided for herein, which shall not require renewal as long as used on the fender on which it is originally placed, but which shall not be transferred from one fender to another. Any fender used under the provisions of this ordinance may be condemned by the Clerical, Mechanical and Inspection Bureau of the Department of Police when the same shall become damaged, corroded or otherwise defective from wear or use to such an extent as to impair its efficiency, and when so condemned it shall be replaced by another fender which is in good condition. Fenders shall be attached and used only on motor trucks of the size for which they have been approved.

“Section 8. In case the manufacturer of approved fender desires to make any changes in the construetion of such approved fender, he shall file with the Clerical, Mechanical and Inspection Bureau of the Department of Police a description of such proposed changes, together with blue prints of full sized working drawings for same. The said bureau may approve or reject such changes from the original pattern or type submitted for tests, and, in case of rejection, no such altered type of fender shall be approved unless tests of same in accordance with the provisions of this ordinance are made.

“Section 9. Any person, firm or corporation that shall use or operate any motor truck of the kind described in Section 1 hereof contrary to the provisions of this ordinance, or that shall use or attach a name plate of the kind provided for herein on a fender to be used on the streets of the city which has not been approved, or that shall use on such motor truck operating on the streets of the city a fender of a smaller size than that required for the size of motor truck to which it is attached, or that shall use a fender which otherwise conflicts with or fails to comply with the provisions of this ordinance, shall be fined not less than twenty-five dollars nor more than two hundred for each offense; and a separate and distinct offense shall be regarded as having been committed for each and every day on which such violation of the provisions of this ordinance shall continue.”

It is urged on behalf of the complainant that the ordinance in question is invalid and unenforceable in that it unreasonably and arbitrarily discriminates:

(a) Between motor trucks of fifteen hundred pounds or more capacity and motor trucks of less than fifteen hundred pounds capacity;

(b) Between motor trucks of fifteen hundred pounds or more capacity used for the purpose of carrying freight and motor trucks of similar capacity used for the purpose of carrying passengers; and

(c) Between motor trucks used for the purpose of conveying merchandise and automobiles used for the purpose of carrying passengers.

It seems to be conceded by counsel that the City Council of the City of Chicago had power to pass an ordinance requiring the placing of fenders upon automobiles operating on the streets of the city, but they assert that in its exercise of this power the city council could not act unreasonably, capricionsly or arbitrarily; that the ordinance in question is invalid for the reason that the classifications provided for therein were unreasonable and discriminatory.

In the recent case of Biffer v. City of Chicago, 278 Ill. 562, the Supreme Court had before it a question of the validity of an ordinance of the City of Chicago which prescribed regulations for the sale of firearms within the city. It was held that:

“When the city council considers some occupation or thing dangerous to the health of the community and in the exercise of its discretion passes an ordinance to prevent such a danger, it is the policy of the law to favor such legislation. Municipalities are allowed a greater degree of liberty of legislation in this direction than in any other. The necessity for action is often more urgent and the consequences of neglect more detrimental to the public good in this than in any other form of local. evil. * * * If the health of the public is indispensable to the city, surely the safety of citizens and protection against being maimed or killed are equally indispensable, and a like liberal rule" of construction should be adopted.”

The ordinance under consideration here is an. attempt by the city council to legislate in favor of public safety. The appearance upon the public streets of motor trucks is of relatively recent date. This is particularly true of the transportation of freight and merchandise upon the streets by means of such motor trucks. The court is permitted to take judicial notice of the increasing number of such motor trucks upon the streets in thickly settled communities and of the .inherent danger to pedestrians from the operation of these vehicles on the public highways. Under these circumstances it would not be surprising if the ordinance in question did not meet in all particulars the exigencies of motor vehicle traffic in the streets, and it is not required by the law under such circumstances that the action of the city council be too critically examined or analyzed. It is sufficient if there exists substantial reasons for the enactment by the council of the ordinance and for its more important provisions. We think it clear that the city council had power to pass an ordinance providing for the protection of persons, lawfully upon the streets- of the City of Chicago, from danger of injury, or death, by being run down by motor trucks. Under the circumstances existing at the time the ordinance was passed, the city council was called upon to deal with a special and, in the main, a new object, and these facts should be kept in mind when the ordinance is examined for the purpose of determining its reasonableness. In People v. Village of Oak Park, 266 Ill. 365, it was held that it was incumbent upon a party attacking an ordinance as being unreasonable to affirmatively and clearly show wherein such unreasonableness consists.

In Biffer v. City of Chicago, supra, the court said:

“Counsel for defendants in error insist that because this ordinance permits sales to be made when the articles are to be delivered or furnished outside the City of Chicago such classification is unreasonable and therefore the ordinance should be held invalid. In cases involving the validity of statutes or ordinances all reasonable' doubts are to be resolved in favor of upholding the legislation establishing a classification. Such ordinances or statutes are not unconstitutional because they result in some practical inequalities. (Orient Ins. Co. v. Daggs, 172 U. S. 557; Minnesota Iron Co. v. Kline, 199 id. 593.) In exercising its power to make classifications for the purpose of enacting laws or ordinances over matters within the jurisdiction of, the State or municipal authorities, a legislative body is permitted a wide range of discretion. The question of classification is primarily for the legislative body, and only becomes a judicial question when the legislative action is clearly unreasonable. (Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283.)”

The single purpose of the ordinance in question was to prevent injuries to persons using the public highways, and it was sought to compel the attachment to motor trucks of fenders, which, it was thought, would in some measure remedy an evil resulting from the operation in the streets of unprotected, heavy motor trucks.

It is insisted that the ordinance unreasonably and arbitrarily discriminates between motor trucks of 1,500 pounds or more carrying capacity and those of a lower carrying capacity; between motor trucks of a carrying capacity of more than 1,500 pounds used for carrying freight, and motor trucks of similar capacity used for the purpose of carrying passengers, and also between motor trucks used for the purpose of conveying merchandise and automobiles used for carrying passengers. In the affidavits filed in support of the bill it is stated that there are 11,000 freight-carrying motor trucks being driven on the streets of the City of Chicago and that about 100 motor trucks are likewise used for carrying passengers; that 4,000 of the freight-carrying motor trucks have a carrying capacity of less than 1,500 pounds; that about 4,000 more of the motor trucks have a carrying capacity of between 1,500 and 5,000 pounds, and also that approximately 1,600 of the 11,000 motor trucks have a carrying capacity of more than 5,000 pounds.

It is further stated in the affidavits that all motor driven automobiles and motor trucks are of the same general mechanical construction; that many of the so-called motor trucks are in fact what is known as converted passenger automobiles which have been refitted with a freight-carrying body.

We do not think there is much doubt that the city council, as stated, had ample power to legislate in a reasonable and fair manner for the protection of people using the streets of the city against danger of injuries from collisions with motor vehicles operating in the streets. In the exercise of this power it was the right and duty of the city council to provide such protection with as little .expense or annoyance to the owners and operators of motor vehicles as possible, and if the classification of motor trucks provided by the ordinance can be said to have been based upon any reasonable theory, and are not in their nature capricious or arbitrary, it must be. held that in this particular the ordinance in question is not invalid.

In Metropolis Theater Co. v. City of Chicago, 246 Ill. 20, the Supreme Court, in passing upon the validity of an ordinance which provided for a classification of theaters in accordance with admission charged, said:

“We do not deem it necessary to review the numerous cases illustrating the discretion that may be exercised by legislative bodies in the classification of the subject of taxation. This entire subject has recently been reviewed by this court in Harder’s Storage Co. v. City of Chicago, 235 Ill. 58, in which what is known as the Wheel Tax ordinance was involved. Under the principle announced in that case and the authorities therein reviewed we have no doubt of the validity of section 104 of the ordinance involved in this case.”

It is provided in the ordinance that fenders were to be attached, in accordance with the provisions of the ordinance, to a class of motor trucks of a freight-carrying capacity of more than 1,500 pounds. It was asserted in certain affidavits that because of their weight and greater momentum the larger and heavier cars were a greater danger when operated in the public streets than the lighter motor vehicles, and that it was more difficult, to bring to a sudden stop, or to otherwise manipulate a heavily loaded motor truck than a lighter loaded freight motor truck or passenger automobile. We are inclined to hold that these facts gave reasonable basis for this classification in the ordinance. There is not much merit in the argument that there could in fact be but slight difference in these particulars in the operation of a motor 'truck of slightly more than 1,500 pounds capacity and one of a few pounds less carrying capacity. As a matter of fact, this conclusion, is sound, but it is not a sound test by which to determine the reasonableness of this provision of the ordinance. If there be any merit in the contention that greater danger arises from the use and operation of the heavier as against the lighter class of motor trucks, the city council was warranted, in the exercise of a sound legislative discretion, and, in the nature of things, was necessarily compelled to indicate in the ordinance at some point a line which would classify the different freight-carrying motor vehicles so that the provisions of the ordinance would apply to that class which caused the greater danger to pedestrians.

The test is not whether we may be of opinion that the city council has acted with the highest degree of wisdom in drafting the ordinance in question. If it can be said that there is some reasonable basis for its' provisions, then we have no power to substitute our judgment of the wisdom of such provisions for that of the city council.

The cases cited by counsel for complainant are distinguishable from the instant case. Some of those cases lay down the rule that ordinances which provide for a classification, such as the one in question must have a basis in sound reason for such classification, and this is in accord with what has been said.

It is also insisted that the classification made in the ordinance as between freight-carrying and passenger-carrying motor trucks is unreasonable and digcriminatory. In the affidavits filed in support of the answers it is stated that there is a substantial, recognizable difference between these classes of vehicles; that large passenger vehicles aré limited in carrying capacity to a certain number of persons; that they cannot be run at as high rate of speed as. trucks carrying equal loads which do not carry passengers; that in operating the passenger vehicles regard must be had to the comfort and safety of passengers; that they are operated on boulevards and fixed routes familiar to the operator, and it was urged in oral argument that the court will take judicial notice of the fact that such passenger' vehicles ■ usually slacken or stop at street intersections to take on or let off passengers. Some of these statements are denied in other affidavits, but we are of the opinion that there is a substantial, recognizable distinction in these classes of motor vehicles, and that while such differences may not be inherent in their mechanism or equipment, we think they are of such character as to furnish a reasonable basis for the classification which is complained of.

In Johnson Exp. Co. v. City of Chicago, 136 Ill. App. 368, the court, in deciding whether an ordinance discriminated in favor of certain carriers against others, said:

“While the section under consideration enumerates the vehicles and attempts to define what shall be deemed public carts under the ordinance, it expressly provides that ‘the business in which such cart is engaged while on the streets and public ways of the city shall determine the character of such vehicle.’ This, we think, sets up the legal definition of common carriers as the criterion by which the character of all vehicles carrying goods in the City of Chicago for hire or reward is to be determined under the ordinance.”

It is urged that motor truck owners subject to the provisions of the ordinance will be unable to secure fenders for motor trucks of a carrying capacity greater than 2% tons. This statement, which is made in an affidavit, is made on information and belief and is directly contradicted by other affidavits, one being an affidavit of a manufacturer who states he has, since the passage of the ordinance, been able to provide from 1,500 to 2,000 fenders a month such as are required by the ordinance.

It is further insisted that certain tests of fenders were made prior to the passage of the ordinance, and that the ordinance provides that- where such tests comply with all the provisions of the ordinance a certificate of efficiency should be issued to the makers of such fenders, and that this provision unfairly discriminates as between classes of fender makers. It is difficult to see how this provision of the ordinance discriminates in favor of, or against, any class of fender manufacturers. As to all makers the ordinance provides that their fenders shall be submitted to the tests provided by the ordinance. This provision, if fairly applied, would not operate to give a privilege to any particular class of - makers, as all such are required to submit their fenders to precisely the same tests.

It is said that section 8 of the ordinance discriminates in favor of a manufacturer who has made a change in a fender, which change has been approved by the Police Department, and that under the language of the section it is not required to test a fender so changed as otherwise provided by the ordinance; there is some basis in the structure of this section of the ordinance for this contention of counsel for complainants. We are inclined to hold, however, when the whole subject-matter of the ordinance is taken into consideration, that the language of the last clause of the last sentence of this section must be held to require a test under the ordinance of every such improved fender. The language of the last sentence of this section is as follows:

“The said bureau may approve or reject such changes from the original pattern or type submitted for tests, and, in case of rejection, no such altered type of fender shall be approved unless tests of same in accordance with the provisions of this ordinance are made.”

But whatever may be said of the ambiguity appearing in this section, and even though the section be held invalid, this holding would not result in rendering the entire ordinance void.

A provision of the ordinance is' as follows:

“A fender of a projecting type shall be provided with mechanism for varying the height of at least the lower portion of same from a minimum distance of 4% inches to not less than 10 inches above the road surface.”

It is insisted that this provision is unreasonable and that if insisted upon it will be practically impossible to operate motor trucks. It will be noted that the ordinance provides for mechanism that will permit the raising and lowering of the fender within a distance of from 4% inches to 10 inches above the road surface. We think this provision is reasonable and that there is not much merit in the contention that fenders complying with the terms of the ordinance “would dig into, and come in contact with, the surface of the streets, country roads, etc.” It is evident that the purpose of this provision is to permit the use of . fenders in such manner as to avoid the things that it is said will interfere with the operation of motor trucks. Nor do we think there is merit in the contention that motor truck operation will become impracticable if fenders are attached to the front end of such trucks, due to traffic congestion in the streets of. Chicago. Adding 2 feet to the length of the trucks will no doubt cause some inconvenience and annoyance to the operator of such trucks, but we do not think this reason sufficient to invalidate the ordinance.

The statements in certain affidavits, are based upon records in the coroner’s office of Cook county. These records tend to show that the number of fatal accidents from collisions with auto trucks is relatively much greater than that occurring from collisions with other classes of automobiles, and while these records give no definite information as to the proportion of accidents resulting from the operation of motor trucks, as between light and heavy trucks, we are not disposed to deny the conclusions of an affiant who states that the heavier trucks are much more dangerous to pedestrians traveling in the streets.

It is asserted that the ordinance is unreasonable and oppressive in that it confers “an arbitrary discretion upon an executive board to fix the character of an offense of private individuals,” and further, that it reposed ‘1 a power in private individuals to prevent the free and equal use of the city streets.”

The ordinance does not confer an unreasonable and arbitrary power upon an executive board to fix the character of an offense as urged. The main authority conferred by the ordinance upon the clerical, mechanical and inspection bureau of the department of police is to supervise the tests for fenders as provided in the ordinance. The ordinance requires that the protective efficiency of each fender submitted for a test is to be determined by no less than 168 dummy tests. The provisions relating to this subject are elaborate and they require, under the supervision of the bureau, that every fender submitted for test shall show a protective efficiency in accordance with the percentages fixed, in the ordinance.

The supervising bureau has no arbitrary power under the ordinance. The principal duties conferred upon it are the supervising of the tests as provided in the ordinance. It has no discretion in the matter of requiring tests. The ordinance provides that fenders shall be approved by the general superintendent of police after they have been subjected to the tests 'required by the ordinance. The inspection bureau makes report directly to the department of police, and it has no duty to perform except to act honestly and fairly in requiring only such tests and reporting thereon as are specified in the ordinance.

The ordinance does not give the inspection bureau the power to prevent the free and equal use of the city streets; nor is the ordinance in question one that imposes a double tax upon owners of vehicles subject to its provisions.

The instant case is widely different from the case of City of Chicago v. Collins, 175 Ill. 445, relied upon by counsel for complainants. The ordinance under consideration in the Collins case, supra, imposed a license fee upon vehicles using the streets, and it required that the license fee be held in a special wheel tax fund to be used solely for the repair of the city streets. The ordinance here under consideration provides a fee of $200, which fee is the estimated expense of making the elaborate tests provided for by the ordinance. It is not intended, as stated by counsel, that this $200 is to be paid “as a compensation” to permit an owner to use his trucks in his ordinary business. The ordinance requires that:

“Any person, firm or corporation desiring such a test for a fender' shall make application therefor on a form furnished by the General Superintendent of Police and shall deposit with the the City Collector the sum of two hundred dollars to cover the expense of such tests.”

This provision merely compels a payment of money by any person who submits a fender for test, and the amount required to be paid is to cover the expense of such test. Section 7 of the ordinance provides that where a certificate of approval- of a particular kind of fender has been issued such approval shall extend to all fenders of like pattern and material, made, sold, leased, loaned, rented or attached by the person, firm or corporation receiving such certificate of approval, or his, their, or its assigns. The ordinance does not seek to impose a tax upon persons whose fenders comply with the ordinance. It is purely a regulation and not a taxing measure. The city council would, of course, have no power to impose a. double tax; but it has ample power, under the City & Villages Act, to regulate the use of the public streets, and we think that the ordinance in question was passed in the exercise of this last-mentioned power.

It is urged by counsel for complainant that the ordinance in question is unconstitutional because in violation of article II, sec. 2, and article IV, sec. 22, of the Constitution of the State of Illinois, and that therefore this court has no jurisdiction to hear and dispose of this appeal. .Counsel have not submitted any authorities or argument in support of their position. The point is suggested in the statement of facts in the briefs filed by complainant; it is not otherwise urged upon our attention, and we think we are justified in regarding this point as being waived by the complainant.

The in junctional order of the Circuit Court appealed from is reversed.

Injimctional order reversed.


author: Mr. Presiding Justice Barnes

text:
    Ella Meyer, Appellee, v. Providers Life Assurance Company, Appellant.
    Gen. No. 23,662.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Coubt of Chicago, § 25

      —when right of appeal is lost by failure to file appeal bond, within fixed time. The jurisdiction of the Municipal Court of Chicago over the order fixing the conditions of an appeal is retained only until the expiration of the time prescribed therein for filing the appeal bond, and where the time for filing the bond expires without an authorized extension, the right of appeal is lost by a failure to file the bond within the time fixed for filing it, notwithstanding that after the expiration of the time the court grants an extension of the time for filing and approves the bond filed in such extended time.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Appeal dismissed.
    Opinion filed November 22, 1917.
    Statement of the Case.
    Action by Ella Meyer, plaintiff, against the Providers Life Assurance Company, a corporation, defendant. From a judgment for plaintiff,' defendant appeals, and plaintiff moves to dismiss the appeal for failure to file an appeal bond within the time first ordered by the court.
    Charles M. Haft, for appellant.
    Miller, Starr, Brown, Packard & Peckham, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    John Brandenberg, Appellee, v. Henry Eisenreicher, Appellant.
    Gen. No. 23,757.
    1. Appeal and error, § 800

      —^necessity of notice of motion for rule to file new appeal bond appearing in bill of exceptions. The fact of notice to an appellant’s attorney of a motion for a rule to file a new appeal bond can be made to appear only by a bill of exceptions, and the recital of such notice in the clerk’s transcript of the record is unavailing.
    2. Appeal and error, § 1265*—what presumed in absence of bill of exceptions showing proceedings relative to strilcing appeal bond from files'. In the absence of a bill of exceptions showing the proceedings upon which an order was entered striking an appeal bond from the files for insufficiency, it will be presumed. that the proceedings were regular and that objections to the bond were duly filed and that the notice required as a basis for the order was duly given.
    3. Appeal and error, § 675*—what is effect of order granting appeal authorizing cleric to approve security on power of court to cancel or reject bond. The fact that the order granting an appeal authorizes the clerk to approve the security does not require that the proceedings for further examination of the surety and requiring new security shall be had before the clerk, but the court still retains the power to cancel or reject the bond so approved and to require another.
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Appeal dismissed.
    Opinion filed November 22, 1917.
    A. G. Dicus, for appellant.
    Adelor J. Petit, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellee has made a motion to dismiss this appeal for failure to file a new bond in accordance with a rule of the trial court.

On July 10, 1917, the judgment appealed from was entered against appellant and an appeal granted upon condition that he file his bond in 30 days, the security to be approved by the clerk of the court, and a bill of exceptions within 90 days. On August 9th a bond was presented to and the surety approved by the clerk. On August 18th the court entered an order striking the bond from the files for insufficiency and entered a rule on defendant to file a new bond within 5 days thereafter, presumably acting under the power conferred by section 95 of the Practice Act (J. & A. IT 8632). This rule was not complied with. The approval of the bond and the striking or rejection thereof occurred in the July term of the court. At the next term, on August 25th, the defendant moved to set aside the order of August 18th, and on August' 27th another judge of said court granted the motion.

Appellee urges that the court was without jurisdiction to vacate its order of August 18th entered at a previous term, and appellant contends that the order was a nullity on the ground that the court was without jurisdiction to enter it, and that therefore the court had a right at the subsequent term to expunge it from the record.

.'The basis of appellant’s contention is that the power given to the court by section 95 of the Practice Act (J. & A. TT 8632), to require a new bond after the time first fixed for filing the same has expired, contemplates as among conditions for its exercise the filing of objections to the sufficiency of the bond and due service of notice for the surety to appear in open court or before the clerk for examination, and that the record should show, but does not disclose, such conditions; and appellant properly urges that the recital in the clerk’s transcript of the record of a notice to appellant’s attorney of a motion for a rule to file a new appeal bond is unavailing, as it could be made to appear only by a bill of exceptions, and none is before us.

But while the record does not disclose the proceedings upon which such order was entered, and which, whether regular or defective, could have been shown by a bill of exceptions, in the absence of the latter we must indulge in the presumption of regularity in the court’s proceedings, and assume that objections were duly filed and the notice required by the act duly given as a basis for the court’s order. By failure to comply with the order the appeal was not perfected and therefore it must be dismissed.

The point is made that as the order granting the appeal authorized the clerk to approve the security, the proceedings for further examination of the surety and requiring new security should have been had before the clerk. We do not think that the authorization thus given to the clerk took from the court its power to cancel or reject the bond so approved and to require another.

Appeal dismissed.


author: Mr. Presiding Justice Goodwin

text:
    Isador Ferguson, Defendant in Error, v. Bertha Steiner, Plaintiff in Error.
    Gen. No. 22,310.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1051

      —necessity of assignment of error as to exclusion or admission of evidence. In the absence of an assignment of error as to the exclusion or admission of evidence, the Appellate Court will not consider an objection to the judgment based upon the exclusion of evidence.
    2. Evidence, § 319*—when inadmissible to vary written instrument. Evidence which has the effect of varying the terms of a written instrument and substituting therefor an oral agreement of an entirely different character, held properly excluded.
    3. Landlord and tenant, § 470*—when rule that lessor may estop himself by conduct from taking advantage of provisions in regard' to forfeiture is inapplicable. The rule that a lessor may estop himself by conduct from taking advantage of the provisions in regard to a forfeiture cannot be extended to permit the purchaser of a leasehold under a written contract to introduce parol evidence to show that the vendor agreed to substitute an oral agreement of an entirely different character.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Forcible detainer by Isador Ferguson, plaintiff, against Bertha Steiner, defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Stein, Mayer & Stein, for plaintiff in error.
    Butz, Von Ammon & Johnston, for defendant in error.

      See Illinois Notes Digest, Yole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

4. Landlord and tenant, § 502 —when evidence of extensions of time and delays in payment are properly excluded in action of forcible entry and detainer by seller of leasehold. Where a clause in a contract for the sale of a leasehold provides that extensions of time and delays in payment shall not be construed as a waiver of the right to declare the entire sum due, evidence of extensions of time and delays in payment are properly excluded in an action of forcible detainer by the seller, who has declared the whole purchase price due for delay in paying instalments.

5. Landlord and tenant, § 470*—when extensions of time and assurances by seller of leasehold do not create estoppel. In an action of .forcible detainer by the seller of a leasehold who has declared a forfeiture against a purchaser who is in arrears in payments, evidence of extensions of time and assurances by the plaintiff is insufficient to create an estoppel where there is nothing to show that defendant relied on such extensions and assurances and placed himself in a different position from that in which he would have otherwise been.

6. Appeal and error, § 1491*—when judgment not reversed on account of exclusion of proper evidence. A judgment cannot be reversed on account of the exclusion of proper evidence unless the evidence offered, when considered in connection with the other evidence in the case, would have justified the jury in arriving at a contrary conclusion.

7. Landlord and tenant, § 470*—what evidence is necessary to establish equitable estoppel of vendor of leasehold by assurances and agreements for extensions of time. In an action of forcible detainer by the vendor of a leasehold against the purchaser as to whom he has declared a forfeiture for default in payment of instalments of the purchase price, evidence that plaintiff had not given defendant a reasonable time to make the default is necessary to establish an equitable estoppel claimed to have arisen through the assurances of plaintiff and his agreement to extensions of time and delays in payments.

8. Landlord and tenant, § 463*—what constitutes sufficient declaration of forfeiture of contract for sale of leasehold. In an action of forcible detainer brought by the vendor of a leasehold against the purchaser, against whom he had declared a forfeiture for default in payment of rent, it appeared that plaintiff served notice to the effect that defendant was in arrears and had been in arrears for more than 30 days and that consequently plaintiff declared the entire sum due and further notified defendant that there was a certain amount (stating it) due him under the contract, as shown by a statement attached, and that he demanded payment of this amount in 3 days; 5 days later, defendant served another notice that he had declared the entire balance due, and that as plaintiff had made default in the payment of that amount, pursuant to the terms of the contract, he declared it to be forfeited. No payment was made of the sum demanded in the first notice. Held that the second notice was a sufficient declaration that the contract was forfeited and the entire sum due.


text:
    M. K. Northam, Appellee, v. F. J. Lewis Manufacturing Company, Appellant.
    Gen. No. 23,107.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action on contract by M. K. Northam, plaintiff, against F. J. Lewis Manufacturing Company, a corporation, defendant. From a judgment for plaintiff for $480, defendant appeals.
    Elmer & Cohen, for appellant.
    A. D. Ranstead and Cavender & Kaiser, for appellee.

      See Illinois is Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same louie and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers—when brolcer entitled to commission although lease not carried out. Where a contract between a car manufacturing company and a broker provided that the former would pay the broker as commission for leasing a certain number of cars the amount for which the cars were leased in excess of a certain amount per month, and the broker procured a lessor who agreed to pay a rental in excess of the amount charged by the company, the broker’s commissions were earned when the cars were leased, and he was entitled to his compensation without regard to whether, the lease was carried out.

2. Assumpsit, Action ok, § 95 —when judgment in action brought under common counts not reversed. A judgment will not be reversed because the action was brought under the common counts, where it was brought for services rendered, and there was an affidavit of merits disclosing the nature of the claim, a plea of nonassumpsit in the affidavit of merits and no objection was made to the introduction of the evidence.


text:
    George Ehrat, trading as George Ehrat & Company, Appellee, v. V. Marrone and R. Lofaro, trading as Marrone & Lofaro, Appellants.
    Gen. No. 23,140.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Bill by George Ehrat, trading as George Ehrat & Company, complainant, against V. Marrone and B. Lofaro, trading as Marrone & Lofaro, defendants, to restrain the enforcement of a claim against complainant upon which suit had been begun in the Municipal Court of Chicago, in which it had been held that complainant’s claim of set-off could not be entertained because of being for unliquidated damages growing out of another transaction. From a decree for complainant, defendants appeal.
    Abstract of the Decision.
    1. Sales—what does not constitute waiver of buyer’s claim against seller for unliquidated damages for injury to goods in transit. The acceptance of goods by the buyer in ignorance of the fact that the seller had violated the buyer’s instructions to take out insurance in his name does not constitute a waiver of the buyer’s claim against the seller for unliquidated damages growing out of the injury to the goods in transit.
    2. Sales, § 243

      —when implied warranty as to merchantibility of goods exists. In sales of merchandise intended for resale, there is an implied warranty that the goods shall be merchantable.
    3. Sales, § 387*—what is remedy of purchaser upon breach of warranty of quality of goods. Where there is an express or implied warranty of quality, the purchaser may receive the goods and recover the damages resulting from a breach of the warranty.
    John C. Burchard, for appellants.
    Edward J. Kelley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Estelle Schwartz, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 23,142.

      Carriers—when evidence is insufficient to show existence of menace to passengers hy stones thrown through cars of which carrier has notice. In an action to recover for personal injuries to a passenger from a stone being thrown through a window of the car in whic¿ she was riding, evidence of prior occurrences of a like nature, which is vague as to the places at which they happened, and which does not shpw that any passenger was injured or put in danger of bodily , harm thereby, is insufficient to show the existence of an actual menace to the safety of defendant’s passengers of which it had notice.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the. Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing denied December 12, 1917.
    Alexander H. Heyman, for appellant.
    Frank L. Kriete, for appellee; W. W. Gurley, J. R. Guilliams and Charles L. Mahony, of counsel.
   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The appellant, who was the plaintiff below in a suit for personal injuries based upon the failure of appellee to take due precautions to prevent an accident to appellant as a passenger on its cars, and a consequent injury to her resulting from the throwing of a stone through the car window by a person not in the employ of appellee, seeks to reverse a judgment in favor of appellee entered on a directed verdict. Appellant offered evidence tending to show the accident and consequent injury to herself, and that the conductor said to her immediately after the accident, “This has happened before.” In addition, one witness testified that during the year 1913, prior to September 5th, he rode on the same line, and in the fall of 1912, somebody smashed the glass on the outside of the car, in the vicinity of where this accident happened. Another witness testified that before the date of the accident he saw boys throwing stones through the window; this was about 2 or 3 weeks before this accident happened; he also stated' that stones were thrown frequently during the 2 years before the accident; that he saw nobody hurt. A third witness testified that during the month of August, 1913, he saw some boys playing in a heap of gravel, and saw stones thrown through the car windows, that they were not large stones, but small gravel; that in the year 1913, between January 1st and August 1st, he saw stones “as big as coals” thrown through the windows. A fourth witness testified that on the 2nd of September, 1913, a tomato was thrown through the window, somewhere on West 14th street, and prior to that date (he does not say when) a cigaret was thrown through the window and a baby’s bonnet burned; that he saw a potato thrown in the same manner 2 or 3 days before the accident. It does not appear at what place this happened. A fifth witness stated that about the 2nd of September, a boy threw a stone in the window, and it bounced off her baby’s leg; no one was hurt; she could not say where this happened. Counsel offered other witnesses to show that stones and other hard substances had been thrown through the car window of a 14th street car prior to the time of the accident.

Counsel, in his brief, makes no point in regard to the exclusion of this evidence offered, but seems to rely solely upon the court’s action in directing a verdict in view of the evidence actually received. Apparently it is conceded by appellee that a carrier is bound to exercise ordinary care to prevent any danger to its passengers, providing it had reasonable grounds to anticipate such a danger, but makes a question as to the degree of care which it is bound to exercise. Assuming that counsel for appellant is correct in his contention that this degree of care is the highest degree of care, consistent with the practical operation of its road, a question arises as to whether the facts shown in the evidence, when viewed in the aspect most favorable to appellant, could be considered notice to the appellee of a danger to its passengers. Upon a careful examination of the evidence, we are of the opinion that the facts were totally insufficient in that it does not appear that any passenger was injured in any degree or put in jeopardy of bodily harm at any time prior to the túne of the accident in question. The facts testified to, if brought home to the employees of the appellee, were not of a nature to cause a reasonable apprehension on its part of danger to its passengers; certainly not of ex-trahazardous dangers. In addition to this, the testimony in regard to the place at which prior' occurrences had happened was entirely too vague to justify the jury in finding that appellee had notice of any danger to its passengers at the place of the' accident. In short, we are of the opinion that the evidence received, even when taken in connection with appellant’s offer of further proof, is totally insufficient to show the existence of an actual menace to the safety of appellee’s passengers, of which it had notice.

The judgment of the Superior Court must, therefore, be affirmed.

Affirmed.