text:
    J. M. Hoyt, C. B. Little and L. A. Stebbins, Trustees, Plaintiffs in Error, v. William P. Morris and J. H. Brumsey, Defendants in Error.
    Gen. No. 25,259.
    1. Bills and notes, § 468

      —when warrant of attorney to confess judgment is not exhausted. A warrant of attorney which authorizes confession of a judgment is not exhausted where a judgment is entered under the warrant on a note and such judgment is vacated and set aside as invalid, as the purpose of the warrant must have been served before it can be said to be exhausted, and when the first attempt to enter judgment is a nullity, the warrant retains its original potency.
    2. Appeal and error, § 1094*—what should he character of brief. A brief filed on an appeal of a case should be brief and clear so that it may assist the court in determining the questions presented; strained language and superfluous words tending to conceal the matters of substance should be avoided.
    Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed January 12, 1920.
    Rehearing denied January 26, 1920.
    Eugene L. Garey and A. J. Deutschman, for plaintiffs in error.
    Moses, Rosenthal & Kennedy, for defendants in error; Hamilton Moses and Henry Jackson Darby, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this writ of error the plaintiffs seek the reversal of an order of the trial court vacating a judgment in their favor for $10,232.50, confessed under a warrant of attorney, on a. note made by the defendants.

On October 29, 1918, the plaintiffs filed their statement of claim and cognovit, and judgment was confessed as above stated. Thereafter, on November 25, defendants moved the court to vacate the judgment and supported their motion by affidavits which recited that a judgment had previously been entered upon the same note on October 14, 1916, in the Circuit Court of Marshall county, Illinois, and subsequently on October 25,1918, on motion of defendants, an order was entered by said Circuit Court of Marshall county vacating and setting aside said judgment and dismissing the cause. This affidavit was supported by a transcript of said proceedings. The affidavits further asserted that defendants did not subsequent to October 14, 1918, authorize any attorney to appear for them and confess judgment; and it was averred that the power and authority conferred under the warrant of attorney' in the note, having been once exercised by the entering of the judgment in Marshall county, had' become exhausted and that no other or further judgment could be entered upon said note by virtue of said warrant of attorney. The trial court was in accord with this claim ‘and vacated the judgment and dismissed the cause for want of prosecution.

We hold that in so doing thejbrial court was in error. The warrant of attorney was authority to confess a valid judgment. When the judgment which was attempted was vacated as invalid, the warrant had not functioned but retained its original potency. It clearly could not have exhausted its authority by an attempt which was a nullity. The purpose of the warrant of attorney must have been served before it could be said to be exhausted by its exercise. A similar point was concisely disposed of by the Supreme Court of Iowa in Huner v. Doolittle, vol. 3 (Greene) 76, where the court said:

“A decree had been confessed in the same case at a previous term of the court. It is therefore contended that the first act of confession exhausted the authority of the attorney to confess under that power. This would be true if the first decree had been valid or remained unreversed. But it appears that it was taken to the Supreme Court and reversed. This placed the ease and the rights of the parties the same as if the first decree had not been rendered. The intention of the power had not be'en carried out, consequently the object was not accomplished, and the authority was not exhausted by the first act. ”

To the same effect was the holding in Guyer’s Adm’r v. Guyer, 6 Houst. (Del.) 430, and Fairchild v. Camac, vol. 8 Fed. Cas. p. 953. In 30 American and English Encyclopedia of Law, 118, it is said:

“A warrant -which authorizes the attorney to confess a judgment or judgments, authorizes a second judgment only where the first one is imperfect and not where a valid and subsisting judgment has previously been confessed on the wurrant. But where a judgment entered under the warrant has been set aside by reason of the death of the grantee, this does not prevent a second judgment being entered up thereon in the name of the administrator.”

We approve of what is said in these cases as being founded upon reason and justice.

Opposed to what is above held, counsel for defendants present a brief remarkable for its display of great industry. Unfortunately it does not give that assistance to the court which should be the object of every /brief. Strained language and superfluous words only ' tend to conceal the matters of substance in which alone the court is interested. Brevity and clarity mark the effective brief.

For the reasons above given, the judgment of the Municipal Court is reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    Frank M. Becker, Administrator, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 25,287.
    1. Street railroads, § 133

      —when questions of negligence and contributory negligence in action for death of driver of motorcycle are for jury. In an action for the death of a driver of a motorcycle, where the plaintiff alleged that a street railway company, by its motorman, permitted a passenger to alight while the car was in motion so that the passenger came in contact with plaintiff’s decedent, and he was thrown from the motorcycle, sustaining fatal injuries, and where the evidence conflicted as to the accident and the place where the street car stopped, the questions of negligence of the defendant and contributory negligence of the plaintiff’s intestate were questions of fact for the decision of the jury.
    2. Street railroads, § 131*—when verdict for defendant in action for death of driver of motorcycle is supported by evidence. In an action for the death of the driver of a motorcycle who was thrown from his machine by coming in contact with a passenger alighting from a street car, where two witnesses for the plaintiff testified that the street car stopped at the ?‘far” side of the street, and five witnesses for the defendant testified that the car stopped at the “near” side of such street, there being some evidence of contradictory statements by the plaintiff’s witnesses before the coroner, the .evidence did not preponderate in favor of the plaintiff, and in fact the jury would not have been justified in finding in favor of the plaintiff, the verdict in favor of the defendant being abundantly supported by the evidence.
    3. Street railroads, § 109*—when declaration in action for death of driver of motorcycle does not state cause of action. A declaration, in an action for the death of a driver of a motorcycle who was thrown from his machine by colliding with a passepger alighting from a street car, which alleges negligence in permitting the passenger to alight from the car while in motion, fails to state a cause of action, as it is a common practice for passengers to Step down and stand on the car steps preparatory to alighting when the -car actually stops, and the permitting of such act, or the unlatching of the car door to permit such act, cannot be considered negligence.

      4. Street railroads, § 144

      —when instruction in action for death of driver of motorcycle does not constitute reversible error. In an action for the death of a driver of a motorcycle who collided with a passenger who was alighting from a street car, the giving of an instruction that the plaintiff could not recover if the decedent drove his motorcycle past the" street car while it was discharging passengers, in violation of a city ordinance, and that such conduct caused or contributed to the accident, was not reversible error, as the evidence showed violation of the ordinances contributing to the accident.
    5. Negligence, § 8*—when holding that violation of speed ordinances does not necessarily constitute negligence per se has no application. Authorities holding that the violation of ordinances regulating the manner and speed at which a vehicle may be operated in a public street does not necessarily constitute negligence per se, have no application where the violation of the ordinances necessarily contributed to cause the accident.
    Error to the Circuit Court of Cook county; the Hon. Frank John-^ ston, Jr., Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed January 12, 1920.
    Rehearing denied January 26, 1920.
    Coburn & Bentley, for plaintiff in error.
    Frank L. Kriete and William H. Symmes, for defendant in error; J. B. G-uilliams and Joseph D. Byan, of counsel.

      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.

A judgment was entered in the Circuit Court of Cook county in favor of defendant in an action brought against it by plaintiff to recover damages arising out of circumstances attending the death of plaintiff’s intestate. The plaintiff seeks by this writ of error to reverse the judgment.

The plaintiff alleged in his declaration that decedent, Andrew J. Becker, was, with all due care for his own safety, riding a motorcycle in a northerly direction on Crawford avenue in Chicago near its intersection with Wellington street; that defendant, by its motorman, negligently permitted a passenger to alight from a street ear operated by defendant while the car was in motion, “so that the passenger came in contact with plaintiff’s decedent, and. so that plaintiff’s decedent was violently thrown from his motorcycle, receiving fatal injuries.”

The jury had sufficient evidence before it, introduced on behalf of defendant, to warrant the conclusion that the street car in question at the time of the accident had stopped at the near or south side of Wellington street, the usual stopping place, and that the motorcycle at the time was being driven at a high rate of speed by plaintiff’s intestate. Two of plaintiff’s witnesses testified that the car stopped at the “far side” of Wellington street. One of these witnesses was Hicks, the passenger who alighted from the front end of the car. The testimony of these two witnesses was directly contradicted by that of five witnesses for defendant, who testified that the car stopped at the “near” or south crosswalk of Wellington street, and also there is some evidence in the record which tends to support the contention that the two witnesses had made statements before the coroner in some degree contradictory of their testimony on the trial.

When all the evidence introduced on the trial is examined it becomes obvious that this court cannot hold that the evidence preponderates in favor of the plaintiff. Whether the defendant was guilty of negligence or whether the plaintiff’s intestate was guilty of contributory negligence at the time of the accident, were questions of fact for the decision of the jury, and it is our opinion that the jury had before it abundance of evidence in support of its verdict in favor of the defendant. The jury under the evidence in the record would not in any event have been justified in finding the issues in favor of the plaintiff. Casey v. Chicago City Ry. Co., 237 Ill. 140.

It is said that the declaration does not state a cause of action. In Busack v. Chicago City Ry. Co., 283 Ill. 117, the Supreme Court said:

“It is a common practice for passengers to step down and stand on the step before a car stops, preparatory to alighting when it stops, and as it has never been regarded as negligence in a passenger to do that, it cannot be considered negligence to permit him to do it.”

The charge in the declaration is that the defendant carelessly invited and permitted a passenger to alight from the car by opening the front door of the car while it was in motion. The Supreme Court in deciding the Busack case, supra, said:

“No negligence was alleged or proved except the unlatching of the door before the car came to a full stop, and unless that act was negligence there could be no recovery.”

Under the holding in the Busack case it must be held that the declaration filed in the cause did not state a cause of action.

Counsel for plaintiff contend that the trial court erred in giving certain instructions to the jury. Whatever may be said as to the conduct of the trial judge in this particular, it must be held in view of the facts of the case as shown by the evidence .introduced on the trial that the jury could not in any appreciable degree have been misled by the instructions, even if the giving of the instructions might in other circumstances constitute reversible error. One of the two instructions complained of was to the effect that if the jury found from the evidence that deceased drove the motorcycle past the street car while it was at a standstill and was discharging passengers therefrom, contrary to the provisions of certain ordinances of the City of Chicago, and that such conduct of deceased caused or contributed to bring about the accident, the plaintiff could not recover. One of the ordinances provides that:

“It shall be unlawful for any person operating any motor vehicle or motorcycle upon the streets of the City of Chicago, upon overtaking any street car which has stopped for the purpose of discharging or taking on a passenger or passengers, to permit or cause said motor vehicle or motorcycle to pass or approach within ten feet of said car as long as the said car is so stopped or remains standing for the purpose of discharging or taking on a passenger or passengers.”

Another ordinance required that:

“All vehicles shall keep as close to the right-hand curb as safety and prudence shall permit, except when overtaking and passing another vehicle, and except when running within the car tracks, as provided in section 2487 hereof. ' An overtaken vehicle must at all times be passed on its left side.”

The case of Horn v. Berg, 210 Ill. App. 238, is relied upon by plaintiff. It was held therein that under the circumstances of the case an ordinance requiring vehicles to stop 10 feet back of a standing street car which had stopped to discharge passengers had no application, for the reason, as stated by the court:

“It is clear from the evidence that appellee alighted from the street car not at its usual stopping place, but at a point prohibited by city ordinance, and that, when he did so, appellant’s automobile, which had been running alongside the car, was then in the act of passing it. Under the circumstances as shown by the record in this case, the ordinance requiring vehicles to stop 10 feet back of the street car which had stopped to discharge or take on passengers had no application. Therefore, in our opinion, * * * the giving of the instruction on behalf of appellee constituted reversible error. ”

The case of Brink’s Chicago City Exp. Co. v. Kinnare, 168 Ill. 643, does not support the contention of plaintiff. In that case the court, with respect to an instruction concerning an ordinance regulating the speed at which vehicles might be driven in public highways, said:

“The question of fact, under this instruction, was left to the jury whether defendant violated the ordinance, and if it did, whether that violation contributed to or caused the injury to deceased.”

It is urged that the violation of the ordinances, under the circumstances of the case, would constitute, at host, only prima facie evidence of deceased’s contributory negligence. The evidence shows that deceased collided with a passenger as the latter was in the act of alighting from a street car or immediately thereafter; deceased at the moment was violating the ordinances in such manner that it became clear to the jury that his conduct in this particular was negligent, and that it contributed to bring about the accident. No reversible error, therefore, was committed in giving the instructions. Crauf v. Chicago City Ry. Co., 235 Ill. 262. There are many authorities which hold that the violation of an ordinance regulating the manner and speed at which a vehicle may be operated in a public street does not necessarily constitute negligence per se, but those authorities have no application where it appears, as we believe it does in the present case, that the violation of the ordinance necessarily contributed to cause the accident.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    The People of the State of Illinois ex rel. First National Bank of Hammond, Indiana, Defendant in Error, v. Jacob Czaszewicz et al., Plaintiffs in Error.
    Gen. No. 25,029.
    1. Municipal corporations, § 115

      —when evidence shows bonds were not paid for by treasurer or by any one for him,. In a mandamus proceeding to compel a former city treasurer to give a detailed account of his receipts and expenditures as treasurer, where a question of fact arose as to whether such official obtained possession of seven bonds from a bank irregularly, and where the treasurer contended that such bonds were paid for by him, the evidence warranted a conclusion that the bonds were not paid for by the treasurer, or by any one for him, the evidence by the official on the question being unconvincing and unreliable.
    2. Mandamus, § 150

      —when respondent waives -error in overruling of general demurrer to petition. Where a general demurrer to a petition for mandamus was overruled, the respondent by pleading over waived any error of the court in its ruling.
    3. Mandamus, § 150*—right to raise question of sufficiency of verification of petition by demurrer. The question of want of sufficient verification of a petition for mandamus cannot be raised by demurrer. •
    4. Pleading, § 376*—what is remedy for want or insufficiency of verification. Neither want of an affidavit or verification to a pleading nor the insufficiency of the verification is ground for demurrer, the remedy being by motion to strike the pleading from the files.
    5. Mandamus, § 149*—necessity that petition be verified. Since the passage of the act of 1874 relating to mandamus (J. & A. 1f 7330 et seq.), a verification of the petition is unnecessary.
    6. Jury, § 28*—going to'trial without ashing for jury as waiver of right to jury trial. In a mandamus proceeding the right to a trial by jury is waived where the respondent proceeds to trial without asking for a jury.
    7. Jury, § 28*—when objection to trial by court comes too late. An objection to the trial of a cause by the court without a jury comes too late when it is made after the court has heard the case and announced its conclusions.
    8. Mandamus, § 120*—when proceeding to compel former city treasurer to pay over money to successor may be maintained in name of People. In a mandamus proceeding to compel a former city treasurer to give a detailed account of his receipts and expenditures as treasurer, and to pay over certain money to his successor in office, where the purpose of the proceeding is to compel the payment of money into the city treasury, so that the city may discharge its obligations by paying to a bank, appearing as relator, amounts due upon certain bonds, the money retained by the treasurer is public money, and the proceeding may be maintained in the name of the People.
    9. Mandamus, § 69*—when proceeding to compel former city treasurer to pay over money to successor may be maintained notwithstanding expiration of respondent’s term of office. In a mandamus proceeding to compel a former city treasurer to account for his receipts and expenditures as treasurer and to pay over money alleged to be retained, it cannot be urged that the proceeding will not lie because of the expiration of the term of office of the respondent, as the remedy is available to compel the performance of acts which were not performed during the official’s term of office, and which should have been performed.
    10. Mandamus, § 69

      —when writ will lie to compel city treasurer to pay over money to successor. Where a city treasurer fails to perform his duty of paying certain money to his successor in office, which money is retained by the treasurer for his own use, when it was collected to discharge certain bonds, mandamus is available to compel performance of the duty, and it cannot be contended that the proceeding is merely to enforce the payment of money and that for such reason the remedy is not available.
    Error to the Circuit Court of Cook county; the Hon. Ebank J. Johnston, Jb., Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed January 12, 1920.
    Samuel K. Markman, for plaintiffs in error.
    Burton, Kannally & Megan, for defendant in error.

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

      See Illinois Notes Digest, Vois. 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 Holdom

delivered the opinion of the court.

The writ of error in this cause brings before us for review errors assigned on an order directing a peremptory writ of mandamus to issue against the respondent, Jacob Czaszewicz, former city treasurer of the City of West Hammond, commanding him to forthwith make out and file with the city clerk of said city a corrected, full and detailed account of all the receipts and expenditures of the corporation as properly and truly shown by his books and of all his transactions as such city treasurer during the fiscal year ending April, 1915, and showing the state of the treasury at the dose of said fiscal year so far as relates to the funds of special assessments numbered 55, 43, 33 and 35, and to deliver and pay over forthwith to his successor in office, the present city treasurer, the sum of $2,300 to the credit of four certain, special assessment funds as follows: To the credit of the fund of special assessment number 55, second instalment, $2,000; to the credit of the fund of special assessments numbers 43, 33 and 35, third instalments of $100 each.

The petition alleged inter alia that the respondent, Jacob Czaszewicz, was city treasurer of West Hammond from the 1st of May, 1913, until May 1, 1915; that on various dates prior to May 1, 1915, the City of West Hammond issued sundry special assessment bonds and warrants which were purchased by relator, the First National Bank of Hammond; that on January 11,1915, and again on March 31,1915, respondent, as such city treasurer, paid relator sundry sums of money in payment of certain obligations of the said city; that the payments made on the last-mentioned dates did not include obligations of the City of West Hammond aggregating $2,300 and payable out of special assessments 33, 35, 43 and 55, the subjects of controversy in this case; that on the last-mentioned dates, in turning over and surrendering to respondent as such city treasurer for cancellation certain written obligations of said city, “relator, by accident and mistake, handed to the said Czaszewicz the seven above described bonds (aggregating the said $2,300), and the said Czaszewicz, as city treasurer, received and took the seven said bonds, and, without the knowledge or consent of the relator, caused the seven above described bonds to be canceled and marked paid, and entered each of the seven said bonds on his books as city treasurer, as paid, and on April 29, 1915, credited himself on his said books with one sum of two thousand ($2,000) dollars and three sums of one hundred ($Í00) dollars each, as paid out of the treasury of the said City of West Hammond by him for and on account of the principal sums then respectively due and payable on the seven said bonds”; that tiqe handing over of said seven bonds by relator to respondent, the receiving of same by respondent and the cancellation thereof, the marking of them paid and the entering of them on the books of the respondent as paid and the crediting of respondent on his official books with the said sums,, were all done through mutual mistake and error on the part of the relator and the respondent, Czaszewicz; that said $2,300 was never paid by respondent to relator; that subsequent to May 1, 1915, relator learned that said seven bonds were in the possession of the City of West Hammond, canceled and marked paid, and that demand was made by relator upon respondent for restitution before May 1,1915.

On November 15, 1915, a written notice was served upon the City of West Hammond describing the seven bonds in question, alleging that they were wrongfully in possession of the city and demanding that they be immediately turned over to relator.

To this petition relator filed a general demurrer which being overruled he then filed several pleas. A general demurrer to these pleas was interposed and overruled. Thereupon replications, rejoinders and surrejoinders were severally interposed; but as only one question arises upon the pleadings, we will not further set them forth. This one question relates to the overruling of respondent Czaszewicz’s demurrer to relator’s petition, which will be hereafter noticed and disposed of. The relator, the City of West Hammond, interposed an answer, but as it is not complaining of the judgment it is not necessary to here set forth such answer, as the issues upon this review lie between the relator and the respondent Czaszewicz.

The facts proven on the hearing are in brief that respondent, Jacob Czaszewicz, was city treasurer of West Hammond for 2 years ending April 30, 1915; that the relator owned a number of bonds and warrants of the City of West Hammond; that among the bonds so owned by relator were four bonds for $500 each and three for $100, all due prior to January 1, 1915; that respondent had two interviews with the bank officers between January 1, 1915, and April 30, 1915; that on January 15 respondent took up a number of warrants, paying relator $1,076.67 by check drawn by him on the West Hammond Trust and Savings Bank, the bank designated by city ordinance as the depository for all city funds. The second interview Was on March 30, when respondent took up more warrants, bonds, etc., to the amount of $2,987.50, which he paid by check on the West Hammond bank. None of the seven bonds in question was included in these papers. Within 2 months after respondent retired from the office of city treasurer, the bonds in dispute were found to be missing from relator’s bank upon examination of its affairs by the bank examiner. The books of the bank showed no payment on these bonds, although on inquiry at the West Hammond municipal offices relator discovered that respondent had turned in the seven bonds to the city clerk as paid and had credited himself on his books as city treasurer, under date of April 29, 1915, with payment of $2,300 and interest to April 29, being the day on which respondent’s term as treasurer ended. The bank’s daily balance sheet failed to show that any money was received and unaccounted for either on March 30, the date of the last transaction with respondent, or on April 29, when respondent retired from office. Respondent’s account at the West Hammond Trust and Savings Bank showed the two checks for $1,076.67 and $2,987.50, but no other payments over $300 to any one from March 25 to the end of his term; that his total checks from March 25 to the end of his term, excluding the one item of $1,076.67, were less than $1,000. On respondent’s last visit to relator’s bank all the West Hammond bonds and warrants were spread out on a table in the directors ’ room and the cashier of relator and the respondent looked them over. No one but these two persons was in the room and no one else came into the room while the papers were there. The cashier was called to the telephone and was out of the room a few minutes, respondent being in the room alone with the bonds during that time. Relator kept all of its bonds in the personal custody of the cashier, who kept them locked in the vault, keeping the key himself. When respondent left, the cashier gathered up the papers from the table and locked them in the vault, no one but the cashier having access to them.

Respondent maintained at 319 State Line street, in the same place where his home was, a grocery, meat market, coal yard and saloon. He testified that he always had a large amount of money ready on hand; that he was always paying out cash to people who came for it. He could not remember when he paid for the seven bonds nor how he paid for them, although he said, “It must have been in checks and cash.” Relator’s cashier testified that respondent never paid cash, but always paid by check, and that he did not know of respondent’s ever paying for bonds in cash.

Before the trial notice was served for respondent to bring into court his canceled checks. When called for upon the trial they were not produced. The cashier of respondent’s bank testified that respondent’s canceled checks were not kept by the bank but were returned to him.

Respondent Czaszewicz argues for reversal that as applied to the facts in this case mandamus will not lie; that he, respondent Czaszewicz, was functus officio when the petition was filed; that an ex-official cannot be forced to do an official act by mandamus after his term of office has expired; that the judgment is a nullity because the court was without power to proceed to determine questions of fact without submitting the same to a jury, on the contention that trial by jury was not waived; that the demurrer to the petition should have been sustained; and that relator cannot maintain mandamus on the facts of this case in the name of the People.

Before adverting to the law of the case we will dispose of the facts. All but one of the controlling facts are in the record unchallenged. The one crucial fact strongly contested is how Czaszewicz obtained possession of the four $500 and three $100 bonds in dispute.

Relator’s evidence tends to sustain its theory that Czaszewicz obtained possession of the seven bonds irregularly; that on the last visit of Czaszewicz to relator’s bank and during the absence of its cashier in answering the telephone, Czaszewicz possessed himself of the bonds; while Czaszewicz swears that he paid for the bonds when he obtained possession of them. If Czaszewicz was right in his contention that he paid for these seven bonds, he could readily have proven that fact—if it was a fact—by evidence aside from his own unsupported statement.

The two other bond transactions with the bank, one of'$2,987.50 and the other of $1,076.67, were proven by the books of the bank where Czaszewicz kept his treasurer’s account under the city ordinance, these having been paid by checks. Bearing in mind the facts that relator’s book's showed no payment for any one of these seven bonds, that respondent would not swear that he remembered paying for them, his halting testimony that he paid for the bonds with cash, the testimony to the effect that he always paid by check, that there was no proof of any corresponding credit in his treasurer’s account with his bank of such payment, and respondent’s uncertainty regarding the transaction as developed by the questions and answers hereinafter recited, his evidence must be held to be not only unreliable but unconvincing. The testimony referred to is as follows:

“Q. You don’t remember within two months when you paid out the $2,000? A. Well, from that time when they were missing I kind of lose my memory.

" The Court: Did you pay them in cash or by check or how? A. I paid with checks and cash.

“Q. How did you pay these particular bonds ? A. I paid it with money.

“Mr. Megan: AH of it with cash? A. That I don’t remember.

“Q. Do you know whether or not you paid any of it by check? A. That I don’t remember.”

The record shows that respondent, holding an important financial elective office, was so unfamiliar with the English language that he had to give his testimony through an interpreter. This seems to us a most unusual condition and one that did not tend to add credence to his apparent lapses of memory concerning events of importance.

From the evidence in this record the court might well conclude, as it did, that the believable evidence sustains relator’s contention that the seven bonds in dispute were not paid for by Czaszewicz or by any one for him at any time. The evidence of Czaszewicz standing alone discredits his contention that he paid for these seven bonds.

Respondent’s demurrer, which was overruled, was general. By pleading over he waived any error of the court in such ruling. Walker v. Welch, 14 Ill. 277; Pittsburg, C., C. & St. L. Ry. Co. v. Robson, 204 Ill. 254; People v. American Life Ins. Co., 267 Ill. 504.

Respondent urges that the petition of relator was not verified, thereby mailing it obnoxious to the demurrer interposed.

There are two answers to this contention. In the first place, the lack of verification cannot be urged on demurrer; secondly, it is not necessary to verify a petition for mandamus. In People ex rel. Robinson v. Knight, 189 Ill. App. 449, it was held that the question of want of sufficient verification of a petition for mandamus cannot be raised by demurrer. Neither want of an affidavit or verification to a pleading nor the insufficiency of the verification is ground for demurrer. Such question should be raised by motion to strike the pleading from the files. Moreover, since the passage of the act of 1874 relating to mandamus, a verification óf the petition is unnecessary.

Respondent contends that he had a right to trial by jury and that he did not waive such right. However, relator proceeded to trial before the court without objection until after the court had heard the cause and announced its conclusions, whereat respondent’s counsel suggested that he had a right to a jury trial. The objection to the court proceeding to try the ease without a jury came too late after the trial had practically ended. Respondent waived his right to a trial by jury by proceeding to trial without asking for a jury. This case is analogous on principle to Heacock v. Hosmer, 109 Ill. 245, where the court said:

“If she was entitled to a jury trial, it was her duty to demand a jury, and had the court refused her that right, then she would have been in a position 'to complain; but she did not ask for a jury in the Circuit Court, or in any manner indicate to the court that she desired the matters involved in the case submitted to a jury. We are therefore of opinion, as no jury was demanded, the right of trial by jury was waived. ’ ’

Washington v. Louisville & N. Ry. Co., 136 Ill. 49, where the court said:

“She stood by and participated in the proceeding without objection. * * A party cannot stand by and permit the court having jurisdiction to determine the question, to proceed to final judgment, and then be heard to complain for the first time in the Appellate Court.”

It is also contended that “no public rights are involved in this case,” and that therefore relator had no right to prosecute in the name of the People.

The nub of this case seems to us to be that Czaszewicz, the late treasurer of the City of West Hammond, retains in his possession money which of right belongs to and is the property of the city, therefore it is public money. The whole purpose of the proceeding is to compel respondent Ozaszewicz, as the city’s late treasurer, to pay into the treasury the money which he wrongfully withholds, so that the city may discharge its obligation by paying to the relator the amount due upon its seven bonds here in dispute. We think that North v. Board of Trustees, 137 Ill. 296, and City of Ottawa v. People ex rel. Caton, 48 Ill. 233, are authorities sustaining relator’s right to proceed in the name of the People.

It is urged that “mandamus will not lie to compel the performance of an official act or duty after the expiration of the term of office of the respondent.”

From the time of the early English cases mandamus has been resorted to successfully to compel an ex-official to perform an official duty omitted to be performed during his term of office. To such effect is Rex v. Wildman, 2 Str. 879, in which case a mandamus was granted to compel an ex-clerk, who had been removed from his office, to deliver to the company of blacksmiths all books and papers which he had in custody by virtue of his office.

In Rex v. Mayor of Cambridge; 4 Burr. 2011, mandamus was ordered commanding a new election to be held, the previous one being held void, the writ being directed “to the late mayor.” Tapping on Mandamus, 470.

In People ex rel. Brewster v. Kilduff, 15 Ill. 493, mandamus was held to be a proper remedy against an ex-mayor to obtain possession of a seal, books and papers, the property of the corporation. The court said: “Of the right to the writ to deliver up the seal to the mayor and clerk of the corporation, we can have no doubt.” Loewenthal v. People ex rel. Raymond, 192 Ill. 222.

Huffman v. Mills, 39 Kan. 577, is a case where a mandamus was awarded to compel a former sheriff to deliver property belonging to the sheriff’s office to his successor. So in Castle v. Lawlor, 47 Conn. 340, a writ of mandamus was granted commanding a former tax collector to deliver up rate bills for uncollected taxes to his successor. In Fasnacht v. German Literary Ass’n, 99 Ind. 133, the writ was granted to compel an officer of the association whose term had expired to deliver up the papers of the association in his possession to his successor. In Proprietors of St. Luke’s Church v. Slack, 7 Cush. (Mass.) 226, it was held that mandamus would lie to compel the treasurer or clerk of a religious society whose term of office had expired to deliver the records and papers of the society to his successor in office. State v. Davis, 54 Mo. App. 447.

City of Keokuk v. Merriam, 44 Iowa 432, was a mandamus proceeding to compel a municipal officer to submit his books of account to the officer authorized to inspect them. Defendant pleaded that he had resigned his office. Such answer was held to be subject to demurrer, the court saying:

“We do not understand that it is claimed by appellant that mandamus will not be proper in such case if the defendant is still in office. But it is said that the defendant being no longer in office, he was not amenable to mandamus. Mandamus is the proper remedy to compel the performance of an official duty. At the expiration of a term of office, it is the official duty of the officer to surrender the books of his office. This duty, we think, so far as the. remedy for its enforcement is concerned, does not become less an official duty because it is neglected until the office has expired.”

We hold that mandamus will lie in this case to compel respondent to do the acts commanded in the writ which he should have done during his tenure of office. State v. Cole, 25 Neb. 342.

We are not able to agree with the contention that mandamus does not lie to enforce the payment of money. In People v. Quinn, 143 Ill. App. 123, the court said:

“If in wilful disregard of such duty, and without reasonable excuse, he should fail to pay over money actually in his hands in the ordinary and regular course of business, but retained the same for an unreasonable length of time, mandamus would undoubtedly lie. ’ ’

It was the duty of respondent to have paid to his successor the $2,300 collected by him as treasurer to discharge the indebtedness of the seven bonds here in dispute and not to retain such money to his own use. As he has not performed these acts voluntarily, as he should, mandamus is the appropriate remedy to compel him to do so.

There is no reversible error in the record before us, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Patrick Berrell, Plaintiff in Error.
    Gen. No. 25,245.
    1. ' Contempt, § 70

      —when order adjudging toitness guilty of criminal contempt for perjury is unjustified and indefensible. An order of court adjudging a witness in a suit guilty of perjury, and therefore of criminal contempt, and directing his confinement to the county jail for 30 days, is without justification and is indefensible, there being no indictment nor charge of offense, no form of trial and no evidence in the record showing on what the court based its conclusion that the defendant was guilty.
    2. Constitutional law, § 175*—necessity of according opportunity to be heard to person accused of crime. A person accused of an offense is entitled to be informed of the charge against him, and to be accorded an opportunity to be heard by himself and by counsel in exculpation of the offense charged.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed.
    Opinion filed January 12, 1920.
    Cruioe & Langille, for plaintiff in error; Daniel L. Cruioe, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The People have failed to defend this writ of error. The reason is obvious; it is indefensible from whatever angle it may be viewed.

The entire record of the case is encompassed within the following order :•

“It appearing to the court that the witness Patrick Berrell in the case now on trial entitled Bartley Ken-nett vs. Arthur F. Codozoo No. 317544 has committed wilful and deliberate perjury in the presence of this * court, and has been guilty in consequence thereof of a criminal contempt.

“It is therefore ordered and adjudged that he is guilty in the contempt of court and it is adjudged that he be and he is hereby confined to the county jail of Cook county for a term of thirty days unless discharged sooner by law, and the sheriff is directed to take the prisoner into custody and keep him’ confined in the county jail of Cook county for a period of 30 days.

“The clerk is hereby directed to issue a mittimus embodying the order which will be a sufficient warrant to hold him in custody pursuant to the order of the court.”

Such summary and arbitrary proceeding baffles credence in this twentieth century, supposedly at least an era of freedom under well-settled legal principles. In this case plaintiff in error, without any indictment or charge of offense or any form of trial, was pronounced guilty of the crime of perjury in the presence of the court, and immediately sentenced to imprisonment in the county jail. No opportunity was afforded to meet the court’s charge, nor is the nature or quality of the perjury disclosed. What moved the mind of the court to the conclusion that plaintiff in error was guilty of perjury is not apparent from the record. What occurred,'if anything, to impel the court to adjudge plaintiff in error guilty of contempt is nowhere set forth. The order of commitment contains all the proceedings which the record discloses. So far as appears from the record, no evidence was heard. We are therefore not able, under these circumstances, to find justification for the court’s judgment. People v. Stone, 181 Ill. App. 475. Such summary procedure the law will not tolerate. Every person is entitled before condemnation to be informed in some way of the offense charged against him and be accorded an opportunity to be heard by himself and by counsel in exculpation of the offense charged.

The order of commitment has no support in the record, consequently the judgment of the Superior Court is reversed.

Reversed.


author: Mr. Justice Taylor

text:
    Peter C. McArdle, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 24,387.
    1. Crvn. service—what judgment of commission not reviewable on appeal. Where an applicant for the position of Cement Tester passed the Civil Service examinations and was employed as such officer, and subsequently his salary was increased without additional examination, and the pay rolls showing the officer’s salary as “Cement Tester” were approved and certified, it was obvious that the Commission did not think that the increase in salary evidenced any change in duties requiring an additional examination, and it was the judgment of such Commission that the officer still held the position of Cement Tester, which judgment could not he reviewed on appeal.
    2. Civil service—what is effect of additional work, required of “dement Tester.” Where a person appointed as “Cement Tester” with the duties of testing cement, brick, sand and other building material was later required to test oils, brass, cast iron, paints, varnishes and other materials used in construction, the change was only a change in quantity, and there being no change in the quality of his duties, he remained as the officer designated as “Cement Tester.” '

    3. Civil service—when demotion of “Cement Tester” does not conform to law. Where a “Cement Tester” appointed by the Civil Service Commission was notified that another person had been appointed Chief Tester of the Testing Division, and that he should resume his duties as Cement Tester, the demotion was ineffective and not in conformity with the requirements of the Civil Service Law, and although such demotion was reported to the Civil Service Commission and the officer’s salary reduced, he still retained the only legal title that he and his office had ever had, which was that of Cement Tester.
    4. Civil service—when limiting of duties of “Cement Tester" is mere subterfuge. Where the duties of an officer designated as “Cement’ Tester” were far broader than his title indicated, he being the-head of the testing department, and being so recognized by the Civil Service Commission and other officers, the act of limiting his duties to the actual testing of cement, when his department had plenty of work to do and was a large and active laboratory, was a mere subterfuge, and since another person had been appointed Chief Tester, after which the Cement Tester was “laid off,” because of lack of work, it was apparent that the laying off was brought about so that his. position might be held by others.
    5. Civil service—when “Cement Tester” neither legally demoted nor laid off. Where a Cement Tester who was in fact the head of a testing department was transferred to another station, his salary reduced, and subjected to unfounded charges before the Civil Service Commission, and where a subordinate was appointed Chief Tester, when there was no such position, the “Cement Tester” being “laid off” for want of work, the facts tended strongly to show an effort to evade the Civil Service Law, enacted to protect honorable and efficient employees from arbitrary ouster, and the Cement Tester was neither legally demoted nor laid off.
    6. Civil service, § 30

      —when notice to Commission of reinstatement of “Cement Tester” is without effect. Where an officer holding the legal designation of “Cement Tester” was demoted by limiting his duties, another person being appointed Chief Tester, and such officer was later laid off for lack of work, a notification sent to the Civil Service Commission that the officer was reinstated as Cement Tester, was without effect, as the office referred to in the notice did not involve the same duties, salary, and standing that the officer formerly held as Tester. .
    7. Civil service, § 30*—accomplishmentsof reinstatement and recovery of salary in single proceeding. Civil service reinstatement and the recovery of salary may be accomplished in one proceeding.

      Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded with directions with finding of fact.
    Opinion filed January 24, 1920.
    Rehearing denied February 14, 1920.
    E. J. McArdle and John A. Watson, for plaintiff in error.
    Samuel A. Ettelson, for defendants in error; George Kandlik, Henry T. Chace, Jr. and Hervey C. Foster, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

An original petition for a writ of mandamus was filed by the petitioner on May 11, 1908, to compel the respondent, the City of Chicago and certain officers thereof, to restore the petitioner to all the honors, duties and responsibilities of Cement Tester as they existed March 12, 1908, and the salary of $250 per month thereto attached. Demurrers were filed bv the respondents. They were sustained and the petition dismissed. An appeal was taken to this court and the order, sustaining the demurrers and dismissing the petition, was reversed' and the cause remanded with directions. (McArdle v. City of Chicago, 172 Ill. App. 142.)

On April 27, 1916, a new petition—containing a few additional allegations—was filed by the petitioner and after "answer and issue joined there was a trial without a jury and judgment entered in favor of the defendant. That judgment now comes before us for review on a. writ of error.

The record shows the following: As a result of a requisition by the Commissioner of Public Works of the City of Chicago upon the Civil Service Commission for the name of a person eligible for appointment to the position of Cement Tester from a classified list of the Commission, the petitioner and certain others, on April 7, 1898, took a Civil Service examination for the position of Cement Tester at a salary of $125 per month. The petitioner received the highest marks and on June 1, 1898, was duly classified as Cement Tester, Public Works, Class A, Division 1, Grade 5, and certified by the Civil Service Commission to fill the position of Cement Tester held by one Kelly, a temporary appointee, and, thereupon, assumed the duties of that position at the laboratory in the Chicago avenue pump-' ing station, testing cement, brick, sand and other building materials. When he began he had one assistant named Bailey. From time to time, as the testing work increased, other assistants were given him until there were altogether seven, subject to his orders and supervision. The testing involved a great variety of building and construction materials, besides cement.

The plaintiff held that position at a salary of $125 per month for a period of about 7 years, or until 1905, when the acting city engineer requested him to take charge of the testing of other materials and told him the laboratory would be called “The division of Testing and Inspection” and that in increasing the duties of the office the plaintiff would get an increase in salary. In accordance with that conversation on December 15, 1905, one Shaw, Engineer in Charge, wrote to J. M. Patterson, Commissioner of Public Works, as follows:

“I deem it advisable and practicable to enlarge the work now covered by P. C. McArdle, Cement Tester, Bureau of Engineering, to the extent of adding to his duties which he is now performing the testing of ■ all oils used for pumping machinery, the testing of brass and cast iron castings used in the water works shops, the testing of brick, sand, paints, varnishes and all other materials that are used in construction, and ultimately instead of hiring inspecting engineers to send to various shops where machinery is under construction, to send men directly from this Bureau.

“I am fully satisfied that Mr. McArdle is fully capable and has the knowledge to take hold of this class of work, and to make a success of it, and his honesty and integrity are highly recommended. If you approve of this plan it will add to Mr. McArdle s duties and responsibilities, and I recommend that his salary be made $250.00 per month and arrangement be made at once to carry out the above suggestions.”

On December 18, 1905, the Department of Public Works reported in writing to the Civil Service Commission that the salary of the petitioner as Cement Tester had been increased from $125 to $250 per month. On December 18, 1905, the Civil Service Commission received that report and entered it in their records. That was done pursuant to Rule II of Section V of the Civil Service Commission, which is as follows:

“See. 5. Change of Compensation: Increasing the compensation of any position in the classified service, whereby the grade of such position as established by the classification is changed, whether done by ordinance or otherwise, shall not affect the tenure of the incumbent of such office or place of employment, unless in the opinion of the Commission such changes shall involve a change in duties requiring a different examination. ”

And pursuant to Rule IX: All the appropriations for the salaries of the petitioner and his assistants prior to December, 1905, were paid from a fund styled “Engineering and Inspection,” and after that time the appropriations were charged to the “Testing Division Bureau of Engineering Department of Public Works.” In the latter part of 1905 the name of the laboratory or engineering bureau was changed to ‘ Testing Division ’ ’ Bureau of Engineering. The petitioner was known and desciibed by the officials of that department by various titles such as ‘ Chief Tester in Charge,” “Chief Tester,” “Chief of Testing Division, ” “ Engineer in Charge of Tests ’ ’ and ‘ Chief Testing Engineer,” although his civil service classified official title still remained that of “Cement Tester.” In all the appropriations made by the City Council for the petitioner’s salary for the years 1906, 1907 and 1908 he was given the title of “One Chief Tester in Charge” at' a salary of $3,000 per annum, and was during that time the chief tester and in charge of the testing division, and was so recognized by the City Engineer, the City Comptroller and the City Treasurer and the Civil Service Commission.

In February, 1908, the question of reducing his salary to $125 per month was brought up before the Finance Committee of the City Council and the reduction recommended. Just prior to that, on February 7, 3 908,-one Erickson, City Engineer, sent for the petitioner and told him that Bedesky, Deputy Commissioner of Public Works, had requested the petitioner’s resignation and stated further, that if not acceded to, charges would be presented against him. The petitioner in that conversation told Erickson that he knew of no reason why he should resign and that he would not resign. The petitioner testified that at that conversation Erickson told him that he did not know of any charges that could be brought against him; that his work had always been satisfactory. On the trial in the present cause, Erickson testified, that he attended to the efficiency reports on the petitioner and that they were very good, and it is conceded by counsel for the city that the petitioner was efficient. It is the evidence of Watson, associate counsel for the petitioner, that in September, 1909, in conversation with Hanberg, Commissioner of Public Works, the latter told him that he had no criticism to make concerning the petitioner as to his fitness to perform the duties of his office. Also, the witness Finn, who was a member of the City Council from 1900 to 1910 and a member of the Finance Committee, stated that when the appropriation bill of 1908, containing an item of “One Chief Tester in Charge, $3,000.00” came up for discussion, ho asked Erickson if the testing division did satisfactory work; that Eriekson stated it did and that there was no complaint as far as he knew; that the item of $3,000, however, by a majority vote was changed upon the request of Hanberg; that he made the fight on the ground that the petitioner was a worthy and efficient employee and it would be a poor recompense for good service if for any reason, political or otherwise, such a man were let go.

Judge Dever testified that in 1908, when he was a member of the City Council, a heated contest concerning the reduction of the petitioner’s salary and an effort to demote him, took place; that it was stated on the floor of the council that his salary was reduced because of his efforts to compel certain persons who had contracts with the city to comply with the conditions and terms of their contracts.

On March 12, 1908, the petitioner was notified in writing by Erickson, the City Engineer, that one Parkes had been appointed to the position of “Chief Tester in Charge of the Testing Division” and that the petitioner should resume his “former duties as cement tester of the testing of cement at the Chicago Avenue pumping station. ’ ’

It is admitted by counsel for the City that Parkes, appointed by the City Engineer as “Chief Tester,” took the petitioner’s place and “performed the duties and work previously discharged by” him. Parkes took possession of his desk, etc., in the City Hall, where the testing division was located, and the petitioner, thus demoted, was sent to the Chicago avenue pumping station, and was thereafter, though working under protest, under the supervision and direction of Parkes. Parkes was then called ‘ ‘ Chief Tester. ’ ’ On March 13, 1908, the Commissioner of Public Works made a report in writing to the Civil Service Commission that the plaintiff’s salary was reduced from $3,000 to $1,500 per annum. From March 12,1908, to September 9,1909, he was paid $125 per month instead of his full salary of $250 per month. Having reported to the Chicago avenue pumping station pursuant to the letter of March 12, 1908, he worked there, but under protest, until finally laid off September 9, 1909. On March 16, 1908, the petitioner wrote to Erickson, the City Engineer, in answer to the letter of the latter of March 12, 1908, that he was unable to understand how he could assume his former duties as Cement Tester, when, as a matter of fact, he had neVer given them up; that from June, 1898, to February 1908, his office had but one title, viz., Cement Tester, and that his compensation was provided for and recognized by the city officials and the Civil Service Commission in the appropriation under the head of “Chief Tester in Charge.” That letter contained also the following:

“I wish to repeat respectively that I stand ready to perform the duties of the office to which I have given almost ten of the best years of my life, and to give to them the fullest and most conscientious efforts; claiming,- as I respectfully do, at your hands and through you, as my superior, at the hands of all other City Officers, the right not alone to the emoluments appropriated, as you know, for me by the City Council, but also the honor, duty and responsibility of conducting the tests of all materials heretofore submitted to my division for test and reports.”

On March 24, 1908, he received notice from Parkes that he was suspended pending charges preferred before the Civil Service Commission. The hearing was held before the Commission and it was decided that-the charges were not sustained, and the petitioner was, accordingly, completely exonerated.

Finally, on September 7, 1909, .the petitioner Was notified that on account of lack of work he was “laid off” or discharged. There was no one with the title of Cement Tester after February, 1909. Parkes testified that he discharged the petitioner as a result of a communication from the City Engineer to dispense with the services of all employees that were not necessary to carry on all the work. Parkes served as head of that division until January, 1913.

Some years later, on February 4,1914, the petitioner received notice that he had been reinstated to his “former position of Cement Tester” and to report to one George A. Schilling, President of the Board of Local Improvements. That position he rejected for the reason, and it is not denied, that it was not in the Testing Laboratory Bureau of Engineering, nor in the Department of Public Works; that it was not in the same grade; that it did not include the same duties nor did it carry the same salary as his former position.

At the close of the evidence the petitioner presented thirty-four propositions of law of which seven were allowed and the rest rejected. The cause was tried without a jury and on January 4, 1908, a judgment was entered in favor of the respondent and against the petitioner.

In determining the matters involved, it is necessary to consider, (1) the title to his office; (2) his duties; (3) his demotion; (4) his being “laid off”; (5) his salary.

As to his title of Cement Tester: Considering the principles announced in McArdle v. City of Chicago, supra, we are of the opinion that the petitioner after taking his Civil Service examinations for Cement Tester and receiving the highest marks and being employed by the City of Chicago on June 1, 1898, became an officer of the City of Chicago, and that his office was properly designated as “Cement Tester.” He was classified by the Civil Service Commission, “Department of Public Works, Class A, Division 1, Grade 5.” The evidence shows that when in December, 1905, the salary of the petitioner was increased from $125 to $250 per month,' a report of that change, pursuant to the requirements of the Civil Service Law, was made to and duly approved by the Civil Service Commission ; and that thereafter not only did the Commission pot require an additional examination but from December 5, 1905, until March, 1908, both approved and certified the regular pay rolls, each of which showed an item of $250 per month to be paid to the petitioner under the specific title of “Cement Tester.” Obviously it was the judgment of tlie Civil Service Commission that the increase in salary did not evidence such change in the duties involved as would require an additional examination and that the petitioner still held the office of Cement Tester. That judgment of the Commission we are not entitled to review. City of Chicago v. People, 114 Ill. App. 154. As said by Mr. Justice Graves in McArdle v. City of Chicago, supra: “That being the finding of the Civil Service Commission, it follows that the tenure of office of petitioner as Cement Tester’ was not affected by the increase in his salary, and that when he was ousted in March, 1908, he was still holding and filling that position. ’ ’

As to his duties: When the petitioner was certified and appointed as Cement Tester, he went to work in the laboratory at the Chicago avenue pumping station. His duties then were “testing Cement, brick, sand and other building material.”

The petition recites that, at that time, in the laboratory, “cement, sands, bricks and other building material furnished by contractors on municipal work were subjected to test to ascertain if they conformed to the terms of contracts and specifications under which they were furnished.” Those allegations are not denied. Erickson, the City Engineer, testified that Kelly, who was a temporary appointee and whose place the petitioner took, originally made reports to him as the chief of that division, and, evidently, the petitioner, in succeeding him, undertook that work—making tests —and, as chief of that division, reported to the City Engineer. It is the testimony of the petitioner himself, and it is not contradicted, that his work, when he first took the position, was that of testing “cement, brick, sand and other building materials,” and, further, that whenever any further help was required in the laboratory or in the testing division, as it was afterwards called, men were assigned to the petitioner by the City Engineer, and that from March, 1908, there were from six to eight employees working under his direction.

In December, 1905, his work and the work of his department through the action of the City Engineer and the Commissioner of Public Works was enlarged so as to include the testing of oils, brass, cast iron, brick, sand, paints, varnishes and other materials used in construction; that, however, was only a change in quantity; as the court said in McArdle v. City of Chicago, supra, in considering the same matter: “The added duties were therefore in volume and not in kind of work.” The evidence shows that from the time the petitioner was originally classified and certified to his position no change had taken place in the quality of his duties nor in the name of his office. We are of the opinion, therefore, that in March, 1908, the petitioner still held the office of Cement Tester and was, entitled to the salary of $250 per month.

As to his demotion: When on March 12, 1908, the petitioner was notified by Erickson, the City Engineer, that Parkes had been appointed to the position of “Chief Tester in Charge of the Testing Division” and that the petitioner should resume his “former duties as Cement Tester of the testing of cement at the Chicago avenue pumping station,” that could not have any legal effect in demoting the petitioner from the position that he had held so many years because it was not in conformity with the requirements of the Civil Service Law; and although the attempted demotion was reported to the Civil Service Commission and from March 12, 1908, until September, 1909, the petitioner’s salary was reduced to $125 per month, it must be observed that the petitioner, although he continued to work, did so under protest, and as said by the court in McArdle v. City of Chicago, supra, “when he was ousted in March, 1908, he was still holding and filling that position,” that of “Cement Tester.” Parkes was put in his place, and he was sent back to the Chicago avenue pumping station still retaining, however, in the eyes of the law, the only legal title he and his office had ever had, that of Cement Tester. Of course, the attempted demotion failed.

As to his being “laid off”: The chief contention of counsel for the respondent is that petitioner was “laid off” because there was not sufficient work to do. The trial judge evidently being of the opinion that all the work, the petitioner was officially engaged to do, was encompassed in the mere testing of cement, refused nearly all the evidence that was offered to show that at the time of the petitioner’s removal there was plenty of testing work to he done, that is, of the same character as that which the petitioner had been doing as Cement Tester for many years. It is not claimed by the respondent that there was not plenty of work in the laboratory; such work as had regularly been done by the petitioner before he was demoted. If the petitioner had been merely a Cement Tester and all his work consisted of simply testing cement and that only, the evidence of Erickson, Marsh and Roach would be sufficient to show that it was proper to lay him off. But we are of the opinion that the duties of the petitioner as Cement Tester were far broader than that. He was the head of the testing department and for many years had been recognized by the Civil Service Commission, the City Engineer, the Comptroller and the City Treasurer, as the Chief Tester. To allow the City Engineer and.the Commissioner of Public Works arbitrarily to limit bis duties merely to the actual testing of cement and to consider his office as described by a narrow technical interpretation of the words* “Cement Tester” would be to sanction an obvious subterfuge. .The evidence shows that the department, in which he had' worked so long, still had plenty of work such as he had been accustomed to do and was still a large and active laboratory. Obviously, Parkes had, in some measure, supplanted him and was doing some of his work, and the demotion and laying off of the petitioner were brought about, not by the abolition of the office, not by reason of lack of work, but in order that his place might be used for others. People ex rel. Jacobs v. Coffin, 282 Ill. 599; City of Chicago v. McNally, 117 Ill. App. 434. The notification to the petitioner of his transfer to the Chicago avenue pumping station, the reduction of his salary, the institution of unfounded charges against him before the Civil Service Commission, placing Parkes in the position of chief tester when there was no such position, either de jure or de facto, and then notifying him through Parkes—legally one of his subordinates—that owing to lack of work he was discharged or laid off, tends very strongly to prove a premeditated effort to circumvent and evade the Civil Service Law. One of the chief purposes of the Civil Service Law is to protect honorable and efficient employees from arbitrary ouster. The method of dismissal is as important as that of selection and appointment. If it may be determined by the mere necessities of political power, then the virtues of Civil Service are easily and ignominiously destroyed. We are of the opinion that the petitioner was neither legally demoted nor laid off.

The notification some years later in February, 1914, sent to the secretary of the Civil Service Commission, that he had been reinstated to his “former position of Cement Tester” and that he should report to the President of the Board of Local Improvements, is entirely negligible. The office referred to in the notice was certainly not the former position of the petitioner nor did it involve the same duties, salary and department standing as that which he formerly held as Cement Tester. Of course, to request him to accept a position entirely different from that which he had formerly occupied and then, upon his failure to accept, charge him with a refusal to go back to his regular work, is illogical and of no legal import, whatever.

As to his salary: It is now the law that civil service reinstatement and the recovery of salary may be accomplished in one proceeding. In People ex rel. Blachly v. Coffin, 279 Ill. 401, Mr. Justice Dunn said: “No obstacle exists to the granting of complete relief' in one proceeding. The right of the defendant in error to his salary is as clear as his title to the office. ’ ’

The judgment is reversed and remanded with directions that a peremptory writ of mandamus be issued to restore the petitioner to the office or position from which he has been illegally removed and for the further relief as to salary, as prayed for.

Reversed and remanded ivith directions with finding of fact.

Finding of fact: We find as facts that in June, 1898, the plaintiff, pursuant to the Civil Service Law, became Cement Tester for the City of Chicago at a salary of $125 per month, which was subsequently raised to $250 per month; that the office still exists and at ho time since June, 1898, has there been a lack of work in that office; that no one but the plaintiff has ever been certified or appointed to the office of Cement Tester; that of his salary of $250 per month from March 12, 1908 to September 6, 1909, the plaintiff received $125 per month, and of the salary of $250 per month from September 6,1909, to date he has received nothing; that all the material allegations of the amended petition, filed pursuant to the order of April 17, 1916, and the amendments thereto are true.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Clink, Plaintiff in Error.
    Gen. No. 25,379.
    1. Assault and battery, § 24

      —when automobile is deadly weapon. A deadly weapon within the meaning of the Statute on Assault (chapter 38, sec. 25, J. & A. f 3507) is any instrument so used as to be likely to produce death or great bodily harm, and an automobile may be such a deadly weapon within the meaning of the statute, when so used.
    2. Assault and battery, § 24*—automobile as instrument of assault with deadly weapon. An automobile may be so used as to show intent to inflict bodily harm or death, and intention may be implied from highly dangerous and reckless conduct resulting in injury, wherefore an automobile may be an instrument of an assault with a deadly weapon, and the reckless driver may be subjected to the penalties of the criminal law (Criminal Code, ch. 38, sec. 25, J. & A. If 3507),
    3. Assault and battery, § 24*—when driver of automobile is guilty of assault with deadly weapon. Evidence held to show beyond a reasonable doubt that a person delivering newspapers in a horse-drawn wagon was injured by the act of defendant in driving an automobile while partially intoxicated, on a clear night, without lights or signaling of horn, and that the defendant ran his car rapidly on the street, without any diligence or care for other vehicles, being wholly reckless and indifferent to the consequences of any one else in his way, and since the natural and probable consequence of such conduct would be the infliction of injury and perhaps death, the defendant must have intended to inflict the injuries to the person involved, and he was guilty of assault with a deadly weapon.
    4. Assault and battery, § 38*—when fine of $1,000, imposed on driver of automobile, is not excessive. A fine of $1,000 imposed upon a defendant found guilty of assault with a dangerous weapon, an automobile, is not excessive, when the act of driving the automobile resulted in serious and permanent injuries to a driver of another vehicle.
    Error to the Municipal Court of Chicago; the Hon. Charles Williams, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed January 26, 1920.

      Frank N. Hillis, for plaintiff in error; John F. Higgins, of counsel.
    Maolay Hoyne and Edward E. Wilson, for defendant in error. , i;

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Upon information it was charged that on January 3, 1919, the defendant, Clink, ‘ with a certain instrument commonly called an automobile, said automobile being a dangerous and deadly weapon,” made an assault upon John Herbeck, contrary to the statute, etc. Upon trial by the court he was adjudged guilty and fined $1,000. By this writ of error he' seeks the reversal of the judgment.

It is contended that an automobile is not a deadly weapon within the meaning of the Statute on Assault, sec. 25, ch. 38 (J. & A. ft 3507). It is probably true that very nearly all of the reported cases involving a deadly weapon relate to an instrument that was lifted by the hand in making the assault, most frequently something in the nature of a bludgeon. There is no sound reason why the deadly nature of the instrument should be determined solely with reference to its use while lifted in the hands; any instrument which through human control is the means of inflicting a blow may be a deadly weapon. It is any instrument so used as to be likely to produce death or great bodily harm. (Bouvier’s Law Dictionary; McNary v. People, 32 Ill. App. 58.) In Acers v. United States, 164 U. S. 388, it was held that ‘ ‘ anything, no matter what it is, * * * whether it was made by him for some other purpose, * * * if it is a thing with which death can be easily and readily produced, the law recognizes it as a deadly weapon.” This definition includes an automobile when used in a manner likely to produce death or great bodily harm.

Can one so nse an automobile as to show intent to inflict bodily harm or death? We hold that it can be so used. In the recent case of People v. Adams, 289 Ill. 339, the defendant was indicted for manslaughter with an automobile as the instrument. The opinion, in discussing the trial of the case, assumes the propriety of the charge, saying:

“Negligence, to be criminal, must be gross or wanton negligence. Gross negligence is negligence that borders onto recklessness, and wanton negligence, as applied to the running of motors and vehicles, implies a positive disregard of the rules of diligence and a reckless heedlessness of consequences, according to Babbitt, in his work on motor vehicles, section 1517. * '* * Negligence, to become criminal, must necessarily be reckless or wanton and of such a character as shows an utter disregard of the safety of others under circumstances likely to cause injury. People v. Falkovitch, 280 Ill. 321.”

An excellent statement of the general principles is contained in Aiken v. Holyoke St. R. Co., 184 Mass. 269:

“The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. That this constructive intention to do an injury in such cases will be imputed in the absence of an actual intent to harm a particular person, is recognized as an elementary principle in criminal law.”

In State v. Schutte, 87 N. J. L. 15, the defendant was convicted of an assault and battery, with an automobile as the instrument, and this was affirmed, the court saying there were few, if any, decided cases in which the assault was committed with an automobile, “a comparatively modern appliance, but the principles involved are as old as the criminal law itself”; and

“The running of a car at a high rate of speed is an act in which the will of the driver concurs and hence is clearly a wilful act as distinguished from merely negligent conduct when considered with respect to the state of mind of the offender, which is what the criminal law considers.”

And the opinion concludes:

“There is, therefore, no legal reason why the crime of assault and battery may not be committed by driving an automobile on a public highway at a rate of speed that endangers the safety of other persons and actually results in such an injury.”

Intention may be implied from, highly dangerous and reckless conduct resulting in injury. (Dunaway v. People, 110 Ill. 333; Perry v. People, 14 Ill. 496.) Intent gathered from the natural consequence of reckless driving of an automobile is supported by cases cited in Babbitt on Motor Vehicles (1911 Ed.), sec. 845, and in Huddy on Automobiles(5th Ed.), see. 757. Consideration of the above cases and of the fundamental principles thereof leads clearly to the conclusion that an automobile may be an instrument of án assault with a deadly weapon, and the reckless driver subjected to the penalties of the criminal law.

The trial court was.justified in finding the facts to be that in the early morning, about 4 o’clock of January 3,1919, John Herbeck was delivering newspapers in a horse-drawn wagon in the City of Chicago. It was clear; an ordinary object could be observed nearly two blocks away. The wagon had a step at the rear on which the driver stood. It was standing near 24th street, on the southbound street car track, when Her-beck, having delivered some papers near by, got on the rear end, standing on the step, and started southward. He had gotten but a little way when he was struck by an automobile coming from the north. This automobile was driven by the defendant, Clink. The results to Herbeck were injuries to the head, right leg broken in two places and the left leg so shattered as to necessitate amputation. The front of the automobile was damaged and the windshield broken. There were no lights on Clink’s automobile and no horn was sounded as it approached. Clink testified that he was running from 15 to 18 miles an hour. There was convincing evidence that he was somewhat intoxicated. After the collision Herbeck called to Clinic to take him to a hospital, which he finally did, although showing no readiness to help Herbeck. An officer who heard the crash came to the scene, and together they drove to the hospital. Clink was so under the influence of liquor that he could not help the officer take Herbeck into the hospital. In the hospital Clink began to quarrel with Herbeck, but was stopped by the officer. Later the officer told Clink to wait for him and he would take him to the police station; while the officer was hitching Herbeck’s horse Clink drove away. He was traced and arrested about 3 weeks afterwards.

Defendant’s story is that as he was going south he saw Herbeck lying in the street and that attempting to avoid him he turned out of the roadway and collided with a trolley pole at the curb line. He also denied being intoxicated. We are of the opinion, however, that the evidence shows beyond a reasonable doubt that the injury was inflicted as described by plaintiff’s witnesses; that while partially intoxicated, on a clear night, without lights or signaling with the horn, defendant ran his car on the street rapidly, without any diligence or care for other vehicles and wholly reckless and indifferent to the consequences of any one else being upon tbe street in- his way. The natural and probable consequence of such conduct would be the infliction of injury and perhaps death to any one in front of him, and under the circumstances he must be held to have intended to inflict the injuries which Herbeck suffered.

The amount of the fine is not excessive. The injuries to Herbeck were serious and permanent, and the reckless act of the defendant should not be treated lightly. The finding and sentence of the court are in accord with the law and the evidence and the judgment will be affirmed.

Affirmed.


text:
    American Pine Apple Products Company, Appellee, v. Chicago Job Press Company, Appellant.
    Gen. No. 25,419.
    1. Liens, § 2

      —when printing company cannot claim lien on customer’s electrotype cuts. Where a printing company receipted for certain electrotype cuts belonging to a customer, and expressly agreed to return such cuts after a number of labels were printed, it could not claim a lien upon the cuts for the amount of its services in printing the labels, when such lien was asserted to arise by implication from a custom of the trade, as a contract by implication could not prevail against the express contract.
    2. Liens, § 2*—when evidence does not establish custom giving printer right to lien on customer’s cuts. A lien arising from custom must include the circumstance that it is asserted and enjoyed by one party without objection from the other, and when witnesses for a printer testified of a custom whereby printers asserted the right to hold cuts of a customer used in printing until such printing was paid for, the evidence fell short of the required proof as to a custom, merely tending to show the existence of a custom of printeis to make certain claims.

      3. Liens, § 2

      —when printer cannot claim lien on customer’s cuts. The right to retain goods upon which labor has been expended until the bill therefor has been paid does not apply where cuts used in printing are intrusted to a printer for the printing of labels, and where such labels are delivered to the customer, and the cuts retained, there being no labor done upon the cuts themselves.
    4. Liens, § 2*—what evidence necessary to establish general lien for balance of accounts. A general lien for a balance of accounts is founded on custom and is not favored, but must be established by strong evidence of a settled and uniform custom, or a particular mode of dealing between the parties.
    Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed January 26, 1920.
    Rehearing denied February 9, 1920.
    Charles F. McElroy, for appellant.
    William R. Wiley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same fc»$ic and section number.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by the defendant from a judgment against it in a replevin suit.

Defendant is in the printing business and in November, 1918, plaintiff contracted with it for the printing of some labels or wrappers at an agreed price. These labels were to be printed from electrotype cuts which belonged to 'the plaintiff and were delivered for this purpose to the defendant who gave a written receipt as follows:

“November 18th, 1918.

‘ ‘ Received from the American Pine Apple Products Co. One hundred and sixty-eight electrotypes for a four color label, in good condition, these cuts to remain the property at all times of the above American Pine Apple Products Co. And to be returne'd to them in good condition after the use of same for the labels to be printed and at the time of the delivery of the 100,000 labels contracted for at $60.00 as a maximum price, and same to be delivered to the above company within 10 days from this date.

Chicago Job Press

By T. B.”

After the printing was done and the labels delivered some dispute arose as to the condition of some of the labels and plaintiff refused to pay the bill; although repeatedly demanded, defendant refused to return the cuts until the bill was paid. These cuts were replevined by the plaintiff and judgment entered in its favor.

Counsel for the defendant has presented an elaborate brief, citing a very large number of cases, seeking to support the claim that defendant was entitled to a lien upon the cuts for the amount of its bill for printing the labels. This lien is asserted to arise by contract implied from the custom of the trade. Such a lien has been favored in some cases, although we find nothing in this State directly in point.

Two considerations, however, give a complete answer to defendant’s contention: (1) a contract by implication, if any, cannot prevail against the express contract in this case. Reference to the above receipt shows that the defendant agreed to return the cuts after the labels had been printed; (2) a lien arising from custom must include the circumstance that it is asserted and enjoyed by one party without objection from the other. The witnesses for the defendant herein testified only that there was a custom in the printing trade “whereby the printer asserted the right to hold and made a practice of holding cuts of his customer which had been used in a job of printing until said printing should be paid for.” This fell short of the required proof as to a custom, and particularly in the omission of anything showing that the claim of the printers was acquiesced in by the customer without objection. The testimony at most tended to prove the existence of a custom of the printers to make certain claims. This is far from proving an implied contract between the parties.

While the right to retain goods upon which labor has been expended until the bill therefor has been paid has been sustained in some cases, this rule has no application here. The labels and wrappers which were produced by the labor of the defendant were delivered to the plaintiff. No labor or work was done upon the cuts themselves.

“A general lien for a balance of accounts is founded on custom, and it is not favored; and it requires strong evidence of a settled and uniform usage, or of a particular mode of dealing between the parties to establish it. General liens are looked at with jealousy, because they encroach upon the common law, and destroy the equal distribution, of the debtor’s estate among his creditors. ” (2 Kent’s Comm. 636.)

For the reasons above indicated, plaintiff was entitled to possession of its property and the judgment was proper and is affirmed.

Affirmed.