author: Mr. Justice Sullivan

text:
    People of the State of Illinois ex rel. Paul Kornfeind, Appellee, v. Park Employees’ Annuity and Benefit Fund et al., Appellants.
    Gen. No. 41,471.
    Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed March 24, 1942.
    Rehearing denied April 11, 1942.
    John O. Rees, of Chicago, for appellants; Martin G. Loeff, of Chicago, of counsel.
    Richard F. McPartlin, Jr., of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action in certiorari was brought by plaintiff, Paul Kornfeind, against the defendants, the Park Employees’ Annuity and Benefit Fund (hereinafter for convenience sometimes referred to as the Pension Fund) and the trustees thereof, to quash the record of the proceedings of said Pension Fund which included a denial by said trustees of plaintiff’s application for an allowance of duty disability benefits, said record having been filed pursuant to a writ of certiorari ordered to issue by the trial court. The judgment entered herein ordered “that the record of the proceedings of the Park Employees’ Annuity and Benefit Fund be and it is hereby quashed and that the Park Employees’ Annuity and Benefit Fund be and it is hereby ordered to pay to Paul Kornfeind, plaintiff herein, all money due him under Section 27 of ‘An Act Relating to the Park Employees’ Annuity and Benefit Fund,’ less any deductions due from him under the provisions of the foregoing Act.” Defendants appeal from said judgment.

The petition for certiorari alleged substantially that plaintiff was employed by the Chicago Park District as a building and construction laborer; that on January 12,1937, while performing his duties in and about the swimming pool in Washington Park, he was injured; that because of his injuries he was unable to perform his duties from January 12, 1937 to September 15, 1937; that during that period of disability the Chicago Park District paid plaintiff $15 a week as provided by the Workmen’s Compensation Act; that under the terms of the Pension Fund Act plaintiff became a member of said fund; that it was the duty of his employer Chicago Park District to deduct the necessary contributions toward said fund from his salary as a member of the classified service; that on January 12, 1939 he made application for duty disability benefits; that the Pension Fund, at a meeting of its board of trustees held February 12, 1939, denied him the benefits of said act; and that the decision of such board of trustees is contrary to law.

The petition concluded with the prayer that a writ of bertiorari issue to “bring the record of said proceedings of the Retirement Board of the Park Employees’ Annuity and Benefit Fund . . . together with all its findings and decisions of said Board of Trustees” before the court and that “said finding, decision and order may be reversed and set aside and wholly for naught esteemed.”

Defendants’ return to the petition shows the receipt of a letter by them on January 13,1939 from plaintiff’s attorney in which he stated that he represented plaintiff, that plaintiff was injured on January 12, 1937 while he was working as an employee of the Chicago Park District, that by reason of said injury he was disabled so that he was unable to perform his duties, and that the Chicago Park District paid him the benefits due him under the Workmen’s Compensation Act. The letter concluded with a demand that plaintiff be paid the amount due him as disability benefits under the provisions of the Pension Act.

The return then shows a communication under date of January 16, 1939 from the managing actuary of the Pension Fund, addressed to the Chicago Park District, referring to the request of plaintiff and stating that the Pension Fund had no record of service by Kornfeind as an employee of said Park District prior to April 1, 1937, and requesting information concerning him; and a letter from the Chicago Park District to the Pension Fund stating that plaintiff was employed in the service of the Chicago Park District as a building and construction laborer from October 1, 1936 to April 1, 1937. The return further shows the application of Kornfeind to the Pension Fund for duty disability benefits, which was received January 27, 1939; the action of the Pension Board denying the demand of plaintiff for disability benefits because of the fact that he was not a participant in the Pension Fund nor a contributor thereto on the date of his injury, he having been previously excluded from participation in said fund because of the temporary character of his employment on W.P.A,. projects; and that by reason of that fact he was not eligible for the benefits provided by the Pension Fund because of his injury.

Defendants’ theory as stated in their brief is that “the Annuity and Benefit Fund is a separate quasi corporation, created by statutory authority, having no connection with the Chicago Park District; that before a person can become a member of the Fund and be entitled to its benefits, two things must occur; the deductions specified in the statute must be made from the employee’s salary for certain benefits, and the Chicago Park District must levy a tax and contribute to the funds on the basis of their proper allotment; that despite the fact that it is not necessary for the employee to make any contribution in order to be entitled to duty disability, it is incumbent upon the Chicago Park District to make such contribution and upon the employee to see that such contribution is made; that until such contributions and deductions are made, the employee is not a member of the Fund and cannot be entitled to the benefits thereof; that membership in the Fund is not divisible; that a person cannot be a member or have any rights in or to one of the Funds specified in the Act and still not be a contributor or member of the other Funds specified in the Act; that in order that plaintiff be entitled to the benefits of the Act, it is necessary that all proper deductions provided by statute be made from his salary and that the Chicago Park District make all necessary contributions; that such deductions and contributions not having taken place in the matter of the plaintiff, he is not entitled to duty disability benefits.”

Plaintiff’s position is that his employment by the Chicago Park District on and prior to January 12, 1937, the date of his injury, automatically made him a member of the Pension Fund; that he thereby became entitled to disability benefits as provided by the act establishing said fund; and that “he should not be deprived of disability benefits under the act because of the failure of the Chicago Park District to make employees disability deductions from plaintiff’s salary and to pay the amount of the deduction together with its employer’s contribution to the fund as required by the act.”

Plaintiff was a laborer under temporary employment by the Chicago Park District and as such was automatically covered by the Park Employees’ Annuity and Benefit Fund Act (Ill. Rev. Stat. 1939, ch. 105, pars. 401 et seq. [Jones Ill. Stats. Ann. 100.612 et seq.]), which by its terms was compulsory. Section 31 (par. 433) of said act [Jones Ill. Stats. Ann. 100.644] provides in part as follows:

“Any person classed as an employee, as defined in .this Act, or any person who shall hereafter become classed as an employee as defined in this Act, shall by such employment accept the provisions of this Act and thereupon become a contributor under said Act in accordance with the terms thereof, and the provisions of this Act shall become a condition of the employment of such person and part of any contract of employment entered into by and with any such person.”

It was. clearly contemplated by the legislature that no person could be an employee of the Chicago Park District without at the same time being a member of the Pension Fund and the statute imposed the duty upon the Chicago Park District of compelling its employees’ membership in said fund by the right given to it to deduct such employees’ contributions from their salaries. Plaintiff had been appointed October 1,1936, to the position held by him January 12, 1937, the date of his injury. He was carried on the payrolls as a laborer assigned to W.P.A. projects. Defendants make this statement in their brief: ‘1 The Civil Service and Personnel Department of the Chicago Park District erroneously interpreted the provisions of the Park Employees’ Annuity and Benefit Fund Act as not applicable to temporary employees on W.P.A. projects. It is frankly admitted that they were in error in so doing. For that reason, no deductions were made* by the Park District from the salary of the employee for Annuity and Benefit Fund purposes or for the employee’s contributions to the Annuity and Benefit Fund. ’ ’ The Park District not only did not deduct the amount of plaintiff’s contributions from his salary and transmit same to the Pension Fund but it made no contributions itself to said fund on plaintiff’s account as it was required to do under the statute. Neither did it report to the trustees of the Pension Fund the name of plaintiff as one of its employees prior to January 12, 1937. As heretofore stated it was on that date that he was injured in the performance of his duties and the fact and the period of his disability arq not in question.

Defendants assert that “the employee at no time made any request that his contribution to the Pension Fund be deducted from his salary or that he be made a member of the Fund. ’ ’ It must be remembered that plaintiff was a laborer and whether or not he was familiar with the interpretation given the Pension Fund Act by the officials of the Chicago Park District, whereby they decided that the provisions of said act were not applicable to him, it is not reasonable to suppose that such officials would have acceded prior to plaintiff’s injury on January 12, 1937 to any request or demand made by him for a change in their interpretation of the Pension Act in so far as it pertained to him. The rule is firmly established that to preserve one’s rights no request or demand is necessary where under the circumstances same would be useless or unavailing.

On or about April 1,1937, the Civil Service Board of the Chicago Park District changed its interpretation of the Pension Fund Act in order to comply with its plain provisions. The Park District then commenced making deductions from salaries of laborers assigned to W.P.A. projects and made the necessary contributions to the Pension Fund in their behalf, as required by the statute, as it admits it should have done on plaintiff’s account from the date of his employment, October 1, 1936.

Since the Chicago Park District and the Pension Fund are separate legal entities it is obvious that the admitted negligence and violation of the Pension Fund Act by the former cannot be chargeable or attributed to the latter and said act imposed no duty upon the trustees of the Pension Fund to examine the records of the Park District to ascertain who its employees were. It was their duty, however, to compel the Park District to comply with the provisions of the act as to those employees reported to the Pension Fund and plaintiff was eventually reported to said fund as an employee of the Chicago Park District.

As heretofore stated plaintiff automatically became a member of the Pension Fund and entitled to all of its benefits by reason of his employment and on the date of his employment. (Even though the Pension Fund and its trustees were entirely guiltless of any wrongful conduct toward plaintiff prior to and on the date of his injury can he be deprived of rights given him under the statute merely because the Park District failed to perform its duties and functions under the Pension Act? We think not. This proceeding was instituted to establish plaintiff’s right to receive the benefits that the Pension Act contemplated he should receive. This enactment was intended for plaintiff’s benefit and welfare. It cannot be said that he failed to perform any condition imposed upon him by the statute. His right to the disability benefits claimed having been established by the fact of his employment, his further right to the relief sought in this case is not dependent upon his showing that the defendants were negligent but rather upon the refusal of the trustees of the Pension Fund to grant his application for disability benefits after they had been advised that he was ail employee of the Chicago Park District on the date of his injury and therefore entitled to receive said benefits.

Section 5 (par. 405) of the Pension Fund Act [Jones Ill. Stats. Ann. 100.616] provides in part as follows:

“The retirement board shall keep such books and records as are necessary for the transaction of its business. It shall see that all deductions from salary and that contributions to be made by each employer under the provision of this Act are being made, and that all funds thus collected are being deposited when collected with the custodian of the fund. It shall see that all the other duties of each employer are being performed, and in the event that an employer fails to perform any duties imposed on said employer under the provisions of this Act, it shall be the duty of the retirement board to take such steps as in its judgment seems advisable to enforce compliance on the part of such employer ioith the provisions of this Act.” (Italics ours.)

Although plaintiff was not reported to the Pension Fund as an employee until January 21, 1939, it seems clear under the foregoing provisions of the statute that, even though such report was rather' belated, the Chicago Park District may be compelled by said Pension Fund to make the contributions to it in plaintiff’s behalf that it should have made during the period of his employment. This being so, defendants’ contention that to grant plaintiff the relief sought would penalize the Pension Fund and its members is without merit. The judgment entered in this cause orders that plaintiff be paid the disability benefits claimed less the amount of the deductions that should have been made from his salary during the period of his employment as his contribution to the Pension Fund. Thus since the judgment appealed from provides that the amount of the contributions that plaintiff should have made during the period of his employment must be deducted from the disability benefits allowed him, if the Pension Fund takes the proper steps to compel the Chicago Park District to make the contributions on plaintiff’s account that it should have made during the period of his employment, said fund will have received all -the contributions in plaintiff’s behalf that it should have received if said Park District had originally complied with the provisions of the Pension Act.

Something is said in defendants’ brief about the matter of the Park District tax levy precluding plaintiff from the relief sought. In our opinion the tax levy has no more bearing on the instant situation than it would have had if plaintiff had been injured on the very first day of his employment and disabled to the same extent as he was here. In that case although no deduction could have been made from his salary, since same was- not yet due, and no contribution could have been made under the circumstances to the Pension Fund by his employer in his behalf, and in all likelihood the fact of his employment would not have been reported to the Pension Fund, it must be conceded that he would have been entitled to disability benefits under the statute. Under such circumstances his right to said benefits would be not only primarily but solely based on the fact that he was an employee and the method or manner or time of making the Park District’s tax levy could hardly be interposed as a defense to a claim for the payment of the benefits due him.

Defendants contend that plaintiff’s right to the relief sought is barred by laches. It will be recalled that about two years intervened between the date of plaintiff’s injury and the date of his application to the Pension Fund for disability benefits. Mere delay in asserting a right does not constitute laches. The general rule is that laches will not be considered a good defense unless the defendants are prejudiced by the delay. (38 C. J. 831.) Here no prejudice was shown.

For the reasons stated herein the judgment of the circuit court is affirmed.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois ex rel. Joseph P. Egan, Appellee, v. Robert J. Dunham et al., Appellants.
    Gen. No. 41,492.
    Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed March 24, 1942.

      John O. Rees, of Chicago, for appellants; Martjh G. Loeff, of Chicago, of counsel.
    Michael F. Ryah, of Chicago, for appellee; Richard F. McPartlie, Jr., of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment which ordered that a writ of mandamus issue directing the defendants Robert J. Dunham and Philip S. Graver, members of the Civil Service Board of the Chicago Park District, Blaine Hoover, Member and Secretary of the Civil Service Board of the Chicago Park District and Superintendent of Employment of the Chicago Park District, George T. Donoghue, General Superintendent of the Chicago Park District, and Roger Shanahan, Chief of Police of the Chicago Park District, to restore plaintiff, Joseph P. Egan, to the position of patrolman of the Chicago Park District, from which position he had theretofore been discharged by the Civil Service Board of said Park District after a hearing.

The petition for mandamus sets forth the record of the proceedings before the Civil Service Board and its investigating officer which resulted in the discharge of plaintiff and alleges substantially that the refusal of the investigating officer who conducted the hearing of the charges against plaintiff to grant the latter’s request for a continuance of said hearing deprived him of his right to be represented by counsel and of his right to subpoena witnesses to testify in his behalf, in violation of section 12 of the Civil Service Act applicable to park systems and that therefore “the Civil Service Board and the appointing [investigating] officer were without jurisdiction to remove petitioner because of their failure to comply with the Act to Regulate Civil Service in Park Systems, and more particularly with reference to the conduct of the hearing in that petitioner was not given an opportunity to have his counsel present, to subpoena witnesses and to have a public hearing thereon, in violation of the Act relating to Civil Service in Park Systems ,• that as a result thereof petitioner was illegally removed from his position as patrolman and has ever since his suspension been precluded from performing the duties and receiving the salary of patrolman.”

Section 12 of “An act relating to the civil service in park systems” (par. 91, ch. 24%, Ill. Rev. Stat. 1939 [ Jones Ill. Stats. Ann. 23.094]) provides in part as follows:

“No officer or employee in the classified civil service of any park district shall be removed . . . except for cause upon written charges and after an opportunity to be heard in his own defense. Such charges shall be investigated by or before the civil service board or by or before some officer or officers appointed by the board to conduct such investigation within thirty days from the date of suspension under such charges, if such officer or employee is suspended pending investigation of such charges. The hearing shall be public and the accused shall be entitled to call witnesses in his defense and to have the aid of counsel. The hearing may be postponed or continued with the consent of the accused.”

It is admitted by plaintiff that the investigating officer and the Civil Service Board proceeded in conformity with all the provisions of the foregoing section of the statute except those which declare: “ . . . the accused shall be entitled to call witnesses in his defense and to have the aid of counsel. The hearing may be postponed or continued with the consent of the accused.” Plaintiff claims that these latter provisions were violated.

On and prior to May 13, 1935, plaintiff, Joseph P. Egan, was a patrolman in the classified service of the Chicago Park District. On that date he was suspended by order of the head of the Police Department of the South Section of the said Chicago Park District pending charges. Subsequently the following charges were preferred against him:

“1. Conduct unbecoming a park employee in being under the influence of intoxicating liquor while on the post of duty, and I find that the facts to support said charge are as follows:
Specifications
That at or about 9:50 P. M. on May 12,1935, the said Joseph P. Egan, while in uniform, during the hours of his employment, and while on his post of duty located at the intersection of Van Burén Street and Michigan Avenue, Chicago, Illinois, being a part and parcel of the territory of the Chicago Park District, was under the influence' of intoxicating liquor to the extent that he was not in proper condition to continue working and to perform the duties on his post.
(Sgd.) Michael C. Hayes,
Capt. of Police, Commanding
South Section
Appr. George T. Donoghue,
General Superintendent.”
The following written notice of said charges, with a copy thereof, was served upon plaintiff by registered mail on the afternoon of May 28, 1935:
“Mr. Joseph P. Egan
7937 Justine Street.
Chicago, Illinois
I hereby make the following written charges against you as cause for your removal, discharge or suspension (a copy of which is hereto attached) which have been filed before the Civil Service Board of the Chicago Park District by Michael C. Hayes, Captain commanding South Section, under and pursuant to Section 12 of ‘An Act entitled, “An Act Relating to the Civil Service in Park Systems” ’ and that the Civil Service Board has ordered that hearing be had on said charges at its office in the Administration Building of the Chicago Park District, located in Burnham Park in the City of Chicago, County of Cook and State of Illinois, on the 3rd day of June, 1935, at 2:30 o’clock P. M., and if you wish to deny that there is good and sufficient cause for your removal or discharge or be heard further in your own behalf, you should be present at said hearing.
By order of the Civil Service Board,
S. D. Forst
Secretary.”

Plaintiff appeared in person before the investigating officer of the Civil Service Board on June 3, 1935, at 2:30 p.m. in the office of said board, being the time and place set for the hearing. After acknowledging that he received the notice and copy of the charges more than five days prior to the date of the hearing*, he made a request for a continuance of the hearing in the manner hereinafter set forth. His request for continuance was denied. The hearing proceeded. Plaintiff pleaded not guilty. Evidence was heard in support of the charges and Egan testified in his own behalf. After due consideration the investigating officer found plaintiff guilty of the charges and ordered that he be discharged, which finding and decision were approved by the Civil Service Board of the Chicago Park District on June 8,1935.

When plaintiff appeared for hearing for the investigating officer of the Civil Service Board on June 3, 1935, the following occurred:

‘1 Mr. Forst: Did you receive a copy of the charges more than five days prior to this date? Mr. Egan: I did, yes. Q. Do you plead guilty to the charges? A. I was talking to an attorney this morning and he asked me if possible to have it continued for about a week; he is busy. Q. For what reason? A. Well, he hasn’t been here; he is busy today and can’t handle it. Q. It is rather a late request, is it not? Did you make any request for a continuance prior to the time you are asking for it now? A. No, I didn’t. Q. You don’t have to be represented by counsel. It is really up to you to see to it that you had an attorney here today to represent you, if you desired to have one. A. On account of the holiday. Mr. Loeff: Did you actually retain this attorney? A. I did, yes. On account of the holiday, he was out and' didn’t come in until yesterday. I just left his office now, and he is busy. Mr. Loeff: What is your attorney’s name? Mr. Egan: Elmer Whitty. Mr. Dunham: There are several attorneys in Chicago. We have our Civil Service Board here at a special time. Mr. Leoff: The attorney didn’t make any request. Mr. Forst: No attorney made a request for a continuance in this case. If Mr. Whitty had been retained by you on the case, he should have made a request for a continuance from the Civil Service Board. Mr. Dunham: I think we will proceed.”

While several grounds are urged for reversal of the judgment order, we deem it necessary to consider only the question as to whether the denial of plaintiff’s request for a continuance by the investigating officer constituted an abuse of discretion which deprived the Civil Service Board and its investigating officer of jurisdiction to proceed with the hearing of the charges against plaintiff which resulted in his discharge.

Defendants’ theory on this question as stated in their brief is that “the facts and the petition of plaintiff show that the Civil Service Board and its investigating officer had jurisdiction both of the person of the plaintiff and of the subject matter. That specific charges were filed against plaintiff before the Civil Service Board. That plaintiff was served with notice of the hearing more than five days before said hearing as required by the rules of the Civil Service Board. That he appeared in person at the hearing. That he was present throughout the hearing and testified in his own behalf. That he was found guilty of the charge of conduct unbecoming a police officer in that he was intoxicated while on duty.

“The defendants contend that in view of the foregoing, as shown by the allegations of the petition, that the Civil Service Board had jurisdiction of the person of plaintiff and of the subject matter of the investigation; that it was discretionary with the investigating officer and the Civil Service Board to refuse or grant the request for continuance; that they did not lose jurisdiction to proceed with the investigation because they refused a continuance; that the exercise of their discretion is not subject to review by the courts inasmuch as their acts are the acts of administrative officials and not judicial acts; that the investigating officer and the Civil Service Board proceeded in all things in accordance with the law in the matter of the hearing of the charges; that the reviewing court is without power to weigh and review the action of the investigating officer in denying the continuance and proceeding with the hearing.”

Plaintiff’s position is that “under the provisions of Section 12 of the Park Civil Service Act no employe in the classified civil service of the Chicago Park District can be discharged unless, among other things, said employe is accorded an opportunity to be heard in his own defense. That the statute in question provides that the hearing to be accorded to the employe is to be public and the accused shall be entitled to call witnesses in his defense and to have the aid of counsel. That said hearing may be postponed or continued with the consent of the accused. That under the facts and circumstances surrounding the hearing of charges against plaintiff the defendants failed to accord plaintiff an opportunity to be heard in his own defense within the meaning of the statute. That defendants denied to plaintiff his right to be represented by counsel and denied him the privilege of a continuance, a provision provided by the statute for the benefit of the accused employe. That the defendants ’ actions, under the circumstances, in not granting a continuance and in not granting plaintiff the right to be represented by counsel of his own choosing, and in proceeding to a hearing, when the plaintiff had neither his lawyer nor his witnesses present, were arbitrary actions and in excess of the powers conferred upon the defendants by the Park Civil Service Act. That because thereof the Civil Service Board had no jurisdiction, and the finding and decision of the investigating officer approved by the Board, is null and void; that because thereof it is the mandatory duty of the defendants (enforceable by mandamus) to restore plaintiff to his position as a patrolman.”

The Civil Service Board of the Chicago Park District is composed of administrative officers clothed with statutory powers, from whose decisions the law gives no right of appeal and no right to the courts to inquire into the discretion exercised by that body, provided it acted within its statutory powers. (People ex rel. Miller v. City of Chicago, 234 Ill. 416, 418; Wilcox v. People ex rel. Lipe, 90 Ill. 186, 206, 207.)

The facts necessary to confer jurisdiction upon the Civil Service Board and its investigating officer are clearly shown both by the record of the proceedings before said board and by plaintiff’s petition for mandamus, and such jurisdiction continued throughout said proceedings unless they were deprived of same by reason of the refusal of the investigating officer to grant plaintiff’s request for a continuance.

In so far as we have been able to ascertain, the question has not heretofore been presented to or décided by the Supreme or Appellate Courts of this State as to whether the refusal of a Civil Service Board or commission to grant a continuance of the hearing of charges preferred against an accused employee under circumstances such as appear here constituted an abuse of discretion that deprived such board or commission of jurisdiction to proceed with the hearing.

As has been seen, defendants complied strictly with the statute as to the filing of the charges and the service upon plaintiff of a copy of same, along with a notice of the time and place of his hearing. Such notice also advised him that if he wished to deny that “there is good and sufficient cause for your removal or discharge or be heard further in your own behalf, you should be present at said hearing.” The service was had on Egan May 28, 1935, and his hearing was set for June 3, 1935. The rules of the Civil Service Board require that an accused employee be given at least five days’ notice of the hearing of charges preferred against him. Here plaintiff was given six calendar days or five legal days notice. Plaintiff was therefore afforded the required opportunity to engage counsel to represent him at his hearing. He was also afforded the opportunity provided by the statute to call or have subpoenaed such witnesses as he desired in his defense against the charges.

In spite of the admitted jurisdiction of the Civil Service Board and its investigating officer over plaintiff’s person and the subject matter of the charges, he insists that because he was refused a continuance of his hearing said board and its investigating officer were without jurisdiction to proceed further with such hearing.

It will be noted that when plaintiff made his request for continuance he said nothing at all about his inability to secure the presence of witnesses and that he had not even taken the trouble to consult any attorney about his case or his defense until the very morning of the day the charges against him were set for hearing. It will be further noted that the attorney he claims to have talked to .that morning “asked me if possible to have it continued for about a week; he is busy.” It appeared that neither plaintiff nor any attorney representing him made any request for a continuance prior to the date of the hearing. Plaintiff stated to the investigating officer that he had already retained Attorney Elmer Whitty to represent him but that statement was refuted by his testimony on the trial of the instant case that he wanted to employ Attorney Whitty but the latter was out of town.

It cannot be said that the right given plaintiff under the statute to “the aid of counsel” was violated by defendants. It was plaintiff himself who failed to exercise such right through his own lack of diligence. The same may be said as to his right “to call witnesses in his defense.”

Section 12 of the Park Civil Service Act heretofore set forth, fairly and reasonably construed, can only mean that the accused employee is entitled to have counsel represent him if he so desires and that he may himself call witnesses in his behalf or have them subpoenaed if he so desires. If plaintiff desired the “aid of counsel” it was his duty to have such counsel present at the time and place set for hearing. If counsel was present and was refused the right to participate in the hearing that of course would constitute a violation of the statute. There is no claim made that plaintiff produced witnesses who were refused permission to testify or that he requested the Civil Service Board to subpoena witnesses in his behalf and that it refused to do so. If witnesses called by plaintiff were refused permission to testify by the investigating officer of the Civil Service Board that would have constituted a violation of the statute. The same would be true if the Civil Service Board refused to subpoena witnesses at plaintiff’s request.

The matter of granting or refusing to grant plaintiff a continuance of his hearing under the cireumstances shown here was .clearly within the discretion of the investigating officer of the Civil Service Board and to hold otherwise would be to establish the absurd precedent that hearings of said board and its investigating officers must be held at the convenience of accused employees or their counsel or prospective counsel. It is undoubtedly true that the Civil Service Board of the Chicago Park District has in the past, in the exercise of its sound discretion, granted continuances of the hearings of charges against accused employees and that it will continue to do so in the future where the circumstances warrant such action. However, it is under no statutory obligation to grant a continuance of a hearing regardless of the circumstances.

The statute affords no mandatory right to the allowance of a continuance of a Civil Service hearing. There is no language contained in section 12 which either expressly or by implication imposes the duty on the Civil Service Board or its investigating officer to grant a continuance simply because same is applied for. The statute merely states that “the healing may be postponed or continued” and then only “with the consent of the accused.” The provision for the consent' of the accused is for his protection and to guarantee him a hearing within the thirty-day • statutory period of his suspension so as to preclude the possibility of the indefinite postponement of the hearing of the charges against the accused employee.

We repeat that the statutory provision giving the accused employee the right to the “aid of counsel” can only mean that if such employee has counsel present to represent him he must be permitted to participate in the hearing and the conduct of the defense. To deny this right would be a clear violation of the Civil Service Act.

In the view we take of this case plaintiff’s petition for mandamus contains no sufficient charge and the record of the proceedings before the Civil Service Board and its investigating officer does not show that said board or its investigating officer violated the Civil Service Act as to any of its provisions.

We are impelled to hold that defendants were not guilty of any abuse of discretion in denying plaintiff’s request for a continuance of his hearing, that the Civil Service Board and its investigating officer had jurisdiction of the plaintiff and the subject matter of the charges against him and that the record of the proceedings of said board and its investigating officer was valid in every respect.

For the reasons stated herein the judgment order of the superior court is reversed.

Judgment order reversed.

Scanlan, P. J., and Friend, J., concur.


text:
    Merchants Service Corporation, Appellee, v. Libby, McNeill & Libby, Appellant.
    Gen. No. 41,514.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed March 24, 1942.
    William H. Long and Lyndle W. Hess, both of Chicago, for appellant.
    Hopkins, Sutter, Halls & DeWolpe, of Chicago, for appellee; Peter L. Wentz and T. Eugene Foster, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Merchants Service Corporation, to recover certain brokerage commissions alleged to be due it from defendant, Libby, McNeill & Libby. The court having sustained plaintiff’s motion to strike defendant’s defense to plaintiff’s statement of claim, defendant elected to abide by its defense and judgment was entered in favor of plaintiff and against defendant for $1,085.10. Defendant appeals.

Plaintiff’s statement of claim, after alleging that it was engaged in the general mercantile brokerage business and that “it is now engaged in winding up its affairs,” averred:

“2. Prior to June 16, 1936, defendant agreed from time to time with plaintiff to pay the brokerage commissions to plaintiff on all goods, wares and merchandise of the defendant sold or caused to be sold to purchasers by or through plaintiff as broker, at rates of commission varying from 2% to 5% based on the net sales price of said goods, wares and merchandise after allowance of the usual discount for cash payments, and the plaintiff pursuant thereto at various times from May 28, 1935, to June 15, 1936, both inclusive, sold or caused to be sold by or through it as broker, to divers and sundry purchasers, goods, wares and merchandise of the defendant and thereby there became due and payable from the defendant to the plaintiff brokerage commissions in the amount of $1,058.10, more particularly set forth as follows:” (Here follows a list of alleged contracts of sale negotiated by plaintiff with defendant from May 28,1935, to June 15,1936.)

Defendant’s statement of defense, after admitting in paragraph 1 thereof that plaintiff was “engaged in the general mercantile brokerage business,” alleged:

“2. The defendant denies that it at any time employed plaintiff as broker or agreed to pay brokerage or commissions on goods, wares, or merchandise sold or caused to be sold by or through the plaintiff as its broker, denies that the plaintiff ever acted as broker for the defendant or performed any other services for the defendant, and denies that the sales alleged in paragraph numbered 2 of the plaintiff’s Statement of Claim were made on the dates therein alleged.
“3. The defendant alleges that it agreed from time to time prior to June 16, 1936, to pay commissions to the plaintiff only on completed sales of goods, wares and merchandise of defendant purchased through the plaintiff by shareholders or licensees of the plaintiff or to others under contract for buying services by the plaintiff.
“4. The defendant alleges that all purchasers listed in paragraph numbered 2 of the plaintiff’s Statement of Claim were, at all times mentioned therein and in this Defense, shareholders or licensees of the plaintiff, or under contract for buying services by the plaintiff, and that in all purchases listed in said paragraph the plaintiff was the agent, representative, or intermediary of and acting for and in behalf of the purchasers and not the defendant.
“5. The defendant is informed and believes and therefore alleges that at all times herein mentioned the plaintiff was under agreement with the purchasers listed in paragraph numbered 2 of the plaintiff’s Statement of Claim to pay to the respective purchasers any and all commissions paid by the defendant to the plaintiff with respect to the purchases listed in said paragraph.
“6. The defendant alleges that all the goods, wares and merchandise involved in the purchases listed in paragraph numbered 2 of the plaintiff’s Statement of Claim were sold and delivered in interstate commerce subsequent to June 19,1936, to-wit, on the dates more particularly set forth as follows(Here follows list showing dates on which the merchandise was actually sold and delivered by defendant to the various purchasers, said dates being from June 22, 1936, to September 30, 1936.) “and that the dates specified by the plaintiff in its Statement of Claim are dates on which contracts to sell were entered into with the respective purchasers, and not dates on which completed sales were made.
“7. The defendant alleges that by virtue of an Act of Congress entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes,’ commonly known as the Robinson-Patman Price Discrimination Act (15 U.S.C.A. sec. 13) effective June 19,-1936, the payment of commissions on the purchases listed in paragraph numbered 2 of the plaintiff’s Statement of Claim, either to the plaintiff or to the purchasers, is unlawful, illegal, and prohibited by law.”

That portion of the Robinson-Patman Price Discrimination Act applicable to this proceeding is subsection (c)' of section 13 (15 U.S.C.A.). This act became effective June 19, 1936, and the pjertinent paragraph thereof reads as follows:

“ (c) It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance of discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.”

Defendant’s theory as stated in its brief is that “in this case we are dealing with price discounts or commissions in lieu of brokerage and not with true brokerage ; that whenever commissions are paid to an agent to be turned over to the buyers we are dealing with price discounts and not brokerage; that the Bobinson-Patman Price Discrimination Act clearly by its terms prohibits payment of commissions of this type on sales completed after the effective (late of the Act; that so applying the Act does not give it a forbidden, retroactive effect merely because the executory contracts to sell happen to have been made before the effective date; and that Congress under the Constitution has the power to prohibit the giving of such allowances in sales in interstate commerce completed after the effective date of the Act, as Congress obviously intended to do, notwithstanding that such prohibition thereby affects the validity or enforcibility of executory contracts made before the enactment and valid when made.”

Plaintiff’s theory is that “the agreement to pay the brokerage commissions here involved was legal and valid when made, and plaintiff had earned brokerage commissions under said agreement prior to the effective date of the Robinson-Patman Act”; that “it will be presumed that the parties do not intend to violate the Robinson-Patman Act”; that “the Robinson-Patman Act does not by its terms apply under the circumstances of the instant case”; that “the Robinson-Patman Act will not be construed to operate retroactively to deprive the plaintiff of commissions earned prior to the effective date of that Act”; that “the Robinson-Patman Act will be construed so as to avoid the question as to whether the Act is constitutional as applied to the facts in the instant case”; and that “to construe the Robinson-Patman Act to deprive the plaintiff of the rights of commissions earned prior to the effective date of that Act would be to deprive the plaintiff of property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States.”

Plaintiff’s motion to strike admitted the truth of all the well-pleaded allegations of fact in the verified statement of defense. Therefore we have admitted of record the allegations of defendant’s statement of defense that it had not agreed to pay plaintiff brokerage; that it had agreed to pay commissions only on completed transactions; and that these commissions were in fact mere price discounts to be paid plaintiff as the agent for the purchasers and in their behalf.

Just what is the situation presented? Plaintiff is not an independent broker since, having rendered no services to defendant, it does not come within that category. Plaintiff negotiated the contracts with defendant whereby the latter agreed to sell merchandise to purchasers for whom plaintiff was acting as the agent or intermediary and to whom any commissions payable to plaintiff as the result of the completed sales would accrue as price discounts. All of the contracts to sell in question were to be consummated by the delivery of the merchandise to the purchasers and payment therefor. Commissions were payable to plaintiff only after the merchandise was delivered and paid for. All of said contracts to sell were valid when made and they were all made prior to June 19, 1936, the effective date of the Eobinson-P atman Act. However, none of the sales were completed until after the effective date of said act. The commissions claimed herein were not “earned” until the sales were completed, which was, as already stated, after the effective date of the Eobinson-Patman Act.

The principal question presented for determination is whether the prohibition contained in the Bobinson-Patman Act applies to purchasers’ price discounts where the sales contracts were initiated before and the sales completed after the effective date of the act.

The very purpose of the aforesaid act was to prevent and prohibit the seller from giving the purchaser discriminatory price discounts such as were provided for under the several contracts to sell entered into between plaintiff and defendant. We think that it must be conceded that the purchasers themselves for whose benefit these contracts were made and who were to receive the price discounts would be precluded from recovering the amount of such price discounts since the act intervened between the respective dates of the contracts to sell and the dates of the completed sales and absolutely prohibited the payment to purchasers of any discriminatory allowances. That being so, is plaintiff in any better position to recover the amount of the price discounts than the actual purchasers ? We think not. It was merely acting as their agent and certainly had no more right to the price discounts than they had after the prohibition became effective. In Great A. & P. Tea Co. v. Federal Trade Commission, 106 F. (2d) 667, while the question involved therein was the propriety of a cease and desist order issued by the Federal Trade Commission, the court interpreted subsection (c) of the Robinson-Patman Act in a manner peculiarly applicable to the situation presented here. There it was said at pages 674, 675:

“At each stage of its enactment, paragraph (c) was declared to be an absolute prohibition of the payment of brokerage to buyers or buyers’ representatives or agents. . . .
“. . . We entertain no doubt that it was the intention of Congress to prevent dual representation by agents purporting to deal on behalf of both buyer and seller. . . . The phrase ‘ except for services rendered’ is employed by Congress to indicate that if there be compensation to an agent, it must be for bona fide brokerage, viz., for actual services rendered to his principal by the agent. ... In short, a buying and selling service cannot be combined in one person.” (To the same effect are Biddle Purchasing Co. v. Federal Trade Commission, 96 F. (2d) 687; Oliver Bros., Inc. v. Federal Trade Commission, 102 F. (2d) 763; and Webb-Crawford Co. v. Federal Trade Commission, 109 F. (2d) 268.)

Is there any language in subsection (c) of the act heretofore set forth which indicates that it does not apply when the contract to sell was entered into before the effective date of the act? No such exception can be found therein. The statute plainly states that it shall be unlawful in the course of interstate commerce “to pay . . . brokerage, or . . . any allowance of discount in lieu thereof ... in connection with the sale ... to the buyer’s agent or intermediary.

It will be noted that the prohibition in the RobinsonPatman Act applied to price discounts in connection with sales and that all the actual sales made herein occurred after the effective date of said act. If Congress intended to except from the prohibition of the act payments and sales occurring subsequent to its effective date but arising from pre-existing contracts to sell it undoubtedly would have said so. That Congress did not so intend and that it intended that the statute under consideration was to take effect literally without the exemption of existing contracts to sell from its prohibition is indicated by the following excerpt from the debate in the United States Senate, after submission of conference report, reported at 80 Congressional Record 9903 (June 18, 1936):

“Mr. Vandenberg. Is any period of grace permitted for existing contracts which would fall under the proposed inhibitions, but which would necessarily have to be completed? Mr. Van Nuys. I think not. Mr. Vandenberg. There is no period of grace? Mr. Van Nuys. There is no period of grace.”

The contracts to sell in this case were not made in interstate commerce but the actual sales were. The evident purpose of the enactment in question was to put a stop immediately the act became effective to the payment of commissions or price discounts such as are involved here because they were detrimental to the free flow of interstate commerce.

We are impelled to hold that subsection (c) of the Robinson-Patman Act must have been intended to apply uniformly to all sales made in interstate commerce after its effective date and that since the actual sales herein were made and the merchandise delivered and paid for by the purchasers after June 19, 1936, when said act became effective, defendant could not pay and plaintiff could not receive or accept the commissions or price discounts for which this action is brought without violating the plain provisions of the RobinsonPatman Act.

The only remaining question we deem it necessary to discuss is whether Congress in the exercise of its powers over interstate commerce can impair the obligations of antecedent valid contracts. Plaintiff claims that it had a vested right in its executory contracts to sell which could not be destroyed by a subsequent act of Congress. The law has been clearly established in the so-called “gold clause” cases that. Congress in the exercise of its legitimate powers may impair the obligations of contracts. In Norman v. Baltimore & O. R. Co., 265 N. Y. 37, 191 N. E. 726, 92 A. L. R. 1523, which involved the right of a bondholder to require payment in the gold coin specified in his bond or its then present money equivalent, the court said, at page 40 of the first mentioned report: “It [Congress] also has the power prohibited to the States (U. S. Const, art. I, sec. 10, par. 1), to impair contracts by the exercise of its lawful powers.”

The identical question involved in the Norman case was also presented for determination in In re Missouri Pac. B. Co., 7 F. Supp. 1. There the court used the following language, at page 7:

. . The powers of the Congress within the field of permissible legislation cannot be obstructed or nullified, by what Mr. Justice Hughes (now Chief Justice) characterized in the Schubert Case, supra [Philadelphia, B & W. R. Co. v. Schubert, 224 U. S. 603, 32 S. Ct. 589, 56 L. Ed. 911], as ‘prophetic discernment.’ Any other and different conclusion, would be well-nigh abhorrent to both logic and common sense. For, I repeat, one who makes a contract, in a matter within the field of permissive congressional legislation, must be deemed to do so with the knowledge that a subsequent act of the Congress may render void his solemn agreement. This rule and principle, which is not capable of distinction here, runs through the very warp and woof of the Federal Constitution. It has been invoked, and it has served to revoke and abrogate an antecedent contract valid when made, between a lawyer and his client (Calhoun v. Massie, 253 U. S. 170, 40 S. Ct. 474, 64 L. Ed. 843); between a railroad and the holder of a free pass, issued antecedently and upon a good consideration (Louisville & Nashville R. Co. v. Mottley, supra [219 U. S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671]); between an employee and a railway, when, sued under the Employers’ Liability Act (45 USCA secs. 51-59), the railway set up an antecedent contract barring the beneficiary in a relief- fund from maintaining an action for damages for personal injuries (Philadelphia B. & W. R. Co. v. Schubert, supra); between the United States and a bridge company, which constructed a bridge in navigable waters under state legislative sanction, valid when made (Union Bridge Co. v. United States, 209 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523; Monongahela Bridge Co. v. United States, 216 U. S. 177, 30 S. Ct. 356, 54 L. Ed. 435). It is not alone, I repeat, in the fields of interstate commerce, navigable waters, and lawyers’ contracts for a fee for the recovery of money and pensions from the government, that the right of the individual to forestall and obstruct the Congress by an antecedent contract is denied. The same principle has repeatedly been applied by the Supreme Court in matters of riparian rights. [Citing cases.] ”

Both of the foregoing cases were passed upon by the Supreme Court of the United States. In Norman v. Baltimore & O. R. Co., 294 U. S. 240, 55 Sup. Ct. 407, 79 L. Ed. 885, 95 A. L. R. 1352, that court held, at pages 307, 308, 309 and 310 of the first mentioned report :

“Contracts, however express, cannot fetter the constitutional authority of the Congress. Contracts may create rights of property, but when contracts deal with a subject matter which lies within the control of the Congress, they have a congenital infirmity. Parties cannot remove their transactions 'from the reach of dominant constitutional power by making contracts about them. . . .
‘1 The principle is not limited to the incidental effect of the exercise by the Congress of its constitutional authority. There is no constitutional ground for denying to the Congress the power expressly to prohibit and invalidate contracts although previously made, and valid when made, when they interfere with the carrying out of the policy it is free to adopt.”

There is no question but that the application of the statute to the case at bar deprives plaintiff of the right that would otherwise have accrued to it upon full performance of the executory contracts to sell. But that is the only right it lost, and that Congress in the exercise of its powers to regulate interstate commerce may impair the obligation of contracts is no longer open to question.

Other points have been urged and considered, but in the view we take of this case we deem further discussion unnecessary.

For the reasons stated herein the judgment of the municipal court of Chicago is reversed and judgment is entered here in favor of defendant and against plaintiff.

Judgment reversed Mid judgment here in favor of defendant and against plaintiff.

Scanlan, P. J., and Friend, J., concur.


text:
    Myra Helmer Pritchard, Appellee, v. Roland E. Wilcox et al., Defendants, Citizens State Bank of Park Ridge, Appellant.
    Gen. No. 41,937.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed March 24, 1942.
    Henry L. Blim and Leonard A. Scholl, both of Chicago, for appellant.
    Concannon, Dillon, Snook & Arthur, of Chicago, for appellee; Norbert B. Tyrrell, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Myra Hekner Pritchard, filed a creditor’s complaint for discovery of assets under section 49 of the Chancery Act, in which she named as defendants, Boland E. Wilcox, the judgment debtor, Citizens State Bank of Park Bidge and others. The trial cou,rt entered a money decree for $1,600 against the Citizens State Bank of Park Bidge, from which decree said bank prosecutes this appeal.

Plaintiff’s complaint alleged that March 26, 1935, she recovered a judgment for $5,592.70 against Roland E. Wilcox in the superior court of Cook county; and that April 8, 1935, a writ of fieri facias was issued pursuant to said judgment and was returned nulla bona by the sheriff on August 3, 1935. The complaint contained the usual allegations in general terms as to possible holdings by the various defendants of assets belonging to the judgment debtor. It then averred that Roland E. Wilcox was the owner of shares of stock in the Citizens State Bank of Park Ridge; and that said bank had in its possession or in its control divers goods, wares and merchandise and other articles of personal property that belonged to defendant Roland E. Wilcox.

The complaint specifically prayed that the bank “state whether said defendant Roland E. Wilcox now owns any of the shares of stock in said corporation . . . and whether he has at any time since August 26, 1931, owned any of said shares of stock, which have been subsequently transferred on the stock record books of said corporation.” The complaint included a prayer that the defendant Roland E. Wilcox be enjoined, among other things, from selling or transferring any of his assets and that a receiver be appointed for his property.

The answer of the principal defendant, Roland E. Wilcox, admitted that he owned ten shares of stock of the Citizens State Bank of Park Ridge and further admitted that such stock was in the possession of said bank.

The Citizens State Bank of Park Ridge admitted by its answer that the judgment debtor, Roland E. Wilcox, was the owner of record of 10 shares of the capital stock of the bank; that the certificate for said 10 shares of stock belonging to Wilcox was on deposit with and held by the bank; and that-Roland E. Wilcox was president of the defendant bank.

As has been shown the defendant bank admitted in its answer of October 14,1935, that it had in its possession 10 shares of its capital stock which were the property of the judgment debtor, Boland E. Wilcox. Plaintiff served notice that on September 17, 1937, she would make application for the appointment of a receiver and for an order directing the bank to turn over the stock belonging to Wilcox to said receiver. It then appeared for the first time that the bank had on April 10, 1936, about seven months after it had filed its answer, delivered to Wilcox, the judgment debtor, the 10 shares of bank stock which it had in its possession belonging to him. On the same day that the bank delivered the stock to Wilcox, he sold and transferred same to his son for $1,250. The bank made the transfer on its books, canceled the old certificate and issued a new certificate to the transferee. August 7,1936, about four months later, Wilcox’s son sold the stock to one Paul Ludmann for $1,600.

The defendant bank’s principal contention is that even though it admitted by its answer that it had in its possession the ten shares of bank stock belonging to the judgment debtor, it had the right to turn such stock over to said judgment debtor and thus place it out of the reach of the court because plaintiff had not acted promptly to sequester the discovered asset by having an injunction issue restraining Wilcox from transferring the stock or restraining the bank from making a transfer of the stock on its books or by having a receiver appointed and the bank directed to turn over the certificate of stock to him.

Plaintiff’s theory as stated in her brief is “that where, in a creditor’s suit, service of process is had upon a defendant who is possessed of assets belonging to the judgment debtor, the lien thereby acquired on such assets and the jurisdiction of the court over same cannot be defeated and destroyed with impunity by the voluntary action of such a defendant who turns the property over to the judgment debtor, whereby it is put out of reach; that in such case, equity having once acquired jurisdiction over the subject matter and of the parties, the court may properly enter a money judgment against such defendant for the value of the property, without relegating the plaintiff to any other remedy which may be available.”

Section 49 of the Chancery Act (par. 49, ch. 22, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 106.12]) provides in part as follows:

“Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a complaint against such defendant, and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or the delivery thereof to the defendant, . . . . The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or thing in action, belonging to the defendant . . . which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not . . . .”

It will be noted that under the foregoing statute the court was granted the power to compel the discovery of assets belonging to a judgment debtor, the power to prevent the transfer of the discovered assets to such judgment debtor and the power “to decree «atisfaction of the sum remaining due on such judgments, out of any personal property .... belonging to the defendant, . . . which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not.”

The bank’s claimed right to thwart the application of the discovered asset of the judgment debtor to the satisfaction of plaintiff’s judgment is based entirely upon the failure of the court to exercise the second of the aforementioned powers. In other words it is claimed that because plaintiff did not promptly apply to the court for the issuance of an injunction or for the appointment of a receiver to prevent the transfer or delivery of the ten shares of stock by the bank to defendant and because the court did not promptly exercise its power “to prevent such transfer ... or delivery,” the bank had a right to deliver the certificate of stock to the judgment debtor, who was its president, thereby depriving plaintiff of her right to have the stock applied toward the satisfaction of her judgment.

While ordinarily plaintiffs do act promptly to sequester “discovered” assets and while the plaintiff herein might have resorted to the interlocutory remedies of injunction or receivership to prevent the transfer and delivery of the certificate of stock by the bank to Wilcox, in our opinion she was under no obligation to do so. As soon as the judgment debtor’s ownership of the bank’s stock was discovered by the admission in the defendant bank’s answer, such stock was brought within the control of the court, and the court having jurisdiction of the parties and the subject matter, it remained within the control of the court until a final decree was entered in the cause. If the bank had the right to deliver the certificate of stock to the judgment debtor seven months after it filed its answer admitting its possession of same, it would have had just as much right to deliver said certificate to him the day it was served with summons. To give such a construction to section 49 of the Chancery Act would render said section nugatory unless immediate steps were taken to prevent the transfer or delivery of the judgment debtor’s assets to him after same had been discovered. That section was enacted to aid judgment creditors and not to enable judgment debtors and those acting in concert with them to evade such judgment debtors’ obligations. If defendants in discovery proceedings were permitted to do what the defendant bank has done here, it would defeat the entire purpose of the aforesaid section 49. We do not think that it was contemplated by the legislature that the mere failure of the court to exercise one of the powers'conferred upon it by section 49 precluded the chancellor from'exercising the other powers conferred by said section. The delivery of the ten shares of bank stock to the judgment debtor was at the bank’s peril, after its admission by its answer that it had same in its possession. The retention of this stock by the bank until the final order of the court with regard to it imposed no undue hardship upon said bank and if for any reason the bank desired any directions respecting the stock the court was at all times available.

The defendant bank claims that in any event the court erred in entering a money decree against it. There is no merit in this contention. Where, as here, plaintiff was deprived of the equitable relief sought by reason of the voluntary act of the bank in delivering the stock to the judgment debtor, we think the principle is clearly applicable that whenever a court of equity has once acquired jurisdiction of a cause, it will retain such jurisdiction in order to do full justice between the parties. The situation presented here is analogous to that presented in a suit for specific performance, where at the commencement of the suit the remedy was possible but pending the action the defendant vendor puts it out of his own power to perform his agreement and renders the specific relief impossible by conveying the subject matter to another bona fide grantee for value. The rule applicable under such circumstances is stated as follows in Pomeroy’s Equity Jurisprudence, 3d Ed., sec. 237, at page 342: “If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, such, for example, as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appears from facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become impracticable, and the plaintiff is entitled to the only alternative relief possible of damages, the court then may, and generally, will instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved and decree the payment of mere compensatory damagés.” The instant case fully satisfies the general principle of equity above stated and plaintiff was clearly entitled to have her damages assessed herein instead of being relegated to another forum for relief.

Defendant bank contends that plaintiff’s damages were not properly assessed. There was no evidence as to the market value of the stock at any time. The only evidence in the record bearing upon the value of the ten shares of bank stock in question is that on April 10, 1936, when the bank delivered the certificate of stock to the judgment debtor, the latter sold and transferred the stock to his son for $1,250; and that August 7, 1936, the son sold same to one Paul Ludmann for $1,600. As heretofore shown the damages were assessed and judgment entered against the defendant bank for the latter amount. We are constrained to hold that plaintiff’s damages should have been assessed at $1,250, the amount for which the stock was sold on the day the defendant bank delivered same to the judgment debtor.

We have considered all the other points urged and the authorities cited in support of same, hut in the view we take of this case we deem further discussion unnecessary.

For the reasons stated herein the decree of the superior court is in all respects affirmed except as to the amount of recovery adjudged to plaintiff from the defendant bank, the money decree for $1,600 against the defendant bank is reversed and the cause is remanded with directions that the amount of damages awarded plaintiff and the amount of' the judgment against the defendant bank be reduced from $1,600 to $1,250.

Affirmed in part, reversed in part and remanded with directions.

Scanlan, P. J., and Friend, J., concur.


author: Mr. Presiding Justice Huffman

text:
    Veda Anderson, Appellee, v. Charles E. Anderson, Appellant.
    Gen. No. 9,743.
    Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    Stanley H. Guyer, of Rockford, for appellant.
    Miller & Thomas, of Rockford, for appellee; Charles A. Thomas, of Rockford, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee instituted her suit against appellant for divorce on the ground of habitual drunkenness. It was alleged that he was the owner in fee of certain farm land. She obtained a temporary writ enjoining him from disposing of or encumbering any of his property. Appellant filed answer denying the charge of habitual drunkenness, setting up that he was a farmer by occupation, owned his own farm, kept the same in a good state of repair, was a good farmer, and made money thereby with which he had discharged the indebtedness against his farm. The temporary order required that he pay $60 per month to appellee together with certain specified attorney fees and costs. By agreement of the parties, the above order was modified to permit appellant to dispose of sufficient personal property to comply with the terms of the order. The order was again modified on motion of appellant, which set up that he owned approximately 165 acres of land which was stocked with cattle and other livestock, and that he could not properly and successfully operate same without the right to sell the livestock when it was ready for the market and at a time when the market was advantageous to such sale; further setting up that if he was to be required to pay the alimony to appellee as ordered, that he must be free to operate his farm and stock business so as to make money. Following this petition, the original order was modified, giving him the right to dispose of personal property as he deemed expedient. Thereafter, appellant sold the livestock and by the order of the court, half the proceeds therefrom were delivered to the clerk of the court for and on behalf of appellee.

It appears that on July 28, 1941, the case was heard by the judge of the circuit court, in the absence of appellant. The only evidence on behalf of appellee was her testimony. The court decreed divorce to appellee, found that appellant was the owner in fee of the lands in question, and ordered that the same (except five acres which apparently is disconnected from the farm) be sold by the master to the highest bidder for cash, but for not less than $10,725, and for the master to bring the money into court for distribution.

Following the entry of such decree, appellant filed his motion to vacate same, setting up that his farm consisted of upwards of 165 acres, together with an additional five acres of timber. That he married appellee in 1910; that she left him for a temporary period in 1913, and again in 1916; that following the last separation, she returned to his home in July 1917, where she continued to live until October 1934, when she again left him; that she filed her bill for divorce in this case in September 1939; that upon appellant being served with summons, he went with same to the office of Mr. B. Jay Knight, retained him as his attorney, and paid him the amount requested for such services; that he continued to reside upon his farm until September 1940, when he sustained an accident to his right leg which caused him to suffer from a paralysis of the hip; that this made it impossible for him to operate the farm, and that he had leased it for a rental of $800 per year. He further sets up that he was notified by his attorney to be present at his office for trial of this cause at 8:30 o’clock on July 21, 1941, and that he was present at such time and place; that his attorney had advised him the case would be tried (hat day; that he and his attorney went to the court house where his attorney had a conference with counsel for appellee, in a side room; that following this conference between counsel, his attorney advised him that the case had been continued until July 23, 1941; that on said day, he again went to the office of his attorney, but that the case was not tried on that day; that he was not advised of any other day fixed for the trial of said case, and had no knowledge that it was heard on July 28, 1941, until he read an account of the hearing-in the Rockford newspaper; that on the following day, July 29, he went to the office of his attorney to find out what had happened, regarding his casé, and why it had been tried without his presence. He states his attorney informed him that he did not need any witnesses ; that his farm was going to be sold, and appellee would be given one half of the proceeds. The motion to vacate the decree was denied.

Appellant has prosecuted this appeal from the decree rendered against him.

As previously stated, appellee was the only witness in her behalf. Appellant’s attorney testified with respect to the value of appellant’s land. No cross-examination was made of appellee. No other witness testified.

The decree in this case does not attempt to create a lien upon the real estate to secure the payment of any money to become due thereunder to appellee, nor do we find where it provides for the payment of any alimony. However, it does provide for a sale of the freehold. Thus, the effect of the decree is to divest appellant of his title to his land. Since this is the force and effect of the decree rendered, a freehold is directly involved, and the appeal should have been taken to the Supreme Court. McCornb v. McComb, 238 Ill. 555, 556; Leivis v. Lewis, 316 Ill. 447, 448; Floberg v. Floberg, 358 Ill. 626, 627.

The cause is therefore transferred to the Supreme Court, and the clerk of this court is directed to transmit transcript and all files in said cause to the clerk of that court.

Cause transferred.


text:
    James H. Fox, Appellee, v. Kenneth S. Beall, Appellant.
    Gen. No. 9,748.
    Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    Okel S. Fuqua, of Waukegan, for appellant.
    Hall & Hulse, of Waukegan, and Max Lidschin, of Chicago, for appellee; Albert L. Hall and John V. Mooradian, both of Waukegan, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action by appellee for damages resulting from an injury sustained by him while working for appellant. It is alleged that appellant owned and operated a farm in Lake county, upon which appellee was employed as a farm hand; that appellee, on the day in question, was plowing with a tractor and plow; that the plow was raised and lowered by a power lift; that the machinery was several years old, had been exposed to the elements, and that portion thereof having to do with the operation of the power lift was defective; that appellant knew of this condition, had promised to repair same; and that as a result of such defective condition of the power lift, appellee, while using the plow, sustained the injury complained of by reason of the power lift failing to operate properly.

Appellant by his answer, denied that appellee was in the exercise of due care and caution for his own safety at the time of the accident; denied that the machinery was in a defective condition; and denied that he had made any promise to repair same.

The case was tried by a jury which returned a verdict for appellee in the sum of $1,500. Appellant filed his motion for directed verdict at the close of the plaintiff’s case, and again at the close of all the evidence in the case. Rulings on these motions were reserved until after verdict, when the motions were denied and judgment rendered on the verdict. Appellant brings this appeal, urging as the single error for reversal, the refusal of the trial court to grant his motion for a directed verdict.

It is the position of appellant in this appeal that appellee had been engaged in farming all of his. life, was familiar with farm machinery, was familiar with the plow being used at the time in question, and knew of its defective condition; and that under the general rule of assumed risk, appellee knowing of the defect, could not recover. Citing in support of this contention, such cases as Drop Forge & Foundry Co. v. VanDam, 149 Ill. 337; Illinois Steel Co. v. Mann, 170 Ill. 200; and Pittsburgh Bridge Co. v. Walker, 170 Ill. 550. Appellant also urges that since appellee was familiar with the machinery and equipment being used by him at the time of his accident, the rule which exempts an employee from assuming the risk where a promise to repair is made, cannot prevail. Webster Mfg. Co. v. Nisbett, 205 Ill. 273, 277; Gunning System v. Lapointe, 212 Ill. 274.

Appellee in reply to this position of appellant, urges that in order to put upon the servant the assumption of risk of a defect or danger, he must not only know of the defect, but he must also know of and appreciate the dangers arising therefrom. Slack v. Harris, 200 Ill. 96, 109; Lilly, McNeill & Lilly v. Cook, 222 Ill. 206, 215; Wheeler v. Chicago & W. I. R. Co., 267 Ill. 306, 319; Chenoweth v. Burr, 146 Ill. App. 443.

Appellee further urges that even though the servant may know of the defective condition of the appliance, yet if the master directs him to continue in the use thereof, it is then a question for the jury whether the risk or danger attendant upon the use of the appliance was so imminent and apparent that a man of ordinary prudence would appreciate such risk and danger. Hartrich v. Hawes, 202 Ill. 334. The general rule in this regard is announced in 35 Am. Jur. 691, par. 264, to the effect that if the evidence submitted only goes to the extent of establishing knowledge of the defect from which the danger arises, the question as to the employee’s contributory negligence should not be withdrawn from the jury.

It appears from the testimony of appellee that in his use of the tractor and plow, at no time prior to his receiving his injury had the arm of the power lift ever performed or acted as it did at that time; that nothing had occurred in his use of the same to cause him to know of any danger connected with its worn condition; that the only trouble it gave was the inconvenience attached to its operation, in that, it would sometimes release the plow and thus permit it to engage the soil while he was making turns. Although it appears from his testimony that he was aware of the worn condition of the power lift, yet there is nothing to indicate that he had any knowledge that any danger or risk was incident to its worn condition. He states that he spoke to appellant some three or four days before his injury about the worn pin in the clutch that had to do with the proper operation of the power lift, and that the appellant said he never had any difficulty with it other than it would sometimes permit the plow blade to drop to the ground when in a raised position. He further states that appellant instructed him to find out how much it would cost to get it fixed, and to go ahead and plow. Appellee says that pursuant to appellant’s directions, he went to see the dealer, ascertained that a new part to replace the worn part would cost $4, and proceeded to plow appellant’s land as directed.

In many jurisdictions, it is essential to the operation of the principle of assumed risk incident to the use of defective machinery, that the servant should not only know of such defect, but that he must also know and appreciate the danger and risk connected therewith. Thompson on Negligence, vol. 4, par. 4652 (supp. vols. 7 & 8, same paragraph). We find the above rule supported in 35 Am. Jur. 741, par. 313, to the effect that although an employee may have knowledge of the defective condition of an appliance, by reason of which he sustains an injury, it does not thereby follow that he must be held to have appreciated the danger to which he was thereby exposed. It is there stated that, “An appreciation of the danger is the factor that establishes responsibility, not mere knowledge of the defect or condition by which the danger is created.” This appears to be the rule in this State.

It is said to be a question for the jury whether the danger was appreciated by the servant. On motion for directed verdict only the evidence of the plaintiff can be considered, and is to be taken in its most favorable aspect. There is nothing in appellee’s evidence tending to prove he had any knowledge or appreciation of the danger or risk involved.

The judgment is therefore affirmed.

Judgment affirmed.


text:
    In re Estate of Augusta C. McDonald, Deceased. Adam J. Henning, Personally and Executor of Last Will and Testament of Augusta C. McDonald, Deceased, Appellant, v. Helen F. Henderson, Guardian of James Forney Henderson, et al., Appellees.
    Gen. No. 9,760.
    Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    Edward F. Riely, of Minonk, for appellant.
    Isadore I. Leiken, of Minonk, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Augusta C. McDonald died testate making appellant executor of her estate. Following her death, he qualified as such, and letters were issued by the county court of Woodford county.

The testatrix, by the fifth paragraph of her will, made a bequest to appellant of $4,000, in words as follows:

“Fifth: — I hereby give, devise and bequeath to Adam J. Henning from the said fund above referred to the sum of Four thousand and 00/100 ($4,000.00) Dollars, and this legacy shall in no wise abate if there is sufficient property in my estate to pay same in full after payment of all debts. ” '

By the sixth paragraph of her will, she made bequests to James Forney Henderson and Doris Ann Hinrichs, of not to exceed $4,000, each. In other words, if after the payment of her debts and the legacy given appellant, $8,000 or more should remain in her estate, then the legatees Henderson and Hinrichs should each receive $4,000, but in no event, more than such sum. In the seventh paragraph of her will, she provides for distribution of any remaining money in her estáte, after payment of the foregoing legacies.

Appellant bore no relationship toward the testatrix. He was indebted to her in the sum of $3,600, at the time of her death. When he paid to himself his legacy of $4,000, he paid the inheritance tax thereon ($390) from the funds of the estate. Objections were filed to his final report by the other legatees with respect to this charge against the estate for the inheritance tax paid upon his legacy. They urged that the inheritance tax due thereon must be paid by him and was not a proper charge against the general assets of the estate. The county court sustained this objection. Appellant proceeded to have the matter reviewed by the circuit court of Woodford county, where again the objection was sustained. The circuit court in its finding, states that nothing appears in the will authorizing or directing the executor to make such a charge against the estate. The court further held that inheritance tax is not a tax upon property, but upon the right to succeed to property; that it is not a debt of the estate, but a levy against the person acquiring or taking the legacy. The court found that all of the legatees named in the will should pay such inheritance tax as was due upon their respective legacies. Appellant has prosecuted this appeal from the above order.

Appellant assigns for reversal the court’s ruling that the inheritance tax assessed upon his legacy should be paid by him, urging that under the terms of the will, the same was made payable from the assets of the estate after payment of debts and his legacy. In connection with this position, appellant states that whether a legatee must pay the tax upon his legacy or if the same shall be a charge upon the residuary funds depends upon the intention of the testator as manifested by the will, urging that such expressions as “paid in full,” “without any deductions,” “free from any charge or liability,” “free from all taxes,” and “free of the legacy duty,” when used in a will is held to manifest an intention on the part of the testator that any tax upon the legacy should be paid out of the residuary estate. Citing in this respect, 61 C. J. 1688, sec. 2548, and 26 R. C. L. 229, par. 199.

It is considered competent for a testator to specify what property shall assume the burden of inheritance tax on the transfer or the right of succession of his estate. For example, he may provide that such taxes shall be paid out of the general or residuary estate, or out of a particular fund. Since the effect of such a provision is to increase the gift, the intent of the testator to make such a gift will not be drawn from vague or uncertain language. The question depends upon the intent of the testator as set forth in his will. 28 Am. Jur. 137, par. 280.

Under inheritance tax laws, such tax is not considered one of the expenses of administration, or a charge upon the general estate of the decedent. It is in the nature of a tax upon the right of succession to be imposed upon the several amounts to which the successors thereto are entitled, and is a charge against each share or interest according to its value and against the person entitled thereto. People v. Estate of Strom, 363 Ill. 241; People v. Tombaugh, 303 Ill. 591; Northern Trust Co. v. Buck & Rayner, 263 Ill. 222; People v. Union Trust Co., 255 Ill. 168; National Safe Deposit Co. v. Stead, 250 Ill. 584; People v. Griffith, 245 Ill. 532.

We find nothing in this will directing the executor to pay the inheritance taxes from the general assets of the estate, nor do we find any provision that such tax is to be paid from a designated fund, nor do we find that the legacy to appellant is expressly given tax free, nor do we find that the testatrix used words in connection with appellant’s legacy evincing an intention that he should receive the same free from the payment of inheritance taxes. The only provision is that his legacy shall not abate so long as there is sufficient property in the estate to pay the same in full.

A preference or priority may be given a legatee of a general legacy if the intention of the testator to give such preference appears beyond dispute by the terms of the will. Rood on Wills, p. 497, par. 743 (General Legacies). Redfield — Law of Wills — (3 Ed. 1869), vol. 2, p. 450, sec. 7; and p. 454, sec. 13 (on Priority of Payment of Legacies).

The order in which legacies shall abate may be controlled by direction of the testator expressed in his will. Ordinarily a testator will be deemed to have acted upon the belief that his estate would be sufficient to answer the purposes to which it is devoted. If the chances of deficiency are anticipated and provided for by the terms of the will, then the directions of the testator will govern, and the legatee or legatees to be preferred will so be, and the loss must be borne by those who by the terms of the will of the testator are designated to bear such loss. Thus, we find that a testator may give preference to certain legatees over others, and such directions must be followed. Commentaries on Wills (Alexander), vol. 2, p. 1020, par. 691.

A testator can discriminate as between or among those who take under his will,, and prefer one to another, in the event the funds of the estate shall be exhausted prior to the payment of all the legacies. We find in the will of the testatrix in this case that she made the payment of the general legacy to appellant an express charge upon all of her estate, thus indicating a preference for such legatee, but we do not find that the terms of the will go further than this. An unexpected shrinkage in the estate of a testator not infrequently occurs after he has made his will, and before his death or before his estate can be put in shape for settlement. If the shrinkage is substantial, there may not be enough in the estate to pay the legacies in full after satisfaction of the debts. Therefore, testators frequently provide against such a contingency by prescribing the order in which legacies shall be satisfied. In the absence of such provision, general legacies suffer and abate pro rata. However, the testator may prefer one general legatee to another, this being his right. Thus, we find that if a testator in his will indicates that a certain legacy is to be given priority over others, then in case of a deficiency in his estate, his wish will be enforced. Page on Wills (Abatement). Under such circumstances, it is considered that the testator directs the order of abatement as to the legacies. .

The method of providing revenue by taxation of inheritances is of ancient origin. It was established in Rome as early as the year 6 A.D. Mr. Gibbon tells us that when Augustus resolved to establish a permanent military force for the defense of his government against foreign and domestic enemies, in order .to provide the needed revenue, he suggested a tax of 5 per cent on all legacies and inheritances. The nobles of Rome were more tenacious of property than of freedom, and the suggestion was not warmly received. However, when Augustus suggested that their ohs'ti-, nacy would oblige him to propose a general land tax, the matter was at once settled. The tax was first introduced in England in 1780, and generally known as “death duties.” Although it is purely statutory in origin, it is designed for the same general purpose. The first inheritance tax statute became in force in this State in 1895, and was held constitutional by our Supreme Court in the case of Kochersperger v. Drake, 167 Ill. 122, and subsequently held constitutional by the Supreme Court of the United States in Magoun v. Illinois Trust S Savings Bank, 170 U. S. 283, 42 L. Ed. 1037. Since that time, legislation and litigation have altered and developed the law, but the fundamental doctrines peculiar to this subject have remained the same.

Reference to the act will disclose it is the intent that each legacy shall bear the tax due thereon. This can only be altered by expressed directions of the testator.

The expression “all debts” as used by the testatrix in the fifth paragraph of her will is not considered to include inheritance taxes, as they are not owing by the estate and are not a debt of the testatrix. The judgment of the circuit court is affirmed.

Judgment affirmed.

Mr. Justice Dove concurring: I concur in holding that the judgment appealed from should be affirmed.