text:
    Joseph P. Coane, Appellee, v. Joseph P. Geary et al., Appellants.
    Gen. No. 40,134.
    Opinion filed January 11, 1939.

      Barnet Holes, Corporation Counsel, for appellants; Fred V. Maguire, Carl Hjalmar Lundquist and Alexander J. Besa, Assistant Corporation Counsel, of counsel.
    David J. Bentall and Hart E. Baker, both of Chicago, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On June 10,1937, Joseph P. Coane filed a petition in the circuit court of Cook county in which he charged that the members of the Civil Service Commission of the city of Chicago, defendants, had, on February 3, 1937, unlawfully discharged him from his position as a police officer of that city, after a hearing before such commission. He prayed that writ of certiorari issue out of the circuit court, directed to such Civil Service Commission, requiring it to return to the court a true and correct transcript of the record of the proceeding, together with the evidence taken on the hearing of a complaint filed with the commission. The defendants thereupon moved the court to strike the petition and dismiss the suit, which petition was denied. Thereafter on September 29,1937, the court ordered the writ to issue and further ordered that the commission return the record of the defendants in the matter of the charges, hearing and discharge of the plaintiff from his position as patrolman of the city of Chicago, including a transcript of the testimony of witnesses produced at the hearing. On October 16,1937, a return was made to the writ by the defendants, in which they certified that it contained a true and complete statement of the facts pertaining to the trial and discharge of Coane. Subsequently, the transcript of the testimony was filed in the cause. The return, recites that on January 19, 1937, charges were preferred against Coane by the commissioner of police of the city of Chicago, together with certain specifications concerning the preferred charges which had been filed with the Civil Service Commission, and that on January 27, 1937, Coane had been commanded to appear before the commission and defend himself against such charges; that a copy of the written charges filed against Coane were served upon him on J anuary 21, 1937, and that a receipt for such charges had been made by Coane; that a hearing was had before such commission on the charges made against Coane, at which hearing he was present; that witnesses were produced at such hearing who testified as to the charges made; that the testimony of such witnesses, together with the finding of the commission, were entered of record, and that the commission had found that the charges were sustained, and that Coane was ordered removed from his position in the police department of the city of Chicago. As shown by the return, the charges against Coane were, in substance, that as a member .of the police department he had violated a rule which required that he devote his whole time and attention to his duties as a police officer; that he had violated a rule prohibiting him from following any other calling or occupation, or being engaged in any other business, that he had been guilty of conduct unbecoming an officer of the police department, of inattention to duty, and of making a false official report. The return made by defendants, the Civil Service Commission of the city of Chicago, also contains a transcript of the complete record in the case of the plaintiff, including the evidence taken. The record also contains a finding to the effect that on July 6, 1936, while plaintiff was a member of the police department of the city of Chicago, and while on duty as a police officer assigned to the Navy Pier in the city of Chicago, plaintiff approached an automobile parked in the neighborhood of the Navy Pier, the automobile being occupied at the time by the owner and his wife, and called the attention of the owner to the fact that he had violated the motor vehicle law by not displaying a license plate on the rear of his car; that the owner of the car explained to the police officer that he had just purchased the car without the license plate, and that he intended immediately to purchase the proper plates and place them on his car; that thereafter the plaintiff placed one foot on the running board of the car and prevented the occupants from leaving the place, that he detained them for more than an hour and delivered a lecture on matters of political controversy, and among other things, complained that he had been restrained by his superior officers from delivering speeches upon political and social questions; that he persuaded the occupants of the car to purchase from him a book entitled, “A Labor Party for the United States,” and that he thereupon presented these people with a ‘ ‘ sticker ’ ’ containing the following words: ‘1 Compliments of a Chicago Policeman, who refuses' to club or shoot strikers or the unemployed.” Upon this and other undisputed testimony hereinafter referred to, the commission found that the plaintiff’s conduct amounted to a reflection on the police department of the city of Chicago and the members thereof, and that the whole conduct of plaintiff in connection with the matter, constituted inattention to duty and an imposition upon the owner of the. car, and that his conduct was unbecoming a police officer of the Chicago police department.

The record further shows that the commission found from the evidence before it, that on July 22, 1922, and prior to plaintiff’s appointment as a police officer, on the complaint of a young boy, plaintiff had been found guilty of gross immoral conduct, and that upon complaint being made in the municipal court of Chicago, he had been arrested on a warrant charging him with such offense; that on the trial of the cause, plaintiff had entered his appearance and waived a jury, and that after a trial, a fine of $50 and costs had been imposed upon him for such offense. The record does not show that on the hearing before the Civil Service Commission plaintiff denied any of the charges made against him.

After a hearing upon the return of the Civil Service Commission to the writ of certiorari, the court entered an order overruling the motion of the defendants, respondents, to quash the writ, and on the motion of plaintiff, petitioner, entered an order to quash the record of the proceedings before the Civil Service Commission.

In City of Chicago v. Bullis, 124 Ill. App. 7, where a police officer was charged with conduct unbecoming an officer, this court said:

‘ ‘ The charges are two: one, conduct unbecoming an officer, the other, violation of rule 54. The finding of the trial board, which the return shows was approved by the Civil Service Commission, is as follows: ‘Upon investigation of within charges, we find said Walter Bullís guilty as charged, and decide that he be dismissed from the police department and the service of the city of Chicago by the general superintendent of police. ’

“It is true this finding includes, in its language, both charges; but even though there is no rule 54 to which it can apply, it is sufficient if it applies to the charge of conduct unbecoming an officer. No rule of the commission was necessary in order to try petitioner on the charge of conduct unbecoming an officer. Joyce v. City of Chicago, 216 Ill. 466, 473. In that case the charges were the mailing of a false official report, and conduct unbecoming an officer, in respect to which the court say: ‘ The charge filed in this case, if true, shows conduct of the plaintiff in error “unbecoming a police officer,” and which clearly rendered him unfit to act as a lieutenant of police in the city of Chicago, and was cause for, and justified his removal from such office by the commission.’ In the present case, if the appellee extorted money, as specified, he was clearly guilty of ‘conduct unbecoming a police officer.’ Counsel for appellee say the specifications show that the offense charged was committed in November, 1901, twenty-three months before the charges were preferred, and contend that a delay exceeding eighteen months is unreasonable in a case like the present. It does not appear when the knowledge of appellee’s offense came to the superintendent of police, and we cannot sustain the contention that appellant was guilty of laches.”

In Joyce v. City of Chicago, 216 Ill. 466, a similar charge was filed against a lieutenant of police, and the Supreme Court said:

“It is further contended that the offense with which the plaintiff in error was charged pertained to misconduct on his part while acting as a notary public and not to misconduct on his part while acting as a lieutenant of police, and that although he may be guilty of the charge it formed no proper basis for his discharge from office as a lieutenant of police by the commission. The charge is that the plaintiff in error, in connection with patrolman Tracy and sergeant Cramer, two other police officers upon the police force in the city of Chicago, rendered a false and fraudulent ‘Messenger’s expense account’ to the Secretary of State for the return of Joseph Larkin, a fugitive from justice, from Cleveland, Ohio, to the city of Chicago, whereby they obtained from the State $48.80 in excess of the amount allowed by law for such service. Said section 12 of the City Civil Service act provides that an officer in the classified civil service shall not be removed except for cause. The commission held the obtaining of said fund unlawfully from the State was cause for the removal of the plaintiff in error as a lieutenant of police. We are of the opinion that they were right in so holding, and do not agree with the contention that no cause is sufficient for the removal of an officer in the classified civil service unless the offense is committed while the officer is acting strictly within the line of his duty as an officer. It would hardly be urged that a construction of the statute would be justified which would require the commission to retain a murderer or burglar in the classified civil service simply because he was off duty at the time the murder or burglary was committed and was not acting in the line of his duty at the time he committed one or both of said crimes.”

Defendants insist that the court had no right to review the discretion of the commission because of their charges against plaintiff, and that the only office of the writ of certiorari is to certify the record of the proceedings of the commission to the court of review, and that the court upon an inspection of the record alone, determines whether such record establishes a jurisdictional fact pertaining to the person, the subject matter and the grounds for discharge, and a proper legal procedure for the removal of the person charged with the offense; that the court’s judgment will be either that the writ be quashed, or that the record be quashed. While as a general proposition, this is a correct statement of the law, we have seen fit to go into the whole record, including the evidence, and from the entire record here we are of the opinion that the court was in error in quashing the record of the commission. In an" opinion of the late Judge Murray F. Tuley, judge of the circuit court of this county, rendered in the case of O’Regan v. City of Chicago, on November 29, 1904 (Chicago Legal News, Vol. 37, p. 150, Dec. 24, 1904), wherein that learned and revered judge clearly and succinctly set forth the duties of police officers, and the right of the head of the police department to discipline the members of the police force, it is stated that: “A police force is peculiar, sui generis, you may say, in its formation and in its relation to the city government. It is practically an organized force resembling in many respects a military force, organized under the laws of the United States and equally as important as to the functions it is required to perform.

“It is not an ordinary branch of the executive government like the mayor’s office even, your water department, the comptroller’s department, the health department, even; but, as I say, it is peculiar to itself, and to look at it in the same light that other branches of the executive department are regarded would be a mistake in a judicial decision. It is a department which requires that the members of it shall surrender their individual opinion and power to act, and submit to that of a controlling head just as much as the common soldier must surrender his own opinion and power of action to that of his commanding officer. And there is the same necessity of discipline — of regulation existing in the police department that exists in regard to the military department. Strict discipline must be enforced, and it must be enforced in a manner that is effective, and without the supervision or regulation of any other department of the state, and particularly, without any attempt on the part of the judicial department (which is a branch of the government entirely distinct and separate from the executive department), to regulate it in any way, and particularly, to regulate its discipline.

“This man goes into office as a patrolman. At the time he goes into office there is found (according to the evidence) in existence a set of rules and regulations promulgated by that department, existing for years before he became a member, which prescribes the manner in which he shall act, and his superior shall act towards him, to a very large extent. It lays down the discipline to which he is to become subject by reason of his enlistment, or rather his taking his oath of office as a policeman. It enters into his contract by which he becomes a patrolman, that he will obey the rules and regulations of his superior officer; that he will conform to the discipline prescribed; it is a part of his contract; and one part of these rules and regulations is that for certain offenses, drunkenness, absence from duty, etc., specified particularly, he shall be liable to a fine or loss of pay, for a term not exceeding ten days. That is a part of his contract. He does not stand like a state officer, who is an officer appointed for a specified term with a salary and a successor in office; he does not come within the definition as the authorities state it of a state officer; he comes within the definition of a municipal officer — one holding office, either temporarily or during good behavior, or for a specified term; and in the case at bar, under an implied contract that he will submit to certain rules and regulations in regard to that employment. ’ ’

The conduct of this officer, and the briefs filed here by his counsel in support of his right to speak and act as he pleases, clearly indicate that he possesses a seditious state of mind, that he is in open defiance of his superior officers, and that he should not be retained as a police officer.

The judgment of the circuit court of Cook county is, therefore, reversed and the cause is remanded with the direction that the court enter an order quashing the writ of certiorari issued in the cause.

Reversed and remanded with directions.

Hebel and Denis E. Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    American National Bank and Trust Company of Chicago, Appellee (Called Franklin Trust and Savings Bank), v. Eda C. Morgan et al., Defendants. Appeal of 4201 South Michigan Building Corporation, Appellant.
    Gen. No. 40,156.
    Opinion filed January 11, 1939.
    Albert Sabath, of Chicago, for appellant.
    Gottlieb & Schwartz, of Chicago, for appellee; Irving T. Zemans, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On September 20, 1926, Eda C. Morgan, a widow, conveyed to the Franklin Trust and Savings Bank, as trustee, certain real estate in the city of Chicago, to secure an indebtedness evidenced by bonds in the amount of $65,000. The mortgage trust deed, in addition to the legal description of the mortgaged property, contained a provision that “to secure the payment of the principal and interest of all of the bonds aforesaid, the mortgagor, by these presents, does convey and warrant unto the Trustee all those certain plots known as 4201 South Michigan Avenue, together with all the buildings, improvements and together with all the rents, issues and profits thereof (which are hereby specifically assigned), and together with all and singular the tenements.” The mortgage trust deed also contained a provision that “in case default shall be made in the payment of the principal or interest or any due observance or performance of any covenant or condition, the Trustee may institute a suit to enforce and protect the rights of the bondholders as by specific performance or for foreclosure or for sale of the mortgaged property, as provided by law, or for the appointment of a Receiver of the mortgaged property and the rents, issues and profits thereof. Such receivership shall extend to the end of the period of the equity of redemption regardless of the entry of the deficiency decree.” Thereafter and on October 13, 1926, Eda C. Morgan conveyed the premises hereinbefore referred to to Jesse Swader and Gertrude Swader, his wife, subject to taxes and assessments levied after the year 1925, and subject to the trust deed hereinbefore mentioned. Subsequently, a successor trustee filed a bill to foreclose the trust deed, and on June 30, 1932, a decree of foreclosure and sale was entered. The decree of sale found the amounts due on the bonds for the payment of which the trust deed was given as security, constituted ‘ ‘ a lien upon this property and premises here in question, together with the improvements thereon, and together with all rents, issues and profits thereof, superior to the claims of all defendants.” A master’s sale was had of the property and on January 11, 1937, the court entered an order confirming the master’s report of sale and distribution, and found that there was a deficiency of $45,750,11, “for which Eda O. Morgan, Patrick W. Barrett, James J. Barrett and Timothy A. Barrett are personally liable, for which judgment is hereby entered, and for which the American National Bank and Trust Company of Chicago, Successor Trustee, shall have execution. ’ ’ The Swaders, grantees of Eda C. Morgan, were made defendants in the foreclosure proceeding and were defaulted. On November 30,1937, the master issued a certificate of redemption to the 4201 South Michigan Building Corporation, which corporation had on November 26, 1937, acquired title to all of the interest of the Swaders in the property in question, by conveyance from the Swaders.

Prior to the entry of the decree of foreclosure and on June 26, 1935, the court had appointed a receiver for the mortgaged property and in the order of appointment it was provided that the tenants in possession should attorn to the receiver and pay the rents due, or to become due, on the property; that the' receiver be authorized to rent the premises, or any part thereof, for terms not exceeding one year; to insure the premises and pay the current taxes, to take proper steps to collect the rents and to apply the balance on hand as directed by the court. On December 9, 1937, the 4201 South Michigan Building Corporation filed a petition in which it set forth the various steps taken and the orders entered, as hereinbefore recited, alleged ownership of the property and prayed that an order be entered directing* the receiver to surrender possession of the property to the petitioner; that the receiver file an accounting of all rents received therefrom after December 1, 1937, and to pay such sums to the petitioner, and in the alternative, that leave be given by the court to petitioner to institute suits at law against the receiver for wrongfully detaining the property after redemption. After a hearing on this petition, and on February 4, 1938, the court entered certain findings and an order. The court found, in effect, that the American National Bank and Trust Company of Chicago, the successor trustee, had a first, prior and superior lien on all rents derived from the property and premises, for a period of 15 months following the sale and foreclosure proceeding held on December 1, 1936, that the deficiency decree is unpaid and unsatisfied, that the trustee is entitled to the rents, issues and profits until March 1, 1938, and that the petitioner is not entitled to either said rents or possession of the property by virtue of the redemption made by petitioner until after March 1, 1938. The court ordered that the petition of the 4201 South Michigan Building Corporation be denied and dismissed. This is an appeal from that order.

The petitioner, the 4201 South Michigan Building Corporation, contends that as grantees from the Swaders, and by redemption from .the sale within one year after such sale was made, it is entitled to the rents, issues and profits from the date of redemption. The American National Bank and Trust Company, on the other hand, contends that by virtue of the provisions of the trust deed, the decree of foreclosure and sale, the order of the appointment of the receiver and the deficiency decree, it has a lien upon the rents, issues and profits of the property and premises for 15 months from the date of the foreclosure sale, which is the full statutory period of redemption as established by statute, and that it has and had a right during all of said period to have the rents sequestered for application upon the unsatisfied portion of the indebtedness found to be due by the decree, and that the right to redeem, and the exercise thereof by the building corporation, did not terminate the trustee’s right to the rents and to the possession of the property. It is further contended by the trustee that the order of February 4, 1938, fully recognized the legal and equitable rights of the complainant and that they were fixed by such order.

In First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, a trust deed contained provisions almost identical with those in the instant case, and the same issue, in effect, was raised there as is raised here, and in holding that the mortgagee was entitled to the rents for the full period of redemption, the Supreme Court said:

“Under this clause in the mortgage a lien is given, by express words, upon the rents and profits, and such an equitable lien a court of equity will enforce. . . .

“Had there been no deficiency after the foreclosure sale . . . , the rents would have belonged to the owner of the equity of redemption. Under the express agreement in the mortgage, there being a deficiency . . . after the sale, the Illinois Steel Company [mortgagee] had an equitable right to have the rents and profits applied towards the payment of the deficiency decree, from the time of the foreclosure sale until the expiration of the time of redemption . . . .”

In Niccolls v. Peninsular Stove Co., 48 Ill. App. 317, the exact question arose as is presented in this case, and the same contention was made by the person claiming the rights to the rents and profits for the same period as is in issue here. It is here to be noted that the Swaders who were both made parties to the foreclosure proceeding, made no objection to the master’s report, or to his findings, or to the decree, and that no appeal was prosecuted therefrom. In the Niccolls case, the Supreme Court said:

“The appellee did not except or in any way object to the master’s report or to any of the findings of the master. In this court the appellee applied for and obtained leave to present cross-errors and thereby seeks to question the findings of the master as to the failure of the mortgagor to pay taxes and to keep the buildings insured, upon which the foreclosure proceedings rested. . . .

“The appellee might, and had it been dissatisfied with the conclusions of the master, should have presented exception to the report and obtained a ruling of the court thereupon, from which an appeal would lie; but exceptions to the report of the master cannot be preferred for the first time in an appellate court. We think the appellee concluded by the approval, without objections upon its part, of the report of the master. It can not be allowed now to question the correctness of the finding of "the master upon the evidence. Lowell v. Rock River Co., 101 Ill. 57.

‘1 By the force and effect of the agreements and conditions contained in the mortgage the right of mortgagors to the possession of the premises and to the enjoyment of the rent thereupon during the pendency of foreclosure proceedings and during the period allowed by the statute in which to make redemption was dependent upon compliance with the terms and provisions of the mortgage.

“Non-compliance empowered the mortgagees to declare the indebtedness due, though not due by the tenor of the notes, and to procure through the medium of a receiver to be appointed by the court, the possession of the premises, and the application of the rents to the payment of such indebtedness. We know of no reason why such agreements may not be entered into, and think the courts vested with ample power and jurisdiction to enforce them. Jones on Mortgages, Vol. 1, Sec. 773, 774, 775; Vol. 2, Sec. 1536; High on Receivers, Sec. 642, 643, 644, 688; Beach on Receivers, 532; 8 Amer. & Eng. Ency. of Law, pages 234 and 239, and authorities there cited. . . .

“The right of the appellant to the rents in question secured to him by the mortgage and the action of the court in appointing the receiver could not be contracted away by the mortgagor. We think the court erred in awarding any portion of the rents to the appellee.

“In our judgment the decree should have declared the right of the appellant to the rents so far as necessary to the payment of his decree, and directed the receiver to so apply the money received as rents, or at least retain such money so received until after the sale of the premises by the master. If the master should, by a sale, realize enough to satisfy the appellant’s decree and costs, then the money received for rent should be disposed of according to the contract between the mortgagor, the appellee company and the tenant.”

In Moore v. Titman, 44 Ill. 367, in considering a similar situation to that presented here, the Supreme Court stated that “after the condition is broken, the mortgagee may enter and render his security productive by the perception of the rents and profits.”

We have examined the great number of cases cited by counsel on both sides, but we feel that the law is so clearly stated in the cases cited here, that further citation of authority is unnecessary. Our conclusion is that the petitioner, the 4201 South Michigan Building Corporation, has no further or greater rights than the maker of the notes and trust deed and the Swaders, and that the court was right in awarding the rents and profits to the trustee in the mortgage in payment of the deficiency judgment. The court was therefore, also right in dismissing the intervening petition of the 4201 South Michigan Building Corporation.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


author: Mr. Justice Hebel

text:
    Chicago Park District, Successor to Northwest Park District, Appellee, v. R. E. Herczel and Company et al., Appellants.
    Gen. No. 40,177.
    Opinion filed January 11, 1938.
    Rehearing denied February 6, 1939.

      Cassels, Potter & Bentley, of Chicago, for appellant Glens Falls Indemnity Co.; Ralph F. Potter and George C. Bunge, of Chicago, of counsel.
    Lucius, Buehler & Lucius, of Chicago, for co-appellant R. E. Herczel & Co.; Albert E. Lucius, of counsel.
    Ungaro & Sherwood, of Chicago, for co-appellant Francis X. Milano; Lyman W. Sherwood, of counsel.
    Spitz, McKenna & Elmes, of Chicago, for co-appellant Eden T. Breldce; Ignatz Spitz, of counsel.
    Frank Peska, of Chicago, for co-appellant Joseph F. Gubbins.
    John O. Rees, of Chicago, for appellee; Martin G. Loeff and Harry P. Hensel, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This was an action at law, heard by the court sitting without a jury, in which the court found the issues in favor of the plaintiff, the Chicago Park District, a municipal corporation, as successor to the Northwest Park District, a municipal corporation, and against the defendants R. E. Herczel & Co., Joseph F. Gubbins, Eden T. Brekke, and Francis X. Milano, assessing plaintiff’s damages at $71,000, and also found the issues in favor of the plaintiff and against the defendant Glens Falls Indemnity Company, a corporation, upon the bond of Eden T. Brekke, as secretary and superintendent of said Northwest Park District, assessing plaintiff’s damages at $10,000, and upon the bond of Francis X. Milano, as treasurer of said district, assessing plaintiff’s damages at $20,000. Judgment was entered on February 4, 1938, upon the findings of the court in favor of the plaintiff and against the defendants ft. E. Herczel & Co., Joseph F. Gubbins, Eden T. Brekke, and Francis X. Milano for $71,000, and against the defendant Glens Falls Indemnity Company for $10,000 upon the bond of Eden T. Brekke, and for $20,000 upon the bond of Francis X. Milano.

The original complaint filed on August 11, 1934, in the name of Northwest Park District, plaintiff, against ft. E. Herczel & Co., Francis X. Milano, and Glens Falls Indemnity Company, was superseded on October 24, 1935, by an amended complaint filed by Chicago Park District, as successor to said Northwest Park District, plaintiff against the same defendants. This amended complaint charges, in substance, that on August 18, 1931, the Northwest Park District and Francis X. Milano, its treasurer paid $50,000 of the moneys of the District to ft. E. Herczel & Co., supposedly in payment of the interest due on August 1, 1931, on a $2,000,000 park bond issue, of which only $600,000 of bonds had actually been purchased and paid for by ft. E. Herczel & Co.; that on the same date, the Northwest Park District and Francis X. Milano, its treasurer, paid the further sum of $21,000 to said ft. E. Herczel & Co. for its alleged expenses in connection with the sale of the bonds to R. E. Herczel & Co.; that such payments were wrongful, illegal and contrary to law; that the defendant R. E. Herczel & Co. wrongfully accepted and retained the moneys, and was liable to return the same; and that the defendant Francis X. Milano, and the defendant Glens Falls Indemnity Company, as surety on his official bond as treasurer of the district in the penal sum of $20,000, were also liable to the plaintiff therefor.

On June 29, 1936, the plaintiff filed eight additional counts, directed against the above named and two additional defendants, Joseph F. Gubbins and Eden T. Brekke, formerly president and secretary of the Northwest Park District, respectively. Additional counts numbered one to six, inclusive, and each of them, charge a conspiracy on the part of the defendants Gubbins, Brekke, Milano, and B. E. Herezel & Co. to defraud the Northwest Park District through the aforesaid payments to B. E. Herezel & Co., which are alleged to have been illegal and unauthorized, because (1) such payments were made pursuant to an agreement to sell park district bonds at less than par, (2) such payments amounted to a diversion of trust funds, and (3) they were made pursuant to an illegal agreement to employ a lobbyist with public funds; that the defendants illegally converted the aforesaid sums to their own use, and that such payments were made by the defendants Gubbins, Brekke and Milano, as officers of the district, and received by the defendant B. E. Herezel & Co., pursuant to such conspiracy with intent to defraud the Northwest Park District of its money or property, and ask for judgment against the defendants for $71,000.

Additional count No. 7 is directed against the defendant Glens Falls Indemnity Company and alleges that said defendant was surety on the defendant Brekke’s official bond as secretary and superintendent of the Northwest Park District, in the penal sum of $10,000; incorporates the allegations of the other additional counts by reference; charges a breach of said bond, in that said Brekke “did, to-wit, on the 18th day of August, 1931, draw and approve,” the warrants or vouchers by which the aforesaid payments to B. E. Herezel & Co. were made, notwithstanding that “the said Eden T. Brekke at all said times well knew that the said B. E. Herezel & Co. did not have any valid claims against the said Northwest Park District for said sums of money,” and asks for judgment against the Glens Falls Indemnity Company for $10,000 upon the bond.

Additional count No. 8 is also directed against the defendant Glens Falls Indemnity Company, incorporates by reference the allegations of additional counts Nos. 1 to 6, and charges a breach of Milano’s $20,000 bond as treasurer, in that Milano “did, on to-wit, the 18th day of August, 1931, draw, approve and pay” the warrants or vouchers by which the aforesaid payments to R. E. Herezel & Co. were made, notwithstanding that “the said Francis X. Milano at all of said times well knew that the said R. E. Herezel & Co. did not have any valid claims against the said Northwest Park District for the said sums of money.”

Answers were filed by the different defendants to the several counts mentioned in the declaration, and judgments were entered by the court as hereinbefore mentioned, and it is from these judgments that the defendants appeal.

It appears from the evidence offered upon the trial of the case that the Northwest Park District was a park district in Cook county, Illinois, organized under “An act to provide for the organization of park districts and the transfer of submerged lands to those bordering on navigable bodies of water” approved June 24, 1895 (par. 256, sec. 1, ch. 105, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 96.403]). In the year 1934, it was superseded by the Chicago Park District, the plaintiff in this case, under the act by which the Chicago Park District was created (par. 333, sec. 1, ch. 105, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 96.501]).

In 1931, the board of commissioners of Northwest Park District consisted of the defendant Joseph F. dubbins, president, and A. E. Olson, William Rieger, Jr., Oscar C. Johnson, and Frank E. Kalteaux, who were not made defendants to this cause. The defendant, Eden T. Brekke, held the offices of secretary and superintendent, and the defendant Francis X. Milano, the office of treasurer. William J. Mannion, not a defendant, held the office of attorney for the district. All of these officers were appointed by the board of commissioners, and their duties were defined in the general ordinances of the district adopted November 1, 1915, as subsequently modified. The defendants Brelcke, as secretary and superintendent, and Milano, as treasurer, had both given bond with the defendant Glens Falls Indemnity Company as surety, in the penal sum of $10,000 and $20,000 respectively, conditioned for the performance of their respective duties “in the time and manner prescribed or to be prescribed by law. ’ ’

There was also an office staff of full time employees, likewise appointed by the commissioners, who kept the books and records of the district and performed the clerical work under the general supervision of the superintendent, consisting of E. A. Brucker, former treasurer of the district, Helen Anderson, and Muriel Newman.

The defendant Gubbins, the president of Northwest Park District in 1931, had been elected a commissioner in 1925, and served as president from 1926 until the Chicago Park District took over in 1934. He had been a deputy coroner for 9 years prior to becoming a commissioner.

The defendant Brekke, the secretary and superintendent of Northwest Park District in 1931, served in that capacity from 1924 to 1934. He also had served as a commissioner of the West Park District during part of this period.

The defendant Milano became treasurer of Northwest Park District in November, 1930, and remained in that office about 2 years. He was employed as assistant cashier in the Cragin State Bank from 1929 to 1931, when the bank closed, and prior to that, as paying teller in the Italian Trust and Savings Bank from 1922 to 1925. At the time of the trial, he was employed by the Clinton Manufacturing Company as an inspector of radio cabinets. He had never held any other public office of any kind.

In January, 1931 (William J. Mannion) the attorney for the district prepared an ordinance authorizing a $2,000,000 bond issue, which was read and adopted at a meeting of the commissioners on January 26, 1931. The ordinance provided that the bonds were to be issued “for the purpose of providing funds for the payment of land condemned or purchased for parks or boulevards, for the building, maintaining, improving and protecting the same, and for the payment of expenses incident thereto” and that “the funds realized from the sale of the bonds be and the same are hereby appropriated for the purposes herein set out, and shall be used for no other purposes whatsoever.”

• On January 27, 1931, the day after this ordinance was adopted, secretary Brekke, sent out a letter to twenty-four bond houses, including the defendant ft. E. Herczel & Co., announcing that sealed bids for the issue would be received by the board at its regular meeting Monday, February, 1931, and stating:

“These bonds are issued subject to validation by the State legislature at no extra expense to park District and approval by Chapman and Cutler without any additional expense.

“The right to reject any and all bids is reserved. The right to auction said bonds after opening of bids is reserved. Bids to be sent to the Secretary prior to said meeting.”

In the latter part of January or first part of February, 1931, Paul K. Van Winkle, vice president of the defendant R. E. Herczel & Co. met an attorney on the street in Chicago whom he had known for over 30 years. This attorney told Van Winkle that the Northwest Park District was contemplating the issuance of $2,000,000 of bonds, which would need validating by the general assembly, and suggested to Van Winkle that his firm bid for the bonds, and, if successful, employ him to secure such validation. Van Winkle testified that either in that or subsequent conversations with this attorney he agreed verbally to pay him a fee of “$70,000" for work in obtaining the requisite validating legislation, in the event that B. E. Herczel & Co. was the successful bidder for the bonds; that Holland M. Cassidy, another attorney, drew up the validating bill and that the attorney retained was to take it to Springfield and have it introduced; that he did not recall how that figure was arrived at as the charge for validating this piece of legislation, but that the amount was agreeable to B. E. Herczel & Co.

Before the meeting of the board at which bids were received, Van Winkle went to the office of the attorney for the Northwest Park District, and asked him for information on how to submit his bid. He testified he thought that the defendant Brekke was present at this conference, although he was not sure, and could not recall whether the defendant Dubbins was present or not. The witness Van Winkle testified that he was sure he talked with this attorney about his bid before submitting it to the board, and also that he was not acquainted with the attorney for the defendant, and did not recall ever having seen or talked with him.

From the minutes of the board it appears that three bids for the $2,000,000 bond issue were received at the meeting of the board of commissioners held on February 9, 1931, and that all of the commissioners and officers of the Northwest Park District were present. One bid of “par" was received from the Municipal Securities Corporation, “subject to the legality of this issue of bonds being approved by our attorneys"; another of “Two Million Dollars, subject to an allowance of $7,100 for expenses incident to the handling of this issue, it being understood that these bonds must be validated by the State Legislature, we agreeing to use our best efforts towards securing such validation," from the Hanchett Bond Co.; and a third from the defendant B. E, Herczel & Co., signed by its vice president, Van Winkle. The Herczel & Co. bid consisted of two letters, both dated February 9, 1931, one offering to pay “the sum of $2,000,000 and accrued interest” for the bond issue, “subject to approval . . . by our attorney, it being understood that these bonds must be validated by the State Legislature before issuance” and the other reading as follows:

“Referring to your proposed issue of $2,000,000 5% bonds for which we have made a proposal of par and accrued interest, it is understood and is hereby agreed that we are to be allowed the sum of $21,000 and the accrued interest on the bonds from the date of the bonds to the date that the bonds are delivered to us and paid for, for our expenses in legalizing and validating and other necessary expenses incidental to the issuing of these bonds. ’ ’

On February 28, 1931, at a special meeting of the board of commissioners, a resolution was adopted calling a special election to submit to the voters of the district, the proposition of increasing the authorized aggregate indebtedness from 2% to 5 per cent of the value of the taxable property therein. This proposition was voted on in the election of April 7, 1931, and defeated. Subsequently, the general assembly, by act approved July 3, 1931, entitled “An Act to authorize certain park districts to issue bonds where such bonds together with the existing indebtedness exceeds in the aggregate two and one-half per cent of the value of the taxable property” (par. 299j, sec. 1, ch. 105, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 139.207]) validated park district bonds authorized prior to May 1, 1931. Thereafter during the summer of 1931, the bonds were executed by the defendants Grubbins, Brekke and Milano at the Bismatck Hotel.

On July 27,1931, shortly after the validating act was passed, the board of commissioners at its regular meeting, and by affirmative vote of the entire board, authorized the payment of 144 different bills and claims against the district, aggregating $246,976.20, among which were included the items “R. E. Herezel & Co., $50,000,” and “R. E. Herezel & Co., $21,000.” The records show that the meeting was attended by all the commissioners, and by William J. Mannion, the attorney, as well as by the defendants.

Brekke testified that, as superintendent, he examined all of these 144 bills before the meeting, and as secretary, presented them to the board for approval, in accordance with the general ordinances prescribing the duties of these officers, and the established practice, and that the bills of R. E. Herezel & Co. for $50,000 and $21,000 which the board approved at that time, were “the bills that were covered by the February meeting for the bond issue.”

Some time after the meeting of July 27, 1931, when the resolution directing the payment of bills was adopted, and prior to August 18,1931, checks Nos. 1086 and 1087 were prepared, drawn on the maintenance fund account of the Northwest Park District in the Central Trust Company of Illinois, and payable to R. E. Herezel & Co., dated August 18,1931, for $50,000 and $21,000, respectively. The $50,000 check bore the legend “Northwest Park District, in settlement of the following bills: 8/18/31, To R. E. Herezel & Company, Int. due 8/1/31 on Bond Issue 19, $50,000” and the $21,000 check bore the legend “Northwest Park District in settlement of the following bills: 8/1/31, To R. E. Herezel & Company, in part payment of expenses in connection with $2,000,000 Northwest Park Issue dated Feb. 1, 1931, as per agreement dated Feb. 9, 1931, $21,000.” Annexed to each of these checks was a voucher bearing the same number, date and legend, and the statement, “The above items, as supported by bills hereto attached, were settled by a check bearing the number and date hereon indicated drawn on the Central Trust Company of Illinois payable to the order of B. E. Herezel & Company for” $50,000, on voucher No. 1086, and $21,000, on voucher No. 1087; that all of these checks were executed by the defendants, dubbins, as president, and Milano, as treasurer of the Northwest Park District, and countersigned or approved by Brekke, as secretary, on or about August 18, 1931. The vouchers attached to the two checks payable to B. E. Herezel & Co. were also approved in writing over the signature of the defendant dubbins, as president. At the time they were so executed, as above stated, there was not enough money in the park district’s various bank accounts to cover them, and would not be until the proceeds of the bond issue were secured and deposited in the Construction Fund account.

On or about August 18, 1931, the park district’s attorney, and A. E. Brucker, a member of the full time office staff, appeared at the office of B. E. Herezel & Co. with the two executed checks payable to B. E. Herezel & Co. for $50,000 and $21,000 just referred to, $300,000 of bonds, and a treasurer’s receipt, signed by Milano as treasurer, for the purchase price of those bonds.

On August 19, 1931, Van Winkle, on behalf of B. E. Herezel & Co. delivered a check for $51,000 to the attorney in payment of his fee for the work in connection with validating the bond issue. Van Winkle testified that by the time the act was passed and the bonds were ready for delivery, the bond market had fallen so much that B. E. Herezel & Co. faced a loss on the deal; that he persuaded the attorney for this bond house to cut his fee from “$70,000” to $51,000, and that the remaining $20,000 was retained by B. E. Herezel & Co.

Under date of December 1,1931, B. E. Herezel & Co., by Bichard E. Herezel, president, formally notified the Northwest Park District of the termination of this agreement, ‘ ‘ due to the refusal of our attorneys, Chapman & Cutler, to render an approving legal opinion on the balance of the Northwest Park District bonds.”

The remaining $1,400,000 of bonds of this issue still remains in escrow at the First Union Trust & Sawings Bank.

The defendants, Brekke, Gubbins and Milano, insist they are not guilty of fraud or conspiracy against the Northwest Park District, but that they acted pursuant to the orders of the board of commissioners, and in acting for it point to the fact, (1) that the contract with B. E. Herczel & Co. was entered into and approved by affirmative vote of the entire board at its meeting of February 9, 1931; (2) that the payment of $50,000 and $21,000 to B. E. Herczel & Co. was ordered by the affirmative vote of the entire board at its meeting of July 27, 1931; and (3) that these payments, as well as all transfers between the construction fund and the maintenance fund, were duly reported in the treasurer’s report for the period from July 1, 1931, to September 30, 1931, and approved by affirmative vote of the entire board at its meeting on October 26, 1931.

It is well to have in mind and consider the manner in which the approval of these vouchers was brought to the attention of the board of commissioners. It appears that Brekke, who was secretary and superintendent, was required to present to the board for approval the several vouchers necessary to pay accruing bills against the district, and on the occasion when the vouchers for $71,000 were presented to the board for approval they were included in the 144 different bills and claims against the district aggregating $246,976.20.

On the face of this transaction it is apparent that this money was to be used for a purpose not in accordance with the law of this State. The money which was finally received on these vouchers payable to the bond house of B. E. Herczel & Co. was to be used for the purpose of validating the bond issue of $2,000,000.

The very fact that these vouchers were issued for the purpose mentioned would arouse suspicion as to whether this was a legitimate transaction or not. When we consider that the money was to he paid to an attorney, $51,000 of which was delivered to his partner, and that he did not receive the full amount of $71,000, for the reason that one of the members of the bond house persuaded him to cut his fee from “$70,000” to $51,000, and the remaining $20,000 was retained by the bond house, this was enough to arouse suspicion as to the legitimacy of the transaction, and more especially when we come to examine the two checks in question and find that the purpose for which this money was to be used is written on them.

On the question of knowledge, the evidence established from the testimony of Van Winkle, an official of the bond house, that the $71,000 was intended as a fee to be paid to an attorney for procuring legislation to validate the bond issue and, at the time, that fact was discussed with the defendants, Brekke and Gubbins, and was discussed at the meeting at which the contract was entered into and at which Milano was present.

The courts have held that a contract based upon an illegal or immoral consideration is unenforceable, and this proposition of law has been well considered by counsel. It is elementary that a contract to perform services which would tend necessarily to improperly influence legislation, public contracts or the administration of justice by reason of contingent compensation provided therein, is unenforceable.

In McQuillin on Municipal Corporations, Vol. 5, p. 945, the author lists as among the expenditures or indebtedness held unauthorized the following: lobbying to obtain an increase of municipal powers and lobbying expenses in securing beneficial or opposing legislation and states that some courts have held that, without express authority, a municipal corporation has no power to expend the public revenue to obtain or oppose legislation before the State legislature or the congress; that contracts to procure legislation, either by the passage of statutes or ordinances, are generally held void on the ground of public policy, and of course this rule would apply to the contract now before us— the subject of the litigation.

And then in the case of Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466, the court said: “It makes no difference whether the parties were actually, guilty of bribery and corruption under the contract or not. If the performance of the obligations imposed by the contract has an evil tendency or furnishes a temptation to use improper means, the contract is illegal and contra bonos mores.”

Other cases might be cited upon this subject, but we believe the rule is well established, and the citing of further authorities would add nothing to what we have already stated.

The money that was received and deposited to the credit of the Northwest Park District was in the nature of a trust fund and could only be used for the purpose for which the bonds were issued and sold to the general public. This money was deposited to the credit of the construction fund, and was so reported in the treasurer’s report for the period from July 1, 1931, to September 30, 1931. Subsequently, however, the individual defendants in this litigation transferred the moneys in the construction fund to the maintenance fund, and it was from this fund that the $71,000 was paid to R. E. Herczel & Co., the holder of the checks. The payment so made was improper, premature and unauthorized. No authority was given to dubbins, Breklce and Milano to make the transfer to the maintenance fund. The authority to make such transfer rests in the park board.

Acts such as we have indicated, show that the individual defendants acted without authority in the payment we have outlined, and it was a violation of their duties in connection with this trust fund, and having acted without authority they are liable, and the court was justified in entering judgment such as was entered in the record as we have it before us.

For the reasons stated the judgment entered by the court against these several defendants is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Harry I. Langson, Appellant, v. Sol H. Goldberg et al., Appellees.
    Gen. No. 40,198.
    Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.
    Joseph B. Gilbert, of Chicago, for appellant.

      Willard C. Walters, of Chicago, for appellee Sol H. Goldberg.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a decree dismissing his bill for want of equity on motion of the defendants.

The facts charged in the complaint are that on May 15,1928, 32 South State Street Building Corporation, an Illinois corporation, now known as South State Street Building Corporation, issued and sold to the public a bond issue totaling $1,100,000, consisting of 2,530 bonds. The bonds were secured by a trust deed, dated May 15, 1928, conveying to American Trust & Safe Deposit Co., as trustee, the long-term leasehold from the board of education of the city of Chicago, which had theretofore been assigned to the South State Street Building Corporation by the original lessees, to the premises located at 32-34 South State street, Chicago, Illinois. Bonds of a par value of $230,000, have since been paid and canceled; the remaining bonds, totalling $870,000, have not been paid in whole or in part and are still outstanding. South State Street Building Corporation has at all times been in possession of the premises, collecting the rents therefrom. On December 13,1934, the circuit court of Cook county, by its decree, removed the American Trust & Safe Deposit Co. as trustee under said trust deed and appointed Fred E. Hummel as successor trustee.

The complaint further charges that by the terms of article III of the trust deed, the grantor. South State Street Building Corporation, covenanted to make payments to the trustee on the 15th day of each month, beginning on the 15th day of November, 1929, and continuing to the 15th day of April, 1943, for the purpose of creating by such payments a sinking fund for the annual redemption of a portion of the outstanding bonds. The monthly payments so covenanted to be made into the sinking fund were graduated in amount, beginning with the sum of $2,000 each month during the first year, gradually rising to the sum of $3,666.67 each month, the total amount accruing to the 15th day of November, 1937, being $232,000.08. The annual redemption date, as provided by said article III of the trust deed, was to be the 15th day of May in each year, beginning with the 15th day of May, 1930, the redemption to be conducted by the trustee in the manner set forth in said article of the trust deed, upon public notice to the grantor and the holders of the bonds chosen by the trustee by lot for redemption, at the redemption price of 101 per cent of the principal amount of the bonds, chosen for redemption plus accrued interest.

It is further charged that any bonds paid or bought or redeemed by the grantor, or the guarantor, or by anyone in grantor’s behalf, could not be reissued and was to be forthwith canceled, and could not, therefore, be called for redemption from the sinking fund.

It also appears that by a separate instrument in writing, executed on May 15, 1928, Sol H. Goldberg, one of the defendants, guaranteed, among other things, the performance by the grantor of each of the covenants by it made in said trust deed in the manner and at the time or times therein set forth, which were to be kept by the grantor, the said guaranty running expressly to the holder or holders from time to time of said bonds, said American Trust & Safe Deposit Co., as trustee, for the benefit of the holders from time to time of said bonds, and the American Bond & Mortgage Co., a Maine corporation.

The bill charged as a fact that no payment has been made into the sinldng fund by the grantor, South State Street Building Corporation, or by anyone in its behalf; that there has accrued, and remains wholly unpaid, the sum of $232,000.08, which amount the grantor has wholly failed to pay, in direct violation of article III of the trust deed; that none of said bonds at any time outstanding has ever been called for redemption under the provisions of article III of the trust deed, nor have any of said bonds ever been redeemed, either under the provisions of article III or those of article IY of the trust deed.

That due to the bankruptcy in 1933 of the McCrory Stores Corporation, the original sublessee of the grantor’s premises, the abandonment by the bankrupt of the premises and the subsequent subletting of the premises at greatly reduced rentals, the grantor has not since the year 1933 earned and received sufficient income to pay ground rents, taxes and interest on the aforesaid bonds; that the plaintiff is advised and believes that ever since the year 1933, the interest on the outstanding bonds has been paid with funds largely advanced to the grantor by Sol H. Goldberg, the guarantor of the bonds, and represents that the leasehold estate is scant and insufficient security for the outstanding bonds in the amount of $870,000 and that, but for the guaranty of Sol TI. Goldberg, the bonds would now be practically valueless; that the plaintiff and all other holders of the outstanding bonds will be irreparably injured unless the court decree that the said Sol H. Goldberg, under the terms of his guaranty, make good the grantor’s default in respect to the sinking fund payments in the amount of $232,000.08, to be disposed of in accordance with the provisions of article III of the trust deed, to the end that gradual redemption of the outstanding bonds be made, as contemplated by the trust deed.

It also appears that the grantor and the guarantor now claim that the performance by them, or either of them, of the sinking fund provisions of the trust deed, was waived by a substantial portion of the bondholders, and the guarantor released from his guaranty, and that by virtue of the said pretended waiver and release, the acquisition by them, or either of them, of bonds of a par value of $230,000 and their cancellation constituted a compliance and performance of the sinking fund provisions of the trust deed; that the claim is based on a circular letter issued by the grantor, under date of May 15,1935, to the bondholders, in which three distinctly deceitful and fraudulent representations were made in order to induce the bondholders to waive default in the performance of the sinking fund provisions of the trust deed by authorizing the trustee to accept bonds at their face value in lieu of cash payments to the credit of the sinking fund, and to release the guaranty of Sol H. Goldberg, in consideration of the grantor paying the interest then due, together with a premium of l/10th of 1 per cent of the principal of the bonds, and the bill sets forth the fraudulent representations which were made in the letter.

The plaintiff states that he is now and has been since June, 1928, the holder and owner of three of the outstanding bonds, in the total amount,of $700; that the bonds are secured by the trust deed in question, and that he brings this suit on behalf of himself and all the other bondholders similarly situated, as the representative of their interests.

Then follows the prayer for relief, and the motion for dismissal of the bill as filed by Sol H. Goldberg, one of the defendants.

The relief prayed for in this case is that the court declare by its decree the pretended waivers and releases by some of the bondholders of the defaults of the grantor in the performance of the covenants of the trust deed and of the guaranty of Sol H. Goldberg null and void and of no effect, and declare the guaranty of Sol H, Goldberg to be in full force and effect, notwithstanding such waivers and releases. It is further prayed that an accounting be taken to determine the amount due and owing from Sol H. Goldberg by virtue of his guaranty by reason of the defaults of the grantor to make the payments stipulated in the trust deed to be made to the credit of the sinking fund for the redemption of outstanding bonds, and that Sol H. Goldberg be decreed to pay .to the trustee appointed by the court what, if anything, shall upon the taking of such accounting appear to be due from him under his guaranty, and that the amount decreed to be paid by Sol H. Goldberg shall be disbursed for the purpose of redeeming the outstanding bonds, subject to the order of the court.

The rule applicable to an action of the character before us is that a contract which by its terms calls for a succession of acts, whose performance cannot be consummated by one transaction and which requires protracted supervision and direction, cannot be specifically enforced. Harley v. Sanitary Dist. of Chicago, 54 Ill. App. 337; Grape Creek Coal Co. v. Spellman, 39 Ill. App. 630; that equity, when it takes jurisdiction to enforce the specific performance of a contract will enforce it in all its parts, and will not undertake such enforcement where the contract calls for a succession of acts whose performance cannot be consummated by one transaction, and which requires protracted supervision. Hernreich v. Lidberg, 105 Ill. App. 495.

From the bill it appears that at the time of filing $230,000 was to have been paid into the sinking fund, and that a balance of $870,000 was to be paid in monthly instalments thereafter as provided for by the terms of the trust deed. From an examination of the complaint, the trial court is unable to enter a final decree upon the facts as alleged therein. It is apparent from the facts that the court was controlled by a contract which by its terms called for a succession of acts; that a decree, if entered upon the facts as they are alleged, would require protracted supervision and direction by the court in the enforcement of the provisions of the guaranty, as well as the trust deed, and the court would be required to retain jurisdiction for that purpose.

It is well to have in mind the fact that the payments required to be made by the guarantor and deposited in a sinking fund, were to be made in monthly instalments and would require the court to supervise such payments in the future.

The rule of law requires in specific performance cases that the performance of the contract entered into may be enforced and a decree entered which will enforce all of its parts by a decree, and as we have already indicated, the enforcement of the contract would require considerable time and include a series of acts to be performed in the future and at the time provided for in the contracts.

Other questions have been called to our attention, but in view of our conclusion it will not be necessary to consider the points that have been raised in the briefs of the parties. The decree entered by the court in this case therefore is affirmed.

Decree affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Henry Kijowski, Minor, by Joseph Kijowski, His Father and Next Friend, Appellee, v. Times Publishing Corporation, Appellant.
    Gen. No. 40,210.

      Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.
    Edward W. Eawlins and James F. Wright, both of Chicago, for appellant; Fay Warren Johnson, of Chicago, of counsel.
    Alfred Eoy Hulbert and George F. Callaghan, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This suit was instituted by the plaintiff, a minor, by his father and next friend, against the defendant to recover damages on account of personal injuries sustained by him on August 22, 1936, as the result of an automobile accident (a collision between a newspaper truck of the defendant, in which the plaintiff was riding as a helper, and a squad car of the Chicago city police), which occurred on said date at the intersection of Wood and Ohio streets in the city of Chicago, Illinois. A trial was had before the court and a jury. The jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $27,500. Judgment was entered thereon, and from this judgment the appeal is taken by the defendant.

The plaintiff alleges in his amended complaint that he was 15 years of age when the accident happened. For a long time before the accident the newspaper company permitted its drivers to take minors for rides on the newspaper trucks, and permitted these minors to get on the trucks at the loading platform, and that “these minors, including the minor plaintiff, became and were the individual helpers of the various drivers aforesaid, in the matter of the delivery and sale of the newspapers aforesaid.”

Paragraph 5 of the complaint charged that the driver, “with actual or constructive knowledge of the corporate defendant, . . .” invited and requested the minor plaintiff to ride on the truck and assist the said driver in the delivery and circulation of the newspapers.

Paragraph 6 of the complaint charged that on the day of the accident “the minor plaintiff was riding in one of the newspaper trucks aforesaid, which was then and there being driven by Frank Antker, at the invitation and request of Frank Antker, with the knowledge, actual or constructive, of the corporate defendant upon the business of the defendant, ’ ’ and the complaint further charged that there was negligence by reason of which the plaintiff was injured and, consequently, suffered damages.

After the trial began, the defendant, by leave of court,-filed'an amended answer. This amended answer denied the various charges of the plaintiff in his declaration. ‘ With the amended answer the defendant also filed two special or separate defenses. In the separate defenses the defendant alleged that it was operating under and bound by the provisions of the workmen’s compensation law of Illinois, and admitted the following: Frank Antker (the defendant truck driver) was, at the time of the happening of the accident and injury, an employe of the defendant engaged in the delivery and distribution of newspapers for the defendant; the minor plaintiff “ . . . was employed by the said Frank Antker for hire to assist him, the said Frank Antker, in and about the work of distributing and delivering newspapers for the defendant, and was at the time of the accident riding on the truck and assisting the said Frank Antker in the work of distributing and delivering newspapers; . . . that at the time of the accident and injury to the minor plaintiff, it was the custom and practice among drivers of the defendant to employ persons to ride on the trucks and assist them in the delivery and distribution of newspapers for the defendant, and that said custom and practice was known to and acquiesced in by the defendant. ’ ’

In both of these special defenses it was_ alleged that the minor plaintiff was operating under and bound by the provisions of the Workmen’s Compensation Act of Illinois, and therefore had no right to this common law action. It was also alleged by the defendant in its special defenses that the boy was employed by the driver to assist him in the work of delivering and distributing newspapers, and that the plaintiff was bound by the provisions of the Workmen’s Compensation Act.

.To these special defenses the plaintiff filed a reply in which the plaintiff stated that the plaintiff ought not to be barred from having his common law action, because at the time of the accident the plaintiff was not working or bound by the Workmen’s Compensation Act.

The facts are, from the evidence heard by the court and jury, that on August 22,1936, the defendant Times Publishing Corporation, printed the Daily Times, a city newspaper, at its plant on Wacker drive just west of Wells street, in the city of Chicago. It distributed its papers to various sales points of the city of Chicago by means of motor trucks operated by drivers in its employ. Frank Antker, who was originally made codefendant in this suit, was one of defendant’s drivers engaged in the distribution of newspapers for it on the near northwest side of the city of Chicago. He employed the minor plaintiff to help him in the delivery and distribution of newspapers, and paid him therefor $3 per week and furnished him with one meal per day. This was along about the middle of August, 1936. The plaintiff at this time was a boy about 15 years of age. His duties were to help load the papers for Anther’s route, then ride with Antker, count the papers for the newsstands, or different delivery points on the route (man y of the deliveries were made to stores), pick up and return the papers from the stands and stores, bind them in bundles, and help load them on and off the truck. Antker drove a small Daily Times Ford truck while the plaintiff was working with him. Antker had 80 stops on his regular route and 100 stops for the Sunday edition delivered on Saturday nights. The plaintiff worked as Anther’s helper daily for 10 days until the accident in question occurred. Antker paid the plaintiff $3 per week for 1 week, bought him a meal a day, and gave the boy’s mother the balance of his time.

On August 22, 1936, Antker and the plaintiff were at work on their route and were driving north on Wood street, a north and south street, in Chicago. A stop on the route had been made at Wood street and Grand avenue. Grand avenue was one block south of Ohio street. The next stop was at Wood and Erie, with Erie being one block north of Ohio. At the intersection of Wood and Ohio streets their truck collided with a squad car traveling west on Ohio street. The squad car was on its way in answer to a riot call at Chicago avenue and Leavitt street.

All the witnesses who testified were witnesses for the plaintiff. The only testimony offered by the defendant was a stipulation or admission of record that the defendant was engaged in an enterprise to which the provisions of the Workmen’s Compensation Act automatically applied, and the plaintiff’s minor did not, nor did any of his legal representatives at any time within 6 months after the happening of the accident in question, file with the industrial commission a rejection of his right to the benefits under the Workmen’s Compensation Act.

One of the questions called to the attention of the court by the attorney for the defendant is that the trial court erred in refusing to instruct the jury to find the defendant not guilty at the close of all the evidence, as requested by the defendant, for the reason that the undisputed evidence in the case shows that at the time of the happening of the accident and the injuries resulting to the plaintiff, the plaintiff and the defendant were operating under and bound by the provisions of the Workmen’s Compensation Act of the State of Illinois, and that the plaintiff’s right of recovery, if any, against the defendant was under the Workmen’s Compensation Act and not at common law.

The theory upon which the defendant questions the action of the trial court is that at the time of the happening of the accident in question the plaintiff was an employe of the defendant under an implied contract of hire, and that his injury arose out of and in the course of his employment, and therefore, his remedy, if any, against the defendant was under the Workmen’s Compensation Act of Illinois, and not at common law.

Chapter 48, par. 142, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 143.20] of this act, as amended, provides in part as follows:

“Second — Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, and including aliens, and minors who, for the purpose of this Act shall be considered the same and have the same power to contract, receive payments and give quittances therefor as adult employees. ...” And this statute provides in par. 144, that

“ (i) — In case the injured employee is under sixteen years of age at the time of the accident and is illegally employed, the amount of compensation payable under paragraphs (a), (b), (c), (d) and (e) of this section shall be increased fifty percentum.” So, in the discussion of the question called to our attention by the defendant, it is necessary to consider the facts as they appear in the record and to which we have referred.

It is to be noted that this boy had been employed only 10 days when the accident occurred. So far as the record discloses it does not appear that any of the governing agencies of the defendant acquiesced in the employment of this minor, and in order to bind the plaintiff by the provisions of the Workmen’s Compensation Act this must appear from the facts and circumstances. It will be necessary to refer to some of the authorities cited by the defendant. The case on which the defendant relies is entitled Larson v. Independent School District No. 11J, 53 Idaho 49, 22 P. (2d) 299, in which Larson was employed under a written contract to do janitor work at $70 a month, and his wife assisted him in doing the work and was killed by falling or slipping and striking her head on a mop bucket. The question there was whether or not she was an employe of the school board. In passing upon the question the Supreme Court said: ‘ ‘. . . where one is requested by an employe to assist in doing such employe’s work in the furtherance of the business of the master, and such assistant does such work with the knowledge and acquiescence of the employer, such assistant thereby becomes in effect an employe. . . . ” This being the rule so far as that authority is considered, it would have a particular bearing upon the question in the instant case.

If knowledge as well as acquiescence was necessary in the employment of the boy, then the record as to fixing his employment is silent.

Then, again, we find that in passing upon the facts involved in the case of White v. San Antonio Waterworks Co. (Tex. Civ. App.), 29 S. W. 252, the Supreme Court held that there was evidence from which the jury found that a man named Wilson was an employe of the Waterworks Company, and in doing so used this language : “We are of the opinion that there was evidence from which the jury might have found that Wilson was an employe of the Waterworks Company. . . .”

Now the jury in the instant case did find by its verdict that the plaintiff’s minor was not an employe of the defendant company, and therefore could maintain his common law action.

In the case of Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110, cited by defendant’s counsel, the court in its opinion said:

“The evidence in this record shows plainly that for many years there has been a custom, which must have been well known to those in charge of appellant’s yard, for the car pushers and others, in their work of handling coal, to employ a boy as a water carrier, who kept them supplied with water, and who sometimes, at the request of such employees, was expected to go for beer.” And the defendant suggests to this court that the plain meaning of the Purtell case is that an employe of an employe on the master’s premises for a purpose connected with the master’s business also must be treated as an employe.

The answer to this suggestion is that there is nothing in the record to show there was a custom which would have any particular significance in disposing of the facts in this case. The boy certainly did not know of any custom, and there is no evidence that the defend-0 ant was advised of a custom, of employes hiring men to help them in carrying on the business of the defendant. As we have already indicated, the whole question depends upon the acquiescence of the employer in the employment by one of its agents of the person who was injured, as to whether it came within the provisions of the statute.

In Johnson v. Wisconsin Lumber & Supply Co., 203 Wis. 304, 234 N. W. 506, it appears from the statement of facts that a truck driver who was involved in an accident before the accident to the plaintiff occurred, telephoned his employer about the situation and was told to get help, and he replied that he already had help. Therefore, the person who was assisting was 'regarded as an employe, because his assistance was with the knowledge and consent of the employer. The truck driver engaged the plaintiff to assist him in an effort to release the truck, which was stalled in a hole and finally removed by the tractor driven by the plaintiff, who was injured.

From an examination of the authorities it is clear that there must be evidence which would establish that the person seeking to recover in an employment case was in the employment of the master, with the master’s knowledge, acquiescence and consent, and in case of injury the person injured would be subject to the workmen’s compensation law.

We considered the facts in the record, and are of the opinion there is nothing which would bring this boy within the provisions of the act; it was not necessary for him to give notice within 6 months after his injury that he did not care to take advantage of the workmen’s compensation law.

The question as to the right of this minor to institute suit by his father and next friend is questioned because of the provision of the statute that has been called to our attention, par. 143, sec. 6, ch. 48, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 143.21] of the workmen’s compensation law, which provides in part:

“Provided, further, that any illegally employed minor or his legal representatives shall, except as hereinafter provided, have the right, within six months after the time of injury or death, to file with the commission, a rejection of his right to the benefits under this Act, in which case such illegally employed minor or his legal representatives shall have the right to pursue his or their common law or statutory remedies to recover damages for such injury or death; and provided, further, that no payment of compensation under this Act shall be made to an illegally employed minor or his legal representatives, unless such payment has first been approved by the commission or any member thereof, and if such payment has been so approved such payment shall be a bar to a subsequent rejection of the provisions of this Act.”

No payment has been made to this plaintiff under the provisions of this act, so that question is not involved. The question which concerns us is whether the plaintiff is barred by reason of failure to file with the commission a rejection of his rights to the benefits under this act, in case it appears from the record that he was an illegally employed minor.

The thought that seems to be foremost in the minds of the court is whether or not the plaintiff is bound by the provisions of this act. The defendant’s position is that the plaintiff is subject to the provisions of the compensation law, and in order to maintain the instant suit it was necessary for him to file a rejection, as required by the statute. The plaintiff, however, in order to be bound by its provisions must have knowledge that he is subject to the provisions that require him to file a rejection.

On that phase of the case the record is silent. The record does show that the boy had been employed on this truck for a period of 10 days to deliver the newspapers, when this accident occurred in which he was injured. The boy being a minor and not having a legal representative it certainly would seem but reasonable to assume from the facts that he did not have knowledge of the conditions under which he was laboring, and not having that knowledge, as required by the statute covering employment of the character in which he was engaged, he was in a position to maintain his action for the recovery of damages caused by the wilful conduct of the driver of the truck.

Another theory we have in mind is that the defendant at no time tendered or offered to the plaintiff the amount due as provided by the Workmen’s Compensation Act, and the import of the statute is that the employe is to be paid promptly if he is within the provisions of the act. This attitude of the defendant would indicate, at least, that it did not consider its liability as being one imposed by the Workmen’s Compensation Act.

The liability of the defendant rests largely upon whether at the invitation of the driver of defendant’s truck the plaintiff in accepting this invitation did so to render assistance to the driver in the delivery of newspapers for the defendant upon the terms suggested in this opinion.

An interesting case which we believe would enlighten us in the discussion as to liability of the defendant is that of Radatz v. Tribune Co., 293 Ill. App. 315. In this case the driver of the truck was confused about the location of the place where he was to go as directed by his master, and seeing three boys in front of the school, inquired of them where Loomis street was, and told them that he wanted to go to 31st and Morgan streets. In response to this question one of the boys replied: “Let me get on and we will show you.” Two of the boys got on the seat, while one stood on the running board of the truck. While in the course of the driver’s journey it appears that the plaintiff together with other boys, was on the tailgate of his truck when the driver backed up against a lamp post at the northwest corner of the intersection of Farrell and Lyman streets in Chicago, and was injured.

The court in discussing the question of liability of the defendant for the injury of the boy points to the fact that the driver had received orders from his superior not to allow any person on the truck or wagons unless they were in the employ of the defendant company, and it was upon this question that the court said : “The defendant vigorously contends that the instruction should have been given because it says there was no evidence in the'record tending to show, or from which it could reasonably be found, that the driver in inviting plaintiff to ride on the truck was acting within the scope of his employment and within the scope of defendant’s business so as to make defendant liable for negligently injuring plaintiff. While a large number of cases from different jurisdictions are cited, defendant contends that the case falls squarely within the rule announced by this court in Scott v. Peabody Coal Co., 153 Ill. App. 103; Collins v. City of Chicago, 187 Ill. App. 30; and Collins v. Noll Baking & Ice Cream Co., 226 Ill. App. 124. Defendant says the rule to be deduced from these cases is, ‘If a servant employed by a master in the driving of a . . . wagon has been instructed not to permit boys to ride with him on such wagon and violates such instruction and the boy riding upon such wagon is injured, the master is not liable. ’ There are, we think, two answers to this contention. In the first place, each of the three cases cited and relied on are clearly distinguishable from the instant case in that the boys who were invited to ride upon the vehicle and did so were riding simply for their own pleasure, while in this case the purpose of the boys in accepting the invitation to ride upon the truck was at least partly to render assistance to the driver in the transaction of the business he was employed to do and was doing for the defendant corporation. In the second place, we think the doctrines announced in these Appellate Court opinions have been very much modified by rules of law subsequently announced by the Supreme Court, particularly in the case of Hayes v. Sampsell, 274 Ill. 258. In that case it appeared that Hayes, a boy 10 years of age, was acquainted with the motorman operating one of defendant’s street cars. The motorman, seeing the lad on the street in the down town district, invited him to ride home on the .street car. Before the termination of the journey the boy was injured through the negligent starting of the car by the servants of defendant. Plaintiff testified that he did not pay any fare and that he did not intend to pay any. There was a conductor in charge of the street car, and it was the duty of the motorman to signal the conductor in case there was a passenger on the platform, where the boy stood with him. The motorman did not so signal. Upon suit by the plaintiff it was contended for defendant that the plaintiff was not a passenger but at most a mere licensee, and that defendant owed no duty except not to wantonly injure him. On the other hand, the plaintiff contended that although not a passenger in the strict sense of the term, he was rightfully on the car and that the defendant owed to him the duty of reasonable care. ... In reply to the contention of the defendant that the boy was a trespasser or mere licensee and that no duty existed, therefore, except to refrain from wilfully or wantonly injuring him, the court said: ‘Those cases, however, apply to adults and are not meant to apply to the case of a child of immature age. The question here is not as to the duty of plaintiff in error toward adults, but is, what is that duty in respect to a child of. immature years 1 An adult certainly has no right to enter a car, such as that boarded by defendant in error, except as a passenger. If he should do so upon the invitation of one in charge of the car and without any expectation of paying his fare he will be bound to know that such an act is improper and will be held to be in collusion with the one in charge of the car to defraud the street car company. A child who has not yet arrived at the age of discretion and who might innocently accept such an invitation is not held to such a strict accountability. ’ ’ ’ And the court in further discussing the cases cited as authority, said this in the closing words of its opinion:

“Without discussing in detail all the cases cited in the briefs, which would extend this opinion unduly, we think the principle of law announced in the above case is controlling and reasonable. Notwithstanding the direction given by defendant to the driver not to let any persons other than employees ride on the truck, it appears that while he was in the course of his employment and for the purpose of assisting him in carrying out the duties of that employment, he invited these boys to ride upon the truck. He disobeyed his instructions but he disobeyed while in the course of his employment and about the master’s business. ’ ’

The suggestion made by this court applies with equal force to the facts as they appear in the record before us. Here the boy was invited by a driver of one of the trucks of the defendant to aid and assist him in the delivery of newspapers printed by the defendant, and in order to carry on the business for which these newspapers were printed. The boy was induced to and did help the driver deliver papers at the location where this work was carried on by the defendant.

The collision in question took place between the defendant’s truck and a police squad car, which was westbound and giving audible signal by using a siren, in response to a riot call. The newspaper truck, whose driver had 80 stops to make, was northbound and the driver was operating the truck at a speed estimated to be between 60 and 65 miles an hour. So, the question of the operation of the automobile truck was for the jury to consider, and from the verdict the jury found that the driver was negligent in attempting to pass in front of the approaching squad car, which under the statute had the right of way. The jury was instructed as to the provision of the statute governing the operation of the automobile at the time. Chapter 95%, par. 169, art. IX, sec. 72(a), Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.201], provides:

“(a) Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand' edge or curb of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.”

The question of fact as to whether the driver of the newspaper truck was guilty of wilful and wanton conduct in the operation of the automobile truck was for the jury, and we believe the court did not err in refusing to peremptorily instruct the jury to find the defendant not guilty as to the second count of the amended complaint, which charges wilful and wanton conduct in the "operation of the automobile truck.

A number of instructions of the court, which were given at the close of the hearing, are complained of, and we must bear in mind that only evidence offered by the plaintiff was heard by the jury, the defendant not offering any, except the stipulation we have mentioned regarding proof, but no fact evidence was offered by the defendant, or heard, and the instruction complained of was one offered by the defendant, but refused. This instruction is as follows:

“If you believe from the evidence in this case that at the time of the happening of the accident and injury in question to the plaintiff, Henry Kijowski, he was employed for hire by the said Frank Antker to assist him, the said Frank Antker, in the delivery and distribution of newspapers for the defendant; and if you further believe that at the time of the accident he was riding on the truck in question and assisting the said Frank Antker in and about the distribution of newspapers for the defendant, and that at said time and prior thereto it had been the custom of the drivers of the defendant to employ boys to ride with them upon the trucks of the defendant and assist them, the drivers, in and about the distribution of newspapers for the defendant; and if you further believe from the evidence that the defendant knew of said custom and acquiesced in same, then and in such case the plaintiff, Henry Kijowski, is not entitled to recover.”

It would have been error to give this instruction to the jury for one of the necessary elements in this case is that the defendant knew of the custom and acquiesced in the same. The defendant not having offered any evidence, and none being in the record from which the jury could determine the question as to whether there was a custom and as to whether the defendant acquiesced in the same, it would be, as we have stated, error to advise the jury of said fact.

Finally, the question is before this court as to whether the verdict of the jury for $27,500 and the judgment entered thereon is excessive.

This young lad is permanently handicapped by the loss of a leg, which was amputated as the result of the accident, and having considered the reasons offered by the defendant we are not satisfied with counsel’s argument that the verdict is excessive. The contention that the court should 'take into consideration the economic condition of the times, and that they are much worse now than they were in the year 1922 or 1925, and that defendant companies, although not using the word “defendant,” are less able to pay damages, is not very convincing. We believe the verdict of the jury is not excessive. Therefore the judgment is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.