author: Hr. Presiding Justice Fulton

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, Plaintiff, v. Fon du Lac State Bank, Defendant. Reconstruction Finance Corporation, Intervening Petitioner, Appellant, v. Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, and Charles H. Albers, Receiver, Fon du Lac State Bank, Appellees.
    Gen. No. 9,280.
    Opinion filed April 14, 1941.
    Clark B. Montgomery, of Peoria, and Lee Walker, L. D. Wilson and B. E. Steinbrecher, all of Chicago, for appellant.

      John E. Cassidy, Attorney General, for certain appellee ; Joseph A. Londrigan, Assistant Attorney General, of counsel.
    David A. Skalitzky and Edward A. 0 ’Halley, both of Chicago, for certain other appellee.
   Hr. Presiding Justice Fulton

delivered the opinion of the court.

This action was brought by the appellant, Reconstruction Finance Corporation, to intervene in the suit filed by the People ex rel. Edward J. Barrett, auditor of public accounts of the State of Illinois, seeking the liquidation and dissolution of the Fon du Lac State Bank, and for leave to file its intervening petition in said cause. In line with the briefs of counsel for the parties and for convenience of reference, the appellant, Reconstruction Finance Corporation, the appellee, Charles H. Albers, as receiver of the Fon du Lac State Bank, and the appellee, Edward J. Barrett, auditor of public accounts, will hereinafter be referred to respectively as the petitioner, the receiver, and the auditor.

The case was tried upon the pleadings which consisted of petitioner’s written motion for leave to intervene, its intervening petition with three exhibits attached thereto, and a motion challenging the jurisdiction of the court filed by the receiver. No pleading of any kind was filed by the auditor, but a separate brief was filed in his behalf, adopting the authorities and argument presented by the receiver, and joining with him in asking that the order and judgment of the trial court be affirmed.

The motion for leave to intervene alleges that the principal suit 'filed by the auditor asked for the dissolution and liquidation and winding up of the affairs of the Fon du Lac State Bank; that Charles H. Albers was the receiver of said bank; that on numerous occasions Albers as such receiver had sought the aid of the court in connection with the liquidation of the affairs of the bank; that petitioner is a creditor of said bank and its claim in the amount of $40,244.66 had been duly allowed by the court; that the auditor had approved the payment of certain unreasonable fees to receiver’s attorney; and that the payment of said unreasonable attorney’s fees would result in the diminution of the dividend which petitioner would otherwise receive upon its claim.

In addition to the allegations contained in the said motion, the intervening petition set forth in substance the following further facts: it averred that the auditor had duly filed his complaint in the circuit court of Tazewell county, Illinois, praying, among other things, for the dissolution, liquidation and winding up of the affairs of said bank, and for general relief; that the receiver had frequently filed petitions in the cause seeking the aid of the court in divers matters in connection with the winding up of the affairs of the bank; , that if the receivership is properly administered according- to law, funds will be realized sufficient in amount to pay all of the prior creditors of the bank and leave an overplus, to be applied on petitioner’s claim.

That one of the creditors of said bank, Margaret H. Arnold, the township treasurer of Fon du Lac township, in violation of the statute, had deposited school funds in said bank in excess of 75 per cent of its capital, and surplus; that Warren Sutliff, its president, and certain other officers of the bank, executed a bond to secure said Margaret H. Arnold against any loss which she might sustain as a result of the deposit exceeding the statutory limit.

That said Margaret H. Arnold brought suit on the bond and obtained a judgment which was paid by Warren Sutliff; that thereafter Sutliff filed a claim with the receiver for the amount paid by him to Margaret H. Arnold on the theory that as a surety he was entitled to be subrogated to her claim against the bank; that the claim was resisted by the receiver, through his attorney, John E. Dougherty, and by the Federal Deposit Insurance Corporation, a creditor of the bank, through its attorneys, Quinn, Quinn and 0 ’Hern; the claim was disallowed by the trial court, whose order was affirmed on appeal by this court (295 Ill. App. 71) 14 N. E. (2d) 686. Leave to appeal therefrom was denied by the Supreme Court.

That due, among other things, to the illness and absence from the State of the said John E. Dougherty, the greater portion of the work in connection with the resistance of said claim was done by Quinn, Quinn and 0 ’Hern. That firm of attorneys have received the sum of $1,185 for their services, which amount has been allowed by the court as a claim against the bank in favor of said Federal Deposit Insurance Corporation; that two hearings on the Sutliff claim were had in the circuit court of Tazewell county, which hearings occupied parts of March 26, 1937 and April 3, 1937; the brief and argument of the appellees in this court consisted of 19 printed pages and the answer to Sutliff’s petition for leave to appeal to the Supreme Court consisted of 17 printed pages.

That said John E. Dougherty, the attorney for the receiver, submitted a bill in the sum of $6,000 for his services to the receiver in resisting said claim, a part of said bill reciting “as per agreement $6,000.00.”

That petitioner, believing the amount of the fee was unreasonable, made written objection thereto to both the auditor and the receiver; that following said objections and after conferences with representatives of the receiver and auditor, petitioner was assured that the fee would not be paid without notice to the petitioner; that said fee has been allowed by the auditor however, and $4,000 thereof was paid during the quarter ending March 31, 1940; that no itemized statement of time expended by him in rendering legal services in resisting said claim was ever submitted by said John E. Dougherty to either the auditor or receiver.

That petitioner further alleges that under the circumstances the amount of the fee is unreasonable, and that petitioner, as a large creditor of the bank, is entitled to the consideration of the court as to the reasonableness or unreasonableness of the amount of said fee.

The petition prays that it may have the judgment of the court as to the reasonableness of said fee; as to the right of the auditor to approve the fee as an expense of receivership; that if found to be unreasonable the receiver restore the amount of any excess payment to the assets of the receivership and for other and further relief.

In the motion of the receiver he objected to the entry of any order allowing petitioner to intervene. He alleged that he was not the court’s receiver and is not answerable to the court for salaries paid to his attorney, and that the court is without jurisdiction over either the receiver’s person or the subject matter of the appointment of the receiver or his attorney or the payment of any fees to either the receiver or his attorney.

On the hearing of said motion the court denied the motion of petitioner for leave to intervene on the ground that the court in the proceedings in which the motion was filed was without jurisdiction of the subject matter of the intervening petition.

Petitioner has brought to this court an appeal from that order and the sole question is whether the court below had jurisdiction to entertain the intervening-petition.

Section 11 of the Banking Act, ch. 16½, Ill. Rev. Stat. 1939, State Bar Ed. [Jones Ill. Stats. Ann. 10.11] provides, among- other things that: “All expenses of such receivership, including reasonable receiver’s, solicitor’s and Attorney’s fees, approved by the Auditor of Public Accounts, shall be paid out of the assets of such bank.”

It is the contention of the receiver that since he was appointed by the auditor, and to that extent, an administrative or executive rather than a judicial officer, he is not subject to the court’s control, at least as respects the payment of fees to his attorney.

He urges that his appointment made by the auditor pursuant to statute, entitles him as receiver to administer the affairs of an insolvent bank under the direction of the auditor, subject only to the limited supervision vested in the court by the act itself. He refers to the cases of People ex rel. Barrett v. Shurtleff, 353 Ill. 248, and People v. Niehaus, 356 Ill. 104, and says that of late years the tendency of legislatures has been in favor of executive liquidation, not only of insolvent banks but of insolvent insurance companies as well.

In the two cases above cited, the question before the court was as to the power of a court of equity to appoint a receiver, in the one case for an insolvent bank, and in the other for an insolvent insurance company. In the first case the statute provided that the receiver should be appointed by the auditor and in the second case that he should be appointed by the director of insurance.

In each of those cases it was held that courts of chancery have no general power to appoint receivers for corporations and can appoint them only when expressly authorized by statute, but we do not consider that in either of those cases did the court decide the question of the power of the courts over a receiver appointed by a member of the executive department of the government. In commenting upon a similar situation in the case of People ex rel. Barrett v. West Side Trust & Savings Bank, 362 Ill. 607, at page 619, the court said: “Reliance is placed on People v. Peoria Life Insurance Co. 357 Ill. 486, and People v. Niehaus, 356 id. 104, to support the argument that the receiver appointed by the Auditor is merely an administrative officer who is not subject to the jurisdiction of the court. The principal questions presented • for decision in those cases related to the power of appointing receivers of insolvent insurance companies. The cases cited do not aid the receiver as they do not purport to construe section II of' the Banking act. Moreover it is conceded that the receiver of the bank in the present proceeding was properly appointed.” In that case as in the present one the auditor not only , filed a suit in the circuit court to dissolve the bank and settle its affairs but it affirmatively appears from the intervening petition that the receiver has presented numerous petitions to the court with respect to settling affairs of the bank. Furthermore the bill contained a prayer for general relief.

Our Supreme Court has frequently held that the courts may review the acts of an administrative or executive officer to determine whether he has acted arbitrarily, capriciously or illegally, that is, whether he has observed and followed the standard or rule of conduct prescribed by statute. People v. Brady, 268 Ill. 192; Italia American Shipping Corp. v. Nelson, 323 Ill. 427. In the case of State ex rel. Squire v. National City Bank of Cleveland, 56 Ohio App. 401,11 N. E. (2d) 93, the court stated the rule as follows; “Fo matter how broad the statutory language conferring power upon an administrative officer may be, if he ignores the law enacted to control his action, a person whose private right is violated thereby may seek his remedy in the judicial Court of appropriate jurisdiction. And where discretion is lodged in such officer there is an implied term in all 'such legislative enactments that such discretion will be exercised in a judicious manner, and not arbitrarily or capriciously. The arbitrary or capricious exercise of power by an administrative officer offends against the due process clause of the federal and state constitutions.”

In the Shurtleff case it was held that courts of equity are without jurisdiction, in the absence of a statute conferring it, to dissolve a corporation or to wind up its affairs, or to appoint a receiver for the collection of its assets, but made the following comment on jurisdiction: “A decree of a court of equity must rest upon a bill stating a case of a character of which the court has jurisdiction. The jurisdiction does not depend upon the sufficiency of the bill. If the court has jurisdiction of the subject matter — that is, the power to render a decree in the class of cases to which the particular case in question belongs — and of the parties, nothing further is required. The cause of action may be defectively stated in the bill, but that will not destroy jurisdiction. Jurisdiction of the subject matter does not mean, simply, jurisdiction of the particular case before the court, but jurisdiction of the class of cases to which the particular case belongs.”

If, in this case, a much larger attorney’s fee had been allowed and approved by the auditor, say $10,000 or $15,000 or more, it would be strange indeed if the reasonableness of such fee could not be questioned by some court, where complaint is made by an injured creditor.

Therefore, if the court has jurisdiction in an exaggerated case, it surely has jurisdiction of the class of cases to which this one belongs. While we concede the power of the auditor to fix and allow attorney’s fees in bank liquidation cases, we believe the abuse of such power or discretion is subject to review by the courts.

In the brief filed by the receiver in this case he concedes that creditors of a closed bank are not without remedy when administrative officers exceed their powers, but insists the right of action is by a plenary suit, separate and apart from the dissolution proceedings.

As we view the holding of the court in People ex rel. Barrett v. West Side Trust & Savings Bank, 362 Ill. 607, it definitely finds that where the auditor files a bill for dissolution of a bank and prays for general relief for himself and the receiver that the court in such case acquires general jurisdiction over the acts and doings of the auditor and the receiver with respect to the liquidation of the bank. In that case on page 617 of the opinion the court said: “The trial court in this case was unquestionably the court having charge of the liquidation of the bank within the contemplation of section II. The statement of the receiver that the liquidation proceeding is solely for his benefit, and that he cannot be compelled by the court having charge of the liquidation to perform the duties imposed upon him by the statute, carries its own condemnation. . . . The manifest intent disclosed by all the provisions of section II is that the liquidation and settlement of the trust business of the closed bank should proceed to a speedy termination with a minimum of expense. . . . We find no language in section II which.can be distorted to mean that the orderly dispatch of the business of courts should be upset by requiring the services of other courts for purposes that can be performed by the one. The court in charge of the liquidation of a bank is not a mere conduit for the benefit of the receiver. ’ ’

Counsel for the receiver have devoted considerable space in their brief for the purpose of showing that the intervening petition in this case is not sufficient.We do not consider that the sufficiency of the allegations or of the petition are in question on this appeal. The merits of the case were not submitted to the trial court, nor was the petition dismissed on the ground that it was not meritorious, but on the sole ground that the court in the dissolution suit was without jurisdiction of the subject matter of the petition. A motion to strike would have properly raised the question of the sufficiency of the petition but appellee elected to rely upon and challenge the jurisdiction of the court as the sole ground of his motion.

We are of the opinion that the trial court had jurisdiction to entertain the question raised by the intervening petition in controversy. The order and judgment of the circuit court of Tazewell county is reversed and the cause remanded to that court with directions to permit the appellant to intervene and to file its intervening petition.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Riess

license: Public Domain

text:
    Robert Z. Porterfield, Executor et al., Appellants, v. Juanita Lenover et al., Appellees.
    Gen. No. 9,242.

      Opinion filed April 14, 1941.

      Little & Finerock, of Urbana, for appellants.
    Henry J. Dietz, of Urbana, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.

The appellant, Robert Z. Porterfield, executor of the last will and testament of Robert M. Porterfield, and other living children of said testate deceased have appealed from a decree entered in the circuit court of Champaign county construing certain alleged ambiguous language used in the last paragraph of clause three of said testator’s last will and testament. Objections, standing as exceptions to the master in chancery’s report, were overruled by the chancellor and a decree was entered which gave the residue of said estate, after payment of debts and specific legacies provided for in the will, in equal shares, per capita, to and among all of the living children and grandchildren of said deceased. Appellants contended that said clause, when properly construed, indicated testator’s intention to give the residuary estate either (a) to the living children of testator to the exclusion of the grandchildren or (b) to the living children and grandchildren of said deceased to be divided per stirpes and not per capita.

The testator, aged 82 when the will was drawn on October 31, 1932, departed this life on February 11, 1937, and his will was duly admitted to probate in the county court of Champaign county. On that date, the testator left him surviving Margaret V. Porterfield, his widow, and three children, Ira B. Porterfield and Frank M. Porterfield, sons, and Eunice E. Holliday, a daughter. In addition thereto, the testator left him surviving three grandchildren who were children of Paul R. Porterfield, a son who had predeceased his father but was living when the will was made; four grandchildren who were children of Zula V. Hall, a predeceased daughter; ten grandchildren' who were children of Estella Whitson, a predeceased daughter, and two grandchildren who were children of Charley C. Porterfield, a predeceased son, all of whom were mentioned and given specific legacies under the terms of the will.

The third clause of the will, the last paragraph of which is sought to be construed, provides as follows: “After the death of my said wife, Margaret V. Porter-field, if she shall survive me and if not, then after my death, I hereby order and direct that all the real estate and personal property hereinbefore set out and of whatsoever nature and kind and wheresoever located shall be converted into cash within a reasonable time by my executor hereinafter named as in his discretion he may deem proper and after the payment of the above mentioned debts, funeral expenses and costs of erecting a suitable monument to mark our last resting place in Mount Hope Cemetery, Sidney, Illinois, the proceeds thereof remaining shall be divided as follows : The sum of Five Hundred Dollars to my beloved son, Ira B. Porterfield; The sum of Five Hundred Dollars to my beloved son, Frank H. Porterfield; The sum of Five Hundred Dollars to my beloved son, Paul B. Porterfield; The sum of Seven Hundred Dollars to my beloved daughter, Eunice E. Holliday; The sum of One Hundred Dollars to each of the heirs of the body of my beloved daughter, Zula V. Hall, deceased, living at the time of said distribution; The sum of Two Hundred Dollars to each of the heirs of the body of my beloved daughter, Estella Whitson, deceased, living at the time of said distribution; The sum of One Hundred Dollars each to the heirs of my beloved son, Charley C. Porter-field, deceased, namely Winfred Porterfield and Helen Porterfield.

“The balance remaining after the payment of the above mentioned legacies, devises and bequests to be distributed share and share alike to all of my heirs living at that time.”

The widow, who survived the said Robert M. Porter-field, deceased, and was given a life estate in all of the property owned by him, renounced the provisions in said will and elected to take under the statute, and the circuit court found that the distribution of the balance of the estate was thereby accelerated, to which finding no objection was made.

The deceased testator was the owner of approximately 160 acres of farm land and a house and lot in the village of Homer, Illinois, a lot in Florida and some personal estate, all inventoried and of an approximate gross value of $20,000. The major portion of said property has been converted into cash and the proceeds are ready for distribution in accordance with the decree of the court in construing the alleged ambiguous language in question contained in the last paragraph of clause three of said last will and testament. The appellees, appearing by guardian ad litem, are Junior Whitson, Donald Whitson and Rex Whit-son, minor defendants who are the three youngest of the ten children of testator’s deceased daughter, Estella Whitson.

It appears from the evidence that the grandfather was on excellent terms with all of his children and grandchildren during his lifetime. It further appears that the father of the ten Whitson children was a barber by trade and that somewhat larger specific legacies were given to his ten children than to the grandchildren who survived three other deceased children.

The particular clause to be construed for the purpose of arriving at the testator’s intention from the language of the whole instrument and the surrounding facts and circumstances in evidence, including the kinship of the testator to all of the parties who became the objects of his bounty, indicates that he had in mind the amount that he desired to give each of them as specific legacies in somewhat differing amounts. It further appears that the largest legacies were so given and provided for Ms cMldren who were living when the will was made; that the grandcMldren whose parents were deceased were each kept in mind and given specific legacies, but that the grandchildren whose parents were living* were not specifically mentioned or given legacies under the will.

After thus providing such specific bequests as he deemed fit as between these two classes, namely the children and grandcMldren, he undertook to make the general disposition of the residue of his estate in the ambiguous language of the clause for the construction of which the suit was filed, which reads as follows: “The balance remaining* after the payment, of the above mentioned legacies, devises and bequests to be distributed share and share alike to all of my heirs living at that time.”

The facts are not in dispute. The parties also agree that the ambiguous language should be construed either (a) so as to give the residuary estate to all of the surviving* children and grandchildren in equal shares per capita; (b) by construing* the word “heirs” to mean children and dividing it among the living children to the ■ exclusion of the grandchildren, or (c) dividing* it between the surviving children and the grandchildren whose parent was deceased per stirpes and share and share alike among each of said respective classes, as provided by Illinois laws of descent and inheritance.

In this, as in any other case of will construction, we have two duties to perform: First, we must, if possible, determine the true intention of the testator, and second, if no rule of law prevents, give that intention force and effect. Dell v. Herman, 365 Ill. 261, 6 N. E. (2d) 159.

The intention of the testator is to be gathered from a consideration of the language of the entire will and all its parts. Jones v. Miller, 283 Ill. 348, 119 N. E. 324, and citations therein.

We may also consider the circumstances surrounding the testator when he made his will, not to determine what he intended to write but in order that we may better understand what he has written. Dell v. Herman, supra; Dahmer v. Wensler, 350 Ill. 23, 182 N. E. 799.

It is proper in such inquiry to take into consideration all the circumstances under which the will was executed including the nature, extent and condition of testator’s property, as well as his relationship to his family and to the beneficiaries named in the will. Dahmer v. Wensler, supra, citing Himmel v. Himmel, 294 Ill. 557, 128 N. E. 641, and other cases.

It is further a well-settled rule of construction in this State that in determining the intention of the testator from doubtful language in a will, that construction will be favored which conforms most nearly to the general law of inheritance. Dell v. Herman, supra; Dahmer v. Wensler, supra; Dollander v. Dhaemers, 297 Ill. 274, 130 N. E. 705; Smith v. Garber, 286 Ill. 67, 121 N. E. 173; Straw v. Barnes, 250 Ill. 481, 95 N. E. 471. The succession to the estate prescribed by the statute of descent can only be superseded by a valid testamentary disposition. Desmarteau v. Fortin, 326 Ill. 608,158 N. E. 444; Dahmer v. Wensler, supra.

With the first contention of the appellant that the proper construction of the language “share and share alike to all of my heirs” denotes an intention to restrict the distribution of the residuary estate to the living children and exclude the grandchildren whose parents predeceased the testator, we cannot agree. The heirs of a testator cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly either by express words or by necessary implication. Dahmer v. Wensler, supra.

Here, there were grandchildren whose parents were deceased and who were expressly mentioned as beneficiaries under the terms of the will. Their statutory right to an inheritance was of equal force to that of the living children. No intention to exclude them appears by express language of the will or any necessary implication therefrom.

■ To the contention of appellees sustained by the court below that the language in question indicated the intention of the testator to distribute the residuary estate per capita and not per stirpes equally among all of the children and grandchildren of the deceased, we cannot agree. Where devisees or legatees named as a class stand in different degrees of relationship, the law favors a distribution per stirpes. Dollander v. Dhaemers, supra; Beal v. Higgins, 303 Ill. 370, 135 N. E. 759; Dahmer v. Wensler, supra.

Where language indicates a per capita distribution contrary to the provisions of the laws of descent, such intention must clearly appear and that presumption yields readily in favor of an indication that distribution per stirpes was intended, for the law favors a per stirpes distribution under the laws of descent to per capita unless the latter intention clearly appears. Dollander v. Dhaemers, supra; Dahmer v. Wensler, supra.

In the case of Dahmer v. Wensler, supra, the testator, Jacob Wensler, a widower, left no surviving descendants, but left as his heirs George Wensler and Henry Wensler, his brothers, Lena Gander and Charles Wensler, a niece and nephew, and three grandnieces and nephews. As to the residuary estate, the will provided that “The balance that is left on hand I give to the children of John Dahmer and Charles Wensler and Henry Wensler in equal parts.” The appellant contended that the residuary estate should be divided equally per stirpes, one third to the children of John Dahmer, one third to the children of Charles Wensler and the remaining one third to the appellant brother; that since the children of each decedent named were referred to as a class, they took per stirpes and not per capita. Appellee there, as here, insisted that the children of each of the three persons named in the paragraph, living at the time of testator’s death, are the intended legatees and devisees and that they take per capita and not per stirpes. It was there held that where there is ambiguity existing in a will, unless there is a manifest intention to the contrary, the presumption prevails that the testator intended that his property should go in accordance with the laws of descent and distribution.

It is there said (p. 29): “The testator designated the children of his deceased brother Charles Wensler as a class and not as individuals. He remembered them not in their own persons but as representatives of their parent and substituted them in his place. The children of his deceased brother-in-law, John Dahmer, were designated in precisely the same manner. Such designation as a class, and not as individuals, discloses no intention on the testator’s part to give them together, or in the aggregate, any greater share or interest than their parent, if living, would have received. The concluding words of the sixth section of the will, ‘in equal parts,’ do not militate against this construction. They indicate, not that the shares of the several individual legatees and devisees were intended to be the same in extent, but that the part pr share of each of the two groups of children and the share of Henry Wensler were intended to be equal.” — (p. 31) — “The residuary bequests and devises to the children of John Dahmer and Charles Wensler are, in each of the two instances, to a class, and they take per stirpes and not per capita. (Beal v. Higgins, 303 Ill. 370; Palmer v. Jones, 299 id. 263; Dollander v. Dhaemers, 297 id. 274).”

The court then concluded: “It follows from the plan of the testator, ascertained from a consideration of the will as a whole, that the children of John Dahmer, deceased, take one-third; the children of Charles Wensler, deceased, another third, and Henry Wensler, the appellant, the remaining one-third of the residuary estate.” The cause was reversed and remanded with directions.

In Dollander v. Dhaemers, supra, where the testator gave the life use of all his property to his wife and further provided that at her death, it shall be divided “share and share alike” among his children (naming them) and the children of a deceased daughter (without naming’ them), the children of the deceased daughter will take per stirpes and not per capita, as the reference to the grandchildren as a class indicated an intention that they represented the deceased daughter. The fact that the testator uses the words “share and share alike” with respect to the division of his property among his named children and the children of a deceased daughter, who are referred to, as in the instant case, as a class and not by name, was held not to necessarily mean that the grandchildren shall take per capita with the named children.

In the instant case, when the language of the entire will is considered together with the surrounding facts and circumstances in evidence, which are not in dispute, we are disposed to hold that the residuary estate, under the rules of construction which we have discussed, was intended to be given to the children and grandchildren of the deceased as his heirs per stirpes and not per capita; that the chancellor below erred in construing such language so as to indicate a distribution of the residuary estate in equal shares, per capita, among all of the surviving children and grandchildren of the testator and that a proper construction thereof required that the same be distributed per stirpes one seventh thereof to each of the three surviving children and the remaining four sevenths to be divided as follows : One seventh thereof in equal shares to the surviving children of Zula V. Hall, deceased; one seventh thereof in equal shares to the surviving children of Estella Whitson, deceased; one seventh thereof in equal shares to the surviving children of Paul R. Porterfield, deceased, and one seventh thereof in equal shares to the surviving children of Charley C. Porter-field, deceased.

The cause is therefore reversed and remanded with directions that a decree be entered in accordance with the holdings of this court.

Reversed and remanded with directions.


text:
    Jesse Smith, Appellee, v. Laurence Rust, Appellant.
    Gen. No. 9,274.

      Opinion filed April 14, 1941.
    Stone & Taylor, of Bloomington, for appellant.
    Homer English, of Bloomington, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

This suit was originally brought before a justice of the peace and was then taken upon appeal to the circuit court of McLean county, wherein the cause was tried before a jury, resulting in a verdict in favor of the plaintiff appellee Jesse Smith and against the defendant appellant Laurence Rust in the sum of $68.75, upon which judgment was entered. From that judgment an appeal was perfected to this court. While the amount in controversy is small, the legal principles involved are of importance.

It appears from the evidence that the defendant appellant Laurence Rust was an automobile dealer in Bloomington, who also conducted a branch salesroom and business in Farmer City, Illinois. Plaintiff appellee Jesse Smith negotiated with defendant for the purchase of a second-hand 1937 model Hudson car, which negotiations resulted in a conditional written sales contract between the parties providing a purchase price of $150 plus $4.50 sales tax, involving a cash payment of fifty dollars therein credited and provisions that the remainder thereof be paid in monthly instalments of $12.75, divided into semimonthly payments on the thirteenth and twenty eighth day of each month. On the day following the execution and signature of the sales contract by the plaintiff and payment by him of the fifty dollars so credited in the contract, the car was delivered to him at Farmer City and driven by him to his home in Bloomington.

Subsequent thereto, the plaintiff Smith made three semimonthly payments as they fell due in the respective sums of $6 on November 14th, $6.75 on November 20th and $6 on December 12th, aggregating $18.75 or a total cash credit of $68.75 on the $150 purchase price of the car, all of which payments were credited on the conditional sales contract. After the delivery of the car to the plaintiff, he kept the same at his home in Bloomington from the date of its delivery and the execution of the above duplicate written contract on October 27, 1939, until January 1940, when the automobile was driven by the plaintiff to the place of business of the defendant in Farmer City and there left with the defendant, and the plaintiff demanded the repayment to him of the $68.75 which he had paid toward the purchase price, which repayment was refused and the suit followed.

It was the contention of the plaintiff that at and subsequent to the time that he signed the sales contract and the car was delivered to him, he demanded and was orally promised a certificate of title, referred to by the witnesses as a title to the car, the assignment and delivery of which was subsequently refused by the defendant on the ground that the same should not be delivered to the plaintiff certifying the title in him until he had completed his payments under the conditional sales contract or when he applied for an automobile license and registered the car so conditionally purchased by him. Plaintiff stated that he did not desire to take out a license or register the car, but insisted that lie was entitled to immediate delivery of the assigned certificate of title and that the same had been promised to him.

The conditional written contract signed by the plaintiff recited among other provisions that “The front and back hereof comprise the entire agreement affecting this order and no other agreement or understanding of any nature concerning same has been made or entered into. I hereby acknowledge receipt of a copy of this order,” under which appeared, the admitted written signature of the plaintiff purchaser. No provision or reference therein was made to any certificate of title, and the plaintiff made no application for a license and refused to make written application for the transfer of title upon the usual blanks when so requested by the defendant.

During the course of the trial, the defendant repeatedly objected to any evidence concerning the furnishing or failure to furnish the certificate of title by the defendant to the plaintiff as being immaterial upon the issue of rescinding the contract and recovering the amount of $68.75 which had been paid thereon, or the admission of oral testimony varying or adding to the provisions of the written contract, and the record recited that such objections were shown to be interposed as to all evidence in relation thereto, followed by a motion to strike the same, which was ultimately denied by the court.

Motions for a directed verdict in favor of the de-' fendant at both the close of the plaintiff’s and defendant’s evidence and for judgment notwithstanding the verdict were also overruled by the court, and defendant’s motion for a new trial was denied and the judgment entered upon the verdict for $68.75 and costs, from which this appeal is taken.

The appellant assigned error by the trial court in denying each of said motions and in entering said judgment; in the giving and refusal of several instructions by the court; in refusing to hold as a matter of law that the assignment and delivery of the certificate of title to the purchaser was not necessary to constitute a valid and binding sale thereof and allegedly holding under the facts in evidence that the plaintiff was entitled to rescind his contract of purchase and in rendering judgment on the verdict.

Plaintiff contended that the failure and refusal to deliver a certificate of title, which defendant had promised to do, constituted a breach of the contract, which justified its rescission, and upon return of the automobile, the recovery of that portion of the purchase price which had been paid thereon and that the contract was void or voidable on account of failure to comply with regulations of the Uniform Motor Vehicle Anti-Theft Act (secs. 74-93, ch. 95½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.075-85.094]).

Without repeating all of the contentions of the respective parties, it may be stated that defendant strongly insists that all of the terms of the contract were embodied in the signed written contract followed by delivery to and acceptance of the motor vehicle and that the contract could not be altered by oral evidence seeking to show additional terms or different provisions than those set forth in the specific contract containing the express clause that it embodied the entire contract between the parties. The further contention is made that the provisions of the Uniform Sales Act (secs 1-77, ck. 121½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 121.05-121.81]) and of the Uniform Motor Vehicle Anti-Theft Act, supra, concerning delivery of a bill of sale or certificate of title of or registration as to used cars in no way rendered void or voidable the provisions of the conditional sales contract herein entered into by and between the parties to such contract.

From a careful examination and consideration of the whole of the evidence, we are disposed to hold as a matter of law that under the evidence herein the unambiguous written contract embodied the entire agreement between the parties and that the testimony of witnesses relative to the delivery or nondelivery of the title certificate to the plaintiff was not material to the issues herein and was not competent to alter or add to the express provisions of the written contract, which contained no provision or reference thereto. Kraft-Phenix Cheese Corp. v. H. B. Smith Machine Co., 267 Ill. App. 539.

In the case of L. B. Motors, Inc. v. Prichard, 303 Ill. App. 318, 25 N. E. (2d) 129, it is held that although the Motor Vehicle Law and the Uniform Motor Vehicle Anti-Theft Act provide penalties for those persons who do not comply with the provisions thereof, these acts were not intended as recording statutes and did not in any way alter, modify or change the effect of the provisions of the Uniform Sales Act as construed by our courts and that “the object of the legislature in enacting these acts was to protect the public from thefts of automobiles, from the evils arising from the unregulated use, sale and transfer of motor vehicles and from the crime committed by their use. ’ ’

While no decision of the courts of review in Illinois directly in point is cited by either party, the defendant has referred to a number of cases from other States under somewhat similar statutes wherein it was held in substance not only that such acts were passed to prevent traffic in stolen cars by requiring bill of sale under penalties as referred to in L. B. Motors, Inc. v. Prichard, supra, and declaring it to be unlawful to sell or give away motor vehicles without executing a bill of sale therefor and by providing other procedure for perfecting the transfer and registration of certificate of title, but holding that the contract of sale itself is not unlawful if the same is executed in a manner other than that prescribed in the respective acts, especially where actual delivery of the motor vehicle has been made to the purchaser.

The case of Commercial Credit Co. v. Schreyer, 120 Ohio St. 568, 166 N. E. 808, involved the construction and application of somewhat similar legislative acts in Ohio regulating the sale and transfer of motor vehicles, which provided in substance that it was unlawful to sell, convey, give away, transfer, exchange, receive, purchase or obtain any motor vehicle or used motor vehicle within that State except in the manner and subject to the conditions therein provided; declaring it to be unlawful to sell or give away a motor vehicle unless the vendor or donor shall at or before such sale or gift execute a bill of sale in duplicate and deliver both copies to the purchaser, and providing in detail what the bill of sale shall contain and that the same be verified by the seller before a notary public or other officer before delivery. It was further so provided that any bill of sale not verified before delivery “shall be null and void and of no effect in law,” required the bill of sale to be filed with the clerk of courts “within three days immediately thereafter” and further provided that no person in said State shall drive or operate a motor vehicle or used motor vehicle upon the public highways thereof without having a bill of sale as defined in the act, etc., and severe penalties in the way of fines or imprisonment were therein enacted for violation of such provisions. The court, in a well reasoned opinion, with one dissent, after collating and discussing authorities, there held that the transfer and delivery of motor vehicles complying with uniform sales laws, although not complying with anti-theft statutes for transferring motor vehicles, is valid.

In its discussion, the court said that “The act requires vendors and purchasers of motor vehicles to observe certain prescribed formalities in transferring and registering such vehicles, and imposes severe penalties upon nonobservance. It is therefore in every sense a penal statute, and yet it relates to a subject-matter which is highly respectable and a business which employs more capital and labor than almost any other kind of property or business. The statute does not seek to discourage or limit or control the volume or character of the business, but rather to encourage it by affording additional protection from fraud and theft to those who deal in such property. Being a penal statute, it must be strictly construed. That is to say, it should be construed according to its exact and technical meaning, recognizing nothing that is not expressed, and limiting its application to cases clearly described within the words used. A careful study of the act shows that it does not declare any contract to be unlawful, but that it shall be unlawful to proceed in any except a prescribed way in executing the contract. The authorities divide such statutes into two classes: First, those which forbid certain contracts to be made, or certain acts to be done; and, second, those which prescribe a certain mode and manner of .doing the act, or the procedure to be followed in making the contract. The greater weight of authority holds that, if the act or contract is not prohibited, and the act is done otherwise than in the manner prescribed, or if the contract is made in form other than that provided, the unlawful manner may be punished, but the transaction itself is held to be legal.”

It was further there said that “Ordinarily a contract of purchase and sale of a motor vehicle is not different from a contract relating to any other kind of personal property. At common law, a motor vehicle can he bought and sold by parol contract. Any statute, therefore, which limits, or prescribes a different form of contract, or a different procedure, is in derogation of common right and of the freedom of contract, and for that reason the statute is subject to the rule of strict construction.”

It was further pointed out in the opinion that the courts of review of California, Colorado, Iowa, Texas, Minnesota, and Montana have placed a strict construction upon similar legislation and hold the contracts not to be void, even though an omission to comply with the laws is an unlawful act and therefore punishable, and that the States of Kansas, Missouri, New Jersey and Oregon have held to a broader application of their statutes.

The Texas Court of Civil Appeals, in Shipp Buick Co. v. Tolbert (Tex. Civ. App.), 296 S. W. 329, held that a note and mortgage given in an exchange of automobiles were not void because in violation of criminal statutes regulating sale of second-hand cars by dealers.

The court’s opinion in the Ohio case, supra, held in disposing of the pending cause “that possession of the automobile having been delivered to Seymour, and Seymour having paid part of the purchase price, and having executed and delivered his note and chattel mortgage for the balance, the contract became valid between the parties. ’ ’

A distinction should, however, he made between contracts which are for purposes lawful in themselves and those based upon, unlawful purposes such as gambling contracts or those against public policy, which latter class of contracts are void ab initio in Illinois. Brelsford v. Stoll and citations therein, 304 Ill. App. 222, 26 N. E. (2d) 159.

From an examination of the authorities, we are disposed to hold it to be the general and better considered rule, having in view the vast importance and volume of the legitimate traffic in automobiles within this State and bona fide contracts in relation thereto, that the Illinois penal statutes regulating the manner of transferring’ or recording’ titles are to be strictly construed and are not by their provisions intended to prohibit or render invalid as between the parties contracts involving the bona fide sale and delivery of motor vehicles. The penal statute, while punishing violation of any of its terms in relation to the sale, transfer, delivery and registration of motor vehicles, a business in itself entirely legitimate and neither unlawful nor against public policy, is intended, as its title and context implies, to prevent theft and certain unlawful actions and practices and not to prevent or render illegal the legitimate sale, transfer and delivery of motor vehicles.

In the instant case, an unambiguous written sales contract signed by the purchaser was executed between the parties and the motor vehicle was delivered to the purchaser pursuant to its express provisions. The contract was in writing, was unambiguous, was complete within itself and so recited. There was no provision therein relative to any certificate of title, and we hold that the contract of sale, free from any charge or proof of fraud, was binding upon both parties. As in the case of Commercial Credit Co. v. Schreyer, supra, the purchaser of the car and the holder of the subsequent mortgage thereon were protected and the contract was binding as between the parties, and we hold in the instant case that the contract was binding upon the plaintiff herein and could not be rescinded by a mere return of the vehicle and a demand for that portion of the purchase price which had been paid in conformity with the express terms and provisions of the conditional sales contract. The contract itself and the statute in relation thereto provided for and permitted the retention of the title to the vehicle until complete payment was made in accordance with its terms.

The testimony offered and admitted concerning the procurement of either a license or assignment of certificate of title was therefore neither relevant nor material to the issues before the court, and defendant’s motion to exclude the same should have been allowed.

We find that there was no competent evidence in the record proving or tending to prove that any of the provisions of the contract of sale had been violated by the plaintiff and that upon the evidence adduced, the court should have allowed defendant’s motion for a directed verdict, and upon its reserved decision and motion therefor, should have entered judgment in favor of the defendant notwithstanding the verdict. We further hold from the state of the record herein that the trial court committed further error in overruling defendant’s motion for a new trial.

The cause is reversed and remanded with directions to the trial court to set aside its judgment and enter judgment non obstante veredicto in favor of the defendant in bar of suit and for costs.

Judgment reversed and remanded with directions.


author: Mr. Presiding Justice- Hebel

text:
    Richard Drake, Minor, by Selika Drake, His Mother and Next Friend, Appellee, v. William Thomas, Appellant.
    Gen. No. 41,361.

      Opinion filed April 23, 1941.
    Bichard S. Folsom, of Chicago, for appellant; Balph W. Cohdee, James W. Coffey and H. Meyer Simborg, all of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice- Hebel

delivered the opinion of the court.

This is an appeal from a judgment for $250 entered in a tort action for assault and battery brought by a public school pupil, Bichard Drake, a boy 15 years of age, of the Moseley Correctional School, a school for truants, delinquents and incorrigibles, against a teacher of that school. The case was tried before the court without a jury and a judgment entered April 4, 1940, upon the court’s finding that defendant, plaintiff’s school teacher, was guilty as charged in the statement of claim. Defendant’s motions for a new trial and in arrest of judgment were overruled.

Plaintiff’s statement of claim is as follows:

“1. Plaintiff, Bichard Drake, a minor, by Selika Drake, his mother and next friend, complains of defendant, William Thomas, and says that:
“2. On to-wit, the 24th day of March, 1938, the defendant assaulted and beat the plaintiff, while plaintiff was intrusted to and in the care of defendant at and in one of the class rooms known as grade 8A of the Moseley School, located at 24th and Michigan Avenue, in the City of Chicago, County of Cook and State of Illinois, by striking the plaintiff many hard and severe blows upon the body, viz., the thighs of plaintiff, with a hard rod, pole or stick then and there kept by said defendant for such uses and purposes, and severely injuring and abusing the plaintiff.
“3. In consequence, the plaintiff was for a long time disabled, maimed, bruised and injured, and unable to go about his regular pursuits enjoyed by boys of like age, and the plaintiff incurred expenses for medical attention, and has, as a consequence of said assault and battery, become fearful and timid, and unable to fully exercise his mind and thoughts while under the supervision of said defendant.
“Wherefore, plaintiff claims damages in the amount of Five Hundred ($500.00) Dollars.”

Defendant filed his affidavit of defense, admitting that he was a public school teacher in the Moseley School and that plaintiff, Bichard Drake, was a pupil in his classroom. The defense denied the allegations as to the assault and battery; denied that the defendant struck the plaintiff many hard and severe blows on the body; denied that the defendant severely injured or abused the plaintiff; and denied that plaintiff suffered the injury and damages as alleged in his statement of claim.

The plaintiff was a pnpil, and the defendant his teacher, at the Moseley School in the city of Chicago. The Moseley School is a specially created school for truants and incorrigibles, maintained by the board.of education of the city of Chicago' by virtue of the authority vested in said board of education by section 159 of chapter 122, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 123.178], wherein it is provided;

“The board of education shall exercise general supervision and management of the public education and the public school system of the city, and shall have power to make suitable provision for the establishment and maintenance throughout the year, or for such portion of the year as it may direct, not less than nine months in time, of schools of all grades and kinds, including normal schools, high schools, night schools, schools for defectives and delinquents, parental and truant schools, . . The Moseley School created under this statute is a specialized school to which students are sent who do not adjust themselves in the regular schools of the board of education, the student body consisting of truants, delinquents and boys who are unable to ñt in the schools from which they are transferred. The pupils are all maladjusted and are sent to the Moseley School because of this fact.

Plaintiff entered the Moseley school on November 10, 1937, under a written transfer from the Betsy Ross School. ■ While the trial court received this transfer slip in evidence, it excluded the notations thereon which' showed that Drake was sent to the Moseley School because he had been reported to the truant officer for refusing to attend school and for being incorrigible during all of the school year. Moreover, his mother requested that he be sent to the Moseley School because of these facts. The plaintiff was assigned to home room 306, which room was in charge of the defendant who had been a teacher for many years and in this particular school ever since its opening as a correctional school on September 5, 1930.

It appears that the home room teacher receives the boys in the morning when school opens. They remain with him for two periods of 45 minutes each, during which time a check is made by the home room teacher of those in attendance and of those absent. The absentees’ names are put on what is known as a circulating room slip to be carried with the home room group to the classes it attends according to the class schedule. The teachers, into whose classes the group enters, in turn place on the slip the name, of any pupil who attempts to cut class, or misbehaves in any manner while he is away from his home room. This circulating slip is returned to the home room teacher in the afternoon so that he may know how his boys carried on during the day. It is the duty and responsibility of the home room teacher to take up with his group any infractions of the rules — the home room teacher being responsible for the action of his group as it moves throughout the school building. At 2:00 o’clock in the afternoon the boys return to the home room and work there with their home room teacher until 3:15, when the home room teacher accompanies them to the State street car line and dismisses them.

It further appears that on March 24, 1938, the plaintiff’s home room group went to Miss Albina Breecher’s room for art instruction. Miss Breecher is the art teacher at the school and has been teacher there for 10 years, having taught in the public school system for 27 years. Her desk in the art class was located in the rear of the room, and the plaintiff having been troublesome, she had placed him in a seat directly in front of her desk where she could keep an eye on him. When plaintiff’s group-came into the art class for instruction, it appears that Miss Breecher was forcéd to devote practically the entire first part of the period of that day to attempting to get the plaintiff started on his work, during which time he was troublesome and noisy. After a time Miss Breecher left plaintiff by himself but observed his actions. She saw him suddenly reach around to a boy who was working in front of the boy that sat in front of plaintiff and flick that boy on the ear. The boy struck, thought that the boy immediately in back of him had hit him, which resulted in a loud argument between the boy struck and the one immediately behind him and which threatened to develop into a fight in the class room. Miss .Breecher then told plaintiff that she just couldn’t put up with him any longer and that he would have to go to the principal’s office. Plaintiff returned to his home room instead of going to the office and was asked by the defendant why he was returning so early and what had happened. Plaintiff replied, “There has been a misunderstanding.” The defendant then said, “Very well, we will see what happened,” and escorted him back to the art class.

The art teacher reported to defendant that the plaintiff had created a disturbance in her room and was acting up again in an unruly manner and refused to do his work, and said, “He is so disturbing. I can’t stand him in the room. I can’t do any teaching.” Plaintiff had been such a disturbance in the class theretofore, that Miss Breecher had discussed him with the principal and had been told by the principal that the next time he created a disturbance in her room he was to be sent to the principal’s office. The defendant then took the plaintiff back to the home room and questioned him as to why he could not conform to the school’s rules. He talked to the boy and asked him whether a little'corporal punishment would help him to remember to behave, and with that the defendant picked up a little paper tube that was on his desk and struck the plaintiff several times rapping him across the thighs. At the time this took place the teacher was seated at his desk and the pupil was seated to his right. After the punishment, the defendant said, “Now I hope this will be a reminder that you are supposed to try and carry on,” and then sent the boy back to his art class. The plaintiff spent the remainder of that day in school and the official school attendance records show that he attended school the following day, March 25, 1938. On that day plaintiff’s mother called the principal of the school and complained to him of defendant’s action. The principal, Mr. Postel, then called the plaintiff to come down to the office, and asked him if he would show him the marks on his body that he complained had been inflicted by the defendant. The plaintiff pulled down his trousers and indicated to Mr. Postel where he claimed he had been hurt. The principal could not distinguish-any marks or bruises on the thighs.

The principal then called the defendant and informed him of Mrs. Drake’s complaint, and suggested that he go out to see her as to what the trouble was, and that possibly a better understanding- could be arrived at by calling at the home to talk the matter over with her and to try to make her understand what he was trying to do for the boy. The defendant and his wife did go out one evening to Mrs. Drake’s home to discuss the matter and while there she said, “Why did you punish my son as you did?” To which the defendant replied, “I didn’t do anything that I didn’t think you would have done or your husband would have done, had you had one. The only thing I did was to try to get your son to realize that he has a responsibility to you and to his school and I hope that it is accepted from that point of view.” Then Mrs. Drake said, “Well, you will have to suffer for it.” Shortly thereafter suit was filed.

The first question that is called to our attention by the defendant is the rule that the authority of a teacher over a pupil is a delegation of parental authority, and where the teacher inflicts corporal punishment on a pupil, and he is not actuated by malice and the punishment is not excessive or wanton, the teacher is not liable. In discussing a like question as we have here on appeal, the court in the case of Fox v. People, 84 Ill. App. 270, passed upon a criminal prosecution brought by a pupil against his school teacher, for assault and battery. The act complained of was the whipping of the pupil with a switch about the size of an ordinary lead pencil. There was a trial by jury resulting in a verdict of guilty and a judgment entered on the verdict. The judgment was reversed on appeal, the court, citing from American and English Encyclopaedia of Lew, as follows, page 271;

“ ‘The authority of a teacher over his pupil being regarded as a delegation of at least a portion of the parental authority, the presumption is in favor of the correctness of the teacher’s action in inflicting corporal punishment upon the pupil. The teacher must not have been actuated by malice, nor have inflicted the punishment wantonly. For an error in judgment, although the punishment is unnecessarily excessive, if it is not of a nature to cause lasting injury, and he acts in good faith, the teacher is not liable.’ American and English Encyclopaedia of Law, Vol. 21, page 769.”

The rule of the above citation, as called to our attention, is necessarily the rule for a teacher stands in loco parentis. This rule is applicable to the facts in this case, and more especially when we consider that Mrs. Drake requested the school authorities to take such action as was necessary to make her son behave and attend school. Her first letter to the principal, dated January 9,1938, is as follows;

“ Chicago, Illinois, Jan. 9, 1938.
‘ ‘ To the Principal—
“I am writing you concerning my boy Bichard C. Drake 303 East 61 St. I work every day and I try all I can to get him to go to school but he goes when he feels like it and when he does not want to do he just stays home without any excuse whatever he went away from home and staid 2 nights he wont obey me at all I have talked everything I know to say to him trying to get him to do the right thing and it just seems like it is not in him will you please try and see if he needs a mental examination for there must be something wrong my work is so confining I can’t get to the School I talk to him and tell him if he does not do better he will be sent to the reform School he said they might take his dead body but not him I am really at my roads end please see if there is anything that can be done Mrs. Selika Drake mother 303 East 61 Street Apt 3.” A further letter, dated February 3, 1938, was received by the principal, as follows; “To the Principal—
“I am writing you again concerning Richard Drake 303 East 61 Street Apt 3 it just seems he has made up his mind he will go to School when he wants to and when he does not he does something else I leave home 7 oclock every morning going to work I wake him to get ready for School he will act like he is going until I leave then he will go back to bed and then when he does decide to go he is late and just to-day Thursday I came home from work early and he was still in bed asleep nothing at all wrong only pure laziness I will be willing for you to take what ever steps are necessary to make him come to School Thanking you in advance.
“Selika Drake mother”

These two letters were offered in evidence for the purpose of showing the nature of the boy’s conduct, the inability of the mother to cope with him, and her express request and delegation of authority to his principal and teachers to take whatever steps might be necessary to make him come to school and to behave. These letters were refused in evidence; therefore, the court did not have before it this evidence of the mother’s requesting the principal and teachers to correct her son. The refusal to admit these letters in evidence was, in our opinion, erroneous. These letters delegated to the principal and teachers the authority to correct her boy, and was an express delegation of parental authority to the teachers to do what could be done to correct her boy.

When we consider the facts in this case it does not appear that the defendant’s actions were actuated by malice, nor that the punishment was inflicted wantonly. As we have already indicated the punishment inflicted was not excessive. From the facts, there appears to have been no lasting injury, and that the teacher acted in good faith. From the facts as they appear in this record it is apparent that this boy (the plaintiff) was obstreperous and insubordinate. He was in a correctional school where boys of his character were transferred because he refused to attend and obey the rules of the Betsy Ross School, from which he was transferred. It is to be noted that the teachers in the Moseley School are experts with special training in handling delinquents. These teachers must maintain order in the- classrooms or chaos would result. It should be noted that they are teaching not the average pupil, but rather are teaching the maladjusted, the truants, delinquents and incorrigibles. In this particular case, nothing appears to indicate that there was any malice used in trying to correct this boy — which was necessary to control the other students in this particular school. Apparently the teacher was trying to convince this lad that he must obey the teacher in the various classrooms to which he might retire to receive such instructions as the principal might think necessary for the boy’s good.

The defendant was a big boy, 15 years of age, and weighing about 200 pounds. He had been given up as incorrigible at the Betsy Ross School and his own mother requested that he be transferred to Moseley. The reasons for the transfer are set out in defendant’s exhibit 3 of April 3, 1940, but this also was refused to be considered by the court in reaching its finding.

There are other citations of authorities that were passed upon by the courts in the various States regarding the rule that must be applied to a pupil who has been charged with acts of misconduct. Among these are Sheehan v. Sturges, 53 Conn. 481, 2 Atl. 841, cited upon this question, where the court approved the action of a teacher in whipping a student who had violated the reasonable rules of the school. The court there also approved of admitting in evidence past acts of misconduct in determining whether a teacher acted reasonably in administering punishment. Our attention is also called to the case of Heritage v. Dodge, 64 N. H. 297.

When we come to consider the facts as they appear in this case, and the question of the admissibility of evidence — which we have indicated should have been admitted to aid the court in determining the questions involved, rather than limiting the evidence to the happenings of March 24, 1938 — we are of the opinion that the judgment should be reversed. In passing upon the questions involved, this court did not have the aid of a brief by the plaintiff.

For the reasons stated the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.

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


author: Mr. Presiding Justice Hebel Denis E. Sullivan, J.,

text:
    People of the State of Illinois ex rel. J. D. Mikel, Appellee, v. Illinois Racing Commission et al., Appellants.
    Gen. No. 41,391.
    Burke, J., dissenting.
    Opinion filed April 23, 1941.
    John E. Cassidy, Attorney General, for appellants; Loring B. Moore and Wm. C. Clausen, Assistant Attorneys General, of counsel.
    Charles J. Michal, of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Cook county, entered on the 28th day of May, A. D. 1940, denying- the motion of the defendants (appellants) to quash a writ of mandamus issued under date of May 7, 1940, out of the office of the clerk of the circuit court of Cook county, pursuant to an order of the circuit court of Cook county, dated April 7, 1939, which order of April 7, 1939, directing’ the defendants to issue a license to J. D. Mikel, plaintiff (appellee), conformable to his application dated January 19, 1939, as a trainer for the period ending December 31, 1939, upon the payment or tender in cash by him, or his representative, of the requisite license fee in the office of the Illinois Racing Commission, as provided by an Act of the General Assembly of the State o,f Illinois known as the “Horse Racing Act,” in force June 13, 1927, and all amendments thereto and amendatory thereof, was appealed from to this honorable court in Gen. No. 40,845, and in February, 1940, said Appellate Court of the First District of Illinois, rendered its opinion, and entered a judgment which, except for the title, is in words and figures as follows:

“On this day came again the said parties, and the Court having diligently examined and inspected, as well the record and proceedings aforesaid, as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for what it appears to the Court now here that an adjudication by this Court of the matters and things herein assigned for error involves moot questions only; therefore, it is considered by the Court that said appeal be and the same is here dismissed out of this Court.

“And it is further considered by the Court that the said Appellee recover of and from the said Appellants his costs by him in this behalf expended to be taxed.”

Notice of appeal from the motion of the defendants-appellants, appealing from order overruling and denying motion of defendants-appellants to quash writ of mandamus, was filed on or about June 6, 1940, and the praecipe for record was filed on June 18,1940. The motion of the defendants-appellants to quash the writ of mandamus issued as hereinbefore set out, assigned as grounds and reasons for said motion:

“(1) That the duties of the defendants-appellants as members of the Illinois Racing Commission, as provided by Chapter 8, Section 37-a, of Illinois Revised Statutes (Illinois Bar Association Statutes 1939, Chapter 8, Section 37-a), and among the provisions it is provided as follows:

‘The Commission shall have the right to grant, refuse, suspend or withdraw licenses to horse owners, trainers, jockeys, agents, apprentices, grooms, . stable foremen, exercise boys, veterinarians, valets and platers to engag*e in their vocation within racetrack enclosures of licensed racetrack associations. Such license, when issued, shall be for the period ending December 31st in each year for a nominal fee of not more than $5.00. . . . The Commission shall have the right to enact such rules, regulations and conditions necessary or proper for the enforcement and supervision of the duties and requirements in this paragraph contained.’

“Wherefore it appears that the right to'grant said license expired on December 31, 1939, and these defendants are without authority of law to issue said license as of or after the date of the service upon them, and each of them, of the writ of mandamus herein referred to.

“(2) That said order, pursuant to which said writ of mandamus issued, was entered on April 7, 1939, and said order was appealed from by these defendants to the Appellate Court of the State of Illinois, First District, in case No. 40845, and thereafter said Appellate Court, in February, 1940, rendered a decision dismissing the appeal and delivered therewith the opinion of the court, in which said opinion the court, among other things, stated as follows:

1 ... so that no real benefit will accrue to the petitioner from the issuance of the writ, there is no reason for deciding the case on the merits, and the appeal will be dismissed even though the trial court awarded the writ. So we find that the period of time for this license had passed by the time the matter was presented to this court for a decision on appeal, and applying the rule of the Supreme Court that as no real benefit will accrue to the petitioner from the issuance of the writ, there would be no reason for passing upon the merits of controversy as presented here, the appeal will be dismissed even though the trial court awarded the writ. For the reasons stated the appeal is dismissed. ’

“(3) That the effect of the appeal by these defendants from the final order of the trial court to the Appellate Court of Illinois, First District, was to render said order not final, and the issuance of the writ dependent upon the order of the Appellate Court; and that the decision of the Appellate Court did not provide for the issuance of said writ of mandamus.”

It is contended upon this appeal that courts of record have power in all cases over the process of their court (citing cases). It would appear from the briefs filed in the instant appeal that notwithstanding the fact that the order for the issuance of the writ, granted April 7, 1939, was appealed from and the decision of the Appellate Court was rendered in February, 1940, dismissing the appeal as a moot question, the relator procured the issuance of the writ on May 9, 1940, treating the dismissal as tantamount to an affirmance and without making any new application to the trial court. It was the duty of the clerk to have refused to issue the writ without further direction from the court. In the case of Sandburg v. Papineau, 81 Ill. 446, the court held that, “There is no principle of law better recognized than that which gives to courts of record power over the process of their courts. It is essential to the administration of justice, and it by no means depends upon statutory enactment, but the power is coeval with the common law courts; and such courts will recall their process and quash the same, when it is shown that it would be illegal or inequitable to permit its further use, and to allow it to be enforced.” The jurisdiction of the lower court to quash the writ of mandamus in this case is hardly questionable. (Sandburg v. Papineau, supra; National Bank v. Stoddard, 70 Ill. App. 79.)

There is no doubt that an appeal will lie on the denial of a motion to quash. In Butterfield v. Diekman, 200 Ill. App. 627, it was held that a judgment on a motion to quash an execution is a final judgment, and an appeal will lie therefrom, and is an authority that the denial by the lower court of the defendants ’ motion to quash the writ of mandamus issued in this case is an appealable order. In People ex rel. Ratsky v. Haas, 351 Ill. 68, the court sustains the contention of appellants that it was the duty of the court to quash the writ issued as it was after the decision of the Appellate Court dismissing the appeal on the ground that the question presented on the merits had become moot, and as expressly stated in the Appellate Court opinion. The Appellate Court had power to award the writ of mandamus in furtherance of its appellate jurisdiction, and it is well suggested that it would have affirmed the lower court’s decision if it had intended the writ to issue. The lower court was under a duty to examine the mandate and opinion of the Appellate Court in order to determine its course after dismissal of the appeal.

It is the rule that a writ of mandamus will not issue where the circumstances have changed or where a question involved has become moot, and the writ will not issue where by reason of changed circumstances such writ would be contrary to law and produce no beneficial result. (People ex rel. Mulvey v. Chicago, 292 Ill. App. 589; People ex rel. Jaros v. Jarecki, 299 Ill. App. 382.) See also Gormley v. Day, 114 Ill. 185, and Minwegen v. Coughlin, 181 Ill. App. 354. In the last mentioned case it appears that there as here lapse of time had rendered the issuance of a writ inefficient as to the remedy sought. The Supreme Court in the case of National Jockey Club v. Illinois Racing Commission, 364 Ill. 630, passed upon a like question as involved in the instant case. In that case the purpose of appellant was to compel a re-allotment of dates for the racing season of 1936, and the suggestion was made that the commission exceeded its statutory jurisdiction, proceeded illegally, arbitrarily refused to allot to appellant the dates requested, in violation of the statute and appellant’s constitutional rights, and that section 4 of the Racing Act, fixing license fee's on the basis of population, is an arbitrary and discriminatory classification, in violation of the State and Federal constitutions. The court upon the question said:

“It is obvious that the time for racing dates allotted by the commission and the additional dates requested by appellant has expired. Relief respecting any of those dates is not now possible. As to that issue the question has become moot. The rule is, that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved it will dismiss the appeal or writ of error and will not review the cause merely to decide moot ques- . tions. The duty of judicial tribunals is limited to determining rig’hts of persons or of property actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to render an opinion on a question of law that opinion may have weight as a precedent for future decisions, but the court has no power to decide moot questions, or abstract propositions, or to declare, for the govern- ' ment of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. People v. Village of Oak Park, 356 Ill. 154; Tuttle v. Gunderson, 341 id. 36; People v. Sweitzer, 329 id. 380.” In the instant case, the commission cannot call back the year 1939 and enable the relator to train horses in 1939. Moreover, its legal right to license to train horses in 1939 has passed, as it was shown in the motion to quash. . The issuance of the paper purporting to license for 1939 cannot lawfully be done by the commission, and the court also is without power to enforce its judgment.

A motion was made by appellee to dismiss this appeal, which motion was reserved to a hearing. In view of what we have said in this opinion, this motion will be denied.

Having considered the questions as they are called to our attention and presented by the briefs, we are of the opinion that the trial court erroneously denied the motion of the defendants to quash the writ of mandamus improvidently issued on May 7, 1940, and the cause is reversed and remanded to the- trial court with direction that the said writ of mandamus be quashed.

Reversed and remanded ivitli directions.

Denis E. Sullivan, J.,

concurs.

Mr. Justice Burke dissenting: Relator filed his amended and supplemental petition for mandamus in the circuit court of Cook county to compel defendants to issue to him a race horse trainer’s license for the year 1939. Defendant answered, to which relator replied. The case was tried before the court without a jury. It is conceded that relator filed application in due form and tendered the statutory fee. The reason why the issuance of the license had been refused by . defendants was because of a finding that he obtained a registered certificate of a jockey club for a horse named “My Bane” upon false representation of the date of the birth of the horse. After the introduction of testimony and a full hearing’ the court found the issues for the relator, entered judgment against the defendants, and directed that a writ of mandamus issue commanding them to issue a race horse trainer’s license for the year 1939. Defendants appealed. A supersedeas was granted, which stayed the issuance of the writ of mandamus. This court, in an opinion filed February 14, 1940, 303 Ill. App. 654 (Abst.), (Burke, J., dissenting) dismissed the appeal, holding that since at the time the opinion was handed down the year 1939 had passed, only a moot question was involved. On March 8, 1940, the mandate was filed in the trial court and pursuant thereto the writ of mandamus issued. Defendants filed their motion to quash the writ of mandamus. This motion was based on the ground that the license directed to be issued would expire on December 31, 1939, and that, therefore, the writ of mandamus would be ineffective. The circuit court denied defendant’s motion to. quash the writ of mandamus. The instant appeal is from the order overruling and denying defendant’s motion to quash the writ of mandamus.

It will be observed that the trial court was not asked to vacate the judgment on which the writ of mandamus is based. It was only asked to quash the writ of mandamus. The judgment order of April 7,1939, commanding the issuance of the writ stands in full force. In view of the fact that the previous appeal was dismissed, that judgment order is now res judicata on the question of the right of J. D. Mikel to a race horse trainer’s license for the year 1939. The matters that were then in issue cannot be relitigated. I am of the opinion that this court should have considered all of the points raised by the parties in the previous appeal. I. do not agree that the question presented has become moot. Relator should be permitted to file a supplemental petition setting up the proceedings since the • filing of his previous petition, and praying for the issuance of a license for the year 1941. Defendant, on a hearing on such supplemental petition and the answer thereto, would have the right to be heard and to present evidence as to any matters affecting the issues arising- subsequent to the judgment order of April 7, 1939. The judgment order of April 7, 1939, is res judicata as to all matters presented by the . pleadings oil which such order was entered and should not be relitigated. A moot question is not involved because at the time the judgment order of April 7, 1939 was entered the question as to relator’s right to a license was in issue. The actions of the defendants indicate that they are determined not to comply with the judgment order of April 7, 1939, which stands in full force. Under the procedure defendants are attempting to follow, each year when Mikel applies for a license and it is denied, the court will be asked to enter a judgment that a writ of mandamus issue, and if the court grants such prayer defendants will appeal and by the time the case comes to this court the year will have passed. Thus, defendants, if successful, will be able to evade the order of the court. As the judgment order of April 7, 1939, stands in full force, we should not do anything that will in any way interfere with the jurisdiction of the circuit court to carry out its order. I am of the opinion that the motion of relator (appellee) to dismiss the appeal which was reserved to hearing, should be allowed.