text:
    Benjamin Baltzer, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 34,687.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    David K. Tone, for appellant.
    Samuel A. Ettelson, Corporation Counsel, Edward C. Higgins, Special Assistant Corporation Counsel, Miller, Gorham & Wales and Watkins, Ten Hoor & Gilbert, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Baltzer, as citizen, resident and taxpayer, filed a bill of complaint seeking to enjoin the payment by the City of Chicago of moneys claimed to be due to defendants Gorham and Gilbert for services. He made defendants thereto the City, its comptroller and treasurer, and Gorham and Gilbert. Defendants appeared and filed general and special demurrers which were sustained, and complainant electing to stand by his bill, a decree was entered dismissing the same for want of equity. To reverse that decree complainant has perfected this appeal.

The question to be determined is whether the bill states a cause of action. In considering that question the demurrers admit all facts well pleaded, but the allegations of the bill are construed most strongly against the pleader.

The material averments of the bill are that in the year 1907 the City of Chicago granted to certain traction companies the right to operate street railways for a period of 20 years upon payment of 55 per cent of the net proceeds into the treasury of the City; that these net proceeds as received were to be credited to a separate fund to be kept and used only for the construction of street railways by the' City; that this traction fund now amounts to the sum of $54,000,000, which is in the custody of the treasurer of the City; that the traction ordinances expired in February, 1927; that the traction companies were not able to agree upon the terms of new franchises; that the security holders of the Chicago'Railway Company caused a receiver to be appointed in the United States District Court; that Judge Wilkerson of that court, at the request of a group of security holders of said company, appointed a citizens’ traction settlement committee; that Albert A. Sprague, John A. Carroll, Joseph R. Noel and Charles M. Thompson were so appointed; that defendants Gorham and Gilbert are practicing attorneys; that the committee was not appointed by the City, or by anyone acting for or authorized to act for the City, but was appointed with a view of protecting the interests of the Chicago Railways Company in the proceedings pending in the United States District Court; that Gorham and Gilbert as counsel for the said committee drafted six bills that were introduced in the legislature in March, 1929; that one of these bills authorized cities and villages to grant indeterminate franchises for local transportation purposes ; that another bill provided for local transit commissions in cities having a population of 500,000 or more, giving to such commissions the jurisdiction now exercised by the Illinois Commerce Commission over local transportation utilities in such cities; that another bill provided for the organization under the General Incorporation Act of corporations with authority to acquire and operate elevated and street railroads, bus lines and other transportation facilities; that another bill provided that frontage consents should not be required for laying tracks in subways and on streets in which tracks were already laid; that Gorham and Gilbert caused to be sent out to members of the legislature of the State and to other interested persons, printed matter advocating the passage of these bills, and appeared before various committees of the legislature and made arguments in support of said bills, and gave out interviews to reporters and editors of newspapers of the merits of these bills and attempted in a variety of ways to influence the members of the legislature and their friends to support the same; that on December 22, 1928, Samuel A. Ettelson, corporation counsel of the City, appointed Gorham and Gilbert assistant corporation counsel; that during the years 1928 and 1929, Frederick A. Bangs and John D. Drennan, practicing lawyers, were appointed by the corporation counsel, special assistant corporation counsel to represent the interests of the City in all matters relating to local transportation; that Ettelson claims that he appointed Gorham and Gilbert assistant corporation counsel for the purpose of acting as counsel for the citizens’ traction settlement committee; that Gorham and Gilbert have presented bills to the corporation counsel against the City amounting to $13,095 and $15,354.50, respectively; that the services rendered by them consisted solely in drafting so-called traction bills, conferring with counsel for the City, counsel for the traction companies, counsel for the receivers with reference to the said proposed bills, in appearing before the local transportation committee, the city council and the legislature of the State, and in advocating the passage of said bills; that the corporation counsel of the City intends to direct the comptroller and the treasurer to pay the amounts claimed by Gorham and Gilbert out of the traction fund of the City now in possession of the city treasurer; that no ordinance or resolution has ever been passed by the city council authorizing or directing the corporation counsel, the comptroller, the treasurer, or any official of the City to use any portion of the traction fund for the payment of any services rendered or claimed to have been rendered for the City by Gorham and Gilbert; that in case the corporation counsel cannot secure the payment of said fees of the traction fund, he intends to direct the comptroller and the treasurer to pay the same out of the funds appropriated for the corporation counsel for the year 1929; that the Annual Appropriation Ordinance passed by the City on January 5, 1929, did not provide for the payment of services rendered by Gorham and Gilbert; that the legislature of the State has never conferred upon the City the power to expend corporate funds in the manner proposed, or the power to.expend corporate revenue for services rendered in drafting proposed bills introduced before the legislature or for services rendered in lobbying before the legislature for the passage of such bills; that such payment would be an unlawful diversion of the corporate funds of the City.

The question for determination is whether the City of Chicago, in the absence of an express grant, has authority to use its corporate revenue in paying the expenses of attorneys or others for the purpose of securing from the legislature legislation of the kind described in the bill.

Section 7 of the Cities, Villages and Towns Act, Cahill’s Ill. Rev. St. 1929, ch. 24, ¶ 289, provides:

“The head of the law department of the city shall be the corporation counsel, and the duties heretofore performed by the city attorney shall be performed by the corporation counsel and his assistants. From and after the adoption of this Act the office of city attorney shall be abolished.

“The corporation counsel shall be and act as the legal adviser of the city council and of the several officers, boards and departments of the city. He shall appear for and'protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department, including actions for damages, when brought against such officer in his official capacity; provided, however, that when an officer or employee of the city is sued personally, even if' the cause'of action arose out of his official duties, the corporation counsel shall appear for such officer or employee only in casé the city council directs him to do so.”

This is the language of the section as amended by an act approved June 25, 1929 (see Laws of 1929, p. 208). Sections 107, 108, 111, 112 and 113 of chapter 5, article 1, of the Chicago Municipal Code provide as follows:

“Sec. 107. The corporation counsel shall have the power of appointing and removing all or any of his assistants and clerks.

“Sec. 108. He shall superintend, and with the assistance of the city attorney, prosecuting attorney and his other assistants and clerks, shall conduct all the law business of the city.

“It shall be the duty of the corporation counsel and all other officers of the city, if any, who shall be given authority to make settlement of lawsuits or controverted claims against the city of Chicago to report in writing, at the first regular meeting of the city council in each hand every month, all cases where settlements have been made of such lawsuit or claim.

“Sec. 111. The corporation counsel shall draft such ordinances as may be required of him by the city council or by any committee thereof.

“Sec. 112. The corporation counsel shall draw any deeds, leases, contracts, or other papers required by the business of the city, when requested so to do by the mayor, the city council, or the head of any department.

“Sec. 113. The corporation counsel shall, when required so to do, furnish written opinions upon subjects submitted to him by the mayor, the city council or by the head of any department.”

There is no doubt of the general rules applicable. A municipality has only such express powers as are granted to it by the State and such powers as are necessarily implied in the powers expressly granted. A municipal corporation derives its existence and all its powers from the general assembly of the State. It possesses no inherent powers but has only such as are granted by statute, and these powers are strictly construed. Where there is a fair and reasonable doubt of the existence of a power asserted, the doubt is resolved against the municipality. The city council has power to appropriate money for corporate purposes but the corporate purpose must be germane to the purpose for which the corporation was created and must have a legitimate connection with those objects. These are the fundamental principles which are clearly set forth in the recent case of Elsenau v. City of Chicago, 334 Ill. 78.

But while such are the general rules, there is a diversity of opinion in the courts of the different States as to the application of the rules to a particular state of facts. In In re Taxpayers and Freeholders, 50 N. Y. S. 356, it appeared that there was an application of taxpayers and freeholders for a summary investigation of the financial affairs of the village under a statute and an order of a justice, who made an investigation and entered an order denying the right of the city to pay certain items of expense. One of these items was for attorney’s fee for appearing before committees of the legislature to secure the passage of a law to bond the village for certain public improvements. The court, with some hesitation, held that the item was a proper charge.

In Bachelder v. Epping, 28 N. H. 354, the selectmen of that municipality called a meeting of the inhabitants, who voted to raise $1,500 to purchase land and to erect a courthouse, if the court of common pleas should hold court in that municipality instead of in Exeter. The meeting appointed a committee to apply to the legislature to that end. The committee performed the service and presented a bill for necessary expenses incurred. The case was referred to an auditor who reported that the expenses were incurred and the bill was otherwise proper and should be paid, if it was legal to do so. The court held that the town was liable just as an individual would be liable under similar circumstances.

In Farrel v. Town of Derby, 58 Conn. 234, 20 Atl. 460, 7 L. R. A. 776, the Supreme Court of Connecticut held that a town could expend money to employ counsel to defend its territorial integrity before the legislature of the State.

In Field v. City of Shawnee, 7 Okla. 73, an expenditure made in employing a lawyer to appear before the secretary of the interior to secure the location of a railroad line within the limit of a municipal corporation was held to be ultra vires in the sense that it was wholly without the scope of the purpose for which the corporation was created, if not prohibited by statute. The opinion there distinguishes between powers which are wholly ultra vires and those which are ultra vires because some required person has not given consent as prescribed and others because the particular act was not authorized for a particular purpose.

In Shannon v. City of Huron, 9 S. D. 356, it was held that expenses to promote a campaign to have the capítol of the state located in the City of Huron were incurred without authority, since such expenses would raise the debt limit of the city above the amount fixed by a constitutional limitation. In Colusa County v. Welch, 122 Cal. 428, an allegation of a bill that if the amount “was agreed to be paid to said Sprague, it was to secure, by means of personal solicitation and by means of private interview with members of the legislature of California, and .by means of lobbying, the defeat of said senate bill,” was held to bring the case within the rule against such expenditures stated by Judge Cooley in Cooley on Constitutional Limitations, 6th ed. 163. In State v. Superior Court, 93 Wash. 267, an expenditure for influencing an election was held illegal and without the powers of a municipal corporation. In Westbrooh v. Deering, 63 Me. 231, it was held (contrary to the Connecticut case) that a town could not incur expenses in opposing before a legislature committee a division of its territorial limits. In Henderson v. City of Covington, 14 Bush (Ky.) 312, it was held that the city might not- incur expenses in procuring legislation which would increase the powers of the city so as to permit it to build a bridge over the Ohio river.

In Valentine v. Robertson, 300 Fed. 521, a suit was brought to enjoin the payment by the City of Juneau, Alaska, of the sum of $2,000 to defray the expenses of one Eobertson in going to Washington, D. C;, and using his best endeavors to forward the passage of legislation advancing certain projects. These included the division of the territory of Alaska, the erection of a government dock and government building at Juneau, the dredging of Gastineau Channel at Juneau, the dredging of a canal from Hawk Inlet to Stevens Passage and a canal connecting Stevens Passage with Oliver’s Inlet, the establishment of a mail route on the north shore of Chichagof Island and of a land office at Juneau, the dredging of Wrangell Narrows, to work with the delegate from Alaska to secure the passage of a bill to authorize Juneau to issue bonds for street improvements afid the establishment of permanent streets in the city. The opinion of the court reviews the authorities, including those above cited, and states: “The City of Juneau has the benefit of the aid of a delegate to Congress from the territory of Alaska, upon whom it may call for the furtherance of any neces- • sary legislation in Congress. We hold that it has no authority, express or implied, to engage and pay for out of the public funds an emissary to go to Washington to lobby for the passage of the pending bill to authorize the city to issue bonds for street improvements or for the furtherance of any of the projects mentioned in the resolution of January 29, 1924.”

The judgment in favor of the city was therefore reversed and the cause remanded with directions to grant the injunction as prayed in the bill. That opinion discusses quite at length the case of Meehan v. Parsons, 271 Ill. 546. In that case certain taxpayers filed their bill to enjoin the payment by the City of Cairo to one Parsons the sum of $1,500 which had been allowed and ordered paid to him by the city. A temporary injunction issued, which was afterwards dissolved and upon final hearing the bill was dismissed and on appeal to the Appellate Court the decree was reversed. The cause was originally heard upon the bill and answer. The facts were that Parsons during the year 1912 attended sessions of Congress in Washington to lobby for and obtain, if possible, an appropriation from the federal government of money to build levees and embankments in and about Cairo and a drainage district adjacent thereto. Parsons was then the mayor of Cairo and received a salary of $1,000 per annum. The work which he did at Washington was done on behalf of the Cairo Drainage District, a municipal corporation lying outside the City of Cairo, and on behalf of railroads and other corporations and himself, as well as on behalf of Cairo. It appeared that the amount asked by Parsons was only for his actual, reasonable, necessary and suitable expenses proper to be incurred by him in the accomplishment of his work;, that he had paid and advanced an amount in excess of $1,500 on behalf of the city; that he claimed no compensation from the City of Cairo for his time or services ; that a flood in the Ohio and Mississippi Rivers, occurring after the passage of the annual appropriation bill of Cairo, demonstrated the necessity of raising and strengthening the levees of Cairo and the impracticability of providing a sufficient sum for the work without assistance from the general government in order to complete the necessary work before the next spring rise in the rivers should menace the safety of the city; that an emergency therefore arose which was unexpected at the time the annual appropriation bill was passed; that Parsons, as mayor of the city, made three trips to Washington; that he lobbied, interviewed and importuned senators and congressmen on behalf of Cairo for an appropriation, and remained in Washington until an appropriation of $250,000 was secured by an act of Congress.

The principal contention there, as here, was that it was contrary to public policy for the city to reimburse for expenses incurred in lobbying, and authorities were cited to the proposition that an agreement for compensation contingent upon obtaining legislation was void and that a contract to promote the passage of laws and ordinances and paying expenses or compensation therefor was against public policy and could not be enforced. The court said:

“The courts have not gone so far as to hold that in no event and under no circumstances is it proper to interview and importune members of a legislative body to enact certain legislation in which the party importuning them may be interested. The interests of the City of Cairo would undoubtedly be affected by whatever action Congress should choose to take in reference to the appropriation for the building of its levees. Should Congress refuse to appropriate any sum whatever, the whole burden of building and maintaining its levees would rest upon the city. That burden would be lightened by whatever appropriation Congress should see fit to make. The city therefore had the undoubted right to authorize its chief executive to appear before the various congressional committees and interview the members of Congress to urge upon them the claims of the city and to advance any legitimate argument in favor of the passage of an appropriation bill for the relief of the city in this respect.” The judgment of the Appellate Court was reversed and the decree of the circuit court was affirmed.

As stated in the beginning of this opinion the elementary rules that should control are well settled, but the application of these rules under different statutes and different circumstances that arise is a more difficult matter. There is no doubt that a municipality is without the power or right to appropriate the money of the taxpayers for any purpose which would serve a private end merely or that would not be for the benefit of the whole number of taxpayers and citizens within its limits. Here by express legislation, the State seems to have given to the corporation counsel of the City of Chicago full and complete control of the law business and legal affairs of the city: Moreover, the legislature of the State has expressly conferred.upon the City of Chicago the power to construct or acquire street railways, not only upon the surface of the streets but also above or beneath the surface. It has also given the city power to construct subways for street railways and to lease the same to street railway companies. It is held not unlawful for the City to grant street railways the exclusive use of subways, and in the exercise of its power to construct subways it may use the traction fund already described. Barsaloux v. City of Chicago, 245 Ill. 598. Where powers such as these are conferred upon the city and where it- has such large financial interests, it would be an unusual and extraordinary view to hold that it might not employ counsel to protect its interests either in court or before the State legislature. It must, we think, be held that with the grant of these great powers by implication the legislature also gave authority and right to obtain legal advice necessary for the proper use and preservation of the same.

There is no allegation here that the services of Mr. Gforham and Mr. Gilbert were in the direction of bringing any improper influence to bear upon the legislature by private interviews with members, or otherwise. We would not hesitate to condemn any agreement for such services. Nor is there any complaint that the fees charged are excessive. Indeed, counsel for complainant upon oral argument stated that in his opinion the charges were less than they should be.

The point is also made in complainant’s original brief that the bill alleges that this expense was not appropriated for in the annual appropriation ordinance for the year 1929, as required by section 2, article 7, of the Cities and Villages Act, Cahill’s St. ch. 24, 1j 92, and it is urged that the demurrer should not have been sustained for that reason. The contract was made in December, 1928, as the bill alleges. There is no allegation that the appropriation for the office of corporation counsel for that year was exhausted. The point cannot be sustained. City of Chicago v. Berger, 100 Ill. App. 158.

The demurrers were properly sustained, and the decree dismissing the bill is affirmed.

Affirmed.

O’Conuor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Pennsylvania Tank Line, Appellee, v. Larkin F. Jordan et al., Defendants. Joseph H. McCabe, Appellant.
    Gen. No. 34,850.

      Heard in the first division of tMs court for the first district at the June term, 1929.
    Opinion filed March 2, 1931.
    Rehearing denied March 16, 1931.
    Frank H. Repetto, for appellant.
    Miller, Gorham & Wales, for appellee.,
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This cause is one of five which were transferred to this court by the Supreme Court. In each case the defendant was adjudged guilty of contempt by the trial court and several appeals were taken to the Supreme Court and there consolidated for hearing. These appeals were prayed and allowed to the Supreme Court upon the theory that constitutional questions were involved. That court held to the contrary. Pennsylvania Tank Line v. Jordan, 341 Ill. 94. The same briefs are presented to this court that were filed in the Supreme Court, and the opinion of that court seems to dispose of practically every alleged error assigned and argued. The facts are fully stated in that opinion, and it will be unnecessary to repeat them here further than to say that on July 25, 1928, complainant filed its bill in chancery against defendants, asserting that it was engaged in the business of leasing tank cars owned by it and that complainant was a subsidiary of the American Republics Corporation; that for a period of time subsequent to June 4, 1918, defendant Jordan had exclusive direction and control of the operations of complainant’s tank line, especially of its leases of tank cars; that about June 26, 1919, Jordan and certain other defendants entered into a conspiracy to obtain the profits of complainant by means of renting its cars to a fictitious lessee, and that to that end defendants organized the Woodlawn Company and used it as a dummy, thereby appropriating profits of complainant to the amount of $256,450. The bill prayed an accounting and that defendants might be decreed to hold this property obtained by them in trust.

On the same day the bill was filed a subpoena was issued by a master in chancery notifying defendants to appear before him and give their testimony in the case. They declined to appear except to assert that the master was without power or right to take their testimony. The master reported the facts to the court, and on petition of complainant defendants were ordered to appear before the master and give their testimony. Again they refused, denying the power or authority of the master under the order, whereupon on further report of the facts by the master and on petition of complainant, a rule was entered upon defendants to show cause why they should not be attached and punished for contempt of court. Defendants filed their joint and several answer to the rule. The answer was adjudged insufficient. Thereupon each and all of the defendants were found guilty, and it was adjudged that each of them stand committed to jail until such time as he should appear and testify as directed or ■ until he should be otherwise discharged from imprisonment by due process of law.

. The Supreme Court.having disposed of all constitutional questions, it remains for this court only to consider other errors assigned and argued. The contention of defendant McCabe seems to be that since defendants filed their several sworn answer in response to the rule to show cause, such answer must be taken as true, and that.it is sufficient to purge the defendants of contempt. He cites in support of this contention People v. McLaughlin, 334 Ill. 354, which' was a case for criminal contempt, and that is undoubtedly the rule to be applied in such cases. It is not applicable here, as will appear from an examination of a case relied on by defendant on another point. Lester v. People, 150 Ill. 408. This is a civil contempt.

It is contended in the next place that the bill of complaint stated a case at. law rather than in equity., and that the statute under which the proceeding to compel defendants to testify was brought was not applicable and the court was therefore without jurisdiction. Defendants did not demur to the bill on that ground but answered, saving the point in their answer. Further, defendant McCabe filed a cross-bill stating a cause in equity and praying for affirmative relief. Again, it is not argued that the relief prayed for by complainant in its bill could be given as fully and completely at law as in equity. Courts of chancery and law sometimes have concurrent jurisdiction, and in such case complainant may elect in which court he will proceed. Yet again, the bill alleges a fiduciary relationship on the part of some of the defendants, charges a general conspiracy by all of them to defraud and prays that defendants may be decreed to be trustees and that an account may be taken and general relief may be had. The suit was prima facie in chancery, and under the facts stated that court had jurisdiction. Ohlendorf v. Bennett, 241 Ill. App. 537; Billboard Pub. Co. v. McCarahan, 151 Ill. App. 227; Crown Coal & Tow Co. v. Thomas, 177 Ill. 534.

It is next urged that the subpoena of the master was issued before the bill was filed and that it was void for that reason. The bill was filed July 25, 1928, at 2:18 p. m., and the subpoena was placed in the sheriff’s hands ten minutes later. These facts are hardly sufficient to establish that defense, but however that may be, defendants appeared before the master and stated their reasons in writing for refusing to testify. They did not state any objection upon the ground that the subpoena was prematurely issued, and that point must therefore be regarded as waived. Miles v. Goodwin, 35 Ill. 53; Beecher v. James, 2 Scammon, 462.

Again, it is urged that whereas the certificate of the master was made August 10,1928, it was not filed until September 27 thereafter, and that the master did not appear in person to request that the rule to show cause might be entered. There was no reason for the personal appearance by the master in that regard. Such action on his part would have been unusual and perhaps subject to criticism. Moreover, the delay of which defendant complains was not in our opinion unreasonable in view of the fact that it occurred during the summer vacation, at which time only emergency matters might be properly presented to the court. Defendant cites no authority on this point. We think none could be found.

But again assuming that the suit was pending in chancery, defendant contends that there was no necessity shown for taking defendant’s depositions, and it is urged that this is required by section 24 of the Evidence Act, Cahill’s St. eh. 51, ft 24. It is said that no necessity was averred in the bill; that the bill propounded no interrogatories and prayed no discovery; that neither in the bill nor in any affidavit attached thereto was there any attempt to show that which defendant contends was a prerequisite essential, namely, a necessity. It is further urged that the recitation in subsequent petitions of such alleged necessity could not cure that defect, and on this point defendant relies on People v. Miller, 245 Ill. App. 524. In that case it appeared that on June 22, 1926, Paul Miller and other defendants were found guilty of contempt for refusing to appear and testify before a master, and defendants were ordered committed to jail until such time as they might comply. The order directing them to testify was entered May 26, 1926, and the cause in which they were ordered to testify was begun January 12, 1921. In February thereafter the cause was referred to a master to take proofs and report his conclusions. These defendants had appeared before that master and testified at length. A second amended supplemental bill was filed March 23, 1926, and on April 6, 1926, Miller and others filed a joint and several answer. It was while the cause was thus pending that complainants caused subpoenas to be served requiring defendants to appear before a different master to give their depositions, but defendants did not appear. On May 26, an order was entered that they appear before this second master on June 3,1926. Again they did not appear, and on June 5th a rule was entered to show cause.

On June 10, they answered alleging that they had testified fully before the other master; that an examination in that case had not been completed, but that 65 separate hearings had been held; that they all resided in Chicago, and that none of them intended to depart from the jurisdiction, but that they were ready and willing to testify before the master to whom the cause was referred; that the further taking of evidence in that cause had been set for June 18,1926. Miller having appealed to this court, the appeal was considered by the Second division upon an ex parte hearing, as complainants did not appear or file any briefs. The court said in substance that under section 24 only such testimony should be taken by deposition as was “necessary”; that nowhere in the petitions of complainants nor by any facts stated or disclosed did it appear that it was necessary to take the testimony of defendants before the second master, or that the testimony sought was pertinent to the issues; that it clearly appeared that any proper testimony sought to be procured by complainants in the proceeding to take depositions could have been readily procured by the master to whom the cause was originally referred. The court further stated that it did not think that the decision in Hill v. Thomas B. Jeffery Co., 292 Ill. 490, was contrary to these holdings.

The facts which we have already recited disclose ,/ that that case is easily distinguishable from the instant one. Moreover, complainants in that case did not appear in the Appellate Court or file any briefs. The case was therefore heard ex parte. The briefs did not point out nor the opinion consider a point which would appear to be controlling, namely, that there is a clear distinction between an order which is absolutely void and one that is merely voidable or erroneous. The essential difference is that an order which is merely voidable or erroneous is not subject to collateral attack, while an order absolutely void for' want of jurisdiction in a court which enters it is subject to attack at any place or time thereafter. Here, the orders of the court may or may not have been erroneous. Assuming that they were erroneous, nevertheless the court was not wholly without jurisdiction either of the subject matter or of defendants. Defendant thereafter could not successfully raise the question that the original order was erroneous in response to the rule to show cause. It has been so held in numerous decisions of this and the Supreme Court. Butter v. Champlin, 124 Ill. App. 29; People v. Weigley, 155 Ill. 491; Leopold v. People, 140 Ill. 552; Swedish-American Tel. Co. v. Fidelity & Casualty Co., 208 Ill. 562. The distinction between void and voidable orders is thoroughly discussed in Miller v. Rowan, 251 Ill. 344.

It is well settled, contrary to the contention of defendant, that a defendant may be compelled to give his deposition before trial. Doyle v. Wiley, 15 Ill. 576; Harding v. American Glucose Co., 182 Ill. 551; Schmidt v. Cooper, 195 Ill. App. 531, affirmed in 274 Ill. 243.

There is no reversible error in this record and the judgment of the trial court will therefore be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Ralph Snyder, Plaintiff in Error.
    Gen. No. 34,548.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Ellis & Westbrooks, Richard E. Westbrooks, Blaine G. Alston, DeFrantz R. Williams and Barbara Watts Goodall, for plaintiff in error; Richard E. Westbrooks, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edward E. Wilson and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Upon trial by the court, a jury being waived and defendant pleading guilty, the court adjudged him guilty of larceny as bailee of property of the value of $15. He was sentenced to imprisonment in the House of Correction in the City of Chicago for the term of one year and fined $1' and costs. By this writ of error defendant seeks a reversal, presenting no bill of exceptions and making only one point, namely, that the information is insufficient in that it omits the word “fraudulently” which, it is argued, is an essential word in the statute which provides for penalties for bailees who fraudulently convert property to their own use.

The information charges that the defendant “then and there being the bailee of certain goods and chattels, to wit; one gent’s watch of the value of fifteen dollars ($15.00), the personal goods and chattels of the J. H. Mace Co., a corporation, the said Ralph Snyder did then and there wilfully and unlawfully convert the said watch to his own use and gain with the intent then and there to steal the same and to permanently deprive of same the said J. H. Mace Co., a corporation, the lawful owner thereof,” contrary to the form of statute in such case made and provided and against the peace and dignity of the People of the State of Illinois. It is unnecessary to determine whether or not the omission of the word “fraudulently” from the information makes it fatally defective, if the prosecution was under section 1, paragraph 389, chapter 38, Cahill’s Illinois Statutes. The information shows that the prosecution was not under this section of the statute, but under section 170, paragraph 388, chapter 38, .Cahill’s Statutes. This reads as follows:

“If any bailee of any bank bill, note, money or other property, shall convert the same to his own use, with intent to steal the same, or secretes the same with intent so to do, he shall be deemed guilty of larceny.”

The information is couched in virtually the language of this statute. No essential word or element is missing and it will be noted that the word “fraudulently” is not contained in this statute. This sufficiently charged the offense which, if committed, makes the offender guilty of larceny. People v. Valanchauskas, 324 Ill. 187; Young v. People, 193 Ill. 236; Bergman v. People, 177 Ill. 244. It has been repeatedly held that, where the offense is statutory, it is sufficient to allege the crime in the words of the statute, provided it sufficiently defines the crime. McCracken v. People, 209 Ill. 215.

The judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.

Supplemental Opinion of the Court Upon Rehearing.

Rehearing being allowed, attorneys for defendant reargue that one cannot be charged with the crime of larceny as bailee by information where the value of the property is for $15 or less, but must be proceeded against by indictment, citing People v. Russell, 245 Ill. 268, where it was held that larceny, irrespective of the amount involved, was an infamous crime which could be prosecuted by indictment only. The opinion in this case was filed in 1910. In 1911 the legislature provided that, if the punishment for larceny was by imprisonment in the penitentiary the crime would be infamous. Section 7, Division 2 (Cahill’s St. ch. 38, 616). This left it open to proceed against one charged with petit larceny by information, as petit larceny was not an infamous crime. In People v. Waltyn, 191 Ill., App. 86, this section was held to change the common law under which petit larceny was a feloiiy and to make this crime a misdemeanor; that while prior to the amendment of 1911 it was necessary to proceed against a defendant so charged by indictment, it was no longer necessary to do so after the amendment.

This would also apply to the crime of larceny by a bailee either under section 170 or section 170a, Larceny, chapter 38 (Cahill’s St. ch. 38, 1i1i 388 and 389). The latter section provides that one so charged “may be convicted thereof upon an indictment for larceny,” yet this does not exclude proceeding by information where the amount taken would be a misdemeanor nnder the larceny statute. Both sections provide that conversion by a bailee shall be larceny. It follows that prosecution for conversion by bailee is governed by the same rules of procedure as in a case of larceny; that is, if the amount taken by the bailee is less than $15 he can be proceeded against by information, but if it is more it must be by indictment.

What we have said in our first opinion disposes of the criticism that the omission of the word “fraudulently” was a vital defect. This point is also met by the reasoning in People v. Waltyn, 191 Ill. App. 86. We might also cite People v. St. Glair, 244 Ill. 444, where the indictment was criticized as faulty in that it omitted the word “unlawfully.” It was held that it was not necessary to use the very words of the statute defining the offense, but that it is sufficient if those used conveyed the same meaning.

It is next urged that the prosecution could not have been under section 170 for the reason that this section defines the property subject to larceny by a bailee as a “bank bill, note, money or other property,” and that applying the rule of ejusdem, generis, this means like property, that is, currency and not a watch, which is the subject of the conversion in the instant case. If this point has substance, it follows that until section 170a was in force, which was July 1, 1891, a bailee could not have been guilty of larceny unless the property converted to his use consisted of some form of currency. Section 170 was enacted in 1845.

Section 170 is under the heading of larceny in the statute, which provides that larceny shall embrace every theft which deprives another of his “money or other personal property.” Section 170 virtually follows this language in describing property which may be the subject of' conversion by bailee as “money or other property.” In Johnson v. People, 113 Ill. 99, it was held that this provision (section 170) was not intended to apply to cases which are larcenies at common law, and hence all cases falling within it are statutory larcenies and therefore subject to the rule of pleading applicable to statutory offenses. Section 170 added to the common law crime of larceny, which included a trespass, a conversion by one to whom property was entrusted for keeping.

There is force in the argument presented by counsel for the People that, since the things mentioned as subjects of the crime are virtually the same in both the sections of the statute defining larceny and in section 170 making conversion by bailee a larceny, the language in both sections being money or other property, it would follow that, if a bailee can be guilty under this section of converting only some form of money, it would be equally true that under the larceny section he could be guilty of stealing only some form of money. This cannot be. The larceny act punishes the theft of any kind of personal property, and the larceny by a bailee act punishes a theft by a bailee of the same kind of property. In Bergman v. People, 177 Ill. 244, the conviction was affirmed where a defendant was charged with larceny as bailee under section 170. The property converted was jewelry. The opinion says the defendant “was a bailee of the property, within the meaning of that word as employed in section 170 of the Criminal Code.”

Defendant’s counsel also argues that section 170a, being the later statute to be enacted, repeals by implication section 170. Repeals by implication are not favored. Hunt v. Chicago Horse & Dummy Ry. Co., 121 Ill. 638. Courts should give meaning to each enactment where possible. Section 170a provides that the bailee shall be guilty though “he shall not break bulk or otherwise determine the bailment.” The act also provides for the conversion of property entrusted to a bailee “for the use of any other person than the owner. ” These provisions are not in section 170. Section 170a thus includes elements of a conversion not included in the former section, and while it may be true that a person under certain circumstances might be guilty of conversion under either section, it. is also true that a person could be guilty under section 170a, when he might not be held under section 170.

After considering the points made by counsel for defendant, we see no reason to alter our former opinion and it is therefore confirmed.

Confirmed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice MoSurely

text:
    Central Trust Company (by Consolidation with the Bank of America, Formerly Known as Greenebaum Sons Bank & Trust Company), Trustee, and Greenebaum Sons Investment Company, Defendants in Error, v. Calumet Company et al., Plaintiffs in Error.
    Gen. No. 34,735.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Cutting, Moore & Sidley, for plaintiffs in error; Nathan G. Moore, of counsel.
    Poppenhusen, Johnston, Thompson & Cole, Sherman C. Spitzer, George Gillette and C. G. Kinney, for defendants in error; James W. Hyde, of counsel.
   Mr. Justice MoSurely

delivered the opinion of the court.

Defendants by this writ of error seek the reversal of a decree entered in conformity with the prayer of complainants ’ bill to foreclose a trust deed dated July 9,1918, securing an indebtedness of the defendant Calumet Company. The defendants attacking the decree are the beneficial owners of the property conveyed by the trust deed.

It is conceded that the Calumet Company received the money for which its bonds and trust deed were given and this was used in improving the premises conveyed as security. There is no claim that any of the indebtedness sought to be collected has been paid. As stated by the master in chancery, to whom the cause was referred to take evidence and report, defendants have not “sought to show that there is any moral or equitable defense to be made to the foreclosure of said trust deed.”

It would make this opinion too long to attempt to notice all of the points made by counsel in their respective briefs. We shall therefore state only the affirmative reasons for our conclusions.

Defendants ask for reversal principally upon three grounds. It is asserted, first, that the instant trust deed is void. To support this it is claimed that the mortgagor at the time of its execution was a public utility corporation engaged in the cold storage business, and the statute provides that any mortgage by any public utility “made otherwise than in accordance with an order of the Commission authorizing the same . shall be void” (Cahill’s St. ch. 111a, U 42), and no such order was obtained. Plaintiffs reply that the mortgagor never at any time conducted a cold storage business and never became a public utility within the meaning of the statute. The master so found.

The name of the Calumet Company was originally the Gottfried Brewing Company, chartered in 1882 to manufacture and sell beer. In 1889 it increased its capital stock and changed its name to the Calumet Company and its corporate powers were enlarged, permitting it to conduct a cold storage and general warehouse for public and private use. Although it is a sharply disputed point, yet the evidence clearly shows that, while the Calumet Company had the power under this enlarged charter to engage in the cold storage and warehouse business, yet in fact it never did so. It never applied for or received from the Illinois Public Utilities Commission or the Illinois Commerce Commission any certificate of -convenience or necessity or other authorization to engage in such business.

April 10, 1906, the Purakwa Ice Company was chartered to manufacture and sell artificial ice. April 10, 1916, this company changed its name to the Calumet Refrigerating Company, increased its capital stock and amended its charter so as to include the right to carry on the cold storage business. April' 28, 1916, it was awarded a certificate of convenience and necessity by the Public Utilities Commission authorizing it to engage in this business on the premises subsequently conveyed by the instant trust deed. The stockholders of the Calumet Company and of the Calumet Refrigerating Company were virtually the same.

In the years 1915-1916 the brewing business of the Calumet Company had become unprofitable and its officers and directors made plans for alteration of part of the premises into a cold storage warehouse to be leased to and used by the Refrigerating Company. Accordingly, some $40,000 was spent in doing this, and this portion was leased to the Refrigerating Company and the Calumet Company leased part of the remainder of the plant to other tenants and continued to use the rest of the premises in making beer. In May, 1916, the Refrigerating Company began to receive goods for cold storage. The brewing business subsequently became even more precarious and the officers of the Calumet Company then concluded to change the plant entirely from a brewery into a plant which could be. used for cold storage purposes and to lease the entire plant to the Refrigerating Company. In the early part of 1918 the Calumet Company ceased to manufacture anything on the premises and negotiated the loan secured by the trust deed in question with Grreenebaum Sons Bank & Trust Company. The entire sum borrowed was $250,000, which was uséd in making these alterations on the property after paying the indebtedness of $40,000 which it had incurred in making the alterations in 1916. The space thus remodeled and equipped was leased to the Calumet Refrigerating Company at an increasing rental rate which in 1919 amounted to $30,000 a year. The Refrigerating Company continued to operate its business upon the premises until some time in September, 1924.

Both corporations kept their own separate bank accounts and at different banks. Each made its own deposits of its own funds and each exclusively made its own withdrawals. Each paid its own employees and every such employee rendered service only to the corporation paying him. Supplies required to conduct the cold storage business were bought and paid for by the Refrigerating Company only. Repairs and upkeep of the premises were paid for by the Calumet Company. Each corporation kept its own separate set of books. Bills for services rendered by the Refrigerating Company were collected by it and never by the Calumet Company.

Counsel for defendants argue that the Refrigerating Company was merely the agent for the Calumet Company and that the cold storage business was, in fact, the business of the Calumet Company. Various' activities of the officers of the respective companies are presented in support of this theory. However, examination shows only that the officers of the Calumet Company who were at the same time officers of the Refrigerating Company did some .things preliminary to conducting the cold storage business by the Refrigerating Company. Among these activities was the expenditure of its own money in altering the premises; but for a landlord to equip and rebuild premises for leasing is an every day occurrence. A Mr. Brady occupied an office with the Calumet Company and in April, 1916, solicited business for the Refrigerating Conip any. This was another preliminary step to the cold storage business by the Refrigerating Company. Other similar activities are noted, but we do not deem them of controlling importance. An owner may build or equip his property intending to use it for a cold storage business or to lease it to some one else for that purpose. Until such property is offered to the public for that purpose it cannot be said to be devoted to that use, and it is the company which in fact offers its facilities to the public that is conducting a public utilities business and not necessarily the landlord owner of the premises, as is the case here. In Austin Bros. Transfer Co. v. Bloom, 316 Ill. 435, it was held that “property becomes clothed with a public interest when used in a manner to make it a public consequence and affects the community at large. ’ ’■ To the same effect- is Utilities Commission v. Bethany Mut. Tel. Ass’n, 270 Ill. 183, where it was held that the-purpose of the Public Utilities Act, Cahill’s St. ch. 111a, was to bring under control property “as long as such public use is maintained.” The same language is -found in Munn v. Illinois, 94 U. S. 113, where it was held, in effect, that the act applies only so long as the owner maintains the use in which the public has an interest and not when this use is discontinued. See also State v. Pub. Service Comm., 275 Mo. 483. In Springfield Gas & Electric Co. v. Springfield, 292 Ill. 236, it was held that the act applied to corporations owning and operating public utilities ; otherwise the commission could have no authority whatever over it.

We cannot agree with the contention that the Calumet Company must be regarded as engaged in a public utility business because at the time the instant mortgage was made it had the charter power to engage in this business. No certificate, as required by statute, was issued to the Calumet Company authorizing it to engage in the cold storage business. It has been repeatedly held that the fact that under its articles of incorporation a company might have engaged in a public utility business does not ipso facto make it so. The charter merely gives a naked authority to do the business, but until the business is actually operated it does not make the.company a public utility. DePauw University v. Public Serv. Comm., 253 Fed. 848; State v. Public Serv. Comm., 275 Mo. 483; Del Mar Water, Light & Power Co. v. Eshleman, 167 Cal. 666; McCullagh v. Railroad Comm., 190 Cal. 13. In Terminal Taxicab Co. v. Kuts, 241 U. S. 252, the court said on this question: ‘ ‘ The important thing is what it does, not what its charter says.” To the same effect is United States v. Brooklyn Eastern Dist. Terminal, 249 U. S. 296.

The evidence does not support the theory that the two companies were identical or sustained the relation of principal and agent. The origin of the two companies indicates an entirely separate and distinct history. More than 12 years before the mortgage was made the storage company, under the name of Purakwa Ice Company, was organized. This name was later changed to the Calumet Eefrigerating Company, which first engaged in the cold storage business two years before the mortgage was made. Neither corporation owned any stock in the other. We have already indicated how the businesses were carried on separately and distinctly one from the other. The general rule of corporate entity is that, since a corporation is a person distinct from its members or stockholders, even though the same individuals may be the incorporators, officers or stockholders in the two corporations, there is no identity between them and neither is liable for the acts of the other merely because of the identity of the stockholders and officers. 14 C. J. 58, sec. 19; Pittsburgh & Buffalo Co. v. Duncan, 232 Fed. 584: In re Watertown Paper Co., 169 Fed. 252; Peckett v. Wood, 234 Fed. 833; Martin v. Development Co. of America, 240 Fed. 42. In State Public Utilities Comm. v. Romberg, 275 Ill. 432, the decision was based upon this same rule, holding that the purchase by one company of a majority of the shares of stock of another company does not" divest the selling company of its franchise.

There are doubtless many cases in which, for the purpose of doing justice and to prevent a wrong, courts of equity will negative the legal conception of an independent corporate entity. But it is quite a different thing to sweep away the corporate entity of the two instant corporations for the purpose of avoiding the paying of an honest debt. It would be unconscionable to do this for the purpose of nullifying an obligation of the defendants and unjustly to enrich them at the expense of complainants who made the loan and against whom no charge of unfairness in that connection is made.

We hold that the report of the master and the decree of the chancellor were proper on this point, and that the Calumet Company, the mortgagor, at the time it made the instant loan and trust deed, was not a public utility within the meaning of the statute, and that the mortgage was valid.

Another reason which, in equity, should bar the defendants from asserting that the mortgage is void is found in subsequent proceedings to which we shall refer only briefly. Matheus Gottfried, who organized the Brewing company, was the owner of practically all of its stock. In 1891, he sold the stock to his son, Carl M. Gottfried, and his son-in-law, John H. Weiss. Matheus Gottfried died November 3, 1902. In 1923, which was some time after the instant loan was made, dissension arose between the descendants of Mathens Gottfried, and one of the factors was that, as an additional security to the instant loan, Carl M. Gottfried and John H. Weiss, had personally guaranteed the bonds. The dissension terminated in what is called a “Family Settlement,” which upon petition filed in. the superior court was confirmed. The gist of this settlement was that all parties agreed that the properties dealt with, being the premises involved here, were owned by the Brewing company, which in turn was owned by Carl M. Gottfried and the Weiss estate (John H. Weiss having died in the meantime.) Gottfried and Weiss, who were personally liable for the debt by reason of their guaranty indorsed on each bond, refused to part with the equity of the premises and still remain burdened with that personal liability, and insisted that the others should specifically agree to make the land primarily liable for the debt. All the parties agreed that the premises were to be tréated as equitably liable for their debts, and in return for this Gottfried and Weiss were to cause said property to be conveyed to a trustee, expressly subject to the lien of the instant trust deed, which all parties stipulated and agreed was a valid and subsisting lien upon the premises. The trustee was to use the rents and income for specified purposes, including the payment of interest and the sinking fund payments provided for by the trust deed, and eventually to sell the premises unless the mortgagee consented otherwise, and to distribute the proceeds among the beneficial owners, the defendants here. These matters were evidenced by a number of written documents, by the petition filed in the superior court and the decree which was entered. In each and all of these documents the validity and priority lien of the instant trust deed was asserted and taken-into account in the settlement.

Counsel for defendants argues that these transactions do not operate as an estoppel because the parties concerned did not know at the time that the mortgage was void. On general equitable principles, the beneficial owners of the equity, after they have recognized and, in the family settlement provided for, the lien of the trust deed, should not now be heard to question its validity. The property conveyed has been in the family for more than forty years; they knew of the mortgage lien and knew that the money obtained on the loan had been expended in repairing and altering the property; they approved the making of the loan while holding stock in the mortgagor company; they were not deceived in any way. As was said in Daub v. Englebach, 109 Ill. 267, it would be inequitable and unjust to permit one who purchases land subject to the mortgage to escape payment, the court saying: ‘ ‘ Even if the mortgage was rendered void, he, in equity, is still liable to pay the debt ... . and even if the mortgage was rendered void, that did not cancel the debt, nor did it release him from his legal liability to pay it.” See also Sidwell v. Wheaton, 114 Ill. 267; Henderson v. Bellew, 45 Ill. 322; United States Bond & Mtg. Co. v. Keahey, 53 Okla. 176,155 Pac. 557; Jones on Mortgages, 7th ed., vol. II, p. 155; Pomeroy on Equity Jurisprudence, 4th ed., vol. Ill, sec. 1205; Tiffany on Eeal Property, 2nd ed., vol. Ill, p. 2572. In this last work the author says, in substance, that, where one takes property subject to a supposed mortgage, he cannot thereafter assert, as against one seeking to enforce such supposed mortgage, that it has no legal existence.

Complainants’ counsel present another reason why the claim of defendants that the mortgage was void cannot prevail. They assert that at the time the mortgage was made cold storage warehouses were not subject to the provisions of the Public Utilities Act, Ca-hill’s St. ch. 111a, because they had been withdrawn from its scope by the Uniform Cold Storage Act of June 28, 1917, Cahill’s St. ch. 56b, If 119 et seq., and therefore the consent of the public utilities commission to the making of the instant mortgage was not required. We do no more than state this point without deciding it. We prefer to rest our decision upon the reasons we have just discussed. They seem to us so conclusive against the position of defendants as to make it unnecessary to express any opinion on this last point.

Complainants are seeking a partial foreclosure and defendants say they cannot have this. The notes secured by the mortgage fell due July 1 in annual instalments of $25,000 each, except the last, which was $50,000, making an aggregate of $250,000. Complainants filed their bill as the holder of bonds with interest maturing July 1, 1920, to July 1, 1924, inclusive. Defendants deny complainants ’ right to bring foreclosure for this partial indebtedness by reason of a provision of the trust deed, as follows:

“All of said bonds and interest coupons attached thereto are equally and in all things secured by this Deed of Trust without any preference, priority or distinction whatsoever of the lien thereof, in favor of any one or more of said bonds or coupons over any one or more of the others, by reason of prior maturity thereof, or for any other reason whatsoever.”

The bill asked that complainants’ lien be subordinated to the remainder of the indebtedness and the decree so found. It is argued that the provision just quoted forbids changing the priority of liens in favor of any one or more of said bonds. Cases are cited to the effect that the stipulations in the mortgage or trust deed are binding and may not be changed. A typical case is Schultz v. Plankinton Bank, 141 Ill. 116, in which it was sought to have one of a series of notes, which note alone was guaranteed by the son of the maker, and the others not, paid first out of the proceeds of the sale of the property and before the other notes which matured prior thereto. It was sought to introduce a parol agreement that this should be done. The opinion held that the parol agreement was not admissible to modify the provisions of the mortgage. Manifestly, the alleged parol agreement was to extinguish the obligation of the son as guarantor to the detriment of the holders of the prior maturing notes. We do not view Walker v. Dement, 42 Ill. 272, as holding that,the holder of a series.of notes secured by mortgage may not by agreement with the assignee of some of this series subsequently maturing waive the right to a prior lien of the notes he retains and give the assignee the prior lien for his notes. Indeed,' the opinion states clearly that this may be done.

Partial foreclosure in this state has been approved frequently by the courts. In Boyer v. Chandler, 160 Ill. 394, it was said: “The holder of a note due is not required to wait until the other notes secured by the same mortgage are due before he takes steps to enforce his security.” This has been repeated in Chicago Title & Trust Co. v. Prendergast, 335 Ill. 646, where it is said that the effect of the partial foreclosure is to withdraw from the lien of the trust deed" the notes of the complainant and to make the trust deed a security only' for the remaining outstanding notes, citing Northern Trust Co. v. Sanford, 308 Ill. 381; Morgernstern v. Klees, 30 Ill. 422. The instant proceedings followed closely the proceedings approved in Boyer v. Chandler, 160 Ill. 394, and Chicago Title & Trust Co. v. Prendergast, 335 Ill. 646. Complainants seek no relief which might injuriously affect the holders of the bonds not due. Bather the course adopted was beneficial as to them. These cases also hold that the holders of the other notes are not necessarily parties to the bill and that the complainants had a clear right to take a decree to sell the mortgaged premises subject to the balance due or to become due and were not bound to declare the whole debt due. We cannot see how the defendants, the owners of the equity, are injured in any way. It does not increase their indebtedness nor affect their rights.

It is earnestly argued that the bonds, the subject of the foreclosure, have been paid over the counter of the complainants. This depends upon the facts. On June 29, 1921, Carl M. Gottfried, president, and John H.' . Weiss, vice president of the Calumet Company, called upon M. E. Greenebaum, president of Greenebaum Sons Bank & Trust Company, and stated that the Calumet Company would be unable to pay the bonds amounting to $25,000, which matured July 1, 1921. Thereupon by agreement the Calumet Company gave to the bank its note for $25,000, dated June 29, 1921, and at the same time executed its written agreement pledging the bonds maturing July 1 to the bank as collateral security for the payment of said note. The $25,000 represented by the note was credited on the books of the bank to the Calumet Company in an account entitled “Deposits for Matured Bonds and Coupons.” The Calumet Company could not draw this money out or otherwise handle it. All the bonds' of the series had theretofore been sold by the bank to its customers, and when the holders of the bonds maturing July 1, 1921, presented the same for payment they were taken up by the bank with funds out of this account and have ever since been held by the bank.

It should be stated that the original loan was negotiated with the Greenebaum Sons Bank & Trust Company, Trustee, which subsequently conveyed all of its funds and assets to the G-reenebaum Sons Investment Company, an Illinois corporation, one of the complainants.

A similar arrangement was made with reference to the bonds with interest maturing July 1,1922, and also with reference to the bonds and interest maturing July 1, 1923. All of these bonds went into the hands of the Greenebaum Sons Investment Company. A like arrangement was made with reference to the interest maturing January 1, 1924. The bonds due July 1, 1924, amounting to $25,000 with interest were paid by the Investment Company in order to protect its existing lien. The bill was filed November 16, 1924, and the Investment Company took up the coupons falling due January 1,1925, and the bonds and coupons falling due July 1, 1926, the interest coupons falling due January 1,1926, and the bonds with interest falling due July 1, 1926. Greenebaum Sons Investment Company thereby obtained a lien under said trust deed subordinate to the lien of all other outstanding bonds and interest' for the amount due on the notes of the Calumet Company held by it and offered in evidence. Defendants assert that these transactions amounted to payment. Complainants reply that there was a conventional subrogation by which the Bank became the owner of the bonds as a pledgee and of all the bonds and interest which it took over.

A conventional subrogation has been defined as a transaction in which one who by agreement pays off the obligation of another secured by mortgage or advances money for its payment at the instance of the debtor and for his benefit is entitled to be subrogated to the rights of the original creditor. This doctrine has been recognized and stated in many cases. In Home Savings Bank v. Bierstadt, 168 Ill. 618, there was an agreement made between the debtor and a third person that such person was to advance money to take up the amounts due on a number of trust deeds and the third person was to have a mortgage for the sum advanced on the property covered by the trust deeds, and thereupon the amounts due on the trust deeds were paid and a new trust deed was made to secure the indebtedness which had been advanced. There was a second trust deed on the property. A bill was filed to foreclose the new trust deed, praying that the complainant be subrogated to the lien of the trust deeds which had been paid and released. The court granted this, saying that it amounted to a conventional subrogation “which results from express agreement with the debtor, by which one advances money to pay a claim, for the security of which there exists a lien.” To the same effect are In re McGuire, 137 Fed. 967; American Trust & Savings Bank v. Turner (Ala.), 80 So. 176. In this latter case it was said:

“It is not essential to conventional subrogation that the creditor should be a party to the agreement between the debtor and a third party, and the contract supporting the subrogation may be between the party to be subrogated and either the creditor or the debtor. ’ ’

Similar facts were involved in Thomas v. Hall, 116 Me. 140, 100 Atl. 502, where the court held that a stranger may be subrogated to the interests of a mortgagee as against a subsequent mortgagee or purchaser, by force of an agreement made by a mortgagor at the time of paying the mortgage debt, citing Jones on Mortgages, section 874-A. See also Loewenthal v. McCormick, 101 Ill. 143.

The rule that subrogation can be enforced only when the whole debt is paid is for the protection of the holder of that part of the debt not paid, and we cannot see that defendants are interested. Inasmuch as the decree subordinates the rights of complainants, to the lien of the subsequently maturing bonds, complainants have, in effect, a second mortgage and can enforce it in any way which the law allows, provided that such enforcement does not affect the rights of the holders of the remaining outstanding bonds and coupons. This was recognized in White v. Fisher, 62 Ill. 258; Skinkle v. Huffman, 52 Neb. 20, 71 N. W. 1004; Nettleton v. Ramsay County Land & Loan Co., 54 Minn. 395, 56 N. W. 128; Marks v. Baum Building Co. (Okla.), 175 Pac. 818; New Jersey Building Loan & Investment Co. v. Cumberland Land & Improvement Co., 53 N. J. Eq. 644, 33 Atl. 964.

In Illinois Nat. Bank v. School Trustees, 211 Ill. 500, it was held that a junior incumbrancer, who in order to protect his own security is compelled to discharge a prior mortgage, will in equity become subrogated to the rights of the holder of the prior incumbrance and will be treated as a purchaser or assignee of the superior lien, unless the facts show it was intended as an absolute payment. To the same effect are Lidster v. Poole, 122 Ill. App. 227; Gipps Brewing Co. v. Wasson, 193 Ill. App. 158. The legislature in 1927 énacted this' rule into a statute. (Cahill’s St. ch. 95, 22 [1].-) As the holder of the inferior lien which they were foreclosing, complainants had the right to protect that lien either by purchasing or paying off the bonds and interest coupons, as they matured, after the bill to foreclose was filed, and enforcing such payments by adding them to their inferior lien, which was done in this case.

Counsel for defendants make other points against this subrogation which, with the cases cited, we have considered, but we find nothing therein which defeats the substantial equity and justice of complainants’ position.

When the decree' was entered there were unpaid taxes amounting to about $200,000, and the chancellor was requested to require the proceeds of the sale to be applied first to the payment of these. This request was refused and the decree- was entered directing that the entire proceeds of the sale be paid to complainants. Wiswall v. Kunz, 173 Ill. 110, cited by defendants, involved a personal property tax upon property held by a receiver. It was there held that it was properly payable as part of the expense of the receivership. In Jack v. Weinnett, 115 Ill. 105, an assignee for the benefit of creditors was required to pay personal property taxes out of funds in. his hands. These are not decisive of the instant question.

Taxes on real property are. a first and prior lien superior to all other liens and one buying at a judicial sale takes subject to such prior lien. It was held in Whitaker v. Irons, 300 Ill. 254, that upon a bill to foreclose a mortgage subject to a concededly prior lien, it was not necessary to make the holder of the prior claim a party, and the prior claim was not a proper subject of consideration in a foreclosure suit. This, by analogy, would apply to the question of taxes. Furthermore, defendants are not entitled to have the taxes paid out of the proceeds of the sale. Their only right is to redeem from the decree or sale had thereunder. If the taxes should be paid out of the proceeds of the sale and the defendants should redeem, they would have to include the amount of such taxes in their redemption payment; and if the taxes are not paid, they will take the land upon redemption subject to such taxes and will have to pay such taxes to protect their property. It makes no difference to them if they pay the taxes upon redemption or after redemption. We do not see that the defendants’ rights are involved upon this point.

We repeat, we have not attempted to reply to all the points made by defendants’ very able counsel. We have considered the case along the line of the patent equities presented by the record and which are with the complainants and supported by a large number of decisions. No sufficient reason appears which requires us to reverse the decree. It is therefore affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    In re Estate of Rinda Sherman, Deceased. Mose Sherman, Administrator of the Estate of Rinda Sherman, Deceased, Plaintiff in Error, v. Henry W. Farnum et al., Defendants in Error.
    Gen. No. 34,794.
    Heard in" the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Harold L. Feigenholtz, for plaintiff in error; Sidney Rubin, of counsel.
    Wolfe, Tuthill & Lynde, for defendant in error Henry W. Farnum. Fisher, Boyden, Bell, Boyd & Marshall, for other defendants in error; Thomas J. Shaughnessy, Thomas H. Fisher, William N. Haddad and Walker B. Davis, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Mose Sherman, administrator of the estate of Rinda Sherman, deceased, filed his final account, to which objections were filed. Upon hearing in the probate court certain of these objections were sustained and the administrator was held accountable for certain assets and his account as to certain disbursements was disallowed.

An appeal was taken to the circuit court, where the administrator made a demand for a jury trial which demand was refused. The order entered by the circuit court recites that the administrator “having announced that he would stand by his demand for a jury trial, and, when required by the court to proceed, having refused to proceed further or to participate in the trial of this cause,” it was therefore ordered that the appeal be dismissed for want of prosecution. The administrator appeals to this court from that order.

The so-called bill of exceptions on motion has been stricken in this court. We are therefore left only the question as to whether the circuit court properly disallowed the motion of the administrator for a jury trial.

The Constitution of Illinois, Article II, section 5, provides that1 ‘ The right of trial by jury as heretofore enjoyed, shall remain inviolate.”

In Moody v. Found, 208 Ill. 78, it was claimed that upon the proceeding to admit a will to probate the parties were entitled to a jury trial. It was held to the contrary, the court saying that the jurisdiction to admit wills to probate was purely statutory and that the constitutional right of trial by jury was designed to secure only the right to trial by jury as it had theretofore been enjoyed in these tribunals which exercised common law jurisdiction; it was not intended to confer such right in any class of cases where it had not formerly existed nor was it intended to introduce the jury system in those special summary jurisdictions which were unknown to the common law. In Sebree v. Sebree, 293 Ill. 228, which involved the proceeding in the probate court to determine heirship and the amount of a widow’s award, it was held that this proceeding was purely statutory, and on appeal from an order of the probate court the petitioner is not entitled to a jury trial in the circuit court, as the constitutional provision for a jury trial applies only to such cases where the right existed at common law. It has been repeatedly held that a jury trial is not a matter of right upon an appeal to the circuit court from an order of the probate court which relates to an administrator’s inventory or final account.. Butler v. Bocock, 160 Ill. App. 501; Clifford v. Gridley, 113 Ill. App. 164; Coffey v. Coffey, 179 Ill. 283. In Pfeiffer v. Pfeiffer, 152 Ill. App. 268, upon appeal from an order approving a guardian’s account, it was held that the parties were not entitled to a jury trial.

The argument for a jury trial seems to be predicated upon, the claim that the approval of the administrator’s account involves questions of fact, but in almost all of these cases we have just cited questions of fact were involved. The right to trial by jury is given only in cases where such right is or may be given by law and no such right has been given in the matter of approval of a final account in the probate court.

Counsel for the administrator refers to section 60 of the Administration Act, Cahill’s St. ch. 3, ft.61, which provides that upon the hearing of a disputed claim against an estate either party may demand a jury trial. Manifestly, this section applies only to such a particular instance. . We find no authority for a jury trial upon the order of the probate court upon a final account.

As this is the only question presented, for the reasons indicated above the order of the circuit court is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J.,.concur.


author: Mr. Justice O’Connor

text:
    National Plumbing & Heating Supply Company, Appellee, v. First National Bank of Chicago, Appellant.
    Gen. No. 34,720.
    Heard in the first division of this court for the first district at the December term, 1930.
    Opinion filed March 2, 1931.
    Philip H. Treacy, for appellant.
    Frisch & Frisch, for appellee; Albert J. Meserow, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of assumpsit against the defendant and filed its declaration and affidavit of claim. The defendant filed a plea of the general issue and an affidavit of merits. Defendant’s affidavit of merits was, on motion of plaintiff, stricken because of its insufficiency. Afterwards leave was given the defendant to file successive amended affidavits of merits, all of which were, on motion of the plaintiff, stricken. Thereupon, for want of an affidavit of merits, defendant’s plea of general issue was stricken; the defendant was defaulted, and judgment entered in favor of plaintiff for the amount of its claim, viz., $1,292.01, and the defendant appeals. The question, therefore, is the sufficiency of the defendant’s third amended affidavit of merits.

Plaintiff, in its suit, claims to be the indorsee of a check dated December 15, 1927, drawn on the defendant bank by one of the bank’s depositors, and which check had been presented by plaintiff to the defendant bank for certification; that the defendant bank certified the check. The basis of plaintiff’s suit is that the defendant is liable on its certification of the check.

In its declaration, plaintiff alleged that the Mid-City Securities Corporation drew its check to the order of Alex Greenbaum and delivered the check to Greenbaum, and that thereupon, Greenbaum indorsed and delivered the check to the plaintiff for a good and valuable consideration “without notice of any infirmity in the instrument or defect in the title of the pérson negotiating the same. ’ ’ That plaintiff on the next day, December 16, presented the check to the defendant for certification and the check was certified.

The defendant, in its third amended affidavit of merits set up, in substance, that the check was certified by mistake of a paying teller of the defendant bank after the maker of the check had ordered payment of the check stopped; that after the maker of the check had ordered the payment of it stopped, and before it was presented for certification, he withdrew his money from the bank; that plaintiff and its attorneys, whose indorsements appear on the check, were notified by the drawer of the check before it had been presented for certification, that he had ordered the bank not to pay the check and that the bank had been notified not to pay the check before it was delivered to plaintiff. It was then set up in the affidavit of merits that Greenbaum, the payee, did not indorse the check or deliver it to the plaintiff.

There are a great many other allegations in this affidavit of merits which are not clear, but which we think it unnecessary to refer to because we think the allegations of the affidavit of merits above mentioned are sufficient to show that plaintiff was not a bona fide holder of the check and that it knew before the check came into its possession and consequently before it was presented for certification by plaintiff, that the maker of the check had ordered the defendant bank not to pay it. The check having been certified by mistake, and since rights of third parties have not intervened, the certification may be revoked. Dillaway v. Northwestern Nat. Bank, 82 Ill. App. 71; Baldinger & Kupferman Mfg. Co. v. Manufacturers Citizens Trust Co., 156 N. Y. S. 445 ; 7 C. J. p. 709; National Bank of Commerce v. Baltimore Commercial Bank, 141 Md. 554, 29 A. L. R. 135; National City Bank of Seattle v. Titlow, 233 Fed. 838.

In the Dillaway case, where through a mistake of the bank it had certified a check, it was held that upon discovering the mistake the bank might cancel its certification provided the rights of third parties had not intervened. In the instant case, from the allegations of defendant’s affidavit of merits it appears that the plaintiff was in no way injured by the certification of the check, it having had notice prior to the certification that payment of the check had been ordered stopped by the maker.

In the Baldinger case, it was held that the rule that a bank accepting and certifying a check becomes the principal debtor and the maker is discharged, applied only to a bona fide holder of the check and if the certification was through mistake, it might be revoked by the bank if done before any change of circumstances as against the holder of the check, and that the Uniform Negotiable Instrument Law did not change this rule.

The provision of the Negotiable Instrument Law referred to by the New York Court, is identical with the' provision of the Negotiable Instrument Law of this State which provides: “Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.” Paragraph 209, (sec. 187), ch. 98, Cahill’s 1929 Statutes.

In 7 C. J. p. 709, it is said: “If a bank certifies a check by mistake, such mistake may be corrected so long as the rights of third persons have not intervened; but the fact that a. certification was made through mistake does not impair its effectiveness, where the check is in the hands of an innocent holder for value.” And in the National Bank of Commerce case (141 Md, 554) it was held that á bank by certifying a check entered into an absolute undertaking to pay it when presented except where it is.made by mistake in which case the mistake may be. corrected so long as the rights of third parties have not intervened.

In the instant case the check having been certified by mistake after the bank had been notified not to pay the check, and since the allegations of the defendant’s affidavit of merits show that plaintiff knew of this fact as well as other facts hereinbefore mentioned, it was not an innocent holder for value and therefore the mistake in certifying the check could be corrected.

The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to overrule plaintiff’s motion to strike defendant’s third amended affidavit of merits and defendant’s plea of general issue.

Reversed and remanded with directions.

Hatchett, P. J., and HcSurely, J., concur.


text:
    A. C. Preble et al., Appellees, v. Architectural Iron Workers’ Union of Chicago, Local No. 63, I. A. B. S. and O. I. W. et al., Appellants.
    Gen. No. 34,729.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 2, 1931.
    Timothy J. Fell, for appellants.
    Winston, Strawn & Shaw, for appellees; John C. Slade and Gr. B. Christensen, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this- appeal the defendants seek to reverse a decree of the superior court of Cook county enjoining them from calling a strike or directing any of the members of the defendant union to cease their employment, etc.

On May 20, 1929, complainants filed their verified bill which was amended three days later, by leave of court, and on that day, notice having been given to the defendants, a temporary order was entered restraining and enjoining the defendants from calling any strike or cessation of work by any of the members of the defendant union in respect to any work being done on any building or buildings being erected within Cook county, by any member of the complainant union except where any construction work was being done by non-union workmen. The restraining order was entered upon condition that the complainants file their bond, which was done on the same day. Nothing appears to have been done from May 23, 1929, when the temporary restraining order was entered, until July 3 following, when the defendants entered their appearance, and on July 20 they filed their demurrer. From the date of the filing of the demurrer nothing of record appears until the 11th of March, 1930, when the defendants moved that the demurrer be set down for hearing and that the temporary restraining order be dissolved; on that day an order was entered setting the matter for March 24, 1930. No action was taken until June 12, 1930, when the defendants’ motion and demurrer were overruled, they elected to stand by their demurrer and a final decree was entered perpetually restraining and enjoining the defendants “from calling or directing or causing to be called or directed or otherwise brought about, any strike or strikes or cessation of work by any of the members of said Architectural Iron Workers’ Union of Chicago, Local No. 63, upon or in respect to any . . . work being done or to be done on any building or buildings . . . being erected or to be erected within the County of Cook in the State of Illinois, . . . by or under the direction of any member of the Iron League of Chicago, . . . excepting only in such case or cases, if any, as building construction work is being done on the particular building by non-union workmen. ’ ’

Defendants’ demurrer to the bill as amended having been overruled, and they having elected to stand by the demurrer, the question turns on’the sufficiency of the allegations of the bill.

The substance of the allegations of the bill in short is, that certain members of a special committee authorized by the Iron League of Chicago, a voluntary association, arid the Preble-Harrison Door Co., of Illinois, a corporation, and the L. S. Ingeman Ornamental Iron Company, an Illinois corporation, as members of the Iron League of Chicago, filed the bill on behalf of the Iron League Association and all members of such Association, against the defendants, “Architectural Iron- Workers’ Union op Chicago, Local No. 63,1. A. B. S. and O. I. W.” and the officers of the union, and certain of the same individuals as officers of the arbitration board of the union; that the Iron League of Chicago and its members are engaged in the business of manufacturing, erecting and installing architectural and ornamental iron and structural steel employed in the construction and equipment of buildings in Chicago, and that complainants and the defendant union entered into a written contract in force December 1, 1926, which, as extended, will by its terms expire in June, 1934, whereby the parties agreed that there should be no lockout by the complainants, or strikes, or abandonment of work by the defendant union or its. members without first submitting any dispute to arbitration; that the purpose of the agreement was to fix wages and conditions of employment of the members of the defendant union so as to prevent strikes and lockouts by providing for arbitration of all disputes through a joint conference board.

It- is further alleged that some time after the contract went into effect a. dispute arose between the defendant union and another union as to whether certain work, which was being done on buildings being erected by complainants should be performed, by members of the defendant union, which was referred to as “iron workers,” or the"members of the other union known as the “sheet metal workers,” and that this dispute was referred to a “joint conference board,” and that their decision was adverse to the defendant union; that the defendant union refused to abide by the decision and, contrary to its contract with complainants, began to call strikes, insisting that the members of their union were, entitled to install certain work instead of the members of the Sheet Metal Workers’ Union; that the calling of strikes was in direct violation of the express provisions of the written agreement entered into between the complainants and defendants and without submission or offer to submit the matter to arbitration as the agreement provided; that the dispute between the defendant union and the sheet metal workers’ union was a “purely jurisdictional dispute”; that there was no complaint made by any member of the defendant union as regards their employment hours or wages — no complaint as against the complainants; but on the contrary it was alleged that the members of the defendant union were willing to' continue their work and would continue to do so unless strikes were called by the defendants. The prayer was that the calling of strikes be enjoined except in cases, if any, where non-union men were employed by complainants.

We think it must be obvious to anyone that the defendants were not much disturbed by the issuance of the injunction. The record shows that although the restraining order was issued on May 23, 1929, after notice to the defendants, no move was made by the defendants to have the injunction dissolved until about ten months thereafter, and it was more than one year after the order for the temporary injunction before the matter was brought to hearing on the demurrer. Everyone knows that injunction matters are given precedence over practically every other kind of suit or action. However, we will pass upon the merits of the case.

The contentions of the defendants are in substance that the allegations of1 the bill were insufficient to warrant the issuance of the writ and that complainants have an adequate remedy at law. And the argument seems to be that the decree enjoins the members of the defendant union from quitting their employment with the plaintiff, either singly or by concerted action.- We think this construction of the decree is unwarranted. Obviously, no one can, under the law, be enjoined from ceasing work whenever he désires to do so with or without cause. This has always been the law as' has been often stated by our Supreme Court, and there is no decision to the contrary. It is sufficient to refer to but two cases: Franklin Union v. People, 220 Ill. 355; and Kemp v. Division No. 241, 255 Ill. 213.

In the Franklin Union case, which involved the issuance of an injunction in a labor dispute, the court said (p. 377): “It will be readily conceded by all that labor has the right to organize as well as 'capital, and that the members of Franklin Union No. 4 had the same legal right to organize said union as the members of the Chicago Typothetae had to form that association, and that the members of Franklin Union No. 4 had the legal right to quit the employment, either singly or in a body, of the members of said associa^ tion, with or without cause, if they saw fit, without rendering themselves amenable to the charge of conspiracy, and that the courts would not have been authorized to enjoin them from so doing even though their leaving the employment of the members of the association involved a breach of a contract:” This same language was quoted with approval in the Kemp case, supra.

The decree in the instant case enjoined only the calling of strikes. This in no way involved the right of the members of the defendant union from quitting their employment if they saw fit to do so. We think the contract entered into between the complainant, the Iron League of Chicago, and the defendant union, is a valid contract. Its commendable purpose was to fix the terms and conditions of employment so that there would be no lockout or strikes without submitting the dispute, if any, to arbitration. And the defendant union, through its officials, having without any fault on the part of the complainant, called strikes and threatened to call other strikes, solely on account of a dispute with another union and without any endeavor at arbitration in violation of the terms of the contract will be enjoined by a court of equity. Goldman v. Cohen, 227 N. Y. S. 311 (222 App. Div. 631); Herzog v. Cline, 227 N. Y. S. 462; Carlson v. Carpenter Contractors’ Ass’n, 305 Ill. 331; Carpenters’ Union v. Citizens Committee, 333 Ill. 225; Franklin Union v. People, supra; Kemp v. Division No. 241, supra.

In the Goldman case the Appellate Division of the Supreme Court of New York, consisting of five judges, held that where a strike was called by a labor union in violation of its contract with its employer, a court of equity would issue its writ of injunction to prevent a violation of the contract. The court there said (p. 313): “The making of the contract being conceded, and upon this record the same subsisting in full force and effect, the plaintiffs are entitled, pending the trial of the action, to injunctive relief for the protection of such of their rights as are threatened and the violation of which will produce irreparable damage. Usually in the past it has been the employer who has sought the help of the courts for the protection of his rights, but obviously the same principles of law apply equally to both employer and labor union. Where a strike is threatened by a labor union in violation of its contract with an employer, the right of a court of equity to issue an injunction to prevent such contractual violation is well settled. . . .

“Likewise, where an employer is threatening to order a lockout of his employees in violation of his contract with the labor union in behalf of the employees, the right of a court of equity to prevent such contractual violation is necessarily measured by the same principle. . . .

“In the case of the employer seeking the injunction to prevent a strike of his employees in violation of a contract, such inadequacy of his remedy at law is well established. Likewise this court in a recent case has squarely held that, where an employer threatens a lockout in violation of a contract between the union and the employer, such union and the employees have not an adequate remedy at law.”

While the precise question has not been passed upon by our Supreme Court, we think the same principle has been announced a number of times in the cases above cited. We think it so obvious that there was no adequate remedy at law that it would be superfluous to discuss the matter further.

Complaint is made that the decree perpetually 'em joined the defendants. Obviously the decree must be construed to mean that the injunction would not be in effect after the date of the expiration of the contract, namely, June, 1934.

Before affirming the decree in this case we feel impelled to say that in- the last few years the words “and/or” have, with increasing frequency, crept into legal documents, including pleadings and even instructions to juries, that only tend to confuse. In the bill in this case it is alleged that “the said members are individually engaged in the business of manufacturing and/or erecting or installing architectural and ornamental iron and structural steel” etc. We must condemn the use of the.words “and/or” because they tend to confuse and mislead. While the use of these words in the allegation above quoted is not so inappropriate as in many of the cases which come before us, we mention them here to show our disapproval of them. In a close case where these words are used, a situation may be presented that would warrant this court in reversing a judgment or decree. That the use of these words tends to uncertainty and confusion, see State v. Dudley, 159 La. 872; Lamborn v. National Park Bank of New York, 208 N. Y. S. 428.

The decree of the superior court of Cook county is affirmed.

Affirmed.

Hatchett, P. J., and HcSurely, J., concur.