author: Mr. Justice Burke

text:
    People of the State of Illinois ex rel. Joseph Coleman, Appellant, v. Harry A. Lipsky et al., Election Commissioners of Chicago, and Joseph P. Geary et al., Civil Service Commissioners of Chicago, Appellees.
    Gen. No. 40,860.

      Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    Michael F. Ryan, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for certain appellees; Alexander J. Resa, Assistant Corporation Counsel, of counsel.

      Benjamin S. Adamowski, Francis X. Busch and Cassius M. Doty, all of Chicago, for certain other appellees.
   Mr. Justice Burke

delivered the opinion of the court.

On December 12, 1938, relator filed a petition in the circuit court of Cook county, praying that a writ of mandamus issue to compel the Board of Election Commissioners of Chicago and the Civil Service Commissioners of Chicago to cause offices, positions and places of employment with the election commissioners to be filled in accordance with the act to regulate the civil service of cities. The court sustained motions by the defendants to dismiss the petition. Delator elected to stand by the petition, which was accordingly dismissed, and judgment rendered against him, to reverse which this appeal is prosecuted. In the trial court the defendants, constituting the Board of Election Commissioners, and the defendants, constituting the ' Civil Service Commissioners, filed separate motions to dismiss. The Civil Service Commissioners did not file a brief. They filed a statement which reads:

“In the trial court these appellees considered it to be their duty to interpose such a defense as would present the question of law now submitted to this Honorable Court for its decision, and they accordingly did interpose such a defense. Now that the law necessary to be considered in the decision of said question has been sufficiently brought to the attention of this Honorable Court by the briefs filed herein (although these appellees do not concur in all that is said by way of argument in the brief for the other appellees) these appellees regard it as unnecessary for them to participate further in this litigation excepting to abide by and comply with any decision which this Honorable Court may render herein and therefore they file no brief.”

The first point urged by relator is that the motions to dismiss should not have been entertained by the court because such motions did not specifically point out the defects complained of, as required by section 45 of the Civil Practice Act (par. 169, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.045]). We have carefully read the petition and the motions to dismiss and find that such motions substantially comply with the requirements of section 45 of the Civil Practice Act.

The second point presented by relator is that the petition alleges that relator is a resident, a citizen and a taxpayer of the city of Chicago, and that he has a right to file the petition in the name of the People of the State of Illinois. Defendants answer that their motion to dismiss did challenge the plaintiff’s right to file the petition. They say, however, that they did not argue the point, and that they are not relying thereon.

The third point advanced by relator is that mandamus proceedings may be instituted for the enforcement of a public right ■ without the making of a demand. Defendants assert that no such point was argued or considered in the trial court, and that they are not relying on such point. Hence the second and third propositions advanced by the relator are not challenged and need not be discussed.

Relator maintains, as a fourth point, that the City Civil Service Act regulates the manner of mailing appointments to fill subordinate positions under the Election Commissioners of Chicago. He cites sections 3 and 11 of the City Civil Service Act (pars. 41 and 50, ch. 24½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 23.042, 23.051]). Section 3 provides that the Civil Service Commissioners “shall classify all the offices and places of employment in such city with reference to the examinations hereinafter provided for, except those offices and places mentioned in section 11 of this act. The offices and places so classified by the commission shall constitute the classified civil service of such city; and no appointments to any of such offices or places shall be made except under and according to the' rules hereinafter mentioned.” Section 11 provides that “Officers who are elected by the people, or who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, members of any Board of Education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, police officers above the grade of captain, and one private secretary of the mayor, shall not be included in such classified service.” Delator asks us to note that judges and clerks of election are expressly mentioned as employees of the city who are excluded from the classified service, and argues that from such exclusion it follows that subordinate employees of the election commissioners, other than judges and clerks of election, should be included in the classified service. He urges that reading sections 3 and 11 together, in connection with the rest of the act, it is to be inferred that the legislature considered that the employees of the election commissioners were city employees, for otherwise there would have been no necessity to" place the exception in section 11 as to judges and clerks of election. In support of this argument he calls attention to the case of People ex rel. Redman v. Board of Trustees of University of Illinois, 283 Ill. 494. In that case the Supreme Court stated that in order to obtain the true intent of the legislature as to the construction of sections 3 and 11 of the State Civil Service Act (the language of which is similar to the same sections of the City Civil Service Act), it is necessary to consider section 3 in connection with section 11 and all of the other provisions of the act. The court concluded that the legislature considered the employees of the University of Illinois as State employees and to be under the Civil Service Act. Relator also points out that the petition avers that the annual appropriation ordinance of the city of Chicago for 1938 appropriated for the Board of Election Commissioners the sum of $1,119,205 for the payment of salaries for one year for numerous subordinate employees under such election commissioners, and that the city contributed to the annuity and benefit fund of the Board of Election Commissioners in accordance with the act creating the Board of Election Commissioners’ Annuity and Benefit Fund. (Ch. 46, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 43.001 et seg.].) Finally, relator declares that any provisions in the city election law in regard to the manner of appointment of subordinate employees of the election commissioners were repealed by the City Civil Service Act, in so far as such provisions were inconsistent with the latter statute. He maintains that no matter how the subordinate positions under the election commissioners were filled under the city election law, said positions should be filled after the adoption of the City Civil Service Act, in accordance with the provisions of the later act. In support of this position, he cites People v. Loeffler, 175 Ill. 585. Under the provisions of the Cities and Villages Act, in force prior to the adoption of the Civil Service Act, the comptroller, the clerk, the treasurer and collector were required to appoint such clerks and subordinates as the city council might authorize. In the Loeffler case the Supreme Court held that such provision of the Cities and Villages Act was necessarily repealed by implication by the adoption of the City Civil Service Act, and that under the provisions of the latter act the clerks and subordinates in the offices of the city clerk, comptroller, treasurer and collector became subject to classification. Relator insists that the circumstance that the election commissioners are authorized by the Election Act to appoint the subordinates, can have no hearing upon the question whether such subordinates should, after the adoption of the City Civil Service Act, be appointed in accordance therewith.

Defendants meet the argument of relator by asserting (1)' that the Board of Election Commissioners of the city of Chicago is an independent statutory board, created by the City Election Act, to conduct elections as the agency of and subject to supervision by the county court of Cook county, and, as such, is not a branch or department or part of the government of the city of Chicago as a municipal corporation; (2) that the City Civil Service Act'regulates appointments to offices and places of employment in the service of the city, but cannot be deemed to extend to the employees of the Board of Election Commissioners as an agency of the county court, "and (3) that the provisions of the City Election Act in regard to the manner of appointment of the clerks and employees of the election commissioners have not been repealed by the City Civil Service Act. It is necessary, therefore, to consider the history of the various enactments pertaining to elections and civil service in order that we may better understand the intent of the legislature. The City Election Act was passed by the General Assembly at its regular session in 1885 and was approved by the Governor on June 19,1885. It was adopted by a referendum vote of the city’s electors on November 3, 1885. On the same day it was also adopted by the electors of the town of Lake, now a part of the city, but at that time a separate municipality. Prior thereto all national, State and county elections in Chicago and in all other cities, villages and incorporated towns in Cook county had been conducted by the county clerk under the provisions of the General Election Law of 1872 and the General Registration Law of 1865. City elections had been conducted by the municipal officers of the city, particularly the city clerk, under the provisions relating to elections then to be found in the Cities and Villages Act under which the city had been reincorporated in 1875. The City Election Act of 1885, following its adoption that fall by the city of Chicago and the town of Lake, divested the municipal officers of such city and town of all control that they had theretofore exercised over elections, and vested in the election commissioners, as a single separate statutory agency, full control over 'the conduct of all elections, national, State, county, municipal and judicial, which might thereafter be held in such city and town. The Supreme Court in People ex rel. Broomell v. Hoffman, 322 Ill. 174, said: “The City Election act is therefore, in a municipality which has adopted it, applicable alike to all elections, whether held to choose public officers or to pass upon some measure or proposition submitted- by proper authority. The legislative intent, manifested by the express provisions to which reference has been made, is that in such a municipality only a single agency for the conduct of elections shall exist.” The Supreme Court in People v. Ladwig, 365 Ill. 574, pointed out that it was intended by the City Election Act to put election machinery under the supervision of the court in the interest of honest elections. In each city, village or incorporated town which adopts the City Election Act, there is to be created a board of three election commissioners. Each election commissioner is appointed by the county court of the county wherein such city, village or incorporated town is located, and when qualified, each commissioner is declared to be an officer of the county court. Two of such commissioners at least shall always be selected from the two leading political parties of the State. The commissioners are required to be legal voters and persons of well-known political convictions. Each commissioner is appointed for a definite term of three years, with the expiration of the respective terms so staggered that only one such term of office will expire in any year. Each board of election commissioners is thereby made a continuous body. The judge of the county court may at any time, upon complaint and after notice and opportunity to be heard, remove any election commissioner for cause. The election commissioners, therefore, are appointed by the county court, and under proper circumstances may be removed by that court, and are declared to be officers of that court. The plan for control and supervision of the election machinery by the county court and for representation of the two leading political parties extends to all precinct judges and clerks of election and to all registration officers. All such judges and clerks of election are required to be selected from the two leading parties of the State. All judges and clerks are examined and selected by the election commissioners, who report to the county court. Then all such judges and clerks are appointed, confirmed and commissioned by that court. When qualified they become officers of that court. Registration officers for all general or precinct registration of voters are selected, appointed, confirmed and commissioned in like manner as -judges and clerks of election. Section 6 of article 2 of the City Election Act (par. 179, ch. 46, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 43.270]), provides that “Said board shall have the right to employ a chief clerk who shall have charge of the office of said board and who shall be present and in attendance at all proper business hours. . . . The board may employ an attorney who shall advise and represent such board in all cases where the advice or services of an attorney are necessary. Such additional assistance may be employed by said board from time to time, as may be necessary, with the consent and approval, previously entered of record by said county court or which may afterwards be approved by such court. ’ ’ The act provides that all such additional employees shall be employed by the election commissioners, with the consent or approval of the court. No distinction is made between the power of the election commissioners to employ a chief clerk and an attorney, and their power to employ such additional assistance from time to time as they may deem necessary. Relator’s petition expressly recognizes that the relief prayed for is not applicable to the chief clerk and attorney. Furthermore, under the Permanent Registration Law, adopted in 1936, each board of election commissioners is required to provide for the permanent registration of all qualified voters. To enable voters to be registered, or to transfer, or alter their registrations under such system, registration offices of the election commissioners must be kept open, with qualified registration officers in attendance, throughout the year, except on certain days preceding each election when the registration lists are required to be closed. All officers and employees of the election commissioners who are authorized to take registrations are expressly made officers of the court and subject to the control and punishment by the court in the same manner as the judges and clerks of election. (Par. 226.3, ch. 46, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 43.322(3)].) The provisions of the act by which the election commissioners and the judges and clerks of election are made officers of the court, have been upheld. (People v. Hoffman, 116 Ill. 587; People v. White, 334 Ill. 465.)

It is worthy of note that the jurisdiction of the board of election commissioners is not confined to those territories which are within the city, but extends outside of the city and includes such towns and villages in Cook county as have adopted the provisions of the City Election Act. Such board is created in, and derives its name from, the first city or village in the county which adopts the provisions of the act. The territory within the jurisdiction of the Board of Election Commissioners of the city of Chicago has never been merely coextensive with the territory of the city of Chicago. The members of the Board of Election Commissioners are also ex offiaio election commissioners for the cities of Berwyn, Chicago Heights and Harvey, the town of Cicero and the villages of Summit, Stickney, Morton Grove, Elmwood Park and Niles Center. Since any city, village or incorporated town in Cook county may adopt the act at any time the citizens thereof may see fit, the election commissioners are potentially a single agency for the conduct of all elections within all of the incorporated cities, towns and villages in such county, subject to the supervision and control of the county court.

In reply to relator’s contention that the appropriation by the city to pay the compensation of the election commissioners’ clerks and employees, is an indication that they are employees of the city, defendants say that such argument ignores entirely the independent nature of the election commissioners as a statutory board, charged with the conduct of all elections held within the city and also within all other cities, towns and villages in Cook county which have adopted the act; ignores the fact that the election commissioners are officers of the county court, and ignores the express provisions of the act authorizing the commissioners to employ such additional assistance as they may from time to time deem necessary. The election commissioners have no money or property out of which to pay the expenses of their office. No authority is conferred upon them to raise money to pay such expenses, or the expenses incurred in conducting any election. (Art. VII of the act, pars. 277 to 281, ch. 46, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 43.373—43.378].) All election expenses and all expenses to be incurred by the election commissioners under the act are allocated so as to be payable by the county or city, or such other municipality, as is therein required from time to time to pay certain election expenses. The costs and expenses so allocated by the statute in-elude compensation payable to judges and clerks of election and precinct registration officers, the salaries of the election commissioners, their chief clerk and assistant chief clerk and all the general expenses incurred by them. The appropriation ordinance, in addition to providing for the salaries of judges and clerks of election and employees, also provides for the payment of expenses such as materials, supplies, furniture, printing, stationery, transportation, advertising, telephone service and rental of polling places. Defendants maintain that the fact that the statute requires the city council to make provisions for the payment of clerk hire, does not give the city any control over the employees of the election commissioners any more than the same dnty to provide for the rental of polling places would give the city the right to select such polling places, or the duty of paying for the printing of stationery would give the right to select the printer and let contracts for the printing and stationery required by the election commissioners.

The City Civil Service Act became a law in 1895. Shortly after its passage the electors of the city of Chicago decided that their city should come under the provisions of the act. As heretofore stated, section 11 of that act specifies the various offices of employment in the service of the city which are excluded from the act’. Defendants point out that if the legislature had believed that the provisions of the act extended to the clerks and employees of the election commissioners, that some mention would have been made for the purpose of exempting the election commissioners, who were then, as now, appointed by the county court. Section 11 does not mention the election commissioners. This omission to mention the election commissioners plainly shows, in our opinion, that the legislature had no intention of extending its provision to the employees of an independent statutory board under the supervision and control of the county court. One of the first cases to arise after Chicago adopted the City Civil Service Act is reported as People v. Kipley, 171 Ill. 44. The Supreme Court held that the City Civil Service Act was constitutional. In People v. Loeffler, 175 Ill. 585, the court held that there was a clear repugnancy between certain provisions of the Cities and Villages Act and the later City Civil Service Act, and that, because of such repugnancy there was a repeal by implication of certain provisions of the earlier act. In Brenan v. People, 176 Ill. 620, the court carefully reviewed the original special charter of Chicago, by which it was provided that the Board of Education should be a department of the city government and that the maintenance of schools was one of the corporate purposes of the city, and also the history of the school law of 1872 and the Cities and Villages Act. The court concluded that the Board of Education remained a department of the city within the meaning of the Civil Service Act. In reading the Brenan case, we should bear in mind that section 11 of the City Civil Service Act excludes from the operation of the act members of any board of education and the superintendent and teachers of schools. No one argues that the members of the Board of Election Commissioners or the chief- clerk are subject to the City Civil Service Act. Had the General Assembly intended to require the classification of employees of the Board of Election Commissioners under section 3, then certainly the members of the Board of Election Commissioners and the chief clerk would have been excluded under section 11 in like manner as the members of the Board of Education, superintendent and teachers of the schools are excluded. In the cases cited, the Supreme Court stressed, the fact that boards of education were expressly included among the classes of municipal officers exempted from the operation of the Civil Service Act.

Relator insists that, the exclusion of judges and clerks from the operation of the Civil Service Act shows that the legislature intended that regular clerks and employees of the election commissioners should be selected from the civil service lists of Chicago. In considering this proposition, it is well to remember that the Civil Service Act is a general optional act which may be adopted by a referendum in any city or village in the State. It has, in fact, been adopted by many cities and villages which have never adopted the City Election Act, for example, the cities of Evanston, Maywood and Blue Island and the villages of Oak Park, Forest Park and Winnetka. All such cities and villages and others which may hereafter adopt the Civil Service Act continue to conduct their national, State and county elections under the G-eneral Election Law, and their city or village elections under the provisions of the Cities and Villages Act. Under the latter act the judges and clerks of election at all city or village elections are selected, appointed and paid by the city or village. They are, when conducting such city or village elections, temporary employees of the city or village affected. To provide for the situation so created, it was necessary to include such judges and clerks of election among the exempted classes enumerated under section 11 of the Civil Service Act. Otherwise, such judges and clerks for city and village elections would have come within the Civil Service Act, which is obviously not adapted to their selection. Therefore, the exemption clause (section 11) was necessary, without regard to the status of judges and clerks of election as officers of the county court, in territories where boards of election commissioners have been constituted under the City Election Act. Relator places great reliance on the case of People ex rel. Redman v. Board of Trustees of University of Illinois, 283 Ill. 494. There the Supreme Court held that the specific exemption in section 11, wherein the University of Illinois was mentioned by name, made it clear that the legislature considered the employees of the university to be State employees. As heretofore pointed ont, however, boards of election commissioners, as such, are not referred to in the Civil Service Act, and the reference therein to judges and clerks of election was necessarily included for reasons which did not affect the City Election Act, nor the status of the employees of the election commissioners. On the other hand, in McGann v. People ex rel. Simpson, 227 Ill. 567, wherein it was sought to compel the clerk of the municipal court of Chicago to appoint his deputies in accordance with the Civil Service Act, the Supreme Court said that to so hold would, in effect, amount to legislating by the court. The same conclusion was reached in McGann v. People ex rel. Hansen, 228 Ill. 203, where a similar question was presented concerning the methods to be followed in selecting and appointing deputy bailiffs of the municipal court. In the two cases mentioned the Municipal Court Act provided that deputy clerks and deputy bailiffs were to be appointed by the clerk and bailiff of the court respectively, in accordance with orders entered from time to time by a majority of the judges of the court. Under the City Election Act the election commissioners are authorized to employ such clerks and assistance from time to time as they may deem necessary, with the consent and approval of the county court. The provision is strikingly similar to the section of the Municipal Court Act passed on in the McGann cases.

Relator maintains that the provisions of the City Election Act, adopted by the city in 1885, have been repealed by implication, by the city’s adoption of the Civil Service Act in 1895. Repeal of laws by implication is not favored. It is only where there is a clear repugnancy between two statutes and the provisions of both cannot be carried into effect that the later law must prevail and the provisions of the former be considered repealed by implication to the extent to which such statutes are inconsistent. Even where two acts are seemingly or apparently repugnant, they should be so construed, if possible, that the later one may not operate as a repeal of the former by implication, and in all such cases if a construction can reasonably be adopted by which both acts can stand, that construction will be adopted. There must be an irreconcilable repugnancy to justify repeal by implication. Village of Glencoe v. Hurford, 317 Ill. 203; McKean v. County of Carroll, 324 Ill. 243; People v. Shader, 326 Ill. 145; People v. Goldberg, 332 Ill. 346; People v. Board of Ed. of Chicago, 349 Ill. 390; People v. West Englewood Trust & Savings Bank, 353 Ill. 451. The city adopted the City Election Act in 1885, and the Civil Service Act in 1895. Since 1895, however, the legislature has on numerous occasions amended and reenacted the City Election Act, and reaffirmed its provisions relative to the right of election commissioners to appoint their own employees with the consent and approval of the county court. In Johnson v. Winnebago County, 256 Ill. 276, a similar contention was made to the effect that certain provisions in the City Election Act had been impliedly repealed by the passage of the Australian Ballot Act in 1891. In rejecting this contention the Supreme Court said: “There might be some force to this contention were it not for the fact that the City Election act has been repeatedly amended by the legislature and this provision has each time been carried forward as a part of the act as amended. In 1899, long after the passage of the general Ballot act, the whole of the City Election act was amended and thus re-enacted. ’ ’ The latest amendment and reaffirmance of the section authorizing the election commissioners to employ such additional assistance from time to time as they may deem necessary, with the consent and approval of the county court, was in 1927. The provisions of the permanent registration law, by which all employees of the election commissioners authorized to take registrations are expressly made officers of the county court, were added to the act in 1936.

A careful consideration of the statutes involved and of the arguments of counsel, and the authorities cited, convinces us that there is no conflict between the City Election Act and the Civil Service Act, and that the Civil Service Act does not, by implication, repeal the provisions of the City Election Act which empowers the board of Election Commissioners to appoint their employees, with the consent and approval of the county court.

For the reasons stated, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Max M. Kann, Appellant, v. Barnet L. Rosset et al., Individually and as Trustees, Appellees.
    Gen. No. 41,159.

      Denis E. Sullivan, J., dissenting.
    Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.

      Decker, Golden & Silber, of Chicago, for appellant; Herbert Decker and Seymour E. Blankstein, of Chicago, of counsel.
    J. Egbert Cohler, of Chicago, for appellees; James J. Kelly, of Chicago, and J. Egbert Cohler, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Straus Brothers Investment Company sold to the public bonds in the sum of $420,000, bearing interest at 6% per cent per annum, secured by a trust deed dated March 15, 1926,' from Elmgate Manor Building Corporation to Herman S. Strauss, as trustee. The property consists of a four-story apartment building, located at the northeast corner of Elmwood avenue and Main street, Evanston, Illinois, containing 10 stores and 57 furnished apartments. Default was made and foreclosure proceedings were instituted by the trustee in the circuit court of Cook county on January 13, 1931. On January 31, 1931, a committee was appointed on behalf of the bondholders of all •bonds sold or distributed by or through Straus Brothers, which committee was changed from time to time by virtue of deaths or resignations, and culminated in the present committee of Barnet L. Eosset, Charles J. Young, Earl G. Krumrine, Louis J. Borinstein and A. D. Plamondon. The rights and duties of the respective parties are defined in the deposit agreement, dated January 31, 1931. On or about March 13, 1931, the committee called the Elmgate Manor bonds for deposit and forwarded to the bondholders an abstract of the deposit agreement. The Philip State Bank & Trust Company was named as depositary. The deposit agreement was prepared by the committee. Max M. Kann is an original purchaser of three bonds in the principal sum of $1,000 each. He deposited his bonds with the committee and thereby became a party j to the deposit agreement. He received a certificate of deposit in exchange for his three bonds. A copy of the deposit agreement was at all times kept on deposit with the depositary and available for inspection by any bondholder during business hours. On or about November 16, 1931, the committee forwarded a communication to the bondholders inclosing a resume of a proposed plan of reorganization purportedly pursuant to the powers and provisions of the deposit agreement. The depositing bondholders were given a period of 20 days in which to dissent from the plan and to withdraw their bonds. Due to the necessity of awaiting the expiration of certain redemption rights, and also due to the adverse real estate financing market, the carrying out of the plan was delayed. On April 4,1933, the committee advised the bondholders that the original plan had been amended and gave the depositing bondholders a second opportunity to dissent and withdraw their bonds upon the conditions therein stated. Because of the dissolution of the Philip Trust & Savings Bank, the Metropolitan Trust Company was designated as depositary. Due to the difficulty of obtaining a reorganization loan for a sufficient sum, it became necessary to alter the plan in certain respects. A reorganization loan in the sum of $49,000 was procured, and the proceeds used for the purpose of paying the cost of acquiring the various interests and expenses in connection with the foreclosure and reorganization upon certain terms and conditions. On April 27, 1933, a decree of foreclosure was entered, finding that the amount of unsubordinated bonds outstanding was the principal sum of $407,500. On June 15,1933, a master in chancery sold the property to a.nominee of the bold-holders’ committee for the sum of $49,000, which sale was made pursuant to the plan of reorganization, dated November 10, 1931, as amended April 4, 1933. At the time the master sold the property, the committee had on deposit unsubordinated bonds in the principal sum of $384,500 out of an outstanding bond issue of $407,500 in unsubordinated bonds, and $12,500 in subordinated bonds. On June 27, 1933, the master in chancery sent to all of the bondholders, by registered mail, a letter which stated that the premises had been sold to a nominee for the committee; that the proportionate share to which the nondepositing bondholders would be entitled would amount to approximately $9.81 per $100 principal amount of indebtedness represented by the bonds of the issue; that the bid was made pursuant to a plan of reorganization described in the letters to the bondholders by the committee dated November 16, 1931 and April 4, 1933; that the bondholders who had not deposited their bonds would have a further opportunity to do so before August 15, 1933, and that the report of sale would be presented to the court for confirmation on July 7, 1933. On July 11, 1933, the court entered a decree confirming the sale and finding that there was a deficiency. This decree also retained the trustee in possession during the period of redemption. The decree recited that the court examined the' master’s report of sale and distribution, the account and report of the trustee and the petition of the complainant. The decree found: “That said Bondholders’ Protective Committee has submitted a plan of reorganization to all known bondholders and which plan of reorganization provides for the formation of a new corporation for the purpose of acquiring title to the mortgaged property subject only to a first mortgage given to secure a loan sufficient in amount to cover unpaid taxes and all other expenses involved in and about these proceedings and the said reorganization; that under said plan of reorganization the present holders of the first mortgage bonds secured by the trust deed foreclosed in this cause will receive a voting trust certificate representing the ownership of one share of no par value stock of the said proposed corporation for each One Hundred Dollars in principal amount of unpaid bonds deposited by the respective depositors; that three (3) voting trustees, one of whom will be a bondholder, will be selected to represent the bondholders, and the certificates issued to said bondholders will represent all of the capital stock of the said corporation; the proceeds and avails derived from the operation of the said premises and the proceeds derived from a sale of the corporate property will, after the payment of the said refinancing mortgage or other indebtedness of the corporation, be distributed to the depositing bondholders as more particularly set forth in the letter attached to the complainant’s petition filed this day and marked Exhibit ‘A’.” The decree also found that the bid was fair. The plan was concluded without dissent from a single depositor, and no objections were filed with the committee or any other person. The committee formed an Illinois corporation known as the Main-Elmwood Building Corporation, to own and operate the premises and redeem from the first mortgage foreclosure sale, and caused the title to the real estate and the personal property therein located to be conveyed to the corporation, and caused the corporation to execute a first mortgage trust deed, together with notes secured thereby in the sum of $49,000. The committee caused the voting trustees and three employees of the committee to subscribe for 3,934 shares, being all of the shares of the corporation, and had 3 shares issued in the names of the three trustees individually, and the balance of 3,931 shares issued in the name of the three trustees, as trustees. These shares "were issued on the basis of one share for each $100 face amount of bonds deposited with the committee. The committee caused to be prepared on August 1,1933, a voting trust agreement, and thereunder caused to be issued to each depositing bondholder, Main-Elmwood Building Corporation common stock trust certificate. Max Kann accepted Ms trust certificate under the plan and made no complaint or objection until December 18, 1936, when he served a written notice on the trustees of the corporation and the Metropolitan Trust Company, depositary, demanding the “return of the certificate or certificates of stock in said Main-Elmwood Building Corporation evidenced thereby and heretofore transferred to said trustees by the undersigned and owned by him, or demands new certificates of stock to be issued to him in his name, and hereby withdraws from the alleged Trust Agreement dated as of August 1, 1933, wherein above are named as trustees and the Metropolitan Trust Company is named as agent of said trustees, and demands that said Trust Agreement be cancelled and revoked, said agreement terminated and that said trustees immediately make full and complete accounting. The undersigned further notifies you that he shall no longer be bound by the terms of said trust agreement and demands that said trustees refrain from voting his shares of stock or any shares of stock of any other shareholders.” Trust certificate No. 183 issued to Kann, which is in the same form as all the other trust certificates, reads:

“Main-Elmwood Building Corporation common stock trust certificate.

“This certifies that there has been deposited with the undersigned as Trustees under the Trust Agreement hereinafter mentioned, a certificate or certificates for thirty shares of the Common Capital Stock of Main-Elmwood Building Corporation, a corporation organized under and by virtue of the laws of the State of Illinois and that Max M. Kann or assigns is entitled to all the benefits and interests specified in said Trust Agreement arising from the deposit of said shares, all as provided in and subject to the terms of said Trust Agreement a copy of which is on deposit with Metropolitan Trust Company of Chicago, Illinois, as Agent of the Trustees and to which agreement reference is hereby made. Until the termination of said Trust Agreement the registered holder hereof or assigns is entitled to receive payments equal to the amount of the cash dividend or dividends, if any, collected by the undersigned Trustees, or their successors in trust, upon the above number of shares of Common Capital Stock of said Corporation, less taxes, charges and other expenses permitted to be deducted under the terms of said Trust Agreement. Until the Trustees shall have delivered the stock, held by them under said Trust Agreement, to the holders of Trust Certificates or to an agent or to said Corporation as specified in said Trust Agreement, the Trustees, or their successors in trust, shall possess and shall be entitled to exercise all rights and powers of every nature of and as absolute owners of said stock, including the right to vote thereon and to execute consents with respect thereto for every purpose, except as in said Trust Agreement provided with respect to the authorization of the sale of all or substantially all of the property and assets of said Corporation; it being expressly stipulated that, except as aforesaid, no voting right passes to the above registered holder hereof or any assigns by or under this certificate or by or under any agreement, expressed or implied.

“This certificate is issued under and pursuant to, and the rights of the holder hereof are subject to and limited by, the terms and conditions of a certain agreement dated as of the 1st day of August, A. D. 1933, between holders of this and similar certificates and Barnet L. Rosset, Charles J. Young and Louis J. Borinstein and their respective successors, as Trustees. The said Trust Agreement shall terminate on the 31st day of July, A. D. 1943, or at such earlier date as a majority of the Trustees, in their discretion, may determine.

“This certificate is transferable only on the books of the Trustees by the registered holder hereof in person or by attorney duly authorized according to the rules established for that purpose by the Trustees and on surrender hereof. Until so transferred, the Trustees shall be entitled to and may treat the registered holder as owner hereof for all purposes whatever, and shall not be bound by notice, expressed or implied of any equities which may exist with relation to such certificate.

“In witness whereof, the Trustees have caused this certificate to be executed on their behalf by their duly authorized agent.

“Dated August 15, 1933.

“Barnet L. Rosset,
Charles J. Young,
Louis J. Borinstein,
“Trustees.
“Metropolitan Trust Company,
“Agent of the Trustees.
“By Daniel J. Healy,
“Its Authorised Officer.”

Trust certificates were issued to 402 separate holders. On December 29, 1936, plaintiff filed his complaint in the circuit court of Cook county in behalf of himself and “of all other parties similarly situated who may desire to join in and contribute to the expense of this proceeding.” It does not appear that any other parties joined in the proceeding. The complaint prayed that the court declare the voting trust agreement invalid; to direct the trustees and the building corporation to issue to and in the name of plaintiff, respective shares of stock of the Main-Elmwood Building Corporation deposited with said trustees; to enjoin the trustees from voting upon any and all of the shares of said stock deposited under said trust agreement; to secure for plaintiff the right to examine or receive a list of the beneficiaries under said trust; for an accounting; or, in the alternative, if the court declare said trust agreement valid, that the plaintiff be allowed to withdraw therefrom pursuant to the terms of said agreement, and that said trustees and said building corporation be directed to issue to and in the name of the plaintiff, respective shares of stock so deposited, and for other relief as set forth in said complaint as amended. Defendant answered and denied that the plaintiff was entitled to any relief. The cause was referred to a master in chancery. The plaintiff took the deposition of Louis J. Borinstein, one of the trustees. Thereafter, the order of reference to the master was vacated by agreement of the parties and the cause was heard by the chancellor upon a stipulation. The stipulation provides that “all issues raised by the pleadings herein, other than those specified in this stipulation, shall be disregarded and the court shall pass upon the following issues only:

“(1) Is the voting trust agreement set forth verbatim in and by the complaint of plaintiff,- a valid, legal agreement, or a void or voidable agreement?

“ (2) Is plaintiff entitled to examine or receive a list of the holders of common stock trust certificates issued pursuant to the aforementioned voting trust agreement?

“ (3) In the event that the court holds that said voting trust agreement is not invalid, or is not invalid in toto, does the plaintiff have a right to withdraw from said voting trust agreement and to receive in exchange for his common stock trust certificate shares of the capital stock of the Main-Elmwood Building Corporation?” Much of what is stipulated has been set up in the statement of the case. In addition to what has been stated, the parties also stipulated that Barnet L. Eosset was, in the year 1933, and is president of the Metropolitan Trust Company, owning and having a substantial financial interest in said company, and is the principal executive officer thereof; that Charles J. Young and Louis J. Borinstein have never had any financial interest in the Metropolitan Trust Company and have never been officers, directors or employees thereof; that Metropolitan Trust Company has, subsequent to August 1, 1933, been paid for acting as agent of the trustees under the trust agreement, an annual fee for registering, transferring and maintaining accounts of $250 for the first 250 accounts and 50 cents for each additional account and a minimum fee for custody of the corporate stock of $50 per annum; that payments to the Metropolitan Trust Company since August 1, 1933, for acting as agents of the trustees under the trust agreement were as follows:

Nov. 5, 1934 $479.50
Aug. 1, 1935 304.50
Jul. 28, 1936 364.50
Oct. 8, 1936 10.00
Jun. 23, 1937 10.00
Jul. 15, 1937 361.50
Aug. 1, 1938 351.00

that the three trustees have been paid fees subsequent to August 1, 1933, in the aggregate sum of $1,000 per year for their services as such trustees, but have received no additional amounts for acting as directors and officers of the Main-Elmwood Building Corporation; that plaintiff has offered to pay any amount which the court may find due to the trustees under the trust agreement, in the event he is permitted to receive shares of capital stock of the Main-Elmwood Building Corporation in exchange for his common stock trust certificates. The parties also stipulate that a copy of the deposit agreement was at all times after the organization of the bondholders’ committee kept on deposit with the said committee and was available for inspection by any bondholder; that after the voting trust agreement was drafted, a copy thereof was kept on deposit with the depositary of the bondholders’ committee and agent of the trustees and was available for inspection by any bondholder. The court entered a decree dismissing the complaint for want of equity, to reverse which this appeal is prosecuted.

The first point urged by plaintiff is that the committee had no authority to create or formulate the terms of the voting trust agreement. He argues that the powers of the committee emanate and depend upon the terms of the deposit agreement, and that these powers cannot be expanded or enlarged by the committee. He also maintains that the plan would be the means by which the bondholders acquired ownership of the real estate and personal property which had theretofore secured bonds owned by them, and that this plan would be completed upon the organization of a corporation, the acquisition of the title to the res in the name of the corporation and the issuance of capital stock to the bondholders in exchange for their bonds, and that such must have been the contemplation of the committee in preparing the deposit agreement; that if they had intended a different method or plan, they could and would have employed language authorizing the committee to create a voting trust and giving the voting trustees the right to subscribe for the stock of a corporation to be organized and to issue the stock to the trustees, and that they could likewise have provided specifically that the stock should not be distributed to the depositing bondholders. He declares that the deposit agreement was drafted by the committee and invokes the well-established rule that where an ambiguity exists, such agreement must be construed most strongly against the parties who prepared it. On the other hand, defendants assert that the trust agreement was authorized by the terms of the deposit agreement, and that it was accepted and subsequently ratified. We have carefully read the stipulation, the testimony of Louis J. Borinstein and all the exhibits, and are convinced that the committee had the authority to promulgate the plan of reorganization, as

amended, and to submit the trust agreement and put the plan into operation. The record clearly shows that plaintiff was acquainted with the trust agreement. He received a trust certificate. The language of. the trust certificate is clear. It is stipulated that the trust agreement was on deposit and that plaintiff and all the other bondholders could examine the same. The plan as amended was submitted to the bondholders. They were also notified by the master in chancery that the approval of the sale would be considered by the court. The decree confirming the sale shows that the court found that the price was fair and that the bondholders ’ protective committee had submitted a plan which provided for the organization of a corporation which would acquire the title, and the selection of three voting trustees, and the issuance of certificates to the bondholders. It is well established that in order to approve a sale, coupled with a plan, there must be two requisites, namely, a fair plan and a fair sale. The court in approving the sale necessarily approved the plan. Plaintiff did not dissent from the plan. He accepted the certificate, which showed on its face that the trust agreement might not terminate until July 31, 1943, and he took no action until December 18, 1936. He had an opportunity to be heard before the court on July 7, 1933. We are of the opinion that his actions showed a ratification of the action of the committee in adopting the plan and the trust agreement, and that such ratification was made while he had full knowledge of the facts.

The second point presented is that the trust agreement separates voting rights from ownership and is against public policy. Plaintiff does not contend that all voting trust agreements are invalid per se, but that their validity depends upon the purpose thereof. In support of his position he cites Warren v. Pim, 65 N. J. Eq. 36; Warren v. Pim, 66 N. J. Eq. 353; Gray v. Bloomington & Normal Ry., 120 Ill. App. 159; Venner v. Chicago City Ry. Co., 258 Ill. 523; Luthy v. Ream, 270 Ill. 170. Defendants lean heavily on the cases of Babcock v. Chicago Rys. Co., 325 Ill. 16, and Boyle v. John M. Smyth Co., 248 Ill. App. 57. He also cites section 30 of the Corporations Act (par. 157.30, ch. 32, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 32.030]) which reads: “ . . . Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by proxy, but no guardian, conservator or trustee shall be entitled, as such fiduciary, to vote shares held by him without a transfer of such shares into his name.” We have carefully studied the cases and are of the opinion that the voting-trust set up under the plan and the trust agreement does not constitute an illegal separation of the voting-power from the ownership of the stock. We also find that the record does not show that the voting trust was induced by fraud. We conclude that as the trustees are the legal owners of the stock, there is no separation of the voting rights from ownership.

The third point argued by plaintiff is that the voting-trust agreement contravenes and violates section 3 of Article XI of the Constitution of the State of Illinois, which reads:

“The general assembly shall provide, by law, that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner.” This contention is answered by our views on the previous point. We have held that the voting trust is valid. Therefore, the trustees are the stockholders of the corporation and there is no violation of the constitutional provision quoted. As a fourth point plaintiff states that equity will penetrate beyond the covering of form and look at the substance of a transaction and treat it as it really and in essence is however it may seem. That statement is not challenged. The contention here made that in equity the trust beneficiaries are to be regarded as stockholders, was also urged in the Babcock and Boyle cases and rejected. The trust agreement is valid, and therefore, the trustees are in fact and in law the stockholders of the corporation.

The fifth point advanced is that documents prepared by the committee and trustees (being the deposit agreement and the trust agreement) must be most strongly construed against the parties preparing the same and in favor of the beneficiaries. We believe that this point has been fully covered in our discussion of the other propositions. Plaintiff asserts that the voting trust agreement lacks mutuality and is unilateral. There is no merit to this point. Plaintiff also asserts that he is entitled to examine or receive a list of common stock trust certificates. The trust agreement by which plaintiff is bound provides that the holder or holders of trust certificates representing not less than 50 shares of capital stock of the corporation shall have the right at any reasonable time upon written notice to the trustees, stating the purpose therefor, to examine the list of the then holders of stock certificates, provided however, the trustees may withhold such right from any such person in their discretion. This provision does not seem unreasonable. However, we believe that under a proper showing a certificate holder would be entitled to make a list of the certificate holders. An examination of the record does not indicate that the plaintiff made any showing as to his purpose in procuring a fist of the certificate holders. Therefore, this point is without merit. Under this heading plaintiff also argues that he is entitled to an accounting. The stipulation on which the case was tried has eliminated consideration of this issue.

Finally, plaintiff insists that under the terms of the trust agreement, in the event we should declare said agreement valid, the beneficiaries are entitled to withdraw therefrom and have the shares deposited thereunder represented by the said trust certificates issued in their respective names upon paying to the trustees such amount as may be found due them, if any. We have held that the trust agreement is valid and that it is binding upon the plaintiff. We do not agree with him that paragraph 13 of the trust agreement permits him to -withdraw therefrom upon offering to pay his share of any amounts due to the trustees. Under paragraph 7 the certificate holdérs are to receive the stock on July 31, 1943, or at such earlier date as a majority of the trustees shall determine. We cannot sustain the argument of plaintiff that he is entitled to withdraw from the trust agreement.

Before the case was assigned to this division, the First Division denied a motion by defendants to dismiss the appeal. A motion to reconsider the motion to dismiss the appeal was reserved to hearing. The basis of the motion is that the rules of the Supreme Court require that the plaintiff include in the record, either (a) a report of the proceedings at the trial, or (b) in lieu of such report of the proceedings at the trial, a written stipulation containing the agreement of the parties hereto upon a statement of the facts material to the controversy. The case was tried by the chancellor on a stipulation, which stipulation is in the record. Therefore, the record before us discloses everything that the chancellor had. Defendants’ motion to dismiss the appeal is denied.

For the reasons stated, the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Hebel, P. J., concurs.

Denis E. Sullivan, J., dissents.


text:
    People of the State of Illinois, Defendant in Error, v. Christine Conzo, Plaintiff in Error.
    Gen. No. 41,283.
    Denis E. Sullivan, J., dissenting.
    Opinion filed November 20, 1940.
    Darrow, Smith & Carlin, of Chicago, for plaintiff in error; Wm. W. Smith, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On January 11, 1939, in response to a subpoena, Christine Conzo appeared before the grand jury of Cook county. On her refusal to answer certain questions, the criminal court, presided over by Hon. Michael L. McKinley, Chief Justice, found her guilty of contempt and sentenced her to confinement in the county jail for a term of 30 days, which contempt proceeding was docketed as No. A-24. The proceeding was considered in an opinion filed October 25, 1939 (301 Ill. App. 524), wherein we reversed the judgment and remanded the cause. When the mandate was filed in the criminal court the cause was redocketed and transferred to Judge McKinley. He was chief justice of the criminal court for the court year commencing September 5, 1938, and ending September 3, 1939. At the time criminal court contempt case No. A-24 was redocketed and assigned to him, he was sitting as a judge of the superior court of Cook county. The record does not show that any further action was taken in case No. A-24. While the latter case was pending and on December 27, 1939, an order was entered in the criminal court, Judge McKinley presiding, giving the State’s Attorney leave to file an information charging Christine Conzo with contempt and directing that the cause be docketed and entitled “People of the State of Illinois v. Christine Conzo.” This information was given criminal court No. A-48. The latter information set up the facts substantially as related in our previous opinion, and in addition stated that on January 12, 1939, Francis J. Kennedy, Edward J. Fisher and Hubert Heintz were indicted by the grand jury for conspiracy to obstruct the administration of justice; that on October 26, 1939, Christine Conzo appeared as a witness for the defendants in the trial of the cause entitled “People of the State of Illinois v. Francis J. Kennedy, Edward J. Fisher and Hubert Heintz,” indictment No. 39-63, before Honorable James A. Fardy, a judge of the criminal court of Cook county; that Christine Conzo then testified that she was a friend of Kennedy and that she had known him for about nine years; that in the month of November, 1938, in the company of Kennedy she met Hubert Heintz; that she met him about two or three times, each time in the company of Kennedy; that about the second time she met Heintz she knew he was a client of Kennedy; that during the times that she met him she did not learn from him or Kennedy or anyone else that Heintz was suspected of committing a robbery; that she did not at any time purchase any hair tonic or wash for the purpose of changing the color of the hair of Hubert Heintz, and that she did not purchase anything in a drug store at any time at the request of Kennedy or Heintz while she was in the company of Heintz. The petition represented that when Christine Conzo appeared before the grand jury she “did not have any fear of incriminating herself and was not sincere in her claim that her answers to the questions asked her before the grand jury would incriminate her and that her refusal to answer said questions was contumacious and contemptuous, as is clearly shown by her answers on the trial of the cause.” An attachment issued against respondent. She filed a motion to strike the information. The eighth point of the motion is that “this court, to-wit: the court now presided over by the Honorable Michael L. McKinley, is without jurisdiction to try, hear, determine or entertain the information.” The court denied the motion and she filed her verified answer, which concluded by asserting that her refusal to answer the questions before the grand jury upon the ground that they would tend to incriminate her, was made in good faith and was in accordance with her best judgment, and was in accordance with the advice she had theretofore received to the effect that she was within her rights in refusing to answer any question which she, in her judgment, deemed might tend to incriminate her, and that when she claimed her privilege against self-incrimination before the grand jury, she was firmly of the opinion that her answers to the questions asked her might tend to incriminate her. On March 1, 1940, the criminal court, Judge Michael L. McKinley presiding, found that the “respondent is in contempt of court because her said answers disclose that she was not in the slightest danger of incriminating herself by her said answers and that the answers being of such nature that she could not have been in such danger of incriminating herself and that her answer admitting all the allegations set forth in the petition of the People of the State of Illinois to be true fails to purge her from contempt of court, and the court therefore finds the said Christine Conzo guilty of contempt of court.” She was sentenced to serve five days in the common jail of Cook county and has prosecuted a writ of error for the purpose of reviewing the record.

One of the points urged by the respondent is that the court was without jurisdiction. As heretofore stated, the assignment of Judge McKinley to sit as a judge of the criminal court of Cook county expired on September 3, 1939. However, it is contended that he had the right to preside over the instant contempt case because of the provisions of the second paragraph of an order entered by the executive committee of the superior court on June 27, 1938, and filed in the criminal court on March 1,1940, nunc pro tunc as of January 22, 1940, which order reads:

“In The Superior Court of Cook County Executive Committee Order.

“It is ordered by the Executive Committee that Judges James F. Fardy, William J. Lindsay, M. L. McKinley and Walter J. Stanton, be and they are hereby assigned to the Criminal Court of Cook County for the court year commencing Monday, September 5, A.D., 1938.

“It is further ordered that every order of assignment heretofore made or hereafter to be made of any judge of the Superior Court of Cook County to serve as a judge of the Criminal Court of Cook County shall be deemed to contain a provision as if the same had been written into it that the assignment is for the period designated by the order and for such further time thereafter as shall be required to hear and determine any matter directly or incidentally connected with any cause which such judge had or shall have heard as a judge of the Criminal Court of Cook County during the period for which he was assigned, notwithstanding the fact that such period of assignment has expired and the judge is holding Superior Court.” In People v. Feinberg, 348 Ill. 549, the Supreme Court held that a judge of the circuit court or superior court is not a judge of the criminal court until he has been assigned to that service by the judges of the circuit or superior court, in accordance with the rules of such court regulating assignment, and that no judge of the circuit or superior court, unless so assigned, has the right to hold a term of the criminal court. Therein the Supreme Court recognizes the power and duty of the judges of the circuit and superior courts to adopt rules governing the assignment of judges to sit in the criminal court. It will be noted that this power to adopt rules governing such assignment is lodged in the judges. The Feinberg case also inferentially recognizes the validity of rules which delegate the power of assignment to the executive committee. The brief of defendant in error does not differentiate between a rule of court and an order of the executive committee. This brief speaks of the order of the executive committee as a rule of court and then argues that “a rule which allowed a judge to finish matters which he began while sitting in the Criminal Court is reasonable.” The only rule of the superior court (relating to assignments of judges to the criminal court) which we have been able to find, is rule 1, section 2 of which provides that “judges who are to sit in the Criminal Court of Cook County shall be annually designated by the Executive Committee hereinafter mentioned from among the judges as nearly as may be.in rotation.” Section 2 of rule 1, then, is the source of the supposed power of the executive committee to enter the second paragraph of the order of June 27, 1938.

We are called upon, therefore, to determine whether in adopting said paragraph, the executive committee exceeded the powers delegated to it by the rule. First, it will be observed that the rule contemplates that the judges who are to sit in the criminal court shall be annually designated by the executive committee as nearly as may be in rotation. The order purports to affect any assignment “heretofore made or hereafter to be made” of any judge of the superior court to serve as a judge of the criminal court. What is meant by the language that every order or assignment shall be deemed to contain a provision that such assignment is for the period designated by the order and for such further time thereafter as shall be required “to hear and determine any matter directly or incidentally connected with any cause which such judge had or shall have- heard as a judge of the Criminal Court of Cook County during the period for which he was assigned notwithstanding the fact that such period of time has expired and the judge is holding Superior Court?” What is meant by the words “directly or incidentally connected with any cause?” What is the meaning of the words “any cause which such judge had or shall have heard as a judge of the Criminal Court of Cook County during the period for which he was assigned?” This language purports to authorize any judge who was at any time assigned to the criminal court to resume jurisdiction in that court at any time to “hear and determine any matter directly or incidentally connected with any cause” which such judge at any time “had” on his trial call, or “shall have heard” during the period for which he was assigned. All indictments are returned before the chief justice and therefore he “had” all indictments returned during his tenure of office. Hence, presumably he or any other judge whose assignment had expired could return to the criminal court at any time “to hear and determine any matter directly or incidentally connected with any cause” which he “had” or “shall have heard.” We are not at this time called upon to determine whether the judges, by rule of court, could authorize the executive committee to adopt such an order as we are discussing. The judges of the superior court possess a broad power to provide by rule the method by which judges shall be assigned, but it is manifest that the judges did not delegate to the executive committee any power to enter the second paragraph of the order of June 27, 1938. Under this order, Judge McKinley, who was then sitting in the superior court, undertook to hear and determine the new contempt case. The information in the instant case initiated a new proceeding and does not purport to be an amendment to the information in the first case. We are convinced that the second paragraph of the order entered by the executive committee of the superior court on June 27, 1938, exceeded the power given to such committee by the judges and did not give Judge McKinley jurisdiction over the instant contempt proceeding. Therefore, the judgment of the criminal court of Cook county is reversed.

Judgment reversed.

Hebel, P. J., concurs.

Denis E. Sullivan, J., dissents.


text:
    In re Estate of Frank Halaska, Deceased. Terezie Halaska, Appellee, v. Lillian Vnoucek, Appellant.
    Gen. No. 41,306.
    Opinion filed November 20, 1940.
    John E. Taylor and Emmett M. McDonald, both of Chicago, for appellant.
    Harry J. Guyon, William J. Kafka and John T. Murray, all of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Frank Halaska died testate December 8, 1938, leaving him surviving Terezie, his widow, John, Anton and Bose Halaska and Lillian Vnoucek, his children by a former marriage, all of age, and four minor grandchildren, children of Anna Kofron, his deceased daughter by his former marriage. During his lifetime he conveyed one-half of his real estate to his wife, Terezie. His will, dated December 21, 1931, after providing for payment of debts, funeral expenses and care of his grave, bequeathed $200 each to his daughters, Bose Halaska and Lillian Vnoucek, then stated that inasmuch as he had theretofore given his wife one-half of his real estate he bequeathed her $100, the remainder of all of his property to go to his children, share and share alike, the grandchildren to take their deceased mother’s share. She was his third wife. She married him 28 years before his death and lived with him continuously until his death. The widow renounced the will. At the time of his death he owned real estate located at 2416 South Avers avenue, Chicago, and three savings accounts in the Lawndale National Bank of Chicago, which bank is executor under the will. One account was in his name alone, and the balance on deposit, $1,320, was inventoried by the executor of the estate. The disposition of the funds represented by the other two accounts is discussed in our opinion, In re Estate of Halaska, 307 Ill. App. 183. Prior to his death, Frank Halaska had $2,000 in cash in a safety vault in the Lawndale Bank, which vault was rented by him and his daughter, Lillian Vnoucek and to which they alone had access. On March 11, 1940, the widow, Terezie Halaska, filed a petition in the probate court of Cook county and therein represented that at the time of his death Frank Halaska had in his possession in a safe-deposit box the sum of approximately $2,300; that Lillian Vnoucek, his daughter, had access to the box; that on the day of his death, December 8, 1938, Lillian “entered” the box at the Lawndale Bank and withdrew therefrom approximately $2,300 in cash, which was then the property of Frank, Halaska. The petition prayed for the issuance of a citation to discover assets directed to Lillian Vnoucek. Lillian Vnoucek filed a sworn answer wherein she admitted that at the time of the death of her father he had in his name a certain safe-deposit box in the Lawndale Bank. The second paragraph of the answer denied that “on the 9th day [sic] of December, 1938, the date of the death of the above named deceased, said deceased had in said safe deposit box the sum of approximately $2,300, or any other sum.” The third and fourth paragraphs read:

“Respondent states that during the lifetime of said deceased on, to-wit, December 8th, 1938, said deceased gave to this respondent the sum of $2,000 and directed this respondent to proceed to the Lawndale National Bank of Chicago and withdraw the cash contained in a safe deposit box in said bank, that this respondent is the daughter of the above named deceased and that deceased directed this respondent to withdraw said money and divide it equally with the other children of said deceased, brothers and sisters of this respondent, which he therein named.

“Respondent denies that she has in her possession, or ever has had in her possession, any cash belonging to the estate of the above named deceased, or any money or other property which she should by law deliver up to the executor of the above entitled estate.” On November 24, 1939, the probate court found that Lillian Vnoucek “has in her possession the sum of $2,000, in currency of the United States of America, which the court has found to be the property of the above named deceased.” The court also found that Lillian “had in her possession the sum of $200 in currency of the United States of America, which the court found to be the property of the above named deceased, and that the said Lillian Vnoucek paid out of said sum of $200 the sum of $84.25 for expenses in connection with the last illness of the above named deceased, and that she now has in her possession the sum of $2,115.75, which the court finds is the property of the above estate.” The probate court then ordered Lillian to deliver to the Lawndale Bank, executor of the estate, “the said sum of $2,115.75, which she now has in her possession and which is the property of the above estate.” Lillian appealed to the circuit court of Cook county. By arrangement between the parties and with the approval of the, court, the sum of $2,115.75 was deposited with the Lawndale Bank to be held pending the disposition of the case. The circuit court also found that Lillian had in her possession the sum of $2,115.75, which was the property of the estate, and directed the Lawndale Bank to pay such sum to itself as executor of the estate of Frank Halaska, deceased. Lillian prosecutes this appeal to review the order of the circuit court of Cook county.

The parties are in agreement that in citation proceedings under the Administration Act, respondent is required to appear and may be examined by the court. The proceeding under section 81 of the Administration Act (par. 82, ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.082]) is not a suit, nor is the executor necessarily a party. The information referred to in the section may be given to the court by an heir, legatee, devisee, administrator, creditor, or by any interested person. The section provides that “the court shall require such person to appear before it by citation, and may examine him, on oath.” It is discretionary with the court whether the party alleged to have property belonging to the estate shall be examined under oath, but it is the court which calls him by citation and is to examine him, which of course the court may do by attorneys. (Merchants' Loan & Trust Co. v. Egan, 222 Ill. 494; Wilson v. Prochnow, 359 Ill. 148; Merchants' Loan & Trust Co. v. Egan, 143 Ill. App. 572.) Section 82 of the act (par. 83, ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.083]) provides that if a party cited refuses to testify if ordered to do so by the court, he may be committed to jail until he complies with the order. In this case it will be observed that the petition was filed by the widow and not by the executor. At the hearing under the citation proceeding, counsel for the widow suggested that the court examine Lillian Vnoucek. In a colloquy between counsel the attorney for Lillian stated that he had intended to amend her answer filed in the probate court, by striking out paragraph 3. Attorney for the widow objected, stating that Lillian was attempting to change the position that she took in the probate court. This attorney stated that ill the probate court, Lillian, by her attorney, “pleaded a gift.” Counsel for Lillian then stated that in the probate court the testimony as to a gift was excluded on objection of the attorney for the widow, and that “we are here to prove that,” and further stated, “we are not changing our position. We claim we had no property belonging to the deceased. We claim it was a gift from the deceased.” Counsel for Lillian also stated that “we have no objection to her testifying, but as I understand the statute provides that when a respondent is cited in the Probate Court it is always discretionary with the court whether or not she be allowed to testify. If Mr. G-uyon [attorney for appellee] is calling her will the record show that the court is exercising its discretion in allowing her to testify? We could not put the respondent on the stand ourselves for any purpose without the consent of the court.” The transcript of the testimony shows that the court stated, “I will examine her.” However, the record also shows that “Lillian Vnoucek called as a witness on her own behalf, being first duly sworn, was examined by the court. . . .” Although the record so shows, it is apparent that Lillian was not called as a witness on her own behalf. She was responding to a citation. In response to questions by the court she answered that between 10 and 10:30 on the morning of December 8, 1938, she went to the box in her father’s name at the Lawndale Bank; that she had a key to the box; that she took therefrom the sum of $2,000; that her father put the money in the box; that she was not present when it was placed there; that she was not living at her father’s home at the time; that her father was living with his wife; that the box was rented by her father and herself; that she did not have possession of the key prior to December 8, 1938; that on December 8, 1938, she obtained the key from a box on the window sill at her father’s bedside; that her father was sick; that after she removed the money from the safe deposit box at the bank she placed it in another box in the same bank in the name of herself and her husband; that her father was removed to a hospital; that she visited him at the hospital where he died at 6:45' in the evening. She further testified that on the morning of December 8, 1938, before she went to the bank, at her father’s direction she searched for and found the sum of $200 in his vest under some old clothing in the closet; that this $200 was not her money; that out of this $200, $84.25 was expended for services rendered in connection .with the last illness of her father, leaving a balance of $115.75. Counsel for Lillian requested that she be allowed to relate a conversation between herself and her brothers and sisters which occurred during the lifetime of her father at the hospital in the presence of Terezie Halaska, and stated, “we offer to prove all these conversations for the purpose of the record.” He did not, however, make any offer of proof and the record is silent as to what he expected to establish.

Section 2 of the Evidence Act provides:

“No party t,o any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his, own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely: . . . .” The trial court took the position that Lillian was not called as a witness by any adverse party, but was called by the court, and that hence she could not testify in her own behalf. The questions put to her by the court were limited and did not call for a disclosure of conversations. As announced in Merchants' Loan & Trust Co. v. Egan, 222 Ill. 494, a person may be called as a witness and interrogated as to certain subjects without making him a witness as to all questions. It is clear that there is nothing in the record which shows a gift inter vivos. This is conceded by appellant, who in her reply brief states: “Respondent does not contend that the evidence shows a completed gift of this money to her and to her brothers. She does contend that either she and her brothers be allowed to testify concerning the gift, or that she be not required to testify at all.” Appellant insists that the court “by requiring respondent to testify and then sustaining petitioner’s objection to such parts of her testimony as were unfavorable to petitioner, obtained a result manifestly contrary to the intention of the decedent.” Appellant argues that the court erred in requiring her to testify for the petitioner and then excluding such portions of her testimony as, were unfavorable to the petitioner. In determining whether the trial judge abused his discretion in requiring Lillian to testify and at the same time excluding her testimony as to conversations, it is well to remember that in the sworn answer filed by Lillian in the probate court, she admits that on December 8, 1938, her father gave to her the sum of $2,000, which was then in a safe-deposit box at the bank, and that her father directed her to withdraw the money and divide it equally with his other children. In the answer she denied that she ever had in her possession any cash belonging to the estate of her father. This, however, was a mere conclusion. From a reading of the petition and the answer, we conclude that it was unnecessary to examine Lillian under oath in order to establish the right of the executor to the $2,000. Nor was it necessary to examine her as to the whereabouts of the $2,000, or the additional sum of $115.75, as such sum had already been delivered to the bank to be held by it until the case should be disposed of.

We are satisfied that the trial judge did not abuse his discretion in requiring Lillian to testify, and that the order of the circuit court of Cook county of February 21, 1940, should be and it is affirmed.

Order affirmed.

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


text:
    In re Estate of Frank Halaska, Deceased. Terezie Halaska, Appellee, v. Lillian Vnoucek, Appellant.
    Gen. No. 41,307.

      Opinion filed November 20, 1940.
    John E. Taylor and Emmett M. McDonald, both of Chicago, for appellant.
    Harry J. Guyon, William J. Kafka and John T. Murray, all of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Frank Halaska died testate December 8, 1938, leaving him surviving Terezie, his widow, John, Anton and Eose Halaska and Lillian Vnoucek, his children by a former marriage, all of age, and four minor grandchildren, children of Anna Kofron, his deceased daughter by his former marriage. During his lifetime he conveyed one-half of his real estate to his wife, Terezie. His will, dated December 21, 1931, after providing for payment of debts, funeral expenses and care of his grave, bequeathed $200 each to his daughters, Eose Halaska and Lillian Vnoucek, then stated that inasmuch as he had theretofore given his wife one-half of his real estate, he bequeathed her $100, the remainder of all his property to go to his children, share and share alike, the grandchildren to take their deceased mother’s share. The widow renounced the will. At his death he owned real estate located at 2416 South Avers avenue, Chicago, and three savings accounts in the Lawndale National Bank of Chicago, which is executor under the will. One account was in his name alone and the balance on deposit, $1,320, was inventoried by the executor of the estate. The other two accounts, Nos. 9,666 and 57,096, were in the names of himself and his wife, so that either could withdraw funds without the signature of the other. Passbooks evidencing these accounts were kept by him in a safe-deposit vault in the same bank, to which vault his wife did not have access. The contract with the bank relating to the two joint accounts was signed by the deceased and his wife on July 15, 1916, and reads as follows:

“It is hereby expressly agreed with the Lawndale National Rank that all moneys deposited with said bank by either or both of the undersigned, shall be placed by said bank to the credit of us jointly, and may be withdrawn from, or paid out by said bank, upon request or order of both or either of us. And it is further agreed that upon the death of either of us, the survivor shall have the absolute right to withdraw or be paid all moneys not then withdrawn.” On July 27, 1939, the widow petitioned for an order on the bank, as executor, to turn over and deliver to her the passbooks bearing Nos. 9,666 and 57,096 and the funds represented thereby, claiming by right of survivorship. The probate court found for the petitioner and directed the executor to deliver the passbooks and the funds to the widow. Lillian Vnoucek perfected an appeal to the circuit court of Cook county as to that part of the claim represented by deposit book No. 9,666. For reasons best known to the parties, the funds represented by deposit book No. 57,096 were delivered to the widow and no appeal was prayed from the ruling of the probate court as to that account. The circuit court found that the account bearing No. 9,666 was a joint account with the right of survivorship, and that the widow being the surviving joint owner, was entitled to the bankbook and the funds in said account, and ordered the executor to deliver to the widow the bankbook and the funds represented thereby, which amounted to $1,208.57. This appeal is prosecuted to review the order of the circuit court.

Appellant states that the only question presented is on the construction of the contract. The widow claims to be entitled to the entire balance on deposit. Appellant’s theory is that the contract did not create a joint tenancy in the funds on deposit and maintains that joint tenancies with right of survivorship in personal property were abolished by statute in 1821. In 1917, the legislature passed an act which provided that if the survivor of a joint account was paid the money on deposit by the bank after the death of the other- co-depositor, the bank should be discharged as to all liability upon the account upon obtaining the receipt of the withdrawing depositor, providing that the original deposit agreement with the bank provided therefor. However, the deposit in the instant case was made on July 15,1916, and is not affected by the Act of 1917. The widow insists that the right of joint tenancy in personal property, including bank accounts, with full right of survivorship, was creatable by contract prior to the act of 1917. The contention of the widow is supported by the authorities. In Reder v. Reder, 228 Ill. App. 21, p. 26, this court said: “No other conclusion can be reached, therefore, than that the laws of this State have always permitted a joint tenancy in personal property with the common-law incident of survivorship if there was an apt agreement therefor. Interpreted by these decisions the act of 1821 merely converted all joint tenancies, after the death of one of the joint tenants, into tenancies in common unless a contrary intention was expressed.” This opinion was affirmed by our Supreme Court in Reder v. Reder, 312 Ill. 209. To the same effect is Illinois Trust & Savings Bank v. VanVlack, 310 Ill. 185.

Counsel also argues that since the passbook was in the exclusive possession of deceased, no title to any part of the funds ever passed to Terezie Halaska. This proposition was decided adversely to the contention of appellant in the case of Illinois Trust & Savings Bank v. VanVlack, 310 Ill. 185, 191 where the court said: “The mere fact of the retention of the passbook by one of the two owners of the deposit is of no importance. If the contract entered into by the two persons concerned with the bank was effectual, as was held to be the case in Erwin v. Felter, [283 Ill. 36] each of the owners of the deposit had an equal right to possession of the book, and its possession by either did not affect the right of the other. Both could not have actual manual possession of it all the time. The possession of either was for the benefit of both and was not inconsistent with the contract.”

We are of the opinion that the contract in the instant case was effectual to create a joint tenancy account with full right of survivorship, and that even prior to the Act of 1917 the law of this State permitted a joint tenancy in personal property with the common law incident of survivorship if there was an apt agreement therefor. For the reasons stated, the order of the circuit court of Cook county of February 21, 1940, is affirmed.

Order affirmed.

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


author: Mr. Justice Denis E. Sullivan

text:
    Steve Cosmo, Minor, by John Cosmo, His Father and Next Friend, Appellee, v. George F. Seegers and Melville H. Seegers, Appellants.
    Gen. No. 40,825.

      Opinion filed November 20, 1940.
    Burt A. Crowe, of Chicago, for appellants.
    Irving N. Stenn and Marion J. Hannigan, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit court for $1,850 as damages for injuries alleged to have been received by Steve Cosmo, a minor, the suit having been instituted by John Cosmo, his father and next of kin, against George F. Seegers and Melville H. Seegers, defendants herein.

The injuries alleged to have been sustained by plaintiff were the result of an accident which occurred on May 21,1937, while plaintiff was playing in the back yard of the apartment building in which he lived and which was owned by the defendants. The cause was tried before a judge and jury and the jury returned a verdict in favor of plaintiff for $1,850. Defendants’ motions for an instructed verdict at the close of plaintiff’s case and again at the close of all the evidence were overruled and it is from these rulings and the subse- . quent ruling of the court in refusing to enter a judgment for defendants notwithstanding the verdict and also for a new trial, that this appeal is taken.

No question is raised as to the pleadings or as to the amount of the judgment.

In his pleadings plaintiff charges in substance and the evidence shows that on May 21, 1937, the defendants were possessed of and controlled certain buildings located at 3905 and 3909 Belmont avenue and 3196 and 3198 Milwaukee avenue; that plaintiff and his family were tenants of the defendants and resided in the residential quarters of the building on Belmont avenue; that there was a back yard behind the premises of the building on Belmont avenue, but that there was no back yard other than this to the Milwaukee avenue premises, and this yard was used in common by the various tenants of these buildings; that defendants had leased out to divers tenants various portions of the buildings reserving unto themselves for the common use of all the tenants, certain common areas, passageways and stairways; that on the day in question and for a long time prior thereto, the defen d-ants were possessed of and had control of a certain large radiator, which radiator was suffered and permitted to be and remain in this certain yard or area-way in the rear of said premises; that the yard or areaway as heretofore stated was used in common by the various tenants of the building.

Plaintiff’s pleadings further charge that the minor plaintiff, Steve Cosmo, was rightfully and lawfully in and upon the said areaway as a tenant of the defendants and that at the time and place aforesaid the defendants negligently and improperly permitted the radiator to be and remain in a dangerous and unsafe position and condition, of which condition the defendants had notice or in the exercise of ordinary care should have had notice; that due to the negligence of the defendants the radiator was caused to. fall upon and against the plaintiff thereby injuring him.

The evidence for plaintiff shows that the areaway floor where the radiator was leaning against the wall was of concrete; that the radiators were leaning against the wall at approximately a 10 per cent angle; that the child, when found, was alone in the yard; that at the time of the injury said child was heard to cry out, one of the witnesses having stated that he heard the child cry and he ran out and found the child lying on the ground with the radiator lying on him.

The evidence for plaintiff further shows that the child was taken to the hospital where it was found that the bones of the child’s knee had been broken; that the child was attended by a doctor over a period of several months and that he now has a restricted motion of the leg which the evidence shows is likely to be permanent.

At the conclusion of all the plaintiff’s evidence the defendants made a motion to instruct the jury for the defendants and upon denial thereof offered no further evidence on behalf of the defendants. In considering a motion to instruct the jury for the defense at the conclusion of plaintiff’s evidence, the rule is that the evidence most favorable to the plaintiff, together with all the legal inferences to be drawn therefrom, must be taken as true. In addition to the admission by this motion that the areaway and the radiator caused a situation of danger, it must also be borne in mind that a child of the age of three years is not capable of being guilty of contributory negligence.- Chicago City Ry. Co. v. Tuohy, 196 Ill. 410. In considering the motion made and the evidence presented it clearly appears that the landlord and owner of the premises was advised of the dangerous condition which existed prior to the accident and that the landlord had promised to ‘■take care of it.” This evidence shows notice to the landlord of the dangerous condition which existed on his premises. As our Supreme Court said in the case of Sunasack v. Morey, 196 Ill. 569 (wherein that court quoted from the case of Cowen v. Sunderland, 145 Mass. 363, 364) at p. 571: “ ‘When there are concealed defects, attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor if injury occurs. ’ ”

It is contended on behalf of defendants that there is no evidence showing how the accident occurred. The evidence shows that the child, when found, was alone in the yard and that the radiator was lying on him and that he had been badly injured. Inasmuch as a child of such tender years cannot be guilty of contributory negligence and the rule being that on a motion for an instruction at the close of plaintiff’s evidence, the evidence of plaintiff must be considered as true and that all inferences relative thereto and most favorable to the plaintiff must be considered as true, then the question arises as to who is to draw these inferences. The inferences are to be drawn by the jury, and as was said in the case of Kavale v. Morton Salt Co., 242 Ill. App. 205, wherein the Supreme Court in quoting from Moore v. Rosenmond, 238 N. Y. 356, 359 (which case presented a question as to whether or not the chauffeur at the time of the accident was serving his master) at p. 213:

“ ‘This evidence was not sufficient in law to destroy the presumption of control, although it might have been in fact. The jury might have found that Dollar (the chauffeur) had started down to Forty-Ninth street on defendant’s business, got drunk, got to Forty-Ninth street, but neglected the business, and started back to defendant’s garage without having the windows fixed. Although Dollar was serving defendant badly, defendant was liable. Bloodgood v. Whitney, 235 N. Y. 110, 114. They might, on the other hand, if they drew from the testimony the inferences most favorable to defendant, have found that Dollar had abandoned his employer’s business when he picked up Corbin at the Eighty-Fifth street garage, and that the time was then devoted to a personal spree, until a belated sense of duty inspired them to start back to the garage. It was, however, for the jury to draw the inferences.’ ”

So, in the instant case, the jury might have drawn different inferences than it did, but whatever those inferences were, it was their function to draw the same from the evidence admittedly true. It cannot be said there was no evidence as a matter of law to sustain the charges made in the complaint.

Defendants complain that the instructions given on behalf of plaintiff were not correct; that a directory verdict offered by the plaintiff did not limit the recovery to the negligence as charged in the declaration and cites in support of their position the case of Herring v. Chicago & A. R. Co., 299 Ill. 214, 217. When considered alone, this instruction may be subject to the criticism leveled at it. The other instructions, however, given by plaintiff and defendants we think cure this objection. Defendants’ instruction No. 7, reads in part as follows: “ ... if you further believe from the evidence that the plaintiff has not proved that the plaintiff was injured by the negligence of the defendants as charged in the complaint, then the plaintiff cannot recover.” A portion of instruction No. 8, reads as follows: “ . . . still the plaintiff cannot recover in this case unless you believe from all the evidenee that the defendants were guilty of the negligence as charged in the complaint and that such negligence, if any, on the part of the defendants was the proximate cause of the plaintiff’s injuries.”

A somewhat similar instruction is given by defendants, being instruction No. 11, which instruction omits any reference to the allegations in the complaint. That instruction, in part, reads as follows:

‘1 The Court instructs the jury that the fact that the Court has instructed you respecting the matter of measure of damages which may be allowed to the plaintiff in case you find he is entitled to recover under the evidence and these instructions, ... ” The defendants having given a similar instruction they cannot now complain of plaintiff’s instruction.

Further complaint is made as to some of the rulings of the trial court in the admission of evidence and in not granting the motion to direct a verdict and the subsequent motion to grant a verdict non obstante veredicto and for a new trial. In considering these motions we do not think any error was committed nor do we feel the defendants suffered because of these rulings as said rulings were made in compliance with the law.

For the reasons herein given the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.