text:
    Interstate Optical Company, Appellant, v. Illinois State Society of Optometrists and F. T. Lee, Appellees.
    Gen. No. 31,207.
    1. Libel and slander — business reputation of corporation as subject of actionable libel. A corporation, as well as an individual, may have a business reputation valuable to it which may be so injured by libel of its business integrity as to warrant damages therefor.
    2. Libel and slander — charge that corporation conducts its business badly and inefficiently as actionable. Newspaper statements which lead people of ordinary sense to think that a corporation conducts its business badly and inefficiently will support an action for libel against the publisher without alleging special damage.
    3. Libel and slander — when published statements respecting optical company’s business methods not mere statements of facts but intrinsically libelous. Newspaper statements that an optical company’s offer to examine 30 persons a day would be obtaining money under false pretenses is not a mere statement of facts from which readers could draw their own conclusions but a libelous statement which ordinary persons would be apt to take at its face.

      4. Libel and slander — effect upon ordinary reader as test of libelous character of published statement. Whether a newspaper statement is libel is not to be judged by the meaning the publisher had in mind but by the effect upon the ordinary reader of words charging plaintiff with obtaining money under false pretenses.
    5. Libel and slander — when statement of facts supporting accusations no defense in action for libel. A newspaper’s statement of facts in such a way as to support its accusations against another of obtaining money under false pretenses is not the kind of statement from which ordinary readers would draw their own conclusions and is no defense to an action for libel.
    6. Libel and slander — when declaration sufficient to admit proof of libeling corporate methods of doing business. An optical company’s allegations in its declaration for libel that it was “engaged in the furnishing of optical advice and spectacles ’ ’ is sufficient to bring under the declaration proof of libeling its methods of giving optical advice.
    7. Libel and slander — libelous statement respecting business methods of corporation as actionable without proof of special damage. Words charging an optical company with being unable to stay in business in a legitimate way, with obtaining money under false pretenses, and with misleading people, directly tends to the injury of plaintiff’s business and are actionable libel without proof of special damage.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed April 6, 1927.
    Brown & Alschuler, for appellant; Jesse H. Brown, of counsel.
    Nicholson, Crandall & Snyder, for appellees; John R. Nicholson and John T. Chadwell, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a suit for damages for an alleged libel. The issue is precipitated by a second amended declaration and a general demurrer. The trial judge sustained the demurrer and ordered the plaintiff’s suit dismissed. This is an appeal from that order.

The declaration alleged, among other things, that the plaintiff was an Illinois corporation engaged in the furnishing of optical advice and spectacles, and had a good name and reputation in this State; that the defendants maliciously intending to injure the plaintiff and its business, and to bring it into public scandal and disgrace, on July 20, 1924, in Chicago, composed and published, of and concerning the plaintiff and its business, in newspapers called the Illinois State Society of Optometrists and the Chicago Optometric Society, of which the defendants were the editors and proprietors, a certain false, malicious and defamatory libel concerning the plaintiff and its business.

The words of the libel, as charged in the declaration, are as follows:

“The Interstate Optical Company (meaning the plaintiff) still seems to be unable to stay in business in a legitimate way.
“Word came to the paper this week that the Interstate people (meaning the plaintiff) are still trying to give their (meaning the plaintiff) services and almost give glasses away also. They (meaning the plaintiff) approached the Hart, Schaffner & Marx Clothing Company with a proposition to examine all their employees’ eyes (to average about thirty a day) free of charge and to furnish all kinds of glasses where they (meaning the plaintiff) thought them needed, at a flat rate of $7.00 per pair.
“We (meaning the defendants) have no objection to Mr. Larson (the President and duly authorized agent of the plaintiff) doing commercial work if he (meaning said Larson) chooses, any more than any one else, but we (meaning the defendants) do object to any so-called optometrist (meaning the plaintiff) cheapening the profession of optometry to the extent of what would be for a legitimate optometrist, working for nothing. Of course, as the Interstate (meaning the plaintiff) is supposed to be a wholesale house, they (meaning the plaintiff) can sell glasses at the wholesale price and make a profit, but if optometrists and oculists would not patronize such a house (meaning the plaintiff) they (meaning the plaintiff) could not continue to be a wholesale house very long.
“If you are patronizing this house (meaning the plaintiff) and do not care for yourself, then have some consideration for the profession of optometry in general and buy your goods where you are at least on the same footing with others.
“No one (meaning the plaintiff) can examine thirty patients a day and know anything about their visuhl condition in that length of time; they (meaning the plaintiff) are simply getting their money under false pretense and misleading the people they (meaning the plaintiff) examine.”

The article seems to be an attack on the plaintiff, based, in part, on the theory that the plaintiff had made a proposition to a clothing company to examine all its employees’ eyes (averaging about 30 persons a day) free of charge, and to furnish all kinds of glasses it, the plaintiff, thought were needed, at $7 a pair; that such a proposition to do commercial work would cheapen the profession, and not be legitimate optometry.

Besides that charge, the article suggests that although the plaintiff is supposed to be a wholesale house, and by merely selling glasses at the wholesale price would make a profit, that would be put an end to, if the optometrists and oculists would not patronize it; and that in the interest of the profession of optometry those who are patronizing the plaintiff ought to buy their goods elsewhere; in other words, the plaintiff ought to be boycotted.

It, then, finally states that, as to the proposition presented to the clothing company to examine the employees’ eyes (averaging about 30 persons a day) free of charge, no one, not even the plaintiff, could do that in a day and know anything about the visual condition of the employees j and, further, if such a proposition were accepted, the plaintiff would be getting money under false pretenses and misleading the people they examined.

It is the law that a corporation may have a business reputation which is equally as valuable to it as such reputation would be to a natural person, and that a corporation may be injured in that reputation in the same way as a natural person.

In Finnish Temperance Soc. Sovittaja v. Finnish Socialistic Pub. Co., 238 Mass. 345, the court said: “The conditions of modern society afford ample illustration that ‘a very large and important part of the private business of the community is now done under the form of corporations,’ and ‘the public mischief, the danger to good order and to the peace of the community, arises as well from malicious defamation of private corporations as from libelous attacks on natural persons.’ ” State v. Boogher, 3 Mo. App. 442; South Hetton Coal Co., Ltd. v. North-Eastern News Ass’n, Ltd. [1894], 1 Q. B. 138; Gross Coal Co. v. Rose, 126 Wis. 24; Reporters’ Ass’n of America v. Sun Printing & Publishing Ass’n, 186 N. Y. 437.

A corporation not being able to practice a profession, but being entitled to sue for libel, the question arises whether the words in question tend to injure the plaintiff in its trade or business.

Newell (Slander and Libel, 4th Ed. p. 156) says: “words are actionable which directly tend to the'prejudice of any one in his office, profession, trade or business. So, if a person carry on any trade recognized by the law, or be engaged in any lawful employment however humble, an action lies for any words which prejudice him in the way of such trade or employment.” MacDonald v. Lord, 27 Ill. App. 111.

In the South Hetton Coal Co., Ltd. case, supra, the court said: “Statements may be made in regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so, the law will be the same in their case as in that of an individual, and the statement will be libelous.” In the same case, Lopes, L. J., said: “I am of the opinion that, although a corporation cannot maintain an action for libel in respect to anything reflecting upon them personally, yet they can maintain an- action for a libel reflecting on the management of their trade or business, and this without alleging or proving special damage. * * * The words complained of must attack the corporation or company in the method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position.” That language was approved by the court in the Finnish Temperance Soc. Sovittaja case, supra, and the following cases cited: Journal Printing Co. v. Maclean, 23 Ont. App. 324; Aldrich v. Press Printing Co., 9 Minn. 133, 135, 136; Reporters’ Ass’n of America v. Sun Printing & Publishing Ass’n, 186 N. Y. 437, 440; Gross Coal Co. v. Rose, 126 Wis. 24; Louisville, Cincinnati & Charleston R. Co. v. Letson, 2 How. (43 U. S.) 497, 558.

The declaration alleges that the plaintiff “is engaged in the furnishing of optical advice and spectacles.” The particular ideas that are intended to be conveyed by the publication, which are chiefly objectionable as obviously charging the plaintiff with fraud and tending to injure its business, are those which mean that the proposition, which the plaintiff made to the clothing company and which involved the examination of the eyes of 30 employees a day, was in part, at least, attended with fraud, as no one could examine the eyes of 30 people a day and know anything about their visual condition in that length of time, and that, therefore, what money the plaintiff might get as a result of that proposition would be obtained by false pretenses and misleading the people they examined.

The reader is not left entirely to a consideration of the facts describing the plaintiff’s conduct, from which facts he might make, or would be able to make, inferences and deductions of his own, but he is told categorically that money obtained pursuant to such a proposition, involving the examination of 30 patients’ eyes a day, is, and would be, getting money under false pretenses; and it may fairly be said that as the average reader is neither an oculist nor an optometrist, he is apt to take that statement of the publication at its face value. Further, it is the effect of the words used, and not the meaning of the publisher that is important.

In Cooper v. Illinois Publishing & Printing Co., 218 Ill. App. 95, 106, which was a case decided by this court, and was a suit for libel to recover damages for the statement made in the defendant’s newspaper that the plaintiff, a judge, was unfit, we said: “It is not as if the article in question had recited what purported to be the trial record of (the plaintiff) and had then proceeded, by way of inference and deduction, to make comment thereon, for in such a case the reader of that publication would then be able himself to make inferences and deductions and so determine whether the comment which was actually published was reasonable. In the article in question the reader is merely presented with what, in effect, is a series of dogmatic statements. He is given no opportunity to weigh and balance; he is told plainly that (the plaintiff) is unfit.”

As to the publication in this case, in the first sentence, it is announced that the plaintiff ‘ ‘ still seems to be unable to stay in business in a legitimate way,” and in the last sentence, “they are simply getting their money under false pretense and misleading the people they examine, ’ ’ and what is said in between, logically and naturally, leads, and is' intended so to lead, only to those announcements, and to nothing else.

The intermediate text does not make harmless the charge of doing business in an illegitimate way and getting money by false pretenses. It, rather, states facts tending only in the direction of supporting and justifying them, and showing and emphasizing their truthfulness.

Counsel for the defendants argue that the words, “No one can examine thirty patients a day and know anything about' their visual condition in that length of time; they are simply getting their money under false pretense and misleading the people they examine,” do not refer to the plaintiff. “They” refers to the antecedent, “the Interstate people,” and the latter obviously means “The Interstate Optical Company.” Counsel further urge that all of the statements objected to were explained by harmless statements of fact. With that, as we have intimated, we cannot agree. It is also contended that" the mere allegations in the declaration that the words were used “of and concerning the plaintiff, and of and concerning the business of the plaintiff,” and that the plaintiff was damaged “in its business,” were insufficient, unless some allegation was made by innuendo or implication, showing that the plaintiff was in the business of examining eyes. But the declaration stated that the plaintiff was “engaged in the furnishing of optical advice and spectacles,” and that, we think, was sufficient.

After a careful analysis of the contents of the publication, we feel bound to hold that the words directly tend to the prejudice and injury of the plaintiff in its trade and business, and are actionable without proof of special damage.

Owing to the error of the trial court in sustaining the demurrer to the declaration, the judgment is reversed and the cause remanded.

Reversed and remanded.

O’Conndr and Thomson, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Alma Freestate, Appellee, v. Charles P. Freestate, Appellant.
    Gen. No. 31,254.
    1. Appeal and error — failure of certificate to show all of evidence as necessitating reversal of order in divorce proceeding for increased! maintenance. An order in a divorce proceeding for increased maintenance for defendant’s daughter, accompanied by a certificate which does not show all the evidence sufficiently for the Appellate Court to pass upon the order intelligently, must be reversed.
    2. Divorce — jurisdiction to increase maintenance allowance of invalid daughter 10 years after entry of divorce decree. Although a petition for increased maintenance for defendant’s invalid daughter was not filed in divorce proceedings for more than 10 years after entry of divorce decree, the court had jurisdiction to enter an order therefor upon proper showing.
    3. Divorce — when increased maintenance allowable to invalid daughter of defendant after she has attained majority. Although she is 23 years of age, the court may require upon proper showing that the invalid daughter of defendant in divorce proceedings be supplied by him with increased maintenance.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed April 6, 1927.
    P. J. Ten Hoor and William B. Moak, for appellant.
    Charles E. Erbstein, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

On May 7, 1926, Alma Freestate filed her petition in a divorce proceeding in which a decree of divorce had been entered December 16, 1916, in her favor and against the defendant Charles P. Freestate, praying that an order be entered requiring the defendant to pay to the petitioner sufficient money to enable her to pay for necessary medical aid for the treatment and for the support of their child Della Freestate. A demurrer to this petition was overruled and the defendant answered. A hearing was had and an order entered that the defendant pay the petitioner $50 per month to be used for the maintenance of the child, including physician’s expenses. From this order the defendant prosecutes this appeal.

The record discloses that on October 10,1916," Alma Freestate filed her bill for a divorce against Charles P. Freestate, personal service was had upon him, he was defaulted and a decree of divorce entered in favor of the complainant and against the defendant, and she was awarded a lump sum of $550 alimony, which was paid. Complainant was also given the care and custody of their then minor child, Della Freestate, but no provision was made for the support and maintenance of the child. The child has been an invalid since she was two years old and on the hearing in the instant case it was found that she was still an invalid and would probably continue to be such, at least for a long period of time. It also appears from the record that neither the petitioner nor the child had any substantial means of support; that the defendant, Charles P. Freestate, the father of the child, has been paying his former wife for the support of the child $40 per month for a considerable period of time and that he expects to continue such allowance. But it is his position that he is unable to pay more and that the court was without jurisdiction to enter the order because the divorce proceedings had long since been terminated and for the further reason that Della Freestate, their daughter, is now 23 years of age. It appears from the record that the matter was brought up a number of times before the chancellor in a rather informal manner, some evidence was heard from time to time, but it is apparent that all of the evidence heard by the chancellor is not shown by the certificate of evidence, although it is certified that that document contains all of the evidence. This is obvious from the fact that when the matter came up for hearing the last time, the defendant husband asked the court for permission to offer evidence tending to sustain the allegations of his answer, but this was denied, the court stating that he had already heard the case. What this evidence was, that the court had previously heard, is not in the record. Of course, the evidence should be preserved in the certificate of evidence so that a court of review can intelligently pass upon the matter. This we are unable to do and for that reason the order must be reversed. We are of the opinion that the court had jurisdiction in the matter and had authority to enter such order as might be proper for the support and maintenance of the invalid child, although the petition was not filed for more than 10 years after the time the divorce was entered. In Kelley v. Kelley, 317 Ill. 104, it was held that a wife who was suing her husband for a divorce could not obtain alimony unless she did so at the time the decree was entered, but that subsequently she might file a petition in the divorce proceeding and obtain support for the minor children upon a proper showing being made. It was there further held that where a wife obtained a divorce from her husband and the decree made no provision for alimony, the former husband was under no obligation to support his former wife, but that his obligation to support his minor children was not affected by the decree of divorce al-' though the decree made no provision for the support of the children and that by virtue of the provisions of section 18 of the Divorce Act, Cahill’s St. ch. 40, If 19, a petition might afterwards be filed and an order entered in the divorce proceeding requiring the father to support his children. Section 18 of the Divorce Act, Cahill’s St. ch, 40, If 19, provides that when a decree of divorce is entered, the court may from time to time, upon application, make allowances for the “maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.” It will be noted that the statute does not specifically refer to children who are minors.

The question whether such support can be obtained where the children are adults, but are invalids and incapable of taking care of themselves, has never been passed upon by this court or by the Supreme Court of this State, so far as we are advised.

The obligation on the parent’s part to maintain and support his child continues until the latter is in condition to provide for his own maintenance. 1 Schouler on Domestic Relations, §780 (6th Ed.). And that authority in considering the parent’s obligation to support his children says (§ 795): “In general, the legal obligation of the father to maintain his child under the common law ceases as soon as the child is of age, however wealthy the father may be, unless the child becomes chargeable to the public as a pauper.” In 20 R. C. L. (p. 586) in discussing the duty of the parent to support his adult child it is said: “The general rules of the law of parent and child, being based on the child’s incapacity, both natural and legal, and its consequent need of protection and care, apply only while the child is under the age of majority. ' * * * But where a child is of weak body or mind, unable to care for himself after coming of age, and remains unmarried and living in the father’s home, it has been held that the parental rights and duties remain practically unchanged. The father’s duty to support the child continues as before.” The rule is laid down to "the same effect in 29 Cyc. 1612. And in the case of Crain v. Mallone, 22 L. R. A. (N. S.) 1165, the court of appeals of Kentucky said (p. 1166): “The duty and obligation of a parent to care for his offspring does not necessarily terminate when the child arrives at age or becomes an adult; nor is it limited to infants and children of tender years. An adult child may from accident or disease be as helpless and incapable of making his support as an infant, and we see no difference in principle between the duty imposed upon the parent to support the infant and the obligation to care for the adult who is equally, if not more, dependent upon the parent. In either case the natural, as well as the legal, obligation is the same if the parent is financially able to furnish the necessary assistance.” The Supreme Court of Vermont held to the same effect in the case of Rowell v. Town of Vershire, 62 Vt. 405. In that case it was held that a father was liable for the support of his 23-year-old daughter, she being of weak mind. The court there said, quoting from an earlier case decided by the same court, (p. 407): “ ‘Upon the ground of humanity/ as said in the case first cited, she remained a part of the plaintiff’s family after she reached the age of majority as much as she did before, and the same policy which prohibits the separation of the father from his unemancipated children for the purposes of support prohibited the separation of this daughter from the plaintiff for such purpose.”

Under the authorities above cited, we are of the opinion that, in the instant case, the court, in case a proper showing is made, has authority to require the father to contribute to the support of his invalid child, although she is 23 years of age.

For the reasons above stated, the order of the Circuit Court of Cook county is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

Taylor, P. J., and Thomson, J., concur.


author: Mr. Justice O’Connor Mr. Justice Thomson

text:
    Sherman State Bank, Appellant, v. John T. Smith et al., Appellees.
    Gen. No. 31,294.
    1. Negotiable instruments — when -innocent holder for value protected although his transferee acquired possession by larceny. Unless a note was given in a gaming proposition or execution was fraudulently obtained, an innocent holder thereof for value by indorsement in blank before maturity is protected under Cahill’s St. eh. 98, 1f 77, even though the one from whom he received it had stolen it from the true owner.
    2. Negotiable instruments — when corporation acquiring title to instrument from its president not deemed innocent purchaser. The. general rule that a corporation buying securities from its president is not chargeable with his knowledge of infirmities therein does not apply to a case where the president, as the main or only purchasing agent of a bank, practically bought from himself a note which he had taken from the true owner under misrepresentations.
    3. Negotiable instruments — when bank acquiring title to instrument from its president chargeable with notice of fraudulent conduct of transferee in acquiring possession thereof. A bank, which every six months on order of the president cashed interest coupons on a note, and of which the president was trustee of the trust deed securing the note and financial adviser of the true owner, is charged with notice of these facts and is not a holder in due course of said note and cannot collect it, after purchase from its president who fraudulently got it from the true owner.
    4. Negotiable instruments — when innocent holder of instrument not protected against loss by fraud of its transferee made possible by its own acts. A bank, even though innocent holder of a note purchased from its president who had fraudulently obtained it from the true owner, but which had made it possible for such fraud to occur, rather than the true owner should bear the loss occasioned by such fraud.
    Thomson, J,, dissenting.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed April 6, 1927.
    James Percival Pio, for appellant.
    Hayden N. Bell, for Margaret J. K. Lane, appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Sherman State Bank filed its bill to foreclose an incumbrance of $3,500 secured by a trust deed on a certain piece of real estate, Margaret J. K. Lane intervened in the cause and filed a cross-bill claiming that she was the owner of the note and trust deed. The owner of the equity in the real estate admitted the debt was due and unpaid so that the contest was between the Sherman State Bank and Mrs. Lane. The chancellor found that Mrs. Lane was the owner of the note and trust deed and a decree was entered accordingly, from which the Sherman State Bank prosecutes this appeal.

The record discloses that- on July 7, 1920, Margaret J. K. Lane owned a piece of real estate in Chicago and on that date sold it to John T. Smith and Annie E. Smith, his wife, and to secure the payment of the part of the purchase money the Smiths made their promissory note of that date in the sum of $3,500 with interest at 7 per cent per annum payable semiannually. The note was payable to their order and by them indorsed and delivered. Interest coupons maturing every six months evidencing the interest to become due on the mortgage were likewise executed and delivered. The note by its terms was due five years after date, and to secure the payment of it the Smiths executed a trust deed to Bruno F. Kowalewski, trustee. The trust deed was delivered and recorded. Some time prior to the making of the note and trust deed, Kowalewski, the trustee, was ‘ to a certain extent the financial adviser” of Mrs. Lane and caused himself to be named as trustee in the trust deed. For a long time prior to July, 1920, the trustee, Bruno F- Kowalewski, and his brother, Roman J. Kowalewski, were copartners, apparently in the real estate business and maintained safety deposit vaults at Fifty-first and Throop Streets, Chicago. This business they operated under the name of the Sherman Park Safety Deposit Company and Mrs. Lane rented one of the safety deposit boxes in which she kept her valuable papers, including the mortgage in question. Every six months when the interest on the mortgage came due Mrs. Lane would go to her box, get an interest coupon, present it to Bruno F. Kowalewski, who would call the cashier of the bank (The Sherman State Bank having been incorporated and Bruno F. Kowalewski being then its president and a director and stockholder in the bank) and instruct him to pay Mrs. Lane the interest, and she would surrender the coupon to him and he would collect it from the person who owed the indebtedness. It further appears that on April 24, 1924, Bruno F. Kowalewski advanced to Mrs. Lane $200, $150 more on June 5th and $167.40 on August 14th, and on the latter date he made, executed and delivered to Mrs. Lane his promissory note for $3,000 due one year after date. The aggregate of these three payments was $517,40; $500 is said to have been applied on the principal and $17.40 on the interest on the $3,500 note. On August 14, 1924, Bruno F. Kowalewski went to Mrs. Lane’s home and told her that the Smiths who made the purchase-money mortgage were engaged in “some crooked scheme” in reference to the property upon which the trust deed was a lien, and that this fact rendered it necessary for him to have possession of the principal and coupon notes and trust deed so that he could protect her interest, and that unless she gave him these papers she would lose her money, and, therefore, she delivered them to him; that Kowalewski told her she would be protected because she was doing business with the Sherman State Bank; that he then handed her a paper which she did not read, but which she understood was a receipt; that afterwards the document turned out to be the personal note of Bruno F. Kowalewski for $3,000. It further appears that in order for Mrs. Lane to obtain the principal and coupon notes and trust deed she went to the safety deposit box with Kowalewski on August 14, and he assisted her in opening the safety deposit box so that the papers could be obtained. On or about May 15, 1925, Bruno F. Kowalewski committed suicide and his estate is insolvent.

The record further discloses that on August 15, 1924, the day after Bruno F. Kowalewski had obtained the notes and trust deed from Mrs. Lane, the Sherman State Bank “acquired” the notes and trust deed from Kowalewski by paying him $3,526.05, $3,500 being the principal and $26.05 the accrued interest; that after Bruno F. Kowalewski had obtained the notes and trust deed from Mrs. Lane and had given her his $3,000 note he paid her $90, being the semiannual interest due on the $3,000 indebtedness remaining due and unpaid; that prior to January 1, 1925, Bruno F. Kowalewski, on account of irregularities in the conduct of the bank, was ousted from the office of president of the bank. The foregoing facts are stipulated by the parties.

It appears from the record that one of the theories advanced by Mrs. Lane on the trial was that Kowalewski, in obtaining possession of the principal note, coupons and trust deed, under the circumstances disclosed by the record, was guilty of larceny, and, therefore, obtained no title to the notes and trust deed and could not give any to the Sherman State Bank, even though it were a holder for value without notice, and this theory seems to have been adopted by the learned chancellor. The law has long been firmly established that an innocent holder for value of negotiable paper, endorsed in blank before maturity, is protected although the one from whom he received the note may have stolen it from the true owner. The general rule of law is that no one can give a better title to personal property than he has himself. But to favor commerce the law makes an exception to this rule as to negotiable paper and money. It is founded upon principles of commercial policy; Mann v. Merchants’ Loan & Trust Co., 100 Ill. App. 224; Shipley v. Carroll, 45 Ill. 285; Murray v. Lardner, 2 Wall. (69 U. S.) 110; Shaw v. Merchants’ Nat. Bank of St. Louis, 101 U. S. 557; Tucker v. Bank, 58 N. H. 83; Saltus & Saltus v. Everett, 20 Wend. (N. Y.) 267; Wheeler v. Guild, 20 Pick. (37 Mass.) 545; Voss v. Chamberlain, 139 Iowa 569, 117 N. W. 269, 19 L. R. A. (N. S.) 106. See also section 52 of onr Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 72. In the instant case, even if Bruno F. Kowalewski were guilty of larceny in obtaining the note and trust deed from Mrs. Lane, yet, if the Sherman State Bank was a bona fide owner for value without notice, it would obtain good title to the note. The only exceptions to this rule of law are where fraud or circumvention has been used in obtaining the execution of a negotiable instrument, Cahill’s St. 1925, ch. 98, If 11, or if such negotiable instrument was given in a gaming transaction. Cahill’s St. 1925, ch. 98, ¶ 78. Neither of these exceptions are involved in the instant case.

We are of the opinion, however, that the Sherman State Bank was not an innocent purchaser, for value without notice, because Bruno F. Kowalewski in transferring the note and trust deed to the Sherman State Bank was the president of that bank. He was also a director and stockholder and acted for the bank in making the transfer and at the same time he was trustee in the trust deed. It has been decided by the Supreme Court of this State that a corporation making a purchase from its president of securities is not chargeable with his knowledge of infirmities in his title. Higgins v. Lansingh, 154 Ill. 301; Seaverns v. Presbyterian Hospital, 173 Ill. 414. But there are several well-considered cases which qualify the above rule of law and that qualification is that where the officer of the corporation is the sole or essential representative of the corporation in the transaction, his knowledge is held to be imputable to the corporation. Mutual Inv. Go. v. Wildman, 182 Ill. App. 137. The Wildman case cites a number of authorities sustaining this qualification. We have examined them and agree with the conclusion reached by the court in that case. From the stipulation in the record it does not clearly appear who acted on behalf of the bank in the transaction, whereby Bruno F. Kowalewski, the president, director and stockholder of the bank, attempted to transfer the note and trust deed to the bank, but it does appear that he dominated the running of the bank and for aught that appears, he may have been the sole person involved in the transaction, representing himself on the one side and the bank on the other.

We are of the opinion that the decree should be affirmed for the further reason that the record discloses that the bank knew that Mrs. Lane owned the note and trust deed because every six months when it became due she obtained a coupon from the safety deposit box in the bank, presented it to the president and he ordered the cashier to pay her. The president of the bank had been for some time Mrs. Lane’s financial adviser. He had caused himself to be named as trustee in the trust deed. The bank was, therefore, chargeable with notice of these facts and' even if the bank, under the circumstances, might be considered an innocent holder, yet, the bank having made it possible for Kowalewski to perpetrate the fraud, the loss occasioned thereby should be borne by it. Mann v. Merchants’ Loan & Trust Co., supra. The decree of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J., concurs.

Mr. Justice Thomson

dissenting: I am unable to concur in the decision of this case as set forth in the majority opinion. In view of the stipulation entered into between the parties, in which they agreed that all the facts therein recited were true, we must assume that when Kowalewski obtained the mortgage and notes from Mrs. Lane on August 14, 1924, he accomplished that result by misrepresentations of fact and that in doing so he perpetrated a fraud upon her. We must also accept it as true that she thought the paper he gave her at that time was a receipt for her mortgage and notes. But it further clearly appears from the stipulated facts that Mrs. Lane must have known as early as February, 1925, what the nature of her transaction with Kowalewski, in 1924, really was. But she made no claim of fraud at that time and was quite satisfied to treat the paper which he had given her, in August, as a note; and it is clear that she took no other .position until after Kowalewski had committed suicide and she found he was without any property and that ' he had left no estate, and then, for the first time, she took the position which- she now seeks to establish, as against the plaintiff bank.

At the time Mrs. Lane turned over her mortgage and notes to Kowalewski, in August, 1924, she had been the owner of them over four years. On January 7 and July 7 of each year during that period, she had taken her interest coupons, calling for $122.50 each, to the bank where Kowalewski cashed them for her, apparently taking them for collection, but giving her the amount called for, in cash, whenever she brought them in. If Mrs. Lane merely turned over her mortgage and notes to Kowalewski, in 1924, to enable him to protect her against some fraud which the former owners of the property were supposed to be preparing to perpetrate, on which theory she would continue to be the owner of the mortgage and the notes, she was entitled to continue to collect the interest. The next semiannual interest payment on the mortgage was due the following January 7. At that time, on Mrs. Lane’s theory, she was entitled to receive $122.50 interest on the mortgage. In the meantime, it appears, the plaintiff bank had purchased the mortgage, in good faith, from Kowalewski, into whose possession Mrs. Lane had delivered it, and on January 7, 1925, it collected the $122.50 interest then due, as was consistent with its ownership of the mortgage. Mrs. Lane who now claims she owns the mortgage, and has owned it all the time, made no inquiry as to why she was not getting her usual semiannual interest and she does not appear to have even given that matter any thought. On the contrary, a month later she accepted $90 in cash from Kowalewski, which amount equals the semiannual interest then due on his" note for $3,000. Mrs. Lane must have known that had nothing to do with any payment of interest on her mortgage. All the facts point to her knowing, at least at that time, that she held Kowalewski’s note for $3,000, on which this was an interest payment and that the $3,000 represented by that note, plus the amounts he had paid her prior to August, 1924, was given her by him in the way of buying the mortgage and notes from her. That such was the real transaction is further indicated by the fact that when Kowalewski gave Mrs. Lane his note for $3,000 on August 14,1924, he also gave her $167.40, and that odd amount added to previous sums he had given her, amounting to $350, and the $3,000 notes he was then giving her, equalled $3,500, the face of the mortgage and notes plus $17.40 which just equalled the interest on the mortgage which had been earned up to that date following the last semiannual interest payment on the mortgage, which had been paid July 7, previous. All of these facts, in my opinion, show conclusively that Mrs. Lane sold this mortgage to Kowalewski on August 14,1924. If she did not know it then, she certainly did the following February. She no doubt thought Kowalewski was responsible financially, and for that reason she felt safe in exchanging her mortgage for his note, and she continued to be satisfied with it, even after he had been put out of the bank and until lie had committed suicide and she discovered that he had left an insolvent estate.

All the facts set forth in the stipulation were submitted under a provision contained in the last paragraph of the stipulation, to the effect that “the competency, relevancy and materiality of any stipulated facts are left entirely to the court, as well as the legal effect of the same.” The statement of fact in the stipulation, to the effect that when Mrs. Lane asked Kowalewski how she would be protected in delivering her papers to him, he told her she was doing business with the Sherman Park State Bank, was clearly incompetent, and should be given no consideration by the court.

As stated in the majority opinion, our Supreme Court has held that a corporation purchasing securities of its president is not chargeable with any knowledge the latter may have as to infirmities in his title. Higgins v. Lansingh, 154 Ill. 301, 387; Seaverns v. Presbyterian Hospital, 173 Ill. 414. In the Higgins case, at page 388, the court said: “In such a transaction the officer, in making the sale and conveyance, stands as a stranger to the company. (Stratton v. Allen, 1 C. E. Green, 229.) His interest is opposed to theirs, and the presumption is, not that he will communicate his knowledge of any secret infirmity of the title to the corporation, but that he will conceal it. Where an officer of a corporation is thus dealing with them in his own interest opposed to theirs, he must be held not to represent them in the transaction, so as to charge them with the knowledge he may possess but which he has not communicated to them, and which they did not otherwise possess, of facts derogatory to the title-he conveys.” This quotation was made by the Supreme Court from Barnes v. Trenton Gas Light Co., 27 N. J. Eq. 33, with approval. The exception to the foregoing rule, noted in the majority opinion, as set forth in Mutual Inv. Co. v. Wildman, 182 Ill. App. 137, arises where the president or other corporate officer who sells securities of his corporation is “an essential representative” of the corporation in the transaction. • No fact or suggestion is included in the stipulated facts in the case at bar, showing, or tending to show, that when Kowalewski sold this mortgage and the notes to the bank, for their full, face value, shortly after Mrs. Lane had turned them over to him in August, 1924, he was an essential representative of the bank in completing the transaction. If such were the fact, or if the bank in fact did not become a bona fide holder of these securities, as it purported to be, the burden was on Mrs. Lane to show it by a preponderance of the evidence. She not only failed to do that, but, in my opinion, there is no evidence at all to that effect. I am, therefore, of the opinion that the chancellor erred in entering the decree appealed from and that it should be reversed.


author: Mr. Presiding Justice McSurely

text:
    Howard C. Darsch, by H. G. Darsch, Appellee, v. Edward C. Brown, Appellant.
    Gen. No. 31,417.
    1. Negligence — whether plank between second-story windows of houses under construction was dangerous attractive nuisance as question for jury. Whether an unguarded plank between second-story windows of two houses under construction is dangerous or calculated to attract a child of tender years are fact questions for the jury in the father’s action against the owner of the buildings to recover for the child’s injury received through falling from the plank.
    2. Negligence — sufficiency of evidence to warrant finding of injury to child by attractive nuisance. In an action to recover damages for injuries received by a child of tender years received through falling from a plank placed between second-floor windows of two of defendant’s buildings which were in the course of construction, where plaintiff testifies that the plank was visible from the street, that he had seen it before the day of his injury and had seen another boy use it, the jury is warranted in finding that plaintiff had been attracted by the plank, the unfinished buildings and the game of tag which was in progress there, notwithstanding plaintiff also testified that the first time he saw the plank the day of his injury was after he had reached the second floor and that what attracted him to the premises was the game of tag.
    3. Negligence — liability of property owner for injury by dangerous condition maintained on premises to child attracted thereto by another mstnmentality. Where an owner of property maintains on his premises conditions and instrumentalities which, as a whole, could reasonably be expected to attract children in playing, he may be liable for injuries resulting to a child from them, notwithstanding the child was first attracted upon the premises by another instrumentality than the one causing the injury.
    4. Negligence — when instruction on question of attractive nuisance not prejudicial. Plaintiff’s given instruction was not prejudicial in'referring to “buildings, plank, material and equipment” under a declaration for injury to a child of tender years alleging both the open buildings and the plank from which he feU were attractive nuisances in respect to such children.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 2, 1927.
    John M. Beverly and Charles E. Green, for appellant.
    Ralph R. Obenchain and Henry Pollenz, for appellee ; Otto Ade Arnston, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Howard Darseh, when slightly less than seven years of age, while playing in and about premises in the possession and control of the defendant, was injured. Suit was brought upon the attractive nuisance doctrine, and upon trial plaintiff had a verdict for $2,750, upon which judgment was rendered and from which defendant appeals.

Plaintiff, on November 3, 1923, the date of the accident, lived with his grandmother at 3730 North Albany Avenue, Chicago. Three bungalows were being built by defendant across the street. They were about 12 feet from the sidewalk, were one story and an attic high, and the roofs were on. Men were working on them and they were in about the same stage of construction. The front porch, which was about five or six feet from the ground, was reached by a ladder. The buildings were a few feet apart, and a plank extended from the second-floor window of the first building to the second building, which was used by the workmen in crossing from one building to another. This plank could easily be seen from the street. Plaintiff had seen other children playing in the buildings before this time and had seen the plank and a boy go across it twice. On the day in question he saw the boys playing “It” or “Tag,” and joined them in their play. One of the boys chased plaintiff around upstairs, and he ran out onto the plank, lost his step and fell about 30 feet to the ground; at the time he fell there were other children ready to follow him across the plank. The boy’s leg was injured and he received medical treatment in a hospital. The extent of the injuries is not questioned. There is no evidence of any guard or barricade to keep children out of the building.

In any case where an injury results to a child from unguarded conditions upon the premises of another, the questions whether the premises are dangerous or whether they are calculated to be attractive to a child of tender years and liable to lead such a child into danger, are questions of fact for the jury. City of Pekin v. McMahon, 154 Ill. 141.

The argument that the verdict is against the law and the evidence is predicated upon the assertion that the plank from which plaintiff fell was not the instrument which attracted him to the premises; that he testified that the first time he saw it was when he was up in the building; and, therefore, the plank which was the proximate cause of the injury was not the thing which attracted him, and there can be no liability under the rule laid down in McDermott v. Burke, 256 Ill. 401, and Mindeman v. Sanitary Dist. of Chicago, 317 Ill. 529. There are two answers to this: First, plaintiff testified not only that he could see the plank from the street, but that he had seen another boy go across it twice; that he saw the plank up there three weeks before the day of the accident. While plaintiff says that the first time he saw the plank “that day” was after he had climbed up the ladder to the second floor and that what attracted him over there was the boys playing, yet the jury could reasonably believe that plaintiff intended to be understood as saying that he was attracted by the boys playing tag in such inviting surroundings for the game — an unfinished building, ladders, and the plank by which to escape from one building to another. All these things attracted him.

The second answer is that, despite cases seemingly to the contrary, the more reasonable rule is that the fact that a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive of liability. The question is whether the owner maintains conditions and instrumentalities which, as a whole, could reasonably be expected to attract children in playing and not whether the particular instrumentality inflicting the injury is the exclusive attraction. Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, and cases there cited. The facts in the instant case come squarely within the decision of the court in Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, in which it is .said:

“It is not necessary, to make a defendant liable, that the attractive and dangerous thing should be visible from the street and that children should have been attracted to the premises by it. If an owner maintains dangerous conditions upon his premises to which he permits children to come he must use ordinary care to guard them against danger which their youth and ignorance prevent them from appreciating. There is no implied invitation from the mere existence of a dangerous attraction which is not discoverable off the premises, but if to the knowledge of the owner children habitually come upon his premises where a dangerous condition exists to which they are exposed, the duty to exercise care for their safety arises, not because of an implied invitation but because of his knowledge of unconscious exposure to danger which the children do not realize.” See also Stedwell v. City of Chicago, 297 Ill. 486.

The jury was ¡Justified under the law and the facts in the case in returning its verdict, and we would not be justified in disturbing the same.

Complaint is made with reference to the instructions. The most serious fault with plaintiff’s given instruction No. -4 is its undue length. The reference to the “buildings, plank, material and equipment” was perhaps verbose, but the declaration alleged that the open buildings and plank both were attractive to children of tender years. The giving of the instruction was not necessarily prejudicial, nor was the ruling of the court with reference to other instructions.

The verdict was proper and no errors occurred upon the trial which require a reversal, and the judgment is affirmed.

Affirmed.

Matchett and Johnston, JJ., concur.


author: Mr. Justice Johnston

text:
    Illinois Life Insurance Company, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 31,245.
    1. Statutes — construction to uphold validity. The court should adopt that construction, if reasonable, which will uphold the constitutionality of a statute, rather than one which will render the statute unconstitutional.
    2. Statutes — application of rule requiring construction upholding validity to municipal zoning ordinance. The rule which requires the adoption, if permissible, of a construction which will render an enactment constitutional rather than one which will render it unconstitutional, applies to a municipal zoning ordinance.
    3. Municipal corporations — nonapplication of Zoning Law to existing lawful property right not derived therefrom. The provisions of the Zoning Law, Cahill’s St. 1925, eh. 24, j[ 521 et seq., and of a zoning ordinance passed thereunder will not be construed as applying to an existing, lawful property right not derived from such law or ordinance.
    4. Evidence — judicial notice as to customary use of signs on business buildings. The courts will take judicial notice of the fact that it is customary to use signs on business buildings as part of the business therein conducted.
    5. Municipal corporations — when city without constitutional power to prevent use of sign on building. Unless it can be said that a sign erected upon a building prior to the enactment of the Illinois Zoning Law, Cahill’s St. eh. 24, U 521, is a nuisance per se, a city is without constitutional power to prevent its use in connection with such building.
    6. Nuisance — when sign not deemed nuisance per se. A bronze sign, securely hung 18 feet from the ground in the portico of a building to show it to be the headquarters of the company owner and used for his business before the passage of the Illinois Zoning Law, Cahill’s St. ch. 24, V 521, held not a nuisance per se.

      7. Municipal corporations — nonretroactive application of zoning laws or ordinances. Under the Constitution of the State of Illinois, Art. II, § 2, the owner of a building, using it for lawful commercial business, has a constitutional right to continue that use irrespective of zoning laws or ordinances thereafter passed restricting his district to apartment buildings.
    8. Municipal corporations — property right in office building as including right to use sign, notwithstanding Zoning Law. The property right in a building used for office headquarters which was acquired before the passage of the Illinois Zoning Law, Cahill’s St. eh. 24, If 521, includes the constitutional right to hang up a sign, not a nuisance per se, to show the office headquarters, after the Zoning Law is passed.
    9. Property — definition of term. The term property has been defined to include every interest anyone may have in any and everything that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same.
    10. Municipal corporations — judicial control over interference with individual property rights by zoning laws and ordinances. It is the province of the courts to determine when individual property rights may be taken away or limited in the best interest of the public such as by requiring conformance to zoning laws and ordinances.
    11. Constitutional law — insufficiency of police power to warrant deprivation of citizen’s right to use property for commerce by Zoning Law. Neither legislative nor municipal authorities, even exercising the whole police power of the State, can deprive a private citizen of his right to use his property for commerce by zoning laws passed after he acquired that right.
    12. Municipal corporations — sign pointing out office headquarters of building owner as permissible nonconforming use under zoning ordinance. Under the Chicago zoning ordinance, section 14, 1f (a), permitting continuance of prior nonconforming uses, a sign merely pointing out the office headquarters of the company owner of a building which had been commercially used before the passage of the zoning ordinance is a permissible nonconforming use.
    13. Municipal corporations — when sign hung before passage of zoning ordinance exempt from attack thereunder. The hanging of a bronze sign, showing office headquarters, from a place on the office building provided before the passage of Chicago zoning ordinance section 14, 1f (b), forbade the extension of nonconforming uses, is exempt from attack under Zoning Law or ordinance.
    14. Municipal corporations — nonapplicability of zoning ordinance provision against signs in apartment districts to commercial buildings. Chicago zoning ordinance, section 7, If (a), forbidding other than signs for sale or for rent in apartment districts, does not apply to signs on commercial buildings in apartment districts but only to their use on residence premises therein: •
    15. Municipal corporations — nonapplication of zoning ordinance provision forbidding advertising signs in apartment districts to those merely pointing out office headquarters. Chicago zoning ordinance, section 7, 11(b), forbidding billboards or other advertising signs in apartment districts, does not apply to signs merely pointing out office headquarters but only to general advertising signs.
    16. Municipal corporations — when owner of building not required to secure permit before hanging sign on building used for business.
      It is not necessary for the owner of a business building in an apartment district to obtain a permit under section 26 of the Chicago zoning ordinance, requiring a certificate of occupancy, before hanging a sign which is in line with a nonconforming use of the building for business begun before the passage of the ordinance.
    17. Municipal corporations — failure to obtain permit required by zoning ordinance as bar to right to restrain interference with hanging of office sign. The owner of a building used for business before the Chicago zoning ordinance restricted that district to apartments is not barred of his right to restrain the city’s interference with his hanging an office sign by failing to obtain the permit required by section 3 of the ordinance.
    18. Injunctions — certiorari or injunction as proper remedy to prevent municipal interference with property rights acquired before passage of zoning ordinance. The writ of certiorari provided by section 3 of the Chicago zoning ordinance to review decisions of the board of appeals in zoning disputes cannot take the place of an injunction to restrain a city’s interfering with property rights acquired before the passage of the ordinance, for certiorari is a- writ of review not intended to prevent anticipated injuries.
    19. Courts — nohen Zoning Law will not be construed as limiting jurisdiction to protect pi'eviously existing property rights threatened by enforcement thereof. The courts will not interpret the Zoning Law, Cahill’s St. eh. 24, as prohibiting other legal remedies to one aggrieved thereby, as that would violate section 12 of Article VI of the Illinois State Constitution by depriving circuit courts of their jurisdiction over causes in law and equity, extending to all rights previously enforced thereby, which includes the constitutional right to business use of property acquired before passage of the Zoning Law.
    20. Equity — jurisdiction to restrain interference with business use of property acquired prior to adoption of zoning ordinance. The Chicago zoning ordinance in providing for settling disputes thereunder by a nonjudieial board does not provide any legal remedy for protecting constitutional rights acquired before passage of the ordinance and hence equity will take jurisdiction to restrain the city’s illegal effort to interfere with business use of property acquired before the ordinance was passed.
    21. Courts — nonjudieial status of board provided for by Chicago zoning ordinance. The mere fact that a nonjudieial board provided by the Chicago zoning ordinance section 3 may exercise judgment in carrying out its ministerial functions does not make it a judicial tribunal.
    22. Injunctions — want of legal remedy to prevent municipal interference with constitutional property rights acquired before passage of zoning ordinance limiting same. The only function of the writ of certiorari provided by the Zoning Law, Cahill’s St. eh. 24, jf 523, is to review proceedings of the board of appeals therein named to settle zoning disputes, and of the restraining order to stay the board till the courts pass upon its decisions, so that neither provides any legal remedy for restraining the. city from interfering with constitutional property uses acquired before the passage of a zoning ordinance limiting such rights.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 2, 1927.
    Francis X. Busch, Corporation Counsel, for appellants ; Roy S. Gaskill, Barnet Hodes and W. Arnold Amberg, Assistant Corporation Counsel, of counsel.
    Hugh T. Martin and J. T. Border, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by the defendants, the City of Chicago and others, from a decree in favor of the Illinois Life Insurance Company, the complainant, enjoining perpetually the defendants from removing or in any way interfering with a lantern or sign suspended from the roof of the portico of the main entrance to the building owned and occupied by the complainant and located at No. 1212 Lake Shore Drive, a thoroughfare in the City of Chicago, which location is designated by the Chicago zoning ordinance of the City of Chicago as an “Apartment district.”

The cause was heard on the bill, answer, replication and stipulation of facts.

The pertinent facts in the stipulation of facts show: That the complainant is an Illinois corporation engaged in the business of selling life insurance; that in the year 1921 it began the erection of the building in question; that the building “is constructed in the style of a French Chateau, built of Bedford stone, two stories in height, and with a mansard roof; that it is quite dissimilar to the conventional type of office buildings or buildings used by many other financial institutions ; that the wings constituting the north and south parts of the building extend to the Lake Shore Drive lot line; but the front entrance of the building stands back or west of the lot line a distance of about 15 feet; that the front entrance of the said building is through a portico, the roof of which is supported by a row of stone columns ’ ’; that about .May 1, 1922, before the building was completed, the complainant established its home office in the building and has remained there continuously ever since; that about April 5, 1923, the zoning ordinance was passed; that at the time that the zoning ordinance was passed the building contained the offices of the corporate officers and also the offices of the agency department, loan department, policy issue department, local agents, and a large clerical staff; that the complainant then had in force nearly $160,000,000 of insurance and was writing new business at the rate of about $25,000,000 a year; that the building had been so used for a period of at least 11 months prior to the passage of the zoning ordinance, and that it has so continued to be used to the present time; that the use to which the building is devoted is what is termed in the zoning ordinance a “non-conforming use” and is not permitted by the ordinance in an “Apartment district”; that the portico at the front entrance to the building on Lake Shore Drive was originally designed to carry a sign identifying the building as the home office of the complainant; that no plans, however, showing the sign had ever been submitted to any department of the City of Chicago; that prior to and at the time of the passage of the zoning ordinance, there was no sign of any kind on the building ; that there are a large number of policyholders in the City of Chicago and also a large number of other persons, including agents, all of whom from time to time find it necessary or convenient to call at the building in order to pay premiums upon policy contracts, to make loans, to apply for insurance, or to transact other business; that as such persons were finding it difficult to distinguish the building, the complainant, on July .7,1924, erected the sign; that the sign consists of a bronze lantern which is about 6% feet in length, 2% feet in height, and 8 inches in depth; that the front is of glass upon which appear words in three lines as follows:

“Home Office
Illinois Life Insurance Company
Greatest Illinois Company”;

that the letters in the top and third lines do not exceed 3 inches in height; that the letters in the second line do not exceed 5% inches in height; that the sign is securely suspended by bronze chains from the roof of the portico, being to the west or rear of the two middle columns, and at a distance of about 18 feet from the ground; that there are electric lights inside the sign; that the sign is worth about $2,000; that after the sign was erected the City of Chicago, through its officers, threatened to and were about to tear down the sign forcibly; that the removal of the sign would have caused substantial damage to the business' and property of the complainant “in ways and to an extent incapable of definite ascertainment for the purpose of measuring the damages which” the complainant “would have suffered therefrom”; that aside from the disputed applicability of the zoning ordinance the complainant, in erecting the sign, has not violated any of the ordinances of the City of Chicago.

The record contains photographs of the building and of the sign as erected.

Counsel for the defendants contend that the erection of the sign by the complainant constitutes a use that is violative of the zoning ordinance; that the complainant has not obtained a certificate under section 26 of the ordinance from the commissioner of buildings permitting such use; and that therefore the City of Chicago was authorized to remove the sign.

Section 1 of the Zoning Law, the enabling act of the legislature under which the zoning ordinance was passed (Cahill’s St. 1925, ch. 24, ¶ 521), is as follows:

“* * * In all ordinances passed under the-authority of this Act, due allowance shall be made for existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire city, village or incorporated town, and the uses to which property is devoted at the time of the enactment of any such ordinance. The powers by this Act given shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted.”

The pertinent parts of the zoning ordinance relating to the contentions of counsel for the defendants are as follows:

“Section 7. Auxiliary Uses in Residence or Apartment Districts, (a) Auxiliary uses which do not alter the character of the premises in respect to their use for residential purposes shall be permitted in Residence and Apartment districts. Auxiliary uses shall include the following * * * :
“Signs advertising the premises for sale or for rent * • *.
“(b) Auxiliary uses shall not include:
* * $
“A billboard, signboard or advertising sign, store, trade, business, garage or stable, except such as are hereinbefore specifically, permitted. ’ ’
“Section 14. Non-conforming Uses, (a) A nonconforming use existing at the time of the passage of this ordinance may be continued.
“(b). A non-conforming use shall not be extended, but the extension of a use to any portion of a building which was arranged or designed for such non-conforming use at the time of the passage of this ordinance shall not be deemed the extension of a non-conforming use. * * *
“ (1) For the purposes of this ordinance a use shall be deemed to be changed if changed from a use included in a use class to a use not included in such class.”
“Section 26. Certificates of Occupancy, (a) * * * No change or extension of use and no alterations shall be made in a non-conforming use of premises without a certificate of occupancy having first been issued by the Commissioner of Buildings that such change, extension or alteration is in conformity with the provisions of this ordinance.”

In the stipulation of facts it is agreed that at the time of the passage of the zoning ordinance the building was devoted to a “non-conforming use” as defined by the ordinance, and was located in a part of the district described in the ordinance as “an Apartment district. ’ ’

We are of the opinion that in erecting the sign the complainant has not violated any of the provisions of the zoning ordinance.

In our view the facts agreed upon do not bring the act of the complainant within the operation of the zoning ordinance. To' construe the zoning ordinance as being applicable to the present state of facts would be, we think, to adopt a construction which would render the ordinance unconstitutional. According to the well-established rule of statutory construction, it is the duty of the court to adopt, if reasonable, a construction of the statute that will uphold the constitutionality of the statute rather than a construction that will render the statute unconstitutional. People v. McBride, 234 Ill. 146, 165; Condon v. City of Chicago, 249 Ill. 596, 599. It may be stated that the rules for the construction of ordinances passed by a municipality are the same as for statutes enacted by the legislature. City of Chicago v. Chicago & Oak Park El. R. Co., 261 Ill. 478, 491; People v. City of Rock Island, 271 Ill. 412, 430. In our opinion the right to erect the sign was a part of the property right of the business in which the complainant was engaged. It was a right not derived from either the Zoning Law or the zoning ordinance. It was a constitutional right wholly independent of either the Zoning Law or the zoning ordinance. The provisions of section 3 of the Zoning Law forbidding the exercise of any power under the law that would “deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted”; and the provisions of section 14 of the zoning ordinance, permitting the continuance of a nonconforming use, are provisions merely declaratory of the constitutional rights of property owners. The use of the sign in connection with the business of the complainant was a customary use in connection with the business. In the case of Haskell v. Howard, 269 Ill. 550, 553, it was held that it was a matter of common observation that manufacturers advertise their products by display signs along railroads and public highways. By analogy, judicial notice may be taken of the fact that it is customary to use signs on buildings devoted to business purposes. Unless it can be said that the sign in question is per se a nuisance, we think that it would have been an unconstitutional exercise of power by the city to prevent its use in connection with the complainant’s building. In our view the sign is not a nuisance per se. On the contrary, we are of the opinion that neither in the design of the sign nor in the place in which it is erected on the building, is there anything to offend the most aesthetic taste.

The complainant’s building had been devoted to its present use before the passage of the ordinance. As the use was that of a lawful business and not a business over which a municipality has special regulatory power, such as a business which is per se a nuisance, the complainant had a vested property right under section 2 of Article II of the Constitution of the State of Illinois to continue the use of the building in its present location, irrespective of the passage of the zoning ordinance. Neither by legislative act nor by municipal ordinance could the complainant be deprived of its right under the constitution to continue to conduct its business in its present location. City of Chicago v. Wells, 236 Ill. 129, 132; Jensen v. Wilton E. Wilcox Lumber Co., 295 Ill. 294, 300; Ehrlich v. Chapple, 311 Ill. 467, 469. And the erection of the sign was part of the property right of the business. The term “property” has been defined to include “every interest anyone may have in any and every thing that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same.” Bailey v. People, 190 Ill. 28, 33. The “right of user” is a part of" the property right guaranteed by the constitution. City of Chicago v. Wells, 236 Ill. 129, 133. In the case of Condon v. Village of Forest Park, 278 Ill. 218, the court said (p. 224): “The owner of property has a constitutional right to make any use of it he desires, so long as he does not endanger or threaten the safety, health, comfort or general welfare of the people.” To the same effect are the cases of People v. City of Chicago, 280 Ill. 576, 579; McCray v. City of Chicago, 292 Ill. 60, 68. This right cannot be wholly taken away or limited by the State except in so far as it may become necessary for individual rights to yield to the higher and greater law of the best interest of the public. McCray v. City of Chicago, 292 Ill. 60, 68; City of Aurora v. Burns, 319 Ill. 84, 93. “To determine where the rights of the individual end and those of the public begin is a question which must be determined by the courts.” Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 440. “The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private rights.” City of Aurora v. Burns, 319 Ill. 84, 93. In the case of Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, the court said (p. 443): “The courts of this country have with great unanimity held that the police power cannot interfere with private property rights for purely aesthetic purposes.” It has been said also that even if a municipality is clothed with the whole police power of the State, it would still not have the power to deprive a citizen of valuable property rights under the guise of prohibiting or regulating some business or occupation that has no tendency whatever to injure the public health or public morals or to interfere with the general welfare. People v. City of Chicago, 261 Ill. 16, 20; Haskell v. Howard, 269 Ill. 550, 554; Town of Cortland v. Larson, 273 Ill. 602, 613.

Since we are of the opinion that the stipulation of facts does not bring the complainant within the provisions of the zoning ordinance, it follows that the complainant was under no necessity of obtaining a certificate of occupancy as required by section 26 of the zoning ordinance.

We further are of the opinion that even assuming for the sake of argument that the provisions of the zoning ordinance apply to the use of the sign, the erection of the sign was permissible under both paragraph (a) and paragraph (b) of section 14 of the ordinance. We think that fairly and reasonably construed paragraph (á) of section 14 of the zoning ordinance did not restrict the use of the building to such an extent that the building should remain precisely as it was when the zoning ordinance was passed. In our view, when paragraph (a) of section 14 provided that the nonconforming use of a building could be continued, it meant that the building could be used in connection with the business in such a manner as a building devoted to such business was customarily conducted. In our opinion, the erection of the sign in question on the building of the complainant was one of the uses customarily employed in actually conducting the business which was authorized by paragraph (a) of section 14 to be continued, although it was a business designated by the ordinance as a nonconforming use.

Paragraph (b) of section 14 of the zoning ordinance expressly provides as follows: “A non-conforming use shall not be extended, but the extension of a use to any portion of a building tvhich was arranged or designed for such non-confosming use at the time of the passage of this ordinance shall not be deemed the extension of a non-conforming use.” In the stipulation of facts it is agreed that “the portico at the front entrance” of the building in question “was originally designed to carry a sign identifying the building as the home office of the” complainant. It follows, we think, that the erection of the sign was, therefore, permissible under paragraph (b) of section 14 of the zoning ordinance.

Further assuming, for the sake of argument, that the zoning ordinance is applicable to the building of the complainant, we think that the provisions of paragraph (a) of section 7 of the zoning ordinance, in regard to auxiliary uses in residence or apartment districts, does not forbid the use of signs on buildings used for commercial purposes. These provisions relate, in our opinion, only to auxiliary uses in respect of premises used for residences or apartments.

The provisions of paragraph (b) of section 7 of the zoning ordinance, which provisions exclude from auxiliary uses billboards, signboards and advertising signs, do not, in our opinion, apply to signs such as the one on the building of the complainant, but refer to billboards, signboards and advertising signs used for general advertising purposes.

According to our interpretation of all of the sections in question of the zoning ordinance, assuming for the sake of argument that the building of the complainant comes under the provisions of the zoning ordinance, it follows that since the erection of the sign on the building of the complainant was a nonconforming use that was expressly authorized by the zoning ordinance, it was not necessary for the complainant to obtain a certificate of occupancy under section 26 of the zoning ordinance.

Counsel for the defendants further contend that “the remedy provided by section 3 of the Zoning Law is exclusive”; that “where in a special statutory pro-, ceeding, one form of review is specifically given, all other forms of review are excluded.”

Section 3, Cahill’s St. ch. 24, ¶ 523, of the Zoning Law provides as follows:

“All ordinances passed under the terms of this Act shall be enforced by such officer of the city, village or incorporated town as may be designated by ordinance. The regulations by this Act authorized, may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained. * * *
“Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this Act. -
“It shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance. * * * The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. * * *
“Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. * * *
“Upon the presentation of such petition, the court may allow a writ of certiorari directed to the board of appeals to review such decision of the board of appeals. * * * The allowance of the writ shall not stay proceedings upon the decision appealed from, .but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. * * * The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. * * *
“All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.”

It is obvious that the contention of counsel for the defendants is not relevant to the present controversy, as the complainant is not seeking to review proceedings that were had before the board of appeals of the zoning ordinance. The complainant is asking for original relief. Before the complainant would have been entitled to apply to a court of record for a writ of certiorari to review or for an order to restrain proceedings before the board of appeals of the zoning ordinance, the complainant would have had to institute proceedings before the board of appeals. But the complainant never applied to the commissioner of buildings or any other official of the City of Chicago for a certificate of occupancy to erect the sign, and consequently there were no proceedings had before the board of appeals. We do not think that the complainant lost the right to proceed by injunction in the present suit because it did not apply for a certificate of occupancy under the zoning ordinance. If the complainant had applied for a certificate of occupancy, the complainant thereby would have assumed the incongruous position of admitting that the provisions of the zoning ordinance were applicable while contending that they were not applicable. Furthermore, it is clear that a writ of certiorari properly could not have been used by the complainant to perform the function of an injunction independently of proceedings before the board of appeals, as the writ of certiorari is not the appropriate remedy to prevent anticipated wrong or injury. Glennon v. Burton, 144 Ill. 551, 553; Bilsborrow v. Pierce, 101 Minn. 271, 274; Gauld v. Board of Sup’rs of City and County of San Francisco, 122 Cal. 18, 19. The writ of certiorari is a writ of review in which the only judgment to be rendered is that the writ be quashed or that the record of the proceedings be quashed. Funkhouser v. Coffin, 301 Ill. 257, 260; People ex rel. Aeberly v. City of Chicago, 240 Ill. App. 208, 214.

Furthermore, if the legislature had intended that section 3 of the Zoning Law should be exclusive of all other legal remedies, the Zoning Law to that extent would violate section 12 of Article VI of the Constitution, which confers original jurisdiction on the circuit courts of all causes in law and equity. The rule is firmly established that the legislature is without power to deprive the circuit courts of any part of their original jurisdiction. White v. City of Ottawa, 318 Ill. 463, 472; Stephens v. Chicago, B. & Q. R. Co., 303 Ill. 49, 51. It is true that in special statutory proceedings the legislature may confer jurisdiction on any court that it may choose to the exclusion of all others. White v. City of Ottawa, supra, p. 472. But a statutory proceeding is one “involving rights and providing remedies which are not of the kind previously enforced either at law or in chancery.” Lavin v. Wells Bros. Co., 272 Ill. 609. In the case at bar the rights which the complainant is seeking to protect are not statutory rights created by the Zoning Law. They are not rights which are unknown to law and to equity. They are rights known at law and in equity and rights which were not created by any statute and which are wholly independent of the Zoning Law. They are rights which come within the original jurisdiction of circuit courts and which the legislature cannot take from the jurisdiction of such courts. The question whether the remedy under the Zoning Law is concurrent or cumulative is another and different question which it is not necessary to decide. If the remedy should be held to be cumulative, the general rule is that the giving of a new remedy by statute in nowise affects the jurisdiction of a court of chancery. Labadie v. Hewitt, 85 Ill. 341, 342; Babcock v. McCamant, 53 Ill. 214, 218; McNab v. Heald, 41 Ill. 326, 330.

Counsel for the defendants further contend that the complainant has a complete and adequate remedy at law, and that, therefore, the complainant has no cause of action in equity.

The provisions of the zoning ordinance which are relied on by counsel for the defendants in connection with section 3 of the Zoning Law are as follows:

“Section 25. Administration. This ordinance shall be enforced by the Commissioner of Buildings. * * *
“Section 26. Certificates of Occupancy, (a) * * * No change or extension of use and no alterations shall be made in a non-conforming use of premises without a certificate of occupancy having first been issued by the Commissioner of Buildings that such change, extension or alteration is in conformity with the provisions of this ordinance.”
“Section 28. Board of Appeals. A board of appeals is hereby established. The members of the board of appeals shall be appointed by the Mayor, subject to confirmation by the City Council. The board of appeals shall consist of five members. One of the said members shall be an architect * * *, one shall be a structural engineer * * *, another * * * a builder, and still another * * * a real estate dealer.
“Section 29. Functions of the Board of Appeals, (a) * * * The regulations imposed and the districts created under this ordinance may be varied or amended from time to time by ordinance, but no such variations or amendments shall be made without a hearing before the board of appeals, at which persons interested shall be afforded an opportunity to be heard. * * *
“ (c) Variations. Upon application such board of appeals shall have power to review the action of the enforcing officer of the City of Chicago in order to determine whether it is in accordance with the terms of this ordinance. Where in specific cases of applications for permits there are practical difficulties or particular hardship in the way of carrying out the strict letter of the provisions of this ordinance the board of appeals shall have power upon application to recommend variations of or from the original ordinance or amendments thereto.”

The remedy at law that is contemplated in equity, when the phrase “adequate remedy at law” is used, is a remedy in a court of law. Webb v. Ridgely, 38 Md. 364, 372. The application to a particular case of the equitable doctrine embraced in the phrase “adequate remedy at law” must depend altogether upon the character of the case. Watson v. Sutherland, 72 U. S. (5 Wall.) 74, 79; Mutual Life Ins. Co. of New York v. Pearson, 114 Fed. 395, 396. In the case at bar it is obvious that the provisions of the zoning ordinance do not furnish an adequate remedy at law or any remedy at law within the meaning of the doctrine of equity. Under the zoning ordinance the board of appeals, which consists of an architect, a structural engineer, a builder and a real estate dealer, is not a judicial tribunal and is not vested with any judicial functions". Judicial power is power “which adjudicates upon and protects the rights and interests of individual citizens and to that end construes and applies the law.” Stolle v. Mitchell, 309 Ill. 341, 342, 344. Judicial power exists only in the courts. Edwards v. Dykeman, 95 Ind. 509, 518. The board of appeals established by the zoning ordinance is merely an administrative body, which has no power whatever to afford such relief to the complainant as would constitute an adequate remedy at law and which would deprive the complainant of any remedies to which the complainant might be entitled in a court of equity. The board of appeals, being an administrative and not a judicial tribunal, has no power to determine the constitutional questions concerning the vested property rights which the complainant is seeking to protect.

In the case of Webb v. Ridgely, 38 Md. 364, a question somewhat similar to the one in the case at bar was presented by the contention that an act relating to corporations, referred to as the Act of 1868, furnished an adequate remedy at law to the exclusion of relief in equity. The court said (p. 372):

“It is contended that sections 8, 9, 10 and 11 of the Act of 1868 give to the appellees a full and adequate remedy at law. These sections do not provide any remedy in a court of law. They require certain things to be done in regard to the canvassing of votes at an approaching election, the administration of an oath to the elector, by the judges of such election, and designate the form of the oath to be taken by a person voting stock owned by a corporation, and the mode of voting by proxy. Although these proceedings are under authority of law and are intended as safeguards to promote a fair election, they do not constitute such a remedy at law as ousts the jurisdiction of a court of equity. ■ ‘A full and adequate remedy at law’ to accomplish this must be a remedy in a court of law.”

If the grant of power to the City of Chicago by section 3 of the Zoning Law should be construed' as being sufficiently broad to include the right of the board of appeals to exercise judicial functions, section 3 to that extent would be unconstitutional as violative of Ar-tide III of the Constitution of the State of Illinois, which divides the powers of government into three departments — legislative, executive and judicial. The mere fact, however, that the board of appeals may exercise judgment as an incident to their ministerial powers would not constitute the board a judicial tribunal. Stolle v. Mitchell, 309 Ill. 341, 344.

The fact that section 3 of the Zoning Law provides for the issuance of a writ of certiorari and for a restraining order lends no support to the contention of counsel for the defendants that the complainant has an adequate remedy at law. The only function of the writ of certiorari would be to review proceedings had before the board of appeals of the zoning ordinance, and the office of the restraining order, which would be an auxiliary remedy to the writ of certiorari, would be merely to stay the proceedings of the board of appeals pending the decision of the court in the certiorari proceedings.

In support of their contention that the complainant has a complete and adequate remedy at law, counsel for the defendants principally rely upon the case of Cann v. City of Chicago, 241 Ill. App. 21, 27. In that case the complainant was not contending that the zoning ordinance was inapplicable. On the contrary, the complainant had applied for permits to erect a building and was seeking to enjoin the City of Chicago from interfering with the erection of the building in accordance with the permits that had been granted to the complainant, but which subsequently had 'been revoked. It is apparent that the facts in the case at bar are materially different. The cases of City of Aurora v. Burns, 319 Ill. 84, 98, and Beynser v. City of Evanston, 319 Ill. 226, also cited by counsel for the defendants, are not in point.

For the reasons stated the decree of the chancellor is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.