text:
    Milford H. Olds, Appellant, v. Adams Clark Building Corporation and William D. Meyering, Appellees.
    Gen. No. 37,375.

      Opinion filed October 16, 1934.
    John F. Bellair, for appellant.
    Tenney, Harding, Sherman & Rogers, for certain appellee; S. Ashley Guthrie and George E. Howell, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This appeal is prosecuted from a judgment for costs against plaintiff, entered by the county court of Cook county, after a trial without a jury on Novembe’r 14, 1933, in a proceeding, commenced on October 30, 1933, under “An Act providing for the trial of the right of property and claims of exemption in the county court.” (Cahill’s Stat. 1933, ch. 77, p. 1719.) The finding and judgment, as appears from the record, are in a draft order, wherein the court found the issues for the defendant, Adams Clark Building Corp., and that the right of property is in it and that the “sheriff is hereby directed to proceed with the sale,” and adjudged that judgment for costs be entered against plaintiff on the finding.

On the trial plaintiff was a witness in his own behalf. He testified at length both on direct and cross-examination, and called two other witnesses in chief. For defendant, Adams Clark Building Corporation (hereinafter called the Building Corp.), three witnesses testified, among them William S. Deree. In rebuttal plaintiff called four witnesses, among them Ernest A. Jackson, whose testimony both on direct and cross-examination is lengthy. Numerous documents and writings were introduced by the parties. Some of the facts disclosed by the evidence are in substance as follows:

Early in 1932, the Building Corp. brought suit on an appeal bond in the superior court of Cook county against Ernest A. Jackson, Richard S. Morris and a Surety Company, claiming damages in the sum of $4,860, together with interest, as set forth in its affidavit of claim. At that time, and prior thereto, Olds (plaintiff herein) was the confidential attorney for Jackson. In the suit the appearance of Jackson and Morris was entered by a firm of attorneys of which Olds was the head, and subsequently various pleas were filed, supported by an affidavit of defenses. The suit was reached for trial before Judge Stanton on Friday, July 7, 1933. Olds was present in court, as was an attorney for the Building Corp. Olds stated that he “had no defense to the bond.” And it appearing that certain necessary court files were missing the court suggested that formal proof be made on Monday (July 10th). Olds, however, said that he would be out of town on Monday, and requested that the matter be continued until Tuesday, to which the court assented and directed counsel to again appear on Tuesday morning. On that morning, July 11, 1933, counsel were present, the missing files were in court and, on motion of the attorney for the Building Corp., and without objection of Olds, the court ordered that the affidavit of defenses previously filed by Jackson and Morris be stricken for insufficiency, that they be defaulted, that judgment be entered against them in favor of the Building Corp. in the sum of $5,639.60, and that execution issue, etc. An execution on the judgment was placed in the sheriff’s hands, and subsequently that official levied on certain goods and chattels, as the property of Jackson, then being in the “bungalow” on the two uppermost stories of the “Banker’s Building,” located on the southwest corner of Adams and Clark streets, Chicago. These goods consist of living room, reception hall, bed room, dining room and kitchen furniture, etc., and are of a character that may properly be considered as “household goods.”

In the meantime, .on Saturday, July 8, 1933 (one day after he had appeared in the superior court and knew that a judgment in a large amount would soon be rendered against Jackson in favor of the Building Corp.), Olds called Jackson to his office, told him about the impending judgment and advised him to execute two notes secured by chattel mortgages, one on the goods in the bungalow and the other on other goods owned by Jackson, but located in another downtown building in Chicago. Olds claimed on the trial that at this time Jackson owed him several thousand dollars in fees for attorney’s services previously rendered, and for which he then held Jackson’s unsecured note. One John T. Whitlock, another client of Olds for many years, happened to be in Olds’ office at the time. Jackson consented to execute the two notes and mortgages. Olds asked Whitlock if he would not, as an “accommodation” to him (Olds), take the proposed notes and mortgages in his name, so that Olds’ name “wouldn't appear on the record,,’’ as he “didn’t care to have a mortgage recorded in his name.” Whitlock acceded to the request, and Olds caused the two notes and chattel mortgage to be executed by Jackson. One of the notes is for $4,500 and the other for $425, each dated July 8, 1933, payable two years after date to Whit-lock’s order, and by him indorsed in blank. The chattel mortgage given as security for the $4,500 note is dated July 8th, acknowledged by Jackson on July 10th and recorded on July 10th. Although Jackson was a married man, his wife, living separate and apart from him at the time, did not join in the mortgage. She was not then in Chicago and her signature could not quickly be obtained. Olds claims that the mortgage was given for the purpose of securing his claim for attorney’s fees against Jackson, but it is stated on the face of the mortgage that “Ernest A. Jackson, . . . in consideration of the sum of $4500, to him paid, by John T. Whitlock, . . . the receipt whereof is hereby acknowledged, ’ ’ does hereby grant, sell, etc., unto said Whitlock the “following goods and chattels”: (Here follows a list of goods, situated in the bungalow in said Banker’s Building, and which are the same as those afterward levied upon by the sheriff as aforesaid.) It is also stated in the mortgage that the mortgagor (Jackson) “is lawfully possessed of said goods and chattels”; that it shall be lawful for him to retain the possession of the same until default; and that the mortgagee, or his assigns, may take possession of the mortgaged property in the event of feeling insecure, or in the event any writ is levied on said property. On August 15, 1933 (over a month after the mortgage had been executed) Whitlock was again in Olds’ office and at Olds’ request he executed and acknowledged a written assignment of the mortgage, wherein, for the consideration of one dollar and other considerations, he sold and assigned to Olds “the within deed of mortgage,” and all his right and title to the property therein described, ‘‘together with the original debt for which said mortgage was given,” etc. The assignment was not recorded. At the times the mortgage was executed and said assignment made, there was also pending in said superior court against Jackson a separate maintenance suit, brought by his wife several years before, and to which the Building Corp. had been made a party, and in which Olds was and had been acting as Jackson’s solicitor. In August, 1929, on Mrs. Jackson’s motion, the court had issued an interlocutory injunction restraining Jackson and others, their agents, solicitors, etc., from conveying or incumbering any of Jackson’s property. Olds had a copy of the injunction order in his office files, and knew that it was still in force when Jackson at his request executed the two chattel mortgages. Olds testified that when they were executed and recorded he did not think that the injunction thereby was violated, and that, as he understood it, the injunction only enjoined Jackson from the disposing of any interest in any corporation stock, etc. One of his witnesses, the solicitor for Mrs. Jackson in the separate maintenance suit, testified in substance that on occasions, upon Olds’ requests, he had consented to a temporary modification of the injunction order, as regards certain particular property, on condition that the modification be made by order of court, and that he had informed Olds in substance that he did not desire to do anything that would stand in Jackson’s way in making progress in his business or enterprises. Olds did not consult with Mrs. Jackson’s solicitor prior to the making of the two chattel mortgages.

After the sheriff had levied on the goods and chattels in the bungalow, by virtue of the execution issued on said judgment against Jackson for $5,639.60, but before any sale had been had, a certain notice, signed by Olds, was served on the sheriff on October 30, 1933. It is stated therein that Olds “claims title to all of the goods and chattels enumerated in a list of sheriff’s sale, . . . which said sale is set for October 30, 1933, at 10 o’clock a. m., and which list is as follows(Here is set forth a list of the goods.) It is also stated in the notice that Olds claims title to the goods by virtue of the chattel mortgage on the goods, given by Jackson to Whitlock and thereafter assigned to Olds; that Jackson’s note of $4,500 is still unpaid; that the mortgage is still held by Olds; and that Olds “intends to prosecute his claim in and to said goods and chattels, and forbids the sale of the same by the sheriff.” On the same day (October 30, 1933) Olds commenced the present suit in the county court against the Building Corp. and the sheriff. In his statement of claim he “claims right to the following described property (list attached) . . . which property has been levied upon and is in the sheriff’s possession by virtue of said levy.” In the heading to the list are the words: “List of personal property belonging to Ernest A. Jackson, located in the bungalow of the Banker’s Building, on which levy was made.” On November 10, 1933, the trial of the present cause was commenced in the county court, without a jury, resulting in the entry of the finding and judgment against Olds and in favor of the Building Corp., as first above mentioned.

In section 4 of the Illinois “Frauds and Perjuries” Act (Cahill’s St. 1933, ch. 59, ¶ 4, p. 1492) it is provided :

“Every gift, grant, conveyance, assignment or transfer of, or charge upon any estate, real or personal, . . . made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void as against such creditors, purchasers and other persons.”

In section 2 of the “Act to regulate the foreclosure of chattel mortgages on household goods, wearing apparel and mechanics’ tools,” in force July 1, 1889 (Cahill’s St. 1933, ch. 95, ¶ 26, p. 1879) it is provided:

“No chattel mortgage executed by a married man or married woman on household goods shall be valid unless joined in by the husband or wife as the case may be. ’ ’

One of the contentions here made by Olds, as a ground for the reversal of the judgment appealed from, is in substance that the finding of the trial court, sitting in place of a jury, on the issue of fact as to whether the chattel mortgage in question was executed “with the intent to disturb, delay, hinder or defraud” the Building Corp. (a creditor of the mortgagor, Jackson), is manifestly against the weight of the evidence. After carefully reviewing the evidence and considering numerous adjudicated cases cited in the briefs of opposing counsel, we are unable to agree with the contention. In Zwick v. Catavenis, 331 Ill. 240, 247, 248 (italics ours), it is said:

“While a debtor may prefer a creditor or creditors and such preference is valid notwithstanding the claim of other creditors, provided the debt preferred is actual and the property transferred does not clearly exceed the amount of the claim and the transaction is not a mere device to secure an advantage to the debtor to hinder, delay or defraud other creditors, yet such intent to defraud, or to secure by such transfer an advantage to the debtor making it, may be implied from the relationship of the parties taken in connection with other circumstances proved. There may be circumstances attending conveyances and transfers to hinder, delay and defraud creditors, which are in law denominated ‘badges of fraud,’ . . . Badges of fraud are not conclusive, but are strong or weak, according to their number and concurrence. . . . Whether badges of fraud shown- in the evidence are sufficient to establish the fact that the conveyance in question was fraudulent is a matter for the jury to decide. Fraud will not be presumed but must be proved. Proof of it may be either direct or circumstantial. Agreements to perpetrate fraud are not made in the open — they are secret arrangements. As a result it frequently occurs that while fraud cannot be shown by direct evidence, yet it may be shown by proof of facts and circumstances from which the jury may rightfully infer the existence of the fraud charged. If a consideration of all the circumstances justifies the conclusion that the transaction was fraudulent, the jury are warranted in finding that fraud exists though there be no direct evidence.” (Citing Fabian v. Traeger, 215 Ill. 220, 222, 223; Schumacher v. Bell, 164 Ill. 181, 183, 184.)

It is also the law of this State that in cases similar to the present one, where the conclusion necessarily follows that the particular conveyance was made with the fraudulent intent to delay, hinder or defraud creditors, it can make no difference that with such purpose existing there were combined other motives at the time of making the conveyance. (Phillips v. Kesterson, 154 Ill. 572, 574; Reed v. Noxon, 48 Ill. 323, 324.) And it is also the law that the testimony of the parties to the transaction-that there was no fraudulent intent, and the conveyance was made in good faith, cannot prevail against facts and circumstances satisfactorily showing that such conveyance was fraudulent as to creditors. (Phillips v. Kesterson, supra; Bell v. Devore, 96 Ill. 217, 223.) And it is also the law that where the conveyance is made for a consideration but with the fraudulent intent to delay, hinder or defraud creditors, it will not be permitted to stand for the purpose of reimbursement or indemnity. (Svalina v. Saravana, 341 Ill. 236, 250; Beidler v. Crane, 135 Ill. 92, 100; Grieb v. Caraker, 69 Ill. App. 236, 237.)

And we agree with the contention of counsel for the Building Corp. that the following circumstances in substance as disclosed by the evidence constituted “badges of fraud,” and which, taken together and with other facts in evidence, justified the finding and judgment entered by the court:

(a) The mortgage in question was executed by the debtor (Jackson) in anticipation of a judgment to be entered against him, after his attorney (Olds) had stated to the superior court that there was “no defense to the bond,” and which judgment was actually entered only one day after said mortgage had been acknowledged and recorded. (Citing 27 C. J. p. 488, sec. 139; Schumacher v. Bell, 164 Ill. 181, 184, 185.)

(b) The recitals in the mortgage as to the consideration and the debt secured were fictitious and the party named as mortgagee (Whitlock) had no interest in the transaction and was a mere dummy. (Citing 27 C. J. p. 527, sec. 208; 11 C. J. p. 447, sec. 58; John Deere Plow Co. v. Hershbarger, 260 Ill. App. 227, 229; Martin v. Sexton, 112 Ill. App. 199, 214, 215.)

(c) Olds’ testimony showed that the purpose of this subterfuge was to keep his name “off the record” and thereby conceal his connection with the mortgage. A preference given in good faith would not require any such secrecy, and such a transaction is not usually handled in such manner. (Citing Phillips v. McIlrath, 237 N. W. [Iowa] 212, 214.)

(d) The opportunity to secure the execution and recordation of the mortgage before the actual entry of the impending judgment against Jackson was obtained by Olds’ granted request for a continuance of the pending trial in the superior court. (Citing Robinson v. Hawley, 61 N. Y. S. 138, 143.)

(e) Although Olds testified that Jackson’s indebtedness to him for claimed attorney’s fees was of long standing, other testimony of his was to the effect that he never had rendered Jackson a bill and had never asked for or obtained any security for the claimed indebtedness until the present mortgage was executed.

(f) When it became apparent that a judgment against Jackson was impending in the superior court Jackson, upon Olds’ advice, executed not only the mortgage in question on the household goods in the bungalow but also another mortgage on other chattels, with the evident intent of removing both parcels of property from the lien of the impending judgment.

(g) Both mortgages were executed in violation of the terms of an interlocutory injunction order, previously issued in Mrs. Jackson’s suit for separate maintenance, and still in force, restraining Jackson, his agents, solicitors, etc., from incumbering any of his property, of which order Olds had notice.

By virtue of the provisions of the above quoted statute regulating the foreclosure of chattel mortgages on household goods, it is here contended by counsel for the Building Oorp. that the finding and judgment of the trial court was right on the further theory that the mortgage in question conveyed household goods and was void because Jackson’s wife did not join in the conveyance. We are of the opinion that the contention is a sound one. Olds ’ contention in the trial court, as he here contends, was that while the goods may be considered of that character, still it sufficiently appears that they were not such because of their having been used by Jackson in his business and for business purposes solely, and, hence, it was not necessary for Jackson’s wife to join in the mortgage to render it valid. After reviewing the evidence and numerous authorities cited in the briefs we are of the opinion that Olds’ contention is not sustained either by the evidence or the law. It clearly appears that at the time the mortgage was executed, and when the sheriff’s levy was made, the particular goods were actually ' in use, with Jackson’s permission, for household purposes, by William S. Deree and his family.

Olds also here contends that the trial court’s allowance in evidence, on the offer of the Building Corp. and over the objection of Olds’ attorney, of the order and writ of injunction entered in the superior court against Jackson and others in the separate maintenance suit brought against him by his wife, constituted reversible error. We cannot agree with the contention. We think that the admission of the papers in evidence was proper in connection with other properly admitted evidence, as showing an additional fact pertinent to the main question as to the claimed bad faith of the parties to the chattel mortgage when executed. (See Clark v. Harper, 215 Ill. 24, 36, 37.) But, even if the admission of the papers could be considered as erroneous, no reversible error was committed, because the cause was tried without a jury and there is much other competent evidence in the present record to sustain the finding and judgment of the court. (See Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 72, 73.) In the case last cited it is said: “We have held that, where a cause is tried before the court without a jury, and there is enough other testimony of unquestioned competency sufficient to sustain the finding of the court, it will not be disturbed, notwithstanding the fact that incompetent evidence has been received, because the same harmful and erroneous effect does not follow as when the admission of such evidence is before a jury.”

For the reasons indicated the judgment of the county court of November 14,1933, appealed from, is affirmed.

Affirmed.

Soanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Soanlan

license: Public Domain

text:
    The People of the State of Illinois ex rel. Mary B. Gillespie, Appellee, v. Herman N. Bundesen et al., Appellants.
    Gen. No. 37,165.
    Opinion filed October 16, 1934.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.
    R. E. Blackwood, for appellee.
   Mr. Justice Soanlan

delivered the opinion of the court.

Petitioner (appellee) filed her second amended petition praying for a writ of mandamus to compel Herman N. Bundesen, President of the Board of Health of the City of Chicago, Dr. E. Dombrowski, Dr. Louis E. Schmidt, Dr. Edwin C. Jordan and Frank Bobrytzke, members of the Board of Health of said city, and Bichard J. Collins, Joseph P. Geary and Leonard D. White, Civil Service Commissioners of said city, to assign her to the duties of supervising field nurse and to permit her to perform such duties henceforth, and that each and every one of said respondents (appellants) herein do all acts necessary to restore her to her duties as supervising field nurse. Bespondents filed a general demurrer and special demurrer “jointly and separately,” both of which were overruled, and the respondents electing to abide by their demurrers, the following judgment was thereupon entered:

“It Is Therefore Ordered And Adjudged By The Court that the writ of mandamus issue out of this court under the hand and seal thereof commanding Herman N. Bundesen, President of the Board of Health of the City of Chicago, Dr. E. Dombrowski, Dr. Louis,E. Schmidt, Dr. Edwin C. Jordon and Frank Bobrytzke, Members of the Board of Health of the City of Chicago, and Bichard J. Collins, Joseph P. Geary and Leonard D. White, Civil Service Commissioners of the City of Chicago, to assign to your petitioner to the duties of supervising field nurse and permit her to perform such duties henceforth, and that each and every one of said defendants herein do all acts necessary to restore petitioner to her duties as supervising field nurse.”

Paragraph 1 of the second amended petition is as follows:

“1. Your petitioner, Mary B. Gillespie, respectfully represents that for more than twenty years last. past she has been a regularly classified civil service employee of the City of Chicago in the department of health and that September 3,1932, she was a regularly classified civil service employee in the City of Chicago in the classification known as Supervising Field Nurse; that she was appointed to this position during the month of May, 1918 from an eligible register whereupon her name appeared as Number 2 in the eligible list of twenty-one for said position and that she has worked as a’supervising field nurse continuously since that time.” Paragraph 2 pleads citizenship and residence of the petitioner. Paragraph 3 alleges that the City of Chicago is a municipal corporation, etc. Paragraph 4 alleges that said city duly adopted the Civil Service act. Paragraph 5 alleges the members of the Civil Service Commission. Paragraph 6 alleges that on September 1, 1932, and at all times thereafter the said Board of Health consisted of the following named persons: Herman N. Bundesen, president of said Board, and Dr. E. Dombrowski, Dr. Louis E. Schmidt, Dr. Edwin 0. Jordan and Frank Bobrytzke, members of said Board. Paragraph 7 set out sections 8, 9, 10, 4, 14, 3, 6, 7, 13 and 31 of the Civil Service act. Paragraphs 8 to 21, inclusive, are as follows:
“8. Your petitioner further shows that the City Council of the City of Chicago, June 18, 1932, enacted an ordinance providing for eight Supervising Field Nurses in words and figures as follows:
‘Bureau of Public Health Nursing.
Salaries and wages—
Superintendent of Nurses at $3,120.00
per annum ......................$ 2,455.08
Supervising Field Nurse, 8 at $2,520.00
.per annum ...................... 15,863.60
Field Worker (Prevention of Blindness) at $2,100.00 per annum...... 1,652.46
Field Nurse, 1,308 months at $170.00
per month ...................... 174,972.25
Infant Welfare Attendant, 156 months at $95.00 per month............... 11,661.65
60 A 5..........'.......................$206,605.04’
“September 1, 1932 and at all times since there has existed a Board of Health of the City of Chicago, created by ordinance of the City of Chicago in the following language:
“ ‘Establishment of Board of Health — Appointment of Members.
“ ‘ There is hereby created and established a board of health for the City of Chicago, which shall consist of five members of said board with the approval of the city council, for a term of two years from January first, and until their successors shall have been' appointed and shall have qualified. Any vacancy that may occur in the membership of said board of health shall be filled through appointment by the Mayor, with the approval of the City Council for the unexpired term.
“ ‘The board of health shall have the management and control of all matters and things pertaining to the public health work of the city. The president of the board of health shall be a physician, duly licensed to practice medicine, and, subject to the direction and approval of the board of health, shall have charge of the administration of the staff of the board of health. ’
“9. Your petitioner. further shows the duties scheduled in the notice of examination held March 10, 1917 in which examination petitioner was qualified for appointment, were to have charge of a.nd direct the work in a definitely assigned division of the city under the supervision of the superintendent of nurses.
“10. ... shows that in February 1932 she was called to the office of the superintendent of nurses, Miss Margaret M. Butler, and told, ‘We want you to resign’; whereupon your petitioner stated, ‘I do not intend to resign. I have heard no complaint of my work have you?’ Said superintendent of nurses replied, ‘ There was no complaint, ’ whereupon the incident ended.
“11. ... shows that September 1, 1932 she reported to the superintendent of nurses, Miss Margaret M. Butler, as directed by said superintendent at four o’clock P. M.; that, when your petitioner reported the said superintendent of nurses stated, ‘ There are no more life jobs in the department. Your assignment is changed from the appointment of supervising field nurse to social hygiene, which will be easier, ’ whereupon your petitioner responded, ‘I have not complained of the work being hard. ’ Responding to this the superintendent of nurses stated, ‘At least there will be no going up and down stairs for you,’ to which your petitioner stated, ‘Why there’s nothing the matter with me, I am not using a cane or a crutch. ’ Nevertheless, the superintendent of nurses stated, ‘You report Saturday morning, September 3rd, to the social hygiene division and that will be your permanent work from now on. ’
“12. ... shows that she did as directed and reported for duty at the social hygiene division September 3rd, September 6th and thereafter; that she was instructed by nurses already employed there how to perform the duties; that the superintendent of the municipal social hygiene division said to your petitioner, ‘You are not a superviser. I had orders from the front office five minutes ago saying that Miss Jones is in charge and you must follow her instructions, ’ that thereafter, your petitioner was required to and did perform duties such as scrubbing in and about the clinic, fill and start sterilizers, wipe off furniture, clean stands and table tops.
“13. ... shows that September 15th she was told by the superintendent of nurses, Miss G-roesbeck would instruct her, your petitioner, in preparing salvarsam for treatments; that slightly later, Miss G-roesbeck directed your petitioner to assist Mrs. Morris in work she was performing, sterilizing instruments, making-slides and the like.
“14. ... shows that at no time during her assignment to the social hygiene division has she been called upon to do work directing other nurses in the performance of their duties, but on the contrary, your petitioner shows she has been required to take instructions from field nurses about the duties in the social hygiene division.
“15. ... shows that her duties as a supervising field nurse consisted of instructing a group of field nurses consisting in numbers from eleven to twenty-one in the performance of their duties, accompanying them to residences and schools in their duties and advising with them on the performance of certain duties and reporting on the conduct, work and performance of duties of field nurses under the direction of your petitioner as a supervising field nurse.
“16. ... shows weekly meetings of supervising field nurses are held so said supervising field nurses may confer with each other, discuss their work and problems and benefit by interchange of ideas and suggestions; that for more than fifteen years and until petitioner was assigned to her present duties she was given notice of such meetings and attended same but that since said present assignment petitioner has been given no notice of such meetings though petitioner is advised and states the fact to be that such conferences are still held.
“17. ... shows that at no time since her assignment to the social hygiene division has she been permitted to direct the work of any group of nurses or perform any of the duties she previously performed as a supervising field nurse; and that she has been constantly employed since being assigned to the social hygiene division in the venereal disease clinic with three other nurses performing the same duties that they performed and assisting them in the performance of said duties, all of which three nurses are field nurses; Clara Jones is in charge of the group of nurses of which 'petitioner is one and said Clara Jones performs the supervising duties of said group under the direction of the superintendent of nurses.
“18. ... shows that she made written demand September 12, 1932, for restoration to her position of Supervising Field Nurse, said demand was in words and figures as follows:"
“ ‘September 12,1932.
Dr. Herman N. Bundesen,
President of the Board of Health,
City of Chicago, Hlinois.
Dear Sir:
I respectfully demand reassignment to regular duties' as Supervising Field Nurse.
Very truly yours,
Mart B. Gillespie
By (Signed) B. E. Blackwood,
Attorney. ’
“19. Your petitioner further shows that notwithstanding this demand her superior officers have failed and refused to restore her to the duties provided for her position in the civil service classification of supervising field nurse, her regular duties for fourteen years prior to the demand for her resignation.
“20. ... shows that notwithstanding the failure of respondents herein to permit your petitioner to perform her regular duties said respondents have permitted two political sixty day appointees, Irene O’Donnell and Katherine Bickan, to perform duties of your petitioner’s position (Supervising Field Nurse) in violation of the laws made and provided; and that said Irene O’Donnell was first assigned to this work during your petitioner’s vacation in the month of August, 1932.
“21. ... shows she participated in an examination called and held by said Civil Service Commission and was appointed a supervising field nurse from the eligible list resulting from said examination under the law which provides:
“ ‘examinations shall be practical in their character and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions to which they seek to be appointed.’
“ ‘said commission shall make rules to carry out the purposes of this act.’
“ ‘The commission shall investigate the enforcement of this act.’
“ ‘notice of the time and place and general-scope of every examination shall be given.’
‘ ‘ and your petitioner shows said notice in this examination designated the duties of the position,
“ ‘to have charge of and direct the work in a definitely assigned division of the city under the supervision of the superintendent of nurses.’ ■
“And so your petitioner shows she is now assigned in violation of the law while temporary political appointees are performing duties of the classification to which petitioner belongs.”

The petitioner prays:

“That a writ of mandamus issue out of this court under the seal thereof commanding Herman N. Bundesen, President of the Board of Health of the City of Chicago, Dr. E. Dombrowski, Dr. Louis E. Schmidt, Dr. Edwin C. Jordan and Frank Bobrytzke, Members of the Board of Health of the City of Chicago, and Richard J. Collins, Joseph P. Geary and Leonard D. White, Civil Service Commissioners of the City of Chicago, to assign your petitioner to the duties of supervising field nurse and permit her to perform such duties henceforth, and that each and every one of said defendants herein do all acts necessary to restore petitioner to her duties as supervising field nurse and that your petitioner may have such other and further relief in the premises as to this honorable court shall seem meet and is by law in such case made and provided.”

Respondents concede that the petition establishes “the petitioner’s character as a Supervising Field Nurse in the classified service of the City of Chicago working as an employee in the Department of Health,” and that she performed the duties of such position for a period of 15 years. Their first major contention is that “there is but one possible theory of cause of action that might exist in this petitioner’s behalf and that is upon this state of facts, namely: that the Health Department wrongfully demoted the petitioner from her position as a civil service Supervising Field Nurse to the next lower grade or rank in that line of service, that is Field Nurse; reported the fact of such demotion or transfer to the civil service commission; and that the commission thereupon changed petitioner’s status on the records, thereby making of petitioner a Field Nurse, instead of a Supervising Field Nurse, reducing her salary to that of the lower position, and causing petitioner to be assigned and transferred from the recognized duties of her rightful position to the duties of the lower position. Nothing short of all these facts properly alleged as a cause of action will be sufficient to withstand a general demurrer,” and respondents argue that there are no facts alleged in the petition that would support such a theory. We cannot agree with this contention of respondents. In the well known contempt case of People v. Mortenson and Chadsey, 224 Ill. App. 221, it appears that after the circuit court had determined, in quo warranto proceedings, that Chadsey was the duly qualified superintendent of schools, and had ordered his reinstatement, the respondents, in order to force him to resign from the position, attempted, by means of rules that were adopted by the Board of Education, to transfer all of the statutory duties, prerogatives and authority of Chadsey, as superintendent of schools, to one Mortenson, “the associate superintendent of schools,” but they did not interfere with the title, salary nor desk of Chadsey. In the able opinion filed in the contempt case, Mr. Justice McSurely said (p. 231):

“Obviously the adoption of these rules by the board was a violation of the order of the court finding that Mr. Chadsey was the superintendent of schools and entitled to the office. The office included not only the title, salary and room, but all the duties, responsibilities, prerogatives and authority prescribed by the statute for such office, and which were as much a part of the office as were the title and salary, and could no more be taken from him than could these. These rules purported to take away from Mr. Chadsey the substance of the office, leaving him merely the empty shell. Respondents also attempted thereby to give Mr. Mortenson, who had been ousted by judgment from the office of superintendent, all the powers pertaining thereto, in face of the judgment. In other words, what the court ordered to be done was done only in part, and what it said should not be done was done. . . . The adoption of these rules was obviously an attempt to defeat or circumvent the judgment order of the circuit court, and was contemptuous.” (Italics ours.) In People ex rel. Brundage v. Peters, 305 Ill. 223, an aftermath of the contempt case, the Supreme Court said (pp. 229, 230):

“They (the respondents) refused to obey the judgment and order of the court to restore Chadsey to the office of superintendent but assumed to elect Mortenson as associate superintendent and adopted rules clothing him with the authority and duties of superintendent. Chadsey and his counsel made repeated efforts and demands that the judgment of the court be carried out and he be re-instated in his position and clothed with the duties of the office. By taking the authority and duties of the office from him and conferring them on Mortenson the contemners willfully and purposely ignored and refused to obey the judgment and order of the court. It seems palpable that contemners’ acts were intended to defeat the judgment and were a defiance of it. Chadsey, finding himself ignored and prevented from the enjoyment of his office and the discharge of its duties, sent his written resignation, dated November 26, 1919, to the board. The contempt proceedings were instituted December 4, 1919. To say that under these circumstances the character of the proceedings was changed from civil con-tempts to criminal contempts and that the pardon was valid would be, in effect, giving approval to the acts of the board intended to defeat the judgment and force Chadsey out and Mortenson in as superintendent. It is perfectly plain the actions of the board of education were clearly in defiance of the judgment and were taken with the purpose of defeating it. ’ ’ In that case the Supreme Court took occasion to approve the ruling of the Appellate Court in the Mortenson case, that an office or position includes more than a title and salary, and that the petitioner was prevented, by the acts of the defendants, “from the enjoyment of his office and the discharge of his duties.” It appears from the allegations in the petition that respondent was asked.to resign and that when she refused to comply with the request the duties that properly belong to her position were taken away from her and she was assigned to the performance of duties that belong to the position of a field nurse — a position inferior in dignity and responsibilities, and dissimilar in its work. From the facts alleged it is evident that there is a clear distinction between the two sets of duties. This is evident from the fact that the Civil Service Commission deem it necessary to hold an examination to determine the eligibility of applicants for the position of supervising field nurse. If the instant contention were to be sustained then the Board of Health would have the power to take away from a civil service employee holding a high-grade position all of the duties properly belonging to such position and assign such employee to the duties of scrubbing floors and other work of a like kind. With such a power the board could nullify the purpose and spirit of the Civil Service Act.

Section 12 of the Civil Service Act provides that “no officer or employee in the classified civil service of any city, who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense.” (Par. 697, ch. 24, Cahill’s Ill. St.) A position may be abolished by a failure to appropriate a fund for the salary of the office, where this is done in good faith and in the interest of economy, and in order to reduce expenses, and not for the purpose of evading the provisions of the Civil Service Act. (Fitzsimmons v. O’Neill, 214 Ill. 494; City of Chicago v. People, 114 Ill. App. 145.) If a position is abolished because of the alleged unfitness of the incumbent or because of any incapacity relating to the personnel of the incumbent, then such employee can be discharged in the manner provided by section 12.

. “While the city has a right to actually and in good faith discontinue any position when the same becomes no longer necessary or useful, yet neither it nor the commission had any right to continue the position in force and to remove appellee until charges had been preferred against him and sustained by the commission in the manner provided by section 12 of the Civil Service law. (City of Chicago v. Luthardt, 191 Ill. 516.) ” (People v. Coffin, 282 Ill. 599, 610.)

Respondents further contend that “although an executive officer or body exercising discretionary power may be compelled to act and to proceed to the performance of duty, such officer or body cannot, by means of the writ of mandamus, be controlled in the exercise of judgment and discretion to act in a particular manner,” and they argue that what the respondents did was merely a discretionary exercise of power and that therefore the courts have no power to review their action in that regard. In support of this contention respondents cite, inter alia, the following from People v. Errant, 229 Ill. 56, 61:

“So long as the administrative agents are making an honest effort to carry out the provisions of the law in its true spirit they should be left free to exercise a reasonable discretion in all matters depending on information of details and local conditions.” Much of what we have heretofore said in connection with the first contention applies also to the instant one. Under the facts alleged in the petition respondents were not making an honest effort to carry out the provisions of the Civil Service law “in its true spirit.” After the failure of the effort to force the petitioner to resign, respondents not only forced the petitioner to perform duties that do not belong to the position of supervising field nurse, but they caused two persons who had never qualified for the position of supervising field nnrse to serve as supervising field nurses by temporary appointment, and, as the petitioner argues, these two persons “in the face of the present financial crisis are being paid an advance in salary while petitioner who seeks to be placed at her regular duties is being paid more than field nurses’ compensation for performing field nurse duties.” Petitioner further argues that the department heads, under the Civil Service law, have no right or authority to assign employees outside of their classification; that under the act applicants for the positions are examined for particular duties, their names are listed, and they may be employed only in accordance with the law 5 that the duties of a position are defined in the classification and the examination call, and that certifications by the Civil Service Commission are made to apply to certain positions; that in the instant case the petitioner passed the examination for supervising field nurse, and if department heads were given the right contended for by respondents “the classification and examination for specific positions means nothing.” Section 10 of the act provides the manner in which appointments to classified service shall be made. It further provides that “to prevent the stoppage of public business, or to meet extraordinary exigencies, the head of any department or office may, with the approval of the commission, make (a) temporary appointment to remain in force not exceeding sixty days, and only until regular appointments under the provisions of this Act can be made.” Under the facts alleged in the petition, the so-called 60-day appointments of two persons to perform the duties of the petitioner’s position, were made in violation of the provisions of section 10.

In the instant case respondents saw fit to stand by their demurrers, which admitted all facts well pleaded, and there is nothing in this case that would tend to support a claim that the acts of the respondents amounted to only a temporary change in petitioner’s duties, made necessary by the grave financial conditions of the times.

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

Affirmed.

G-ridley, P. J., and Sullivan, J., concur.


author: Mr. Justice Scanlan

text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Alex Rivlin et al., Respondents. Martha Rabinovitz and Florence Arieu, Plaintiffs in Error.
    Gen. No. 37,266.

      Opinion filed October 16, 1934.
    Rehearing denied October 29, 1934.
    Simon Herr and Martin 0. Weisbrod, for plaintiffs in error; Michael A. Romano, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., Assistant Attorney to Board of Election Commissioners, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

There was filed, in the county court of Cook county, by John S. Rusch, chief clerk of the board of election commissioners of the city of Chicago, a petition against William Kohen, Alex Rivlin, Lina W. Singer, Martha Rabinovitz and Florence Arieu, which recites that on November 8, 1932, a general election was held in the city of Chicago at which various candidates of different political parties were voted upon; that respondents served as judges and clerks of election at that election in the 41st precinct of the 24th ward; that certain misconduct and misbehavior of respondents as judges and clerks of election at said election “constitutes . . . contempt of contempts” of said court; that respondents, while so serving, fraudulently and unlawfully made a false canvass, tally, proclamation and return of the votes so cast in said precinct and were guilty of corrupt and fraudulent conduct and practice in their duties as judges and clerks of said election. The petition further avers that at said election there were 24 candidates for the office.of associate judge of the municipal court of Chicago, of which numher 12 were to be elected. The petition then sets forth, in detail, the canvass, tally and return made by the judges and clerks as to each individual candidate for said office, and the actual number of votes received by each of the candidates. The petition further avers “that the discrepancies between the returns of the respondents herein and the actual vote cast for each of the candidates for Associate Judge of the Municipal Court of Chicago was caused by and through the fraudulent, corrupt and unlawful acts of said respondents herein.” The petition prays that a rule be entered upon respondents to show cause why they should not be held in contempt of court, and such a rule was entered. Respondents Kohen and Rivlin were fugitives from justice at the time of the hearing of this cause, September 19, 1933. A motion of respondent Singer and plaintiffs in error, Rabinovitz and Arieu, to quash the petition was overruled and thereupon they entered “pleas of not guilty.” The record further shows that said respondent and plaintiffs in error orally answered the rule to show cause. On hearing of evidence in open court respondent Singer and plaintiffs in error were all found guilty of contempt of court by the trial court, and respondent Singer was sentenced to the county jail for the term of 60 days, plaintiff in error Arieu for the term of 30 days, and plaintiff in error Rabinovitz for the term of 15 days. Plaintiffs in error, Rabinovitz and Arieu, sued out this writ of error in this court (No. 37,266) and respondent Singer thereafter sued out a like writ (No. 37,271). Upon order entered the latter case was consolidated for hearing in this court with the instant one.

Upon the hearing it was shown that after the election in question there was an election contest case entitled Heller v. Hasten, conducted before Judge Mangan, which involved a recount of the ballots cast in the precinct in question for associate judges of the municipal court of Chicago. The figures shown by the recount, the tally sheets returned by the judges and. clerks of election in. said precinct, also the poll books, were admitted in evidence by stipulation. It was further stipulated that the official returns made by the said judges and clerks of election for the candidates for associate judge of the municipal court of Chicago, and the actual votes received by said candidates, as shown by the recount made before Judge Mangan, were as follows:

Candidates Official returns made Actual votes re-by judges and clerks ceived as shown of election. by recount;
Eooney 586 426
Dunne 578 422
Bicek 576 383
McGarry 574 403
Hayes 547 407
Kasper 523 410
Bonelli 594 414
Hrbanski 556 395
Holland 580 393
Gutknecht 588 411
Smith .568 394
Hasten 568 386
Trade 49 135
Casey 59 115
Heller 59 207
Sbarbaro 150 137
Holmes 49 94
Eberhardt 49 98
Fairbanks 49 105
McMillan 49 90
Schulman 174 180
Fetzer 59 101
Fisher 149 145
Haas 49 102

The official returns made by the judges and clerks show 478 straight Democratic and 49 straight Republican votes cast; while the recount shows 355 straight Democratic votes cast and 71 straight Republican votes cast, 160 split ballots cast, 46 blank ballots (initialed), 6 spoiled ballots, 4 blank ballots (not initialed), and 4 ballots “held” by Judge Mangan. It was further stipulated that the following judges and clerks of election served in the precinct in question: “Republican Judge: William Kohen; Democratic Judge: Alex Rivilin; Republican Judge: Lena W. Singer; Republican Clerk: Martha Rabinovitz; Democratic Clerk: Florence Arieu.”

Angela DeYere, a watcher for the Republican party, testified, for the petitioner, in substance as follows: That on November 8, 1932, she was in the said polling place, as a watcher, from about 5:50 a. m. until midnight, at which last mentioned time the ballot boxes had been sealed; that at 5 p. m. the polling place was closed, the ballot boxes were then opened, and the ballots dumped upon the table; that from that time until about 10 o ’clock nothing was done about counting the ballots; that after the ballot boxes were opened respondents Kohen and Rivlin and Democratic precinct captains Kuntarski and Brownstein went into the room back of the polling place and remained there for several hours; that they then came back to the polling place; that “they had a lot of figures on a piece of paper and they told the judges and clerks to get busy with their tally sheets and tally them up. . . . Q. When they directed the two clerks and the judge to make entries, upon their tally sheets, what did the two judges and clerks do, if anything? A. They just-got out their tally sheets and they told them how many straights, and there was a little confusion, somebody wanted a few more votes than the others. They said ‘All right, how many do you want? We will give them to you. ’ And they totaled them up, so many splits — ’ ’; that the clerks then made entries on the tally sheets as directed; “The Court: What do you mean? A. Mr. Kohen and the barber, Mr. Rivilin, and the precinct captains and their workers, came out and told them ‘Now, get busy with your tally sheets so we get through; put down so many straights for the Republicans and so many for the Democrats.’ Somebody made a remark about the Communist and Socialist. They said ‘Well forget about that, we will not count them.’ The Court: Who was saying this? A. Brown-stein and Kuntarsky, and there was some fellow who was cross-eyed, I don’t know their names, and so then they just tallied up, and that was all there was to it. Mr. Cashen (counsel for petitioner): Q. Mrs. DeVere, where were the ballots, if you know} during the time that Alex Rivilin, as you describe him or call the barber, and William Kohen and these two precinct captains were in the back room? A. They were on the table. Q. Anybody guarding the ballots at that time? A. Well, the judge and these two clerks here, they sat at the table at all times. Q. At any time were those ballots in the box, either the Presidential ballots, the Judicial ballots, counted by any judges in the presence of the clerks ? A. They were not counted at any time, no ballots, the same as the Judges ballots; all figures.” Upon cross-examination the following occurred: “The Court: Did he have a paper in his hand? A. Yes, they came out with a piece of paper about the size of that blotter there (indicating), about this long. The Court: Who had the paper? A. Brownstein and Rivilin, they compared them, they ■changed some figures. . . . Q. (by Mr. Romano, counsel for respondent Singer) And Mrs. Singer acted on what was told her by Rivilin and Kohen? A. They all did, all the judges and clerks. Q. What time was that, Mrs. DeVere, when Kohen and Rivilin gave their totals to the clerks? A. That about be about half past ten, because they had this recess to see what they were going to do with these ballots.” The witness further testified that after the boxes were first opened Rivilin, Brownstein and Kuntarsky “ran the precinct as they pleased,” and “the rest of them stepped back and waited for orders”; that a bystander, Maurie Gruffman, told plaintiff in error Rabinovitz that she was too slow in the tallying and he then took the latter’s tally sheet and made figures upon it; that about 10 o’clock the Republican watcher, one Price, and his wife, were ejected from the polling place.

Petitioner then closed his case and plaintiffs in error and respondent Singer moved that the petition be dismissed as to all of them. Mr. Herr, counsel for plaintiff in error Arieu, in connection with the motion, made the following statement to the court: “It is our position that Mrs. DeVere has accurately stated what transpired in that polling place. The Court: Why do you say that? Mr. Herr: Why? There is no reason why a lady like Mrs. DeVere should be disputed too. What she described aptly described it accurately. These young ladies who were clerks virtually— two, the one judge was virtually put into a position of a clerk, that is Mrs. Singer, — were under the domination and control of two judges, who, under the law, have a majority control, and a majority rules in a precinct. These same respondents have all, in another case, appeared in Court and testified in another branch of this same Court, your Honor, as to what transpired there and endorsed what Mrs. DeVere now says. . . . They have been ready to cooperate with the prosecution in bringing to justice the real culprits. ’ ’ The court then stated that it seemed “very clear” to him from the evidence introduced by petitioner that “an atrocious” fraud had been “put over in this precinct,” and that plaintiffs in error and respondent Singer must have known that “a gigantic fraud was being put over” and acquiesced in the same. The court called attention to the fact that counsel for plaintiffs in error and respondent Singer had conceded that the testimony of Mrs. DeVere was true. Counsel for plaintiffs in error and respondent Singer then stated a number of times that they wished to cooperate with the county court in the prosecution of the “real culprits” and that their clients’ testimony would accord with that of Mrs. DeVere, but that they felt that before they placed their clients on the stand in the contempt proceedings they should be assured that their clients would not thereafter be prosecuted for a felony arising out of the alleged acts. Mr. Cashen (representing the petitioner) refused to give any such assurance and stated that finding the respondents in the contempt proceedings guilty of contempt would not bar criminal prosecution for the acts in question. The trial court stated that he could not guarantee immunity from criminal prosecution. After a number of delays plaintiffs in error and respondent Singer were finally called as witnesses by their counsel. Plaintiff in error Rabinovitz testified that the ballot boxes were opened at 5 p. m. and the ballots dumped upon the table but that the ballots were never separated; that between that time and 10:30 nothing was done in the way of counting the ballots; that after the ballots had been dumped upon the table respondents Rivlin and Kohen, and Brownstein and Gruffman went into the back room and remained there until about 9 o’clock, when they came back into the polling place with a piece of paper and some figures on it and “made the announcement” and Rivlin gave the clerks the totals for the candidates and the clerks tallied the same; the clerks “tallied as many tallies as would make his total”; that they told the clerks what to do; “he gave us figures for a certain candidate, and then he told us to tally as many totals as he gave us”; that she did not remember them counting any ballots; that before Rivlin gave them the totals Hyman Price, the Republican watcher, and his wife, were £ 1 thrown out” of the polling place by Bivlin and Brownstein; that during the time the announcement of the votes was being made Maurie (Huffman “grabbed the tally sheet away from me,” and made the tallies upon her sheet, and that the figures shown upon her sheet were not made by her; that no one called off names from the ballots “one at a time”; “I didn’t see any ballots counted”; that during the entire time that Bivlin and the others were in the back room the ballots remained upon the table in the polling-place. The following question was then put to the witness by Mr. Bomano: “Q. Do you mean while these men were eating in the back room that the ballots spread on the table in the front part of this building, then they came out with a piece of paper with some figures on it? A. I think it is a fact.” Despondent Singer testified that nothing was done about counting the ballots until 10 p. m. or later; that Bivlin then started counting the ballots and Brownstein said: “Bivilin, the way you are going we will be here all night and all day tomorrow; let’s get through with this count; count them the way you always counted”; that Bivlin “had the ballots, he was thumbing them and putting down totals on a piece of paper, and Brownstein was standing next to him; there was a piece of paper between them. Mr. Bivilin was writing there; I could not see what he was writing. As the girls were ready, he would call a total and fill it in. . . . Q. Do you know whether he counted them? A. He gave every appearance of counting them, as far as I could see. ... I didn’t honestly know he was counting them, I was on the opposite side of the table. . . . Q. Was he actually taking the ballot and turning it over and then taking another one? A. No, sir.” Bivlin told us he counted the judicial ballots. “Q. Did you see him count them? A. Only as I stated, he had them in front of him, and he was turning them over and put the figures on a piece of paper, and he gave the totals to the clerks. Q. So, in other words, they pnt the totals down on the tally sheets first, and then put down the tally marks afterwards? A. They did, yes, sir.” The witness further testified that the presidential ballots were divided into piles and that she watched Rivlin calling off the ballots as to that office; that when Rivlin gave the clerks the totals he had “a piece of brown scratch paper” and she saw him writing upon it. The witness stated that she did not know that there was a conspiracy between Kohen, Rivlin, Brownstein and Kuntarsky and that she acted as she did because she was told that the majority ruled; that for about half an hour G-ruffman made entries upon the clerks’ tally sheets by direction of Kohen and Rivlin; that she went into the bach room several times during the evening and “there were fifteen or twenty people that were mahing trips bach and forth all the time.” Plaintiff in error Arieu testified that she understood that Rivlin was the “supreme judge” in the precinct and that she did not know or suspect that he was giving them false totals or that he and others had entered into an agreement to favor certain candidates and disfavor others; that Gruffman worked on her books for about five minutes; that they got the totals from Rivlin and afterwards filled in the tally marks; that for a while, when the vote for the presidential candidates was being called, the judge called the name of a candidate and the clerks entered a tally mark as he did so, but that Brownstein said to Rivlin: “At the rate you are going now, you will never get through. . . . Why don’t you do this the way you always did?” and thereafter Rivlin turned the ballots “and put a mark with a pencil on a piece of paper, and he would give us, the clerks, that total. . . . Mr. Rivilin would give us the grand total and we would put in individual marks until we arrived at the amount he gave us. Q. Did you hear any votes called that night on any candidate at all for President or other candidates? A. Just at the beginning”; that when Rivilin gave them the totals to put on the tally sheets she believed that he was honestly totaling the number of votes for the candidates and doing it in a quicker way.

Plaintiffs in error and respondent Singer had served as election officials at a primary election held before the one in question, had attended Judge Jarecld’s school for instructions for election officials, and had received the book of instructions given to all said officials. They made no complaint to the election commissioners nor the police as to any happenings at the polling place on the day in question, nor did they make any inquiries during that day of the election commissioners respecting their duties and rights.

At the conclusion of the evidence the various counsel for plaintiffs in error and respondent Singer made arguments to the court. In each argument it was conceded that there was a conspiracy of Rivlin and others to have a false return made of the votes cast for the judicial candidates. Counsel for Mrs. Arieu stated that “they (plaintiffs in error and respondent Singer) did not have personal initiative to assert themselves and assert their rights. All people are not combative, and when they recognize it means nothing but combativeness, they take the easier course and do not resist. That is possibly the extent of the misconduct on the part of any of the three here; they did not resist strongly enough. They were not voluble; they were not combative”; that they conceived it to be their obligation to put down what the judges told them, and that “they, being conscious that something went wrong at the polling place, it would be their duty to come in and squeal, ’ ’ but that if they had done so, ‘£ every day would be a day of Hell; the freedom of the streets would no longer be theirs. . . . Mrs. DeVere’s testimony was substantially correct, and she aptly described the situation there”; but that the punishment the attorney for petitioner had asked the court to impose upon plaintiffs in error and respondent Singer was too severe. Mr. Eller, counsel for Miss Rabinovitz, stated that “while-Miss Rabinovitz was there and acquiesced, possibly by keeping quiet about certain things that were happening,” she was dominated by others in the polling place and the trial court should “give consideration to Miss Rabinovitz in entering your penalty.” Mr. Romano concluded his argument as follows: “I commit my client to your tender mercy and suggest this, if there ought to be punishment it ought to be by fine, and fine only, and I think society would so will it, regardless of Mr, Cashen’s recommendation.”

We have stated, at some length, the material evidence and the position taken by counsel for plaintiffs in error and respondent Singer in the trial court, for the reason that it is contended in this court that “the finding and judgment of the court is contrary to the weight of the evidence,” and it is argued, in support of this contention, that the evidence must prove the parties guilty beyond a reasonable doubt and that petitioner has failed to successfully carry this burden, and we are asked to reverse the judgment on the ground that the proof fails to prove the guilt of plaintiffs in error and respondent Singer.

Section 13, ¶ 267, ch. 46, Cahill’s Ill. Rev. St. 1933, provides in part:

“Upon the confirmation of such judges and clerks, at any time, a commission shall issue to each of such judges and clerks, under the seal of such court, and appropriate forms shall be prepared by said board of commissioners for snch purpose. And after confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to he tried in open court on oral testimony in a summary way, without formal pleadings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.”

“ ‘That the legislature intended to abolish the common-law rule in this class of contempts can hardly be doubted from the language of the statute which expressly provides for a trial “in open court on oral testimony in a summary manner without formal pleadings.” ’ (People v. Sylvester, 242 Ill. App. 565, 571-2, and cases therein cited.) . . . The distinction between a contempt and a criminal offense is clearly pointed out in the case of People v. Panchire, 311 Ill. 622. The instant contempt charge is a purely statutory proceeding. When the plaintiff in error became a judge of election he thereby became an officer of the county court, and the power to punish for contempt an election official for misbehavior in office is vested in the county court by section 13.” (People ex rel. Rusch v. Johnson, 255 Ill. App. 288, 291-2. See also People v. White, 334 Ill. 465, where the section in question and its purposes are passed upon.)

“While contempts are generally spoken of as offenses, yet by the greater weight of authority and better reasoning they are in reality sui generis, — they are quasi crimes or offenses.” (People v. Panchire, 311 Ill. 622, 629.)

While we think that petitioner was not required to prove the guilt of plaintiffs in error and respondent Singer beyond a reasonable doubt, nevertheless, if such principle of law is applicable in the instant case we are satisfied that petitioner successfully bore the burden imposed by that rule. Counsel for the parties claim that Rivlin and Brownstein formulated their conspiracy in the back room and that as the evidence shows that plaintiffs in error and respondent Singer remained in the polling place they could not have been parties to the conspiracy. Respondent Singer testified that she was in the hack room on several occasions during the evening. However, it was not necessary for petitioner to prove that plaintiffs in error and respondent Singer met with Rivlin and the others during the evening, as the law is settled that it is not necessary to prove that alleged conspirators came together and actually agreed, in terms, upon a common design and to pursue it by common means. It is sufficient if it be proved by facts and circumstances that they pursued, by their acts, the same object, one performing one part, another performing another part of the same, so as to complete it with a view to the attainment of that same object, for under such a state of facts the conclusion would be justified that they were engaged in a conspiracy to effect that object. Nor is it necessary to prove that alleged conspirators met during the process of the concoction of the conspiracy, for every person entering into a conspiracy or common design, already formed, is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design.

It is strenuously contended that “the plaintiffs in error (and respondent Singer) were subdued and dominated in the performance of their duty by the men in the polling place.”

“The compulsion which will excuse a criminal act, however, must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. Such compulsion must have arisen without the negligence or fault of the person who insists upon it as a defense.” (16 C. J. 91.)

“ ‘We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality. The impending danger, however, should be' present, imminent and impending, and not to be avoided. . . . The social system would be subverted and there would be no protection for persons or property if the fear of man, needlessly and cravenly entertained, should be held to justify or excuse breaches of the criminal laws.’ Bain v. State, 67 Miss. 557, 560, 7 S. 408.” (Ib.)

There are respectable authorities that hold that duress is no defense to a crime unless the impending penalty for a refusal to commit it is death. (See Am. & Eng. Ency. of Law, Vol. 10, 2d ed., pp. 346-7, and cases there cited.) Even “the command of a military officer to a subordinate will not excuse the latter for the performance of a criminal act.” (Id. p. 347.) There is nothing in the evidence to warrant the instant claim of compulsion or duress. Plaintiffs in error and respondent Singer went to the office of the election commissioners when they left the polling place that evening and there is no contention that they made any complaints at that office of the happenings at the polling place during the day. If they had been coerced or dominated, as they now claim, why did they not make that fact known to the election commissioners?

Plaintiffs in error and respondent Singer boldly contend that even if they knew that the ballots had not been counted, they should be held not guilty, because they were then “under the impression that the decision of two of the three judges, Rivlin and Kohen, was absolutely controlling.” Such-a contention, under the facts, requires no answer.-

Plaintiffs in error and respondent Singer contend that “the sentences of imprisonment were based upon illogical and arbitrary considerations by the court, and the penalties were unreasonable and excessive.” In People ex rel. Rusch v. Johnson, supra, we said (p. 294):

“The plaintiff in error was appointed by the county court to the honorable and important office of a judge of election. His plain duty, under Ms oath of office, was to guard the ballot box, but he betrayed the trust reposed in him and aided and abetted a conspiracy that-had for one of its objects the placing of illegal ballots in the box. The record discloses that the conspirators did not hesitate to use violence in the furtherance of their objects. Such a conspiracy is in its nature treasonable, for it strikes at the very life of the Republic.”

In People v. White, supra, p. 482, our Supreme Court said:

“The honest conduct of elections is of most vital concern to representative government.”

It would be difficult to imagine a more flagrant, brazen conspiracy to defeat the will of the people than is here shown by the evidence. That the ballots cast by the voters were never counted is not seriously disputed, and that Rivlin and others were engaged in a conspiracy to have a false return of the votes made by the precinct election officials was conceded by counsel for all of the parties during the trial. In a presidential election, after the ballot box had been opened and the ballots placed upon the table, nothing was done towards counting the ballots until 10 p. m. or later, and during the long wait plaintiffs in error and respondent Singer made no complaint to nor inquiries of the election commissioners. It was practically conceded that from 5 p. m. until 10 p. m., or even later, Rivlin and others were in the back room determining what votes the various candidates should receive. When Rivlin and Brownstein returned to the polling place, plaintiffs in error, although they knew there had been no count made of the votes cast, at once obeyed the orders of Rivlin and Brownstein and entered upon the official return sheet tallies for the various candidates that they well knew wete false and fraudulent. Respondent Singer, a judge of election, stood by and permitted the consummation of the conspiracy, wMch could not have been accomplished without her aid and that of plaintiffs in error. From the record we learn that many contempt proceedings of a like nature to the instant one have been lately commenced against precinct election officials, and we feel impelled to say that this nation cannot long endure, as the fathers planned it, if frauds such as were practiced in the precinct in question are tolerated. In our judgment the trial court did not adequately punish plaintiffs in error and respondent Singer. In People v. Madel, 337 Ill. 169, in passing upon a like point made in an election contempt case brought under the statute, the court said (p. 172):

“It is contended that the punishment of one year’s imprisonment in the county jail is excessive. These men accepted the trust of conducting the election at their poll according to law and deliberately betrayed that trust by making a false return of the vote, in open contempt of the court whose officers they were declared to be, thus not only depriving the voters of their share in the government but using it against their wishes. The statute has not fixed the limit of the punishment, and the court having power to punish such act as a contempt of its authority, a year’s imprisonment does not seem excessive for such gross and willful contempt.”

The fact that Eivlin and others had not been apprehended at the time of the trial should have had no weight with the trial court in the matter of punishment, although the record shows that it did, but that fact worked to the benefit of plaintiffs in error and respondent Singer. The further fact that the trial court saw fit to recite his experiences in other contempt proceedings involving election frauds is not material, as the guilt of plaintiffs in error and respondent Singer is clear and the punishment imposed upon them inadequate.

It is contended that the judgment order is fatally defective because it contains no placita for the November term at which the judgment order was entered. Petitioner, by leave of court, has filed a supplemental record showing a placita for that term.

Respondent Singer contends that the judgment order is void as to her because it was signed and entered when she was not present in open court. There is no merit in this contention. A judgment order was entered December 1, 1933, finding plaintiffs in error Rabinovitz and Arieu guilty, and at the same time ordering that the case as to respondent Singer be continued until December 7. The writ of error in the instant case, No. 37,266, is on behalf of plaintiffs in error Rabinovitz and Arieu. The judgment order as to respondent Singer was entered on December 7,1933, and she sued out a separate writ of error in this court, No. 37,271, to reverse the judgment entered against her on that date. The judgment order of December 7 recites that respondent Singer was present in court in person and by counsel at the time of the entry of the order and it also recites that various motions were then made by her counsel on her behalf. As we have heretofore stated, the two causes were consolidated for hearing in this court.

The hearing of the petition in the instant case was before Hon. Charles T. Allen, county judge of Lake county, Illinois, and the final contention of plaintiffs in error and respondent Singer is that that judge was without jurisdiction to try a proceeding like the instant one. We have considered the somewhat strained argument in support of the instant contention and find it without merit.

From anything said in this opinion, we must not be understood as holding or intimating that the “misbehavior” referred to in section 13 necessarily involves an act or acts of a criminal character.

The judgment of the county court of Cook county in the instant case (No. 37,266) will be affirmed.

Affirmed.

G-ridley, P. J., and Sullivan, J., concur.


text:
    In re Estate of Eugene N. Berbecker, Deceased. Henry F. Reese, Appellant, v. Estate of Eugene N. Berbecker, Appellee.
    Gen. No. 37,329.
    Opinion filed October 16, 1934.
    Kenneth Gr. Meyer, for appellant.
    MoGtilvray, Fames, Vaughan & Tilley, for appellee ; A. Gr. Humphrey, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court. .

In the probate court of Cook county, Henry F. Reese, appellant, filed a claim against the estate of Eugene N. Berbeeker, deceased; based upon a note for $4,000, signed by Berbeeker, dated October 1, 1929, payable to appellant one year after date. The claim was allowed in full by the probate court. The Estate appealed to the circuit court of Cook county, where the cause was tried' de novo before the court without a jury. From a finding and judgment entered dismissing the claim appellant has appealed.

The parties stipulated as to the following facts:

“1. That, at some time prior to, to-wit, October 30, 1928, said Henry Reese was the owner of certain bonds upon which he had been receiving interest regularly when due; that shortly prior to said date, said Henry Reese was advised by the Cashier of the Arlington Heights State Bank that the bonds mentioned above had been called; that said Cashier then suggested that said Henry Reese reinvest the proceeds of the bonds then owned by said Reese through said Cashier; that as a result of such conversation, and in reliance upon the statements and recommendations of said Cashier, said Henry Reese purchased, on, to-wit, October 30, 1928, four (4) Ten Year Convertible 6% Grold Debenture Bonds of International Hotels, Inc., a corporation of Delaware, bearing numbers M-515 to M-518, both inclusive, having a face value of $1,000.00 each, all dated October 1, 1928, due October 1, 1938, bearing interest at 6% per annum, payable semi-annually on the first day of April and October in each year as evidenced by interest coupons attached to each of said bonds.

“2. That the interest due on April 1, 1929 on said bonds was not paid by the makers thereof; that said Henry Reese, not knowing of said default, deposited interest coupons due April 1, 1929 from each of said bonds for collection with the Arlington Heights State Bank and that, in some manner unknown to the parties hereto the amount represented by said interest coupons was credited to the account of said Henry Reese at said bank and never deducted therefrom.

“3. That on or about October 1, 1929 said Henry Reese deposited for collection the coupons evidencing the interest due October 1, 1929 on said bonds; that the amount thereof was not collected and the said coupons returned to said Henry Reese; that, upon receiving said returned coupons, said Reese conferred with the Assistant Cashier of said Arlington Heights State Bank who then stated that he would refer the matter to the Board of Directors and tell said Henry Beese the result of their actions.

“4. That, subsequent to the conversation last above mentioned, the Assistant Cashier of said Arlington Heights State Bank told said Henry Beese that Eugene N. Berbeeker, above named decedent, would take said bonds from him, the said Henry Beese; that said Beese, about the middle of October, 1929, conferred with Eugene N. Berbeeker, who then was President of said Bank, and, upon delivering to him the bonds of International Hotels, Inc., hereinabove described, received from said Eugene N. Berbeeker a principal note dated as of October 1,1929 signed by said Eugene N. Berbeeker for the principal sum of $4,000.00, payable one year after date; that the claim of Henry Beese herein is based upon said note; that said Eugene N. Berbeeker paid interest on said note to said Henry Beese from time to time and up to and including October 1, 1932. That said bonds are included in the inventory of the assets of the estate of Eugene N. Berbecker filed in the Probate Court of Cook County, Illinois, and therein designated as ‘deemed desperate’.

“5. That the bonds of International Hotels, Inc., had no market value during the month of October, 1929; that there is no record of any market value or of any sales of said bonds during the month of October, 1929 nor since said time. That the only asset ever owned by said International Hotels, Inc., the maker of said bonds was an option to enter into a contract to manage hotels in various parts of the United States; that said option was forfeited prior to October 1, 1929.”

In addition to the foregoing stipulated facts, the claimant (appellant), Beese, objection to his competency having been waived, testified that he lived at Arlington Heights and had been a farmer, but then lived in town; that he had known Eugene N. Berbeeker for about fifteen years before the latter’s death. (Here the witness identified the signature upon the note as that of Berbecker.) The witness further testified that he was the owner of the note and the payee named in it, and that he had received all interest due upon the note “up to October 1, 1932”; that he had bought bonds from the Arlington Heights State Bank and “they were called in and they gave me some other bonds, the cashier of the bank”; that he sent in the first coupons upon the bonds to the bank for collection and he “got the interest on them,” but that he never knew that they were defaulted; that the second time, October 1, coupons were brought in for collection again and they were returned to him; that sometime during the month of October Henry Henning, the cashier of the bank, called him in and, after calling his attention to the fact that the interest coupons had been returned, told him that Mr. Berbecker wanted to see him regarding the bonds; that the witness should come to the bank to see Mr. Berbecker; that the witness called at the bank and Berbecker took him into the directors’ room; “Q. What did Mr. Berbecker say to you at that time? A. Well, he (Berbecker) said, ‘I am sorry that this thing occurred at this bank, and I want to keep the reputation of the institution; so I am going to take over these bonds and give you a personal note against me.’ Q. What did you say? A. I said, ‘I’ll accept that’ ”; that there was nothing said about the value of the bonds; that at the time he purchased the International Hotels, Inc., bonds he thought he was dealing with the bank; that the cashier told him that “they stood in back of everything that they sold”; that at the time of his talk with Mr. Berbecker in the directors’ room the latter said, “I didn’t think William would sell such bonds, do such things.” “Q. Was anything mentioned about cash? A. No, he said he did not have the money at present and he would give me a note for a year; he said maybe times would be better, and he would pay me up.” The foregoing is all the evidence that was heard by the trial court. At the conclusion of the hearing the court, in deciding the claim, made the following statement: “Well, I am reluctant to hold as I do, but I feel that I am compelled to hold . . . that the note was intended as a gift, and was a mere promise to make a gift in the future.”

We are entirely unable to agree with this decision advanced by the trial court, or with the contention of appellee that “the transaction whereby the note here in question was given to plaintiff was not a purchase of bonds by the maker of said note but was merely a gift of the note by the maker to the payee.” In support of its contention appellee refers to the statement of Berbecker to the claimant, viz., “I will take those bonds and give you my personal note,” and argues that the use of the word “give,” by the deceased, conclusively shows that he intended the note as a gift. We cannot give such a strained interpretation to that word, which is very commonly used by one making a purchase or an exchange. A gift, as defined by the authorities, is a voluntary transfer of property by one to another without any consideration or compensation therefor. If Berbecker intended the note as a gift, why did he take the bonds 1 During his lifetime he paid three annual instalments of interest due on the note, and the bonds delivered to him by the claimant are now included in the assets of his estate. The estate makes no claim of fraud in connection with the transaction, nor does it claim any warranty of the bonds. The claimant had no knowledge as to the value of the bonds, but the deceased, as appears from the facts, had knowledge of the character ,and value of them. In exchange for the note the deceased got what he contracted for, the bonds, and during his lifetime he lived up to his contract by paying interest on the note. If, after the transaction in question, the bonds had proved to be valuable, could appellant have obtained the return of them by any legal proceeding? We think not. In 3 R. C. L., p. 946, sec. 142, it is stated:

“It is no defense to an action on a note, that the article for which it was given proved to be worthless, where there is no fraud, or failure of title, and no express warranty. Where a party gets all the consideration he voluntarily and knowingly contracts for, he will not be allowed to say that he got no consideration. ’ ’

In Reed v. Prentiss, 1. N. H. 174, where the defense to an action on a note was that the article for which it was given proved to be of no value, the court said, p. 177:

“The defendant deliberately gives his note and receives the article stipulated for, and should its quality prove bad, without any fraud or warranty by the vender, the vender is innocent; and it is no more reasonable that the misfortune should fall upon him than upon the vendee. Without deceit or a special contract, the seller is not responsible for the goodness of articles sold: arid the maxim of caveat emptor applies in full force. When the specific chattels, thus purchased, are delivered to the buyer, all is passed, which the parties engage; and it would be á solecism to pronounce, that the note for them was given without consideration, when the whole subject matter of the consideration was delivered in conformity to the contract. The following cases, adjudging, that the mere failure of consideration is no defense to an action of this description seem conclusive for the plaintiff. 1 Day 167. Pollard v. Lyman, 2 Joh. 179, nt. Darland v. Lumnis, 4 Do. 421. Holden v. Dakin, 5 Do. 354, 404. Consequently judgment must be entered on the verdict.” (See also O’Neal v. Bacon, 1 Houston (Del. Rep.) 215; Bryant v. Pember, 45 Vt. 487.)

The defense of want of consideration for a note is not available where it appears that the payee sold stock in a certain business to the maker, even though the stock was not as valuable as the purchaser thought, or was worthless, there being no evidence of fraud. (Crowther v. Bell, 190 Ill. App. 48.) Where property is the consideration of the note there can be no failure, except there be a warranty or fraud. (Leggat v. Sands’ Ale Brewing Co., 60 Ill. 158. See also Kerney v. Gardner, 27 Ill. 162, 168, 169; Newcomb v. Newcomb, 239 Ill. App. 256, 262.)

“It is not a subject of inquiry whether the contract was wise or unwise on the part of the appellant, or whether it was profitable or unprofitable. It is enough to know that the contract was fairly made in reference to a subject about which it was lawful for the parties to contract.” (Townsend v. Water Com’rs, 63 Ill. 26, 29. See also Myers v. Turner, 17 Ill. 179, 183.)

A general rule followed in cases of this character is that a failure of benefit resulting from the consideration does not, in itself, constitute a failure of consideration.

We find, as a fact, that the note in question was not a gift, and we further find, as a fact, that there was a consideration for the same. Under the admitted facts and the law the claim of appellant must be allowed. The entire principal ($4,000) is still due claimant. In addition there is interest at seven per cent due him from October 1, 1932, to date, amounting to $560. Under section 89 of the new Practice Act no further findings of fact are necessary. Cahill’s St. ch. 110, ¶ 217. The judgment of the circuit court of Cook county is reversed and judgment is entered here in favor of appellant, Henry F. Reese, and against appellee, estate of Eugene N. Berbecker, deceased, in the sum of $4,560.

Reversed, and judgment in this court in favor of appellant, Henry F. Reese, mid against appellee, Estate of Eugene N. Berbecker, deceased, for $4,560.

GtRidley, P. J., and Sullivaw, J., concur.