text:
    Norman Cohen et al., Appellees, v. North Avenue State Bank et al., Appellants.
    Gen. No. 39,519.

      Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    Campbell, Clithero & Fischer, of Chicago, for appellant Frank P. Ross. Alden, Latham & Young, of Chicago, for appellant J. S. Duncan. Schuyler, Weinfeld & Hennessy, of Chicago, for appellant Daniel J. Schuyler, Jr.; Jay Stough and Lawrence Nelson, Jr., both of Chicago, of counsel.
    Jacobson, Merrick, Nierman & Silbert, Isidore Brown, Decker & Golden, Owen, O’Malley, McKeown & Allan, Harold L. Perlman, Marvin J. Welfeld, Irving Goodman, McCarthy & Toomey and Isador Becker, all of Chicago, for appellees; Irving Goodman, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court. .

This suit in equity is brought by creditors of the North Avenue State Bank on behalf of themselves and other creditors against former and final stockholders of the bank, to enforce the superadded constitutional liability of the stockholders. The bank was closed by the State Auditor June 18, 1932. The State Auditor, July 11, 1932, which was prior to the filing of the complaint in the instant case, had filed a suit in the circuit court of Cook county for the liquidation of the bank.

The cause was referred to a master who took the evidence and made up his report. He found certain past and present stockholders of the bank were liable for specific amounts and recommended a decree in accordance with his finding. A decree was ' entered substantially as recommended by the master, from which three of the former stockholders of the bank, J. S. Duncan, Daniel J. Schuyler, Jr., and Frank P. Boss prosecute this appeal.

The record discloses that Duncan owned 10 shares of the stock of the bank from September 18, 1906, to March 3, 1920, and the unsatisfied liabilities of the bank accruing during such time were $24,629.74; that Schuyler owned 25 shares' from July 12, 1910, to September 9, 1920, and the unsatisfied liabilities accruing during such time were $31,534.44; that Boss owned 255 shares at various periods of time from February 10, 1920, to February 9,1923, and the unsatisfied liabilities accruing during* such time were $45,598.39. The par value of the stock was $100 a share, and under the facts above stated Duncan would be liable for $1,000, Schuyler for $2,500 and Boss for $25,500 sec. 6, art. 11, Constitution of 1870; Golden v. Cervenka, 278 Ill. 409) unless some of the contentions of the three defendants (which will hereinafter be referred to) are sustained. The master recommended that a decree be entered fixing* the amounts for which the three defendants were severally liable as above stated; the chancellor decreed that Duncan and Schuyler were liable for the amounts as found by the master, and that Boss was also liable for $25,500, but since the receiver in the suit brought by the Auditor in the circuit court had paid two “dividends” aggregating* 50 per cent, Boss was decreed to pay $22,516.16, being the then net amount of the unsatisfied liabilities of the bank which accrued during the time he held the stock. Complainants have taken a cross-appeal as to the amount Boss was decreed to pay, contending that it should have been $25,500.

Each of the three defendants who appeal has filed a separate brief, which does not simplify or make clear the issues presented because each of the three raise many of the same points.

The three defendants contend that the right of action claimed against them is barred by the 10-year Statute of Limitations because they had disposed of their stock in the bank more than ten years before the instant suit was brought. While neither the Appellate nor ■' the Supreme Court of this State has squarely passed on this question, we think the contention cannot be sustained. It has been held that the cause of action of the creditors of an insolvent bank against the stockholders does not accrue until the bank suspends business and refuses to pay its depositors. Sanders v. Merchants State Bank, 349 Ill. 547; Golden v. Cervenka, 278 Ill. 409; Heine v. Degan, 362 Ill. 357.

In the Sanders case the court said (pp. 563-564): “The contract of the bank with each depositor is to pay the money deposited on demand made at its banicing house, in such sums, at such times and to such persons as the depositor may direct. (Citing cases.) Until demand the depositor can maintain no action against the bank and therefore has no cause of action. The stockholder is liable to the same extent as the bank — that is, to pay upon demand money of the bank in such sums, at such times and to such persons as the depositor may direct. He can be held on no other terms and no action can be maintained against him until demand made on the bank. The stockholder is under no stricter liability than the bank, but under the constitution his liability is identical with the liability of the bank during the time he remains a stockholder and not something different.” Three of the justices dissented on another point in that case, but agreed with the majority on the question now under consideration. After quoting the provision of our constitution imposing liability on stockholders of a bank they said (p. 572): “We hold the liability of a stockholder becomes an absolute liability to the creditors of the bank when the bank refuses or neglects to pay its liability or obligation at the time and place where it is obligated to do so, or has suspended business, and is unable to pay its liability and obligations by reason of its insolvency. . . . It is stated in the decision of the court that no action can be maintained against the stockholder until demand has been made upon the bank for payment. We all agree, however, that the liability of all the stockholders in this case became absolute to the creditors and obligees of the bank on December 8,1930, because of the fact that on that date the bank suspended business and closed its doors.” In the instant case suit was brought within a year after the bank closed and under the holdings of our Supreme Court the action was not barred.

Defendant Duncan also contends that the liability of stockholders of a bank imposed by the Constitution and the statutes cannot be enforced “because no standard of measurement is provided by which the amount of such money can be ascertained. ’ ’ This contention cannot be entertained by this court because it has often been decided adversely to Duncan’s contention by our Supreme Court in the Golden, Sanders and Heine cases. As stated, each of the defendants was held to be liable for the unsatisfied liabilities of the bank which accrued during the respective times they held their stock, to the extent of the par value of their stock. The unsatisfied liabilities accruing while Duncan and Schuyler held their stock, after deducting the 50 per cent dividends paid in the liquidation suit in the circuit court, was several times more than the par value of their stock. The liabilities which accrued while defendant Eoss held his stock, after this sum was reduced by applying the 50 per cent dividends, were less than the par value of the stock held by him, which was $25,500. The unsatisfied liabilities which accrued while Eoss was a stockholder were $45,032.32; the chancellor deducted from this amount the 50 per cent dividends, leaving a balance of $22,516.16, for which amount Eoss was held liable.

In determining the amount of the liabilities which accrued during the respective times the three defendants held stock, the rule in Clayton’s Case (1 Meriv. 572) was applied, which is referred to in the briefs as “first in first out rule.”

Tn the Heine case (362 Ill. 357) the court said (p. 373): “the rule that presumably the first money paid in was the first paid out, laid down in Clayton’s Case, 1 Meriv. 572, and approved in People v. Tallmadge, 328 Ill. 210, Sanders v. Merchants State Bank, 349 id. 547, 558, will not work injustice. ’ ’

Counsel all agree that this is the proper rule. But counsel for defendant Boss contend that this same rule is applicable to the distribution of the dividends paid by the liquidating receiver, and that applying the rule in the distribution of the 50 per cent dividends, the unsatisfied liabilities of the bank, of $45,032.32, which accrued while Boss held the stock, would be reduced to $6,737.85, as found by the decree, and that this sum is the greatest amount Boss can be held liable for in any circumstance. The chancellor held, as a matter of law, that in the distribution of the 50 per cent dividends the rule in Clayton’s Case was not applicable, and with this we agree. Section 6 of art. 11 of the Constitution of 1870 provides that every stockholder in a banking corporation shall be individually liable to its creditors over and above the amount of stock held by him, to an amount equal to the shares he holds, “for all its liabilities accruing while he . . . remains such stockholder.” Section 11 (chap. 16a, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 10.11) provides for the liquidation of a State bank by the auditor of public accounts through the appointment of a receiver; that “From time to time the Auditor of Public Accounts shall make a ratable dividend of the moneys collected by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such bank are collected, shall make further dividends on all claims previously proven or adjudicated”; that the receiver shall, after the expiration of 12 weeks, file with the. clerk of the court in which the liquidation suit is pending “a correct list of all creditors of sáid bank, as shown by its books, who have not presented their claims and-the amounts of their respective claims after allowing all just credits, deductions and set-off's as shown by the books of said bank. . . . After one year from the final dissolution of the bank, the Auditor shall make a pro rata distribution thereof to those claimants who have accepted dividends until such claim or claims are paid in full, and if any of said moneys shall then remain in his hands, the Auditor shall distribute the same pro rata to the stockholders.”

In the Heine case (362 Ill. 357) the court said (pp. 368-369): “With regard to the distribution of money collected from stockholders two constructions may be made. Under one construction a stockholder’s liability is limited by, first, the par value of his shares, and second, by the total amount of ‘liabilities accruing while he or she remained such stockholder, ’ and the money would be distributed ratably to all of the creditors of the bank. Such a construction makes the latter part of the section, ‘to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder, ’ a measure of the liability rather than a designation of what creditors are entitled to share in the money due. The definition of those entitled to share in the money recovered from a stockholder is thus restricted to the first clause, ‘ Every stockholder in a banking* corporation or institution shall be individually responsible and liable to its creditors. ’ This construction places all creditors on an equal footing.

“The second construction would make a stockholder pay liabilities of the bank incurred while he was such' stockholder for the benefit of those creditors, alone, whose claims accrued during his ownership.” And it was held this latter construction was not tenable. Continuing the court said (p. 371): “It was doubtless the object and purpose of the framers of the constitution of 1870 that all claims arising under section 6 of article 11 should be regarded as being for the benefit of all the creditors of the bank, ratably, in case the bank became insolvent. This carries into effect the principle that ‘equality is equity,’ and will avoid a large measure of perplexing difficulties that otherwise arise in making distribution.”

Under section 11 of the statutes above referred to, and other authorities, we are clearly of opinion that the money collected by the receiver in the liquidation suit, whether from the stockholders of the bank or from other resources of the bank, must be distributed ratably to all of its creditors, diving defendant Boss the full benefit of the 50 per cent in dividends reduces the liabilities of the bank incurred while he owned the stock to $22,516.16, and it was decreed that he was liable for this amount and not for the face value of his stock, viz., $25,500. We think this Avas in accordance with the law. Burket v. Reliance Bank & Trust Co., 366 Ill. 98; same case, Appellate Court Second District, opinion by Mr. Justice Wolfe, Schwartz v. Broadway Tr. & Savings Bank, 291 Ill. App. 460.

In the Burket case, Avhich was a suit brought to enforce a constitutional liability of the stockholders of a defunct State bank, the court said (p. 100): “Both sides agree to the principle that a stockholder’s liability in a defunct State bank is measured by the unsatisfied liabilities which accrued during the period of stock ownership, subject to the limitation that the stockholder’s liability shall not exceed the par value of the stock held by him. In ascertaining the liability of an individual stockholder, the court in which the representative suit is pending must ascertain two primary facts: First, the aggregate amount of liabilities Avhich accrued while the stockholder held his stock, and, second, the par value of the shares of stock so held by him. Without the existence of unsatisfied claims, which accrued while he remained a stockholder, he is under no liability to the bank’s creditors at all. . . . If a group of contemporaneous stockholders pay to the receiver in the creditor’s suit a sum equal to all the liabilities incurred during the contemporaneous ownership, their liabilities are satisfied, and there is no warrant of law to compel that group to pay to the receiver, for the benefit of creditors, a sum greater than the aggregate of liabilities incurred by the bank while that group were the stockholders.” The Supreme Court transferred the case to the Appellate Court because there was no constitutional question involved which had not theretofore been settled by the decisions of that .court. The Appellate Court held that since a group of contemporaneous stockholders paid to the receiver in the liquidation suit a sum equal to all the liabilities incurred during the contemporaneous ownership, one of such contemporaneous stockholders who had paid nothing could not be held liable in the representative suit brought on behalf of the creditors of the bank against the stockholders, following the clear reasoning of the Supreme Court in its opinion transferring the case.

The court authorized the receiver in the instant case to employ an auditor to examine into the affairs of the bank. He examined the bank records to ascertain unsatisfied liabilities up to the day the bank closed. Exhibits were prepared by him showing' the result of his work, and he testified before the master that he made no examination of the loan and discount register of the bank to ascertain its assets, and whether the bank held any off-sets against any of the creditors of the bank. He began his audit in March, 1933, and completed it in July of the same-year. The court, in the liquidation suit authorized its receiver to allow certain set-offs between the bank and certain of its creditors, and further authorized the receiver to pay a dividend of 45 per cent and another of 5 per cent, which has been done. After this, in 1935, the auditor employed in the case at bar testified that he examined all of these orders and checked them with the loan and discount register of the bank to see that they were correct, and gave credit accordingly. The exhibits which were prepared and the books of the bank, from which he derived information, were received in evidence over defendants’ objection that they were not competent because his computations were not based upon an examination of the whole collection of the records of the bank, but only upon a part of them. And counsels’ further argument, as we understand it, is that any off-sets the bank held against its creditors should have been taken into account by the auditor, that this was necessary to determine the unsatisfied liabilities of the bank which accrued during the time defendants held stock in the bank, and that this not having been done by the auditor, his evidence should have been excluded. We think this contention cannot be sustained. The proper place for the allowance of off-sets was in the liquidation suit, and although defendants were not parties to that suit they would be bound by the orders there entered. In the instant case the auditor making* the examination of the bank records would not be in a position to pass on the validity of off-sets. And the fact that the bank had assets which might ultimately be liquidated to pay the creditors in full is not a defense in the case before us. Heine v. Degen, 362 Ill. 357, and Comstock v. Morgan Park Trust & Savings Bank, 287 Ill. App. 613 (Abst.). In the Heine case it was held that it was not error to deny defendants’ motion to proceed without first allowing claims of creditors to be proved. The court in the Heine case said (p. 373): “It is not a prerequisite that all claims to be proved by the creditors in order to determine the amounts owing* by the individual stockholders who are primarily liable.” And continuing* the court said (p. 379): “We reviewed the authorities in that decision, and from what it contains there can be no question that the cause of action here is contractual. The liability is a primary one imposed by the constitution and the statute, and is read into the contract of purchase, by operation of law, whenever a share of stock is bought.”

The bank having gone into liquidation and a suit having been brought by the auditor for such purpose, the statute authorized creditors of a bank to bring the instant suit — a representative suit — against the stockholders. Sec. 11, chap. 16a, Ill. State Bar Stats. 1935, Jones Ill. Stats. Ann. 10.11. The fact that the assets of the bank may ultimately pay all of the liabilities does not prevent the prosecution of a suit against the stockholders. From what we have said, we think the evidence objected to was properly received in evidence.

Complainants have prosecuted a cross-appeal contending that the “decree against defendant Boss should be increased from $22,516.16 to $25,000, ’ ’ because after applying the dividends of 50 per cent, the unsatisfied liabilities of the bank amounted to more than $848,000, and that the defendant Boss is not entitled to have the dividends applied to reduce his liability. In support of this the case of Comstock v. Morgan Park Trust & Savings Bank, decided by this court and above mentioned, is cited. In that case we held that if the stock liability there sought to be enforced was collected in full, this amount, together with the other assets of the bank, would be wholly insufficient to pay the creditors, and that if the dividend of 25 per .cent paid by the liquidating receiver in that case were credited, the unpaid liabilities would still be more than $500,000. What we have hereinbefore said disposes of the contention that the dividends should not have been allowed to reduce the unsatisfied liabilities of the three defendants.

But counsel for complainants further say that Boss should be required to pay the $25,500, being the par value of the stock formerly held by him, because section 2 of our Interest Act provides that creditors shall be allowed 5 per cent per annum on all moneys after they become due; that giving Boss the benefit of the 50 per cent dividends on the $45,032.32 leaves unsatisfied liabilities which accrued during thn time he held the stock, as found by the decree, of $22,516.16, and that “5% of the latter sum for five years” (the period that elapsed since the insolvency of the bank) makes the amount due more than the $25,500. There is no merit in this contention. In equity, interest is allowed because of equitable circumstances, and is given or withheld as, under all the circumstances of the case, seems just and equitable. Golden v. Cervenka, 278 Ill. 409. We think it would be highly inequitable to require Boss to pay 5 per cent interest where he had sold his stock in the bank 10 years before it became insolvent.

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

Decree affirmed.

McSurely and Matchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Charles F. McKinley, Appellee, v. City of Chicago, Defendant. Samuel Heller, Appellee, v. City of Chicago, Defendant.
    Gen. No. 39,311.

      Heard in the first division of this court for the first district at the February term, 1937.
    Opinion filed October 18, 1937.
    Barnet Hodes, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    McKinney, Folonie & Grear and Deneen & Massena, both of Chicago, for appellees; Hayes McKinney, Donald N. Schaffer and Jeffrey Shedd, all of Chicago of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs McKinley and Heller were associate judges of the municipal court of Chicago. They sued to recover portions of their salaries alleged to be unpaid. The complaint in each case contained three counts. The first claimed for the salary of the office during the period of time when it was, in fact, occupied by another. The second count claimed on account of unexpended appropriations for the judges of the municipal court, specifically mentioning vacancies due to deaths and resignations, which resulted in such unexpended appropriations. The third count was similar to the second with the exception that specific vacancies were not mentioned, the pleader relying’ on general allegations. The defense averred was that during the period of time for which plaintiffs sued their respective offices were occupied by judges de facto, who performed the duties of the offices, held the certificates of election and were paid by defendant. The cause was tried by the court. There was a finding for McKinley in the sum of $15,828.30, with judgment. There was a finding for Heller in the sum of $3,803.26, with judgment. The finding in each case was based upon the theory that defendant was liable only to the extent of unexpended appropriations as alleged in the second and third counts, and the amount recovered was so limited. Defendant contends it is not liable at all and appeals. Plaintiffs contend defendant is liable for the amount of their salaries less actual payments made to them personally and have filed a cross appeal.

The uncontradicted facts show that the controversy arose in this way: McKinley was'one of the candidates for the office of judge of the municipal court of whom 12 were to be chosen at an election held November 4, 1930, to serve for a term of six years, beginning Monday, December 1, 1930. The canvass, upon the face of the returns, indicated that McKinley was not elected and that George G. McIntyre was elected. McIntyre was so declared, obtained the certificate, took the oath of office, assumed the duties of and occupied the office until his death July 15, 1934. December 10, 1930, MeKinley filed Ms petition in the county court of Cook county to contest the result of the election. On August 1,1934, he obtained a decree in his favor; he thereupon was declared elected, was assigned to his duties as an associate judge of the court, and thereafter was paid the amount of his salary, $10,000 a year. On this appeal he claims for salary at the rate of $10,000 a year from December 1, 1930, the beginning of his term of office, until August 2, 1934, a period of three years, eight months and one day.

Heller was a candidate for the office of associate judge of the municipal court at an election held November 8, 1932, at which, also, 12 associate judges of the municipal court were to be chosen for a term of six years beginning Monday, December 5, 1932. The canvass of the returns indicated he was not elected. His nearest competitor was Irwin J. Hasten, who was declared elected, was given the certificate, qualified, assumed the duties of the office and occupied the same from December 5, 1932, until December 4, 1933. December 3, 1932, Heller filed his petition in the county court to contest the election. December 1, 1933, a decree in his favor was entered. In this suit Heller claims for salary at the rate of $10,000 a year from December 5, 1932, to December 4, 1933, a period of one year. As in the McKinley case, the defense presented was that payment was made by the city to Hasten, who was a de facto judge actually occupying the office and holding the certificate of election. As to both cases the city claimed that the payment was made in good faith. The question squarely presented on the record is whether a judge of the municipal court actually elected can recover his statutory salary for a period of time during which a competitor, who was proclaimed elected and received the certificate giving’ him color of title, entered into and performed the duties of the office, was paid the salary of the office by the municipality.

This question, so far as it concerns a judicial office, has not been passed upon in any case in so far as we are informed by the briefs. However, the question as concerning positions and offices generally has been considered often in different jurisdictions with conflicting and confusing results. Dolan v. New York, 68 N. Y. 274; Andrews v. Portland, 79 Me. 484, 10 Am. St. Rep. 280; Stuhr v. Curran, 44 N. J. Law 181; Rasmussen v. Commissioners of Carbon County, 8 Wyo. 277; State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 725, 7 S. W. (2d) 357; City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N. E. 280; State ex rel. Greeley v. Milne, 19 L. R. A. 689; People v. Smyth, 28 Cal. 21; Board of Auditors v. Benoit, 20 Mich. 176; 22 R. C. L. 41, sec. 240; Corpus Juris, vol. 33, p. 958.

A discussion of these cases in detail is quite impracticable, but an examination of a few of them may result in a better understanding of the decisions of our own courts, which, in the last analysis are, of course, determinative.

The leading case holding that a de jure officer may not recover in such cases is Dolan v. New York, 68 N. Y. 274. In the Dolan case the position involved was that of assistant clerk of the district court. The court said, People v. Flynn, 62 N. Y. 376, was decisive in favor of the plaintiff’s title but that the appointment of the de facto officer, Keating (coupled with occupation) made him an officer de facto; that while the de facto officer could not maintain an action against the municipality for his salary because the right to the salary attached to the true and not the colorable title, actual incumbency merely gave no right to the salary or compensation; that if the occupant obtained the compensation he would be liable to the de jure officer therefor. However, if the city could lawfully pay the salary to the de facto occupant, it could not be required to pay it a second time. The ground for the decision was public policy. It was said the fiscal officers could not safely perform their duties unless they could rely upon the apparent title of officers in making payment, and that under a contrary rule it might not be possible to get persons to perform official duties.

In the States which follow Dolan v. New York, the reasoning of that opinion has been adopted. The leading case to the contrary is Andrews v. City of Portland, 79 Me. 484, 490, 491, 10 Am. St. Rep. 280. There the plaintiff city marshal was illegally removed and another appointed, who performed the duties and was paid the salary. The plaintiff officer was reinstated by the courts. He sued the municipality to recover his salary which had been paid to his successor. The court said the salary followed the title to the legal office; that an office, while primarily an agency for public purposes, had a pecuniary value; that the right' of the salary followed the legal title; that the fact that another was exercising the duties of the office under a color of title could make no difference; that A, who held a fund claimed by both B and C with notice of their claims, if he elected to pay one of them,' did so at his peril. The opinion said that the cases were irreconcilable. In that case, the question was raised as to whether defendant was entitled to offset any amount earned by the plaintiff during the period in question by his personal labor. The court said no, because the right to salary was not by contract but by statute.

In Freeman’s note to this case, 10 Am. St. Rep., all the cases are reviewed and stated to be irreconcilable. The annotator states that in Dolan v. New York and cases following it is placed on the ground partly that the do facto officer has no property right in his office and that compensation depended upon actual performance of services. The annotator affirms that none of the reasons given for the rule are well taken. He says: “If it is true, as. must be admitted, that an officer de jure, though he performs none of the duties of the office, may maintain an action against the officer de facto for fees or salary actually collected by him, or against the city or county, for salary accruing during the incumbency of the officer de facto, but not in fact paid to him, then it must be that the officer de jure has some property rights in the emoluments of the officé, and that these rights are not dependent upon his performance of its duties, but upon his title to the office, and it is difficult to understand how the wrongful payment of his salary to a person not entitled to receive it can, in any respect, impair his right to recover it, as though no payment whatever had been made. ’ ’

The Supreme Court of Michigan divided upon the question in Board of Auditors v. Benoit, 20 Mich. 176. The office there involved was that of county treasurer. Miller was declared elected and occupied the office until ousted at the suit of Benoit who thereafter held for the remainder of the term. A majority of the Supreme Court held that a person bolding the indicia of title was a legal officer until ousted so far as his official acts were concerned, that there could not be two incumbents of the office at one and the same time, that the only inquiry that could be made was by quo warranto, and that until the incumbent was ousted no other could enjoy the office. The doctrine of the validity of the acts of the officer de facto, the opinion stated, had been carried as far as possible, and People v. Smyth, 28 Cal. 21, was said to have no reasoning of its own and not to be warranted on principle. The dissenting opinion was by Judge Cooley, who pointed out that whether the acts of a de facto officer are valid or void depends on the purpose for which they are considered, that the public, whose necessities cannot await the slow process of litigation, has a right to treat as valid the official acts of the incumbent, with whom alone, under the circumstances, they could transact business. While this rule was obvious and necessary for the protection of organized society, the dissenting opinion said that the party himself, who had usurped a public office, was never allowed to build up rights or shield himself from responsibility on no better basis than his usurpation. It cites with approval the language in Riddle v. Bedford, 7 Serge and Rawle 386, to the effect that the sound distinction is “that the office is void as to the officer himself, but valid as to strangers.” The dissenting opinion said that there were no cases in conflict with these decisions; that Miller had not a shadow of claim to compensation and could not enforce payment by law; that when the auditors paid him they did so without legal compulsion and without necessity; and that the same rule or policy, which precluded Miller’s right to the office being tried in a collateral proceeding to which he was a stranger, would preclude the settlement between Miller and the auditors being used to his prejudice. People v. Smyth, 28 Cal. 21, was said to be directly in point and sustainable “on the soundest reasons of public policy.” Judge Cooley said: “A wrong is done to society and to public order in every instance in which the usurpation of a public office takes place; and the rules of law ought to be such as to give the greatest possible discouragement to such a proceeding. The county authorities, in a case like this, ought not to be told that they may countenance the intrusion with impunity, and deliver over to a usurper the emoluments of an office to which he-has neither a legal nor a moral claim. Such a rule encourages usurpations, and tends to lower the standard of public morality. ’ ’

That Benoit had a remedy by suit for damages against Miller he said was no answer.

The result of all decisions seems to be well summarized by the editor of L. R. A., 19 L. R. A. 689, in the statement that while the larger number of jurisdictions follow Dolan v. New York, a very respectable number follow the other rule, which “seems to be the clearer in reason, and the weight of authority against it is by no means overwhelming.” In the recent edition of McQuillin on Municipal Corporations, vol. 2, sec. 537, p. 234, the tendency of recent cases is summarized in the statement, “However, the more reasonable rule has often been applied, namely, allowing the de jure office the salary from the public fund, although it has been received by the de facto officer.” In some States the problem has been solved by the enactment of statutes which, in case of a contested election, requires that payment of salary shall be withheld and that any payment made is at the peril of the municipality. Wynne v. Butte, 45 Mont. 417, 123 Pac. 531.

The first and leading case in Illinois bearing on this question is Mayfield v. Moore, 53 Ill. 428, decided at the January term of the Supreme Court, 1870. May-field and Moore were candidates for the office of sheriff of Morgan county at an election held November 6, 1866. The canvass indicated that Moore was elected. He received the certificate and his commission, entered upon the duties of the office and continued to occupy the same from November 17, 1866 to January 13, 1868. Soon after the result was proclaimed Mayfield gave notice of contest and was finally declared by decree of the circuit court of Morgan county to have been elected. Moore sued out a writ of error in the Supreme Court, which was afterward dismissed, and thereupon Mayfield was commissioned and entered upon the duties of his office. Thereafter Mayfield sued Moore to recover the fees and emoluments of the office received by Moore while acting as sheriff. Upon the trial Mayfield offered to prove the amount of moneys received by Moore while he exercised the duties of the office, but the court limited plaintiff’s evidence to proof of sums received after the judgment rendered in favor of Mayfield by the circuit court. The plaintiff therefore recovered only $34.55 and, claiming more, appealed to the Supreme Court which held that the fees and emoluments belonged to plaintiff Mayfield, The court said: “The fees of an office are incident to it as fully as are the rents and profits of lands, the increase of cattle, or the interest on bonds or other securities.

“A person owning any of those things is, by virtue of such ownership, equally entitled to the issues and profits thereof as to the thing itself. . . •.

" In adopting the time-when the circuit court deaided that appellant ivas entitled to the office as the period from which he was entitled to have the fees and emoluments of the. office, the circuit court erred. That decision was no more potent to confer the right to the office than was the decision of the three- justices of the peace. It, as we have seen, was not the decision but the vote of a majority of the electors of the county, that conferred the right. The court, on the evidence, found and declared the title, but did not confer it. We have seen that appellant was entitled to the office and its emoluments from the time appellee entered into it, and became liable to account for them from that date until he ceased to act and receive the fees and perquisites of the office.”

In Kreitz v. Behrensmeyer, 149 Ill. 496, the parties were candidates for the office of county treasurer of Adams county, at an election held in November, 1886. Kreitz was declared elected by a plurality of 14 votes, received the certificate of election and commission, qualified and entered upon the duties of the office and so continued until -his death in 1890. Behrensmeyer contested, and in Behrensmeyer v. Kreitz, 135 Ill. 591, the Supreme Court adjudged that he had been elected by a plurality of eight votes. (See also Kreitz v. Behrensmeyer, 125 Ill. 141.) April 6,1892, Behrensmeyer filed a claim- in the county court -against the estate of Kreitz to -recover fees and salary received by Kreitz while he occupied the office. There was a finding for plaintiff in the sum of $7,333, with judgment to be paid in the due course of administration. The administratrix appealed to the Supreme Court and argued that the case should be considered as of first impression, regardless of Mayfield v. Moore, which had been decided under the Constitution of 1848. The estate contended that a different rule should obtain under the Constitution of 1870. The Supreme Court, after pointing out that there was no controlling statute, said that the common law of England was in force in Illinois, that the decisions of the courts were uniform to the effect that a de jure official has a right of action to recover against a de facto officer by reason of his intrusion into the office and the receipt by him of the emoluments thereof. The opinion cites with approval Vaux v. Jefferson, 2 Dyer 114; Arris v. Stukely, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Webb’s case, 8 Rep. 45. In affirming the judgment the court said:

“We do not desire to enter on a discussion of the question as to whether it is a hardship on Kreitz or his estate that he should be held to receive no compensation for his services, for however great that hardship may be, the rule of law has been long settled in this State that the de jure officer may recover the fees or salary paid to a de facto officer. The rule is in accord with a sound public policy. Its tendency is, that there would be less danger or frequency of usurpation or intrusion into an office. Its tendency is to cause greater caution in and purify elections, as one with such danger attendant on illegal voting would abstain from encouraging it. Its tendency is to cause a careful investigation into the right to an office, where a notice of contest is served and petition filed. Public interest is in accord with private right when it is held that one lawfully elected to an office, and deprived of the office by another, may recover the salary or fees attendant on the office. The rule is not changed by reason of one holding a certificate of election and entering in good faith, under a mistaken belief of right. ’ ’

In Bullis v. City of Chicago, 235 Ill. 472, it appeared that on March 14, 1898, Bullis was appointed a patrolman and served as such until November 1, 1903, when he was suspended under charges and thereafter, on January 5, 1904, was discharged. These proceedings were quashed on certiorari brought in the superior court and the judgment of the superior court was affirmed by the Supreme Court. Bullís, on June 1, 1906, was reinstated. He then sued for salary covering the period from his suspension until his reinstatement. Upon trial by the court there was a finding and judgment in his favor, which was affirmed by the Appellate Court. Upon further appeal to the Supreme Court that court said that if plaintiff claimed the salary for an office, it was incumbent upon him to show the legal existence of the office and his right to hold it, that the office did not exist at common law and if it existed was the creation of a statute or ordinance. The judgment was reversed because of lack of proof of the existence of the office. Upon trial the city asked the court to hold as a propostion of law that it was entitled to reduce its damages to the extent of the money which was or might have been earned or received by the plaintiff during the period of time covered by the suit. The trial court refused to so hold and the Supreme Court approved this ruling. The court said: “If appellee was wrongfully prevented from performing the duties of his office he may recover his salary for the time during which he was so prevented, where it has not been paid to anyone performing the duties of the office. His earnings or opportunities to earn during that time were immaterial. City of Chicago v. Luthardt, 191 Ill. 516; Andrews v. Portland, 79 Me. 484; State v. Carr, 129 Ind. 44; Rasmussen v. County Commrs., 8 Wyo. 277.”

In the later case of People v. Bradford, 267 Ill. 486, a petition was filed in the circuit court in the name of the People, praying a mandamus to compel the officials of the city of Ottawa to pay Bradford his salary as commissioner, to which office he had been elected. An answer and pleas were filed to the effect that plaintiff had failed and refused to perform the duties of his office and had abandoned it, and that the council was without authority to vote him a salary. Plaintiff demurred to the answer, and the court sustained the demurrer and gave judgment for the plaintiff, which was approved by the Appellate Court, and a certificate of importance granted to the Supreme Court.

It was there argued for the defendant that there was no warrant in law for allowing a salary to a commissioner who had not discharged the duties of his office, and that plaintiff had abandoned his office and thereby forfeited the salary. The Supreme Court said: “The law is well settled in this State that the right to the salary is attached to and follows the legal title to the office. This is true irrespective of the question by whom the services were, in fact, actually rendered. (Mayfield v. Moore, 53 Ill. 428; Waterman v. Chicago and Iowa Railroad Co., 139 id. 658; Kreitz v. Behrensmeyer, 149 id. 496; City of Chicago v. Luthardt, 191 id. 516; Bullis v. City of Chicago, 235 id. 472.) In City of Chicago v. Lu,thardt, supra, it is said: ‘The legal right to the office carries with it the right to the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the courts that authorities hardly need be cited. ’ While this rule has been most frequently announced and applied in suits between de jure and de facto officers over the salary to an office, it is nevertheless a basic principle of law and one of general application. It has been so applied not only in cases of protracted absence and nonperformance of duties (Bryan v. Cattell, 15 Iowa, 538), but in cases of actual suspension from office. (Wardlaw v. Mayor of New York, 137 N. Y. 194; 33 N. E. Rep. 140; City of Chicago v. Luthardt, supra.)

In People v. Coffin, 279 Ill. 401, Clarence Blachly filed a petition ag'áinst the civil service commissioners of the city of Chicago and other officials of the city, to compel his reinstatement as superintendent of the bureau of social surveys in the department of public welfare and for the payment of his salary from the date of his removal therefrom to the date of his reinstatement. A general demurrer to the petition was overruled. Respondents elected to stand by the demurrer and judgment was entered, which the Appellate Court affirmed. The Supreme Court granted certiorari. In the opinion in the case, filed June 21, 1917, rehearing being denied October 3, 1917, the court said: “If a person has been wrongfully prevented from performing the duties of his office he may recover his salary by an action at law for the time during which he was so prevented where it has not been paid to anyone performing the duties of the office. (Bullis v. City of Chicago, 235 Ill. 472.) Whether in snch case he may recover from the municipality the salary which has been paid to a de facto officer who has performed the duties of the office while the de jure officer has been prevented from their performance is a question about which there is a conflict of authority. In Dolan v. Mayor, 68 N. Y. 278, and Waggoner v. City of Louisville, 117 S. W. Rep. 283, a recovery was denied, while in Andrews v. Portland, 79 Me. 484; State v. Carr, 129 Ind. 44, and Rasmussen v. Commissioners of Carbon County, 8 Wyo. 277, it was allowed. In . . . People v. Stevenson, 270 id. 569, writs of mandamus were awarded requiring the reinstatement of the relators in the service of the State, from which they had been illegally discharged, and the payment of their salaries for the time during which they had been illegally prevented from performing their duties. This was done without regard to the question whether the State had paid their salaries to other persons illegally appointed in their places or not. The legal right to an office carries with it the right to the salary which is incident to the title to the office and not to its occupation and exercise. (Bul lis v. City of Chicago, supra.) No obstacle exists to the granting of complete relief in one proceeding. The right of the defendant in error to his salary is as clear as his title to the office.”

In People v. Schmidt, 281 Ill. 211 (opinion filed December 19, 1917) it appeared that Sartison, the relator, filed an amended petition for mandamus in the circuit court of Sangamon county, in November, 1916, in which he set up that prior to July 1, 1911, he held the position of grain helper in the State grain inspection office and so continued until September 1, 1915. That on August 15, 1915, he received a letter from the deputy chief inspector discharging him and informing him that charges had been filed against him before the State Civil Service Commission. He, however, reported for work every day but after September 1,1915, he was not allowed to work. On that date he received a copy of the charges against him. On January 28, 1916, he received from the commission a copy of an order stating that on account of the decision in People ex rel. Baird v. Stevenson, he had been reinstated and could resume his work on February 1, 1916. The relator prayed that his name be placed on the pay roll and respondents required to pay him for the time he had been illegally laid off. The respondents answered admitting the discharge and restoration but averred that from September 1, 1915 until February 5, 1916, James A. Eouth, who was eligible under the State Civil Service Law as a grain helper, was appointed by the proper officials to that position, that Eouth did the work and received the pay from September 1, 1915, to February 15, 1916, that no other money had been appropriated that could be used to pay relator other than the money paid to Eouth. Sartison had judgment in the trial court. On appeal to the Supreme Court, that court said that Eouth held the ‘‘office or position” de facto, and that the general rule was that if the payment of the salary or other compensation had been made by the government in good faith to the officer de facto while he was still in possession of the office, the government could not be compelled to pay a second time to the officer de jure if he had recovered the office, at least where the officer de facto held the position by color of title. The opinion cites Mechem on Public Offices and Officers, sec. 332, and McQuillin on Municipal Corporations, sec. 518, but said that the rule was not followed in all jurisdictions, and that “the authorities are in hopeless conflict on the question whether the de jure officer can recover from the public authorities the salary that has been paid in good faith to the de facto officer.” The opinion pointed out Dolan v. New York, 68 N. Y. 274, and quoted, apparently with approval, from the reasoning of that case. The opinion also cites Board of Auditors v. Benoit, 20 Mich. 176, and concludes : “This court has never been called upon to pass on this precise question. (See reasoning in Mayfield v. Moore, 53 Ill. 428.) ”

The opinion then points out that in City of Chicago v. Luthardt, 191 Ill. 516, the opinion of the court stated that the duties of the office held by plaintiff, who was a sergeant of detectives, had been performed by one Joyce, who did not appear to have been paid the salary. Also quotes the statement in Bullis v. City of Chicago, 235 Ill. 472, that if a party was wrongfully prevented from performing the duties of his office he might recover his salary for the time he was thus prevented, “where it has not been paid to anyone performing the duties of the office. ’ ’ The opinion goes on to say that it is clear that the court in these two cases did not intend to hold contrary to the general rule that payment made in good faith to a de facto officer constistituted a bar to a claim for the same salary made by the officer de jure, and that nothing had been said by the court to the contrary in People v. Coffin, 279 Ill. 401; People v. Stevenson, 270 Ill. 569; People v. Steven son, 272 Ill. 215, or People v. Brady, 262 Ill. 578. The opinion said that the question in those cases was whether the plaintiff was entitled to the office, “and incidentally to the salary.” That the question had never been passed upon by the court where the salary had been paid as to whether it could be recovered from the city by the de jure officer, and closes: “If the salary or compensation has been paid in good faith to a de facto employee during the time the position was in his possession, it cannot, on principle and by the weight of authority, be recovered again from the city, county, State or other governmental subdivision by the de jure officer.”

The opinion does not discuss the distinction between officers of different classes or between an office and a mere employment. It does not repudiate the reasoning in Mayfield v. Moore, 53 Ill. 428. It does not lay down any legal theories upon which the conclusion arrived at is based.

In the later case of People v. Burdett, 283 Ill. 124, relators were employed in the office of the State inspector of private employment agencies. They were employed under the State Civil Service Act. They were suspended by the chief inspector October 27, 1913. Charges were filed against them the following day. The matter was not heard finally until January 16, 1917, when they were ordered reinstated but without pay, because the delay in the hearing was the result of technical tactics used by them. While plaintiffs were under suspension the duties of the position were performed by persons under temporary writs issued by the Civil Service Commission. Delators prayed for writs of mandamus to compel the commission to certify and approve pay rolls for them. The court gave an opinion holding that the plaintiffs were not entitled to recover salary on the authority of People v. Schmidt, 281 Ill, 211, and stated without argument that any contrary holding in People v. Coffin, 279 Ill. 401, was overruled.

In the later cases of Hittell v. City of Chicago, 327 Ill. 443; O’Connor v. City of Chicago, 327 Ill. 586; McMahon v. County of Cook, 210 Ill. App. 196; Cord v. City of Chicago, 235 Ill. App. 299; Funkhouser v. Frazier, 234 Ill. App. 387, the Supreme and Appellate Courts have applied the rule of the Schmidt case to similar subordinate positions.

Defendants contend that People v. Schmidt, 281 Ill. 211, and the cases following it are determinative. Plaintiff argues that these cases are not at all applicable since in each of them the subject matter was substantially only an employment or position under the civil service statutes and in no one of them was an office in the true sense of that word involved. It is, we think, significant that in every one of these cases the position, employment or office so-called was one in which the plaintiff derived his right from the city and State civil service statutes. Section 11 of the Civil Service Act for cities (see Ill. State Bar Stats., 1935, ch. 24, 696, §11, p. 499; Jones Ill. Stats. Ann. 23.051) expressly exempts from its provisions officers who are elected by the people. Likewise the State civil service law (Ill. State Bar Stats., 1935, ch. 126A, § 11, 13, p. 2987; Jones Ill. Stats. Ann. 23.013) exempts all officers elected from its provisions and expressly exempts “all judges and officers appointed by judges of any court,” etc. Both of these acts in effect place upon a civil service commission the power and duty of classifying the offices and places which are subject to its provisions. Is such a civil service appointee a public official within the meaning of the constitution and laws of this State % It is important to get a true conception of what a public official is and particularly of the nature of the judicial office. Blackstone declares an office to be a species of property, an incorporeal hereditament, Wendell’s Edition, vol. 2, p. 36. Blackstone’s successor at Oxford has pointed out that this was an accurate statement of the law as it existed when the commentaries were written. He has also pointed out how in the ancient law things legally distinct, such as property, jurisdiction, etc., were blended together. How the distinction between powers of government and rights of property were not perceived, and the holder of an office, therefore, was held to have rights analogous to those of a tenant of the land, and if ousted was entitled to his action for disseizin. Vaux v. Jefferson, 2 Dyer 114. He points out that this confused conception continued in England until removed by statute. Holdsworth’s History, vol. 2, p. 19 and pp. 248, 249. Apparently this confusion of thought did not cease when the States became independent but has persisted, resulting in the conflicting decisions we have reviewed.

The framers of our Constitution in section 24 of article 5 drew a distinction between an office and an employment. High on Extraordinary Eemedies, 3rd ed., sec. 625, p. 581, defines a public office to be “a public position, to which a portion of the sovereignty of the country, either legislative, execution or judicial, attaches for the time being, and which is exercised for the benefit of the public.” In Eliason v. Coleman, 86 N. C. 235, the Supreme Court of that State said that the true test of a public office seemed to be, “that it is parcel of the administration of government, civil or military, or is itself created directly by the law-making power. ’ ’

In People ex rel. Attorney General v. Loeffler, 175 Ill. 585, the question was considered as to whether positions under the city civil service act were offices. It was argued that they were and that provisions of the civil service act violated the constitution for that reason. The court, however, held that the city civil service law was applicable only to subordinate places of employment in the public service, and that these places were not offices within the strict meaning of the term. Upon that theory the court held that the city clerk must fill these positions in compliance with the provisions of the civil service law. In City of Chicago v. Luthardt, 191 Ill. 516, the position in controversy was that of chief clerk of the detective bureau of the department of police. The opinion of the Appellate Court, adopted by the Supreme Court, stated that the plaintiff was not an officer in the strict sense of the word.

In People ex rel. Jacobs v. Coffin, 282 Ill. 599, the position in controversy was that of an expert witness for the city. The court said there was no such office.

In Ramsay v. Van Meter, 300 Ill. 193, the court said, as was said by this court in Fergus v. Russel, 270 Ill. 304:

“There are two distinct elements in the above definition of the word ‘ office. ’ In the first place, it must be a public position and it must be created either by the constitution or by law; and in the next place, it must be a permanent position with continuing duties. To determine whether the first element is present we have but to look to our constitution and our statute to see whether the particular position under consideration has been created by the constitution or by law. To ascertain whether the second element is present it is necessary to determine the character of the position. ’ ’

In the same case the Supreme Court said that the mere appropriation of money for the payment of compensation to the incumbent of a specified position did not have the effect of creating an office or give such incumbent the character of an officer. An office, the court said, could not be created by an appropriation bill.

In Ramsay v. Van Meter, 300 Ill. 193, the question was whether the public administrator of Cook county held an office and the court answered that question in the affirmative, quoting with approval from Fergus v. Russel, 270 Ill. 304. See also opinion of the justices, 3 Greenleaf, 481.

It is apparent, we think, that under these decisions positions under the city or State civil service laws are not offices in the strict sense of the term, and are not public offices at all. That they are not offices in the same sense that the office of judge of the municipal court or the office of judge of the circuit court are offices is settled beyond question. In People ex rel. Holdom. v. Sweitzer, 280 Ill. 436, the Supreme Court considers at great length the nature of the judicial office. The question there to be determined was when the salary of newly elected judges of the circuit court began, which in turn determined the question as to whether a statute which increased their salaries was applicable. An amendment to the law increasing the salaries of the judges of the circuit and superior courts of Cook county had been passed by the general assembly and approved by the Governor on June 24, 1915. Under the constitution it went into effect July 1, 1915. The election was held the first Monday in June, June 7, 1915, and it was not questioned that the relators were elected on that date. As a matter of fact, the commissions were issued by the Governor July 13th, and the relators contended that their respective terms began on that date and that they were entitled to the additional salary provided for by the new statute. The Supreme Court held that the terms of the judges began on the- day they were elected, and that the relators were not entitled to the increased salaries. The court said:

“Where no time is fixed for the beginning of the term the person elected is entitled to the office from the date of the election. He is certainly entitled to it as soon as the election has been held, the votes canvassed and the result proclaimed as provided by the Election law. That may, in the case of a circuit judge, be the day after the election. As said in Mayfield v, Moore, 53 Ill. 428, on page 432 of the opinion: ‘Under the law, so soon as a majority of the votes were cast for appellant at the election held in pursuance to law he became legally and fully entitled to the office. The title was as complete then as it ever was, and no subsequent act lent the least force to the rig’ht to the place. The commission was evidence of the title but not the title. The title ivas conferred by the people and the evidence of the right by law. . . . ’ An office could not become vacant during a term unless it had been filled and the term of the occupant had commenced to run. According to the language of this section it must be assumed that the terms of office of the relators commenced with the election, that they were entitled to their offices by virtue of the election and receiving a majority of votes therefor, and that had they refused or neglected to take or file the oath of office within a reasonable time the offices would become vacant and could be filled as provided by law.”

This decision concerned the office of judge of the circuit court. That the office of judge of the municipal court of Chicago is not different in its nature appears from the recent case of People ex rel. John H. Lyle v. City of Chicago, 360 Ill. 25. That was an original proceeding in the circuit court by Lyle, one of the judges of the municipal court, to compel the payment by the proper authority of the salary of the judges of that court for the years 1932, 1933 and 1934. The respondent set up the defense that in order to meet the most essential needs of the city government it had become necessary to reduce all salaries, including those of relators, .and that a financial emergency existed. The Supreme Court, after pointing out that sec. 11, article 9, of the constitution provides, “the fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term,” and that section 8 of the Municipal Court Act, Ill. State Bar Stats. 1935, ch. 37, ¶ 396; Jones Ill. Stats. Ann. 108.033, provides that, “the salary of no judge shall be increased or diminished during the term for which he shall have been elected,” said that while recognizing the writ of mandamus might be refused, that the supposed emergency upon which the departure from the law was based was not found in the law, and, citing Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 78 L. Ed. 413, said:

“Relators are corporate authorities, and hence are municipal officers within the meaning of the constitution. (People v. City of Chicago, 310 Ill. 534.) Under its terms the city council was without authority to change relators’ salaries during the respective terms for which they were elected. People v. Sweitzer, 280 Ill. 436; Foreman v. People, 209 id. 567.”

The writ of mandamus was awarded.

From a consideration of all the authorities it is, we think, apparent that whether the name office or employment is used, the relationship of those who render service in public positions under the laws and constitution of this State are of two classes fundamentally different in their nature. In the first class the relationship exists through a title derived from the people in whom sovereignty resides. In the second class, the right is through the pleasure of some subordinate department official or agency. In the first class the occupant holds title for a fixed and definite time declared by law, while in the second the occupant serves for an uncertain, indefinite and undetermined period. In the first class the duties to be performed by reason of the relationship are independent in their nature, partaking of the nature of that,.sovereignty from which the right is derived, while in the.second class the duties are subordinate in their nature and within the discretion of a superior agency or officer. In the first class compensation, if any, is certain and unchangeable and cannot be either increased or diminished, is due and owing regardless of whether services are performed or not performed, while in the second class the payment of compensation is dependent entirely upon the performance of services, is uncertain in amount and may cease altogether when the necessity for the service is ended. Finally, in the first class, the possessor of the office has a title to the office bestowing upon the holder definite property rights, while in the second class he has a mere right of employment which may or may not be protected by statute .

In People v. Schmidt the position involved was of the second class, and in every case following People v. Schmidt the office involved was of the same subordinate kind and class. In not one of the cases can it appropriately be said that the plaintiff held title. It must be assumed, we think, that the court in the Schmidt case had in mind this distinction, and that the language of the opinion was intended to apply only to the positions of the second and not to positions of the first class. On this theory alone statements and opinions of the court otherwise inconsistent become harmonious and consistent. The language in the Schmidt case calling-attention to the reasoning of Mayfield v. Moore, which is not disapproved; the assertion that the court had never before “been called upon to pass on this precise question”; the assertion that nothing to the contrary to that then declared had been said in People v. Coffin, 279 Ill. 401; the fact.that People v. Bradford was not even mentioned in the opinion, are understandable only upon the theory that the decision in the Schmidt case is intended to apply solely to the particular class of office or position then under consideration by the court. This is the reasonable interpretation. That it was not intended to reverse Mayfield v. Moore or the cases that follow it is apparent from the fact that this and similar cases have since been cited by the Supreme Court as authoritative. Emery v. Hennessy, 331 Ill. 296. .

The position involved in People v. Schmidt was that of grain inspector; in People v. Burdett, inspector of private employment agencies; in Hittell v. City of Chicago, chief engineer of streets; in McMahon v. County of Cook, a watchman; in Cord v. City of Chicago, an arc light trimmer; in Funkhouser v. Frazier a deputy superintendent of police; in O’Connor v. City of Chicago, a chief clerk in the office of the city comptroller.

We hold People v. Schmidt and the cases following it are not applicable to a judicial office; that the salary incident to the judicial office attaches to the title to the office; that the title of the plaintiffs to their respective offices dates from the day they were elected; that the salaries incidental to the office are due and owing to them from these dates. We are constrained to accept this view by the very fact that every constitutional and statutory provision concerning the judicial office discloses the intention of the people and the legislature that it should not be or become a mere employment subject to the control of any'other than the occupant of the office itself; that the judiciary is an independent office; that the function which it performs is a direct manifestation of the sovereignty of the State; that any ruling which would enable any other department of the government to deprive the judge of the salary and emoluments of his office would tend to its degradation.

Before these considerations the question of whether the salary might, on a rare occasion, be paid twice sinks into insignificance. The conclusion at which we have arrived makes it unnecessary to consider other questions argued in the briefs, such as the contention of the plaintiffs that the rule of Dolan v. New York is not applicable where, as here, the plaintiff is one of a class consisting of numerous individual officials, and that under either theory plaintiff is entitled to recover to the extent of unexpended appropriations. Plaintiff McKinley, who was excluded for a period of three years, eight months and one day, is entitled to recover the unpaid statutory salary for that period, amounting to the sum of $32,384.44. Plaintiff Heller, who was excluded from the office to which he was elected from December 5, 1932 to December 4, 1933, a period of one year, is entitled to recover the salary unpaid to him for that period, amounting to the sum of $8,476.24. The cross errors of plaintiffs are sustained. The finding of the court therefore is that there is due to plaintiff McKinley the sum of $32,384.44, and to Heller the sum of $8,476.24.

The judgments of the superior court are therefore reversed and judgment is entered in this court upon these findings in favor of the plaintiffs for these respective amounts.

Reversed with judgment here.

McSurely, J., concurs.

Mr. Presiding Justice O’Connor: I am constrained to dissent. People v. Schmidt, 281 Ill. 211; People v. Burdett, 283 Ill. 124; Hittell v. City of Chicago, 327 Ill. 443; O’Connor v. City of Chicago, 327 Ill. 586.


author: Mr. Presiding Justice Friend

text:
    Mary Pekras, Insane, by Her Next Friend, William Pekras, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 39,366.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed October 19, 1937.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and William S. Allen, both of Chicago, of counsel.
    Daniel M. Dever, of Chicago, for appellee; Daniel V. Gallery, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

William Pekras, as next friend of Mary Pekras, an insane person, brought an action against the Prudential Insurance Company of America for permanent disability benefits under a policy issued by defendant on the life of Mary Pekras. Trial was had before the court without a jury, resulting in a judgment for plaintiff of $750 and costs, from which this appeal is prosecuted.

The insured applied for the policy in question on July 8, 1930, and the first monthly premium was paid on that date. The policy was issued July 28,1930, and September 28, 1930, she was adjudicated insane and committed to the Chicago State Hospital. Plaintiff brought suit October 14, 1934, claiming nine quarterly instalments of $58.84 each and a refund of 36 premium payments theretofore made of $5.04 each.

The policy included an agreement on the part of defendant to pay permanent disability benefits in case the insured should become totally and permanently disabled from bodily injury or disease to such an extent as to become incapacitated from engaging* in any occupation for remuneration or profit, provided: “that such total disability shall occur after the payment of the first premium on this policy, while the policy is in full force and effect. . . .” It contained also a so-called incontestability clause, reading as follows:

“This Policy shall be incontestable after one year from its date of issue, except for non-payment of premium, but if the age of the Insured be misstated the amount or amounts payable under this Policy shall be such as the Premium would have purchased at the correct age.”

By its answer defendant set forth two principal defenses: (1) that the total disability of the insured occurred before the payment of the first premium; and (2) that the benefits, if any, were not payable to the husband as next friend of the insured, but could properly be paid only to a conservator or other legal representative.

In support of the first defense defendant sought to show by the testimony of two doctors that the insanity and total disability of Mary Pekras occurred prior to July 8, 1930. It was plaintiff’s contention that the incontestability clause of the policy precluded defendant from showing that the disability antedated the payment of the first premium, and the court, after considerable discussion, adopted plaintiff’s theory and found as a matter of law that defendant was not entitled to produce evidence tending to show that the insured had become insane prior to the payment of the first premium. Accordingly the objection of plaintiff’s attorney to the proffered evidence of defendant was sustained. The principal question therefore presented for determination is whether or not the court erred in excluding evidence offered in support of the defense interposed.

A similar situation arose in John Hancock Mut. Life Ins. Co. v. Hicks, 43 Ohio App. 242, 183 N. E. 93, wherein it was held that the beneficiary, seeking to recover on a life policy containing similar disability provisions, was required to show that the disease was contracted by insured after the date of the issuance of the policy, since the policy provided that if the insured should become wholly and permanently disabled by disease contracted after date thereof certain payments would be made, and the incontestability clause only prevented contest by the insurer respecting any liability incurred by it under the terms of the contract, and did not relieve the party seeking to recover, in the first instance, of establishing its right to recover under the specific language of the policy.

In Metropolitan. Life Ins. Co. v. Conway, 252 N. Y. 449, 169 N. E. 642, the Metropolitan Life Insurance Company, as petitioner, applied to the superintendent of insurance for his approval of a rider to be attached to its policies providing, that “death as a result of service, travel or flight in any species of. air craft, except as a farepaying passenger, is a risk not assumed under this policy. . . Under the New York statute every policy is required to contain a provision for its incontestability after two years. The question therefore arose as to whether the proposed rider was inconsistent with the statute, and the court held that it was not, saying that “the provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.” The court in its opinion distinguished between a denial of coverage and a defense of invalidity, and quoted from Sanders v. Jefferson Standard Life Ins. Co. (C. C. A.), 10 F. (2d) 143, pointing out that “ ‘a provision for incontestability does not have the effect of converting a promise to pay on the happening of a stated contingency into a promise to pay whether such contingency does or does not happen. ’ ” Various other eases cited by defendant support this construction of an incontestability clause, viz.: Prudential Ins. Co. v. Mosley, 66 P. (2d) 35; Bankers Life Co. of Des Moines v. Sone, 86 F. (2d) 780; Baker v. Prudential Ins. Co., 279 Prudential Insurance Company of America. App. 5; Apter v. Home Life Ins. Co., 266 N. Y. 333, 194 N. E. 846.

Defendant repeatedly stated to the court upon the hearing of this cause that it ivas not its purpose to contest the policy, that if the insured had died the Prudential Insurance Company would have paid the face value of the policy without any question, but that it denied liability under the permanent disability clause, because, as it contended, insanity was present at the time the first premium was paid, and did not “■occur after the payment” thereof. It clearly stated its defense in the answer filed, and under the authorities hereinbefore cited, and the general rule as expressed in various cases discussed in defendant’s brief, it became an issue of fact as to whether or not the disability occurred prior or subsequent to the payment of the first premium. On this issue defendant was entitled to offer evidence, and the court in refusing to admit and consider such evidence, deprived defendant of substantially the only defense it had.

We do not pass upon the issues of fact because the case will have to be retried and a determination made, either by the court or jury, after a full hearing, as to whether or not the insured became disabled by reason of insanity before or after the premium was paid.

The gravamen of the remaining defense interposed is that William Pekras, as next friend of the insured, is not entitled to receive the disability payments. He is designated as the beneficiary in the policy but is entitled to receive the face value thereof only in the event of the insured’s death. Defendant argued that a conservator should have been appointed and the suit instituted in the conservator’s name. After a discussion before the trial court, plaintiff’s counsel conceded that the husband of insured was not entitled to receive these payments, but stated that it was his intention, in the event judgment ivas entered, to apply for letters of conservatorship and cause payments to be made to the conservator on behalf of Mary Pekras. Inasmuch as the cause will have to be retried it will be a simple matter, before retrial, to apply for letters of conservatorship- and substitute the appointed conservator as plaintiff.

For the reasons stated the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

Scanlan and John J. Sullivan, JJ., concur.


author: Mr. Presiding Justice Matchett

text:
    First District.
    Loretta Schenkl, appellee, v. Sheffield Theatre Company and Essaness Theatres Corporation, appellants.
    Gen. No. 38,965.
    Heard in the first division of this court for the first district at the October term, 1936.
    Opinion filed June 14, 1937.
    McKenna, Harris & Schneider, for appellants; James J. McKenna and Abraham W. Brussell, of counsel. Francis J. Gariepy and Charles E. Mallon, for appellee; Owen Rall, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Elsie B. Spiegel, appellee, v. Toby Provus and Isadora Provus, appellants.
    Gen. No. 39,364.
    Heard in the first division of this court for the first district at the February term, 1937.
    Opinion filed June 14, 1937.
    Rehearing denied June 28, 1937.
    Fisher & Fisher, for appellants; Joseph Fisher, of counsel. Theodore D. Chernof and Philip Appel, for appellee; Philip Appel, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Esther Coleman, appellant, v. George Wienboeber, Inc. et al., appellees.
    Gen. No. 39,420.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    Royal W. Irwin, for appellant. Eckert & Peterson, for appellees; A. R. Peterson and Owen Rall, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    C. L. William Krause, appellee, v. Dodge Brothers Corporation and Frederick M. Paull, appellants.
    Gen. No. 39,433.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    W. Harold Rutherford, for appellants; Richard E. Koegh, of counsel. Ryan, Sinnott & Miller and Louis G. Davidson, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Helen Fels, appellee, v. Chicago Motor Coach Company, appellant.
    Gen. No. 39,424.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    Barrett, Barrett, Costello & Barrett, for appellant; Chester D. Kern, of counsel. Joseph D. Shane, for appellee; Gilbert A. Siegel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Olga M. Janelunas, executrix of estate of Kizimir Mulolis, deceased, appellee, v. Prudential Insurance Company of America, appellant.
    Gen. No. 39,306.
    Heard in the first division of this court for the first district at the February term, 1937.
    Opinion filed June 14, 1937.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Earl J. Walker, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Julius Lipkin, appellee, v. Max Rosenthal, appellant.
    Gen. No. 39,404.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    William Rosenthal, for appellant. I. Archer Levin, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Olga M. Janelunas, appellant, v. John Hancock Mutual Life Insurance Company, appellee.
    Gen. No. 39,466.

      Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    Earl J. Walker, for appellant. Hoyne, O’Connor & Rubinkam, for appellee; Nathaniel Rubinkam and William S. Allen, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Northern Trust Company, trustee under will and codicil thereto of Angela C. Gormully, deceased, appellee, v. Virginia J. Blake, appellee. Mary Cudahy, appellee. American College of Roman Catholic Church of United States, appellant.
    Gen. No. 39,484.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 14, 1937.
    Rehearing denied June 28, 1937.
    Joseph D. Daly, for appellant; James F. Burns and Francis E. Donnelly, of counsel. Carleton H. Pendleton, for certain appellee; Vincent L. Toomey, of counsel. Bayley, Webster, Gregory & Hunter, for certain other appellee.
   Mr. Justice O ’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Saul Joseph and Corwin D. Querrey, administrators of estate of Sherin Joseph, deceased, appellees, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,454.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 28, 1937.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Raymond C. Schnell, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Charles H. Couch, appellee, v. Central Republic Trust Company and Felix Rothschild, appellants.
    Gen. No. 39,451.
    Heard in the first division of this court for the- first district at the April term, 1937.
    Opinion filed June 28, 1937.
    Rowe & Bailey, for appellants; Joseph A. Bailey and Henry H. Caldwell, of counsel. Clarence W. Shaver, for appellee; Louis E. Levinson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Elizabeth M. Richardson, administratrix of estate of William J. Richardson, deceased, et al., appellees, v. Subscribers at the Inter-Insurance Exchange of Chicago Motor Club and Motor Club Service Corporation, appellants.
    Gen. No. 39,331.
    Heard in the first division of this court for the first district at the February term, 1937.
    Opinion filed June 28, 1937.
    Miller, Gorham, Wales & Adams, for appellants; Herbert C. DeYoung, of counsel. John A. Bloomingston, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    J. H. Rosberg Manufacturing Company, appellees, v. Madison and Kedzie State Bank and Paul Schroeder, appellants, and Lawrence A. Barrett, et al., appellees.
    Gen. No. 39,354.
    Heard in the first division of this court for the first district at the February term, 1937.
    Opinion filed June 28, 1937.
    Rehearing denied July 10, 1937.
    Isaac B. Lipson and A. C. Lewis, for appellants. Marston, Friedlund & Friedlund, for certain appellee; Emil N. Levin, of counsel. Concannon, Dillon, Bostelman & Snook, for certain other appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Nathan K. McGill, appellant, v. H. J. Coleman and Company Agency and Loan Corporation et al., appellees.
    Gen. No. 39,468.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 28, 1937.
    Joseph E. Snowden, for appellant. Silverstein & Silverstein, for appellee H. J. Coleman & Co., Agency and Loan Corporation; Julius J. Silverstein, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    O’Laughlin Company, appellee, v. Village of Stickney et al., defendants. Appeal of Village of Stickney, appellant.
    Gen. No. 39,407.
    Heard in the first division of this court for the first district at the April term, 1937.
    Opinion filed June 29, 1937.
    Joseph Lustfield, for appellant; Ode L. Rankin, of counsel. L. A. Wescott and Victor M. Langsett, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court,


author: Mr. Presiding Justice

text:
    Claude Neon Federal Company, appellant, v. John Racyzkowski, trading as East Side Motor Sales Company, appellee.
    Gen. No. 39,340.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed June 29, 1937.
    Budinger & Cahill, for appellant; Joseph A. Cahill, of counsel. Stanley A. Wilczynski, for appellee.
   Mr. Presiding Justice

Friend delivered the opinion of the court. .


text:
    W. R. Mitchell, trading, as W. R. Mitchell and Company, appellee, v. Thomas J. Kane and Kane Fuel Company, appellants.
    Gen. No. 39,452.
    Heard in the second division of this court for the first district at the April term, 1937.
    Opinion filed June 29, 1937.
    William Shapiro, for appellants; William Shapiro, of counsel. Tarnopol, Flamm & Sideman, for appellee; Abner Sideman, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Owen Barton Jones and George A. Bates, appellees, v. Commonwealth Edison Company et al., appellees. Edward A. Leslie, appellant.
    Gen. No. 39,308.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed June 29, 1937.
    Milton G. Manasse, for appellant; Avern B. Scolnik, of counsel. Pope & Ballard, for Complainants-appellees; Herbert Pope, Ferris E. Hurd and Ralph E. Bowers, of counsel. Wilson & McIlvaine and Taylor, Miller, Busch & Boyden, for defendants-appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Sixty-first and Calumet Apartments, Inc., appellee, v. Joseph Woo and Charles Lee, appellants.
    Gen. No. 39,426.
    Heard in the second division of this court for the first district at the April term, 1937.
    Opinion filed June 29, 1937.
    Charles A. Wagner, for appellants. Cummings & Wyman, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Steve Goda, appellee.
    Gen. No. 39,434.
    Heard in the second division of this court for the first district at the April term, 1937.
    Opinion filed June 29, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frederick A. Wilson, appellee, v. Henry B. Kilgour, appellant.
    Gen. No. 39,446.
    Heard in the second division of this court for the first district at the April term, 1937.
    Opinion filed June 29, 1937.
    Brewer, Smith & Farrell and Schuyler, Weinfeld & Hennessy, for appellant. Harry H. Felgar, John B. King and Edward H. S. Martin, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Charles F. Grey et al., appellees, v. City of Chicago, appellant.
    Gen. No. 38,056.
    Heard in the second division of this court for the first district at the April term, 1935.
    Opinion filed June 29, 1937.
    William H. Sexton, Corporation Counsel, and Arthur A. Sullivan, for appellant; Joseph F. Grossman, Assistant Corporation Counsel, and Tolman, Chandler & Dickinson, of counsel. Shannon, Morrill & Johnson, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    William G. McCormick, appellee, v. City of Chicago, appellant.
    Gen. No. 38,057.
    Heard in the second division of this court for the first district at the April term, 1935.
    Opinion filed June 29, 1937.
    William H. Sexton, Corporation Counsel, and Arthur A. Sullivan, for appellant; Joseph F. Grossman, Assistant Corporation Counsel, and Tolman, Chandler & Dickinson, of counsel. Shannon, Morrill & Johnson, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    University of Chicago, appellee, v. City of Chicago, appellant.
    Gen. Nos. 38,058 and 38,059.
    Heard in the second division of this court for the first district at the April term, 1935.
    Affirmed in part, reversed in part and cause remanded with directions.
    Opinion filed June 29, 1937.
    William H. Sexton, Corporation Counsel, and Arthur A. Sullivan, for appellant; Joseph F. Grossman, Assistant Corporation Counsel, and Tolman, Chandler & Dickinson, of counsel. Shannon, Morrill & Johnson, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Edward T. Blair, appellee, v. City of Chicago, appellant.
    Gen. No. 38,060.
    Heard in the second division of this court for the first district at the April term, 1935.
    Affirmed in part, reversed in part and cause remanded with directions.
    Opinion filed June 29, 1937.
    William H. Sexton, Corporation Counsel, and Arthur A. Sullivan, for appellant; Joseph F. Grossman, Assistant Corporation Counsel, and Tolman, Chandler & Dickinson, of counsel. Shannon, Morrill & Johnson, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Paul Gawzner, appellant, v. Herman R. Rosenbaum and David S. Komiss, appellees.
    Gen. No. 39,104.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Ringer & Reinwald, for appellant; Philip E. Ringer and Morris Sostrin, of counsel. Marshall & Marshall, for appellees; Frank G. Marshall and David C. Grossman, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Robert R. Baker, appellant, v. William H. Baker et al. appellees.
    Gen. No. 39,182.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Campbell, Clithero & Fischer and Kirkland, Fleming, Green, Martin & Ellis, for appellant; Delbert A. Clithero, Weymouth Kirkland, Vernon M. Welsh and Georges Dapples, of counsel. Gustav E. Beerly, for appellee John E. Scully; John F. Diffenderffer, Jr. and Harold L. Eisenstein, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Irene Kriza v. appellee, v. Edward H. Fagan, appellant.
    Gen. No. 39,257.
    Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    George C. Bliss, for appellant. Karlin, Cohen & Rubenstein, for appellee; Joseph J. Karlin and Lester Cohen, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    David Miller, appellee, v. Jacob Gomberg, appellant.
    Gen. No. 39,272.
    Heard in the third division of this court for the first district at the December term,' 1936.
    Opinion filed June 30, 1937.
    Harry P. Bovshaw, for appellant. No appearance for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Max Feldgreber et al., appellants, v. Liberty Trust and Savings Bank et al., defendants, and Liberty National Bank of Chicago, appellee.
    Gen. No. 38,960.
    Heard in the third division of this court for the first district at the June term, 1936.
    Opinion filed June 30, 1937.
    Yale & Yale, for appellants; Bernard Yale, of counsel. Wilhartz, Hirsch & Schanfarber, for appellees Liberty Nat. Bank of Chicago and Jack A. Diamond; J. S. Greenberg and Carl S. Goodman, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Charles B. Smith, appellee, v. Gordon C. Thorne and Richard E. Schmidt, appellants.
    Gen. No. 38,968.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.

      Bernard W. Vinissky, for appellants. Winston, Strawn & Shaw, for appellee; Harold A. Smith and Douglas C. Moir, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Rudolph Witzani, appellant, v. Ralph L. Shannon, appellee.
    Gen. No. 38,985.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Heth & Lister, for appellant; Lloyd D. Heth, of counsel. Robertson, Crowe & Spence, for appellee; Burt A. Crowe, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Herman N. Schocke, appellee, v. Alexander Glanz and Louis D. Glanz, appellants.
    Gen. No. 39,073.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Jacob Levy, for appellants; Edward McTiernan, of counsel. No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Sophie Rothenberg, plaintiff, v. James Steffens et al., defendants. Oak Park Trust and Savings Bank et al., appellants, v. Samuel Lefkovits, appellee.
    Gen. No. 39,110.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    J. Edward Jones, for appellants. William Feldman and David Lefkovits, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Louise Dudley, appellant, v. William C. Cook et al., defendants. Cook Corporation, appellee.
    Gen. No. 39,123.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Frederick A. Brown and Benjamin Wham, for appellant; G. Gale Roberson and Forest A. King, of counsel. Maurice J. Moriarty and Louis P. Muller, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Frank DeCicco, administrator of estate of Raymond DeCicco, deceased, appellee, v. Joseph Vodrazka, appellant.
    Gen. No. 39,138.
    Harry M. Fisher, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Joseph C. Pisha and Ewart Harris, for appellant. Hector A. Brouillet, for appellee; Abraham Miller, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    William Maher et al., appellees, v. Leonard W. Engels, executor of estate of Charles Erlmann, deceased, defendants. Appeal of Leonard W. Engels, executor of estate of Charles Erlmann, deceased, appellant.
    Gen. No. 39,157.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Nelson & Nelson, for certain appellant; C. S. Van Duzer, of counsel. Harold O. Mulks, for certain other appellant. Samuel A. Strauss, for appellee Lena Fingerhuth; Thomas J. Mullen, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebel

text:
    Alfred M. Best Company, Inc., appellee, v. Index Publishing Company et al., appellants.
    Gen. No. 38,955.
    Heard in the third division of this court for the first district at the February term, 1937.
    Opinion filed June 30, 1937.
    Harold L. Levy, Lawrence S. Jacobson, and William L. Kelly, for appellants; Grenville Beardsley and Lawrence S. Jacobson, of counsel. Defrees, Buckingham, Jones & Hoffman, for appellee; Vincent O’Brien, Howard Hayes and John M. Baker, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Josephine Twardy, appellee, v. Guy A. Richardson et al., appellants.
    Gen. No. 39,145.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.

      Frank L. Kriete, Erwin W. Roemer and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel. Royal W. Irwin, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    George F. Keller, appellant, v. August W. Gorke et al., appellees.
    Gen. No. 39,167.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Byron C. Thorpe and Robert W. Dunn, for appellant. Joseph B. Alexander and Jerome J. Friedman, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Joseph Palozzola, administrator of estate of Joseph Monaco, deceased, appellee, v. Peter Fee et al. Appeal of Peter Fee, appellant.
    Gen. No. 39,175.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.
    Daniel L. Madden, for appellant; Aaron R. Eppstein, of counsel. Francis D. McGuire and Nicholas J. Matkovic, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    J. A. Burgess, trading as J. A. Burgess and Company, appellee, v. Charles Rudolph, appellant.
    Gen. No. 39,199.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Eugene Stewart, for appellant; David S. Eisendrath, of counsel. Howard E. De Long, for appellee; E. C. Frank Meier, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Lottie Vernon, appellee, v. Ethel Small, appellant.
    Gen. No. 39,296.
    Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    John A. Bloomingston, for appellant. Loesch, Scofield, Loesch & Burke, L. B. McMillen and Price Janson, for appellee; Clement L. Harrell, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Fanny Serio, administratrix of estate of Louis Pistilli, deceased, appellant, v. Morris Slifkin and Sam Slifkin, defendants. Morris Slifkin, appellee.
    Gen. No. 39,470.
    Heard in the third division of this court for the first district.
    Opinion filed June 30, 1937.
    Clarke B. Richie and John V. Hanney, for appellant. Benjamin B. Chodash and Reuben L. Benjamin, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Frank Mick, Jr. for Use of Taylor Washing Machine Company, appellee, v. Diamond T Motor Company, appellant.
    Gen. No. 39,025.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed July 2, 1937.
    West & Eckhart, for appellant; Paul Hassell, of counsel. Clarence A. Samuel, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Samuel Rothblum, appellant, v. Arthur Alvin Gelatt and Mrs. Arthur Alvin Gelatt, appellees.
    Gen. No. 39,543.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    R. E. Rothblum, for appellant. Ross & Berchem, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.