author: Mr. Justice Holdom

text:
    Eiseman, Kaye Company, Appellant, v. Charles A. Shepardson et al., Appellees.
    Gen. No. 31,750.
    1. Landlord and tenant — liability of creditors’ committee for debtor’s rent durrvng their supervision. A creditors’ committee was not liable for rent of the debtor’s premises under the theory that they were in possession of the demised premises under a contract between the debtor partnership and the committee giving the committee supervision over the affairs of the firm during a period of liquidation for the benefit of creditors, where it appeared that none of the property of the firm was vested in the committee; that the operation of the business rested with the firm subject only to the supervision and consent of the committee; that the bank account of the firm was to remain with the firm’s old bank; that the only curtailment of the power of the firm to pay out money was that one of the committee must countersign cheeks; that the lease was not assigned; that the firm remained in possession of the premises, and that the single committeeman served with process was never on the premises except to supervise under the terms of the contract; and it is immaterial that the committee were designated as “trustees” in the contract.
    2. Trusts — when creditors’ committee not trustee for debtor. Under a contract between a partnership and a creditor’s committee giving the committee supervision over the affairs of the firm during a period of liquidation for the benefit of creditors, held that the committee were not trustees for the firm where the title to none of the firm property ever was vested in them either by the contract or by any other agreement.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 21, 1927.
    Lowenhaupt & Wolff, for appellant.
    Newman, Poppenhusen, Stern & Johnston, for appellee Charles A. Shepardson; Edward B. Johnston and Henry Jackson Darby, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff sued the three defendants on a claim for $3,000 for seven monthly instalments of rent of the second floor of the premises Nos. 23-31 South Franklin Street. The defendant, Charles A. Sliepardson, was the only one of the three served with process, and the suit was tried by agreement of the parties before the court. There was a finding on the issues for defendant, Sliepardson, and a judgment on that finding of nil capiat and for costs, and plaintiff brings the record here for review, and asks for a reversal of the judgment of the trial court, and a judgment of this court in its favor for the amount of its claim with interest.

The theory of plaintiff’s claim is that defendants were liable for the rent claimed, because during the time for which such claim is made they were in possession of the demised premises. The liability is predicated upon a contract of date December 22, 1923, made between Henry Friend and Henry Morris of Chicago under the firm name of Friend and Morris of the first part, and Robert S. Berryman of New York City, and Edward Hiler of the same place, and Charles A. Sliepardson, the appellee, of Chicago, of the second part in said contract “called trustees.” The contract recited the fact that Friend and Morris were engaged in the business of buying and selling woolens, silks and velvets at the demised premises in Chicago, and that they and their creditors had agreed by another instrument of same date with the contract to extend time of payment of their respective claims against said firm to June 22, 1924, in order that said firm might, during such term of extension, liquidate its affairs for the benefit of all creditors; that it was contemplated by the terms of said written extension that there should be a creditors ’ committee of three to have supervision over the affairs of said firm during the period of liquidation; therefore in consideration of the premises and for the purpose of carrying said written extension into effect and $1.00 and other considerations the first parties, viz, Friend and Morris, appoint Robert S. Berryman and Edward Hiler of New York, and Charles A. Shepardson of Chicago, trustees for the purposes in said contract set forth:

1. First parties, Friend and Morris, agree to sell | or otherwise convert into cash all their stock in trade,Í; furniture and fixtures, accounts and bills receivable, and all other assets of every nature and description belonging to said business, and to liquidate the business of Friend and Morris under the supervision and direction of the trustees, and at such times and in such manner, as said trustees shall direct, and that in carrying out the foregoing the first parties Friend and Morris shall collect such parts of such property and assets as may be outstanding, and sell and convert into money such parts thereof as do not consist of money, and convert all of said property into cash, and apply j all the moneys received by them first to the payment ' of all costs incurred in the performance of this agreement and purchase of merchandise and other liabilities, and next to the payment ratably among creditors of said Friend and Morris upon terms and conditions “hereinafter provided. ’ ’ In case trustees shall direct, first parties Friend and Morris shall carry on] said business in the name of said firm, in whole or in; part, and to such extent as they shall be directed to do, with a view, however, of winding up the affairs of the business; that for the purpose of carrying out the terms of said agreement the trustees, or Friend and Morris, with the consent of the trustees, shall have power to employ such assistants as may be necessary, to buy merchandise and other necessary chattels, to borrow money, either with or without security and to incur such expense or other obligations as may be deemed expedient by them, and all liabilities so incurred shall be treated as expense of liquidation and shall be paid before creditors become entitled to distributive share of funds realized or prior to the payment of claims of any of said creditors.
2. Friend and Morris agree to execute and deliver all instruments in writing necessary for carrying into effect this agreement.
3. Friend and Morris agree not to sell, etc., any of the firm property without consent of said trustees; that in carrying out the terms of the agreement Friend and Morris shall employ only such clerks, salesmen or assistants as may be authorized by the trustees; Friend and Morris agree to manage liquidation of business or carry on business as trustees shall direct for a salary of $650 a month each, payable out of the proceeds of liquidation; trustees may during continuance of agreement increase salaries or compensation to be paid to Friend and Morris.
4. Friend and Morris shall make in proper books full and true entries of all moneys received or expended by them, and of all transactions connected with said business, and shall out of moneys received by them pay all rents, taxes,, expenses and other liabilities incurred in connection with the liquidation and in carrying out same, under directions of trustees; all moneys coming into hands of Friend and Morris shall be deposited in the regular bank account of said firm ■with Greenebaum Sons Bank and Trust Company, and shall be paid out or withdrawn upon the check of said firm signed by Morris or Friend and countersigned by one of said trustees.
5. The agreement is made for the equal benefit of all creditors of Friend and Morris and all payments to creditors shall be made ratably at times and in manner as trustees shall direct; that whenever in course of liquidation or carrying on of said business trustees shall be of opinion that there is a sufficient sum of money on hand they may direct Friend and Morris to pay a dividend to their creditors, in such amount as trustees shall determine, in which event' Friend and Morris shall pay dividends in checks as aforesaid, countersigned by one of trustees or person appointed by one of them. Like dividends shall be paid from time to time at direction of trustees; that trustees may in their discretion cause claims of creditors against said firm who have not signed said written extension for full amount of their claims to be paid in full or in part other than pro rata with other creditors whenever trustees shall deem it necessary or advisable for protection of creditors who shall have joined in said written extension.
6. The agreement to continue in force until assets and property of firm have been fully liquidated and funds realized therefrom applied to the payment of the claims of creditors, provided, however, that in case claims of said creditors shall be fully discharged or paid prior to full liquidation of said properties and assets as aforesaid, then agreement to terminate as soon as all of said claims shall have been fully paid and discharged; and further that it is the intent of this agreement that all assets and properties of business shall be converted into cash as soon as possible, and after payment of all expenses incurred in connection therewith to apply funds realized therefrom to payment of claims of creditors of first party, viz, Friend and Morris.
7. If any surplus remains after payment of creditors it shall be paid over to Friend and Morris by check duly countersigned by one of trustees, and all of assets and property not converted into cash shall be and remain property and assets of Friend and Morris free and clear of all terms and conditions of said agreement.
8. Trustees shall have full power to direct the manner in which business shall be liquidated or wound up and to fix within their absolute discretion time, amount, place and other conditions at or upon which said property or assets, or any of them, shall be sold or disposed of and said business liquidated; that Friend and Morris agree to comply with all instructions and directions of trustees in carrying out the agreement.

The foregoing contract was signed by Henry Friend and Henry Morris doing business under the firm name of Friend and Morris, and by Robert' S. Berryman, Edward Hiler and C. A. Shepardson, trustees, each signing under seal.

It will be observed from the foregoing recitations that no part of the property or assets of the firm of Friend and Morris was vested in the so-called trustees; that the operation of the business rested with the firm subject only to the supervision, direction and consent of the so-called trustees; that the bank account of Friend and Morris was to remain, as it had been, in the banking house of Greenebaum Sons Bank & Trust Company, and that the only curtailment of the power of Friend and Morris to pay out the money from their bank account was that one of the trustees, so-called, must countersign any and all checks signed by Friend and Morris against their bank account in the Greenebaum bank. The lease was never assigned by the contract or any other agreement which appears in evidence; that Friend and Morris remained in possession during all of the time of the liquidation of the business and- that neither appellee here, nor the so-called trustees, ever went into the possession of the demised premises. The possession was always the possession of Friend and Morris until the firm business had been liquidated. There is nothing in the contract which by construction can be held to have conveyed to the so-called trustees any of the assets or business of Friend and Morris, nor was there any independent ownership or possession of the demised premises by the so-called trustees, or the appellee in this appeal. There is nothing in the evidence to show that appellee, or any of the so-called trustees under the contract with Friend and Morris, ever signed a check upon the bank account in the Greenebaum bank or any other bank account of Friend and Morris; all checks were signed by Friend or Morris and countersigned by the appellee, who was a resident of Chicago, while his cotrustees were residents of New York. There is no evidence that appellee or his cotrustees, or either or any of them, ever opened a bank account in their own names or any of their names, in which the moneys of Friend and Morris were deposited or checked out by them or either of them.

It appears from the evidence and from plaintiff’s brief that Henry Friend, of Friend and Morris, had a son Julius; that after the contract above recited was made, Julius Friend went into the business of manufacturing rubber aprons, and occupied space in the demised premises from February 15 to December 20, 1924; that he used the space for a small office and display of samples; during this time he paid rent at the rate of $35 a month; checks for this rent were made payable to Friend and Morris and these checks were deposited with Greenebaum Sons Bank & Trust Company to the credit of Friend and Morris; and • Julius Friend testified that he gave his rent checks to one of the creditors or one of the firm, whoever happened to be on the premises at the time. He paid four months rent and all of his rent checks went to the credit of Friend and Morris in the Greenebaum bank ; and there is no evidence that appellee or either of his cotrustees ever signed any check upon the bank account of Friend and Morris in the Greenebaum bank or any other bank; that as provided by the contract all the checks drawn by Friend and Morris were countersigned by appellee Shepardson in accordance with that contract. All rent that was paid to plaintiff after the execution of the contract between Friend and Morris and defendants ivas paid by the checks of Friend and Morris and drawn on their account in the Greenebaum Bank, which checks were simply countersigned by appellee Shepardson.

It is clear from the testimony of Shepardson that he never occupied the demised premises, or that he ever was in the premises, except as he was there under the terms of the agreement to supervise what Friend and Morris did in the liquidation of their business. The duty of the defendants, so-called trustees, under the contract was merely to supervise the liquidation of the firm of Friend and Morris. While called trustees in the contract, such designation is a misnomer. They acted as a creditors ’ committee under the agreement in a supervisory capacity only. They Avere not trustees because the title to none of the property or assets of Friend and Morris Avas ever vested in them, or any of them, either by the contract or by any other agreement. At no time did the defendants exercise any proprietary interest either in the business of Friend and Morris, or the assets of the business, and there is not one scintilla of evidence from Avhich it can be rightfully held that the defendants Avere vested with a proprietary interest, or that their relationship to the liquidation of the firm of Friend and Morris Avas anything but that of a supervisory nature, which required the assent at least of one of the defendants to the firm’s transactions in liquidating their business affairs; they simply looked on and supervised Avhat Friend and Morris did in the matter of the liquidation and when their actions demanded the assent of one of the defendants, that assent was given by appellee Shepardson.

We- are satisfied that the finding of the trial judge is fully sustained by the evidence in the record. Therefore the judgment of the municipal court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Consumers Sanitary Coffee & Butter Stores, Appellant.
    Gen. No. 31,760.
    1. Food — limitation of action to recover statutory penalty. Under the provision of the Dairy and Food Law, Cahill’s 1925 St. ch. 56b, 1t 43, that no action “shall be instituted against any person for a violation of the provisions of this act, unless the same shall have been commenced within six months from the talcing of said sample, or unless begun by and with the advice and consent of the State’s Attorney of the proper county, first had and obtained * * a suit which is not commenced within the six months’ limitation is barred although it was commenced by the State’s Attorney.
    2. Food — private prosecution for violation of the Dairy and Food Law. There is no authority for a private prosecution of a violation of the Dairy and Food Law, Cahill’s St. ch. 56b, since section 53 makes it the duty of a State’s Attorney to commence and prosecute all violations of the act.
    3. Statutes — rules for construction of Dairy and Food Law. The court is not permitted by construction either to add to or detract from the words of the Dairy and Food Law, Cahill’s St. ch. 56b, and must give to the words of the statute their plain meaning and import.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed December 21, 1927.
    Rehearing denied January 6, 1928.
    Louis J. Behan and William J. Corrigan, for appellant.
    Robert E. Crowe, State’s Attorney, for appellee; Edward H. Taylor, Assistant State’s Attorney and Arthur L. Israel, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This action is brought in debt under section 9, chapter 56b, title “Food,” Cahill’s St. ch. 56b, ¶ 9. The claim was filed in the municipal court on November 22, 1926, and alleges “that defendant on March 24, 1926, in Chicago, Cook County, Illinois, offered for sale and sold at one of their branch stores, a certain package of sugar, the same being an article of food in package form, which was misbranded under Section 9 of the Illinois Dairy and Food Law, in that it was not labeled with the name of the article and the name and address of the manufacturer, packer or dealer; that inasmuch as more than six months has elapsed from the date of said sale, the advice and consent of the State’s Attorney of Cook County has been first had and obtained before commencing this action; that the action is commenced under and "within the control of the State’s Attorney of Cook County; that said defendant was previously fined for a similar violation of the same section of the law on September 24, 1926, in case No. 1192649 in the Municipal Court of Chicago.”

A motion was made by defendant to quash the summons on the ground that the offense charged was committed on March 24, 1926, and the suit was not commenced until November 22, 1926, and that under the provision of the law under which the action was commenced the prosecution must be commenced within six months from the date of the taking of the sample, whereas upon the face of the pleadings filed it appears that the action was not commenced until nearly eight months after the taking of the sample, which motion was overruled by the court.

On a trial before the court there was a judgment against defendant' in the sum of $25, and costs of suit, from which defendant prosecutes this appeal.

Section 40a of the Illinois Dairy and Food Law (chapter 56b, Cahill’s 1925 Statutes, paragraph 43) is as follows:

“No action or prosecution shall be instituted against any person for a violation of the provisions of this act, unless the same shall have been commenced within six months from the taking of said sample, or unless begun by and with the advice and consent of the State’s Attorney of the proper county, first had and obtained * * *.”

Paragraph 53, CahilPs St. ch. 56b, of the same Act reads:

“The State’s attorneys of this State are charged with the enforcement of this Act, and it is hereby made their duty to appear for the People and to attend to the prosecution of all complaints under this Act in their respective counties, in all courts.”

We think, and so hold, that the true construction of said section 40a -requires that the action must be brought within six months from the selling of the sample, and that the prosecution must be commenced with the advice and consent of the State’s Attorney of the county. It is not denied that the action was not commenced within the six months’ limitation, but was commenced within two days of eight months of the selling, of the sample, and that it was commenced with the consent of the State’s Attorney.

Paragraph 53 of the Food Act, above quoted, makes it the duty of the State’s Attorneys to commence and prosecute all violations of the food law in their several counties in all courts. There is nowhere in the statute any indication of authority for a private prosecution.

We are not permitted by construction to either add to or detract from the words of the statute. We give to the words used in the statute in construction their plain meaning and import.

The State argues that the suit is not barred by the six months’ statutory limitation because the action “was begun by and with the consent of the State’s Attorney of the proper county.” We find no alternative in the statute or any reference to any other source of prosecution other than the State’s Attorneys. The state cites People v. Milwaukee Dairy Co., 244 Ill. App. 341, as sustaining its contention. We find nothing in that case' to support the point argued.

The municipal court erred in not allowing the motion of defendant to quash the summons, and for that error its judgment is reversed.

Reversed.

Taylor, P. J., and Wilson, J., concur.


text:
    Elias Mayer et al., Appellants, v. Yellow Cab Company, Appellee.
    Gen. No. 31,791.
    1. Attorney and client — rule of construction of Attorneys’ Lien Act. The Attorneys’ Lien Act, Cahill’s St. oh. 13, is unknown to the common law, and therefore it must be strictly construed so that attorneys seeking to establish a claim thereunder must fulfil the requirements of the statute in every particular
    2. Attorney and' client — when defendant not estopped to object to a noncompliance with Attorneys’ Lien Act. The fact that the defendant has actual knowledge that attorneys assert a claim for a lien on their client’s cause of action does not estop the defendant from objecting that the attorneys have not complied with the requirements of the Attorneys’ Lien Act as to the notice to the defendant of the claim for lien and the service of the notice.
    3i Attorney and client — defective notice of claim, for lien. A notice by attorneys to a defendant of a claim for a lien under the Attorneys’ Lien Act on their client’s cause of action which does not state the interest which the attorneys have in the action is defective.
    4. Attorney and client — insufficient service of notice to corporation of claim of lien. A service of notice on a corporate defendant of attorneys’ claim for a lien under the Attorneys’ Lien Act on their client’s cause of action must be personal and in accord with the statute for service of process on corporations, and is not properly made by leaving a copy of the notice with a person merely in, and in charge of, the office of the corporation.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 21, 1927.

      Kaplan & Kaplan and Stein, Mayer & David, pro se; Jacob Kaplan and Sigmund W. David, of counsel.
    Samuels, Costello & Greenberg, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The case at bar is a proceeding to enforce petitioners’ claim against defendant under the Attorney’s Lien Act, Cahill’s St. ch. 13, ¶ 13; section 14, chapter 13, Smith-Hurd Illinois Revised Statutes 1925. That section reads:

“That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action: Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. ” .

It appears that the petitioners were the attorneys for one Helen Stofferan, who had a claim for damages against the Yellow Cab Company, to enforce which claim she, through her attorneys, the petitioners, commenced action against respondent in the superior court of Cook county. It also appears that the petitioners took the case on a contingent fee, in which they contend there was an agreement that their client should pay them a fee of one-third of the amount recovered without a trial, and one-half of the amount recovered through a trial of the suit. Pending the trial of ihe suit the attorneys for respondent settled the case, personally and without the knowledge of petitioners, for the sum of $1,000. The settlement was made after the case had been set for trial for a day certain, and was so made without any consultation with the petitioners, who were the attorneys for Helen Stofferan. Thereafter respondent sent a check to petitioners for the sum of $333.33, being one-third-of the amount of the sum settled for, respondent having agreed with petitioners’ client to pay that amount in addition to the $1,000, her lawyers’ fees. Petitioners refused to accept the check in payment of their fees and returned the same to respondent.

On March 19, 1925, petitioners prepared a notice to respondent in the following form:

“To: Yellow Cab Company, a Corporation,
Chicago, Illinois.
“You are hereby notified that Helen Stofferan has employed us as her attorneys in a claim, demand, or cause of action against you, growing out of certain personal injuries received by her on or about January 23rd, 1925, while a passenger in one of your vehicles, and in consideration of services rendered and to be rendered by us in the collection of said claim, has transferred, assigned, and set over to us an interest therein; and that we have and claim a lien on said claim, demand, or cause of action of said Helen Stofferan for the amount of said interest so transferred, assigned, and set over to us, in accordance with the statute in such case made and provided.
Stein, Mayer & David and Kaplan & Kaplan. ”

Upon said notice appears an affidavit of what petitioners claim to. be service of said notice upon the respondent. It is as follows:

“State of Illinois,) County of Cook
“Emil Schlan, being first duly sworn, on oath deposes and says that he served the foregoing notice upon the Yellow Cab Co., a corporation, by leaving a copy of same with Beulah Schulman, a person over the age of 12 years, agent, then being on and in charge of the office of the said corporation on March 19, 1925, at 1:00 o’clock P. M.
Emil Schlan.
‘ ‘ Subscribed and sworn to before me this 19th day of March, 1925.
Alfred M. Loesser, Notary Public (Seal).”

Respondent contends that the service of the notice should have been personally upon respondent, and that the so claimed service, not being personal, was abortive, and was no service at ail.

The written contract was originally made by Helen Stofferan for counsel fees with the petitioners Kaplan & Kaplan, but she thereafter retained Stein, Mayer & David, the other petitioners, to act as counsel with Kaplan & Kaplan.

The action of the counsel for respondent in settling the case behind the backs of Helen Stofferan’s counsel and without any notice of their intention so to do, was highly unprofessional from .any view point, and contrary to Rule 9 of the Code of Professional Ethics of the American Bar Association, which Code of Ethics was thereafter adopted by both the Illinois State Bar Association and the Chicago Bar Association. While the rule has no legal force or effect as a matter of law, yet it states ethical propositions which every lawyer of good repute, without such code, would in his practice follow. Therefore, we cannot accord our approval of such professional unethical conduct.

The trial judge held that the service of the notice upon respondent was insufficient, and dismissed petitioners’ petition, and they bring the record to this court for our review.

Petitioners seek to invoke the doctrine of estoppel against respondent, because they had knowledge of petitioners’ claim for an attorney’s lien. With this contention we are unable to agree. The attorney’s lien statute is unknown to the common law, and therefore must be strictly construed so that he who attempts to advantage of it must fulfil the requirements of the statute in every substantial particular.

One of the petitioners, Sigmund W. David, gave evidence and testified that on April 6, 1925, he met Mr. Benjamin Samuels (who was assistant secretary and chief attorney for respondent, and in charge of all cases against respondent pending in court) at the Covenant Club in Chicago. Mr. David testified that as he came into the room, Mr. Benjamin Samuels was sitting at a large table about the center of the restaurant, and came up to him and said, “ ‘Ben, what about the case? ’ He said, ‘What case? ’ I said, ‘You received my letter, didn’t you? ’ He said, ‘Oh, that letter, haven’t I answered that? Hasn’t that letter been answered yet? ’ I said, ‘No, it has not.’ He said, ‘I turned that all over to one of my associates to answer, and you will get an answer.’ ”

Samuels denied the meeting and the conversation, and denied that he had received the letter of Stein, Mayer & David of March 20, 1925. As to the letter, secondary evidence was offered of. the mailing of the same in due course after it had been copied in the firm’s letter book.

While we accord verity in the consideration of the case to Mr. David’s testimony regarding the1 letter and the meeting of Mr. Samuels in the Covenant Club, yet true as it may be, it is not sufficient on the circumstances of this case to work an estoppel.

The notice in itself was defective- in that it did not state the interest which petitioners had in the damage suit in question. However, aside from all other questions, the attempted service of the lien notice did not constitute service as required by the statute. The service must be personal and in accord with the statute providing for service of process upon corporations and, without which, however meritorious the lawyer’s claim for fees may be, there can be no recovery.

Haj v. American Bottle Co., 261 Ill. 362, is a controlling authority, and that decision has not been departed from by our Supreme Court since it was rendered. It was there held that the Attorney’s Lien Act was unknown before the passage of the act, and that the provisions of the statute must be strictly followed in order to establish such liability, and it was further held that service of such notice must be personal.

In Carney v. Tully, 74 Ill. 375, it was held that service of a written notice always means actual, personal service; and in Chicago & A. B. Co. v. Smith, 78 Ill. 96, the court said: “When a notice is required, and the mode of service is not specified, the law requires that it shall be personal.” In Wade on Law of Notice, section 1334, the author says: “In general, however, where notice is required by statute or rule of court and the method of serving the same is not laid down, it is understood that there shall be personal service.” In section 1342 the writer says: “We have seen that when the manner and mode of service is not pointed out by the statute, personal service is generally understood.” Wilson v. Lowmaster, 181 Ill. 170.

In Haj v. American Bottle Co., supra, the court said: “The statute creating the attorney’s lien creates a liability unknown before the passage of the act, and where that is the case the statute must be strictly followed. It requires notice, differing in that respect from the statute in New York and perhaps other States, and as it specifies no other method of service, personal service, under all the authorities, is required. The appellee not having complied with the statute creating the lien is not entitled to one.” Reynolds v. Alton, Granite & St. Louis Traction Co., 211 Ill. App. 158; Jackson v. Toledo, St. L. & W. R. Co., 186 Ill. App. 531.

So in the case at bar, petitioners, not having complied with the statute creating the lien, are not entitled to one.

There is no error in this record and the judgment is therefore affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    Louis Feldman, Appellee, v. A. Karn, trading as A. Karn & Company, Appellant.
    Gen. No. 31,875.
    1. Evidence — number of witnesses affecting weight of evidence. Where there is a conflict in the testimony on an issue of fact in a non-jury trial, and two witnesses for the defendant testify against the one witness for the plaintiff, the court should find for the defendant, all the witnesses being equally credible.
    2. Evidence — when plaintiff fails to produce preponderance of evidence. ' Where a former employee sues to recover a specific sum of money from the employer and testifies in a nonjury trial that the employer promised in the presence of a named person to pay him that sum, and the named person as well as the defendant testifies that no such promise was made, and the witnesses are equally credible, plaintiff fails to prove his case by the greater weight of the evidence and the court should find for the defendant.
    3. Appeal and ereob — reversal of judgment against the weight of evidence. A judgment on an issue of fact which rests for its foundation against the manifest weight of the evidence will be reversed.

      4. Appeal and error — right to enter judgment for appellant on reversing the appealed judgment. The Appellate Division on reversing a judgment for the plaintiff on an issue of fact which rests for its foundation against the manifest weight of the evidence, may enter a judgment for the defendant.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed and judgment here of nil copiat.

    Opinion filed December 21, 1927.
    McInerney & Power, for appellant.
    Louis J. Jacobson, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The relationship of the parties to this suit was that of master and servant. The plaintiff worked for defendant from September 15, 1925, to December 12, 1925, at a varying salary of $35, $40 and $45 per week. On the last-mentioned date he quit work. Up to that time he had been paid regularly his salary in the varying sums above set out. There is no contention regarding the accuracy of this statement, but the plaintiff sued defendant for $300, claiming that that sum was due him on a promise of defendant when he quit the employment to pay him that sum.

There have been two trials, one by default, which was vacated, and the second trial before the court by agreement of the parties, in which there was a finding and judgment for the plaintiff in the sum of $300, from which judgment defendant prosecutes this appeal, seeking a reversal of the judgment, and a finding by this court in his favor.

Plaintiff testified on the trial that defendant promised to pay him $300 in addition to his weekly salary in the presence of Mr. Saul Kublin. To this conver. sation plaintiff proffered no supporting proof. The defendant, as a witness in his own behalf, denied any such conversation or any promise to pay plaintiff the $300, which he claimed, in the presence of Kublin or anyone else; that plaintiff did not ask for $300, and that defendant did not promise to pay plaintiff $300 in Kublin?s presence; and “that no such conversation ever took place. ”

In delivering his judgment the trial judge said: “Well, there is a conflict in the testimony, and where two credible witnesses, equally credible, testify against one, and" they are equally credible, why, there is nothing for the court to do but to find, under the circumstances, for the defendant.” In this statement we are in accord. The trial judge continuing made this rather remarkable statement: “But in this case this young man, 'Mr. Feldman, comes on the stand and tells a straightforward story, which indicates that he is more than a truck driver; that he has known this young man here, the son-in-law, or whatóver he is, of the defendant, for four years; that they knew the kind of work he did and what his work was; and I believe, although it went into the record, although it should have been stricken out, I believe that this work here which this man did warranted him in going out and getting such, a young man as this man here. Married man with a family — $35 a week — a union man, most any kind of work, would get more than that.”

Mr. Mclnerney interrupted: ‘ ‘ There is no evidence that he was.a union man.”

The Court: “I say, a union man would get more than $35 a week, most any kind of a union man, and he is instructing union men. I am very glad to find for the plaintiff in this case.”

On the evidence in the record, as above recited, and the fore part of the statement of the court in delivering his judgment, the finding should have been for the defendant. Plaintiff predicated his contract on the sworn fact (which' evidently was not true) that the promise to pay Mm the $300 was made in the presence of Kublin. This statement of his falls to the ground when Kublin himself, as well as defendant, testified that no such promise was made, as detailed by plaintiff in Ms testimony. It is not a question of credibility. It is a question of weighing the evidence, and in so doing plaintiff fails to meet the basic legal requirement that he prove his case by a preponderance or greater weight of the evidence.

■ We have no fault to find with the cases cited by plaintiff. The difficulty is they are not applicable to the facts in the record. A judgment which rests' for its foundation against the mamfest weight of the evidence must be reversed. Western Union Cold Storage Co. v. Warner, 78 Ill. App. 577; Galomopoulos v. Petropoulos, 147 Ill. App. 1; Chicago City Ry. Co. v. Maloney, 99 Ill. App. 623; Johnston v. Sochurek, 104 Ill. App. 350.

Such is the foundation for the judgment in this case, and it is our duty to do here, what the trial judge should have done, enter the finding for the defendant.

Therefore the judgment of the municipal court is reversed and a judgment entered here for defendant of nil capiat and for costs.

Judgment reversed and judgment here of nil capiat.

Taylor, P. J., and Wilson, J., concur.


author: Mr. Presiding Justice Matchett

text:
    William Baering, Appellee, v. Charles Epp, Sr., on Appeal of Harry W. Rubloff, Garnishee, Appellant.
    Gen. No. 31,993.
    1. Confession of judgment — confession contrary to authority in note. Where a note authorizes a confession of judgment any time after maturity, a judgment entered prior to the maturity is void and not merely voidable.

      2. Garnishment — proceedings ~based on void judgment. A garnishee cannot be held liable on a garnishment proceeding based on a void judgment.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Reversed.
    Opinion filed December 27, 1927.
    Rehearing denied and opinion modified January 9, 1928.
    Sonnenchein, Berkson, Lautmann & Levinson, for appellant; Joseph A. Struett, of counsel.
    Henry C. Ferguson, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The appellant, Rubloff, was summoned as garnishee in a proceeding where a judgment had theretofore been entered in the. municipal court against Charles Epp, Sr., and in favor of William Baering.

The amended answer set up that the garnishee had no money, property, etc., belonging to Epp in his possession, and further set up Epp and one William J. Corbett had theretofore leased from him certain premises, depositing a $1,000 bond to be held by him to secure the faithful performance by the lessees of the terms and provisions of the lease. The garnishee further averred default in payment of rent by lessees and a judgment by confession against them for the amount of $1,200, together with attorney’s fees of $120, that had theretofore been entered; that he also brought a suit of forcible entry and detainer against the lessees and obtained judgment against them and had reentered the premises. The trial court was of the opinion that the garnishee was liable upon his answer and thereupon found the issues against the garnishee, assessed plaintiff’s damages at the sum of $1,000 and entered judgment therefor.

The judgment creditor has not filed any brief in this court in support of the judgment entered. Many interesting points are urged by the garnishee in favor of a reversal. Of these it will be necessary to notice only one, namely, that the judgment upon which the garnishment proceedings are based is void. The judgment was entered by confession upon a note containing power of attorney. The note was dated April 22,1926, and by its terms was payable in 90 days thereafter. It authorized the confession of judgment at any time after maturity. Judgment was entered on the note July 19, 1926, which was prior to the maturity of the same. That such a judgment is void, and not simply voidable, has been decided by the Supreme Court of this State in a well-considered case. White v. Jones, 38 Ill. 159. That proceedings in the nature of garnishment may not be brought upon a void judgment has also been definitely decided. Newport v. McPherson, 203 Ill. App. 208; Pierce v. Carleton, 12 Ill. 358; Kirk v. Elmer H. Dearth Agency, 171 Ill. 207; Bux v. Wangelin, 216 Ill. App. 562. Moreover, on this record the garnishee was not liable in any event.

For the reasons indicated the judgment is reversed.

Reversed.

O'Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois ex rel. Orville B. Holland, Appellee, v. Nicholas R. Finn et al., Civil Service Commissioners of Chicago, Appellants.
    Gen. No. 31,891.
    1. Certiorari — laches in filing petition. One who delays one year and seven months in filing his petition for certiorari to annul an order of a civil service commission for his discharge from a municipal police department is guilty of laches' which bars his right to the writ.

      2. Certiorari — laches not excused by delay in awaiting result of application for rehearing. A long delay of one in filing a petition for certiorari to annul an order of a civil service commission for his discharge from a municipal police department is not excused by the fact that the petitioner was awaiting the result of his application to the commission for a rehearing..
    3. Officers — right to petition civil service commission for rehearing. The right to file a petition for rehearing in a proceeding before a municipal civil service commission can only arise by reason of a rule permitting the same.
    4. Officers — plea for reinstatement as petition for rehearing. A plea, by one discharged from a municipal police force on the order of a civil service commission, for reinstatement upon the petitioner’s promise of future good conduct is not a petition for rehearing.
    5. Certiorari — facts established by writ to review civil service order for discharge of policeman. In certiorari by one to annul an order of civil service commission for his discharge from a municipal police force, the jurisdiction of the commission and the fact that there has been a proper legal proceeding for the removal is established by the writ showing the charges and specifications filed as cause of the removal, the summons, the proof of service, the appearance of the accused, and the finding that he was guilty, in which finding are set out the facts which were actually found and which are substantially in the language of the charges and specifications, and that therefore he was guilty of conduct unbecoming a police officer and of immoral conduct, as alleged in the charges.
    6. Certiorari — right to file replication. In certiorari by one to annul an order of a civil service commission for his discharge froiji a municipal Xiolice department, held error to permit a replication to be filed and to try the issues thereby made.
    7. Certiorari — office of writ. The only office of a writ of certiorari is to bring before the court the proceedings of an inferior tribunal for inspection.
    8. Certiorari — right of petition to introduce evidence. In certiorari by one to annul an order of a civil service commission for his discharge from a municipal police department, held error to hear testimony on behalf of petitioner.

      9. Certiorari — trial confined to inspection of record. When the record is returned in certiorari, the trial is solely by inspection of the record and no inquiry is permissible as to any matter not appearing in the record.
    10. Certiorari — impeachment of the return. In certiorari by one to annul an order of a civil service commission for his discharge from a municipal police force, evidence of an attorney that at a certain time he examined certain records of the commission relating to the petitioner and was told by some one, called the secretary, that this was all the record up to that time, is inadmissible to impeach the return of the commission to the writ.
    Appeal by defendants from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed December 27, 1927.
    Samuel A. Ettelson, Corporation Counsel, James W. Breen, First Assistant Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants; Francis J. Vurpillat, on the brief.
    Earl J. Walker, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants appeal from a judgment for petitioner in a proceeding wherein by writ of certiorari the latter sought to have his discharge from the police department of the City of Chicago declared null and void. After the writ of certiorari had issued and respondents had made return by filing their record, the trial court, over defendants’ objection, permitted a replication to be filed and a trial was had upon issues presented on the petition and replication. Judgment was rendered for the petitioner.

We hold that this judgment was improper and that it must be reversed. The most obvious reason supporting our conclusion is the laches of the petitioner in filing his petition. The order discharging petitioner from the police force was entered January 28, 1925. He did not file his petition until August 25, 1926, an interval of almost one year and seven months. It has been repeatedly held that where one is discharged by order of the Civil Service Commission and delays longer than six months in filing his petition for certiorari, he is guilty of laches which bars his right to the writ. Cox v. Finn, 239 Ill. App. 670; People ex rel. Macauley v. Burdette, 285 Ill. 48; Clark v. City of Chicago, 233 Ill. 113; Schultheis v. City of Chicago, 240 Ill. 167, 170; Cronin v. Civil Service Com’rs, 243 Ill. App. 625.

Petitioner replies that on February 17, 1925, he filed a petition for rehearing and being unschooled in the law supposed that he must await some action on the petition for rehearing before he could file his petition for certiorari, and that it was not until April 1, 1926, that said petition for rehearing was denied. This reply will not avail. The rule with reference to action in civil cases pending the disposition of a petition for rehearing does not apply in civil service cases. Therefore . citations relating to judicial practice are not in point. The right to file a petition for rehearing in a civil service case can only arise by reason of a rule permitting the same, and no such rule is shown in the present record. Furthermore, the alleged petition for rehearing is not a petition for a rehearing of the cause. It is merely a plea for reinstatement upon the promise by petitioner that ‘ ‘his conduct thereafter will be such that his superior officers will have no just cause for complaint.” In Cox v. Finn, 239 Ill. App. 670, it was held that, even if the rules of the commission did authorize a rehearing, petitioner was not precluded thereby from suing out the writ of certiorari immediately after her discharge or at least after waiting a reasonable time for action thereon, citing People ex rel. Macauley v. Burdette, 285 Ill. 48.

The record returned pursuant to the writ established the jurisdictional fact pertaining to the person, the subject matter and the grounds- for discharge and a proper legal procedure for the removal of petitioner under section 12 of the Civil Service Act, Cahill’s St. ch. 126a, ¶ 14. The writ shows the charges and specifications filed as cause of the removal, the summons, the proof of service, the appearance of the accused and the finding that he was guilty, in which findings are set out the facts which were actually found and which are substantially in the language of the charges and specifications, and that therefore he was guilty of conduct unbecoming a police officer or an employee of the police department and of immoral conduct, as alleged in the charges. This establishes jurisdiction of the commission and that there has been a proper legal proceeding for the removal of the petitioner. People ex rel. Martin v. Finn, 241 Ill. App. 628; Murphy v. Finn, 241 Ill. App. 620; Patterson v. Finn, 243 Ill. App. 625; People ex rel. Mitchell v. City of Chicago, 243 Ill. App. 100; People ex rel. Aeberly v. City of Chicago, 240 Ill. App. 208; Funkhouser v. Coffin, 301 Ill. 257; Kammann v. City of Chicago, 222 Ill. 63; Joyce v. City of Chicago, 216 Ill. 466; People ex rel. Maloney v. Lindblom, 182 Ill. 241.

It was error to permit a replication to the petition to be filed and to try the issues thereby made. The only office of the writ of certiorari is to bring before the court the proceedings of an inferior tribunal for inspection, and it is error to hear any testimony in behalf of the petitioner. Cronin v. Civil Service Com’rs, 243 Ill. App. 625; Cass v. Duncan, 260 Ill. 228; Kammann v. City of Chicago, 222 Ill. 63; Joyce v. City of Chicago, 216 Ill. 466; Funkhouser v. Coffin, 301 Ill. 257; Chicago & Roch Island R. Co. v. Whipple, 22 Ill. 105; People ex rel. Slusser v. Gary, 196 Ill. 310; McKee Highway Com’rs v. Smith, 217 Ill. 250; Altamont Mfg. Co. v. Western Union Tel. Co., , 222 Ill. App. 422; Drainage Com’rs of Union Drainage Dist. v. Volhe, 163 Ill. 243. When the record is returned, the trial is solely by inspection of the record and no inquiry as to any matter not appearing in the record is permissible. Appellants’ motion to strike such replication from the files should have been sustained. Smith v. Chicago & W. I. R. Co., 105 Ill. 511.

Respondents’ objection to and motion to strike the testimony of Mr. Elmer M. Leesman, attorney at law, should have been sustained. Even if it were competent, Mr. Leesman’s testimony merely went to the fact that at a certain time he examined certain records of the Civil Service Commission relating to the petitioner Holland and was told by some one, called the secretary, that this was all the record up to that time. Such testimony was inadmissible to impeach the formal return of the commissioners to the writ.

Other irregularities might be pointed out. We primarily base our conclusion on the laches of the petitioner in filing his petition. The judgment will therefore be reversed, the writ quashed and the petition dismissed.

Reversed.

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


text:
    William Goss, Appellant, v. Board of Education of the City of Chicago, Appellee.
    Gen. No. 31,927.
    1. Appeal and error — termination of subject matter of litigation as ground for dismissal. Semble, 'a motion to dismiss an appeal from an order sustaining a demurrer to enjoin a board of education and a high but successful bidder from proceeding with a plastering contract may be dismissed, where the contract has been completed pending the litigation and the complainant never moved for a preliminary injunction.
    2. Schools and education — nature of board of education rules. The board of education of the city of Chicago is not a municipal corporation, and its rules and regulations do not have the force of ordinances.
    3. Public contracts — necessity of awarding by school to lowest bidder. The provision of the Cities and Villages Act, Cahill’s St. eh. 24, If 176, that contracts for work shall be let to the lowest responsible bidder does not control contracts for the work of construction by the board of education of the city of Chicago.

      4. Public contracts — power of school boa/rd to award. The powers of the board of education of the city of Chicago with reference to awarding contracts for work of construction are controlled by the act relating to boards of education in cities of 100,000, Cahill’s St. ch. 122, j[ 152.
    5. Injunction — false reasons for awarding public contract to high bidder as not showing fraud. In a taxpayer’s suit to enjoin a board of education and the successful bidder from proceeding with a contract to plaster a school building contrary to a rule to award a contract to the lowest and best responsible bidder, an allegation that the board falsely pretends that its reason for letting the contract to the higher bidder is that it did not accept the bid of the lowest bidder because that company was engaged in other plastering work to such an extent as to impair its ability to perform the particular contract, does not show fraud and will not justify granting the injunction.
    6. Injunction — excess bid of successful bidder for school construction contract as fraud. The mere fact the bid of $29,000 of the successful bidder for a contract to plaster a school is $200 in excess of the lowest bidder, while a rule of the board of education provided for letting contracts to the lowest and best responsible bidder, does not impute fraud and will not justify enjoining the board and the successful bidder from proceeding with the contract.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 27, 1927.
    Rehearing denied January 9, 1928.
    Samuel B. King, for appellant.
    James Todd, for appellee; Frank S. Righeimer, Ralph W. Condes and Wharton Plummer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant appeals from an order sustaining a demurrer to his bill of complaint as amended and ordering that it be dismissed for want of equity. There is before us a motion to dismiss the appeal on the ground that the subject matter of the litigation has terminated, leaving only for the consideration of this court a moot case or abstract question.

November 28, 1925, complainant, William Goss, filed Ms bill as a taxpayer, alleging that October 1, 1925, the Board of Education of the City of Chicago advertised for bids for lathing and plastering the Rufus M. Hitch school building in course of construction; that Goss & Guise, a corporation, had been for many years engaged in Chicago in contracting for such work and made its bid for this particular work for $28,800 and inclosed the required certified check; that june 18, 1924, the Board of Education adopted a set of rules covering the making of contracts for the construction of bmldings, and among said rules are sections 2 and 3. In the latter was the provision that: “Contracts shall be awarded to the lowest and best responsible bidders in each instance, quality considered”; that Goss & Guise had theretofore done lathing and plastering work for the Board of Education in the City of Chicago to the satisfaction of said Board; that the bid nearest to the bid of Goss & Guise for the work in question was that of James D. Corcoran, which was $29,000; that both of these bidders had done work for the Board of Education • and that the record of Goss & Guise for expedition and quality of work was superior to the record of Corcoran for similar work; that notwithstanding Goss & Guise was the lowest and best responsible bidder, the Board of Education, in violation of its duty, awarded said contract to Corcoran. Complainant asked that the Board of Education and Corcoran be enjoined from proceeding with the performance of the contract.

January 6, 1926, the Board of Education filed a demurrer which on January 23 was sustained and a motion for a temporary injunction was denied and leave was given complainant to amend his bill of complaint. February 15, 1926, the amendment was filed by striking out certain portions of the bill and adding allegations that in adopting the rule that contracts “shall be awarded to the lowest and best responsible bidders in each instance, quality considered,” the Board of Education departed from the requirements of the statute, section 74, Cahill’s St. ch. 24, ¶ 202, of the act entitled “An Act concerning local improvements,” in force July 1, 1897, by interpolating the word “best” as qualifying the term “responsible bidder,” and also interpolating the words “quality considered” “as a qualification to said rule.” The amended bill also set forth more extensively the work which Gross & Gruise then had under contract with the Board of Education, and also other matters. March 1, 1926, a general demurrer was filed to this bill as amended. February 2, 1927, the order was entered, sustaining the demurrer and dismissing the bill of complaint, which is the occasion of this appeal.

The Board of Education in support of its motion to dismiss the appeal calls the attention of this court to the fact that, although his bill was filed in November, 1925, and amended February 15, 1926, complainant never made a motion for a preliminary injunction under his bill as amended and made no move whatever in the case until November 10, 1926, when his counsel served notice that on November 15 he would move the court to dispose of the demurrer to his amended bill of complaint. It is shown by affidavits which are not controverted, that in the meantime, in the month of April, 1926, the general construction of the school in question had proceeded to a point so that Corcoran commenced the plastering and lathing work on said building under his contract; that the building was opened for public school purposes on September 7, 1926, and Corcoran had finished his entire work in October, 1926, and was awarded a final certificate by the architect of.the Board of Education on November 6, which was paid on November 8; that it was practically one year after complainant filed his original bill before the order was made dismissing the bill for want of equity and that during the period when Corcoran was performing the work under his contract complainant made no move in the case.

It is argued that because of the necessity of having the school building ready for the opening of school in September, 1926, it was unreasonable to suppose that the Board of Education would hold up the construction work until complainant should make some move in the matter; that as the work has now been completely finished and Corcoran paid for the same, there is nothing left for this court to pass upon except a moot case and no questions to settle except abstract questions of law.

In Wide v. Chicago Tel. Co., 277 Ill. 338, it was held that the existence of an actual controversy is an essential requisite to appellate jurisdiction, and that the reviewing court will dismiss an appeal where facts are disclosed which show that such a controversy does not exist, even though such facts do not appear in the record; and in Donahoe v. Owens, 277 Ill. 318, it was said: “This court will not decide questions that no longer exist, merely for the sake of making a precedent or of settling a simple matter of costs.”

In People ex rel. Chance v. Burke, 274 Ill. 55, it was held that the court would refuse to grant a writ of mandamus when the right sought to be" enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstance since the commencement of the suit, can be of no substantial or practical benefit. This rule was repeated in slightly different form in Sobieski v. City of Chicago, 325 Ill. 259; Lyle v. McKinlay, 229 Ill. App. 349; People v. Stevens, 152 Ill. App. 118; Gormley v. Day, 114 Ill. 185.

It is too clear for argument that, in view of the fact that the work sought to be enjoined has been completed, the writ of injunction prayed for by complainant would be futile and useless. While it is true that the cases cited involved the writ of mandamus, yet no good reason occurs to us why the rule there stated should not in a proper case be applicable to an injunction case.

We are referred to Molden v. City of Alton, 179 Ill. 318, as deciding that, where a bill for injunction is filed and the court has acquired jurisdiction, if the defendant acts, it is at the risk of being compelled to restore the condition existing when the court acquired jurisdiction. In that case there is no suggestion of any laches on the part of the complainant and apparently he proceeded promptly with his case. The rule there stated is applicable to that case, but general equitable principles should not permit a complainant, by the mere act of filing a bill for an injunction and letting it sleep until after the work has been completed, to maintain any right to enjoin the work. Were there no other considerations involved, we would be inclined to grant the motion to dismiss.

However, we have also considered the case upon its merits and hold that the demurrer to the bill as amended was properly sustained. Complainant’s bill is predicated upon the assumption that the letting of building contracts by the Board of Education is controlled by the statute relating to the letting of contracts for local improvements, section 74 of the Cities and Villages Act, chapter 24, Illinois Statutes, Cahill’s St. ch. 24, If ¶ 202, in force July 1, 1897. The particular provision of this act said to be applicable is that contracts for work “shall be let to the lowest responsible bidder,” which it is asserted the Board of Education by its rules changed to “the lowest and best responsible bidders in each instance, quality considered.” This act concerning local improvements does not control the Board of Education of the City of Chicago.. Section 1, Cahill’s St. ch. 24, ¶ 122, of said act provides that the “corporate authorities of cities, villages and incorporated towns are hereby vested with the power to make such local improvements * * * as they shall by ordinance prescribe.” The Board of Education of the City of Chicago is not a municipal corporation, and its rules and regulations do not have the force of ordinances. Section 74 of this act prescribes that the contracts for the making of any work of improvement “shall be approved by the president of the board of local improvements.” This language is not applicable at all to the Board of Education. By section 50, art. 9 of the Cities and Villages Act, Cahill’s St. ch. 24, ¶ 176, approved July 1, 1872, it is provided that, when the expense of any public work exceeds. $500, it shall be let to the lowest responsible bidder in the manner prescribed by ordinance, such contracts “to be approved by the mayor or the president of the board of trustees.” By amendment in 1911, it was provided that such contracts must be approved by a two-thirds vote of the aldermen or trustees elected and that the work shall be supervised by the commissioner of public works. None of these sections covers or controls contracts for the work of construction by the Board of Education. The powers of the Board of Education of the City of Chicago with reference to awarding contracts are controlled by the act relating to Boards of Education in cities of 100,000, in force April 20, 1917 (Cahill’s St. ch. 122, ¶ 152). Section 154 of this act provides that the business manager of the Board shall have general charge, subject to the approval of the Board, of the making of all contracts for the erection and construction of school buildings.

That the Board of Education is not a municipality within the meaning of the statute, was held in the recent case of People ex rel. Leland v. Board of Education of City of Chicago, 325 Ill. 320. It was there held that the rules and regulations of the Board of Education do not have the force of municipal ordinances and do not constitute such boards municipal corporations; that the word “municipal” applies strictly to only what belongs to a city o.r pertains to a city or community within a State possessing rights of self-government.

All of the cases except one cited by complainant to support his position involves sections of the Cities and Villages Act. The exception is Adams v. Brenant 177 Ill. 194, where the board by rule provided that all contracts for work on school buildings should be done by union labor only, but the court, in the exercise of its general chancery powers, held that such a rule was unreasonable and therefore void as tending to create a discrimination between different classes of citizens and to create a monopoly restricting competition in bidding.

Undoubtedly, in the exercise of its general equity jurisdiction, courts would have the power to restrain any act of the Board of Education which was fraudulent or so unreasonable as to result in injustice. No sufficient allegations of fraud appear in the bill. It alleges that the reason given by the Board of Education for not accepting the bid of Gross & Gruise was that this corporation already had under contract other plastering work of such volume and extent as to impair its ability to fulfil the contract for the particular school building in question. The only attempt to charge fraud is the allegation that the Board of Education falsely pretends that this is the reason for awarding the contract to Corcoran. This is not the statement of any facts showing fraud, but merely an allegation that the alleged reasonable grounds for awarding the contract to Corcoran were not the real grounds.

The mere fact that one bid was $200 in excess of the other does not impute fraud. Under its rules the Board had a certain amount of discretion in awarding contracts, and, if for the reason suggested in complainant’s bill, namely, that because the extent and volume of the work already awarded to Gross & Gruise might interfere with the promptness with which the instant work would be completed, the Board conpluded to award the contract to another bidder at a figure slightly in excess, we cannot say that this called for judicial interposition. •

The chancellor properly sustained the demurrer and ordered the bill dismissed for want of equity, and this judgment is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    John E. Burch, Defendant in Error, v. Fred C. Lockwood, Plaintiff in Error.
    Gen. No. 31,978.
    1. Malicious prosecution — burden to prove want of probable cause and malice. In an action for malicious prosecution the burden is on the plaintiff to prove, among other things, that the defendant had no reasonable cause to believe that plaintiff was guilty of the offense charged against him, and that defendant was actuated by malice in instituting the proceeding.
    2. Malicious prosecution — sufficiency of- evidence. In an action of malicious prosecution for an alleged theft, verdict for plaintiff held not against the manifest weight of the evidence.
    3. Malicious prosecution — admissibility of evidence of general reputation for honesty. In an action for malicious prosecution for an alleged theft evidence is admissible by the plaintiff as to his general reputation for honesty in the neighborhood.
    4. Harmless error — instructions in malicious prosecution. In an action for malicious prosecution, error in an instruction for plaintiff defining probable cause as meaning “such reasonable ground of suspicion sufficiently strong in itself as to warrant a cautious man in believing that the person arrested is guilty of the offense with which he is charged, ’ ’ in that the word ‘ ‘ reasonable ’ ’ should precede ‘ ‘ cautious, ’ ’ does not warrant a reversal where the instruction did not direct a verdict and the law was correctly given in an instruction for defendant.

      5. Malicious prosecution — confusing instruction on probable cause. In an action for malicious prosecution, the meaning is not clear in an instruction for the defendant “that want of probable cause must be shown by the plaintiff, by affirmative evidence, and the jury have no right to infer it from any degree of malice which may be proved, ’ ’ and the instruction is properly refused as tending to confuse the jury.
    6. Damages — when $1,275 excessive in malicious prosecution. A verdict for $1,275 in an action of malicious prosecution held excessive, and a remittitur of all but $600 required, where plaintiff, a man in modest circumstances, was arrested for the alleged theft of his landlord’s lamp, was kept in jail for ten hours, was called opprobrious names by the defendant, and was required to pay his attorney $35 for services.
    Error by defendant to the Circuit Court of Cook county; the Hon. A. A. Partlow, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed December 27, 1927.
    Charles W. Stiefel, Jr., for plaintiff in error.
    Edward McTiernan, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages for the malicious prosecution and false arrest of plaintiff, in that the defendant filed in the municipal court of Chicago an information charging that plaintiff stole “one stand lamp” of the value of $14, being the property of the defendant, and that upon a trial of the merits of the case in the municipal court the defendant was found not guilty and discharged. The case was tried before a judge and á jury and there was a verdict and judgment in plaintiff’s favor for $1,275.

The record discloses that on November 7, 1923, the defendant, Lockwood, appeared before a judge of the municipal court of Chicago and made complaint against plaintiff, John E. Burch, and filed a verified information in the municipal court of Chicago charging him with having stolen a lamp of the value of $14, being the property of Lockwood; that a capias was issued and Burch was arrested November 25, 1923, and on the next day, after a hearing before the court, he was discharged.

The evidence further tends to show that plaintiff, his wife and two daughters were living in a furnished apartment on the North side of Chicago, and that he had rented it from Mrs. Miller; that on or about the 15th of October, 1923, Mrs. Miller sold her interest in the property to Mrs. Margaret Schultz, the defendant’s sister; that Mrs. Schultz thereupon took possession and she and the defendant were living in the building, the defendant attending to the furnace and collecting the rents; that on the morning- of November 2, 1923, plaintiff and his family moved out of the property and left the key to the apartment on a table but did not notify Mrs. Schultz or the defendant that they were going to move, nor did they give them their new address; that shortly after plaintiff and-his family vacated the apartment, Mrs. Schultz and the defendant entered it, and they testified that they found that some of the personal property belonging to Mrs. Schultz was missing, including the lamp. Five days thereafter defendant filed the information in the municipal court as above stated. The evidence further is to the effect that plaintiff was not arrested until November 25 by reason of the fact that neither Lockwood nor his sister, Mrs. Schultz, knew where he lived and were unable to inform the police officers so that he could be taken into custody.

Plaintiff testified in substance that he was arrested' on Sunday morning about ten o’clock, taken to the police station and locked up in jail, where he remained for about ten hours, when he was released on bond; that the case came up for trial the following day in the municipal court and that on the hearing at that time the defendant, Lockwood, called plaintiff a “dirty rat” and stated that he would “get” plaintiff. Plaintiff further testified that Lockwood there said, “I would bite my mother and I was a dirty rat and scum and my attorney should be ashamed to represent me”; that he did not take the lamp; that he and his family moved out of the furnished apartment on November 2, using a little Ford truck for the purpose of removing his belongings; that Lockwood requested him to move ; that he paid $35 to the attorney for defending him in the municipal court; that he was a patent attorney employed by a firm engaged in that line of practice, and that he recently came from Bridgeport, Connecticut. It further appears that he was not discharged by his employers on account of his arrest. Plaintiff further testified that a short time before he moved from the furnished apartment his wife put the lamp in a closet in the apartment. Plaintiff’s daughter, thirteen years of age, testified that she heard the defendant, Lockwood, call her father a “dirty rat” at the time of the trial in the municipal court. She further testified that the lamp was in the pantry when they vacated the premises. One of plaintiff’s employers testified that plaintiff’s reputation for honesty was good.

Lockwood testifed in his own behalf that at the time of the trial he was manager of a delicatessen store; that for thirteen years he had worked as a brakeman and conductor for the Illinois Central Railroad Company; that he first met plaintiff about October 17,1923, after his sister had taken over the apartment, and at that time he demanded payment of the rent for the apartment from plaintiff, which was payable weekly; that he made a similar request on the 24th and 29th of October and on November 1st, but that no payment was received, plaintiff stating that he was unable to pay it at that time; that when he called for the rent he saw the lamp in question on the library table in the center of one of the rooms; that on November 2nd he got up at the usual time, about 5:30 o ’clock, to start the steam; that about 7:30 o’clock when he was attending to his duties around the building, he noticed in the rear of plaintiff’s apartment indications that plaintiff was moving out; that shortly thereafter he and his sister, Mrs. Schultz, went over to the apartment, rang the bell at the front door and then the bell at the rear door; that both doors were locked; that they then' opened one of the doors with a pass key and then found the key to the apartment on the library table in one of the rooms of the apartment; that they then checked up on the furnishings and found some bed linens, silverware' and the lamp missing; that the lamp was not in the pantry; that the plaintiff owed $42.50 for rent and that it had not yet been paid; that a few days afterwards he went to the municipal court and signed the complaint because he believed that plaintiff had taken the lamp. He further testified that on the hearing in the municipal court he did not call plaintiff a rat several times but only twice; that he did not say that plaintiff was a man who would bite his own mother; that he did not say to plaintiff that he would get him, and that he did not see plaintiff move out of the apartment.

Margaret Schultz testified that she took over the apartment about the middle of October; that she heard her brother, the defendant, demand payment of the rent from plaintiff; that plaintiff said he was hard up and unable to pay at that time; that there was no quarrel between them; that Lockwood managed the place for her, his duties being to collect the rents, look after the building and do janitor work; that after plaintiff moved on the morning of November 2 she and the defendant went through the apartment as testified by her brother; that she found some knives, forks, sheets, pillow covers, a bed spread and the' lamp missing from the apartment; that she looked through all of the apartment and the lamp was not there. The evidence is further to the effect that no one was in the apartment from the time plaintiff vacated it until defendant and his sister, Mrs. Schultz, went through it.

In rebuttal plaintiff testified that he had rented the apartment from Mrs. Miller by the month and that he had paid all the rent; that when the defendant demanded the rent he told defendant that he did not owe any and that the defendant asked him to move by twelve o’clock.

At the close of the case the defendant requested the court to give a special interrogatory to the jury. The court modified the request, and as modified it was as follows: “Did the defendant on to wit, November 5, 1923, on which date the defendant caused a capias for the apprehension of the plaintiff to be issued by one of the Judges of the Municipal Court of Chicago, have probable cause to believe the plaintiff guilty of carrying away the stand lamp in question 1 ’ ’ This interrogatory was answered in the negative.

In an action for malicious prosecution the burden is on the plaintiff to prove, among other things, that the defendant had not reasonable cause in believing, that plaintiff was guilty of the offense charged against him, and that the defendant in instituting the criminal proceedings was actuated by malice. Glenn v. Lawrence, 280 Ill. 581. An instruction to this effect was given to the jury; they found in favor of the plaintiff by their general verdict and also by the special interrogatory, and after a careful consideration of all the evidence we are unable to say that their finding is against the manifest weight of the evidence.

The defendant further contends that it was error for the court to admit, over his objection, evidence as to the general reputation of the plaintiff for honesty in the neighborhood in which he lived, for the reason that no evidence was offered impeaching the plaintiff’s reputation, and that the information, which was sworn to by the defendant and which he caused to be filed in the municipal court, was based upon his own knowledge and not upon information and belief. In support of this contention the case of Skidmore v. Bricker, 77 Ill. 164, is cited. That case sustains defendant’s contention, but in an earlier case and also in a later case the Supreme Court of this State held that in an action to recover for an alleged malicious prosecution and false arrest, the general reputation of the plaintiff might be shown. Israel v. Brooks, 23 Ill. 575; Rosenkrans v. Barker, 115 Ill. 331. In the Rosenkrans case the court said (p. 339): “In Israel v. Brooks, 23 Ill. 575, an action for malicious prosecution, it was held that previous good • character may be shown as one evidence of want of probable cause.” The Israel case was an action for malicious prosecution. The court there said (p. 577): “The onus is on the plaintiff to show affirmatively, by circumstances or otherwise, that the defendant had no ground for the prosecution. * * *

“What these circumstances may be, cannot be specified, but we would think, among them, the good character of the party accused would stand out prominently. All must admit that is, and must be, a strong fact, if known to the accuser, to ward off suspicion, and therefore, for this purpose, it is entirely competent for the plaintiff in the action, in his opening proofs, to show that his character was good, and known to be so by the defendant, when he made the accusation. As the onus of proving a negative — the absence of probable cause — is thrown upon the plaintiff, slight evidence will usually suffice for such purpose. But the evidence of an uniform good character up to the time of the charge, is something more than slight evidence, and the plaintiff should have the benefit of it. If known to the prosecutor, what single fact is better calculated to weaken a belief, he being a prudent and cautious man, in the guilt of the suspected party. On the other hand, his bad character may be shown by the defense, as good ground for augmenting a suspicion against him. We know, in no actions save criminal prosecutions and actions for defamation, can the character of the party, as a general rule, be inquired into, but in such a case as this, there seems to be great propriety in permitting it, for the reasons here given.” To the same effect is Waters v. West Chicago St. R. Co., 101 Ill. App. 265, where the court said (p. 273): “In a trial for malicious prosecution, the reputation of the plaintiff as to matters bearing on the question of whether he would be likely to commit the crime of which he was accused may be given in evidence so far as such reputation was known to the defendant when he instituted the prosecution. Israel v. Brooks, 23 Ill. 575.” And the Supreme Court of Massachusetts in a well-considered opinion held that the good reputation in the community of a plaintiff may be proven by him at the trial of an action for malicious prosecution. Mclntire v. Lavering, 148 Mass. 546. In that case the court said (p. 547): “There is some conflict of authority as to the competency of evidence of the reputation of the plaintiff in a trial of an action for malicious prosecution. There are many cases in which it is held that in actions of this kind, as in actions of slander, the general bad reputation of the plaintiff may be shown in mitigation of damages. There are also decisions that in suits for malicious prosecution such reputation may be shown to meet the allegation of want of probable cause. ’ ’ Citing a number of authorities, including Bosenkrans v. Barker, 115 Ill. 331; and continuing the court there said (p. 548): “But the cases do not go so far as,to. permit proof of particular instances of bad conduct.In determining whether there is probable cause for a prosecution for the commission of a crime, the known character or general reputation of the person suspected is always an element of some importance; for, as was said by Chief Justice Shaw in Bacon v. Towne, ubi supra: ‘ The same facts which would raise a strong suspicion in the mind of a cautious and reasonable man against a person of notoriously bad character for honesty and integrity, would make a slighter impression if they tended to throw a charge of guilt upon a man of good reputation. ’ In a suit of this kind, where the prosecution complained of was for an offense implying moral turpitude, the plaintiff’s general reputation at the time of the prosecution, if the defendant was where he would be likely to know it, is always involved, in the issue, and, the defendant may properly be permitted to show that it was bad. We see no good reason why the plaintiff should not be permitted, on the other hand, to show affirmatively that it ivas good. It is true that every one is presumed to be of good character until the contrary appears, and this presumption ordinarily saves the necessity of proof. Indeed, in civil cases, as a general rule, evidence of reputation is not competent upon a question as to liability for a particular act. But whenever character is in issue the rule is different. One charged with a crime is not obliged to rest upon a presumption of good character. In favorem libertatis he may prove the fact, if he can, by a weight of evidence far more effective than any mere presumption. A plaintiff in a suit for malicious prosecution upon a criminal charge has the burden of proving that the prosecution was without probable cause. In defending against the prosecution he would have had the right to show his good reputation, although his character was not attacked otherwise than incidentally by the prosecution itself. The same incidental attack upon his character necessarily appears in the suit for the malicious prosecution. To prove that the attack was originally made without probable cause, we think he should be permitted to show his good reputation, known to the defendant when the prosecution was commenced. In several of the states there are adjudications to this effect.” Citing a number of authorities, including Israel v. Brooks, supra.

In an action for malicious prosecution we think the law is firmly established that the plaintiff may, as part of his case, offer evidence as to his reputation. 1 Wigmore on Evidence (2nd ed.) sec. 258; William M. Ross & Co. v. Innis, 35 Ill. 487; Sappington v. Fairfax, 135 Md. 186; Thurkettle v. Frost, 137 Mich. 115; Shea v. Cloquet Lumber Co., 97 Minn. 41; Woodworth v. Mills, 61 Wis. 44; McIntosh v. Wales, 21 Wyo. 397. In the citation from Wigmore in discussing this question, the author says: “There is no reason why the plaintiff’s repute should not be received in chief.”

In the instant case the evidence shows that plaintiff and the defendant lived in the same building and that plaintiff’s general reputation for honesty in the neighborhood where he lived was good. This was presumably known by the defendant when he filed a complaint in the municipal court. We think the evidence was clearly admissible.

Complaint is made that the court erred in refusing to give defendant’s offered instruction No. 9. This offered instruction purported to set up in detail all of the evidence in the case as contended for by the defendant. This instruction was properly refused for the reason that it in effect stated that the lamp in question belonged to the defendant when the defendant’s evidence showed that it belonged to Mrs. Schultz, the defendant’s sister. It was also erroneous in that it stated that if the jury believed from the evidence that the lamp was not removed by the defendant or any person at defendant’s direction, etc. There was no evidence that the defendant, directed anyone to remove the lamp. Moreover, we think it was apt to mislead the jury.

A further complaint is made that the court erred in giving plaintiff’s instructions Nos. 1 and 4. By No. 1 the jury were told that if they believed from the evidence that defendant in causing plaintiff’s arrest had no reasonable ground of suspicion sufficiently strong in itself to warrant a cautious man in believing that the plaintiff was guilty, etc., then the defendant acted without probable cause. Instruction No. 4 defined probable cause as meaning “such reasonable ground of suspicion sufficiently strong in itself as to warrant a cautious man in believing that the person arrested is guilty of the offenses with which he is charged.” The objection to these instructions is that the word “reasonable” should precede the word ‘ ‘ cautious ’ ’ in each instruction. We think the criticism of the instruction is warranted, but that the error is not of such a degree as would warrant a reversal. Neither of these instructions directed a verdict and in another instruction given the court told the jury that if they believed from the evidence that the defendant when he instituted the municipal court proceeding honestly believed that the plaintiff was guilty of the offense charged and that his belief was founded on circumstances tending to show the guilt and was sufficient to induce, in the mind of an ordinarily reasonable and prudent man the belief in such guilt, this would negative the idea of want of probable cause.

A further complaint is that the court erred in refusing to give defendant’s offered instruction No. 6. That instruction was as follows: ‘ ‘ The court instructs the jury that want of probable cause, though negative in its character, must be shown by the plaintiff, by affirmative evidence, and the jury have no right to infer it from any degree of malice which may be proved.” We do not understand the meaning of this instruction and we think it properly refused as it might confuse the jury. Nor was there any error in the refusal of the court to give the special interrogatory as requested by the defendant. The part of this interrogatory which the trial court struck out was to the effect that the lamp had been in the possession of plaintiff on November 1. We think the modification was clearly warranted and made the interrogatory clear.

A further point made is that the amount of the verdict clearly shows that it was the result of prejudice and passion. We think the amount of the verdict is excessive in view of all the evidence in the record, and if plaintiff will remit all but $600 within ten days, judgment will be affirmed for $600; otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur; otherwise reversed and remanded.

Hatchett, P. J., and McStjrely, J., concur.


author: Mr. Presiding Justice Barnes

text:
    John Joseph Ewald, Appellee, v. Chicago Railways Company et al., Appellants.
    Gen. No. 31,812.
    Street railways — collision from railway violation of illegal ordinance. A city ordinance requiring a street car motorman to bring the car to a full stop before.arriving within ten feet of the nearest intersection line of a cross street also occupied by street car tracks, held improperly to assume the exclusive power of the Dlinois Commerce Commission to regulate public utilities, and, therefore, in a collision action based on a violation of the ordinance, it is error to admit the ordinance in evidence and to grant instructions authorizing the jury in effect to find for the plaintiff because of the violation.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 27, 1927.
    George W. Miller and Arthur J. Donovan, for appellants; Frank L. Kriete and Charles C. Cunningham, of counsel.

      Wetten, Pegler & Dale, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This .appeal is from a judgment for plaintiff in an action to recover for personal injuries received from a collision between one of appellants’ street cars and an automobile in which he was riding. The collision took place at the intersection of two streets in the City of Chicago, on each of which were street railway tracks.

The declaration consists of three original counts charging negligence in the operation of defendants’ street car, and of an additional count based upon the alleged violation of an ordinance of the City of Chicago which was set up in said count and received in evidence, in the following language:

“Every such person having charge of any such street car shall also, when approaching any cross street occupied by street railway tracks which intersect with those on which said car is being operated, bring such car to a full stop before arriving at and within ten feet of the nearest intersection line of said. cross street.”

The court overruled defendants’ objection to the admission in evidence of said ordinance, as above quoted, and also defendants’ motion made at the close of plaintiff’s case that the court instruct the jury there could be no recovery under said additional count and that the jury should disregard it. Error is assigned upon these rulings and to the giving of two instructions at plaintiff’s request. One of them is predicated upon the jury’s finding from the evidence among other facts that defendants were “guilty of negligence which caused or contributed to plaintiff’s injuries, if any, as charged in plaintiff’s declaration or one of the counts thereof.” The other instruction told the jury that it was sufficient to find the issues for plaintiff if they found that the evidence bearing on “plaintiff’s case” preponderates in his favor.

From these instructions the jury were authorized to rest their verdict on said additional count, and may have done so. If, as contended by appellants, the ordinance assumed the power to regulate a public utility which under the Public Utilities Act is vested 'exclusively in the Illinois Commerce Commission, then as held in Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402, where an ordinance assuming such authority was also counted on and recognized in an instruction to the jury as a basis of liability, the admission of the ordinance in question and the giving of said instruction constituted reversible error.

Appellee contends, however, that the ordinance in question is a legitimate exercise of the city’s power to regulate traffic upon its streets, and in that respect is distinguishable from the ordinance under consideration in the cited case. We cannot concur in the contention. The ordinance in question so far as read in evidence purports to regulate the movement of street cars at street crossings where there is an intersecting street car line. It is manifestly one intended to secure public safety. It is, therefore, a regulatory measure with such object in view; one which, however, is embraced within the power now conferred by the Public Utilities Act upon said commission.

Construing the Public Utilities Act of 1913 in the cited case it was held that “The act charged the commission, so far as the operation of a public utility in the streets of a city was concerned, with the duty of protecting and promoting the safety of the public, and vested in the commission plenary power to perform that duty”; and the court further said, “the Public Utilities Act covers the whole subject of utility regulation.” While the act there construed was the act of 1913, and the act in force at the time of the accident in question was passed in 1921 (Laws of 1921, p. 702), the provisions of the latter act are for all practical purposes identical with the act of 1913, except that article VI of the act of 1921 provides that by a vote of the people as therein provided the authority of a city shall supersede the powers of the Illinois Commerce Commission with respect to public utilities within such city, but that such power shall remain in the commission until the article has been adopted and approved by the voters of such city. - There is nothing in this record which shows that the City of Chicago has adopted said article. The powers of the commission, therefore, as stated in the Northern Trust Go. case, supra, remain unchanged so far as the City of Chicago is concerned and this record shows. It was held in the City of Witt v. Cleveland C., C. & St. L. Ry. Co., 324 Ill. 494, that by said act the general assembly withdrew from cities and villages the power theretofore exercised by them with reference to the speed and operation of railway trains and that such power is now vested in the Commerce Commission, another agency of the government. We fail to see that any valid distinction can be made between a railroad and a street railway with respect to regulations seeking the safety of the public at their intersections with streets. In Illinois Commerce Commission v. Omphghent Township, 326 Ill. 65, it was said that neither franchise ordinances of cities accepted and acted upon by utility companies nor regulatory ordinances of cities under legislative authority can stand in the way of the lawful exercise by the Commerce Commission of regulatory powers conferred upon it by law. The language of the act and of these decisions construing it is so comprehensive respecting the power conferred upon the Illinois Commerce Commission to regulate operation of all public utilities with respect to public safety and the public welfare that we cannot doubt that to enforce the ordinance in question would be an usurpation of that power. With respect to said alleged errors the case involves the same questions decided in Northern Trust Co. v. Chicago Rys. Co., supra, and for the reasons there stated the judgment must be reversed and the cause remanded.

In view of this conclusion we deem it unnecessary to discuss the numerous other alleged errors upon which appellants rely.

Reversed and remanded.

G-ridley and Scanlah, JJ., concur.