text:
    Marie A. McCarthy, Appellant, v. City of Chicago, Appellee.
    Gen. No. 41,428.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed December 30, 1941.
    Finn & Miller, of Chicago, for appellants.
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action for damages for personal injuries alleged to have been sustained by plaintiff. Defendant’s motion to strike plaintiff’s second amended complaint was allowed and the cause was dismissed. Plaintiff appeals.

This appeal presents for decision the sole question as to whether or not plaintiff complied with the statute requiring notice of injury to be filed with the city attorney and city clerk within six months from the date of the injury.

The sixth paragraph of the second amended complaint reads as follows:

“Sixth: That Section 7, Chapter 70, Illinois Revised Statutes, in force at the time of the injury, provides :
“ ‘Within six months from the date of the injury, plaintiff either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident the place or location where such accident occurred and the name and address of the attending physician.’
“That plaintiff, prior to the starting of the suit herein and within six months of the happening of the injury aforesaid, fully complied with said statute in the following manner, viz.:
“That there was no city attorney in the City of Chicago at the time of the injury in question; that there was in force a certain ordinance of the City of Chicago which is as follows:
“ ‘ Section 6-1, Chapter 6, Municipal Code of Chicago.
“ ‘6-1. There is hereby established an executive department of the municipal government of the city which shall be known as the department of law, and which shall embrace the corporation counsel and such assistants and clerks as may be provided for in the annual appropriation ordinance.
“ ‘6-2. There is hereby created the office of corporation counsel. He shall be appointed by the mayor, by and with the advice and consent of the city council, and shall be the head of the department of law of the city.
“ ‘The corporation counsel shall perform the following duties:
“‘(a) Superintend and, with his assistants and clerks, conduct all the law business of the city.
“ ‘(b) Appear for and protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department, including actions for damages when brought against such officer in his official capacity.
“ ‘6-8. The corporation counsel shall have authority, when directed by the city council, to make settlements of lawsuits and controverted claims against the city.
“ ‘It shall be the duty of the corporation counsel and all other officers of the city, if any, who shall be given authority to make settlements of lawsuits or controverted claims against the city, to report in writing, at the first regular meeting of the city council in each and every month all cases where settlements have been made of such lawsuits or claims.’
“That the said corporation counsel had established a division of his office known as the personal injury division, which had sole charge of the defense of personal injury cases; that on July 2, 1937, plaintiff filed in the personal injury division of the corporation counsel’s office, located at room 602, City Hall, in the City of Chicago, a statement in writing, signed by the plaintiff, and delivered by the plaintiff to one of the assistants of the corporation counsel in said personal injury division, which said statement was signed by said assistant as a witness, and which contained her residence address as well as the name and address of her employer, the date and about the hour of the accident, the place or location where such accident occurred, and the name and address of her attending physician, also a description of the accident in question; that thereafter, the plaintiff, on the recommendation of said assistant of the Corporation Counsel’s office, also caused to be presented to the City Council of the City of Chicago by Alderman Perry of the 18th Ward in which she resided, said claim for personal injuries, the receipt and introduction of which is shown by a document in writing dated July 9, 1937, and signed by Peter J. Brady, City Clerk. That on September 17, 1937, plaintiff delivered to one of the assistants in the personal injury division of the Corporation Counsel’s office, the bill, in writing, of her attending physician, giving the full name and correct address of said physician, and divers bills, in writing, of the Evangelical Hospital, in the City of Chicago, at which she was treated for her injuries, and September 23, 1937, plaintiff further delivered to one of the assistants in the personal injury division of the Corporation Counsel’s, office, a memorandum, in writing, of the bills of her attending physician and her hospital and x-ray expenses, together with a memorandum, in writing, of her loss of salary, over her signature, photostatic copies of all of which documents are attached hereto and are hereby made a part of this Second Amended Complaint.
“That said claim for personal injuries was introduced to the City Council as shown by the Council Proceedings on July 9, 1937, page 4140, and was by the said Council referred to the Committee on Finance ; that later on November 22, 1937, at the request of the Committee on Finance there was transmitted to the Committee on Finance an opinion of the Corporation Counsel of the City of Chicago, including a quotation in full of the aforesaid statement of the plaintiff filed in the personal injury division of the Corporation Counsel’s office of the City of Chicago, which said opinion advised that the claim be rejected, without making any objections whatever to the sufficiency of the statutory notice; that plaintiff called in person at the personal injury division of the Corporation Counsel’s office numerous times during the six months after her injury and discussed her claim with one or more of the employees and assistants of the personal injury division of the Corporation Counsel’s office; that her last visit was on January 13, 1938, when she was notified by one of the assistants of the personal injury division of the Corporation Counsel’s office that her claim had been rejected; that on February 7, 1938, at the regular meeting of the City Council, said claim was disallowed by order of the Council.” Certain documents attached to the complaint are sufficiently described in the sixth paragraph of the complaint.

Defendant states: "The defendant will not, discuss the question of whether or not the plaintiff complied with the section of the statute in serving the Corporation Counsel in the manner she did, but will base its entire argument on the fact that the plaintiff failed and neglected to file a statement in writing in the office of the city clerk and therefore her suit was properly dismissed by the trial court.” The sole question, therefore, is narrowed down to this: Did plaintiff substantially comply with the statutory requirement that she file a statement in writing in the office of the city clerk?

Plaintiff contends that “the provision of the statute that notice should also be served upon the city clerk was substantially complied with in the case at bar,” and argues as follows: “That this case had been brought to the attention of the City Clerk is beyond dispute. Over his signature on July 9, 1937, as shown by one of plaintiff’s exhibits which is attached to and made a part of plaintiff’s second amended complaint, he introduced plaintiff’s claim to the City Council for its consideration [Alderman Perry presented the claim to the council], and in connection with the consideration of this claim there was transmitted to the committee on finance of the city council having this matter under consideration, by means of a letter of the corporation counsel to the committee on finance, the entire contents of the notice as filed by the plaintiff with the Personal Injury Division of the corporation counsel’s office. The city clerk is also the clerk of the committee on finance of the city council and has sole possession and control of all the records of the city council, including the records of the committee on finance, and should, therefore, be held to have judicial notice of them.”

Defendant contends that “service of the statutory notice in the manner provided by the act is mandatory, a condition precedent to the maintenance of a suit at law and. a failure to do so bars a recovery. Plaintiff failed to file a statement in writing in the office of the city clerk and therefore her suit was properly dismissed.”

Sections 2 and 3 of “An Act concerning suits at law for personal injuries and against cities, villages and towns” (ch. 70, pars. 7, 8, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.148 and 107.149]) read as follows:

“7. Notice filed within six months.] Sec. 2. Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident the place or location where such accident occurred and the name and address of the attending physician (if any).”
“8. Dismissal of suit if no notice filed.] Sec. 3. If the notice provided for by section two of this act shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing. ’ ’

In Erford v. City of Peoria, 229 Ill. 546, 553, the court said: “Statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of Ms suit.” In the late case of Minnis v. Friend, 360 Ill. 328, 332, the court said: “The act in question is a valid enactment, and the filing of the statement or notice required by section 2 is a condition precedent to the right to maintain the suit. (Walters v. City of Ottawa, 240 Ill. 259, 263; Condon v. City of Chicago, 249 id. 596.) In Ouimette v. City of Chicago, 242 Ill. 501, the notice stated that the accident occurred on November 10, 1905, instead of October 10, 1905, when the accident had occurred. In holding that notice insufficient we said: ‘The question of tMs notice is entirely witMn legislative control. The legislature may prescribe the conditions under wMch cities shall be held liable to persons injured wMle using streets and sidewalks. (Walters v. City of Ottawa, supra; Curry v. City of Buffalo, 135 N. Y. 366.) It has prescribed in this statute that the notice shall give the date of the accident. From the reasoning in the two cases already cited, heretofore decided by tMs court, it must be held that the wrong date in the notice is, in effect, the same as if no date at all were given. The statute requires the date to be set out in the notice, and this certainly cannot be done by stating that the accident occurred on a date on which it did not occur. Gardner v. New London, 63 Conn. 267,’ and other cases.” In Walters v. City of Ottawa, 240 Ill. 259, 263, the court said: “The city has no power to waive the notice and is under no liability until it is given.” Plaintiff states that “it has been held in several cases in other States under Statutes of this character under similar circumstances such service is a sufficient compliance with the law,” and cites certain cases in support of the statement. In our judgment the Illinois law bearing on the question before us is plain, and it would therefore be an idle task for us to consider the decisions of the sister States cited by plaintiff. In Minnis v. Friend, supra, the city objected to the notice that was served upon the sole ground that the notice was not signed by anyone and that the statute required it to be signed “by such person, his agent or attorney.” The trial court overruled the objection and the notice was received in evidence. There the city did not contend that the notice served upon it did not sufficiently apprise it of “the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident the place or location where such accident occurred and the name and address of the attending physician (if any).” The Supreme Court held that the statute required not only that the notice be given, but that it be signed by such person, his agent or attorney, and that the signing was one of the essentials prescribed by the statute. The court further stated (pp. 332, 333): “Appellee relies upon the case of McComb v. City of Chicago, 263 Ill. 510. There we held a notice gave a sufficient description of the place or location of the accident when it stated that it occurred ‘at or near the corner of Thirty-ninth street and Campbell avenue.’ It was objected that it did not state specifically the corner at which the accident occurred. We said that the purpose of the statute was to enable the city authorities, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused the injury, and that no particular form of notice is required by the statute. What we said necessarily had reference only to the facts of that case. There had been an attempt to comply with the statute, and our holding was that location had been given which was sufficiently definite to comply with the statute. The McComb case would be applicable if there had been some attempt to comply with the requirement of the statute that the notice be signed and if the question were as to the sufficiency of the signature.” It was held in the Minnis case that the notice should not have been admitted in evidence, that the motion to direct a verdict for the City of Chicago at the close of plaintiff’s evidence should have been allowed, and the judgment as to the City of Chicago was reversed. A notice was served in the Minnis case, and it complied with all of the essential requirements of the statute save one — it was not signed. Nevertheless, it was held that the notice was not a substantial compliance with the statute.

Under the facts of the instant case as set up in plaintiff’s complaint it is clear that plaintiff made no attempt to comply with one of the essential requirements of the statute, viz., “file in the office of the . . . city clerk ... a statement in writing.” It appears from the allegations of the complaint that plaintiff had Alderman Perry, of the 18th Ward, in which ward she resided, present to the city council of the City of Chicago a “claim for personal injuries”; that the claim was referred to the Committee on Finance; that it bears upon its back the following: “Referred to the Committee on Finance July 9, 1937 Peter J. Brady City Clerk Egan Presented by Perry Aiderman 18th Ward (Aldermen will please sign all papers presented) ”; that later, on November 22, 1937, at the request of the Committee on Finance, there was transmitted to that Committee “an opinion of the Corporation Counsel of the City of Chicago, including a quotation in full of the aforesaid statement of the plaintiff filed in the personal injury division of the Corporation Counsel’s office of the City of Chicago, which said opinion advised that the claim be rejected, without making any objections whatever to the sufficiency of the statutory notice”; that on January 13, 1938, plaintiff was notified by one of the assistants of the personal injury division of the corporation counsel’s office that her claim had been rejected, and that on February 7, 1938, at a regular meeting of the city council, her “claim” was disallowed by order of the council. Plaintiff argues that as the city clerk was also the clerk of the city council, the city .clerk had notice of plaintiff’s claim when it was introduced in the city council. The action of plaintiff in having Alderman Perry present her claim to the city council was not an attempt to comply with the essential requirement of the statute that a notice be filed in the office of the city clerk, and, therefore, the contention, strenuously argued, that "the provision of the statute that notice should also be served upon the city clerk was substantially complied with in the case at bar,” cannot be sustained. We would be ignoring the mandatory provisions of the statute and deciding the question contrary to the rulings of our Supreme Court if we sustained the contention.

We will briefly refer to Illinois cases cited by plaintiff: In Richmond v. City of Marseilles, 190 Ill. App. 227, it appears that "plaintiff met the city clerk as the latter was on his way to the city hall, where his office was, and plaintiff handed the clerk the notice on the street (p. 232) “and the clerk carried it with him to the city hall at once and had it there in the presence of the city attorney, and the plaintiff later called upon the clerk in his office upon the subject.” It is reasonable to assume from the opinion that the clerk actually filed the notice in his office. The court, in holding that the statute had been sufficiently complied with, called attention to the fact that plaintiff had no power to actually file the statement and that the actual filing was necessarily the act-of the clerk. We have already referred to the case of McComb v. City of Chicago. In Reule v. City of Chicago, 268 Ill. App. 266, the City raised no question as to the sufficiency of the notice nor the service of the same, but claimed that there was a material variance between the notice and the allegation in the declaration as to the place of the accident. The court held that while the notice more specifically designated the place where the accident occurred than did the declaration, there was no material variance between the notice and the declaration. In Fromme v. City of Girard, 295 Ill. App. 144, it was held that a notice to the city stating that plaintiff resided at Girard, Illinois, near the city limits, was sufficient compliance with the statute because it appeared that the city was small and without street numbers or designated places of address. In Schmidt v. City of Chicago, 284 Ill. App. 570 (decided by this division of the court), we stated that “the only defect claimed in the notice is that it gave the address of the attending physician as 6328 Sheridan road when his correct address was 6325 Sheridan road. The attending physican, Dr. George Mueller, was the surgeon in chief of St. Mary of Nazareth Hospital, and a man of considerable repute in the city of Chicago, having practiced medicine and surgery here for more than 40 years.” We held, of course, that the notice filed was a sufficient compliance with the statute.

Plaintiff contends that “by reason of the conduct of the Corporation Counsel together with the action of the City Council in its consideration of the claim, the City should be estopped from urging the failure to file a copy of the notice with the city clerk as a defense.” In support of this contention plaintiff cites decisions of the courts of certain sister States. It is a sufficient answer to the instant contention to say that it is the law of this State that "the city has no power to waive the notice and is under no liability until it is given.” (Walters v. City of Ottawa, supra, p. 263.) Obviously, if a city cannot waive the notice no action by any of its officials can estop the city from urging the failure of a plaintiff to file the notice. If city officials were permitted to waive the notice, or by their acts create an estoppel against the city from urging a failure to file the notice, they could thereby avoid the mandatory provisions of the statute in certain cases. If such a practice were permitted, it would inevitably result in favoritism and scandal, and the city would be denied the benefit of the statute.

That the city had full knowledge of the facts surrounding the accident fully appears from the pleadings, but counsel for plaintiff concede, as they must, “that knowledge of the facts by the city will not take the place of a notice.” In concluding their brief counsel for plaintiff earnestly argue that a strict construction of the statute results in “widespread injustice”; that the sufficiency of the notice in many city cases is frequently an issue that causes the merits of the transaction to be lost sight of; and that a number of States, recognizing the harm which litigants have suffered under statutes similar to our own, have passed amendatory acts to remedy the evil. This argument should be addressed to the legislature and not to the courts.

We have given careful attention to the question involved in the instant appeal and it is our considered judgment that the action of the trial court in striking the second amended complaint must be sustained.

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

Judgment affirmed.

Sullivan and Friend, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    George B. McLane et al., Plaintiffs, v. Louis Romano et al., Defendants, James Crowley, Appellant.
    Gen. No. 41,766.

      Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed December 30, 1941.
    Harold L. Levy, of Chicago, for appellant; Lawrence S. Jacobson and Grenville Beardsley, both of Chicago, of counsel.
    Charles E. McGuire, of Chicago, and Thomas J. Courtney, State’s Attorney, for appellees; Charles E. McGuire, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An order was entered finding James Crowley, respondent, “guilty of the charge of contempt of this court” and fining him $100. It was further ordered that unless he paid said sum within forty-eight hours to the clerk of the circuit court he would stand committed to the county jail of Cook county, Illinois, until said sum was paid. Respondent appeals from the judgment order.

By an order of this court the instant appeal was consolidated for hearing with the case of People v. Crowley, 312 Ill. App. 381 (Abst.), wherein Crowley seeks to have the judgment order of contempt reviewed by writ of error. We are this day filing an opinion in that suit.

On May 31, 1940, a complaint was filed by George B. McLane et al. against Louis Romano, James Crowley et al. Plaintiffs sued as members of Bartenders and Beverage Dispensers Union, Local No. 278 (hereinafter called the union), a voluntary unincorporated labor organization affiliated with Hotel and Restaurant Employees International Alliance and Bartenders International League of America. The complaint charged that the union had on hand in various funds more than $250,000; that certain evil disposed persons were organized into a syndicate to force the union by threats of violence and death to pay it large sums of money; that in March, 1935, the syndicate demanded $500 from plaintiff McLane, who was the business agent of the union; that the syndicate forced McLane to cause the employment of Romano as business agent; that in September, 1938, the syndicate caused McLane to procure the election of Romano as president of the union; that on August 4, 1939, certain members of the syndicate told McLane to be inactive as business agent and to follow Romano’s lead, and that he would still receive his salary; that Romano appointed Crowley, defendant, secretary-treasurer of the union and appointed Panton, defendant, business representative in place of McLane; that Romano accused McLane of conspiring against the union; that plaintiffs fear charges will be preferred against thém and that they cannot secure a fair trial upon the charges; that the salary of McLane as business agent has been stopped and he has been deprived of his office; that on May 29, 1940, the plaintiffs were notified that charges had been filed against them and to appear for trial on June 3, 1940; that the charges were not filed in good faith and the trial will be unfair; that it is the purpose of defendants to convict plaintiffs upon false charges and expel them from the union, and thereby plaintiffs will lose the right to death and sick benefits, and McLane will lose his salary as business agent at $200 per week; that defendants have control of the union and are about to loot it of large sums of money; that if the court would take charge of the union, appoint a receiver and hold an election under the protection of the court, the members of the union would elect officers of their choice and remove the syndicate from control; that plaintiffs sue on behalf of themselves and as representatives of the 4,800 members of the union. Plaintiffs prayed that defendants account for the funds of the union, that a receiver be appointed to take charge of the funds and assets of the union, and that the court, through the receiver, call an election for the purpose of electing officers at which only eligible members of good standing shall be eligible to vote under the protection of the court; that defendants be enjoined from interfering with the officers of the union and any of the members of the union, from threatening, coercing and intimidating them, from interfering with McLane as business agent and from interfering with his compensation, and from filing charges against him and other plaintiffs, and that defendants be enjoined from removing any funds from the treasury of the union. On May 31, 1940, a temporary injunction was entered restraining defendants from enforcing the by-laws of the union in respect to elections; from threatening, coercing or intimidating plaintiffs; from interfering with McLane as business- representative, and from interfering with his compensation; from molesting, striking, etc., plaintiffs; from filing charges against them; from trying them; from interfering with their membership in the union; from claiming that they are not members in good standing; from expelling or disciplining them, and from drawing or expending any of the funds of the union until the further order of the court. Defendants filed an answer denying all of the material allegations of the complaint and also filed a counterclaim in which they charged violations of the constitution and by-laws by plaintiffs, charged that plaintiffs filed the suit when an audit by an independent firm of certified public accountants showed McLane to be short in his accounts, and with having failed and refused to account and produce vouchers for funds of the union, amounting to $152,091.01; charged that McLane is a notorious hoodlum, gunman, racketeer, habitual drunkard, and a bootlegger during the prohibition era; that he is under indictment 'for robbery with a gun and assault with intent to commit murder. The counterclaim also charges that plaintiffs and divers unknown persons conspired to obtain control of the union; that they have converted $151,091.01 belonging to the union; that they have secreted and concealed cancelled checks and financial records of the local union, and prays an accounting and an injunction restraining plaintiffs from burning and destroying the financial records of the union and from threatening injury or violence to defendants and counterclaimants. The answer of plaintiffs to the counterclaim denied all of the material allegations of the answer and counterclaim.

On August 16, 1940, an order was entered which states that as the parties have stipulated that a receiver be appointed the court appoints Boy D. Keehn receiver of the union. This order is a lengthy one, and upon the consideration of this appeal it is only necessary for us to notice the following part of the order:

“It Is Further Ordered, Adjudged and Decreed that at such time hereafter as this court may order, but not prior to the time provided by said by-laws for the next election, said receiver shall call an election for the purpose of electing officers of said Local Union, and shall conduct and supervise said election to the end that, without coercion, intimidation or fear, the members of said Local Union who are eligible to vote and participate, in said election shall be privileged to choose, select and elect such officers of said Local Union as they shall deem most properly fitted to conduct the affairs thereof, according to the Constitution and by-laws governing said Local Union, and shall see that all eligible members of said Local Union are protected in the exercise of such right of suffrage, and that said election shall be held under the Australian ballot system, and the poll shall be held open sufficiently long to enable all of the members of said Local Union, regardless of their hours of work, to cast their ballot thereat, and shall report to this court the results of such election. At such election said receiver shall prepare the ballots, appoint proper judges, clerks and tellers, and see that said election is fair in every particular. Prior to the holding of said election said receiver shall report the nominations for all offices to be filled, the names of the persons so nominated, and the eligibility of such persons who aspire to such offices under the rules, by-laws and Constitution governing said Local Union.”

On October 2, 1940, the court entered an order in which the receiver is given directions as to the manner in which nominations for the offices of the union shall be made. This order also directs the receiver to prepare a list of all members of the union that appeared to be eligible to vote at the election and to file the.list with the court, and at the same time post a copy thereof in a prominent place in the club rooms of the local union; that all proper persons who wished to object to the eligibility of a member posted on the eligible list are ordered to file objections with the receiver or with the court on or before November 4, 1940, and that all objections so filed will be heard by the court on November 6, 1940, at 2 o’clock p.m.; that the receiver shall obtain the names of all persons who intend to be candidates and as soon as such names are available the receiver shall report the same to the court, and if any member has any objection to the eligibility of any candidate he shall file the same with the receiver, and that the court will hear the objections.

On January 4, 1941, by leave of court, the following “Petition for Contempt Citation” was filed in the cause:

“Petition for Contempt Citation.
“1. Tour petitioner represents that he is the duly appointed, qualified and acting receiver of the Bartenders and Beverage Dispensers Union, Local 278, in these proceedings; that he was appointed under date of August 16, 1940, and is still acting as such receiver.
“2. That under the order and directions of this court, your petitioner as receiver is conducting an election for officers of said union to be held on January 6, 1941.
“3. That one James Crowley, the secretary and treasurer of said union, circulated to the membership of said union on or about the 2nd day of January, 1941, a certain letter, a photo static copy whereof is attached hereto and made a part hereof.
“4. That in said letter the said Crowley did make the following statement:
“ ‘Nor has the Tribune or any one else told you that your Local was suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the receiver failed to pay the per capita tax to these organizations when due, although I have requested him again and again since his appointment six months ago, to pay these obligations on time.’
“5. Your petitioner respectfully represents that he is informed and believes, and upon such information and belief alleges the fact to be that said Local No. 278 was not suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the receiver failed to pay the per capita tax to these organizations when due, and your petitioner therefore upon such information and belief alleges that said statement by said Crowley, That your Local was suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the receiver failed to pay the per capita tax to these organizations when due,’ is and was false, and upon information and belief your petitioner represents that said statement is and was known to the said James Crowley as false.
“6. Said letter further contains the statement as a part of the statement above quoted, the following:
“ ‘Although I' have requested him again and again since his appointment six months ago, to pay these obligations on time.’ Your petitioner denies that said Crowley ‘requested him again and again since his appointment six months ago, to pay these obligations on time,’ and represents that said statement is false, and was and is known to the said James Crowley to be false now and at the time said letter was circulated.
“7. Wherefore, your petitioner represents to this court that by and through the foregoing statements your Receiver and this Court have been brought into disrepute, and that said statements constitute contempt of this Honorable Court.
“Wherefore, your petitioner prays that this court cause to be issued to and against the said James Crowley its direction and citation ordering and directing that the said James Crowley be and appear before this Honorable court to show cause, if any there be, why he should not be punished for contempt of court.
[signed] “Roy D. Keehn,
Receiver.”

Attached to the petition was a photo static copy of the letter, which reads as follows:

“Bartenders and Beverage Dispensers’ Union Local No. 278
Affiliated with Chicago, Illinois and American Federations of Labor
10 North Clark Street — 15th Floor Telephone Franklin 8948 Chicago, Ill.
“Dear Brother:
“Do you know the facts or do you believe in Propaganda?
‘ ‘I have been maligned by James Doherty, a reporter of the Chicago Tribune, by being called the Nitti Candidate.
“I do not know Nitti or his so-called gang.
“I owe allegiance to no one except the Members of Local 278.
“I will take orders from no one except the Members of Local 278.
“I am not controlled by any gang nor have I any connections with gangsters.
“I have no police or criminal record.
“I am your candidate for President seeking to keep our Union free from Gangsters, Receivers and Newspaper ' Reporters of the calibre of James Doherty of the Chicago Tribune.
“During the eight years that I have been associated with our International Union and Local 278, I have organized upwards of 4,300 members for the. various Locals affiliated with the Local Joint Executive Board, including 800 members for Local 278. I have been instrumental in unionizing 34 of the largest hotels in the City of Chicago, including the Palmer House, Blackstone, Drake, Morrison, LaSalle, Chicagoan, Atlantic, Windermere, Sovereign, Shoreland and Fort Dearborn hotels; securing wage increases for their employees to the extent of $237,-000.00 annually ; also securing for them better working conditions, shorter hours and, for the first time in the history of the industry, vacations with pay.
“Rumors have been circulated recently throughout the membership that I am supporting various candidates to succeed me as Secretary-Treasurer of Local 278. I wish to make it clear that I am supporting John Schoonover for Secretary-Treasurer and ask you to cast your vote for him. He is honest, capable and has a clean labor record for the past twenty-nine years, and if elected he will continue the program of improvements and safeguards installed by me in the management of the finances of your Local.
“In line with their campaign of vilification, the Chicago Tribune devoted its New Year’s Eve headline to the announcement of the suspension of your Local from the Illinois State Federation of Labor. What the Tribune failed to tell you is that we have also been suspended by the Chicago Federation of Labor. Nor has the Tribune or any one else told you that your Local was suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the Receiver failed to pay the per capita tax to these organizations when due, although I have requested him again and again since his appointment six months ago, to pay these obligations- on time.
“Such Are the Facts.
“As for Propaganda, need I point out that the daily articles concerning your Union and me appearing anywhere from the front to the obituary page of the Chicago Tribune are little more than fabrications of myth, concocted in the mind and executed by the pen of the Tribune reporter, James Doherty, who, irked, because he failed to secure the appointment of his personal friend as Receiver for our Union, has resorted to every scheme possible, even to wholesale misquoting of persons concerned, endeavoring in that manner to sway you away from the real issue of this campaign. That issue, I repeat, is to run the Union eor its Members, by its Members, without benefit of Receivers, Crime Commissions, Employers’ Associations or Writers of vicious propaganda which will continue to appear until the last vote is counted. Your vote for the enclosed ticket rather than for the TribuneDoherty-Sponsored-Slate headed by Austin Steeves, will be proof that you are able to make an intelligent selection at this crucial election.
“I would much prefer to have been able to call on you in person to tell you what has transpired since I was elected Secretary-Treasurer of your Local on March 25, 1940. I have been unable to do so because I have been in court almost constantly and working at the Union office to safeguard your interests.
“Fraternally yours, “James Crowley, “Secretary-Treasurer.
“Be sure to vote Monday, January sixth 9:00 A. M. to 9:00 P. M.
Boom 741 County Building Clark & Washington Streets
Bring your union book with you.”

The trial court ordered respondent to show cause, on January 7, 1941, why he should not be held in contempt of court; that “this order is entered without notice upon good cause having been shown.” On January 6, 1941, at the election held under the direction of the receiver, respondent, Crowley, was elected president of the union.

On November 12, 1940, the following stipulation was filed in the cause:

“In the Circuit Court of Cook County
‘ ‘ Stipulation
“It is hereby stipulated by and between all of the parties hereto, both plaintiff and defendant, by their respective attorneys, that the complaint and answer thereto, counterclaim and answer thereto, and this cause, be dismissed without costs, all costs having heretofore been paid.
“A. C. Lewis Attorney for Plaintiffs
“Harold L. Levy Attorney for Defendants”

This stipulation and a motion to dismiss in accordance with the stipulation were taken under advisement by the court and denied on December 5, 1940, in a “Memorandum” order filed with the clerk of the court, which states, inter alia, that six days after the stipulation to dismiss was filed and the motion to dismiss made, fifty members of the union, by an attorney, asked leave to intervene and to file objections to the motion of plaintiffs to dismiss the suit-, that the motion to intervene was resisted by plaintiffs and defendants but'that the court allows the petitioners to intervene, and provides that the receiver continue in possession of the property and funds of the union. The order further provides that the receiver proceed with the conduct of the election.

Respondent filed a motion to strike the petition and discharge the rule, upon the grounds, inter alia, that “the petition was legally insufficient, because not positively verified and because the language of the letter attached to the petition could not reasonably be taken or construed as calculated to impede, embarrass or obstruct the court in the due administration of justice, and this publication was not and could not be contempt of the court, and the relief prayed for was in derogation of the rights of free speech and free press as guaranteed by the constitutions of this State and of the United States.” The motion to strike was denied and respondent was ruled to answer the petition. We will refer to such parts of the answer as we deem material upon the instant appeal: It alleges that at the time of the filing of the stipulation and the entry of the motion to dismiss the cause no person had sought to intervene as a party in the cause, nor was any petition for leave to intervene presented to the court until about two weeks after the filing of the said stipulation and the making of the motion to dismiss, and the court was therefore without jurisdiction to enter any order in the cause save one dismissing the cause and terminating the receivership. The respondent admitted that on or about January 2, 1941, he circulated to the membership of the union the letter, a copy of which was attached to the petition of the receiver. In answer to the allegations contained in paragraph 5 of the petition, respondent denies that the statement contained in said letter “that your Local was suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the receiver failed to pay the per capita tax to these organizations when due” was false, and he denies that said statement was known by the respondent to be false. Anwering the allegations contained in paragraph 5 of the petition, respondent alleges that at the time the letter was written and circulated, “this respondent verily believed in good faith,* that the sole reason for the suspension of Local 278 by the Illinois State Federation of Labor and the Chicago Federation of Labor was the fact that the per capita tax payable to those organizations was not paid when due.” Respondent denies that the statement contained in paragraph 6 of the petition was false and denies that it was known to respondent to be false at the time the letter was circulated and alleges that said statement was true. The answer then continues as follows:

“7. This respondent denies that the said receiver or this court have been brought into disrepute by the foregoing statements, or either statement or any part thereof, as alleged in paragraph 7 of said petition, and he further denies that the said statements, or either of them, or any part thereof constitute contempt of this Honorable Court. Further answering the allegations contained in paragraph 7 of said petition, this respondent alleges that the said statements were not intended by this respondent or calculated by him to bring this court or said receiver into disrepute, all as more fully appears in the allegations herein contained, and denies that this respondent intended to or in any manner directly or indirectly by said letter did,. impede, interrupt, embarrass or interfere with this court or its receiver in the administration of justice and in the administration of the affairs and management of the property of said Bartenders and Beverage Dispensers Union Local 278.
“8. Further answering the said petition, this respondent alleges that the Illinois State Federation of Labor is a voluntary unincorporated association composed of numerous other voluntary associations known as Local Labor Unions throughout the State of Illinois, which said Illinois State Federation of Labor is affiliated with the American Federation of Labor; that the said Illinois State Federation of Labor is governed by a constitution which is now, and has been at all times since,prior to December 12,1940, in full force and effect; that a true, correct and complete copy of said constitution of the Illinois State Federation of Labor is attached hereto . . . and made a part hereof, as fully as though the same were set out in full at this point.
“9. This respondent further alleges that the Chicago Federation of Labor is a voluntary unincorporated association composed of numerous other voluntary associations known as Local Labor Unions throughout the city of Chicago; that said Chicago Federation of Labor is governed by a Constitution which is now, and has been at all times since prior to December 12, 1940, in full force and effect; that a true, correct and complete copy of said Constitution of the Chicago Federation of Labor is attached hereto . . . and made a part hereof as fully as though the same were set out in full at this point.
“10. That the Bartenders & Beverage Dispensers Union Local 278 is now, and has been for many years last past until suspended, as herein set forth, a member in good standing of and affiliated with the said Illinois State Federation of Labor and the Chicago Federation of Labor.
“11. That all local unions affiliated with the Illinois State Federation of Labor and the Chicago Federation of Labor are required by each of said organizations to pay a per capita tax to the said Illinois State Federation of Labor and the Chicago Federation of Labor.
“12. That this respondent is now and has been continuously since prior to the filing of the complaint herein, and since prior to the appointment on August 16, 1940, of Boy D. Keehn, as receiver of the Bartenders & Beverage Dispensers Union Local 278, the Secretary-Treasurer of said union Local 278; that on or about to-wit: May 31, 1940, an injunction was issued pursuant to order of this court enjoining, among others, this respondent from drawing or expending any of the funds of said local union until the further order of this court, which said injunction has been at all times continuously since its issuance herein in full force and effect; that the order entered herein on August 16, 1940, appointing said Boy D. Keehn as receiver gave to said receiver sole and exclusive control of all of the funds and assets of the said union Local 278; and that since his said appointment as receiver herein no disbursements of union funds could be made without the approval or consent of said receiver.
“13. That during the period prior to the appointment of said receiver during which said injunction was in force, to-wit: May 31, 1940, to August 16, 1940, no payment was made by Local 278 to the Illinois State Federation of Labor or to the Chicago Federation of Labor for the per capita tax due to each of said organizations from Local 278 because of the provisions of said injunction enjoining expenditure of union funds.
“14. That during the period prior to December 13, 1940, and subsequent to August 16, 1940, the date of the appointment of said receiver, no payment had been made by Local 278 or by said receiver on its behalf to the Illinois State Federation of Labor or to the Chicago Federation of Labor of the per capita tax due to each of said organizations from Local 278; that during said period this respondent on several occasions requested that said receiver pay the said per capita tax due to the Illinois State Federation of Labor and to the Chicago Federation of Labor.
“15. That on December 13, 1940, this respondent received from the Chicago Federation of Labor its letter dated December 12, 1940, a copy of which is attached hereto . . . and made a part hereof as fully as though the same were set forth in full at this point; that upon receipt of said letter, this respondent gave said letter to said receiver and again requested that payment be made of the per capita tax due to both the Chicago Federation of Labor and the Illinois State Federation of Labor.
“16. That thereupon the said receiver issued his check dated December 12, 1940, in the sum of $60.00, payable to the Illinois State Federation of Labor, in payment of the per capita tax then due to the Illinois State Federation of Labor, which check this respondent forthwith mailed to the said Illinois State Federation of Labor.
“17. Thereafter on or about to-wit: December 20, 1940, this affiant received from the Illinois State Federation of Labor its letter dated December 19,1940, a copy of which is attached hereto and marked Exhibit ‘C’ and made a part hereof as fully as though the same were set out in full at this point; that the said check was returned to this respondent by the Illinois State Federation of Labor with the said letter.
“18. That under the terms and provisions of the constitution of the Illinois State Federation of Labor . . . , the only grounds for suspension or expulsion of a local union by the Illinois State Federation of Labor is non-payment of the per capita tax or dues payable to the said Illinois State Federation of Labor by such local union; that Section 73 of said Constitution of the Illinois State Federation of Labor . . . is in the words and figures as follows:
“ ' Section 73. When a local union or central body becomes three (3) months in arrears for dues or per capita tax, such local union or central body shall, after being fully notified, stand suspended until all arrears have been paid. Failure to pay in six (6) months shall be cause for expulsion ,without notice from the officials of the federation.’
“19. That Section 73 is the only provision contained in said Constitution of the Illinois State Federation of Labor pertaining to or authorizing the suspension or expulsion of a local union from the said Illinois State Federation of Labor.
“20. That under the terms and provisions of the Constitution of the Chicago Federation of Labor . . . the only applicable grounds for suspension or expulsion of a Local Union by the Chicago Federation of Labor is non-payment of the per capita tax or dues payable to said Chicago Federation of Labor by such local union; that Section 29 of said Constitution of the Chicago Federation of Labor ... is in words and figures as follows:
“ ‘Sec. 29. Local unions having 100 members or less shall pay $2.00 a month in advance; unions of over 100 members shall pay two cents per member per month in advance. Any organization failing to pay its per capita tax for three (3) consecutive months, except in time' of strike or lockout, shall be stricken from the roll, having been officially notified by the Financial Secretary, and shall not be readmitted until all arrears are paid in full. Any organization failing to pay its per capita tax and be in good standing 30 days prior to any election for either officers or delegates shall not be entitled to a vote, or be eligible to any office within the gift of the Federation. ’
“21. That Section 29 is the only applicable provision contained in said Constitution of the Chicago Federation of Labor pertaining or authorizing the suspension or expulsion of a Local Union from the said ■ Chicago Federation of Labor.
“22. That in view of the letter of the Chicago Federation of Labor . . ., and in view of the Constitution of the Illinois State Federation of Labor . . . and Section 73 thereof, and in view of the Constitution of the Chicago Federation of Labor . . . and Section 29 thereof, this respondent believed, and had reasonable grounds and probable cause to believe, that the reason for the suspension of the Bartenders & Beverage Dispensers Union Local 278 from the Illinois State Federation of Labor was non-payment of the dues or per capita tax due and payable from said local union to the said Illinois State Federation of Labor, and that the statements contained in the letter complained of in the petition for contempt citation herein were true at the time said letter was circulated; and that any ordinarily prudent and intelligent man would have entertained the same belief under the same circumstances.
“23. „ This respondent further alleges that at all times on and subsequent to December 30, 1940, up to and including January 6, 1941, this respondent was a candidate for President of the Bartenders & Beverage Dispensers Union Local 278, his nomination as a candidate for said office having been previous to December 30,1940, approved by order of this court; that the election of officers of said union Local 278 was scheduled to be held and was held on January 6,1941, under the supervision of this court; that this respondent was opposed by one Austin Steeves in his candidacy for President of said union Local 278; that this respondent was elected President of said Bartenders & Beverage Dispensers Union Local 278 at said election held on January 6, 1941, and his said election to the office of President of said local union was thereafter approved and confirmed by order of this court.
‘ ‘ 24. That for several months prior to December 31, 1940, the internal affairs of the Bartenders & Beverage Dispensers Union Local 278 and these proceedings received extensive publicity in the daily press in Chicago ; that in the editions dated January 1,1940 [1941], of one of the Chicago daily newspapers having a circulation of more than a million copies per day, there appeared three articles, true and correct copies of which are attached hereto and marked respectively Exhibits 'D’, ‘E’ and 'F’, each of which is made a part hereof as fully as though the same was set forth in full at this point; Exhibits 'D’ and 'E’ appeared in the early editions of said newspaper bearing date of January 1, 1941, which said early editions appeared on the news stands and were circulated throughout the City of Chicago generally during the evening óf December 31, 1940, being New Tear’s Eve.
“25. That the articles set forth in Exhibits 'D’, 'E’ and 'F’ were seen and read by practically every member of the Bartenders & Beverage Dispensers Union Local 278; that this respondent believed and had reasonable cause to believe that said articles were harmful and injurious to this respondent’s candidacy for Presidency of said Local 278 in that said articles failed to state the true facts in connection with the suspension of said local from the Illinois State Federation of Labor, but intimated instead that said suspension was caused by misfeasance or malfeasance of this' respondent; and that any ordinarily prudent and intelligent man would have entertained the same belief, under the same circumstances as that entertained by this respondent.
“26. This respondent further alleges that he was in no way at fault in connection with and in no way responsible for the suspension of Local 278 from either the Illinois State Federation of Labor or the Chicago Federation of Labor.
“27. That this respondent in causing to be circulated the statements contained in the letter and complained of in the petition for contempt citation did so with the purpose and intent and with the only purpose and intent of correcting any erroneous impressions which the members of the Bartenders & Beverage Dispensers Union Local 278 might have received from reading the said newspaper articles; that said letter was circulated by this respondent in good faith in an effort to offset the said newspaper articles and to assist the members in arriving at the true facts concerning the entire matter as this respondent honestly believed them to be.
“28. That this respondent in circulating said letter did not intend to and did not in any way impede, embarrass or obstruct this court in the due administration of justice; and this respondent in circulating said letter did not intend to and did not intimidate, embarrass, impede or obstruct the said petitioner and receiver, Roy D. Keehn, in the performance of his official acts and duties as such receiver; and this respondent in circulating said letter did not intend to and did not obstruct justice or bring this court or its said receiver, Roy D. Keehn, into disrespect or public hatred, ridicule or contempt; and this respondent alleges that he-has done nothing to obstruct justice or to reflect in any way upon this court or upon this receiver in the performance of his official acts and duties as such receiver, but this respondent alleges that he has the utmost respect for the dignity and authority of this court; that this respondent is informed and believes that in circulating said letter he was entirely within his rights as guaranteed to him by the Constitution and laws of the State of Illinois and the Constitution of the United States; that this respondent is not, and has never intended to be in contempt of this court and prays that he may be discharged upon the rule- to show cause heretofore entered herein.
[ Signed] ‘ ‘ James Crowley ’ ’

Here follows the verification.

Attached to the answer was a copy of the constitution of the Illinois State Federation of Labor; also a copy of the constitution and by-laws of the Chicago Federation of Labor; also copies of the following letters:

“December 12, 1940.
“Mr. James Crowley, Secretary
“Bartenders & Beverage Dispensers’ Union,
Local 278
“10 North Clark Street
“Chicago, Illinois.
“Dear Sir and Brother:
“According to onr financial records, yonr organization has not paid its per capita tax since June, 1940, being six months in arrears.
“Section 29 of the Constitution of the Chicago Federation of Labor provides that . . . ‘Any organization failing to pay its per capita tax for three consecutive months, except in time of strike or lockout, shall be stricken from the roll, having been officially notified by the Financial Secretary, and shall not be readmitted until all arrears are paid in full.’
“We therefore advise you that we have been obliged to close the account of your local union on our books.
“Yours very truly,
“Chicago Federation op Labor
[Signed] “Maurice Lynch
“Financial Secretary
“December 19, 1940.
“Mr. James Crowley, Secretary-Treasurer,
“Bartenders and Beverage Dispensers’ Union Local No. 278,
“10 North Clark Street,
“Chicago, Illinois.
“Dear Sir and Brother:
“The Executive Board of the Illinois State Federation of Labor, at its session on December 14, decided ‘that, under prevailing conditions, it would be to the best interest of the Federation and its affiliated unions to receive no further payment from the Bartenders and Beverage Dispensers’ Union Local No. 278 at this time.’
“I therefore return herewith your check for $60.00 which, as stated in your letter of December 13, you forwarded as per capita tax for the six months ending December 31, 1940.
“Fraternally yours,
[Signed] “V. A. Olander,
“Victor A. Olander
Secretary-Treasurer. ’ ’

There was also attached to the answer a copy of an article that appeared in the Chicago Tribune under date of January 1, 1941. The article is too lengthy to cite in full. It appeared on the front page of the paper, and across the top of the front page, in large boldface type, appeared the words, “Labor Ousts Nitti Bar Union,” and underneath these words appeared, in large letters, the following: “Gangdom rule prompts move by state body — Write-In Against McLane Barred.”

The article contains the following:

“Local 278 of the Bartenders’ union has been expelled from the Illinois Federation of Labor. Notice of the expulsion was received yesterday by Roy D. Keehn, whom Circuit Judge Robert Jerome Dunne appointed receiver of the union to free it from the clutches of the gang of Frank [The Enforcer] Nitti.
“Word that the state federation had dropped the bartenders from membership was received soon after Judge Dunne had barred a write-in campaign against George B. McLane, business agent of the union, in the union election scheduled for Monday.
“For some time past the state federation has been outspoken against the presence of gangsters in the control of labor unions. The reason for expelling the bartenders was not stated, but it was said the federation’s executive board was convinced the union was being operated as a gangster agency.”

The article also contains the following:

“Ouster Viewed as Help.
‘ ‘ The action of the state federation in expelling the union was considered as greatly aiding the candidates led by Steeves. They are Russell Briggs, for vice president; Albert Reynolds, for secretary-treasurer; John Nagle, for recording secretary; Tony Bastone, for chaplain, and Richard Nugent, John McLaughlin, and Martin Jirgal for trustees.
“ ‘It shows,’ Steeves said, ‘that our brother unionists recognize the harm done to the bartenders’ union by the Crowley-McLane group.’ ”

The article concluded with the following: “Expulsion from the other central bodies may follow, some labor chieftains said. Labor spokesmen said that regardless of the outcome of Monday’s election, the courts and other authorities are to be encouraged to carry on the battle to purge the bartenders and affiliated unions of gang domination.”

Respondent" circulated his letter among the members of the union the day after the article appeared in the Chicago Tribune.

The trial court determined the issues on the contempt proceedings upon the petition and the answer. The court held that the conduct of respondent in circulating the letter constituted contempt of court; that it caused disrespect for the court “and was disruptive of the orderly processes of this court and the administration of the receivership herein.” The court in its judgment order absolved respondent from any intention to impede the administration of justice but held that as the circulating of the letter amounted to a contempt the lack of intention to commit contempt could not justify the act.

Five points are made by respondent in support of his contention that the order entered should be reversed. It is only necessary to consider one. The respondent contends that “it conclusively appears that respondent was not guilty of contempt of court,” and that “it was error for the trial court to find respondent guilty of contempt.and fine him when his answer, which was conclusive, purged him of contempt. The trial court adjudged conduct to be contemptuous which under the law was not and could not have been contempt of court.” A brief has been filed on behalf of The People and we have searched in vain to find any answer in the brief to respondent’s instant contention, although answers to other points urged by respondent are made. The instant petition was based upon the theory that the statement contained in respondent ’s letter to the membership of the union ‘ ‘ that your Local was suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because the Receiver failed to pay the per capita tax to these organizations when due,” and also the statement contained in the letter that “although I have requested him again and again since his appointment six months ago, to pay these obligations on time,” were false and were known to the respondent to lie false at the time the letter was circulated. The petition asked the court to hold respondent in contempt because of the said statements. Respondent, in his answer, denied that these statements were false and alleged that they were true, and this answer by respondent must, of course,, be taken as true. The action of the court in assuming charge of the election was one that he was not obliged to assume, and such action, therefore, was in the nature of an extrajudicial act. The court, in his order directing the receiver to conduct an election, justifies such action upon the ground that it was for the benefit of the members of the union that a fair and impartial election be held. Respondent, at the time he wrote the letter, was the secretary-treasurer of the union and was also a candidate for president of the union at the election. Austin Steeves was also a candidate for the office of president. Upon the eve of the election the Chicago Tribune published the article in question and respondent had a right to assume that practically all of the members of the union read it. It, in effect, charged that the Union was being operated and ruled by vicious gangsters, and clearly implied that respondent, as well as other officials of the union, were dominated by the underworld. The article stated: “It was said the federation’s executive board was convinced the union was being operated as a gangster agency,” and that the suspension of the union by the State Federation was prompted by that fact. The • article concludes: “Labor spokesmen said that regardless of the outcome of Monday’s election, the courts and other authorities are to be encouraged to carry on the battle to purge the bartenders and affiliated unions of gang domination.” (Italics ours.) Respondent earnestly contends that the Tribune article was inspired by the receiver and that he, respondent, was grievously wronged by the article and his candidacy seriously affected by it. It will be noticed that the article condemns the candidacy of respondent and praises the candidacy of Steeves, who was opposing respondent. No one could reasonably contend that respondent had not the right to address the members of the union in reference to the charges contained in the newspaper article. As one of the plain purposes of the article was to injure the candidacy of respondent, it would be against every rule of fair play to deny him an opportunity to answer it. He had the undoubted right to make a proper campaign in support of his candidacy and to state the facts as to the reason why the Illinois State Federation of Labor suspended the union. If he had remained silent many of the members of the union would undoubtedly have believed the charges made in the newspaper article and would have cast their votes for Steeves. If it be assumed that the holding of the election was not an extrajudicial act, nevertheless, it seems clear that the letter had no tendency to impede, interfere with or obstruct the court in the administration of justice in the cause that was pending before him. In the determination of the contempt proceedings the trial court was bound to assume that the receiver failed to pay the dues and that the suspension of the union followed as a result of that failure.

Respondent was one of the defendants to the complaint and one of the plaintiffs in the counterclaim. He was secretary and treasurer of the union. If he had presented to the trial court a petition that alleged that the union had been suspended by the Illinois State Federation of Labor and the Chicago Federation of Labor because “the Receiver failed to pay the per capita tax to these organizations when due, although I have requested him again and again since his appointment six months ago to pay these obligations on time,” such a petition would not constitute contempt of court. If a receiver is negligent in his duties the knowledge of that fact, when brought home to the court, would aid, not impede, the court in the administration of justice in the cause. It is not the law that a receiver in the performance of his duties is immune from criticism. If a receiver is slandered or libeled he has his redress in a personal action against the slanderer or libeler. Upon a number of occasions honest and courageous criticism of the conduct of certain receivers has resulted in the exposure of illegal and scandalous conduct by such receivers. It is our considered opinion that to deny the respondent the right to send the letter to the members of the union would be to deprive him of the right of free speech.

■ The receiver presented his petition to the trial court just two days before the election was held and respondent is justified in contending that the filing of the petition on the eve of the election was a plain effort to unfairly injure his candidacy. The further contention of respondent that the trial court might well have treated the presentation of the petition at the time in question as a contemptuous act is not without force, as the trial court, in its order, had directed the receiver to hold an election in such a manner that the members of the union might elect their officers without being improperly influenced. The receiver, in all fairness, should not have presented the petition just before the election. It is due respondent to say that the trial court stated during the instant proceedings that he had investigated the record of respondent and found it to be clean.

It would amount to a miscarriage of justice to permit the order in question to stand, and the judgment order of the circuit court of Cook county appealed from is therefore reversed.

Judgment order reversed.

Sullivan and Friend, JJ., concur.


author: Mr. Justice Friend

text:
    Frank Kosicki and Julia Kosicki, Appellees, v. S. A. Healy Company, Appellant.
    Gen. No. 41,431.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed December 30, 1941.
    Rosen, Francis & Cleveland and Healy & Reid, all of Chicago, for appellant.
    Joseph F. Elward, of Chicago, for appellees; Raymond F. McNally, Jr., of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs brought suit against the S. A. Healy Company to recover damages caused to their property through the negligent use of dynamite employed in the construction of an intercepting tunnel and sewer constructed by defendant under a contract with the Sanitary District of Chicago. Judgment was entered on a finding by the court assessing plaintiffs’ damages in the sum of $500 and costs, trial by jury having been waived, and defendant appeals from that judgment.

■ Briefly summarized, plaintiffs’ statement of claim alleged they were the owners of certain real estate in Chicago and had the right to peaceful possession thereof; that May 1, 1937, S. A. Healy Company was constructing a sewer and intercepting tunnel for the Sanitary District of Chicago; that during the course of construction and while excavating ground in the neighborhood of plaintiffs’ property, defendant used and exploded charges of dynamite in a negligent manner; and that as a result of such negligence plaintiffs’ house was damaged to the extent of $500.

In its second amended statement of defense defendant replied that the construction of the public improvement in question was being carried on under a contract with the Sanitary District of Chicago; that all its operations and acts in the construction work were done pursuant to this agreement; that the Sanitary District had full legislative authority to construct the public work; that the statute creating the sanitary district provided a remedy for property owners who claimed damages arising from the construction of a drain, sewer or other improvement by the sanitary district ; and that the remedy provided by the legislature, being complete and adequate, is exclusive.

Plaintiffs’ motion to strike the second amended defense on the ground that the “matters and things set forth ... do not constitute a valid defense in law to the Plaintiffs’ Statement of Claim” was sustained by the court and, defendant having elected to stand on its second amended defense, an order of default was entered for want of pleadings. The court thereupon proceeded to receive evidence on the question of damages, over defendant’s objection, and at the conclusion of the hearing found that plaintiffs’ property had been damaged to the extent of $500 and entered judgment for that amount and costs.

' Defendant relies on section 19 of the Act of May 29, 1889, creating the Sanitary District of Chicago (Ill. Rev. Stat. 1939, ch. 42, par. 339, sec. 19, p. 1337 [Jones Ill. Stats. Ann. 122.128]), which reads: “Every sanitary district shall be liable for all damages to real estate within or without such district which shall be overflowed or otherwise damaged by reason of the construction, enlargement or use of any channel, ditch, drain, outlet or other improvement under the provisions of this act; and actions to recover such damages may he brought in the county where such real estate is situated, or in the county where such sanitary district is located, at the option of the party claiming to be injured. And in case judgment is rendered against such district for damage, the plaintiff shall also recover his reasonable attorneys’ fees to be taxed as costs of suit: Provided, however, it shall appear on the hearing of plaintiff’s motion to tax such attorney’s fees, that the plaintiff notified the trustees of such district, in writing, at least 60 days before suit was commenced by leaving a copy of such notice with some one of the trustees of such district, stating that he claims damages to the amount of........dollars by reason of (here insert the cause of damage) and intends to sue for the same: And, provided further, that the amount recovered shall be larger than the amount offered by said trustees (if anything) as a compromise for damages sustained. [As amended by act approved May 25, 1907. L. 1907, p. 284.] ”

The gravamen of the defense is that the legislature, in creating the sanitary district, granted it certain rights and powers and imposed upon it certain liabilities arising therefrom; that the legislature provided that any property owner claiming to be damaged in the construction of a public improvement by the sanitary district should have a cause of action against it for his damages, constituting a complete and adequate remedy for the property owner; that any other remedies that may have theretofore existed were abolished, and consequently a suit cannot now be maintained against a contractor who constructs a public improvement under contract with the sanitary district pursuant to statutory authority.

Plaintiffs, on the other hand, contend that an independent contractor doing construction work for a municipal corporation has a common-law liability to persons whose real estate is damaged by the negligent manner in which the contractor performs his work. Plaintiffs’ position is wholly independent of any statute and rests upon the duty of defendant to use due care in the explosion of dynamite near their property. They allege in their statement of claim that defendant “wrongfully, negligently and unjustly caused to be exploded quantities of dynamite and other substances of a dangerous and explosive nature, near the aforesaid property of plaintiffs without using reasonable or ordinary care,” and since this allegation is not challenged by the defense, we must assume that the damage resulted from defendant’s negligence. The courts of this State have consistently recognized the existence of a liability on the part of the contractor for the sanitary district, with a corresponding common-law right in the owners to recover damages from the contractor on account of his negligence. That right has been frequently invoked during the 50 years or more since the sanitary district was created by statute in 1889 and has heretofore never been directly questioned.

As recently as December 1939, another division of this court, in Baker v. S. A. Healy Co., 302 Ill. App. 634, held that this same defendant, engaged in constructing an intercepting sewer for the sanitary district under a perpetual easement granted by the city of Chicago, rendered itself liable for damages to property owners if it acted negligently, notwithstanding the provisions of any contract it might have had with the sanitary district for performing the work. Defendant there also contended that whatever acts it performed were in strict compliance with its agreement with the sanitary district, but the court nevertheless held it responsible to third persons for its own negligence. Although the issues in the Baker case were raised only on pleadings, one of the points urged was that the contractor would not be liable to a property owner unless negligent and the court, adopting the contention, said that “acting entirely under the plans and specifications furnished by the Sanitary District the defendant is responsible to third persons, only if it was negligent.”

The common-law liability of a contractor was also upheld in FitzSimons & Connell Co. v. Braun & Fitts, 199 Ill. 390, affirming the decision in 94 Ill. App. 533. The contractor had there used dynamite in excavating a tunnel under contract with the city of Chicago at a place where such use was not necessary or permitted by the contract with the city, and even though the city was dismissed from the case, the contractor was held liable. His liability was predicated on negligence which differed only in degree from that of a contractor who uses dynamite in a negligent manner where it is permissibly used under plans and specifications furnished by a municipality.

In Macer v. O’Brien, 356 Ill. 486, decided in 1934, suit was brought to recover damages to real estate caused by the negligence of an independent contractor building a tunnel for the sanitary district under a license from the city of Chicago. The contractor was held to be “plainly liable” along with the city, whose liability was predicated on the negligent manner in which the sanitary district had exercised its license with the city’s knowledge and acquiescence. It thus seems to be the settled rule in this State that a contractor with a municipal corporation renders himself liable, under the common law, to landowners whose property is damaged through his negligence in exploding dynamite. This liability, long recognized by our courts, was not created by statute but exists under the common law wholly independent of statute.

.It is urged by defendant, however, that since the enactment of the statute creating the sanitary district and by virtue of section 19 thereof, a complete and adequate remedy is afforded property owners which is exclusive of any right that they have to recover damages to their land through the construction of public improvements, even though the resulting damage is due to the negligence of an independent contractor. In an exhaustive brief discussing cases touching upon the exclusiveness of remedies under statutory enactments, the able counsel for defendant take the position that where a statute creates a complete and adequate remedy, such remedy is exclusive, and they argue that this doctrine applies particularly to statutes creating municipal corporations with powers to construct public improvements. As an indication of the completeness and adequacy of the remedy afforded by section 19 of the statute, our attention is called to the fact that under this section an injured property owner needs only to prove that the work was done and that damage resulted, in order to recover, no proof of negligence being required; that a successful plaintiff may upon serving the requisite notice on the sanitary district recover his attorneys’ fees, a practice which is not sanctioned under the common law; and that a property owner who claims damages as the result of a public improvement is entitled to compensation as distinguished from common-law damages, a distinct concept of the quantity of recovery allowed which takes into account any enhancement of the property by the public improvement, even though some damage may have resulted thereby.

It is conceded that Illinois courts, in harmony with the generally established rule of statutory construction, have chosen to pass on each statute as it is presented, in an endeavor to determine from the language of the statute whether it was the intention of the legislature to provide a cumulative or an exclusive remedy. It is argued that there are usually three elements which the courts consider in arriving at a decision: whether the remedy or procedure detailed in the statute is new; whether it is complete and adequate ; and whether there was any precedent at common law for such remedy or procedure despite its newness; and counsel say that, where it appears that the remedy is new, complete and adequate and in derogation of the common law, courts have held that it is exclusive.

The contentions made are largely based on the assumption that section 19 of the statute created a new liability unknown to the common law and that the new remedy thereby was exclusive of all others. While it is undoubtedly true that the legislative enactment created a new liability on the part of the sanitary district and prescribed a remedy therefor, it is equally clear that there was a pre-existing liability under the common law, long recognized by the courts of this State, against independent contractors with a municipality, whose negligence caused injury to nearby landowners. Consequently there now exist independent liabilities on the part of contractors and the sanitary district with concurrent remedies, one under the common law and the other under the statute; and unless section 19 can be fairly construed as impliedly abrogating the existing liability of the contractor, it would logically follow that the statute in question was -intended merely to enlarge the existing common-law remedy, and not to extinguish it.

The rule applicable to the circumstances of this case is well set forth in Lewis’ Sutherland Statutory Construction, 2d ed., vol. II, sec. 720, p. 1310: “Where n statute creates a new right or imposes a new duty or liability, unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. If no remedy is prescribed the right or liability may be enforced by the appropriate remedy already provided. Where a new remedy is given by statute, and there are no negative words or other provisions making it exclusive, it will be deemed to be cumulative only and not to take away prior remedies.” (Citing Mackin v. Haven, 88 Ill. App. 434, aff’d 187 Ill. 480; Harper v. Mangel, 98 Ill. App. 526.)

Illinois courts have on various occasions, although under different circumstances, held that where there are no negative words or other provisions making the new remedy exclusive, it will be deemed to be cumulative only and not intended to take away prior remedies. In Mackin v. Haven, 187 Ill. 480, the heir of a deceased person was sued to recover rent due upon a party-wall agreement made by the deceased and the plaintiffs’ predecessor in title. On appeal it was urged by defendant that the claim for rent had not been presented within the time prescribed by the Administration Act and therefore was not tenable. After pointing out that an heir takes real estate by descent subject to claims against the ancestor, the court said: “A careful examination of the statutory provisions . . . will show, that there is nothing in them inconsistent with the continued existence of the common law remedy. They were intended merely to enlarge that remedy, and not to extinguish it. The statute does not expressly repeal the common law remedy, nor use such language as is inconsistent with its further existence.” The court quoted from the opinion in Chicago & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141, which was a condemnation suit for the purpose of public improvements brought under the Cities and Villages Act. Under that act the parties were not required to make an effort to agree on a price before filing a suit, as they are under section 2 of the Eminent Domain Act. Both statutes had been passed on the same day. The appeal was prosecuted on the theory that no attempt at agreement on price had been made and that the Eminent Domain Act should be construed with the cities and villages statute as one enactment. The court held: “ ‘Where a statute gives a new remedy . . . and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two.’ ” (Citing Sutherland on Stat. Cons., sec. 399.)

In Elkin v. Diversey Trust & Savings Bank, 363 Ill. 160, a bank creditor had filed a bill to determine the stockholders’ constitutional liability. Defendants demurred on the ground that section 11 of the Banking Act as amended in 1929, which provides in part that a creditor’s bill might be brought for the same purpose under certain conditions, was controlling and that, the conditions prescribed in the statute not having been met, the bill was improperly filed. With respect to this contention the Supreme Court held: “It is well settled that where a statute gives a new remedy and contains no negative, express or implied, of the remedy which existed theretofore, the new remedy thus created is cumulative and not exclusive and that a party may elect between the two.” The same rule is set forth in 1 Corpus Juris Secundum 976, sec. 6c, as follows: “Where a statute prescribing a remedy does not create a new right or liability, but merely provides a new remedy for an independent right or liability already existing, the general rule is that the remedy thus given is not regarded as exclusive but as merely cumulative of other existing remedies, and does not take away a preexisting remedy, or, as more specifically stated, if a statute gives a new remedy in the affirmative, and contains no negative, express or implied, of the old remedy, the new remedy is merely cumulative; and, in such a case, the party having the right may resort to either the preexisting or the new remedy, except that he cannot resort to inconsistent remedies; . . . ” Further support for the proposition is found in 44 Corpus Juris 471, sec. 2784, as follows: “However, unless the statutory remedy is expressly made exclusive, it is not a bar to a common-law action by one whose property has been wrongfully appropriated for public use without compensation. Where damages are secured by the constitution, the provision is self-executing, and an action at law may be maintained, where no mode of recovery is prescribed, and if damages result from an improvement unlawfully or negligently made, the remedy is by action of tort, not under the statute, and the property owner is not confined to the statutory remedy where the city has not proceeded in accordance with the statute or with the ordinance authorizing the improvement. . . .”

There is no express repeal of the existing common-law liability of a contractor in section 19 of the statute ; nor does the statute contain any implied negative of the old remedy upon which plaintiffs’ suit is predicated. The defendant was liable at common-law independent of the statute and it was evidently not the intention of the legislature to abolish this liability, but to create a remedy as against a third party. Accordingly we are of opinion that plaintiffs had the right to proceed against the S. A. Healy Company for damages resulting from its negligence to their property and the judgment of the municipal court is affirmed.

Judgment affirmed.

Scanlan, P. J., and Suluvan, J., concur.