text:
    Herman J. Schachtrup, Appellee, v. Ethel L. Hensel, Administratrix of Estate of Frank J. Potter, Deceased, Appellant. C. O. Tuttle, Defendant.
    Gen. No. 9,299.

      Opinion filed April 28, 1938.
    Victor P. Michel, of Peoria, for appellant.
    E. T. O’Connor, John F. Dougherty and Thomas S. Hession, Jr., all of Peoria, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Herman J. Sehaehtrup, started suit in the circuit court of Peoria county against Ethel L. Hensel, administratrix of the estate of Frank J. Potter, deceased, and C. O. Tuttle, for personal injuries which he sustained through a collision occurring between the car of Frank J. Potter (in which the plaintiff, Herman Sehaehtrup, was riding as a guest) and the car driven by C. O. Tuttle. The first count of the petition charges that Herman J. Sehaehtrup was the guest and invitee of the defendant’s intestate, and that Frank J. Potter, defendant’s intestate, unlawfully, wilfully, and wantonly propelled and operated his automobile as to exhibit a total disregard for the life or limb, or property of himself and others; that by and through the wilful and wanton conduct of said defendant’s intestate, Frank J. Potter, his automobile was driven off the northerly lane of the highway, and into and upon the southern lane of said highway, and into and against the other defendant’s (C. O. Tuttle) automobile, striking it with great force and violence in a head-on collision; and on account of such wilful and wanton misconduct, the plaintiff was injured and damaged to the extent of $20,000.

The second count charges the defendant, C. O. Tuttle, with general negligence in operating his automobile at a greater rate of speed than was lawful, and because of such negligence, his said car struck the car of the defendant’s intestate, Frank J. Potter, in which the plaintiff was then and there riding as a guest, and said plaintiff was injured and damaged thereby.

The third count alleges general negligence against the defendant’s intestate, Frank J. Potter, and O. O. Tuttle, and in addition charges wilful and wanton conduct on the part of the defendant’s intestate, Frank J. Potter, and also alleges that through the joint negligence of C. O. Tuttle, and the wilful and wanton misconduct of Frank J. Potter, deceased, the said defendants jointly and severally caused the automobiles owned and operated by them to crash with great force and violence, one upon the other in a head-on collision, causing the plaintiff to suffer permanent injuries and damage, etc.

The fourth count alleges that the defendant’s intestate, Frank J. Potter, was engaged in the business of selling farm property and other real estate; that he used his said automobile in the course of his business for the purpose of transporting prospective purchasers to Ms various properties wMch he had for sale. It also alleges that the defendant’s intestate, Frank J. Potter, was transporting the plaintiff to a place in the vicimty of Brimfield, Illinois, for the benefit of the defendant’s intestate, Frank J. Potter, deceased, in the course of his business in selling real estate; that the plaintiff, Herman J. Sehaehtrup, was the customer and business invitee of the defendant’s intestate, Frank J. Potter, deceased. The count then charges the said Frank J. Potter, deceased, with general negligence in the operation of his automobile, causing the damage to the plaintiff.

The fifth count charges the plaintiff was the passenger and business invitee of the defendant’s intestate, Frank J. Potter; that the defendant, C. O. Tuttle, was operating his automobile.at a rate of speed in excess of 45 miles per hour, in violation of the statute. It charges the defendant’s intestate, Frank J. Potter, and the other defendant, C. O. Tuttle with negligence in the operation of his automobile, and as a result of the negligent acts of the defendant’s intestate, Frank J. Potter, and the other defendant, C. O. Tuttle, the two automobiles operated by them collided with great force and violence, one upon the other, causing the plaintiff to suffer permanent injuries, etc., to the amount of $20,000.

The abstract does not show that the defendant filed any answer to this complaint, but an examination of the record discloses that the defendant, Ethel L. Hensel, the executrix of the estate of Frank J. Potter, deceased, filed an answer denying the allegations of the plaintiff in counts one to five, inclusive, in the complaint. The record also discloses that O. O. Tuttle filed an answer admitting some of the allegations of the complaint and denying others, but the substance of his answers is not material to the issues in the case as now presented to this court for review.

The case was submitted to a jury and at the close of the plaintiff’s evidence, Ethel Hensel, executrix of the estate of Frank J. Potter, deceased, and C. O. Tuttle, each filed a motion to have the court instruct the jury to find each of the defendants not guilty. The court sustained the motion of the defendant, C. O. Tuttle, and instructed the jury to find him not guilty. This the jury did, and the defendant, Tuttle, was dismissed from this suit. The court sustained the motion of the defendant, Ethel Hensel, as to the fourth and fifth counts of the complaint, but overruled her motion as to the first, second, and third counts of the complaint.

The defendant introduced no evidence, but offered the following motion: “Now comes Ethel L. Hensel, Administratrix of the Estate of Frank J. Potter, deceased, by her Attorney, Victor P. Michel, at the close of all the Plaintiff’s evidence, and moves the Court to instruct the jury to find the Defendant, Ethel L. Hensel, Administratrix of the Estate of Frank J. Potter, deceased, not guilty, and in support of said motion, the Defendant assigns the following reasons: First: The Plaintiff has failed under the evidence on his behalf to establish any legal liability on the part of the Defendant as charged in the complaint. Second: Evidence offered by the Plaintiff clearly shows that Plaintiff was a guest of the defendant, Frank J. Potter, at the time of the accident complained of. Third: Other reasons.

“The Defendant herewith tenders an instruction in conformity with said Motion, and requests the Court to give said instruction to the Jury. Ethel L. Hensel, Administratrix of the Estate of Frank J. Potter, deceased, By Victor P. Michel, Her Attorney.”

This motion was sustained as to count four and five of said complaint, and overruled as to the other three counts. The jury found the issues in favor of the plaintiff and assessed his damages at $7,500. Subsequent motions were made for a new trial and for judgment, notwithstanding the verdict of the jury, but the court overruled both of said motions, and entered judgment for $7,500 in favor of the plaintiff. It is from this judgment this appeal is prosecuted.

The evidence in the case shows that on April 16, 1936, Frank J. Potter, defendant’s intestate, was a real estate broker in the city of Peoria; that Herman J. Schachtrup conducted a barber shop and barber college in said city of Peoria, and was actively engaged in his work as a barber; that prior thereto, Schachtrup had been engaged in farming and was familiar with the quality and value of farmland and had appraised farmlands for said Frank J. Potter; that on April 6, 1936, at about 4:00 o’clock p. m., Frank J. Potter came to Herman J. Schachtrup’s place of business in his car and asked Schachtrup to go with him to appraise a farm in the vicinity of Brimfield, Illinois. Schachtrup said that he was too busy and did not want to go. There was some conversation between Potter and Schachtrup in which Potter said he would pay Schachtrup well for his trouble, or words to that effect. Then Schachtrup agreed to go. Following this conversation, Potter and Schachtrup got into a model “A” Ford coach that belonged to the said Potter, and started away, both sitting in the front seat of the car, with Potter on the left side doing the driving and Schachtrup sitting at his right. They proceeded in a westerly direction on U. S. Route 150 in the vicinity of Kickapoo, Illinois, which is between the city of Peoria and the town of Brimfield. Route 150 is a hard surfaced road paved with concrete. As Potter and Schachtrup were proceeding in a westerly direction on the north side of the said pavement, they were overtaken by a man named Russell Moon, driving a Chevrolet car. The Potter car followed behind the Moon car, for a distance of about one-fourth or one-half mile. A short distance west of Kickapoo, Russell Moon saw a farm wagon loaded with straw several hundred feet ahead of him, traveling in a westerly direction on the north side of the hard road, and at the same time he saw a car coming from the opposite direction on the left, or south side of the hard road. When he first saw it the car was approximately one-quarter of a mile west of the wagon loaded with hay or straw; that he stayed about 300 feet back of the farm wagon; that the approaching car proved to be the one that was driven by the defendant C. O. Tuttle; that when the Tuttle car was just even with the Moon car the defendant’s intestate, Frank J. Potter, who was driving his car behind the Moon car, sounded his horn, turned his car to the left and crossed to the left or south side of the pavement, directly in front of the Tuttle car, which was coming at á rapid rate of speed directly toward the Potter car; that the Potter car was on the left, or south side of the pavement ; that there was a terrific crash in which both cars were practically demolished and Sehachtrup received the injuries for which he is claiming damage; that C. O. Tuttle was injured, and Frank J. Potter received injuries from which he later died. There was evidence tending to show that Tuttle said that he was driving at approximately 50 miles per hour just prior to the time the accident occurred. Other witnesses testified that there were skid marks back of the Tuttle car from 15 to 20 feet in length.

The witness Sedekum testified that four or five days after the accident he went to the hospital to shave Mr. Potter; that while he was shaving Potter, Potter asked how Herman was, and the witness replied that he was getting along pretty good. Potter then said to “Tell Herman not to worry. I will stand all of the expenses. ’ ’

It is first insisted that the court erred in directing a verdict in favor of the defendant C. O. Tuttle, and by so doing the defendant Ethel L. Hensel as such administratrix was prejudiced thereby. Under the evidence in this case we do not see how a verdict against C. O. Tuttle could possibly stand, as there is no evidence in the record which connected him with any. negligence that was the approximate cause of the injury. He was driving on the right-hand side of the road where he had a right to expect he had the right-of-way. The road was level and there was nothing to hinder anyone from seeing him coming down on his side of the road.

Witness Moon testified that he saw him a distance of a quarter of a mile in the right lane of traffic coming in an easterly direction. The only evidence that could be considered as showing any negligence on the part of Tuttle, would be the isolated statement that somebody heard him say that he was traveling about 50 miles an hour. It is common knowledge that drivers of cars on a straight paved road with- an unobstructed view drive approximately 50 miles an hour and many who drive in excess of that rate of speed are considered careful drivers. Whether or not the court erred in dismissing the suit against C. O. Tuttle is immaterial. The only person who could raise this error is the plaintiff and he has not complained of the action of the court in dismissing the suit against Tuttle. The case of the defendant Ethel L. Hensel, administratrix, is in no way prejudiced by the court dismissing the suit against the defendant Tuttle.

The appellant, in her argument says, that the court erred in admitting testimony' of witnesses as to what transpired between Frank J. Potter and Herman J. Sehaehtrup in the barber shop. She states, in the printed brief that said testimony was admitted over her objection, and it appears on pages 18 and 20 of the abstract. We find no objection to this testimony in - the abstract. A part of the printed rules, under the title “Abstracts,” of this court, is as follows: “The Abstract must be sufficient to present fully every error relied upon, and will be taken to be correct and sufficient for a full understanding of every question presented for decision, unless the opposite party shall file further abstracts making other necessary corrections or additions.” So far as the record discloses in this case, this testimony was admitted without objection, so the appellant is not in a position to urge this error. However, it is our opinion if there had been an objection to this testimony, it was properly admitted. This is evidence tending to show the relationship between Schachtrup and Potter, and why Schachtrup was riding with Potter at the time the collision occurred.

It is further insisted that the evidence of what occurred at the barber shop confused the jury on the other issues and the court erred in not striking the same from the record and instructing the jury to disregard it so far as the evidence related to the first, second, and third counts of the complaint. It was not the duty of the court on his own motion to strike any evidence from the record. Neither the plaintiff nor the defendant asked to have it stricken. We see no merit in this contention of the appellant.

It is claimed that the court erred in giving the instruction for the plaintiff. The appellant has not seen fit to argue this assignment of error, so we do not pass upon the sufficiency of the given instructions.

It is also contended that the evidence shows that the plaintiff and defendant’s intestate were engaged in a joint enterprise, and therefore, the plaintiff was not entitled to recovery. The question then arises — do the facts in this case show that the plaintiff and defendant’s intestate at the time in question were engaged in a joint enterprise Í The principal case cited by the appellant as supporting this proposition is entitled, Grubb v. Illinois Terminal Co., 366 Ill. 330. In the Grubb case, three sisters were riding in a car owned by one of them and being driven by the owner. Their destination was the city of Springfield. The evidence in that case shows that the three sisters joined in the payment for the gasoline and the expense of the trip, and that they were going to Springfield for the purpose of getting material to decorate their home, the cost of which was to be borne by each of the three sisters, and under these conditions the court held that this was a joint enterprise. In the present case, the defendant’s intestate, Frank J. Potter, was taking the plaintiff to appraise farm land; the plaintiff had no interest in the automobile, the expenses of the trip, or the farm, but was going for a definite purpose at the request of Potter. It is our conclusion that the evidence falls far short of showing that the plaintiff and defendant’s intestate were engaged in a joint enterprise.

It is next insisted by the appellant that the evidence does not show that the defendant’s intestate, Potter, was guilty of wilful and wanton misconduct which was the proximate cause of the injuries to plaintiff. Our courts have frequently held that any attempt to define with any degree of certainty, the difference of “ordinary negligence” or “gross negligence,” or “wilful and wanton misconduct,” would be futile if not virtually impossible. Whether an act is “wilful and wanton” depends upon the particular circumstances of each case. (Barmann v. McConachie, 289 Ill. App. 196, 6 N. E. (2d) 918; Bernier v. Illinois Central R. Co., 296 Ill. 464, 129 N. E. 747.) Whether a personal injury has been inflicted by the wilful or wanton misconduct of another is a question to be determined by the jury, if there is evidence in the record tending to support such allegations. (Streeter v. Humrichouse, 357 Ill. 234, 191 N. E. 684; Illinois Central R. Co. v. Leiner, 202 Ill. 624, 67 N. E. 398.)

The first count of the complaint charges the defendant’s intestate with unlawfully, wilfully, and wantonly driving his automobile etc., and running at a high rate of speed, exhibiting a total disregard for the life, limb, or property of himself or others. Paragraph five of the third count of the complaint charges that the defendant’s intestate unlawfully and wilfully and wantonly propelled and operated his automobile so as to exhibit a total disregard for the life or limb or the property of himself and others, and by such wilful and wanton misconduct the defendant’s intestate, Frank J. Potter, drove his automobile off the northern lane of said concrete highway into and upon the southern lane of the said highway, and into the path of the other automobile driven by the defendant, C. O. Tuttle.

From an examination of this record, it seems to us that the evidence sustains the charge of wilful and wanton misconduct on the part of the defendant’s intestate in attempting to pass the car ahead of him without first looking and observing the approaching car in the other lane of traffic, and in driving his car directly into the car coming from the opposite direction, which was traveling in its proper traffic lane. The statute of our State expressly prohibits a person from passing any car unless he can clearly see that the traffic approaching from the other direction is far enough away so that he can pass the car or cross ahead and turn back into his proper lane of traffic before coming within 100 feet of the vehicle approaching from the opposite direction.

We find no reversible error in this case. The judgment of the circuit court of Peoria county is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Friend

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Rose Sowrd, Plaintiff in Error.
    Gen. No. 39,831.

      Opinion filed May 3, 1938.
    Rehearing denied May 25, 1938.
    Ellis & Westbrooks, of Chicago, for plaintiff in error; Richard E. Westbrooks, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edw. E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Rose Sowrd, defendant, was tried in the municipal court on an information charging her with unlawfully possessing a hahit forming drug, to wit, marijuana, in violation of par. 158, ch. 91, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 88.23(2)]. Defendant interposed a plea of not guilty, waived trial by jury and pursuant to a hearing by the court January 19, 1937, was found guilty and sentenced to the house of correction for one year and fined $1,000 and costs. January 20, 1937, pursuant to notice served on the State’s attorney, defendant filed a petition in the municipal court seeking to vacate the judgment and sentence. The petition was set for hearing January 27,1937, and on that date the State’s attorney made a motion to dismiss the petition as defective. After several continuanees, the court, on March 2, 1937, overruled defendant’s motion to vacate the judgment. This writ of error is prosecuted to reverse the order thus entered.

The information upon which defendant was tried charged that on to wit, the 18th day of January, 1937, in the city of Chicago, county of Cook and State of Illinois, Rose Sowrd, then and there, not being an apothecary, physician or dentist, unlawfully, had in her possession and under her control a certain habit forming drug, to wit, marijuana, without first having a written prescription therefor, in violation of par. 158, ch. 91, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 88.23(2)], contrary to the statute'and against the peace and dignity of the people of the State. The evidence adduced upon the hearing disclosed that the officers who arrested her found a quantity of tobacco or weed, commonly known as marijuana, in her possession in the residence occupied by her.

It is first urged as ground for reversal that the information fails to charge any crime under the laws of the State of Illinois. It is argued that the law of 1931 was repealed in 1935, and that the legislature revised the entire law relating to habit forming drugs by enacting the statute entitled “An Act Defining and Relating to Narcotic Drugs and to Make Uniform the Law with Reference Thereto,” and in so doing, by implication, omitted marijuana from the text of the statute. "While it is true that the Mexican word “marijuana” is left out of the 1935 statute, the subject is covered in the definition given of “Cannabis,” at par. 157, sec. 1 [Ill. State Bar Stats. 1935, ch. 91; Jones Ill. Stats. Ann. 88.23(1)] under definitions, subsec. 13, as follows:

“ ‘Cannabis’ includes the following substances under whatever names they may be designated: (a) The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L., from which the resin has not been extracted, (b) the resin extracted from such tops, and (c) every compound, manufacture, salt, derivative, mixture, or preparation of such resin, or of such tops from which the resin has not been extracted.” Prior to the enactment of the 1935 law, the statute, under “Definitions,” subsec. 12, included and defined “marijuana” as follows [Cahill’s Ill. St. 1933, ch. 91, ¶ 135, § 2]:
“ ' Cannabis Indica,’ ‘marijuana,’ ‘loco weed’ or ‘Cannabis sativa’ includes any compound, manufacture, salt, derivative or preparation thereof and any synthetic substitute of any of them identical in chemical composition.
“ ‘Habit forming drugs’ means cocoa leaves, opium, cannabis indica, cannabis sativa, marijuana, or loco weed. ’ ’ It therefore seems clear that although marijuana is not mentioned under that name in the 1935 statute, it is clearly included in the section hereinbefore quoted, under the provision that “ ‘cannabis’ includes the following substances under whatever names they may be designated:”

It is further urged that, “the municipal court had no jurisdiction to sentence the defendant to the House of Correction, because the punishment provided by law is a sentence and commitment to the State Reformatory for Women, and the judgment is void.” It was stipulated by the parties that defendant is a female person over the age of 21. Section 5, as amended, of “An Act to establish and provide for a State Reformatory for Women,” approved June 30, 1927 (ch. 23, par. 251, sec. 5, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 118.09]), provides “ . . . Any woman of the age of eighteen years or over, convicted of a violation of any law, whose sentence or commitment is for one year or longer shall ... be committed by the court in which the conviction is had to the State Reformatory for Women,” Under this provision of the statute the court should have sentenced defendant to the State Reformatory for Women instead of to the House of Correction, but that does not render the judgment void; the cause may be remanded with directions for the entrv of a proper judgment. (People v. Boer, 262 Ill. 152.)

Defendant takes the further position, however, that the judgment is void because the State Reformatory for Women, at Dwight, Illinois, is a penitentiary, and the municipal court of Chicago has no jurisdiction to try upon information a female person charged with a criminal offense where the punishment fixed by law is for a term of imprisonment for one year or longer. It is argued that under sec. 8, art. 2 of the constitution an indictment was indispensable, and therefore a trial and conviction based upon an information is void. This same contention was made in the case of People v. Hazard, 356 Ill. 448, where counsel representing the defendant in this proceeding filed a petition on behalf of the defendant in that case for a writ of habeas corpus, to bring about the discharge of the relator who was a prisoner in the State Reformatory for Women at Dwight. She had been convicted in the municipal court on an information based on sec. 51a-l of an act to revise the law in relation to criminal jurisprudence, approved March 27, 1874, as amended July 13, 1921, charging her with the crime of unlawful solicitation in a certain street in the city of Chicago. She was sentenced to the State Reformatory for Women, at Dwight, Illinois, pursuant to sec. 5, ch. 23, par. 251, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 118.09], as hereinbefore set forth. Counsel there argued that her conviction in the municipal court based upon an information was void, because an indictment was indispensable within the meaning of sec. 8, art. 2 of the constitution, which provides that no person shall be held to answer for a criminal offense unless upon an indictment of a grand jury, except in cases in which the punishment is by fine and imprisonment otherwise than in the penitentiary. It was held, however, that the municipal court had power to sentence the relator to more than six months imprisonment, and was required under sec. 5 of the foregoing act, if the sentence was for six months or more, to commit her to the Illinois State Reformatory for Women, and “that it was proper to use an information since the offense was a misdemeanor.” The opinion in People v. Hazard, supra, was filed in June, 1934. Since then, sec. 5 of the statute has been amended to read “one year” instead of “six months,” and the commitment in the instant case is to be determined by the statute, as amended.

It is urged by defendant’s counsel in their brief and also on oral argument that the decision in People v. Hazard is not conclusive against defendant, because, as they say, the court merely held that a petition for a writ of habeas corpus was not a proper proceeding by which to review and pass upon the complaint of the relator that she was sentenced to a penitentiary under a charge made by information, since this would amount to a review of the judgment of conviction and sentence in a habeas corpus proceeding. However, the principal question, as stated by the court in its opinion in the Hazard case, was “whether the judgment and sentence of the municipal court is void. If it is not, the writ should not be awarded and the relator should be remanded.” This clearly indicates that the court had before it for determination the precise question that we are called upon to decide, namely, whether or not the judgment rendered in the instant case was void upon the ground stated, and the court answered that question by holding that it was proper to use an information to try an offense which is a misdemeanor and to sentence the relator after adjudication of her guilt to the State Reformatory for Women.

Defendant’s counsel takes the further position that the State Reformatory for Women, at Dwight, being the only place for females convicted of felonies to be sentenced in execution of final judgment, constitutes that institution a penitentiary, and they argue that the legislature could never have intended that the State Reformatory at Dwight should be used as a place for the punishment of offenders guilty of both misdemeanors and felonies. They take the position that “the distinction between misdemeanor and felony is the place of punishment, and certainly it is not tenable to hold that the legislature intended that female misdemeanants should be sentenced to the same place for punishment as female felons.” This contention raises the question whether the Reformatory for Women at Dwight is a penitentiary in the sense that only those who have been convicted of a felony may be committed there.

Chapter 23 of the statutes entitled “Charities,” has to do with the reformation of numerous classes of persons. Chapter 108 on penitentiaries, par. 105, § 1, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 99.088], defines penitentiaries and includes therein the Illinois State Penitentiary at Joliet, the Southern Penitentiary at Chester, the Illinois State Reformatory at Pontiac and the Illinois Asylum for Insane Criminals at Chester, and provides that these shall be consolidated and known as “The Illinois State Penitentiary” and that the expression “Penitentiary System” shall be taken to mean the institution resulting from such consolidation. It would seem therefore reasonably clear that if the State Reformatory for Women was intended to be a part of this system it would have been named in the consolidation act. Moreover, the law provides that where a woman of the age of 18 years or over is convicted, and her sentence or commitment is for one year or longer, she shall be sentenced to imprisonment in the State Reformatory for Women, and it also provides that any female person of the age of 16 or 17 years so convicted may he committed by the court to the reformatory at Dwight (Charities Act, ch. 23, par. 251, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 118.09]). This provision has been modified by par. 803, sec. 3, clause 2, p. 1213, ch. 38 [Jones Ill. Stats. Ann. 37.761] of the same statute, where it is provided that every female person over the age of 16 years adjudged guilty of any offense whose sentence or commitment is for six months or longer may be committed to the State Reformatory for Women. These statutory provisions indicate that the State Reformatory at Dwight was not considered by the lawmakers as a penitentiary, since they made provision for sending persons there for any offense for which the punishment is a year, and also persons under the age of 18 where the offense is punishable by imprisonment for more than six months. The offense here charged was a misdemeanor, and like other misdemeanors, such as keeping a disorderly house, false pretenses, carrying concealed weapons, petit larceny, and certain acts amounting to malicious mischief, is punishable by imprisonment for a year, but is not a penitentiary offense. Women convicted on any of these charges would under the statute be committed to the State Reformatory for Women, not withstanding the fact that the offense is not one punishable by penitentiary sentence under the statute. In creating the State Reformatory for Women at Dwight, the legislature was undoubtedly actuated by humane and social considerations. It was within its province to create such an institution, designated as a reformatory, to house all women convicted of crimes, for the purpose of dealing with them separately, and, by specifically excluding the reformatory from “The Illinois State Penitentiary System,” it evidently intended that it should not be a penitentiary in the sense that only felons should be committed there.

As further ground for reversal of the judgment, it is argued that the part of the judgment which provides that the fine of $1,000 is to be paid or worked out is unauthorized ; that there is no statute in the State of Illinois which permits an alternative sentence; and that in the absence of such statute the sentence imposed upon defendant is void for uncertainty. This contention is sufficiently answered by the provision contained in par. 192.23, sec. 23 (Penalties) ch. 38, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 88.23(23)], which provides that “Any person violating any provision of this act shall upon conviction be punished, for the first offense, by a fine not exceeding $1,000.00 or by imprisonment in the county jail for a term not exceeding one year, or by both such fine and imprisonment. ...” This statute deals with cases where narcotic drugs or habit-forming drugs are the subject of the complaint, and it is apparent from the language of the statute that both the fine and imprisonment may be assessed by the municipal court.

Holding as we do that defendant should have been sentenced to the State Reformatory for Women at Dwight, Illinois, and not to the House of Correction, the judgment of the municipal court is reversed and the cause remanded with directions for the entry of a proper judgment. The provision for $1,000 fine is controlled by the decision in People v. Stavrakas, 335 Ill. 570, 581.

Judgment reversed and cause remanded with directions.

Scanlan and Sullivan, JJ., concur.


author: Mr. Presiding Justice Dove

text:
    Fansteel Metallurgical Corporation, Appellee, v. Lodge 66 of the Amalgamated Association of Iron, Steel and Tin Workers of North America et al., Appellants.
    Gen. No. 9,257.

      Opinion filed May 10, 1938.
    Lester F. Collins, of Waukegan, and Gillespie, Burke & Gillespie, of Springfield, for appellants.
    Levinson, Becker, Peebles & Swiren, of Chicago, and Sidney H. Block, of Waukegan, for appellee; Max Swiren and Harold M. Keele, both of Chicago, and Sidney H. Block, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This is an appeal by Meyer Adelman, Oakley Mills and thirty-seven other defendants from a decree which found appellants guilty of contempt of court for violating a preliminary injunction which had been issued by the circuit court of Lake county on February 18, 1937.

The record discloses that the Fansteel Metallurgical Corporation is incorporated under the laws of the State of New York, that its properties consist of seven and one-half acres of ground located in North Chicago, upon which are fifteen buildings which house its machinery, equipment and inventories. It is engaged in the extraction of rare metals from ores and intermediate products, making tungsten, tantalum, molybdenum, rubidium, calsium and a line of battery chargers, rectifiers, transformers and carbide tools. On February 17, 1937, this company had three hundred and eighty persons in its employ in its plant. The appellants except Adelman and Mills were employees. Adelman and Mills were not employed by the Fansteel Corporation but were field directors for the steel workers’ organizing committee of the Amalgamated Association of Iron, Steel and Tin Workers of North America. Their work as members of this organizing committee was to assist unorganized workers to organize themselves into labor unions and, so acting, an organization was formed among the employees of appellee designated as “Lodge 66 of the Amalgamated Association of Iron, Steel and Tin Workers of North America.” On February 17, 1937, a committee from this Lodge held two conferences with the management of appellee and were advised by the factory superintendent that the policy of appellee was not to recognize the union which the committee represented. Thereupon the committee voted to cease work and to evidence their protest by striking and remaining in the buildings of the appellee where they were employed. About 2:30 o ’clock on the afternoon of this day some ninety of the employees of appellee, who were in two of appellee’s buildings, designated in the record as buildings three and five, stopped work, evicted their foremen and remained in possession of these two buildings, locked, wired and barricaded the doors from the inside, refused to admit the officers and plant superintendents of appellee and continued to hold possession of these buildings by force for the ensuing 8 days. During the evening of February 17, 1937, representatives of appellee made a formal demand to be permitted to enter the buildings but their demand was refused by those inside, whereupon they were, by appellee’s representatives, informed that those employees who were within the buildings were discharged. Written notices were also passed into the buildings notifying those in the buildings that appellee, upon the following morning, would file its complaint in the circuit court of Lake county and at that time would apply for a preliminary injunction restraining those in possession of appellee’s property from continuing in their illegal occupancy thereof.

On February 18, 1937, the complaint in the instant cause was filed. It was verified by the president of appellee, its plant superintendent and its several department foremen. The complaint made Lodge 66 of the Amalgamated Association of Iron, Steel and Tin Workers of Forth America, the Steel Workers Organizing Committee of the Committee for Industrial Organization and some thirty-five individual defendants. All of the defendants entered their respective appearances by their attorneys and upon a hearing had, an order was entered, finding that the seizure of the buildings of appellee was illegal and that their occupancy constituted a continued trespass and the court issued a preliminary injunction directing the men who were occupying the buildings to vacate the same and restore possession thereof to appellee. The sheriff went to the plant to serve and execute this writ. Both buildings were locked and the men within refused to admit the sheriff. Some of those within however came to the open windows and the sheriff read the writ and explained its meaning and passed into the buildings at least eighty copies of the writ and posted additional copies around the plant. The sheriff asked for the name of those who would accept service of the writ and appellant Swanson in one building said he would and either Swanson or some of the others inside the building advised the Sheriff that Swanson was their leader. Appellant Warner apparently was the leader in the other building and is spoken of in the record as captain. The sheriff returned the writ stating in his return that it was duly served upon the defendants by reading the same to them and leaving about twenty-five copies thereof upon the premises occupied by the defendants; that he posted at least two copies of the writ on each building occupied by the defendants and left a copy thereof with Carl Swanson, Harold Dr ever and Frank Lutz. The following day appellee filed its verified petition reciting the foregoing and prayed for an attachment and rule to show cause. Upon a hearing the court ordered a writ of attachment to issue and directed the sheriff to bring the bodies of the men in possession of the premises of appellee before the court and a rule was entered upon them to show cause why they should not be held in contempt of court. Thereupon the sheriff and his deputies, with the writ of attachment, went to the buildings occupied by the employees but were unable to gain admission. The officers advised the men that they had a warrant for their arrest and requested that they come out of the buildings. They refused. The officers, numbering fifty, tried to effect a forcible entrance but in building number five streams of water from a hose were poured upon them, and in both buildings windows were broken, wire spools, bolts, drills and iron missiles of all kinds and sulphuric acid were thrown and poured upon the officers. One of the deputies was quite severely burned and several injured. On February 26, 1937, by the use of tear gas, the officers were finally successful in forcibly evicting those in possession of the building.

On February 26,1937, appellee filed its supplemental complaint and petition, which alleged the foregoing and charged that appellants, other than Adelman and Mills, had wilfully violated the previous orders of the court and had resisted with violence the efforts of the officers to enforce those orders and charged Adelman and Mills with having aided, assisted and facilitated the other appellants in unlawfully violating the orders of the court. A change of venue was taken from the chancellor who issued the preliminary injunction and after all of the defendants had answered, a hearing was had. The court found twenty-four of the appellants guilty and imposed a fine of $100 upon each and committed each to the county jail for a period of 10 days. The court also found eleven of the appellants guilty and imposed a fine of $150 upon each and committed each to jail for 120 days. The court found the appellants Warner and Swanson guilty and imposed a fine upon each of $300 and committed each to jail for 180 days. Appellant Mills was found guilty and fined $500 and committed to jail for 180 days and appellant Adelman was found guilty and fined $1,000 and committed to jail for 240 days.

It is first insisted by counsel for appellants that the evidence discloses that this sit-down strike arose because of the refusal of appellee to bargain collectively with the representatives of its employees, that by so doing appellee violated the express provisions of the National Labor Relations Act which vested exclusive jurisdiction of all labor disputes affecting interstate commerce in the labor board created by that Act, that the circuit court of Lake county was therefore without jurisdiction to issue the preliminary injunction which forms the basis of this proceeding’ and being without jurisdiction, the order which it issued was void, and being void, the chancellor was without authority to punish for any disobedience thereof.

• Counsel for appellants argue that the National Labor Relations Act designated as the Wagner Act, 29 U. S. C. A. secs. 151-166, is a complete code covering all the relations of employer and employee, that in enacting it congress considered all phases of the relations between employer and employee and prescribed the powers and duties of each so far as it seemed advisable to provide for their regulation. That no State court can have any jurisdiction of any subject matter'arising thereunder and the circuit court of Lake county was wholly without jurisdiction either to issue the preliminary injunction or impose the penalties upon appellants for a violation thereof. Counsel for appellee concede the plenary power of congress over interstate commerce but point out that the Supreme Court has recognized the propriety of supplementing specific federal regulation of interstate commerce with reasonable State police regulations so long as they do not conflict and cites Dickson v. Uhhnann Grain Co., 288 U. S. 188, 53 Sup. Ct. 362, 83 A. L. R. 492. In that case a broker sought to recover on a grain margin account. The defense relied upon a Missouri statute which provided that such transactions were gambling and therefore illegal. The plaintiff contended that the transactions were valid because carried on in compliance with the Federal Crain Futures Act, 7 U. S. C. A. secs. 1-17. The question presented for determination was whether the Federal Crain Futures Act which regulated the entire subject of dealings in futures on contract markets superseded and nullified the prohibition of any such transactions by the Missouri statute. The Supreme Court held that although the act of congress required those participating in interstate futures transactions to comply with specific regulations, the State of Missouri retained the power to declare legal participation within Missouri in such interstate transactions.

In National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 108 A. L. R. 1352, the Supreme Court having the Wagner Act under consideration stated that: “the Statute goes no further than to safeguard the right of employees to self organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.” As counsel for appellee points out, the provisions of the act guarantee the right of self organization and collective bargaining to employees in interstate commerce and the National Labor Relations Board has authority and jurisdiction to enforce those rights. The act enacted in the hope that it would reduce industrial conflicts but no power to preserve order or prevent violence incident to labor disputes is conferred upon the board nor is there anything in the act which could be construed to mean that congress intended to interfere with the States in providing police protection to its citizens or their property. To give the act the construction contended for by appellants would very likely render the act itself invalid. Certainly a court of equity is not deprived of a recognized branch of its jurisdiction simply because the Federal Act creates a board which has no power to hear complaints or grant relief of the character which the State court granted here. Because an employer refuses to bargain with its employees collectively cannot justify those employees in their conduct of a strike in seizing the factory of their employer and without authority of any kind evict their foreman, barricade the doors, deny the rightful owner admission to his own property, and defy those whom they know to be officers charged by law to carry out the orders and decrees of a court.

In Missouri Pac. R. Co. v. Norwood, 283 U. S. 249, 75 L. Ed. 1010, two statutes of the State of Arkansas regulating the number of brakemen and helpers required on freight trains and switching crews were sustained by the Supreme Court and in doing so the Court stated that the provisions of the Railway Labor Act of 1926, 45 U. S. C. A. sec. 151 et seq., in no way conflicted with State laws and that in the regulation of the number of men to be employed in such switching crews, congress, in the absence of a clearly expressed purpose so to do, will not be held to have intended to prevent the exertion of the police powers of the States.

There is nothing in the Wagner Act which deals with the subject of violence or any illegal acts committed by employees in the course of an industrial dispute and in our opinion congress did not, by its enactment of the Wagner Act, deprive or attempt to deprive the States of their police power to protect property rights or punish illegal acts committed in the course of labor disputes nor do we think that there is any merit in the contention of appellants’ counsel when they insist that equity cannot now have jurisdiction of any phase of the subject of the relations between employer and employee in a labor controversy affecting interstate commerce. The remedies available to either an employer or employee in a court of equity prior to the enactment of this act are still available and let us hope will continue to be. We might add that the question of the jurisdiction of the circuit court to issue this injunction was raised by appellants’ counsel for the first time-in this court. The record discloses that the question was not presented to the chancellor at any time by any motion, pleading or argument. It is evidently an afterthought.

It is next insisted that the evidence found in the record is not sufficient to support the finding and judgment against appellants Adelman and Mills. It will be recalled that Adelman and Mills were not employees of appellant. They were not named as defendants in the original complaint but by the supplemental complaint it was charged that they were the directing heads of Lodge 66 of the Amalgamated Association of Iron, Steel and Tin Workers of America and that they were cooperating with the steel workers ’ organizing committee of the C. I. O., that they encouraged, aided, abetted and facilitated those who were in the actual unlawful possession of appellee’s property to retain the same in disregard of the writ of injunction of which they had notice. The supplemental complaint charged that such aiding and abetting was achieved by furnishing food and supplies to those employees who were in possession of appellee’s property in order that they might continue to occupy the same, that they exhorted by speeches and notes the men so occupying appellee’s property to retain possession thereof and to resist by violence the officials of the court in their efforts to enforce the preliminary injunction. The evidence is that Adelman was a field worker for the steel workers ’ organizing committee of the Amalgamated Association of Iron, Steel and Tin Workers of North America. He counseled and advised Lodge 66 and its members from its inception. Mills was his assistant. Adelman was ■present in court when the preliminary injunction was issued by the court. He knew its provisions and that the court had found the men in appellee’s buildings were not lawfully there and that the court had ordered them to vacate. Adelman was personally present on the outside of the buildings practically every day from February 18th to February 26th and the overwhelming weight of the evidence is that on several occasions during the time he conversed with Warner and others in building No. 5 and with Swanson and others in building No. 3 and inquired whether they were comfortable and had plenty to eat, stated that the public and several unions were back of the men, that they should continue to hold the fort, to give no ground, to take no instructions from anyone except himself and Rasmussen, that they should keep their guards well posted to the rear of the buildings, that he was with them 100 per cent, that everything would turn out all right, that they would win and promised the men that he would see to it that they would have plenty of bedding, supplies and provisions sent in to them. The evidence is further that he made a number of speeches and sang a picket line song once during the period the men were in the buildings, addressing those who had gathered on the outside and so that those who were on the inside could hear, in which he urged the men to continue to occupy the premises, to stick to the strike, to hold the fort and repeated much which he had told Warner, Swanson and the others in his conversation with them. All this is testified to not only by some of the officers but by others who were present, some of whom were in the buildings at the time. Such in substance is the testimony of Fred Karpinsld, Louis Bereczky, Arthur Sladek, Milton Sladelc, Chester Hook, Alf Sunorison, Frank Osenek, John Germer, Edward Zersen, Donald Dwyer, Frank Valenti and others.

The evidence is further that while the unlawful occupancy of appellee’s premises was in progress, large crowds of relatives, sympathizers and friends of the men who were in the buildings gathered on the outside, during the day and also at nights, estimated by one witness from six to one hundred .and upon one occasion as many as one thousand. Packages of food and clothing were sent into.the buildings by means of ropes let down from windows. Those packages were inspected by the officers in order that no firearms or weapons might get to the men. Oakley Mills came to Waukegan in December, 1936, and assisted Adelman in his organizing work. He- knew of the issuance of the injunction and testified that between February 17th and February 26th he was at the plant at least once, every day, and also at night, that he talked to the men in the buildings, supplied them with between 50 and 60 dollars’ worth of food which he himself purchased and hoisted into the buildings. According to the weight of the testimony he was abusive and discourteous in his remarks to the officers, indulged in the most violent, obscene and indecent language toward them, invited them to come and fight him, stating that he came from the West Virginia coal mining regions where they had real strikes. The evidence is also that he, Mills, talked to Warner and Swanson and the other men in the buildings and advised them to hold their fort at all costs, that there was plenty of help outside and that they would win.

Mo one can read this record without coming to the conclusion that Adelman and Mills affirmatively and effectively and materially aided and abetted in the continued violation of the preliminary injunction which they knew had been issued. As counsel for appellee state, they provided the seasoned leadership, encouragement and quantities of supplies and provisions which made it possible for those in the buildings to remain there for 10 days. The force and violence used by others during this period of time would probably never have occurred except for the counsel and leadership of Adelman and Mills. Their language and conduct discloses that they had no respect for judicial process or for the officers of the court charged with the responsibility of enforcing its orders. Language or conduct intended to incite others to a violation of a court’s order is a contempt of court and the use of language which has for its natural effect the inciting of others to do violence in disregard of the orders of a court is a contemptuous act. Stewart v. United States, 236 Fed. 838, cited with approval in O’Brien v. International Ladies Garment Workers Union, 214 Ill. App. 57. In Sloan v. People, 115 Ill. App. 84, the court quoted with approval from Seaward v. Paterson, 66 L. J. (N. S.) 267, which held that a person who knowingly aids and assists in the doing of acts which had been expressly prohibited by injunction, although he is not a party to the litigation nor named in the order granting the injunction may be committed for contempt, that while such a person is not bound by the injunction any more than anybody else, such person is bound like anybody else not to interfere with or obstruct the course of justice.

It is finally insisted that the punishment inflicted upon each of the appellants is oppressive and disproportionate to the offense committed. Counsel state that this cause was prosecuted before the chancellor upon the theory that those appellants who had been employees of appellee were trespassers and invaders of appellee’s property and that these appellants were animated only by malevolent purposes against their employer and by a desire upon their part to flout the courts and the law, that Adelman and Mills were severely sentenced because they were engaged in organization activities obnoxious to the social and economic views of the chancellor who imposed the sentences and that the chancellor seemed to be unable to distinguish between one acting in good faith and under claim of right, even though ill-advised and one acting from malicious motives and evil intent.

Whether appellants acted in good faith or whether their conduct was malicious and intentionally contemptuous can only be determined from what’ this record discloses was said and done by appellants. Upon the hearing their counsel stated that they did not deny that the provisions of the preliminary injunction were violated to a certain extent and that what was done was done knowingly but what they did contend was that appellants did not act maliciously or with the intent to bring the court into disrespect. We do not think this contention is warranted by the record. The seizure and detention of appellee’s property was illegal. Apex Hosiery Co. v. Leader, 90 Fed. (2d) 155. Charles Warner, one of the appellants, testified that he did not talk to the sheriff or his deputies when they came on February 18th to serve the injunction writ but that the officers evidently handed a copy of the writ through the window as he, Warner, was furnished with a copy by someone, that he had a high school education, was an army officer in the World War, and attended an officers’ training school in Europe, that he did not read it, but it was passed around among the men through the plant, that the men talked it over, discussed the contents of the writ, knew it ordered them out of the building but decided they would remain in the building. That when the men discussed the matter they decided that appellee was violating the provisions of the Wagner Act and concluded that the State courts had no right to issue an injunction and that therefore they were justified in remaining in the building. Frank Osenek testified that he was in building No. 5, at the time the writ was read by the sheriff or his deputy, that the men read it downstairs and that then Warner read it on the second floor, that he read it aloud to at least ten men and that when he had finished reading it, he, Warner, said: “We don’t want to listen to anything like that — to hell with them.” We have heretofore referred to Adelman and Oakley and to their conduct and language. Chicago and Waukegan newspapers containing articles with reference to the Fan-steel strike and commenting upon the fact that the court had issued an injunction and had ordered the men in the buildings to evacuate the same were delivered to the men in the plants twice each day and the evidence is that the inen in the plants read these articles. The preliminary injunction was granted upon notice and appellants were present in open court at the time the injunction was ordered or were represented by counsel. The writ was served by the sheriff. The only reasonable conclusion that can be drawn from all the evidence found in this record is that each appellant knew that the local court had ordered those in possession of appellee’s property to restore that property to its owner, and had issued an appropriate order to that effect. Appellants knew also that the law enforcing officers of their county, acting under lawful process, were endeavoring to carry out the orders of the court. Their only excuse for not complying with those orders ivas that they questioned the right of the court to issue the injunction. In this they were mistaken. It is the law of this State that if the circuit court had jurisdiction of the parties and the subject matter, then any order made in the exercise of that jurisdiction must be obeyed until it is reversed or set aside. O’Brien v. People, 216 Ill. 354, 75 N. E. 108. It is conceded that the court acquired jurisdiction of the persons of appellants and we hold that it had jurisdiction of the subject matter. The propriety of the orders issued by the circuit court is not before us for review. This is only an appeal from the order of the chancellor finding appellants guilty of contempt. There is in our opinion no substantial defense interposed on behalf of any of appellants and there can be no doubt as to the propriety of the court in finding appellants guilty. Finding, as we do, that the court had jurisdiction to enter the order granting a preliminary injunction, it also had the power to lawfully enforce obedience thereto and the power to enforce includes the power to impose penalties as a punishment for the defiance of its orders either by fines or by jail sentences or both.

In Hake v. People, 230 Ill. 174, 82 N. E. 561, 568, the court stated: “The law is well settled that a court of chancery may impose a fine alone for the violation of an injunction and commit the party until the fine and costs are paid, or, in its discretion, may fix a definite period of imprisonment, either with or without a fine. The court granting the injunction is necessarily invested with large discretion in enforcing obedience to its mandate, and upon proceedings for attachment for its violation the extent of the fine and imprisonment to be inflicted as a punishment for the contempt rests in the sound legal discretion of the court itself. Courts of appellate jurisdiction are exceedingly averse to interfering with the exercise of such discretion, and will not ordinarily reverse the action of the inferior courts in such matters. High on Injunctions, sec. 1458, and cases there cited.”

There is no reversible error in this record, and the judgment of the circuit court of Lake county will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    George K. Richmond, Appellee, v. Drainage Commissioners of Union District No. 1, Appellant.
    Gen. No. 9,286.

      Opinion filed May 10, 1938.
    Sheldon & Brown, of Sterling, for appellant.
    Ward, Ward & Scheineman, of Sterling, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

George K. Richmond, plaintiff appellee in this suit, brought this action against the Drainage Commissioners of Union District No. 1, in Hume and Prophetstown Townships in the county of Whiteside, Illinois, to compel the defendant to construct a bridge across a ditch running through the plaintiff’s farm, and if sufficient funds are not on hand, to levy a tax for that purpose.

In his petition for mandamus the plaintiff claimed that the defendant’s ditch runs through an inclosed field or parcel of land on plaintiff’s farm; that under the law the defendant is required to build and maintain a bridge for him at the location of a present bridge which it is alleged the defendant built and has maintained since the organization of the district; that the bridge has partly fallen into the drainage ditch, and it is now unfit for use.

The defendant filed its answer in which it denied that the open drain in question crosses an inclosed field of the plaintiff and that under the law and the facts the defendant cannot lawfully build and maintain said bridge, nor levy a tax for such purpose.

The drainage district in question was organized under the law of 1879 and amended by an act passed in 1881. The district was organized July 20, 1882. At the time of the organization of the district in question, Cyrus Emery was the owner of the farm now owned by the plaintiff, in sections 19 and 30 in said district. On September 2, 1882, said Cyrus Emery entered into an agreement with the drainage commissioners for a right of way across the east half of the northwest quarter of said section 30, in which he was allowed damages for the right of way of a ditch across the premises, and the commissioners further agreed to make and maintain a good and sufficient bridge for the use of said Cyrus Emery at a point where his private road crosses said ditch. For the land taken and damage to Cyrus Emery’s farm, he was paid the sum of $570. Soon after the organization of the drainage district the commissioners built a bridge across the ditch on Emery’s land. This bridge was used by Emery until 1911 or 1912, when the bridge was rebuilt by the drainage district. The bridge has been used continuously until a short time before this suit was started, when one end dropped down. The bridge is in such a condition that it cannot be used unless it is rebuilt. The court heard the evidence in the case and ordered a writ of mandamus as prayed, and the case has been issued. It is from this order that the drainage commissioners have appealed the case to this court for review.

The appellants have assigned numerous reasons why the judgment should be reversed, but their main contention is that under the present Farm Drainage Act, the drainage commissioners are not required to build the bridge in question. In the case of the People v. Bowman, 247 Ill. 276, the court uses this language on page 286: “The sanitary district and the drainage districts are all municipal corporations and creatures of the legislature. By their incorporation they acquire no contract rights. They are merely parts of the machinery employed in carrying on the affairs of the State. They exist only for public purposes, and possess no powers except such as are given them for public or political purposes. The legislature has the right at all times to regulate and control them, their franchises and their funds, and to alter, modify or abolish them at pleasure, so that their property is not diverted from the uses and objects for which it was given or purchased.”

Since the amendment of the Constitution in 1878, the courts have held that corporations formed for drainage purposes are public corporations. Heffner v. Cass and Morgan Counties, 193 Ill. 439.

The district in question was organized pursuant to the laws of 1879 and later laws. In the case of Koeller v. Salisbury, 276 Ill. 230, on page 235 the court was discussing a drainage district and the laws applicable thereto, in their opinion say: “The correct rule as applied to a drainage district under the general law as distinguished from a local or special law, is, that whenever land owners petition for the formation of a drainage district they must be deemed to have assented not only to the provisions of that law, but to all subsequent provisions which may be added to the general law, enlarging or limiting the powers of the drainage district, otherwise districts organized under the general law would have limited or general powers, depending upon the time of their organization, and no two districts would have the same powers. A drainage district organized under the original Levee Act of 1879 must necessarily have all the powers of a district organized under the amended act of 1913. ’’

The case of Gasaway v. North Branch Drainage District, 339 Ill. 103, is cited by both appellant and appellee as sustaining their theory of the case. The appellee relies upon that part of the opinion found on page 107, which is as follows: ‘ Statutes providing for the organization of drainage districts are authorized by section 31 of article 4 of the constitution. Such districts are quasi-public corporations charged with certain governmental functions in the reclamation of lands and improvement of sanitation. The rule is, and has long been in this State, that statutes providing for the organization, government and dissolution of such public or quasi-public corporations may be changed, modified or repealed and additional burdens may be imposed upon or powers taken from such corporations by amendment to existing statutes or by additional legislation, and such legislation does not deprive such corporations of vested rights. (Chicago, Burlington and Quincy Railway Co. v. People, 212 Ill. 103; Hollenbeck v. Detrick, 162 id. 388; Jones v. Town of Lake View, 151 id. 663; Smith v. People, 140 id. 355.) Statutes requiring the construction or removal of bridges by public corporations at the expense of such corporations are not in contravention of any constitutional provision. (Hunt Drainage District v. Harness, 317 Ill. 292; People v. Lake Fork Drainage District, 231 id. 435; Union Drainage District v. O’Reilly, 132 id. 631.) The duty to construct and maintain bridges where imposed by statute is a continuing legal duty. People v. Lake Fork Drainage District, supra; Union Drainage District v. O’Reilly, supra.

“It is obvious that the amendment of 1927 to said section 74 operated to remove the defense of the Statute of Limitations to the demand of the land owner for a bridge, if such defense existed, since it applies to all districts in which the work was commenced prior to June 28,1919, and the five-year Statute of Limitations, if applicable, had run long prior to the enactment of the amendment of 1927. The effect of that amendment was to give to the owners of any enclosed field or parcel of land within the district organized prior to 1919, and across which the drain of the district extended, the right to require the district to build a bridge across its drain where such is necessary to free access to the parts of such land lying on either side of said drain. Under the authorities herein referred to and for the reasons there stated, such law is not invalid as depriving the district of any vested right.”

From the foregoing authorities it seems clear to us that the Act of 1927 applies to all drainage districts which were organized prior to the passage of this act, and requires the district to build and maintain bridges over open ditches in the district when the same crosses an inclosed parcel of land. If it does it necessarily includes the district in question. The language of the court is clear where it says, “it applies to all districts in which the work was commenced prior to June 28, 1919.”

It is next insisted by the appellant, that plaintiff would not be .entitled to such a bridge even if this district had been organized under the Act of 1885, prior to June 28, 1919, because the land in question is not an inclosed field or inclosed parcel of land within the meaning of the statute. The appellant contends that the Supreme Court of this State defined what is meant by “enclosed parcel of land” in the Gasaway case, supra. It will be observed in the Gasaway case that in order for Gasaway to go from one part of his land to another, he would either have to cross the ditch or go onto land owned by other parties. The court held that under such conditions the Gasaway land was an inclosed parcel, but did not attempt to say that this was the only condition that could be construed to be an “enclosed parcel of land.” In the present case the appellee has had the land inclosed by a fence from his farm buildings down to the bridge and across to a parcel of land beyond the drainage ditch. This land was all inclosed by fences. The appellants have recognized this as being an inclosed parcel of land, since they built the first bridge at the time the drainage ditch, was constructed. The statute in question should be given a reasonable construction. If this bridge is not rebuilt it will be necessary for the appellee to go approximately four miles in order to get to the farm land on the other side of the drainage ditch. It is our conclusion that the appellee’s land is an inclosed parcel of land as designated by statute.

We find no reversible error in the case and the judgment of the circuit court of Whiteside county is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Hebel

text:
    Francis S. Kosmerl, Appellee, v. Annie Sevin et al., Appellants.
    Gen. No. 39,403.
    Opinion filed May 11, 1938.
    Tannenbaum, Polikoff & Schmidt, of Chicago, for appellants.

      Isaac K. Goodman, of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

On Rehearing. ,

This is an appeal by the defendants from a decree of the circuit court of Cook county, entered on September 22, 1936, upon plaintiff’s petition for a review of a decree theretofore entered for error appearing on the face of the record. In the decree entered in this cause and from which this appeal is taken, the court ordered that if the defendants did not pay plaintiff $18,982.50, together with interest thereon from May 11, 1934, certain premises were to be sold by a special commissioner. A sale was had and upon approval of the report of sale and distribution, the court entered a deficiency decree in the sum of $2,063.40 against the defendant Annie Sevin.

The decree which was vacated had been entered on May 11,1934, on a bill to foreclose a trust deed filed in the circuit court of Cook county on August 31, 1931. This decree directed the dismissal of the bill to foreclose at plaintiff’s costs.

Another proceeding, not involved in this appeal because it was dismissed by the same decree from which this appeal is taken, was a complaint to foreclose the identical trust deed and note upon which the earlier bill to foreclose was predicated. This proceeding originally was filed in the superior court of Cook county on May 23,1934, and later transferred to the circuit court, and there consolidated with the foreclosure suit, over objections of the defendants.

The decree from which this appeal is taken was entered upon the pleadings without the hearing of evidence. To the complaint for review, defendants William M. Tannenbaum, Julius A. Polikoff and John B. Schmidt filed motions, by some of which the legal sufficiencv of the plaintiff’s bill of review was questioned, and by others certain defenses, which under the Civil Practice Act may be raised by motion to dismiss, were interposed. Defendant Annie Sevin filed identical motions, except a motion to dismiss on the ground that the complaint for review was not filed within the time allowed by law. Motions filed by the other defendants were not allowed. An answer was filed by the defendant Annie Sevin, only, and her answer, on motion of the plaintiff, was stricken for insufficiency. The defendants were thereupon defaulted, and the decree from which this appeal is taken was entered pro confesso and without the hearing of further evidence.

The decree recites the filing of the complaint for review, the filing by the defendant Annie Sevin of motions in the nature of demurrers, which were denied by the court, and the filing of an answer by Annie Sevin, which was stricken for insufficiency, and the default of Annie Sevin. It also recites that the defendants William M. Tannenbaum, Julius A. Polikoff and John B. Schmidt filed motions in the nature of demurrers, which were denied, and these defendants having failed to answer were defaulted.

The decree further recites that the court having examined the pleadings and the proceedings involved herein, master’s redrafted report and decree in the earlier case and having heard the arguments of counsel in open court and having considered the same, finds: That the parties were properly before the court and that the court had jurisdiction; that all the material allegations of the complaint for review were true, and that Francis S. Kosmerl and Annie Sevin are the same persons who were parties to the foreclosure case, and that the plaintiff paid the costs in the foreclosure suit.

It also appears from the decree that on August 31, 1931, plaintiff filed a bill to foreclose a trust deed securing a note dated July 15, 1930, payable on or before three years from date, with interest at 6 per cent, evidenced by 6 interest coupons; that coupon No. 1 was paid at maturity; that coupon No. 2, due and payable July 15, 1931, was not paid; and that by reason of the fact that coupon No. 2 was not paid, plaintiff elected to declare the whole principal sum immediately due and payable, and that the trust deed contained a covenant, which is quoted in the decree, relative to the right of acceleration.

That in the foreclosure case the defendants pleaded usury and alleged that they were indebted to the plaintiff in a sum not in excess of $18,982.50; that said foreclosure case was referred to a master, hearings were had therein, and the only defense relied upon by the defendants was usury; that the master rendered a redrafted report, which was filed, and that on May 11, 1934, a decree was entered by the court that by the earlier decree of May 11, 1934, it was established as a fact that interest note No. 2 was due July 15, 1931, but was not paid when due; that thereafter, default occurred which entitled plaintiff to accelerate the due date of the principal note in accordance with the terms of the trust deed, and that the election to accelerate was exercised by filing the bill on August 31, 1931.

That the former decree having established a failure to pay the money due under the terms of the trust deed, the court proceeded to the erroneous conclusion of law that because the defendants were entitled to credits in the accounting, as to the amount due the plaintiff, the terms and provisions of the trust deed relating to acceleration were waived because of usury; that said conclusion was erroneous- as the law of this State on usury does not so provide.

That as a matter of fact, prior to the filing of the earlier suit, there was a default under the trust deed, and that as a matter of law, plaintiff had the right to accelerate the maturity and that on August 31, 1931, when the earlier foreclosure was filed, the entire amount was due by acceleration, and that on May 11, 1934, when the earlier decree was entered, the entire amount was past due by the terms of the note, and that the plaintiff: was entitled to a foreclosure for the entire amount less the usury, and that it was error to dismiss the bill.

The court concludes that plaintiff is entitled to have the former decree of May 11,1934, opened up, modified and amended in accordance with the findings herein; that that part of the decree finding usury and also finding that $18,982.50 is owing to plaintiff should not be disturbed, that that part of the decree finding there was no default under the terms of the trust deed, and that plaintiff has no right to accelerate the maturity of the indebtedness and that plaintiff was not entitled to a foreclosure, and also that part of the decree ordering the dismissal of the bill of complaint, should be opened up, modified and amended.

That since the plaintiff was entitled to the foreclosure as prayed in his bill of complaint, it is ordered, on motion of plaintiff, that part of the consolidated proceeding known as the bill to foreclose, being the case heretofore filed in the superior court and transferred to the circuit court, be and the same is hereby dismissed at plaintiff’s costs.

It was further ordered that the part of the former decree entered on May 11, 1934, dismissing the bill to foreclose be vacated and set aside, and the decree was opened up, modified and amended by the entry of a foreclosure decree thereby granted; that in case the defendants do not pay the plaintiff $18,982.50 with interest at 5 per cent from May 11, 1934, certain described property be sold at public auction, and the decree appointed a special commissioner to conduct the sale and to retain certain fees, and to pay the plaintiff the sum of $18,982.50 plus interest. Provision wag made for a deficiency decree,

The defendants contend that the Civil Practice Act, now in force, is controlling in the filing of a bill to review the decree heretofore entered by the court before whom the proceeding was had, and that after the expiration of 30 days from the entry thereof, it may not be reviewed by the trial court by a bill of review for error of law apparent, and point to the sections of the Civil Practice Act which the defendants contend are pertinent to the question of whether bills of review for error of law apparent have survived the adoption of the Civil Practice Act. Section 1 provides that the provisions of this act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited. Section 50 (7) provides for setting aside defaults before final judgment, and for setting aside judgments or decrees within 30 days from the entry thereof. Section 72, which is sec. 89 of the Practice Act of 1907, provides for the correction of errors of fact in judicial records and abolishes the writ of error coram nobis. Section 74 (1) provides that every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice or appeal, etc. Section 77 (1) provides that appeals shall lie to the Appellate or Supreme Court in cases where any form of review may be allowed by law, to revise the final judgments, orders or decrees of the circuit courts, etc. Section 92 (3), subd. a, provides that any error of law affecting the judgment, decree or order appealed from may be brought up for review in any civil case. Section 76 (Limitation of review — Perfection of appeal) [Ill. Rev. Stat. 1937, ch. 110, §200; Jones Ill. Stats. Ann. 104.076] provides:

“(1) No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of; but, notice of appeal may be filed after the expiration of said ninety days, and within the period of one year, by order of the reviewing court, upon motion and notice to adverse parties, and upon a showing by affidavit that there is merit in appellant’s claim for an appeal and that the delay was not due to appellant’s culpable negligence. Where an appeal is perfected or allowed more than thirty days after the entry of any order, decree, judgment or other determination in any action, (or when an appeal is perfected within said 30 days, and no supersedeas bond is filed within said 30 days, or within such further extended time as the trial court shall have allowed within such thirty days, as provided in section 82 of this Act,) the reversal or modification of such order, decree, judgment or other determination shall not affect the right, title or interest in or to any real or personal property of any person, not a party to such action, acquired after the entry of such order, decree, judgment or other determination but before such appeal operates as a supersedeas under the provisions of this Act; nor shall such reversal or modification affect any right of any person not a party to such action under or by virtue of any certificate of sale issued before such appeal operates as a supersedeas, pursuant to a sale based on such order, decree, judgment or other determination. WThere the appellant was an infant or non compos mentis, or under duress at the time of such entry, the period of disability shall be excluded from the computation of the said periods of limitation; but such exclusion shall not apply to, nor affect rights acquired in any such property or certificate of sale, as in this section hereinbefore set forth, before such appeal operates as a supersedeas, when the appeal is perfected or allowed more than thirty days after the entry of such order, decree, judgment or other determination. ’ ’

In support of their contention the defendants cite a decision of the Appellate Court, this district, entitled Trust Company of Chicago v. Iroquois Auto Ins. Underwriters, Inc., 285 Ill. App. 317, where the court said in part: “The specific purpose of the Civil Practice Act was to provide for an appeal which was to be a substitute for the appeal and writ of error theretofore provided, and which in all cases was to be a continuation of the proceeding below.” And further contend that in order to properly present a matter such as we have before us here on appeal, it is either necessary to file a bill of review within 30 days, or, after leave is granted, within one year after the decree is entered.

It is well to have in mind that under the old Practice Act it was necessary that a bill of review be filed within two years from the date the decree was entered, that is in cases wherein the limitation for filing a bill of review was held analogous to the limitation for the suing out. of a writ of error or appeal. It has been held that a bill of review is in effect the institution of a new suit, and that summons is necessary so as to make the defendants named parties before the court. That much is admitted by the defendants, who agree that the bill of review is in the nature of a new suit, but. they earnestly insist that the only means for the filing of such a suit is that afforded by the Civil Practice Act, which provides for appeals from decrees and judgments, and that the suit is therefore limited to the 30-day period after the entry of the decree, or to within one year, upon leave being granted by the court, from the date of the entry of the decree. It must be borne in mind, however, that the section governing appeals provides that an appeal is but a continuation of the original suit. The theory that a bill of review when filed constitutes a new suit is inconsistent with this provision. The Civil Practice Act does provide that the suit may be instituted and that summons issue to bring the defendants named in the proceeding properly before the court.

There is no serious question here except as to the time for filing the complaint for review. The defendants admit it has been held in numerous cases decided prior to the adoption of the Civil Practice Act, that a bill of review for errors apparent may be filed within the time allowed for the suing out of a writ of error, but contend that the bill of review was not filed within the time allowed by law, that is, the time allowed by the statute regarding appeals from judgments under the Civil Practice Act, and point to section 76 of the Act, which provides that no appeals shall be taken after the expiration of 90 days from the entry of the judgment or decree, but notice of appeal may be filed after the expiration of 90 days and within the period of one year by order of the reviewing court upon motion and notice. The defendants admit that an appeal may be taken without leave within 90 days from the date of the judgment or decree, but after the expiration of that time, within one year by order of the reviewing court.

In this case it appears that the decree was signed and filed on May 11, 1934, and the bill of review was filed on May 7, 1935; that an amendment to the complaint, which introduced new matter, occurring subsequent to the filing of the complaint, and which therefor was supplemental thereto, was not filed until June 17,1935. It is true that the bill of review was not filed within 90 days from May 11, 1934, the date when the decree was signed, but it was filed on May 7, 1935, which was within one year from May 11, 1934, when the decree was actually signed, so that the only question raised on this point is that while the bill of review was filed within one year from the date the decree was signed, still under the statute it was necessary to obtain leave of court to file such bill of review for error apparent on the face of the record. Under the provisions which prevailed prior to the taking effect of the new Civil Practice Act, and which had been followed in numerous cases, a bill of review for error apparent on the face of the record or to impeach a decree for fraud could be filed without leave of court. This rule was followed in Harrigan v. County of Peoria, 262 Ill. 36, and in Farwell v. Great Western Tel. Co., 161 Ill. 522. In the latter case it was held that an original bill in the nature of a bill of review to impeach for fraud certain orders and decrees in pending cases may be entertained where the facts warrant it, and may be filed without leave of court first had. The same rule was followed in Adamski v. Wieczorek, 170 Ill. 373. Under the new Civil Practice Act if a party is desirous of filing an appeal after the expiration of 90 days from the date of the entry of judgment or decree, he is privileged to do so within one year upon the terms fixed by the court, but in our opinion this rule would not apply to the right to file a bill of review as a matter of right, such as was filed in this case, and our conclusion is that in this case the bill was filed in apt time and was properly before the court at the time the decree was entered.

The defendants earnestly suggest that the complaint for review does not establish errors of law apparent on the face of the decree sought to be reviewed. It appears from the decree in the instant case that upon the conclusion of the defense and the deduction for the amount alleged to have been paid as usurious, the court after accrediting payments made by the defendants upon the note in question, found in the original decree of May 11, 1934 that there was due under the terms of the trust deed the sum of $18,982.50, and in this proceeding now here on appeal the court allowed interest at the rate of 5 per cent on this amount from May 11, 1934.

The rule is well settled that where usury is a defense and the defense is established, the court will deduct from the principal due the usurious amount paid, and enter judgment or decree for the remainder after such deduction. The note in question by its terms became due on July 15, 1933, and when the decree was entered on May 11, 1934, the note was 10 months past due, and the defendants concede that when the court entered the decree on May 11, 1934, determining the rights of the parties as of that date, the court could have entered a decree for the amount due. Greengard v. Katz, 270 Ill. App. 227; Baker v. Salzenstein, 314 Ill. 226. In the latter case the court said:

“While in a suit at law the rights of the parties are determined as of the time of the beginning of the suit, a decree in chancery is a determination of the rights of the parties to the suit according to equity and good conscience, and where relief is granted by a decree in equity it is such as the nature of the case, the law and the facts demand, not at the time of the inception of the litigation but at the time the decree is entered therein. (Superior Oil and Gas Co. v. Mehlin, 108 Pac. 545; Randell v. Brown, 43 U. S. 405; Peck v. Goodberlett, 100 N. Y. 180; 10 R. C. L. 559.) The decree in this case was entered April 17, 1922. By the contract in evidence a payment of $3,000, with interest upon deferred payments, amounting to $1625, became due March 1, 1922, which payment had not been made at the time of the rendition of the decree.
“It is the doctrine of equity that where there is any ground of equity jurisdiction, a court of equity having acquired equitable jurisdiction to grant equitable relief will retain the case to do complete justice between the parties. (Miller v. Rowan, 251 Ill. 344; McIntyre v. McIntyre, 287 Ill. 544.)”

As we have already stated, the note matured by its terms on July 15, 1933, and when the decree was entered on May 11, 1934, the note was then 10 months past due. In considering the decree entered by the court on May 11, 1934, this court is guided by the rule of law stated by the Supreme Court in the case of Ebert v. Gerding, 116 Ill. 216. The court said:

“Appellants claim that in some particulars, which it is not necessary here to detail, the findings of the decree complained of are not sustained by the evidence. But in bills of review the question is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court rendering such decree has correctly applied the law to the facts as found by it. (Evans v. Clement, 14 Ill. 206.) If the findings of the court upon matters of fact are not supported by the proofs introduced in the case, the remedy is by appeal or writ of error, not by bill of review. ’ ’

The court on May 11, 1934 entered findings in part as follows:

“The Court further finds and declares that as there had been no default under the trust deed sought to be foreclosed herein, complainant could not accelerate the maturity of the indebtedness secured thereby, and that the note secured by said trust deed was not due on August 31, 1931, when the suit was instituted; and that inasmuch as all payments made upon said loan must be credited upon principal on account of the usury, the amount unpaid thereon is $18,982.50 as shown by the foregoing tabulation; that inasmuch as said note was not due on August 31, 1931, when the suit was instituted, and inasmuch as complainant has taken the position that a decree allowing any deduction for alleged usury would be as unsatisfactory as a dismissal of the suit, and the Court finds that such deductions must be made on account of said usury, the bill should be dismissed, at complainant’s costs.” And again in its decretal order the court adjudged and decreed:
‘ ‘ That the exceptions of the complainant to the Master’s Redrafted Report be and the same are hereby overruled, and the exceptions of defendant Annie Sevin to the Master’s Redrafted Report be and the same are hereby overruled, and that the said Master’s Redrafted Report be and the same is hereby in all respects confirmed and approved; that the bill of complaint be and the same is hereby dismissed at complainant’s cost.
“It is further ordered, adjudged and decreed that defendant, Annie Sevin, have and recover from the complainant, Francis S. Kosmerl, the costs hereinbefore taxed, in the sum of $148.65, together with the other costs to be taxed by the Clerk of this Court herein, and that execution issue therefor.
“It is further ordered, adjudged and decreed that complainant, Francis S. Kosmerl, pay to George E. Gorman, Master in Chancery, the sum of $250 within five days from date hereof, and the Court retains jurisdiction of this cause for the purpose of enforcing the payment provided for in this paragraph of the decree. ’ ’

The fact that the plaintiff complains that the finding of the court was unsatisfactory would not justify the court in dismissing the plaintiff’s bill at his cost. The court refused during the progress of the hearing to entertain plaintiff’s motion for a dismissal of his bill of complaint, which refusal was fully justified by sec. 52, par. 176 of the Practice Act [Ill. Rev. Stat. 1937, ch. 110; Jones Ill. Stats. Ann. 104.052], providing in part as follows: “The plaintiff may, at any time before trial or hearing begins, upon notice to the defendant or his attorney, and on the payment of costs, dismiss his action or any part thereof as to such defendant, without prejudice, by order filed in the cause.”

The reason for such refusal, no doubt, was that the court was prepared to enter a final decree.

As previously stated, the court erred in not decreeing that the amount due, $18,982.50, was subject to a foreclosure decree which should have been entered at that time, and that the court further erred in finding that the note secured by the trust deed was not due on May 11, 1934, when the decree was entered.

Applying the rule that a court of equity once having acquired equitable jurisdiction to grant equitable relief will retain the case to do complete justice between the parties, the "rights of the parties are to be determined as of the date of the decree and not as of the date of the institution of the foreclosure suit.

The suggestion is made by the defendants that the plaintiff waived his right to complain by filing his bill of review, for the reason that he had taken the position that a decree allowing any deduction for alleged usury would be as unsatisfactory to him, the plaintiff, as a dismissal of the bill; urged further that the court erred in making the deduction on account of the amount allowed for usury, and then in finding for the reason stated that the bill should be dismissed at plaintiff’s cost.

The court erred as a matter of law in entering its decree of May 11, 1934, dismissing the bill of foreclosure at plaintiff’s cost, which was final in its terms and in effect a dismissal for want of equity. As previously stated, the court should have entered a decree of foreclosure for $18,982.50, the amount found to be due.

After considering the questions raised upon the petition for rehearing allowed in this court, we have reached the conclusion that the chancellor was fully justified in entering the decree from which the defendants appeal.

The decree is affirmed.

Decree affirmed.

Denis E. Sullivan and Hall, J J., concur.