author: Mr. Justice Matchett McSurely, J.,

text:
    The People of the State of Illinois ex rel. Raymond M. Cook, Appellee, v. Board of Education of the City of Chicago and The Board of Examiners, Appellants.
    Gen. No. 39,958.

      Opinion filed April 25, 1938.
    Rehearing denied May 9, 3938.

      Richard S. Folsom and Kirkland, Fleming, Green & Ellis, both of Chicago, for appellants; Frank S. Righeimer, Frank Schneberger, Joseph B. Fleming, Edward C. Caldwell and Thomas M. Thomas, all of Chicago, of counsel.
    John E. Northup, Cameron Latter and John Ligtenberg, all of Chicago, for appellee; Cameron Latter, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The relator, Cook, is a teacher in the public schools of Chicago. On September 9, 1936, and on different days thereafter, the Board of Examiners (as prescribed by the Board of Education) held an examination for the purpose of determining the fitness of candidates to receive certificates of principals of schools. The relator was a candidate and took the examination. He was notified by the Board of Examiners that he had failed. On October 7, 1937, he filed his petition in which he prayed that a writ of mandamus issue to the Board of Examiners and to the Board of Education, directing them forthwith to place relator’s name upon the eligible list of persons entitled to receive the certificate of principal together with a certificate that petitioner had obtained a grade of 86.25 per cent in said examination, and commanding respondents to issue forthwith to petitioner such certificate.

The defendants appeared and made a motion and supplemental motion to strike the petition, pointing-out specifically objections thereto pursuant to section 45 of the Civil Practice Act [ch. 110, § 169; Jones Ill. Stats. Ann. 104.045], which provides that such motion shall be used instead of a demurrer as under the former practice. The court denied these motions. Defendants elected to stand by their motions and judgment was entered against them, as prayed in the petition. From that judgment defendants appeal.

The question for decision is whether the court erred in denying the motions of defendants to strike the petition. Under the Civil Practice Act, in reviewing the ruling of the trial court on a motion to strike, as formerly in reviewing a ruling upon demurrer, the well pleaded allegations of the petition are to be taken as true, and the language of the pleading is to be construed most strongly against the pleader. Nothing is taken by intendment. The questions arising upon the record require a construction of several sections of the Otis school law. (Ill. Rev. Stat. 1937, ch. 122, pp. 2891-2900, secs. 128-139; Smith-Hurd Ann. Stats., Schools, ch. 122, p. 307 [Jones Ill. Stats. Ann. 123.162-123.181]).

The petition is a typewritten document of 29 paragraphs with prayer for relief. It is verified by the relator. Attached to it and made a part of it are three exhibits.

The petition avers the constitutional requirement that a system of free public schools shall be maintained; the provisions of the statute committing that duty to the Board of Education of the city of Chicago, a body corporate and politic; the direction of the statute that “appointments and promotions of teachers, principals and other educational employees shall be made for merit only”; the power granted to the Board of Education (subject to limitations contained in the statute) to establish by-laws, rules and regulations which shall have the force of ordinances for the entire management of the schools with the provision that these shall be changed only at regular meetings and by a vote of not less than a majority of the full membership of the Board; the grant to the Board of Education of “all powers that may be requisite or proper for the maintenance and the fullest development óf an efficient public school system”; the creation by statute of the B.oard of Examiners who ‘ shall hold such examinations as the Board of Education may prescribe, upon the recommendation of the Superintendent of Schools, and shall prepare all necessary eligible lists which shall be kept in the office of the Superintendent of Schools and be open to public inspection”; the statutory provisions that it shall be the duty of said Board of Examiners to examine all applicants who are required to hold certificates to teach, and further “the Board of Education shall issue gratuitously to those who pass a required test of character, scholarship and general fitness, such certificates to teach as they are found entitled to receive.”

The petition avers that at the times in question there were in full force and effect duly adopted rules of the Board of Education regulating an examination of candidates for certificates to teach and promotion of teachers; that included in these rules were the rules of the Board of Education governing the examination of candidates for certificates of principals; that the rules of the Board of Education with reference to such examination are set forth in Exhibit 1 attached to the petition; that

“In and by said rules of said respondent, Board of Education, so as aforesaid then and there in force and effect, that the examination for said certificate of principal should consist of (1) an oral part which should count one-half of the total mark, and which might include a personal interview, an evaluation of the record of the candidate, an inspection of his work and any other appropriate form of estimating his standing; (2) that in addition to said oral examination,. (to count one-half of the total mark) they (candidates) would be examined in one major, three full minors and four half minors and must attain a general average of 80 per cent with no subject below 50 per cent, and that the candidate must obtain a mark of at least 70 per cent on the written, and also on the oral part of the examination. It was further provided in said rules that the major last hereinbefore referred to should relate to professional study, that the three full minors so hereinbefore referred to should relate to subjects English, mathematics, and general history and civics and that the half minors so referred to should relate to the subjects general science, drawing, vocal music and physical education. ’ ’

It is averred that at no time prior to the holding of the examination did the Board of Education change, amend or alter these rules in the manner prescribed by statute. This petition avers that, however, on September 2, 1936, the respondents, Johnson, Baker and Crane, who were the Board of Examiners, promulgated a series of changes, alterations and amendments of said rules, regulating the conduct of said examination and the scope of it, and the weight to be attached to the parts or divisions of it. This is averred to have been done without any lawful authority so to do. The alleged rules of the Board are set forth in Exhibit 1, and it is averred that the alterations and amendments of the rules as attempted to be made by the Board of Examiners are contained in Exhibit 2.

In his petition relator says that the rules of the Board of Education divided the examination into two parts, an oral and a written part, each counting one-half of the total mark to be awarded candidates; that these rules also provided that the oral part of the examination might include a personal interview and an evaluation of the record of the candidate, and required .that in order to pass the examination a candidate must obtain a general average of 80 per cent with no subject below 50 per cent, and must obtain a mark of 70 per cent on the written and also on the oral part of the examination. The relator says:

“Said rules did not provide that the personal interview be weighed as a distinct and separate third division of said examination, so as to require a candidate to attain a fixed grade in said personal interview, taken and considered alone, as a condition to passing said examination.”

It is further averred that Johnson, Baker and Crane (constituting the Board of Examiners) illegally conducted the examination in this manner:

“That said respondents, William H. Johnson, Harry T. Baker and Henry S. Crane, as members of said Board of Examiners caused said examination to be divided into three divisions or parts, to-wit, written, evaluation of record and personal interview, and required that a candidate obtain a mark or grade of 75 per cent upon the personal interview, taken and considered alone, and without reference to the grade obtained by such candidate upon the evaluation test aforesaid, which grade ought of right under the rules of said Board of Education of the City of Chicago then and there as aforesaid in force, to have been taken and considered with said grade or mark obtained upon said personal interview, in determining the actual grade or mark obtained upon said oral part of said examination. ’ ’

The petition avers that relator participated in the written part of the examination and obtained an average mark or grade therein of 91.25 per cent; and was awarded no mark or grade in any one subject under 50 per cent; that in that portion of the oral examination described as “evaluation of record” he was given by respondents a grade or'mark of 92.5 per cent; that thereafter on April 6,1937, petitioner (at the direction of the Board of Examiners and at the time and place designated by them) took the personal interview test and was awarded a grade or mark of 70 per cent thereon; that thereafter the Board of Examiners informed petitioner that because he had not obtained a grade of 75 per cent or over upon the personal interview test he had failed the examination, and that the Board of Education of the city of Chicago declined and refused to issue to petitioner a certificate, thus unlawfully depriving him of the benefits thereof.

The relator says that he received and was entitled to receive grades which conclusively established his right to receive a principal’s certificate, in that he received a grade or mark of 91.25 per cent on his written examination, which under the rules of the Board of Education counted for one-half of the total mark receivable by him, and he was also entitled to receive under these rules a grade of 81.25 per cent on the oral examination to count under the rules of the Board of Education for the other half of the total mark receivable by him; that this grade of 81.25 per cent would be made up of one-half of the sum of the personal oral examination grade received by him amounting to 70 per cent (being one part of his unwritten or oral examination), and the evaluation grade of 92.5 per cent which he received upon the other part of the unwritten examination, and one-half of the sum of said grade of 92.5 (his evaluation grade) and the 70 per cent received by him on his personal oral examination would have constituted a grade of 81.25 per cent, to which he was entitled under the rules of the Board of Education on his unwritten or oral examination and would have exceeded the required minimum grade of 70 per cent by 11.25 percentage points; that the sum of his written examination grade, namely, 91.25 per cent (being one-half of the final total mark required to be made by him) and his unwritten or oral examination grade of 81.25 per cent, to which he was entitled as before said, and being the other half of the total mark to be made by him, divided by two gave him a grade of 86.25 per cent, which exceeded by 6.25 percentage points the total final mark required to be made by him in order to be entitled to receive a principal’s certificate, which final total mark was exceeded by not more than four of the one hundred and fifty-five candidates who successfully passed the examination.

We have stated relator’s claims substantially in his own words. The nub of the matter as we understand it, is that he complains that the Board of Examiners, without authority from the Board of Education and contrary to its rules, made and enforced a rule in substance that on the personal interview test, which was a part of the oral examination, the candidate was required to receive a grade of 75 per cent. The relator does not aver that the personal interview test given him was unfair. He does not assert that there was any fraud in connection with it. He does not aver that the test was made in any discriminatory way, but on the contrary avers that the same test was given to and required of every candidate. His complaint questions only the authority and jurisdiction of the Board of Examiners to apply the test.

Defendants in opposition to this contention, in the first place say that Exhibit 1 fails to disclose any rule of the Board of Education controlling this examination, and they say (citing authorities) that the averment of the bill that there were such rules cannot prevail as against exhibits attached to the bill and made a part of it which negative the averments of the bill in this respect. They further say that assuming the provisions of Exhibits 1 and 2 to amount to rules and regulations of the respective Boards, there is nothing in the rules contained in Exhibit 2 which is inconsistent with those set forth in Exhibit 1; that the provision in regard to the requirement of the personal interview test is at the most only an elaboration rather than a contradiction of the supposed rules and regulations laid down in Exhibit 1. It seems unnecessary to decide this question in xdew of the conclusion at which we have arrived upon consideration of the further contention of defendants as stated in their motions to strike, that as a matter of law the Board of Education, under the statute creating it, is wholly without power or authority to make rules governing or controlling the examination of candidates under the merit system; that on the contrary such power and authority is vested exclusively in the Board of Examiners. If this proposition is determined affirmatively, it follows of necessity that the petition of relator is without merit; since he nowhere questions the fairness of the examination as made by the Board of Examiners. We may therefore pass over for the time being these questions as to whether the later alleged rule of the Board of Examiners is inconsistent with alleged rules of the Board of Education as well as other points urged by defendants in their motions to the effect that plaintiff is barred by laches in that while the eligibility list (as determined by the examination) was posted April 29, 1937, the petition in this cause was not filed until October 7 of the same year, that the petition is defective for the reason that it fails to aver that plaintiff made any demand upon defendants for the recognition of his supposed rights prior to the beginning of this suit (Murphy v. City of Park Ridge, 298 Ill. 66, 71,131 N. E. 256; Coughlin v. Chicago Park District, 364 Ill. 90, 108, 4 N. E. (2d) 1), and that relator is estopped by taking the examination with full knowledge of the conditions imposed by the examiners.

If the Board of Education as a matter of law was without power and authority to make rules controlling the examination by reason of the fact that the statute vested exclusively in the Board of Examiners the power to do so, then the contention of the relator cannot be sustained upon any ground. We have already recited the pertinent provisions of many sections of the statute as set forth in relator’s petition. Other provisions of the statutes are to the effect that the Board of Education shall elect annually from its own number a president, vice president and a secretary and define their powers and duties; that it shall by a majority vote of the full membership appoint a superintendent of schools who shall have general charge and control (subject to the approval of the Board); that the Board shall in like manner appoint a business manager who shall have general charge and control of business matters (subject to the approval of the Board), and an attorney who shall have general charge and control of legal matters (subject to the approval of the Board); that the superintendent of schools shall hold his office for a term of four years; that the business manager and attorney shall hold their offices for an indefinite term and be subject to removal by the Board at its discretion; that the appointment and removal of the superintendent of schools, the business manager and the attorney (and also assistant attorneys) shall not be subject to the civil service law; that the superintendent of schools shall be removed during the term of employment only for cause by a vote of not less than a majority of all members of the Board upon written charges to be heard by the Board only after 30 days notice, with copy of charges served upon him, and he shall have the privilege of being present with counsel offering evidence, etc., and that pending the hearing he may by a like majority vote be suspended by the Board, provided that in event of acquittal he shall not suffer any loss of salary by reason of the suspension; that the appointment of other employees of the Board of Education (except as therein otherwise provided) shall be made pursuant to the provisions of the civil service law and no civil service employee shall be removed except for cause and then only by a vote of not less than a majority of all the members of the Board, on written charges, with like opportunity to defend; that the superintendent of schools shall prescribe and control (subject to the approval of the Board of Education) the course of study, text books, educational apparatus and equipment, discipline in and conduct of the schools, and shall perform such other duties as the Board may by rule prescribe pertaining to the education department, etc.

These provisions show that notwithstanding the extensive general powers conferred upon the Board of Education with respect to the control of the schools within the city of Chicago, it was the intention of the legislature to limit (and in some cases take away) these powers under special and particular circumstances. The briefs of the parties concede that the precise question here to be determined as to whether the control of examinations is within the jurisdiction of the Board of Education or the Board of Examiners has never been determined in a judicial proceeding. However, in People v. Board of Education of the City of Chicago, 258 Ill. App. 271, this court had occasion to consider the question of whether the attorney for the Board was granted powers which were to be exercised independently. This court held that it was the intention of the legislature to grant to the attorney for the Board such independent powers with reference to the duties of his office. There was an appeal to the Supreme Court, and in People v. Board of Education of the City of Chicago, 345 Ill. 486, 178 N. E. 154, the judgment of this court was affirmed. By analogy we do not doubt that a similar rule would be applied with reference to the power and authority vested in the superintendent of schools and the business manager of the Board of Education.

The relator argues that this power and authority is vested exclusively in the Board of Education, basing his contention upon a construction of the language of these different sections of the act. He argues that since the legislature gave “charge” of the public school system to the Board of Education in express terms after adding a comprehensive clause expressly defining the powers given to the Board as not exclusive but as extending to “all the powers that are requisite and proper for the maintenance and the fullest development of an efficient public school system, ’ ’ and the power to make rules “having the force of ordinances . . . for the entire management of the schools, ’ ’ it cannot be held that it was the intention of the legislature to carve out of these grants of power the highly important task of prescribing the method by which the teachers and employees required to be chosen for merit only should have their merits determined; that it cannot have been the intention of the legislature (which enjoined upon the Board of Education the duty of appointing principals of the schools only for merit) to take from that Board the power of defining what merit should consist of. It may not, relator contends, be supposed that it was the intention of the legislature that this phase of the control and management of the schools should be committed to an independent body unaffiliated with the teaching force and hence so removed from its sphere of influence as to be aloof and impartial. The Board of Examiners, says relator, does not answer to the description of aii impartial and independent Board. On the contrary it consists of the superintendent of schools, who is an employee of the Board of Education on a four year contract basis, together with two persons nominated by him but requiring the approval and confirmation of the Board of Education. The relator says it was in the contemplation of the legislature that the two additional members of the Board of Examiners should come from the ranks of the teaching force, and upon the expiration of their term of office should rejoin that body; that the Board of Examiners, as created by the statute, is wholly dependent as to compensation upon the salary that may be allotted by the Board of Education. These are not, it is said, the attributes of an independent body.

The statute defines the duties of the Board of Examiners to be examining applicants who are required to hold certificates to teach, holding such examinations as the Board of Education may prescribe upon the recommendation of the superintendent, and preparing all necessary eligibility lists and performing such other duties as the Board of Education may require. These, says the relator, are merely routine ministerial duties, in view of which it cannot be maintained that their power and authority is exclusive of that conferred upon the Board of Education by the provision of the statute granting all powers requisite for the maintenance of the schools.

The school law as it existed prior to the enactment of the Otis law, approved April 20, 1917, expressly delegated to the Board of Education (as then constituted) the duty of examining “all persons offering themselves as candidates for teachers, and when found well qualified to give them a certificate gratuitously.” (Hurd’s Ill. Statutes, 1915-1916, chap. 122, sec. 134, p. 2375.) This provision was omitted from the Otis law. No similar power is thereby conferred on the Board of Education, but this power and duty is by section 138 of the Otis law vested in a board of three examiners. The omission is significant. The evident purpose is manifest. The conclusion is irresistible that it was the intention of the legislature to substitute as to this function the Board of Examiners for the Board of Education.

The relator, however, argues that under the former law the Board of Education was only a department of the city government, while under the new law it is created a body corporate and politic. The creation of the Board of Education as a separate entity is significant as indicating an intention to divorce the schools of the city from all political phases of the city government. This fact does not weaken but on the contrary seems to strengthen the inference that it was the intention of the legislature in constituting the Board of Examiners to place the appointment and promotion of teachers in the control of a board that would be influenced alone by the welfare of the schools in the performance of these functions. The argument of relator in this respect is not persuasive.

Relator also says that the former statute, unlike the present one, expressly enumerated all the powers of the then Board of Education and did not grant general powers to the Board of Education as it then existed. An examination of the statute does not bear out this assertion. Under the former law the Board of Education as then constituted was granted general powers. (Hurd’s Ill. Rev. Statutes, 1915-1916, ch. 122, sec. 133.) The argument is without merit.

Again the relator contends that under the present law the statute constituting the Board of Examiners does not confer power to determine the required grades in examinations; that the power of the examiners is limited by the direction to examine all applicants and in connection therewith, “to hold such examinations as the Board of Education may prescribe.” The present statute grants to the Board of Examiners powers and places on that Board the duty of testing all candidates as to their character, scholarship and general fitness. The passing or failure marks are the signs and symbols by which these qualities are manifested. Without the power to determine what grades are required the power conferred on the Board of Examiners would be empty. As this power is not conferred by the statute in express words it would seem to be necessarily inferred. Indeed, in view of the evident intention to take this power from the Board of Education it would seem that the power, if not granted to the Board of Examiners, is not granted at all. This would frustrate the evident purpose of the statute.

Again, relator says that the intention to subordinate the Board of Examiners to the Board of Education is evident by the fact that while rule making power is expressly conferred on the Board of Education no such express power is granted to the Board of Examiners. We do not regard the omission to grant express power in this respect to the Board of Examiners as controlling. It is elementary that the grant of an express power carries with it by implication the grant of all power appropriate and necessary to carry out the power granted. The school law of New York (differing from that of Illinois in some respects) is like it in that it constitutes a Board of Examiners to whom is delegated the duty of examining applicants and candidates and determining their qualifications. The New York statute, like ours, does not expressly grant to examiners rule making powers. Nevertheless, the New York Board of Examiners made such rules and its action in that respect was approved by the highest educational authority of the State. (McKinney’s Consol. Laws of N. Y. Ann., 1928, Bk. 16, sec. 871, p. 295; see also sec. 868, p. 389.) See also In the Matter of the Jurisdiction of the Board of Examiners of the City School District of New York and the Supervision and Control of Teachers’ Examinations, 1921, 25 N. Y. St. Dept. Rep. 275. A similar conclusion was arrived at in The Matter of the Appeal of Jennie B. Bryan and Celia Shimberg, in Behalf of Themselves and Others similarly situated from the Action of the Board of Examiners of the City School District of New York as to an Examination for Assistant to Principal, 1922, 27 N. Y. St. Dept. Rep. 334.

The relator argues that the inference of subordination of the Board of Examiners to the Board of Education is indicated by the fact that the statute is silent as to how the rules of the Board of Examiners may be pleaded or proved in legal proceedings, whereas express provision is made in these respects as to rules of the Board of Education. We are not impressed by this contention. In the absence of statutory provision in this respect the rules of the common law would be applicable and sufficient.

Again, the relator contends that the changes made by the Otis law, as compared with the former law, find sufficient explanation in the observation that the legislature recognized the existence of a ministerial function and a practice that had theretofore obtained in the Board of Education of delegating the duty of conducting examinations to persons not members of the Board. He says it was intended to confer these merely ministerial duties on the Board of Examiners for the purpose of safeguarding the merit system and insuring the conduct of examinations free from questionable influences. The purpose the statute was intended to accomplish is, of course, apparent. There can be no doubt from a consideration of it by particular paragraphs and as a whole that it was the intention of the legislature in enacting the present school law to eliminate the spoils system wherever it then existed and to make its existence impossible thereafter. As a means to that end the duty of examination and the power to apply tests of merit and fitness was taken away from the Board of Education and was placed in the Board of Examiners. It is to be noted that the action does not provide educational qualifications for the members of the Board of Education while it expressly provides such qualifications for the "members of the Board of Examiners. For instance, by express provision it makes the superintendent of schools, who is the head of the educational system, a member of the examining board, and requires that the appointment of the other members shall be conditional upon his suggestion and recommendation. Other provisions of the statute indicate that it was the expectation that other members of the examining board should possess educational qualifications, This is indicated by a provision that when any teacher or principal who has been made a member of the Board of Examiners is relieved of his duties he shall be reinstated in the position from which he was promoted. The statute indicates, therefore, an intention to vest in educational experts the power and the duty of providing- the tests by which the merits of candidates shall be determined, and to make the Board of Examiners, in so far as possible, an independent board. Whether the provisions went as far as they should or too far is not for our consideration. The statute, as a whole, compared with the act which it superseded, discloses an intention to place in the Board of Examiners independent and absolute power, in the exercise of which it would not be subservient to any other board. A contrary construction would require us to ignore the manifest intention disclosed by the substitution of the Board of Examiners for the Board of Education, as in the former statute, by the omission in this statute (as formerly) to grant to the Board of Education (either expressly or by implication) the power to determine the character and fitness of applicants and the intention clearly manifested in the whole act that appointments and promotions of teachers in the public schools of Chicago should be made upon merit as determined by an impartial, competent and independent Board of Examiners.

As already stated, it is conceded that the question here is one of first impression. The motions to strike raised purely a question of law. The averments of fact as stated in the petition are admitted. The petition alleges no fraud or partiality or discrimination on the part of the examiners. It does not aver any improper or unfair conduct on their part. It asserts only that the test imposed was without legal authority and calls in question the power and authority of the Board of Examiners. Upon such admitted facts we hold, as a matter of law, that it was within the powers of the Board of Examiners to apply the test made and this independently of the Board of Education or any rules made by it. The highest authorities of the schools of New York have reached a similar conclusion under similar circumstances.

For the reasons stated the judgment is reversed and the cause is remanded.

Reversed and remanded.

■0’Connor, P. J., concurs.

McSurely, J.,

specially concurring: In my opinion the determination of the passing mark is a detail of the examination. It enters directly into the determination of the fitness of the candidates for certificates. The fixing of such passing mark is therefore the exclusive function of the Board of Examiners. This is in substance of the language of the New York Commissioner of Education in passing upon the question whether the Board of Examiners or the Board of Education should fix the passing mark of examinations. 25 N. Y. St. Dept. Rep. 275.

May 9, 1938, order of April 25, 1938, vacated on motion of appellee, appellant consenting.

May 9, 1938, that part of the order of April 25,1938, remanding the cause, is stricken and the judgment of the superior court of Cook county is reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Fulton

license: Public Domain

text:
    Zoa Parker, Administratrix of Estate of George Parker, Deceased, Appellant, v. The Alton Railroad Company, Appellee.
    Gen. No. 9,074.

      Opinion filed April 20, 1938.
    Provine & Williams, of Taylorville, and Clark H. Miley, of Springfield, for appellant.
    William L. Patton, of Springfield, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The appeal in this case presents questions arising solely upon the pleadings. The appellant is the widow of George Parker, deceased, and as administratrix of his estate brought this suit against the appellee to recover damages under the Injuries Act for unlawfully causing the death of appellant’s intestate. At the time of his death the decedent was engaged in the course of his employment as a truck driver for G. O. Parrick, whose business was the hauling of commodities by motor driven vehicles. Both the deceased and his employer were bound by the Workmen’s Compensation Act of Illinois. The deceased was killed on July 19, 1933, when the truck he was driving was struck-by a passenger train of the appellee, The Alton Railroad Company. The collision occurred at a grade crossing in Springfield, Illinois.

The suit was commenced and complaint filed within one year after the death of appellant’s intestate. The principal allegations of the complaint set forth that the deceased, while exercising due care for his safety, drove a motor truck north on 11th street in Springfield, Illinois, on July 19, 1933, toward the crossing óf the railroad operated by the appellee in a northerly and southerly direction through the county of Sangamon and the city of Springfield, Illinois, and that because of the negligence in the operation of appellee’s train, it collided with the truck and caused injuries to the deceased from which he died on the same date.

Appellee filed a motion to dismiss the suit on the ground that appellant had no capacity to' sue. The motion was filed pursuant to section 48 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 172; Jones Ill. Stats. Ann. 104.048], and was based on the provisions of section 29 of the Workmen’s Compensation Act of Illinois [Ill. Rev. Stat. 1937, ch. 48, § 166; Jones Ill. Stats. Ann. 143.44]. An affidavit attached to the motion stated affirmatively that at the time of his death both the deceased and his employer were subject to the Compensation Act, and that by virtue of the allegations of fact contained in the complaint it appeared that appellee was engaged in the business of carriage by land of goods and passengers between points in the State of Illinois for hire, and that the provisions of the Workmen’s Compensation Act of Illinois applied to appellee and its employees. There was no allegation in the complaint stating that appellee was subject to the Compensation Act, nor was there any allegation in the complaint stating that appellee was not subject to the Compensation Act. The. appellee contended that the omission of the latter fact was an essential and vital element of the complaint, and permitted appellee to invoke the provisions of section 48 of the Civil Practice Act, and to raise the question as to whether or not the appellant had the legal capacity to sue.

The trial court sustained the motion and held that the appellant had the burden of alleging affirmatively and proving that appellee was not subject to the Compensation Act at the time of the collision. It was the appellant’s position that the complaint contained a proper statement of a cause of action pursuant to the provisions of the Injuries Act; that no provision of the Compensation Act required any allegation other than those usual to suits under the Injuries Act, and that, if in fact, appellee was at the time of the collision subject to the Compensation Act, such fact was a matter of affirmative defense to appellants suit, which appellant was not required to anticipate and negative in her complaint.

Section 29 of the Workmen’s Compensation Act of Illinois [Ill. Rev. Stat. 1937, ch. 48, § 166, Jones Ill. Stats. Ann. 143.44] provides, that where both the employer and employee are under the act and the employee is injured or killed by the negligence of a third person, who is also under the act, the following:

‘ ‘ Then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.” Under such circumstances a personal representative cannot maintain the action, the right having been transferred to the employer. McNaught v. Hines, 300 Ill. 167. Schlits Brewing Co. v. Chicago Rys. Co., 307 Ill. 322.

The appellant relies almost exclusively upon the case of O’Brien v. Chicago City Ry. Co., 305 Ill. 244, for authority that it was not necessary to allege the appellee was at the time of the collision exempt from the provisions of the Workmen’s Compensation Act of Illinois. That case, however, was based upon the Compensation Act of 1913, which was then in effect in this State. Under that act people operating in hazardous occupations might elect whether or not they would operate under the Compensation Act. That fact was, therefore, peculiarly within the knowledge of the defendants and it was his duty to raise the question by way of defense. Under the Act of 1917, all persons engaged in hazardous occupations come within the provisions of the act and the appellee in this case could only be excepted while engaged in interstate commerce. It therefore seems to us that it was necessary for the appellant to allege affirmatively in her complaint the reason why the appellee was not operating under the Compensation Act. If the appellee was in fact under the Compensation Act it is clear from the decisions above quoted that the appellant would not have the capacity to sue, and the only right of action in this case would be in the employers name. Since the decision in the O’Brien case several federal cases and cases in Illinois hold to the doctrine that there must be the allegation of the exception in cases where the defendant would ordinarily be operating under the Compensation Act. Stevens v. Illinois Cent. R. Co., 306 Ill. 370; Tipton v. Atchison, T. & S. F. R. Co., 78 F. (2d) 450, 298 U. S. 141, 80 L. Ed. 1091; Lindelsee v. Chicago, O. & P. Ry. Co., 226 Ill. App. 20. Under these authorities it seems to us that the circuit court properly sustained the motion to dismiss filed by the appellee in this cause.

After the court granted the motion to dismiss, the appellant obtained leave and filed five additional counts on January 30, 1937. The additional counts contained the same allegations as did the original complaint except that in each of the additional counts there was an allegation that at the time of the injury the appellee was engaged in interstate commerce. The appellee then moved to dismiss the additional counts and for judgment on the grounds that the filing of the additional counts was the commencement of a cause of action more than one year after the death of appellant’s intestate and thus contrary to the provisions of the Injuries Act. The court sustained this motion and ordered the suit dismissed in bar of the appellant’s action. The appellant contends that the adding of the additional allegations was permitted under the provisions of section 46 (2) of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 170; Jones Ill. Stats. Ann. 104.046]:

“The canse of action . . . set np in any amended pleading shall .not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted ... in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery . . . when such condition precedent has in fact been performed, and for the purpose of preserving as aforesaid, such cause of action ... set up in such amended pleading and for such purpose only, any such amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

This Court had occasion to construe and define the effect of section 46 of the Civil Practice Act in the case of Friend v. Alton R. Co., 283 Ill. App. 366. In that case Jessie May Friend was killed on May 23, 1932. An action was brought to the September Term, 1932, naming the husband individually and as next friend for the children of deceased, as plaintiffs. On January 9, 1934, the trial court sustained a general demurrer to the complaint, and on July 2, 1934, an amended complaint was filed naming the administrator of deceased as plaintiff. On October 11; 1934, an answer was filed setting up that the action was not commenced within one year of the death of decedent, and a motion was filed to strike the answer. The court denied the motion; plaintiff stood upon the motion; refused to plead over and judgment was entered in bar of the action. In the opinion filed in that case this court stated that since no right of action existed in the original plaintiffs no action was commenced and no cause of action stated by the filing of their complaint.

In the present case all the requirements of section 2 of the Injuries Act [Ill. Rev. Stat. 1937, ch. 70; Jones Ill. Stats. Ann. 38.02] were complied with. The suit was brought in the name of the personal representative within one year after the death of the intestate. In the additional counts the cause of action asserted grew out of the same transaction or occurrence set up in the original pleading, and were clearly filed because of the court’s ruling that the original complaint was defective. The amendment was evidently made for the purpose of preserving the cause of action and the motion to dismiss should have been denied.

In Metropolitan Trust Co. v. Bowman Dairy Co., 292 Ill. App. 492, where a complaint alleged that both of defendant’s vehicles, having met at an intersection, ran onto the sidewalk and hit plaintiff’s intestate, as consequence of alleged negligence of both defendants, and where proof at the trial showed only one vehicle to have actually struck the deceased, so that a variance resulted, it was held- that the trial court properly permitted plaintiff to amend his complaint as against defendant’s objection that the amended complaint was barred by the provisions of the Injuries Act because stating a cause of action which had not accrued within one year from the date of filing. In that case the court entered into a thorough and exhaustive discussion of the recent cases covering amendments sought under section 39 of the former .Practice Act, and a construction of section 46 (2) of the Civil Practice Act. The opinion held that the amendment was permissible and related back to the filing of the original complaint, because both pleadings described the same transaction or occurrence.

The situation in this case is strikingly similar to the facts in that case and we concur in the conclusion arrived at and the decision rendered by that court as it applies to the controversy in this case. The ruling of the trial court in dismissing the five additional counts is accordingly reversed and cause remanded for further proceedings in compliance with the views herein expressed.

Reversed and remanded.


text:
    Julia Hickey, Appellant, v. Anna Hickey, Guardian of Mary Margaret Hickey, Minor, Appellee.
    Gen. No. 9,099.

      Opinion filed April 20, 1938.
    Le Forgee, Samuels & Miller, of Decatur, for appellant.
    Evans & Kuhle, of Decatur, and Douglas R. Dewey, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This is an appeal from an order entered by the county court of Macon county, dismissing the petition of Julia Hickey, appellant herein, filed in the matter of the guardianship of Mary Margaret Hickey, a minor. The sole question on this appeal was the propriety of the action of the county court in dismissing said petition.

The subject matter of the petition dismissed by the county court, and from which order the appellant appeals, was a request for leave to file copies of the report of a guardian’s sale of real estate, and the order approving the same, which the petition alleged had been filed in the cause but were lost or misplaced.

The petition set forth that Anna Hickey, as guardian of Mary Margaret Hickey, a minor, on the 4th day of September, 1925, presented her petition to the county court requesting that an undivided interest of the minor in certain real estate be sold; that the court subsequently entered a decree for the sale of said interest; that said property was sold pursuant to said order as provided by law to the appellant and Mary Hickey; that a guardian’s deed was executed and delivered to the appellant and Mary Hickey on the 28th day of November, 1925, and filed for record; that a report of sale of said real estate was filed in the county court and an order approving the same on or about the 28th day of November, 1925; that the said report of sale and order approving the same are now lost or misplaced and do not appear in the files in said cause; that appellant has caused a search to be made of the books and records in the office of the clerk of the county court of Macon county and that the said report of sale and said order approving the same have not been found. Copies of the original report of sale and of the order approving the same were attached to the petition which prayed that an order be entered in lieu of, and with the same force and effect as the original instruments which are now lost.

The petition was verified by the affidavit of John R. Fitzgerald, the attorney for the guardian at the time of the sale, and the affidavit of the county clerk that he had made search of his files and records and that he has not found the report of sale and the order approving the same.

The appellee filed a motion to dismiss the petition on the grounds that the petitioner failed to state that the report of sale was entered on the records of the court; that the allegations of the petition are not supported by any minutes or memoranda of the records of said court or of the judge of said court; that the allegations of the petition rests in parol only; that the report of sale is not a “pleading or paper” within the meaning of the statute; that the order prayed for would impeach the records of the court; and that the petition does not set forth any facts upon which the court has any authority or jurisdiction to grant the prayer thereof.

It is the contention of the appellee that the court properly dismissed the petition of the appellant for the reasons set forth in the motion to dismiss and in support of their position cite Tynan v. Weinhard, 153 Ill. 598, and Stein v. Meyers, 253 Ill. 199. In both these cases it is definitely held that an order of court should not be entered nunc pro tunc years after it was said to have been made when there is no written evidence that any such order was in fact made. It is well settled in this State that amendments of the record will not be allowed after the close of the term at which the record was made, unless there are some memoranda, minutes, or notes of the judge or something appearing-on the record or files, to amend by.

We do not feel that the said authorities are controlling on a petition to restore lost files which are alleged to have been lost or misplaced. In this case, by filing- her motion to dismiss appellant’s petition, the appellee admitted all of the facts well pleaded in the petition. One of the positive allegations in the petition was, that the report of the sale of real estate and the order of the court approving the same was filed in the office of the county clerk of Macon county on or about November 28, 1925. It has long been the rule that courts of record generally have inherent power to restore or substitute papers, files and records of the court which have been lost or destroyed. Freeman on Judgments, section 191. Black on Judgments, section 125. In the case of Fisher v. Sievres, 65 Ill. 99, where a bill in chancery was filed to restore to the judgment creditor the benefit of his judgment where the books, papers and records of said court had been wholly consumed and destroyed by fire, the court refused to entertain jurisdiction because the plaintiff had an adequate remedy at law by a motion in the court where the judgment was rendered to supply the record. In the case of Blakemore v. Wilson, 61 Ill. App. 454, the court held that the power to restore its lost record is inherent in every court of general jurisdiction.

In no case do we find a positive rule of law requiring that a memorandum or minute be available upon which to restore a lost pleading or paper. It seems to us that the appellee should have been required to answer the allegation in the complaint above set forth concerning the filing of the report of sale and order approving the same and that the same had been lost or misplaced. The appellant is entitled to the judgment of a court or a jury as to whether or not she has sufficient proof upon which to base an order restoring the lost files, and it is then for the court to determine whether or not there is sufficient evidence upon which an order to restore the lost files may be entered. Believing that the allegations of the petition state sufficient facts to require an answer from the appellee, the order of the county court of Macon county will be reversed and the cause remanded for the purpose of settling the issues and affording further trial in that court.

Reversed and remanded with directions.


text:
    People of the State of Illinois ex rel. Edward J. Barrett, Plaintiff, v. Fon Du Lac State Bank, Defendant. Warren Sutliff, Appellant, v. Charles H. Albers, Appellee.
    Gen. No. 9,107.

      Opinion filed April 20, 1938.
    L. E. Sutherland, of Peoria, for appellant.
    John E. Dougherty, of Peoria, for appellee Charles H. Albers.
    Quinn, Quinn & O’Hern, of Peoria, appellee Federal Deposit Ins. Corp.; Jay J. Alloy, of Peoria, of counsel.
    C. B. Ullrick, of Peoria, for appellee John Strickfadden.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

On August 12, 1932, the Fon Du Lac State Bank, of East Peoria, Illinois, gave a depository bond to Margaret H. Arnold, township school treasurer of Fon Du Lac Township, Tazewell county, Illinois, upon which the appellant Warren Sutliff and others were sureties. The condition of said bond required the obligor to pay all withdrawals of School District No. 309, Tazewell county, Illinois, deposited in said bank in excess of $45,000. On May 28, 1934, the auditor of public accounts of the State of Illinois took possession of and closed the said bank, and on June 13, 1934, a receiver was appointed. Upon the closing of the Bank there were funds deposited by Margaret H. Arnold, township school treasurer, belonging to said School District No. 309, in said Bank in the sum of $74,778.59. Subsequent to the closing of the Bank, the said township school treasurer, in behalf of Community High School District No. 309, brought suit in the circuit court of Tazewell county, against Warren Sutliff, the appellant, and the other sureties on said bond to recover the deposits in said Bank in excess of the sum of $45,000, and judgment was entered therein against Warren Sutliff individually in the sum of $29,678.59, and costs of suit. This judgment was afterwards paid by Warren Sutliff, together with interest and costs, in the amount of $30,200.

Margaret H. Arnold filed an intervening petition in the bank liquidation proceedings as such township treasurer, and for the use of said School District No. 309, for the allowance of her claim against the receiver. On September 21,1936, a decree was entered allowing the claim prayed for in said intervening petition and finding that at the time said bank closed it was indebted to said intervening petitioner in the sum of $74,778.59, and that Warren Sutliff had paid upon said indebtedness the sum of $29,678.59, by virtue of a judgment “on a certain bond executed by the said Sutliff and others for the .protection of a portion of said indebtedness, and that said payment by said Sutliff constitutes part payment of said indebtedness.” The order further finds that the said petitioner has been paid the sum of $36,768.41, by said receiver. It was further provided in said decree as follows:

“It is further expressly ordered that the allowance of said claim hereinabove made to Intervening Petitioners is made wholly and solely to said Intervening Petitioners and to no other person or persons whatsoever, and that said allowance herein made to Intervening Petitioners shall not prejudice the rights of any other person or persons whatsoever to assert and the Receiver to resist any claim for common dividends over and above the amounts required herein to be paid to the Intervening Petitioners.”

Thereafter appellant filed his intervening petition, on which this appeal arises claiming that he is “equitably entitled to . . . all dividends which have been or may hereafter be declared on said claim in excess of the amount heretofore ordered to be paid to Margaret H. Arnold as such Township School Treasurer,” by virtue of the fact that he had paid the township treasurer the penalty of the bond. This intervening petition was answered by the appellees denying the right of appellant to subrogation, setting forth among other things that appellant was a party to an intentional violation of the statute, limiting the amount of deposits which could legally be made, and that to invoke the equitable powers of the court in favor of the appellant as requested, would operate to injure the lawful and innocent creditors of the Bank by reducing the fund available for distribution to them. The statute referred to being section 71, ch. 122 [Ill. Rev. Stat. 1937, § 71; Jones Ill. Stats. Ann. 123.074], provides that deposits by a township treasurer of school funds shall not exceed 75 per cent of the capital stock and surplus of the Bank. Upon a hearing the court found the issues against the appellant and dismissed his intervening petition for want of equity. It is from that order that the appellant now seeks a reversal.

The facts above outlined were not in controversy and the sole question in the case is whether or not the appellant Warren Sutliff was entitled to subrogation. He asserts that as a general proposition where a surety pays the debt of his principal he is entitled to be subrogated to all of the rights of the creditor. This principle is well established in the cases' cited by the appellant such as Bartel v. Zimmerman, 293 Ill. 154. In that case it was held that the surety on a note was entitled to be subrogated to the rights of the payee where he has paid the judgment on the note and taken an assignment thereof to protect himself against levy and sale of his own property, and he may enforce the judgment against the maker of the note. However, in that case there was no question of the rights of third parties having intervened. In the present case the question is whether or not the appellant, being an active participant in the securing of a deposit liability in excess of the statutory limitation, may now be permitted to assert a claim for subrogation in a court of equity which is superior to the claims of the innocent depositors and creditors of the bank.

Our Supreme Court in defining subrogation has said: “Subrogation is an equitable right, and not a legal one, and can be enforced only in equity. It will not be enforced when it would be inequitable to do so or where it would work injustice to others having equal equities.” Makeel v. Hotchkiss, 190 Ill. 311. The contention of the appellant that a construction of the statute referred to would distinguish his case from those holding that a surety may not be subrogated to the claim of the State or other public entity when his suretyship obligation results from a violation of statute is not borne out by the decisions of our courts. The case of Estate of Ramsay v. Whitbeck, 183 Ill. 550, definitely holds the contrary. In that case Rufus N. Ramsay as State Treasurer of Illinois entered in to an illegal agreement with his sureties to deposit public funds in the banks represented by said sureties upon which interest was to be paid to him. During his term of office Ramsay died leaving a large deficit of public funds on deposit. This deficit was paid by the sureties and they then filed a claim in the county court against the estate of Ramsay and applied to the court to be subrogated to the rights of the State of Illinois and to have the claim allowed as a preferred claim of the sixth class. The fact that the testimony tended to show that the bond was given to induce the treasurer to make deposit in certain banks where there was a separate, illegal undertaking to pay the treasurer interest was the basis for the claim being denied by the court.

In the case of People v. Peoples State Bank of Maywood, 354 Ill. 519, an ordinance of the village of May-wood prohibited deposits by the village treasurer in excess of the indemnity which the depository bonds afforded. An excess deposit was made by the treasurer. Such deposit was held unlawful and the court said, “The omission to observe a mandatory provision of a Statute or ordinance renders unlawful the act or proceeding which it governs or to which it relates.” In the case of Western Indemnity Co. v. Crafts, 240 Fed. 1, the State Treasurer of Ohio had deposited money with a trust company in violation of the Ohio statutes. The surety company having paid the State on the bond sued the defendant officers of the trust company on their contract to indemnify the surety company against losses on the bond. The court held against the contention of the' surety company and in citing the case of the Estate of Ramsay v. Whitbeck, supra, said, “Thus it is sought to enforce a contract which was executed and received with the plain intent and purpose to promote a scheme to divert state moneys from the State Treasury to the Trust Company, and while it is true, as counsel insists, that the statute did not in terms make it a crime to receive and secure the deposit of State moneys, still the inhibition of the Statute is broad enough to forbid a scheme looking to such a diversion of State moneys.”

In the present case it is clear that the appellant engaged in and was the moving spirit in an act which was a clear violation of the statute. The act specifically fixed a limitation as to deposits of the character involved at 75 per cent of the capital and surplus of the bank. While it is apparent that this statute was passed to enable township treasurers to procure bonds it was also intended as a protective measure for the public. To confer upon the appellant the right of subrogation would be to prefer his unlawful act over the rights of innocent depositors and creditors.

It is our conclusion that under the admitted facts in this case and the decisions of our courts it was proper for the trial court to refuse the equitable right of subrogation to the appellant in this case and the decree of that court is therefore affirmed.

Affirmed.


text:
    Essie M. Yakley, Trading as Pike County Abstract Company, Appellant, v. Wendell Johnson, Appellee.
    Gen. No. 9,110.

      Opinion filed April 20, 1938.
    L. F. Graham and A. W. Schimmel, both of Pittsfield, for appellant.
    Merrill H. Johnston and Williams & Williams, both of Pittsfield, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

Essie M. Yakley, doing business as the Pike County Abstract Company, the plaintiff and appellant in this cause filed a complaint against the sheriff of Pike county alleging that she had for a number of years occupied a room in the court house for the purpose of conducting an abstract business; that she now occupies the room and conducts her business by virtue of an unexpired lease, now in full force and effect, made by the county through its board of supervisors; that the board desires the appellant to remain in possession of the room, and the sheriff, appellee, has threatened to remove the appellant by force therefrom. The appellant asks that the sheriff be enjoined from removing the equipment, books and papers of the appellant from said room, and from interfering with the conduct of her business on the said premises.

The appellee filed a motion to dismiss the complaint upon the following grounds: First, that the lease did not purport to have been the lease of Pike county; Second, that the lease, under which the appellant claims possession, is null and void because it exceeded the powers granted the county board by the legislature. Upon a hearing the court granted the motion to dismiss and ordered that the complaint and suit be dismissed at appellant’s costs. The appellant abided her complaint and prosecutes this appeal.

The case is entirely determined by the pleadings, and the controlling questions are: First, Did the board of supervisors in behalf of the county have the power to lease space in the court house for private purposes? Second, Has the sheriff the right to forcibly dispossess the appellant?

The complaint further discloses that the board of supervisors of Pike county, on April 17, 1936, leased to the appellant a room in the court house for the period of two years; that the appellant has ever since and is now in the exclusive possession and control of said room, and has at all times complied with, and is ready, able and willing to comply with, the terms of said lease, which is still in full force and effect.

The powers and duties of a county in Illinois are such as are given by the constitution and statutes of the State, and so far as they are material to the questions in this case are contained in paragraphs 24, 25 and 163 of ch. 34 of the Revised Statutes, 1937 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 33.024, 33.025, 33.117, 33.118], and read as follows:

[¶] 24. “Each county shall have power to sell and convey, or lease any real or personal estate, owned by the county, and to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers. ’ ’
[[25. “The county boards of the several counties shall have power to take and have the care and custody of all the real and personal estate owned by the county and to manage the county funds and county business, except as otherwise specifically provided.”
H 163. “That whenever it shall appear to any board of county commissioners or board of supervisors that there is space in the court house of the county governed by such board of county commissioners, or board of supervisors, not needed for county purposes, it shall be lawful for such board of county commissioners or board of supervisors, as the case may be, to lease any such space to the state or any court thereof, to any city, village, town, sanitary district or other municipal corporation for such period of time and upon such terms as may seem just and equitable to such board of county commissioners or board of supervisors, as the case may be.”

It is the theory of the appellant that a proper construction of these statutes gives to the county board of supervisors the authority to lease a portion of the space in the county court house for a private purpose, and relies almost entirely upon the reasoning of the court in the case of Hardin v. Sangamon County, 71 Ill. App. 103. That case did discuss quite fully the functions and powers of the county board with relation to the real estate of the county, and held that the county was a proper party to a suit in forcible entry and detainer instituted for the purpose of acquiring possession of the part of the premises alloted to the county recorder, but used by a private abstract company. We do not find in that opinion any language which holds that the county board has general power to make a lease of any room or space in the court house for a private purpose. Our courts, have many times defined the nature and duties of a county, and have always held that its duties are public and not private. In the case of Harris v. Board of Supervisors, 105 Ill. 445, the court said: “Counties are mere political divisions of the territory of the State, as a convenient mode of exercising the political, executive and judicial powers of the State. They were created to perform public, and not private, functions. They are wholly public in their character, and are a portion of the State organization. All their powers are conferred, and duties imposed, by the constitution and statutes of the State. They are public, and all the property they hold is for public use. It belongs to the public, and the county is but the agent invested with the title, to be held for the public.” Again in the case of Hollenbeck v. County of Winnebago, 95 Ill. 148, it was stated:

“Counties are but local subdivisions of the State, established by the sovereign power of the State, clothed with but few corporate powers, and these not of a private, but rather of a governmental character, relating to the support of the poor, the making of public highways and the general administration of justice within their respective boundaries.” In further defining the duties of a county it was said in the case of Dunne v. County of Rock Island, 283 Ill. 628, “The purposes of a Court House, public buildings and a jail, which counties are required to erect and maintain, are the administration of justice, the collection of the public revenue, and the performance of public functions. The powers of counties are public and they are not authorized to go into private business.”

Since a county has only the rights and privileges granted to it, either by the legislature or by the constitution, we cannot find in the provisions of the statute, or in the adjudicated cases in our Supreme Court that a county has the power, either expressly or by implication, to lease the public property for private purposes. It is further urged by the appellant that the space occupied by her was not needed for county purposes but we find no such allegation in the complaint filed nor in the lease attached thereto. Even if such allegation did appear in the pleading we doubt if paragraph 163 could be enlarged or expanded to give the county board the right to lease space in the court house to a private person.

It must be conceded that the sheriff, as a county officer charged with the care and custody of the court house, has the right to restore to the county possession of any space which is unlawfully occupied. Believing as we do that the lease entered into by the county board with the appellant was beyond the powers of the county board, it is our opinion that the appellant has failed to establish a clear legal right to an injunction restraining the sheriff of Pike county from interfering with her possession of space in the county court house, and therefore, the decree of the trial court in dismissing the appellants complaint is hereby affirmed.

Affirmed.


author: Mr. Justice Davis

text:
    David B. Long, Appellant, v. William T. Burnside, Appellee.
    Gen. No. 9,070.

      Opinion filed April 20, 1938.
    Cotton & Nichols, of Paris, for appellant.
    Craig & Craig, of Danville, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Plaintiff appellant, David B. Long, filed a complaint in the circuit court of Edgar county, consisting of three counts, the first two of which charge that the defendant appellee, William T. Burnside, unlawfully took and detained certain of the property of the plaintiff, of the value of $250, consisting of 362 fence posts. The third count is in trover for the unlawful conversion of said property. The answer filed by the defendant, William T. Burnside, is a denial of the allegations of each count. A writ of replevin was issued, and, from the return of the sheriff thereon, it appears that it was duly served upon the defendant, and the sheriff seized the property named in the writ.

It appears, that in 1919 the appellant, Long, purchased a farm of 108 acres and executed two trust deeds, one securing the payment of $10,000 and the other the sum of $1,500, both of which were held by Katherine and John Postner who resided in the State of Ohio. Long defaulted upon the interest payments from September, 1929, to September, 1932. On September 6, 1932, appellant conveyed the mortgaged premises to the Postners, which was accepted by them in full satisfaction of the mortgaged indebtedness, and the trust deeds were released and the notes secured thereby canceled and surrendered to appellant, Long. On August 1, 1935, the Postners deeded said premises to appellee, Burnside.

A jury was waived and the case was tried by the court who found the issues for the defendant and against plaintiff in bar of the action, and that the plaintiff was not entitled to the possession of the property and entered judgment that defendant have and recover of and from the plaintiff judgment in bar of his action together with the costs.

At the time appellant, Long, acquired title to the real estate in question there was a large number of hedge trees on said land, which trees surrounded an orchard of some two acres. From time to time, beginning, in 1927 or 1928, appellant cut certain of these hedge trees and made them up into posts. The time at which these trees were cut and converted into posts is a disputed fact in the record.

Appellant relies upon several grounds for a reversal of the judgment, among which are that the judgment of the court is contrary to the law and the evidence, and that both the title and the possession of the posts were vested in the plaintiff, and that the trial court erred in not so finding. Appellee, to sustain his judgment, points out that the posts were not cut until after the conveyance by appellant to the Postners, that appellant had no title or right of possession thereto at the time of the suit; that if the posts were cut before said conveyance appellant had no lawful title thereto and was not lawfully entitled to possession thereof at the time of the suit because his alleged title or right to possession is based upon fraud.

From the evidence it appears that the posts in question were cut at different times, over a period of about 10 years, and that all of them were cut prior to September 6, 1932. Appellant and one Sam Bates were farming the place in partnership for about three years prior to the time appellant deeded the place to the Postners. After Postners acquired the place Mr. Bates continued on the farm until March 1, 1936. Appellant had an agreement with Bates about leaving the posts on the place, and some lumber in the barn and part of the machinery that Bates had, that belonged to Long. When Bates was going to move Long went to see Mr. Burnside and told him he would get his things off of the place, and mentioned the posts; and he asked, what posts, and Long told him about them, and Burnside said not to move the posts.

It is insisted by appellee that the circuit court found the posts were cut after Long had conveyed the premises to Postners, when they did not belong to Long. He says that the statements contained in appellant’s brief, ‘ ‘ that the trial judge, in his decision, stated that a preponderance of the evidence indicated that the posts and trees were severed prior to the date of the conveyance from Long to Postners, and that there can be no dispute about the facts, and this was conceded by the trial judge,” are wholly unsupported by the record, no such statements by the trial judge of the reasons for his decision having been included in the report of proceedings. While it is true that the report of proceedings does not show that any such statement was made by the trial judge, we can hardly believe that the trial judge found from the evidence that the posts were not severed from the land prior to the date of the conveyance of the same to the Postners, because the overwhelming weight of the evidence is contrary to such a finding.

The uncontradicted evidence of the witnesses, Long, the plaintiff, and Sam Bates, his partner in the farming operation for three years prior to the time the land was deeded to the Postners, and Charles Bates, the son of Sam Bates who resided with him, establishes the fact that they all helped cut the posts at different times prior to September 6, 1932, covering a period of several years; and Mr. Bates testified the posts were there on the place when he left it, about March 1, 1936.

T. D. Reynolds, a farm manager for the Nelson Title Co., of Paris, Illinois, took charge of the farm for the Postners, and in November, 1932, he, with the Postners, went upon the land, and he testified that he found the hedge cut on the east and south sides, and that he did not see any posts and did not look for them. He testified that he thought most of the posts were cut in March, 1933. The testimony of this witness has but little weight when compared with the testimony of the witnesses who actually cut the posts and were paid by Long for so doing. If the trial court in its decision of the case found that the posts were cut and severed from the land after September 6, 1932, such finding is contrary to the manifest weight of the evidence in the record.

Appellee also says in his brief that plaintiff must recover on the strength of his own title and not upon the weakness of the title of defendant, and that replevin can be maintained only by the person who is the owner of the property or is entitled to the possession thereof, and cites and quotes quite extensively from a number of authorities. No one would question but that such is the law and so recognized by every one.

It is also insisted that even if it should be held that the posts were cut by Long before the deed by him to the Postners, he still did not have a good title, nor did he have lawful right to possession, as his claim cannot be based upon fraud. We fail to find in the record any evidence of fraud that would defeat appellant’s lawful right to possession of title to the property in question, even conceding that if Long had defrauded the Postners, appellee could defend on such grounds.

Appellee claims that appellant finally deeded the farm to the Postners in satisfaction of the mortgaged indebtedness, without letting them know that he had cut the posts or that he claimed, or intended to claim, ownership of the posts, but wrongfully concealed this fact. We are unable to find any evidence in the record to substantiate any such claim. There is no evidence in the record as to any negotiations or agreement that was entered into leading up to the deeding of the land to the mortgagees in satisfaction of the debt. There can be nothing in the contention that Long’s claim was based upon fraud. It is also contended that if appellant had any title to the posts he is estopped from setting the same up because it is based on fraud. We fail to see that appellee is in a position to invoke the doctrine of estoppel as he is not the owner of the posts and only prevented the removal of them from the farm, according to his own statement, because Long had plenty of time to move the posts and hadn’t done so and he had bought the place and that Long had not moved them and should not now.

It is also contended that the mortgage conveyed the growing timber and that after default the mortgagor had no right to cut it, and that the cutting of the timber may be restrained by injunction, and that, if he sells the timber he has cut, it does not divest the lien of the mortgage, all of which is quite true as between mortgagee and the mortgagor. It is also argued that when the Postners accepted the deed to the land in satisfaction of the mortgage indebtedness they were entitled to and expected to receive all of the property covered by the terms of the mortgage, which included not only the land but the posts which had grown on the land. That if Postners had known of the cutting of the timber, they could have protected their rights by suit, by injunction, but not knowing the same they were misled to their detriment. There is no testimony in the record from which the foregoing facts could be inferred. If all of this were true, it could have been made to appear by the testimony of the Postners.

Counsel for appellee further argue the supposed fraud of appellant and charge that he owed a duty to the Postners, when he negotiated with them for settlement of the mortgaged indebtedness by the conveyance of the land, to disclose to them the fact that he had cut these posts and diminished their security.

The evidence discloses that on September 6, 1932, appellant conveyed the farm to them and they accepted it and released the mortgages and returned the notes canceled, and there is no evidence but that they knew fully what they were getting by the deed, and so far as this record is. concerned they have never complained to any one about the posts, and did not at the time, and never have made any claim to the posts. As far as appellee is concerned it does not concern him in the least, if the Postners were defrauded. The entire argument of appellee, as far as it concerns the claim of fraud, is not based upon any evidence in the record, but upon their theory that something might have happened of which there is no evidence.

Long was the owner of the farm and rightfully in the possession of the same, and had absolute control over the same until entry was made for some conditions in the terms of the mortgage, that were broken, or some proceeding was instituted to prevent waste, or other remedy was exercised by the mortgagee. His title was absolute, subject only to the liens of the mortgages to the Postners, and when the mortgages were released, the lien thereof was discharged as to the entire premises, including any posts that may have been previously severed from the soil.

The cases cited by appellee, including Hutchins v. King, 1 Wall. (U. S.) 53, and Dorr v. Dudderar, 88 Ill. 107, have no bearing on the issues herein involved as they are simply illustrative of what steps the Postners could have taken had they considered that appellant was committing waste, but having accepted the deed to the farm and returned the mortgages and the notes canceled, they could not invoke any such remedies. There could have been no fraud or misrepresentation as the farm was there, with the timber that was left on it, and an inspection of the land would have disclosed that some of the timber had been severed, and under those circumstances they are presumed to have known what was obvious from an inspection of the premises.

Long conveyed the farm to the Postners on September 6, 1932, and they owned it until the fall of 1935, when it was deeded to Burnside. Conceding that the posts were cut in March, 1933, the time the witness Reynolds testified, “I think most of the posts were cut in March, 1933, ’ ’ the latest date that any witness fixed as the time when the posts were cut and severed from the land, even then appellant could recover. Postners were the owners of the farm at that time, and there is not the remotest chance that the posts were cut after. Burnside acquired the title. If cut in 1933 Postners would have an action of trespass against Long. Not even the appellee contends that the conveyance of the farm to him carried with it the title to the posts in question. It has long been the settled law in this State that even a trespasser can assert title as against all except the owner.

In the case of Wincher v. Shrewsbury, 2 Scam. 283, Shrewsbury brought an action in trespass against Wincher to recover damages for the conversion of certain rails and sawed timbers. Shrewsbury had gone upon a tract of land belonging to the United States Government and made 1,060 rails and cut and sawed timber. They were laying in piles through the woods, and, while thus situated on the land, Wincher entered and purchased the land of the United States and paid for it. He prohibited Shrewsbury from taking this timber off of his land and hauled the rails and timber away. Judgment was rendered in favor of Shrews-bury. In its opinion the court said: “I have no doubt of the plaintiff’s right of recovery against the defendant. It is true, that the wrongful taking or conversion of the property of another does not give the trespasser a title, as against the owner, who may follow and recover it as long as it can be identified. But this rule applies only to the owner of the property taken, and not to a stranger. ... At the time the trespass was committed by the plaintiff, the land, and consequently the timber growing on it, of which the rails were made, belonged to the government. The cutting of the timber was therefore an injury and trespass against the government; and it had a legal remedy. Therefore the defendant had neither a right of property, nor a right of action, at the time of the plaintiff’s trespass, in making the rails. ... A certificate of purchase or patent vests in the patentee a title to the land, and generally all that is growing on, or is in the contemplation of law attached to the land, — as houses, fences, growing timber, grain, etc.; and it is said that fallen timber passes with the land. But that which has been severed from the land, and, by the art and labor of man, converted into personal property, . . . does not pass with it, any more than the grain, grass, or fruit which has grown upon, and been gathered from it.”

Also in Brown v. Throckmorton, 11 Ill. 529, under similar circumstances, the case of Wincher v. Shrewsbury, supra, was affirmed. In this case Throckmorton, during the winter of 1844, made rails from timber cut by him on land belonging to the United States Government, and Brown took and carried them away. The defendants offered to prove that Brown was entitled to and claimed pre-emption on this land; but the court rejected the offered evidence. The Supreme Court in its opinion said: “The evidence admitted showed a prima facie right in the plaintiff to recover the value of the rails; and the evidence offered by the defendants, and excluded by the court, neither tended to rebut the case thus made, nor establish any defence to the action. The timber out of which the rails were made belonged to the United States and not to Brown. Admitting that Brown had at the time a valid pre-emption, that did not confer on him any title to the land or the timber standing thereon, he had, at most, but a license from the government to occupy the land and the right to purchase the same within a specified time, at the minimum price. On the entry of the land, he acquired no interest in the rails previously made by the plaintiff thereon. The timber was severed from the freehold, and became personal property, and did not pass with the land to Brown by the grant from the United States.

It will be seen that Long not only had title to the posts in question, but was also entitled to the possession thereof as against Burnside, and Burnside had no legal right to withhold the posts from Long. The circuit court was in error when it found that the issues for the defendant and entered a judgment in bar of the action of Long.

The judgment of the circuit court of Edgar county is reversed and the cause remanded with directions to enter judgment for appellant, David B. Long, and for such damages as he may have sustained while the property was wrongfully detained by appellee, William T. Burnside, and if the sheriff who seized the property on the writ of replevin still has the possession of the same, that he be directed to turn the same over to appellant.

The return of the sheriff on the writ of replevin and the record are silent as to what disposition was made of the property, and the court did not order plaintiff to return the same to Burnside in the judgment entered. The return should show fully how the writ was executed, and if the property was delivered to the plaintiff the sheriff should take his receipt for the same and return it with the writ. People v. Gore, 85 Ill. 248.

We find that the hedge trees from which the posts were made were severed from the soil of the premises in question prior to September 6, 1932.

Reversed and remanded with directions.