author: Mr. JUSTICE HALLETT

text:
      In re Estate of Louis Karas, Deceased—(Mary Sodermark, Petitioner-Appellant, v. Evangelia Karas, Respondent-Appellee.)
    (No. 59006;
    First District (1st Division)
    July 15, 1974.

      James R. Phelps and Wayne R. Andersen, both of Burditt and Calkins, of Chicago, for appellant.
    Gerald W. Shea, of Chicago, for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

An order was entered in the circuit court of Cook County, County Department, Probate Division, declaring that the deceased Louis Karas left him surviving Evangelia Karas, his widow, as his only heir at law and next of kin. Thereafter a petition, later amended, was filed by Mary Sodermark seeking to vacate that order. Upon motion of the widow the said amended petition was stricken and dismissed. The appeal now before us is from that order.

The petitioner states the two issues as follows:

“1. Does the Illinois Probate Act permit a child born out of wedlock and acknowledged by her father to inherit from her intestate father in the absence of intermarriage between her parents?
2. If the Illinois Probate Act denies an illegitimate child the right to inherit from her intestate natural father, is this denial a violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution and of Sections Two and Eighteen of Article I of the Constitution of the State of Illinois.”

We answer these both in the negative and affirm.

The circumstances surrounding this petition and appeal may be summarized as follows: Louis Karas died on July 8, 1971. In December of that year an order was entered in the probate division of the circuit court of Cook County declaring the respondent to be his sole heir. An administrator was appointed for the estate, as Louis Karas died intestate. In November of 1972, Mary Sodermark filed a petition in the probate court seeking to vacate the order of heirship previously entered, and to have herself declared an heir of Louis Karas, alleging that she was his acknowledged natural daughter, although the deceased and her mother had never married. The respondent filed a motion to strike and dismiss the amended petition of Mrs. Sodermark, pursuant to the provisions of section 12 of the Illinois Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 12), on the ground that, since no marriage had ever occurred between the petitioner’s parents, that section precluded Mrs. Sodermark from being considered as an heir of Louis Karas. The court held that the section did have such an effect, and that the section did not violate any of the petitioner’s constitutional rights. Also, for the purpose of this ruling only, the court found that Mrs. Sodermark was the acknowledged daughter of Louis Karas, and that Louis Karas had never married her mother. Mrs. Karas does not concede the issue of parentage, and the administrator of the estate of Louis Karas has not taken a position on any of these matters.

As above stated, the first issue as stated by the petitioner, is:

“Does the Illinois Probate Act permit a child born out of wedlock and acknowledged by her father to inherit from her intestate father in the absence of intermarriage between her parents?”

The argument under this issue is not really that the Illinois Probate Act by its terms permits such a child to inherit under said facts; rather, it is conceded that the statute does not, but the contention made is that, because the common law rule that “a bastard is kin to no one” (Blackstone, Vol. 1, Commentaries on the Law of England, p. 459) was created by the courts, they have the power to and should now alter the common law, which is recognized, although softened, by said statute.

This same argument, involving this same statute, was presented and fully disposed of (Krupp v. Sackwitz (1961), 30 Ill.App.2d 450, 174 N.E.2d 877), where, under very similar facts, the Appellate Court for the Fourth District, through Mr. Justice Scheineman, in affirming a like order at pages 452-454, said:

“The theory advanced for plaintiff is that the law imposes undue hardship upon her and deprives her of her natural right to inherit. It is argued that the modem trend of thought is to be more liberal toward the illegitimate child, and that the courts should disregard precedent and declare a public policy on the subject, to the extent of conferring on illegitimates the status of heirs on the paternal side.
There is no doubt that the past century has seen considerable change in the public attitude toward the child born out of wedlock. At common law it could not inherit from anyone. As stated by Blackstone, Vol. 1, p. 459, such a child ‘cannot be heir to anyone, neither can he have heirs but of his own body.’
The harshness of these rules has been tempered by statutes, which conferred reciprocal rights of inheritance upon mother and child, and required some monetary contribution from the father upon proof of his identity.
The present statute as to inheritance rights of illegitimate children is in Section 163 of Chap. 3, Ill. Rev. Stat. It may be noted that the general section ‘162’ includes ‘parents’ as heirs, absent certain other kin, while this special section as to illegitimates, substitutes the word ‘mother’ for parents.’ The concluding sentence gives a limited status as to the father, as follows:
‘An illegitimate child, whose parents have intermarried and whose father has acknowledged him or her as his child, shall be considered legitimate.’
It may be further observed that in 1957 the legislature adopted the Paternity Act (Chap. 106% Ill. Rev. Stat.) which requires the identified father to support the child until eighteen years of age. This statute eliminates the use of such words as ‘bastard’, and does not even classify children as illegitimate, nor use the word, except to disclaim any change in that status except as expressly provided in the act.
It is therefore, clear that the legislature has enacted laws for the express purpose of applying its regulatory powers to the child born out of wedlock. It is the province of the courts to interpret statutes, and to give effect to the intention it finds. It is not the province of the court to amend substantive law either by denying its application to situations clearly included, or by extending it to situations clearly not included.
Under existing statutory law the illegitimate child may inherit from its father if, (1) the parents are identified, (2) they intermarry, and (3) the father acknowledges the child as his. Since plaintiff’s mother was never married to the deceased father, plaintiff does not meet the requirements. Miller v. Pennington, 218 Ill. 220, 75 NE 919; Brainard v. Brainard, 373 Ill. 459, 26 NE2d 856.
Plaintiff’s counsel strongly contends that the principle of stare decisis should not prevent a court from rectifying an unjust ruling. The argument is valid as to common law decisions, which are really judge-made law, and occasions do arise in which a court properly finds that some prior decision was illogical, or that the reasoning is no longer valid under changed conditions.
This function of the courts must be carefully restricted when the legislature has spoken on the subject. Every session receives a flood of bills designed to correct what the sponsors deem to be injustices in existing law. As the elected representatives of the people, it is the function of the General Assembly to consider the supposed defects. When it does not enact changes in statutory law, after ample opportunity to do so, and after the courts have spoken, this is an indication the legislative intent is correctly interpreted. In re Estate of Quinn, 283 Ill.App. 597; 50 Am. Jur. Statutes, Sec. 326.
This case presents a cogent example: If the legislature had never entered this field, it is probable that the courts would have ameliorated some of the rigors of the common law. But even in that conception, it may be doubted that the courts would alter the law of descent. There are too many problems of effective date and ex-post facto application of the law.”

We conclude that this decision accurately reflects the law of Illinois, thus disposing of the petitioner’s first contention.

This brings us to the petitioner’s second main contention, in substance that the Illinois statute involved violates Federal and State constitutional provisions relating to due process and equal protection of the laws.

The petitioner first urges that the statute violates the Constitution in that it discriminates against fathers of illegitimate children, who, unlike the mothers of these children, must have their children legitimized before those children may inherit from them should the fathers die intestate. We find this point to be devoid of merit. The petitioner is. not the father of an illegitimate child. Furthermore, the father was not deprived of any right to have his property (other than his widow’s statutory share) pass to his illegitimate child if he wished it so to pass. All he had to do was to make out a one-page will, leaving property to his illegitimate child.

As was said in Krupp v. Sackwitz (1961), 30 Ill.App.2d 450, 454, 174 N.E.2d 877, heretofore cited and discussed at length:

“The plaintiff’s father may have lived in the belief that the laws of descent were satisfactory and so he died intestate. The courts are now asked to change the law after his death and divert his estate in a manner differing from that which he is presumed to have known to be the law.”

Nor do we see any way in which the statute discriminates between illegitimates on the basis of sex, as if for instance the statute would only-permit male illegitimates to inherit. Therefore this portion of her argument is not persuasive.

The petitioner’s strongest argument is that the statute unreasonably discriminates between legitimate and illegitimate children whose fathers die intestate, because the illegitimates may not inhereit in this circumstance, unless they are acknowledged by their fathers and their parents intermarry. But the principal flaw in this argument is the sine qua non assumption that, under Illinois law, children somehow have a basic right to inherit from their parents. There is no such right under Illinois law. It is the parent’s not the child’s right to elect how much and to whom (except for the spouse’s statutory share) his property shall pass on his death, and the only real issue in such a case is what did the parent intend when he died leaving no will.

As pointed out in Krupp, it must be presumed that Louis Karas knew that, under Illinois law, none of his property would pass to his illegitimate daughter on his death unless he left a will providing otherwise, and that he was satisfied that she receive nothing from him and that all of his property pass instead to his lawful wife, the respondent.

The United States Supreme Court has recently passed on this argument adversely to the petitioner’s position.

In Labine v. Vincent (1971), 401 U.S. 532, 28 L.Ed.2d 288, 91 S.Ct. 1017, a baby girl, Rita Vincent, was bom to Lou Bertha Patterson (now Labine) in Louisiana. Shortly thereafter her said mother and Ezra Vincent acknowledged in writing before a notary that he was her natural father. This did not, under Louisiana law, give her a legal right to share with legitimate children in the parent’s estate but it did give her a right to claim support from her parents or their heirs and did give her the capacity under Louisiana law to be a limited beneficiary under her father’s will in the event he left a will naming her, which he did not do, since he died intestate.

Louisiana law gave legitimate children a right of forced inheritance in their father’s estate and they can even retrieve property transferred by their father in his lifetime in reduction of their rightful interests. As the opinion sets out at page 537:

“Louisiana also has a complex set of rules regarding the rights of illegitimate children. Children bom out of wedlock and who are never acknowledged by their parents apparently have no right to take property by intestate succession from their father’s estate. In some instances, their father may not even bequeath property to them by will. Illegitimate children acknowledged by their fathers are natural children.’ Natural children can take from their father by intestate succession ‘to the exclusion only of the State.’ They may be bequeathed property by their father only to the extent of either one-third or one-fourth of his estate and then only if their father is not survived by legitimate children or their heirs. Finally, children bom out of wedlock can be legitimated or adopted, in which case they may take by intestate succession or by will as any other child.”

There being no surviving wife or legitimate children, the state trial court held that, under Louisiana’s laws of intestate succession, the father’s collateral relatives took his property to the exclusion of acknowledged, but not legitimized, illegitimate children. The court of appeals affirmed and the Supreme Court of Louisiana denied certiorari. The child’s guardian appealed to the United States Supreme Court, which noted probable jurisdiction.

In affirming the state courts’ action, the Supreme Court (5 — 4), through Mr. Justice Black, at pages 537-540, said:

“These mies for intestate succession may or may not reflect the intent of particular parents. Many will think that it is unfortunate that the mies are so rigid. Others will think differently. But the choices reflected by the intestate succession statute are choices which it is within the power of the State to make. The Federal Constitution does not give this Court the power to overturn the State’s choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better mies. Of course, it may be said that the rules adopted by the Louisiana Legislature ‘discriminate’ against illegitimates. # # # But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select from among possible laws. We cannot say that Louisiana’s policy provides a perfect or even a desirable solution or the one we would have provided for the problem of the property rights of illegitimate children. Neither can we say that Louisiana does not have the power to make laws for distribution of property left within the State.
We emphasize that this is not a case, like Levy, where the State has created an insurmountable barrier to this illegitimate child. There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father. Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child. Finally, he could have awarded his child the benefit of Louisiana’s intestate succession statute on the same terms as legitimate children simply by stating in his acknowledgment of paternity his desire to legitimate the little girl. See Bergeron v. Miller, 230 So.2d 417 (La.App. 1970).
In short, we conclude that in the circumstances presented in this case, there is nothing in the vague generalities of the Equal Protection and Due Process Clauses which empowers this Court to nullify the deliberate choices of the elected representatives of the People of Louisiana.” (Emphasis ours.)

This sufficiently disposes of the petitioner’s second contention.

We therefore conclude that the trial court correctly held that Louis Karas’ widow was his only heir at law.

Judgment affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURKE

license: Public Domain

text:
    Eloise Popeil, Plaintiff and Counterdefendant-Appellee, v. Samuel J. Popeil, Defendant and Counterplaintiff-Appellant.
    (No. 59902;
    First District (1st Division)
    July 15, 1974.

      Rehearing denied August 13, 1974.

      Rinella & Rinella and Winston & Strawn, both of Chicago (Samuel A. Rinella, Stuart N. Litwin, and George B. Christensen, of counsel), for appellant.
    Charles D. Stein, of Chicago (Gottlieb and Schwartz, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This is an appeal from two orders awarding temporary alimony and child support and temporary attorneys’ fees to the plaintiff-counter defendant, Eloise Popeil (hereinafter the plaintiff). The defendant-counter plaintiff, Samuel Popeil (hereinafter the defendant), appeals on the grounds that he was denied both discovery of the plaintiff and a hearing on probable cause ón his countercomplaint and that the evidence does not justify the amounts awarded.

This case arose as an action brought in 1965 for separate maintenance by the plaintiff. The defendant raised affirmative defenses in his answer to the complaint and filed a counter-complaint for divorce on the grounds of adultery. Count II of the countercomplaint alleged grounds for annulment of the parties’ marriage. The plaintiff responded, denying the charges in the countercomplaint. The parties thereafter reconciled and the case was put on the dormant calendar in January, 1966. The cause was ordered restored to the trial calendar in August, 1973. On August 20, 1973, the defendant filed his motion for summary judgment on both counts of his countercomplaint, and the plaintiff moved for dismissal of the defendant’s motion and for temporary alimony, child support and attorneys’ fees. After hearings the court ordered temporary alimony and child support of $2750 for the period October 5 through November 5, 1973, and reserved the question of attorneys’ fees.

Three hearings were held in November, 1973, culminating on November 14 in a temporary support order of $4250 per month for 4 months plus $10,000 temporary attorneys’ fees. On December 3, 1973, the defendant moved to vacate the court’s order of November 14, 1973, on the ground, among others, that the court failed to conduct a requested probable cause hearing on Count I of the countercomplaint and that the court refused to compel plaintiff’s discovery deposition prior to the November hearings. In an order entered January 8, 1974, the court denied the motion for summary judgment and the motion to vacate and struck Count II of the countercomplaint. The defendant appeals from the orders of November 14, 1973, and January 8, 1974, with respect to the provisions regarding temporary alimony and child support and temporary attorneys’ fees.

The sole issue before this court is whether the trial judge abused his discretion in ordering temporary alimony and child support and temporary attorneys’ fees. The defendant argues that the court erred in issuing such orders because he was denied the opportunity of discovery of the plaintiff, because he was denied a hearing on probable cause on his countercomplaint and because there was no evidentiary basis for the amount awarded as alimony, child support or attorneys’ fees.

The defendant’s first argument is without merit. The trial judge issued an order for reciprocal discovery depositions to be taken on October 29, 1973. The defendant appeared for the purpose of being deposed but refused to produce certain documentation of expenses incurred for the support of his family in California. He argues on this appeal that because the depositions were to be reciprocal, the statutory sequence, starting with the first one to seek discovery, is superseded. (Ill. Rev. Stat. 1973, ch. 110A, par. 201(e).) Hence, he continues, the court abused its discretion in refusing to grant a continuance for the purpose of deposing the plaintiff. We do not agree. Assuming, arguendo, the validity of the argument that the plaintiff had no right to complete her deposition of the defendant before herself submitting to discovery, the issue remains whether the court exceeded its discretionary powers. In the area of pretrial discovery, these powers are extremely broad. (Ill. Rev. Stat. 1973, ch. 110A, par. 201; Anastos v. O’Brien, 3 Ill.App.3d 1015, 279 N.E.2d 759.) Moreover, the court is specifically empowered to direct and/or restrict discovery by issuing whatever order justice requires to prevent abuse of the discovery procedures. (Ill. Rev. Stat. 1973, ch. 110A, par. 201(c)(1).) The proceeding here was one for temporary payments to sustain the plaintiff through the litigation. The court made clear his concern that the plaintiff, who testified as to her inability to meet her monthly expenses, needed money. It is obvious from the record that the needs would only become more pressing with each delay in reaching trial on the merits. The court saw the need for resolution of the issue of temporary payments to prevent the defendant from using his superior financial position to penalize the plaintiff. It is clear from the record that the defendant, because of the system he set up to pay his family expenses (many bills were sent directly from the sellers and others were simply forwarded to the defendant by the plaintiff), controlled the records of expenditures for the family’s stay in California. In view of the limited value of the plaintiff’s deposition to the issue at hand, therefore, and the defendant’s refusal to turn over the relevant records, we find that the court did not abuse its discretion in refusing a continuance.

The defendant’s next argument is that he was denied a hearing on probable cause as to his counterclaim, proof of which could result in the denial of any payments to the plaintiff. The applicable statute is section 16 of the Divorce Act, which states in pertinent part:

“16. Temporary alimony — Suit money — Attorney’s fees — Enforcement.] § 15. In all cases of divorce the court at any time after service of summons and proper notice to the husband or wife may require the husband to pay to the wife or pay into the court for her use or may require the wife to pay to the husband or pay into the court for his use during the pendency of the suit such sum or sums of money as may enable her or him to maintain or defend the suit; and in every suit for a divorce the wife or the husband when it is just and equitable, shall be entitled to alimony during the pendency of the suit, provided that no order or decree for alimony shall be entered until the court has determined from evidence the condition in life of the parties and their circumstances. The court may, in its discretion reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case. In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as to such court shall seem reasonable and proper. Provided, that in divorce proceedings in which either spouse petitions for alimony during the pendency of the suit, or for attorneys fees or suit money before the case has been finally adjudicated, and a complaint or counter-claim has been filed in such divorce suit by the party not so petitioning, making charges which, if sustained by proof, would entitle the respondent to such petition for alimony to a decree of divorce, the court shall have discretion to allow such temporary alimony or attorney’s fees or suit money, but upon application of the respondent shall conduct forthwith a preliminary hearing to ascertain whether it is probable that the respondent can sustain such charges; and if the court finds that it is probable that the respondent can sustain such charges, then such temporary alimony or attorney’s fees or suit money may, within the discretion of the court, be granted or denied, or reserved until the final hearing of the case.” Ill. Rev. Stat. 1973, ch. 40, par. 16.

The defendant argues that the court did not comply with this statute in that the requested hearing on probable cause was not held before temporary payments were ordered. The broad discretion granted trial judges in the awarding of temporary payments is evident in the cited statute. Temporary payments may be awarded even if probable cause is shown, depending, of course, on the circumstances of the case.

The defendant’s argument turns on the question of whether he was truly denied a hearing. The record establishes that the trial judge fully intended to effect a speedy determination of the probable cause issue. The judge indicated he was prepared to hold the hearing forthwith, as directed in the statute. There is, however, only the barest hint in this record that the defendant was ever prepared to proceed with such a hearing. This is contained in a statement by the court:

“Insofar as a probable cause hearing is determined, counsel had an opportunity to fly his witnesses in from California; had time, but the court was unable to proceed.”

The defendant’s counsel’s representations that he had the necessary witnesses ready to proceed, combined with this ambiguous statement by the trial court, is not persuasive on the issue of whether the defendant was denied a hearing on probable cause through no fault of his. And this, it seems to us, is the logical standard to use in a case such as this. The. discretion left in the trial judge is broad enough to accommodate temporary payments prior to a hearing on probable cause where it is not clearly established that the one requesting the hearing was prepared to proceed. Any other rule would allow the counterclaiming party to delay any kind of payment simply by requesting a probable cause hearing and then being dilatory about proceeding. For aH of these reasons, we find that the trial judge did not abuse his discretion in refusing to delay the cause further for a hearing.

The defendant’s third argument, that the amounts awarded for temporary alimony and child support are not supported by the evidence, also raises the question of the court’s broad discretion in the allowance of temporary payments. Temporary payments' are to be determined after examining the circumstances of the parties. (Ill. Rev. Stat. 1973, ch. 40, par. 16.) The plaintiff’s testimony as to the financial needs of maintaining her household was based, admittedly, on some guesswork. We will not, however, allow the .defendant to take advantage of a system of support set up by him to abrogate his duty to support his family. The record is clear that the defendant was the party who had records of the cost of supporting his family. He indulged the plaintiff by allowing her whatever she asked; he imposed no limits on her spending and asked for no accounting. She lacks records of her necessary expenses because of the defendant’s practices. We find no abuse of the court’s discretion in á case like this in awarding temporary payments based on her testimony, in light of the defendant’s admission that he was capable of making the payments. A full hearing is still available to him on the issue of permanent alimony.

The defendant’s final argument is that the award of temporary attorneys’ fees was excessive. Here, too, the court’s exercise of discretionary power will not be overturned unless abuse is shown. (Ulm v. Ulm, 132 Ill.App.2d 726, 270 N.E.2d 581.) The plaintiff was obliged to show the defendant’s ability and her own inability to pay the fees. (Jones v. Jones, 48 Ill.App.2d 232, 198 N.E.2d 195.) The record supports a finding that she fulfiUed her obligation of proof. In reaching this decision we reject the defendant’s contention that because the plaintiff owned real estate in joint tenancy with her husband, she was able to support herself. The case cited by the defendant to this effect involved a woman who owned substantial assets other than real estate and is not applicable to the instant case. (See Glassman v. Glassman, 133 Ill.App. 2d 609, 273 N.E.2d 177.) The liquidity of a wife’s assets is certainly a factor with respect to her ability to pay her attorney.

The defendant goes further and challenges the amount of the attorneys’ fees awarded. He failed to seek an evidentiary hearing on this issue at trial, however, and is now precluded from challenging the amount of the award. Jones v. Jones, 48 Ill.App.2d 232, 198 N.E.2d 195. For the reasons stated, the orders are affirmed.

Orders affirmed.

EGAN, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE DEMPSEY.

text:
    Renfield Importers, Ltd., Plaintiff-Appellee, v. Foremost Sales Promotions, Inc., Defendant-Appellant.
    (No. 57238;
    First District (3rd Division)
    July 18, 1974.
   Opinion by

Mr. JUSTICE DEMPSEY.

Allen H. Schultz, of Chicago, for appellant.

Neal D. Rosenfeld, of Biro, Karmel and Rosenfeld, of Chicago, for appellee.


author: Mr. JUSTICE DEMPSEY

text:
    John B. Fahey, Plaintiff-Appellant, v. Cook County Police Department Merit Board et al., Defendants-Appellees.
    (No. 57994;
    First District (3rd Division)
    July 18, 1974.

      Richard F. McPartlin, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Charles A. Powell, and Michael Baccash, Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, John B. Fahey, a sergeant in the classified service of the Cook County Police Department, brought this action for declaratory judgment seeking a finding that a provision of the Rules and Regulations of the Cook County Police Department Merit Board, which established a mandatory retirement age of 60, was illegal, void and unconstitutional. The defendants filed a motion to dismiss, which the court allowed in a written judgment order and memorandum. The plaintiffs petition to vacate and modify the judgment order was denied. He appeals from both orders.

The sole issue presented is whether the Merit Board had authority to enact a rule providing for the compulsory retirement of members of the Cook County PoHce Department when they became 60 years old.

Fahey was appointed a deputy sheriff in September 1956. In 1963, when the statute creating the Police Merit Board went into effect, he achieved merit status as a patrolman. Three years, later, he was promoted to the rank of sergeant. In February 1972 he received a letter from the chief of the Cook County Sheriffs Police Department advising him that he would be retired from the department on his 63rd birthday, April 1, 1972, in accordance with article VIII of the Merit Board’s rules and regulations. That rule, enacted in January 1972, provided:

“Retirement will be mandatory at age 60 except upon application approved by the Sheriff for extension of not more than one year at a time.”

Fahey requested an extension of employment, but it was not granted, and in March 1972 he filed this action, alleging that article VIII was void and illegal and in conflict with the removal provisions of the governing statute (Ill. Rev. Stat. 1971, ch. 125, par. 62); that it infringed on a power reserved to the legislature, in violation of the separation-of-powers provision of the Illinois Constitution; and that because the rule permitted exceptions without stating standards for their determination, it violated the due process clauses of the Federal and State constitutions.

It was further alleged that Fahey was in excellent health; that all but a year of his service had been in the criminal investigative field and that he was presently supervising sergeant in the Office of Investigative Services, and an active member of the faculty of the department’s training academy; that he had an excellent record of service and had never been suspended or disciplined.

The defendants’ motion to dismiss, filed on April 5, 1972, cited sections 6 and 8 of the pertinent statute (Ill. Rev. Stat. 1971, ch. 125, pars. 56, 58) as authority for the Merit Board’s promulgation of article VIII. The motion stated that on April 3rd article VIII had been amended and that it now provided:

“Retirement will be mandatory at age 60 for members of the Cook County Police Department.”

The defendants asserted that Fahey had no right to be retained in his employment because he was over 60 years of age. On April 24th the trial court granted the motion to dismiss. Fahey filed a petition to vacate or modify the judgment, pointing out that the Cook County Board of Commissioners had enacted an ordinance setting a compulsory retirement age of 75 for any employee employed by the county “other than independent contractors, those employees whose retirement is controlled by State statute and elected County officials.” In June 1972 the court denied the petition, but amended its order of April 24th by adding the following:

“The Cook County Police Merit Board has the inherent power to fix a compulsory retirement age for deputy sheriffs and that such a regulation does not unconstitutionally invade the exclusive power of the General Assembly to legislate granted by the Illinois Constitution of 1970, Article II, Section 1.”

The Merit Board has cited no authority to support the court’s reasoning. The court’s memorandum referred to the dissent of two justices in Morrison v. Department of Highways (1955), 229 La. 116, 85 So.2d 51, and to language in Finch v. State Department of Public Welfare (1956), 80 Ariz. 226, 295 P.2d 846. Neither is persuasive. In Morrison the majority held that mere age was not just cause for removal from protected merit employment, absent some statutory authority. The dissent was prompted not by any perception of inherent powers in the department, but rather by the fact that the Louisiana Constitution vests in that State’s civil service commission the broad power to adopt rules “regulating employment, * * * removal, qualifications, and other personnel matters * * (229 La. 116, 126, 85 So. 2d 51, 54.) In Finch the Arizona court asked the rhetorical question whether a statute requiring retirement at age 70 had removed the “inherent” power of the defendant agency to fix a retirement age for its employees, and concluded that it did. But the use of the word “inherent” was unsupported by authority, contrary to Arizona case law and unnecessary to the outcome of the decision. The controversy arose over a conflict between a statute which set compulsory retirement for affected employees at age 70 and an agency rule which required retirement at 65. The statute prevailed.

In Arizona, as in Illinois and elsewhere, administrative agencies possess no inherent or common law powers. (Kendall v. Malcolm (1965), 98 Ariz. 329, 404 P.2d 414; Oliver v. Civil Service Commission of the City of Chicago (1967), 80 Ill.App.2d 329, 224 N.E.2d 671. See also 1 Am. Jur. 2d Administrative Law § 73 (1962).) The theory of inherent power was rebuffed in People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 346, 90 N.E.2d 763:

“The assertion that the power of the [city civil service] commission over employees of the city of Chicago is complete except to the extent the City Civil Service Act serves as a restraint upon their pervasive power is not a correct statement of the law. The commission’s powers are delegated and its authority must find its source in the City Civil Service Act.”

In this appeal the Merit Board has chosen not to rely on the theory of inherent power. Instead, it maintains that the statute by implication grants it the authority to fix an age for the compulsory retirement of deputy sheriffs, a contention based on inferences drawn from sections 6 and 8 of the County Police Department Act (Ill. Rev. Stat. 1971, ch. 125, pars. 56, 58):

“§ 6. Pursuant to recognized merit principles of public employment, the Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business. * * #
§ 8. The appointment of deputy sheriffs in the Police Department and of employees in the Department of Corrections shall be made from those applicants who have been certified by the Board as being qualified for appointment. * * * All persons so appointed shall, at the time of their appointment, be not less than 21 years of age, or 20 years of age and have successfully completed 2 years of law enforcement studies at an accredited college or university. * * * In addition, all persons so appointed shall be not more than the maximum age limit fixed by the Board from time to time, be of sound mind and body, be of good moral character, be citizens of the United States, have no criminal record, possess such prerequisites of training, education and experience as the Board may from time to time prescribe, and shall be required to pass successfully mental, physical, psychiatric and other tests and examinations as may be prescribed by the Board. * *

In Illinois, the boards and commissions regulating merit employment systems exercise purely statutory powers and must find within the governing statutes warrant for the exercise of any claimed authority. (People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 90 N.E.2d 729 (State Civil Service Commission); People ex rel. Hurley v. Graber (1950) 405 Ill. 331, 90 N.E.2d 763 (Chicago Civil Service Commission); People ex rel. Gilbert v. Hurley (1948), 336 Ill.App. 205, 83 N.E.2d 512 (State Civil Service Commission); see also 15 Am. Jur. 2d Civil Service §8 (1964).) Administrative agencies possess only such authority as is legally conferred by express provision of law or such as, by fair implication and intendment, is incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which those agencies were created. (1 Am. Jur. 2d Administrative Law §§ 70, 72 (1962); 81 C.J.S. States § 66d (1953); Essling v. St. Louis County Civil Service Comm. (1969), 283 Minn. 425, 168 N.W.2d 663.) Thus, it has been said that such bodies cannot extend the substantive provisions of a legislative enactment nor create substantive rights through exercise of their rulemaking powers. (People v. Kueper (1969), 111 Ill. App.2d 42, 249 N.E.2d 335; Madsen v. Industrial Com. (1943), 383 Ill. 590, 50 N.E.2d 707; 1 Ill. L. & Pr. Ad. L. & Proc. § 24 (1953).) The restraint should apply with special force to rules enacted by civil service boards and commissions, since civil service statutes are deemed a necessary part of the contract of employment of each employee covered by them. People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599, 119 N.E. 54; People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 90 N.E.2d 729.

In view of these principles, we find no impfied power in the Merit Board to determine a compulsory retirement age. for the members of the Cook County PoHce Department. The authority claimed by the board is not evident on the face of the statute. To the contrary, it appears inconsistent with the express provisions of the statute and inharmonious with general principles meant to govern the board’s exercise of its rule-making power. Moreover, the suggested interpretation departs completely from customary approaches taken by Illinois civil service, legislation to the question of compulsory retirement.

A primary rule of statutory construction is that the court must look to the very words of the statute to ascertain the legislative intent. (Illinois Bell Telephone Co. v. Powell (1971), 48 Ill.2d 375, 270 N.E.2d 25.) The County Police Department Act nowhere touches upon matters of retirement. (Ill. Rev. Stat. 1971, ch. 125, par. 51 et seq.) Section 6 of the Act, quoted above, vests a general rulemaking power in the Merit Board and provides that it shall establish a classification of ranks. But the section is silent as to questions of removal or retirement. The only express provision in the Act which relates to removals is found in section 12, which states:

“§ 12. Except as is otherwise provided in this Act, no deputy sheriff in the County Police Department 8 0 0 shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board thereon upon not less than 10 days’ notice at a place to be designated by the chairman thereof. At such hearing, the accused deputy sheriff shall be afforded full opportunity to be heard in his own defense and to produce proof in his own defense. 888 If the charges against an accused deputy sheriff are established by a preponderance of evidence, the Board shall make a finding of guilty and order either removal, demotion, suspension 8 8 8, or such other disciplinary punishment as may be prescribed by the rules and regulations of the Board which, in the opinion of the members thereof, the offense merits. 8 8 8” Ill. Rev. Stat. 1971, ch. 125, par. 62.

This passage makes clear that, absent some exception in the Act itself, the Merit Board may remove officers from service only for cause, and after observing proper procedural protections, such as written notice of charges, an evidentiary hearing before the board, and judicial review under the Administrative Review Act. Section 8, cited by the board, expresses no relevant exception to section 12. The authority it grants the board to set a “maximum age limit” for “all persons so appointed” refers to an upper limit in the range of acceptable ages for prospective appointees. The title (“Appointment — Qualifications of Applications — Preference — Bond — Probationary Period”) and language of the section make manifest its limitation to the qualifications of applicants at the time they seek an appointment and during the ensuing probationary period.

The board contends that section 12 could not have been intended to extend to persons in the position of Fahey. It theorizes that the legislature would not intend to embarrass policemen with many years of service by requiring them to defend themselves, possibly more than once, at a removal hearing; that it could not intend that a policeman be retired with the stigma which attends a finding of guilt under section 12, nor with the ill will which would result if fellow officers testified against him. But this litigation demonstrates that, for persons placed in the position of Fahey, some means of contesting an ultra vires rule is to be preferred to none at all.

Notwithstanding its denials of the applicability of section 12, the board couches parts of its argument in terms which seem by indirection to case the issue of age in the framework of that provision. Our attention is called to the special nature of police work and to the department’s perceived need to maintain an image of youth and vigor before the public. The suggested inference is that attainment of some certain age is such a guarantee of incompetence that it serves as a reasonable basis for separation from service. It might be sufficient for the purposes of this case to respond that none of the procedural safeguards provided by section 12 have been observed. But that would avoid the more important consideration, since the protections of notice and a factfinding process avail little when a substantive disposition turns on an easily determined fact such as age.

Where the question has arisen, courts have uniformly concluded that age alone is not just cause for removal from protected merit employment. (Essling v. St. Louis County Civil Service Comm. (1969), 283 Minn. 425, 168 N.W.2d 663; Reed v. City of Youngstown (1962), 173 Ohio St. 265, 181 N.E.2d 700; Morrison v. Department of Highways (1955), 229 La. 116, 85 So. 2d 51.) Such a rule is consistent with Illinois authority on the subject of involuntary removal from merit employment. While there is no legislative definition of the term, courts have defined “cause” “to mean some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” (Cutright v. Civil Service Comm. (1967), 90 Ill.App.2d 289, 294, 232 N.E.2d 312.) (See also Fantozzi v. Board of Fire and Police Comrs (1963), 27 Ill.2d 357, 189 N.E.2d 275.) Age by itself tells nothing about these relevant matters. Its effects vary with the individual, and the importance of those effects varies with the nature of the individual’s employment. Fahey himself was a supervisory investigative officer and an instructor in the department’s academy. One would expect that age and experience enhanced rather than detracted from the competent performance of his duties. Nothing appears in the pleadings which contradicts that expectation.

Sections 6, 8 and 12 do not provide either direct authority or indirect justification for the Merit Board’s asserted power. Not only is there neither visible warrant nor veiled intendment that the board control compulsory retirement of department employees, but also, to infer such an authority would be inconsistent with the general limiting principles of the Act. Section 6 makes plain that rules promulgated by the board must be formulated “pursuant to recognized merit principles of public employment.” Such principles are few and relatively well known. Cardinal among them is that the purposes of civil service laws is to provide a method which ensures competent service for governmental bodies, free of the spoils system. To encourage their application and retention, qualified personnel are assured of tenure in their positions. (People ex rel. Akin v. Kipley (1897), 171 Ill. 44, 49 N.E. 229; People ex rel. Cadell v. Board of Fire and Police Com’rs (1952), 345 Ill.App. 415, 103 N.E.2d 666; Hacker v. Myers (1961), 33 Ill.App.2d 322, 179 N.E.2d 404.) Once he has qualified for a merit appointment and passed through a probationary period a civil servant’s tenure lasts during good behavior and efficient service. Compulsory retirement at a fixed age runs directly counter to these principles.

That retirement policies are governed by considerations different from merit principles is ascertainable by reference to their treatment under other civil service legislation. It has been the legislature’s custom to employ one of two approaches. Under the first, the relevant statute itself specifies the age for compulsory retirement of affected employees. (See Ill. Rev. Stat. 1971, ch. 24%, par. 9.1 (civil service in parks); Ill. Rev. Stat. 1971, ch. 108%, par. 13 — 132 (sanitary district employees); Ill. Rev. Stat. 1971, ch. 108%, par. 15 — 135 (State universities retirement system); Ill. Rev. Stat. 1971, ch. 121, par. 307.12 — 1 (State police).) The role of the respective merit boards or commissions is restricted under these laws to administration and in some instances to judgment on individual appeals for deferral of retirement beyond the age fixed by statute.

Under the second approach, the legislature has delegated to local corporate authorities a limited power to provide for compulsory retirement. Section 10 — 1 — 18 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1 — 18), for example, authorizes the corporate authorities of municipalities, by ordinance, to provide an age of not less than 63 as the maximum age for legal employment of policemen. Section 10— 2.1 — 17 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10 — 2.1 — 17) fixes a retirement age of 65 years for policemen and firemen in municipalities where division 2.1 applies, unless the corporate authorities provided by ordinance for an earlier retirement age of not less than 60 years. In each of these statutes, the section delegating the power to fix retirement age is separate from and supplemental to a provision granting general rulemaking powers to the appointed board or commission which administers the Act. (See Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1 — 5; Ill. Rev. Stat. 1971, ch. 24, par. 10 — 2.1 — 5.) It also bears noting that, whatever the approach taken, where provision has been made for compulsory retirement, the word “retirement” inevitably appears in the appropriate sections title. None of the provisions of the County Police Department Act bears such a caption.

Traditional legislative policy, then, has been to specifically approach the question of compulsory retirement, and, where the decision is delegated, to pass it solely to the elected authorities of the appropriate political subdivision of the State. No instance is cited by the Merit Board, nor do we find one, where the power to fix retirement has been expressly, much less impliedly, delegated to an appointed body.

The promulgation of Rule VIII of the Cook County Police Department Merit Board was beyond its power and authority and the plaintiff s cause of action should not have been dismissed. The judgment will be reversed and the cause remanded.

Reversed and remanded.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE BURMAN

text:
    Frank White et al., Plaintiffs-Appellants, v. United States Fidelity and Guaranty Co. et al., Defendants-Appellees.
    (No. 58725;
    First District (4th Division)
    July 24, 1974.
    Jeffrey Lawrence, of Chicago, for appellants.

      Jay Goran, pro se, and McCarthy and Levin, both of Chicago (John F. McCarthy, of counsel), for appellee Jay Goran.
    Goldenson, Kiesler, Berman & Brenner, of Chicago (Eugene S. Goldenson, of counsel), for appellee United State’s Fidelity and Guaranty Co.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The plaintiffs, Frank and Doris White, bring this appeal from an order of the circuit court of Cook County granting summary judgment in favor of the defendants, United States Fidelity and Guaranty Company (USF&G) and Jay Goran, on the plaintiffs’ second amended complaint for general and punitive damages based upon allegations of breach of contract, breach of trust, fraud, and gross negligence in handling the proceeds of a fire insurance policy on the plaintiffs’ residence.

The record establishes that on October 23, 1957, the plaintiffs entered into an installment contract to purchase a two-story residence located at 2947 West Jackson Boulevard in Chicago. The seller was Jay Goran, as trustee of a land trust. The purchase price of the building was stated as $17,900. The plaintiffs made down payments totaling $1200, and monthly payments of approximately $140 thereafter. The contract provided that: “Purchaser shall keep the premises herein insured against loss by fire * * * and shall deliver to Seller such policies of insurance as Seller shall approve as adequate protection therefor.” By mutual assent, however, the parties established a practice under which Goran procured the required insurance and the plaintiffs paid the premiums as part of their monthly payments.

On September 11, 1965, USF&G issued a policy of fire insurance on the building in the amount of $13,000. The policy listed Jay Goran as the insured. It also contained a mortgage clause insuring the interest of Emil A. Wagner, trustee, and a contract-of-sale clause insuring the interests of the plaintiffs.

On April 26, 1967, while the policy was in effect, a fire of undetermined origin damaged the building. A public adjuster determined that the premises could be repaired for approximately $7000, and USF&G offered $7036.40 in settlement of the loss in June of 1967. The plaintiffs initially refused this offer, apparently upon the belief that more would be required to restore the building to its original condition, but after obtaining counsel and negotiating with USF&G, they decided to accept it. They signed the proofs of loss on September 21, 1967, and sent them to Goran, who sent them to USF&G. In late October, USF&G sent Goran a check for $7036.40 payable to Goran as trustee, Emil A. Wagner, trustee, the Fire Loss Appraisal Company, and the plaintiffs. Sometime In December, Goran represented to USF&G that the plaintiffs had defaulted on their payments under the sales contract and could not be located. USF&G sent a second check, deleting the plaintiffs as payees, and Goran distributed the proceeds by paying $3,546.61 to the mortgagee and applying $3489.79 to the balance of $12,322.54 due him under the contract of sale at the time of the fire.

Following the date of the fire, the building was unoccupied. It appears that it was boarded up by a representative of either USF&G or the appraisal company, but the boards were removed by vandals who did considerable damage to the property. In his deposition, Frank White stated that he was aware that tire boards had been removed and that the building was being vandalized, but he did nothing to prevent it. As a result of the vandalism the city of Chicago instituted an action for demolition. The plaintiffs were made parties and appeared in court on one occasion through their attorney, Herbert Wisch. This was in October, 1967. Neither the plaintiffs nor their attorney appeared thereafter, and on October 27, 1967, the court entered an order of demolition. The building was demolished on November 29, 1967. The city also brought an action against Goran for foreclosure of a demolition hen in the amount of $1185, and Goran paid this sum in order to have the hen released.

On April 9, 1968, the plaintiffs filed a complaint against USF&G in which they alleged in essence that USF&G had breached the insurance contract by faffing to pay them the $7036.40 claimed in the proofs of loss and that as a result of the breach they had been unable to repair their building, causing it to be demolished by the city. They claimed $13,000 as damages, the amount of the policy. USF&G answered that it had discharged its obligations under the policy by paying $7036.40 to Goran, the named insured, and Emil A. Wagner, the mortgagee. It also filed a counterclaim in the nature of a third-party action against Goran on the theory that Goran had agreed to hold it harmless against any claim by the plaintiffs. Goran filed an answer to the counterclaim in which he stated that he had employed a public adjuster who had informed him that he would repair the building for $7036.40, but that the plaintiffs had refused to accept this sum until September, 1967; that the plaintiffs had left the building vacant and abandoned, causing it to become vandalized beyond repair and ultimately to be demolished; that he had paid the cost of demolition; that the balance owed him on the contract of sale at the time of the fire was $13,027.05; that the plaintiffs’ attorney had demanded the insurance proceeds without expressing any willingness to repair the building; and that thereafter the plaintiffs’ attorney did not answer any telephone calls, and the plaintiffs could not be located. In addition to the answer, he filed a motion for summary judgment containing similar allegations and asserting that he was entitled to the insurance proceeds as a matter of law. USF&G also moved for summary judgment, adopting in substance the motion of Goran.

The plaintiffs filed an amended complaint on April 25, 1972. They alleged that USF&G breached the duty created by the contract-of-sale clause by failing to conduct an independent investigation to determine whether they could be located before issuing the second check deleting them as payees; that Goran falsely represented to USF&G that he could not locate them; that Goran had a duty to hold the proceeds of the policy as a constructive trustee for the purpose of repairing the building; and that by applying the proceeds to the balance due under the contract when they were not in default, Goran unlawfully accelerated the contract. They claimed that as a result of these actions they were unable to repair their building and lost its entire value, $17,900. Goran moved to strike and dismiss the amended complaint on the ground that it alleged only conclusions. USF&G filed an answer in which it stated on information and belief that at the time of the fire there was due on the mortgage $3,546.61 and on the contract $13,088.66 and that it paid the proceeds to Goran and the motgagee in accordance with the terms of the policy.

On June 8, 1972, Gorans motion to dismiss the amended complaint was denied. The plaintiffs filed answers to the motions of Goran and USF&G for summary judgment, and Goran filed an answer to the amended complaint and a counterclaim for the balance due under the contract. None of these alleged any new facts or substantially altered the positions of the parties. On July 20, 1972, the affidavit of Herbert Wisch was filed. Wisch stated that he had represented the plaintiffs in their negotiations with USF&G and had settled their claim, for $7036.40. He stated further that he had never received a draft for the settlement and after repeated calls to USF&G had learned that it had been sent to Jay Goran. He left numerous messages for Goran, but Goran never returned his calls. Neither USF&G nor Goran ever requested that he have the plaintiffs endorse the draft, and he was never informed that a second draft had been issued.

On September 8,1972, the plaintiffs filed a second amended complaint. This was identical to the first one, except that it sought punitive, as well as general damages. Both Goran and USF&G filed answers. On November 2, 1972, the affidavit of Esther Rothstein was filed, attached to which were copies of the proof of loss executed by the plaintiffs, the policy of insurance issued by USF&G and the ledger sheets reflecting the payments made by the plaintiffs on the contract. On December 4, 1972, the motions of Goran and USF&G for summary judgment were granted, and it was ordered that the plaintiffs take nothing by their suit. The present appeal followed.

Summary judgment is an appropriate remedy if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1973, ch. 110, par. 57(3).) Summary judgment is an important tool in the administration of justice, and its use in a proper case is to be encouraged. (Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576.) The question presented to this court, then, is whether this is a proper case. As stated in Fooden v. Board of Governors (1971), 48 Ill.2d 580, 272 N.E.2d 497, “if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.” (48 Ill.2d at 587, 272 N.E.2d at 500.) As the plaintiffs correctly argue, all inferences are to be resolved in favor of the respondent, and all evidence is to be viewed in the light most favorable to him. (Patterson v. Stern (1967), 88 Ill.App.2d 399, 232 N.E.2d 7.)

In the present case, the following facts are uncontroverted: The plain--tiffs entered into an installment contract to purchase a building from Jay Goran. The agreement required that the plaintiffs carry fire insurance to insure the interest of the seller in the unpaid balance. By mutual agreement, Goran obtained the insurance and deducted the cost from the plaintiffs’ monthly payments. In 1965 Goran obtained a fire insurance policy on the premises in the amount of $13,000 from USF&G in which he was the named insured and in which the interests of the plaintiffs and the mortgagee were insured to the extent that they should appear, the interest of the plaintiffs being subordinate to that of the mortgagee.

On April 26, 1967, the building was damaged by a fire of undetermined origin. Immediately after the fire, the Fire Loss Appraisal Company would have repaired the damage for $7036.40, the settlement offered by USF&G, in June of 1967, but the plaintiffs refused this amount and delayed signing the proofs of loss until September, 1967. By this time the building had become extensively vandalized. The plaintiffs made no payments on the contract after April 6, 1967. In October, 1967, the city of Chicago instituted a proceeding for demolition. The plaintiffs appeared in this proceeding sometime in October, but took no part in it thereafter. The building was demolished in November, 1967, and Goran paid the cost of demolition.

In October, 1967, USF&G issued a draft for $7036.40 payable to Goran as trustee, the mortgagee, the Fire Loss Appraisal Company, and the plaintiffs and sent it to Goran. The plaintiffs never endorsed this draft. In December, 1967, USF&G issued a second draft deleting the plaintiffs as payees, and Goran distributed the proceeds by paying $3546.61 to the mortgagee and $3489.79 to himself, to be applied to the unpaid balance due on the contract.

The plaintiffs contend that the pleadings establish issues of fact in two areas: whether the building was repairable at the time that the plaintiffs agreed to the settlement offered by USF&G and whether Goran made a bona fide attempt to locate the plaintiffs after receiving the first settlement draft. Concerning the first issue, the plaintiffs argue that Gorans own pleadings are contradictory because he states in his motion for summary judgment that the premises were vandalized beyond repair, while in his deposition he states that the premises were in poor condition, but repairable. This argument misrepresents the record. It was Goran’s position throughout the proceeding that once the building had been vandalized it could not be repaired for the sum offered by USF&G in settlement of the fire loss. As he stated in his deposition, an additional three to four thousand doUars would have been required. The plaintiffs did not at any time contend that the premises could have been repaired for the amount of the settlement after they were vandalized (indeed, it was their position that this sum was insufficient even before the vandalism), and they never demonstrated a willingness or an ability to furnish the additional sum'that would have been required to complete the repairs. In view of this, we find no issue as to whether the premises could have been repaired following the vandalism.

Concerning whether Goran made a bona fide attempt to locate the plaintiffs in order to have them endorse the first settlement draft, the plaintiffs contend that their attorney, Herbert Wisch, attempted to telephone Goran on numerous occasions, but that Goran was never in his office and did not return Wisch’s calls. Goran contends that he made several unsuccessful attempts to contact Wisch and that he was unable to locate the plaintiffs. The depositions of both Frank White and Herbert Wisch indicate that White became dissatisfied with Wisch sometime in late October, 1967, and White either discharged Wisch or Wisch withdrew from the case. According to the chronology generally agreed upon by the parties, this would have occurred at about the time that USF&G issued the first draft. Thus it appears that Wisch no longer represented the plaintiffs during the time that he allegedly was available to be contacted by Goran.

Based upon the foregoing, we believe that there is no genuine issue as to any material fact and that the case is an appropriate one for the entry of summary judgment. The question that remains is whether Goran was entitled to the proceeds of the policy as a matter of law. As a general proposition it seems well established that where the purchaser under an installment contract for the sale of realty agrees to insure the property against loss for the benefit of the seller, the seller is entitled to the proceeds of the insurance at least to the extent of his interest in the property. In Mitchell v. McDougall (1872), 62 Ill. 498, the defendant induced the plaintiff to convey certain real property to him by fraudulent representations. Thereafter the defendant obtained a policy of fire insurance on the property. The plaintiff instituted an action for recission, and while this action was pending, the property was totally destroyed by fire. The court stated that the right of the plaintiff to the insurance money would hardly be questioned, inasmuch “as the building upon the lot when sold, is now represented by that money * * tf.” (62 Ill. at 506.) The court went on to say that after deducting the cost of the premium paid by the vendee and the cost of an addition to the building which he erected, which addition was covered by the insurance, the insurance company should pay the balance to the plaintiff. This view was reaffirmed in Phoenix Insurance Co. v. Mitchell (1873), 67 Ill. 43, in which the court held that although McDougall was the proper person to bring an action at law on the insurance policy, as between himself and Mitchell, the insurance money represented the building that had stood on the property.

In Grange Mill Co. v. Western Assurance Co. (1886), 118 Ill. 396, 9 N.E. 274, the plaintiff sold a mill to John T. Emison. The terms of the sale were that Emison was to pay a portion of the purchase price in cash and execute a note as security for the remainder. It was also agreed that he should insure the property for the benefit of the plaintiff. Emison made the cash payment, but refused to execute his note for the remainder. He took possession of the mill and obtained insurance for his own benefit. Subsequently, the property was totally destroyed by fire, and the vendor brought an action in equity against the vendee and the insurance company to recover the proceeds of the policy. In recognizing the interest of the vendor in the proceeds the court stated: “Undoubtedly, the law is, that, as between the vendee and the vendor, the insurance money, in case of the destruction of the property, represents the property itself, and in equity the insurance money should be appropriated to the vendor in case of tihe insolvency of the vendee. The principle is of frequent application, where a mortgagor or vendee agrees to insure for the benefit of the mortgagee or vendor, in case of loss, in equity, such party is entitled to the insurance money, to the extent, at least, of his interest in the, property which was the subject of insurance.” 118 Ill. at 399-400, 9 N.E. at 275.

In Marbach v. Gnadl (1966), 73 Ill.App.2d 303, 219 N.E.2d 572, a case which is indistinguishable from the one before us, the plaintiffs sold a building and the land under it to the defendants pursuant to an installment contract. The contract provided that the purchasers should take out insurance as additional security for “at least the sum of [the] unpaid balance of [the] purchase price.” (73 Ill.App.2d at 304, 219 N.E.2d at 574.) The purchasers obtained a policy in which they alone were named as insureds. The property was destroyed by fire, and the purchasers defaulted on their payments under the contract. The court held that the proceeds of the policy, which had been paid to the purchasers, were impressed with a trust in favor of the sellers to the extent of the balance due under the contract. It reasoned that the theory of requiring the purchasers to carry insurance was that if fire damaged or destroyed the building there would be enough insurance to cover the purchase price. The court went on to state that the purchasers had an election; they could either continue their payments, collect the insurance proceeds in lieu of the building, and, at the time specified in the contract, receive a warranty deed, or they could default, in which event the seller would be entitled to declare a forfeiture, retain the previous payments as liquidated damages, recover the land and building and, since the building had been damaged, the insurance proceeds to the extent of the unpaid balance on the contract.

In the present case the contract of sale required the plaintiffs, as: purchasers, to maintain insurance on the premises. They accomplished this by arranging for Goran to obtain a policy and deduct the premiums from their monthly payments. Goran obtained a policy from USF&G in which he was named as the insured. Although not specified in the contract, there can be little doubt that the purpose of this insurance was, as in Marbach, to secure payment of the balance due under the contract in the event that the building should be damaged or destroyed.

There is no question the fire was of undetermined origin and the fault of neither party. If the evidence is viewed in the light most favorable to the plaintiffs, it may be inferred that the subsequent vandalism, which resulted in the building’s total loss, was likewise the fault of neither party, although, arguably, it could have resulted at least in part from the plaintiffs’ neglect. Following the fire the plaintiffs made no further payments on the contract. The parties differ concerning the exact balance due at the time of the fire, but even Frank White estimated it to be around $8000, or significantly more than the sum received by Goran as the proceeds of the policy.

In summary, then, the insurance was maintained for the purpose of securing Gorans interest in the unpaid balance due under the contract. The building was totally destroyed through no fault of Gorans. The plaintiffs defaulted on their payments, leaving a balance due in excess of the anticipated proceeds of the policy. Under these circumstances we are of the opinion that Goran was entitled to the proceeds as a matter of law, and we so hold. We also hold that USF&G discharged its obligations under the policy when it paid the proceeds to Goran, Emil A. Wagner, the mortgagee, and the Fire Loss Appraisal Company. In fact, under the holding of Grange Mill we believe that it was required to distribute the proceeds in this manner once it had been informed of the balance due on the contract.

We do not mean to imply that there could never be a case in which equity would require a contract seller to apply insurance proceeds to the repair of the subject property. However, we do not believe that the facts of the present case warrant the application of such a rule. As we view the record, all parties concerned desired to have the building repaired immediately after the fire. Goran hired the Fire Loss Appraisal Company at his own expense to adjust the loss and reach a settlement with USF&G. A settlement was offered by USF&G which was sufficient to restore the property to its original condition; and either Fire Loss Appraisal or USF&G boarded up the building to prevent further damage.

However the plaintiffs were not satisfied with the settlement offer and delayed signing the proofs of loss. They stated no reason for their dissatisfaction, except that they felt entitled to the full amount of the policy. Nor did they ever maintain that the building could not have been repaired for the amount of the settlement. As a result of the delay, the building was vandalized to such an extent that it was not repairable for the amount of the settlement.

When the city commenced its action for demolition, Goran retained an attorney and opposed the action. It was through his efforts that the plaintiffs were informed of the action. It was also through his efforts that the date of demolition was postponed, giving the plaintiffs a final opportunity to arrange for repairs. However neither the plaintiffs nor their attorney appeared in court, and, after several continuances, the building was ordered demolished. The plaintiffs offered no evidence to support their position that they could have repaired the building with the funds from USF&G after it had been vandalized and before the city demolished it because of its dangerous condition. It was the unfortunate circumstance of the vandalism and subsequent demolition that prevented the plaintiffs from repairing the building, and not the acts of Goran or USF&G.

The order of the circuit court entering summary judgments in favor of Goran and USF&G was proper, and it will be affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The Village of Elmwood Park, Plaintiff-Appellant, v. The Forest Preserve of Cook County, Defendant-Appellee.
    (No. 59560;
    First District (4th Division)
    July 24, 1974.

      James E. Brown, of Chicago (Benjamin B. Crane and Robert E. Adam-owski, of counsel), for appellant.
    Roger J. Kiley, Jr., Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The Village of Elmwood Park brought an action for declaratory judgment in the Circuit Court of Cook County seeking an order directed to the Forest Preserve District of Cook County that would permit plaintiff to develop at plaintiffs expense certain land owned by defendant, but within the municipal boundaries, as a baseball field. The complaint, later amended, was dismissed by the trial court on defendants motion. Plaintiff appeals this order of dismissal, contending that the trial court erred in dismissing the amended complaint. Plaintiff claims that a “meritorious cause of action” had been established.

The factual background and basis for the original action and this appeal can best be understood by a reading of the following relevant portions of the amended complaint:

“The defendant district has incorporated into its geographic boundaries that portion of the plaintiff village located west and south of the Des Plaines River and north of North Avenue. * # *
The area in question is open prairie of no historical, botanical or natural significance. It is essentially susceptible for recreational purposes. * * *
The village, as part of its municipal responsibility, furnishes open areas in the village for recreational purposes and encourages organized groups of its residents to participate in athletic programs in the village.
In accordance with that program, the plaintiff village filed for a formal request with the defendant district for permission to develop that portion of the district whose land is common to both the village and the district for use as a ballfield under village auspices.
Notwithstanding the offer of the village to undertake to pay for the improvement of the land for those purposes and notwithstanding the fact that the district holds the land ‘for the purpose of the education, pleasure and recreation of the public.’ (Ill. Rev. Stat. 1973, Ch. 57%, Par. 5). The corporate authority of the district has refused to recognize the legitimate desires of the inhabitants of Cook County in the land in question and has refused the offer of the plaintiff village to use its resources, legal, physical and financial, to develop this land for recreational purposes.
That the refusal of the district is arbitrary and capricious. It is a refusal to carry out its public responsibilities for the purposes for which this land was acquired. It is violative of the constitutional intent of maximum cooperation between municipalities and units of local government for the maximum use of public assets. (Const., 1970, Article 7, Pars. 6 and 10) The refusal of the district is both negative in leaving the land lie unused for the purposes for which it was taken and is a refusal to cooperate in the use of the resources of the plaintiff village to develop the land for its maximum use for public purposes.
WHEREFORE, plaintiff prays that this court enter an order declaring the application of the constitutional cooperation to be applicable to these circumstances and to order the parties plaintiff and defendant together with any other public bodies to cooperate for the development of this land for recreational purposes for the benefits of all the inhabitants of Cook County and for this court to retain jurisdiction of this matter in order to resolve any dispute which arises based upon the recalcitrance of any party to refuse to cooperate within the constitutional mandate.”

Plaintiff seeks to gain what amounts to effective control over the property held by defendant. If the land was in private hands plaintiff could acquire the land through condemnation. However, where the land is already held by another public body the power of eminent domain may not be exercised unless the legislature has explicitly provided for such procedure. (Medical Center Commission v. Powell, 124 Ill.App.2d 123, 130-1, 260 N.E.2d 261, citing Department of Public Works and Buildings v. Ells, 23 Ill.2d 619,179 N.E.2d 679, and City of Edwardsville v. County of Madison, 251 Ill. 265, 96 N.E. 238.) This bar is not disputed by plaintiff, but the same end is sought through plaintiff’s interpretation of the “Intergovernmental Cooperation” provision of the Illinois Constitution of 1970 when it is said that defendant is “required” to allow the construction of a baseball field on the property.

Section 10(a) of article VII, the specific section relied upon by plaintiff, provides that:

“Units of local government and school districts, may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts, and with the United States to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance. Units of local government and school districts may contract and otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or by ordinance. Participating units of government may use their credit, revenues, and other resources to pay costs and to service debt related to intergovernmental activities.” (Ill. Const., art. VII, sec. 10(a).) (Emphasis added.)

Plaintiff submits that since defendant holds the land for the purpose of the education, pleasure and recreation of the public, that the above provision does not vest defendant with absolute discretion whether or not to cooperate with other governmental bodies but that the courts may order such cooperation under this factual situation. We find this argument to be without merit

Plaintiff asks that the word “may” in section 10(a) “* * * be construed as equivalent to shall or must in cases where the sense of the entire enactment requires it; * * * or where it is necessary in order to carry out the intention of the legislature; * * * or where it is necessary for the preservation or enforcement of the rights and interests of the public or third persons.” (2 Bouvier’s Law Dictionary 2168 (8th ed. 1914).) On the basis of this construction, the meaning of this provision is characterized as “doubtful” and plaintiff states that it is a well-established rule of law that to give the intended effect to such a provision we should consult the debates of the constitutional convention at which the provision was drawn. People ex rel. Keenan v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168.

It is also a well-established principle of law that “[w]ords used in the constitution are to be taken in their ordinary acceptance.” (Locust Grove Cemetery Ass’n v. Rose, 16 Ill.2d 132, 139, 156 N.E.2d 577, citing International College of Surgeons v. Brenza, 8 Ill.2d 141, 133 N.E.2d 269, and People ex rel. McCullough v. Deutsche Evangelisch Lutherische Jehovah Gemeinde Ungeaenderter Augsburgischer Confession, 249 Ill. 132, 94 N.E. 162.) We see no need to indulge in such a strained construction as plaintiff urges upon this court and therefore read "may,” as used in section 10(a), in its accepted sense as allowing intergovernmental cooperation in certain circumstances rather than compelling it. Notwithstanding this construction, we have examined the background of this provision and find that it was the clear intent of the drafters that such cooperation not be made obligatory. “Intergovernmental cooperation is the voluntary participation of units of local government in joint undertakings.” (7 Report of Proceedings, Sixth Illinois Constitutional Convention 1749-52.) The explanation of the background and purpose of what was later to become section 10(a) uses phrases such as “will permit” (p. 1747) or “will allow” (p. 1748-9) when referring to these “multi-unit endeavors." There is no support for plaintiff’s construction of the provision. This section was intended to encourage rather than enforce cooperation and further to remove “* * * the necessity under Dillon’s Rule of obtaining statutory authorization for each cooperative venture by a unit of local government or a school district.” Constitutional Commentary, S.H.A., Const, art. VII, sec. 10. See also commentary to subsection 6(a) of article VII.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    Donna Kathleen Kelleher, Plaintiff, v. Patrick Kelleher, Defendant-Appellee—(Patrick Joseph Kelleher, by his grandmother as his next friend, Appellant.)
    (No. 59672;
    First District (4th Division)
    July 24, 1974.

      Klein, Thorpe, Kasson and Jenkins, of Chicago, for appellant.
    No appearance for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was brought on behalf of Patrick Joseph Kelleher, a minor child, by his grandmother as next friend, to compel the father, Patrick Kelleher, to pay past-due installments of child support. A petition for rule to show cause was filed on February 6, 1973, and the father filed a written objection to the petition. After a hearing before the Honorable Robert C. Buckley, the petition was dismissed.

The issues presented for review in this appeal are:

1) Whether the court granting the divorce has jurisdiction, upon presentation of a petition by the minor child, to enforce the child-support provision of the divorce decree.
2) Whether the trial court fulfilled its obligation in refusing to transfer the cause.
3) Whether past-due installments of child support are a vested obligation, and whether such obligation of the father to support his minor child is terminated by reason of the death of the person to whom custody of the minor child had been granted by the divorce decree.

The petitioner, Patrick Joseph Kelleher, is the minor child of the defendant and Donna Kathleen Kelleher. On October 5, 1956, the petitioner’s parents were divorced. The divorce decree placed the petitioner, then age 6 months, in the custody of his mother and ordered the father to pay $20 each week for support of the child. Donna Kathleen Kelleher died in 1959. Since that time, the child has been residing with his maternal grandmother.

On August 28, 1972, the grandmother filed a petition for money judgment, seeking reimbursement of the funds which she had expended on behalf of the minor. The petition was denied on November 13, 1972. No appeal was taken from that order.

On February 6, 1973, the petitioner filed, through his grandmother as next friend, a petition for rule to show cause. The petition alleged that the father made no child-support payments whatsoever, in violation of the terms of the child-support provision of the divorce decree.

The father’s objections to the petition were as follows: (1) An order was entered on November 13, 1972, denying the request for the minor child to be named as a party plaintiff herein; (2) Said minor child is not a party to this cause; (3) Dorothy Williams has neither been named in this court as said child’s next friend nor has she been given leave to file or appear as said child’s next friend; (4) No basis is set forth in said petition for this court to have or take jurisdiction; and (5) If requested by this or any other court, he has legal and equitable defenses to any claim in connection with the instant subject matter against him and can set forth said defenses in an answer, if so requested.

On April 5, 1973, a hearing was held on the petition, and it was denied. A petition for rehearing was timely filed, and it was denied on June 12, 1973. Petitioner now brings this appeal.

The appellee has not filed any briefs in accordance with Supreme Court Rule 341 (Ill. Rev. Stat. 1971, ch. 110A, §341). This court may, in its sound discretion, determine the merits of the case or it may reverse because of the failure of the appellee to comply with the Supreme Court Rule. (Shinn v. County Board of School Trustees (1970), 130 Ill.App.2d 908, 266 N.E.2d 123; People v. Spinelli (1967), 83 Ill.App.2d 391, 227 N.E.2d 779; Timmerman v. Wilson (1966), 74 Ill.App.2d 224, 219 N.E.2d 767.) Because of the importance of the issues raised, we have decided to consider the merits of the case.

Petitioner correctly asserts that the court granting the divorce has jurisdiction to enforce the child-support provision of the decree. It is fully recognized that the proper forum in which to apply for the enforcement of the divorce decree is the court which entered it. Stewart v. Stewart (1954), 1 Ill.App.2d 283, 117 N.E.2d 579.

The Divorce Act (Ill. Rev. Stat. 1971, ch. 40, § 19) specifically authorizes enforcement of divorce decrees and provides in relevant part as follows:

“Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonabe and just * *

Moreover, the legislature has provided that a minor child, by his guardian or next friend, may commence a civil action seeking equitable relief. (Ill. Rev. Stat. 1971, ch. 22, §5.) This section reads as follows:

“Civil actions seeking equitable relief may be commenced and prosecuted by infants, either by guardian or next friend, and by conservators on behalf of the persons they represent.”

In view of the foregoing, we hold that the trial court had jurisdiction to hear the cause presented by the petitioner through his next friend.

Since the divorce court had full and continuing jurisdiction over enforcement of its decree and support order (Kelley v. Kelley (1925), 317 Ill. 104, 110, 147 N.E. 659, 661), we further hold that the court was under no obligation to transfer the cause to a different court.

We turn now to the crux of petitioner’s argument. He urges that a minor child, by his grandmother as next friend, can compel the father to pay to the child arrearages in child support. After carefully weighing the argument.set forth by petitioner, we are unable to agree with his position.

Petitioner asserts that past-due installments of child support are a vested right (Slavis v. Slavis (1973), 12 Ill.App.3d 467, 299 N.E.2d 413; Stark v. Stark (1971), 131 Ill.App.2d 995, 269 N.E.2d 107; Gregory v. Gregory (1964), 52 Ill.App.2d 262, 202 N.E.2d 139; Hurt v. Hurt (1953), 351 Ill.App. 427, 115 N.E.2d 638) and constitute a debt due from the father. (Wilson v. Wilson (1970), 122 Ill.App.2d 142, 257 N.E.2d 810; Lewis v. Lewis (1970), 120 Ill.App.2d 263, 256 N.E.2d 660; Hallett v. Hallett (1956), 10 Ill.App.2d 513, 135 N.E.2d 224; Gregory v. Gregory (1964), 52 Ill.App.2d 262, 202 N.E.2d 139.) However, in each of these instances, the action was commenced by the mother. Petitioner cites no Illinois authority for the proposition that a child may bring suit against bis father to recover arrearages in child-support payments.

In other jurisdictions it has been consistently held that children have no direct interest in the money their father pays to their mother for support and may not sue their father to recover support payments. Ben Ami v. Ben Ami (1960), 8 N.Y.2d 885, 168 N.E.2d 723; Garnant v. Gar-nant (1959), 8 App. Div. 2d 814, 187 N.Y.S.2d 900; Price v. Price (Tex. Civ. App. 1946), 197 S.W.2d 200.

In Price v. Price (Tex. Civ. App. 1946), 197 S.W. 2d 200, the court of civil appeals of the State of Texas held that a child may not maintain a suit against his parents for support and maintenance. The parents separated and their agreement provided that the father should pay for the support, education and maintenance of the child until such time as his education had been completed. The agreement was subsequently approved by the court and made a part of its judgment in the divorce proceedings. When the child reached his majority and sued on the agreement, the action was properly dismissed.

In Ben Ami (I960), 8 N.Y.2d 885, 168 N.E.2d 723, infant children brought an action against their divorced father on a separation agreement which required the divorced father to make payments in part to their mother and in part to a third person for support and maintenance of the children. The Special Term granted the motion of the divorced father to dismiss the complaint and denied the motion of the infant children for leave to serve a supplemental complaint, and the children appealed. The appellate division affirmed the orders and held that the infant children could not maintain the action.

The duty of support is a joint obligation of both parents. The Divorce Act (Ill. Rev. Stat. 1971, ch. 40, § 19) authorizes the court to order the husband or wife to pay to the other party such money or property as the court deems equitable. The statute does not authorize support payments to be made directly to the child. Since the child is furnished support by other persons, we do not think an equitable result would obtain if we were to hold that the child has a right to sue his father for past-due support.

For the foregoing reasons, we affirm the trial court’s dismissal of the petition.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.