author: Mr. JUSTICE VERTICCHIO

text:
    Joe P. Boyle, Plaintiff-Appellee, v. Evalou Harvill, Defendant-Appellant.
    (No. 69-173;
    Fifth District
    — December 13, 1971.
    N. Y. Dowell, of Mt. Vernon, for appellant.

      Frank H. Walker, of Mt. Vernon, for appellee.
   Mr. JUSTICE VERTICCHIO

delivered the opinion of the court:

The defendant-appellant, Evalou Harvill, appeals from a decree of the circuit court of Jefferson County ordering her to reconvey to the plaintiff-appellee, Joe P. Boyle, an undivided one-half interest in certain property acquired from the plaintiff for defendant’s failure to perform the terms of consideration pursuant to an oral agreement.

The plaintiff, Joe P. Boyle, eighty-five years of age, filed this suit on September 17, 1965, in the circuit court of Jefferson County to set aside a deed executed on October 11, 1963, whereby he conveyed his residence premises located at #4 Hillside Drive, Mt. Vernon, Illinois, to defendant, Evalou Harvill, and himself as joint tenants.

The complaint alleges an oral agreement under which the defendant was to move into the plaintiffs home, do the housework and care for the plaintiff during his lifetime as a consideration for the conveyance. It is also alleged that the defendant violated the agreement by moving out of the plaintiff’s home and refusing to perform any further work.

The defendant denies that she agreed to perform any services or move into the plaintiff’s home and affirmatively alleges that she had been ready, willing, and able at all times to perform services for the plaintiff, but that the plaintiff refused such services.

There is considerable divergence in the testimony concerning an oral agreement. After separating the wheat from the chaff, it becomes clear that there are solely two issues involved:

1. Was there an oral agreement between the parties and, if so, what were the terms?
2. Did the defendant in any way fail or refuse to comply with the terms of the oral agreement?

The defendant, Evalou Harvill, a niece of the plaintiff, Joe P. Boyle, testified that after the death of her uncle’s first wife, she from time to time performed household work for the plaintiff in his home in Salem, Illinois.

She continued rendering these services on a voluntary basis until Joe P. Boyle married his second wife, Grace Frasure, on August 10, 1962. The plaintiff divorced the said Grace Erasure on September 4, 1963. The plaintiff and his second wife moved from Salem to Mt. Vernon, Illinois, to a home located at #4 Hillside Drive, the property herein at issue, prior to the divorce. Subsequent to the divorce the defendant resumed visiting the home of the plaintiff, performing household tasks, including cooking of meals which they shared.

The defendant denies that there was any oral agreement as a consideration for the transfer of the property by the plaintiff to her and the plaintiff as joint tenants on October 11, 1963. The defendant states that she did move some clothes into the plaintiff’s home, but the clothes were moved into the home solely for storage purposes, that she did not at any time move into the home of the plaintiff. The defendant stated that tire clothes were moved out of the plaintiff’s home sometime in August, 1965, after she acquired a larger home for herself in which there was adequate storage space.

The plaintiff, Joe Boyle, in his testimony in a rather nebulous or foggy manner described or sets out an oral agreement between the parties. He stated that the defendant was to perform household work and assist him in his personal needs. He stated, “It was not a part of the agreement | that she was to move into the house.” He further stated that the defendant never stayed overnight in his home.

The only other witness testifying relevant to the agreement was Leona Johnson, sister of the defendant, who testified that the plaintiff, “Uncle Joe,” as she called him, came to her home and told Mrs. Johnson, referring to Mrs. Erasure, “She told me she would marry me if I would get this deed j back in my name.” She also stated that her sister performed services for her Uncle Joe. She said she was familiar with the circumstances under | which her sister moved her clothes into plaintiff’s home and stated that the clothes were moved into the home for storage purposes. I

The evidence is bare of any testimony to the effect that the defendant at any time refused or failed to provide care for the plaintiff.

There is evidence on which the court could properly have found that an oral agreement was entered into between the plaintiff and the defendant. The evidence fails to reveal or establish the terms of the agreement other than the plaintiff contended that the defendant was to perform household work for him.

Thus the issue is limited to, did the defendant fail or refuse to perform household work for the plaintiff? The law is clear that where one voluntarily conveys his property in consideration of support and maintenance during his life and the grantee afterwards refuses to perform the contract, equity will grant relief by setting aside the deed and revesting the grantor with title. The court will infer from the grantee’s refusal to perform a fraudulent intent in the first instance in entering into the agreement. (Brown v. White, 410 Ill. 366.) In Weaver v. Zimmer, 337 Ill. 498, the court said at page 505, “Having found that there was an agreement between the parties, has it been violated or repudiated by the daughter to such a degree as to warrant a court of equity compelling her to convey the property to the father? * * *. If the evidence is such as to justify a conclusion that an agrément of that kind was entered into with a fraudulent intent or has been abandoned or repudiated a court of equity will set aside the conveyance. The failure to perform on the part of the child or grantee must be substantial and in relation to material matters.” The principle that the failure of the grantee to perform must be substantial and in relation to material matters was reiterated in Mruk v. Mruk, 379 Ill. 394, at pages 399 and 400, citing Weaver v. Zimmer, supra.

In the case before the court there is not a scintilla of evidence that the defendant failed or refused to perform and, further, there remains the unrebutted statement that plaintiff stated to Mrs. Johnson, “She told me she would marry me if I would get this deed back in my name.” The plaintiff did, as the record indicates, remarry Mrs. Grace Frasure on June 30, 1966.

This court believes that the record is insufficient to authorize a court of equity to order the defendant to reconvey an undivided one-half interest in the property to the plaintiff. The decree of the circuit court is herewith reversed and the cause remanded with direction to dismiss the plaintiff’s complaint for want of equity.

Reversed and remanded.

MORAN, P. J., and EBERSPACHER, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EBERSPACHER

license: Public Domain

text:
    William G. Dixon, Plaintiff-Appellant, v. James E. Betten et al., Defendants-Appellees.
    (No. 71-49;
    Fifth District
    — December 13, 1971.

      Dixon & McDonnell, of Belleville, (Joseph B. McDonnell, of counsel,) for appellant.
    Earns, Starnes, Nester & Stegmeyer, of Belleville, (John M. Earns, Jr., of counsel,) for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order granting the defendants’ motion to dismiss the plaintiff’s complaint. The complaint alleged that plaintiff (real estate agent) and defendants (property owners) entered into an agreement in writing, which agreement was attached to the complaint; that, while the contract was in force, defendants leased the property which was the subject matter of the agreement; and that the plaintiff prayed judgment for a specified amount of money, amounting to a percentage of the gross lease consideration. The trial court did not state its reasons for the dismissal of the complaint.

The attached agreement, titled “listing contract”, provided that, “In consideration of your acceptance of the terms hereof, and by endeavoring to sell the premises herein described, I hereby agree to give you, for 180 days * * * the exclusive agency for the listing for sale” of the property. In addition to paragraphs granting powers and rights to the plaintiff, the agreement provided: “I agree to pay you for your services rendered and to be rendered in behalf hereof, a commission of six per cent of the gross sales price obtained if said property is sold by you, by me, by a cooperating broker, or by anyone else during the continuance of this agency * * The agreement provided also that, during the agency, the defendants “agree not to lease, rent, or sell or negotiate for the sale of said property * *

The plaintiff argues that his agreement with the defendants constitutes a bilateral contract, with the defendants’ promise to pay the commission exchanged for the plaintiff’s promise to endeavor to sell the property; that the agreement was not invalid for want of consideration and mutuality, because the adequacy of consideration is for the parties to consider and not for the court to decide; and that the agreement constituted an exclusive right to sell, limiting any sale or lease by the defendants.

The agreement, however, does not include any promise by the plaintiff to endeavor to sell the defendants’ property. The agreement contemplates the actual endeavoring as the consideration for the defendants’ promise. Hence, what was contemplated was not a bilateral contract, consisting of an exchange of promises, but a unilateral contract, consisting of an exchange of a promise to pay a commission for a rendition of services. 1 Corbin, Contracts § 50 (1963), at 195, 199; Pretzell v. Anderson (1911), 162 Ill.App. 538.

Moreover, the agreement in this case is nothing more than an offer to make a unilateral contract. In a very similar case, (Schwartz v. Akerlund (1926), 240 Ill.App. 480, involving a suit to recover real estate commission, the court stated that the first question in determining whether the defendant-owner was liable for the commission was whether there was a contract. The defendant had given the plaintiff an exclusive agency for the sale of property and, during the period of the agency, the defendant sold the property through a third person. The agency provided in part that: “In consideration of having given you this exclusive sale agreement it is understood you are to advertise and show the property without any expense to me.” The court stated that the agreement was not a contract until the plaintiff-agent had done some work which constituted something in the nature of substantial consideration. But in that case, the plaintiff had alleged that he had accepted the agency and had “performed certain services in endeavoring to secure a purchaser.” The court found that the “things done by the plaintiff in pursuance of the offer and as a consideration therefor” constituted an acceptance of the offer and created an enforceable contract.

The court in Halon v. Dunne (1914), 189 Ill.App. 123 used the same type of analysis in construing a real estate agency agreement. Other Illinois cases cited in the briefs dealing with agency agreements are not relevant to this issue. Nicholson v. Alderson (1952), 347 Ill.App. 496, 107 N.E.2d 39; Wozniak v. Siegle (1922), 226 Ill.App. 619; Flynn v. La Salle Nat. Bank (1956), 9 Ill.2d 129, 137 N.E.2d 71.

Corbin, Contracts §50 (1963), in a section entitled “Real Estate Brokerage and Other Agency Cases,” has adopted the same analysis, by noting, at 195:

“The cases with which we are now dealing include those in which an owner merely puts his land in the broker’s hands, promising him a commission for the service of producing an able and willing purchaser, the broker making no return promise that he can or will produce

such a purchaser. Such a transaction as this is an offer of a unilateral contract, an offered promise by the owner creating in the broker a power of accepting by actual rendition of the requested service.” and at 199:

“The most commonly recurring case is one in which the owner employs a broker to find a purchaser able and wiUing to buy, on terms stated in advance by the owner, and in which the owner promises to pay a specified commission for the service. This is an offer by the owner, the brokers power of acceptance to be exercised by the actual rendition of the requested service. Here the only contemplated contract between the owner and the broker is a unilateral contract — a promise to pay a commission for services rendered.”

Since the agreement in this case constituted a written offer for a unilateral contract, the question is whether the plaintiff’s complaint stated a cause of action for breach of contract.

It has been long established in Illinois that, “(I)n the absence of statutory enactments to the contrary, it is necessary in actions upon contracts to allege a consideration, except in the case of contracts under seal, bUIs of exchange, and negotiable promissory notes, aU of which by intendment of law import a consideration, and a faffure to state a consideration or a statement of an insufficient consideration may be taken advantage of by demurrer.” Schwerdt v. Schwerdt (1908), 141 Ill.App. 386, aff'd. 235 Ill. 386, 85 N.E. 613.

In this case, since the agreement does not include any consideration and is merely an offer of a unilateral contract, and since the plaintiff did not aUege in the complaint that he had made any endeavors to sell the property, and thus accept the defendants’ offer, the trial court acted properly in dismissing the complaint for faffing to state a cause of action. The plaintiff states in his brief that he was actively engaged in endeavoring to sell the premises, by advertising and by contacting prospective purchasers. However, no such allegations appear in the complaint and the trial court must make its decision upon the facts alleged.

The plaintiff cites two Indiana cases for the position that a complaint for commissions due on a brokerage contract need not include allegations of performance. We find these cases inapplicable to the present case.

The plaintiff argues that agreement constituted a bilateral contract — an exchange of promises. He further cites two cases, Aldrich v. Aldrich (1931), 260 Ill.App. 333, and Nathan v. Leopold (1969), 108 Ill.App.2d 160, 247 N.E.2d 4, to establish the principle that, in analyzing bilateral contracts, the function of the court is to find the existence of consideration, not the adequacy of the consideration. There appear to be no Illinois decisions in which that principle has been applied to real estate agency contracts. Both cases cited dealt with bilateral contracts, not involving real estate agency.

The Restatement, Agency (Second) §449, deals with unilateral contracts for employment. It provides, in part, that “In the ordinary listing of property with a real estate broker, the brokers promise to use his best efforts or other similarly indefinite promises are not, without other facts, sufficient to indicate that consideration has been given.” We consider this as authority for holding that, if the agreement is interpreted as involving an exchange of promises, a court can determine whether a “promise to endeavor” is sufficient to indicate that consideration has been given.

Plaintiff argues that the agreement involves an exclusive right to sell, which precludes the owner from selling or disposing of the property. The Illinois Supreme Court has noted the distinction between exclusive agency and exclusive right (Flynn v. La Salle Nat. Bank (1956), 9 Ill.2d 129, 137 N.E.2d 71.) The language of the agreement is clear in its limitation of the owner’s right to dispose of the property during the existence of an agency. However, any limitation is unenforceable in the absence of an allegation and proof of the plaintiff’s acceptance of the defendants’ offer by endeavoring to sell the premises.

For the foregoing reasons, the decision of the trial court is affirmed.

Judgment affirmed.

MORAN and CREBS, JJ., concur.


text:
    The City of O’Fallon, A Municipal Corporation, Plaintiff-Appellee, v. Fredic Dale Reynolds et al., Defendants-Appellants.
    (No. 71-135;
    Fifth District
    — December 13, 1971.

      Lehman D. Krause, of Centreville, for appellant.
    Delmar Koebel, of Lebanon, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant Reynolds from a conviction of violations of Ill. Rev. Stat. ch. 95%, par. 6 — 101, driving without a valid license, and par. 11 — 1404, operating a motorcycle without protective eyeglasses, and from a judgment denying the return of bond money paid by the defendants grandmother, pursuant to Ill. Rev. Stat. ch. 38, par. 110 — 8, and applied to the payment of the defendant’s fine.

The appellants argue that the conviction was improper because the City of O’Fallon could not be the proper party plaintiff in a prosecution based upon the violation of a state statute and that the trial court erred in refusing to refund a cash bail posted by a party, other than the defendant, and in applying that cash bail to payment of the defendant’s fine.

The City of O’Falloris failure to file a brief in this case would be sufficient for reversal of the judgments below. However, since serious questions are raised in this appeal, we will consider the arguments presented.

In determining the first issue, it will be necessary to examine the record in order to ascertain whether the City of O’Fallon was the plaintiff in the prosecution of the defendant.

The defendant was arrestetd by an O’Fallon police officer, who prepared Illinois Uniform Traffic Ticket and Complaint forms charging violations of § 6 — 101 and 11 — 1404 of the Illinois Motor Vehicle Law and styled “State of Illinois, County of St. Clair, and Village of O’Fallon”.

Later, pursuant to a motion for appointment of counsel, the court determined that the defendant was an indigent and appointed counsel, other than the counsel on this appeal. The motion and order were both styled “People of the State of Illinois v. Fredic Dale Reynolds”.

At a bench trial, the defendant was not represented by counsel, pleaded guilty, and was fined. On the same day, the defendant’s grandmother made her request for the return of the bond money, and the record indicates the motion was argued and overruled. The order of the trial judge is styled “City of O’Fallon v. Fredic Dale Reynolds” and the record indicates the City of O’Fallon was represented by the city attorney.

The defendant and his grandmother made motions for a new trial on the conviction and for a rehearing on the return of the cash bail, styled “City of O’Fallon v. Fredic Dale Reynolds and Dorothy Cullon”. The court’s order overruling the motions is styled “City of O’Fallon v. Fredic Dale Reynolds”.

The certification of the common law record refers to the case as City of O’Fallon v. Fredic Dale Reynolds & Dorothy Cullon, Surety. The Report of Proceedings on the motions for a new trial and for rehearing refer to the case as City of O’Fallon, plaintiff, v. Fredic Dale Reynolds, defendant, and Dorothy Cullon, surety, and fist the city attorney as representing the plaintiff.

It would appear from the record that the City of O’Fallon was the plaintiff and prosecuted the action through the city attorney.

Having determined that the City of O’Fallon was the plaintiff in this case, we must determine whether a municipal corporation can be the proper party plaintiff in an action based on a violation of the Illinois Vehicle Code.

In Rockford v. Watson (2d Dist. 1969), 108 Ill.App.2d 146, 246 N.E.2d 458, the court reversed a conviction under the Illinois Vehicle Code, when the defendant was arrested within the city limits of Rockford, charged by way of an Illinois Uniform Traffic Ticket and Complaint, and prosecuted in a bench trial before a magistrate by the city attorney. The case was styled “City of Rockford v. Watson”.

The city argued that the repeal of the former judicial article, which had provided specifically that all prosecutions shall be in the name of and by the authority of the People of the State of Illinois, left a void which has not been filled by implementing legislation and that this void was intentional in order that municipal corporations could sue in their own name for a breach of a state statue.

The court rejected this argument by determining the legislative intent in the enactment of specific sections of the Illinois Uniform Act Regulating Traffic. Ill. Rev. Stat. 1969, ch. 95%, par. 17 — 102, provides that: “The State’s Attorney of the county in which the violation occurs shaH prosecute the violator”. However, with regard to the disposition of fines and forfeitures, Ill. Rev. Stat. 1969, ch. 95% pars. 235, 16 — 105, provides that, for offenses committed on a highway, within city limits, the fines are payable to the city, “provided police officers and officials of cities, towns, villages * * * shall seasonably prosecute for all fines and penalties under this act.”

With regard to this latter section, the court interpreted “prosecute” to mean only the “common, everyday use of the word” and relied on Champaign v. Hill (1961), 29 Ill.App.2d 429, 173 N.E.2d 839. That case involved a declaration judgment to interpret the meaning of “prosecute” in par. 16 — 105. Even though that decision preceded the new judicial article, its analysis remains unaffected. The court, relying on the manner in which the language was used and on two attorney general opinions specifically on point, held that use of the word “prosecute” contemplated the municipality’s making an arrest, initiating the complaint, and appearing as prosecuting witness, but not formally conducting the proceeding.

Based upon this interpretation, the court in the Rockford case concluded that, in the absence of a specific delegation from the legislature, a municipality cannot be a proper party plaintiff in the prosecution of a violation of a state statute.

The only other authority on this question is People v. Sirinsky (1970), 110 Ill.App.2d 238, 249 N.E.2d 229, aff’d. 47 Ill.2d 183, 263 N.E.2d 505. In that case, aU references in the common law record, including the placita, three continuance orders, a jury waiver, motions for a new trial and in arrest of judgment, and a report of proceedings prepared and presented to the trial judge, mentioned the prosecuting attorney as the State’s Attorney of Cook County. Furthermore, with the exception of the complaint, which was in the name of the City of Evanston, and the appearance of counsel, which left blank the space where the name of the plaintiff appears, aU matters were styled “People of the State of Illinois” as plaintiff.

The AppeHate Court mentioned the defendant’s argument that the complaint was void because it was brought in the name of a municipality for a state traffic violation. The Court stated that the authorities cited by the defendant were inapplicable because they were decided under the old judicial article and held, 249 N.E.2d at 231, that:

“However, neither Berg nor Stringfield is apphciable here inasmuch as both were decided prior to the effective date of the Judicial Article of 1964 which repealed the requirement that all process run and all prosecutions be carried on in the name of the People of Illinois.” (Emphasis added.)

The Court then cited three cases, none of which held that a municipality may now prosecute a state offense.

The Court gives the impression, however, in the section quoted that a municipality may now prosecute a state violation. In the Supreme Court decision, the Court did not comment on the language above and held that there was no prejudicial lack of notice involved because “it is apparent that the defendant was aware he was to be tried in a complaint prosecuted by the People of the State of Illinois and that the trial proceeded accordingly”. 265 N.E.2d at 506. It concluded that:

“We consider the irregularity in the caption of the complaint of no significance here * * *. The caption of a charging pleading * * * forms no part of the pleading and defects in the caption will not invalidate it.”

The Sirinsky case is distinguishable from the present case and from the Rockford case in that the defendant in Sirinsky was prosecuted by the State of Illinois through the State’s Attorney of Cook County. In the present case and in the Rockford case, the defendant was prosecuted by the city attorney of the respective municipality in the name of the municipality. The language in the appellate decision in Sirinsky is dictum and does not constitute authority for determining that under the new judicial system a municipality may prosecute a state offense.

We agree with the analysis of the Court in the Rockford case and hold that the City of O’Fallon was not the proper party plaintiff in the prosecution of the defendant Reynolds and, according, we reverse the judgments of conviction of the trial court.

In view of determination that the convictions are a nullity, we need not discuss the issue of the application of the cash bail to defendant’s fines; and remand this cause for a proper order for refund of the cash bond.

Judgments reversed, cause remanded with directions.

MORAN and JONES, JJ., concur.


author: PER CURIAM.

text:
    Catherine M. Pierce, also known as Catherine M. Pearce, formerly Catherine M. Wade, Plaintiff-Appellee, v. Robert L. Wade, Defendant-Appellant.
    (No. 71-181;
    Fifth District
    — December 9, 1971.
    Melvin W. Trotier, of East St. Louis, for appellant.
    Robert A. Hayes, of O’Fallon, for appellee.
   PER CURIAM.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Appellee, v. Joe Thompson, Appellant.
    (No. 70 — 101;
    Fifth District
    — December 14, 1971.

      Cohn, Kroein, Kunin and Brennan, of East St. Louis, (Joel A. Kunin, and Roger Scrivner, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Appellant, Joe Thompson, and three co-defendants entered pleas of guilty to indictments charging them with the crime of burglary. The defendants requested probation and a probation hearing was held, at the close of which the court denied their application and thereupon immediately passed sentence. The three co-defendants were sentenced to the penitentiary for a term of not less than three nor more than five years. Appellant was sentenced to a term of not less than 15 nor more than 25 years.

The only issue raised on this appeal is Appellant’s claim that his sentence was excessive, particularly in view of the lesser sentences given the three co-defendants. It is Appellant’s position that there was no adequate basis for the disparity between the sentences.

The only evidence offered was at the probation hearing. At the close of this evidence the State’s Attorney recommended that the court impose a severe sentence on Appellant stating that he was the moving force behind the crime and that the remaining three defendants feared Appellant and would never have become involved in the crime were it not not for him. The State’s Attorney made no recommendation concerning the other defendants. The Appellate Court has express statutory authority, in appropriate instances, to reduce the punishment imposed. 111. Rev. Stat. 1969, ch. 110A, par. 615(b) (4).

The record in this case is not as clear as it might be concerning the State’s claim that Appellant’s degree of involvement was much greater than that of the co-defendants. A better line of cross-examination and testimony of the witnesses to the crime would have greatly aided both this court and the trial court. We do find, however, that sufficient evidence does exist to justify a finding of the claimed greater involvement. The adult probation officer testified that his investigation and report indicated that Appellant was the ringleader of the group, that he planned the crime to coincide with a time when he felt the police would be on strike, and that he distributed the guns used in the commission of the crime. This testimony was corroborated in one or more respects by the various co-defendants. Although these charges were denied by the Appellant, the trial court, which had the best opportunity to evaluate the credibility of the witnesses, was convinced of the truth of the claims against Appellant as witnessed by the wide disparity between the sentences imposed, which disparity can be explained on no other basis. The mere fact that the co-defendants received lesser sentences than Appellant does not of itself indicate an abuse of discretion or discrimination against defendant (People v. Mitchell, 57 Ill.App.2d 238) and where, as here, there is a finding that one individual is the dominant member of a criminal group and played a more active role in the commission of the crime, a greater sentence is justified. People v. Morris, 43 Ill.2d 124.

While we find that there is an adequate basis for the imposition of a greater sentence upon AppeUant than upon the co-defendants, we are also cognizant of the purposes to be achieved by the imposition of punishment for a criminal offense. The sentence imposed should be that which at the same time protects the public and provides the greatest potential for restoring the offender to a useful and productive place in society. People v. Brown, 60 Ill.App.2d 447, 449.

The sentence imposed by the trial court does not make provision for the possibffity of rehabüitation and we, therefore, reduce the sentence to a minimum of five years and a maximum of fifteen years.

Sentence modified and judgment affirmed.

EBERSPACHER, P. J., and MORAN, J., concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul McCaffrey, Defendant-Appellant.
    (No. 71-46;
    Second District
    — December 22, 1971.
    Goldberg & Goldberg, of Chicago, (Barth Goldberg, of counsel,) for appellant.
    Albert N. Kennedy, State’s Attorney, of Dixon, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE SEIDENFELD.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Wylie, Defendant-Appellant.
    (No. 70-286;
    Second District
    — December 28, 1971.

      King & McNamara, of Rockford, (John F. McNamara, of counsel,) for appellant.
    John Maville, State’s Attorney, of Belvidere, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was indicted in a two count indictment; count one being for possession of a narcotic drug, and count two being the unlawful sale of an hallucinogenic drug to a minor. He was tried by a jury and on July 10, 1970, his application for probation was denied and he was sentenced by the court to a period of six months on the charge of possession of marijuana in the amount of less than 2.5 grams, and was sentenced to 1-2 years on the charge of the sale of LSD to a minor, the two j sentences to run concurrently.

The defendant herein has urged two grounds for reversal; the first being that the informer was not called to testify on the motion to suppress, and secondly, that the trial court erred in not suppressing the physical evidence seized during the arrest without a warrant. We do not find that it is necessary for us to rule on these points in the light of our decision herein.

While the defendant did not raise the issue of the constitutionality of the classification of marijuana (in the trial court referred to variously as “hashish” “hashis” (sic) and marijuana) as a narcotic drug, we find nevertheless that this case is controlled in part by the opinion of People v. McCabe Supreme Court Docket No. 42674, filed October, 1971; rehearing denied November 24, 1971; 49 Ill.2d 338 1971 which pertained to the unlawful sale of marijuana but is in violation of the same statutory provision as in the instant case. The Supreme Court there held that the I classification of marijuana as a narcotic drug was “arbitrary and deprives the defendant of equal protection of the law.” The judgment of conviction was reversed and not remanded.

Under the rule of McCabe, supra, we therefore reverse the conviction herein of the possession of marijuana.

We find that where a defendant has been tried on two charges in the same trial and one of the charges is held no longer to constitute a crime under the then existing statute he cannot have had a fair trial as to the other charge, in this case, sale of an hallucinogenic drug to a minor. For the reasons indicated the judgment of conviction is reversed and remanded for new trial on the sale of an hallucinogenic drug to a minor.

Reversed and remanded.

MORAN, P. J., and ABRAHAMSON, J., concur.


author: Mr. JUSTICE GUILD MORAN, P. J.,

text:
    Sandra Lee Chrastka, Plaintiff-Appellant, v. Norman Robert Chrastka, Defendant-Appellee.
    (No. 71-28;
    Second District
    — December 28, 1971.

      MORAN, P. J., dissenting.
    Anna D. Marek, of Ontarioville, for appellant.
    Thomas O. Flack, and Jay M. David, both of Chicago, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Plaintiff appeals from an order dismissing with prejudice and at plaintiff’s costs her complaint amended from alternative counts for divorce and separate maintenance to a single count of separate maintenance. The dismissal order contains a finding the trial court had no jurisdiction of the subject matter for want of proper venue.

The complaint alleges plaintiff was a resident of the State of Illinois for more than one year immediately preceding filing, but is silent as to county where either party resided, where their marital home was located, or where plaintiff’s abandonment occurred. The allegations continue that the parties were married in Oak Park, Cook County, Illinois, have two sons 11 and 9 years of age, and are joint obligors on a contract to purchase real estate in Cook County. The divorce counts are grounded on adultery and mental cruelty. It is alleged that defendant left the marital home to reside with another woman about a month and a half before the complaint was filed.

Plaintiff filed her complaint in Me Henry County on February 26, 1970. On March 23, 1970, the defendant voluntarily filed his appearance and answer. Summons was not served on the defendant. On April 1, 1970, by stipulation, an agreed order was entered for temporary custody, temporary support and alimony in the sum of eighty dollars per week, and visitation by the defendant.

On the day set for trial, plaintiff obtained leave to file an amended complaint containing only a single count for separate maintenance, again without allegation as to county. Defendant responded with a petition to dismiss on the ground the court had no jurisdiction over the matter, alleging “he never has been and is not now a resident of that (Me Henry) County nor is plaintiff a resident of that (McHenry) County, both plaintiff and defendant being residents of County of Cook, State of Illinois, and prior to that the county of Du Page, Illinois.” His petition further stated that defendant had previously appeared and answered “as the divorce action filed was the then desire of both plaintiff and defendant, the grounds for Motion for Dismissal * * # were waived by the defendant to expedite the hearing for divorce # Defendant’s request, incorporated into this petition, that it be considered a special and limited appearance to contest jurisdiction “over defendant” is without merit so far as jurisdiction of defendant’s person is concerned. He had previously submitted his person to the jurisdiction of the court by filing his general appearance, answer to plaintiff’s original complaint, and by stipulating to an agreed order. In his appellate brief, defendant argues lack of jurisdiction only of the subject matter.

Plaintiff urges that jurisdiction of the subject matter is sufficiently established by her residence in Illinois for more than a year preceding the filing of her complaint in Me Henry County. It is plaintiff’s position that the venue provision of the Divorce Act, “the proceeding shall be had in county where the plaintiff or defendant resides” (111. Rev. Stat. 1969, ch. 40, par. 6) and the requirement of the Separate Maintenance Act that proceedings shall be instituted in the county of the husband’s residence or the county where the wife’s abandonment occurred (111. Rev. Stat. 1969, ch. 68, par. 23) were capable of waiver by defendant’s appearance and agreement to the temporary support and alimony order entered in Me Henry County.

Although the Civil Practice Act does indeed provide for waiver of all objections of improper venue (Ill. Rev. Stat. 1969, ch. 110, par. 8) with neither divorce nor separate maintenance actions excepted from its scope (same, par. 1; see also Nye v. Nye (1950), 342 Ill.App. 11, 14, 94 N.E.2d 909) the Divorce and Separate Maintenance Acts provide that process, practice and pleading shall be the same as in other civil cases, except as otherwise provided by the Act or by any law or rule of court; (Italics ours, Ill. Rev. Stat. 1969, ch. 40, par. 7 and ch. 68, par. 23.2) and case law has long construed the venue requirements in both actions to be extraordinary and jurisdictional in nature. Jurisdiction of the subject matter thus cannot be waived or conferred upon the court by consent of the parties.

Courts have no inherent equity power in either proceeding, as divorce and separate maintenance actions were unknown to common law, and jurisdiction to hear and determine such cases and all related matters is conferred only by statute. The power of the court may be exercised only within the limits of the statutory grant of jurisdiction. Clubb v. Clubb (1949), 402 Ill. 390, 400, 84 N.E.2d 366; Plotinsky v. Plotinsky (1926), 241 Ill.App. 166, 169.

Venue provisions concerning the county where suit may be instituted have been held mandatory and jurisdictional in nature both in divorce (People ex rel. Bradley v. McAuliffe, 24 Ill.2d 75, 80, 81, 179 N.E.2d 616; In re Estate of Goldberg (1937), 288 Ill.App. 203, 207, 5 N.E.2d 863, cert. den. 302 U.S. 693; Dean v. Dean (1943), 381 Ill. 514, 515, 46 N.E.2d 59), and in separate maintenance actions, Briney v. Briney (1921), 223 Ill.App. 119, 121.

Although early decisions of the Illinois Supreme Court, Peeples v. Peeples (1857), 19 Ill. 269; Parker v. Parker (1871), 61 Ill. 369 held that the statutory venue requirement concerning the county in which a divorce action could be instituted was capable of waiver, these cases were expressly overruled in Bleckenberg v. Bleckenberg (1908), 232 Ill. 120, 83 N.E. 423, and Briney v. Briney, supra, at 223 Ill.App. 121 expressly applied the Bleckenberg opinion to separate maintenance actions. These decisions continue effective and controlling in interpreting the venue requirements of the Divorce and Separate Maintenance Acts as mandatory and material, being jurisdictional in nature, and they are consistently followed where a jurisdictional defect actually exists. The omission of a venue allegation, however, is not necessarily fatal as it may be supplied by amendment before decree upon remand to the trial court (Plotinsky v. Plotinsky, supra, at 241 Ill.App. 171, 172), even where the original complaint may be a nullity, an amended complaint may invoke the trial court's jurisdiction of the subject matter (Carbrey v. Carbrey (1969), 108 Ill.App.2d 363, 369, 247 N.E.2d 818), after decree the AppeHate Court has drawn an inference of the essential venue from the entire record O’Laughlin v. O’Laughlin (1955), 4 Ill.App.2d 323, 326, 124 N.E.2d 88; and has amended pleadings to conform to proof upon its own motion, Kijowski v. Kijowski (1962), 36 Ill.App.2d 94, 96, 97, 183 N.E.2d 583.

Defendant’s petition to dismiss does not specify whether it was filed pursuant to Section 45 of the CivH Practice Act, Motions with respect to pleadings, or Section 48 of that Act, Involuntary dismissal based upon certain defects or defenses (Ill. Rev. Stat. 1969, ch. 110, pars. 45 and 48). It appears to be filed pursuant to Section 48, however, as it is verified and includes factual allegations which do not otherwise appear on the face of the pleadings. It is to be noted that Ill. Rev. Stat. 1969, ch. 110, par. 48(a) authorizes involuntary dismissal where the court does not have jurisdiction of the subject matter, provided the defect cannot be removed by transfer of the case to a court having jurisdiction. (Emphasis supplied). Plaintiff alleged, and defendant admitted, she had been a resident of Illinois for more than one year immediately preceding the filing of her original complaint, so it does appear that if jurisdiction of the subject matter is in fact lacking in McHenry County the cause is capable of transfer to the Circuit Court of the proper county in Illinois, and transfer rather than dismissal is the disposition provided by statute where the jurisdictional defect can be removed.

No evidence was taken at hearing on defendants petition to dismiss, the matter was determined on arguments of counsel, and a transcript of that hearing has not been provided to us. In its memorandum of decision, the trial court mentioned it was admitted plaintiff was not a resident of Me Henry County at the time of filing the amended complaint and “it seemed to be almost conceded plaintiff was not a resident at the time the suit was filed.”

On this record we cannot say whether a jurisdictional defect actually exists in McHenry County, nor do we find the trial court’s memorandum of decision helpful. We find it inappropriate to put plaintiff out of court on an “almost” concession and believe jurisdiction does not turn on plaintiff’s residence at the time of filing the amended complaint. The general rule is that jurisdiction of a court over a cause depends on the state of facts at the time the action is brought, and it has been held that a change of plaintiff’s residence after filing an original complaint for divorce and before filing a supplemental complaint for divorce did not divest tíre court of jurisdiction. (See Kovac v. Kovac (1960), 26 Ill.App.2d 29, 167 N.E.2d 281 and cases cited therein.)

Sandra Chrastka, plaintiff herein, should be allowed reasonable opportunity to amend her complaint to include allegations of venue or counts for divorce and to present such evidence of venue as she may desire or be able to do. In the event venue is not shown to be in Me Henry County, but in another county within Illinois, the order of the trial court should not be dismissal, but transfer of plaintiff’s cause of action to such other county upon the court’s own motion or that of either party. (Sec. 10 of the Civil Practice Act, Ill. Rev. Stat. 1969, ch. 110, par. 10.) The Illinois Supreme Court construed the Venue Act of 1891 as empowering a court of record without jurisdiction of the subject matter to transfer a cause of action to the proper county (Central Ill. Service Co. v. Industrial Comm. (1920), 293 Ill. 62, 68, 69, 127 N.E. 80), and in 1946, after adoption of the Civil Practice Act, stated that want of jurisdiction in the first instance does not prevent courts of record from exercising the sole function of transferring the cause to the proper venue as they are given special and limited jurisdiction for that purpose. (Herb v. Pitcairn (1946), 392 Ill. 138, 149, 64 N.E.2d 519.) Any court having jurisdiction of the subject matter will also have discretion to order payment of plaintiff’s attorney’s fees and costs as may be provided by statute, commencing with the filing of her original complaint in Me Henry County. We believe this discretion in any court to which the cause might be properly transferred flows logically from the statutory provision that a transferred case “shall proceed and be determined as if it had originated in that court.” Ill. Rev. Stat. 1969, ch. 110, par. 10(3).

Plaintiff’s original complaint was filed February 26, 1970. Defendant’s petition to dismiss was filed June 3, 1970. While this petition alleges, without contradiction, both defendant’s past and present non residence in McHenry County, it alleges only Mrs. Chrastka’s present non residence in McHenry County, present residence of both parties in Cook County, and their prior residence in Du Page County. This pleading reinforces our view that inquiry into removal of any jurisdictional defect in Me Henry County by transfer to another county is warranted, and we note it does not exclude plaintiffs abandonment in Me Henry County.

This disposition, we believe, is equitable to both parties and surely not unfair to defendant. If Me Henry County ultimately shall appear to be one where venue does not exist, defendant’s petition indicates that he knowingly, and perhaps more enthusiastically than plaintiff, participated in the proceeding there without objecting to improper venue until his own objectives were no longer being served.

Judgment is therefore reversed and the cause is remanded with direction to the trial court to vacate the order of dismissal.

ABRAHAMSON, J., concurs.

MORAN, P. J.,

dissenting:

The majority has properly disposed on plaintiff’s claim that a one year residency in Illinois, without regard to the county of residence, is insufficient to place jurisdiction of her cause within the trial court.

In seeking reversal, plaintiff advances only two contentions. She first asserts that the trial court erred in allowing the motion to dismiss without granting her a hearing as to her residency at the time of filing the complaint and argues that the indication within defendant’s verified motion, that neither of the parties were residents of Me Henry County, was not true because the plaintiff was living with a relative of the defendant at the time the complaint was filed. The county of that claimed residence is not identified. Regardless, plaintiff’s statement is merely a gratuitous remark, unsubstantiated by the record and found only in the argument portion of her brief. She further argues this point contending that, when defendant raised the jurisdictional issue in his motion, it became the duty of the court to make inquiry as to her residence. This rationale places the court in the position of advocacy, is obviously without merit and requires no attention.

Plaintiff next contends that the trial court erred in dismissing the cause for lack of jurisdiction over the subject matter merely because she failed to aHege “the county where the parties of the suit reside,” arguing that jurisdiction can be determined from the fact that the first paragraph of her complaint states she had been a resident of the State of Illinois for more than one year and, further, that failure to aUege the county of residence is not fatal “if the record discloses that necessary resident facts actuaHy existed.” The latter statement is true, but for support plaintiff states, “At the time of filing not only did she live in Me Henry County having left Du Page County, but her divorced mother resided likewise in Me Henry County.” She avoids stating that she resided with her mother (any such inference is contradictory to her own statement that she resided with defendant’s relative) and she again takes the unwarranted liberty of going without the record in an attempt to support her claim of error.

The record discloses that plaintiff’s complaint for divorce was set for hearing on May 4, 1970. She failed to appear and the cause was continued to the next day. On that day, instead of proceeding with the hearing, plaintiff’s attorney requested that the complaint be dismissed and that plaintiff (who again did not appear) be allowed to file, instanter, an amended complaint for separate maintenance. This was allowed over objection. The amended complaint, like the original complaint, failed to aHege that either party was a resident of McHenry County. The court ordered the defendant to answer or otherwise plead to the amended complaint within 30 days.

Within the time allowed, the defendant, by way of special and limited appearance, filed a verified motion to dismiss the amended complaint which contested the court’s jurisdiction, alleged that neither party resided in Me Henry County and stated that a divorce action between the parties was pending in Cook County. Plaintiff filed no responsive pleadings to the motion. Instead, some 7 weeks later, upon plaintiff’s own notice, the motion was heard but she offered no testimony. The record does not disclose if the plaintiff was personally present in court on this occasion. However, during oral argument, it was admitted that she was not a resident of Me Henry County at the time of the amended complaint.

The trial court’s memorandum of decision includes the foHowing:

“Before proceeding further it ought to be mentioned that, in arguments before this Court, it was admitted that Plaintiff was not a resident of McHenry County at the time of filing the Amended Complaint.
Furthermore, at times in the arguments, it seemed to be almost conceded that Plaintiff was not a resident at the time suit was filed.”

It is my view that plaintiff had every opportunity, and it was her duty, to: (1) amend her complaint to show the county of her residence; (2) deny, by responsive verified pleadings, allegations found in the motion; or (3) during the hearing, offer testimony in rebuttal to the allegation of non-residency. For reasons known only to herself, she did none of these. I can only conclude, as did the trial court, that she did not do so because, in fact, she was not a resident of Me Henry County at the time of filing the original complaint or at the time of filing the amendment thereto.

To invoke the jurisdiction of the court in divorce or separate maintenance actions, it is prerequisite that one of the parties be a resident of the county in which the action is brought. This must not only be alleged by the plaintiff in the complaint but, when not admitted, must be proved just as any other essential element. Plaintiff herein failed to do so.

The question of jurisdiction should be reached at the earliest possible stage in any proceeding and, generally speaking, if not raised, jurisdiction will be waived. However, in the instant type of case, the question of jurisdiction is not waived by failure to make objection in the trial court and may be raised for the first time on appeal. (People ex rel. Bradley v. McAuliffe (1962), 24 Ill.2d 75, 80-81.) The decision of the majority leaves open certain questions relative to divorce and separate maintenance actions: e.g.? is there any need to allege the county of residence of the parties in the complaint; what benefit will there be for a defendant to enter a special and limited appearance to contest jurisdiction of the comt; is it the court’s duty, when a jurisdictional question arises, to seek the factual situation?

It is the majority’s conclusion (with which I do not agree) that the disposition taken in this case is “surely not unfair to defendant.” However, the question is not whether the disposition is unfair to the defendant but whether it is unfair to the trial judge who was totally unaided in his decision due to plaintiff’s inaction.

The majority states that no evidence was taken, that the matter was determined on oral arguments. I again disagree. The evidence before the trial judge, by way of verified motion, was that neither party resided in Me Henry County. This fact stood uncontradicted. It is my opinion that the trial court had no alternative, under the circumstances of this case, but to grant the motion.

I would, therefore, affirm the trial court’s judgment.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People ex rel. Cherry Valley Fire Protection District, Plaintiff-Appellee, v. The City of Rockford, Defendant-Appellant.
    (No. 71-52;
    Second District
    — January 3, 1972.
    John W. Nielson, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (H. Emmett Folgate, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The City of Rockford, defendant in a quo warranto proceedings, appeals from a judgment of ouster.

This is the second time that this case is before us. On November 28, 1967, defendant passed and approved an annexation ordinance which annexed a certain subdivision within the plaintiff’s Fire Protection District. A complaint in quo warranto, filed by the State’s Attorney on behalf of the plaintiff, sought to oust the defendant from exercising control over the annexed territory. On April 2, 1969, the trial judge entered a judgment of ouster which was appealed to this court. (People v. City of Rockford (1970), 120 Ill.App.3d 275.) We there held that defendant failed to comply with the annexation statute (Ill. Rev. Stat. 1967, ch. 24, par. 7 — 1—8) and found the annexed territory not contiguous to defendant’s boundaries. However, the judgment was reversed and the cause remanded for a ruling by the trial judge on the question of whether the plaintiff was barred from relief upon the theory of laches.

Upon remand, no new evidence was offered. Upon review of the record, the trial judge found no great public inconvenience and detriment which would bar the plaintiff from prosecuting the quo warranto action on the basis of laches. The judgment of ouster was entered and the defendant now appeals alleging the judge’s finding to be against the manifest weight of the evidence.

The law is clear that the doctrine of laches may be a bar to a quo warranto action.

“Laches will not ordinarily bar an action in quo warranto brought on behalf of the people. But if, as a result of inexcusable delay and public acquiescence, a judgment of ouster would result in great public inconvenience and detriment, the public interest requires that laches be applied in bar of the proceeding.” [Citations omitted] People v. Junior College Dist. (1969), 42 Ill.2d 136, 139.

In the case at bar there was an eleven month delay between the passing of the annexation ordinance and the quo warranto complaint. A complaint brought within the one year statute of hmitations (Ill. Rev. Stat. 1967, ch. 24, par. 7 — 1—46) does not foreclose consideration of the defense of laches. (People ex rel. Coojar Realty v. Burr Ridge (1967), 81 Ill.App.2d 203, 208.) We must consider whether, during the eleven month delay, “certain conditions had developed whereby great inconvenience and public detriment would result from a judgment of ouster.” Peo. ex rel. Jordan Co. v. Forest View (1961), 21 Ill.2d 384, 390.

The defendant cites several decisions in which public inconvenience has been found and the doctrine of laches applied, alleging that the facts of the case at bar bring it within the scope of these cited decisions. In Peo. ex rel. Lindsey v. Board of Educ. (1954), 3 Ill.2d 159, 167 the Supreme Court affirmed the trial court’s application of laches. Lindsey was a quo warranto proceeding challenging the authority of a school district. The Court concluded that there would be public detriment because, during the five year delay, all of the included common school districts ceased to exist; the buildings had been disposed of; 636 elementary students would would be without school facilities or funds to provide while, additionally, 230 high school students would be without transportation or funds to pay then tuition.

In People v. Junior College Dist., supra, at 138, 139, the Court again applied laches and barred a challenge to the incorporation of a junior college district holding that great public inconvenience would have resulted from an ouster because, during the two year delay the school board had levied and collected taxes and used the monies to establish a junior college; land had been leased and contracts had been entered into for the purchase of buildings and facilities; a faculty and administrative personnel had been employed; over 1500 students had been enrolled and were attending classes; a $5.9 million bond issue had been approved; and condemnation proceedings for a permanent campus were under way.

In People v. Village of Hinsdale (1969), 111 Ill.App.2d 368, an annexation was challenged. This court reversed the judgment of ouster since there had been a forty year delay in which the Village had exercised, with the acquiescence of the public, complete municipal jurisdiction and authority in the disputed area.

In People v. City of Rockford (1970), 122 Ill.App.2d 272, an annexation by the defendant was challenged. This comt affirmed a judgment based upon the doctrine of laches holding that unquestionable public inconvenience and detriment would result. There it was uncontradicted that the Board of Education, owner of a substantial portion of the annexed territory, had, on the assumption that the territory was party of the City of Rockford, expended considerable funds to acquire and develop their site within that territory.

The defendant alleges that the following facts bring the instant case within the scope of the above discussed decisions: 1) the defendant accepted the roads in the annexed territory and had fee title to them; 2) thirty-seven out of fifty-four lots in the annexed subdivision have been sold; 3) twenty-seven building permits have been issued by defendant; 4) defendant’s building code and zoning ordinances have been complied with in the subdivision; 5) defendant is currently providing water services to the annexed territory; 6) the subdivider has installed water mains at a cost of $34,000; 7) the subdivider has installed certain streets, curbs and storm drains at a cost of $56,000; and 8) defendant is supplying police and fire protection and has installed four fire hydrants in the annexed area.

These facts do not indicate, as a matter of law, that an ouster would result in great public inconvenience and detriment or that the trial judge’s finding was against the manifest weight of the evidence. In the case at bar, we are not presented with a situation wherein the facts, in and of themselves, show obviously that public detriment will result from any ouster, (see, Lindsey, supra, p. 167); nor is there direct testimony or evidence in the record that public detriment will occur; nor does the defendant aid us by specifying how public detriment will result. Defendant has merely excerpted bare facts from the record and claims that public detriment will occur. Its failure to substantiate such claim, however, would call for this court to reach a determination of detriment or public inconvenience based solely upon speculation and conjecture. Thus, this case is distinguished from the cited cases wherein the facts establishing detriment were obvious and needed no further proof.

The defendant also contends that the plaintiff did not sufficiently reply to the affirmative defenses raised in the defendant’s answer. This objection was not raised in the lower court. However, our examination of the record indicates that the plaintiff did in fact deny each affirmative defense.

We hold that the defendant did not sustain its burden of proving the affirmative defense of laches; consequently, the finding that ouster will not result in great public inconvenience and detriment is not against the manifest weight of the evidence. We therefore affirm the judgment of ouster.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael McCauley, Defendant-Appellant.
    (No. 71-63;
    Second District
    — January 3, 1972.

      Inglis, Will, LaBelle & Sparks, of Zion, (Robert P. Will, of counsel,) for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (Wm. B. Block, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, Michael McCauley, charged under Section 12— 4(b)(6) of the Criminal Code (111. Rev. Stat. 1969, ch. 38, par. 12— 4(b)(6)) which provides that a battery inflicted upon a police officer constitutes aggravated battery, was found guilty in a jury trial and granted probation, the first six months to be served in the county jail. Defendant appeals from the judgment.

At 3:00 A.M., July 5, 1970, while on routine patrol in the Village of Fox Lake, Police Officer Trinski observed defendant’s auto parked (sideways) on Grand Avenue. As he approached, defendant drove away. Following, Trinski ascertained that defendant was speeding and stopped his car. In a brief conversation, the officer discovered that McCauley did not have his driver’s license with him. He was placed under arrest and informed that he would have to accompany the officer to the station to post bond. The defendant replied with profanity and was placed, unhandcuffed, into the squad car. While enroute to the station, Trinski’s car was met and followed by another squad car driven by Officer Busch.

There is contradictory testimony relative to occurrences enroute to the police station. Trinski testified that the defendant said he knew the officer’s identity and threatened to kill him and his family; that defendant called him an obscene name and began kicking the plastic guard which separated the front and back seats of the squad car; that the plastic shield was broken by the defendant who then, through an opening in the shield, fumbled for the officer’s gun; that he stopped the car and got out intending to handcuff the defendant; that when he opened the rear door, defendant jumped out and struck him in the face; that Busch stopped his car and assisted in physically subduing the defendant. Busch testified that, while driving behind Trinski’s squad car, he observed defendant kicking the plastic shield, that he saw Trinski open the rear door and saw defendant jump out and hit Trinski, that he assisted in subduing the defendant.

Joseph Cropin, a friend of the defendant, testified that he drove by at the time in question, saw defendant sitting in the squad car, stopped his car 10-15 feet from the police car, saw Trinski reach into the car and try to grab defendant, saw the officer kick defendant in the face and then observed the defendant hit the officer in the face.

The defendant testified that he used profanity but did nothing else abusive; that after he told the officer, “I should bum your house down,” the officer stopped the car and said, “That’s enough,” opened the back door and reached in to grab him, but he evaded the officer’s reach; that when he sat upright, the officer kicked him under the chin and, thinking the officers were about to beat him, he defended himself by striking the policeman.

While defendant admitted striking the officer, his defense against the charge of aggravated battery was justification in defending himself against unlawful force. He contends that the jury was improperly instructed because People’s Instructions 14 and 15 were given.

Instruction No. 14 stated:

“A peace officer who has an arrested person in his custody is justified in the use of any force which he reasonably believes to be necessary to prevent the escape of the arrested person or to defend himself from bodily harm while preventing the escape.”

Instruction No. 15 stated:

“A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest is in fact unlawful.”

The defendant alleges that these instructions were improper since 1) there is no evidence in the record of attempted escape or resisting arrest (his being already under arrest when the offense charged occurred) and 2) the instructions implied to the jury that the defendant was guilty of two additional crimes with which he was never charged.

The defendant was not charged with attempted escape or resisting arrest. The law is clear that the jury can be instructed only concerning the crime charged, (People v. Stanko (1949), 402 Ill. 558, 561.) The natural result of instructions based upon other crimes is prejudice to the defendant, (People v. Hamilton (1929), 336 Ill. 294, 296; See, 53 Am. Jur., Trial, Sec. 575). It is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury. Shore v. Turman (1965), 63 Ill.App.2d 315, 321.

We find that the defendant was prejudiced by these two instructions since they interjected irrelevant issues into the jury deliberations and contained two crimes with which the defendant was never charged. Thus, die cause is reversed and remanded for a new trial.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    In re Application of the County Collector for Judgment of Sale Against Lands and Lots Returned for Non-Payment of General Taxes and Pettiton of Robert Burroughs for Tax Deed. — (Lester J. Cruikshank et al., Petitioners for Rehearing and Other Relief, v. Robert Burroughs, Respondent.)
    (No. 71-2;
    Third District
    — December 29, 1971.

      J. Michael Mathis, of Peoria, for appellant.
    Walter W. Winget II, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Peoria County which upon petition of Lester and Darlene Cruikshank, Appellees, vacated its previous judgment ordering the issuance of a tax deed to Robert Burroughs, Respondent, Appellant.

The facts are substantially undisputed. On September 12, 1969, respondent’s predecessor in interest filed its petition in the Circuit Court of Peoria County requesting the issuance of a tax deed to the premises in question. The petition recited the sale of the premises for the nonpayment of the second installment of 1966 general real estate taxes. January 12, 1970, was designated as the extended date for redemption. Notices were served which shall be more particularly described later, and, on January 23,1970, Burroughs, as assignee of the original petitioner, appeared and presented documentary evidence and gave oral testimony concerning the service of notice. On January 30, 1970, a judgment was entered ordering the tax deed in question in this case.

On February 27, 1970, Lester Cruikshank and Darlene his wife, filed their petition seeking a rehearing and other relief. According to the petition the Cruikshanks were the owners and occupants of the premises in question, it was improved with a frame residence worth approximately $9,000 and was at all times pertinent to the controversy occupied by them together with other members of their family as a residence. Except for the second installment of taxes due in 1966, the Cruikshanks had paid all general taxes prior and subsequent thereto.

As a basis for seeking rehearing and other relief the petition of the Cruikshanks as amended specified several irregularities in the judicial proceeding. According to the petition Lester Cruikshank as owner, occupant and person in whose name the general real estate taxes were last assessed, did not receive notice of the application for tax deed as required by statute and the failure of the respondent to comply with the statute was fraudulent.

Accompanying the petition and paid to the Clerk of the Court was the amount necessary to redeem from the tax sale. After hearing on the petition for rehearing and other relief the court ordered the tax deed judgment vacated and directed the Clerk to pay to the tax sale buyer the redemption funds in the Clerk’s possession.

According to the testimony of Robert Burroughs he went to the Cruikshank residence twice on October 6, 1969, (morning and afternoon) and again on the afternoon of October 8,1969, not finding either of the Cruikshanks at home on these occasions. On the evening of October 10, 1969, he again went to the home at which time Darlene Cruikshank was there and at that time he served a notice upon her. Upon being advised that her husband was not home Burroughs asked when he might be there and received the response that he would be there the following morning. Burroughs went to the house on the following morning, October 11, but no one was there. According to Mrs. Cruikshank she laid the notice which she had received on the desk and told her husband later that she thought it had something to do with taxes.

On October 11, 1969, Burroughs sent a notice to Lester Cruikshank at his residence address by certified mail, return receipt requested, addressee only. Although Burroughs testified at the ex parte hearing where he made proof of notice that the return receipt was signed by Lester Cruikshank it appeared at the later hearing that it was not so signed but in fact had been signed by Mrs. Cruikshank. The certified letter containing the notice was received by the Cruikshanks on October 15, 1969, and, according to Mrs. Cruikshank, she laid it on her husband’s desk mentioning that he had something regarding taxes. Lester Cruikshank did not see the notices and nothing was done about the matter until on or about January 23, 1970, at which time Mrs. Cruikshank endeavored to redeem the property, her efforts including a telephone call to Matt Burroughs, father of respondent, who advised her that consent would not be given for the Clerk to accept late redemption. The judgment ordering the tax deed was entered January 30, 1970, and at about this time Burroughs indicated that he would sell the property back to the Cruikshanks but the record does not reveal whether any price was proposed.

It was the theory of appellees in the court below, renewed in this court, that Lester Cruikshank was not served with notice as required by statute and that such failure was both fraudulent and an appropriate defense in the tax deed proceeding. On the other hand the appellant claims in seeking to reverse the action of the trial court that the facts do not constitute fraud sufficient to render the judgment void.

At the outset it should be observed that the Cruikshanks filed their petition under Ill. Rev. Stat. 1969, par. 68.3 of ch. 110 and not par. 72 of the same Act. All of the cases cited by Appellant regarding fraud in relation to notice involve par. 72 proceedings. (Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620, Dahlke v. Hawthorne Lane & Co., 36 Ill.2d 241, 222 N.E.2d 465, Urban v. Lois Inc., 29 Ill.2d 542, 194 N.E.2d 294, Cherin v. R & C Company, 11 Ill.2d 447, 143 N.E.2d 235 and Sorini v. Klein, 109 Ill.App.2d 309, 248 N.E.2d 701.) As is pointed out by appellees, fraud is the gist of a par. 72 proceeding seeking relief from a tax deed judgment more than 30 days after its rendition. According to the authorities cited by appellant the rule is well established that a judgment ordering a tax deed is and should be free from collateral attack and the relief which may be afforded under par. 72 is dependent upon the existence of fraud or other reasons affecting the jurisdiction of the court.

As observed in Dahlke v. Hawthorne, Lane & Co., supra, “In the present case the trial court expressly found in its order for feed that all notices required by law had been given and, no direct appeal having been taken by the record owners, that determination is now conclusive unless vitiated by fraud. Thus, the question presented is not whether proper notices were in fact served upon Arthur Dahlke and other persons in possession, but whether the issuance of the deed was attended by fraud as the petitioner claims”. In Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620, the Court held that in a par. 72 proceeding the fact that the respondent’s agent could have been more diligent did not constitute fraud in die absence of evidence of a pattern of deception or intent to deceive.

Where the attack upon the judgment is direct as is the case where relief is sought within 30 days of its rendition, fraud is not the gist of the action. Error with respect to the finding of the trial court that all notices were given as required by law may be considered. Accordingly we find it unnecessary to determine whether respondent’s conduct amounted to fraud since in our opinion there is ample evidence supporting the trial court’s order determining that it had erred in the original determination in its judgment of January 30, 1970.

It is conceded that Lester Cruikshank was not served personally not less than ninety days prior to the expiration of the period of redemption as extended. The question remains whether the manner in which notice was given i.e. certified mail and publication, was sufficient.

Where the parties entitled to notices can not be personally served, Ill. Rev. Stat. 1969, ch. 120, par. 744 permits service by mail and publication only if the person to be served can not “* * * upon diligent inquiry be found in the county”. Whether diligent inquiry has been made is not susceptible of abstract definition apart from the facts and circumstances. However it is clear that such diligence not only depends upon what a person could learn by making inquiries but more importantly on what the person knows of his own knowledge. In the instant case Burroughs knew that Lester Cruikshank was an occupant of the residence located on the premises and that he resided there regularly with his family. Another aspect of the diligence problem relates to the interest of the person to be served, an aspect which is of special significance in a tax deed proceeding. Section 5 of article 9 of the Illinois State Constitution of 1870, provides in part as follows, “And the general assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires”. Although we do not agree with appellee’s suggestion that the provision in section 744 regarding notice by mail and publication is contrary to the constitutional mandate, we do believe that based on the constitutional language the framers thereof felt that personal service of notice on the occupants was of the utmost importance. Such importance is we believe related to the diligence which must be exercised in serving notices on the occupant.

After reviewing the testimony of Robert Burroughs and the Cruikshanks it is our conclusion that Burroughs did not use due diligence in attempting to serve the notice on Lester Cruikshank. The first two days that Burroughs went to the Cruikshank residence he went during the hours that Lester Cruikshank would ordinarily have been expected to be working. According to his own testimony he made no particular inquiries of Mrs. Cruikshank concerning her husband’s whereabouts and the indication that he would be home in the morning was general with no indication of any particular time. It also appears from the evidence that neither of the Cruikshanks made any effort to deceive Burroughs or endeavored to avoid or prevent service of notice upon Lester. The plain fact of the matter is that the record reveals practically no effort by Burroughs to serve the notice on Lester Cruikshank. The conclusion is inescapable from the testimony that if Burroughs wanted to find Lester Cruikshank he would have done so. The reason for the absence of such diligence may also be inferred from the record namely that the tax buyer assumed that so long as Mrs. Cruikshank received the notice the property would be redeemed. However Mrs. Cruikshank apparently relied on her husband’s seeing the notice and taking the appropriate action which was not done. Under these circumstances it is our view that the notice by certified mail and publication was not in accord with the Statute because the tax buyer failed to comply with the condition precedent thereto namely the exercise of due diligence in serving the notice personally upon the receipt of the property.

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

Judgment affirmed.

SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Gloria Paku, Plaintiff-Appellant, v. M. V. Leasing Corporation, Defendant — ( Mitchell Transport Inc., Defendant-Appellee.)
    (No. 71-17;
    Third District
    — December 28, 1971.
    Hart, Banbury, Gullstrand, & Banbury, of Aurora, for appellant.
    Robson, Masters, Ryan, Brumund & Belom, of Joliet, (Frank H. Masters, Jr. and Sidney Z. Karasik, of counsel,) for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This cause of action arose on April 23, 1968, when the Plaintiff was involved in an accident with a truck owned by M. V. Leasing Corporation and driven by Bernard C. Davis. On November 21st, 1968, suit was filed with M. V. Leasing Corporation being named the sole Defendant. The Plaintiff alleged that Bernard C. Davis was operating the track as the agent or servant of the Defendant, M. L. Leasing Corporation.

On December 23, 1968, the Defendant, M. V. Leasing Corporation, entered its appearance in the case and on March 26, 1969, by answer denied that Bernard C. Davis was its agent or servant at the time of the accident. By May 9, 1969, M. V. Leasing Corporation answered certain interrogatories propounded to it by Plaintiff’s attorney and among its answers admitted it was the owner of the vehicle involved in the accident with Plaintiff; denied that Bernard C. Davis was its employee on the date of the accident; denied that Davis was ever employed by M. V. Leasing Corporation; and stated that Davis at the time of the accident was employed by Mitchell Transport, Inc.

On June 25, 1969, Plaintiff filed a Motion for leave to make Mitchell Transport, Inc. an additional party Defendant, and to file an Amended Complaint. The Motion was set for hearing on July 8, 1969. On July 7, 1969, Plaintiff’s then attorney, through a letter to the Court and opposing counsel, indicated that he would not be appearing at the July 8 hearing on his motion because his client had indicated a desire to change legal counsel.

On April 17, 1970, a Notice of a Pre-Trial Hearing was issued by the Circuit Court directed to Plaintiff’s attorney, indicating that the within case was set for pre-trial conference on April 24, 1970.

On April 23, 1970, the date the two year Statute of Limitations ran on Mitchell Transport, Inc., a Stipulation for Substitution of Attorneys was entered into between the Plaintiff, her lawyer, Sidney Podolsky and the law firm of Hart, Banbury, Gullstrand and Banbury of Aurora, Illinois, wherein the latter law firm was to be substituted as Plaintiffs attorney of record. The Stipulation was filed with the Trial Court on April 24, 1970, and on that same day, the Trial Court granted Attorney Podolsky leave to withdraw as attorney for Plaintiff and substituted the law firm of Hart, Banbury, Gullstrand and Banbury as attorneys for Plaintiff.

On April 30, 1970, Plaintiffs new counsel again moved the Trial Comt to add Mitchell Transport, Inc. as an additional party Defendant. Plaintiff was granted leave to file her amended complaint and obtain service upon the new Defendant, Mitchell Transport, Inc. On August 17,1970, the new Defendant, Mitchell Transport, Inc., filed a Motion to Dismiss the complaint against it on the grounds that Plaintiff had not commenced her action for personal injuries within two years after the date of the accident. On December 8, 1970, Defendant’s Motion to Dismiss was granted. Plaintiff, through her new counsel, duly perfected her appeal to this Court.

The plaintiff argues that section 46 (4) of the Civil Practice Act (Ill. Rev. Stat. 1969, eh. 110, par. 46 (4) ) applies. This statute provides that a cause of action against a person not originally named a defendant is not barred by a statute of limitations if, among other things, failure to join the person as a defendant was inadvertent.

It is clear that the additional defendant Mitchell Transport was known to the plaintiff as early as May 9, 1969, which was more than eleven months before the statute of limitations had expired.

It is argued that the definition of inadvertence is broad enough to include the conduct of the plaintiff in this case. There is inadvertence if the plaintiff was “not turning the mind to a matter; heedless; negligent, inattentive * * Silver v. Lee Shell Equipment Corp., 31 Ill.App.2d 266.

However, the word “inadvertence” does not include a failure to act within a reasonable time after the true facts are discovered. See Fields v. 6125 Indiana Ave. Apts. Inc., 47 Ill.App.2d 55, 58, where the court said “Section 46 (4) was not intended to discontinue the operation of the statute of Hmitations and thus give the party seeking the benefit of that section an unlimited period in which to add the proper parties. He must do so within a reasonable time after notice has been given or knowledge received with respect thereto. Plaintiff cannot claim inadvertence when advised with legal formality, in response to interrogatories, the names and addresses of the defendant more tiran eight months before the statute of limitations had run. It is our conclusion therefore that this condition was not fulfilled and that the plea of statute of limitations by the individual defendants is good.”

The Fields case was decided in 1964 by the same division and the same judges who had decided, the Silver v. Lee Shell case in 1961. The court in the Fields case adopted the reasoning of Robinson v. Chicago Nat. Bank 32 Ill.App.2d 55, decided in 1961 with the qualification that there be a reasonable period aUowed for a plaintiff who comes within the provisions of the act to take the necessary steps to add the proper parties after he has received knowledge of them.

Plaintiff contends that her attorney did act with dispatch after receiving notice and did take steps to add the additional defendant almost ten months before the Statute of Limitations had run that thus there was no failure to act but only failure to complete an act.

Plaintiff’s attorney was aware that he was required to obtain leave of court to amend the complaint joining the new defendant, in fact he had prepared and mailed a draft order which accompanied his motion for leave to amend. He did nothing thereafter. Such conduct is not inadvertence within the meaning of Sec. 46 (4) (b) but inexcusable failure to act after the facts are discovered.

It is not necessary for us to consider the other points made by defendant with respect to conditions (c) and (d) of section 46.

The order of the Circuit Court of Will Country is affirmed.

Judgment affirmed.

STOUDER, P. J. and SCOTT, J., concur.


author: Mr. JUSTICE SCOTT

text:
    Donald L. Vance, Plaintiff-Appellant, v. Board of Education of Pekin Community High School District No. 303, Defendant-Appellee.
    (No. 71-32;
    Third District
    — December 28, 1971.
    Drach, Terrell & Deffenbaugh, of Springfield, (Robert W. Deffenbaugh, of counsel,) for appellant.

      Harold H. Kuhfuss, of Pekin, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Tazewell County.

The plaintiff, Donald Vance, was 22 years of age when he graduated from Illinois State University in the month of June, 1969. Shortly thereafter he entered into a contract of employment as a teacher with the defendant, Board of Education of Pekin Community High School District #303. The contract provided that plaintiff would commence his teaching duties for the school term of 1969-70 on September 2, 1969. The plaintiff was to receive an annual salary of $6,800.00.

One paragraph of the contract contained the following language:

“It is further agreed that this contract is subject to the school laws of the State of Illinois, and to reasonable and lawful regulations of said Board of Education.”

The plaintiff commenced teaching at Pekin Community High School on the designated contractural date of September 2, 1969. He taught courses in Economics and American Government. On September 29, 1969, the plaintiff was discharged from his teaching position by the defendant Board of Education.

The plaintiff subsequently filed a complaint against the defendant alleging breach of contract and that he was entitled to damages in the amount of his unpaid salary for the school year of 1969-70. The defendant’s defense was that the plaintiff breached his contract by his actions and thereby there existed a legal right to terminate the plaintiff’s employment. The trial court found the issues in favor of the defendant and this appeal stems from that decision.

The record discloses that during the short period the plaintiff taught in the Pekin Community High School a number of complaints were made against his methods of instruction and the type of discussions that were taking place in his classrooms. These complaints were made to a Mr. Holman, the school Superintendent, by parents, faculty members and school board members. Shortly after the plaintiff commenced his teaching duties the Student Council had under consideration a new constitution. A member of the Student Council gave the plaintiff a copy of the proposed constitution for the student body and after reading it he advised the members of his class that the document gave the students no voice in the operation of the school system. Members of the Student Council who were not enrolled as members of his classes were invited to attend such classes and further discussion ensued about the students having no voice in the operation of the school. For three days the plaintiff discussed with a large number of students the subject of “student power” and how to achieve it. The plaintiff in discussing “student power” with his pupils and members of the Student Council who were present in his classroom stated that the only way to get anything changed was through demonstrations such as “walk outs.” The record discloses that during this period of time when the plaintiff was disseminating such information there was considerable unrest among the student body and it culminated in an attempted walk out on the part of the students. There is no evidence, however, in the record that would support a finding that the plaintiff ordered the “walk out” or approved of it. However, never before in the school’s history had such an atmosphere of unrest prevailed.

After receiving the complaints which we have mentioned regarding the plaintiff’s teaching methods and type of discussions, the Superintendent, Mr. Holman, arranged for a conference with the plaintiff on September 23, 1969. In addition to Mr. Holman and the plaintiff this meeting was also attended by a Mr. Foote, who was the Assistant Superintendent of the school. After a discussion regarding the complaints which had been made against the plaintiff, Superintendent Holman then presented some written instructions to him and requested that he abide by them. Those instructions were as follows:

“I am informing you at this time that you are to cease the activities and statements that you admit to have been making, which encourage students to disrupt the educational activities of this school, that you will stop advising and teaching student to oppose the rules and policies of the school by the use of means other than through the established channels of student government, and that you will abide by the established policies and rules which apply to the professional staff.
"You are to leave school at this time to decide if you are willing to teach here under these conditions. You will report to my office at 8:00 tomorrow morning to give me your answer.”

After receiving this written memorandum it was requested of the plaintiff that he verbally agree to abide by the instructions contained therein. The plaintiff requested that he be granted additional time to study the matter and further expressed a desire to consult with an attorney before arriving at a final decision. This request was granted and the plaintiff was given until September 25, at which time he was to reply to Superintendent Holman’s request. This date, at the request of the plaintiff, was later extended to September 26. The memorandum of instructions presented to the plaintiff concerned his activities both during the classroom sessions and outside the classroom insofar as the school was concerned, but did not pertain to activities concerning his private life.

On September 29 the plaintiff appeared before the defendant Board of Education, at which time he presented the following statement:

“I would like to start by apologizing for the inconvenience and difficulty I have caused the Board of Education and the School system, the Pekin system. The Pekin system was one of my first personal choices of the school I wanted to teach at and I do want to continue at Pekin High. I have, in the last few days, given the situation a considerable amount of thought and I am willing to conduct my classes according to the standards of the community and according to the conditions set down by the Administration which I have already agreed to. I am willing to cooperate with the Social Science Department, its’ chairman and the Administration. I realize, as a beginning teacher I will and have made mistakes. I hope you, as board members, will take into consideration I am a beginning teacher and that I will and have made mistakes. I want to teach at Pekin High School and be a good teacher.”

After making such statement the plaintiff was then asked by a Board member, if in the event the same situation were to arise at a later date involving his conduct and the teaching of his class, would he again do the same thing that he had done in the past? The plaintiff after some hesitation stated that he would and he was then dismissed from his teaching position by the defendant Board of Education.

The sole question presented for review is whether the defendant Board of Education acted capriciously, maliciously or arbitrarily in dismissing the plaintiff and thereby breached the contract of employment.

This case is not one involving an administrative review of the board’s action, nor are we concerned with the teachers tenure law. We are only concerned with whether or not there has been a breach of a teaching contract by the defendant. The School Code of our state grants to school boards the power:

“To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it * * (Chap. 122, Sec. 10 — 22.4, Ill. Rev. Stat.)

It was specifically provided in plaintiff’s contract of employment that the contract would be subject to the school laws of the State of Illinois. However, even if this proviso were absent our courts have held that the statutory provisions pertaining to the power of a school board to dismiss teachers automatically becomes part of the employment contract. (See Anderson v. Board of Education, 10 Ill.App.2d 63, 134 N.E.2d 28.) The statute in question, (Ill. Rev. Stat. ch. 122, par. 10 — 22,4) grants unto school boards great discretion when it states that the board may dismiss a teacher when in its opinion the interests of the school require it. The defendant in the case before us exercised its discretion by dismissing the plaintiff because in its opinion the interests of the school required such dismissal. The question presented is when do our courts interfere with such an exercise of discretion. It has been uniformly held that the administration of schools is within the domain of the school board and the courts will not interfere with the the exercise of the board’s power unless such exercise is shown to be capricious or arbitrary. Pickering v. Board of Education, 36 Ill.2d 568, 225 N.E.2d 1; Jepsen v. Board of Education, 19 Ill.App.2d 204, 153 N.E.2d 417; Muehle v. School Dist. No. 88, 344 Ill.App. 365, 100 N.E.2d 805.

We are aware of the fact that our state Supreme Court was reversed by the United States Supreme Court in the Pickering case but the reversal was predicated upon constitutional grounds pertaining to the right of a teacher to exercise freedom of speech when it did not affect the internal operation of the school. Pickering still correctly sets forth the law as to when the courts will interfere with the exercise of a school board’s power to dismiss a teacher and as we have stated, there will be no such interference by our courts unless the board has acted capriciously or arbitrarily.

Following this well defined law we must determine whether or not defendant’s action in dismissing plaintiff from his position was capricious or arbitrary. The record discloses that the board could have found from the evidence submitted that trouble and unrest in the Pekin school system resulted from the activities of the plaintiff. The advocacy in the classroom on the part of an instructor of teen-age students that there should be student power, demonstrations and walk outs could only lead to a deleterious effect on a school system. When complaints were received by the Superintendent as to the activities of plaintiff he arranged for a conference where the complained of matters could be discussed. The plaintiff at the conclusion of this meeting was requested to verbally agree that he would stop advising and teaching students to oppose the rules and policies of the school system. When the plaintiff requested time to think about his decision and to consult an attorney the additional time was granted. When a further request for additional time was made this request was also granted. The plaintiff was dismissed after having been granted a hearing before the defendant Board of Education and after he indicated that in the future under like circumstances he would conduct himself as he had in the past. There is nothing in the record to indicate to us malice on the part of defendant board members to the plaintiff, nor does it appear that the board’s action was impulsive, capricious or malicious.

We cannot fail to note that the plaintiff himself acknowledged that he was causing trouble in the school. In his prepared statement to the board he said: I would like to start by apologizing for the inconvenience and difficulty I have caused the Board of Education and the School system.” True, that the plaintiff before the trial court testified that he did not admit to causing any difficulty but that he was merely expressing his regret for causing inconvenience to the school board. The plaintiff apparently overlooked or had forgotten that in his prepared statement his apology was not only to the board but to the school system as well. The apology for causing difficulty in the school was meaningless when the plaintiff shortly after tendering the same stated that under like circumstances in the future he would behave as he had done in the past. We would not be justified in finding that the board acted arbitrarily in dismissing him. The board could have reasonably concluded that failure to dismiss him might have resulted in a loss of control of the Pekin school system and its educational program.

Contrary to the argument of the plaintiff, who has cited a number of Federal cases, we find no constitutional questions presented in this case and therefore the law of our state as announced by our courts is controlling. See Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, 99 N.E. 920.

For the foregoing reasons we can only conclude that the defendant did not breach its contract with the plaintiff and therefore the judgment of the circuit court of Tazewell County is affirmed.

Judgment affirmed.

ALLOY, P. J., and DIXON, J., concur.