author: Mr. JUSTICE McGLOON

text:
    J. Steven Everett, Plaintiff-Appellant, v. Board of Education of District 201, Cook County, Defendant-Appellee.
    (No. 58637;
    First District (3rd Division)
    June 20, 1974.

      Rehearing denied September 25, 1974.

      Ligtenberg, Dejong & Poltrock, of Chicago, for appellant.
    Richard F. McPartlin, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, J. Steven Everett, was dismissed from his employment as a tenured high school teacher by the defendant, Board of Education of District 201, Cook County, Illinois, upon charges and after a hearing held pursuant to The School Code. (Ill. Rev. Stat. 1971, ch. 122, sec. 24 — 12.) Plaintiff appealed the Board’s decision to the circuit court of Cook County under the provisions of the Administrative Review Act. (Ill. Rev. Stat. 1971, ch. 122, sec. 24 — 16, and ch. 110, sec. 264 et seq.) Upon review of the record, the circuit court affirmed the Board’s decision and plaintiff now appeals the decision of the circuit court.

Plaintiff raises five issues on appeal. First, he contends that the Board was without jurisdiction to act in this matter. Second, he claims that the Board’s decision was arbitrary. The last three issues raise constitutional questions relating to academic freedom, the freedom of speech, and the right to a fair hearing.

We reverse and remand.

The record on appeal reveals the following facts. Plaintiff was a tenured high school teacher at Morton East High School, Cicero, Illinois, having taught there since 1962. On January 12, 1971, he dismissed one of his classes early and allowed 12 students out of another class without passes, both actions contrary to school rules. On January 13, the next day, the principal sent him the following letter:

“Dear Mr. Everett:
I have spoken to you previously regarding the necessity of giving passes signed by you to any student leaving your class for a legitimate reason. Mr. Musil told me that on January 12, 1971 twelve students from your classes were found in the corridors during class period and the students indicated that you did not give them a pass. This letter is to direct you not to allow any student out of your class except for a legitimate reason and only then with a pass made out and signed by you.
Further, I observed and you confirmed on January 12, 1971 that you dismissed your seventh hour class early. This letter is to direct you not to dismiss any of your classes early. Follow the class schedule. If you have any question about the rules or procedures, ask Dr. Antal or me prior to deviating from procedure. Sincerely,
J. ICeith Kavanaugh”

On February 3, 1971, Mr. Everett distributed a sociological questionnaire to the students in his sociology classes as part of their study of the scientific method of gathering data. The questionnaire, which asked questions pertaining to sexual behavior and attitudes as relating to Womens Liberation, was copied directly from the February, 1971 issue of Psychology Today, a nationally known magazine which sponsored the questionnaire. The completion of the questionnaire was optional with the 95 students in the classes, and Mr. Everett mailed to the magazine the 45 anonymous responses of those students who elected to complete the questionnaire. The plaintiff did not analyze the responses of the answer sheets he relayed to the magazine.

Subsequently, the School Board found out about the questionnaire and ordered the district superintendent to investigate the matter. After investigation, the superintendent recommended that the plaintiff be dismissed from his position as a teacher at the high school.

On April 5, 1971, Mr. Everett was notified of his dismissal based upon the four charges placed against him. The first three charges related to his use of the questionnaire, which the Board felt was objectionable. Tire fourth charge was “Repeated violations of instructions with reference to the manner of allowing said students in said Respondent’s classes to leave the classroom.”

Pursuant to the statute governing the dismissal and removal of tenured school teachers (Ill. Rev. Stat. 1971, ch. 122, sec. 24 — 12), the plaintiff requested a bill of particulars and a hearing on the charges. The Board provided a four-point bill of particulars. The first three points dealt with the questionnaire and the fourth was:

“On, to-wit, January 12, 1971, approximately twelve students in Mr. Everett’s class were allowed out of the room, without being given passes by him, as required by school procedures. On the same date Mr. Everett dismissed his 7th hour class early, in violation of school procedures.”

The School Board held public hearings on the matter, found the teacher to be guilty of all charges, and made the following findings of fact:

“The Board finds that Respondent as charged in the charges filed was guilty of the following:
a) That his conduct was unbecoming, unprofessional, irresponsible and detrimental to the best interests of the students, faculty and school, in distributing, on or about February 3, 1971, a questionnaire entitled Women and Man’ to his students, and which questionnaire contained subject matter and questions dealing with sex and religion inappropriate for his students.
b) That he violated policy procedure and instructions in distributing said questionnaire to his students, without prior clearance and approval from his superior in school administration.
c) Irresponsibility and negligence in distributing said questionnaire to his students without having completely read and considered all the contents thereof.
d) Repeated violation of instructions with reference to the manner of allowing students in his classes to leave the classrooms. While the board finds that a violation of classroom pass procedure may be remediable, the Board further finds that on to-wit:
January 13, 1971, a warning notice concerning violation of these instructions was given to Respondent by Keith Kavanaugh, Principal of Morton East High School, and that on numerous occasions subsequent thereto, Respondent violated classroom pass procedure regulations.”

The circuit court of Cook County reviewed the record, heard arguments, and found that the finding and decision of the defendant Board of Education was not against the manifest weight of the evidence.

The first issue on appeal is whether the defendant had jurisdiction to act in this matter. Our initial consideration in this issue is whether the Board had jurisdiction to dismiss the plaintiff for his alleged violation of school pass procedures and class schedules, a charge the Board found to be remediable.

The School Code (Ill. Rev. Stat. 1971, ch. 122, sec. 24 — 12) provides that a tenured teacher (teacher in contractual continued service) may be removed or dismissed from his position for cause and upon charges by a school board which follows the procedural steps set forth in the statute. A board bringing charges against a teacher must serve written notice of the charges upon the teacher as a jurisdictional prerequisite to dismissal procedures. If the written notice is not properly served, it follows that the board’s actions were not within the contemplation of the statute, and therefore void ab initio. Miller v. Board of Education (1964) 51 Ill.App.2d 20, 29, 200 N.E.2d 838, 842.

For the service of the notice of charges upon the teacher to be proper, the legislature has prescribed that if the board determines that the cause for dismissal is remediable, the teacher must be formally warned, in writing, that if he does not comply with the rules he may be brought up on charges and dismissed by the board. “Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.” Ill. Rev. Stat. 1971, ch. 122, sec. 24 — 12.

In the instant case, the question arises as to whether the defendant Board of Education complied with the warning provision for remediable causes. The defendant Board argues that the principal’s letter of January 13, 1971 (set forth above), constituted the proper statutory warning. We disagree.

The principal’s letter was clearly a letter of direction, not the “reasonable warning in writing” required by the statute. In the absence of a statutory definition indicating a different legislative intention, the courts will assume that statutory words have their ordinary and popularly understood meanings. (People v. Blair (1972), 52 Ill.2d 371, 288 N.E.2d 443.) Webster’s Third New International Dictionary, Unabridged (1964), defines warning as "the action or fact of putting one on his guard by intimating danger, evil consequences, or penalties from an act or course of conduct.” Nowhere in the letter is contained any intimation that penalties such as dismissal could befall the plaintiff if he did not follow the class schedules or the pass procedures. Absent such a warning, we hold that the letter did not comply with the statutory requirement of a “reasonable warning in writing.” Without this warning relating to causes deemed by the defendant Board to be remediable, the service of notice of charges upon the plaintiff was not proper, so it cannot be said that the Board complied with the procedures set forth in section 24 — 12 of The School Code. Since this compliance did not occur, the defendant did not have proper jurisdiction over the matter to properly dismiss the plaintiff from employment for his alleged violation of pass procedures and class schedules. Accordingly, we reverse the Board’s decision.

We now turn to the issue of whether the Board’s decision to dismiss the plaintiff for his use of the questionnaire was grounded in proper jurisdiction. The first question is whether the Board found the use of the questionnaire to be remediable. If it were remediable, the plaintiff had a statutory right to a warning. The Board’s findings (quoted above) do not show that the Board made an express determination as to remediability. The defendant Board contends that because it made a finding of remediability on the pass violation matter, but did not do so on the questionnaire matter, this shows that the Board considered the problem to be irremediable, or not requiring a reasonable warning in writing prior to the service of notice of charges. We again disagree.

The recent case of Waller v. Board of Education (1973), 13 Ill.App. 3d 1056, 302 N.E.2d 190, held that a school board’s failure to make a finding of either remediability or irremediability concerning causes for dismissal of a tenured school teacher was prejudicial to the rights of the teacher so as to require reversal of the board’s decision to dismiss and remove the teacher from his position of employment.

In the instant case, we follow the holding in Waller and find that the defendant’s failure to make a determination in its finding and decision that Mr. Everett’s conduct with respect to the use of the questionnaire was either remediable or irremediable was prejudicial to the teacher’s rights to the fair hearing contemplated by the legislature in The School Code. Had the Board considered the problem to be remediable, it should have provided a reasonable warning in writing, as discussed above. On the other hand, had it considered the problem to be irremediable, it should have so stated. Without the Board’s determination on the matter the record does not clearly show that the proper procedural steps were followed by the Board. We feel that such an incomplete record is prejudicial to the teacher’s rights and requires reversal. Waller v. Board of Education, supra.

The court in Waller wrote:

“When this court reviews any decision of a circuit court which has handed down an opinion under the Administrative Review Act it is confronted with two questions: 1) Does the record show that the steps and procedures required by law were taken, and 2) If so, is or is not the decision of the board or administrative agency against the manifest weight of the evidence? If, upon examination of the record regarding the first question, the court concludes that there were failures or omissions which substantially affect the rights of the party against whom the proceedings are taken, it has no choice but to reverse.” 13 Ill.App.3d at 1058, 302 N.E.2d at 192

This court concludes that since the Board did not comply with the steps and procedures required by law for the removal and dismissal of the plaintiff froto his position as a school teacher, we must reverse the judgment of the circuit court of Cook County.

The School Code, section 24 — 12, provides:

“If the decision of the board is reversed upon review or appeal, on a motion of either party the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein.”

We remand this action to the circuit court of Cook County for such action consistent with the views expressed herein.

Having so concluded, we do not consider other issues raised in this case and express no opinion as to the issue of whether the Board erred in not confining its evidence at the hearing to the incidents specified in the bill of particulars.

Judgment reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EGAN

license: Public Domain

text:
    Noble W. Lee et al., Plaintiffs-Appellants, v. Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago et al., Defendants-Appellees.
    (No. 58459;
    First District (1st Division)
    August 5, 1974.

      Rehearing denied September 12, 1974.

      Melvin B. Lewis, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Dennis James Stolfo, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, Noble W. Lee and Palmer D. Edmunds, as taxpayers, sought to enjoin the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago, its individual members and the city treasurer of Chicago from using section 5 — 212 of the Illinois Pension Code (Ill. Rev. Stat. 1965, ch. 108%, par. 5 — 212) in computing the pensions of any policeman who had served in the armed forces after he had been placed on the civil service eligible list but before he had been certified. They contended that the act violated article IV, sections 19, 20 and 22, of the 1870 Constitution, and article IV, section 13, and article VIII, section 1, of the 1970 Constitution. The trial court upheld the validity of the act and dismissed the complaint.

Section 5 — 212 provides that in computing pension eligibility the following period shall be included:

“(d) time that the policeman was engaged in the military or naval service of the United States of America, during which he was passed over on any eligible list posted from an entrance examination, due to the fact that he was in such military or naval service at the time he was called for appointment to the Police Department, to be computed from the date he was passed over on any eligible list and would have been first sworn in as a policeman had he not been engaged in the military or naval service of the United States of America, until the date of his discharge from such military or naval service; provided that such policeman shall pay into this fund the same amount that would have been de-ducted from his salary had he been a policeman during the aforementioned portion of such military or naval service; * #

Article IV, sections 19 and 20, provide as follows:

“§ 19. The general assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the state under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; Provided, the general assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.
§ 20. The state shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to or in aid of any public or other corporation, association or individual.”

At the time the judgment was entered, sections 19 and 20 of article IV had been replaced by section 1 of article VIII of the 1970 Constitution (See Constitutional Commentary by Robert A. Helm an and Wayne W. Whalen) which provides in part:

“§ 1. General provisions.
(a) Public funds, property or credit shall be used only for public purposes.”

The plaintiffs contend, and correctly so, "that one whose induction as a City pohceman awaits the completion of his military service is not a City employee while performing military service.” Since, the plaintiffs reason, section 19 specifically prohibits payment after service has been rendered, a fortiori, compensation before service has been rendered must also be barred. The plaintiffs’ major premise, however, is bottomed on the supposition that an increase in pension rights after service is completed is always constitutionally prohibited. Such a supposition is iH founded.

In Raines v. Board of Trustees, 365 Ill. 610, 7 N.E.2d 489, the petitioner paid the amounts into a pension fund as required by statute before his retirement in 1927. After retirement he received an annuity of $400. In 1935 the act was amended, and tire petitioner paid $200 plus interest into the fund pursuant to the act. He then sought an increase in his annuity to $600. The respondent contended that the act was not meant to apply to persons who had already retired and to construe it otherwise would render it unconstitutional. The court held that the petitioner was entitled to the increased annuity as provided by the act, reasoning that the amount paid by the petitioner was a voluntary contribution to a fund under a statutory elective right rather than a compulsory deduction. It thus distinguished those previous cases which had struck down statutes granting increased pension rights to policemen who had retired and from whom compulsory contributions had previously been exacted: Porter v. Loehr, 332 Ill. 353, 163 N.E. 689; People ex rel. Kroner v. Abbott, 274 Ill. 380,113 N.E. 696.

The plaintiffs here seek to distinguish Raines by pointing out that participants in the Chicago Police Fund are pensioners rather than voluntary contractual annuitants since the deductions from their salary are mandatory. But the flaw in the plaintiffs’ argument is that the mandatory deductions are for the period after certification of employment and not before. The act before us expressly provides that an applicant has an option to pay or not for that period of time he was in military service. Once the participant exercises the option by paying the required sum, we judge, as did the Raines court, that a contractual relationship existed between the participant and the State. Raines v. Board of Trustees, 365 Ill. at 616.

There are many other sections of the Pension Code which give credit for service rendered in other positions before becoming a participant, provided, as here, the participant pays an additional sum of money including the contribution he would have made plus interest. For exam-pie, section 18 — 112 provides that under the judicial retirement system a participant may receive credit for time spent as a justice of the peace, police magistrate, master in chancery, referee in the Municipal Court of Chicago, a member of the General Assembly, a judge of the Court of Claims and State’s Attorney. Section 5 — 214 gives credit for service as a temporary police officer or while serving in the Office of Mayor, the Office of the Corporation Counsel, as an employee of the Policeman’s Annuity Benefit Fund, as the head of an organization whose membership consists of members of the Police Department, the Public Vehicle License Commission and the Board of Election Commissioners. Section 2 — 110.1 provides for credit in the General Assembly retirement system if the legislator had been an elected official in a municipality. Section 7 — 139(a) (6) provides for credit for a teacher for service previously rendered to an out-of-state local governmental body. If the act before us is constitutionally defective for the reason ascribed by the plaintiffs, it would appear that so also are the sections we have enumerated. As was said in People ex rel. Douglas v. Barrett, 370 Ill. 464, 468-469, 19 N.E.2d 340:

“The people of this State, by not challenging the long line of statutes similar to the one here considered, have signified their approval of such enactments. [Citations.] While this established custom is not conclusive of the constitutionality of the enactments, nevertheless, in determining the validity of legislative action, the uniform, continued and contemporaneous construction of the constitution given by the legislature over a long period of years and generally recognized by the public, is usually given great weight by the courts. [Citations.]”

The plaintiffs contend that section 20 has been violated because no public purpose is served by the act. At the outset we note that the legislature is vested with a large discretion in determining what is for the public good; and courts may not set aside any enactment unless it is clearly evasive of or contrary to constitutional prohibitions. People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 354, 291 N.E.2d 807.

In Hagler v. Small, 307 Ill. 460, 476-477, 138 N.E. 849, an Act granted a bonus to persons who served in the armed forces during the First World War. The court upheld the validity of the act against the contention it violated section 20 stating:

“Therefore that which tends to a greater patriotism and a greater interest in government makes for the welfare of the State as well as the Union. That the purpose to promote such a spirit is a public purpose is therefore not in the realm of debate. Nor is it within the uncertain shadow of doubt that the payments of compensation provided in this act will tend to encourage such a spirit of loyalty and patriotism. Such recognition demonstrates to those who have given service to their country that in future conflicts, if any there be, the State will not fail to appreciate such service. The erection of monuments and the awarding of swords or medals have always been recognized as means of rewarding meritorious service, and it is not questioned that the legislature may use the public funds for such purposes. While the payment of money may have in it an element of private benefit which is not found in the erection of a statue or the gift of a medal, yet it is no less a recognition of meritorious services, and does not, because it is money, become a private purpose, merely. That the purpose of this act is public and not private seems beyond debate. Numerous courts of this country have held that acts similar to the one before us tend to incite patriotism, encourage the defense of the country in future conflicts and promote the public welfare of the State, and therefore serve a public purpose. [Citations.]”

If, as the plaintiffs contend, the pension credit embodied in the act is, in fact, compensation, the reasoning of Hagler is applicable and compelling here. Moreover, the act as amended has the very practical effect of attracting qualified applicants into the police department, which is a paramilitary organization. It would encourage men to re-enter the department at the completion of their military service. The public purpose of anything that would improve a police department in any way, however slight, is self-evident. The plaintiffs concede the constitutionality of sub-paragraph (c) of section 5 — 212 which provides pension credit for certified police officers for time served in the armed forces while on leave of absence. To make the act of certification the watershed between a public and a private purpose is to elevate form over substance. We judge, therefore, that the act does not violate article IV, sections 19 or 20, of the 1870 Constitution or article VIII, section 1, of the 1970 Constitution.

The last contention of the plaintiffs is that the amendment violates article IV, section 22, of the Illinois Constitution of 1870 which prohibited the general assembly from passing local or special laws in certain enumerated areas and article IV, section 13, of the 1970 Constitution which provides:

“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.”

The plaintiffs challenge the amendment as special or local legislation because it affects only cities whose population exceeds 500,000 and thereby applies only to the City of Chicago.

In People v. Palkes, 52 Ill.2d 472, 477, 288 N.E.2d 469, the court reaffirmed the rule that “a legislative classification based upon population will be sustained where founded on a rational difference of situation or condition existing in the persons or objects upon which it rests and there is a reasonable basis for the classification in view of the objects and purposes to be accomplished.” The court upheld a penal statute which by its terms did not apply in municipalities with a population of one million, noting that because the City of Chicago is so much more densely populated than any other city in the State, special problems in relation to law enforcement exist there which justify a legislative classification applicable only to that city.

It is presumed that the legislature surveyed the conditions existing in the population centers of this State and pursued the various means available to the General Assembly not available to the courts in informing itself of the conditions before enacting a classification based on population; (Du Bois v. Gibbons, 2 Ill.2d 392, 399, 118 N.E.2d 295.) Those who attack the validity of a classification have the burden of proving that it is unreasonable or arbitrary. (People ex rel. Vermilion County Conservation District v. Lenover, 43 Ill.2d 209, 219, 251 N.E.2d 175.) In Gaca v. City of Chicago, 411 Ill. 146, 103 N.E.2d 617, the court upheld the constitutionality of an act providing for indemnification of policemen of municipalities of 500,000 or more for any judgments against them arising in the line of duty. The court said at page 154:

“Was the legislature, therefore, in the instant case, unreasonable in giving the policemen of Chicago additional security because their problems are essentially different from those of policemen in other cities of Illinois? We do not think that it was unreasonable for the General Assembly to conclude that a policeman’s job in the city of Chicago is fraught with hazards uncommon to any other city in Illinois. The people of the State of Illinois are vitally interested in law enforcement in the city of Chicago. By increasing the wages and the security of members of their police department an improvement in the personnel of that law-enforcement agency will surely follow.”

Preliminary to the passage of the present legislation it must be presumed that some committee of the legislature made a study and survey of conditions in Chicago to find out if the legislation was warranted; the serious crime problems of Chicago have become even more intense than at the time that Gaea and Du Bois were decided; and the plaintiffs have not shown that it is unreasonable or arbitrary, other than to suggest that the same benefits might with equal justification be given, for example, to firemen, policemen in other municipalities and prison guards. A similar argument was rejected in Littell v. City of Peoria, 374 Ill. 344, 29 N.E.2d 533, and People ex rel. Moshier v. City of Springfield, 370 Ill. 541, 19 N.E.2d 598, where minimum wage statutes applicable only to policemen and firemen in municipalities of designated populations were upheld.

The plaintiffs have cited two cases in support of their argument: Lee v. Retirement Board, 31 Ill.2d 252, 201 N.E.2d 361, involved a pension credit law enacted in 1959 which applied only to persons on an eligible list posted in 1938 even though other eligible lists had come into existence since that time. The invalidity of the act was conceded by the defendants, but they urged that the act then be construed to read as the present act is worded. This the supreme court refused to do. Hence, the present act followed. In re Petition for Removal of Struck, 41 Ill.2d 574, 244 N.E.2d 176, involved a statute that provided for recall of elective officials under the commission form of city government. The court held that there was no rational basis for requiring closer control over commission elected officials than the elected officials of other municipalities. Neither case persuades us to accept the plaintiffs’ argument here. The judgment of the circuit court is affirmed.

Judgment affirmed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. JUSTICE DEMPSEY

text:
    Betty Wilson, Plaintiff-Appellant, v. Richard LeFevour, Defendant-Appellee.
    (No. 57665;
    First District (3rd Division)
    August 15, 1974.
    Betty Wilson, pro se.

    William J. Harte, of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

In a space of 3 years, September 1964 to September 1967, the plaintiff, Betty Wilson, was represented by 12 different attorneys in divorce proceedings between her husband and herself. One of the attorneys, the defendant Richard LeFevour, represented her for less than 2 months— from about November 25,1965, to sometime in January 1966.

In August 1971 Mrs. Wilson filed a complaint against 11 of the attorneys. She accused them of malpractice and of injuring her mental and physical health. The general accusation was that they exacted retainer fees from her, but did nothing to force her husband to pay accumulated alimony and child-support payments or to obtain an adequate financial settlement. She asked $50,000 in damages from each.

As to LeFevour, she conceded that he was the one lawyer who took her case without a fee and that he made a court appearance for her, but she charged, nevertheless, that “* * * once again nothing was mentioned about money for me. At this time my husband started a counter-suit for desertion. At the time of the next court appearance I called Mr. LeFevour’s office and was told he was in California.” She alleged that LeFevour did not tell her beforehand that he would be away and that she went to court unattended by counsel. In an amended complaint she made the additional allegation that during the period that she was represented by him, over $500 in bills accumulated which should have been paid by her husband, but that LeFevour did nothing to procure payment.

LeFevour filed motions to strike the amended complaint for failure to state a cause of action and to dismiss on the ground that the statute of limitations had run. The motions were granted and the cause was continued as to the remaining defendants. The court found that there was no reason to delay an appeal from its ruling.

This cause of action, if any, arose in January 1966, but the complaint was not filed until August 1971, which was past the limitation of 2 years for a tort action and the limitation of 5 years for a suit based on an oral contract. (Ill. Rev. Stat. 1969, ch. 83, pars. 15 and 16.) Mrs. Wilson argues, however, that her action is not barred by the Limitations Act because section 22 of that Act is applicable to the facts of this case. Section 22 states:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.” (Ill. Rev. Stat. 1969, ch. 83, par. 23.)

Although the plaintiff asserts on appeal that there was fraudulent concealment of her cause of action, she nowhere states any fact which LeFevour kept from her or misrepresented to her. She neither alleged nor proved fraudulent conduct on Iris part.

A party seeking to avail himself of section 22 of the Limitations Act must allege facts that affirmatively show fraudulent concealment of the cause of action by the defendant which prevented the plaintiff from discovering that she had a cause of action. (Bush v. Continental Casualty Co. (1969), 116 Ill.App.2d 94, 253 N.E.2d 619.) To substantiate such an allegation, a plaintiff must prove that the defendant made representations which were known by him to be false, that they were made to deceive the plaintiff, and that the plaintiff believed the representations and relied upon them to his damage or injury. Edwards v. Chicago & Northwestern Ry. Co. (1967), 79 Ill.App.2d 48, 223 N.E.2d 163.

The plaintiff believes that she was damaged by the defendant’s negli- ■ gence in not pressing for the money owed her by her husband in his first court appearance and by his not attending a second hearing. She also protests his not being on hand when a counter-complaint was filed against her and when a guardian ad litem was appointed for her. The only viable allegation of negligence would be his non-appearance at the second hearing, but this does not mean that she was legally damaged by his absence.

The real harm in this case was that the defendant’s absence left the plaintiff feeling unprotected and lost in the midst of legal proceedings which she did not understand. That feeling of helplessness contributed to her ultimate conviction that lawyers were indifferent to her plight and that she would be better off handling her own case on appeal.

Certainly the general allegations of the plaintiff present a regrettable picture and evoke sympathy for her. It is disturbing that a woman must go through 11 lawyers without finding one in whom she has confidence. But, of course, we do not know the other side of the picture and may never know because of the plaintiff’s delay in filing her complaint.

The plaintiffs complaint did not state a cause of action against LeFevour and it also was barred by the statute of limitations. The order dismissing the complaint is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE STAMOS

text:
    Alan Drey Company, Inc., Plaintiff-Appellee, v. Generation, Inc., Defendant—(McGraw-Hill, Inc., Citation-Defendant-Appellant.)
    (No. 59320;
    First District (2nd Division)
    August 6, 1974.

      Rehearing denied October 9, 1974.

      George W. Hamman and Muriel B. Irwin, both of Mayer, Brown & Platt, of Chicago, for appellant.
    Robert J. Meyers, of Barrett, Kiley and Meyers, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff-appellee, Alan Drey Co., Inc. (hereinafter Alan Drey), recovered a judgment by confession against defendant, Generation, Inc. (hereinafter Generation) in March 1971, in the amount of $98,376. Shortly thereafter, defendant moved to vacate the judgment. While this motion was still pending and while all proceedings on the judgment were stayed, defendant, Generation, Inc., sold subscription lists to McGrawHill, Inc. (hereinafter McGraw-Hill), for $150,000 cash. After Drey’s judgment against Generation had been confirmed and in a supplementary proceeding, plaintiff sought judgment against McGraw-Hill, citation-defendant, on the theory that the transfer by Generation was a fraudulent conveyance and that McGraw-Hill, having notice of the fraudulent intent of the vendor, was a participant in the fraud. After a hearing, the trial court found that McGraw-Hill had notice of the fraudulent intent of defendant, Generation, in making said sale, and entered judgment against McGraw-Hill in the amount of $98,376. The vendee, McGrawHill, brings this appeal.

In rendering its decision the court premised its findings of fact upon the pleadings, documentation, affidavits, and the citation examinations of Stuart Handler, president of Generation, and Ralph Blackburn, an officer of McGraw-Hill. From the record, the following factual setting emerges:

In the course of its business, Generation, a business-magazine publisher, purchased lists of potential subscribers from Alan Drey, a list broker, and executed a promissory note in lieu of immediate payment. The note was subsequently defaulted, and on March 9, 1971, Alan Drey took judgment by confession against Generation in the amount of $98,376.68. Stuart Handler received a letter, dated March 10, 1971, from Alan Drey’s attorney, warning the former that judgment had been confessed, execution placed with the sheriff, and that the judgment was then a lien on the assets of Generation. On March 19, 1971, Generation filed a motion to vacate the confessionary judgment, but no decision on the motion was made until subsequent to the events in question.

Thereafter, apparently Generation and Alan Drey unsuccessfully engaged in negotiations in attempting to reach some solution by which Generation could pay the monies due Alan Drey. Generation’s financial difficulties continued and the last issue of the magazine was published in July 1971. Stuart Handler admitted that Generation was insolvent during the period March 9, 1971, through the date of the alleged fraudulent transfer, September 30,1971, and that during the period July, August, and September 1971, the only substantial unencumbered asset owned by Generation was its customers’ subscription lists of its “Generation Magazine.”

In an attempt to raise money Generation commenced calling upon other people in the industry endeavoring to sell the names and addresses on its subscription and prospect list. In late July 1971, Stuart Handler-contacted Ralph Blackburn, a representative of McGraw-Hill, and offered to sell the lists for $500,000. On August 5, 1971, Blackburn conferred with Handler regarding the possible purchase of the lists. On or about that same day, Blackburn, who had previously learned of the outstanding judgment through a Dun and Bradstreet report, called John E. McNichols, an officer of Alan Drey, to inquire whether the judgment was still effective. McNichols assured Blackburn that Alan Drey was still a judgment creditor of Generation. Blackburn also related to McNichols that Handler had .approached McGraw-Hill with an offer to sell the subscription list. Shortly thereafter, McNichols phoned Handler to find out “what was up.” Handler assured McNichols that “they [Generation] are not going out of business nor are they selling.”

Subsequent to the conference of August 5, a purchase price of $150,000 was agreed upon. On August 16, 1971, Blackburn sent a letter to Handler requesting that Generation and Handler, individually, protect McGrawHill from any claims in connection with the purchase of the lists; Blackburn admitted that he had Alan Drey in mind when he inserted the indemnity paragraph. The requested indemnification was not, however, given. Blackburn further admitted that he had reservations about the transaction, and at one point, inquired of an officer of the Continental Illinois National Bank and Trust Company regarding Generation’s solvency. No definite answer was given. However, based upon his knowledge that the subject matter of the negotiations was the sole customers’ subscription list of Generation, and upon his knowledge of Generation’s desire to sell the same, Blackburn assumed that Generation was in severe financial straits. No officer or agent of McGraw-Hill ever asked for a list of Generation’s creditors, and Blackburn admitted that no notice,' other than the telephone conversation of August 5, was given to Alan Drey prior to closing the sale.

Stuart Handler admitted that he had requested Blackburn to keep the proposed sale confidential, and Blackburn told Handler that he would. The reason for keeping the negotiations confidential, Handler explained, was to obtain the best possible price for the lists, and also to prevent Generation’s creditors from interfering with any proposed sale. Handler admitted that the sale of the lists put Generation out of the magazine publishing business.

Prior to the closing of the sale on September 30, 1971, Generation established a secret trust checking account at the First National Bank of Chicago, the legal title to which was held in the name of a law firm. At the closing of the sale, Generation received McGraw-Hill’s check for $142,853.42, and at Handler’s request, McGraw-Hill also delivered two other checks in the sums of $4,481 and $2,656 to other creditors of Generation. Immediately after the sale, Generation deposited the sale proceed in the secret trust account, and subsequently, some $40,000 from this account was used by Generation to purchase stock in a new business venture, the Allen Bennett Company, formed in July" 1971.

Stuart Handler admitted that he acquired 45% of the shares in the Allen Bennett Company in his own name, and that Robert Tomarkin, another officer of Generation, received 45% of said shares in his own name, for which neither Handler nor Tomarkin paid any cash consideration. The remaining 10% of the shares were registered in the name of Generation.

Apart from the $40,000, the remainder of the proceeds from the trust account was paid to general creditors, for back salaries, taxes, and general operating expenses. However, none of the proceeds were paid to Alan Drey, a judgment creditor. Handler explained that he was under the impression that, while the motion to vacate the confessionary judgment was still pending, Alan Drey was not considered a creditor; the record reveals that Generations motion to vacate was not denied until January 21, 1972.

Citation-defendant’s initial contention is that, because the statutes which govern supplementary proceedings require that a third party having an interest in the subject property be given a trial (see Ill. Rev. Stat. 1971, ch. 110, par. 73(5), ch. 62, par. 42), the procedure followed here below must be analogized to the procedure governing a motion by plaintiff for summary judgment. The predicate of defendant’s argument is that, in rendering its decision, the trial court did not hear evidence presented in open court, but relied upon the pleadings, citation examinations, affidavits, and documents submitted by the parties. Defendant argues that since it was not afforded a trial, our standard of review is limited to a determination of whether the matters considered by the trial judge give rise to a genuine issue of material fact.

Plaintiff contends that a citation examination pursuant to Supreme Court Rule 277(e) (Ill. Rev. Stat. 1971, ch. 110A, par. 277(e)) adduces evidence, and that, therefore, the citation hearing was equivalent to a bench trial.

In Meggison v. Stevens, 21 Ill.App.3d 505, 316 N.E.2d 297 this court recently had occasion to pass upon the nature of a supplementary proceeding in relation to a third party who claims an interest in the subject property. In that case, citations to discover assets were issued against the judgment debtor and his wife. The testimony contained in the citation examinations revealed that the citation defendants, who owned a home in joint tenancy, gratuitously conveyed their interests in the property into a land trust of which the wife was the sole beneficiary. At the time of this transfer, the husband was indebted to a third party, but the debt had not yet been reduced to judgment. At the hearing, on the judgment creditor’s subsequent petition for relief, supported by the citation examinations, the trial judge was about to enter his findings, when counsel for the wife objected that he had not as yet had any opportunity to place the judgment debtor on the stand. The judge referred to his impression that the matter had been submitted to him for his disposition on the pleadings and the citation examinations, and further took the position that counsel had participated in the citation examination of the judgment debtor, where he had had full opportunity to obtain the testimony of the examinee. The court then entered its finding that the conveyance by the husband-judgment debtor to the land trust was a transfer made with the intention of defrauding creditors, and ordered that the wife execute an assignment of 50% of her beneficial interest in the land trust. On appeal, the wife alleged that she was denied an opportunity to establish her defense in that the trial court refused to permit her husband, the judgment debtor, to testify. In reversing the judgment, this court held:

“The statutes and rules which govern supplementary proceedings all contemplate that a third party claiming an interest in the property involved must be given a ‘trial * * * as in other civil cases’; hence, must be given a full opportunity to present and maintain his or her claim. See Ill. Rev. Stat. 1971, ch. 110, par. 73(5); ch. 110A, par. 277(e); ch. 62, pars. 42, 43. As a third party citation respondent and a defendant in plaintiff’s subsequent petition for relief, appellant is in the position of a garnishee asserting her own property right in the subject premises.
The record in this case shows that appellant was not afforded such an opportunity despite her request for it. Her citation examination does not itself constitute such an opportunity since such examination is simply a preliminary discovery proceeding which might elicit facts which could serve as the basis for a subsequent petition for relief, which, as to the third party, would constitute the initial pleading in tire nature of a complaint. Appellant filed an answer which put the cause at issue.
While the parties by agreement may stipulate the pleadings, citation examinations and evidence which may be considered by the court in resolving the issues before the court, the record in this case contains no evidence of any such agreement by the parties or their counsel, and trial counsel for appellant denied any such agreement and expressly asked to put on a witness for the appellant. We think it was error to refuse to permit him to do so, because such refusal denied appellant as a third party a ‘trial * * * as in other civil cases.’ 21 Ill.App.3d 505. See Roy Strom Excavating & Grading Company v. National Bank of Albany Park (1972), 4 Ill.App.3d 561, 281 N.E.2d 427.

In the present case, as in Meggison, the trial judge acted in the belief that the parties had submitted the case to him for disposition on the record; and, similarly, the judgment order reveals that the “request of McGraw-Hill, Inc. to present further evidence” was denied. However, there are significant procedural differences in the instant case which distinguish it from the holding in Meggison. In Meggison, we noted that the parties by agreement may stipulate to disposition of the issues based upon the pleadings, citation examinations, and other evidence. Here, an agreed order, dated July 13, 1972, and signed by Generation, McGrawHill and Alan Drey, provided that the citation examinations were to be filed in “connection with the Petition and in connection with the Citation Proceedings,” and further provided for the setting of a hearing date. At the hearing, the report of proceedings reveals that the trial court had (1) considered the matter as submitted by stipulation, and (2) rendered a decision in its capacity as trier of fact. Although counsel for McGrawHill participated in a colloquy after rendition of the decision, no complaint was made about the fact that the trial judge had officiated in its capacity as trier of fact, or that McGraw-Hill had been denied an opportunity to present its defense. From the record, it appears that the only time counsel for McGraw-Hill took any affirmative action in this regard, was at a time subsequent to the hearing in which the findings were made. The judgment order recites that “the request of Defendant, McGrawHill, Inc. to present further evidence be and the same is hereby denied.” (Emphasis added). We note that the word “request” was substituted for the word “motion”; nowhere in the common-law record or report of proceedings do we find any motion by defendant, either oral or written, to present further evidence. Moreover, the words “further evidence” imply that defendant had regarded the previous submission of the citation examinations as evidence, and not merely as discovery. In light of the agreed order signed by the parties, defendant’s failure to object when it knew the court was functioning as the trier of fact, and the wording of the judgment order itself, we think defendant’s contention is dissimilar from that made in Meggison. Here, the agreed order fairly indicated to the parties and the court that the cause was submitted for final disposition; yet McGraw-Hill made no objection until after a decision on the merits had been rendered. A party on appeal may not urge error committed in pursuance of his stipulation and acquiescence in the proceedings and upon which the lower court was induced to act. (See Powley v. Dorland Building Co. (1939), 281 N.Y. 423, 24 N.E.2d 109.) The “request” here came too late to vitiate the purport and effect of the order agreed to by the parties. As we view the proceedings below, the cause was submitted for disposition upon agreed facts, with the parties disputing the inferences to be drawn from the facts and the law applicable thereto. Accordingly, the only question on review is whether the facts-as stipulated sustain the judgment of the trial court. Castle Concrete Co. v. Fleetwood Associates, 131 Ill.App.2d 289, 268 N.E.2d 474.

Under our Statute of Frauds a conveyance is void as against creditors if it is shown that the transfer was made with the intent to disturb, delay, hinder or defraud creditors (Ill. Rev. Stat. 1971, ch. 59, par. 4), and, in the case of a purchaser for valuable consideration, that the purchaser had notice of the fraudulent intent. Ill. Rev. Stat. 1971, ch. 59, par. 5.

The question of fraudulent intent (or lack of good faith) is a question of fact, which must be established by extrinsic proof. Direct evidence is not essential, however, for said intent may be established by circumstances which indicate its existence. (Thompson v. Williams, 6 Ill.2d 208, 127 N.E.2d 457.) Among the factors which have come to be recognized as indicia of fraud and the lack of good faith are the following: (1) the debtor is insolvent at the time of conveyance or is rendered insolvent by the conveyance (Thompson v. Williams, supra.); (2) a conveyance after judgment and while a stay of proceedings is in force (37 C.J.S. Fraudulent Conveyances §82 (1943); See Phillips v. Kesterson, 154 Ill. 572, 39 N.E. 599); (3) a secret trust created in favor of grantor (Sherwin-Williams Co. v. Watson Industries Inc., 277 Ill.App. 585); (4) a reduction of substantially all assets for cash (Hanchett v. Goetz, 25 Ill.App. 445); and (5) debtor sells his only unencumbered asset (Boies v. Henney, 32 Ill. 130).

These indicia or “badges of fraud” are not conclusive of fraud, but merely afford a basis from which its existence may be properly inferred. They are strong or weak according to their number and concurrence along with other attendant circumstances. (Zwick v. Catavenis, 331 Ill. 240, 162 N.E. 869.) Although the inferences to be drawn from such indicia may be overcome by establishing the bona f,des of the transaction, where the conclusion necessarily follows that the particular conveyance was made with the fraudulent intent to delay, hinder or defraud creditors, it can make no difference that, with such purpose existing, there were combined other motives at the time of making the conveyance. Phillips v. Kesterson, supra.

Looking to the present cause, we hold that the evidence in the record is sufficient to support the finding that Generation intended to hinder, delay or defraud the plaintiff. In so holding we note that the circumstances surrounding the transfer exemplify various indicia of fraud from which a finding of fraudulent intent may be inferred. In this regard, the evidence reveals that Generation was insolvent when the confessionary judgment was procured and that the company continued to be insolvent prior to and at the time of the sale to McGraw-Hill. During this same period of time, Generation knew that plaintiff was a judgment creditor and instituted action which stayed the proceedings and any possible execution. While the proceedings were stayed, Generation negotiated for the sale of its sole substantial asset, the subscription lists, for cash; the effect of such sale would be to place Generation out of the magazine-publishing business. Further, at a time when Generation and McGrawHill were negotiating the sale, Handler affirmatively represented to an officer of the plaintiff that no sale of the lists was contemplated by Generation nor was Generation contemplating going out of business. However, on September 30, 1971, the subscription lists were sold for cash, the larger part of which was deposited in a secret trust account. Subsequently, some $40,000 was diverted from the trust account as an investment in a new business venture with the principal officers of Generation, Stuart Handler and Robert Tomarían, individually owning 90% of the common stock of the venture.

The sum total of this factual setting depicts a secretive transaction the effect of which was to convert Generations only substantial asset into cash which could be more easily placed beyond the reach of creditors. (See Hanchett v. Goetz, supra.) We cannot say, as a matter of law, that the trial court erred in finding that Generation conveyed said asset with the intent to hinder, delay, or defraud the plaintiff.

Merely showing a fraudulent intent on the part of the transferor is insufficient, however, to impose liability on the transferee. The transferee must be a participant in the fraud rather than a bona fide purchaser. To constitute a bona fide purchaser from a fraudulent transferor, he must have purchased the property for valuable consideration, without notice of the fraud, and he must be innocent of any purpose to further the fraud, even to protect himself. (Ill. Rev. Stat. 1971, ch. 59, par. 5; 20 Ill. L. & Pr. Fraudulent Conveyances § 192 (1956), and cases cited therein.) To be regarded as a participator in the fraud, it is not necessaiy that the purchaser have actual knowledge of the debtor’s fraudulent intent, but merely a knowledge of facts and circumstances sufficient to excite the suspicions of a prudent man and be put on inquiry, or to lead a person of ordinary perception to infer fraud. Hanchett v. Goetz, supra.

As to the transferee, McGraw-Hill, the record reveals that Blackburn, an officer of McGraw-Hill, had knowledge of tire outstanding judgment against Generation prior to his first meeting with Handler on August 5, 1971; he also had knowledge that the judgment arose in connection with Generation’s purchase of the lists of potential subscribers from Alan Drey. During the course of the Augúst 5 meeting, Blackburn mentioned the Alan Drey judgment and Handler responded by stating that his legal counsel was attempting to have it “thrown out of court.” At the same meeting, Blackburn agreed to keep the negotiations confidential. Black-bum was aware that Generation was in “severe financial straits” in August of 1971, and Handler testified that Blackburn “sensed or Imew that we were in trouble * * * that we had to sell and sell quickly at a price that we could get.” On August 6, Blackburn called Jack McNichols, an officer of Alan Drey, stated that he had been approached by Generation with an offer to sell the lists, and inquired if the judgment was still effective. McNichols assured Blackburn that the judgment was still effective. Subsequently, Blackburn conferred with McGraw-Hill’s legal counsel concerning the Alan Drey judgment; although no “decision” was made concerning the possible effect of the judgment on the purchase of the lists, counsel for McGraw-Hill did advise that indemnification should be requested to protect McGraw-Hill from any “claims” in connection with the purchase of the subscription lists. Blackburn admitted that he had Alan Drey in mind when he requested the indemnity provision.

In light of the foregoing, we conclude that the evidence sufficiently supports the finding that McGraw-Hill knew or should have known of Generation’s fraudulent intent and was not a bona fide purchaser within the meaning of section 5 “An Act to revise the law in relation to frauds and perjuries” (Ill. Rev. Stat. 1971, ch. 59, par. 5). McGraw-Hill, in arguing the bona fides of the transaction on its part, relies upon the fact that Blackburn telephoned McNichols and informed him that Generation had approached McGraw-Hill with an offer to sell the subscription lists. However, the notice imparted to Alan Drey was merely that a preliminary offer was made, and was followed by an inquiry as to the validity of the Alan Drey judgment. No attempt was made by Blackburn, either during the telephone conversation or any time subsequent thereto, to ascertain Alan Drey’s position should McGraw-Hill decide to purchase the lists. In fact, the natural inference drawn from the telephone conversation is that McGraw-Hill, having verified the existence of the judgment, would no longer be interested in the purchase of the lists. No further inquiries were made despite the fact that McGraw-Hill knew of die judgment, knew that it arose in connection with the sale by Alan Drey of lists of potential subscribers to Generation, knew that Generation was in financial difficulties, and knew that Generation wanted to keep the sale “confidential.” Furthermore, it cannot be argued that McGraw-Hill, armed with such knowledge, labored under the impression that the sale would be entirely proper. The testimony reveals that Mc-Graw-Hill had serious misgivings about the proposed purchase, yet made no attempt to inform Alan Drey of its course of action. Under these circumstances, we cannot say that the telephone conversation between Blackburn and McNichols established, as a matter of law, the bona fides of the transaction. Accordingly, the judgment is affirmed.

Judgment affirmed.

HAYES, P. J., and LEIGHTON, J., concur.


author: Mr. JUSTICE MEJDA

text:
    Jerome Goldstick, Plaintiff-Appellee, v. Lu Saporito, n/k/a Lu Astrene, Defendant-Appellant.
    (No. 57925;
    First District (3rd Division)
    August 15, 1974.
    Constantine N. Kangles, of Chicago, for appeHant.
    Jerome Góldstick, pro se.

   Mr. JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from an order entered July 17, 1972, denying a motion by defendant to vacate a default judgment entered against her on February 24, 1972. The sole issue is whether the trial court erred in denying defendant’s motion to vacate. The pertinent facts follow.

Plaintiff was attorney for defendant and her former husband, Salvatore Saporito, in several unrelated matters. On October 26, 1971, plaintiff filed a complaint against defendant for alleged fees of $390. Defendant filed a pro se appearance on November 29, 1971, and was then informed that the cause was set for trial on December 13, 1971. On December 6, 1971, plaintiff moved for leave to amend the complaint by adding Salvatore Saporito as a party defendant pursuant to notice of motion sent to defendant. By letter dated December 7, 1971, plaintiff advised defendant that the motion was continued to December 13, 1971, and that the matter would not be tried on that date because of his request to amend the complaint and for summons to issue against her former husband. A copy of the amended complaint was enclosed. On December 13, 1971, plaintiff’s motion was granted, amended complaint filed, and the cause set for trial on February 24, 1972.

Salvatore Saporito failed to file an appearance and on June 20, 1972, a default judgment for $250 was entered against him. Defendant did not appear at trial on February 24, 1972, and a default judgment was entered against her for $390 and costs. On March 27, 1972, plaintiff wrote to defendant, enclosing a copy of a memorandum of judgment and demanding payment thereof.

On April 25, 1972, defendant filed a verified petition (hereafter referred to as “April petition”) to vacate the default judgment against her and to set a trial on the merits. Defendant alleged her pro se appearance; plaintiff’s letter of December 7 that trial would not be held on December 13, 1971; that after December 13 plaintiff advised defendant by telephone that he would inform her of the date set for trial; that plaintiff did not inform her of the date set; that she learned of the default judg- ~ ment when she received a letter from plaintiff dated March 27, 1972. Defendant further alleged that lacking funds and not knowing any other attorney, she was unable to retain counsel until April 18, 1972; and that she has a meritorious defense. Attached to the April petition were exhibits including copies of the letters dated December 7, 1971 and March 27, 1972. Plaintiff filed a reply to defendant’s April petition which denied the allegations and specifically asserted that he did inform defendant that the case had been set for trial on February 24, 1972, and that the term time had expired.

On May 2, 1972, defendant was granted leave to file an amended petition. On June 5, 1972, the trial court entered an order that the “motion to vacate” be denied. No appeal was taken from that order. On June 13, 1972, defendant filed a document entitled “Motion to Vacate Judgment” (hereafter referred to as “June motion”) incorporating by reference and having attached thereto the April petition, a verified additional petition, an affidavit by defendant’s present attorney, and Exhibits “A” through “M".

In the additional petition defendant alleged that plaintiff’s complaint was based upon two separate claims: a claim of $150 which was disputed only as excessive, and a claim of $250 which represented fees for services rendered to Salvatore Saporito in defending an action brought against him by a former wife, Annette Saporito. Defendant alleged that the legal services in the second claim were entirely on behalf of her former husband and at his request alone, and that defendant never agreed to pay or assume the expenses incurred in defending that action.

The affidavit of defendant’s present attorney stated that the continuance on May 2, 1972, relative to the April petition, was granted to allow defendant to plead her specific defense to the $250 claim; that the additional petition was presented to the trial court on June 5, 1972, but that the court file in the action by Annette Saporito against Salvatore Saporito was misfiled and not available until June 7, 1972. The attorney further alleged that an examination of the contents of the court file in the prior action, copies of which were attached to the affidavit as exhibits, indicated a confession of judgment on a note executed in 1967 by Salvatore Saporito, payable to Annette Saporito, prior to his marriage to defendant; and that the appearance filed therein reflected plaintiff’s representation of Salvatore Saporito only. Plaintiff filed no responsive pleading to the June motion. The motion was denied by the trial court on July 17, 1972, from which order of denial defendant now appeals.

Plaintiff filed a motion to dismiss the instant appeal, alleging inter alia that no appeal was filed within 30 days after February 24, 1972, the date the judgment was entered; that no notice of appeal was filed as to the order of June 5, 1972, denying defendant’s April petition to vacate the judgment; that all appeal rights of the defendant have expired; and that this court is without jurisdiction. The motion was taken with this appeal.

A trial court is without authority to grant relief from final judgments after 30 days from the entry thereof, except as provided in section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72). Defendant’s April petition to set aside the default judgment was verified and was filed more than 30 days after the judgment was entered, and it will be construed as having been filed under section 72. (Trisko v. Vignola Furniture Co. (1973), 12 Ill.App.3d 1030, 299 N.E.2d 421.) An order entered denying or granting any of the relief prayed for in a section 72 is appealable. Where no timely appeal is taken from a final order this court is without jurisdiction to consider the propriety of that order or any subsequent order upholding it. Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill.App.3d 688, 306 N.E.2d 510; In re Estate of Ireland (1971), 132 Ill.App.2d 157, 267 N.E.2d 681.

In Werth, supra, we held that the trial court erred in entertaining a second petition and vacating an ex parte judgment on facts similar to those in the instant case. Defendants’ failure to vacate or appeal an order denying a prior petition which had been filed more than 30 days after the entry of an ex parte judgment precluded them from filing a second petition to vacate the same judgment. The prior order being in full force and effect, defendants could and should have appealed from the prior order.

In the instant case, the trial court had considered defendant’s prior April petition and on June 5, 1972, denied the petition which sought to vacate the judgment of February 24,1972. The defendant failed to vacate or appeal from the order of June 5, 1972, which was a final and appeal-able order. Her June motion was filed on June 13, 1972, and again sought to vacate the same judgment, which motion was denied on July 17, 1972. Defendant is precluded from filing the subsequent motion. The trial court did not err in denying the motion on July 17, 1972. Defendant could and should have appealed from the final order of June 5, 1972. No appeal having been taken from such final order, this court is without jurisdiction to consider the final order or the subsequent order upholding the original determination. (Martin v. Masini (1967), 90 Ill.App.2d 348, 353, 232 N.E.2d 770.) We agree with' plaintiff that the appeal must be dismissed.

For tire foregoing reasons plaintiff’s motion to dismiss the instant appeal is allowed.

Appeal dismissed.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    Erica Crohn, a Minor, by Maurice M. Crohn, Her Father and Next Friend, Plaintiff-Appellant, v. Congregation B’Nai Zion et al., Defendants-Appellees.
    (No. 58169;
    First District (3rd Division)
    August 15, 1974.

      Howard W. Minn, of Chicago (James A. Lindmark, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Kevin T. Martin, of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

This action was commenced by Erica Crohn, a minor, by Maurice M. Crohn, her father and next friend, to recover damages for personal injuries sustained by the minor while attending a summer day camp operated by the defendants. Upon motion of the defendants, at the close of plaintiff’s evidence, the trial court directed the jury to return a verdict for the defendants and against plaintiff. Plaintiff appeals from the judgment entered upon that verdict.

The sole issue presented for review is whether the trial court erred in directing the jury to return a verdict for the defendants.

At the trial, plaintiff’s evidence was brief, and the facts stated on appeal are not disputed. During the summer of 1961, defendant Congregation B’nai Zion, a religious corporation, operated the defendant Congregation B’nai Zion Day Camp. Plaintiff — then 7 years of age — was' enrolled by her parents, and paid a fee. On August 14, 1961, the day camp was conducted at a Cook County forest preserve north of the city of Chicago. Plaintiff attended the camp and sustained a fractured nose as a result of being hit with a baseball bat which was swung by one Yaer, a 10-year-old boy who was also attending the camp.

On the day in question approximately 150 children attended the day camp. During the morning hours they were engaged in various recreational activities, including softball, in an open field about 200 yards wide and 30Q yards in length. The children were separated into groups of 10 to 15, each group being supervised by a counselor, and some by two counselors. At noon the groups retired from the playing field to eat lunch at p:cnic tables located nearby. The table nearest the playing field was 20 to 30 feet from the edge of the field. The space between the field and the tables was sparsely populated with trees. . .

Plaintiff, who was 18 years of age at the time of trial, testified that it' was the lunch hour and she was returning from the water pump with a glass of water, watching it to make sure it didn’t spill. She remembered seeing trees and picnic tables in front of her. As she was near a tree she heai'd someone shout, and she was hit on the nose. She did not remember seeing what hit her before she was hit. She saw other children within 3 or 4 feet of her. Jay Kleiman was a junior counselor. Plaintiff had not been at his picnic table when eating lunch. Her mother and two physicians then testified as to her injuries.

Jay Kleiman’s evidence deposition was read to the jury. He testified that on August 14, 1961, the day of the accident, he was 15 years old; that during the lunch hour “two to four” baseball bats were lying loose on the ground within 15 feet of the whole play area, approximately 25 feet from the picnic table nearest the field; that he was the only counselor within a 25-foot radius of the accident; and that he was seated at a table, eating lunch and facing in the direction from which the minor plaintiff approached. He stated that within less than one minute the following events occurred: he saw Yaer pick up one of the bats and he yelled to' him to put it down; Yaer did not heed him and began to swing the bat as one would to “warm up”; either before or immediately after he saw Yaer swinging the bat, he noticed the plaintiff walking toward him and approaching Yaer from behind; plaintiff was walking while looking down at a cup of water she was holding; Kleiman attempted to get up from the table as the plaintiff walked behind Yaer, but before he could do so she was struck in the face by the bat.

Kleiman further testified in his deposition that safety was generally discussed at counselors’ meetings; that he did not recall whether baseball safety was specifically discussed; that the children were told at random not to swing bats or to take them from the playing field; and that he could not recall whether the entire group was told this on the day in question. Kleiman stated in his deposition that at the time there was no organized activity other than lunch, and the children were allowed to move about the area freely. He testified that there were some regulations promulgated by the Congregation concerning storage of equipment which was usually kept in a shed next to the playing field. When organized activity was planned for the afternoon the equipment was left in bags on or near the field. When no afternoon activity was anticipated, the equipment Was stored either in the shed or in the school bus. On the day in question a baseball game was to commence after lunch, and during the lunch period the equipment — including the bats — was purportedly all stored in bags scattered throughout the field. Kleiman stated that the bags were loose so they would be available for anyone to get them. He further testified that the equipment had been left on or near the field for an hour or more before the accident. He did not see whether Yaer took a bat from a bag or one that was lying on the ground.

The standard of review to be applied in this case is whether or not all of the evidence, when viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendants that a contrary verdict cannot stand. Only when the question is answered in the affirmative can a directed verdict for defendants stand at the close of plaintiff’s case. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

Plaintiff’s complaint charged defendants with specific acts of negligence substantially as follows:

1) Defendants employed and hired immature and inexperienced children to supervise the activities of the plaintiff;
2) Defendants permitted a small boy to swing a bat in an area where other children were playing and where their view was obstructed;
3) Defendants organized and knowingly permitted an activity which would cause the plaintiff to run in an area where another child was swinging a bat;
4) Defendants directed the plaintiff to play and run in an area without rendering the area safe for such activity, and failed to otherwise provide plaintiff with a safe place in which to play;
5) Defendants failed to stop the child from swinging the baseball bat; and
6) Defendants otherwise carelessly and negligently supervised the area in which plaintiff was playing under defendants’ direction, and the other children for whom defendants were responsible.

On appeal, plaintiff has limited his argument to the following: that the defendants’ lack of supervision in the area — other than the presence of a 15-year-old counselor — caused the ultimate injury; that the presence of a 15-year-old counselor does not constitute adequate supervision; and that the defendants failed to provide a safe place for plaintiff to play in that baseball bats were allowed to lie loose in an area where children would be likely to play with them and cause injury to others.

In O’Rourke v. Marshall Field & Co. (1923), 307 Ill. 197, 138 N.E. 625, the supreme court held that the defendant had a duty to use reasonable care in providing a reasonably safe place for the plaintiff-invitee to play. In Donehue v. Duvall (1968), 41 Ill.2d 377, 378-379, 243 N.E.2d 222, the supreme court held:

“One in possession or control of premises frequented by small children has an obligation not to maintain conditions which may be dangerous or hazardous to them. Because of their immaturity young children are often incapable of appreciating the risk involved, and where the owner or person in possession knows that young children habitually frequent the vicinity, he has a duty to exercise due care to remedy the condition or otherwise protect them from injury resulting from it. (Kahn v. James Burton Co., 5 Ill.2d 614.) But he cannot be required to protect them against every possibility of injury. Before he can be properly held responsible for injuries he must be shown to have been at fault, under some recognized theory of liability. The injury must be the natural and probable result of a negligent or otherwise culpable act or condition and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result. An injury is not actionable which could not have been foreseen or reasonably anticipated, and which would not have resulted had not some new and independent cause intervened to produce it. Driscoll v. Rasmussen Corp., 35 Ill.2d 74.”

It must be recognized that a child may be injured by any one of an endless number of items which are commonly used by children, and which are not inherently dangerous, such as an ice skate, a roller skate, a bicycle, a croquet mallet, a baseball or a bat. (Maramba v. Neuman (1967), 82 Ill.App.2d 95, 99, 227 N.E.2d 80.) Whether the law imposes a duty to protect children from injuries resulting from the use of such items does not depend upon foreseeability alone. The nature of the precautions which an occupier of land is required to take depends upon the circumstances and purpose of the visit and the burden of guarding against injuries. The likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant must also be taken into account. (Lance v. Senior (1967), 36 Ill.2d 516, 517, 224 N.E.2d 231.) The purpose of supervision is to regulate students’ conduct so as to prevent disorderly and dangerous practices likely to result in injuries to students; improper supervision of pupils engaged in recreation on the school grounds during an intermission may create a liability on the part of the school for injuries received by one pupil on account of the recklessness of a fellow student. Ziegler v. Santa Cruz City High School District (1959), 168 Cal.App.2d 277, 335 P.2d 709.

Defendants have cited Kos v. Catholic Bishop (1942), 317 Ill.App. 248, 45 N.E.2d 1006, in which a mischievous student threw a scrub brush at the plaintiff, also a student, during a lunch period in the school’s lunchroom. The court there affirmed the dismissal of the complaint for failure to state a cause of action and held that plaintiff’s argument that the' school authorities failed to supervise was untenable, stating at page 253:

“If school authorities were obliged to stand guard over children on the school premises at all times to protect them against the possible acts of mischievous pupils, it would be fairly impossible to conduct schools without peril to the authorities who maintain and operate them.”

In Reid v. Young Mens Christian Association (1969), 107 Ill.App.2d 170, 246 N.E.2d 20, the court affirmed a recovery by an 11-year-old member against the defendant YMCA for eye injuries sustained when a punching bag with a metal clasp was dropped by another young member from an upper floor level while the instructor was either out of the gymnasium or was shooting at the basket at one end of the gym. The court stated at page 173:

“To the extent that the Kos case indicates that a school may not be under any duty of supervision or that no such duty exists despite knowledge of conditions likely to result in injury, we believe the decision is not harmonious with the current trend of decisions in this area.”

Referring to Miller v. Veterans of Foreign Wars of the United States (1965), 56 Ill.App.2d 343, 206 N.E.2d 316, the court in Reid, at page 174 further stated:

“Although the court in Miller does not attempt to specify the nature or extent of the duties which may be imposed upon an organization respecting minors participating in its activities, it would appear to us that a duty of supervision may arise or exist with respect to particular circumstances or relationships. The duties and responsibilities of an organization to which the care or control of children is entrusted are sometimes said to be akin to the duties and responsibilities of parents. See Lawes v. Board of Education of City of New York, 16 N.Y.2d 302, 266 N.Y.S.2d 364, 213 N.E.2d 667. Such an organization is not an insurer of the safety of the children involved. On the other hand, such an organization may not avoid liability for injuries resulting from its failure to exercise reasonable care.”

In Stanley v. Board of Education (1973), 9 Ill.App.3d 963, 293 N.E.2d 417, an 8-year-old plaintiff was awarded judgment for injuries sustained when struck by a baseball bat in a playground in which the defendant was conducting a summer recreational program. Plaintiff was bouncing a ball against the wall while nearby another activity called fast-pitch baseball was being conducted, where one person would throw a rubber ball into a marked strike zone while the batter would try to hit the ball. The activity was to be supervised by a 17-year-old junior leader who was to see that the younger children were not playing too close to the older boys. Our court concluded that the evidence presented issues of fact which were appropriately submitted to the jury, and stated at page 968:

“In Miller v. Veterans of Foreign Wars of U.S., 56 Ill.App.2d 343, 347, 206 N.E.2d 316, the court said:
‘ “The known characteristics of children should be taken into consideration in determining whether or not sufficient care for the safety of a child has been exercised in a particular case. Accordingly the fact that children cannot and do not ordinarily exercise the same degree of prudence and care for their own safety as adults imposes on those by whose acts or omissions a child may be injured the obligation of exercising more vigilance and caution than might be sufficient with respect to an adult and conduct which might reach the standard of ordinary care with respect to an adult might in the case of a child amount to negligence or even gross negligence.”’
It is a known characteristic of many eight-year-old boys to ignore the directions of sixteen-year-old boys whom they see to be but older members of the same class.”

In the case before us defendants were not merely in possession and control of the property but were conducting a day camp for small children, with a duty to provide a safe place and adequate supervision for their activities. During the lunch period the children were aHowed to move about freely. There is no evidence that Yaer swung the bat intentionally or mischievously to cause the resulting injury. A basebaH bat was available and was being used by Yaer in a manner for which it was designed. The known characteristics of children must be taken into consideration. Whether or not the defendants could have foreseen or reasonably anticipated such conduct and the resulting injury is a factual question. So, too, is the question of whether or not the manner and kind of supervision of not only the lunchtime activities, but also of the storage of equipment, was reasonably adequate under the circumstances. The testimony presented questions whether the employment of a 15-year-old counselor was reasonable; whether allowing chüdren to move about freely while leaving basebaH equipment accessible to them created a hazardous condition for the children; and whether there was sufficient supervision of the entire area and activity. We believe that these are questions of fact to be resolved by the jury.

Considering the evidence in its aspect most favorable to the plaintiff, we cannot agree that it overwhelmingly favors defendants. The trial court erred in directing a verdict for defendants. Accordingly, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Charles Sibley, Plaintiff-Appellee, v. The Health & Hospitals’ Governing Commission of Cook County et al., Defendants-Appellants. Buril Upshire, Plaintiff-Appellee, v. The Health & Hospitals’ Governing Commission of Cook County et al., Defendants-Appellants. The People ex rel. Catherine Callaghan et al., Plaintiffs-Appellees, v. The Merit System Advisory Committee et al., Defendants-Appellants.
    (Nos. 58654, 59540, 59591 cons.;
    First District (3rd Division)
    August 15, 1974.

      Vedder, Price, Kaufman & Kammholz, of Chicago (Robert C. Claus, Dean H. Bilton, and Martin P. Marta, of counsel), for appellants.
    Palmer, McHugh, Muldoon & Blackman, Ltd., of Chicago (John J. Muldoon, of counsel), for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

We are asked in this consolidated appeal to decide whether the Health and Hospitals’ Governing Commission of Cook County (hereinafter the Commission) has the power to establish a mandatory retirement program for its employees.

The Commission was created by the legislature to operate the Cook County Hospital and certain other medical institutions. (Ill. Rev. Stat. 1971, ch. 34, par. 5011 et seq.) On February 15, 1972, the Commission adopted a resolution establishing a compulsory retirement program for all its employees effective as of January 1, 1973. The resolution set forth 65 years as the maximum age for employment with the Commission with graduated application to employees between the age of 65 and 70 as of the effective date. The resolution also included a provision for deferment from retirement in individual cases.

All the petitioners are employees of the Commission. All had been certified and appointed in the classified service of Cook County Hospital as civil service employees. Each remained within the civil service system until they became career employees within the Commission’s statutorily required merit system. All the petitioners, except Dempsey Smith, were members of bargaining units represented by unions. The compulsory retirement provision was contained in the Commission’s contracts with the unions. On December 31, 1972, all the petitioners were retired by the Commission because of age.

On December 29, 1972, petitioner Charles Sibley filed his complaint for injunction in the circuit court of Cook County, seeking to enjoin the Commission from terminating his employment because of age. On February 15, 1973, Judge Daniel A. Covelli entered such an injunction. The injunctive order also reinstated Sibley in his position as a custodial worker at Cook County Hospital and awarded him back pay.

On March 29, 1973, petitioners Catherine Callaghan, Jesse Brown, Willie Wright, Dempsey Smith, John Richmond and Edgar Bedar filed a complaint for mandamus, requesting the Commission to reinstate them to their positions at Cook County Hospital. They alleged that their employment was improperly terminated because of age. On July 8, 1973, Judge F. Emmett Morrissey entered an order commanding that they be restored to duty and awarding them back pay.

On June 20, 1973, petitioner Buril Upshire filed his complaint for injunction. On June 29, 1973, Judge Donald O’Brien entered an injunction restraining the Commission from terminating Upshire’s employment for age, and reinstating him to his position as a laundry worker at Cook County Hospital. The Commission has appealed all three orders, and we have entered an order consolidating the three appeals.

The Commission initially contends that, even in the absence of specific legislative authority, it has the inherent power to establish a compulsory retirement program. The Commission, referring to certain language in the Act, argues in the alternative that the Act impliedly grants it the authority to fix an age for compulsory retirement.

It is well settled that an administrative body, such as the Commission, exercises purely statutory powers and must find within the enabling statute the authority to exercise the power it claims. (People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 90 N.E.2d 729; Funkhouser v. Coffin (1921), 301 Ill. 257, 133 N.E. 649.) Administrative bodies possess no inherent or common-law powers. (Fahey v. Cook County Police Department Merit Board (1974), 21 Ill.App.3d 569; Oliver v. Civil Service Commission (1967), 80 Ill.App.2d 329, 224 N.E.2d 671.) In People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 90 N.E.2d 763, the court, in rejecting the concept of-inherent power for administrative agencies, stated at page 346:

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

The trial judges in the present matter correctly held that the Commission did not have the inherent power to fix a compulsory retirement age for its employees.

In making its alternative argument that the legislature impliedly gave it power to set a compulsory retirement age, the Commission refers to certain express powers furnished to it in the Act:

“§ 5020. ° ° * As agent for the county, the Commission shall have the following powers: to operate, maintain and manage such hospitals, facilities and programs; to make and enter into contracts to accomplish any or all of its purposes; to establish rules and regulations for the use, operation and management thereof; * * * as agent for the county, the Commission shall fix all salaries, wages or other compensation, or benefits and working conditions of all employees or other persons performing services for the Commission.
* * *
§ 5026. * * * The Commission shall adopt rules and regulations based on such [merit] principles governing the appointment, training, promotions, transfers, lay-off, removal, discipline, fringe benefits and welfare of its employees. * * * No merit or career employee may be discharged, demoted or suspended for a period of more than 30 days, except for cause and upon written charges.”

The Commission urges that the power to establish rales and regulations for the operation and management of the hospital, and especially the power to fix all “salaries * * * benefits and working conditions of all employees,” gives it the power to fix a mandatory retirement program. Additionally, the Commission claims that the express power given it to “remove” employees, and to provide for the “welfare of its employees,” gives it the right to retire its employees for age.

Recently, in Fahey, supra, this court discussed the validity of the mandatory retirement program of the Cook County Sheriff’s Merit Board. (In Fahey, it should be noted that the Merit Board in this court abandoned its claim, urged in the trial court, that it had inherent power to establish compulsory retirement.) We rejected the Merit Board’s contention that it had received implied power from the legislature to determine compulsory retirement from the sheriff’s police. In discussing legislative policy with reference to the delegation of authority to an administrative board to make rules concerning compulsory retirement, we made the following statement pertinent to the present case:

“$ * * it has been the legislature’s custom to employ one of two approaches. Under the first, the relevant statute itself specifies the age for compulsory retirement of affected employees. See Ill. Rev. Stat. 1971, ch. 2472, par. 91 (civil service in parks); Ill. Rev. Stat. 1971, ch. 108%, par. 13-132 (sanitary district employees); Ill. Rev. Stat. 1971, ch. 108%, par. 15-135 (State universities retirement system); Ill. Rev. Stat. 1971, ch. 121, par. 307.12 — 1 (State police). The role of the respective merit boards or commissions is restricted under these laws to administration and in some instances to judgment on individual appeals for deferral of retirement beyond the age fixed by statute.
Under the second approach, the legislature has delegated to local corporate authorities a limited power to provide for compulsory retirement. Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1—18, for example, authorizes the corporate authorities of municipalities, by ordinance, to provide an age of not less than 63 as the maximum age for legal employment of policemen. Ill. Rev. Stat. 1971, ch. 24, par. 10 — 2:1—17, fixes a retirement age of 65 years for policemen and firemen in municipalities where division 2.1 applies unless the corporate authorities provide by ordinance for an earlier retirement age of not less than 60 years. In each of these statutes, the section delegating the power to fix retirement age is separate from and supplemental to a provision granting general rule-making powers to the appointed board or commission which administers the Act. See Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1—5; Ill. Rev. Stat. 1971, ch. 24, par. 10 — 2.1—5. It also bears noting that, whatever the approach taken, where provision has been made for compulsory retirement, the word “retirement” inevitably appears in the appropriate section’s title. None of the provisions of the County Police Department Act bears such a caption.
Traditional legislative policy, then, has been to specifically approach the question of compulsory retirement, and where the decision is delegated, to pass it solely to the elected authorities of the appropriate political subdivision of the State. No instance is cited by the Merit Board, nor do we find one, where the power to fix retirement has been expressly, much less impliedly, delegated to an appointed body. (PP. 12-13, slip opinion.)

In Fahey, this court also determined that age alone is not just cause for removal from protected merit employment. See Reed v. City of Youngstown (1962), 173 Ohio St. 265, 181 N.W.2d 700.

In Essling v. St. Louis County Civil Service Commission (1969), 283 Minn. 425, 168 N.E.2d 663, the court invalidated a resolution of a commission which established a compulsory retirement age for its employees. In so doing, the court held that an employee who has attained permanent civil service status cannot be deprived of that status because of age except by legislative sanction.

In view of the foregoing principles, since the Act in question neither fixed a compulsory retirement because of age nor expressly delegated such authority to the Commission, the trial judges correctly determined that the Commission was without authority to adopt a valid resolution with reference to compulsory retirement by reason of age.

Tire Commission’s next contention is that, even if its resolution was invalid, those petitioners belonging to unions with bargaining agreements with the Commission, were validly retired in accordance with those bargaining agreements. The bargaining agreements between the Commission and unions contained the mandatory retirement age.

A contract which violates a valid statute is void. There is no exception to this rule, for the reason that the law cannot enforce a contract which it prohibits. (DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550; Green v. Hutsonville Township High School District No. 201 (1934), 356 Ill. 216, 190 N.E. 267.) The Act creating the present Commission clearly sets forth the methods by which merit service employees such as petitioners may be severed from employment. The provision in the union contracts referring to mandatory retirement age could not affect the rights of the petitioners conferred to them under a valid statute.

The Commission’s final contention is that the trial judges were without jurisdiction to issue their orders enjoining the termination of petitioners’ employment because of the Illinois Anti-Injunction Act (Ill. Rev. Stat. 1971, ch. 48, par. 2a). We find the argument to be without merit.

The Anti-Injunction Act prohibits issuance of injunctions in cases involving or growing out of labor disputes concerning terms and conditions of employment. (See Meadowmoor Dairies, Inc. v. Milk Drivers’ Union of Chicago, No. 753 (1939), 371 Ill. 377, 21 N.E.2d 308.) The Anti-Injunction Act is not applicable to the present proceedings. Tire Act does not prohibit the enjoining of illegal conduct. If the purpose of certain conduct, as here the termination of petitioners’ employment without statutory authority, is such that it should not be permitted, the Illinois Anti-Injunction Act cannot afford protection therefrom. (American Device Manufacturing Co. v. Machinists District No. 9 (1969), 105 Ill.App.2d 299, 244 N.E.2d 862; Bitzer Motor Co. v. Teamsters Local 604 (1953), 349 Ill.App. 283, 110 N.E.2d 674.) Moreover, the present dispute arises out of termination of employment, not out of terms and conditions of employment.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

Orders affirmed.

McGLOON and MEJDA, JJ., concur.