author: Mr. Justice Burke

text:
    James Shelton and Lois Blanks, Appellees, v. James Barry and Edward Simon, Appellants.
    Gen. No. 43,438.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.

      ,Barnet Hodes, Corporation Counsel, for appellants; J. Herel Segal, Head of Appeals and Review Division, and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
    William H. Temple, of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

James Shelton and Lois Blanks filed a two count complaint in the superior court of Cook county against Marvin N. Stone, James Barry, William J. O’Neill and Edward Simon. The first count charged the defendants with malicious prosecution and false imprisonment of Lois Blanks. The second count charged the defendants with false imprisonment of James Shelton. Both counts charged that the acts complained of were deliberate, wilful and malicious. Issue was joined. O’Neill was in the Army at the time of the trial and plaintiffs dismissed the case as to him. The court directed a verdict in favor of Marvin Stone. Separate verdicts were returned for James Shelton and against Barry for $750, for Shelton and against Simon for $750, for Lois Blanks and against Barry for $1,000 and for her and against Simon for $1,000. Motions by defendants for directed verdicts, for judgment notwithstanding the verdicts, for new trials and in arrest of judgment, were denied. On a remittitur of $500 by James Shelton and Lois Blanks as to each of the verdicts, separate judgments were rendered for Shelton and against Barry for $250, for Shelton and against Simon for $250, for Lois Blanks and against Barry for $500 and for her and against Simon for $500, to reverse which this appeal is prosecuted.

On Sunday, September 1, 1940 the apartment of Marvin N. Stone and family, located on the third floor at 6917 Oglesby avenue, Chicago, was burglarized. The loot included a silver fox fur jacket, a movie camera and projector, several pieces of jewelry, including a diamond bracelet and diamond pin, several articles of lingerie, all new, some bottles of perfume, $29 in currency, a pair of men’s diamond cuff links and a diamond stickpin, the aggregate value being $1,053.30. Lois Blanks name to Chicago in June 1939. From October 1939 to September 7, 1940 she was employed by the Stones as a maid. She lived at the Stone apartment. She was allowed to be off one half day every Thursday and every other Sunday. She rented a room from a cousin, Mrs. Alma Parker, at 5525 South Wabash avenue, Chicago, "where she stayed on her days off. The Stone family consisted of Mr. and Mrs. Stone, their two children, then six and eight years of age, his mother-in-law Mrs. Mass-over, and his brother-in-law Joseph Massover. Lois Blanks had a key to the front door of the apartment. Mr. and Mrs. Stone each had a key to the apartment, as did Mrs. Massover and her son. The Stones moved into the apartment in May 1940. The people who vacated the apartment at the time the Stones moved in, turned the keys over to them. The locks then on the doors were not changed. On September 1, 1940 the Stones left the premises at about 2:00 p. m. It was Miss Blanks’ day off. She was then alone in the apartment. She had a key only to the front door. She saw the Stones lock the back door before they went out. Outside of the back door there was a porch door, which could be unlocked from the inside. She left the Stone apartment between 2:15 and 2:30 p. m. She left by the front door and locked it. She went to the room she maintained at her cousin’s house. When Mr. Stone returned with his family at about 5:30 that afternoon, he opened the front door with his key. He did not notice anything unusual until he walked to the rear, when he saw the back and porch doors ajar. It became apparent that the premises had been burglarized and the police were notified.

Sergeant John N. Noonan, in charge of detectives and criminal investigation at the Woodlawn station, assigned officers O’Neill, Barry and Simon to- the case. They went to the apartment and talked to Mr. Stone. They ascertained that there were no scratches on the doors, that the locks were in perfect condition, that there were no marks on the doors, and concluded that the doors had not been jimmied and that the intruder gained entrance by the use of a key. Mr. Stone took the officers through the apartment, starting with his wife’s bedroom. It was a large room. In it was the bed, a dresser, with eight drawers, a chiffonier and a dressing table. He explained that in this room only two drawers had been disturbed. In one of these drawers there was some wearing apparel of Mrs. Stone, lingerie articles that she wore from day to day, and $29 in currency. This was concealed under the lingerie, as was the jewelry. The only articles taken from this drawer were the $29 in currency and three or four pieces of jewelry. In the drawer below this, Mrs. Stone had a supply of new lingerie that had never been laundered and several dozen pairs of silk hose that had never been worn. All these were' missing, as were several unopened bottles of perfume. On the dressing table, undisturbed, were several bottles of perfume that had been opened. In the room occupied by Mrs. Stone’s mother nothing had- been taken. He then took the officers into his bedroom. Here only one drawer in the dresser had been disturbed and that w,as the drawer where he kept his jewelry box which had some diamond cuff links and a diamond stickpin. These were the only articles taken from this drawer. In a closet in the corner of the room, several articles of clothing were hanging, and upon a shelf of the closet he kept a movie camera and projector. The movie camera and projector, with the articles of jewelry, were the only things taken from his bedroom. Then he took them to a closet where his wife kept her furs. This closet had two locks on it. A hole had been drilled (by the intruder) through the door of this closet and the lock jimmied off. A silver fox jacket was taken from this closet. Only the rooms of Mr. and Mrs. Stone and the fur closet had been disturbed.

Miss Blanks kept company with James Shelton. On that Sunday afternoon Miss Blanks remained at Mrs. Parker’s house until Mr. Shelton called for her. They attended the theater. He then escorted her to her room in Mrs. Parker’s house. Mrs. Parker then informed her of the burglary. Two men, not identified, had searched Miss Blank’s room while she was absent, at which time they informed Mrs. Parker of the burglary. Miss Blanks remained there over night and reported for work at the Stone apartment at about 7:30 Monday morning,- as she had been in the habit of doing. She continued as a maid in the Stone apartment until Saturday, September 7, 1940.

Sergeant Noonan did not go to the premises. He had charge of the investigation of the burglary. It appears that Anthony Favorulo, an investigator employed by a detective agency, was investigating the case for an insurance company. On Saturday, September 7, 1940, Barry, Simon and O’Neill, while patrolling in a police car, received radio instructions to report to the station. Barry was in charge of the squad. Favorulo and Sergeant Noonan were conversing. Favorulo showed Barry a report of his investigation of the Stone burglary. The report was not introduced, nor was any testimony given as to its contents. Barry testified that after reading the report, which he described as “very thorough, complete,” Sergeant Noonan ordered his squad to arrest Lois Blanks, James Shelton and Thomas Ewing. They went to the Stone apartment and arrested Lois Blanks at about 1:30 p. m. Saturday, September 7, 1940. She denied participation in the burglary, or of knowing anything about it. Simon remained in the squad car. Miss Blanks was then taken to the Woodlawn police station, where she was interrogated. She admitted that she knew James Shelton and also that she knew Thomas Ewing. The latter had served a term in a penitentiary.

After questioning Miss Blanks the officers arrested James Shelton and Thomas Ewing. They brought these prisoners to the station for questioning. They denied being in any way implicated in the Stone burglary. After Miss Blanks was interrogated she was told to remain behind the desk with the sergeant. She was then taken to the police headquarters at 11th & State streets and fingerprinted. She was placed in a cell there until Sunday morning, when she was taken back to the Woodlawn station. On Sunday afternoon she was taken to the “show-up” at the police headquarters. She did not know the policemen who took her back and forth between Woodlawn station and police headquarters. On Monday, September 9, 1940 James Barry signed a complaint charging Lois Blanks with violating a city ordinance commonly called ‘ ‘ disorderly conduct.” She was specifically charged with making or aiding in making “an improper noise, riot, disturbance, breach of peace, or diversion tending to a breach of the peace, within the limits of the City,” on September 9, 1940. She was immediately released on a $25 cash bond. She appeared in the municipal court on the following day, where she was found not guilty, and discharged. It is undisputed that she was in the custody of the police at the time she was charged with committing disorderly conduct and that she did not commit disorderly conduct. She had not previously been arrested or in jail.

James Shelton owned and operated a rooming house of 80 rooms at 4714 South Park avenue, Chicago. On Saturday, September 7, 1940, as he was returning to his rooming house, he was taken into custody by officers Barry, O’Neill and Simon, who were accompanied by Favorulo. They brought him to the Wood-lawn police station, where he was questioned. He admitted that he knew Miss Blanks. He was then taken to Grand Crossing station and later returned to Woodlawn station. On Sunday afternoon he was taken to police headquarters, where he was fingerprinted. He was then taken before a “show-up,” after which he was brought back to the Woodlawn station. He denied being implicated in any burglary. No charge was at any time placed against him. On Monday, September 9, 1940, a petition for a writ of habeas corpus was issued out of the criminal court, requiring the commissioner of police to bring the body of James Shelton before the court and to show by what authority he was imprisoned. Responding to the writ, the police brought him to court and, being-unable to show authority for keeping him in custody, the court entered an order discharging him, whereupon he was released.

Sergeant Noonan testified that in his opinion Shelton had a bad reputation as a law abiding citizen in the community where he lived. Officer Barry testified that Miss Blanks told him she had sexual intercourse with James Shelton and Thomas Ewing. She denied that she made any such statement. Barry testified further that she told him that it would have been possible for somebody to have taken the keys out of her purse and that she drank. She denied that she drank, or that she told Officer Barry it would have been possible for somebody to have taken the keys out of her purse. She testified that when she went out she always left the keys with her cousin. Barry testified: “In our questioning she admitted she committed adultery. She admitted she drank, she admitted that she knew Shelton had been arrested, she admitted that she knew Ewing had been in the penitentiary, she said that several times she had been with the man who had been to the penitentiary.” Miss Blanks proved that she paid an attorney a fee of $25 to represent her in the disorderly conduct case and Mr. Shelton proved that he expended $15 for filing a petition for a writ of habeas corpus and also $50 for the services of an attorney for representing him in that proceeding.

It will be noted that James Shelton charges the defendants with false imprisonment, while Miss Blanks charges them with false imprisonment and malicious prosecution. False imprisonment consists in the unlawful restraint against his will of an individual’s personal liberty or freedom of locomotion. A false arrest is one means of committing a false imprisonment. In false imprisonment malice is usually material only- on the issue of damages. If the imprisonment is under legal authority, it may be malicious but it cannot be false. The wrongdoer is liable for all the direct and proximate results of the imprisonment. The plaintiff is entitled to recover such a sum as will be a fair and just compensation for the injuries sustained in the absence of circumstances justifying an award of exemplary or punitive damages. The mere unlawful detention of a person constitutes a basis of recovery of at least nominal damages. Damages for false imprisonment which are merely speculative are not recoverable. Elements of injury to the person imprisoned which are properly included in the recovery comprise injury to the person and physical suffering and humiliation, loss of time and interruption of business, reasonable and necessary expenses incurred, and injury to reputation. If the arrest is effected recklessly, oppressively, insultingly or wilfully and maliciously, with a design to oppress and injure, the jury may go beyond the rule of compensation and, as a punishment to the defendant, assess such additional (exemplary or punitive) damages as, in their discretion, they deem proper.

An officer who acts in good faith in making an arrest is absolved from punitive or exemplary damages, even though he is liable for compensatory damages. An action for malicious prosecution lies to recover damages for the institution, maliciously or without probable cause, of a suit which has terminated in favor of the defendant therein. In general, to authorize the maintenance of an action for malicious prosecution, the following elements must be shown: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the action or prosecution complained of. An action for malicious prosecution is not favored in the law. Shedd v. Patterson, 302 Ill. 355, 359.

In the case at bar there was no proof that Edward Simon participated in the making or filing of the complaint charging Miss Blanks with disorderly conduct, or in the presentation of such complaint to the court.

Defendants complain of the 5th instruction, given at plaintiffs’ request, which told the jury that if they found that defendants had not probable cause for prosecuting Lois Blanks and that they did prosecute her as charged in. the complaint, “then the jury may infer malice from such want of probable cause.” The court erred in giving this instruction. In Harpham v. Whitney, 77 Ill. 32, the court was of the opinion that seven of the instructions given for the plaintiff were erroneous upon the subject of malice, as, in 'the 3rd, that “proof of want of probable cause is proof of malice,” in the 11th, that “malice is inferred in law” from the facts therein stated, in the 15th, that, “the law imputes malice” from the circumstances therein stated, in the 19th, that, under the facts therein stated the verdict should be for the plaintiff, saying nothing whatever in regard to malice, in the 20th, that, “the law attributes malice to all persons who recklessly and without probable cause to believe him guilty, charge and prosecute another with crime,” and in the 22nd, to find for plaintiff-if defendants could have known he was not guilty of the charge by the exercise of that degree of care which a prudent and cautious man would have made — it not containing any requirement of malice. In that case the court said (38):

“To maintain an action for malicious prosecution, it must appear that there was not probable cause for the prosecution, and also that the defendants were actuated by malice in instituting the prosecution. There must be both want of probable cause and malice. If the law imputed malice from want of probable cause, then there would be no distinct requirement of malice, but want of probable cause would be the sole element necessary. It is often said, the jury may infer malice from the want of probable cause. They may do so under certain circumstances, but not in all cases. Malice is in no case a legal presumption from the want of probable cause, it being for the jury to find from the facts proved, where there was no probable cause, whether there was malice or not. 1 Hilliard on Torts, 486. And if the defendant can not justify by proof of probable cause, he may still rebut the presumption of malice by showing facts and circumstances calculated to produce at the time, on the mind of a prudent and reasonable man, a well-grounded belief or suspicion of the party’s guilt.”

In Kaley v. Hulsman, 319 Ill. App. 219, the court said (222):

“It is also the rule that to support a case of malicious prosecution there must be both malice and want of probable cause, and these must concur. Glenn v. Lawrence, 280 Ill. 581, 587. And malice may not be presumed from want of probable cause if all the evidence shows there was no malice. Hanneman v. Minneapolis, St. P. & S. S. M. Ry. Co., 248 Ill. App. 196.”

On Monday, September 9, 1940, when Miss Blanks was charged by Officer Barry with disorderly conduct, she was immediately released upon a deposit of $25 as bail.

Turning to a consideration of the case presented on the charge of false imprisonment, it will be observed that the police officers were acting under the direction of Sergeant Noonan, who had charge of the detectives operating out of that precinct. In addition to the information given to the police by the members of the Stone family, and the investigation conducted by the police, they were also given the result of an investigation by a private detective, Anthony Favorulo. Section 4 of Division VI of the Criminal Code of Illinois reads:

“An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his p'resence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.”

A criminal offense had in fact been committed, namely, burglary of a dwelling house. The pleadings presented an issue as to whether the officers had reasonable ground for believing that the persons arrested had committed or were implicated in the commission of the burglary. In some of the cases cited by plaintiffs there was no proof that a crime had been committed. Whether such grounds existed, must be judged by the circumstances at the time of the arrest and imprisonment and does not depend upon the actual guilt or innocence of the person arrested. Those facts and circumstances should be such as would justify a careful and prudent person acting circumspectly in his belief. The remarks of our Supreme Court in the Harpham case, in criticising an instruction which informed the jury that “mere rumor that a person is guilty, or has been guilty, of the commission of a crime, is not sufficient to warrant the institution of a criminal prosecution, but that a party charging another with the commission of a crime, must act upon facts or circumstances within his knowledge, sufficient to induce the belief, in the mind óf a cautious man, of the guilt of the person charged with crime,” although the charge was -malicious prosecution, are nevertheless applicable to the instant case. The court said (39):

“We regard this instruction as erroneous. There is no such doctrine of the law so in discouragement of its own enforcement, that one can so act, as in the instruction named, only upon personal knowledge, and not upon information. . . . All that is required is-an honest belief, or strong ground of suspicion, of the plaintiff’s guilt, and a reasonable ground of the belief or suspicion; and that may be upon information from others, as well as personal knowledge. Murray v. Long, 1 Wend. 140; Bacon v. Towne et al. 4 Cush. 217; Foshay v. Ferguson, 2 Denio. 617.”

The parties in the case apparently assumed that the report of Favo rulo would be inadmissible. We are of the opinion that it would be part of the res gestae. What was developed by Favorulo would be material in determining whether the officers had reasonable ground for arresting and confining plaintiffs.

Defendants argue that the court erred in giving the following instruction:

“The jury are 'instructed that in actions of this kind, if the jury find the defendants guilty under the evidence and instructions of the court, and that the plaintiffs have sustained any injury or damage by reason of the charge brought against them, then, in assessing the plaintiffs’ damages, the jury are not limited to mere compensation for the actual damage sustained by them, they may award such a further sum by way of exemplary damages as the jury may believe fair in view of all the circumstances proved on the trial.”

It was error to give this instruction. There was no evidence that the arrest and imprisonment of plaintiffs was effected recklessly, oppressively, insultingly, wilfully or maliciously. The record presented does not warrant the submission to the jury of an instruction which would permit the jury to impose exemplary damages. We cannot agree with plaintiffs that an instruction given for the defendants announces substantially the same rule of law as the instruction last quoted. In addition to the fact that the proof did not permit any instruction on punitive damages, this instruction is erroneous because it allows the jury to assess exemplary damages if they found defendants guilty. It ignored the rule that to be entitled to punitive damages, the imprisonment must be effected recklessly, oppressively, insultingly or wilfully and maliciously.

The fact that Sergeant Noonan directed the defendants to arrest plaintiffs, while not a defense, is admissible as part of the circumstances in mitigation of damages. In the case of Johnson v. Jones, 44 Ill. 142, an action for illegal arrest during the Civil War, the court held that while it was no bar to the action for the defendant to plead that the arrest was made under the order of President Lincoln in time of war for alleged disloyal practices of the plaintiff, yet such alleged facts could be proved in mitigation of damages and for the purpose of rebutting the presumption of malice.

Defendants also argue that the court erred in entering separate judgments against them, stating that it is a rule of law that in an aótion of tort against several defendants jointly the jury cannot assess damages separately against them, and that if they are to be held jointly in a joint action, there must be a single verdict against all who are responsible, followed by a judgment in a single sum. Under the Civil Practice Act either party could have moved for a severance of the actions. From the statement of facts it appears that Barry alone participated in the prosecution of the disorderly conduct case. That action was separate and distinct from the false imprisonment action. The plaintiffs were not arrested at the same time, or imprisoned for the same periods, and the amounts they paid to their attorneys varied. Where parties who have a right to request the court for a severance and a separate trial as to certain actions do not do so, they are not in a position to complain.

Because of the errors in the giving of instructions, the judgment of the superior court of Cook county is reversed and the cause remanded for further proceedings not inconsistent with the views expressed.

Judgment reversed and cause remanded.

Kiley, P. J., and Lewe, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of State of Illinois ex rel. Thomas E. McCabe, Appellee, v. Walter L. Gregory, James B. Cashin and William F. Clarke, Civil Service Commissioners of City of Chicago et al., Appellants.
    Gen. No. 43,512.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire, Carl H. Lundquist, and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On June 4, 1938 Thomas E. McCabe took an examination for the civil service position of ward superintendent in the Bureau of Streets in the Department of Streets and Electricity of the City of Chicago. He passed the examination successfully and when the eligible list was posted by the commission on December 1, 1939, his name appeared thereon as No. 43. On October 21, 1942 he was inducted into the armed forces, under the provisions of the Selective Service Act. On February 26, 1943 he was honorably discharged as a private first class. On January 24, 1945 he made written application to the commission for military preference in certification. At that time 34 certifications had been made from the eligible list. His application for military preference was granted and on January 29, 1945 the commission certified his name to the appointing officer, Lloyd M. Johnson, Commissioner of Streets and Electricity. He was so certified because of the allowance of his request for military preference as a veteran of World War II.

On February 1, 1945 he was appointed ward superintendent of the Bureau of Streets, assigned to the 45th ward by the appointing officer, and entered upon the performance of the duties thereof. On February 4, 1945 the Commissioner of Streets reported the appointment to the commission, as provided by sec. 13 of the Cities Civil ServicerAct [Ill. Rev. Stat. 1945, ch. 24½, par. 52; Jones Ill. Stats. Ann. 23.053]. He was paid the salary appropriated for the position for the first payroll period of February 15, 1945 and the second payroll period of February 28, 1945. Without any notice to him, on March 7, 1945 the commission canceled its order granting military preference to him, and canceled its certification of him to the position of ward superintendent to which he was appointed on February 1, 1945, in accordance with the certification of January 29,1945. On the same day (March 7,1945) the secretary of the commission, on order of the commission, addressed a letter to Lloyd M. Johnson, Commissioner of Streets and Electricity, notifying him of the cancellation of the military preference granted and directing his separation from the position of ward superintendent. On March 8, 1945 the commissioner reported to the commission that he had separated Mr. McCabe from his position in compliance with the order of the commission, and on the same day the secretary notified him of his separation. He has continuously, from February 1, 1945, performed the duties of the position. On April 24, 1945 the head of the department in which McCabe is employed, submitted a payroll for services rendered by him as ' ward superintendent from March 1, 1945 to March 31, 1945, which the commission refused to certify for payment. He has not been paid any salary from and after March 8, 1945 because of the order of the commission revoking his certification and ordering his separation. The commission has, since March 8, 1945, continuously refused to recognize Mr. McCabe’s right to the position of ward superintendent and has since that date refused to certify and approve the payrolls to the comptroller for the payment of his salary for the duties performed and still being performed by him as ward superintendent. On April 27, 1945 he made a formal written demand for payment of back salary, which was refused.

On May 9, 1945 he filed a complaint in the superior court of Cook county against the Civil Service Commissioners, the Commissioner of Streets and Electricity, the Comptroller and the Treasurer, setting up the ultimate facts as above stated, and praying for the issuance of a writ of mandamus, commanding defendants to recognize and pay to him the salary “unlawfully withheld” from him as ward superintendent in the classified service of the Bureau of Streets of the Department of Streets and Electricity of the City of Chicago, and commanding them to do all requisite acts necessary to the end that his name be placed upon the payroll as ward superintendent in the classified service and that he be paid from time to time the salary appropriated for that' position. The complaint alleged that it was the duty of the commission under section 10% of the Cities Civil Service Act [Ill. Rev. Stat. 1945, ch. 24½, par. 49; Jones Ill. Stats. Ann. 23.050] to grant him preference for military service and place his name at the head of the eligible list for the filling of vacancies of ward superintendent, and that after the certification by the commission and the appointment by the commissioner, the commission lost all jurisdiction to revoke his certification and to direct the appointing officer to discharge him. The answer filed for all defendants asserts that plaintiff was not entitled to military preference; denies that the commission was without jurisdiction to revoke his certification, or to direct -the commissioner to discharge him; and denies that the action of the commission was illegal. Plaintiff’s motion for judgment on the pleadings was sustained, judgment was entered for a writ of mandamus as prayed, and the writ issued. This appeal followed.

Defendants maintain that the commission properly denied military preference to one whose military service was rendered after he had taken a civil service examination and the eligible list resulting from the examination had been posted. Plaintiff answers that the commission properly granted military preference for original appointment to relator, whose military service was rendered after he had taken a civil service examination and his name appeared on the eligible list posted therefrom, and that after an appointment has been made on the certification of the commission, the action of the commission in granting military preference in making the certification cannot be canceled or revoked by it. Sec. 10½ of “An Act to Regulate Civil Service of Cities,” (par. 49, ch. 24½, Ill. Rev. Stat. 1945) reads:

“Persons who were engaged in the military, or naval service of the United States during . . . any time between September 16,1940 and the termination of World War II, and who were honorably discharged therefrom, . . . shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such office, and it shall be the duty of the examiner or commissioner certifying the list of eligibles who have taken the examinations provided for in this act, to place the name or names of such persons at the head of the list of eligibles for appointment, provided, however, that this shall not apply to promotions provided for in section 9 hereof, but in such promotions such person or persons shall be given an additional credit in the promotional examination of one per cent (1%) (on the basis of 100%) for each six months or fraction thereof of such military or naval service; and, provided, further that such additional credit shall not be computed so as to- increase or decrease the rating allotted to any person competing in such examination for ascertained merits (efficiency) or seniority, in service. And provided further, that no person shall be given such additional credits in the promotional examination for more than eighteen months of such military or naval service.”

Prior to 1943, sec, 10½ included persons who were' engaged in the military or naval service of the United States during 1861, 1862, 1863, 1864, 1865, 1898, 1899, 1900, 1901, 1902, 1914, 1915, 1916, 1917, 1918 or 1919. This section was amended by an Act approved May 28, 1943 to include veterans of World War II, which was subsequent to the taking of the examination, the posting of the eligible list and the military service of relator.

The precise question here presented has not heretofore been adjudicated in this State. Defendants cite O’Brien v. Frazier, 228 Ill. App. 118; and People ex rel. Hansen v. Collins, 266 Ill. App. 24, affirmed by our Supreme Court in 351 Ill. 551, as cases which announce the applicable principles of law. In the O’Brien case the commission had granted military preference to three persons lower down than relator on an eligible list which had resulted from a promotional examination for the position of lieutenant in the fire department. The examination had been held October 14, 1914 and the list had been posted in July 1915. The statute was amended in 1919 to include veterans of World War I. It was contended by O’Brien that the statute, as amended, applied only to promotional examinations held after the amendment became effective and that it had no application to persons who had theretofore passed such promotional examinations and whose names appeared on the existing registers at the time of the enactment. Respondents’ position was that the amendment applied both to promotional examinations held after the passage of the amendment and to existing registers of eligibles who had taken promotional examinations before the amendment, if such persons had rendered the military or naval service mentioned in see. 10½. In sustaining the position of O’Brien, the court said (122):

“The intention of the lawmakers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words enlarged or restricted according to their real intent. In determining the meaning of a statute the court will always have regard to existing circumstances, contemporaneous conditions and the object sought to be attained by the statute. Hoyne v. Danisch, 264 Ill. 467. It is also the law that statutes will always be construed to operate in futuro only and a retrospective effect will not be given unless it clearly appears that such was the intention of the legislature. Russell & Allison Drain. Dist. v. Benson, 125 Ill. 490. What was the intention of the legislature in enacting the law in question? Did it intend- that these persons who had rendered service in the army or navy and who had taken promotional examinations prior to the amendment of the statute in question should be given the additional credit specified in the amendment, or did it intend that such additional credit should only apply to examinations taken after the date the amendment became effective? We think it applied to the latter only, for in that part of the amendment that applies to promotional examinations it is provided that ‘in such promotions such person or persons shall be given an additional credit in the promotional examination of one per cent . . . for each six months or fraction thereof of such military or naval service. . . . And provided further, that no person shall be given such additional credits in the promotional examination for more than eighteen months of such military or naval service. ’ It will thus be seen that the statute expressly provides that the additional credit shall be given to persons entitled thereto in the promotional examinations and the legislature did not have in mind existing registers or lists of persons who had taken promotional examinations before the amendment. In the case at bar the examination took place in 1914 and the list of names was posted in 1915, four years before the amendment was enacted, and it follows, therefore, that the names on this register should have been certified in their order and not as was done, as shown by the allegations of the petition.”

The O’Brien case involved a promotional examination for the position of lieutenant in the fire department. In that case three persons whose names were lower down on the list than O’Brien were certified by the commission for the reason that the commission awarded them additional credit for military service in World War I. Under sec. 10½ they were entitled only to an additional credit in a promotional examination already held. Our view is that the ruling in the O’Brien case is applicable only to a credit in a promotional examination and is not applicable to a preference for an original appointment. The Hansen case, cited by defendants, did not involve an original appointment. The ultimate question presented was whether the preferences given to veterans are confined to appointments in the classified service and the allowance of additional credits in examinations for promotions, or whether such preferences also include, whenever temporary discharges for work become necessary, retention of veterans in their employment to the exclusion of all other employees in the same class and grade of the civil service, irrespective of their priority of appointment or greater period of service. The Appellate Court said (266 Ill. App. 24, 27): “The first preference applies to the veteran before he enters the classified service; the second provides for an additional credit to the veteran, upon examinations for promotion, who is already in the service.” The court held that the legislature did not intend to give preference except in the two instances specified in the Act. In affirming the. judgment of the Appellate Court, the Supreme Court said (351 Ill. 551, 555):

“By section 10-½ of the Civil Service act, persons who were engaged in the military or naval service of the United States during the years enumerated" and who meet the other requirements prescribed, ‘shall be preferred for appointments to civil offices’ and, in examinations for promotions in the classified service, shall receive additional credits upon a basis defined in the section. These two preferences, and none other, are given to qualified veterans by the statute. The first upon which the determination of the issue in this case depends, is ‘for appointments to,’ not retention in, civil offices. This limitation is emphasized because the same section makes it the duty of the certifying examiner or commissioner to place the name or names of the successful veterans at the head of the list of eligibles certified ‘for appointment.’ There is neither statutory provision Por implication giving a preference to veterans over other employees who are strangers to the military or naval service, either to retain employment whenever the necessity for temporary discharges from work arises, or. to be recalled before such other employees whenever the necessity for temporary releases from employment ceases.”

We cannot agree with defendants that these cases support their contention that sec. 10½ is not applicable to the case at bar, where the relator rendered military service, after he had taken a civil service examination and after his name appeared on the eligible list posted therefrom. The O’Brien case involved a promotional examination, and the Hansen case presented the question whether a military or naval preference also included a preference in the retention of veterans in their employment to the exclusion of all other employees in the same class and grade whenever temporary discharges became necessary.

Defendants state that the only provision in the commission’s rules relating to military preferences is found in Eule 5, which reads:

“Sec. 5. Military Preference. Persons entitled to military preference in promotion examinations, under the provisions of section 10-½ of the Civil Service Act, shall submit proof of their military service and the duration of same, to the Commission. The credit allowed by the Civil Service Act for military or naval service shall be added to the general average standing of the persons entitled to same whose names shall appear upon promotion eligible registers, having attained the required percentage of complete proficiency in examination, ascertained merit of efficiency and seniority taken as a whole.”

This rule obviously does not apply. It is limited solely to additional credits to be allowed veterans in promotional examinations. The military preference granted by the commission to relator for original appointment arose from the provisions of the first part of sec. 10½ of the Cities Civil Service Act. This section grants two kinds of preferences. The first part of the section expressly grants military or naval preference for original appointment. The latter part of the section grants additional credits in a promotional examination, of 1 per cent on the basis of 100 per cent for each six months or fraction thereof of such military or naval service. In a promotional examination the additional credit is given on the basis of a fixed percentage predicated upon the length of military or naval service of a person already in the service. The preference given for those coming into the classified service after taking an original entrance examination is one where they are “preferred for appointments . . . provided they'are found to possess the business capacity necessary for the proper discharge of the duties of such office.” To insure such preference it is the duty of the examiner or commissioner in making certification “to place the name or names of such persons at the head of the list of eligibles certified'for appointment.” The statute gives preference for original appointment and provides that it shall not apply to promotions provided for in sec. 9. In the latter part of the statute there is no military preference for appointment, but only the allowance of an additional credit. The second part, allowing for this additional credit in promotional examinations, limits the additional credits in the promotional examinations to not more than 18 months of such military or naval service. The first part gives veterans preference for original appointment. The second does not, but gives additional credit in the promotional examination, fixing the basis of that credit and limiting it to not more than 18 months of service. .In our opinion the commission properly allowed military preference to relator for military service after he had taken the civil service examination and after the eligible list resulting therefrom had been posted.

Plaintiff had service in the military forces, obtained an honorable discharge and had been “found to possess the business capacity necessary for the proper discharge of the duties,” in that he had, prior to his military service, qualified by a civil service examination to perform the duties and was otherwise eligible in the order of his relative standing on the eligible list to be appointed to the position. His military service thereafter only accelerated his right to be appointed by requiring the commission to prefer him for appointment by placing his name at the head of the eligible list for certification for appointment. It is first necessary for the veteran to get on the eligible list before he is entitled to preference. Subsequent thereto he received his honorable discharge. For those coming into the service by .original appointment, preference is not granted in the examination. Preference is granted in the appointment. It was clearly the intention of the legislators by the amendment to sec. 10½, to include veterans of World War II to receive preference for appointment. The legislature intended to accord to the men" and women of our armed forces who were honorably discharged, on their return to civilian life, a reward for their services in time of war. Relator had passed the civil service test and he was found to possess the business capacity necessary for the proper discharge of the duties of the office. We are of the opinion that sec. 10%, as amended in 1943, grants military or naval preference for original appointment to one whose military or naval service was rendered after he had taken a civil service examination and his name appeared on the eligible list posted therefrom, and when such service was rendered previous to the effective date of the amendment. The commission properly granted military preference to relator.

A further point urged by defendants is that the commission had power to revoke a certification which it had made illegally. Relator maintains that the commission can neither cancel its certification of an eligible after appointment has been made thereon, nor refuse to certify for payment a payroll on which the name of the appointee appears. The respective parties rely on the case of People ex rel. Laist v. Lower, 251 Ill. 527. In that case, after the commission had certified Laist as an architect to the Commissioner of Public Works, the commission revoked the certification because he was not a licensed architect. The commissioner refused to appoint him on the ground that the commission’s certificate had been revoked. The court said (529):

“It is true that an appointment is complete when the last act required of the appointing power has been performed, and the authority to make the appointment has then been exhausted. In such a case the appointing power cannot revoke the appointment, and the one appointed can only be removed by lawful authority. In this case, however, the relator was not appointed city architect and the civil service commission made no attempt to appoint him to that position. The commission has no power to appoint to any office or position, but the power to appoint is in the head of the department or office in which a position classified under the Civil Service Act is to be filled. There was no attempted revocation of an appointment since none had been made, but when it was learned that the certificate had been improvidently made and the relator was lacking in a necessary qualification for appointment, it was within the power of the civil service commission to correct its mistake by withdrawing the certificate. ”

There was no fraud, deception or mistake in the certification and appointment of relator. Under the circumstances presented by the record the commission was without power to cancel its certification of Mr. McCabe.

For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Kiley, P. J., and Lewe, J., concur.


text:
    Grace M. Scharf, Appellee, v. A. S. Waters, Appellant.
    Gen. No. 43,549.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Louis I. Shapiro, of Chicago, for appellant.
    Rosenthal, Eldridge, King & Robin, of Chicago, for appellee; Herman L. Ellsworth and Douglass Pillinger, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On May 1, 1945 Grace M. Scharf filed a verified complaint of forcible detainer in the circuit court of Cook county against A. S. Waters, alleging that she was entitled to the possession of „ the premises at 1542 Forest avenue, DesPlaines, Illinois; that the defendant unlawfully withheld possession from her; and asking judgment for possession. Defendant filed a demand for á jury trial and a verified answer, denying that plaintiff was entitled to the possession of the premises, or that he unlawfully withheld possession, and alleging that on April 7, 1942 a written lease for the premises was made by plaintiff and defendant for the period from May 1, 1942 to April 30, 1943, at a rental of $45 per month; that he took possession on or about May 1, 1942; that the lease was renewed from year to year until April 30, 1945; and that he had been in possession as a tenant ever since. On motion of plaintiff the court struck four additional paragraphs of the answer. These paragraphs sought to set up facts showing that plaintiff was not seeking to gain possession of the premises in good faith, in accordance with the Emergency Price Control Act of 1942 and the regulation pertaining thereto. Thereafter, plaintiff filed a motion for summary judgment, supported by her affidavit, which reads:

“That she is the widow of Charles E. Scharf, deceased, and resides at 5836 North Keating Avenue, Chicago, Illinois. That she is the plaintiff in the above entitled cause and verified the complaint filed herein; that the allegations contained in the complaint are true and correct in substance and in fact, and she incorporates the complaint in this affidavit. That the house at 5836 North Keating Avenue consists of six rooms, sunporch and two baths; that it has an 85 foot frontage on North Keating Avenue, and in the year 1944 the general taxes levied against this property were $410.92; that she formerly resided in this property with her husband, Dr. Charles E. Scharf, who died on January 22, 1943, and her son Charles E. Scharf and his wife, the undersigned’s daughter, Grace E. Scharf, and her younger son, Arthur Scharf. That until she retired on the first of February, 1944, she was engaged in teaching in the Chicago Public Schools; that her son, Charles and his wife have moved into their own home; that the undersigned’s daughter, Grace, is doing graduate work at Northwestern University; that her work necessitates her residing in Evanston, Illinois and that she is only home for week ends; that the undersigned’s son, Arthur, will be eighteen in July and expects to enter the armed forces of the United States at or before that time. That for the foregoing reasons, she no longer requires a residence of the size of the property in which she now resides at 5836 North Keating Avenue; that she is not physically able to do the work necessary to keep up this large house and the large yard which requires frequent mowing and other attention, and it is essential that she should reduce her living expenses. That she is unable to locate smaller quarters in Chicago, but that she owns and has owned since prior to 1942, the property at 1542 Forest Avenue, DesPlaines, Illinois; that this house has five small rooms, is on a 30 foot lot, and the taxes on it for the year 1944 were $102.12; that due to the death of her husband and the fact that she is no longer teaching in the Chicago Public Schools, it is no longer necessary for her to reside in Chicago, and therefore she desires to move into and reside in this property. That the defendant, A. S. Waters, rented this property by lease dated April 7, 1942, which lease was 'extended to April 30, 1944, a correct photostatic copy of which is attached hereto and by reference incorporated herein; that defendant continued to reside in said premises after April 30, 1944, although no additional lease or extension agreement was executed; that on January 30, 1945 this defendant -caused plaintiff to be served with a copy of notice to terminate his tenancy, a correct copy of - which is hereto attached and marked ‘Exhibit B’ and by reference incorporated herein and a copy of which is also attached to defendant’s answer filed herein and marked ‘Exhibit A,’ and that defendant, by said answer, admitted receipt of said notice on said date. That plaintiff desires possession of these premises for immediate use and occupation as a dwelling for herself. Affiant further states that all of the statements in this affidavit are made of her personal knowledge; that if sworn as a witness in this cause, she can competently and would testify to all of the statements contained in the foregoing affidavit and in the complaint heretofore filed in the above entitled cause.”

Attached to the affidavit was a copy of the lease dated April 7, 1942, between plaintiff as lessor and defendant as lessee, demising the premises at a rental of $45 per month for the period from May 1, 1942 to April 30, 1943, and containing the following typewritten provision:

“It is agreed'that in the event that the premises are sold and that the new owner desires possession that lessor can cancel this lease by giving lessee sixty days previous notice and allowing one month’s rent as a consideration therefor.”

The lease contains an indorsement that it was extended to April 30, 1944. Also attached to the affidavit was a copy of the notice by plaintiff to defendant, reading:

“I hereby give you notice to quit and deliver up possession of the premises at 1542 Forest Avenue in the City of DesPlaines, in the County of Cook and State of Illinois, to me on April 30, 1945. This notice is given for the express purpose of terminating your rights, if any, under a lease of these premises given by me under date of April 7, 1942, for the period from May 1, 1942 to April 30, 1943, which lease was extended by an endorsement to April 30, 1944; to terminate a month to month, or year to year tenancy of said premises, if you are holding under either of such tenancies, and also to terminate any and all other rights which you may have or claim to have entitling you to retain possession of these premises. You are further notified that I desire to recover possession of these lands and premises and the housing accommodations thereon at the termination of your tenancy on. April 30, 1945, for immediate use and occupancy as a dwelling for myself; that I owned these lands and premises prior to October 20,1942, and that this notice is given in order to obtain possession of these premises in accordance with the provisions of and the rights given me by Section 6 (a) (6) of The Rent Regulations for Housing, originally issued May 31, 1943, as amended and reissued by Chester Bowles, Administrator, on September 12, 1944.”

Opposing the motion, defendant filed the following affidavit:

“That he has a good defense on the merits to all of the plaintiff’s claim. That the nature of affiant’s defense is, as follows: (a) That he rented the premises, as a tenant, located at 1542 Forest Avenue, DesPlaines, Illinois from the plaintiff in accordance with the terms and provisions of a written lease, a copy of which is attached to the plaintiff’s affidavit marked Exhibit A, and said lease was for the period from May 1, 1942 and expiring April 30, 1943, and said lease was extended to April 30, 1944 and has resided in said premises continuously from May 1, 1942 to date hereof as a tenant and now resides in said premises lawfully as a tenant, having complied at all times with the terms and covenants of said lease and paid all rent due, with his wife and minor son. (b) That on January 30, 1945 a Notice to Terminate Tenancy and Demand for Possession was served by the plaintiff on the defendant, whereby the plaintiff terminated said tenancy as of April 30, 1945, a copy of which notice is attached to plaintiff’s affidavit filed herein, and said notice also states that plaintiff desires to recover possession of the premises for immediate use and occupancy as a dwelling for herself, (c) That the premises involved herein have heen designated by the Administrator of the Office of Price Administration pursuant to Section 2B "of the Emergency Price Control Act of 1942 (Act of Congress) as defense rental area and said Administrator of the Office of Price Administration in accordance with the said Emergency Price Control Act of 1942 has issued a declaration declaring rents frozen as of March 1, 1942 and said maximum rent became effective on and after July 1, 1942 and said premises have "continued to be designated as a defense rental area and is now designated as a defense rental area and therefore under the jurisdiction of the Federal Emergency Price Control Act of 1942 and the regulations pertaining thereto, (d) That the pertinent provisions of Regulation 28 of the Emergency Price Control Act of 1942, and its amendments, issued by the Office of Price Administration, are as follows: ‘Sec. 6. Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, unless: (6) Occupancy by landlord. The landlord owned . . . the housing accommodations prior to ... • October 20, 1942 . . . and seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself. ’ (e) That the plaintiff does not seek in good faith to recover possession of the premises occupied by the defendant for immediate use and occupancy as a dwelling for herself, but on the contrary seeks to oust the defendant in violation of the provisions of the said Emergency Price Control Act of 1942 and the regulations pertaining thereto as above set forth, which said laws and said regulations are now in full force and effect, and defendant sets forth the following facts: That plaintiff, Grace M. Seharf, now resides and occupies a six room house, is the owner thereof, which house is located at 5836 North Keating Avenue, Chicago, Illinois, and has occupied and owned said house for more than three years last past and resides therein with her family, and is now the owner of said premises, which information plaintiff failed to state in her affidavit. (f) That the maximum rent for the premises involved herein on March 1, 1942 was $35.00 per month; that the plaintiff collected from the defendant the sum of $45.00 per month after July 1, 1942 (date rents were frozen) to and including September 1943, or an excess over the legal maximum of $150.00 for said period, (g) That on or about August 15, 1943 the plaintiff came to the home of this defendant and stated that she was notified by the Office of Price Administration that the maximum rent for said premises is $35.00 per month;, that she told this defendant that she would not reduce the rent to $35.00 per month in accordance with the order of the OPA and would insist upon $45.00 per month, that the OPA was not going to run her business and that she, the plaintiff, would see to it that she would collect the sum of $45.00 per month, (h) That the first notice the defendant received from the OPA that the rent for the premises was $35.00 per month was on September 2, 1943, the rent for September 1943 having been paid however, to plaintiff on 'September 1, 1943 in the sum of $45.00; that on October 1, 1943 the defendant paid to the plaintiff the maximum rent of $35.00 and refused to pay more than the maximum rent, and the plaintiff issued a receipt ‘on account’ to the defendant for the months of October and November 1943. (i) That this defendant made demand on the plaintiff to refund the overcharges of rent collected by plaintiff for the period from July 1942 to and including September 1943, but the plaintiff refused and defendant brought suit against plaintiff on November 13, 1943 in the District Court of the United States for the Northern District of Illinois, entitled A. S. Waters, Plaintiff, vs. G-race M. Scharf, Defendant, Case No. 43C 1092, for the. recovery of overcharges in accordance with Section 205 (e) of the Emergency Price Control Act of 1942, and that on April 6, 1945, after a trial and "full hearing by the Federal Court, a judgment was entered in favor of A. S. Waters, plaintiff in that suit, and against Grace M. Scharf, defendant in that suit, for the sum of $750.00 and costs; and that said judgment has been satisfied by said G-race M. Scharf, the defendant in that suit, (j) That the plaintiff herein sent a letter to the defendant herein dated the 21st of June, 1944, in which she stated,"‘What will you take to drop your very unjust suit and get out of my house,’ a copy of which letter is attached hereto and marked Defendant’s Exhibit A, and made a part hereof, (k) That plaintiff now maintains and has maintained since on or about December 1, 1943 a ‘For Sale’ sign on the front wall of the building showing the premises to be for sale, and the words contained on said sign are as follows: “FOB SALE ABBOGAST 1691 HENBY AYE. DESPLAINES,” a photograph of said sign ‘For Sale’ on said premises is attached hereto and marked Defendant’s Exhibit B, and made a part hereof. (1) That the premises as set forth above are now for sale and have been for sale, and the plaintiff, therefore, is not seeking to recover possession in good faith and for her immediate use and occupancy as a dwelling for herself, but merely seeks to oust this defendant as revenge because he refused to pay her more than the maximum rent for said premises and because he sued the plaintiff and recovered a judgment against her in the Federal Court in accordance with the Emergency Price Control Act. (m) That the plaintiff is now living in her own home and has lived there for many years as set forth in her affidavit without making any demand for possession of these premises until after this defendant refused to pay plaintiff more than the maximum rent for said premises, (n) That the plaintiff herein filed a petition for increase of rent with the Office of Price Administration on'November 24, 1943, asking that the rent be increased from $35.00 to $45.00 per month, and an order was entered by the Office of Price Administration on January 5, 1944 denying the petition of plaintiff for said increase of rent, (o) That this suit to oust the defendant from the premises was instigated by the plaintiff with malice and revenge as shown by the foregoing facts and circumstances and contrary to the spirit of the Federal Rent Control Act and .in violation thereof, (p) That on the 1st day of April, 1945 Mr. Wessel, a real estate dealer located in DesPlaines, Illinois, and agent of the plaintiff herein, brought prospective purchasers to the premises occupied by this defendant; that Mr. Wessel exhibited a letter from the plaintiff’s attorneys, who are now representing her in this matter, which letter was on the letterhead of the firm of Rosenthal, Eldridge, King & Robin, and addressed to Mr. Wessel in connection with the sale of these premises; that on the same day, April 1, 1945, James G-raser, a salesman employed by Mr. Wessel’s real estate firm, brought a prospective purchaser to. see the premises occupied by the defendant herein; that on April 10, 1945 a Mrs. Langlois came to the premises and told this defendant that she was sent by Mr. Wessel’s real estate, firm as a prospective purchaser of the premises. "Wherefore, this affiant says that he is entitled to defend the said action and prays that the motion of the plaintiff be dismissed.”

Attached to the affidavit was a letter from plaintiff addressed to and received by defendant dated June 21, 1944, reading: “What will you take to drop your very unjust suit and get out of my house?” Also attached was a photograph of a sign on the premises at 1542 Forest avenue, DesPlaines, Illinois, showing the following: “For Sale Arbogast 1691 Henry Ave. DesPlaines.”

Defendant filed a second affidavit by his wife, Esther Waters, reading:

“That on or about August 15, 1943 the plaintiff herein visited the home now occupied by this affiant and her husband, A. S. Waters, the defendant herein, and plaintiff stated that the Office of Price Administration has notified her that the maximum rent for the premises was $35.00 per month; that the plaintiff, Grace M. Scharf, stated that she would not reduce the rent to $35.00 per month and would insist upon $45.00 per month; that at that time this affiant did not receive any notice from the Office of Price Administration that the maximum rent for these premises was $35.00 per month; that on September 1, 1943 the defendant herein paid the plaintiff, Grace M. Scharf, $45.00 per month and received a notice from the Office of Price Administration on September 2, 1943, that $35.00 per month was the maximum rent; that on October 1, 1943 the plaintiff, Grace M. Scharf, came to the home of this affiant and collected $35.00 for the month of October, 1943, and on November 1, 1943 the plaintiff Grace M. Scharf, came to the home of this affiant and collected $35.00 as rent for the month of November, 1943; that this affiant noticed that after she paid the October 1943 rent, that the October, 1943 rent receipt was marked ‘on account’ and when she paid to the plaintiff the November, 1943 rent on November 1, 1943 the plaintiff marked on said receipt ‘ on account ’; that this affiant asked the plaintiff, Grace M. Scharf, why she wrote the words ‘on account’“on the October and November rent receipts, the plaintiff, Grace M. Scharf, told this affiant that she expects an additional $10.00, that the rent should be $45.00 per month, and plaintiff told this affiant to pay her $10.00 in cash so that the plaintiff herein would receive $45.00 per month notwithstanding the fact that the maximum rent was $35.00 per month. That the plaintiff, Grace M. Scharf, on November 1, 1943, said to this affiant she would not let the OPA tell her how to run her business and that she, the plaintiff, Grace M. Scharf, if necessary, would move out of her own home, there being no maximum rent ceiling on it, her home never having been rented, would rent her home for a high rental and move into the premises occupied by the defendant herein, A. S. Waters; and that the plaintiff, Grace M. Scharf, also told your affiant that if your affiant did not pay her $10.00 in cash each month to get out and move any place that she, Grace M. Scharf, had a party who would pay her $55.00 a month by paying $35.00, the maximum rent, and the balance of $20.00 in cash. That on February 6, 1945 this affiant talked to a Mr. S. L. Wessel, a real estate dealer located at 1516 Miner Street, DesPlaines, Illinois, and Mr. Wessel told this affiant that he was authorized by the plaintiff, Grace M. Scharf, to offer these premises for sale. That on February 6, 1945 this affiant talked to Mr. Eidamiller of Ben F. Eidamiller & Co., 678 Lee Street, DesPlaines, Illinois, and Mr. Eidamiller told her that the plaintiff herein, Grace M. Scharf, authorized him to sell these premises. That on March 4, 1945 this affiant saw prospective purchasers looking at the premises and on March 14, 1945 prospective purchasers talked to this affiant about the condition of the premises.”

On June 19, 1945 the court entered the following summary judgment:

“On motion of Rosenthal, Eldridge, King & Robin, attorneys for plaintiff, for summary judgment against the defendant herein, plaintiff having filed her affidavit in support thereof, and defendant having duly filed his affidavits resisting said motion for summary judgment, and upon due notice to the defendant and the court having examined the affidavits filed herein and having heard the argument of the attorneys for the plaintiff and the attorney for the defendant and the attorney for the Office of Price Administration being present in court, and the court being fully advised in the premises, It Is Hereby Ordered that summary judgment be and it is hereby entered in favor of the plaintiff and against the defendant and that plaintiff have possession of the premises described in the complaint as 1542 Forest Avenue in the City of DesPlaines, Cook County, Illinois, and costs of this suit; that execution be stayed for five days, and It Is Further Ordered that defendant be given leave to appeal and that defendant’s appeal bond is hereby fixed at the sum of $750.00.”

This appeal followed.

The purpose of the summary judgment procedure is not to try an issue of fact, but to determine whether there is an issue of fact. The matter is necessarily inquisitorial. If there is a material issue of fact, it must be submitted to the trier of fact, whether a jury or a court without a jury. The right of the moving party to a judgment should be free from doubt. Bertlee v. Illinois Publishing & Printing Co., 320 Ill. App. 490; Great Atlantic & Pacific Tea Co. v. Town of Bremen, 327 Ill. App. 393. In Shirley v. Ellis Drier Co., 379 Ill. 105, our Supreme Court said (110):

“If there is anything left to go to the jury the motion for summary judgment is denied. If what is contained in the affidavits would have constituted all of the evidence before the court and upon such evidence, there would be nothing left to go to the jury, and the court.would be required to direct a verdict, then a summary judgment will be entered. ’ ’

Where defendant desires to test the sufficiency of plaintiff’s motion and affidavit for summary judgment, he should file a written motion to strike, specifying his objections. Likewise, where a plaintiff contends that the affidavit or affidavits do not present a defense, or are otherwise objectionable, he should move to strike all of the affidavit or the objectionable parts. In the instant case the respective parties now find fault with the affidavits filed in support of and against the motion for judgment. No written motion was filed by either party to strike any part of the affidavits and the record does not show that on the hearing any objection was voiced as to these affidavits. Presumably, the parties considered that the affidavits satisfied the requirements of the Civil Practice Act and the rules of the Supreme and Circuit Courts.

The pertinent provisions of the rent regulation for housing by the Office of Price Administration in effect at the time the instant judgment was rendered, are:

“Sec. 6. Restrictions on Removal of Tenant, (a) So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, unless: . . . (6) The landlord owned . . . the housing accommodations prior to . . . October 20, 1942 . . . and seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself.”

The quoted regulation was amended subsequent to the rendition of the judgment herein. The amendment effective September 15, 1945 requires the landlord to prove that he has an “immediate compelling necessity to recover possession of the accommodations for use and occupancy as a dwelling for himself,” or that he has “served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy.” We will decide this case on the regulation in effect at the time the judgment was rendered. Under the regulation plaintiff was not required to procure a certificate from the OPA authorizing the pursuit of local remedies to evict the tenant. She was required to prove that she was the owner of the housing accommodations prior to October 20, 1942 and that she sought in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for herself. Under sec. 6 (d) (1), every notice to a tenant to surrender housing accommodations “shall state the ground under this section” upon which the landlord relies for removal or eviction of the tenant, a copy of which notice is required to be given to the area rent office within 24 hours after the notice is given to the tenant. The record does not show whether a written notice was given to the area rent office within 24 hours after the notice was given to the tenant, nor does it show whether written notice of commencing the action to remove the tenant was given to the area rent office, stating the title of the case, the number of the case, the court in which the case was filed, the name and address of the tenant and the ground “under this section on which removal or eviction is sought.” In 222 East Chestnut St. Corp. v. Murphy, 325 Ill. App. 392, we held that the tenant could not waive the requirements for notices contained in the OPA regulations. However, where appropriate notices are given and filed, the defendant may by his conduct in the trial waive the proving of such notices. In the Murphy case, there was a trial and we held that, as there was no answer and the record omitted the argument to the jury and the instructions, that we would presume that the point of lack of notice urged by the appellee on appeal had been urged in the trial court and constituted the basis for a favorable verdict and judgment. It may be that a tenant’s attorney, recognizing that the requisite notices had been given to the rent area office, would consider the raising of points as to the giving of such notices a useless move, and would also lead the plaintiff’s attorney to believe that defendant was waiving proof of the giving of notices. We are of the opinion that under such circumstances a tenant is in no position to raise the point that notice was not given or filed.

The record shows that notice to terminate which was served on the tenant on January 30, 1945, states that plaintiff desired to recover possession for immediate use and occupancy as a dwelling for herself, that she owned the premises prior to October 20, 1942, and that the notice was given in accordance with the provisions of and the rights given under sec. 6 (a) (6) of the Rent Regulation for Housing. Defendant urges that this notice is totally defective because it does not state that plaintiff sought possession “in good faith.” Plaintiff asserts that in this State good faith is presumed until the contrary is shown, citing McCagg v. Heacock, 34 Ill. 476; Stubblefield v. Borders, 92 Ill. 279; Sexson v. Barker, 172 Ill. 361; Gochenour v. Logsdon, 375 Ill. 139. Defendant does not contend that good faith must be alleged in the complaint. Plaintiff seeks to sustain the validity of her notice by arguing that there is a substantial compliance with the regulation in that the notice stated that she wished possession for immediate use and occupancy as a dwelling for herself in accordance with the provisions and rights given her by sec. 6 (a) (6) of the Bent Regulation for Housing. We are satisfied that the Illinois authorities cited by plaintiff do not apply to the factual situation of the instant case. The OPA regulations for rent control are carefully drawn and the language is carefully guarded. In order to prevail in her prayer for a judgment for possession of the premises, plaintiff was required to show not only that she was the owner prior to October 20, 1942, but that she sought in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for herself. She was also required to serve and give the notice hereinbefore mentioned. It will be observed that sec. (6) (a) (6) requires that every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground “under this section” upon which he relies. The notice served on defendant on January 30, 1945 informed defendant that plaintiff desired to recover possession of the housing accommodations at the termination of the tenancy on April 30, 1945, for immediate use and occupancy as a dwelling for herself; that she owned the premises prior to October 20,1942, and that the notice was in accordance »with the provisions of and the rights given to her by sec.» (6) (a) (6) of the Rent Regulation for Housing. While this notice did not inform the tenant that the landlord sought “in good faith” to recover possession of the accommodations, it did inform him that she desired possession under the provisions of a paragraph of the regulations, which paragraph required that she “seeks in good faith” to recover possession of such accommodations. By reference to the paragraph the tenant would readily ascertain that plaintiff could not recover possession unless she was seeking such possession “in good faith.” Although a copy of the notice was attached to plaintiff’s affidavit, and although defendant here argues that the notice was fatally defective, he did not attempt to strike plaintiff’s affidavit, and the record does not show that he voiced any objection to the notice. We find that the notice was in substantial compliance with the rent regulations.

The housing situation is such that unless the rent control regulations are followed, evasions will gradually creep in and render the control ineffective. The regulations are necessarily designed to ameliorate the present extraordinary housing situation. The burden of proving good faith was on plaintiff. In Nofree v. Leonard, 327 Ill. App. 143, the landlord sought possession under sec. (6) (a) (6) of the Rent Regulation. The case was tried without a jury, and at the close of all the evidence the court sustained defendant’s motion for a finding in his behalf that as a matter of law plaintiff had not made out a prima facie case. In the trial court the only. point defendant urged was that plaintiff had not proved good faith. We held that plaintiff’s evidence clearly tended to establish her cause of. action, reversed the judgment and remanded the cause for a trial. We held there that the evidence of unfairness or ill will by the landlord toward the tenant could be considered in connection with all other facts and circumstances in determining whether plaintiff did or did not act in good faith in desiring to occupy the premises as a dwelling place for herself. In the Nofree case we quoted from the recent case of Sviggum v. Phillips, 217 Minn. 586, 15 N. W. (2d) 109, also involving the same paragraph of the Bent Begulation. In the Sviggum case the court, quoting the language of another case, stated that good faith, like fraud, is hardly capable of exact definition, that it is a question of fact depending upon many circumstances and conditions, that it is generally a question for a jury to determine, and that on an issue of good faith under OPA rent regulations all the circumstances must be taken into consideration in determining whether a landlord is merely attempting to juggle his property for profit or legitimately requires it to live in. We have read the Illinois cases cited by plaintiff to the effect that good faith is presumed until the contrary is shown. McCagg v. Heacock, 34 Ill. 476; Stubblefield v. Borders, 92 Ill. 279; Sexson v. Barker, 172 Ill. 361; Gochenour v. Logsdon, 375 Ill. 139. In view of the positive provision of sec. 6 (a) (6) of the regulation, that to be excluded from the prohibition against evicting or removing a tenant a landlord who owned the property prior to October 20, 1942 must prove that she seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for herself, we are of the opinion that the Illinois cases cited by plaintiff are not applicable and that the burden is on plaintiff to prove good faith.

We are asked to determine whether the affidavits presented an issue of fact to be determined by a jury as to whether or not plaintiff is seeking to recover possession in good faith. Assuming that plaintiff’s affidavit and exhibits make out a prima facie case showing that she seeks in good faith to recover possession of the premises, and that she has also established the other elements of her case, we turn to defendant’s affidavits. Plaintiff asserts that these affidavits do not state facts showing that defendant is entitled to a jury trial, and points out that her (plaintiff’s) failure to comply with the Emergency Price Control Act, her statements and conduct in connection therewith, and the judgment entered against her in the Federal court, do not show that she is acting in bad faith. It is clear that her conduct may be considered on the issue of good faith. The other objections leveled at defendant’s affidavits cannot be sustained. The parties have the right to have all the circumstances presented to a jury. The fact that a certain part of defendant’s affidavit does not in itself constitute a defense, is not a valid ground for disregarding it. As hereinbefore stated, good faith is hardly capable of exact definition, and depends on many circumstances and conditions. Plaintiff did not attempt to strike out any part of the affidavits. Rule 15 of the Supreme Court provides that affidavits in support of and in opposition to a motion by plaintiff or defendant for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim is based; shall have attached thereto sworn or certified, copies of all papers upon which the party relies; shall not consist of conclusions, but of such facts as would be admissible in evidence and shall affirmatively show that affiant if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits may be used. Paragraph 2 of this rule provides for a situation where the affidavit of either party states that material facts cannot be procured by reason of hostility or otherwise of a person. It also provides for submitting interrogatories and taking depositions. The affidavits filed in the instant case are vulnerable to objections. However, the parties submitted the matter to the court without objection.

Defendant’s affidavits sought to show that plaintiff is endeavoring to sell the property. The parties recognize that, if true, this would show that plaintiff is not seeking in good faith to recover possession for immediate occupancy for herself. Defendant attached to his affidavit two photographs of a “For Sale” sign, which he states plaintiff “now maintains and has maintained since on or about December 1, 1943 on the front wall of the building.” Plaintiff insists that the word “maintain” is a conclusion of the defendant and that no facts are stated to show that she placed the sign or knew it was there. To “maintain” is “to keep up,” “sustain,” “preserve.” Plaintiff also states that she is not bound by the acts of persons who came there representing themselves as real estate dealers and agents of plaintiff in endeavoring to sell the property, and that defendant would have to show that such parties were acting with plaintiff’s authority. While the affidavits do not show affirmatively that plaintiff personally collected the rent after the “For Sale” sign was placed, they do show that whenever the collection of rent is mentioned that it was collected in person by plaintiff. There is a reasonable inference from the record that' plaintiff collected the rent in person. In visiting the premises she would naturally see the “For Sale” sign, and if it were unauthorized she would remove it or have it removed. Even in the trial of a case where objectionable evidence is received without objection, it will be treated as competent and given whatever weight it merits. One of defendant’s affidavits avers that on April 1, 1945 Mr. Wessel, a real estate dealer in DesPlaines, “an agent of plaintiff herein,” brought prospective purchasers to the premises; that he exhibited a letter from plaintiff’s attorneys who are representing her in the instant case, and addressed to him (Wessel) “in connection with the sale of the premises,” and that on the same day James Graser, a salesman employed by Mr. Wessel, brought a prospective purchaser to the premises. There was no objection to this paragraph of the affidavit. Had an objection been made, defendant could have sought leave to file additional affidavits, or to submit interrogatories, or take depositions under paragraph 2 of Rule 15. We find that the affidavits presented an issue of fact as to whether plaintiff seeks in good faith to recover possession of the premises for immediate use and occupancy as a dwelling for herself, and that the court erred in entering a summary judgment.

Therefore, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Kiley, P. J., and Lewe, J., concur.