author: Mr. Justice Sullivan

text:
    People of the State of Illinois ex rel. City of Chicago, Appellee, v. Ludwig D. Schreiber, City Clerk, Appellant. Harry Wolfberg, Separate Appellant.
    Gen. No. 42,267.

      Heard in the second division of this court for the first district at the April term, 1942.
    Opinion filed April 6, 1944.

      Gottlieb & Schwartz, of Chicago, for appellant; Claude A. Both and Harry E. Smoot, both of Chicago, of counsel.
    Warren H. Orr, Gold & Liebman and Morris H. Sachs, all of Chicago, for separate appellant.
    Barnet Hodes, Corporation Counsel, for appellee; James A. Velde and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This a mandamus proceeding instituted on relation of the City of Chicago (hereinafter referred to as plaintiff) to compel Ludwig D. Schreiber, city clerk of Chicago (hereinafter referred to as defendant) to turn over to the city treasury all the compensation he has received and will receive for issuing fishing- and hunting licenses. Plaintiff’s motion to strike certain portions of defendant’s answer as amended was sustained and defendant elected to abide by his answer. On June 27, 1941 judgment was entered by the trial court which directed defendant to pay $38,363.90 forthwith to the city treasurer of the City of Chicago, which amount he retained as compensation for issuing fishing- and hunting licenses during 1939 and 1940, to pay forthwith to said city treasurer “all fees collected by said City Clerk under the Fish and Game Codes of Illinois since January 1, 1941,” to also pay to the city treasurer all fees thereafter collected by him under said codes and that a writ of mandamus issue commanding defendant to comply with the foregoing directions. Defendant’s appeal was originally perfected to the Supreme Court, which ordered it transferred to this court.

The matters alleged in plaintiff’s complaint are substantially as follows: Ludwig D. Schreiber is the city clerk of the City of Chicago. He was elected to said office on April 4, 1939 and assumed the duties thereof on April 12, 1939. His term of office “runs until April 5, 1943 and until his successor is elected and qualified.”

Section 3 of part two of Article XII of the Cities and Villages Act (par. 172, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.261]), which'section is part of a special act relating solely to the City of Chicago and covers the matter of the compensation of city officers, provides in part as follows:

“The compensation of all officers shall be by salary, as' fixed in the annual appropriation bill, by the City Council, and the compensation of no officer shall be altered during the same fiscal year. No officer shall be allowed any fees, perquisites or emoluments or any reward or compensation aside from his salary, but all fees and earnings of his office or department shall be paid by him into the city treasury.”

The Municipal Code of Chicago has fixed the annual salary of the city clerk at $8,000. - Defendant received said salary for the years 1939 and 1940 and the same salary was appropriated for said1 office for the year 1941.

Section 1 of an act entitled “An Act in relation to funds or monies received by public officers or agents of public or municipal bodies, by virtue of their offices or positions” (par. 20, ch. 102, Ill. Rev, Stat. 1939 [Jones Ill. Stats. Ann. 92.18]) provides in part as follows:

“It is hereby made the duty of all officers or agents of public or municipal bodies of this state, who receive any funds, monies, or other things of value, by virtue of their offices or positions, except treasurers, to keep an account of all such receipts, by entries on written or. printed forms, to be provided for the purpose by the public bodies or municipalities by the authority of which their offices or positions are held, . . .
“Bach month’s receipts shall be separately paid over or delivered to the treasurer not later than the middle of the next succeeding month.”

Section 11 of Article III of the Fish, Code of Illinois (par. 66, ch. 56, Ill. Rev. Stat. 1939) provides that it shall only be lawful to take fish protected by said act after first having obtained a license so to. do. Said section also provides for the making of applications for licenses and fixes the amounts of the fees for such licenses. Section 15 (par. 70) of the Fish Code provides in part as follows:

“Any county, city, village, township or incorporated town clerk issuing licenses provided for in this Act may deduct the following as his or her fee for so doing: . . .” (Then follow the respective amounts of the deductions authorized to be made by said clerks.)

Section 13 of the Game Code of Illinois (par. 79, ch. 61, Ill. Rev. Stat. 1939),' which makes it unlawful to take game protected by the act without first having procured hunting licenses, provides for the making of applications -for such licenses and fixes the amount of fees therefor. The fourth paragraph of section 23 (par. 89) of the Game Code provides in part as follows:

“Any county, city, village, township or incorporated town clerk, issuing hunting licenses, or licenses to take fur-bearing animals, provided in this Act, may deduct the following as his or her fees for such licenses:
“Twenty-five cents (25^) in the case of resident hunting licenses and resident licenses to take fur-bearing animals, and fifty cents (50^) in the case of non-resident hunting licenses and non-resident licenses to take fur-bearing animals.”

Immediately upon taking office defendant Sehreiber undertook the issuance of licenses under the Fish Code of Illinois and the Game Code of Illinois and he issued 72,991 fishing licenses in 1939 and 79,705 in 1940 and 44,539 hunting licenses in 1939 and 47,779 in 1940. The total number of fishing* and hunting licenses issued by him in 1939 and 1940 was 245,014. In accordance with the provisions of the Fish and Game Codes defendant made the following deductions from the moneys collected by him for the aforesaid 245,014 licenses: $7,300 for fishing licenses in 1939, $7,970.65 for fishing licenses in 1940, $11,142 for hunting licenses in 1939 and $11,951.25 for hunting* licenses in 1940. These amounts, aggregating $38,363.90, were retained by defendant. The city made a written demand on him to turn said' $38,363.90 over to the city treasurer and the defendant refused to comply with such demand.

Plaintiff’s complaint concluded with the prayer that a writ of mandamus issue to compel defendant to pay to the city treasurer “said sum of $38,363.90, together with any and all sums of money deducted and received or which may hereafter be deducted and received by him as city clerk for the issuance of fishing and hunting licenses pursuant to the provisions of the Fish Code of Illinois and the Game Code of Illinois.”

Defendant’s answer as amended alleged substantially that he was authorized1 under the provisions of the Fish and Game Codes of Illinois to retain as his own personal compensation the $38,363.90 deducted by him from the fees which he collected for issuing the 245,014 fishing and hunting licenses referred to in the complaint.

The answer further alleged that city clerks of the City of Chicago under the present Fish and Game Codes and their antecedent enactments have always retained as their own the fees set forth in such codes and enactments as their compensation for issuing fishing* and hunting licenses thereunder and that they never turned them over to the city treasurer; that no demand has ever been made upon any clerk of the City of Chicago to turn over such fees to the city treasurer prior to the demand made on defendant immediately preceding the bringing of this suit; that neither the city council of the City of Chicago nor the fiscal representatives of the city have ever made provision for receiving nor have they ever anticipated receiving the compensation retained by the city clerk and his predecessors in office under the Fish and Game Codes of Illinois; and that county, city, village, township and incorporated town clerks throughout the State of Illinois, both under the present Fish and Game Codes and their antecedent enactments, have retained as their own the fees set forth in those codes as compensation for issuing fishing and hunting licenses pursuant to the provisions thereof.

The answer then alleged that there has obtained a long standing administrative interpretation, joined in by the City of Chicago, its city council and its officials, that “the fees set forth in the Fish and Game Codes of Illinois (and their antecedent enactments) as the compensation of the City Clerk for the issuance of fishing and hunting licenses constitute the personal and1 absolute property of such City Clerk.”

It was also alleged in defendant’s answer that the City of Chicago never made any provision for the payment of the expenses which are necessarily incurred and involved in the issuance of fishing and hunting licenses; that defendant personally incurred and paid expenses in the sum of $13,931.12 in connection with the issuance of 117,530 fishing and hunting licenses in 1939 and 127,484 fishing and hunting licenses in 1940; that after paying such expenses, the actual net compensation received by him was $24,432.78; and that after deducting the compensation allowed him, he paid the balance of the fishing and hunting license fees collected by him to the Department of Conservation of the State of Illinois as required by the Fish and Game ‘Codes.

It was further alleged that the City of Chicago was made a defendant in an action brought by a taxpayer in the circuit court of Cook county for an accounting by Ludwig D. Sehreiber, the city clerk, as to the identical fees involved herein and that the answer of the city filed therein averred inter alia that “there is a serious legal question presented whether the money belongs to the City Clerk or to the City of Chicago; that a reading of the Fish and Game Codes, on their face, shows that the City Clerk shall deduct as his fees a portion of the license fe<?s collected by him; that by custom for many years the respective City Clerks had been retaining said fees as their oto personal funds”; and that “on January 16, 1941 Alderman Douglas of the City of Chicago introduced in the City Council a resolution reading as follows:

“ ‘Whereas, it now appears that the city clerk of Chicago receives in addition to his salary of $8,000 a year a further addition of fees from the sale of state fish and game licenses which for the years 1937, 1938, 1939 seem to have amounted to between $18,000 and $20,000 a year, and
“ ‘Whereas, while this practice is perfectly legal since the state law permits the city clerk to retain portions of these fees and while this practice has legally gone on for a considerable period of time beginning long before the present city clerk took office, yet it amounts to the clerk being paid twice for his services, and
“ ‘Whereas, the custom of public officials receiving fees has been almost universally frowned upon and replaced by the payment of salaries to officials in return for public bodies receiving the fees, now, therefore, be it
“ ‘Resolved, that while in all this there is no reflection upon the character of the city clerk, who has merely followed a long-established and legally authorized custom, nevertheless in view of the generous salary paid to him by the city, we suggest to and request of him in a friendly spirit that he turn over to the city treasury his net receipts from such fees for the year 1941 and1 succeeding years, and be it furthermore
“ ‘ Resolved, that we memorialize the legislature of the State of Illinois to amend the fish and game acts so that the fees now retained by the city clerk of Chicago may go to the municipality itself.
Paul H. Douglas Alderman, Fifth Ward.’ ”

The question presented for our determination is whether the moneys retained by the city clerk as authorized deductions from the fees collected by him for the issuance of hunting and fishing licenses under the State Fish and Game Codes belong to him personally or belong to the City of Chicago. This precise question has not heretofore been considered or decided by the Supreme Court or any branch of the Appellate Court of this State.

The language used in both codes that any of the designated clerks issuing the licenses provided for therein “may deduct” the specified amounts “as his or her fees” for so doing is simple, clear and unmistakable and definitely declares that it was the legislative intention that the authorized deductions made by said clerks from the fees paid them for issuing hunting and fishing licenses might be retained by them as their own.

It is stated in plaintiff’s brief that “it is apparent that the legislature intended all city clerks to retain the fees as their own except where, as in the case of the City of Chicago, the right of the city clerk is restricted by a special charter provision applying only to the City of Chicago” and that “it is not contended by petitioner that city clerks outside of the City of Chicago are not entitled to the fees.” Thus the city concedes that it was clearly intended under the provisions of the Fish and Game Codes that all the clerks enumerated therein are entitled' to retain as their own the authorized deductions from the fees collected by them for fishing and hunting licenses, including the city clerk of Chicago, unless the latter is prohibited from so doing by the special charter provision in question. It is therefore necessary that the compensation provisions of the Fish and Game Codes be considered and construed in connection with said charter provision (par. 172), which is as follows:

“The compensation of all officers shall be by salary, as fixed' in the annual appropriation bill, by the City Council, and the compensation of no officer shall be altered during the same fiscal year. No officer shall be allowed any reward or compensation aside from his salary, but all fees and earnings of his office or de^partment shall be paid by him into the city treasury. . . ."

The salary of the city clerk was fixed at $8,000 a year and he was paid that amount annually. There can be no question but that defendant was prohibited by the foregoing section of the city charter from receiving compensation of any nature in excess of his salary for performing municipal functions or for performing duties in furtherance of corporate purposes of the City of Chicago. The question then arises as to whether the language “fees and earnings of his office or department shall be paid by him into the city treasury,” as used in said charter provision, was intended to mean that the compensation received by defendant as an agent of the State in the exercise of a State function in issuing fishing and hunting licenses under the Illinois Fish and Game Codes should belong to the city.

Plaintiff insists that when the compensation provisions of the Fish and' Game Codes are considered in the light of paragraph 172 of the Cities and Villages Act (hereinafter for convenience referred to as section 172), they must be construed to mean that the compensation provided under those codes is “a fee and earning of the office or department of the person issuing the license and does not belong to the individual but to the city.” Defendant contends that said1 section 172 relates solely to the compensation, salary and fees of a municipal officer received by him in connection with the exercise of municipal functions, that it relates to the city clerk only in connection with the performance of the municipal duties prescribed for him by the Cities and Villages Act and the Municipal Code of Chicago and that it has no relation to a State function.

Defendant did not contract to give all of his time to the service of the City of Chicago in the sense that such money as he might earn from every source during his term of office must be accounted for to the city. His duties as city clerk are defined in section 10 (par. 93) of the Cities and Villages Act and in the Municipal Code of Chicago and “when these are performed he is not required to do more.” Polk County v. Parker, 178 Iowa 936, 160 N. W. 320, L. R. A. 1917 B, 1176. We have carefully examined the duties of the city clerk as outlined in the Cities and Villages Act and in the Municipal Code of Chicago and not one of them pertains to a State function or relates to State licenses. Every duty prescribed' therein relates only to a municipal function. Neither the Pish nor the Game Code imposes the duty on the clerks designated therein to issue hunting and fishing licenses. They provide only that applications therefor shall be made to such clerks and, while neither code requires the clerks to issue the licenses, they authorize them to do so as agents of the State and offer the inducement of compensation for their services in the event that they do issue them. Unless section 172 can be said to prohibit tiie retention of such compensation by the city clerk, there is no statutory inhibition against his receiving fees or compensation from the State for acting as its agent in performing a State function. We think that the provision in section 172 that “all fees and' earnings of his office or department shall be paid by him into the city treasury” could only have been intended to apply to such fees and earning’s as the office of the city clerk receives for the exercise of municipal functions and for services rendered in the performance of corporate purposes.

The language used in the 1937 Fish and Game Codes in respect to the compensation of the persons issuing-fishing and hunting licenses demonstrates that the legislature did not intend that the restrictive provisions of section 172, which has been in effect since 1907, should apply to such compensation. If the legislature had intended that the restriction that “all fees and earnings of his office or department shall be paid by him into the city treasury” should apply to the compensation received by the city clerk for issuing fishing and hunting licenses, it would not have expressly provided in said codes that the clerk might retain such compensation “as his or her fees.” In our opinion, if the legislature had so intended, it would have used appropriate language to indicate that the fees were to be received by the city clerk in his official capacity or as a fee of his office, so that the restrictive provisions of section 172 might be applied. Section 172 is precisely the same now as it was when the fish and game laws were codified in 1923 and recodified in 1937. If the city’s contention were sustained and the clear expression of the legislative intention in the Fish and Game Codes that the city clerk as an individual is entitled to retain the fees in question were to be disregarded, it would result in convicting the legislature of a manifest absurdity in declaring that an official shall be allowed to retain compensation which under another law. of its own creation he is prohibited from retaining. (Sacramento v. Pfund, 165 Cal. 84,130 Pac. 1041.)

The 1923 Fish and Game Codes, in specifying the duties of the issuing officer, designated him in at least five places as county, city or village clerk. Yet the administrative construction given these codes not only in the City of Chicago but throughout the State of Illinois was that the compensation authorized for the issuance of fishing and hunting licenses belonged to the officer in his individual capacity. If the legislature did not approve of this construction, it would undoubtedly have provided in the 1937 Fish and Game Codes that the fees belonged to the office of the issuing officer rather than to such officer individually. However, not only was such a change not made in the 1937 codes, but the legislature substituted therein the word “person” for county, city or village clerk wherever these words appeared in the 1923 codes in describing the duties of the issuing officer, thereby manifesting a contrary intention. Although for more than 35 years the city clerk of Chicago has been authorized under the fish and game laws of this State to retain as his own the prescribed compensation for issuing fishing and hunting licenses, neither has the legislature expressed an intention during said period that such compensation should be turned1 over by him to the city treasury nor has the city until now questioned the right of the city clerk to retain same.

It was not contemplated under the Cities and Villages Act that the city clerk would issue licenses for other than municipal purposes. Since the city is empowered to appropriate only for corporate purposes and since the city clerk issues fishing and hunting licenses as an agent of the State, which is not a corporate purpose, it would seem to necessarily follow that the salary of $8,000 appropriated annually by the City Council for the city clerk does not cover the duties performed by him for the State in issuing hunting and fishing licenses. Therefore it would also seem to follow that the compensation provisions of the Fish and Game Codes are not in conflict with' the provision of section 172 that “no officer shall be allowed any fees, perquisites or emoluments or any reward or compensation aside from Ms salary.” In our opinion Groesbeck v. Fuller, 216 Mich. 243, 184 N. W. 870, 21 A. L. R. 249, is directly in point on the question as to whether a public officer has the right to be paid additional compensation for the performance of duties other than those prescribed by law for his particular office. There the Governor of the State of Michigan instituted a proceeding in mandamus to compel the payment of salary allegedly due him for services as a member of the State Administrative Board. Constitutional provisions fixed the salary of the Governor of MicMgan, as well as that of other officers of that State, and prohibited the legislature from increasing the salaries of such officers during their terms of office. The Michigan legislature enacted a statute setting up an administrative board similar to a budgetary committee and designated the Governor and certain other State officers as members thereof and fixed the salary for the services to be rendered by the members of such board. The question presented was whether the provision for compensation of the Governor for services rendered by him on the State Administrative Board contravened the constitutional provision against increasing the compensation of a State officer’s salary during his term of office. In that case the court held that, if the duties provided by the statute for the members of the State Administrative Board had been duties normally incident to the office of Governor, no additional compensation could have been provided but that since the duties of a member of the State Administrative Board were' not those generally performed by the Governor and were in effect extra duties,, it was proper for the legislature to provide extra compensation therefor and that the Governor’s duties as a member of the State Administrative Board were totally disconnected with his office as Governor. There the court said in regard to the designation of the officials to act on the board: “Their official titles were used merely for the purpose of designating the individuals who should compose the board.”

Plaintiff asserts that defendant could not issue fishing and hunting licenses if he were not city clerk and that therefore the issuance of such licenses is “in connection with his public office. ’ ’ Inasmuch as the work done by defendant for which the fees in dispute were paid was work done for the State, the city clerk must be regarded in respect to same as an agent or officer of the State and not of the city. (Sheboygan v. Parker, 3 Wall. 93; City of Philadelphia v. Martin, 125 Pa. 583.) Unless the compensation retained by defendant belonged to his office or department, it cannot be regarded as public moneys belonging to the city and therefore the act heretofore set forth requiring municipal officers to turn public moneys over to the city treasurer has no application.

As already stated, there is no decision by a court of review in this State bearing on the question under consideration. However, similar questions under varying circumstances have been considered and determined by courts of review of sister States.

In Sacramento v. Pfund, 165 Cal. 84, 130 Pac. 1041, a mandamus proceeding was instituted to compel the county clerk of Sacramento County to pay into the county treasury the fees collected by him as such clerk for services performed in issuing hunting licenses. Section 2 of the Grame Code of California (p. 663, Cal. Stats. 1909) provided that for the issuance of such licenses “any person” other than a commissioner was allowed as his compensation 10 per cent of the amount of the license fees. There the court held (p. 1041) that “the phrase ‘any person’ seems to have been used designedly, for otherwise ‘any official’ would have been the more appropriate language; . . . that the use of the words ‘any person’ in this connection seems clearly to indicate that the Legislature designed to differentiate in the matter of the issuance of these licenses between the county clerks in their official capacity and county clerks in their private capacity; . . . that the clear purpose of this differentiation was to give expression to the legislative intent that the county clerks, as individuals, should be entitled to retain this 10 per centum ‘as compensation.’ ”

In City of Sacramento v. Simmons, 66 Cal. App. 18, 225 Pac. 36 (1924), the city of Sacramento brought an action against its commissioner in charge of public health and safety, to recover moneys paid him for acting as local registrar of vital statistics. A California statute provided that the city health officer should act as local registrar and perform all the duties thereof in connection with the central bureau for the preservation of records of marriages, births and deaths and fixed the fees for such local registrars. The California Code of Civil Procedure provided that no officer of a city should receive any compensation for services rendered for the city except his lawful compensation as such officer and fixed each commissioner’s salary at $3,600 a year in full compensation for all duties and services performed by him. The statute further provided that all moneys collected by any officer of the city should be paid’ into the city treasury without deduction therefrom of any claim for fees or commissions. There the court said at pp. 37 and 39:

“The action by the plaintiff is prosecuted upon the theory that the moneys collected by the defendant while acting as registrar of vital statistics were and are public moneys belonging to the city of Sacramento, and that as such the defendant was not entitled thereto. ... On the part of the defendant it is insisted that the fees collected by the defendant from the county of Sacramento were and are not public moneys; that such moneys belonged to the defendant individually . .
“Much of the argument in this case is centered around section 96 of the charter hereinbefore set forth. That section directs that all public moneys collected by any officer or employee of the city shall be paid into the city treasury, without any deduction on account of any claim for fees, commissions, or any other cause or pretense, etc. The question naturally occurs, Whát is meant by the term of public moneys collected by any officer or employee of the city? ... It does not include fees for services performed in behalf of an agency outside of and distinct from any of the municipal functions of the city of Sacramento. The person designated by the enactment of the Legislature to perform the services of collecting vital statistics and transmitting the same to the state registrar is acting under the authority thereof, and is not in any wise accountable to the municipality of Sacramento for any failure whatever to perform such duties. . . .
‘ ‘ The act in question simply makes different officers in different localities local state registrars of vital statistics, and, to the extent that they are discharging such duties, they are acting as state officers. They are state officers performing state functions, and are under the exclusive jurisdiction-of the state registrar of vital statistics. The compensation provided for this service is in no wise connected with any function exercised as a municipal officer. The charter provision, we think, has reference to the performance of duties incident to the municipal office in question, and does not extend to matters which are entirely separate and distinct therefrom. The power of the state to utilize different officers in different localities and make them state officers for this purpose and direct fees to be paid for such services by the respective counties is upheld in the case of Boss v. Lewis, 33 Cal. App. 792, 166 Pac. 843. . . . The fact that one person performs the functions of both officers does not change the situation in any particular or make the two one. . . . Being of the opinion that there was nothing in the city charter during the period involved in these proceedings or in the general laws of the state which required the defendant to turn over to the city treasurer of the city of Sacramento compensation collected by him from the county of Sacramento through the agency of the state of California for discharging the duties of local registrar of vital statistics for the state of California, we conclude that the judgment of the trial court herein should be and the same is hereby reversed.”

In Shepard v. City of Lawrence, 141 Mass. 479, a former city clerk sued the city of Lawrence to recover statutory fees for the recordation of marriages and deaths and the city counterclaimed for dog license fees retained by plaintiff. While the plaintiff therein was the city clerk of said city he had a fixed salary under a resolution of the city council, which also contained the provision that he should “account for all moneys received in his official capacity.” In that case the court said at pp. 480, 481:

“The defendant has filed a declaration in set-off to recover the amount retained by the plaintiff from moneys paid for licenses for dogs. The statute requires that every dog shall be annually registered and licensed in the office of the clerk of the city or town where it is kept, and a fee paid therefor. The clerks of cities and towns are required to issue licenses, and receive the money therefor, and pay the same into the treasury of the county, ‘ retaining to their own use twenty cents for each license. ’ Pub. Sts. c. 102 sections 80-84. The plaintiff issued many licenses, and has not accounted to the defendant for his fees retained.
11 The licenses were not granted by the city, and the license fees belonged to the county, and the plaintiff, in collecting and paying them over, acted for the county rather than for the defendant. The city clerk was designated, eo nomine, to perform certain public duties created by the statute, which did1 not concern the city, and which did not intrinsically or historically pertain to the office of city clerk. We think that the compensation provided for him by the statute for these services cannot be deemed money received in his official capacity, within the meaning of the resolution of the city council fixing his salary as city clerk. That it was not intended to include the fees in question is apparent from the conduct of the parties. The plaintiff was reelected for successive years, and the same language was used in all the successive resolutions fixing his salary, though he never accounted for these fees; and it was not until the close of seven successive years of service that any claim was made by the defendant that he should account for them.”

The only case cited and discussed by plaintiff pertaining to compensation sought to be retained by city or county officials for issuing State licenses is Schuylkill County v. Wiest, 257 Pa. 425. This case, decided in 1917, involved1 fees deducted as compensation by the county treasurer of Schuylkill county, Pennsylvania, for issuing hunting licenses. A statute of Pennsylvania authorized the county treasurer “to retain for services rendered the sum of ten cents from the amount paid by each licensee, which amount shall be full compensation for services rendered1 by him. . . .” The constitution of Pennsylvania (Art. XIV", Sec. 5) required county officers paid by salary to pay “all fees which they may be authorized to receive” into the treasury. To carry into effect said constitutional provision the legislature of Pennsylvania passed an Act on March 31, 1876 (P. L. 13), which required county salaried officers to pay into the treasury all fees received1 by them from “any source whatever.” With reference to State functions performed by county officers, section 9 of said act provided that such county officers make returns to the State treasury of all taxes and fees due the State and that all commissions on the collection of the same “shall be deemed and taken as part of the regular fees of the officer collecting the same, and shall be accounted for accordingly.” There the court held that the county treasurer was not entitled to personally retain the compensation allowed ■ for issuing hunting licenses because of the constitutional prohibition and the restrictive statutory provision that the commissions for collecting State taxes and fees shall .be deemed “part of the regular fees of the officer collecting the same, and shall be accounted for accordingly.”

.The Wiest case is readily distinguishable„from the instant case because of the Pennsylvania constitutional provision requiring salaried county officers to pay “all fees which they may be authorized to receive” into the treasury, because of the statutory provision that salaried county officers turn over to the treasury all fees “from any source whatever” and because of the further statutory provision that commissions for collecting State taxes and fees shall be deemed part of the regular fees of the officer collecting same and accounted for accordingly.

Bachman’s Appeal, 274 Pa. 420, decided in 1922, involved compensation retained by a county treasurer for the issuance of hunting and fishing licenses. There the court said at pp. 424, 425:

“The proper enforcement of the constitutional provision and the Act of 1876 has been a matter of great difficulty. County .officers have insisted on many occasions upon the right to retain the commissions received by them for their personal use '. . . but the rule is now well established that the treasurer is to be limited in compensation to his salary, unless he has been expressly designated as agent for the Commonwealth in the collection of license fees, and is given, by statute, the compensation provided for, in his individual capacity.”

York County v. Fry, 290 Pa. 310, decided in 1927, also involved compensation retained by a county treasurer for the issuance of hunting and fishing and many other State licenses. The Game Code of Pennsylvania (Act of May 10, 1921, P. L. 432) provided that county treasurers “shall be agents of the commonwealth for the collection of said license fees, and for services rendered in collecting’ and paying over the same the said agents shall be allowed to retain for their own use the sum of ten cents from the amount paid by each licensee.” The following statute (sec. 6, Act of April 12, 1923, P. L. 62), enacted subsequent to the decision in the foregoing Bachman’s Appeal, provided in part as follows: 7The salaries fixed and provided by this act shall be in lieu of all or any moneys, fees, perquisites, mileage, expenses, and other allowances which are now or may hereafter be received by or allowed to such treasurer, except commissions due or payable to the county treasurer for acting as agent of the Commonwealth, which commissions shall be payable to the county treasurers as now authorized by law.” The phrase in this statute “as now authorized by law” had reference to the law as enunciated in Bachman’s Appeal that a county treasurer “is to be limited in compensation to his salary, unless he has been expressly designated as agent for the Commonwealth in the collection of license fees, and is given, by statute, the compensation provided for, in his individual capacity.” In the Fry case the court held that because the county treasurer was expressly designated to act as the agent of the State in issuing hunting licenses, he was entitled to retain as his own the authorized compensation. As to the compensation which the county treasurer was seemingly authorized to receive for issuing fishing licenses the court said at p. 314:

“The fishing licenses here involved are under the Act of May 16, 1921, P. L. 559, section 8 of which provides: ‘A county treasurer may collect for Ms own use for services rendered under this act the sum of ten cents, to be paid by the applicant for a license.’ This language might seem to indicate that the treasurer was entitled to the specified fee; but he is not; for as the statute fails to expressly designate him as agent for the Commonwealth, the above quoted provision of the Constitution controls, regardless of the language of the statute.”

Thus it is seen that, notwithstanding the strict Pennsylvania constitutional and statutory inhibitions, noted in the Wiest case, against county treasurers receiving any remuneration for their services except their salaries, the Supreme Court of that State in Bachman’s Appeal avoided the effect of such inhibitions by holding that, if county treasurers were expressly designated as agents of the State for the collection of State license fees and were authorized to retain the prescribed compensation in their individual capacities, then such compensation belonged to them personally. As heretofore shown, the law as held in Bachman’s Appeal was thereafter incorporated in a Pennsylvania statute. Our attention has not been called to any other State which has adopted such a rule and we fail to perceive any sound reason for the distinction between expressly designated agents of a State and expressly authorized agents of a State.

Plaintiff cites Mulcrevy v. San Francisco, 231 U. S. 669, People v. Witzeman, 268 Ill. 508 and State of Indiana ex rel. United States v. Killigrew, 117 F. (2d) 863. These were so-called naturalization cases and there is a clear distinction between them and the case at bar. In those cases the court clerk who made claim to naturalization fees in their individual capacities necessarily received them in their official capacities. Naturalization is brought about by a court proceeding and the clerk acts as an officer of the court in such proceeding and not in his individual capacity. The clerk’s function in naturalization proceedings cannot be separated from his relation to the court. No one else could be designated to perform his official function. It was of course properly held1 in the naturalization cases that the fees claimed by such court clerks individually were received by them in their official capacities and not in their personal capacities.

From what has been heretofore said it would seem that under ordinary rules of construction there is no conflict between the provisions of the Fish and Game Codes allowing compensation to the city clerk personally for issuing fishing and hunting licenses as an agent of the State and section 172 of the city charter. If it were necessary for us to determine the question before us from the language and legal effect of the relevant statutes alone, we would be inclined to uphold defend ant’s interpretation of the statutes and- to also hold that his interpretation thereof is supported by the weight of such authority as we have been able to find on the question. However, if it can be said that the proper construction to be given the compensation provisions of the Fish and Game Codes is in a degree doubtful or open to reasonable debate, in view of the restrictive provisions of section 172 of the city charter, then the uniform, long standing and practical construction given to the aforesaid compensation provisions of the Fish and Game Codes by the legislature and by the administrative officials of the City of Chicago should' be accorded great weight. This is true especially because of the injurious consequences that would follow a different construction.

As already shown, city clerks of Chicago have always retained as their own the compensation allowed them by the State for issuing fishing and hunting licenses. Defendant personally incurred and paid expenses of $13,931.12 in connection with the issuance of 117,530 fishing and hunting licenses in 1939 and 127,484 fishing and hunting licenses in 1940, or approximately $7,000 for each of those years. The record discloses that defendant did not use the facilities of the office of the city clerk nor any of its employees or materials in connection with the issuance of fishing and hunting licenses but that he hired his own help and paid his own expenses. Since defendant’s salary was $8,000 a year and since his expenses in connection with the issuance of fishing and hunting licenses were approximately $7,000 a year, if he were compelled to turn over to the city treasury the total compensation of $38,363.90 received by him in 1939 and 1940 for issuing said licenses, his salary would in effect suffer a reduction from $8,000 to $1,000 for each of said years and we do not think that such a result was intended by the legislature or contemplated by the city council in fixing his salary.

If we were to interpret the compensation provisions of the Fish and Game Codes to mean that defendant must turn over to the city treasury the authorized compensation which he received for issuing fishing and hunting licenses, then all former city clerks since 1907, when section 172 of the city charter was enacted, will be liable for similar compensation retained by them. Such a result would work an extreme hardship upon some, if not all, of these city clerks. It is not unreasonable to suppose that some of them were in office for more than one term, that the moneys retained by them have been spent and that in some instances, at least, income taxes have been paid upon them, which because of the federal statute of limitations could not be recovered; nor is it unreasonable to suppose that some of these clerks could not now pay over to the city treasury the sums of money retained by them, or if they could, that it would take the accumulations of a lifetime to do so. We think that defendant was justified in believing that, if elected city clerk, in view of the long continued practical construction given to the compensation provisions of the Fish and Game Codes, he would be entitled to the fees allowed by such codes for issuing fishing and hunting licenses thereunder. There can be no question but that the interpretation of the Fish and Game Codes for which plaintiff contends would work a tremendous hardship and injury both on defendant and his predecessors in the office of city clerk of Chicago.

In Cook County v. Healy, 222 Ill. 310, where the court was required to determine whether or not certain fees were properly retained by the then State’s Attorney of Cook county, it was said at p. 317:

“It cannot be said, however, that the intent as to State’s attorneys was expressed in the same clear and unambiguous form that it was with respect to other officers, and in view of the long continued practical construction given to the constitution by the legislature and the administrative officers of the State, and the injustice that would follow from a different construction at this time, we are led to sustain the judgment of the circuit court.
“If it could be said that the language of the constitution was clear and free from any doubt, a contrary legislative and administrative construction would have no weight. (Jarrot v. Jarrot, 2 Gilm. 1.) But where the words of a constitutional provision admit of doubt, the court may and ought to consider a contemporaneous and practical construction given by the legislature and those concerned in the administration of the law, and also any injurious consequences which would follow a different construction. Where a particular construction has been given to a provision and it has been continued for a long term of years and acquiesced in by the public at large, such construction is entitled to great weight and may be equal in force to a judicial construction. Bruce v. Schuyler, 4 Gilm. 221; Bunn v. People, 45 Ill. 397; Nye v. Foreman, 215 id. 285; 8 Oyc. 736; Cooley’s Const. Lim. 67; 26 Am. & Eng. Ency. of Law, (2d ed.) 633.”

In Village of Broadview v. Toman, 309 Ill. App. 485 (leave to appeal denied), the question was raised as to the right of the county collector of Cook county to withhold .and retain from special assessments collected by him for the Village of Broadview statutory fees and charges aggregating 50 cents per item for each special assessment returned delinquent by him and on which he made no collection. In that case we said at pp. 500, 501, 502 and 503:

“If we assume, however, that the intent of the legislature ‘is in a degree doubtful or open to reasonable debate,’ we are then aided in our interpretation of the r elevant statutes by the following well-established rule of law:
“ ‘It is the province and duty of the courts to determine the meaning and true construction of constitutions and statutes, but when the legislative department, in the enactment of laws, and the executive officers, charged with the duty of enforcing or applying constitutional provisions and statutes, have, by contemporaneous, long, uniform and practical construction of a constitutional or statutory provision, accepted and acted upon it as having a definite and particular meaning, the conclusion so reached and acted upon by the legislative department and by executive officers will, in view of the great injury and injustice which would result from a change in such construction and meaning, be accorded great weight by the judiciary when that department of the government is called upon to construe the law, and will, in general, control, whenever the question is in a degree doubtful or open to reasonable debate. (Bruce v. Schuyler, 4 Gilm. 221; Comstock v. Cover, 35 Ill. 470; People v. Loewenthal, 93 id. 191; People v. Board of Supervisors, 100 id. 495; People v. Fidelity and Casualty Co., 153 id. 25; Boehm, v. Hertz, 182 id. 154; People v. Knopf, 171 id. 191; Burke v. Snively, 208 id. 328; 8 Cyc. 736, 737.) The facts disclosed by this record call, as we think, for the application of this doctrine of construction to the contention here arising for decision, and should control the inquiry as to the true meaning of the constitutional provision under consideration. ’ (Nye v. Foreman, 215 Ill. 285, 288, 289.)
" . . .
“Defendants contend that ‘the overwhelming custom of more than twenty-five years’ standing, possibly fifty years — in continually abiding by special assessment settlements and deductions, indicates conclusively that the City of Chicago and all the Villages in Cook County construed this statute to give the Collector the undoubted right to deduct this 50$ charge and that this custom and usage in behalf of the County Collector is a clear indication of what these taxing bodies understood to be the intention of the Legislature in this instance.’ This court knows that the City of Chicago and the numerous villages in Cook County have had in the past many able lawyers to represent them, and the action of these municipalities in acquiescing in the custom of the County Collector in making like charges to the instant ones against said City and Villages over a period of at least twenty-five years must be given great weight in the determination of the meaning of the relevant statutes under consideration. The fact that the County Board has never made appropriations for charges like the instant ones must also be given weight. Interpreting the statutes in question in the light of the general custom and usage, we are satisfied that the County Collector was justified in withholding and retaining from the special assessments collected by him for plaintiff, Village of Broadview, the sum of fifty cents per item for each delinquent special assessment returned delinquent by him and on which he made no collection.”

Since it must be assumed that the administrative officers of the city knew that the clerks designated in the Fish and Game Codes, including the city clerk of Chicago, retained as their own compensation the authorized deductions for issuing fishing and hunting licenses and' since the City of Chicago and its administrative officers have acquiesced for more than 35 years in the practice and custom of the city clerks of the City of Chicago in so retaining said authorized deductions as their own, it is manifest that great injury would result from now placing a construction upon the compensation provisions of the Fish and Game Codes that such compensation belongs to the City of Chicago and not to the city clerk personally.

We are impelled to hold that the compensation which defendant is authorized to receive under the provisions of the Fish and Game Codes for issuing fishing and hunting licenses thereunder belongs to him personally and that any change in the compensation provisions of said codes is a matter for the consideration of the legislature and not of the courts.

Other grounds for reversal or modification of the judgment of the trial court have been urged and considered, but in the view we take of this case we deem it unnecessary to discuss them.

The only remaining questions are those presented by the separate appeal of one Harry Wolf berg. It appears that on February 17, 1941 Wolf berg, as a taxpayer, filed a complaint in equity in the circuit court against Ludwig D. Schreiber and the surety on his bond for an accounting by him as city clerk as to the identical fees involved in the instant case; that on March 17, 1941 the City of Chicago filed a motion in the Supreme Court for leave to file an original petition for mandamus to compel Schreiber to pay such fees into the city treasury; that said motion of the City of Chicago was denied without prejudice on April 2,1941; that on April 10, 1941 the city instituted the instant mandamus proceeding in the superior court; that after the complaint had been filed by the city in the mandamus proceeding, Wolf berg filed an amended and supplemental complaint on April 23, 1941 in his suit for an accounting in the circuit court, whereby he made the city an additional party defendant, and wherein the sole relief sought against the city was to enjoin it from prosecuting its superior court mandamus suit; that no order for such an injunction was entered; and that on June 25, 1941 Wolfberg filed a petition for leave to intervene in the superior court mandamus proceeding, in which petition he prayed that the instant case be dismissed “because of a prior equity suit pending in the circuit court,” that this case be consolidated with his equity suit in the circuit court, that this case be transferred to the circuit court for consolidation with said equity suit and that in any event Sehreiber be required to make a detailed accounting in the mandamus suit of the fees received by him for issuing fishing and hunting licenses and of the credits he claims for his expenses in connection therewith. Wolfberg’s motion for leave to intervene .was denied and his appeal herein is from the order denying said motion.

The theory of Wolfberg, separate party appellant, as stated in his brief, is that “where a proceeding in equity for accounting and money decree has been commenced, a subsequent suit in mandamus for the same or similar relief should not be entertained; that where a public officer has failed to account for, and has unlawfully withheld money belonging to the public, any proceeding against him for the recovery of that money should require him to account, particularly where he continues to hold office in, and is sued by, the city of which he continues to be an officer; that even in mandamus the judgment should be that the respondent first account and then pay over the money found due upon accounting.”

The theory of the city is that “Wolfberg’s motion to intervene was properly denied because it was not necessary for a correct disposal of the case. The motion to consolidate was properly denied because there was no other case pending in the same court with which to consolidate it. The motion to transfer was properly denied because Wolf berg had no right to file the case in the circuit court and consequently the court never acquired jurisdiction over the subject matter. Furthermore, motions to transfer and to consolidate are addressed to the discretion of the trial court and the decision of the trial court will not be disturbed unless its discretion has been abused; in this case the trial court did not abuse its discretion in refusing Wolf-berg’s motions.” .

It should be observed at the outset of our consideration of the separate appeal that, in view of our conclusion that the compensation retained by defendant for issuing fishing and hunting licenses belongs to him personally, any decree that might have been entered against Schreiber in Wolfberg’s circuit court suit for an accounting would have been just as unavailing as the judgment entered against him in the mandamus proceeding brought by the city.

The amended and supplemental complaint filed by Wolfberg in his circuit court suit is attached as an exhibit to his petition for leave to intervene in the superior court mandamus proceeding. Said complaint is replete with unwarranted charges of collusion between the mayor and corporation counsel of the City of Chicago and defendant. It was alleged therein that no attempt had been made in behalf of the city to compel Schreiber to pay the fees in question into the city treasury because he was a personal and political friend of the mayor and the corporation counsel. The charges of collusion were made for the purpose of showing that any demand made upon the city to institute an appropriate action against Schreiber would have been ineffective and that therefore such a demand was unnecessary. It will be recalled that the resolution of Alderman Douglas, heretofore set forth, was introduced at a meeting of the city council on January 16, 1941. This resolution was referred to the finance committee of the city council and on February 5, 1941 the chairman thereof requested an opinion from the corporation counsel concerning’ the fees- mentioned in said resolution. On March 3,1941 the corporation counsel rendered an exhaustive written opinion pursuant to the request of the chairman of said committee, in which he concluded that the fees involved herein, which were retained by Schreiber, belonged to the City of Chicago. So it appears that Wolf berg “beat the barrier,” as it were, in filing his taxpayer’s suit on February 17,1941, which was shortly after the Douglas resolution had been referred to the corporation counsel on February 5,1941 for an opinion thereon and while such an opinion was in the course of preparation. As has been seen, the corporation counsel’s opinion was delivered to the chairman of the finance committee of the city council on March 3,1941.. Surely the situation did not call for such unseemly haste on the part of the taxpayer or furnish a proper occasion for Wolf berg’s intervention for the protection of himself and the taxpayers of Chicago generally. It also appears conclusively that the failure of not only the present administrative officials of Chicago but of its administrative officials for the past 35 years to demand of or to attempt to recover from its city clerks the compensation received, by them for issuing fishing and hunting licenses was not due to neglect, collusion or connivance but rather to the belief of said administrative officials that the compensation in question belonged to the city clerks personally, because the . Fish and Game Codes and their antecedent enactments expressly provided that it did. After the matter was called to the attention of the corporation counsel by the Douglas resolution and after the investigation by the corporation counsel disclosed the possibility of recovering, for the city the fees retained by the city clerk, it must be conceded that the city proceeded diligently to recover such fees.

Did Wolf berg have any right to institute the accounting proceeding in the circuit court or to intervene in the instant case? The general rule is that a demand upon the proper public official to bring suit in the name and on behalf of the city is a condition precedent to the maintenance of a taxpayer’s suit, unless it is shown that such demand would be useless. No demand was made by Wolf berg before he commenced his suit in the circuit court and neither did he make any proper showing that a demand, if made by him, would have been unavailing. The corporation counsel is the duly authorized' attorney for the City of Chicago and the duty is imposed upon him to appear in behalf of the city in all of its legal matters. (Par. 176, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.265].) In Wagner v. Wallingford, 257 Ky. 477, which involved a suit by a taxpayer to recover money retained by the defendant therein in excess of his salary, the court said at p. 478: Obviously, the primary right to recover the sums sued for in this action rests in the municipality. . . . Before a taxpayer may maintain an action to recover funds due a municipality, he must request the appropriate officers of the municipality to act. Until it is made to appear that the public officers charged with the duty to act have refused1 to do so, there is no occasion for intervention of a citizen and taxpayer for the protection of himself and others similarly situated.” (To the same effect are Reed v. Cunningham, 126 Iowa 302; Williams v. Stallard, 185 Ky. 10; Merrimon v. Southern Paving & Construction Co., 142 N. C. 539; Dunn v. Long Beach Land & Water Co., 114 Cal. 605.) It would present an intolerable situation if, while both the finance committee of the city council and the corporation counsel were considering the possibility of the recovery by the city of the fees in question, any taxpayer, whether his purpose was laudable or otherwise, could file a suit involving the same fees before the corporation counsel had concluded his investigation of the pertinent law on the subject, preparatory to rendering his opinion thereon as requested by the chairman of the finance committee of the city council, and then be permitted to invoke the doctrine of prior suit pending against the City of Chicago. The city was not made a defendant to the Wolf berg suit until after it had instituted its mandamus proceeding against Sehreiber and under the circumstances shown here, the city had the right to conduct its own litigation.

As to Wolf berg’s contention that the trial court erred in refusing to transfer the mandamus. proceeding for consolidation with his circuit court suit for an accounting, we think it is sufficient to state that such transfer was not required by “considerations of justice or convenience.” (Par. 37, sec. 1, ch. 146, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 106.16].)

There is no merit in Wolf berg’s contention that Sehreiber should have been compelled in the mandamus proceeding to make an accounting as to the compensation received by him in 1939 and 1940 for issuing fishing and hunting licenses. An audit made by the city comptroller of Sehreiber’s records relating to such licenses revealed that the compensation received by him in 1939 and 1940 for issuing same was $38,363.90. This is the amount the city sought to recover for 1939 and 1940 and, while Wolf berg makes no claim that it is incorrect, he persists in his contention that Sehreiber should be compelled to make an accounting in any event. No accounting as to the amount of compensation retained by the city clerk was necessary in any proceeding. The records' of the State Department of Conservation show the number of fishing,and hunting licenses issued by the city clerk each year. The Fish and Game Codes specify the compensation the city clerk is authorized to retain out of the fee paid for each fishing and hunting license issued by Mm. To determine the total compensation retained by the city clerk in any year does not require any complicated accounting. Such compensation may be readily ascertained by the use of simple addition and1 multiplication.

In our opinion the trial court properly denied Wolf-berg’s petition for leave to intervene in the instant mandamus proceeding.

For the reasons stated herein the judgment entered by the superior court against the defendant, Ludwig D. Schreiber, is reversed and the order of said court denying leave to Harry Wolfberg, plaintiff in the circuit court suit, to intervene in the superior court mandamus proceeding is affirmed.

Judgment reversed, order affirmed.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Riess

license: Public Domain

text:
    Love O. Apperson and Carolyn Apperson; People of the City of Champaign, Illinois, for use of Love O. Apperson, Appellants, v. Hartford Accident and Indemnity Company and Gus R. Fulmer, Appellees.
    Gen. No. 9,416.

      Heard in this court at the October term, 1943.
    Opinion filed April 12, 1944.
    Carson & Appleman, F. T. Carson and John Alan Appleman, all of Urbana, for appellant.
    Dobbins, Dobbins & Thomas, of Champaign, for certain appellee.
   Mr. Justice Riess

delivered the opinion of the court.

The plaintiffs appellants have perfected an appeal to this court from a judgment entered pursuant to an order of the circuit court of Champaign county sustaining a motion of the defendants appellees to dismiss Counts IX and X of appellants’ second amended complaint in a suit at law seeking recovery of civil damages under the penal provisions of a dram shop licensee’s bond given under the provisions of an ordinance of the City of Champaign, Illinois. Appellants seek reversal of the judgment in bar of suit on said counts and remandment of the cause to the trial court for further proceedings. A written opinion was filed by the court which appears in the abstract. In addition to the record and abstract filed by the appellants, an additional abstract with assignments of cross-error was filed by the appellees based upon certain rulings of the court on the pleadings. Appellants filed a motion to strike the additional abstract and assignment of cross-errors and the appellees filed written objections thereto, which motion and objections were taken by the court with the case and will be ruled upon herein.

It appears from the record that on April 30, 1941, a bond in the penal snm of $2,000, with J. Max Cline and Grus E. Fulmer as principals and the Hartford Accident and Indemnity Company, a corporation, as sureties, was filed with the Liquor Control Commission of the City of Champaign, under certain provisions of City Ordinance No. 386 of said city, with application of said principals for a retail liquor license to sell intoxicants in their place of business, known as the “Dreamland Cafe” in said city.

The ordinance contained the following provisions concerning the bond in question: “Before any license is issued applicant shall file with the local Liquor Control Commission a joint and several bond executed by good and sufficient sureties, residing, or licensed to do business within the State of Illinois running to the City of Champaign, Illinois for the benefit of any persons interested, in the penal sum of $2,000 which license Class A, B and C, and $1,000 for all other licenses conditioned upon the true and faithful compliance by said applicant or licensee, with all the provisions of this ordinance and State Laws of Illinois that may be in force during the period said bond is in effect.” The bond covered the period during which the alleged cause of action arose herein on to-wit: September 16, 1941 and contained the usual penal forfeiture clause, in the sum of $2,000 executed by said principals and surety binding them severally and jointly to pay the same to the City of Champaign. The further condition thereof provided that the1 principals “shall honestly and faithfully conduct their Eetail Liquor business in conformity with all and such declarations as set forth by them in their application for license, and in conformity with the provisions of the State law entitled ‘An Act Belating to Alcoholic Liquors,’ in force February 1, 1934, and all amendments thereto, and comply with all provisions of said Act as well as of all the provisions of the Liquor Control Ordinance No. 386 of the City of Champaign, and all amendments thereto, and the regulations of the local Liquor Control Commissioner, then this obligation is void, otherwise to remain in full force and effect.”

The said Counts IX and X of the complaint further set forth section 131 of chapter 43 of Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.038], which provides that “No licensee shall sell, give or deliver alcoholic liquor to any minor, or to any intoxicated person or to any person known by him to be an habitual drunkard, spendthrift or insane, feeble-minded or distracted person. ’ ’

A breach of the conditions of the bond is alleged to have occurred on September 16, 1941, by the sale of alcoholic liquors by J. Max Cline to one Eugene Eastin, a minor, which liquors were consumed upon said premises and caused the intoxication of said minor; that said minor, as a proximate result of said intoxication so resulting from the sale of said intoxicants, negligently and carelessly drove his automobile across a certain street intersection, striking and injuring usee plaintiff appellant, Love 0. Apperson, a policeman of said city then and there engaged in the performance of his duties as a traffic officer at the intersection of Cunningham avenue and Vine street of said city, whereby he received serious bodily injuries and expended moneys in endeavoring to be cured. The ad damnum clause recited that the People of the City of Champaign, Illinois, prayed damages against the Defendant Cus B. Fulmer for the use of Love 0. Apperson in the sum of $2,000 under Count IX and a similar sum against the Hartford Accident and Indemnity Company, so prayed for by the People of the City of Champaign for the use of Love O. Apperson with costs of suit under Count X of the second amended complaint.

It further appears that an amicable settlement of an alleged cause of action against Bertha Euphrasia Reynolds, Edward F. G. Hessel and 0. Clark Hessel, as joint owners of the dramshop premises, had been made, and said persons had been dismissed as defendants to the said suit, upon the execution of a covenant not to sue; that Counts IX and X were predicated upon an alleged right of recovery of personal damages under the terms of said penal bond by the city against said Defendants Fulmer and the Indemnity Company for the use of said Apperson; that the said Indemnity Company was joined in the second amended complaint as an additional defendant, upon whom summons was served and returned on June 23, 1942, without the order of court granting leave to amend expressly permitting added defendants to be joined.

Said defendants had on July 20, 1942, filed motions under limited appearances praying that said added Counts IX and X be stricken as having been filed without requisite leave of court, which motions were denied. Thereupon, several motions were filed by said defendants in the nature of special demurrers setting up that the bond sued upon ran only in favor of the People of Champaign and not to said People for the use of Love 0. Apperson as a person beneficially interested thereunder; that said bond is penal in its nature and provides for no civil relief to the city or to said Apperson; that the ordinance in question is void as going beyond the power and authority lodged in said city by the General Assembly or Constitution of Illinois; that no primary liability has been fixed against the joint principals Cline and Fulmer and no cause of action upon the bond was stated against either defendant ahd prayed dismissal of said Counts IX and X and judgment thereon. The motions were duly heard by the court and taken under advisement and thereafter,, on March 15, 1943, the motions were allowed as to said counts, followed by their dismissal and the judgment herein appealed from.

In the written opinion, the court held that “The City of Champaign had no right under the Statutes of Illinois to require the filing of a bond for the benefit of persons situated as is the present Plaintiff as a condition precedent to the issuance of a license. Therefore, so construed, the ordinance is invalid. If it is invalid, it cannot be read into the bond to broaden the scope of the bond. There can be no recovery upon the bond in the present case as a common law bond; not because of the admitted fact that there is no statutory provision for such a bond, but because the language of the bond itself discloses no intention that the bond shall be for the benefit of persons claiming a cause of action under the Dram Shop Act. ’ ’

Paragraph 135 of chapter 43, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 68.042] creates a right of action “severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, . . . , shall be liable . . . for all damages sustained, and for exemplary damages” to any person “who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise . . . .”

Section 94, chapter 43, supra, provides for a liberal construction of the provisions of the Liquor Control Act. The right of action against the dramshop keeper or owner of the property for damages proximately resulting from the sale of liquor in violation of the provisions of section 135 of said act has been frequently sustained by the courts of review of this State and is not in question here. Nor do appellees question the appellants’ contention that said provision, “is remedial in character and should be so construed as to suppress the mischief involved and advance the remedy therein provided,” citing Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143, 23 N. E. (2d) 564; Klopp v. Benevolent Protective Order of Ellis, 309 Ill. App. 145, 33 N. E. (2d) 161; Lester v. Bugni, 316 Ill. App. 19, 44 N. E. (2d) 68. However, we do not deem the above provisions and citations to be applicable to or controlling under the facts and issues arising in this proceeding.

The section of the Liquor Control Act of 1934 (Ill. Rev. Stat., ch. 43, sec. 110 [Jones Ill. Stats. Ann. 68.017]) under which Ordinance No. 386 was drawn provides in substance that cities, villages and incorporated towns shall have power by general ordinance or resolution to determine the number, kind and classification of licenses for sale at retail of alcoholic liquors not inconsistent with this act and the amount of the local license fees to be paid and to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law, as the public good and convenience may require. By an amendment to said section, effective July 1941, it was “provided,,however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Section 2, 8, 8a and 21 of Article VI of this Act.” This amendment was construed by this court (first district) in the case of Walgreen Co. v. Garland, 316 Ill. App. 635, 45 N. E. (2d) 545, wherein it was held, p. 645, that “the Liquor Control Act has been amended to prohibit municipalities from placing restrictions upon the issuance of licenses, additional to those contained in the act itself ... it is apparent that the legislative act provided for the powers that were granted, and by the terms of the various powers it appears that there is no language in Article VI of the act that grants powers to the various municipalities other than to follow and be guided by the controls that are provided for in this amendment to the act in Article VI.” The amendment of 1941 restricted both the provisions of the original act and the right of the city to enact ordinances thereunder and in effect rendered void any conflicting provisions of any existing ordinance. Retail Liquor Dealers Protective Ass’n v. Schreiber, 382 Ill. 454, 47 N. E. (2d) 462 (1943).

In the instant case, under Counts IX and X in controversy, the suit is not based upon paragraph 135 of chapter 43, of the Liquor Control Act, providing a right of action against the licensees and lessor owners by the injured person in a direct statutory proceeding, but the recovery is sought upon the bond filed with the Liquor Control Commission of the city under the provisions of an ordinance which allegedly seeks to create and the plaintiffs appellants herein seek to plead a civil liability in favor of a third person based upon the provisions of said bond and ordinance. It will be noted that the bond in express terms runs in favor of the People of the City of Champaign only. It does not run to the People of the City of Champaign for the use of Love 0. Apperson, or to the People of the City of Champaign for the benefit of any persons interested, or to the City of Champaign for the benefit of any persons interested.

Under the Dram Shop Act of 1874, long since superseded by subsequent acts and provisions in the construction of which a number of cases have been cited, it will be noted that said former act specifically provided that (Ill. Rev. Stat. 1874, ch. 43, sec. 5):

"Bond-How Takén-Suit on. No person shall be licensed to keep a dram shop, or to sell intoxicating liquors, by any county board, or the authorities of any city, town or village, unless he shall first give bond in the penal sum pf $3,000, payable to the People of the State of Illinois, with at least two good and sufficient sureties, . . . conditioned that he will pay to all persons all damages that they may sustain, either in person or property, or means of support, by reason of the person so obtaining a license selling or giving away intoxicating liquors. . . . Any bond taken pursuant to this section may be sued upon for the use of any person, or his legal representatives, who may be injured by reason of the selling or giving away any intoxicating liquor by the person so licensed, or by his agent or servant. ’ ’

No such bond is provided for or required to be given by retail licensees under the Liquor Control Act of 1934, nor any amendment thereto, nor is any express power delegated to the city to require that a bond be given to indemnify individual persons against such civil damages, as was provided for and required by the old act. The legislature well knew that the former act made such provisions, but the same were omitted from the present law and cannot be read into the act by the court, thereby creating an added civil liability to third persons upon the bond without express delegation to the city council by the legislature of authority to make such provisions or requirements by an ordinance. The city power is a delegated authority and even though liberally construed, is no broader than the power and authority delegated by the act. As stated by the Supreme Court in the case of City of Fairfield v. Pappas, 362 Ill. 80, 199 N. E. 292: “Such revision discloses an intent to reject such of the provisions of the former act as are not included in the latter act.” Had the legislature intended to delegate to a municipality the power to require as a condition precedent to .the issuance of a retail liquor license that the licensee furnish a bond providing indemnity against loss or damage incurred by a third person under the provisions of section 135 of the Liquor Control Act of 1934, it might readily have enacted a similar provision to that contained in the prior act of 1874, Having failed to enact or include a similar provision and delegation of power, in the present act, this Court cannot so construe the same as to include the omitted or rejected provisions. Such authority, if granted, must be procured by legislative enactment and not by judicial construction.

It is further contended by the appellants that even in the absence of an express grant of power to the municipality under the general language of section 110, supra, “it is well settled that such power would exist under the general police powers inherent in a municipality.” In support thereof, several cases are cited wherein the police powers of the State in the regulation of matters of public health, occupations and employment are discussed, including some cases under differing statutes from foreign jurisdictions, which we do not consider applicable to the precise issues and facts presented herein. While power to regulate and control the conduct of liquor or dram shop business is inherent among the police powers of the State (City of Fairfield v. Pappas, supra) power of control and regulation of the conduct of such business within the boundaries of a municipality must be derived from a legislative grant of that power by the State. Concerning the application of the above principles in construing the Liquor Control Act of 1934, it was said by our Supreme Court in the case of Walgreen Co. v. Lenane, 363 Ill. 628, 2 N. E. (2d) 894 (1936) that “The only powers municipalities have to control the retail liquor business are conferred by the Liquor Control Act of 1934,” citing therein with approval the case of the City of Fairfield v. Pappas, supra. Similarly, the above court, in the case of Great A. & P. Tea Co. v. Mayor & Commissioners of City of Danville, 367 Ill. 310, 11 N. E. (2d) 388 (1937), while recognizing that the regulation, control and restriction of the liquor traffic rests within the police powers of the State, again held that (p. 314) “The power to regulate the sale of alcoholic beverages by municipalities is not unlimited. The only power they have in such respect is conferred by the Liquor Control Act of 1934,” and further citing City of Fairfield v. Pappas, supra, stated that in the latter case, “we held that the Liquor Control Act of 1934 (still in force) repealed section 46 of Article 5 of the cities and villages act, which, without limitation, had given cities and villages the right to license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor .... The rights of cities and villages are now subject to the state law with respect to the prohibition and regulation of the sale of alcoholic beverages as contained in the Liquor Control Act.” In the recent case of Retail Liquor Dealers Protective Ass’n v. Schreiber, 382 Ill. 454, 47 N. E. (2d) 462 (1943), in discussing an ordinance of the City of Chicago, it was said concerning the effect of the amendment of 1941, supra, that the validity of the ordinance in question was not therein important, since (p. 460) “the ordinance is superseded by the amendment to the Liquor Control Act hereinbefore referred to, which, if valid, prevents this remedy.”

Appellees do not herein refute and we do not undertake to pass upon the validity of the bond as an enforceable obligation in favor of the obligee therein expressly named for alleged noncompliance with its terms of a penal nature, and subject to forfeiture, on which conditions the license was granted. It is denied, however, that the bond provides civil indemnities or is legally enforceable in favor of a third person not named nor otherwise expressly designated therein 'under any power inherent in or delegated to the city by the Liquor Control Act of 1934. In so holding, the trial court did not err.

Appellants have cited several cases, which we deem to be exceptions to the general rule concerning the nonliability of obligors to unnamed and undesignated obligees not a party to the bond. Among them are bonds of public officers. The object of requiring such official bonds is to obtain indemnity against the use of an official position for wrongful acts done under color of office. City of Cairo v. Sheehan, 173 Ill. App. 464; People of the Village of Moweaqtia v. Morgan, 188 Ill. App. 250. Or to secure the faithful performance of official duties by public officers. East St. Louis v. Flannigan, 26 Ill. App. 449. Other cited exceptions to the general rule are not applicable to the provisions of the compliance bond given herein under the limited powers delegated to the municipality by the terms and provisions of the present Liquor Control Act, which we have fully discussed and passed upon herein.

There can be no recovery upon the bond in this case as a common-law bond, since the language of the bond itself discloses no intention that it was given for the benefit of the appellants or any person other than the obligee expressly named therein and recites only that the obligors “are held and firmly bound unto the People of the City of Champaign in the penal sum of Two Thousand Dollars.” It neither names, refers to nor designates any usee, nor does it set forth any express provision for recovery of civil damages for injury to the person, property or means of support of any person whatsoever. The trial court did not err in the holding that the plaintiffs appellants were not entitled to recover under its terms as a common-law bond.

To the further contention that the defendants are estopped from denying liability under terms of the bond executed by them, it need only be said that the bond, as construed by the trial court and by this court, does not undertake to indemnify third persons against damages under section 135 of the Liquor Control Act. We hold with the trial court that such a construction, if given to the ordinance would render the provisions thereof invalid. We see no merit in the above contention.

We have reserved ruling and taken with the case the . motion of appellants to strike defendants appellees additional abstract and cross-errors therewith assigned, which additional abstract sets forth certain motions and the rulings of the trial court thereon. The motions had been filed by appellees under special and limited appearances and were denied by the trial court. The brief speaks of preserving the alleged cross-errors “out of an abundance of caution.” No notice of cross-appeal had been given to appellants.. Under Buie 35 of the Supreme Court, a notice of cross-appeal is mandatory and unless given, the matters sought to be so reviewed are not and cannot be preserved in the record for decision by this court upon appeal. Bule 1 of this court requires that a praecipe for additional parts of record be filed and our Buie 41 recites that “All matters not herein provided shall be governed by Buies of Practice and Procedure of the Supreme Court.” The recent case of Holmes v. Rolando, decided by the fourth district of this court (320 Ill. App. 475, 478, 479, 51 N. E. (2d) 786) aptly discusses and adversely disposes of similar contentions to those of appellees in relation to a cross-appeal. Appellees ’ objections are overruled. Appellants’ motion to strike the additional abstract and assignments of cross-error is allowed and same are stricken.

The statutory right of action under section 135 in a direct proceeding against the licensees for the recovery of damages, if any exists, is wholly unaffected by this suit and the decision of the trial court denying the right to enforce his unliquidated claim against the surety on the licensee’s bond under Counts IX and X of his amended complaint does not deprive appellants of any material benefit inuring to them by virtue of any statutory right of action which he may have under the provisions of section 135 of the Liquor Control Act of 1934.

From a review and. consideration of the entire record, and assignments of error herein, we hold that no prejudicial nor reversible error appears in the record. The judgment of the trial court is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dady

text:
    Galion Iron Works and Manufacturing Company, Appellee, v. City of Georgetown, Illinois, Appellant.
    Gen. No. 9,402.

      Heard in this court at the February term, 1944.
    Opinion filed April 12, 1944.
    Ray M. Foreman and Everett L. Dalbey, both of Danville, for appellant.
    Dyer & Dyer, of Hoopeston, for appellee; Charles F. Dyer, of Hoopeston, of counsel.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

This suit was brought against the City of Georgetown to recover for the alleged rental of a road grader owned by plaintiff;

The complaint alleged that the grader had been delivered by plaintiff to defendant at defendant’s request on August 6, 1937; that it had been used by defendant from August 6, 1937, to May 4, 1939, in the repair, improvement and upkeep of defendant’s streets, and that the reasonable value of such use during this period amounted to the sum of $2,400.

Defendant’s answer denied that such grader was delivered at the request of defendant, and denied that the city had used such grader as charged. The answer alleged that the city did not at any time lease, borrow, rent or use the grader; that the city had not, at any time entered into any contract, either expressed or implied, for the use thereof; that the grader was delivered to the city pursuant to an alleged but void contract of purchase; that a resolution for the purchase adopted by the city council, provided that the contract was to be signed by the mayor and the city clerk; that no previous appropriation had been made by defendant for such purchase;'and that the mayor refused to sign such contract because no appropriation had been made. The answer further alleged that a petition for mandamus had been previously filed by plaintiff against , the mayor to compel him to sign a warrant which had been issued to make the first payment on said grader, that a judgment had been rendered in such suit in favor of the defendant, and that such judgment constituted a full and complete bar to the relief prayed for in the present complaint.

The case was heard by the trial court without a jury, upon a stipulation of facts and some oral evidence. Judgment was entered against the defendant for $2,100. Defendant appeals.

On July 20,1937, a resolution was passed by the city council which provided for the purchase from plaintiff of a grader at a price of $3,800. About August 6, 1937, plaintiff delivered the grader in question to “certain members” of the city council. Thereafter, “from time to time,” the grader was used upon the streets and alleys of defendant, contrary to the wishes and over the protest of the mayor.

On October 5,1937, the city council passed a resolution which provided for the payment of $760 “as the first payment” on such grader. On January 4, 1938, a mandamus proceeding was brought by plaintiff and against the mayor to compel him to sign a warrant drawn for such attempted payment of $760. On May 6, 1940, final judgment was entered in favor of the defendant in such mandamus proceeding.

On April 18, 1939, a motion was passed by the city council which provided that the grader should not be operated in the city. Sometime thereafter, and in the year 1939, the plaintiff took back the grader, and on August 9, 1940, brought this suit to recover the reasonable value of the use thereof based on an alleged implied contract.

A witness for the plaintiff testified that the fair rental value of the grader was $150 per month, but that the plaintiff was asking $100 per month. Defendant offered no evidence as to the rental value.

The annual appropriation ordinances of the city for the years 1936-1940 contained only the following material items:

It was stipulated that no public bids were ever sought, and that no appropriation ordinance was passed, for the purchase of any grader; that no express contract was ever entered into between the parties for the use of such grader, and that such use “was not done or had . . . pursuant to the provisions of” sections (pars.) 104 and 319 of ch. 24 of the Ill. Rev. Stat. of 1937.

A witness for the plaintiff testified that he was the distributing agent of plaintiff and as such delivered the grader; that during the period for which a rental is sought to be recovered he observed the grader on an average of about once a month and saw that it was given hard usage, and was badly damaged from the elements and weather; that the blades were worn through, and plaintiff sent new blades which defendant paid for. He further testified that the mayor from time to time objected to the use of the grader.

Defendant contends that the judgment in the mandamus proceeding is res judicata of the issues in the present suit. On the record as presented, it appears that in such mandamus proceeding the trial court merely found the issues for the defendant mayor. We do not consider that res judicata has been shown.

Defendant next contends that the proceedings for the attempted sale and purchase were void, and that the city could not be required to pay for the purchase of the grader, because no appropriation was ever made for such purchase. We agree with this contention. The defendant does not here contend otherwise.

Paragraph 101 (sec. 2, Art. 7) of ch. 24 of the Ill. Rev. Stat. of 1937 provides that the city council shall, within the first quarter of each fiscal year, pass an annual appropriation ordinance, in which such city, council may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of the city, and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. Paragraph 104 (sec. 4, Art. 7) of such statute provides that no contract shall be made by the city council, or any committee or member thereof, and no expense shall be incurred by any of the officers or departments of the corporation, “unless an appropriation shall have been previously made concerning such expense, . . . .”

In Roemheld v. City of Chicago, 231 Ill. 467, the court said: “Where there is a statute or ordinance prescribing the method by which an officer or agent of a municipal corporation may bind the municipality by contract, that method must be followed, and there can be no implied contract or implied liability of such municipality. Where the agents of a city are restricted by law as to the method of contracting, the city cannot be bound otherwise than by a compliance with the conditions prescribed for the exercise of the power. . . . The performance of work or furnishing material for a city and the acceptance of the resulting benefits will not render it liable to pay if the work was not authorized. The fact that the labor is beneficial will not create a liability.”

In DeKam v. City of Streator, 316 Ill. 123, the court held void and incapable of ratification a contract entered into between a city and an engineer because a prior appropriation had not been made for that purpose. At page 129 of its opinion the court said: “A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law cannot at . the same time prohibit a contract and enforce it. The prohibition of the legislature cannot be disregarded by the courts.” The question was also raised in the DeKam case whether the city could be estopped to deny the validity of the plaintiff’s alleged contract because the engineer had already completed his work and such work was beneficial to the city. The court in disposing of this contention said at page 136: “The city cannot be estopped to dispute the validity of a contract which it had no power to make, for the reason that it has received the consideration. ‘Everyone is presumed to know the extent of the powers of a municipal corporation, and it cannot be estopped to aver its incapacity, which would amount to conferring power to do unauthorized acts simply because it has done them and received the consideration stipulated for.’ ”

The next and crucial question presented is whether, under the particular facts and circumstances of this case, the plaintiff can now recover on a quantum meruit for such use of the grader.

In Hope v. City of Alton, 214 Ill. 102, it was held that an attorney could not recover for services rendered the city because a city ordinance expressly prohibited any such employment. In each of the following cases it was held that no recovery could be had because no appropriation ordinance had been passed: May v. City of Chicago, 222 Ill. 595; Gathemann v. City of Chicago, 263 Ill. 292, and Harry Goldstine Realty Co. v. City of Chicago, 306 Ill. App. 556, in each of which a claim was made by an employee for extra services; Arnold v. Village of Ina, 244 Ill. App. 239, in which it appears the claimant had constructed culverts at the request of the mayor; and Selby v. Village of Winfield, 255 Ill. App. 67, in which recovery was sought for engineering services. (See also, Coles County v. Messer, 195 Ill. 540, and Village of Marysville v. Schoonover, 78 Ill. App. 189.)

Inasmuch as in the foregoing cases the' claimants were not permitted to have any recovery for the skill, labor and materials which the municipality had used and had the benefit of, it is our opinion that in the instant case plaintiff is not entitled to any recovery for the use of the grader. In legal effect we can see no distinction between the appropriation by the city of the skill, labor and materials involved in the foregoing cases, and the appropriation by the city of the use of the road grader in question.

The plaintiff and the city officials are presumed to have known that the law required an appropriation in order to effect a valid sale. Notwithstanding such knowledge, and without any appropriation having been made for the purchase of any grader, the plaintiff and some of the city officials attempted to consummate a sale by the delivery and acceptance of the grader and by its use thereafter with the knowledge and apparent approval of the plaintiff. Such use was based on, grew out of and was a part of the attempted sale. Obviously it was not the intention of any one that there should be any contract of rental. The plaintiff by means of the mandamus proceeding attempted to collect the purchase price on such unlawful sale, and persisted in its attempt to override the law by the prosecution of such mandamus proceeding until final judgment was entered therein on May 6, 1940, which was about one year after the expiration of the period of use which is sued for. After final judgment was entered in the mandamus proceeding, and apparently as an after thought the plaintiff instituted this suit. To now permit the plaintiff to have a recovery, would be to permit it to do indirectly what it could not lawfully do directly, and would permit the plaintiff to profit from its own unlawful acts. The law furnishes no relief to parties under1 such circumstances, but leaves them where it finds them. (See Boddie v. Brewer & Hofmann Brewing Co., 204 Ill. 352; Shaffer v. Pinchbach, 133 Ill. 410, and People v. Wiersema State Banh, 361 Ill. 75.)

Plaintiff cites City of Elgin v. Joslyn, 136 Ill. 525, and Shoenberger v. City of Elgin, 164 Ill. 80. In the City of Elgin case, the plaintiff performed certain work for the defendant and after he had finished, left in the hands of the city certain tools and machinery which were destroyed by the city in completing the work. Plaintiff was permitted to recover on these items. There was no question raised in that case as to the validity of the principal contract between plaintiff and defendant, and the only question was whether defendant could be held liable for its wrongful conduct in appropriating plaintiff’s goods to its own use. There was a similar wrongful appropriation of property by the defendant city in the Shoenberger case. We do not consider such cases in point.

Plaintiff makes the further contention that because the defendant’s answer did not affirmatively allege that defendant had failed to pass any appropriation ordinance for the rental of plaintiff’s grader, defendant should not have been permitted to introduce these facts in evidence by means of the stipulation. We consider it a sufficient answer to say that the only objection made by plaintiff to the introduction of this stipulation in evidence was on the ground that certain facts set forth in the stipulation were irrelevant and immaterial, which objection the trial court overruled. If there was a variance between defendant’s answer •and the evidence introduced by it in the stipulation, this should have been specifically pointed out by the plaintiff at the trial so that the variance could have been obviated by amendment if necessary. The general objection made by plaintiff was not sufficient for this purpose. (Carney v. Marquette Third Vein Coal Min. Co., 260 Ill. 220.)

We consider as immaterial the fact that the city indirectly received some revenue (the amount of which is not shown) from the State Motor Fuel Tax Fund by reason of the grader having been used on arterial streets.

Under the facts presented in this case it is our opinion, and we find that the plaintiff .is not entitled to any recovery herein. The judgment of the trial court is reversed.

Reversed.