text:
    City of Chicago, Appellant, v. Peoples Gas Light and Coke Company, Appellee.
    Gen. No. 43,500.
    Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Barnet Hodes, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel, J. Herzl Segal, Head of Appeals and Review Division and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Daily, Dines, White & Fiedler and Sidley, Austin, Burgess & Harper, all of Chicago, for appellee; Francis L. Daily, Kenneth F. Burgess, Homer D. Dines and Douglas F. Smith, all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

The Peoples Gas Light and Coke Company was organized by special Act of the Illinois legislature passed February 12, 1855, as amended by a special Act of February 7, 1865. By these enactments it received a right to use any or all of the streets of the City of Chicago for distribution of gas, subject to its procuring the consent of the city. By Its ordinance of August 30, 1858, the city gave its consent. By an ordinance of December 22, 1890, as amended on December 29, 1890 and July 13, 1891, the Chicago Economic Fuel Gas Company was granted the right to construct and operate works for the manufacture of fuel gas, and rights of way under the public ways of the city for the purpose of placing and maintaining lines for the distribution of natural and manufactured gas. In the amendment passed December 29, 1890 the term of the ordinance was fixed at 25 years from and after its acceptance. The ordinance was accepted January 19,1891. By special Act of June 5,1897 authority was given to any gas companies doing business in the same city to consolidate and merge into a single corporation. In 1897, pursuant to that Act, the Peoples Company absorbed seven other companies, including the Economic Fuel Gas Company. In 1898 the Hyde Park was also consolidated and merged into the Peoples Company. The Economic Company obligated itself to pay to the city five per cent on the gross receipts from the sale of natural gas during the term of the ordinance. The grant was for 25 years and the obligation of the Economic Company to pay ran concurrently with the grant, or until January 19, 1916. The Economic Company never distributed illuminating gas or manufactured fuel gas. It limited itself to the distribution of natural gas, and had a relatively small system, covering only approximately seven per cent of the total area of the city. As a result of the consolidation in 1897 the Peoples Company assumed the obligations of the Economic Company in respect to paying five per cent of its gross revenue from the sale of natural gas “in the same manner and to the same extent as if the companies had remained individual and distinct.” In the consolidation the Peoples Company was obligated to pay the five per cent promised to be paid to the city by the Economic Company until January 19, 1916. After the consolidation in 1897 the Peoples Company did not supply natural gas through its general distribution system which covered the entire city, but only through the separate Economic system. Not until August 1,1917, after the expiration of the 25 year term of the Economic ordinance, was a physical connection made between the separate. Economic distribution system and the general gas distribution system of the Peoples Company.

On October 15, 1900 the city council by ordinance reduced the rate on gas from $1 per thousand cubic feet to 75c. This ordinance was attacked in the courts by the Peoples Company as confiscatory, violative of contract rights and beyond the power of the city. It became the subject of protracted litigation which twice reached the Supreme Court of the United States. (The Peoples Gas Light & Coke Co. v. City of Chicago, 114 Fed. 384, aff’d 194 U. S. 1; Mills v. City of Chicago, 127 Fed. 731, 143 Fed. 430, aff’d 204 U. S. 321.) Three gas companies were then serving Chicago, namely, the Peoples Company, Ogden Gras Company and the Universal Gras Company. The term of the ordinance under which the Ogden Company was operating, expired February 25, 1945. This company was required to pay an amount equal to 3% per cent of the gross revenue and receipts from the sale of gas. Under the ordinance granting the Universal Company the right to operate, it was obligated to pay 10 per cent of the gross amount which it collected from its general consumers if the charge was $1 per thousand cubic feet. Should the charge be reduced to 90c per thousand cubic feet, the obligation to pay compensation was to cease. The term of the ordinance was until August 22, 1944. The Peoples Company became successor to the Ogden Company and the Universal Company and is now the sole company manufacturing or distributing gas in Chicago.

By the amendment to the charter of the Peoples Company passed February 7,1865, the legislature provided that “said Common Council of the City of Chicago shall in no case be authorized to compel the said company to furnish gas at a less rate than three dollars per thousand [cubic] feet.” In the following years, Peoples Company made reductions in the rate with the result that in 1897 the charge stood at $1 per thousand cubic feet. The Consolidation Act of 1897, under which the Peoples Company absorbed a number of other gas companies, provided that the consolidated company should not increase the price charged for gas of the quality furnished to consumers during any part of the year immediately preceding such purchase, lease or consolidation or merger. It was the contention of the Peoples Company that following the merger, the existing rate of $1 per thousand cubic feet become a statutory rate, and that pending further action by the legislature the company could not be compelled to establish a lower rate. (Davis v. Keystone Steel & Wire Co., 317 Ill. 278, 283.) The status of the litigation involving the power of the city to compel a reduction, was discussed in the city council. The city, which had been making annual contracts with the Peoples Company for lighting the streets, omitted, after the expiration of the contract covering the year 1901, to enter into any further contracts with the company. It also ceased, after 1901, to pay' for the gas which was currently furnished to it by the Peoples Company. By the end of 1905 the city owed the Peoples Company for gas a total of $1,263,546.38, as to which it had an offset under the obligation of the Economic Company assumed by the Peoples Company in 1897, of $281,985.67. This left an unpaid balance due from the city of $981,560.73. The city also claimed that $117,000 was due to it from the Ogden Company under provisions of its franchise. Negotiations looking to a settlement of the dispute took place and the entire subject matter was given careful consideration by the committee on gas, oil and electric light. The city council directed this committee to take up the matter of establishing maximum rates, to employ such experts as it deemed necessary, and to report its findings as to “just and reasonable rates” not later than January 15, 1906. The committee made a thorough investigation of the matter and began consideration of the possibility of a settlement agreement. During the negotiations in November and December 1905 and January 1906, the committee, through Alderman ftaymer, proposed a rate of 85c per thousand cubic feet. Counsel for the Peoples Company proposed a rate of 90c. In a report to the city council adopted January 29, 1906, the committee reviewed the results of its negotiations with the companies, submitted a draft of ordinance to effectuate the settlement, and in conclusion summarized the essential features of the proposed ordinance and the reasons for its enactment. The committee stated that the reduction in the price of gas to 85c meant an annual saving to the people of $1,800,000, or a total of $9,000,000 for five years, or $11,000,000 in five years should the natural increase in the consumption of gas continue as in the preceding five years. The committee recommended the passage of the ordinance. It was passed on February 14, 1906 in the form recommended and accepted by the three companies on February 26, 1906.

The 1906 contract ordinance fixed the gas rate for the succeeding five years from and after the taking effect of the ordinance at 85c per thousand cubic feet. By sec. 8 of this ordinance the Ogden Company and the Universal Company were released and absolved from the payment “from and after the taking effect of this ordinance,” of the compensation provided to be paid the city by the ordinances of February 25, 1895 and July 23,1894, respectively. Sec. 8 concludes:

“And the Peoples Gas Light and Coke Company, the Ogden Gas Company and the Universal Gas Company are hereby severally released and discharged from all obligations to make payment of any compensation to the City of Chicago under said ordinances or otherwise; provided, however, nothing herein contained shall ever be construed as releasing or waiving the existing obligation to pay, from and after the passage and taking effect of this ordinance, five per cent of the gross receipts from the sale of natural' gas, as hereinafter mentioned.”

Sec. 9 of the 1906 ordinance reads:

“The amount due from the Peoples Gas Light and Coke Company to the City of Chicago up to the time of taking effect of this ordinance, being five per cent of the gross revenue derived from the sales of natural gas, shall be paid to the City of Chicago by crediting said amount upon the sum of upwards of $1,300,000 due from the City of Chicago to the Peoples Gas Light and Coke Company for gas furnished for lighting the streets of the City of Chicago by said Peoples Gas Light and Coke Company. . . . The Peoples Gas Light and Coke Company shall pay the five per cent cent on the gross revenue derived from the sales of natural gas in the City of Chicago from and after the taking effect of this ordinance.”

On January 23,1942 the City of Chicago filed a complaint at law in the circuit court of Cook county against the Peoples Gas Light and Coke Company to recover compensation of five per cent of the gross receipts of the defendant from its sale of natural gas for the years 1931 to 1940 inclusive. Plaintiff bases its claim upon the provisions of the ordinance accepted by defendant on February 26, 1906. The case was tried by the court without a jury on a printed stipulation of the facts. The court found the issues for defendant and entered judgment accordingly and this appeal followed.

Plaintiff maintains that the ordinance of February 14, 1906 imposed upon defendant an obligation which exists so long as the ordinance remains effective, to pay to plaintiff five per cent of its gross receipts from the sale of natural gas. The basic question of liability turns upon the intention of the parties to be derived from the terms of the 1906 ordinance. Plaintiff contends that under that ordinance the defendant entered into a new and direct obligation to pay five per cent of the gross receipts from the sale of natural gas, that obligation to continue so long as the 1906 ordinance remained in effect. Defendant maintains that the 1906 ordinance shows on its face that it was not intended to and did not create a new obligation upon defendant, but simply recognized and preserved the “existing obligation” contained in the Economic ordinance of 1891 to pay “the five per cent.” Plaintiff admits that the obligation referred to in sec. 9 of the ordinance is the old obligation of the Economic Company, and asserts that its admission that the language of sec. 9 refers to the old obligation of the Economic Company, does not preclude the contention by it that defendant assumed an original and direct obligation, and that the concept of the continuation of the old obligation is negatived by the phrase “from and after the taking effect of this ordinance.” It is significant that the same words were used in the Economic Company ordinance in creating the obligation to pay the five per cent for the period of 25 years and that sec. 8 of the ordinance of 1906 uses the same words describing the old obligation. We agree with defendant that the repetition of these words in sec. 9, far from creating a new and different obligation, made the identification of the old obligation more complete.

The 1906 ordinance read as a whole, was in the nature of a clean-up arrangement. It covered the whole range of the relationship between the city and the companies and disposed of all the then pending controversies between them. A check of the terms of the ordinance against the proceedings and report of the committee which recommended it to the council, shows that every existing obligation was either specifically cancelled or specifically preserved or continued. The tenor of the 1906 ordinance was to settle disputes through the medium of releases and relinquishments of obligations which had been the subject of controversy. Its purpose was not to make new grants or create new obligations. It contains two separate provisions respecting the existing five per cent obligation. The first relates to the amount which had accrued thereunder up to the time of the passage of the ordinance, and the second to the amount which would accrue from and after the passage of the ordinance. In the 1906 ordinance the city secured the cancellation of an admitted net liability of approximately $1,000,000. The city, notwithstanding its lack of power over rates, succeeded in securing a reduction in the charges of defendant amounting to approximately $11,000,000 for thé five year period covered by the agreement. It is interesting to note that on July 17, 1911, following the expiration of the 1906 ordinance, the city, relying upon the Act of May 18, 1905, passed an ordinance purporting to fix the charge for gas for the ensuing five years. In Sutter v. People’s Gas Light & Coke Co., 284 Ill. 634, our Supreme Court held the Act of 1905 to be unconstitutional. Plaintiff declares that it “received nothing as consideration for the relinquishment of these rights unless the ordinance is construed as substituting for all of the obligations to pay compensation, a new obligation to pay five per cent of the revenue derived from the sale of natural gas, not merely until 1916, but perpetually. Otherwise the city would be gratuitously abandoning valuable rights under the various franchise ordinances. ’ ’ Following this line of argument, plaintiff points out the releases of the obligations of the Ogden Company and the Universal Company. The committee and the city council were conversant with the facts and acted accordingly. It is manifest that the city, through its corporate authorities, was primarily concerned with the arrangement of reduced rates on gas for itself and the general public. The agreement which emerged from the negotiations and resulted in the contract ordinance of 1906, accomplished what the city, authorities sought. There is no doubt that in the same contract ordinance, defendant also obtained valuable concessions. We are of the opinion that the intent of the 1906 ordinance, so far as it affects the issues involved in this suit, was to preserve “the existing obligation” for the remainder of its term and not to create a new or different obligation.

Defendant maintains that the conduct of the parties subsequent to the acceptance of the 1906 ordinance confirms the interpretation relied upon by it. The city contends that two acts of defendant shortly after January 19,1916, when the latter claims its obligations expired, are inconsistent with its contention here. Defendant distributed a diminishing supply of natural gas through the separate system which it had acquired from the Economic Company up to August 1, 1917. Then defendant ceased to supply any natural gas and the separate Economic system was by physical connection made a part of the general gas distribution system of defendant. For the gas sold by it through the Economic distribution system up to and including August 1,1917, defendant paid to the city five per cent of its gross receipts from such sales. The city contends that by making these payments on gas sold subsequent to January 19, 1916, defendant recognized the existence of a continuing obligation. On February 3, 1919 the secretary of defendant wrote the following letter to the comptroller of plaintiff:

“In reply to your letter of January 28th referring to compensation at the rate of 5% of the gross receipts from the sale of natural gas for year ending December 31, 1918:1 wish to advise that no natural gas was sold in Chicago during the year 1918.”

The making of the five per cent payments to plaintiff had for a number of years been handled as one of the regular duties of members of the clerical staff of defendant. The payments applicable to periods subsequent to January 19, 1916 were made without any discussion or consideration of the expiration date of the Economic ordinanc'e and were not the subject of any action by the board of directors of defendant. In our opinion, the letter of February 3,1919 from the secretary of defendant does not constitute an implied admission against defendant. On receipt of the inquiry the secretary ascertained that the payments had been made for a number of years as a matter of clerical routine and that no natural gas had been sold during the period of the inquiry. That information was sufficient for his purpose and there was no duty resting upon him to suggest additional reasons as to why no paymént was due to plaintiff for the year 1918. We find that neither the making of the monthly payments after January 19, 1916, or the letter of February 3, 1919 constituted an act of management which recognized either that the obligation imposed by the Economic ordinance was cpntinuing, or that it has been superseded in the 1906 ordinance by another of un-determinate length.

On J une 25,1917 the city council passed an ordinance providing that all gas thereafter sold by defendant should be fuel gas conforming to specified standards of heating value instead of candle power, as theretofore. There was a significant provision in the ordinance that it “shall not extend or enlarge” the franchises formerly granted to the Economic Company; also, a declaration that no rights or obligations of plaintiff, defendant or the Economic Company were to be affected in any way. When the parties began their negotiations on December 10,1915, the Economic ordinance had a few weeks to run. When the new ordinance was finally passed in 1917, the life of the Economic ordinance had expired. The parties, however, in the ordinance, made it plain that the new ordinance was not to extend or enlarge the expired Economic franchise rights or obligations. This action is inconsistent with plaintiff’s position that the 1906 ordinance had substituted a new and different obligation for the obligation contained in the Economic ordinance of 1891. The fact that the plaintiff in the 1917 ordinance negatived any extension of the 1891 Economic ordinance, shows that it understood that the 1906 ordinance had added nothing to the 1891 ordinance and that the payments made after 1906 were made, not pursuant to any rights acquired by plaintiff under the 1906 ordinance, but to those originally acquired by it under the 1891 ordinance. It will be noted that defendant did not acquire the franchise rights of the Economic Company. It had the right to supply natural gas in Chicago in its own right. So long as the Economic ordinance lasted, defendant was bound to discharge the burdens of that ordinance.

For a period of 14 years, from August 1, 1917 to October 16,1931, no natural gas was sold by defendant. During this interval defendants supplied manufactured fuel gas. During the latter part of this period, in the late 1920’s, oil drillers uncovered in the Pan Handle area of Texas a natural gas field which proved to be the largest that had ever been found. Thereby the transmission of the gas by pipe line to remote cities became feasible. Early in 1930 defendant, in conjunction with certain other Hlinois utility companies, formed a combination with a number of large oil companies to build a gas pipe line from Texas to Joliet, Illinois, and later joined with the other Illinois utilities alone to build a connecting pipe line from Joliet to Chicago. Defendant was authorized by law to supply natural gas. It faced two problems, one was the procuring of the consent of the Hlinois Commerce Commission to a change in the heating value of the gas. The other had to do with the rates. Defendant’s rates throughout its history had always been stated on the so-called “volumetric” basis, at so many cents per cubic foot of gas. It was understood, however, that in a properly adjusted appliance the quantity of gas used by the customer depends not upon the volume of the gas, but upon the amount of heat contained in it. On June 11,1930 defendant applied to the commission for permission to state its rate in the alternative, both on a volumetric and on a thermal basis, and to render all bills on the thermal basis, except to customers who might specifically request the old volumetric bill. Plaintiff was notified of the hearing by the commission and was a party to it. Plaintiff did not object to the change, but insisted that the advantages in any cheaper methods of gas production should be shared with gas users in the form of lowered rates, whether the billing be on the heating basis (therm basis) or the cubic feet basis. Although the purpose of the change was to lay a foundation for the introduction of natural gas, plaintiff did not announce its claim to compensation out of the revenue of the sale of such gas. On July 29, 1930 the commission approved the proposed change in the billing. Plaintiff had ample notice, more than a year in advance of the arrival of natural gas from the Pan Handle. Defendant was not paying plaintiff compensation on any account at the time. On August 26,1931 defendant offered to make a 3% per cent reduction in its general rates and a 22 per cent reduction in its house heating rates, effective October 1,1931, by which time it was thought the natural gas would be in. the mains. Defendant’s request for a change in the heating value of the gas and its proposed reduction in rates were heard together by the commission, and considerable evidence was offered by defendant. Included in such evidence was an estimate of its operating expenses for the years 1932 and 1933, as such expenses would be after the natural gas had entered into its operations. This estimate tabulated every item of operating cost which defendant expected to encounter. It included no amount to cover any compensation to plaintiff of five per cent, or otherwise. Plaintiff, up to October 1, 1931, introduced no evidence, but its counsel was present at all times and was able to and did study and cross-examine upon the showing made by defendant. No question was raised by plaintiff as to the absence of an item in its operating expenses to cover compensation to plaintiff. He argued then, as on every other occasion, that the rates should be reduced. On October 1,1931 the commission entered an order approving the requested 800 BTU standard for gas and at the same time ordered defendant to reduce its general charges 6V2 per cent and its house heating charges 31 per cent. This was in accord with plaintiff’s position that rates should be reduced to the utmost limit. Had plaintiff at this time interposed a claim for five per cent of defendant’s revenue on the sale of natural gas, that payment would necessarily have become an item of operating cost in defendant’s accounts.

Defendant put into effect the decrease in its rates required by the commission’s order and shortly thereafter it began supplying natural gas in Chicago. After the reduced rates were placed in effect, plaintiff, by its counsel, continued its effort for further reduction in rates. Extensive and protracted hearings thereafter were conducted by the commission in which the plaintiff took an active part. Its counsel on April 26, 1932 asked a witness for defendant to prepare for plaintiff’s use before the commission an estimate of defendant’s earnings projected through 1934 and 1935, which estimate defendant produced, and which, at plaintiff’s request, was made a part of the record. This statement of defendant’s operating costs did not contain any reference to any compensation due to plaintiff and a breakdown of the figures giving the cost of natural gas to defendant showed that no such item of compensation was there included.

Plaintiff put on the stand a witness, Walter S. Bemis, who testified to his estimate of defendant’s net earnings for the four years, 1932 to 1935 inclusive, as an alternative to defendant’s estimates. In this exhibit Mr. Bemis began with defendant’s figures for its operating expenses and then modified them by showing the effect of certain suggested changes in the use of purchased coke oven gas. The witness did not include in his estimate of operating cost any item to cover compensation to plaintiff. Another witness, Frank P. Fisher, who submitted an estimate of defendant’s earnings, did not include any item of cost to cover compensation to plaintiff. The case was closed late in 1932 and briefs were filed in January 1933. Defendant’s position was that as a result of the order of October 1,1931, it was no longer earning a fair return upon the value of its property. Plaintiff argued for a further rate reduction and concluded with a summary of suggested revenues and operating expenses which would support its argument for a further reduction in rates. This summary did not contain any item of expense representing compensation payable to plaintiff by reason of the sale of natural gas, or on any other account.

The legislature, during its 1935 session, passed the three per cent public utility tax Act, which became effective July 1, 1935. Defendant immediately asked the commission to increase its rates by an amount sufficient to cover the tax. Plaintiff opposed the request. Defendant again filed statements of its revenues and operating expenses, this time for 1935 and 1936. These did not contain any item to cover compensation to plaintiff. At the hearing plaintiff did not contend or suggest that there should be included in defendant’s costs any item on account of compensation to it by reason of the sale of natural gas. On June 12, 1936 the commission denied the request for the three per cent increase. From 1936 until 1940 plaintiff opposed efforts by defendant to obtain an increase in its rates, basing its opposition upon statements of operating expenses which did not include any item of compensation payable to plaintiff. The long continued and consistent course of practical construction given to the 1906 ordinance confirms the interpretation relied upon by defendant. It is unnecessary to discuss the remaining points urged by plaintiff.

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

Judgment affirmed.

Lews, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Montgomery Ward and Company, Inc., Appellee, v. United Retail, Wholesale and Department Store Employees of America, C. I. O. et. al., Appellants.
    Gen. No. 43,557.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Francis Heisler, of Chicago, for appellants.
    Russell Whitman, of Chicago, amicus curiae; William H. King, Jr., Walter F. Dodd and Mitchell Dawson, all of Chicago, Kenneth A. Greenawalt and Arthur Garfield Hays, both of New York, of counsel.
    Stuart S. Ball, John A. Barr, Francis D. Roth and William L. Lamey, all of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.-

Montgomery Ward & Co., Inc., a corporation, engaged in the nation-wide distribution of general merchandise at retail through mail order houses and retail stores, filed a complaint in the superior court of Cook county seeking an injunction to restrain defendant International Union, defendant Local Union, and various officers and representatives thereof, from acting in concert for the purpose of injuring plaintiff by fostering distrust among, and otherwise alienating, its employees, prospective employees and customers, such injury to be effected by a widespread campaign of untrue statements regarding plaintiff, its policies, officers and supervisory employees. Service upon defendant International Union was successfully attacked and that defendant is no longer in the case. The motion of the other defendants to dismiss the suit was denied and the temporary restraining order prayed by plaintiff issued. Defendants elected to stand on their motion, claiming the complaint to be insufficient and the granting of injunctive relief to be improper, and raising the constitutional issue of free speech. The temporary-order was made final. The instant appeal is prosecuted from the final order. The American Civil Liberties Union obtained leave to file a brief as Amicus Curiae in view of the free speech issue involved.

The complaint, summarized, states that plaintiff and its predecessors have been engaged in the retail business for more than 70 years; that it has acquired among its customers, employees, and the public, a reputation for honesty, fairness and integrity, which reputation is invaluable to the plaintiff in the conduct of its business; that it operates nine mail order houses, approximately 650 retail stores and various warehouses and catalogue order offices; that its sales approximate $600,000,000 per year; that it employs at various seasons of the year from 65,000 to 85,000 persons; that it operates various mail order houses and stores therein described; that defendant, International Union, has a constitution; that it acts through its duly elected officers and representatives, in the full exercise of the powers conferred upon it by its constitution; that it invests funds, owns property, enters into contracts, and claims in its own name rights as the collective bargaining representative of employees under chapter 7 of title 29 of the United States Code, known as the National Labor Relations Act; that pursuant to the provisions of its constitution, the International Union has caused to be organized various local unions of its members; that the International Union gives advice and orders to the local unions and assists them in obtaining new members, in conducting strikes and boycotts, in negotiating and making collective bargaining agreements, and in other related activities; that the Local Union is a voluntary unincorporated association of several hundred natural persons, members of the defendant International Union; that the International Union is a voluntary unincorporated association of several hundred natural persons, having its principal offices in New York City; that the Local Union has its principal offices in Chicago; that the Local Union has a constitution and by-laws; that the Local Union acts through its duly elected and appointed officers and representatives, in the full exercise of the powers conferred on it by its constitution and by-laws; that it invests funds, owns property, enters into contracts, and claims in its own name rights as collective bargaining representative of employees under the National Labor Relations Act; that the individual defendants are officers or members of the executive board of the Local Union; that defendants are sued both individually and in their official capacities; and that the members of the Local Union are so numerous as to make it impracticable or impossible to join them all in the suit, or to bring them all before the court.

The complaint further represents that the Local Union was on August 26,1940 certified by the National Labor Relations Board as the exclusive bargaining representative of plaintiff’s eligible employees in its Schwinn warehouse for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such bargaining representative since then; that the Local Union was on February 28,1942 certified by the National Labor Relations Board as the exclusive bargaining representative of plaintiff’s eligible employees in its Chicago mail order house, its Fashion mail order house and its Chicago retail store for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such bargaining representative since then; that the Local Union has been selected by and was recognized by the plaintiff on October 26, 1942 as the exclusive representative of plaintiff’s eligible employees in its Display Factory at Chicago for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such representative since then; that the Local Union has been selected by and was recognized by plaintiff on August 12, 1942 as the exclusive representative of plaintiff’s eligible employees in the Printing Department of its executive offices at Chicago for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such representative since then; that the Local Union has been selected by and was recognized on May 18,1942 as the exclusive representative of plaintiff’s eligible employees in the Maintenance Department of its executive offices at Chicago for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such representative since then; and that the Local Union has been selected by and was recognized by the plaintiff on April 27, 1942 as the exclusive representative of plaintiff’s eligible employees in the Photographic Unit of its executive offices at Chicago for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted as such representative since then; that other local unions were similarly organized in Denver, Kansas City, Mo., Detroit, Jamaica, Long Island and in the vicinity of Albany, Troy and Menands, 1ST. Y.; that the Local Union organized in Denver was certified by the National Labor Relations Board as the exclusive representative of plaintiff’s eligible employees in its Denver retail store for the purpose of collective bargaining with respect to rates of pay, hours of employment and other conditions of employment, and has acted since then as such representative; that the Local Union organized in Kansas City, Mo., has solicited members for itself and the International Union among the eligible employees of plaintiff’s Kansas City inail order house; that it claims to be the duly selected exclusive representative of plaintiff’s eligible employees in its Kansas City retail store and mail order house for the purpose of collective bargaining; that the Local Union organized at Detroit has solicited members for itself and the International Union among the eligible employees of plaintiff’s Detroit store; that the International Union was on November 28, 1941 and January 13, 1942 certified by the National Labor Relations Board as the exclusive representative of plaintiff’s eligible employees in each of plaintiff’s four Detroit stores for the purpose of collective bargaining, and has since then acted as such representative; that the Local Union at Jamaica, Long Island, has solicited members for itself and the International Union among the eligible employees of that store; that the International Union was on May 15, 1941 certified by the New York State Labor Relations Board as the exclusive bargaining representative of plaintiff’s eligible employees in its Jamaica retail store for the purpose of collective bargaining and has acted as such representative since that date; and that the Local Union located in and about Albany, Troy and Menands has. solicited members for itself and the International Union among the eligible employees of plaintiff’s Albany mail order house and Albany retail store.

The complaint further states that on or about March 8,1940 the International Union, the Local Union and the individual defendants agreed and conspired to act in concert against plaintiff for the purpose of damaging plaintiff' by: (a) causing plaintiff’s employees to fear, dislike or distrust the plaintiff and plaintiff’s officers and supervisory employees, to become less productive in the performance of the duties of their employment, and to leave plaintiff’s employment; (b) causing prospective employees to fear, dislike or distrust the plaintiff and plaintiff’s officers and supervisory employees, and to refrain from seeking or accepting employment with the plaintiff; (c) causing plaintiff’s customers and prospective customers to dislike or distrust the plaintiff and plaintiff’s officers and supervisory employees, and to refrain from trading with the plaintiff; that the defendants have ever since acted in furtherance of the agreement and conspiracy; that the individual defendants have subsequent to March 8, 1940 entered into, participated in and assisted, and are “now” participating in and assisting the conspiracy set forth; that in furtherance of the common design and purpose of the conspiracy the defendants have on many occasions since March 8, 1940, printed, or caused to be printed, or encouraged or assisted in the printing of, articles and stories concerning plaintiff, its officers and supervisory employees, in the official organ of the International Union entitled “The Retail, Wholesale & Department Store Employee”; that in furtherance of the common design and purpose of the conspiracy, the defendants have periodically since March 8, 1940, printed, or caused to be printed, or encouraged or assisted in the printing of pamphlets, handbills or broadsides entitled “Spotlight,” together with other pamphlets, handbills or broadsides not so specifically entitled; that they have distributed, or caused to be distributed, or encouraged or assisted the distribution of, copies of such official organ, pamphlets, handbills or broadsides to the general public and to the employees, prospective employees and customers of plaintiff; that in furtherance of the common design and purpose of the conspiracy the defendants have periodically since March 8, 1940, caused, encouraged or assisted the various local unions to print pamphlets, handbills or broadsides, and have caused, encouraged or assisted the distribution of copies of such pamphlets, handbills or broadsides to the general public and to the employees, prospective employees and customers of the plaintiff; that in furtherance of the common design and purpose of the conspiracy the defendants have continuously since March 8, 1940, published, or caused to be published in the manner hereinbefore alleged, untrue statements meaning, intended to mean, and necessarily understood by those to whom the statements were published to mean that the plaintiff, its officers and supervisory employees have violated the laws of the United States and of the several states; that plaintiff maintains or has maintained a sweatshop; that plaintiff maintained or has maintained a speed-up system which has injured or destroyed the health of its employees; and that plaintiff has maintained unsafe or unhealthy working conditions.

The complaint further asserts that in furtherance of the common design and purpose of the conspiracy, the defendants have continuously since March 8, 1940, published, or encouraged or assisted others to publish in the manner hereinbefore charged, statements making untrue assertions about the prices charged employees for merchandise sold them by plaintiff; making untrue assertions about the prices charged and the food furnished employees in its cafeterias and about its profits from these cafeterias; making untrue assertions about the rates charged, benefits paid and method of operation of the Employees’ Benefit and Group Life Insurance Plans maintained by plaintiff; statements meaning, intended to mean, and necessarily understood to mean that employee contributions to the Employees’ Benefit and the Group Life Insurance Plan have been or are diverted to the profit of plaintiff or to the personal remuneration of plaintiff’s representatives; statements meaning, intended to mean, and necessarily understood to mean that plaintiff has admitted the justice or reasonableness of union demands which it has refused to grant; statements meaning, or intended to mean and necessarily understood to mean that plaintiff has an avowed policy that the interests of its stockholders come first before the welfare of the employees; statements meaning, or intended to mean and necessarily understood to mean, that plaintiff has consistently and deliberately discharged employees with seniority in order to hire new employees at lower wages, or that plaintiff gives no consideration to length of service; statements making untrue assertions about the company’s wage history; statements meaning, intended to mean, and necessarily understood to mean, that plaintiff has a practice or policy of paying women lower wages than men for comparable work; statements that plaintiff or its principal officers are opposed to, or have sought to injure or destroy, the form of government established by the Constitution of the United States; statements that plaintiff or its officers have sought to obstruct the prosecution of the war, or have refused to aid in the winning of the war; statements that plaintiff or its principal officers have defied or attacked the constitutionally established government of the United States; statements that plaintiff has sought to use participation in the war effort as an excuse for lowering wages or working conditions; statements that plaintiff has refused to permit a Bed Cross mobile blood bank to use plaintiff’s premises; statements that plaintiff’s management representatives do not keep their promises; that plaintiff’s management representatives do not tell the truth; that plaintiff’s management and supervisory staff are men and women of low moral character; and statements making untrue assertions as to actions or motives of or words spoken by members of plaintiff’s supervisory staff, such assertions being intended to cause and necessarily have the effect of causing, such supervisory employees to lose the respect, liking, and co-operation of plaintiff’s other employees.

The complaint further states that pursuant to the common design and purpose of the conspiracy, defendants have continuously since March 8, 1940, published, or caused to be published, or encouraged or assisted others to publish in the manner hereinbefore set forth, statements referring to members of plaintiff’s supervisory staff and management in scurrilous and opprobrious terms; that such statements were intended to cause, and necessarily had the effect of causing, such supervisory and management employees to lose the respect, liking and co-operation of plaintiff’s other employees; that the statements were intended to imply, and necessarily had the effect of implying, that plaintiff’s supervisory and management employees were a party to, or were engaged in, acts of a character similar to those referred to in the statements herein-before described; that the statements above described were defamatory; that, by the conduct described, defendants have damaged plaintiff’s business reputation, good will and trade; that it has necessarily suffered damage by the loss of sales which it would have otherwise made, by loss of prospective employees, and by loss of efficiency in the performance by its employees of the tasks assigned to them; that it has necessarily been subjected to contempt, fear, dislike, or distrust by its employees, prospective employees, customers, -and the general public; that it has, in numerous collective bargaining sessions with the defendant unions, and with the individual representatives of the unions, protested the publication of the statements herein-before described, produced evidence of the untruth of the statements, and demanded that the publication of the statements be ended, but the defendants have maliciously and wilfully continued to publish such statements; that they intend to continue to publish, or cause or assist or encourage others to publish untrue and opprobrious statements having the same or similar purport as those hereinbefore described; that unless the further distribution of pamphlets, handbills or broadsides described be enjoined, such untrue and opprobrious statements will continue to be published, and the pamphlets, handbills and broadsides distributed, or caused or encouraged to be distributed by defendants, will continue to include such untrue and opprobrious statements, or statements of similar import ; that the defendants will continue to publish such untrue or opprobrious statements unless they are enjoined from continuing to conspire together and act in concert for the purpose of causing plaintiff’s employees to fear, dislike or distrust plaintiff, or to become less productive in the performance of the duties of their employment; causing prospective employees to fear, dislike or distrust plaintiff and to refrain from seeking to accept employment with plaintiff; causing plaintiff’s customers and prospective customers to dislike or distrust plaintiff and to refrain from trading with plaintiff; that plaintiff has no adequate remedy at law; that the acts of defendants will continue to be numerous and continuous; that unless defendants are enjoined, plaintiff will be required to institute numerous, expensive and frequent actions for damages; that the defendant International Union and the defendant Local Union are unincorporated associations, the members of which are too numerous to be joined in a single action at law; that plaintiff’s damages far exceed the probable financial responsibility of defendants ; that plaintiff cannot be adequately compensated for the loss of the confidence, liking, and efficiency of its employees; that plaintiff cannot “at this time” secure new employees in sufficient numbers to replace its present employees; that plaintiff cannot be adequately compensated for loss of customer good will; and that the future effect of such damage cannot adequately be ascertained.

Attached to and made a part of the complaint are lengthy exhibits. Exhibit A is headed, “Statements charging or meaning that plaintiff has violated the law. ’ ’ The titles of the subheads of this exhibit read : ‘ Statements charging or meaning that plaintiff has violated Section 8 (1) of the National Labor Relations Act by interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act”; “Statements charging or meaning that plaintiff or its representatives have orally discouraged employees from joining or supporting labor unions”; “Statements charging or meaning that plaintiff has intimidated employees in the exercise of the rights guaranteed by the. Act”; “Statements charging or meaning that plaintiff has posted bulletins or circulated literature intended to discourage union membership ”; “ Statement charging or meaning that plaintiff has interfered with the rights of its employees by espionage”; “Statements charging or meaning that plaintiff interferes or has interfered with the self-organization of its employees by acting to prevent employees from attending union meetings or from engaging in union activities”; “Statements charging or meaning that plaintiff has made wage adjustments or other changes in conditions of employment for the purpose of discouraging union membership ”; “ Statements charging or meaning that plaintiff instigated or encouraged law suits by one Henry Davis and others against the defendant Local Union, and, that plaintiff did so in order to destroy the defendant Local Union”; “Statements in general terms charging or meaning that plaintiff conducts or has conducted a campaign of resistance to the unionization of its employees”; “Statements charging or meaning that plaintiff has violated Section 8 (2) of the National Labor Relations Act by dominating and by contributing support to a labor organization, or by interfering with the administration of a union”; “Statements charging or meaning that plaintiff has violated Section 8 (3) of the National Labor Relations Act by discriminating against its employees in order to discourage union membership’’; “Statements charging or meaning that plaintiff has violated Section 8 (5) of that National Labor Relations Act by failing to bargain collectively in good faith”; “Statements charging or meaning that the plaintiff has violated the Fair Labor Standard Act”; “Statements charging or meaning that plaintiff has violated other laws. ’ ’ Exhibit B is headed, ‘ ‘ Statements making untrue assertions concerning working conditions maintained by plaintiff.” The titles of the subheads read: “Statements charging or meaning that plaintiff maintains or has maintained a ‘sweatshop’;” “Statements charging or meaning that plaintiff has maintained a ‘ Speed-up ’ system which has injured or destroyed the health of its employees”; “Statements charging or meaning that plaintiff maintained unsafe or unhealthy physical working conditions.”

Exhibit C is headed, “Statements making untrue assertions about prices charged employees by the plaintiff or about services provided employees by the plaintiff.” The titles of the subheads read: “Statements making untrue assertions about the prices charged employees for merchandise”; “Statements making untrue assertions about the prices charged and the food furnished employees in plaintiff’s cafeteria and about plaintiff’s profits from the cafeterias”; “Statements making untrue assertions about the rates charged, benefits paid, and method of operation of the Employees Benefit and Group Life Insurance Plans maintained by plaintiff”; “Statements which meant, were intended to mean, and were understood by the readers of them to mean, that employee contributions to the Employees Benefit and Group Life Insurance Plans were diverted to the profit of the plaintiff or the remuneration of plaintiff’s representatives.” Exhibit D is headed, “Statements making untrue assertions about the policies adopted or followed by the management of the plaintiff.” The titles of the subheads read: “Statements charging or meaning that plaintiff has admitted the justice or reasonableness of union demands which it has refused to grant ”; “ Statements charging or meaning that plaintiff has an avowed policy that ‘stockholders come first’ before the welfare of the employees”; “Statements charging or meaning that plaintiff has consistently and deliberately discharged employees with seniority in order to hire new employees at lower wages, or that plaintiff gives no consideration to length of service”; “Statements charging that plaintiff has not made any change in wages or working conditions since the union organized which was not due to union demands”; “Statements making untrue assertions about the company’s wage history”; “Statements meaning that plaintiff has a practice or policy of paying women lower wages than men for comparable work. ’ ’

Exhibit E is headed, “Statements charging or meaning that plaintiff or its management is unpatriotic, treasonable or opposed to the form of government of the United States.” The titles of the subheads read: ‘ ‘ Statements charging or meaning that plaintiff or its principal officers are opposed to, or have sought to injure or destroy, the form of government established by the Constitution of the United States”; “Statements charging or meaning that plaintiff or its officers have sought to obstruct the prosecution of the war or have refused to aid in the winning of the war”; “Statements charging or meaning that the plaintiff or its principal officers have defied or attacked, the constitutionally established government of the United States”; “Statements charging or meaning that plaintiff has used or has sought to use participation in the war effort as an excuse for lowering wages or working conditions”; “Statements charging plaintiff with refusing to permit a Red Cross mobile unit to use plaintiff’s premises.” Exhibit F is headed, “Statements which make untrue assertions about members of plaintiff’s supervisory staff and management.” The titles of the subheads read: ‘ ‘ Statements charging or meaning that plaintiff’s management representatives do not keep their promises”; “Statements charging or meaning that plaintiff’s management representatives do not tell the truth”; “Statements which charge or mean that members of plaintiff’s management and supervisory staff are men or women of low character”; ‘ Statements making untrue assertions as to actions or motives of or words spoken by members of plaintiff’s supervisory staff, such assertions being intended to cause such supervisory employees to lose the respect or liking of plaintiff’s other employees.” Exhibit G is headed, “Statements which refer to members of plaintiff’s supervisory staff and management in scurrilous and opprobrious terms.” After the filing of the complaint, plaintiff filed an affidavit, attaching additional exhibits J, K, L and M. The latter exhibits quoted the views of the defendants as to the complaint filed by plaintiff. More than 400 of these statements, all alleged to be untrue, are quoted verbatim in the exhibits. The dates, places and medium of publication of each of the more than 400 falsehoods are set forth. These allegations set forth the publication of untruths in five cities, over a period of time beginning with March 8,1940 and continuing to the date the complaint was filed.

The final order and the injunction issued thereunder restrains each of the defendants from (1) “Conspiring together to publish, or to cause to be published, or to assist or encourage any other person or organization to publish, untrue statements concerning the plaintiff, its officers, or its supervisory employees, or concerning the working conditions maintained by the plaintiff, for the purpose of (a) causing plaintiff’s employees to fear, dislike or distrust the plaintiff or plaintiff’s officers or supervisory employees; or (b) causing prospective employees to fear, dislike or distrust the plaintiff, or plaintiff’s officers or supervisory employees; or (c) causing plaintiff’s customers or prospective customers to dislike or distrust the plaintiff or plaintiff’s officers or supervisory employees; (2) from acting in concert to publish, or to cause to be published, or to assist or encourage any other person or organization to publish untrue statements concerning the plaintiff, its officers, or its supervisory employees, or concerning the working conditions maintained by the plaintiff, which untrue statements have the effect of (a) causing plaintiff’s employees to fear, dislike or distrust the plaintiff, or plaintiff’s officers or supervisory employees; or (b) causing prospective employees to fear, dislike or distrust the plaintiff, or plaintiff’s officers or supervisory employees; or (c) causing plaintiff’s customers or prospective customers to dislike or distrust the plaintiff, or plaintiff’s officers or supervisory employees.”

Defendants’ motions to strike and dismiss the complaint, admit facts that are well pleaded. Defendants did not traverse the allegations of ultimate facts made by the plaintiff. Therefore, defendants are not now in a position to challenge such allegations. By their motions, defendants admit that the statements set forth in the. exhibits and attributed to them are untrue. In our opinion, the complaint shows that there was a labor dispute between plaintiff and its employees who were represented by defendants. The complaint states that in certain stores or departments the National Labor Relations Board certified the International Union or the Local Union as the exclusive bargaining representative of plaintiff’s eligible employees, and that such union acted as such bargaining representative since such certification. The complaint states that in other stores the Local Union was 11 recognized” by plaintiff as the exclusive representative of plaintiff’s eligible employees for the purpose of collectivo bargaining. There is no positive statement in the complaint that in the cases where the union was certified by the National Labor Relations Board that the plaintiff “recognized” the union as the exclusive bargaining representative, unless the allegation that since certification the union acted as bargaining representative can be so construed.

The complaint asserts that in numerous collective bargaining sessions with the union, and the individual defendants as the representatives of the union, it protested the publication of the defamatory statements, produced evidence of the untruth of many such statements, demanded that the publication of such statements be ended, but that defendants maliciously and wilfully continued to publish such statements. From these allegations we assume that plaintiff recognized the various local unions and the individual defendants as having authority to conduct collective bargaining with respect to rates of pay, hours of employment and other conditions of employment. There is no allegation in the complaint that there was not a labor dispute between plaintiff and its employees represented by the unions and the individual defendants. In reading the titles and subtitles of the exhibits, it will be observed that such headings are the assertions by plaintiff as to the meaning of the charges and statements made in the various pamphlets and publications. While by their motions, defendants admit that all the statements made by them are untrue, the headings composed by plaintiff and not attributed to defendants are also taken as true. Our view is that there was a labor dispute and that the dispute concerned plaintiff and its employees’ representatives by defendant Local Union and the individual defendants. Thus, in Exhibit A plaintiff asserts that the statements therein recited amounted to charging or meaning that plaintiff had violated the law, that plaintiff had violated sec. 8 of the National Labor Relations Act by interfering with, restraining or coercing its employees in the exercise of the rights guaranteed by sec. 7 of the Act. A perusal of the headings and subheadings of the exhibits shows that plaintiff understood that the statements alleged to be defamatory, charged the plaintiff with violating some duty it owed to its employees, with violating the National Labor Relations Act, with failing to bargain collectively in good faith, and with making untrue assertions with respect to working conditions, etc. -While the motions to dismiss admit the defamatory statements, the assertions of plaintiff in the headings of the exhibits show that the defamatory statements were understood by plaintiff to be made in support of contentions in labor disputes between plaintiff and defendants as bargaining representatives for certain employees of plaintiff. Paragraph 50 of the complaint shows that plaintiff considered that the defamatory statements arose out of the labor relations between plaintiff and defendants in their collective bargaining, for therein plaintiff states that in “numerous collective bargaining sessions with the defendant unions, and with the individual defendants as representatives of said unions,” it protested the-publication of the statements described, produced evidence of the untruth of many of such statements, and demanded that the publication of such statements be ended, but that defendants maliciously and wilfully continued to publish such statements. A reasonable inference from the allegations of this paragraph is that during the collective bargaining sessions mentioned, defendants refused to accede to the request that the publication of defamatory statements be ended. We find that the complaint and the exhibits show that there was a labor dispute between plaintiff and defendants as the bargaining representatives of certain employees of plaintiff.

Defendants maintain that a court of equity has no jurisdiction to restrain the publication of libel, nor the power to set itself up as an advance censor of any publication, even though such publication be defamatory ; that the injunction order violates State and Federal constitutional rights of free press and speech; and that the publicizing of facts of labor disputes is within constitutional guarantees of free press and speech. Plaintiff replies that the complaint is fully specific in alleging the existence of a conspiracy and concert of action among the defendants; their intent to injure the plaintiff; the resulting publication of more than 400 defamatory statements about plaintiff to thousands of employees and customers; the untruth of these defamations; the continued publication of such untruths after knowledge of their falsity; the intent of the defendants to continue the publication of such untrue defamations; the irreparable injury to the plaintiff, and the lack of any adequate legal remedy. Plaintiff states that by electing to stand upon their motions to strike &nd to dismiss, the defendants have admitted the existence of a conspiracy, the conspiratorial publication of the more than 400 defamatory statements, the untruth of these defamations, the distribution of each to thousands of employees, prospective employees, customers and prospective customers, the continued publication of the defamations after evidence of their untruth had been called to the attention of defendants, the repetition of these defamatory untruths, and the intent of defendants in furtherance of the conspiracy to continue the publication of untrue defamations. Plaintiff asserts that the complaint stated a cause of action for conspiracy. Defendants say that an established labor organization, its members and officers acting in the pursuit of their legitimate interest, may not be charged with conspiracy, even though such trade union activities may be inimical to the interest of the employer whose employees are, or are to be, organized by the union. Plaintiff states that they do not question defendants’ right to organize in order legally to further the legitimate interests of labor, nor the right to free speech in furtherance of lawful objectives. Plaintiff further declares that there is no real issue involved as to defendants’ right of free speech; that the injunction does not interfere with the right of free speech; and that it is only the publication of lies, libel and opprobrium which is barred, and this only when done for the purpose of inflicting injury upon plaintiff.

In Kidd v. Horry, 28 Fed. 773, Mr. Justice Bradley said that the law clearly is that a court of chancery will not interfere by injunction to restrain the publication of a libel. He also held that the existence of malice in publishing a libel or uttering slanderous words cannot make any difference in the jurisdiction of the court. We are of the opinion that the allegations of conspiracy cannot make any difference in the jurisdiction of the court. “Where a suit is brought against two or more persons for a civil wrong, it is not the conspiracy but the civil wrong resulting in damage which is the gist of the action.” Pustelniak v. Vilimas, 352 Ill. 270, 277; Bonney v. King, 201 Ill. 47; Lasher v. Littell, 202 Ill. 551; Dean v. Kirkland, 301 Ill. App. 495.

“The conspiracy, not being the gravamen or gist of the action, ... an allegation of the conspiracy does not in and of itself allege a cause of action, and, ordinarily it need not be alleged in order to impose liability for the wrong on all who have conspired to commit it, and, on the other hand, an allegation of conspiracy does not warrant a recovery, if there is no right of action independent of the conspiracy. An allegation of conspiracy becomes important only as it may affect the means and measure of "redress. It may be pleaded and proved only in aggravation of the wrong of which plaintiff complains, or for the purpose of enabling him to recover against all the conspirators as joint tort-feasors, or for the purpose of holding one defendant responsible for the acts of his co-conspirators. Such allegation is a mere matter of inducement leading up to the relation of the acts from which conspiracy may be inferred, and does not change the nature of the action from one purely on the case, subject to all the settled rules of such action, or add anything to its legal force and effect.”

15 C. J. S., Conspiracy, sec. 25. While in the quotation from Corpus Juris Secundum the author was speaking of an action at law for damages, we believe the remarks are applicable to a complaint in chancery for an injunction to restrain publication of a libel, as in the case at bar.

The injunction clearly constitutes a previous restraint on publication. The continued publication of claimed untrue statements in the union handbills, broadsides and pamphlets places defendants in fear and peril of contempt and of fine and imprisonment therefor. The chancellor becomes a judicial censor. The first amendment to the Federal Constitution states that Congress shall make no law “abridging freedom of speech or of the press.” Sec. 4, art. II, of our Illinois Constitution, declares:

“Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trial for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. ’ ’

Freedom of speech and of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties protected by the Fourteenth Amendment from invasion by State action. Thornhill v. Alabama, 310 U. S. 88. The protection so afforded is from State and Federal court decrees, as well as from State and Federal legislative enactments. A. F. of L. v. Swing, 312 U. S. 321, 325; Cafeteria Employees Union v. Angelos, 320 U. S. 293. Our State constitution protects these liberties from infringement by action of the legislature or the courts. Liberty of the press embraces newspapers, periodicals, pamphlets and leaflets, and, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. Lovell v. City of Griffin, 303 U. S. 444, 452. In Grosjean v. American Press Co., 297 U. S. 233, the court, after an historical review, said (249):

“This court had occasion in Near v. Minnesota [283 U. S.], supra, at pp. 713 et seq., to discuss at some length the subject in its general aspect. The conclusion there stated is that the object of the constitutional provisions was to prevent previous restraints on publication; and the court was careful not to limit the protection of the right to any particular way of abridging it. Liberty of the press within the meaning of the constitutional provision, it was broadly said, (p. 716), meant ‘principally although not exclusively, immunity from previous restraints or [from] censorship.’ ”

The right of immunity from previous restraints extends to the false and libelous as well as to the true. Patterson v. Colorado, 205 U. S. 454, 462. In Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. 553, the court decided that equity has no jurisdiction to enjoin a libel or slander defaming the credit or business standing of a person. The court there said:

“The difficulties in the way of affording such relief are insurmountable. They grow alike out of constitutional provisions, and want of jurisdiction in the court of equity.”

Publicizing the facts of a labor dispute is within the constitutional guarantees of free press and speech. The complaint shows that the defendants were acting as a bona fide trade union and representatives of a trade union. Plaintiff insists that the right of free speech is not absolute and that it is not a license to lie or libel or an excuse for unlawful activity. Plaintiff leans heavily on the case of Swing v. A. F. of L., 372 Ill. 91. This case was reversed by the United States Supreme Court (312 U. S. 321). Plaintiff insists that the statement in the Swing case with respect to the power of a court of chancery to enjoin the publication of a threatened libel, was not affected by the reversal in the Federal Supreme Court. After carefully analyzing the opinions, our view is that the pronouncement by the Ulinois Supreme Court in that case does not now stand as authority for the proposition that a threatened libel may be enjoined. The right of a labor union to freely publicize the facts of a labor dispute was recognized in Schuster v. International Ass’n of Machinists, 293 Ill. App. 177.

The liberty of communication cannot be abridged except under circumstances presenting a clear and present danger of substantive evils. In Thornhill v. Alabama, 310 U. S. 88, the court said (105): .

“The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.”

In Carlson v. California, 310 U. S. 106, the court said (113) :

“The power and duty of the State to take adequate steps to preserve the peace and protect the privacy, the lives, and the property of its residents cannot be doubted. But the ordinance in question here abridges the liberty of discussion under circumstances presenting no clear and present danger of substantive evils within the allowable area of state control.”

See also Bridges v. California, 314 U. S. 252. No “clear and present danger” as defined by the authorities, is shown from the facts alleged in the instant complaint. Plaintiff concedes the right of defendants to publish the facts of a labor dispute. When the courts speak of the right to publish the “facts” of a labor dispute, they mean the right to publish what the parties claim to be the facts. “Fact” and “Truth” are often used in common parlance as synonymous. It is frequently difficult for the courts to determine the “facts” of a controversy. WTiat are asserted to be the “facts” of a labor dispute may or may not be the facts. They are the contentions of the parties as to the facts. The facts are to be determined under circumstances affording an “opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.” Thornhill v. Alabama, 310 U. S. 88, 105. Ascertaining the facts in any dispute, whether in the field of labor relations or otherwise, usually constitutes one of the principal elements in the controversy.

Plaintiff asserts that it has no a-dequate remedy at law; that the injury resulting from the destruction of business and good will is irreparable; that the financial irresponsibility of defendants makes any legal remedy inadequate; and that any legal remedy would involve a multiplicity of suits. In the Citizens’ Light, Heat & Power Co. case, the court said (556):

“Neither a court of equity, nor any other department of government can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. It is bootless now, to inquire whether the courts, which first dealt with this matter, did not unduly extend the privileges the constitutional provision intended to secure, by denying all power to deal in advance with the emanation of slander and libel by one private person upon another, where the only purpose of uttering them is to acquire personal gain, by wrongfully and wantonly aspersing a fellow man’s reputation and business standing. However that may be, it was the law in England until changed by statute, and is the settled- doctrine in this country that a court has no such power. ’ ’

The Citizens’ Light, Heat & Power Co. case was not appealed. It was referred to with approval by this court in Gariepy v. Springer, 318 Ill. App. 523. We approve the language quoted from the above case as . sufficient answer to the contention of plaintiff that it has no adequate remedy at law. Dean Pound analyzed the existing legal remedies pertaining to libel and concluded that: “The libel laws are a sufficient deterrent to the conveyer of insults. Equity courts have refused to become censors .of publications.” 29 Harv. L. Rev., 640.

A labor union is not a conspiracy. To effect its purpose, individuals must act together. The injunction in the instant case restrains “conspiring together to publish.” We agree with defendants that in holding that such orders violate the constitutional guarantees of a free press, the courts have made no distinction between “conspiring to publish” and publication per se. To make such a distinction would utterly nullify the constitutional guarantees. To permit a chancellor to assert the power of censorship over publications which are alleged to result from a conspiracy would open the way for the possible muzzling of all publications which are the product of the efforts of two or more individuals. As pointed out by amicus curiae, this instrumentality, used in the present case against a labor group, could at some future time, if sustained, be used against employers or groups of employers. The founding fathers realized, as Justice Holmes aptly said in Abrams v. United States, 250 U. S. 616, 630, that “the ultimate good desired is better reached by free trade in ideas,” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” In the Gariepy case (318 Ill. App. 523), citing the Citizens’ Light, Heat & Power Co. case, we said:

. “. . . the court pointed out that the difficulties in the way of affording injunctive relief against libel and slander are insurmountable, and grow alike out of constitutional provisions and want of jurisdiction in the court of equity;”

For the reasons stated, the decrees of the superior court of Cook county of June 25, 1945 and July 6, 1945 are reversed and the cause is remanded with directions to dismiss the complaint for want of equity.

Decrees reversed and cause remanded with directions.

Lews, P. J., and Kilby, J., concur.


text:
    Martin L. Massman, Successor Receiver of Garfield State Bank, Appellee, v. Thomas J. Duffy et al., Defendants. Joint and Several Appeal of Angelantonio Di Nunzio et al., Appellants.
    Gen. No. 43,634.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Edward H. S. Martin, of Chicago, for appellants.
    John Murder, of Chicago, for appellee.
   On Rehearing.

Mr. Justice Burke

delivered the opinion of the court.

On May 12, 1925 Michael J. Duffy and Frances M. Duffy, his wife, being indebted in the sum of $35,000, made and delivered their 118 bonds in the aggregate principal sum of $35,000, payable to bearer, numbered from 1 to 118, both inclusive, bearing interest at 6% per cent per annum until maturity, the interest being evidenced by coupons. The maturity date of the bonds was June 10,1930. The makers executed and delivered a trust deed, conveying to the Garfield State Bank, as trustee, the real estate improved with a store and apartment building at the northeast corner of Kenneth avenue and Harrison street, Chicago, for the security of the holders of the bonds. The trust deed was recorded on May 12, 1925. On November 16, 1927 Thomas J. Duffy, a bachelor, the owner of the real estate, made and delivered his one principal promissory note for $11,000, payable $800 or more on or before 8 months after date, then monthly payments of $100 or more until December 16, 1932, when the unpaid balance became payable, with interest at 6 per cent per annum. To secure the payment of the indebtedness Thomas J. Duffy on November 16, 1927 made and executed a trust deed to the Garfield State Bank, as trustee, conveying the real estate. This trust deed was duly recorded.

On September 4, 1928 Thomas J. Duffy conveyed title to the real estate to Maria Di Nunzio. The deed was recorded on September 5, 1928. She took title subject to, but did not assume, the payment of the indebtedness secured by either trust deed. The Garfield State Bank, the trustee in the two trust deeds, by its deed dated May 5, 1931 and recorded May 15, 1931, released the lien of the trust deeds on the south 9.21 feet of the real estate, without the consent of any of the three Duffys. At that time Maria Di Nunzio was the owner of the real estate. On June 10, 1931 default was made in the payment of all bonds secured by the first mortgage. On June 11, 1931 the Garfield State Bank, as trustee under the first mortgage, was closed by order of the auditor of public accounts. At that time the bank was the owner of the bonds secured by the trust deed. On March 4, 1932 John E. Sullivan, then receiver of the bank, resigned the trusteeship of the bank under the trust deed, and as the owner of all the bonds, appointed William T. Sullivan as successor trustee under the trust deed. On March 21, 1932, William T. Sullivan, as successor trustee, filed a bill of complaint in the circuit court of Cook county to foreclose the lien of the first mortgage. On May 16, 1932 default was made in the payments due under the junior mortgage. On January 16, 1933 Maria Di Nunzio died intestate and on June 15, 1933 letters of administration of her estate were issued to Ottavio Di Nunzio by the probate court of Cook county. She left her surviving as her only heirs and next of kin Joseph Di Nunzio, her husband, Angelantonio Di Nunzio, Dante Di Nunzio, Manfredino Di Nunzio, Settimio Di Nunzio, Ottavio Di Nunzio, Augusto Di Nunzio and Armondo Di Nunzio, her sons, Serafina Balanza, Gemma Rich (formerly Gemma Scuderi), Cesira Cook and Elvira Barton (formerly Elvira Di Nunzio) her daughters. Thereby, Joseph Di Nunzio became vested with a 1/3 interest (or ll/33rds), and each child with a 2/33rds interest. From March 21, 1932 until early in 1941 extended proceedings were had in the foreclosure case filed by William T. Sullivan, as successor trustee. Hearings were had before a master in chancery to whom the cause was referred. The principal defendants carried on negotiations to settle the foreclosure case. Early in 1941, while the case stood referred to a master in chancery, it was listed on a “no progress” call of the circuit court. Counsel for plaintiff and defendants made a joint request for a continuance. Due to a misunderstanding, the cause was dismissed for want of prosecution. The knowledge that an order of dismissal had been entered was not discovered until more than 30 days after the date of its entry. On August 6,1942 John E. Sullivan, as receiver of the bank, being the holder of the notes secured by the junior mortgage, filed a complaint to foreclose this mortgage in the circuit court of Cook county. A summons was delivered to the sheriff with directions that it be returned as to all defendants. When plaintiff delivered the summons to the sheriff, he paid no fees for service, giving to the sheriff only the 50 cent statutory fee for returning the summons. No attempt was made to serve a summons on any defendant prior to May 1943.

On February 15, 1943 the heirs and next of kin of Maria Di Nunzio appeared by filing their joint and several motion to dismiss the complaint (to foreclose the second mortgage) on the ground that the cause of action was barred by the statute of limitations. The affidavit attached to the motion alleged that the complaint was filed August 6, 1942; that no summons or other process was served on defendants; that no attempt had been made to have any service made; that plaintiff directed the sheriff not to serve the Chicago Title & Trust Company, trustee; that the last in-stalment of the note secured by the junior trust deed became due on December 16, 1932; that since then no payment or promise to pay had been made; and that Angelantonio Di Nunzio, on and after December 16, 1932, resided and was within the State of Illinois. The court overruled the motion, but gave Angelantonio Di Nunzio permission to file another motion to dismiss on the same grounds, limited to himself. He adopted this course. The affidavit attached to his motion contained the same allegations as the other affidavit. On May 10, 1943 the court sustained his motion to dismiss on the ground that the cause of action was barred as to him by the statute of limitations, and dismissed the complaint as to him at plaintiff’s costs. Two of the defendants, Serafina Balanza and Morris Balanza, her husband, elected to abide by the first motion to dismiss. All the other defendants answered, setting up, among other things, the same allegations as were contained in the affidavits, the facts as to the partial release of the trust deed, that Angelantonio Di Nunzio was in possession of the real estate, and that the cause of action was barred by the statute of limitations. On June 30, 1944 plaintiff filed a second amendment to the complaint in which he sought a foreclosure of the senior encumbrance and again made Angelantonio Di Nunzio a party to the suit. Angelantonio Di Nunzio, Serafina Balanza and Morris Balanza then filed motions to dismiss this amendment on similar grounds to the former motions. These motions were sustained and the second amendment was dismissed as to Angelantonio Di Nunzio and Serafina and Morris Balanza. The other defendants answered the second amendment, setting up similar defenses to those in their former answer and in the motions.

The case was referred to a master in chancery, who reported that there was due to the plaintiff under the first mortgage, including principal, interest, costs and attorney’s fees the sum of $47,997.97, and on the second mortgage $14,165.33. He found that the senior trust deed was a valid first lien upon a 29/33rd interest in the premises, and that the junior trust deed was a valid lien upon a 31/33rd, subject to the senior lien. Objections to the report were allowed to stand as exceptions. The court overruled the exceptions and entered a decree of foreclosure, as recommended by the master. After the decree had been entered, it was ascertained that Joseph Di Nunzio, the widower, died prior to the entry of the decree. The decree was vacated, his death was suggested and an order was entered allowing the cause to proceed against the surviving defendants. Angelantonio Di Nunzio was again brought into the case. He filed another motion to dismiss on the same grounds on which he had based his previous motions, and also on the ground that the former decisions in his favor were res judicata against the right to foreclose as to the l/33rd interest which he had inherited from his father, as well as the 2/33rds interest which he had inherited from his mother. The court overruled the motion. Angelan-tonio Di Nunzio elected to abide by his motion. Thereupon, a decree of foreclosure was entered ordering the sale of the real estate under the senior encumbrance, except the 4/33rds interest of Angelantonio Di Nunzio and Serafina Balanza, should the amounts found to be due be not paid, and foreclosing all right or equity of redemption of all defendants, if the property be not redeemed according to law, and also providing that if the sale did not bring sufficient to satisfy the junior encumbrance also, then the 2/33rds interest of Serafina Balanza should be sold at the foreclosure sale. All of the children of Maria Di Nunzio and Joseph Di Nunzio, both deceased, have prosecuted joint and several appeals from the decree. No payment has been made on the notes secured by the junior trust deed since May 16, 1932, nor has there been any promise made since then, and no other extension has been made.

The complaint to foreclose the junior encumbrance was filed on August 6, 1942. On that day a summons was issued by the clerk and delivered to the sheriff. He returned the summons on that day, with the notice that 50 cents was paid and that no directions were given to serve “the defendant corporation” and that the other defendants were not found in “my county.” Sec. 11 of the Limitations Act (par. 11, ch. 83, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 107.269]) provides that no person “shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right' of action or right to make such sale accrues.” Defendants maintain that the right to foreclose was barred by this limitation. Plaintiff filed his complaint in the clerk’s office and had the summons delivered to the sheriff within ten years after maturity of the indebtedness. Nothing further was done in the case until appellants filed their motion to dismiss on February 15, 1943, more than two months after the ten year limitation period had expired. Defendants say that plaintiff’s failure to endeavor in good faith to have process served, did not toll the running of the statute of limitations, citing Gage v. Chicago Title & Trust Co., 303 Ill. 569, and other cases. The question in the Gage case was whether a plaintiff was entitled to revive an ejectment suit. The factual situation there presented is not comparable to the situation in the case at bar, and we find that the principle there announced is not applicable to the instant case. Sec. 5 of the Civil Practice Act provides that every civil action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint and that the clerk shall issue a summons upon request of the plaintiff. Sec. 11 of the Limitation's Act does not define what is meant by the commencement of an action, but leaves that to the statutes and rules in effect from time to time. In Vincent v. McElvain, 304 Ill. 160, the court said (163):

“It is well established by repeated decisions of this and other courts that a suit or action is commenced when a party puts in motion, under his claim, the instruments of the court. Where the court is one of general jurisdiction it acquires jurisdiction of the plaintiff and the plaintiff’s cause when he applies for its power and assistance to compel the defendant to render him his rights under the law.”

In Schroeder v. Merchants’ & Mechanics’ Ins. Co., 104 Ill. 71, the court held that under the Practice Act in effect at that time that a suit was commenced when a summons was issued. There, plaintiff’s attorney neglected to place the summons in the hands of the sheriff for service. See also Fish v. Farwell, 160 Ill. 236; Schmidinger v. Balling, 91 Ill. App. 388; Stitzel v. Miller, 157 Ill. App. 390. We find that the action to foreclose the lien of the junior trust deed was commenced on August 6, 1942, when the complaint was filed and that having been commenced within ten years after the right of action accrued, it is not barred by sec. 11 of the statute of limitations.

‘ The amendment to foreclose the lien of the senior encumbrance was filed on June 30, 1944. On June 10, 1931 default was made in the payment of all bonds secured by this trust deed. Defendants insist that the lien of the first encumbrance is barred by the ten year statute of limitations. Plaintiff resists by citing sec. 18 of the Limitations Act, (par. 19, ch. 83, Ill. Rev. Stat. 1945 [Jones III. Stats. Ann. 107.278]) providing that if, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the times therein limited, after his coming into or return to the State, and that if, after the cause of action accrues, he departs from and resides out of the State, the time of his absence is no part of the time limited for the commencement of the action. Angelantonio Di Nunzio, who resided in Illinois, was in possession of the premises. His brothers and sisters were nonresidents of this State since the default in the payments due under both the first and second mortgages. Defendants lean heavily on the case of VonCampe v. City of Chicago, 140 Ill. 361, where the court said (370):

“Section 18 of the Limitation Act of 1872 has no application to the absence from the State, or non-residence, of remote grantees or assigns of the mortgagor, when they have acquired their interest in the equity of redemption after the cause of action has accrued, and when neither they nor the original mortgagor have assumed any personal liability to pay the debt secured by the mortgage. They are not the persons against whom the cause of action has accrued within the meaning of section 18.”

We are of the opinion that the VonCampe case is not applicable to the instant case. There, the original mortgagor contracted no personal liability. Here, the original mortgagors became personally obligated to pay the debt. Sec. 11 states that no person shall commence an action to foreclose a mortgage or trust deed in the nature of a mortgage unless within ten years after the right of action accrued, and sec. 18 provides that if, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the times limited after coming into or returning to the State. The holder of a note secured by a trust deed may bring an action in assumpsit on the note, he may sue to foreclose, or he may bring ejectment proceedings, and he may pursue all of these remedies at the same time. He may have only one recovery. His right or cause of action accrues against the maker or anyone who assumed the debt when it became due, and his right of action in foreclosure against the equity owner to foreclose his right of redemption accrues at the time the debt becomes due. In the instant case the right of action against the makers of the notes and against the owners of the equity accrued at the same time. While the statute of limitations is not a defense as to strangers, it is a defense to those in privity with the makers of the notes, such as subsequent grantees. “The plea of the Statute of Limitations is generally a personal privilege, and may be waived by a defendant, or asserted at his election; but where he has parted with his interest in the property, his grantees, mortgagees, or other persons standing in his place are entitled to avail themselves of all the advantages of this plea.” 1 Wood on Limitations, sec. 41 (2d ed. 1893), p. 96.

The decree in the instant case forecloses the equities of redemption as to the first and second mortgages. In order to foreclose the equities of the defendants, it was necessary to make them parties defendant. When the respective debts fell due there was a right of action in the trustees, or the holders of the notes, to foreclose the equity of redemption of Maria Di Nunzio and later of her heirs. When the cause of action accrued, and until the filing of the complaint, defendants except Angelantonio Di Nunzio were nonresidents of this State. It is clear that the right of action to foreclose their equity accrued against them. The cause of action mentioned in sec. 18 is the “right of action” mentioned in sec. 11. In onr opinion, the fact that the defendants, except Angelantonio Di Nunzio, were nonresidents, tolled the statute of limitations as to such defendants, and the action to foreclose the trust deed is not barred as to them by sec. 11 of the Limitations Act. Defendants are “persons against whom the cause of action has accrued within the meaning of sec. 18.”

As a further defense, appellants argue that when the trustee released 9.21 feet of the mortgaged premises without the consent of the mortgagors, it deprived the mortgagors of the benefit thereof as to such released 9.21 feet, and that since they had not consented to the release, the liability on the indebtedness was thereby discharged. Defendants say that the mortgagors remained liable on the mortgage indebtedness, but that the mortgaged real estate was the primary fund and security for the payment of the indebtedness and their protection against being compelled to pay that indebtedness themselves. Martin L. Massman, called as a witness by plaintiff, testified that he was manager of the real estate department of the bank; that the elevated railroad operates and maintains tracks immediately “in back of the property”; that the railroad company widened its tracks; that a portion of the premises was condemned; that “the money paid in those condemnation proceedings was paid to the G-arfield State Bank and applied on the indebtedness secured by the trust deed introduced in evidence.” Asked by the attorney for plaintiff, “Was it a portion of that money that was used to retire the bonds numbered 1 to 70, both inclusive?” he answered: “That is right.” From this testimony we are. of the opinion that the master and the chancellor were justified in finding that the money received for the condemnation of the 9.21 feet was applied in the reduction of the first mortgage, which benefited the mortgagors and the equity owners. At that time Maria Di Nunzio, the mother of defendants, was the equity owner. The condemnation suit would not proceed without service on the equity owner. Before the elevated railroad would pay out any money for the strip of land taken, whether after judgment or by settlement, it would require a quitclaim deed or some release of the interest of the equity owner. Defendants, deriving their title from Maria Di Nunzio, who was the equity owner at the time, are in no position to complain about the action of the trustee in releasing the first and second mortgages as to the 9.21 feet.

Defendants urge that the decree is erroneous in combining in one foreclosure suit the senior and junior mortgages. We cannot agree with this contention. The chancellor has ample power to protect the parties in the taxing of the costs. Angelantonio Di Nunzio contends that as between plaintiff and him the decree in his favor was res judicata; that it was so adjudicated as to the junior mortgage when his first motion to, dismiss was sustained; and that it was also so decided as to the senior mortgage when he was again brought into the suit. When, following his father’s death, he was again brought into the suit, because of his inheritance of another l/33rd interest from his father, the cotlrt ruled against him. Angelantonio Di Nunzio can have no greater right in the l/33rd interest of his father than the latter had. Joseph Di Nunzio, the father, died pending the foreclosure and his death was suggested to the court. There was no prior adjudication between the plaintiff and the defendant, Angelantonio Di Nunzio with reference to this l/33rd interest. Consequently, the doctrine of res judicata is not applicable.

Some of the defendants argue that the doctrine of laches furnished them a good defense. They state that the neglect of plaintiff’s predecessor to pursue his remedy to foreclose until it had been barred by the statute of limitations against the interest of An-gelantonio Di Nunzio in the property as to both encumbrances, and as against the interest of Serafina Balanza as to the senior encumbrance, injures them because the foreclosure of the encumbrances against their interests would make them bear the entire burden without any right of contribution against the 2/33rds interest of Angelantonio Di Nunzio as to either encumbrance and against the other 2/33rds interest of Sera-fina Balanza as to the senior encumbrance. The fact that Angelantonio Di Nunzio, as the co-owner, with the other defendants, of the equity in the mortgaged premises, is entitled to the defense of the statute of limitations, is not such prejudice to the other nonresidents as to permit the defense of laches. A bill to foreclose was filed on March 21, 1932. Appellants joined in requests to the court that the foreclosure case be continued. By accident or mistake the complaint was dismissed. There is no hard and fast rule by which to determine the application of a defense of laches. The relative positions of the plaintiff and defendants were not changed by lapse of time. In our opinion, the chancellor wisely exercised his discretion in refusing to allow appellants’ defense of laches.

For the reasons stated, the decree of the circuit court of Cook county is affirmed. »

Decree affirmed.

Kiley, B. J., and Lews, J., concur.