author: Mr. Justice

text:
    Lillian Thompson, Appellee, v. Metropolitan Life Insurance Company et al., Appellants.
    Gen. No. 9,822.
    Opinion filed February 24, 1943.
    Rehearing denied April 15, 1943.
    Vernon G-. Butz, of Kankakee, for appellants.
    John A. Mayhew, of Kankakee, for appellee.
   Mr. Justice

Dove delivered the opinion of the court. This case involves the validity of an instrument changing the beneficiary in a life insurance certificate from appellee, Lillian Thompson, to appellant, Stella Steindler. Charles A. Thompson, now deceased, was an employee of the Florence Stove Company at its Kankakee, Illinois, plant, and J. M. Fawthrop was the local office manager. The main office of the company is at Gardner, Massachusetts. The certificate in controversy was issued through a group insurance arrangement between the employer and the Metropolitan Life Insurance Company. The group policy issued to the employer was dated January 28, 1932, and the certificate (No. 350) was issued to Thompson the same date. Originally it was for $3,000, which was increased to $3,750 on June 28, 1937. The original certificate named appellee, Thompson’s wife, as beneficiary. On September 2, 1941, Thompson executed a change of beneficiary, dated the preceding day, substituting his sister, Stella Steindler, in place of appellee, and died at the Steindler home on September 4,1941, about 7:35 o’clock, p. m. The certificate bears a register of the change, with the effective date as September 1, 1941.

Following his death, appellee instituted this suit in the circuit court of Kankakee county against the insurance company, the decedent’s late employer, its local office manager, and Stella Steindler, to have the change of beneficiary set aside and declared null and void, on the grounds of mental incapacity of the insured, undue influence by the substituted beneficiary, and that the change was illegal and void. The insurance company deposited the proceeds of the certificate in court and filed an interpleader asking the court to determine which of the two claimants is entitled to the money. Upon a hearing the chancellor held against appellee on the claims of mental incapacity and undue influence, but further held that the change of beneficiary was not made in accordance with the provisions of the certificate and the laws of this State, and entered a decree ordering that the money so deposited be paid to appellee. Stella Steindler has appealed from the decree and appellee has filed cross-errors on the holdings as to mental incapacity and undue influence and these will be first considered.

The record discloses that Charles A. Thompson and appellee were married in March 1911, and lived together until August 27, 1941, when he left home and went to the home of his sister, where he died. Some months before that he became afflicted with a heart ailment which finally proved fatal, and he had been in a hospital during most of the preceding month of July, returning home about the 26th or 27th of that month. Without going into details, the evidence shows that Thompson left home on account of domestic infelicity, and while it appears that he might not have been wholly blameless, the testimony indicates that he left on account of appellee’s repeated boisterous quarreling, in order, by his doctor’s advice, to find a place where he could have peace and quiet. It also appears that he did not go to the Steindler home to stay until he had made inquiries and efforts to find other places to live.

During the time Thompson was in the Steindler home appellee visited him on one occasion, and Mrs. Steindler’s husband required her to leave because of loud talk and argument with her husband about his pay day and sending the money home. Thereafter she was not permitted to come into the house. She testified that she and her husband' always got along together except when he drank too much beer and she protested on account of his health; that they had arguments like any other married couple, but that they had no argument on the morning he left home. Appellee had previously been employed at a factory and in a restaurant for several years, and did the house work at home. She testified that when her husband left she procured employment at his request to keep up expenses around the home. She owned the premises where they lived, and at her husband’s death she received the proceeds of an insurance policy on his life for $2,000 in a fraternal insurance company, and a 1940 Buick automobile. It also appears that when the Steindlers had been out of employment some time previously they had lived with the Thompsons.

The change of beneficiary is dated September 1, 1941, and is witnessed by J. M. Fawthrop. He testified that Thompson signed it in his presence at the Steindler home on the morning of September 2, 1941; that Thompson talked to him about changing the beneficiary on two prior occasions within the week, at the second of which the witness left the form with him; that on the third visit Thompson said he had come to a decision and wanted to change the beneficiary; that at that time he said that changing the beneficiary from his wife might seem a little' unusual, but there were some previous obligations that he wanted taken care of, and that he felt that his sister would be more apt to carry out his wishes than his wife; that Mrs. Steindler said his action was not of her choosing or desire and she did not want him to do it; and that Thompson replied: “This is my affair.” The testimony fails to show any undue influence on the part of Mrs. Steindler.

Several witnesses produced by appellee testified to Thompson’s illness, a change in his disposition, and in substance that he was nervous, depressed and irritable. None of them testified that in their opinion he was of unsound mind, except Mary Clark, who was employed at the Thompson home while he was there, and she did not see him during the last two weeks or more of his life. Thirteen witnesses, besides Mrs. Steindler’s husband, including Mr. Fawthrop, who was produced as a witness by appellee, and the doctor who attended Thompson, all of them intimate acquaintances of Thompson for long periods, and who saw him shortly before his death, testified that.in their opinion he was of sound mind. Under this evidence we would not be justified in disturbing the finding of the chancellor in this respect.

The remaining question is whether the change of beneficiary was made in accordance with the terms of the policy and the applicable law. The certificate of insurance held by Thompson provides: ‘ ‘ The right to change the beneficiary is reserved to the employee.” On the back of the certificate appears the following:

.. Fawthrop testified that he mailed the change of beneficiary signed by Thompson, together with the certificate, to the home office of the Florence Stove Company at Gardner, Massachusetts, the same day the change in beneficiary was signed, and that it should reach there the second day, the morning of the 4th; and that he received the certificate back on the 10th or 11th of September. M. W. Taylor, who endorsed the “Register of Change of Beneficiary” is an official of the stove company at its home office.

Appellee claims that under the above mentioned provision of the certificate, the change of beneficiary was not effective because the endorsement was not made by the insurance company.

The opening paragraph of the certificate provides: “Metropolitan Life Insurance Company Certifies that, under and subject to the Terms and Conditions of its Group Policy No. 6315 — G. L. H. Charlie A. Thompson, an Employee of Florence Stove Company is insured for Three Thousand Dollars of Life Insurance and for a benefit of Thirty Dollars per week of Temporary Disability Insurance.”

A hospitalization rider and the rider increasing the amount of the insurance, contain similar provisions. At the bottom of page 1 of the certificate is the following:

“Certain provisions of the Group Policy are summarized on- the succeeding pages. All Provisions of the Group Policy whether mentioned or not apply to the insurance evidenced by this Certificate.”

Prior to May 1, 1938, the pertinent portion of section 9 of the group policy read:

“Section 9. Change of Beneficiary — Any Employee insured hereunder may, from time to time, change (Line 2) the Beneficiary by filing written notice thereof with the Company accompanied by the Certificate and Certificate (Line 3) Riders — if any — of such Employee. Such change shall take effect upon endorsement thereof by the Company on (Line 4) such Certificate and Certificate Riders — if any — and unless the Certificate and all Certificate Riders — if any — are so endorsed, the change shall not take effect. After such endorsement, the change shall relate back and take effect as of the date the Employee signed said written notice of change, whether or not the Employee be living at the time of such endorsement, but without prejudice to the Company on account of any payment made by it before receipt of such written notice.”

A photostatic copy of section 9 and an amendment to the group policy effective May 1, 1938, executed by the insurance company and Thompson’s employer were admitted in evidence. The applicable portion of the amendment reads:

“Metropolitan Life Insurance Company Group Policy No. 6315-GLH bearing date of January 28, 1932 and insuring the Employees of Florence Stove Company (Herein called the Employer) is hereby amended as follows:

Amendment

Effective May 1, 1938,

I. By substituting the word ‘Employer’ for the typewritten word ‘Company’ in the second and third lines of the first paragraph of Section 9 on page 4 thereof.”

From these several provisions of the certificate, the group policy, and the amendment to section 9 of the latter, it is obvious that they are tied together as one instrument, and that after the effective date of the amendment, an endorsement of a change of beneficiary was to be made by the employer and not by the insurance company, the same as if such a provision was contained in the certificate itself.

In Freund v. Freund, 218 Ill. 189; McEldowney v. Metropolitan Life Ins. Co. of New York, 347 Ill. 66; and Equitable Life Assur. Society v. Stilley, 271 Ill. App. 283, cited and relied upon by appellee, the factual situation was much different from that in the case at bar. In the Freund case, the insured held a policy in the New York Life Insurance Company, whose home office was in the State of New York. On June 16, 1902, the insured left his policy, with a signed written statement or order of change of beneficiary at the Chicago office of the insurer and died the next day. At that time a statute of the State of New York provided, in substance, that an insured should have the right at any time “with the consent of such corporation” to change the beneficiary. The policy provided “such change (of beneficiary) to take effect on the endorsement of the same upon the policy by the company,” and further provided that each selection, change or revocation of a selection ‘ ‘ shall not take effect until endorsed on this policy by the company at the home office.” The court held that the change of beneficiary could only be made with the consent of the company in the manner pointed out by the statute and by the policy, and that it had not been done in that case. The opinion also holds that the principle that where the insured has done all he could to effect a change of beneficiary but dies before the change is formally made by the company that a court of equity will regard the change as effected, does not apply to a change of beneficiary in a life insurance policy where the statute requires the consent of the company and the policy requires such consent to be indicated by endorsement on the policy at its home office.

There are several reasons why the Freund case is not controlling or persuasive here. There is no claim or showing that at the time the change of beneficiary in this case was signed by Thompson there was any statute of the State of New York, where the home office of the insurer is located, containing a provision similar to that mentioned in the Freund case. In order for the statute of another State to be available, either for the recovery of a right or as a defense, the statute must be pleaded and proved. (Dearlove v. Edwards, 166 Ill. 619; City of Detroit v. Wabash Refining Co., 223 Ill. App. 246.) Even if there was such a statute, the consent of the insurer is manifested in this case by its delegation of authority to the employer to make the endorsement. Secondly, the group policy, which is a part of the contract of insurance, provides that the endorsement shall be made by the employer, instead of by the insurer, as in the Freund case. It also significantly provides that “after such endorsement, the change shall relate back and take effect as of the date the Employee signed said written notice of change, whether or not the Employee be living at the time of such endorsement. ’ ’ The policy in the Freund case does not appear to have contained any such provision. Furthermore, the burden of proving that the change of beneficiary was ineffective was upon appellee, and even if the endorsement before the insured’s death had been necessary to accomplish the change, the evidence tends to show that in the ordinary course of events the papers would reach the home office of the employer on the morning of September 4th, and the insured did not die until that night, leaving the inference that the endorsement could have been made before the insured’s death, a situation impossible in the Freund case.

In the McEldoivney case, supra, the policy provisions as to change of beneficiary were almost identical with those in the Freund case. The insured sent the insurer a letter, stating, “I want my policy fix just like I first sign up for it to my estate,” giving the serial number and amount of the policy. In response, the insurer sent him a form for change of beneficiary, and there was evidence tending to show he finally received it, but nothing further appeared to have been done about it. The court held that in the light of the principles laid down in the Freund case it could not be said that a change of beneficiary had been effected. The policy provisions, like those in the Freund case, distinguish the McEldoivney case from the case at bar. The Stilley case, supra, is in the same category.

In Sun Life Assur. Co. of Canada v. Williams, 284 Ill. App. 222, the court held that a notice of change of beneficiary executed by the insured on the day of his death "was effective, although not endorsed on the policy until after his death, notwithstanding a provision of the policy reading: ‘ ‘ such change to take effect only upon the endorsement of the same on the policy by the Company.” The suit arose through an interpleader filed by the insurer and a deposit in court of the proceeds of the policy. After mentioning the Freund case, and the decisions in the McEldoivney case and the Stilley case as based thereon, and citing 78 A. L. R. 974 as showing the "weight of authority is contrary to /the holding.in the Freund case, the court stated that the designation of a beneficiary in the first instance is left to the exclusive wish of the insured; that the insurer is no more concerned in the redesignation of a beneficiary than it is in the original designation; that the change, so far as the beneficiary is concerned, is effected when the, insured, in due form, makes the change; that the endorsement by the insuring company merely registers the name of the new beneficiary; that such a policy provision is for the benefit of the insurer and can be waived by it; that by bringing the money into court the company makes a further recognition of its duty to make the endorsement as requested by the insured and its action in so doing cannot be questioned by a former beneficiary. On June 12, 1936 the Supreme Court denied leave to appeal and this case has been cited with approval in Larson v. McCormack, 286 Ill. App. 206, 208, and Novotny v. Acacia Mut. Life Ins. Co., 287 Ill. App. 361, 364. We agree with the principles of law laid down in Sun Life Assur. Co. v. Williams, supra, and under that authority the change of beneficiary in this case was effectively accomplished.

The cross-errors are overruled and the holdings of the trial court on the questions of mental incapacity and undue influence are affirmed. That part of the decree holding that the change of beneficiary was not effected in accordance with the terms of the certificate and the laws of this State and directing the money deposited to be paid to appellee is reversed, and the cause is remanded with directions to enter a decree ordering the proceeds of the certificate to be paid to appellant, Stella Steindler.

Decree reversed and cause remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    May H. Patteson et al., Appellants, v. City of Peoria, Appellee.
    Gen. No. 9,845.

      Opinion filed February 24, 1943.
    Rehearing denied April 15, 1943.
    Joseph A. Londrigan and James E. Londrigan, both of Springfield, and Michael A. Shore and E. V. Cham- • pion, both of Peoria, for appellants.
    J. Edward Radley, Corporation Counsel, and C. E. McNemar, Assistant Corporation Counsel, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellants, each claiming to have been a member of the regularly constituted police department of the City of Peoria, filed a complaint in the circuit court of Peoria county against appellee, seeking judgment for the difference between the amounts paid them, respectively, and the sum of $175 each, per month, subsequent to July 13, 1937, the effective date of the Policemen’s Minimum Wage Act (111. Rev. Stat. 1939, eh. 24, pars. 860a, ’860b). The defendant’s motion to strike the complaint for an alleged misjoinder and insufficiencies was overruled, an answer was filed, and a motion of the plaintiffs to strike certain portions thereof was likewise overruled. The cause was heard by the court without a jury, and at the close of the testimony for the plaintiffs the court granted the defendant’s motion to dismiss the suit and entered judgment in bar of the action, from which judgment the plaintiffs have prosecuted this appeal.

The act under which appellants claim, as in force during the period in controversy, provided:

‘ ‘ Section 1. The word ‘policeman’ means, any member of a regularly constituted police department of a city, village or incorporated town, sworn and commissioned to perform police duties, and includes the chief of police, assistant chief of police, chief of detectives, captains, lieutenants, sergeants, plain clothesmen and patrolmen.

Section 2. The salary to be paid a policeman in any city, village or incorporated town having a population ... of 25,000 or more but less than 150,000 inhabitants, shall be not less than one hundred seventy-five dollars ($175.00) per month. The provisions of this Act shall not apply to special policemen temporarily employed or'commis sioned as police officers.” These provisions, without substantial change, were reenacted in the 1941 revision of the Cities and Villages Act. (111. Rev. Stat. 1941, eh. 24, pars. 11 — 1, 11 — 2 [Jones 111. Stats. Ann. 21.1358, 21.135.9].) The City of Peoria is within the designated class, and each of the plaintiffs was paid less than $175 per month during the time of her employment..

The complaint consists of six counts, respectively relating to each of the plaintiffs. Each count alleges that the plaintiff named therein “was a member of the regularly constituted police department of said defendant, sworn and commissioned to perform police duties in the said City of Peoria, from the 13th day of July, 1937” to the time when such employment was ended, ranging, in the different counts, from February 15,1940, to June 9,1941.

None of the counts names any particular position claimed to have been held by any of the plaintiffs. They claim, and testified they held, during the period in controversy, the following positions, respectively: May H. Patteson and Hannah Dnnne, policewomen; Iva Hagerty, police (matron; Grace Fleming, night police matron; Elsie M. Dempsey and Irene McDonald, clerks of identification burean. Each of the plaintiffs introduced in evidence a purported commission issued to her by the board of fire and police commissioners of the city, for the position she claims to have held, and a certified copy of her bond and oath. Most of these documents were admitted in evidence over objection of the defendant.

Plaintiffs also introduced in evidence, over objection, a section of the city ordinances, which provides :

“Section 1455. Department Established. There is hereby established an executive department of municipal government of the City of Peoria, which shall be known as the ‘Police Department,’ and shall embrace one Superintendent of Police, one Captain of Police, one Lieutenant of Police in charge of Traffic, three Sergeants of Police, one Roundsman, two Police Matrons, three Patrol Operators, one Chief of Detectives, four Detectives, seventy-five Patrolmen, secretary to Superintendent of Police, Superintendent of Identification Bureau, and such other number of Detectives and Police Patrolmen as hereafter from time to time be fixed by the City Council. ’ ’

Each of the plaintiffs testified to her duties, and the activities performed by her in the discharge thereof. Without detailing them it is enough to say that the title of each position indicates its duties. It was stipulated that for each of the years 1937 to 1941, both inclusive, the appropriation ordinances of the city carried items for two policewomen and two matrons; for the first two years mentioned, appropriations for two clerks of the identification bureau; and for the last two years, appropriations for two clerks of the records ' department. Appellee preserved an objection to the appropriation ordinances as incompetent, immaterial and not tending to prove the issues. None of the amounts appropriated was equal to the amounts claimed by appellants.

Appellants claim that the definition of “policeman” in section 1 of the act embraces any member of a regularly constituted police department, commissioned and sworn, and is not restricted to the particular positions thereinafter named; that the words “and includes” are words of enlargement, used in the same sense as “and also”; and that therefore they were members of the police department within the terms of that section. They also claim, as to Iva Hagerty and Grace Fleming, that the Policemen’s Minimum Wage Act modifies, by implication, the power of the city council, under the Police Matrons Act (111. Bev. §tat. 1939, eh. ■ 24, pars. 837, 838), to fix salaries of police matrons, and that such power is subject to the limitation that such salaries cannot be fixed at less than $175 per month. Appellee takes the opposite position.

Questions which are not determinative of the scope of the statute will first be considered. Appellee urges that the complaint is insufficient in sixteen specified details, and would not sustain a judgment for appellants, had one been rendered in their favor. To set out the several denials and affirmative allegations of the answer would unnecessarily encumber "this opinion. All material issues are raised by the allegations of the complaint and answer and the law is that defects in pleadings may be aided by the pleadings of the opposite party, and are thus cured byrj intendment after verdict. (Gerke v. Fancher, 158 Ill. 375, 380, 381; Cottrell v. Gerson, 371 Ill. 174, 179.) Furthermore, appellee has not assigned any cross-error as to the denial of its motion to strike the complaint, which is a prerequisite to have that matter considered on review. (Forest Preserve Dist. of Cook County v. Chilvers, 344 Ill. 573; Morgan v. County of Du Page, 371 Ill. 53, 58.)

Nor is appellee in any position to urge its contention that there is no proof that the city ever adopted the Fire and Police Commissioners Act (111. Rev. Stat. 1939, ch. 24, par. 843, et seq.), by a referendum as specified therein, and that there is no . proof that any fire and police commissioners were ever appointed in the city. The answer to the complaint affirmatively alleges that the police department of the city consisted of ninety-one members, every one of which was duly appointed by the board of fire and police commissioners of the city, thus recognizing the legal existence of the board. As to Iva Hagerty and G-race Fleming, the answer alleges they were appointed by the then mayor of the city, pursuant to the provisions of the Police Matrons Act.

In Reed v. City of Peoria, 318 Ill. App. 271, in which an opinion is this day filed, we held under the provisions of section 12 of the Fire and Police Commissioners Act as amended (Ill. Rev. Stat. 1941, ch. 24, par. 14 — 11 [Jones Ill. Stats. Ann. 21.1377]) the petitioning firemen were city officials and entitled to the protection afforded by that act.

This leaves for consideration the question of what construction is to be given section 1. The word “include” is obviously the determinative word. The meaning of the word “include” or “including,” em-■ ployed in various statutes and other instruments, has been considered by courts of review in this State and other jurisdictions. An analysis of the cases demonstrates that the issue in each case was not settled by any hard and fast definition of the word used, but by ascertaining and applying the intention of the legislature to the particular statute, under the recognized rules of statutory construction, or the intention of the maker of the specific instrument involved.

In re Harper, 175 Fed. 412, cited and relied upon by appellants, involved a provision of the Bankruptcy Act of 1898, ch. 541, par. la, that “the word ‘debt’ shall include any debt, demand, or claim provable in bankruptcy.” The court said in the opinion: “It will be noted that some of these definitions in section 1 read ‘shall mean’ while others read ‘shall include.’ It was not intended that definitions of words used in the act which read ‘ shall include ’ should exclude other meanings or definitions of the word, or limit the ordinary and well understood meanings. It was intended, as the words used plainly indicate, to make sure that they would be held to include what is expressed.”

In Wyatt v. City of Louisville, 206 Ky. 432, 267 S. W. 146, it was held that a statute authorizing a city to reconstruct sidewalks, including curbing, at the cost of -the abutting property owners, gave power to construct either. Under that statute the intention of the legislature to include either sidewalks or curbing was specifically expressed. The holding is on the same basis as that in the Harper case, supra. Neither of them has any application here.

In Jacksonville Terminal Co. v. Blanshard, 77 Fla. 855, 82 So. 300, also cited by appellants, a statute provided that in condemnation proceedings, “All costs of proceedings shall be paid by the petitioner, including a reasonable attorney’s fee for the defendant to be assessed by the jury.” In a condemnation suit, which was ultimately dismissed, the court held that the definite article “the” related to the jury that determines compensation for the land taken, and limits the right to assess attorney’s fees to that particular jury; and that where a suit was dismissed, the defendant could recover attorney’s fees only by an independent suit. The court said in the opinion:

“It is not necessary to discuss whether this statute makes attorney’s fees part of the costs, as the proceedings in the court below were not conducted upon that theory. We may say, however, that such is not the opinion of this court, and the word ‘including’ as used in the statute is a word of enlargement, and in this sense is equivalent to ‘and.’ The compilers of the General Statutes seem to have taken that view, and at the beginning of the section used the words ‘ costs and attorney’s fees.’ ”

. Aside from the fact that the words quoted are dictum, as clearly disclosed by the opinion, the statute in controversy in the case at bar does not contain any such beginning as the Florida statute. That case is readily distinguishable from this case.

In Achelis v. Musgrove, 212 Ala. 47, 101 So. 670, relied upon by appellants, a devise of “my home place, including my dwelling, and the land lying contiguous thereto which I own,” was held to include adjacent lands other than the small tract inclosed by a fence around the dwelling. The decision was based on the intention of the testator, determined largely by extrinsic evidence of such intention.

In Miller v. Citizens’ Nat. Trust & Savings Bank, 1 Cal. App. (2d) 470, 36 P. (2d) 1088, an employee of the bank committed a forgery outside the scope of his employment. In a suit against the employee and the bank, the court had under consideration a section of the Civil Code, which provided:

“Unless required by or under authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including • wrongful acts committed by such agent in and as a part of the transaction of such business, and for his wilful omission to fulfill the obligation of the principal.”

On the authority of Johnson v. Monson, 183 Cal. 149, 190 Pac. 635, the court held that the word “including,” between the two parts of, the section, was equivalent to “and also” or “as well as.” The Johns.on case was a suit against a saloon keeper for damages on account of an assault by his bartender, and the court said that, of course, the assault was not an act of negligence, and held that to construe the word “including” as referring back to negligence would take away all meaning from the words “wrongful acts,” since all wrongful acts of negligence were fully covered by the previous expression “negligence”; that furthermore, such a construction would mean that by the code section it was intended, for no apparent reason, to change a universal and an essentially just, elementary rule of the law of principal and agent, and that it did no violence to the language of the section to hold that the word “including” was used in the conjunctive sense, as equivalent, to such expressions as “and also” or “as well as.” Manifestly, the reason for the construction given that statute cannot be applied in the case at bar.

In United States v. National City Bank of New York, 21 F. Supp. 791, relied upon by appellants, the question related to income tax, under section 219(a) of the Revenue Act of 1926, which provided: “The tax imposed by Part I and II of this title shall apply to the income of estates or of any kind of property including” certain types of income specified. The court held that it covered a gain made out of the sale of property held for future distribution, under the terms of the will, to remaindermen. The particular gain was not specifically mentioned in the types of income specified in the statute after the word “including.” The court held the gain was taxable, for two reasons: First, that the word “including” was a word of enlargement; and second, that contingent remainders are “estates.” The intention to include not only the income “of estates” but also “of any kind of property,” being specifically expressed in the act, justified the holding in that case. No such situation obtains here.

The express provision of the Federal Income Tax statutes, sec. 2(b) of the act of 1926 (U.S.'C. title 26, sec. 1262(b); sec. 701(b) of the act of 1928 (U.S.C. title 26, sec. 2701(b), that “the terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined, ’ ’ cited in Von Weise v. Commissioner of Internal Revenue, C. C. A. 8th, 69 F. (2d) 439, manifestly has no application here. It might well be argued that the Federal statute indicates the rule of interpretation would be otherwise, except for that provision.

In State Public Utilities Commission v. Monarch Refrig. Co., 267 Ill. 528, the refrigerating company did a general warehouse business, operating a cold storage plant for the accommodation of the public, and the question was whether it was a public utility within the meaning of the Public Utilities Act (Laws 1921, p. 702). Section 10 of the act defined a public utility as meaning any corporation, individual, etc., that, among other things,' owned or operated any plant, equipment or property for the production, storage, transmission, sale, delivery or furnishing of heat, cold, light, power, electricity or water; or for the storage or warehousing of goods. It further provided that “the term ‘warehouse’ when used in this act, includes all elevators or storehouses where grain is stored for compensation, whether the property stored be kept separate or not.” It was contended that this provision excluded the refrigerating company from the terms of the act, but the court held that the several provisions of the act must be considered together, so as to give effect to the legislative intent. The opinion then calls attention to the fact that the business could well come under the term “public utility” as used in the act, aside from any mention of warehouses therein, and holds that it is obvious that the legislature did not intend to exclude all other warehouses where goods or commodities other than grain are stored for compensation. This case is another example of where the legislative intent was specifically expressed, as including all warehouses, in that portion of the section preceding the provision as to those for the storage of grain. How it tends to uphold the contention of appellants is not apparent.

The decision in State v. Montello Salt Co., 34 Utah 458, 98 Pac. 549, also relied upon by appellants, was reversed by the Supreme Court of the United States in Montello Salt Co. v. State, 221 U. S. 452, 55 L. Ed. 810. In that case the Federal enabling statute granted to the State of Utah certain lands for university purposes, and further provided: “That in addition to the above, one hundred and ten thousand acres of land, to be selected and located as provided in the foregoing section of this act, and including all saline lands in said State, are hereby granted to said State, for use of said university, and 200,000 acres for the use of an agricultural college therein.” It was claimed, and so held by the Utah Supreme Court, that the word “including” was used in the same sense as claimed by appellants in the case at bar. In reversing that holding, the United States Supreme Court said in the opinion:

“The determining word is, of course, the word ‘including.’ It may have the sense of addition, as we have seen, and of ‘also’; but, as we have also seen, ‘may merely specify particularly that which belongs to the genus.’ Hiller v. U. S. 45 C. C. A. 229, 106 Fed. 73, 74. It is the participle of the word ‘include,’ which means, according to the definition of the Century Dictionary, (1) ‘to confine within something; hold as in an enclosure; inclose, contain.’ (2) ‘To comprise as a part, or as something incident or pertinent; comprehend, take in, as the greater includes the less . . . the Roman Empire included many nations.’ ‘Including,’ being a participle, is in the nature of an adjective and is a modifier. What, then, does it modify in section 8? Necessarily, we think, the preceding substantive phrase ‘one hundred and ten thousand acres of land, ’ and we have the meaning of the section to be that the saline lands are to be contained in or comprise apart of the 110,000 acres of land. We see no particular awkwardness in the expression of the purpose, and it may well be contended that it needs not for its support the rule of strict construction.”

The opinion in that case cites with approval Branard v. Darling, 132 Mass. 218, where it was held that a legacy of $100, “including money trusteed to”'a certain bank, could not be construed as meaning that the sum of $100 was in addition to the sum in the bank. It further cites Henry v. Henry, 81 Ky. 342, where a bequest of $14,000, including certain notes was held to mean that the notes formed a part of the $14,000, and were not in addition thereto; also Neher v. McCook County, 11 S. D. 422, 78 N. W. 998, in which it was held that a certain section of the statute, which provided that the sheriff’s fees should be $16 for summoning a jury, “including mileage,” did not entitle him to mileage in addition to the $16.

Maben v. Rosser, 24 Okla. 588, 103 Pac. 674, 676, gives the words “includes” and “including” a similar definition as that used by the United States Supreme Court in the Utah case, supra, from the same authority, and refers to Webster’s Dictionary as similarly defining “including” in its primary sense. The same words are classified as synonymous with “comprise,” as used in a devise of land, in Miller v. Johnston, 173 N. C. 62, 91 S. E. 593; and as used in a taxing statute providing that the word “instruments” shall “include” any bond, note, debt, etc., In re Sheppard’s Estate, 189 App. Div. 370, 179 N. Y. S. 409.

In Bunge v. Kirchoff, 251 Ill. App. 119, this court had before it a very similar question of statutory construction as to the meaning of the word “include.” Sections 4, 5 and 6 of the Securities Act of 1919 (Laws 1919 p. 351), as originally enacted, respectively provided that Class A, Class B and Class C securities shall “comprise” certain securities enumerated in each class. The 1921 revision of the act (Ill. Rev. Stat. 1941, ch. 121%, par. 96, et seq. [Jones 111. Stats. Ann.-13.01 et seq.]) eliminated the word “comprise"” in the definition of Class B securities in section 5, and the word “include’ ’ was substituted. The word ‘ ‘ comprise” in the definition of Class A and Class C securities was continued. It was contended that section 5 as amended was not meant as an exclusive enumeration of securities under Class B. We held that the word “include” in the 1921 revision of the act has the same meaning as “comprise” in the original act, and that taken in connection with the entire act, it was used synonymously with “comprise,” and that it was the intention of the legislature to create a fixed and definite classification of securities. In Farmers’ Nat. Bank v. Cook, 32 N. J. L. 347, 351, cited in our opinion, it is held that the word “comprise” is frequently used synonymously with “include.”

It is apparent that none of the cases relied upon by appellants are persuasive in this case. On the other hand, the other cases above mentioned strongly support the contentions of appellee. The definitions of the word “policeman” in the following statutes are also to be noticed.

Section 7 of the Police Pension Act of 1915 (111. Rev. Stat. 1941, ch. 24, par. 911 [Jones 111. Stats. Ann. 100.118]) provides:

“Whenever the word ‘policeman,’ as used in this Act, appears, the same shall be interpreted and construed to mean and to include the following:

Any person who has been appointed and sworn or designated by law as a policeman and has served in a regularly constituted police department as a policeman, or police patrol driver or police operator, police dog catcher or police kennelman or special investigator or police hostler and a member of the police force thereof.”

Section 12 of the Policemen’s Annuity and Benefit Fund Act of 1921 (111. Rev. Stat. 1941, ch. 24, par. 956 [Jones 111. Stats. Ann. 100.136]), provides:

“The following words and terms as used in this Act shall mean as follows, respectively:

‘Policeman’: Any person appointed and sworn or designated by law as a policeman of such city, and who has served, or is serving, or shall serve in the regularly constituted police department of such city as a policeman, or police woman, or police patrol driver, or police operator, or chief surgeon, or police surgeon, or drill master, or identification officer, or secretary of such police department, or police dog catcher, or police kennelman, or police matron, and member of the police force of such police department.”

The terms “police woman,” “police matron” and “secretary of such police department” are expressly included in the definition of “policeman” in the Policemen’s Annuity and Benefit Fund Act, while they are all omitted from the definition of the same word in the Police Pension Act of 1915, just as they are from the Policemen’s Minimum Wage Act. The right and the intention of the legislature to define a term in one act, specifically for that act, differently from the definition of the same term in other acts, is recognized in State Public Utilities Commission v. Chicago & West Towns Ry. Co., 275 Ill. 555, 569. We must assume that the legislature was cognizant of these differences in definition when the respective statutes mentioned were enacted, and that such differences were designedly incorporated in the different statutes. It is a well settled principle of statutory interpretation that the enumeration of certain things implies the exclusion of all other things. (People v. Collins, 351 Ill. 551, 555; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480, 483.) If the legislature had intended that the positions held by appellants should be embraced in the Policemen’s Minimum Wage Act, those positions would have been expressly mentioned therein. Their omission is indicative of the legislative intent to exclude them (People v. Collins, supra), particularly as the Policemen’s Annuity and Benefit Act has been continued in force from its enactment in 1921 to the present time.

As was said in Morgan v. City of Rockford, 375 Ill. 326, 329: “The Minimum Wage law deals solely with the subject of salaries of policemen and the General Assembly has, in unambiguous terms, ordained that those described in section 1 and who do not fall within the exception of the second section, are eligible to the benefits of the statute.” In People v. City of Springfield, 370 Ill. 541, 558, the opinion says: “The language of the act is clear and unmistakable. It has no ambiguity and there is no room for questioning the meaning of its terms. Cases cited by appellants where the terms of a statute were susceptible of different constructions, because vague or indefinite, have no application here.”

Under the history of the legislation on the subject, and the authorities above mentioned and discussed, our conclusion is that the word “includes” was meant to be given the same meaning as “comprises,” and that the legislature intended to create a fixed and definite class, excluding all those not specifically named.

What is said above applies to police matrons as well as to the other positions in controversy. In addition thereto, the Police Matrons Act, supra, as in force during the period in controversy, provided that the salary to be paid them shall be fixed annually by the council or president and board of trustees as the case may be, out of the funds to be duly appropriated for that purpose. This statute was in force continuously from its enactment in 1897 until its .re-enactment, without any substantial change, in the 1941 revision of the Cities and Villages Act (Ill. Rev. Stat. 1941, ch. 24, par. 9— 51 [Jones 111. Stats. Ann. 21.1298]). Appellants admit that the Policemen’s Minimum Wage Act does not purport to repeal the Police Matron’s Act, but they argue that if there are any inconsistencies between the two acts, it will be presumed the legislature intended to repeal the Police Matron’s Act. It is well settled that the repeal of laws by implication is not favored, and it is only where there is a clear repugnance between two laws and the provisions of both cannot be carried into effect that the later law must prevail and the former be considered repealed by implication. Where two statutes are enacted which have relation to the same subject, the earlier continues in force unless the two are clearly inconsistent with and repugnant to each other, or unless in the later statute some exprc ;s notice is taken of the former plainly indicating an intention to repeal it, and where the two acts are seemingly repugnant, they should, if possible, be so construed that the later may not operate as a repeal of the former by implication. It is not enough to justify the inference of repeal that the subsequent statute covers some, or even all, of the questions covered by the former. There must be an irreconcilable repugnancy. (Kizer v. City of Mattoon, 332 Ill. 545, 548, 549, and cases cited; People v. United Medical Service, Inc., 362 Ill. 442, 450; City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 529.)

Continuing the Police Matron’s Act in force as above pointed out is another strong factor which demonstrates that the legislature did not intend to include police matrons in the act in controversy. Under the construction we have adopted there is no inconsistency or repugnancy between the two acts.

The judgment of the circuit court was correct and is affirmed.

Judgment affirmed.


text:
    Kankakee Federal Savings and Loan Association, Appellant, v. Hyman Arnove et al., Appellees. Jean Arnove Schwartzberg et al., Appellees, v. Kankakee Federal Savings and Loan Association, Appellant.
    Gen. No. 9,852.
    Opinion filed February 24, 1943.
    Rehearing denied April 15, 1943.
    C. M. Granger and W. 0. Schneider, both of Kankakee, for appellant.
    George L. Shapiro and Arnold A. Rosen, both of Chicago, and Francis J. Householter, of Kankakee, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

This cause presents a question of priority between liens, and was transferred to this court by the Supreme Court because no freehold is involved. Kankakee Fed. Savings & Loan Ass’n v. Arnove, 380 Ill. 295.

On August 19, 1940, appellant filed a complaint in the circuit court of Kankakee county to foreclose a real estate mortgage on certain premises in the city of Kankakee, executed by Hyman Amove and Dora Amove, his wife, dated September 20, 1937, executed October 27, 1937, securing their promissory note of even date for $2,500. The complaint is in the usual form, alleging the execution and delivery of the note and mortgage, default of the makers, and that Jean Amove Schwartzberg, Kate Chames and Bessie Glazer, codefendants with the mortgagors, claim some interest in the premises by way of lien, but that such lien, if any, is subordinate to the lien of the mortgage.

The mortgagors answered, denying any default and alleging priority of the lien of the codefendants, who are the daughters of Hyman Amove and his former wife, Ida Amove, now deceased. The three daughters, appellees here, filed an answer, claiming a prior lien in the sum of $1,000 each, by way of unpaid legacies under the last will of their deceased mother, who died in 1929. Appellant filed a reply to each of the answers, and later the daughters filed an answer to the reply to their answer, and a counterclaim setting up their claims as to priority. The pleadings also put in issue the question of whether Hyman Amove is the owner of the premises in fee simple, appellees claiming that under the will of Ida Amove he was only a life tenant and that the deeds to him from his two sons, the remaindermen, conveyed nothing because their interests were contingent remainders.

On the hearing the court entered a decree finding that Hyman Amove is the owner of the premises in fee simple, subject to the lien of the unpaid legacies ' and to the lien of appellant’s mortgage, and finding in favor of appellees on the question of priority between the liens. The decree also finds that the mortgage was in default, and orders foreclosure subject to the lien of the legacies. The mortgagee has appealed from that portion of the decree giving priority to the lien of the legacies. No cross-errors are assigned, leaving the question of priority as the only one for determination.

The evidence discloses that the said Ida Amove owned the premises in controversy, and on May 13, 1926, she and her husband executed a mortgage thereon to appellant’s predecessor to secure a loan of $2,000, payable in monthly instalments of $20 each. The premises are known as the Main Street property. She also owned other real estate, including premises in the city of Kankakee known as the Wildwood Avenue property. She died testate on December 5, 1929. By her last will she devised the life use of all her property to her husband, and, subject to the life estate, devised the Main Street property and the Wildwood Avenue property to two of her sons, Joseph and Isadore, “provided however, that they shall pay to each of my daughters the sum of one thousand dollars at the death of my husband.” Hyman Amove was named in and qualified as executor of the will.

On May 1, 1931, the husband and all the children above named joined in a sale and conveyance of the Wildwood Avenue property, and on August 14, 1931, the two sons, Joseph and Isadore, executed their promissory note for $3,000, payable to the order of themselves, due in five years, and, together with their father and the wife of Isadore, Joseph being a bachelor, executed a. trust deed to Sam Chames, husband of Kate Chames, as trustee, conveying the premises in controversy, to secure the payment of the note. In October of the same year there were filed in the probate court in the estate of Ida Amove receipts signed by appellees in full satisfaction of their claims and demands against the estate and the executor, and the estate was closed. On November 28, 1934, Isadore Amove and his wife quitclaimed the premises in controversy to his brother Joseph, who, in turn, on April 23, 1935, quitclaimed them to the father, Hyman Amove.

In September 1937, there being $1,366.78 unpaid on the mortgage to appellant’s predecessor, the taxes and special assessments on the premises being delinquent, and there being a mechanic’s lien in existence, although not filed of record, Hyman Amove applied to appellant for a new loan of $2,500 to cover the unpaid balance of the mortgage, the taxes, special assessments and the mechanic’s lien. At that time in addition to the unpaid balance of $1,366.78 on the mortgage, the delinquent taxes and assessments.amounted to $197.81, the mechanic’s lien was for $850, insurance paid by appellant under the terms of the mortgage was $41.40, and there was an expense of $44, including extension of the abstract and recording. As to the claim of appellees that there is no evidence that the mechanic’s lien existed, the testimony of appellant’s loan manager and the receipted bills of the company which furnished the material and labor, show that such lien was in existence when the new loan was closed. Checks for all these items, except the balance due on the old mortgage, dated the same day the new mortgage was executed, were made by appellant to Hyman Amove, and by bim indorsed and used in paying such items.

The written opinion as to the title, prepared by A. L. Granger, then appellant’s attorney, since deceased, mentioned the then existing mortgage of 1926; the legacies as a charge on the property; an ambiguity in the receipts of appellees, on account of the charge not being against the estate in particular, but against the boys, and advised that the abstract should show more specifically that the legacies had been paid. It also mentions the trust deed to Chames, and the delinquent taxes and assessments. The testimony of Clifford Mann, appellant’s loan manager, and Samuel Shapiro, an attorney who represented Hyman Amove, is to the effect that those objections were discussed among them and Amove and Granger at appellant’s office before the loan was closed, and that Amove said the girls were not claiming any interest in the premises, and that Granger said that if there was any such interest it should be subordinated to that of appellant; that Amove assured the parties that if appellant desired such an agreement it would be furnished, signed by all the parties. Shapiro also testified that in a number of previous conversations, Amove had told him the girls were going along with him, and that at the meeting at appellant’s office the witness added his assurance to that of Amove; that he had talked with Jean and Kate about it, and that he had a conversation with Jean with reference to whether appellant would want any documents subordinating their interests, if any, and that these documents would be available; and that he thought he had authority to talk for the whole family. Mann further testified that with Amove’s assurances the loan was closed. The trust deed to Sam Chames and the old mortgage of May 13, 1926, were released at the time the new loan was closed. After repeated demands for the subrogation agreement up to a short time before the foreclosure was started, appellees refused to execute such an agreement.

Amove testified that Shapiro did not represent him in connection with the loan and denied that either Shapiro or Granger was present when the loan was closed. He testified that he and his wife and the contractors were there, and that Mann never mentioned anything about his daughters. When called as an adverse witness by appellant, he testified he gave the $3,000 trust deed to Chames because he owed the Legris bank some money; that he thought they would foreclose and he gave it as protection; that he received no money but just gave it; that he paid the bank and they released him; that he never “took a mortgage with the Legris bank,” but had a note there. When asked: “Is it not a fact that this $3,000 note that was given by Isadore and Joseph was to secure the money due under their mother’s will?”, he replied: “At that time it was given for protection. That’s all.” Being asked: “Whom were you trying to protect, Isadore and Joe?”, he said “Protection for all three, and I signed it.” Being shown the trust deed, he at first said he had never séen it, and then said he could not read anything, and that he gave the mortgage in 1931 to protect himself at the Legris bank. He then stated: “I know I signed it. The children came there and I signed it.” Appellant’s counsel then said he would give him an opportunity to correct his testimony, and on further interrogation, Amove admitted that in 1930 he had paid the Legris bank all he owed it, and made a complete settlement with the bank; and when asked to explain his testimony that the mortgage was given' in 1931 to protect himself against the bank, he replied: “I don’t remember nothing,” and denied it was given to secure the legacies.

Each of the appellees testified she never received anything from her mother’s estate, and, in substance, thát she did not remember the circumstances in connection with the signing of the receipt acknowledging satisfaction of all claims against the estate and the executor; that Shapiro was never authorized to represent her; and each of them denied .having any conversation with him about a subordination agreement before the loan was closed. They also denied ever seeing the $3,000 note and the trust deed to Sam Chames. The testimony of Kate Chames is equivocal, and on repeated interrogatories she did not expressly deny the note and trust deed were made to secure the legacies. That her husband would hold, for more than six years, a trust deed securing a note in the" exact amount of the legacies, the note being made by her brothers who were liable for the payment of such legacies, without the knowledge of his wife, one of the legatees, seems highly improbable, and that he released the trust deed without her knowledge is equally outside the range of probabilities. In this connection, it is to be noted that when Hyman Amove was being interrogated about this note and trust deed, he said: ‘ The children came there and I signed it. ’ ’ The caption on the hack of the trust deed, above the recording certificate, is in these words: ‘ ‘ Deed of Trust Hyman Amove, et al to Sam Chames, As Trustee for use of holder.”

Bessie G-lazer testified her father had never talked to her about renewing the loan on the Main Street property, and that when she released her legacy on the Wildwood property her father brought the deed to her and when she saw her sisters had signed it she did whatever they did. Kate Chames testified she released her legacy on the Wildwood Avenue property on the advice of her two brothers.

Under all this testimony and the circumstances above mentioned, we agree with appellant’s contention that the trial court’s exclusion of the $3,000 note and the trust deed to Sam Chames was error. In our opinion the testimony tends to show that the whole family acted in concert concerning the several transactions in the estate of Ida Amove, and strongly indicates that the note and trust deed were made solely as security for the payment of the legacies. It is obvious that Isadore and Joseph could not be included in “all three” that Hyman Amove testified the note and trust deed were made to protect. They could not thus be protected against their own note, and as they had not yet conveyed their interest in the premises to their father, their interests therein could not have been subjected to any of his obligations, if he had any outstanding obligation, of which there is no evidence. It is noticeable, too, that the receipts of appellees, acknowledging full satisfaction of their claim against the estate, were made after the $3,000 note and trust deed were executed. There is no credible testimony that even tends to show that the note and trust deed were made for any other purpose than to secure the payment of the legacies. Manifestly the purpose was known to Isadore and Joseph Amove, the brothers of appellees, makers of the note and comakers of the trust deed, and to Sam Chames the trustee and husband of one of appellees, yet appellees did not call any of them as a witness. ' The' failure of a party to a suit to produce evidence available to him gives rise to a presumption against him, and in favor of the opposite party. (Prudential Ins. Co. of America v. Bass, 357 Ill. 72, 76; Harper v. Owen H. Fay Livery Co., 264 Ill. 459, 464; Belding v. Belding, 358 Ill. 216, 220.)

Furthermore, the evidence shows that when the new loan was made, appellant intended that its lien should continue the same as under the old mortgage. There is no testimony which indicates that it intended to substitute the subordination agreement therefor, but the evidence shows the subordination agreement was demanded merely in an abundance of caution, to eliminate the possibility of just such litigation as this, the wisdom of which caution is demonstrated by the subsequent events. Taking the testimony of appellees as true, it is the settled law of this State that when a refunding mortgage is made, the lien of the old mortgage continues in effect without interruption and the new mortgage does not become subordinate to an intervening lien or interest attaching between the time of the recording of the old mortgage and the effective date of the new one, even though the old mortgage be released. This is because of the doctrine of conventional subrogation. (Kaminskas v. Cepauskis, 369 Ill. 566; Roberts v. Doan, 180 Ill. 187; Shaver v. Williams, 87 Ill. 469.) In the Kaminskas case, Cepauskis, the purchaser of real estate, subject to the lien of a trust deed, applied to Kaminskas for a refunding loan about the time the old loan was due, and made a new trust deed to Kaminskas for the amount, in which Cepauskis was described as a bachelor. The old trust deed was released by the holder, and upon foreclosure of the new trust deed after the death of Cepauskis, his widow, who lived in Lithuania and was his wife when the new trust deed was executed, claimed dower in.the premises. The Supreme Court held against her claim. It is said in the course of the opinion:

“The principal question before us is whether the doctrine of conventional subrogation is applicable as against the dower claim of appellant. This doctrine was defined by this court in Home Savings Bank v. Bierstadt, 168 Ill. 618, as that ‘which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for. the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied, with the expectation of receiving an equal lien.’ The reason underlying the rule was stated as follows: ‘ This equitable principle is enforced solely for the accomplishment of substantial justice where one has an equity to invoke which cannot injure an innocent person.’ This principle has been applied when money was advanced to pay off a prior mortgage and a judgment creditor claimed a lien superior to that of the new mortgagee who advanced the money.” Citing Tyrrell v. Ward, 102 Ill. 29.

It was also contended in that case that Kaminskas knew at the time he loaned the money that Cepauskis was married. The court said they were convinced the evidence did not support that contention, and further said: “Moreover, we are of the opinion the question of knowledge is immaterial as far as the principle of conventional subrogation is concerned. Because of the agreement equity simply assigns the security to him. Wilkins v. Gibson, 113 Ga. 31.” Applying that principle to the case at bar, the fact that appellant knew of the lien of the legacies would not deprive its mortgage of priority. The situation in the case at bar is like that in the Kaminskas case in that the claim of appellees could attach in any event only to the equity of redemption in the mortgaged premises. It was held in the Kaminskas case that there can be no doubt that if the time had been extended on the old mortgage, the widow would have no claim to dower against the holders of the notes, and that there was no reason, in equity, why she should be in a better position because of the form of the transaction; but, that on the other hand, it would work a hardship and an injustice on the holder of the new notes to hold their lien was subordinate to the right of dower. Those expressions fit the situation in this case.

The payment of the delinquent taxes and special assessments and the mechanic’s lien were manifestly necessary to preserve intact the priority of the old mortgage. The testimony shows there was no intention on the part of appellant to release or affect in any way its right to a prior lien, and it was only upon that condition and the agreement of Hyman Amove to that effect that the new loan was made. In such case the law preserves the priority of the lien of the old mortgage. (Kaminskas v. Cepauskis, supra; Roberts v. Doan, supra; Shaver v. Williams, supra.)

Because of our conclusions in this respect it is unnecessary to discuss alleged procedural errors urged by appellant. That portion of the decree of the circuit' court holding that the lien of the legacies is superior to the lien of appellant’s mortgage is reversed and the cause is remanded with directions to enter a decree sustaining the priority of appellant’s lien.

Reversed in part and remanded.


author: Mr. Justice Wolfe

text:
    Clement Reed et al., Appellants, v. City of Peoria et al., Appellees.
    Gen. No. 9,815.
    Opinion filed February 24, 1943.
    Rehearing denied April 15, 1943.
    Londrigan & Londrigan, of Springfield, and Leo F. Cavanaugh, of Peoria, for appellants.
    J. Edward Radley, Corporation Counsel, and C. E. McNemar, Assistant Corporation Counsel, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On January 13, 1942, the four appellants Clement Reed et al., filed their petition for the writ of mandamus directed to the mayor, chief of the fire department, members of the board of fire and police commissioners and the city comptroller of the City of Peoria to reinstate the appellants, hereafter called petitioners, as members of the fire department of the City of Peoria.

On April 5, 1910, the electors of the City of Peoria . adopted the provisions of the Fire and Police Commissioners Act which provided for the appointment of a board of fire and police commissioners in cities (villages and incorporated towns) of this State having a population of not less than 7,000, nor more than-200,000, and prescribed the powers and duties of such board. (Laws of 1903, p. 97; ch. 24, par. 543, et seq., 111. Rev. Stat. 1939.)

The respondents filed a motion to dismiss the petition stating two grounds therefor, which in this court are the chief points of contention between the parties. It is stated in the motion: (a) “The petition does not set forth the facts as to the adoption of the city ordinance creating the offices held by petitioners, nor does it show their successive nominations to their alleged offices and confirmations therein, nor does it in any manner show any facts that they are the legally qualified successors of any former officers, nor does it allege any facts to specifically show that any such former firemen were legally appointed, (b) The petition does not set forth any fact upon which this court can determine as to whether or not at any time since the Act relied upon by them in said petition was passed, that any fireman was ever legally appointed as a de jure officer.”

Before the hearing on the motion the parties agreed, in open court, that upon a decision of the trial court on the motion they would stand by their pleadings, and that the decision should be conclusive upon the merits of the case. The motion was sustained and an order entered dismissing the petition.

The trial judge stated his reasons for sustaining the motion, and the same has been incorporated in the record. It is mentioned in the statement, first, that the petition fails to state that the. office of city fireman was created by an ordinance of the City of Peoria, and since there is no such office, the petitioners are not de jure officers, and the writ of mandamus will not be granted to reinstate a person to an office who is not a de jure officer. Second, after quoting section 12 of the Fire and Police Commissioners Act, the court further stated that the section does not obviate the necessity of an ordinance creating a fire department and designating the number of members thereof to make operative the provisions of the act, and constitute the members de jure officers.

Section 12 of the act was amended in 1937 by adding a paragraph thereto, as follows: “The term officer or members of the fire or police departments of such city, village or incorporated town as used herein shall include all officers and members of the fire and police •department of such cities, villages, or incorporated towns who shall have been employed as regular members of such fire or police department for more than one year. Such regular employment for more than one year shall constitute such officers or members city officers.” 111. Eev. Stat. 1939, ch. 24, par. 854. In 1941 the act was again amended (111. Eev. Stat., ch. 24, sec. 14 — 11, p. 375 [Jones 111. Stats. Ann. 21.1377]) as follows: “All officers and members of either the fire or police department of any municipality holding their positions by virtue of one of the methods specified in paragraph 1 of this section, are city officers and shall be entitled to the protection afforded by this article.” The act was amended in other particulars, but- did not take effect until January 1, 1942.

Pertaining to that part of the, statement referring to the necessity of creating a fire department and 6 ‘ designating the number of members” of the fire department, it should be stated that an ordinance of the City of Peoria, -passed in 1910, fixed the number of the members of the fire department of the city. Attention is called to ordinances of the city. In 1910 an ordinance was enacted providing as follows: “Fire Department Created. There is hereby established an executive department of the municipal government of the City of Peoria, which shall be known as the Fire Department, and shall embrace one Fire Marshal, two Assistant Fire Marshals and such number of engineers, firemen, pipemen, drivers, truckmen and other employees as the City Council may, from time to time, by ordinance or resolution provide. ” Paragraph 786, chapter 22 of the Ordinances of the City of Peoria. Paragraph 817 was also included in 1910 in said chapter 22, as follows: “Firemen — Appointment. There shall be appointed Eighty-one firemen, who shall occupy such positions as may be designated by the Fire Marshal. Each fireman shall receive as compensation for his services the sum of eight hundred and forty dollars per year, payable in equal weekly installments upon the regular pay days established by the City Council.”

On November 5, 1940, a new Municipal Code was adopted by the City of Peoria. The provisions of the code relative to the fire department of the city are set forth in the brief and argument of the petitioners. That these provisions of the ordinance establish and create a fire' department of the City of Peoria, cannot be doubted. They prescribed the duties of the fire' department and the fire marshal; grant authority to the fire marshal, or any subordinate in command at a fire, if such action is necessary to prevent the spread of fire or the public safety requires it, authority to demolish property at a fire. Other provisions of the code are inconsistent with the idea that the City of Peoria has not created a fire department. The City of Peoria by ordinance has established a fire department.

There is no ordinance of the City of Peoria creating the office of city fireman. (See, Krawiec v. Industrial Commission, 372 Ill. 560; City of Metropolis v. Industrial Commission, 339 Ill. 141.) The Fire and Police Commissioners Act provides that the commission shall appoint all officers and members of the fire and police department. The appointments of the petitioners by the commission is not denied. Three of the petitioners were appointed members of the fire department on September 1, 1937, and the other, on October 1, 1939, and they served on the fire department from the date of their appointments until July 5, 1941, when they were discharged by the commission contrary to the provisions of the Fire and Police Commissioners Act. (Reed v. Board of Police & Fire Com’rs, 316 Ill. App. 114 (Abst.) During the time of service of the petitioners, the city council of Peoria appropriated money to pay the salaries of the members of its fire department, and the petitioners received salaries as city firemen.

The allegations of the petition for the writ of mandamus need not be stated in detail. It asks for the writ to reinstate the petitioners to their positions on the fire department of the City of Peoria. The petition also alleges that under section 12 of the Fire and Police Commissioners Act, providing that, “Such regular employment for more than one year shall constitute such officers or members city officers,” the petitioners thereby became city officers.

Before the amendment of 1937 to section 12 of the Fire and Police Commissioners Act, it was held that a city policeman who filed a petition for the writ of mandamus to be reinstated to his office as a policeman, must allege and prove that the office of city po- . liceman had been created by an ordinance of the municipal corporation which had appointed him. (See Stott v. City of Chicago, 205 Ill. 281; Moon v. City of Champaign, 214 Ill. 40; Bullis v. City of Chicago, 235 Ill. 472; Howard v. Mueller, 252 Ill. App. 10.) The Supreme Court before 1937 pointed out the difference between an officer and an employee of a municipal corporation. (People v. Coffin, 282 Ill. 599.) It was also held that where a petition for a writ of mandamus pleads for reinstatement to an ‘1 office or position” with a city, the petition will be construed to plead the right to an office. (People v. City of Chicago, 327 Ill. 62.) It was held in some of the foregoing cases that the office of policeman was unknown to the common law and that such office was not created by statute. The question of a policeman securing the protection of the Fire and Police Commissioners Act to be reinstated to membership on a police force became involved and rather dubious. (See Howard v. Mueller, supra; O’Brien v. Frazier, 228 Ill. App. 118.) The cases are in conflict on the query if a city fireman is a municipal officer. (State v. Jennings, 57 Ohio St. 415, 49 N. E. 404, 63 Am. St. Rep. 723; People v. Pickney, 32 N. Y. 377; Cobbs v. Home Ins. Co. of New York, 18 Ala. App. 206, 91 So. 627; Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 197, 36 L. R. A. (N. S.) 881; Terrell v. Louisville Water Co., 127 Ky. 77, 105 S. W. 100.)

The question, if there be one, whether or not a city fireman is an employee or an official, or officer, under the Workmen’s Compensation Act is not before us. The last sentence, amendment of 1937 to section T2 of the Fire and Police Commissioners Act cannot be ignored; there is a sound historical reason for its enactment. The amendment, viewed with its historical background, we deem should be construed to give the protection of the courts to firemen and policemen.

The purpose of the amendment of 1937 was to remove an ambiguity caused by a reference in the original act to the passage of the act, as appears in the emergency section, or clause, of the amendment. (Laws of 1937, People ex rel. Palzer v. City of Kankakee, 293 Ill. App. 640 (Abst.); Burley v. Barber, 286 Ill. App. 486; Smith-Hurd’s Ann. Stats. 1939, ch. 24, sec. 854.) Also it was the intention of the legislature, by the amendment to give city firemen and policemen the status of municipal, or city officers, to the extent of making them eligible to apply to the courts for an examination and protection of their rights under the act. This is our construction of the amendment so far as pertinent to the case at bar.

In any event, the Supreme Court has never held that a policeman cannot be an employee of a municipal corporation. (City of Metropolis v. Industrial Commission, 339 Ill. 141.) The writ of mandamus is not to be refused on the sole ground that the petitioner asks that he be restored to his position as an employee as distinguished from an officer of a municipal corporation, People v. Coffin, 282 Ill. 599. The contention that the petition does not allege that there is an ordinance of the City of Peoria creating the office of city fireman, cannot be sustained.

The following allegations are admitted by the motion to dismiss the petition: That at the time of the petitioners’ appointment and for many years prior thereto, there were more than 100 members serving on said fire department of said City of Peoria who had been appointed by the board of fire and police commissioners, and for whom the city council annually appropriated salaries as members of said department; that at the present time there are 120 members of said department regularly employed and paid by the city; that the city council appropriated sufficient funds to pay the salaries of 127 members of said department, including the petitioners for the fiscal year of 1941; that subsequent to your petitioners’ attempted discharge, the said defendants have appointed 19 men as members of said department, all of whom are serving and being paid as members of such department.

The Fire and Police Commissioners Act provides that the board of commissioners shall appoint all officers and members of the fire and police department; that all appointments to such department other than that of the lowest rank, shall be from the rank next below that to which the appointment shall be made; that the board of commissioners shall, by its rules provide for promotion in said departments on the basis of ascertained merit and seniority in service and examination, and in all cases, where it is practicable, vacancies shall be filled by promotion. (Sec. 14 — 4, 14 — 9, ch. 24, p. 374, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 21.1370, 21.1375].)

Paragraph 817 of chapter 22 of the Ordinances of the City of Peoria, herein above quoted, is in conflict with the provisions of the Fire and Police Commissioners Act. Under that act positions on the fire department are not designated by the fire marshal. Paragraph 817 under the act is not an effective, practicable and constructive method for the organization and operation of a city fire department. The provision of paragraph 817 that the fire marshal shall designate the positions of the members of the fire department of the city is so interwoven and ingrained with the requirement that there shall be 81 members of the fire department that the entire paragraph must be held in conflict with the Fire and Police Commissioners Act, and therefore is void.

The petition for the writ of mandamus directing that the respondents restore the petitioners to their positions as city firemen and that the City of Peoria pay their salaries from the date of their discharge until their reinstatement as city firemen should have been granted.

The order of the circuit court of Peoria county dismissing the petition is reversed and the cause remanded to that court with directions to overrule the motion to dismiss the petition.

jReversed and remanded with directions.


author: Mr. Presiding Justice

text:
    People of the State of Illinois for use of Pope County, Appellants, v. Joe Shetler et al., Appellees.

      Opinion filed March 2, 1943.
    J. Ado Whiteside, State’s Attorney, and S. S. DuHamed, of Springfield, for appellants.
    Scerial Thompson, of Harrisburg, Chas. Dureee, of Golconda, and Grover E. Holmes, of Metropolis, for appellees.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This is an appeal by appellants (hereinafter called plaintiffs), People of the State of Illinois for the use of the County of Pope, a municipal corporation, to reverse a judgment rendered in the circuit court of Pope county, dismissing the complaint as filed by plaintiffs. The complaint in this action is brought upon the bonds of defendant Joe Shetler, as sheriff and ex officio county collector of Pope county, for failure to pay over to the county treasurer interest which he collected upon delinquent taxes, and, in the alternative, to recover on such bonds for failure to comply with his duties and the conditions of the bonds in failing to collect interest on such delinquent taxes. The complaint consists of eight counts, the first four counts being predicated upon the bond for the respective years of 1935, 1936, 1937, and 1938. Each of the sureties on the respective bonds is joined in the action. The first four counts charged that the- collector collected and diverted to his own use the 1 per cent per month interest on delinquent taxes provided for in section 705, of chapter 120, of 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 119.721], In the last four counts Joe" Shetler is charged with having failed and neglected to collect such 1 per cent interest.

All of the defendants filed motions to strike the complaint and set up as reasons for such motions, substantially the following: (First) That there was a pending action in the same court and that the plaintiff in this cause is the same plaintiff in that case, and all of the defendants in this cause are named as defendants in the other cause; and also that the subject matter is the same in this cause as in the other cause; (Second) That the complaint should be stricken for the reason that it does not state that plaintiff was lawfully entitled to the sums of money sought to be recovered; (Third) that the complaint should be stricken for failure to clearly, concisely, and definitely state the specific breach or breaches relied upon; (Fourth) That the nominal plaintiff is not the actual owner of the cause of action (because of an alleged assignment to one of the attorneys); (Fifth) That the complaint should be stricken for the reason that it fails to state a cause of action and is vague, indefinite and incomplete; and (Sixth) That the complaint should be stricken for multifariousness in that separate and distinct matters are improperly joined in the complaint. The court below allowed the motions to dismiss. Plaintiff thereupon elected to stand by the complaint, and the court entered an order dismissing the complaint and entered judgment in favor of the defendants, and as against the plaintiff, and in bar of the action. ■Plaintiff contends that the court erred in sustaining such motions and appeals to this court for reversal of the judgment entered in such court.

The action as against defendants, who were sureties on the annual bonds given by the defendant Joe Shetler as county collector and as against Joe Shetler, as principal, involves a consideration of sections 705, 657, 688, 671, 761, 762, 763, 764, 780, 786, 662, 804 and 805, of chapter 120, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 119.721, 119.673, 119.704, 119.687, 119.777,119.778, 119.779,119.780,119.796,119.802,119.-678, 119.820, 119.821], as well as section 13 of chapter 103, of 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 92.13], By the terms of the sections of the act referred to it is obvious that a right of action exists as against the principal and his sureties, by .reason of the alleged collection and diversion to Ms own use of the 1 per cent interest on delinquent taxes provided for in section 705 of chapter 120 hereinabove referred to. The motions filed herein are to strike the entire complaint and do not refer to any particular counts. On the basis of the motions as filed, we are of the opinion that the court below erred in sustaining the motions to dismiss the complaint and should have overruled the motions in the form as presented herein.

The contention set forth in the motions purporting to refer to a prior suit pending, fails to comply with the provisions of the Civil Practice Act in setting up such ground. It is apparent that the defect complained of does not appear on the face of the complaint and there is no affidavit attached to the motions, setting forth the facts as to any prior suit pending, in accordance with the provisions of section 48 of the Civil Practice Act [Jones 111. Stats. Ann. 104.048].

The contentions set forth in the motions that plaintiff is not entitled to the sums of money sought to be recovered, or that the nominal plaintiff is not the actual owner of the cause of action because of the fact that an arrangement between the attorney and the county of Pope had been made for payment of the attorney on a contingent basis, would not be ground for striking the complaint. As indicated in the case of Kelley, Maus & Co. v. Newman, 79 Ill. App. 285, an agreement between a client and his attorney to pay the attorney a percentage of the claim for collecting it, is a mere promise to pay that charge and is not an assignment of that portion of the claim.

The allegations of the motions that the complaint fails to state definitely the breaches relied upon, or that it fails to state a cause of action, likewise cannot be sustained for the reason that the complaint, in the first four counts, in alleging that Joe Shetler had failed to pay such sum to the county treasurer, set forth a clear violation of the terms and provisions of the bonds, and a right of action accrued to the plaintiff by the terms of the bonds, under the law. Under the sections of chapter 120 referred to above, it became the duty of Joe Shetler to pay over the sums collected by him,as ex officio collector of taxes of the county. Where the condition of an official bond is that the officer faithfully perform the duties of his office, the statutes prescribing such duties become a part of the bond, so that the sureties thereon are lia-. ble for any dereliction in the performance of any duty required by the officer by statute (Estate of Ramsay v. People, 197 Ill. 572). The sureties upon the successive bonds given by Joe Shetler are liable for defaults occurring during the particular periods for . which the bonds were given (People v. Bowman, 147 Ill. App. 67), and may be sued in an action jointly with the principal (sec. 13, ch. 103, Ill. REev. Stat. 1941 [Jones Ill. Stats. Ann. 92.13]). Accordingly, if the action in the instant case had been instituted upon one bond against Shetler and his sureties, based upon the allegations that he collected and failed to pay over moneys, pursuant to section 705, it is obvious that such action would he proper and that such complaint (as is true of the first four counts) would state a cause of action. The only question which arises in the instant case is whether a striking of the complaint is justified upon the basis of the motions of the defendants, as filed herein.

We must conclude that a dismissal pursuant to the general objections set forth in such motions was not proper. As pointed out in Hitchcock v. Reynolds, 278 Ill. App. 559, a motion which fails to allege facts pointing out specifically the defects complained of, and to ask for such relief as the nature of the defects may make appropriate, is insufficient in law, and should not be entertained by the court. In the instant case the only contention made is that the complaint should be stricken for multifariousness, and for improper joinder of separate and distinct matters. The court, in Hitchcock v. Reynolds, supra, points out, at page 563 “Misjoinder of parties is not a ground of abating the action; . . . but, under section 45 of the Civil Practice Act, a motion will be entertained to Require parties improperly joined to be dismissed. No action shall be defeated by the nonjoinder or misjoinder of parties. ... A motion which seeks to raise the question of misjoinder of causes of action in the complaint, must specifically point out such defect by proper allegations, and it is not sufficient to simply allege that the complaint is defective because the causes of action alleged therein are improperly joined.”

In view of sections 45, 48 and 50, of the Civil Practice Act [Jones 111. Stats. Ann. 104.045, 104.048, 104.050], and the construction adopted by. the courts of this State, consistently with Hitchcock v. Reynolds, supra, the dismissal of the action herein on the basis of the motions before the court, was not justified. There was no request made in such motions that any designated misjoined parties be dismissed, as provided by the specific provisions of section 45 of the Civil Practice Act. The only relief demanded was that the complaint be stricken in its entirety. In view of the fact that the first four counts of the complaint referred to herein, unquestionably stated a cause of action, as. against defendants, and on the basis of the sections of the Civil Practice Act referred to, and of the interpretations thereof which have manifested the fact that the Civil Practice Act, in dealing with joinder of plaintiffs and defendants in causes of action in one action, is remedial, and tends to lessen delays and expenses of litigation where possible, and that such provisions should be liberally construed (Weigend v. Hulsh, 315 Ill. App. 116), we' must conclude that the court below erred in dismissing the complaint on the motions as filed by defendants. A dismissal of the last four counts of the complaint for failure to state a cause of action would, in our judgment, have been proper, and permitting the sureties on each of the four bonds to have separate trials on each of the four bonds will adequately protect such parties and be in keeping with both the spirit and the letter of the Civil Practice Act.

This cause will, therefore, be reversed and remanded to the circuit court of Pope county, with directions to set aside the judgment heretofore entered herein, and to proceed in this cause in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.