author: Mr. Justice Maxwell

text:
    (No. 33604.
    The People of the State of Illinois, Defendant in Error, vs. William Holzapple, Plaintiff in Error.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Howard E. Smith, Jr., of Geneva, Prentice H. Marshall, and Thomas P. Sullivan, both of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago-, (Ered G. Leach, Edwin A. Strugara, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William: L. Carrin, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court:

On April 18, 1921, plaintiff in error, William Holzapple, pleaded not guilty to- the charge of burglarizing a certain garage in Cook County and feloniously taking personal property in the amount of $77. On April 29, 1921, his plea was withdrawn and he then pleaded guilty. This plea was accepted by the court together with an application for probation. Plaintiff in error was placed on probation for a one year period and was ordered to- make restitution in the amount of $239 payable at the rate of $20 per month. This probation order, together with an order continuing the cause for one year, was entered April 29, 1921. On April 10, 1922, the trial court was notified by the probation officer that due to sickness and death in his family plaintiff in error was unable to make restitution and he recommended extension of the probation period for another year. On April 22, 1922, an order extending the probation period for an additional year was entered.

On March 19, 1923, the trial court was notified by the probation officer that plaintiff in error had violated the terms of his probation. It appears that no restitution of any amount was made and that during this probationary period plaintiff in error left the State of Illinois and committed certain crimes in Rhode Island and Massachusetts for which he was convicted. Upon his rearrest and appearance before the criminal court of Cook County on April 23, 1942, he was sentenced to the penitentiary for a period of not less than one year nor more than life. The validity of the judgment and sentence of the court entered on April 23, 1942, is the subject of the writ of error here presented.

It further appears that on May 10, 1943, Holzapple was released on a writ of habeas corpus filed in said criminal court. (See People ex rel. Holzapple v. Ragen, 2 Ill.2d 124.) Thereafter this order was in turn ordered expunged by reason of the opinion of this court in People ex rel. Barrett v. Sbarbaro, 387 Ill. 37. After extradition from Indiana he was returned to this State and confined tO' the penitentiary on May 9, 1952.

Plaintiff in error attacks the validity of the judgment claiming that it was not entered before the defendant was committed to probation, that no probation investigation was ordered by the trial court in the first instance, that the condition of restitution of the amount of $239 was an invalid award of damages, that probation was extended prior to the expiration of the original probation period, that the extension was granted solely because defendant failed to malee payment of the invalid award, that the cause was not continued for the extended period of probation and that the probation was ordered revoked long after its expiration date.

The record in this case shows the acceptance by the court of defendant’s plea of guilty and such plea raises the legal inference of a finding of guilty by the court. (People v. Dodge, 411 Ill. 549.) The record recites that the court was fully advised in the premises and the court found that defendant was entitled to release on probation. This benefit conferred upon the defendant cannot be attacked under our holding in People v. Penn, 302 Ill. 488. It also- appears plaintiff in error is mistaken in his assertion that no order was entered continuing the cause for the period of probation.

The award of restitution, if excessive, is not void but merely erroneous as to the excess and may be regarded as surplusage. From the probation laws in force at the time it clearly appears that the court had power to order restitution. The record before us does not show the circumstances under which the amount was determined. The court had jurisdiction of both the subject matter and the person and it follows that the erroneous condition of an excessive amount of restitution could not have voided the order of probation. People v. Stucker, 5 Ill.2d 55.

It appears that the extension of the original period of probation for one year’s period of time, as ordered by the trial court, was to be effective as of the end of the first year’s period so that, in all, the defendant was afforded the maximum probation period of two years allowed by the statute. Plaintiff in error relies upon the holdings of this court in People v. Cahill, 300 Ill. 279, and People v. McMurray, 391 Ill. 271, as authority for the proposition that the extension of a orie-year probation order entered before the actual expiration of that period is void. An examination of the Cahill case reveals that the trial court did not enter an order extending the original period of probation of that defendant. The result there was that the court attempted to- enter an order after it had lost jurisdiction. It is to be noted that in the present case the trial court did enter an order extending the period of probation. In the McMurray case the trial court did not attempt to take any action in respect to revocation of probation until several months had passed after the maximum statutory period of probation expired. As pointed out in the latter case two years was the longest possible period of time to which action upon probation could be postponed under the statute. In the Cahill case we pointed out that a defendant could upon no charge be placed on probation for a longer period of time than one year in the first instance, and that the statute did not authorize, at the termination of the probation period, an extension of the probation period for any term longer than one year. In the McMurray case the defendant was admitted to probation October 13, 1936', for a period of one year. There was no extension of this one year period and on February 8, 1939, the original probation order was vacated. Although it appeared that the court entered some type of order May 23, 1937, continuing defendant’s probation, no' specific time seems to have been fixed by the court. On page 276 of the McMurray opinion we declared that the trial court did not, after defendant’s appearance in court on June 30, 1937, enter any of the orders required by statute and consequently lost jurisdiction of the case. We further declared that if, however, it be deemed defendant was recommitted to probation it could not be for a longer period than one year and that the exercise of jurisdiction by the court after that period would be a nullity. It further appears in the latter case that the grounds for revocation of the defendant’s probation were erroneous and that defendant was therefore guilty of no violation of his probation. It is manifest that the Cahill and McMurray decisions are clearly distinguishable and cannot support the contentions of plaintiff in error here.

At the time of commission of the offense the statute fixed the punishment for burglary at not less than one year nor more than twenty years. The court’s judgment and sentence in the present case imposing a term of not less than one year nor more than life was evidently entered under the statute in force at the time of the sentence. This was clearly erroneous and plaintiff in error is entitled to a proper judgment and sentence under the law in force and effect at the time of the commission of the offense. The sentence is not void but merely erroneous. (People ex rel. Holzapple v. Ragen, 2 Ill.2d 124.) The judgment and sentence of the criminal court of Cook County is hereby reversed and the cause remanded to said court for a proper sentencing of plaintiff in error.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    (No. 33761.
    Emma Smyth, et al., Appellees, vs. Kaspar American State Bank, Appellant.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Albert E. Jenner, Jr., Philip W. Tone, and William B. Davenport, all of Chicago-, (Johnston, Thompson, Raymond & Mayer, of counsel,) for appellant.
    Haddád & Santucci, and Charles T. Kropiic, both of Chicago, (George J. Haddad, of counsel,) for appelles.
   Mr. Justice Bristow

delivered the opinion of the court:

In a class action, instituted by present and former owners of certificates of beneficial interest, issued by defendant Kaspar American State Bank pursuant to a plan of reorganization, to- enjoin defendant from paying any dividends on its capital stock until the certificates have been paid, and for other equitable relief, the superior court of Cook County dismissed the major portion of plaintiffs’ complaint for want of equity, and entered a decree for defendant on the pleadings. That decree was reversed by the Appellate Court, which held that the complaint presented grounds for relief; that the plaintiffs who surrendered their certificates were not barred by an accord and satisfaction; and that a class suit could be maintained. (6 Ill. App.2d 64.) We have allowed defendant’s petition for leave to appeal therefrom.

The cause presents for our determination essentially three issues: the validity of certificates of beneficial interest which are payable, in part, out of future earnings; whether the surrender of the certificates by some of the plaintiffs, pursuant to the demand and representations of the defendant bank, constituted an accord and satisfaction; and the propriety of a class action herein.

On June 24, 1932, the Auditor of Public Accounts took over the affairs of the defendant bank after it was compelled to close as a result o-f a “run” by its depositors. Pursuant to the statute (Ill. Rev. Stat. 1955, chap. i6y2, par. 11,) he appointed a receiver and filed dissolution proceedings. An order was entered therein on December 27, 1934, finding that under the plan of reorganization approved by the Auditor the bank was solvent, and directing the receiver fi> restore the bank to its directors for reopening.

Under the reorganization plan evolved by the Auditor and officers and directors of the bank, the $1,600,000 capital stock was surrendered and cancelled, and 12,500 shares of new stock were sold at $24 each. Of these new shares, 8,406 were subscribed by the surrendering stockholders, and the remaining 4,094 shares were purchased by 450 new stockholders. The proceeds from this transaction, $300,000, were delivered to' the bank. In addition, some 7,000 depositors executed an agreement waiving 60 per cent of the amount standing to their credit (actually 54 per cent as of June 24, 1932,) for a total of $1,805,000 and received in return certificates of beneficial interest. Inasmuch as the legal effect of the waiver agreement and certificates is controverted herein, the relevant portions thereof are set forth.

The agreement recited that the depositor, “in consideration of the execution of like agreements on the part of other depositors of said bank, does hereby covenant and agree to keep on deposit with said bank, and/or does hereby waive, surrender and release said bank from payment of Sixty (60) per cent of the amount of money standing to (his, her, its) credit on the books of said bank as of April 15th, 1933, whether represented by checking account, savings account, * * * or any other evidence of indebtedness, hereby waiving all right to ask or demand said sum of money, and agreeing to accept in lieu of payment in cash and as evidence of said sum waived, a deferred certificate and/or a certificate of beneficial interest issued by said bank for like amount, payable out of the future recoveries and the net profits of the bank, and before any dividends or returns of any kind or character are payable to the stockholders. The depositor further agrees to present all certificates of deposit, savings books and pass books, or other evidence of indebtedness held by the depositor or creditor, to1 the bank for endorsement in accordance with this agreement on being notified of the acceptance hereof.”

The certificate of beneficial interest recited that it was subject to the waiver agreement and that it was payable “solely out of the future recoveries and net profits” of the bank, and that payment shall be made pro rata with the sums due on similar certificates on such dates and in such manner as the bank shall determine with the written approval of the Auditor, before any dividends or returns of any kind are paid on the capital stock of the bank.

The certificate specified further: “It is understood and agreed that no lien or preference of any kind exists against any of the assets of the bank in favor of the holder of this certificate and that payments hereon shall be made from time to time in such amount as shall be directed by the Auditor of Public Accounts in his sole discretion.”

In connection with these provisions of the certificate it should be noted that the certificate was construed (by this court in August, 1938,) h> preclude any recourse against the stockholders under their constitutional liability for the amount of waived deposits. Chaitlen v. Kaspar American State Bank, 372 Ill. 83.

Under the reorganization plan it was further provided that the slow or frozen assets of a book value of $3,168,493 were written down to $383,780. These assets, carried in a separate account for bookkeeping purposes, were under the charge of a liquidator appointed by the Auditor, and they could be applied to- payment of the certificate fi> the extent they and their proceeds were not necessary to insure the solvency and liquidity of the reorganized bank.

The bank was reopened on January 15, 1935, and between April 14, 1936, and May 13, 1946, some nine distributions were made by the bank from the net proceeds of the slow or frozen assets, upon the authority and approval of the Auditor, for a total of 55 per cent of the face value of the certificates.

On September 21, 1948, the Auditor notified the bank by letter that it had sufficient accumulations of recoveries and profits in its capital structure to- make at least a 15 per cent disbursement to its deferred certificate holders. The letter stated: “It is hereby requested that such a disbursement be made, and we would appreciate your advice as to the date of distribution and total amount to' be distributed.”

Pursuant thereto, defendant on December 15, 1948, sent a letter to each certificate holder, setting forth in substance the background of the reorganization, the fact that “similar arrangements” had been made by many other banks, including the Fulton State Bank, which declared its last distribution when the set-aside assets were liquidated. The letter then explained that the ensuing litigation against the Fulton Bank resulted in the decision in Logemeyer v. Fulton State Bank, 384 Ill. 11, which defendant considered binding upon it, and which decided that the certificates were payable solely out of money realized from the liquidation of assets. Consequently, the letter stated, since defendant’s own set-aside assets were now liquidated, defendant was required to- make a final distribution which amounted to 15 per cent of the original sum waived. However, no check would be delivered without surrender of the certificate, which would be cancelled and kept by the bank.

In response to that letter the holders of 5,874 of the 7,061 certificates originally issued requested and received the final 15 per cent distribution and delivered their certificates, which were stamped “paid” and cancelled. The defendant bank distributed $250,980.75 of this “final payment,” and $19,687.58 remained for the payment of the outstanding 1,187 certificates, on which the bank refuses to pay except upon surrender of the certificates.

The plaintiffs in Group I represent the class which did not surrender their certificates, and the plaintiffs in Group II represent those who did surrender their certificates. They allege that, unless enjoined, defendant will declare and pay dividends to the stockholders, and they seek a decree that all members of both groups have a preferential right to be paid pro rata the full face amount of their respective certificates before any dividends or returns are paid to the stockholders; that defendant be required to pay into court, for the members of Group I, the 15 per cent distribution tendered in the letter of December 15, 1948; that the cancellations of certificates surrendered on or after December 15, 1948, be declared void; that defendant be enjoined from paying any dividends on its capital stock until the face amount of the certificates has been paid, and that until final payment defendant be required to pay into court any dividend declared by it, which shall be distributed pro rata among the members of Groups I and II.

Defendant’s answer pleads that insofar as the deposit waiver agreement and the certificate of beneficial interest purport to be a pledge of future earnings of the bank, or to afford any certificate holder any claim on any assets of any kind of the bank, they are ultra vires and against public policy, and therefore void. Defendant also raises the defense of accord and satisfaction as against the plaintiffs in Group II, alleging that the surrender of certificates for cancellation by the holders on receiving the final 15 per cent payment was for good and valuable consideration, and was a discharge of all obligations due on the certificates from defendant. Defendant further challenges the propriety of a class suit in a proceeding where the interests of the parties are conflicting.

The superior court of Cook County dismissed the major portion of plaintiffs’ complaint for want of equity, and granted defendant’s motion for a decree in its favor on the pleadings. The Appellate Court reversed that decree and held that the certificates were valid obligations, but that plaintiffs in Group II were not entitled to relief since there was a valid accord and satisfaction, and that they could not maintain a class suit. On rehearing, however, the Appellate Court, in an additional opinion, held that the accord and satisfaction was vitiated by a mistake of law, and that plaintiffs in Group II as well as Group I could properly prosecute a class suit.

With reference to the validity of the certificates, we are cognizant that they were subject to< judicial observation by both the court which authorized the bank to resume operations under the reorganization plan, and by this court in Chaitlen v. Kaspar American State Bank, 372 Ill. 83, where we noted that the waiving depositors “were to- be paid out of certain slow assets which were to be placed in a liquidation fund and out of future profits of the bank.” However, since the validity of that provision was not questioned, it must now be determined by this court.

Defendant argues that insofar as they are payable out of future earnings the certificates are ultra vires and therefore void. It is settled doctrine, as defendant contends, that no rights arise under an ultra vires contract, even though it has been performed, and that conclusion cannot be circumvented by invoking an estoppel or any other legal concept. Texas & Pacific Railway Co. v. Pottorff, 291 U.S. 245 ; O’Connell v. Chicago Park District, 376 Ill. 550.

In support of its contention that the certificates were ultra vires, defendant maintains, and plaintiffs deny, that the case of Logemeyer v. Fulton State Bank adjudicated that issue and is binding herein. Although the ratio decidendi of that case was that the power of attorney executed by the depositors constituted the sole ground of liability of the bank and that under it the bank had not contracted to repay the waived deposits out of future earnings, nevertheless, the court in the course of its opinion stated that a going bank has no power to pledge future earnings to secure creditors or depositors, and intimated that it would have been unlawful had the Auditor suggested that the waiving depositors be paid out of future earnings. It is that additional observation which defendant claims is determinative of the case at bar.

It would not be a proper exercise of the judicial function either to categorically label the statements as nonbinding dicta as plaintiffs suggest, or to regard them as declarative of the law irrespective of their context, as defendant urges. The statements should properly be evaluated in the light of the cause involved, and the authorities cited.

Under the reorganization of the Fulton State Bank, which had been closed by the Auditor, the depositors signed powers of attorney authorizing the waiver of 40 per cent of their deposits and delegated to the bank authority to adopt any plan of reorganization that it would deem best for conserving the interests of the depositors and the assets of the bank.

Some four years after the bank resumed operations, the Auditor sent the bank a resume of its operations showing total earnings, profits, recoveries and potential recoveries from the segregated assets during the four-year period “with a view toward arriving at a figure that would represent a fair settlement” with the waiving depositors. Several months later the officers of the bank, pursuant to authority from the stockholders, offered to pay approximately 55 per cent of the deposits waived in full settlement of the liability to the depositors, but the offer was rejected and the depositors brought an action at law to- recover the full amount of the waived deposits. They claimed that there was either a constructive trust or an implied agreement to pay the waived deposits from profits, evident from the fact that the Auditor included net earnings with the recoveries from the charged-off assets in his letter to the bank, and from the stockholders’ resolution which also included net earnings of the bank in the calculations, and from a letter that had been sent by a Citizens Committee to nonresident depositors at the time of the reorganization. However, the Auditor and the Chief Bank Examiner testified that no plan was approved which involved a payment of any of the liabilities of the bank out of future profits, nor was any testimony offered to prove such action upon the part of the Auditor.

The court refused to imply an agreement from the circumstances suggested by plaintiffs, which were otherwise explainable, and found no evidence that the bank or Auditor authorized that the general assets of the reorganized bank were to be pledged to pay the waived deposits. The court also rejected plaintiffs’ alternative and inconsistent contention that a constructive trust should be imposed on all the assets in favor of the waiving depositors. In the course of its analysis the court intimated, as aforementioned, that it would not be within the power of a reorganized bank to enter into an agreement tO' promise to pay waiving depositors from future earnings.

A review of the cases cited by the court in the Logemeyer case shows that they do not involve that issue, nor support any such declaration of the law. In People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, the court held ultra vires and void a pledge of specific assets by a solvent bank to secure a deposit of a park district on the ground that banks have no general power to pledge specific assets and that such power is in fact contrary to public policy in that creditors or other depositors would be prejudiced. The decision followed that of the Supreme Court of the United States in Marion v. Sneeden, 291 U.S. 262, and is similar to that in O’Connell v. Chicago Park District, 376 Ill. 550.

In Knass v. Madison and Kedzie State Bank, 354 Ill. 554, also cited in the Dogemeyer case, the court held ultra vires an agreement by the bank to' repurchase real estate bonds on the ground that it created liability of an uncertain amount, contingent upon factors beyond its control; and in Continental Illinois National Bank and Trust Co. v. Peo ples Trust and Savings Bank, 366 Ill. 366, an agreement whereby one bank agreed to liquidate the assets and discharge the debts of another, without the statutory permission of the Auditor, was deemed ultra vires.

The common denominator in each of those cited cases was the impairment of capital, and insofar as the particular agreement involved a pledge of specific assets to assure preferential treatment of certain depositors at the expense of others, those cases are distinguishable from the Logemeyer case. Nevertheless, the court therein reasoned that since the alleged implied agreement to pay out of future earnings would involve a pledge of general assets, by analogy to those cases, it would be ultra vires. Irrespective of the propriety of that analogy, it is evident that under the implied agreement therein, the deposits would have been merely changed from a demand liability to a postponed liability, thereby impairing the capital of the Fulton State Bank.

In contrast to' that case, the certificate herein protects the capital by prohibiting the bank from using its capital funds to retire the certificates, and expressly negates any pledge of assets, such as that construed by the court in the Logemeyer case, by the provision: “It is understood and agreed that no lien or preference of any kind exists against the assets of the bank in favor of the holder of this certificate * * Moreover, the certificate further protects new depositors and creditors by the provision prohibiting the distribution of earnings to pay off the certificates without the consent of the Auditor. Thus, the certificate holders in the case at bar, unlike the waiving depositors in the Tongemeyer case, are not entitled to any specific sums of money payable irrespective of any contingency, or enforcible by judgment or money decree; nor can they invoke the stockholder’s constitutional liability.

By virtue of these restrictive provisions in the certificates and by the waiver agreement, protecting the capital and precluding any pledge of future earnings or assets, there can be no> jeopardy to the rights of other depositors and creditors. Under these circumstances the basis for the court’s objection to the contended-for agreement, or constructive trust, in the Logemeyer case, is obviated. Therefore, since the obligation herein differs not merely from the absolute waiver which the court in the Logemeyer case found to be the actual agreement between the parties, but also1 from the agreement contended for and rejected in that case, any remarks by the court in general terms with reference to agreements to pay out of future earnings are not determinative.

The instant case is also readily distinguishable from the pledge of special assets cases (People ex rel. Nelson v. Wiersema, State Bank, Marion v. Sneeden, and O’Connell v. Chicago Park District,) where the ultra vires obligation of the bank withdrew assets, impaired capital, and gave a preference to1 the favored depositor. As hereinbefore noted, there can be no such impairment of capital or preference to any depositors under the agreement and certificates involved in the case at bar.

The agreement herein also differs from that in the Knass case, where the bank had an absolute obligation to repurchase the bonds at the option of the holders at some undetermined price, which would deplete its assets and impair its capital at'the expense of depositors and creditors.

It is evident, therefore, that the validity of the certificates in the instant case must be determined in the absence of any binding precedent either in Illinois or in any other jurisdiction. While we are cognizant that the Iowa court in a well considered opinion in Priest v. Whitney Loan & Trust Co. 219 Iowa 1281, 261 N.W. 374, did sustain the validity of a trust certificate issued to waiving depositors by a bank pursuant tO' a plan of reorganization, to' be paid out of collections from segregated assets and from net earnings; and that the Georgia court in Hollingsworth v. People’s Bank, 179 Ga. 812, 177 S.E. 743, sustained a reorganization agreement providing that no dividends would be claimed until the waiving depositors were paid; nevertheless, these cases did not adjudicate the precise issue presented herein, and decisions of other States, dependent upon varying provisions in the respective banking acts, are of limited value. 99 A.L.R. 1217.

The validity of the certificates herein depends not upon whether they are labelled a “debt,” as defendant contends, or are comparable to “preferred stock,” as plaintiffs suggest, but rather upon whether the obligations created thereunder offend any statutory provision or public policy.

A bank incorporated under the legislative authority has only such powers as are expressly granted or necessarily implied from the specific grant (People ex rel Nelson v. Wiersema State Bank,) and persons dealing with a bank are chargeable with notice of its power and limitations (Continental Illinois National Bank and Trust Co. v. People’s Trust and Savings Bank, 366 Ill. 366.) Plaintiffs argue that banks admittedly have power to pay their depositors, and that under the agreement the depositors did not waive their entire right to such payment, but retained a fraction of their original rights, consequently the payment provisions are within the power of the bank. Defendant, however, contends that under the agreement plaintiffs acquired new rights which were beyond the power of the bank to> grant, and cites, in support thereof, the aforementioned Illinois cases which recognize limitations on the implied powers of the bank.

It is evident that in contrast to the Knass case and the pledge of special assets cases, the certificates herein were not issued by a going bank as part of its general banking power, but by an insolvent bank under the control of the Auditor of Public Accounts pursuant to a plan of reorzanization. Courts have sustained and liberally construed reorganization statutes and agreements executed pursuant thereto to enable banks to- resume operation, in the interest of protecting the public and the economy. Doty v. Love, 295 U.S. 64; Priest v. Whitney Loan & Trust Co. 261 N.W. 374.

Moreover, in the aforementioned cases where the courts refused to imply the power, they emphasized that there was no evidence of a general use or custom to include the particular transactions within the scope of “general banking business.” In sharp contrast, certificates payable from recoveries and net profits before the payment of dividends, such as the certificates herein, were issued to- depositors by some 239 banks in Illinois, and were tacitly approved by the courts of other States. 80 A.L.R. 1487; 99 A.L.R. 1217; Doty v. Love, 295 U.S. 64.

Irrespective of the prevailing practice, the controverted payment provision of the certificate cannot be deemed to be within the implied powers of the bank if it is in derogation of public policy. That concept has been loosely defined to mean that no one may lawfully do- that which has a tendency to injure the public welfare. (People ex rel. Nelson v. Wiersema State Bank.) The stability of banks vitally affects the public welfare and any plan which would impair that stability is inimical to the public welfare and, therefore, contrary to public policy.

As hereinbefore noted, the certificate was drafted to protect the capital of the bank by prohibiting any lien against the assets, or any payments on the certificates except out of profits, and then only with the consent of the Auditor, in amounts and at intervals which he approves, if there are sufficient recoveries from the frozen assets and profits. At the same time the waiving depositors are given some protection by the requirement that the certificates be paid before any dividends or other returns from the profits are paid to the stockholders.

That priority provision neither converts the status of the waiving depositors to that of preferred shareholders, as the plaintiffs suggest, nor does it constitute a payment of the waived deposits out of dividends or impose a hardship on the stockholders, as defendant suggests. The stockholders invested with full knowledge of that priority provision; they enjoy freedom from constitutional liability on those waived deposits and have priority as to their principal as well as the benefit of the provisions protecting the bank’s capital.

Since the objective of reorganization is the payment of creditors (Doty v. Love, 295 U.S. 64,) it is not unreasonable to give the certificate holders, whose waivers enabled the defendant bank to resume operations, and who are without an enforcible claim for their deposits, either against the bank or the stockholders, as compared with nonwaiving depositors who were paid in full, some assurance that they will receive payment when there are profits, so that they are not dependent upon the whim of the particular governing group who may be anxious for dividends.

On the basis of this analysis, the provision for payment of the certificates out of recoveries and net profits, as circumscribed by the restrictive provisions, effects an equitable mode of payment of the waived deposits without impairment of capital or prejudice to new depositors, creditors or stockholders, and, consequently, in no way offends public policy. Therefore, it may properly be deemed to be within the defendant bank’s implied powers of reorganization.

Defendant contends further that irrespective of the validity of the certificates, plaintiffs in Group II, who surrendered their certificates in return for the 15 per cent payment, executed a binding accord and satisfaction which precludes recovery in this proceeding. To constitute a binding accord and satisfaction there must be mutual assent and consideration, and plaintiffs deny the existence of either of these elements.

The 15 per cent dividend or distribution to the certificate holders was declared out of the balance of the proceeds of the liquidation of the so-called slow and frozen assets which had been carried in a separate account for bookkeeping purposes. The 15 per cent payment was declared on December 15, 1948, several months after the Auditor notified the bank that it had “sufficient accumulation of recoveries and profits in capital structure to make at least a 15 per cent disbursement.” It was tendered in a letter to the certificate holders, which stated that under the Supreme Court decision in the Logemeyer case, which was binding upon defendant, the certificates were payable solely out of money realized from the liquidated assets and that the 15 per cent dividend constituted the final payment from the liquidation of the set-aside assets, but that no check for that amount would be paid without the surrender of the certificates.

It is evident that the sum was not offered, nor the surrender of the certificates requested, as a compromise of a disputed liability, or as a contractual act, but rather as the payment of a recognized and liquidated obligation, and an acknowledgment that the holder had received the balance of his ratable share in the proceeds of the assets. Therefore, no assent to a compromise of their rights could be implied from the action of the certificate holders in surrendering their certificates; such conduct was rather in response to defendant’s unlawful demand based on its unwarranted interpretation of the Logemeyer case.

With reference to the matter of consideration, we recognize the rule obtaining in Illinois and other jurisdictions that payment by a debtor of a lesser sum as a compromise of a disputed claim may be deemed proper consideration. (Janci v. Cerny, 287 Ill. 359; Greenberg v. Metropolitan Life Ins. Co. 379 Ill. 421; 6 Corbin, Contracts, § 1289.) However, in the instant case the 15 per cent dividend represented the balance of the set-aside assets, and even under defendant’s theory, plaintiffs were entitled tO' that sum. In addition, plaintiffs had a contingent right to payments on their certificates from net profits, which defendant denied, and which was debatable under the Logemeyer case.

The payment of a sum admittedly due furnishes no consideration for the discharge of an additional disputed liability, even where such sum is accepted as full payment. (1 Restatement of Contracts, p. 85; 1 C.J.S. 502, 513; Knight Templars and Masons Life Indemnity Co. v. Crayton, 209 Ill. 550; Klinke v. Great Northern Life Ins. Co. 318 Ill. App. 43.) In the instant case the 15 per cent dividend was in no way tendered as a compromise of the bank’s obligation on the certificates. On the contrary, the defendant bank was obligated to pay that dividend from the liquidated slow assets, without requiring plaintiffs to1 surrender their certificates. Hence, that dividend could not be deemed to be the consideration for plaintiffs of Group II relinquishing their rights to the face amount of their certificates. Therefore, since defendant gave up nothing in return for the surrender of the certificates, there could be no valid accord and satisfaction.

Without prolonging the opinion unduly, it may be noted that there are additional grounds for holding that the purported accord and satisfaction is of no legal force and effect. Not only was it the result of a mutual mistake of law as held by the Appellate Court, but it was executed without the requisite good faith for establishing such an affirmative defense. Although no true fiduciary relationship existed between the bank and its waiving depositors, the bank as a quasi-public institution (People ex rel. Nelson v. Wiersema State Bank) should be held to something “stricter than the morals of the market place.” The certainty with which defendant declared its interpretation of the Logemeyer case as the law, without reference to any conceivable doubts, even though some 239 other Illinois banks honored such certificates, or to1 the Auditor’s recommendation that the dividend be paid merely “on account,” and the sequence of statements and phraseology in the letter, designed to make the obligation in the Logemeyer case seem identical to its own, tended to mislead the depositors, and constituted somewhat less than the proper measure of disclosure.

In view of the foregoing considerations we cannot sustain defendant’s contention that plaintiffs in Group II are barred from relief in the proceeding because of any valid accord and satisfaction.

Defendant contends further that plaintiffs are not properly entitled to institute a class action because of the conflict which exists among claimants to- a ratable share of the common fund. Although refinements and distinctions have been promulgated by the courts on the subject of class actions (45 Harv. L. Rev. 1297; Dickinson v. Burnham, 197 F.2d 973; Southeast National Bank v. Board of Education, 298 Ill. App. 92,) the basic criterion is the community of interest in the subject matter and remedy.

In analyzing the basis of class suits, the U.S. Court of Appeals stated in Weeks v. Bareco Oil Co. 125 F.2d 84: “To permit the defendants to contest liability with each claimant in a single separate suit would, in many cases, give defendants an advantage which would be almost equivalent to closing the door of justice to all claimants. This is what we think the class suit practice was to prevent.”

The mere fact that the pro rata share of a participant in a common fund is increased or decreased by the number and amount of claims against the fund does not constitute a conflict of interest between the claimants which would bar a class suit to establish the fund. Redmond v. Commerce Trust Co. 144 F.2d 140; Heine v. Degen, 362 Ill. 357, 365; Newberry Library v. Board of Education, 387 Ill. 85.

In the Redmond case the court, in rejecting a contention similar to that urged by defendant herein, stated: “Appellee contends this is not a class action because there is conflict of interests between the beneficiaries. * * * The petition is based upon a common and undivided obligation and liability — the preservation and proper distribution of a trust fund wherein all beneficiaries are interested in preservation of the fund and none can have legal standing to seek its distribution other than in accord with the trust indenture. The possible situation that the beneficiaries may have divergent views as to their several undivided rights in the distribution of a trust fund which is alleged to be insufficient to pay all in full does not prevent this being a class action.”

In the instant case, plaintiffs of Groups I and II share a common interest in establishing the validity of the certificates, and the right of the holders to share in the net profits of the defendant bank in accordance with the terms of the certificates of beneficial interest and the waiver agreement. Each certificate holder will share pro> rata with other holders, and all certificates are payable only out of the common fund. Consequently, the essential elements exist warranting a class suit. The fact that members of Group I are not involved in the determination of the validity of the accord and satisfaction, which defendant asserts as its special defense against Group II, does not destroy the propriety of the class suit, since it is not essential that the parties all have an interest in all the matters involved in the suit. King v. Rice, 285 Ill. 123, 128.

With reference to defendant’s claim interposed for the first time in this court that the stockholders should be parties to this litigation, it is our opinion that the essential issue herein is the validity of the certificates of beneficial interest issued by the defendant bank, and that in the determination of that issue the stockholders are not necessary parties, as there is no claim asserted or allowed against them, but rather against the bank.

On the basis of our analysis of the issues presented in this cause, plaintiffs are entitled to the relief sought, and the judgment of the Appellate Court reversing the decree of the trial court and remanding the cause for further proceedings is affirmed.

Judgment affirmed.


author: Mr. Justice Daily

text:
    (No. 33831.
    The People of the State of Illinois, Defendant in Error, vs. Loran S. Clark, Plaintiff in Error.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Eoran S. Clark, pro se.

      Latham CastlE, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago, (Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and Abbey Blattberg, of counsel,) for the People.
   Mr. Justice Daily

Defendant, Lo-ran S. Clark, prosecutes this writ of error to review a judgment of the criminal court of Cook County entered o-n a jury verdict finding him guilty of larceny by embezzlement. He was sentenced to imprisonment in the penitentiary for a term of not less than one year nor more than two years.

Recourse to the record discloses that on May 3, 1954, two indictments had been returned to- the criminal court against defendant. By one of them, No. 54-1075, he was charged with larceny by embezzlement of the sum o-f $235 from Mabel Josephson. The nature of the other charge does not appear. On the day named, defendant, who was an attorney, (see In re Clark, 8 Ill.2d 314,) filed his appearance pro se and, upon arraignment, entered a plea of not guilty. At the same time the cause was set for trial on June 14, 1954. When that day arrived the People were ready for trial but defendant moved for a continuance, stating he was going to be represented by an' attorney named McClory who- would be able to go to trial in one week. The court granted the motion for continuance and, after open discussion with the assistant State’s Attorney in defendant’s presence, expressly advised the defendant as follows: “You are on trial a week from today in indictment No. 54-1075. * * * The other one will be continued until the same date.” A week later, on June 21, 1954, attorney Paul F. Hayzlett filed his appearance as defendant’s counsel, a motion for change of venue was filed and allowed, and the cause transferred to the chief justice of the criminal court for reassignment. Thereafter it was continued by agreement to July 7, 1954, and on that date was assigned for trial on September 13, 1954. On the latter date Hayzlett and defendant appeared and sought a further continuance of three days which was denied when it appeared the People and their witnesses were ready for trial. Hayzlett then informed the court he was prepared to proceed with the other charge against defendant but that he was unprepared in cause No. 54-1075, which is the one involved in this review. The trial court, taking notice that defendant had been expressly advised of the People’s election to- first proceed in cause No. 54-1075, ruled that ample opportunity had been given to prepare a defense and ordered that the trial would begin after a recess of several hours. As one of his numerous assignments of error, defendant now contends that the court’s refusal to grant his counsel a continuance in the cause was an invasion of his constitutional right to a fair trial.

The granting of a continuance to permit preparation for a case necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. Its decision will not be disturbed upon review unless it is clearly shown that such discretion has been abused. (People v. Quevreaux, 407 Ill. 176; People v. Ritcheson, 396 Ill. 146.) The record in the instant case shows that the claim of unpreparedness, upon which the request for further continuance was based, was made five months after the indictment had been returned against defendant; three months after the cause had been continued, with the People ready for trial, in order to permit defendant to arrange for counsel ; three months after defendant had been expressly notified he would be first tried in cause No. 54-1075,' three months after Hayzlett had filed his appearance in the cause, and three months after additional delay had been won through a motion for a change of venue. Little merit, therefore, can be found in the present claim that time to prepare a defense was arbitrarily denied to defendant. Additionally, there is no showing that defendant’s counsel was overmatched in the trial or that the defense was prejudiced or embarrassed by proceeding to- trial when it did. Under all the circumstances, which create some doubts as to the sincerity of the defendant’s motives, we are unable to say the trial court abused its discretion in refusing to permit defendant to delay further. Cf. People v. Martin, 376 Ill. 569.

By another assignment of error defendant urges that he was poorly defended and that the trial court erred in not intervening in his behalf, while permitting the prosecution to take advantage of his counsel’s incompetence. A similar contention was made and rejected in People v. Stephens, 6 Ill.2d 257. We held there that although the trial court has the duty of assuring a defendant a fair trial, it has no- duty to intervene where a defendant is represented by counsel of his own choice, merely because the court feels counsel is not experienced or skillful. This principle, we believe, is singularly applicable where, as here, the defendant exercising his choice of counsel was himself a practicing attorney. Further, as is also set forth in the Stephens case, a conviction will not be reversed for poor representation unless it can be said from the record that the representation was of such low caliber as to- amount to no representation at all, or that it was such as to- reduce the trial to a farce. We find nothing in the record of defendant’s conviction which approximates either condition. Neither do we find any indication that defendant was dissatisfied with his counsel’s conduct of the defense until after the final result had been reached. There is, therefore, no merit to the contention that the court’s failure to intervene denied defendant a fair trial.

The next contention of defendant is that the closing remarks of the assistant State’s Attorney were so- prejudicial and inflammatory as to warrant a reversal of his conviction. Although defendant’s brief and argument contains what purports to be an excerpt of the prosecutor’s summation to the jury, the abstract, by which this court must be guided in its consideration of the errors assigned, does not include either the argument complained of or a showing that any objection was made and a ruling of the court obtained thereon. While we remark in passing that the language of the excerpt does not appear to exceed the bounds of legitimate argument, it is sufficient answer to this claim of defendant to point out that the failure of the party raising such issue to include the argument in the abstract of record, together with a showing of objections and rulings thereon, precludes this court from considering the issue on review. People v. Ritcheson, 396 Ill. 146; People v. McDonald, 365 Ill. 233; People v. Smith, 404 Ill. 125.

Defendant also assigns as error that he was prejudiced by the prosecutor’s excessive use of leading questions while conducting the direct examination of the People’s witnesses. To support this contention defendant has culled questions at random from various parts of the report of proceeding without regard to the continuity or purpose of the examination. As presented, therefore, we have no means of determining, other than by a search of the record, whether the questions complained of were proper or improper. In addition, it appears both that no objection was made to the admissibility of such evidence and that the alleged error was not raised upon the written motion for a new trial. It is fundamental that evidence introduced in the trial court, to which no objection is made, cannot be complained of for the first time on review, (People v. Laster, 413 Ill. 224,) and that alleged errors not raised upon the written motion for a new trial are waived. People v. Cione, 293 Ill. 321; People v. Vickers, 326 Ill. 290.

The remaining assignments of error require some consideration of the facts and circumstances from which this charge against defendant arose. The record discloses that defendant, an attorney, had represented the complaining witness, Mabel Josephson, in several matters extending over a period of three years. Early in June, 1952, when she was seven months behind with payments due the Western Federal Savings & Loan Association, she engaged defendant to- negotiate a refinancing of the mortgage. Though the purpose is not shown it appears that defendant, on June 17, 1952, caused a land trust on the property to be created, and advanced the trustee’s fee of $40 from his own funds. When negotiations with Western Federal reached a stalemate, defendant, on September 12, 1952, made arrangements with Avondale Savings & Loan Association to- accept Mrs. Josephson’s application for a new mortgage in the amount of $10,000, with smaller monthly payments. Avon-dale, it appears, customarily charged a “commission” for making loans computed at the rate of 2 per cent of the amount of the mortgage; thus the commission in the present case was $200.

On September 13, defendant took Mrs. Josephson to Avondale where she executed some documents pertaining to the new loan. There, pursuant to his instructions, she purchased a cashier’s check for $235 in her name. Defendant then took her to the Cosmopolitan National Bank where arrangements were made for the creation of a new land trust which would be acceptable to Avondale. There, according to the version of the complaining witness, defendant held a private conversation with a bank employee for some minutes, then returned and asked her to endorse the check over to him and to give him an extra $5. After she had complied, defendant again conversed with the bank employee, then returned to the complainant telling her that everything had been taken care of, that her worries were over, and that she would start making payments on the new mortgage October 1. Defendant, for his part, related that he had been given the check and the $5 in payment of his fees and the $40 he had advanced, and that it was just coincidental that payment had been made at the bank, and that the check totalled the amounts due Avondale and Cosmopolitan for commission and trustee’s fee. In any event, defendant deposited the check in his own bank account and applied the proceeds to his personal use. On September 15, two days after the parties had visited the Cosmopolitan National Bank, a new land trust was created for which the bank’s initial charges were $35.

Soon after September 13, a letter of opinion ordered by Avondale from the Chicago Title & Trust Company, showed an unreleased mechanic’s lien judgment and the existing first mortgage. Although Avondale mailed a copy of the opinion to defendant, he did nothing, and efforts by all concerned to locate him proved futile. About two months later Western Federal filed suit to foreclose their mortgage. When that occurred the complaining witness sought the help of Robert Diehl, a real estate broker, to enable her to save the property. Diehl finally reached defendant by telephone and inquired about the $240. Thereafter defendant appeared at the Josephson home and delivered a statement of the mortgage transaction in which he showed the sum of $240 as an item “on deposit.” On January 23, 1953, Diehl arranged for defendant to be present for the settlement of the mechanic’s lien on the Josephson property and when defendant was asked for the money Mrs. Josephson had given him to close the deal, he stated it was in a safe-deposit box and refused to go after it. The same day defendant accompanied Diehl to a meeting of the principal parties, at which an escrow agreement was signed, a stipulation entered into to dismiss the 'foreclosure suit, the old liens discharged, and a new mortgage executed. At that time defendant, who then had only $1.52 in his bank account, failed to produce the $240, and at no time thereafter did he return it or account for it. The indictment charges that on January 23, 1953, defendant fraudulently embezzled and converted to his own use the sum of $235.

Based upon the foregoing facts as testified to by witnesses for the prosecution, it is the theory of the People that defendant wrongfully converted the proceeds of the $235 cashier’s check to his own use, after he had received the check for the specific purpose of applying the proceeds to the expenses of refinancing the mortgage, namely, for the payment of Avondale’s $200 commission, and Cosmopolitan’s $35 trust fee. Defendant, on the other hand, insists that both the $235 check and the $5 cash he re-. ceived from Mabel Josephson were to compensate him in the amount of $200 for his services in negotiating the new loan, and to reimburse him in the amount of $40 for the money he had advanced at the time the original land trust was created. Consistent with his theory, defendant makes a contention that the evidence does not sustain the verdict and that there was and is a reasonable doubt of his guilt, urging largely that Mabel Josephson’s testimony relating to the purpose for which the $235 check was given him “was formulated to suit the convenience of the prosecution,” and that it was a sheer coincidence that he was paid $240 in fees at a time when $235 in fees were owed to Avondale and Cosmopolitan.

In a criminal proceeding, the resolution of conflicting evidence and the determination of the credibility of witnesses is a matter exclusively within the province of the jury, whose finding will be given great weight. (People v. Moretti, 6 Ill.2d 494; People v. McClain, 410 Ill. 280.) A court of review will substitute its judgment for that of the jury only when it can be said from a careful consideration of all the evidence that there is clearly a reasonable and well-founded doubt of the guilt of the accused. (People v. Smith, 404 Ill. 125; People v. Leach, 398 Ill. 515.) Here the evidence as to the purpose for which the $235 was received is in direct conflict. It was for the jury to determine who was telling the truth and to decide whether it was mere coincidence that defendant’s alleged fees were paid at the time and place they were. The jury could properly consider too that the People’s version of the evidence received some support from the defendant’s own written statement, delivered to the complaining witness, in which he included an item of $240 as being “on deposit,” and from his later statement to Diehl that he had the money advanced to him in a1 safe-deposit box. Considered in its entirety, we cannot say that the evidence is so1 unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt and are of the opinion the jury was justified in reaching the result it did.

The record shows that on an occasion early in the trial, while outside the presence of the jury, the court, over the objection of defendant’s counsel, ruled that evidence of previous transactions between defendant and the complaining witness would be admissible in the cause. Thereafter, during direct and redirect examination of several of its witnesses, the People introduced evidence tending to show the following: (1) that in 1952 the complaining witness had given defendant $50 with which to satisfy a mechanic’s lien, previously referred to herein, but that he had failed either to satisfy the said lien or to account for the money; (2) that in a still pending estate, wherein complaining witness was the administratrix and defendant her attorney, the latter had failed to account for approximately $420; (3) that in May, 1952, defendant had received $20 with which to accomplish the transfer of title to certain lots contained in the estate, which money was never applied for such purpose or accounted for; and (4) that in June, 1950, complaining witness had given defendant $350 with which to pay the taxes on said lots, but that he failed to do so or to account for the money. By his remaining assignments of error, defendant contends in various ways that the admission of testimony and exhibits pertaining to the previous transactions between himself and Mabel Josephson was erroneous in that such evidence was not relative to the offense charged in the indictment.

Where a specific intent is an essential element of a crime and the prosecution must prove this specific intent in order to secure a legal conviction, evidence of similar acts committed by the accused, happening at or about the same time, is relevant and competent to show such intent. (People v. Popescue, 345 Ill. 142; People v. Folignos, 322 Ill. 304.) That such evidence proves or tends to- prove an offense other than the one with which the accused is charged is never a valid objection to its admissibility. (People v. Spaulding, 309 Ill. 292.) Intent is a specific element of the crime of embezzlement. Consequently, proof of similar offenses is competent to show the intention of the defendant in the particular act of embezzlement charged in the indictment. (People v. O’Malley, 404 Ill. 165; People v. O’Connell, 386 Ill. 606; People v. Duzan, 272 Ill. 478.) Defendant argues that the similar acts proved here were too remote from a standpoint of time to be admissible or competent. All of said acts, however, occurred within a two-year period of time prior to the act of embezzlement for which defendant was- tried. When it is further considered that all of said acts occurred during one continuous period of an attorney-client relationship that existed between the defendant and the complaining witness until just prior to his indictment in this cause, we are of the opinion that such acts were not so- remote to the proceeding as to be inadmissible. Cf. People v. Duzan, 272 Ill. 478.

The judgment of the criminal court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 33850.
    The People of the State of Illinois, Defendant in Error, vs. Charles Sleezer, Plaintiff in Error.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Taylor E. Wilhelm, of Mendota, for plaintiff in error.
    Latham CastlE, Attorney General, of Springfield, and Harland D. Warren, State’s Attorney, of Ottawa, (Fred G. Leach, Edwin A. Strugala, John A. McNamara, and Frederick W. Irion, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court:

This case comes here from the circuit court of La Salle County, wherein defendant was found guilty of grand larceny and was sentenced to confinement in the Illinois State Penitentiary for a minimum term of seven years and a maximum of nine.

The record in this case contains more than 1400 pages and the errors assigned are many. Only briefly, however, after a careful reading of the transcript and a study of the briefs, will we indicate our conclusions. State highway patrol officers Bunton and Gauvereau were cruising on Route 71, three miles northeast of Ottawa, Illinois, at three o’clock on Sunday morning, January 16, 1955. They observed defendant Charles Sleezer and one Bohlander passing them going in the opposite direction. There was noi tail light on the wagon pulled by defendant’s truck so the officers turned around and pursued them several miles and caught them after they had turned upon a side road. There was loaded on the truck a farm wagon-box and hitched to1 the truck was a wagon gear with another wagon-box. Because of their failure to display a tail light and have safety chains, Bunton prepared a traffic ticket. The defendant then attempted to bribe the officers, offering $100 to “fix this up.” The defendant admitted to Hess, the jailer, that he had been, caught with the wagons he had picked up at an implement store, and that he was out trying “to make a fast buck.” In the jail conference room in the presence of Bunton and Gauvereau and deputy sheriffs Eutsey and Dummett, he admitted he had stolen the wagons from Engelhaupt & Lyons at Lostant, Illinois.

Bohlander was one of Sleezer’s hired men. In the evening of January 15, 1955, at about midnight, the defendant asked Bohlander to go with him for a ride. Shortly before the first trial of this case, which resulted in a disagreement, defendant with his counsel went to- talk with Engelhaupt, the managing partner of Engelhaupt & Lyons, and there the defendant admitted he had taken the wagons and sought to pay damages for them.

On May 30, 1955, Louis Neuendorf, an attorney, overheard the defendant discussing his trial, which was to be had shortly, when he stated that : “The State police caught me cold stealing a wagon” and “However, at the trial which is coming up in a week or so I am going to get on the stand and tell them that I was going over to pick up some wagons for Bill Bohlander.” Eighteen years previously the defendant had been convicted of a felony in Kendall County, Illinois. A record of this conviction was introduced for the limited purpose of affecting defendant’s credibility and an instruction was given to the jury specifically prescribing such limitation. Complaint is made here that the record of conviction was too- copious, that it included many prejudicial features in connection with the application for probation. We do not believe that the challenged proof was violative of the principles contained in the several cases cited in defendant’s brief. In submitting the complete record from Kendall County, the People were attempting to- satisfy the requirements as laid down in Kirby v. People, 123 Ill. 436.

The defendant testified in his own behalf, denying guilt and undertaking to explain all circumstances implying guilt. He stated that Bohlander invited his assistance and the use of the truck to pick up the wagon involved which Bohlander told him he had purchased; that when the State police approached he was told for the first time that the wagons had not been paid for, SO' he immediately started back to Lostant to return the property, when he was arrested; that the money he tendered the officers was not in the nature of a bribe but to pay a fine for traffic violations. He further explained the money he tendered the owner of the wagons was accompanied with a statement that he had not meant to steal the wagons but that he realized “since Mr. Engelhaupt had not sold the wagons, anyone in possession was liable for damages sustained for the taking and I offered to pay such sum as a fair measure of damages and requested that he present such claim for damages through the State’s Attorney’s office.”

There was evidence offered on both sides as to the general reputation of Sleezer and Bohlander for truth and veracity. There were those that entertained the view that Sleezer and Bohlander bore bad reputations and there were just as many that thought they were good.

Defendant filed petitions for change of venue because of the prejudice of the judge and for a change of venue from La Salle County. The defendant had already been granted a change of venue from Judges Robert E. Larkin and Louis A. Tearing. The statute prescribes “No more than one change of venue shall be granted to the defendant.” The application for a change of venue from the county was addressed to the sound discretion of the trial judge. (People v. Katz, 356 Ill. 440; People v. Cobb, 343 Ill. 78.) Judge Robert E. Larkin on June 6, 1955, prior to" the defendant’s first trial, had ruled Taylor E. Wilhelm, counsel for defendant, guilty of contempt. It appears that much publicity was accorded this event. The trial judge in the instant case excused all jurors from Judge Larkin’s home town since the judge there was held in high esteem. The remaining jurors were closely questioned concerning their knowledge of the contempt proceedings. Since the defendant did not avail himself of all his peremptory challenges, it is fair to assume the jury selected was not affected by the adverse contempt publicity. The denial of defendant’s motion for a change of venue from the county was not predicated upon whim, bad motive or an unjust exercise of discretion. People v. Allen, 413 Ill. 69.

Another assignment of error pressed with much vigor here is that the instructions read to the jury and the closing arguments of the State’s Attorney incorrectly construed defendant’s admission of guilt as a confession. Sleezer, Ray Eutsey, William Dummett, Glennard Bunton and Leo Gauvereau were congregated in the conference room of the LaSalle County jail at about 4:30 A.M., January 16, 1955, when the defendant was questioned, and he then said he had stolen the wagons at Engelhaupt & Lyons on Route 51 at Lostant. This was an admission of the ultimate fact that he was guilty. In People v. Allen, 413 Ill. 77, the court said: “A confession has been defined as a ‘direct acknowledgment of guilt on the part of the accused, either by a statement of details of the crime or an admission of the ultimate fact.’ ” People v. Nitti, 312 Ill. 73-92.

Defendant in his brief and argument complains of several instructions refused and given. We considered this assignment of error and find that it is without merit and does not warrant an extensive discussion.

The record in this case clearly indicates defendant’s guilt. And he received a fair trial as free of error as was humanly possible under the circumstances. Defendant’s counsel made it most difficult for the trial judge to conduct the proceedings in an orderly manner. On one occasion the trial court called opposing counsel to the bench for a hushed conference, but said counsel talked so loudly, his utterances could be heard by the witnesses and the jury. And again while the jury was in recess the court protested that counsel could be heard back in the quarters where the jury was located. The court would ask counsel to be seated and discontinue ranting and raving only to have him refuse to obey.

Almost every adverse ruling was followed with “I move to withdraw a juror” from defendant’s counsel. It would require unwarranted space to describe the wrangling and angry disputation that punctuated the trial throughout. This belligerent aggressiveness evidently provoked the trial judge into error in some of his rulings. For instance, the State’s Attorney, in his argument to the jury said, “Charles Sleezer is a confirmed thief. He was a thief 18 years ago.” The court overruled an objection to’ this highly prejudicial statement. This was error. (People v. Decker, 310 Ill. 234.) There were other errors, but of much less consequence. Defense counsel was guilty of improprieties in his closing argument. He went beyond the record in his statement that Bohlander’s testimony was the product of “deals and collusion” between him and the prosecution.

Notwithstanding the confusion of this proceeding, the jury emerged with the correct verdict.

The evidence here so clearly indicates defendant’s guilt that we cannot say the result would have been different without trial irregularities. When the error complained of could not reasonably have affected the result, the judgment should be affirmed. (People v. Cardinelli, 297 Ill. 116; People v. Haensel, 293 Ill. 33.) The question is not whether the record is perfect but whether the defendant has had a fair trial and if his conviction is based on evidence establishing his guilt beyond a reasonable doubt.

Judgment affirmed.


text:
    (No. 33880.
    Ray E. Thompson, as Trustee in Bankruptcy of Peter J. Black, Appellant, vs. Lester Wiegand et al., Appellees.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

    Paul B. Nichols, of Quincy, for appellant.
    Henry W. Pollock, and John T. Ennis, both of Quincy, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court:

This is a direct appeal from the circuit court of Adams County wherein a decree was entered denying partition of certain real estate. A freehold is necessarily involved which gives us jurisdiction.

Plaintiff is the trustee in bankruptcy of Peter J. Black, who* will be hereinafter referred to as the bankrupt.

The complaint, as amended, prays for partition of a 188-acre acre tract of land described as follows: “All of the Southeast Quarter of Section Twenty-seven (27) and all of the South One-half (}4) of the Northeast Quarter of Section Twenty-seven (27), except the North Fifty-two (52) acres thereof, all in Township Two (2) South of the Base Line and Range Nine (9) West of the Fourth Principal Meridian, situated in the County of Adams and the State of Illinois,” held in fee simple by the bankrupt and one Lester Wiegand, herein called defendant, as tenants in common. Other parties were joined as defendants, but their interests are not involved in this appeal.

Defendant’s answer, as amended, alleges that the bankrupt had contracted to convey to the defendant his undivided one-half interest in the property described in the complaint upon the payment by the defendant to the bankrupt of the sum of $100 per acre; that the contract was entered into on November 24, 1948; that the contract was reduced to writing, signed by the bankrupt and delivered to and accepted by the defendant; that the defendant had paid $7235.46 on the contract; that $2164.54 remains unpaid thereon; and that the single copy of the written instrument evidencing the agreement had been lost and all efforts to find the same were unavailing. In his answer, defendant prayed that the plaintiff be required to deliver to him a deed for the said property in accordance with the terms of the contract upon the payment of the sum of $2164.54. He did not include a counterclaim in his answer. In his reply, plaintiff denied the execution and delivery of the contract and any payment thereon.

The cause was referred to a special master in chancery, who found that the terms of the alleged contract were indefinite, vague and uncertain; that the establishment of the contract was dependent upon verbal testimony; that the defendant did not take actual possession of the premises and did not make any improvements thereon; and that the supposed contract is not clear and certain in all terms so as to comply with the Statute of Frauds. The master further found that the total credit for crops for 1949 to 1953, inclusive, delivered to the bankrupt’s elevator, claimed by the defendant, is actually less than the cost of his original undivided one-half interest in the 275 acres which the bankrupt and he had purchased and of which the property herein involved is a part. Based upon these findings, the master concluded that the plaintiff had established his right to partition of the real estate described in the complaint and recommended that a decree of partition be entered. The master overruled defendant’s objections to his findings, which, in substance, were that they were contrary to the law and evidence.

The chancellor ordered the objections to the master’s report to stand as exceptions and entered a decree in which he sustained the exceptions of the defendant, found the master’s findings in error, reversed the same and remanded the cause to the master fr> determine the amount of the grain and proceeds paid under said contract since November 24, 1948, to the bankrupt and to determine the amount of taxes paid by the defendant and further, to find the amount still due under said contract, and to' find the amount due the defendant because of payment of drainage and general taxes by the defendant. The costs of the suit were assessed against the plaintiff. The decree found that the defendant is the equitable owner of the real estate described in the complaint and that he is entitled to a deed from the plaintiff upon the completion of the terms of said contract.

Five days after the decree was entered, plaintiff sought to amend his reply to set up the defense of the Statute of Frauds to cause the pleadings to conform to the proof adduced. The chancellor denied this motion stating that those points had already been raised and argued before he had made his final announcement in regard to the merits of the controversy and the decree was signed sustaining the exceptions to the master’s report.

To satisfy the Statute of Frauds, the writing itself must contain on its face or by reference to other writings, the names of the vendor and of the vendee, a description of the property sufficiently definite to identify the same as the subject matter of the contract, the price, the terms and conditions of sale, and the signature of the party to' be charged. Stein v. McKinney, 313 Ill. 84, 144 N.E. 795; Elwell v. Hicks, 238 Ill. 170, 87 N.E. 316.

The undisputed testimony indicates that the defendant is a farmer, landowner and custom machine operator who did work for the bankrupt, and that the bankrupt was a grain elevator operator. The defendant and the bankrupt had purchased 275 acres in two tracts of 87 and 188 acres, respectively, for the sum of $15,000 on which they had paid $5000 and given a purchase money mortgage for the balance and acquired title as tenants in common by a deed dated August 16, 1948, and recorded September 24, 1948. The defendant delivered grain from his Illinois and Missouri farming operations to the elevator operated by the bankrupt, and the bankrupt charged the defendant’s account at his elevator for $2500, being his part of the down payment on the 275 acres at the time that the purchase thereof was made. The bankrupt made the mortgage payments, paid the taxes, instructed the tenant and handled all of the business affairs relating to the property in question. The defendant did not draw any of the proceeds from the sale of any of the grain from the land in question from the year 1949 until the year 1953, during which time no written reports were rendered to him by the bankrupt, and the trustee found no record of these transactions among the books of the bankrupt, but the defendant obtained estimates of the amount of grain that was raised on the place from the tenant after this partition suit was filed. The record also shows that by a deed dated July 31, 1950, the defendant and the bankrupt conveyed the 87-acre tract to George E. Carey and Louise M. Carey, to whom they sold the same for $100 per acre, and that the bankrupt applied the $8700 proceeds from said sale and other funds on the purchase money mortgage and obtained a release thereof. A petition in bankruptcy was filed against the bankrupt on August 17, 1953, and for a while thereafter he could not be found, and on September 4, 1953, plaintiff was elected trustee in bankruptcy. Sometime thereafter, before the bankrupt was found by the plaintiff, the plaintiff talked with the defendant at the West Quincy elevator and the defendant said in substance to the plaintiff, “that he was buying that land with his grain as he raised it and that Mr. Black was taking his crop to pay off this land — he did not have anything to go by.” About December, 1953, a short time before the filing of this partition suit, the defendant called upon the trustee to ask if there was any way that he could complete the buying of the land without partition.

Plaintiff objected to the testimony of the defendant and the bankrupt wherein they stated that about the time of the sale of the 87 acres to George E. Carey, they verbally agreed that the undivided one-half interest of the bankrupt was to be conveyed to the defendant by the bankrupt upon the payment by the defendant to- the bankrupt of the sum of $100 per acre; that the agreement was reduced to- writing by the bankrupt at the Park Hotel, signed by him and delivered to the defendant, who accepted the same; that the defendant cannot find the writing; and that only one copy was made.

We shall not be delayed with a consideration of the dispute arising herein with reference to the pleadings. The plaintiff should have the benefit of the defense if the questioned contract is violative of the Statute of Frauds and the defendant should under the pleadings be accorded the relief sought, if the real-estate contract is established and is not vulnerable to the defenses asserted.

The evidence also showed that the bankrupt listed an undivided one-half interest in the 188 acres in his sworn schedule of assets filed in the bankruptcy proceedings and that the defendant failed to respond to a show-cause order directed to him and others to- answer and state what interest he claimed in the undivided one-half interest of the bankrupt in the 188 acres; that he never filed an answer or made any claim as to the bankrupt’s interests in the bankruptcy court. This seeming inconsistency in the position of the bankrupt and the defendant is reasonably explained. The bankrupt stated that he listed a half interest in the 188-acre tract as his land, because the title was still in his name. The defendant acknowledged that he had received a notice to file claims if he had any against the bankrupt estate, but that it never occurred to him that his contract to purchase real estate was such a claim that ought to be asserted under that notice. Both explanations are reasonable and plausible. The testimony of Black and Wiegand is uncontradicted. They both testified that the price agreed upon was $100 per acre, the identical price received by them from the Careys for an 87-acre tract of their joint holdings. According to- its terms, Black was to- receive the proceeds from the land and apply Wiegand’s share on the purchase price. They both testified that the sale took place at the Park Hotel where Black was residing, and that the terms of the sale were written upon a piece of hotel stationery signed by Black. The contract was clear and specific as to the date, the land involved, the purchase price and the manner of payment. In addition to the parties to the contract, Ezra Baker, the tenant, testified that all the grain inclusive of Wiegand’s share was delivered to Black. The record also shows that Wiegand discussed his claim with Thompson, the trustee in bankruptcy. A fair interpretation of their testimony demonstrates that the defendant at all times consistently claimed rights under his lost written contract.

Assuming that the plaintiff properly raised the defense of the Statute of Frauds, we are of the opinion the lost written memorandum, so conclusively established by uncontradicted evidence, met all of its requirements. In Ullsperger v. Meyer, 217 Ill. 262, specific performance was sought to1 enforce this contract: “Chicago, Illinois, January 8, 1904. Received of Anton Ullsperger $100 on said purchase of the property No. 1031 Milwaukee ave., at the price of $14,000. [Signed] C. Meyer.” Therein it was held that a written memorandum of a contract for the sale of land, signed by the party to be charged and containing the names of the vendor and vendee, a description of the property sufficient to identify it and the terms and conditions of the sale, is sufficient on its face to satisfy the requirements of the Statute of Frauds, and further, the court held that a verbal acceptance by a proposed vendee renders a memorandum for the sale of the land, which was signed only by the vendor, mutual and binding upon both parties, and further, when no time for completion of the contract is provided, the law will imply a reasonable time under all the circumstances.

We are therefore of the opinion that the decree entered herein by the court below should be affirmed.

Decree affirmed.


author: Mr. Chiee Justice HershEy

text:
    (No. 33874.
    The People ex rel. Ralph J. Bentson et al., Appellants, vs. Harry Bowen et al., Appellees.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Charles A. Darling, of Aurora, for appellants.
    REm, Ochsenschlager & Murphy, and Harold L. Beamish, both of Aurora, (L. M. Ochsenschlager, and Robert B. Hupp, of counsel,) for appellees.
   Mr. Chiee Justice HershEy

delivered the opinion of the court:

The plaintiffs filed petitions in the circuit court of Kane County for leave to file complaints in quo warranto against the defendants, civil service commissioners of the city of Aurora, requiring them to show by what authority they held their offices. The defendants answered by alleging that they were lawfully appointed by the city council pursuant to a 1919 amendment to section 18 of the Civil Service of Cities Act (Ill. Rev. Stat. 1955, chap. 24^, par 57.) The plaintiffs countered by asserting that this amendment was void in that it violated section 13 of article IV of the Illinois constitution.

The causes were consolidated, and after a hearing the trial court found the statute to> be constitutionally valid and denied plaintiffs leave to file a quo warranto complaint.

The plaintiffs’ position is that the amendment is void because its subject is not expressed in the title and it purported to amend a prior law by reference to its title only without inserting the section amended at length in the new act, in violation of section 13 of article IV of our constitution.

The defendants argue that the amendment is valid in all respects, but first urge a procedural point. They state that the granting or denying of an application for leave to file a complaint in quo warranto• rests in the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of a clear abuse of that discretion. Since the order recites that evidence was heard and the plaintiffs failed to furnish a transcript of those proceedings, they urge that this court must assume there are sufficient facts of record to support the trial court’s denial of leave to file the complaint.

While it is true the order recites that evidence was heard and m> transcript of that evidence is furnished by the plaintiffs, it is clear the court denied permission to file the complaint solely because it believed the statute constitutional. For the order makes specific findings, and apart from a minor construction question which is not at issue on appeal, all relate to the validity of the statute. Under the circumstances, therefore, it was not necessary to have this evidence in the appeal record, and the constitutional question is squarely presented for our decision.

Section 13 of article IV of the Illinois constitution provides, inter alia, as follows: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed; and no- law shall be revived, or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.”

The title of the amendatory act here involved, passed in 1915, is as follows: “An Act to amend section 18 of an Act entitled ‘An Act to regulate the civil service of cities,’ approved and in force March 20, 1895, as amended by an Act approved June 13, 1895, and in force July 1, 1895.” The body of the amendment repeats, with only minor changes, section 18 then in force, (Hurd’s Stat. 1913, chap. 24, par. 463), but it also adds the following proviso-: “Provided, that in cities having the commission form of government the appointment of Civil Service Commissioners shall be made by the City Council.” In their pleadings and brief the plaintiffs mistakenly assume this proviso was added by a 1919 amendment, but we consider their objections as if properly raised against the 1915 act.

The plaintiffs contend initially that the subject is not expressed in the title. They argue that the amendatory portion of the bill, which deals with the appointment of commissioners, is not germane to the section of the act purportedly amended, which relates to salaries and expenses of commissioners. They do not cite a case directly in point, but refer to the following language from an early decision of this court: “The amendment of an act in general, or of a particular section of an act, ex vi termini, implies merely a change of its provisions upon the same subject to which the act or section relates.” Dolese v. Pierce, 124 Ill. 140, 146.

However, this court in subsequent cases has held that the amendatory portion need only be germane to the general statute. For example, in Department of Public Works and Bldgs, v. Chicago Title and Trust Company, 408 Ill. 41, the title of the amendment read: “An Act to amend section 2 of ‘An Act in relation to the acquisition, control, maintenance, improvement and protection of State Parks,’ approved June 26, 1925, as amended.” The court considered the foregoing title to be as broad as the general statute itself, stating: “Where the title of an original act is repeated in the title of the amendatory act, the amendaory act is as broad and comprehensive as the act amended, and any provision which might have been inserted in the original act may be inserted in the amendatory act without violating the constitutional provision that the subject of the act be expressed in the title.” See also: People v. Lewis, 5Ill. 2d 117; City of Evanston v. Wazau, 364 Ill. 198; Malloy v. City of Chicago, 369 Ill. 97.

The rule affirmed in the foregoing cases is dispositive, for the subject matter of the amendment (the appointment of civil service commissioners in cities with the commission form of government) is germane to the general statute dealing with the civil service of cities.

Likewise, the plaintiffs’ additional claim of invalidity, that there was an unlawful amendment by reference, cannot be sustained.

It is settled that an amendment does not violate section 13 of article IV where it is complete in itself and it is unnecessary to refer to the original act in order to determine its effect. “The purpose of the constitutional provision is to avoid confusion arising from patchwork legislation but does not require practically endless reiteration of amended statutes, nor that when a new act is passed all prior acts in any way modified by it shall be published at length in the amendatory act. [Citation.] Where a new law is complete in itself and entirely intelligible without reference to prior legislation it is valid though incidentally its effect is to modify existing law.” (People ex rel. McDonough v. Beemsterboer, 356 Ill. 432, 435. See also: People ex rel. Lindheimer v. Gaylord Building Corp. 369 Ill. 371, 377; Co-ordinated Transport Inc. v. Barrett, 412 Ill. 321, 330.) Here, the amendatory portion of the act is complete in itself and entirely intelligible, in that one need refer to no' other statute to ascertain that in cities with the commission form of government it is the council that appoints the civil service commissioners.

For the reasons stated, we believe the trial court correctly found the amendment to be constitutional, and, accordingly, the plaintiffs have not shown it was an abuse of discretion to refuse them leave to file a complaint in quo warranto.

Judgment affirmed.


author: Mr. Justice Klingbiel

text:
    (No. 33873.
    The People ex rel., Raymond J. Hahn et al., Appellees, vs. Stephan E. Hurley et al., Appellants.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      John C. Melaniphy, Corporation Counsel, of Chicago, (L. Louis Karton, Sydney R. DrEbin, and Harry H. Pollack, of counsel,) for appellants.
    Michael F. Ryan, of Chicago, (Richard F. McPartLIN, Jr., of counsel,) for appellees.
    Goldberg, Devoe, BrussEll & Shadur, of Chicago, (Carl Devoe, and Abner J. Mikva, of counsel,) for Citizens Civil Service Association of Illinois, amicus curiae.

   Mr. Justice Klingbiel

delivered the opinion of the court :

Three individuals seeking employment as sign hangers by the city of Chicago brought mandamus proceedings in the superior court of Cook County to compel the Civil Service Commission of the city to nullify and set aside an examination held for such position on April 11, 1953. The trial court denied relief, but on appeal to the Appellate Court its judgment was reversed and the cause remanded with directions to award the writ. (People ex rel. Hahn v. Hurley, 7 Ill. App.2d 107.) We have granted leave for further appeal to this court.

Relators had been employed as sign hangers by the city under temporary appointments. They took the examination with 219 other applicants, and 121, including relators, passed. Relators’ marks or grades were not high enough, however, to qualify them for the list of persons eligible for certification. They were discharged from their temporary positions, and thereafter brought this action. It is contended (1) that the Cities Civil Service Act was violated because the competitive examination did not include physical and health tests, and (2) that the examination was not practical and did not fairly test the relative capacities of the applicants in accordance with requirements of the act. The Appellate Court sustained the first contention, holding that tests of physical qualifications and health must be included in the examination. The court found it unnecessary, therefore, to decide the question whether the examination lacked practicality.

The relevant provisions of the Cities Civil Service Act are found in section 6, which states in part that the examination “shall be public, competitive, and open to all citizens of the United States, with specified limitations as to residence, age, health, habits and moral character. * * * Such examinations shall be practical in their character, and shall relate to those matters which will fairly test the relative capacity of the persons examined to- discharge the duties of the positions to which they seek to be appointed, and shall include tests of physical qualifications and health, and when appropriate of manual skill.” (Ill. Rev. Stat. 1951, chap. 24^2, par. 44.) No physical or health test was given as part of the competitive examination, which determines the persons to be placed on the eligible register. Relators insist that under the statutory language it is mandatory for the commission to- give such tests at the time of the initial examination. Defendants contend it is a sufficient compliance with the law if a physical examination is given prior to certification and appointment from the eligible register.

The language of the provision quoted would appear, on first inspection, to require a competitive physical examination for any position in the classified service. It is evident, however, that when read in the light of other provisions, and of the common purpose of physical tests for positions such as the present one, the provision cannot reasonably be construed as urged by relators. By the express language of the present provision health is also included, together with residence, age and moral character, as one of the factors as to which “limitations” may be specified. Obviously such matters could not be subjects of competitive examination. Further provisions of section 6 specify certain conditions under which “such physical examination shall be waived and the applicant shall be considered to have passed such examination.” The facts that examination may be “waived” and the applicant considered to have “passed” indicate that the legislature contemplated only minimum standards of a noncompetitive character.

The section also provides that “In the event that any applicant for an office or place in the civil service (who has been found eligible for appointment and whose name has been placed upon the register provided for in this Act) has not been appointed to such office or place within sixty days from the date of his examination as to physical qualifications and health, the Commission shall cause a second examination to be made of said applicant prior to his appointment and within sixty days of such appointment, which second examination shall be practical in character and shall relate to the cardiac, pulmonary, arterial, renal and sane condition of said applicant. If, upon such second examination, the physical, or mental condition of said applicant shall be found to be less than the minimum standard fixed by the rules of such Commission, said applicant shall not be appointed. The name of said applicant shall be retained upon the register of candidates eligible for appointment and when again reached for certification and appointment the said applicant shall be again examined as herein provided, and if the physical or mental condition of the said applicant shall again be found to be less than the minimum standard fixed by the rules of such Commission, said applicant shall not be appointed and the name of said applicant shall be removed from the said register.” The provision referring to the “minimum standard” fixed by the commission, and the provision for second and third physical examinations, show that such tests are not intended to test the comparative ratings of applicants, but rather to determine whether they can “pass” minimum physical qualifications. Reference to “the date of his examination as to physical qualifications and health” indicates that the competitive examination and the physical examination need not necessarily be conducted at the same time.

When we consider the purpose of physical examinations relators’ position becomes even less tenable. No showing has been made that the duties of a sign hanger require special physical attributes beyond ordinary good health, or that the ability to perform such duties exists in proportion to the degree of physical prowess. Unlike qualities such as experience or manual skill, the factor of health or physique cannot be said to bear a direct relation to the relative capacities of the applicants. It would be unreasonable to ascribe to the legislature an intention to require applicants to compete with each other as to strength and health, where the particular work involves no special physical qualities. In so far as the present position is concerned, the physical examination has no tendency to “fairly test the relative capacity of the persons examined to discharge the duties of the positions to which they seek to be appointed;” nor can we infer a legislative intent, in the absence of specific requirement, that such examination must be given before the eligible list can be posted. As the Appellate Court recently observed in People ex rel. Carter v. Hurley, 4 Ill. App.2d 24, “The giving of physical examination before applicants earn a place on the eligible register through written examination would accomplish no purpose essential to the proper functioning of the Cities Civil Service Act, but would add an undue burden and expense on the Commission.” We conclude it was within the discretion of the commission to postpone physical examination until after the competitive examination determined those persons eligible for future certication. Such action cannot afford to relators a right to the writ of mandamus.

The parties have argued in this court the further contention that the subject matter of the competitive examination was not practical in character and did not fairly test the relative capacities of the applicants to discharge the duties of the position. The Appellate Court expressly declined to consider or pass upon this point, in view of its conclusion on the question of physical examinations. It is well settled that argument of counsel - on questions other than the one decided by the Appellate Court is not properly directed to this court until they have been decided by that court. Where a judgment of reversal by the Appellate Court is based upon an erroneous view of the law with respect to one branch of the case, and it appears from ■the opinion that for such reason it has refused to consider and pass upon other assignments of error which it should consider, the cause will be remanded to that court upon reversal of its judgment, with directions to consider and pass upon such questions. Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. 411 Ill. 325; Miller v. Kresge Co. 306 Ill. 104.

The judgment of the Appellate Court is reversed and the cause remanded to that court, with directions to consider the undecided contention concerning the practicality of the examination and its suitability for testing the relative capacity of the persons examined to discharge the duties of the position; and thereupon either to- affirm the judgment of the superior court or to reverse it and remand the cause with directions to award the writ.

Reversed and remanded, with directions.