text:
    (No. 33993.
    Orville P. Fox, Appellee, vs. Mary V. Fox, Appellant.

      Opinion filed November 26, 1956.

      Sedrak & Parrardy, and Caprow & Kerrey, both of Chicago, (C. A. Caprow, of counsel,) for appellant.
    O’Brien, BurnERR & Puckett, of Aurora, (Wirriam C. O’Brien, Wirson D. Burnerr, Donard L. Puckett, Joseph H. Barnett, and Henry D. Casey, of counsel,) for appellee.
   Mr. Justice Davis

delivered the opinion of the court:

Orville P. Fox, plaintiff, brought suit for divorce against his wife, Mary V. Fox, defendant, on the grounds of cruelty and habitual drunkenness. The wife, by her amended counterclaim for divorce, charged her husband with cruelty, sought alimony, the appointment of a receiver for certain valuable real estate in Aurora and the business operated on said premises, an accounting of plaintiff’s income, and an adjudication that she be declared the owner of a portion of such property. After hearing by the trial court, without a jury, a final decree was entered which granted the plaintiff a divorce and dismissed the defendant’s counterclaim, whereby all the relief which she sought was denied. The defendant’s counterclaim, asking that she be adjudged part owner of certain real estate, involved a freehold and a review of the lower court’s decree is properly before this court. Engler v. Engler, 313 Ill. 527.

The defendant asserts that the trial court erred in denying her motion for a jury trial; that said court had a duty to adequately protect her rights as a person who was mentally ill; that said court rendered its decree contrary to the manifest weight of the evidence both on the complaint and her amended counterclaim; and that said court erred in failing to grant her relief prayed in respect to property, support and alimony, medical bills and attorneys’ fees.

The trial of this cause consumed several days. The voluminous record and its many exhibits have received our consideration. The parties were married in 1923 when both were young and in straitened circumstances. Two sons were born of the marriage, one in 1924 and one in 1926. A daughter born in 1928 died in 1931, and in addition the defendant sustained two miscarriages. Throughout the years of their married life, the plaintiff was engaged in several business enterprises. The evidence is conflicting relative to the extent of the defendant’s assistance in these businesses; she claimed a substantial contribution to these ventures, while the plaintiff depreciates this assertion and describes her effort as being of negligible value. It appears that for several years the economic and financial status of the parties had not been substantially enhanced, except as due to the appreciation of property values. The turning point in the plaintiff’s finances appears to have occurred in 1943 when he claims he interested Carl Olson in the purchase of a packing plant and convinced him that it could be sold for a profit. The plaintiff testified that when the profit was realized, Olson paid him approximately $2500 for his services. Late in 1943, the plaintiff contracted for the purchase of Exposition Park in Aurora for $125,000, making a down payment of $2500 with the money he received from Olson. The defendant also claims credit for inducing this purchase and testified that she did considerable work in and about the operation and management of the park enterprises, all of which was denied by the plaintiff, his witnesses and some of the witnessess called by the defendant.

The cause was pending in the lower court for more than four years after defendant filed her appearance. Four different sets of attorneys represented the defendant prior to April 19, 1955, and none of them filed a jury demand in the case. On March 23, 1955, the court set the case for final hearing without a jury. The record reflects that during the four-year interval the defendant appeared in court on various preliminary matters. Not until April 19, 1955, did she file a jury demand. On plaintiff’s motion, on April 27, 1955, the court ordered this jury demand stricken. On May 2, 1955, the defendant filed a motion to vacate this order and to grant her a jury trial. This motion was denied. Early in 1953 the cause had been continued by agreement of defendant. Rule 15 of the circuit court of Kane County provides that all cases submitted to the court in any manner, for trial without a jury, shall remain submitted unless the court, for good reason shown, shall order otherwise. Section 7 of the Divorce Act of 1874 (Ill. Rev. Stat. 1953, chap. 40, par. 8,), provides that when the defendant appears and denies the charges in the plaintiff’s complaint for a divorce, either party shall have the right to have the cause tried by a jury. In 1935, section 6 of the Divorce Act (Ill. Rev. Stat. 1953, chap. 40, par. 7,) was amended to make process, practice and proceedings in divorce actions the same as in other civil cases, unless otherwise provided by the Divorce Act. At the same time section 64(1) of the Civil Practice Act provided: “ (1) A plaintiff desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing his appearance; otherwise such party shall be deemed to have waived a jury.” (Ill. Rev. Stat. 1953, chap, no, par. 188(1).) Section 1 of the Civil Practice Act (Ill. Rev. Stat. 1953, chap, no, par. 125.) provides that the act shall extend to all civil proceedings except as limited therein, and divorce proceedings are not removed from its application.

Thus, the defendant waived her right to a jury trial under the provisions of both the Divorce Act and the Civil Practice Act by her failure to demand a jury trial when she filed her appearance in the divorce action. Such waiver provision does not violate our constitutional guarantees of trial by jury. In Reinken v. Reinken, 355 Ill. 539, we held that a provision for the payment of jury fees as provided in section 33 of the Fees and Salaries Act was not in violation of the constitutional provision that all laws relating to courts shall be uniform. The decision was based on Hunt v. Rosenbaum Grain Corp. 355 Ill. 504, wherein the court held that a statutory provision requiring a demand for a jury trial and the advancing of the jury fee is not an unconstitutional restriction of the right of trial by jury.

Neither do we find the trial court guilty of an abuse of discretion in denying the jury demand which was filed herein more than four years after the defendant entered her appearance in the case at bar. In the case of Stephens v. Kasten, 383 Ill. 127, we held that the denial of defendant’s late jury demand was an abuse of discretion. The facts in that case are clearly distinguishable from those here. The Stephens case was an automobile negligence case involving conflicting factual determinations upon the question of defendant’s liability. Under the record of this case it is clear that only one conclusion could follow from the evidence adduced, and that is that defendant was guilty of habitual drunkenness as charged. Had a jury been empanelled and found otherwise, the trial court would have been compelled to set aside such verdict. No prejudice can therefore be justly claimed by defendant.

In respect to defendant’s assertion concerning her disability, we feel that no good purpose can be served by narrating in detail all of the medical findings. It is sufficient to say that at various intervals in the past several years, the defendant was confined in institutions and sanitariums. The defendant filed a motion for the withdrawal of the motion for the appointment of a guardian ad litem on her behalf. This motion was heard by the late Judge Harry C. Daniels, who found that the defendant was under no mental disability. From the defendant’s testimony in the record, we concur in the correctness of that conclusion. We also note that her present counsel had no question of her mental competency in that he entered into a written contract with her concerning attorneys’ fees. If there was any question as to her competency, we feel that the trial judge would have exercised every precaution for her protection.

The cases cited by defendant concerning the special equities, which were urged to exist in her favor, for a favorable decree in the Exposition Park property, are based upon different factual circumstances existing in the particular cases. In Insoda v. Insoda, 400 Ill. 596, it clearly appeared from the evidence that the husband had worked and turned over his pay checks to his wife; that the savings resulted from their joint efforts; that the wife managed all the financial transactions; that the business was purchased from these joint savings; and that the husband worked in the business and contributed to its profits, which, in turn, were invested in the real estate in controversy. In the case of Cross v. Cross, 2 Ill.2d 104, it appeared that there was a misunderstanding as to the facts pleaded in the wife’s supplemental counterclaim. When her attorney sought to introduce proof he expressly stated it was offered to establish her equitable interest in the property involved. The trial court believed the evidence was not sufficient to establish a resulting trust and denied the admission of the testimony. Neither in the original divorce hearing, where the question was reserved, nor in the supplemental counterclaim hearing, was the wife given an opportunity to be heard upon the issue of adjusting her alleged equities in the property as permitted by section 17 of the Divorce Act. We there held that the wife was entitled to a full hearing on the issue and that the lower court erred in refusing proof of the equities alleged. We declared in Sykes v. Sykes, 404 Ill. 152, at page 156, “We have often stated the rule in this State to be, as expressed in Podgornik v. Podgornik, 392 Ill. 124, that under section 17 of the Divorce Act, ‘the court, in a divorce action, may compel the conveyance of property held by one party which, in equity, belongs to the other, and may adjust the equities of the parties in any property owned by them jointly. In order, however, to warrant the court in directing the conveyance of property belonging to one, to the other, there must be special circumstances and existing equities justifying the conveyance and such special circumstances and equities must be alleged in the complaint and established by the proof.’ ” No such special circumstances or existing equities appear in this case which would justify this court in overruling the decision of the trial court.

Defendant’s evidence concerning the alleged cruelty of her husband concerned itself with several occasions prior to the separation of the parties. The trial court heard the testimony, saw and observed the witnesses on this issue. Nothing in the record would indicate any error concerning his findings thereon. Where the chancellor sees the witnesses and listens to their testimony, his findings of fact will not be disturbed by the court unless they are manifestly against the weight of the evidence. Evangeloff v. Evangeloff, 403 Ill. 118; Greer v. Carter Oil Co. 373 Ill. 168; Hadley v. White, 367 Ill. 406.

We have purposely refrained from setting out unnecessarily the facts concerning plaintiff’s charge of his wife’s intemperance. The evidence is clear and we will not further consider that testimony, as it can have no possible public interest. It is enough to say that the evidence is sufficient to support the findings of the chancellor, who saw the witnesses and heard them testify. Under such circumstances this court will not disturb a finding of facts thus made. Jones v. Jenkinson, 316 Ill. 264; Moneta v. Hoffman, 249 Ill. 56; Reinken v. Reinken, 355 Ill. 539.

We do deem it necessary, however, to further consider the evidence and the law pertaining to the question of alimony, medical bills, and attorney fees. The parties were married almost 28 years. Three children were born as issue of this marriage, one of whom died in infancy; and in addition the defendant suffered two miscarriages due to accident. While the evidence may be conflicting as to the extent of the defendant’s contribution to the wealth which the plaintiff has acquired, it is replete with facts which conclusively prove that she not only gave birth to and reared his children, but that she washed linens and made bus seat covers at home to fulfil the plaintiff’s contract for such services with the Sherman Hotel and the Greyhound Bus Company, and that she assisted in other of the plaintiff’s business ventures. Even though the defendant’s evidence was not sufficient to sustain the cruelty charge of her counterclaim, it did establish that the plaintiff was not a model husband in their marital difficulties.

In the complaint filed in the case of Fox v. Fox Valley Trotting Club, (8 Ill.2d 571, 572,) he valued the Exposition Park property at $1,500,000. This court will take judicial notice of its own records. (People ex rel. Holzapple v. Ragen, 2 Ill.2d 124, 130; Lee v. Finley, 413 Ill. 445, 447.) If we concede that plaintiff may have been exuberant in this estimation of worth, and if we make allowance for encumbrances and other liabilities, it appears from the evidence in this record, and from the decision in the Fox Valley Trotting Club case, that the plaintiff still has considerable wealth and attendant income. While the plaintiff has prospered, the ravages of time, intemperateness, childbirth, and hard labor, have taken their toll on the emotions and physical strength of the defendant. She is without funds.

The relief sought by defendant in her counterclaim included alimony. The plaintiff’s complaint contained allegations that “plaintiff has always supported defendant according to his ability and is still ready and willing to pay what the court should deem necessary and proper for her support and care, taking into consideration her alcoholic habits,” and the prayer for relief stated: “Plaintiff prays * * * (b) that the court find what it may deem proper and necessary for him to pay for support and care of defendant.”

In Adler v. Adler, 373 Ill. 361, at page 369, this court stated: “Alimony is an allowance in a decree of divorce, carved out of the estate of the husband for the support of the wife. (Adams v. Storey, 135 Ill. 448; 19 Corpus Juris 201.) Generally, when a divorce is awarded a husband on the fault of the wife, the latter will not be awarded permanent alimony. (Spitler v. Spitler, 108 Ill. 120; Boylan v. Boylan, 349 id. 471.) The Divorce statute of this State has been construed to allow alimony to an erring wife, where all the facts and circumstances warrant the court in so doing; the objective, in the exercise of such right, is to prevent the imposition of an unjustifiable hardship in a given case that would ensue if the general rule was applied.”

Section 15 of the Divorce Act (Ill. Rev. Stat. 1955, chap. 40, par. 16,) authorizes the court to order the payment of such attorney fees and suit money as may seem just and equitable, regardless of the disposition of the case. This allowance may be to either the husband or wife, and the attorney fees may be for the prosecution or defense of the action. The defendant needed the services of an attorney in both the prosecution of her counterclaim and in her defense to the complaint.

We conclude that the decree of the lower court dismissing that part of defendant’s counterclaim seeking alimony is contrary to the manifest weight of the evidence and the law, and that the lower court erred in not awarding the defendant alimony for her support, including the payment of her medical bills, and in not granting to her reasonable attorney fees. However, we find no error in the court’s failure to find that a part or portion of the assets of the plaintiff are property of the defendant. Accordingly, we affirm the decree of the circuit court of Kane County in all respects except wherein it denied an award of alimony for the support of the defendant, including the payment of her medical bills and fees for her attorney. We reverse and remand the case to that court with directions to enter an award of alimony to the defendant in such amount as from the circumstances of the parties and the nature of the case may be reasonable and just, and to provide therein for the payment of her medical bills, and to order the plaintiff to pay a reasonable sum, as fees, to defendant’s attorney.

Affirmed in part and reversed in part amd remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Schaefer

license: Public Domain

text:
    (No. 33996.
    The People of the State of Illinois, Defendant in Error, vs. Loren Little, Plaintiff in Error.

      Opinion filed, November 26, 1956.

    Loren Little, pro se.

    Latham Castle, Attorney General, of Springfield, and Roger W. Hayes, State’s Attorney, of Macomb, (FrEd G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Schaefer

delivered the opinion of the court:

The defendant, Loren Little, was indicted in the circuit court of McDonough County for the crime of taking indecent liberties with a female child under the age of fifteen years. He pleaded guilty and was sentenced to the penitentiary for a term of not less than one year nor more than twenty years. (Ill. Rev. Stat. 1953, chap. 38, par. 109.) Evidence in aggravation and mitigation was heard, and a minimum limit of five and a maximum limit of fifteen years’ imprisonment was set. (Ill. Rev. Stat. 1953, chap. 38, par. 802.) Appearing pro se, defendant prosecutes this writ of error.

He contends that his conviction cannot stand because it appears from the common-law record (1) that the trial judge failed to advise him as to his right to have counsel appointed to represent him and as to the consequences of his plea of guilty, as required by Rule 27A of this court, (Ill. Rev. Stat. 1953, chap, no, par. 259.27A,) and (2) that the court “recommended” rather than “fixed” minimum and maximum limits of imprisonment, thus rendering the judgment vague and uncertain. People v. Montana, 380 Ill. 596.

The common-law record originally filed in this court supports these contentions. An additional record filed by the People, however, shows that on May 7, 1956, the record was corrected nunc pro tunc as of October 4, 1954. The correction was based upon memorials of the circuit court, including the official docket entry kept by the court and the transcript of the proceedings upon arraignment. (See: People v. Duden, 3 Ill.2d 16.) The corrected record shows that defendant’s contentions are without merit. Prom the additional record it appears that the clerk of the circuit court inadvertently omitted those portions of the record which contained the trial judge’s full explanation to defendant of his right to be represented by counsel, his adequate admonition as to the consequences of a plea of guilty, and the inquiries and answers as required by Rule 27A. And it also appears from the corrected record that the court “fixed” rather than “recommended” minimum and maximum limits of the term of imprisonment, thus removing any uncertainty as to its duration. See: People v. Bellmeyer, 396 Ill. 552.

The judgment of the circuit court of McDonough County is affirmed.

Judgment affirmed.


author: Mr. Justice Daily

text:
    (No. 34001.
    The People of the State of Illinois, Defendant in Error, vs. Gordon De Simone et al., Plaintiffs in Error.

      Opinion filed November 26, 1956.

      Edmund H. Grant, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GuticnECht, State’s Attorney, of Chicago, (Ered G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William: L. Carlin, and Lester Shapiro, of counsel,) for the People.
   Mr. Justice Daily

delivered the opinion of the court:

Gordon DeSimone and James DeSimone, brothers, together with Ered and Don Schaible, also brothers, were indicted in the criminal court of Cook County for the murder of John Hodaly during the course of an attempted robbery. After pleading not guilty they were jointly tried by a jury which returned verdicts finding the Schaible brothers not guilty and the DeSimone brothers guilty. The punishment of Gordon DeSimone was fixed at death while that of James DeSimone was fixed at 40 years imprisonment in the penitentiary. After motions for a new trial and in arrest of judgment had been made in behalf of the DeSimones and denied by the court, judgments were entered on the verdicts. By this writ of error the DeSimone brothers, hereafter referred to as defendants, seek a review of the record.

Although numerous errors have been assigned, a reading of the record brings into focus those relating to the defendants’ contention that they were deprived of their constitutional right of a fair trial by the “utter incompetency” of their appointed counsel. Such a contention finds its foundation in the decisions of this and the Federal courts which recognize that the conduct of counsel in a criminal trial may be such as to deny a defendant the fair trial that is contemplated by the due-process provisions of both the State and Federal constitutions. (People v. Morris, 3 Ill.2d 437; People v. Stephens, 6 Ill.2d 257; People v. Clark, 7 Ill.2d 163; People v. Schulman, 299 Ill. 125; United States ex rel. Hall v. Ragen, 60 F. Supp. 820; Diggs v. Welch, 148 F.2d 667; United States ex rel. Feeley v. Ragen, 166 F.2d 976.) The rationale of the cited cases is that a defendant’s right to assistance by counsel is not satisfied by the mere formality of an appointment of an attorney by the court, but that such right embraces effective representation throughout all stages of the trial, and where the representation is of such low caliber as to amount to no representation or to reduce the trial to a farce, the guarantees of due process are violated.

The facts of the present case, insofar as they relate to defendants’ claim that their representation was such as to deny them due process, reveal that the Schaible brothers and the defendants were, respectively, represented by different counsel at the joint trial which followed the denial of motions for severance. Noteworthy at this point is the fact that the attorney who defended the Schaibles below appears as counsel for the defendants on this appeal. Initially, the public defender was appointed to represent the defendants at a time shortly after their arraignment. Within a week, however, defendants filed a petition praying that a certain husband and wife, who were engaged in the practice of law, be appointed as their counsel and such appointment was made. It was the former, however, who conducted most of the defense. After representing defendants for a period of seven weeks, during which a mistrial of the cause occurred, the appointees sought and were denied leave to withdraw as counsel. Shortly after this, the defendants, purportedly acting upon their own initiative, filed a petition for a change of venue from certain judges of the criminal court and such a petition was granted. Apparently as a consequence the appointed counsel renewed their request for leave to withdraw, but such request was again denied. On the same day, the defendants, again purporting to act for themselves, filed a petition which was denied, praying that one of a list of attorneys submitted be appointed as their counsel. From the foregoing it would appear that the appointed counsel entered into the trial of the cause some two weeks later with reluctance, and that the defendants then had little confidence in such counsel.

The reasonable limits to which a judicial opinion must be confined do not permit a complete or detailed analysis of each and every act of counsel which is now complained of. We shall, therefore, confine ourselves to what appear to be the most flagrant violations of competent representation.

During various stages of the voir dire, counsel indicated to the jury panel the defense would be that defendants were not guilty by reason of insanity at the time of the crime, that such insanity continued, and that the jury would be asked to commit defendants to an insane asylum. Thereafter, while examining several individual jurors, counsel represented by his questions that the sole burden of proof under such a defense would rest on defendants, whose duty it would be to prove they were insane. It was only after such representation had been made several times that the court, upon objection by the prosecution, explained to counsel and the jurors that when a defense and evidence of insanity is interposed, it also becomes incumbent upon the People to prove beyond a reasonable doubt that a defendant was sane at the time the crime defended against was committed. (See: People v. Skeoch, 408 Ill. 276; People v. Jenko, 410 Ill. 478; 14 I.L.P., Criminal Law, sec. 303.) Although the mistaken concept of proof conveyed to the jurors was corrected by the court’s explanation and by a later instruction, we agree with the observation that it is incredible that one would undertake to defend a murder charge on the ground of insanity without acquainting himself with the fundamental evidentiary requirements incident to such a defense. Also, under this point, we are impelled to remark that counsel’s action of informing the panel that the defense of insanity had been unsuccessfully employed in several lurid murder trials which had attracted nationwide attention could only serve to impair the effectiveness of such a defense in the eyes of the jurors.

To prove the defendants insane, counsel summoned numerous lay witnesses, including the parents, friends, relatives and fellow-workers of the defendants. In more than one instance, however, such witnesses testified to facts which tended to show the defendants were sane and upon one occasion, the court, with great difficulty, prevented counsel from introducing certain letters in evidence which had been written by Gordon DeSimone while he was in prison and which the court construed as being possible documentary proof of his sanity. At the same time many of the witnesses were permitted to testify to irrelevant matters which conveyed to the jury the impression that the defendants were evil men who would be likely to commit the crime of murder. Upon inquiry by the court concerning the tendency of the defense evidence to convict, counsel revealed that he had not previously talked with a majority of such witnesses at any time prior to trial and that he did not know what their testimony would be. Thereafter, upon several occasions when the replies of witnesses were patently damaging to the defense, the trial was stopped and the court recessed to permit counsel to determine what his witnesses could testify to. In most instances it was also necessary for the court to suggest to counsel what line of questioning should be undertaken. Further witnesses subpoenaed by the defense, presumably to testify on the issue of insanity, were several newspaper reporters, the State’s Attorney, and a member of the Chicago Crime Commission. In a preliminary discussion of such witnesses with the court, counsel admitted he did not know what he expected to elicit from them, and an examination of the testimony of those called bears this out. The complete unfamiliarity of counsel with what his witnesses would testify to, or what he expected to prove by them, is, in our judgment, totally incompatible with any concept of effective representation.

In an apparent effort to establish medical proof of defendants’ insanity, counsel called a psychologist and a psychiatrist as witnesses for the defense. An examination of the former’s testimony reveals the only clear facts elicited were that results of generally accepted tests given the defendants proved them to be of average intelligence. Here again, when counsel floundered in his examination, the court suggested he confer with the witness before proceeding further. The psychiatrist who testified had not examined the defendants, and counsel sought to introduce his expert opinion through the medium of a hypothetical question. Although given unlimited opportunity and many suggestions by the court, counsel was never able to formulate a proper hypothetical question limited to the facts of the case and abandoned his effort, remarking to the court that he was “stumped” and that “he didn’t know what to do next.” On this occasion, and others, counsel appealed to the court and to the attorney representing the Schaibles to help him when he found his improper questions blocked by objections of the prosecution. By contrast, on other occasions, counsel refused to accept the advice of the court, or to follow examples set by the other attorney. When the utter futility that was at times manifested by counsel is considered, together with the meager evidence of insanity that reached the jury, it is difficult to say defendants were given effective assistance in presenting their defense.

Perhaps the most startling revelation in the 2250-page record before us is that the defendants’ counsel made no objections throughout the entire trial. As a result we find statements made by the Schaible brothers, oral and written, were admitted in evidence against the defendants even though they neither assented to nor were present when those statements were made. (See: 14 I.L.P., Criminal Law, sec. 412.) Similarily, separate statements of the defendants were admitted in evidence with no effort to restrict their application to the individual making the statement. This omission of counsel occurred despite the fact that the Schaibles’ attorney moved for the court to instruct the jury that the statements made by the defendants were not admissible against his clients. Under the circumstances existing at the trial an additional lapse on the part of defendants’ counsel occurred when he failed to seek a hearing regarding the voluntary nature of the statements given by the defendants, and when he made no effort to put their credibility in issue before the jury. This failure was particularly damaging in view of counsel’s representations to the jury panel on the voir dire that he would prove the statements had been procured by “brainwashing” and by “Russian purge methods.” Having planted this thought in the minds of the jurors, counsel’s neglect to make any effort to prove such charges doubtless resulted in the jurors accepting the statements as unqualified confessions that the defendants committed the crime. If, as the record suggests in numerous instances, the voluntary nature of the statements was in doubt, defendants were entitled to a complete exploration of the matter under any concept of competent defense. Cf. People v. Schulman, 299 Ill. 125.

The manner and scope of counsel’s cross-examination of some of the witnesses for the prosecution is, we believe, also indicative of incompetency in the conduct of the defense. Here again counsel elicited information which was never shown to have any bearing on the question of defendants’ sanity, but which would, rather, inform the jury that defendants were evil men and hardened criminals. For example, counsel brought out by such cross-examination that Gordon DeSimone had been arrested many times, that he had committed numerous burglaries before and after the murder here involved, that he had once been placed on probation for auto theft, and that he had served a term in the penitentiary on three charges of burglary. In the same manner the jurors were informed that James DeSimone had been subject to previous criminal charges.

In appraising the effectiveness of defendants’ representation at all stages of the trial, something must be said of counsel’s conduct of the voir dire and of his opening and closing remarks to the jury. While examining prospective jurors many irrelevant and ludicrous questions were asked, among them being: “Have you ever seen a play called ‘Darkness in the Noon’?” “Did you ever contribute to the Polio Fund?” “Do you ever dream?” “Do you believe in the competitive system, the American competitive system?” “Now in speaking the German language are you aware that in old Russian and old German, that the languages are identical?” “Do you know the origin of the word ‘hospital,’ it means ‘spit house’.” “Have you any idea what the word ‘Amen’ means ?” “Have you read anything by the Catholic monk Salirou?” “Did you ever read Omar Khayyam stories?” “Did you ever hear of anything concerning the Latin poet, Juvenal?” “Did you ever hear of the Greek historian Thucydides?” “Did you see the movie called ‘The Egyptian’?” “Did you ever hear of Nafir Titi, the wife of Tato Ahmen Pharoah ?” “Do you know why the American colonies rebelled against George the 3rd?” When counsel was questioned concerning what bearing the answers to some of such questions would have upon his right to intelligently exercise a peremptory challenge, he admitted to the court that he did not know. Their purpose likewise escapes this court and it is our opinion that the persistent use of such seemingly senseless questions could only have operated to the detriment of the defendants by causing their counsel to appear absurd in the eyes of the jurors.

Criticism of counsel’s opening statement may be confined to the observation that he informed the jury of other crimes committed by the defendants which were wholly unrelated and immaterial to the charge for which they were being tried, or to the defense of insanity that was being raised. Here again the effect could only have been to convince the jurors that defendants were likely to commit such a crime as charged. (See: People v. Wilson, 400 Ill. 461; People v. Gougas, 410 Ill. 235.) Counsel’s closing remarks to the jury likewise wandered to many irrelevant and confusing matters and, to a greater extent than seems reasonable, were used to suggest to the jury that defense counsel were overmatched by the prosecutors, that they were not capable of defending a criminal case, that their clients were guilty, and that there was, in fact, no legal defense which could be' made for defendants. It is true a great portion of the closing argument concerned the subject of insanity but we fail to find that there was any clear or intelligent correlation of counsel’s theories with the facts of the case in a manner that could be understood by the jurors. We think too that counsel’s action of suggesting to the jury in several instances that Gordon DeSimone should receive a death sentence if the defense of insanity did not prevail, was inconsistent with the best interests and effective representation of his client.

To meet the charge that the incompetency of counsel denied defendants due process of law, the People urge that the unorthodox defense presented was a desperate gamble engaged in by counsel in the face of almost certain conviction of his clients. The failure of such defense, it is said, is not justification for charging that the trial was reduced to a sham or a farce. With this we can agree, but the argument overlooks that it is likewise held to be a denial of due process where the representation of a defendant is of such low caliber as to amount to no representation at all. (See: People v. Stephens, 6 Ill.2d 257; United States ex rel. Feeley, v. Ragen, 166 F.2d 976.) Further, we may look to the language of Betts v. Brady, 316 U.S. 455, 86 L. ed. 1595, 1602, where it is said an asserted denial of due process “is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” While the record here may disclose that counsel, with the lives of his clients being the stake, sought to make a defense of insanity in an unorthodox way, it also shows that his apparent lack of knowledge of basic criminal procedures and rules of evidence resulted in almost a complete failure to develop such a defense. When these shortcomings are considered together with the failure of counsel to acquaint himself with the testimony of his witnesses, his failure to1 make timely objections, and the picture of utter futility he at times presented to the court and jury, we must hold that the totality of such facts is that defendants were denied the effective representation contemplated by the guarantees of due process. This reason alone impels us to reverse the judgments of conviction in order that defendants may have an opportunity for a new trial with competent representation.

It is contended that the alleged incompetency of counsel should not serve as a basis for reversal where the evidence of the People is conclusive, and the judgments are manifestly and unquestionably right. A complete answer to such contention is found in People v. Blevins, 251 Ill. 381, at 393-395, where a similar argument was rejected in these terms: “It is true, error will not always reverse in criminal cases where the guilt of the accused is conclusively shown, (People v. Cleminson, 250 Ill. 135,) but to this rule there are some exceptions. In murder cases the jury fixes the punishment to be inflicted, and the legislature has seen fit to allow a wide range in determining what the punishment shall be, the minimum being fourteen years in the penitentiary and the maximum death. In this case the death penalty was fixed by the jury, and it may well be that the weak manner in which plaintiff in error was defended, the vigorous manner in which he was prosecuted by four able and experienced lawyers, and the admission in evidence, on the trial, of incompetent testimony calculated to prejudice and degrade plaintiff in error in the minds of the jury, influenced the jury in determining the punishment that should be inflicted. * * * Whatever view we might entertain of our duty in this case if the punishment had been fixed at less than the maximum, to say that, notwithstanding important rights plaintiff in error was entitled to under the law were not accorded him on the trial and his punishment fixed at death, we think he was not prejudiced, and that the verdict of the jury must have been the same and the punishment fixed at death even if he had been accorded the rights he was entitled to, would be to establish a dangerous precedent and one not justified by the law or the natural instincts of humanity.”

Other errors assigned by defendants at this time are not of such nature as will recur upon a new trial and need not be considered here. There is, however, one feature of the record which necessitates further comment. Gordon DeSimone, it appears, refused to enter the courtroom at various stages of the proceedings and thus voluntarily absented himself from his trial. On other occasions the same defendant caused disorder in the court by profane .outbursts directed at witnesses and the court, and in one instance seized and tore into shreds an exhibit which had been accepted in evidence. When one such disorder occurred after the evidence had been closed and just prior to presentation of closing arguments, the court caused the defendant to be removed from the courtroom. He soon returned, however, after some discussion by court and counsel. Looking to decisions which hold that a defendant has the right to be present at every stage of a criminal trial, some contention is made that the action of the court in proceeding during the periods of both voluntary and involuntary absence was a violation of section 9 of article II of our constitution, which ordains that an accused shall have the right to appear and defend in person in all criminal prosecutions.

The constitutional privilege relied upon was conferred for the benefit and protection of an accused. Like many other rights, however, it may be waived. Thus where a defendant voluntarily absents himself from a courtroom and refuses to be present for further proceedings he is deemed to have waived his right and cannot claim any advantage on account of his absence. (People v. Smith, 6 Ill.2d 414; People v. Connors, 413 Ill. 386; Sahlinger v. People, 102 Ill. 241.) The court did not, therefore, exceed its legitimate powers when it proceeded while Gordon DeSimone voluntarily absented himself from the trial. The same result must follow under the circumstances attending this defendant’s involuntary absence. It is obvious from the record that defendant’s removal was necessary to prevent such misconduct as would obstruct the work of the court; such misconduct was, in turn, effective as a waiver of the defendant’s right to be present. The right to appear and defend is not given to a defendant to prevent his trial either by voluntary absence, or by wrongfully obstructing its progress.

For the reason stated the judgments of the criminal court are reversed as to both defendants, and the cause is remanded to that court for a new trial.

Reversed and remanded.


author: Mr. Justice Schaeeer

text:
    (No. 34017.
    John Costas, Appellant, vs. The People of the State of Illinois, Appellee.

      Opinion filed November 26, 1956.

      George J. Cotsiriros, and John J. Cogan, both of Chicago, for appellant.
    Latham Castre, Attorney General, of Springfield, and John GuTknecht, State’s Attorney, of Chicago, (FrEd G. Leach, Edwin A. Strugara, Gordon B. Nash, Charres D. Snewind, and Wirriam Syrvester White, of counsel,) for appellee.
   Mr. Justice Schaeeer

delivered the opinion of the court:

In July of 1954 John Costas pleaded guilty to an indictment for murder and was sentenced to imprisonment in the penitentiary for a term of 50 years. In September of 1955 he filed a “petition in the nature of a writ of error coram nobis,” by which he sought to have the judgment of conviction vacated. His petition was dismissed upon motion and he appeals.

Technically, the question is the legal sufficiency of the petition. But at the hearing on the motion to dismiss, the petitioner made an offer of proof. He also filed two affidavits in support of his petition, together with the transcipt of the proceedings at the time he was sentenced. The trial court considered these matters as part of the petition without objection, and we shall so treat them here.

Petitioner was 66 years old in 1954. The deceased was a young married woman. She was petitioner’s godchild and he felt toward her “just like his own child.” She was a narcotics addict and petitioner tried to help her. When she suggested that she wanted to see a doctor, he took her to a psychiatrist and arranged for her hospitalization. After she was released she began taking narcotics again. In January of 1954 she cut her wrist with a razor blade. Petitioner borrowed money and with her husband again arranged for medical attention and hospitalization. When she was released from the hospital she again resumed the use of drugs. On April 14 she came to the defendant’s room and started crying. She said that she wished she was dead because “they are going to put me away for a couple of years.” Two days later she returned in the same distraught condition. Defendant tried to get her to eat some food but she refused and said, “I ought to have you kill me. Don’t send me home. I can’t stop the thing.” When she fell asleep he cut her throat.

The petitioner alleged that certain facts regarding the state of mind of the petitioner were not presented to the court when the judgment was entered; “That the state of mind of the defendant was caused by a despondency tantamount to compulsion or duress and prevented him from exercising any effort whatsoever for his defense to the charge of murder;” that petitioner was represented first by the Public Defender and then by an attorney assigned by the Chicago Bar Association; that “he continually requested of said attorneys that he be given the death penalty and manifested other signs of complete despondency and desperation which actions and conduct were entirely inconsistent with a proper defense of his case;” that when he entered his plea of guilty he “was unaware of the sentence, or even an approximate sentence, that he was to receive and paid no attention to the admonitions of the court.” The petition also alleged that after he was sentenced he attempted to commit suicide in the county jail, and that it was not until three months after he was transferred to the penitentiary “that he overcame his despondency and suicidal urge and realized that by his conduct he had not allowed himself the full protection of the law.”

Petitioner was represented first by John M. Branion of of the Public Defender’s office. Later, Robert P. Monaghan of the Chicago Bar Association’s committee on defense of prisoners was substituted. The affidavits of these attorneys were offered in support of the petition. Branion’s affidavit stated that he attempted to explain the consequences of the charge to the petitioner, and advised him he would try to get the State’s Attorney to recommend the acceptance of a plea of guilty to manslaughter. Both attorneys stated that throughout their discussions with the petitioner he insisted that they request that he be sentenced to the electric chair. Branion’s affidavit also stated that “the defendant demonstrated an inability to cooperate with affiant so that a proper defense could be made.”

Petitioner’s contentions are (1) that he had a valid defense of insanity to the charge of murder, and (2) that at the time he entered his plea of guilty “he was not in a mental condition to voluntarily enter such a plea.” The claim of insanity at the time of the crime was not expressly stated in the petition. It is here based upon the bizarre circumstances of the crime, and upon an offer to prove by the testimony of Dr. Haines, a State psychiatrist, that when petitioner entered the plea of guilty “he was still suffering from some mental illness at the time and had been for some time previously.”

Upon this foundation petitioner builds an argument based on the test of mental responsibility for crimes which was used in Durham v. United States, 214 F.2d 862. But petitioner’s argument cannot succeed on this record, for there is no suggestion of any causal connection between petitioner’s act and the “mental illness” referred to by Dr. Haines. And as pointed out in the Durham opinion, even under the test there used, “He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act.” 214 F.2d 875.

The claim that petitioner’s mental condition was such that he could not enter a plea of guilty is based on his insistence that his attorneys obtain the death penalty for him, on Branion’s affidavit that petitioner demonstrated a lack of ability to cooperate with counsel, and on petitioner’s attempt to commit suicide.

The attempt to commit suicide after petitioner’s conviction could not, of course, have been known to the trial court when judgment was entered. It cannot, therefore, serve as an independent ground for this proceeding. Whether testimony concerning the occurrence would be admissible on any theory need not now be determined.

Both of the attorneys appointed to represent the petitioner have sworn that during their interviews with him he insisted that they should attempt to secure the death penalty for him. One of them, a lawyer of long experience in the trial of criminal cases, has sworn that in his opinion the petitioner was unable to cooperate in his own defense. The record does not show that these facts were known to the trial judge when he permitted petitioner to withdraw his plea of not guilty and enter a plea of guilty. When petitioner was sentenced the trial court knew that there had been a psychiatric examination of petitioner by Dr. Haines; petitioner’s offer of proof states that Dr. Haines would testify that although petitioner’s mental condition was such that he could cooperate with counsel, “he was still suffering from some mental illness, mental sickness at the time and had been for some time previously.” And the record does not show that Dr. Haines was aware of the petitioner’s insistence upon the death penalty.

The allegations of the petition and the supporting affidavits strongly suggest the conclusion that petitioner was not mentally competent at the time his plea of guilty was entered. The offer of proof of the psychatrist’s testimony, although ambiguous, does not dispel the serious doubt which otherwise exists. So far as the record discloses, when the plea of guilty was accepted the trial judge was not apprised of the petitioner’s mental condition as described in the petition, in the attorneys’ affidavits and in the offer of proof. Petitioner’s allegations now stand uncontested. If they are true, and the conditions they indicate had been known to the trial judge, we assume that he would have refused to accept the plea of guilty until petitioner’s competence had been determined in the manner provided by statute. Ill. Rev. Stat. 1955, chap. 38, pars. 592, 593; see Schroers v. People, 399 Ill. 428; People v. Samman, 408 Ill. 549; People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260.

We are of the opinion that the ends of justice require that a hearing be had on the petition and that if the allegations of the petition be proved the judgment of July 12, 1954, be set aside and a new trial ordered. Accordingly, the order of the criminal court of Coolc County dismissing the petition is reversed and the cause remanded, with direction to overrule the motion to dismiss and to proceed in accordance with this opinion.

Reversed and remanded, with directions.


author: Mr. Justice Davis

text:
    (No. 34024, 34048 Cons.
    The People ex rel. George P. Coutrakon, Appellant, vs. Lennox R. Lohr et al., Appellees.—Sangamon County Fair and Agricultural Association et al., Appellants, vs. Stillman J. Stanard et al., Appellees.

      Opinion filed November 26, 1956.

      Hershey, J., took no part.
    George P. Coutrakon, State’s Attorney, Thomas W. HoopEs, James C. Craven, and Allen T. Lucas, all of Springfield, for appellants.
    Latham CastlE, Attorney General, of Springfield, and Kirkland, Fleming, Green, Martin & Ellis, and Werner W. SchroEder, both of Chicago, (LuciEn S- Field, Weymouth Kirkland, Thomas M. Thomas, and Thomas F. Scully, of counsel,) for appellees.
   Mr. Justice Davis

delivered the opinion of the court:

The questions arising in these consolidated cases involve the validity of enacted House Bill 733, entitled: “An Act to provide for a Metropolitan Fair and Exposition Authority in metropolitan Cook County and to define its powers and duties,” to be known as the Metropolitan Fair and Exposition Authority Act. Ill. Rev. Stat. 1955, chap. 34, pars. i55gi et seq.

They arise out of two separate cases decided by the circuit court of Sangamon County. Number 34024 was a complaint in quo warranto brought by George R Coutrakon, as State’s Attorney of Sangamon County, against the Metropolitan Fair and Exposition Authority and the members of its board, seeking a determination that the act creating the Authority is unconstitutional. The Sangamon, Morgan, and Cass County Fair Associations and their presidents, intervened as additional plaintiffs. Number 34048 was a taxpayers’ action in which the Sangamon, Morgan, and Cass County Fair Associations and their presidents are plaintiffs, and the Director of the Department of Agriculture of the State of Illinois, and the State Auditor and Treasurer are defendants. In this action the plaintiffs seek to restrain the defendant Authority from entering into leases with the Chicago Park District for the use of park property for an exposition building, and from applying for and receiving any money from the Fair and Exposition Fund, and ask other relief. The State’s Attorney of Sangamon County joined in the complaint as coplaintiff, and the Authority is an intervenor-defendant in this action.

In both cases, the trial court granted motions to strike and dismiss the complaints. Plaintiffs appealed directly to this court since the constitutionality of a State statute and the public revenue are involved. Since the two cases both challenge the constitutionality of the Metropolitan Fair and Exposition Authority Act, and contain common specifications of unconstitutionality, we granted a motion to consolidate them upon appeal.

The Metropolitan Fair and Exposition Authority Act created a municipal corporation, the Metropolitan Fair and Exposition Authority, hereinafter called the “Authority,” in the “metropolitan area,” that territory lying within the corporate boundaries of the county of Cook. In section 3 it was given the power to sue and be sued in its corporate name, and in section 4 to “promote, operate and maintain fairs, expositions and conventions from time to time in the metropolitan area and in connection therewith to arrange, finance and maintain industrial, cultural, educational, trade and scientific exhibits and to construct, equip and maintain auditoriums and exposition buildings for such purposes,” and was further granted “all rights and powers necessary to perform such duties.” In subsequent sections the Authority was given further express rights and powers to accept from the Chicago Park Fair, a private not-for-profit corporation, an assignment of whatever sums of money it may have received from the Fair and Exposition Fund, as well as its contracts; to receive such sums as may be distributed to it from the Fair and Exposition Fund; to own, lease, construct, operate and maintain fair and exposition grounds and facilities, to lease the same, and collect reasonable nondiscriminatory charges to defray the expenses of the Authority; to pay principal and interest on any revenue bonds it may issue; to enter into contracts concerning the objects and purposes of the act; to borrow money for the purposes of the act; and (in section 10) to issue revenue bonds payable solely from the revenues or income to be derived from the fairs, expositions and exhibitions and other authorized activities operated by it, “and from funds, if any, received and to be received by the Authority from the Fair and Exposition Fund, as allocated by the Department of Agriculture of this State.” The act further provides that under no circumstances shall any bonds issued by the Authority, or any other obligation of the Authority be an indebtedness or obligation of the State of Illinois. (Ill. Rev. Stat. 1955, chap. 34, par. 15511.) These revenue bonds were, by section 12 of the act, (Ill. Rev. Stat. 155, chap. 34, par. 155g12,) made legal investments for municipalities, banks, insurance corn-panes, trustees, fiduciaries, building and loan associations and others.

Two companion bills were enacted at the same time as the Metropolitan Fair and Exposition Authority Act. House Bill No. 734 amended section 6i of “An Act in Relation to State Finance.” (Ill. Rev. Stat. 1955, chap. 127, par. 142i.) Insofar as it is material here, section 6i as amended sets up the Fair and Exposition Fund, and provides for appropriations thereto, disbursements thereof, and for its administration by the Department of Agriculture. Distribution from the fund is authorized to county fairs in counties with a population of less than 500,000, and to fair and exposition authorities in counties with a population of 500,000 or more. Appropriations pursuant to this section may be expended for financing industrial, cultural, educational, trade and scientific exhibits, and for constructing and equipping auditoriums and buildings for such purposes, or for payment of the principal and interest upon revenue bonds issued for any of the foregoing purposes. The constitutionality of section 6i of the State Finance Act was upheld in Sangamon County Fair and Agricultural Association v. Stanard, 9 Ill.2d 267, decided at the September, 1956, term.

House Bill No. 735, enacted as “An Act to authorize certain park districts to lease park property to a Metropolitan Fair and Exposition Authority and to maintain and operate such property for exposition and other purposes upon the conditions set out herein” (Ill. Rev. Stat. 1955, chap. 105, pars. 327V6 and 327V7,) authorized park districts located in whole or in part in any city having a population of 500,000 to lease, with certain specified restrictions, to a Metropolitan Fair and Exposition Authority for a term not exceeding forty years, any parcel or parcels of land to be maintained by such Authority for its lawful corporate purposes.

For the purposes of this consolidated appeal, we shall consider all the specifications of unconstitutionality. The points raised by the various plaintiffs are properly before the court, and therefore the proceeding in which they were raised below is of no significance on this appeal. Points raised by the pleadings and appeal are that the Metropolitan Fair and Exposition Authority Act violates:

(1) Section 13 of article IV of the Illinois constitution in that it embraces subjects not expressed in its title, amends other acts without specific reference thereto, and in that it was not read at large on three different days in the House of Representatives, even though the House Journal recites such fact.

(2) Section 22 of article IV in that it is an improper special law and grants special powers, privileges, and immunities to a private corporation.

(3) Section 26 of article IV which prohibits the State from being made a party defendant in any suit, in that section 3 of the act permits suits to be filed against the Authority as an agency of the State.

(4) Section 10 of article IX in that it allegedly provides for appropriations of money for the corporate purposes of a municipal corporation performing no State function, and in that it provides a tax upon municipal corporations or inhabitants thereof for corporate purposes.

(5) Section 1 of article IV in that it contains an unlawful delegation of legislative powers.

(6) Section 12 of article IX in that it authorizes the authority to create debts without limitation and no provision is made for a tax to pay the same, and that it fails to provide for the discharge of a debt within 20 years.

(7) Section 18 of article IV in that it provides for appropriations of funds which may not necessarily be used for governmental purposes, and it contains a pledge of a continuing appropriation.

(8) Section 20 of article IV in that it creates a State debt.

(9) Article III in that the Authority is given the power to-pass ordinances sanctioned by fines.

(10) Section 2 of article II of the constitution in that it provides no procedure for reviewing the imposition of fines and penalties, and in that it is vague and uncertain in meaning, and incapable of execution.

(11) Section 1 of article XI in that it creates a corporation by special law.

Plaintiffs also contend that the Authority Act is in direct conflict with sections 1 and 2 of the above cited act in regard to leasing park district property, in that the latter act gives the park districts power to regulate the premises demised to the Authority, while the Authority Act gives the same power to the Authority, and that there is also a conflict as to police power over the demised premises.

In considering the foregoing points, we must first determine if the Authority is a municipal or private corporation. It is argued that the powers of the Authority are proprietary rather than governmental, and the Authority is therefore a private corporation. The same argument was more fully made and rejected by this court in People v. Chicago Transit Authority, 392 Ill. 77. The Authority Act contains analogous provisions to the Metropolitan Transit Authority Act there upheld. The Authority is authorized to fix and collect fees and charges for its facilities, and to pass and enforce ordinances. Its records and ordinances are made public records, and public hearings are to be held with respect to the enforcement of its ordinances, rules and regulations. The intention to create a municipal corporation for public purposes is clearly expressed. Like provisions were held to create a municipal corporation in the Transit Authority case, which we feel is controlling here. See People v. Chicago Transit Authority, 392 Ill. 77, 90.

Holding that the Authority is a species of municipal corporation, we next turn to the applicability of section 22 of article IV of the constitution. That section provides that the General Assembly shall not pass local or special laws in certain enumerated cases, among which are: “Incorporating cities, towns or villages,” and “Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” It further provides that “in all other cases where a general law can be made applicable, no special law shall be enacted.” We think it clear that the Authority Act is a local or special law and that it grants to a municipal corporation certain special and exclusive privileges for public purposes. However, we have long held that municipal corporations, with the specific exception of “cities, towns or villages,” unlike private corporations, may be created by special law and be granted special privileges. (People ex rel. Gutknecht v. Chicago Regional Port Dist. 4 Ill.2d 363.) In the Port District case we said at page 372: “It is also well settled that the only municipal corporations which cannot be created by special law within the terms of said provision of the constitution are cities, towns and villages. (Wilson v. Board of Trustees, 133 Ill. 443; Sanitary District v. Ray, 199 Ill. 63; Kocsis v. Chicago Park District, 362 Ill. 24; People v. Chicago Transit Authority, 392 Ill. 77.)” We have upheld the validity of the creation of the Chicago Sanitary District (Wilson v. Board of Trustees, 133 Ill. 443); the Chicago Transit Authority, (People v. Chicago Transit Authority, 392 Ill. 77; Schuman v. Chicago Transit Authority, 407 Ill. 313); the Chicago Park District, (Kocsis v. Chicago Park District, 362 Ill. 24); the Chicago Regional Port District (People ex rel. Gutknecht v. Chicago Regional Port District, 4 Ill.2d 363) ; and the Illinois State Toll Highway Commission, (People v. Illinois Toll Highway Commission, 3 Ill.2d 218), all municipal corporations created by special law. Plaintiffs concede that we have held, in an unbroken line of decisions, that the prohibitions of section 22 of article IV do not apply to municipal corporations, but they argue that this precedent should now be re-examined and reversed. We find in their argument no compelling reason to so do. To now announce a construction of section 22 as urged by plaintiffs would be to virtually prohibit the creation of any municipal corporation for the public purpose of delegating governmental functions of the State. No logical argument has been offered for such a construction. We further find no ground for reviewing or reversing the legislative determination that no general law could be made applicable in this case. (Owners of Lands v. People ex rel. Stookey, 113 Ill. 296, 315.) We therefore find that the act does not violate section 22 of article IV.

We next consider if the act complies with the formal requirements of section 13 of article IV, which deals with the printing, procedural, and other requisites for the enactment of legislation. Insofar as it is applicable here, the section provides: (1) that no act shall embrace more than one subject, and that shall be expressed in the title; (2) that no law shall be amended by reference to its title only, but the section amended shall be inserted at length in the new act; and (3) that every bill shall be read at large on three different days, in each house. In construing the constitutional requirement of a singleness of subject, the tendency has been to adopt a liberal, rather than a strict, construction. To render a provision in the body of a statute void because it is not embraced in its title, the provision must be one which is incongruous or which has no proper connection with the title of the act. (People ex rel. Brenza v. Gebbie, 5 Ill.2d 565, 587.) Generally, it is for the legislature to determine how broad and comprehensive or how specific the title of an act shall be. (Sangamon County Fair and Agricultural Association v. Stanard, 9 Ill.2d 267; People ex rel. Sanitary District of Chicago v. Schlaeger, 391 Ill. 314; People ex rel. Gage v. Village of Wilmette, 375 Ill. 420.) As we said in the Sangamon County Pair case, upholding the companion act (Ill. Rev. Stat. 1955, chap. 127, par. 142Í) : “The constitution is obeyed if all the provisions of the act relate to one subject indicated in the title and are parts of it, or incident to it, or reasonably connected with it, or in some reasonable sense auxiliary to the one object in view. (People ex rel. Brenza v. Gebbie, 5 Ill.2d 565.) The title of an act need not contain all the details thereof, nor be an index of its contents. Johnson v. Halpin, 413 Ill. 257.”

Viewed in the light of these rules, we think it clear that the act embraces but one subject, the establishment of a Metropolitan Pair and Exposition Authority, which is clearly expressed in the title. The plaintiffs urge that the provisions of the act authorizing the Chicago Park Fair to turn over its State funds to the Authority, declaring the Authority’s bonds to be negotiable instruments, and declaring such bonds to be legal investments of insurance companies, banks, and others, involve more than one subject, and amend other acts not referred to in the title. Under the rules announced, we feel that all of these provisions clearly relate to the single general subject of creating the Authority and defining its powers and duties. They are clearly auxiliary to the main purpose of the act. The provisions of the act relating to revenue bonds do not violate the amendment provision, since the act is complete in itself, and in no way changes existing laws. (People v. Chicago Transit Authority, 392 Ill. 77, 90 and 91; People ex rel. Curren v. Schommer, 392 Ill. 17, 27; People ex rel. Curren v. Wood, 391 Ill. 237, 256.) The mere fact that the act incorporates certain sections of the State Finance Act by reference in no way amends that act, and such practice is free from constitutional objection. People v. Lewis, 5 Ill.2d 117, 122.

Plaintiffs also contend that the bill was not read at large on three different days in the House of Representatives. The record reveals that the circumstances of its enactment, as reflected in the legislative journal, are identical with that of House Bill 734, which was subject to the same attack in Sangamon County Fair and Agricultural Assn. v. Stanard, 9 Ill.2d 267. We there held that the parliamentary history of a bill in the legislative journal is the only evidence that is recognized in the courts of this State, and it cannot be aided or contradicted by evidence aliunde. Since the legislative journal discloses that the bill was read at large on three different days, that case is controlling here. We therefore hold that the form and method of passage of the act does not violate section 13 of article IV.

The argument that the act is vague and indefinite is also conclusively answered by the language of our opinion in Sangamon County Fair and Agricultural Assn. v. Stanard, 9 Ill.2d. 267.

We also feel that the authorization of suits against the Authority in no way contravenes the constitutional limitation of suits against the State contained in section 26 of article IV. Under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the Authority. Independent control exists in the Authority to acquire, own, construct, lease, operate, and maintain fair and exposition grounds and facilities. These factors permit it to be regarded as an independent entity while admittedly performing public functions. Thus the Authority, as a municipal corporation, or as an agency or instrumentality of the State, is not within the traditional immunity afforded the sovereign. People v. Illinois Toll Highway Commission, 3 Ill.2d 218, 227.

The argument most earnestly urged in briefs and argument is that section 10 of the Metropolitan Fair and Exposition Authority Act violates sections 18 and 20 of article IV and sections 10 and 12 of article IX. That section of the act provides that the Authority shall have the power to borrow money and to issue therefore revenue bonds payable solely from revenues or income, “and from funds, if any, received and to be received by the Authority from the Fair and Exposition Fund, as allocated by the Department of Agriculture of this State.” Section 12 of article IX contemplates that municipal corporations may levy taxes, and it provides a debt limit for such corporations of five per cent of the value of the taxable property therein. It further provides that, before or at the time of creating an indebtedness, the municipal corporation shall provide for the collection of a direct annual tax sufficient to pay both principal and interest thereon within 20 years from the time the debt was contracted. Bonds evidencing such debt may be issued pursuant to said provision and applicable statute, and become general obligations of the issuer. Since the Authority is without taxing power, (Ill. Rev. Stat. 1955, chap. 34, par. I55gi3,) and its bonds are not obligations of the State or general obligations of the Authority, but rather are payable solely from the revenue and income aforementioned, we think it clear that the issuance of such revenue bonds do not constitute an indebtedness within the proscriptions of our constitution. This conclusion, based on the foregoing and further reasons, finds support in our prior decisions. (People v. Illinois Toll Highway Commission, 3 Ill.2d 218; Loomis v. Keehn, 400 Ill. 337). Neither do we believfe that the Authority Act violates section 10 of article IX of the constitution by providing for the appropriation of money by the State for the purposes of a municipal corporation which performs no State functions, nor that said act violates this constitutional provision in that it permits the General Assembly to levy a tax upon municipal corporations or the inhabitants thereof for corporate purposes.

The plaintiffs argue that section 18 of article IV is violated in that the General Assembly is under some continuing obligation to appropriate money to the Department of Agriculture for distribution to the Authority. We can find no basis for such contention in the language of the act. Under section 6i of the Illinois State Finance Act, a portion of the tax from horse race track licenses, paid into the Fair and Exposition Fund of the State, is distributable to the Authority. This tax is not imposed for corporate purposes of a municipal corporation, but rather to provide general revenue which, after receipt thereof, can be appropriated and expended for general public purposes. The corporate purposes of the Authority are general public purposes. (People v. Illinois Toll Highway Commission, 3 Ill.2d 218, 230; Loomis v. Keehn, 400 Ill. 337, 345 and 346; Illinois Farmers’ Institute v. Brady, 267 Ill. 98, 102; State Board of Agriculture v. Brady, 266 Ill. 592, 599.) There is no language in the act which would constitute a pledge of a continuing appropriation of such funds, or limit the legislature in making any contrary appropriation of the race track tax. We accordingly find that the provisions in the act permitting the Authority to receive public funds for public purposes is not unconstitutional. See People v. Illinois Toll Highway Commission, 3 Ill.2d 218 ; Loomis v. Keehn, 400 Ill. 337.

We further hold that the delegation of the power to enact ordinances sanctioned by fines and penalties, and to conduct investigations, as provided for in sections 23 and 27 of the Metropolitan Fair and Exposition Authority Act, violates neither section 1 of article IV as an unlawful delegation of legislative power, nor article III relative to separation of powers, nor section 2 of article II, the due process clause of our constitution. Since we have held that the Authority is a municipal corporation, it must follow that the legislature has the power to authorize it to enact such ordinances, rules and regulations as are necessary for its operation, and to enforce them with proper sanctions. (People ex rel. Gutknecht v. Chicago Regional Port District, 4 Ill.2d 363.) The legislature may likewise delegate the legislative power of inquiry to the Authority which can use the same more advantageously. Du Bois v. Gibbons, 2 Ill.2d 392, 413; People ex rel. Barrett v. Logan County Bldg, and Loan Assn. 369 Ill. 518, 527.

While the act provides no procedure for reviewing the imposition of fines and penalties, and the legislature has not placed the Authority under the Administrative Review Act, this in no way denies recourse to the courts. Section 3 of the act provides that the Authority may sue and be sued. The imposition of fines and penalties would require judicial enforcement and such action would be subject to judicial review. We find no denial of due process under the provisions of the the act. People v. Illinois Toll Highway Commission, 3 Ill.2d 218.

We also find no conflict between the Metropolitan Fair and Exposition Act and an act to authorize certain parks to lease park property to the Authority. (Ill. Rev. Stat. 1955, chap. 105, pars. 327V6 and 327V7.) The latter, in effect, amends the Chicago Park District Act, (Ill. Rev. Stat. 1955, chap. 105, pars. 333.1 et seq.) to permit a leasing of lands to the Authority. This is permissive and not mandatory. Two or more municipal corporations with different functions may lawfully exist in the same territory. There is no constitutional objection to the power of the legislature to authorize them to co-operate so far as co-operation is consistent with or desirable for the accomplishment of their respective purposes. (People ex rel. Curren v. Wood, 391 Ill. 237; People ex rel. Wies v. Bowman, 247 Ill. 276.) For the accomplishment of such corporate purposes, the legislature has broad power over the control and disposition of the property of municipal corporations. (People ex rel. Housing Authority v. Hursey, 7 Ill.2d 537.) We find no conflict in the purposes of the two municipal corporations, and find nothing unconstitutional in authorizing co-operation between them.

We feel that the foregoing contentions, and others raised but not argued, have been fully answered by this opinion and our decisions in People ex rel. Gutknecht v. Chicago Regional Port District, 4 Ill.2d 363, People v. Illinois Toll Highway Commission, 3 Ill.2d 218; Schuman v. Chicago Transit Authority, 407 Ill. 313, Loomis v. Keehn, 400 Ill. 337; People v. Chicago Transit Authority, 392 Ill. 77, Kocsis v. Chicago Park District, 362 Ill. 24, and Wilson v. Board of Trustees, 133 Ill. 443. Our constitution was wisely drafted to protect our citizens from abuses of governmental authority. It furnishes a framework within which laws may be enacted. However, it was not designed to permit this court to pass judgment on the wisdom of legislative action directed to cope with current problems. It is our duty to determine if the legislature, proceeding within its limitations, has enacted legislation which is not violative of the constitutional safeguards. We find that the act under consideration is within constitutional proscriptions. The judgment and decree of the trial court must accordingly be affirmed.

Judgment and decree affirmed.

Mr. Justice Hershey took no part in the consideration or decision of this case.


text:
    (No. 34057.
    Herman H. Moore, Appellant, vs. Calvin B. Moore et al., Appellees.

      Opinion filed November 26, 1956.

      Wirriams and Hartzerr, of Carthage, and SchmiedESkamp & Deege, of Quincy, (Howard L. Snowden, of counsel,) for appellant.
    T. MacDowning, of Macomb, for appellees.
   Mr. Justice Schaefer

delivered the opinion of the court:

The circuit court of Hancock County dismissed a complaint to establish a resulting or constructive trust at the close of the plaintiff’s case, and he appeals.

Herman H. Moore, the plaintiff, is a son of Jessie Moore West. The defendants are Calvin B. Moore and Kathryn V. Moore Bender, his brother and sister. In 1941, Jessie Moore West bought the property in question. She paid the entire purchase price, but the deed ran to Jessie Moore West, Calvin B. Moore and Kathryn V. Moore, “not as tenants in common, but as joint tenants, so that upon the death of one the entire fee simple shall vest in the survivors.” The mother, Jessie Moore West, paid the costs of maintaining the property and exercised dominion over it. She died intestate in 1954, and the plaintiff and the defendants are her heirs-at-law.

These allegations of the complaint were admitted, and upon them plaintiff claims that a resulting trust arose in the mother, Jessie Moore West. It is true that one person has here furnished the consideration for a conveyance of land, title to which has been taken in the name of others. To that extent the requirements of a resulting trust are met. (Bowman v. Pettersen, 410 Ill. 519.) But the additional grantees here are children of the purchaser, and the presumption of a gift intervenes. Houdek v. Ehrenberger, 397 Ill. 62, 67.

Plaintiff argues that the presumption of gift operates only when the donor is legally responsible for the support of the donee, and points to testimony that Calvin was 39 years old, and Kathryn 24, when the conveyance was made. For this proposition he relies on language used in Wright v. Wright, 242 Ill. 71, Lutyens v. Ahlrich, 308 Ill. 11, and in other cases in which a wife furnished the consideration, and title tO' the property was taken in the name of her husband. In those cases no presumption of gift was found to exist, and in reaching that conclusion the court emphasized the absence of a duty to support.

Our decisions involving the presumption of gift from parent to child, however, have not drawn the distinction that plaintiff urges. The presumption has been applied in many cases involving adult sons or married daughters. (See, e.g., Link v. Emrich, 346 Ill. 238, 336 Ill. 337; Houdek v. Ehrenberger, 397 Ill. 62; Francis v. Wilkinson, 147 Ill. 370; Eckert v. Gridley, 104 Ill. 306.) The presumption has been held to arise when the transferee is the natural object of the bounty of the person paying the purchase price. “It is immaterial that the child is an adult.” (Restatement of the Law of Trusts, sec. 442, Comment a.) That the mother paid maintenance costs and exercised dominion over the property after the conveyance did not negative the presumption. Houdek v. Ehrenberger, 397 Ill. 62, 68; Hartley v. Hartley, 279 Ill. 593; Dorman v. Dorman, 187 Ill. 154; Pool v. Phillips, 167 Ill. 432.

Since the presumption of a gift has not been met, plaintiff has failed to establish a resulting trust.

Standing alone, the testimony in support of plaintiff’s claim of a constructive trust is patently insufficient, but plaintiff argues that when it is considered in connection with certain allegations of the complaint that he contends were admitted, it is sufficient to establish a constructive trust. To understand the contention it is necessary to describe the state of the pleadings.

The complaint consisted of two alternative counts, the first count asserting a resulting trust, and the second a constructive trust. As originally filed, neither count stated a cause of action, and no responsive pleading was filed. Thereafter the plaintiff filed a document captioned “Amendments to Complaint.” Although this document struck the two key paragraphs of each count, and substituted new ones, it did not strike every paragraph of each count.

Defendants’ answer was called “Answer to the Complaint as Amended,” but it clearly appears to have been addressed to the “Amendments to Complaint” rather than to the original complaint as amended, for it made no reference to counts and it answered only the four paragraphs of the “Amendments to Complaint.”

Plaintiff’s arguments, based on the confused state of the pleadings, simmer down to the proposition that paragraph 3 of count 2 of the original complaint was either expressly admitted or, under section 40 of the Civil Practice Act, (Ill. Rev. Stat. 1955, chap, no, par. 40,) must be considered as admitted because it was not explicitly denied. That paragraph alleged that at the time of the execution of the deed Jessie Moore West was of impaired and feeble health in mind and body “and was mentally incompetent to direct that her name be placed in said deed as the sole grantee thereof, by reason of mental sickness which rendered her feeble minded at the time of the execution of the deed in question, and that by reason of her physical and mental infirmities at the time of the execution or purported execution of said deed she was easily persuaded and not in a condition to understand her rights or the nature or quality” of the deed.

There was no express admission of the allegations of this paragraph, for the answer referred only to the four numbered paragraphs in the “Amendments to Complaint” and was not addressed to the paragraphs of the original complaint. Nor was there an admission by failure to deny. Paragraph 4 of the “Amendments to Complaint” alleged that the defendants advised Jessie Moore West in her business and affairs, that she depended on them, that she was unduly influenced by them, “and was in no way competent to understand the nature and purport of said deed and * * * of the insertion of the names of said defendants * * * as grantees with her in said deed * * * in joint tenancy.” All of these allegations were expressly denied. The denial of the allegation of a lack of mental ability to understand the nature and purport of the deed was sufficient to require proof. It is immaterial that what is essentially the same allegation was not denied when it appeared, differently phrased, in the other of the two separate documents that together made up the complaint.

There was no proof whatever of any mental disability on the part of Jessie Moore West. It might be argued that the testimony of the plaintiff that both he and his brother, at unspecified times, called the doctor for her, brought groceries for her, and helped her about the house, suggests physical disability at the time of the conveyance. But that testimony does not touch the question of her mental competence. A fiduciary relation does not exist just because the parties are parent and child, (Niland v. Kennedy, 316 Ill. 253,) nor does the testimony of plaintiff’s wife that on one unspecified occasion the defendant, Calvin B. Moore, went to the bank for his mother at her request tend to establish such a relation here.

The circuit court properly dismissed the complaint at the close of plaintiff’s case.

Decree affirmed.


author: Mr. Justice Bristow

text:
    (No. 34078.
    Harold M. Bohan et al., Appellants, vs. The Village of Riverside et al., Appellees.

      Opinion filed November 26, 1956.

      Wallace B. Kemp, of Chicago, for appellants.
    Tenney, Sherman, Bentley & Guthrie, and Robert W. Murphy, both of Chicago, (S. Ashley Guthrie, of counsel,) for appellees.
   Mr. Justice Bristow

delivered the opinion of the court:

Plaintiffs-appellants appeal directly to this court from a final order and declaratory judgment of the circuit court of Cook County in favor of the defendants, entered upon their motion for judgment on the pleadings, which held certain amendments to a zoning ordinance valid and denied plaintiffs’ prayer for an injunction restraining the construction and use of a building for a youth center.

The trial judge certified that the validity of a municipal ordinance is involved and in his opinion the public interest requires a direct appeal. Consequently, this court properly has jurisdiction.

The ultimate question at issue is the validity of an amendment to the zoning ordinance of the village of Riverside adding to the specific uses permitted in a Residence District B-4 (an office-residence district) the following: “Clubs, associations, or recreation rooms and quarters not involving, however, the conduct of a retail business on the premises.”

Prior to adoption of the zoning amendment in question, the permitted uses in Residence District B-4 included business and professional offices; medical clinics and hospitals; private, vocational and professional schools; portrait studios; funeral parlors and mortuaries, and uses permitted in more restricted residence districts. The more restricted districts permitted single, duplex and multiple family residences; municipally owned or operated public library, park, playground, recreation or field house or public utility; churches; public, private or parochial elementary or high schools; hotels, lodging or boarding houses; and free parking lots appurtenant to such uses.

The plaintiffs are owners of property adjacent to and in the vicinity of a tract of land purchased by defendant District 208 Youth Center, Inc., in Residence District B-4 on which it is proposed to construct and operate a youth center, with its usual activities including dancing and youth parties. Plaintiffs allege they purchased their property in reliance on the continued existence and benefits and advantages of the use limitations.

The amended complaint alleges that on August 17, i955j the village board of trustees adopted an amendment to its zoning ordinance known as ordinance No. 833 which permitted club, association or recreation rooms or quarters in Residence District B-4 on which ordinance no hearing was ever had before a committee appointed by corporate authorities nor notice of hearing published as required by section 73 — 8 of the Revised Cities and Villages Act, (Ill, Rev. Stat. 1955, chap. 24, par. 73 — 8,) and that such ordinance was therefore invalid and void.

The amended complaint further alleges that subsequent to filing the original complaint the village adopted a new ordinance, No. 838, incorporating the same provisions as the prior ordinance, by publishing notice thereof in the form of a legal notice. It is charged such ordinance is illegal and void in that it was manipulated so as to avoid any notice of the pendency of such ordinance or hearing thereon reaching plaintiffs or their counsel by not giving personal notice or publishing notice in a spread two columns wide as such ordinances were normally published in the past.

The amended complaint further alleges that prior to adoption of the ordinances in question the use of the youth center property for dances for large numbers of persons was forbidden; that the youth center threatens and intends to construct on its property a building to accommodate 180 couples to be used primarily for dancing Friday and Saturday nights, or more often, for its members who are all under 18 years of age; that the village is aware of such intentions and proposes to permit the same; that the character of the neighborhood is overwhelmingly residential and peaceful; that the operation of the youth center will greatly increase traffic and traffic hazards on a road of narrow dimensions traversing the area, will disturb the peace and tranquility expected by bereaved relatives and friends of deceased persons from time to time in a funeral home adjacent to the youth center property, will seriously and detrimentally affect the business of the funeral home, will increase fire hazards, will cause the neighborhood to deteriorate seriously as a residential neighborhood, and will greatly damage the market value of plaintiffs’ property.

By virtue of the foregoing, the amendments to the zoning ordinance were alleged to be unconstitutional, illegal and invalid in that they were not passed for the purpose of public health, safety, comfort, morals and welfare, were special legislation, and deprive plaintiffs of property without due process of law.

Answers by defendants, replies thereto by plaintiffs, motions to strike portions of answers, and defendants’ motion for judgment on the pleadings were thereafter filed.

The trial court in its order and judgment found that ordinance No. 838 was legally passed and approved after lawful publication and hearing thereon, that the ordinance was valid and effective, that the youth center property was in Residence District B-4, and that the proposed use of such property was lawfully permitted under the ordinance.

Plaintiffs in their appeal argue that the action of the trial judge in allowing defendants’ motion for judgment on the pleadings and in making findings of fact and law was improper and that the ordinances were invalid.

Plaintiffs first contend that the motion for judgment on the pleadings does not comply with the requirements of section 45 of the Civil Practice Act (ll1. Rev. Stat. 1955, chap, no, par. 45,) that motions directed to pleadings shall point out specifically the defects complained of, and the motion was so transparently insufficient in law that the chancellor should have refused to entertain it, citing Lederer v. St. Clair Hotel, Inc. 339 Ill. App. 214. When the motion for judgment was filed, the case was pending on the complaint, answers thereto, and plaintiffs’ motions to strike. Replies were later filed by leave of court before judgment was entered. Plaintiffs did not question the form of motion for judgment on the pleadings although they had ample opportunity. Even if the motion was questionable as to form, it could have been corrected if objection on that ground had been seasonably made in the trial court. The objection to the form of the motion will not be considered when raised for the first time on appeal. Thomas v. Durchslag, 404 Ill. 581.

Although plaintiffs attack the legality and validity of ordinance No. 833, the first amendment to the zoning act in question, its validity is of importance only if the later ordinance No. 838 repealing the prior amendment and enacting a new amendment is invalid.

Ordinance No. 838 is first attacked from a procedural and technical point of view for the reason that it was passed after the filing of the original complaint herein without personal notice to the court or to the plaintiffs. The amended complaint itself shows that notice of hearing on the ordinance was given by a legal publication and hearing had thereon, all as required by section 73 — 8 of the Revised Cities and Villages Act. The mere pendency of a suit by plaintiffs does not affect the powers of a municipality to pass an ordinance or the manner of exercise of such power as prescribed by statute. There was no requirement that the village give personal notice to the plaintiffs or to the court of the proposal to pass an ordinance amending the zoning ordinance and correcting alleged technical defects in the old ordinance, other than the statutory notice. From a procedural and technical point of view, ordinance No. 838 was lawfully passed and we need not consider the alleged circumstances surrounding passage of ordinance No. 833.

But plaintiffs’ main contention is that the ordinance must comply with the enabling act, that allegations of fact in the amended complaint must be taken as true, and that those allegations establish that the ordinance failed to comply with the substantive requirements of the enabling act.

There is no question but that the validity of an amendatory zoning ordinance must be determined by the same rules and tests as those applied in ascertaining the validity of original zoning ordinances. (Trust Company of Chicago v. City of Chicago, 408 Ill. 91.) The same case, and many others too numerous to cite, clearly establish that a zoning ordinance to be valid must not be arbitrary and unreasonable, but must bear a substantial relation to the public health, safety, comfort, morals or welfare.

Plaintiffs argue that the motion for judgment admits the allegations that the ordinance will greatly increase traffic and traffic hazards, will increase fire hazards, will disturb the peace, will decrease the value of lands, and will change existing conditions and uses to which the property is presently devoted. Therefore, they argue, the ordinance violates the enabling act, is arbitrary and unreasonable, and beyond the power of the village. They further argue that plaintiffs were entitled to rely on the classification of the property.

However, all presumptions are in favor of the validity of a zoning ordinance, the courts will not overrule the legislative decision as to granting a variation where the question is fairly debatable, and the burden is on objecting parties to show that an ordinance is unreasonable, arbitrary and capricious. Bullock v. City of Evanston, 5 Ill.2d 22; Kinney v. City of Joliet, 411 Ill. 289.

The complaint clearly shows that plaintiffs’ property for many years has been situated in a district where permitted uses included parks, playgrounds, recreation and field houses, churches, schools, hotels, business and professional offices, and hospitals. Although plaintiffs have a right to rely upon the classification of property and that classifications will not be changed unless required for the public good, (Kennedy v. City of Evanston, 348 Ill. 426,) they also acquired their property knowing amendments could be made to the ordinance within the limits of the law. The allegations of the complaint nowhere indicate in what manner the proposed use is dissimilar to presently permitted uses, or will create more traffic hazards, fire hazards, reduction in property values, disturbance of the peace or interference with a funeral home than playgrounds, recreation houses, schools or hotels. There is no factual basis alleged in the complaint for holding that use of the property for clubs, associations or any other recreational establishment is more onerous than the uses previously specifically permitted. The fact that such club or association may consist of youths does not render the ordinance invalid. Organizations composed of youths are not, for that reason, undesirable as a matter of law. Youth is a vital and integral segment of our community life and must be given an opportunity to become responsible members of society.

The allegations of injury or damage that may result from wrongful operation and conduct of the youth center are necessarily speculative. If and when a wrong occurs it may be corrected but it cannot be assumed in advance that the wrong will occur. Because a privilege may be abused is no reason why it shall be denied. City of Chicago v. Drake Hotel Co. 274 Ill. 408.

In view of the character of uses permitted in the district in question as appears in the complaint, there is no sound basis appearing in the complaint for the assertion that the action of the village was unreasonable, arbitrary or capricious, or that the ordinance was in any sense invalid.

The judgment of the trial court is affirmed.

Judgment affirmed.