text:
    People ex rel. Ballinger, Appellee and Cross-Appellant, v. Timothy J. O’Connor, Commissioner of Police of the City of Chicago, Stephen E. Hurley, Albert W. Williams and John J. Ahern, Members of the Civil Service Commission of the City of Chicago, James H. Dillard, Comptroller of Chicago, and William G. Milota, Treasurer of the City of Chicago, Appellants and Cross-Appellees.
    Gen. No. 46,956.
    First District, Second Division.
    April 9, 1957.
    Rehearing denied April 30, 1957.
    Released for publication May 21, 1957.

      John C. Melaniphy, Corporation. Counsel of the City of Chicago (Sydney R. Drebin and Brendan Q. O’Brien, Assistant Corporation Counsel and Harry H. Pollack, of counsel) for defendants-appellants.
    Michael F. Ryan, of Chicago (Richard R. McPartlin, Jr., of counsel) for plaintiff-appellee and cross-appellant.
   JUDGE McCORMICK

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county entered December 14, 1955, ordering a writ of mandamus to issue commanding the respondents to restore Robert E. Ballinger, petitioner, as a patrolman in the classified service of the Chicago police department and to pay him salary from November 21, 1953 to February 21, 1951. A cross-appeal was taken by tbe petitioner from tbe portion of tbe order with reference to the allowance of salary.

Respondents contend that petitioner is barred by laches from maintaining the suit; that the proceedings taken in the case were in accord with the Civil Service Act and the rules of the commission; that the matter before the trial court was an attempted review of a matter -within the discretion of the department head and of the civil service commission and hence is not subject to review by the courts in a mandamus proceeding provided that the officers, as it is contended they did, acted within their statutory powers and not arbitrarily or capriciously.

Petitioner urges that there was no unreasonable delay in filing suit and that in any case he has a satisfactory excuse for the lapse of time involved; that the department head acted illegally in that he usurped the powers granted to the civil service commission since by his action he annulled the certification of eligibility by the commission; that the reason assigned by the commissioner as grounds for removing the petitioner was invalid and insufficient in law; that the civil service commission failed to give a valid or legal consent to the removal of petitioner since it conducted no investigation of any kind to determine the truth or falsity or relevancy of the assigned reason for removal.

The name of the petitioner was posted by the civil service commission on its eligible list on April 20,1953, he having taken both mental and physical examinations. On September 18, 1953 he was certified by the commission for appointment to the position of patrolman, and on September 23, 1953 he was appointed by the commissioner of police as a patrolman and sworn in. Under the Civil Service Act and the rules of the commission he was appointed as a probationary police officer for a period of six months. Under the practice of the Chicago police department, the chief surgeon of that department examined petitioner on September 30, 1953. After the examination the surgeon became suspicious of petitioner’s lung condition. He then found that petitioner’s questionnaire gave a history of tuberculosis. Further investigation revealed that the petitioner had on September 27, 1950 been rejected for military service on the ground of “pneumothorax pleural diffusion.” The chief surgeon asked the petitioner to go to St. Luke’s Hospital for a chest x-ray, and on October 12, 1953 the doctor received a report from the hospital. He thereupon wrote to the commissioner of police advising him to suspend petitioner because he was a potential risk. On November 10, 1953 the commissioner of police sent a communication to the civil service commission asking authority to discharge petitioner based on the report of the chief surgeon indicating a tubercular condition. The report of the chief surgeon, attached to the communication from the commissioner of police, recited that the petitioner had been admitted to the Municipal Tuberculosis Sanitarium March 4, 1945, that he was discharged September 10, 1946; that from March 18, 1946 to June 1, 1951 artificial pneumothorax was given on his left side; that an x-ray report dated October 12,1953 from St. Luke’s Hospital reads: “Old pathology in the left lung, adhesions in the left diaphragm. Thickening of the pleura and generalized thickening of the pleura of the entire lung. The upper lobe of the left lung is not well aerated, probably due to faulty breathing and thickened pleura”; and that because of the above findings and history of tuberculosis, he is a poor risk for the police department. The petitioner was then suspended and was discharged on November 21,1953. He was not notified of the discharge. The instant suit was filed on November 1, 1954.

The court overruled the respondents’ motion to strike the petition. Respondents filed an answer. A hearing was had before the court and at its conclusion the court entered the judgment from which these appeals are taken.

■Section 10 of the Act to Regulate the Civil Service of Cities (Ill. Rev. Stat. 1953, chap. 24%, par. 48) provides that the department head should notify the civil service commission of a position to be filled and should fill such place by the appointment of the person certified to him by the commission, which appointment shall be made on probation for a period to be fixed by the rules of the commission. The rules of the commission, section 5 of rule IY, provide that the period of probation shall be six months. The Act further provides that at or before the expiration of the period of probation the head of the department may, with the consent of the commission, discharge the probationer upon assigning in writing his reason therefor to the commission.

During the probationary period an appointee may be discharged upon complying with the Act without notice or hearing. Fish v. McGann, 205 Ill. 179 (in which case the court laid down the rule that the appointee is not in the classified service until the probation period has expired); Kenyon v. City of Chicago, 135 Ill. App. 227. The petitioner strenuously contends that since he had passed the physical examinations conducted by the civil service commission and was certified by it, this certification was binding on the department head, and if the department head could conduct a further physical examination it would mean that he would be taking over the right and duty which was by statute vested solely in the commission. There seems to be no question as to the right and power of the commissioner of police to, from time to time, conduct physical and mental examinations in order to determine whether or not patrolmen are able to perform the duties required of them. People ex rel. Wayman v. Steward, 249 Ill. 311. It would seem to be an anomaly to hold, where an appointment of a police officer has been made on probation in order that it might be determined whether his conduct, capacity and physical condition are such as would enable him to assume the necessary duties of the office, that the hands of the commissioner of police are tied and he must, even if his investigation indicates that the probationer is not in his opinion qualified to perform his duties, still permit the probationer to go through his probationary period and enter into the classified service. In People ex rel. Walter v. Woods, 168 App. Div. 3, 153 N. Y. S. 872, the court held that the commissioner of police should not be deprived during the probationary period from making a thorough investigation into the applicant’s personal records in order to determine whether he has the proper qualifications for a police officer, in spite of the fact that he has been certified by the civil service commission, and the court points out the civil service commission and examiners have not the facilities for making a thorough investigation or outside inquiries into his personal records.

The petitioner relies on the case of Wolff v. Hodson, 285 N. Y. 197, 33 N.E.2d 90, in which the court held that where an appointment had been made from the eligible list furnished by the civil service commission and where the appointee, a special investigator in the department of welfare, had held the position for more than a year, the civil service commission could not, without a hearing, arbitrarily remove bim from his position. The ground advanced for such removal was that he had made false statements in his application. The basis for the court’s opinion seems to be that the appointee was dismissed without a hearing and that the civil service commission having certified him conld not revoke the certification, and the court says that the appointing officer cannot question the determination of the commission as certified to him as to eligibility, even though the commission was in error. The statement in the opinion on which the petitioner relies is dicta; neither has it any application to the case before us, since here we are dealing with an appointee to the police department, a semi-military organization upon which is placed the duty of protecting the lives and property of the citizens of the city. The purpose of the probationary status of the appointee is to enable the commissioner of police, in his sound discretion, to determine as to whether or not the probationer has the necessary qualifications to become a police officer. It is well established that mandamus will not lie to review a discretionary act of an administrative agency, a department head, or the civil service commission. The only question presented to the courts is to determine whether or not the administrative body has acted within its defined powers, and if the court has determined that the action of the administrative body is outside of its powers, its resulting void order may be ordered expunged from its records. The court may, when it is the clear legal duty of an administrative body vested with discretion in the premises to act, compel by mandamus such administrative body to act, but the court may not compel such agency to act in any particular way. People ex rel. Elmore v. Allman, 382 Ill. 156; Reddick v. People ex rel. Mason, 82 Ill. App. 85. Here, as we have stated, the commissioner of police had the power to order an examination of the probationer. That examination was made, and the physician who made it came to the conclusion from the evidence before him that the probationer did not have the necessary physical qualifications to enable him to be a policeman. The chief surgeon made his report to that effect to the commissioner of police and the commissioner, in accordance with the statute, requested the discharge of the probationer, which request was granted. It must be presumed that the public officials acted in good faith and with honest motives. Smith v. Board of Education, 405 Ill. 143; Michuda v. Sanitary District of Chicago, 305 Ill. App. 314.

On the hearing a -physician testified in favor of the petitioner to the effect that the conditions indicated in his history, including the x-ray reports, did not render him a poor risk for the police department. The chief surgeon for the police department, together with another physician, testified that they did. The question was one of scientific fact on which qualified men could and did have a difference of opinion. Its determination was within the sound discretion of the commissioner of police, and in reaching a conclusion he was entitled to rely upon the opinion of his departmental medical officers. Neither the trial court nor this court in a mandamus action can substitute its judgment for that of the medical officer, the commissioner of police and the civil service commission. The action taken by them was not arbitrary or capricious.

Petitioner also urges that no valid consent was given by the civil service commission for his removal, and he argues that the letter from the department head to the commission, which stated that the petitioner had a tubercular condition, together with the report from the chief surgeon, was not sufficient inasmuch as it did not specifically set out a conclusion as to the petitioner’s then existing physical condition; that there was no statement he was unable to perform his duties, simply that he was a poor risk for the police department; and that thereupon it became incumbent upon the civil service commission to make a further investigation before consenting to the discharge. We know of no such rule of law. As we have stated, it must be assumed that the acts of the civil service commissioners were in good faith. The report of the police surgeon was comprehensible even to a layman and sufficient to justify the commission in giving its consent to the discharge of the petitioner; and in any case there is nothing in the record to indicate that the commissioners did not consult medical authorities with reference to the report. The fact that the letter from the department head did not state that the petitioner was unable to perform his duties is immaterial. The statements therein made were sufficient on which to base a discharge.

Another ground urged by the respondents is that the petitioner was barred by laches from bringing his mandamus action. The question was properly raised in the pleadings, both in the motion to strike and in the answer.

It has been held in cases where a petition for a writ of certiorari had been filed seeking to review the rulings of the civil service commission in regard to civil service employees that laches may properly be invoked. In Connolly v. Upham, 340 Ill. App. 387, a case involving the dismissal of a petition for a writ of certiorari, the court in its opinion reviewed and analyzed the cases of Clark v. City of Chicago, 233 Ill. 113, City of Chicago v. Condell, 224 Ill. 595, Blake v. Lindblom, 225 Ill. 555, People v. Burdette, 285 Ill. 48, and Carroll v. Houston, 341 Ill. 531, and concludes:

“There is no statute limiting the time within which a common-law writ of certiorari may issue, ‘but the courts, by analogy, have established a limitation in regard to the issuing of such writs, the same as the limitation which governs the prosecution of a writ of error’ (Clark v. City of Chicago, 233 Ill. 113), and have uniformly held that a party seeking to review the action of an inferior tribunal by the common-law writ of certiorari must act promptly, and in case of delay must show, by his petition, some legal excuse why he has not moved more promptly.

“Since City of Chicago v. Condell, 224 Ill. 595 (1907), six months has been established as the limitation period during which the writ of certiorari must be filed, unless a reasonable excuse is shown for the delay.”

In Schultheis v. City of Chicago, 240 Ill. 167, which was a petition seeking a writ of mandamus to order the petitioner’s name restored to the police payroll, the court discusses and relies upon the case of Kenneally v. City of Chicago, 220 Ill. 485, where the court held that laches could be properly urged as a bar to the issuance of the writ. Answering the contention of the petitioner that laches cannot be relied on as a defense in a suit at law and can only be interposed in equity, the court says:

“This is a mistake. Cases are common in this court in which laches has been regarded as affording a defense in proceedings in quo warranto and in proceedings in certiorari, both of which are at law. Clark v. City of Chicago, 233 Ill. 113; City of Chicago v. Condell, 224 id. 595; People v. Hanker, 197 id. 409; Trustees of Schools v. School Directors, 88 id. 100; People v. Schnepp, 179 id. 305.

“In the case cited from the 233d we held that a member of the Chicago police force claiming to have been wrongfully removed would be barred by laches from his right to have the record of the civil service commissioners reviewed by certiorari if he delayed more than six months in beginning his suit unless the delay was satisfactorily explained by the petition for the writ. We are satisfied that we should adhere to the Kenneally case.”

In People v. City of Chicago, 147 Ill. App. 591, which was a petition for a writ of mandamus directed against a ruling of the civil service commission, the court cites Clark v. City of Chicago, supra, and, after stating that while the action in the Clark case was one of certiorari and the one before it one of mandamus, says:

“The cases are analogous for the end aimed at is the same, although the means differ simply in procedure through which the end is sought to be accomplished. The doctrine of laches, however, is as readily invokable in the one case as in the other. The court say in Clark case supra: ‘The petition for the writ in this case was filed ten months after the petitioner had been removed from office, and as the petitioner makes no showing why said petition was not filed at an earlier date and within six months of the date of the entry of the order of removal by the Civil Service Commission, we think the appellee should be held to be barred, by reason of his laches, of his right to have said order reviewed by the common law writ of certiorari, and that the Superior Court did not err in quashing the writ and dismissing the petition.’

“These remarks are of equal force and pertinency to relator’s petition for the writ of mandamus, for by this writ he is seeldng the same review as Clark did by his certiorari proceeding.”

In People ex rel. McNamara v. O’Connor, 12 Ill.App.2d 481, the court came to the same conclusion.

It is apparent from these decisions that our courts have taken the view that the bar of laches applies both to certiorari and mandamus and that six months has been established as the limitation period during which petitions for such writs must be filed, unless a reasonable excuse is shown for the delay. In the case before us the petitioner urges that he has shown reasonable grounds for his delay in filing the petition.

The petitioner on September 23, 1953 was appointed a probationary patrolman. He was suspended November 11, 1953 and was subsequently discharged on November 21,1953. He filed the instant suit November 1, 1954, a period of eleven months after he was discharged, and over nine months from the time he received the report from the Municipal Tuberculosis Sanitarium upon which he relies.

To explain the delay in filing the instant petition, petitioner relies on the fact that a few days after his suspension he talked to the chief surgeon, who told him that if he (petitioner) would bring him a clean bill of health, he (the surgeon) would see what he could do. The petitioner then went to the Municipal Tuberculosis Sanitarium, which made sputum tests, and on January 22,1954 he was given a report of those examinations which he took to the secretary of the police department and asked that it be forwarded through the usual channels to the proper authorities. The contents of that report do not appear in the record, and if we assume that the report therein contained was substantially the same as is contained in the letter from the medical director of the Chicago Municipal Tuberculosis Sanitarium to Dr. Phillips dated December 1, 1955, it would state that the petitioner has been considered a minimal, inactive case of pulmonary tuberculosis since January 1954; that chest x-rays reveal some pneumothorax thickening of the pleura on the left side with obliteration of left costophrenic angles and some mediastinal displacement to the left; that slight fibroid residues are noted on the left side at the first and second interspaces. In that letter it was also stated that on September 29, 1955 the petitioner was in good physical condition. The petitioner states that he knew he was suspended on November 11th but received no notice of his discharge on November 21st and did not know that he had been discharged.

The petitioner is an educated man. He had attended Loyola University for four years and the Chicago Kent College of Law for one semester. He states that he had in October before his suspension entered on a course of treatment at the Municipal Tuberculosis Sanitarium, which ran to January 1954. He states that he did not know how long a suspension could stand before discharge; that after November 21st he got a paycheck from the police department for services which he had performed before the date of the discharge and that since then he had received no money. Complying with a request at the time of the suspension, he had turned in all his police equipment. Petitioner certainly knew that he was no longer a police officer. He argues, however, that he was lulled into doing what he did by the statement of the chief surgeon. It is inconceivable that a man of his intellectual capacity did not know the rules governing suspension and discharge from the police department, and in any case he cannot rely on his ignorance of the law. All the police surgeon told him was that if petitioner would furnish a clean bill of health he would see what he could do about the matter. After petitioner received the letter of January 22nd from the Municipal Tuberculosis Sanitarium he did not contact the surgeon, nor did he inquire as to whether or not the surgeon had ever received the letter. In any case, the letter, assuming that its contents were as we have suggested, could be construed as not being a “clean bill of health.” It has been held that promises of a superintendent of police and a mayor to reinstate a policeman were not sufficient to excuse laches in a mandamus suit. McGowan v. City of Chicago, 178 Ill. App. 76; People ex rel. Jahn v. City of Chicago, 279 Ill. App. 624. Under these holdings it would seem evident that the very vague statement of the police surgeon in this case would not be sufficient.

There was a duty resting upon the petitioner under all the facts and circumstances to promptly assert his claim. We do not think that he has given a sufficient excuse to satisfactorily explain his delay in filing the petition. The petition should have been stricken on the ground of laches. The cross-appeal of the petitioner is stricken. The judgment of the Superior Court of Cook county is reversed.

Judgment reversed.

ROBSON, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: JUDGE SCHWARTZ

license: Public Domain

text:
    Bruno J. Kowalski, Plaintiff-Appellee, v. Robert Burman, Defendant-Appellant.
    Gen. No. 47,098.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      Warren J. Carey, and Arnold B. Kalnitz, both of Chicago, for appellant.
    Collins & Harty, of Chicago, for plaintiff-appellee; Francis X. Riley, of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Defendant appeals from a judgment in a forcible detainer action. Plaintiff made a motion in this court to dismiss the appeal on the ground that the issue had become moot, as plaintiff after appeal had been filed by defendant had entered into possession of the premises. Defendant admits that plaintiff is in possession. We denied plaintiff’s motion but it is renewed in his brief. On an appeal in a forcible entry and detainer case we cannot dismiss the appeal even though possession by the plaintiff makes the issue moot. Defendant upon his appeal gave bond pursuant to the statute and under that bond he is hable for damages as therein provided in the event the judgment is sustained. He is entitled to a review of the judgment for that reason. This rule has been applied in favor of a plaintiff in order that he might recover under the bond for the period of unlawful withholding. It should, of course, be equally applicable to a defendant under circumstances such as exist here. We therefore hold that the case has not become moot by reason of the admitted fact that defendant is no longer in possession. Central States Co-ops. v. Watson Bros. Transp. Co., 180 F.2d 689; Patterson v. Graham, 40 Ill. App. 399, aff’d 140 Ill. 531, 30 N. E. 460; Glanz v. Ziabek, 233 Ill. 22, 84 N. E. 36; West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, 193 N. E. 462.

It appears from the evidence that defendant and his wife as vendors contracted to sell the property to plaintiff and his wife for $25,000. Subsequently in accordanee with provisions of the contract the purchase price was paid and plaintiff sought possession, which was denied. Plaintiff then brought this suit.

The principal point is whether demand was necessary before the filing of the suit. The forcible entry and detainer law (Ch. 57, Par. 2, Ill. Rev. Stat. 1955) provides that action may be used to restore a person to possession in six different cases, the sixth being as follows:

“When lands or tenements have been conveyed by any grantor in possession . . . and the grantor in possession . . . refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto or his agent.”

Clearly, this is applicable to the present situation. No demand was made or proved and therefore the action cannot be sustained. We are referred by plaintiff to Loekelt v. Stoltz, 323 Ill. App. 164. There the conveyance was made by the executor of an estate. It was argued on the part of the plaintiff that the executor was not a grantor in possession. The court held with the plaintiff that the ease did not come under Clause 6 of Section 2 of the act. In the instant case there can be no doubt that the defendant was a vendor in possession. Demand was an essential prerequisite to suit. We are therefore entering an order of reversal.

Judgment reversed.

ROBSON, P. J. and McCORMICK, J., concur.


text:
    People ex rel. J. Roger Pryor, Relator-Appellant, Thaddeus B. Rowe, Petitioner-Appellant, v. Joseph D. Lohman, Sheriff of Cook County; Jack Johnson, Warden of Cook County Jail, Appellees.
    Gen. No. 47,019.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      Moore, Ming & Leighton, by Thaddens B. Rowe, of Chicago (Moore, Ming & Leighton, Thaddens B. Rowe, of Chicago, of connsel) for relator-appellant.
    John Gutlmecht, State’s Attorney of Cook county, of Chicago (Gordon B. Nash, Charles D. Snewind, and William Sylvester White, Assistant State’s Attorneys, of Chicago, of connsel) for respondents-appellees.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Relator appeals from an order quashing’ a writ of habeas corpus and remanding him to the custody of appellees.

The facts are that the relator had been committed pursuant to a judgment entered December 23, 1955, on a verdict containing a special finding that malice was the gist of the action. In January 1956 a capias was ordered from the clerk of the court. Because of subsequent post-trial motions the capias was never placed with the sheriff for service. More than two months elapsed before the post-trial motions were disposed of, and the clerk of the court thereupon suggested that since there was not sufficient time remaining in the life of the capias to obtain service, an alias be issued. (Ninety days is the limit within which all writs must be returned. Ill.Rev. Stat. 1955, Ch. 77, Sec. 8.) The alias writ was issued March 7, 1956. At that time there was deposited with the sheriff funds with which to pay one week’s board in advance. Relator was taken into custody March 22, 1956. A motion to quash was duly filed, and the court ordered the sheriff to produce the body of the relator before the court on March 23, at 10:00 o’clock A.M. On the 23rd the court granted a continuance to March 27 and ordered the relator to remain in the county jail until the further order of the court and that he be remanded to the sheriff to produce him before the court on the 27th. On March 27 the cause was continued to the next day and on the 28th the court entered an order denying the motion to quash. On March 29 the judgment creditor again deposited $3.50 for one week’s board. This habeas corpus proceeding was then commenced and the orders appealed, from were entered.

Appellants contend that the issuance of an alias capias ad satisfaciendum was without authority and was improper. Ch. 110, Sec. 101.4, Ill. Rev. Stat. 1955 (Supreme Court Rule 4) provides as follows:

“(4) Whenever it appears from the return that a writ other than a summons has not been executed, the clerk shall issue successive alias writs on request.”

In the case of In re Petition of Warnke, 207 Ill. App. 459, the court said, p. 461:

“We cannot agree with the contention that there is no warrant for the issuance of an alias writ of capias ad satisfaciendum. Section 4 of the Practice Act (J. & A. Sec. 8541) expressly authorizes the issuance of such an alias writ. (See also Section 64, Ch. 77, Rev. St., J. & A. Sec. 6811).”

We have gone as far back as Tidd’s Practice (1856) Vol. 1, p. 129, where it is said that it was common practice to sue out alias and pluries capiases. There appears to be no basis for appellants’ contention, save some language used in Pfeiffer v. French, 306 Ill. App. 326. There, the debtor was actually jailed on a writ of capias ad satisfaciendum. Thereafter, on a habeas corpus hearing he was discharged. Following this an alias was issued. The issue, according to the first opinion of the court, was whether the debtor was discharged in the habeas corpus proceeding because of some formal nonobservance of procedural requirements, as the statute provided (ch. 65, Sec. 26, Ill. Rev. Stat. 1937). If so, a second or alias writ was proper. To understand that law, we must recall that for a time prior to its passage, habeas corpus had lost some of its halo because of its use to procure the freedom of convicted men on technical grounds, and the legislature passed the law in question to prevent that practice. The court held that the petitioner was discharged because of a formal nonobservance and that he could be imprisoned a second time, thus sustaining the issuance of the alias. The court then granted a rehearing. On the rehearing the majority opinion sustained the discharge of the debtor pursuant to habeas corpus because the judgment order upon which he had been imprisoned did not contain a finding that malice was the gist of the action, and that such a finding was necessary under the then recent ruling of Ingalls v. Raklios, 373 Ill. 404. Judge Burke, in a specially concurring opinion, elaborating on the question of the proper method by which a finding of malice could be. shown and what made malice the gist of the action, said: “I do not know by what authority the Clerk has the right to issue an alias writ of capias ad satisfaciendumHe was there considering, as it clearly appears from the body of his opinion, the issuance of an alias after a debtor had been apprehended under the original capias, which is not the case here at all. The case of Pfeiffer v. French, supra, is not authority for relator’s point. In our opinion, the alias in the instant case was properly issued.

The next point made by appellants is that the payment on March 7, 1956, was made too far in advance ; that it should have been made on the date the relator was committed to jail, and they argue that was at the time the sheriff took him into custody pursuant to the writ. Counsel put it this way to the trial court: When the deputy sheriff took him [the relator] to the sheriff’s office and notified plaintiff’s attorney — “that was the moment to pay the money [board money], not before.” The statute in question provides that:

“. . . it shall be the duty of the creditor ... to pay the keeper of the jail or sheriff his fees for receiving such person, and his board for one week at the time the debtor is committed to jail and before the jailer shall be bound to receive the debtor. . . .” (Ill. Rev. Stat., Ch. 72, Sec. 29, Par. 30).

In Stroheim v. Deimel, 77 Fed. Rep. 802, the Circuit Court of Appeals, 7th Cir. (1897) had occasion to construe the Illinois statute on this question. In that case the creditor had paid two weeks board in advance. An order discharging the debtor was reversed and set aside and in a specially concurring opinion District Judge Bunn said, p. 808:

“I am willing to go as far as anyone in adopting a strict construction in favor of personal liberty, provided, always, that a remnant of propriety and good legal sense attend the decision. This provision of the statute was evidently intended as an indemnity to the jailer for the prisoner’s board while in jail. . . . The circuit court held that a strict compliance with the statute required the board to be paid just a week in advance, and not more; and, because it was paid two weeks in advance, the prisoner was entitled to be discharged. I know of no decision, ancient or modern, English or American, adopting so strict a rule of construction, and a priori would never expect to find one, for it would seem beyond question that payment of the board two weeks or more in advance is not only a substantial, but a literal, compliance with the statute.”

In Pfeiffer v. French, 306 Ill. App. 326, to which we have before referred, while the case was not ultimately decided on that point, the court did have occasion to consider the matter of payment which had been delayed, and said:

“If the phrase ‘commencement of the week’ were to be literally and strictly construed as claimed for, it would begin on Sunday and it would be difficult, if not impossible, to comply with such interpretation of the statute. And more strictly speaking, the ‘week’ would commence at midnight and such narrow construction of the language used would create a situation fraught with many obstacles. . . . We think a common-sense interpretation of this statute is that the payment of the money in advance, within a reasonable time, and the sheriff’s willingness to accept the same, is all that is required by the statute.”

We see no merit in appellants’ contention.

The next point made by relator is that payment on March 29 was improper. That payment, he says, should have been made March 30. The trial court, in an excellent statement of the reasons for his decision, said with respect to this point:

“The relator says that the first week actually started on the 22nd of March because that was the date of his arrest. If that is true . . . then the payment on March 29th was proper because the first week would have elapsed and the second week would have started on that date. If the first week actually started on the 23rd, then the second week began on the 30th; and the defendant contends that the payment then should have been made on the 30th.

“The relator actually contends . . . the first week began on the 22nd, but . . . that the second week began on the 30th. If it did begin on the 29th, then the payment was actually made on the 29th; if it began on the 30th [that being Good Friday, a legal holiday] payment conld not have been made on any other day except upon a date prior or a day after the 30th; and if it were made after, it could be contrary to our statute.”

We see no merit in relator’s argument.

The points we have discussed are highly technical, but we have given them careftil consideration in view of the fact that imprisonment for debt is involved. We have kept in mind, however, that it is for the legislature to decide within what limits and under what circumstances imprisonment for debt should be imposed in a civil action. The legislature having decided, it is not for the courts to circumvent the policy so established by requiring over-meticulous compliance in matters of practice and procedure. Other points raised by the relator are even more technical than those we have discussed. We do not deem it necessary to consider them.

Orders affirmed.

ROBSON, P. J. and McCORMICK, J., concur.


text:
    People ex rel. Heffernan, Appellee, v. Smykal, Acting Commissioner of the Department of Buildings, City of Chicago; Stephen E. Hurley, President; Albert W. Williams and John J. Ahern, Members of and constituting the Civil Service Commission of the City of Chicago; James H. Dillard, Comptroller of the City of Chicago; and David L. Hartigan, Acting Treasurer of the City of Chicago, Appellants.
    Gen. No. 46,868.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      John C. Melaniphy, Corporation Counsel of the City of Chicago, for appellants; Louis Karton, Head of Appeals and Review Division, Sydney R. Drebin, and Robert J. Collins, Assistant Corporation counsel, of Chicago, of counsel.
    Michael R. Ryan, of Chicago (Richard F. McPartlin, Jr., of counsel) for appellee.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Defendants appeal from an order sustaining plaintiff’s (relator’s) motion for judgment on the pleadings and ordering the issuance of a writ of mandamus against defendants, commanding them to reinstate plaintiff immediately to his position as a building inspector in the classified service of the Department of Buildings of the city of Chicago and to be paid his back salary at the rate of $5,382 per year for certain periods set forth in the order.

The first question to be considered is whether the complaint on its face states a cause of action. If it does not, then the motion for judgment should have been denied, and a motion to strike previously filed by defendants and overruled by the court should have been sustained.

Plaintiff passed a civil service examination and on August 6, 1954, was appointed a building inspector. Under the law he was a probationer for a period of six months, with no tenure or other rights of a civil service employee, the law providing that within that six month period only the head of the department could discharge him, upon assigning in writing his reason therefor to the Civil Service Commission and obtaining its consent. Plaintiff’s period of probation expired February 5,1955. On February 2nd he received a letter from the secretary of the Civil Service Commission requesting him to appear before the Commission on February 3. He appeared and was interviewed by Stephen E. Hurley, president of the Commission.

On February 4, 1955, the Acting Commissioner of the Department of Buildings sent a letter to the president of the Civil Service Commission stating that effective February 4 he was terminating plaintiff’s services because the experience rating sheets filed in his civil service examination contained false and misleading information as to education. On the same day a letter was sent by the Commission to the Acting Commissioner stating that an order was entered granting authority for plaintiff’s discharge, and the Records indicate that authority was so granted in the minutes of the Commission of February 4,1955. On February 4th the Acting Commissioner of Buildings wrote plaintiff advising him that his services were terminated February 4th because plaintiff “made false and misleading statements' in your application.” Plaintiff avers that he reported for work on February 7 and then for the first time learned of his discharge. He avers he did not receive the letter of February 4 until February 7.

One who seeks a writ of mandamus must show a clear legal right thereto. This is particularly applicable to a case in which an administrative official is commanded to perform administrative acts. The problem of employment here dealt with affects the management of a civil service- system in which thousands are employed and in which integrity and discipline are important factors. It is the duty of building inspectors to discover and report with truth and accuracy violations of building laws on which the safety and health of millions depend. In this city as many as 2000 inhabitants may be found living in a single building, such as the one involved in Kushner v. Lawton, 351 Ill. App. 422. Examining the complaint in this light, we find it inadequate, inconsistent and equivocal.

The letter from the Commissioner to plaintiff was dated February 1, 1955, and called for a review of plaintiff’s Experience Bating Form. Plaintiff avers that he was interviewed with respect to the number of years he attended high school, but he does not deny and yet does not admit that the representations he made were false. There is a clear inference that they were false, because he asserts that attendance or graduation from high school was not a qualification for eligibility to participate in civil service examinations for building inspectors. Such an averment would be irrelevant if the representations plaintiff had made as to his education were true.

Plaintiff charges that it was the head of the Civil Service Commission who initiated the movement for his discharge, and not the department head; that therefore he was unlawfully discharged because it is only the department head who, with the Commission’s consent, has the power to discharge a probationer. The fact is that the department head wrote the letter of February 4 to the Commission, advising it that he was terminating plaintiff’s services on that date. On the same day a letter was sent from the Commission to the Building Commissioner granting authority for the discharge. Which letter came first and to whom does not appear nor do we think it is of any consequence. Plaintiff asserts that the president of the Civil Service Commission was usurping authority and that he pressured the Building Commissioner into the action taken. These are conclusions on his part. He states no facts to support them. We must assume that the Building Commissioner and the president of the Civil Service Commission knew and understood their legal powers and limitations. Plaintiff appears to think it was wrong for the president of the Civil Service Commission to inquire into the facts relating to • plaintiff’s statements about his education and a usurpation of authority to call the attention of the department head to the fact that these statements were false. We do not so consider it. On the contrary, we think he performed his duty.

In People ex rel. Weichern v. Smykal, 12 Ill.App.2d 398, decided by the First Division of this court, the court had before it a similar suit brought by an employee of the Building Department who was discharged during his probationary period. In that case the court held that a judgment on the pleadings was error and that the trial court should have sustained the motion to strike the complaint. The court cited People ex rel. Jendrick v. Allman, 396 Ill. 35, where the court held •unconstitutional an amendment to the Civil Service Act providing that no person appointed in the classified civil service who was entitled to military preference should he removed or discharged because he misstated his age. The Supreme Court said this statute not only granted immunity for the consequences of a fraudulent act, but rewarded it by reinstating the guilty party to a position obtained fraudulently. This, the court said, is repugnant to the constitutional provision against granting special privileges and immunities to favored classes and to basic morality.

The complaint in the case before us shifts away from the charge that it was the president of the Civil Service Commission who arranged the discharge and takes the position that the consent of the Commission was not obtained. Plaintiff bases this on an argument that there was no meeting of the minds of the Commissioner and Commission because the reason given plaintiff by the Commissioner was that plaintiff had made false and misleading statements in his application, and the reason given to the Civil Service Commission was that plaintiff’s experience rating sheets contained false and misleading information. Therefore, he says, the Commission could not give a proper intelligent and valid consent. Non-sequitur is the description given this kind of conclusion. Plaintiff cites People ex rel. Walker v. O’Connor, 351 Ill. App. 545, to support his position. The facts in the Walker case were substantially different from those in the instant case. There, the letter from the Chief of Police to the Commission stated that the plaintiff had submitted a false report relative to his indictment on the charge of rape. On that basis the Commission granted authority and he was discharged. The fact was that he had not made a false report (presumably the reports made by policemen to their superior officers) but made a false statement in an application. The court said this did not constitute a meeting of the minds and hence was not consent, as the Commission did not consent to the reason. In the instant case the letter sent to the Commission by the head of the department stated as the reason for discharge that “the experience rating sheets filed in the Civil Service examination . . . contained false and misleading information as to education.” This is precisely the fact which, according to the complaint, was first uncovered by the Commission and reported to the department head as the basis for discharge. Hence, there was a meeting of the minds both on the discharge and the reasons therefor. However, the consent required in the statute is only as to the discharge and not as to the reason set forth.

Plaintiff argues that he had completed his probationary period at the time of the discharge. That period ended Saturday, February 5. On Monday, February 7, plaintiff reported for work and signed the time sheets. He argues that having gone to work on February 7 and having signed the time sheets showing two inspections on February 5 he thereby completed his probationary period. Assuming that what plaintiff says is true, that he did not receive notice until February 7 and that on that date he reported for work and signed the time sheets, he cannot by that act be considered to have served out his probationary period and be entitled to have the protection and tenure of the Civil Service Act. Section 10 of the city Civil Service Act (Ill. Rev. Stat. 1955, Ch. 24%, Par. 48) provides that at or before the expiration of the probation period, the head of a department may, by and with the consent of the Civil Service Commissi on, discharge a probationer upon assigning in writing his reasons therefor to the Commission. No provision is made in this Act for notice to the probationer. Plaintiff argues that “in the very nature of things, it is necessary to communicate a discharge to an employee before it can be said to be effective.” Of course, at some time and place the employee stops working. That does not enlighten us on the issue before us. What we are here considering is not an ordinary contract of employment whereby, upon a summary discharge, the employee might be entitled to recover damages for perhaps a month or a year, or if he had - performed work for his employer before receiving’ notice of the discharge, might be entitled to recover on a quantum meruit. What we have before us is the right of this employee to the security and tenure of civil service. Can that be predicated upon his reporting for work and signing the time sheets on February 7th? The probationary period is designed to sift out the employee who is not fit or suited to his employment before he comes within the rigid security of the Civil Service Act, even though he may have passed the examination. In that respect the Act is controlling and provides only that two things need be done: that the department head report the reason for the employee’s discharge to the Civil Service Commission, and that the Commission consent thereto during the period of probation. If these two formal matters have been complied with, the employee’s discharge is effective. There can be no doubt that they were and hence his discharge was effective February 4.

Two cases involving civil service support the position of defendants. Marasco v. Morse, 22 N.Y.S.2d 315, and Dalton v. Darlington, 108 N.Y.S. 626. In the Marasco case the probationary period expired May 15, 1940, but the discharge was made effective as of noon May 16 in order that the employee might perform certain services in connection with the keeping of accounts. The statute provided that “if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service after the end of such term shall be equivalent to permanent appointment, bnt if bis conduct, capacity or fitness be not satisfactory, he may be discharged at tbe end of such term.” Tbe court held tbat tbe retention of tbe employee for an extra half-day did not constitute bis retention in tbe service after tbe end of tbe probationary term. They quoted with approval from Dalton v. Darlington, supra, where mandamus was sought to compel tbe restoration of an employee under a rule which provided tbat a probationer should be notified at tbe end of tbe period of probation if be were not retained. Tbe probationary period expired October 15 but tbe plaintiff did not receive such notice until October 18. A letter was addressed to him on tbe 15th advising him tbat be would not be retained in tbe department after tbe end of bis probationary period. The letter was not delivered to tbe employee because be was performing duties outside of tbe city, and it was not until October 17 tbat he was sent a telegram requiring him to report at tbe office of tbe bureau at once. On October 18 be did report and was advised tbat bis services were no longer required. Tbe court in tbe Dalton case said p. 627, 628:

“In considering this question it must not be overlooked tbat tbe primary purpose of civil service laws and rules is to promote tbe good of tbe public service, and tbat purpose is not to be frustrated by technical or narrow constructions. Tbe purpose of tbe probationary period is to enable tbe appointing officer to determine whether a permanent appointment is desirable. Tbat question is left solely to his judgment, and he has the whole probationary period in which to decide it.”

Plaintiff has cited two cases, neither of which support bis position. Tbe first, In Re Public Ledger, 63 F. Supp. 1008, is a case in which members of a union sued for severance pay. There was no question of civil service tenure, such as is here involved. We see nothing in tbat case which throws any light on tbe question of interpretation of statutes and rules with respect to civil service. The second case is Bodmer v. Police Mutual Aid Assn., 94 Utah 450, 78 P.2d 640 in which a claim for death benefits was involved, and the question was whether or not a letter addressed to an employee was actually received by him. The court held that it was not necessary for a discharge to be effective that it be communicated to the employee and understood or realized by him at the time of the discharge. The court said: “In some cases it might be impossible to do so. He might leave for parts unknown. . . .”

It is urged by plaintiff that his discharge was in violation of Sec. 6, Rule II of the Commission, under which he says he was entitled to a hearing. This section is as follows:

“Section 6. Disqualifications. Proof of false statements made in any application or in any experience rating sheet or other statement given in an examination or of the violation of any statute or of any rule, regulation or instruction of the Commission pertaining to an examination, or of bad character, dissolute habits, immoral conduct, or of dismissal for cause from any public service shall be grounds for excluding an applicant from any examination, or for omission or removal from an eligible register, or for dismissal from the service after certification, provided that any such applicant or eligible or appointee shall be given an opportunity to be heard in his own defense before final action by the Commission, provided, however, that no provision of this Section 6 shall have any application to the discharge during the period of probation provided for in Section 10 of the Civil Service Act of persons appointed to the classified service pursuant to such Section 10.”

The last proviso, explicitly stating that Section 6 should have no application to discharge during probation, was added by amendment on November 19, 1953. The draftsman apparently did not conform the entire section with precision. We must bear in mind that we are dealing with documents prepared by a lay body. The intention is clear beyond cavil — a probationer discharged during the period of probation is not entitled to a hearing.

Plaintiff cites People ex rel. Vestuto v. O’Connor, 351 Ill. App. 539. That case was decided before the adoption of the amendment of November 19, 1953, and hence is not relevant here. To hold that plaintiff was entitled to a hearing would be to negate the purpose of the probationary period. It would give probationers the practical equivalent of civil service tenure. In this case it appears that the Civil Service Commission did give plaintiff an opportunity to explain, but in any event it is not a matter in which courts can exercise jurisdiction.

The judgment is reversed and the cause is remanded with directions to sustain the motion to strike and to dismiss the suit.

Judgment reversed and cause remanded with directions.

ROBSON, P. J. and McCORMICK, J., concur.


text:
    Walter H. Strom, Appellant, v. Mary Elizabeth (Billy) Strom, Appellee.
    Gen. No. 46,880.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      Crowe, Yates, Abrahamson & Fisk, of Chicago, for appellant; Tom L. Yates, and Daniel W. Pecyna, of Chicago, of counsel.
    Cantwell & Cantwell, of Chicago, for appellee and cross-appellant; Robert E. Cantwell, Jr., Yager Cant-well, and Robert E. Cantwell, III, all of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Plaintiff husband appeals from an order allowing attorneys’ fees, master’s fees and costs in the prosecution of a petition filed by defendant wife which resulted in an increase in child support and reimbursement to the wife for certain unusual expenses occurring after the entry of a divorce decree. A cross-appeal was filed by defendant from that portion of the chancellor’s order which, while allowing additional support, denied defendant’s petition for the creation of a fund for the benefit of a minor child who had been stricken with poliomyelitis, from which fund the child could be provided with care and a college education even after attaining her majority. A motion was made by plaintiff to dismiss the cross-appeal on the ground that the order in question was entered by the court December 15, 1953, that it was a final order, and that an appeal should have been taken at that time. The order reserved for hearing the matter of attorneys’ fees prayed for by defendant, which was referred to a master. There was thus left unsettled a substantial part of the case. When this was finally disposed of, plaintiff appealed and brought the entire record before the court, including a transcript of the proceedings with respect to the increase in child support. Piecemeal reviews are not encouraged by the court, and where substantial matters remain to be decided, the order is not final. Simpson v. Simpson, 4 Ill.App.2d 526 (1955); People v. Stony Island Savings Bank, 355 Ill. 401 (1934); Hunter v. Hunter, 100 Ill. 519 (1881). The motion to dismiss the cross-appeal is denied.

The parties to this action were divorced in 1941. At that time custody of the child Barbara, then three years old, was awarded to the defendant wife together with a lump sum property settlement of $135,000 and an award of $80 per month for support and maintenance of the child. In 1953 the defendant wife petitioned the court for an increase in the allowance for the child’s support. This petition also sought reimbursement for moneys borrowed for the benefit of the child and for $5,000 derived from an insurance policy taken out by a third person (the then husband of the defendant wife) insuring the child against polio, and further asked that plaintiff be ordered to pay reasonable amounts to provide the daughter with a four year college education or, in the alternative, to establish a trust fund to safeguard and insure her education in the future. As before stated, the petition also sought attorneys’ fees, expenses and' costs. Both in his answer and in subsequent proceedings plaintiff resisted any increase whatsoever in the allowance to his child. There were numerous continuances, over the objections of defendant’s attorneys. There was controversy over the actual net worth of plaintiff, although his attorney ultimately stipulated for the record that he was worth $950,000.

On December 15, 1953, the chancellor entered an order increasing the child’s support from $80 to $250 per month and reimbursing the defendant wife for some of the extraordinary expenses requested. He denied reimbursement for moneys derived from the insurance policy and denied the prayer of the petition that provision be made for the child’s education beyond the period of her minority on the ground that he had no jurisdiction. The court allowed fees of $5,520 for the attorneys and $1,750 for the master.

The plaintiff husband contends that the court improperly referred the matter of attorneys’ fees to a master and that the fees allowed the attorneys were unreasonable. The record shows no objection made to the court’s reference of the cause to a master at the time such reference was made. As a matter of fact, counsel for defendant wife say they objected to this reference and that the court ignored their objection. In support of this the record shows that at the first hearing before the master, one of the attorneys for the wife said that the matter had been referred to the master over their objection, saying: “We thought he [the court] should be the one to decide and he said no, he didn’t have time, and referred it to the master.” To this statement counsel for the husband did not reply nor did he press his objection to the master’s hearing of the case but proceeded to adduce evidence therein.

It is true, as urged by counsel for plaintiff, that the Divorce Act does not specifically provide for the reference of an issue on attorneys’ fees to a master and that the Supreme Court rules provide that reference to a master shall be the exception, not the rule. It appears to us that where the court, as in the instant case, heard all the evidence on the main issues, a relatively brief hearing on attorneys’ fees lasting but a few hours should have been sufficient to enable the court to decide the appropriate fees to be allowed. However, plaintiff’s failure to object and his proceeding with the case would make it highly inequitable to hold that he can now urge this point. The cases support this conclusion. Freese v. Glos, 248 Ill. 280 (1911); Phillips v. O’Connell, 331 Ill. App. 511 (1947). Bushnell v. Cooper, 289 Ill. 260 (1919), cited by plaintiff, appears to us to support the principle that a partv who participates without objection in a hearing before a master may not, after the master’s findings are made, argue for his benefit that the reference was improper.

Plaintiff husband argues that the award of $5,520 to the wife’s attorneys was excessive. The master found that they had spent a total of 184 hours on the petition, so that the fee would represent an allowance of about $30 an hour. The wife’s attorneys think this is inadequate and argue that they should be allowed $7,500. Certainly, for a matter of this sort the time spent seems excessive, yet an examination of the record reveals that plaintiff deliberately undertook to impose every impediment he could, technical and otherwise, in opposition to the petition on behalf of the child. One of the attorneys for the wife testified that he was informed by plaintiff’s lawyer that this was plaintiff’s policy, and the record amply supports this observation. Under such circumstances we can well understand how lawyers could expend a great amount of time in the prosecution of a suit so bitterly defended. However, the figure referred to includes not only the time spent by the senior counsel but by his two sons, one in practice but a short time, and is larger than we believe reasonable. The fee allowed to the wife’s attorneys should be reduced 20 per cent. This does not include any allowance for the time spent on the question of providing for the child beyond her minority. When upon remandment pursuant to this decision the court hears the matter further, it should make an additional allowance to the wife’s attorneys for the time spent on this phase of the case. We find no basis for the allowance of any fees for the time spent on the petition for fees.

The master’s charge of $1,750 is based on a total time of 102 hours, or $87.50 a day. The Supreme and Appellate Courts of this state frequently have been critical of fees charged by masters and have compared them with the earnings of judges, to whom they are in a sense assistants. Perhaps in this respect courts have overlooked the fact that a master has many expenses a judge does not have, such as office rent, stenographic services, and other charges. Nevertheless, the master’s fee in the instant case is considerably larger than that warranted under the decisions of our courts, and a reduction of 20 per cent is likewise ordered with respect to the master’s fee.

There is further controversy with respect to the chancellor’s denial of costs incurred by defendant in the service of a subpoena duces tecum on the father in order that his true worth might be determined. The court felt that the husband’s admission that he was worth $950,000 was all that was required and that the production of books and records was unnecessary. Under the circumstances we think the trial court ruled correctly. The wealth and substantial ability of the father to provide for his daughter in any manner the court should ultimately find reasonable was adequately established and it would only have been time-consuming to press that phase of the matter further.

We come now to the important question in this case which arises on the cross-appeal of the wife. Is the father of a child stricken with a serious disease during minority completely relieved of obligation for the child’s care and education upon her reaching majority (save such as may be provided by a pauper’s suit in County Court) or may a court of chancery, having taken jurisdiction in a divorce proceeding, proceed to provide for such child’s care and education beyond the period of her minority? Defendant urges that the chancery court has such power and that it should be exercised in a provision for the depositing of funds with the court or other suitable depositary.

The Divorce Act (Ch. 40, Par. 14, Sec. 13, Ill. Rev. Stat. 1955) provides that the court may make an order concerning custody and care of minor children during the pendency of a suit and may award the custody of a minor child to either party, as the child’s interest may require, and then this provision follows:

“. . . and may make such provision for the education and maintenance of the child or children out of the property of either or both of its parents. . . .”

It is to be noted that the word “minor” is not used in qualification of the phrase “child or children” in this last provision. Moreover, in the section relating to permanent alimony and custody and support of children (Ch. 40, Par. 19, Sec. 18, Ill. Rev. Stat. 1955) which is the section applicable to this proceeding, it is provided that the court upon the granting of a divorce

“. . . may make such order touching . . . the care, custody and support of the children ... as shall be fit, reasonable and just.”

The word “minor” nowhere appears.

This provision was first construed in Freestate v. Freestate, 244 Ill. App. 166. There, the Third Division of the Appellate Court, First District, had before it the petition of a mother for sufficient funds to provide for medical aid and support of a child. The child had been an invalid and at the time of the hearing was 23 years old. The court noted, as we have before, that the statute does not specifically refer to children who are minors and also noted that the question of whether such support can be obtained where the children are adults but are invalids and incapable of taking care of themselves had never been passed upon by that court or by the Supreme Court of this state. The court held that if a proper showing were made, the chancellor had authority to require the father to contribute to the support of Ms invalid daughter. The court referred to two cases, Crain v. Mallone, 22 L.R.A. (N.S.) 1165 (Ky.) and Rowell v. Town of Vershire, 62 Vt. 405. The circumstances in both of those cases were quite different from those in Freestate v. Freestate, supra, and in the instant case, but they state the general principle that a parent is obligated to support an adult child incapable of self-support.

■In Rife v. Rife, 272 111. App. 404 (1933) this division of the Appellate Court refused to follow the decision in the Freestate case and held that the chancellor was without jurisdiction to enter a post-decretal order providing for the support and education of a child beyond the attainment of her majority. In the Rife case the child was 20 years old, had been graduated from high school, had attended business school, and was a stenographer, but was frail and unable to secure employment. The defendant was 65 years old, appears to have been in ill health, and had no income except that which he received from Ms own labor. The court followed BoeMer v. Boehler, 125 Wis. 625, holding that the statute “by necessary implication” did not permit provision to be made for a cMld beyond the period of its minority and that the only remedy for an impoverished child was a proceeding in the county court under the pauper statute.

The only Illinois case upon which the court relies in Rife v. Rife, supra, is Kelley v. Kelley, 317 Ill. 104. In the Kelley case the child was not yet one year old at the time the decree was entered and there was no question involved with respect to care and education beyond minority. The court held that the obligation of a father to support Ms minor child is not affected by a decree granting a divorce or by a decree awarding care and custody of the child to the wife or some other suitable person. The court said, p. 110:

“His children are of his blood. It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves.”

We see nothing in the Illinois statutes which supports the conclusion of the court in the Rife case that by “necessary implication” the jurisdiction of a court of chancery to provide for the care and education of a child ends the moment that child attains majority. Where such care and education are necessary to equip the child for adult life and where the financial circumstances of the father are entirely adequate to meet such requirements, equity can and should continue its jurisdiction. The obligation of parents to provide for the education of a child is recognized by the courts of this and other states. Hilliard v. Anderson, 197 Ill. 549 (1902); Esteb v. Esteb, 138 Wash. 174, 244 P. 264 (1926); Underwood v. Underwood, 162 Wash. 209, 298 P. 318 (1931); Titus v. Titus, 311 Mich. 434 (1945); Mapes v. Mapes, 336 Mich. 137 (1953); Stoner v. Weiss, 222 P. 547 (Okla. 1924); Payette v. Payette, 85 N.H. 297, 157 A. 531 (1931); Rawley v. Rawley, 210 P.2d 891 (Cal. App. 1949); Hart v. Hart, 239 Iowa 142, 30 N.W.2d 748 (1948). Esteb v. Esteb, supra, contains the best analysis of this issue. That case involved provision for the education of a daughter 18 years old. The original decree provided for her support until she reached the age of 18, the then legal age of majority, but the law was subsequently changed to make the age of majority 21. Thereupon, a petition to modify the order was filed and the court came to the conclusion that the daughter needed and required education and it extended the order until she became 21. The trial court evidently based this conclusion on the ground that education was a-“necessary.” Upon review, the Supreme Court of Washington laid down this principle:

“Under practically all the authorities, those things are necessary which include shelter, food, clothing, and medical attendance, together with an education. . . . As to the amount of education that should be considered necessary, courts have never laid down a hard and fast rule. [In determining this, the court said it took] into consideration the progress of society, and the attendant requirements upon the citizens of today. . . . That it is the public policy of the state that a college education should be had, if possible, by all its citizens, is made manifest by the fact that the state of Washington maintains so many institutions of higher learning at public expense.”

The court quoted from Schouler on Domestic Relations :

“The second duty of the parent is that of education; a duty which Blackstone pronounces to be far the greatest of all in importance.”

True, in most of the cases we have cited, the court limited its authority to the period of the child’s minority. However, in Hart v. Hart, supra, the Iowa court modified an original decree limiting child support to minority by requiring monthly payments for education until each son had attended college four years, even though that extended beyond the period of minority. In Underwood v. Underwood, supra, the order required the father to pay $1,500 during minority for the education of the child which could be used in a period beyond the child’s minority. More recently, the Supreme Court of Washington said that an order to pay for a college education should be based on the father’s station in life, and that a rich man might be liable for a college education of an extended and expensive type. Golay v. Golay, 35 Wash.2d 122, 210 P.2d 1022 (1949). In Payette v. Payette, supra, the New Hampshire court ordered contributions to be made to the support of a 19 year old son attending college, although the son at the time was able to support himself.

In New York no case on this point appears to have been decided by the highest court of the state. In Halsted v. Halsted, 228 App. Div. 298, 239 N.Y.S. 422 (1930), the court, acting upon a petition for modification of a support allowance for two children who had reached their majority, decided that there was no obligation upon the father “in the absence of a showing of physical or mental disability.” In Cohen v. Cohen, 82 N.Y.S.2d 513, the court held that the prevailing weight of authority now supports the proposition that under proper circumstances a parent could be compelled to provide a college education, citing among others Esteb v. Esteb, supra.

Under a statute authorizing provision in exceptional circumstances for children beyond 17 years of age, the Domestic Delations Court for New York City held that a college education was an “exceptional circumstance” warranting increased support for children over 17 whose parents had enjoyed the benefits of education, travel and high living. Herbert v. Herbert, 98 N.Y.S.2d 846 (1950). The question arose again in Bernstein v. Bernstein, 282 App. Div. 30, 121 N.Y.S.2d 818 (1953). The lower court, on petition for reduction in the support order, had ruled that support payments be suspended while the minor child was regularly employed but that if during minority she entered college, payments should be continued at an increased rate during the time she was a student. The child entered college and the Appellate Division reversed the order on the g-round that no testimony had been taken on the financial ability of both parents. The trend in New York appears to support an order for a college education beyond the period of minority where the parent has substantial means.

Cases which, appear to be contra are Commonwealth v. Wingert, 173 Pa. Super. 613, 98 A.2d 203 (1953) and Morris v. Morris, 171 N.E. 386 (Ind. App. 1930). There also is what appears to us to be dicta to the same effect in Rosenthal v. Rosenthal, 19 N.J. 521, 88 A.2d 655.

Prom the foregoing review of the law we have come to the conclusion that it is the obligation of a parent of ample means to support a child incapable of self-support beyond the period of that child’s minority and that this obligation includes the duty to provide not only care and bare necessities but also a college education, where that appears desirable in order to better equip the child for adult life.

Having come to the conclusion that this is a parent’s obligation, the question ■ that remains is whether a court of equity can require enforcement of that obligation where it has acquired jurisdiction of the child in a suit for divorce, or whether the court must refer the child to a pauper suit in the County Court, as argued by the father’s counsel. We feel that “equity is not so weak of arm or lame of foot.” Prom its earliest origins equity was designed to avoid the rigidity of common-law writs and procedure and to adjust itself to the requirements of justice. One of the fundamental rules is that a court of equity having taken jurisdiction will retain it for all purposes and do complete justice between the parties. Pliley v. Phifer, 1 Ill.App.2d 398, 409; White v. MacQueen, 360 Ill. 236, 246. The Chancery Act (Ill. Rev. Stat. 1955, Ch. 22, Sec. 42) provides that in a chancery proceeding a court may make such decrees as shall be just and may enforce such decrees in various ways therein set forth “. . . by the exercise of such other powers as pertain to courts of chancery, and which may be necessary for the attainment of justice.” Recently, in Cardenas v. Cardenas, 12 Ill.App.2d 497, we held that although there was no statute which made provision therefor, a court of chancery had the power to make a post-decretal order for the care and custody of a child of the parties to an annulment suit, and imposed upon the father the obligation to provide such care and custody. Indeed, there appears to have been no statutory authority for an annulment proceeding, courts of chancery having assumed jurisdiction when social necessity compelled it. The innumerable utterances of chancellors and of courts who have reviewed their decrees regarding the protective and benign policy of equity toward children who come within their jurisdiction and the frequent designation of children as “wards of the court” make the answer to the question under discussion clear.

The chancellor was in error in assuming that he had no jurisdiction to provide for the care and education of the child in this case beyond the period of her minority. He should rehear the matter and determine what care and education is suitable and necessary to equip her for adult life, even though that care and education extend beyond the period of her minority, and should require the father to make adequate provision therefor. In so doing he should take into consideration the large means of the father and the incapacity suffered by the daughter as a result of her illness. He should further take into account the fact that a large portion of the funds used to defray the cost of her illness, $5,000, was derived from an insurance policy taken out and paid for by a third person. That payment may not be the basis for a legal claim on' the part of the mother or the third person but it constitutes an equity which the court can well consider in determining the father’s further obligation with respect to his child.

The order of December 15, 1953 should be modified to include provisions for the care and education of the child as hereinbefore stated. The order of July 22, 1955, allowing master’s fees and attorneys’ fees, should he modified by a reduction of 20 per cent thereof. The cause is remanded with directions to take such further proceedings as are consistent with the views herein expressed.

Orders affirmed in part, reversed in part, and cause remanded with directions.

ROBSON, P. J. and McCORMICK, J., concur.


author: PRESIDING JUSTICE FEINBERG

text:
    Poray, Inc., Appellee, v. Crescent Industries, Inc., Appellant.
    Gen. No. 46,908.
    First District, Third Division.
    April 17, 1957.
    Released for publication May 8, 1957.

      Sch.api.ro and Schiff, of Chicago (Robert F. Fuchs, of Chicago, of counsel) for appellant.
    Kelly and Cohler, of Chicago (James J. Kelly, and J. Robert Cohler, of Chicago, of counsel) for appellee.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

In this action plaintiff sought to recover a balance claimed due for goods sold and delivered to defendant. The defense to the action is accord and satisfaction. There was a hearing without a jury, and upon a stipulation of facts the court entered judgment for plaintiff in the sum of $9,577.37, from which judgment defendant appeals.

It appears from the stipulation of- facts that on February 24, 1954, defendant filed its petition in bankruptcy for reorganization under the provisions of Chapter X of the Bankruptcy Act. Plaintiff received notice and filed its proof of claim in said proceeding. On March 1, 1954, a meeting of defendant’s creditors was held. Plaintiff had notice and attended said meeting but took no part therein. At that meeting a creditors’ committee was selected from those in attendance, representing 92 of defendant’s creditors and representing approximately 83 per cent of defendant’s liabilities. On March 9,. 1954, the United States District Court in said bankruptcy proceeding designated and appointed a creditors’ committee of nine to represent the unsecured creditors. Neither plaintiff nor its representative was appointed or acted on said committee or on the one elected by the creditors at their meeting.

On May 3, 1954, defendant, by leave of court, filed a written proposal of settlement with its creditors, classified as secured and unsecured. Plaintiff was given notice of the petition.

On June 22, 1954, defendant filed in said proceeding a new plan of. settlement proposed by the creditors’ committee and a petition to dismiss said proceeding upon the approval of the plan of settlement. By the new plan of settlement, plaintiff, as well as other creditors, was to receive 100 per cent payment of its claim within a period of four and one-third years. The plan of settlement, as applying to the unsecured creditors, was to pay 15 per cent cash and the balance of 85 per cent in four equal annual installments, the first payment due on January 15,1956, and was to be evidenced by defendant’s promissory note, and check for the cash payment.

On June 22, 1954, the United States District Court set for hearing said petition to dismiss the proceeding and provided for notice to all creditors. Plaintiff received notice of the order. On July 2,1954, defendant’s petition to dismiss again came on for hearing and was continued to July 13, and of this plaintiff had notice. On July 13, 1954, a hearing was held upon the petition to dismiss said proceeding. Plaintiff was present in court, as were all the other creditors. When the court inquired if there were any objections to the dismissal of the proceeding, neither plaintiff nor the other creditors made known any objection. While plaintiff never expressly consented orally, or in writing, to the new plan of settlement, there was no objection by plaintiff filed or noted upon the hearing. An order was entered dismissing the bankruptcy proceeding.

On September 11,1954, a check was given to plaintiff for the 15 per cent cash payment called for by the plan, as well as defendant’s installment note for the balance of 85 per cent of plaintiff’s claim. On September 19, 1954, which was after defendant had mailed checks and notes to all the other creditors, plaintiff for the first time notified defendant by telephone that it had not consented to the plan of settlement and would not accept said check and note, but did not return them to defendant. Several times thereafter plaintiff notified defendant of its demand for full payment of its claim, and on March 16, 1955, plaintiff wrote defendant a letter, enclosing a statement of the account in the amount of its original claim filed in the bankruptcy proceeding. Not until June 29, 1955, after several conferences and negotiations for adjustment of their differences had failed, did plaintiff for the first time tender back to defendant the check and note in question.

The order of the District Court dismissing the bankruptcy proceeding recited, among other things, that the court, “deeming it to be to the best interests of the creditors and the debtor that this proceeding be dismissed, and no objections appearing, It Is Hereby Ordered that this entire proceeding be and it hereby is dismissed, such dismissal to be effective forthwith.”

On July 12, 1955, defendant wrote plaintiff a letter, acknowledging the receipt of the registered letter from plaintiff’s attorney, together with the note and check in question. The letter stated that defendant had repeatedly taken the position “that the retention by you of said check and note constituted an acceptance thereof by you,” and that defendant would not pay, except in accordance with the plan of payment in the bankruptcy proceeding.

To sustain the judgment, plaintiff argues that a promise by a creditor of a liquidated claim to accept less, or the acceptance of less than the amount due from the debtor, does not constitute accord and satisfaction, since it lacks consideration. As an abstract proposition of law this is sustained by many decisions in this state, but the doctrine is not without exception and, as we shall point out, does not apply to a failing debtor when the creditor knows the debtor is in failing circumstances or has substantial reason for believing so. The petition in bankruptcy and its subsequent proceedings clearly establish that defendant was in failing circumstances, unable to pay its debts as they matured. Plaintiff had full knowledge of the proceedings and attended the hearings. Particularly is it important to note that plaintiff attended the hearing upon defendant’s petition to dismiss the proceedings upon the basis that the plan of payment proposed was accepted by the creditors. The court called for objections while plaintiff was in court attending the hearing, and hearing none the court so recited in its order and dismissed the proceeding.

When the court called for objections with plaintiff present, it was the duty of plaintiff to speak, if it had any objection. Implicit in plaintiff’s silence was its accord to the offer of settlement. Its retention of the check and note in question, over the long period of time indicated, constitutes an acceptance resulting in accord and satisfaction.

Conceivably, had plaintiff voiced its objection to the plan of payment when the court called for objections, a different result might have obtained, and the proceeding would not have been dismissed. The defendant would have had the protection of the bankruptcy court against any effort of plaintiff to force payment in full in cash, instead of part payment in cash and the balance in installments over a period of four years. Notwithstanding plaintiff orally notified defendant it would not accept the plan of payment, it retained the check and the note for over nine and one-half months before finally returning them to defendant. Under such circumstances the law seems clear that the retention of the note and check constitutes accord and satisfaction of the original account. Plaintiff must look to the note and check for payment.

■In Seidman v. Chicago Eye Shield Co., 267 111. App. 77 (cert, denied), and cases there cited, it was held:

“If the proposed settlement and the payment of the account tendered is not satisfactory to him, it is the creditor’s duty immediately to repudiate the offer and return the check.”

Lapp v. Smith, 183 Ill. 179, holds that where a check and note are tendered in settlement of the differences between the parties, and the party receiving them makes known that such arrangement was not satisfactory, it is the duty of the party receiving them to accept the proposition as an entirety or reject it in toto.

In Canton Union Coal Co. v. Parlin, 215 Ill. 244, it was held:

“The creditor has no alternative except to accept what is offered with the condition upon which it is offered, or to refuse it; and if he accepts the acceptance includes the condition, notwithstanding any protest he may make to the contrary.

U

“If the plaintiff was not willing to accept the check as sent, in full of the account and acknowledge the receipt of it as requested, it ought to have returned it. The rule that required it to do so is neither harsh nor unjust . . .”

To the same effect are Day-Luellwitz Lumber Co. v. Serrell, 177 Ill. App. 30, and Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61. As early as Curtiss v. Martin, 20 Ill. 557, it was said:

“. . . if the smaller sum be taken . . . from a debtor in failing circumstances, in full discharge of the debt, no reason is perceived why it should not be binding on the parties.”

In Herman v. Schlesinger, 90 N. W. 460 (Wis.), it was stated:

“The rigorous rule of the common law, permitting a person to receive part of an undisputed, presently due indebtedness, pretending to accept the same in satisfaction of the whole indebtedness, the debtor parting with the amount paid with that understanding, and then change front and sue for the balance of such indebtedness on the ground that the release thereof was void for want of consideration, is so little favored by courts that it is commonly held not to apply where anything, whether of advantage to the creditor or disadvantage to the debtor, can be reasonably said to stand for that part of the indebtedness not measured by an equivalent in money actually paid to the creditor.”

Also, in Winter v. Meier, 151 Ill. App. 572, it was stated:

“A settlement made in view of the insolvency of the debtor is a consideration of sufficient value to bind the parties to the settlement made and work an accord and satisfaction between them.”

So in Kuhn v. Kuhn, 171 Ill. App. 298, it was held that foregoing the advantages of the bankruptcy act as well as payment of the lesser amount being provided by persons other than the debtor were sufficient consideration to discharge the debt by payment of the smaller sum. The record also discloses that when the first installment under the plan of payment was due, defendant tendered the payment to plaintiff, which plaintiff refused to accept.

Plaintiff contends that at the time it received the note and check from defendant, defendant was solvent, as shown by the stipulation of facts, paragraph 16 thereof, which reads: “After July 13, 1954 defendant was solvent,” and therefore the cases cited involving a failing debtor do not apply. There is no merit in this contention, since the bankruptcy proceedings were predicated upon defendant’s inability to pay its debts as they matured, which constitutes insolvency within the meaning of the bankruptcy act. The record discloses that only when all the other creditors agreed to forbear the indebtedness due them from the debtor and only when defendant was able to obtain financial assistance from outside sources, by encumbering its assets, could it meet the required cash payment to the creditors in accordance with the proposal of settlement in the bankruptcy proceeding.

The issuance of the check and note by the debtor in extinguishment of its pre-existing obligation to plaintiff must therefore be tied in with the bankruptcy proceeding and the order of the District Court approving the proposed settlement. The doctrine of accord and satisfaction must therefore be considered in the light of the entire transaction, which was the basis for the issuance of the check and note, and not limited to the condition of defendant with respect to solvency as of the moment when plaintiff received the check and note. Clearly, without the mortgaging of the debtor’s property, as provided in the proposal of settlement, to obtain the necessary financing, defendant would not have been able to meet its obligations past due, on or after July 13, 1954.

The judgment is reversed and the cause remanded with directions to enter an order directing defendant to tender to plaintiff, within a short day to be fixed by the court, a check for the amount of the check previously tendered and to re-tender the note in question, together with the first installment payment, past due, and upon the failure of defendant to comply with said order that judgment be entered for plaintiff for the full amount of its claim with interest, and upon the acceptance of said tender by plaintiff or upon the refusal of plaintiff to accept said tender herein directed, judgment be entered for defendant.

Reversed and remanded with directions.

KILEY, J., concurs.

LEWE, J., took no part.