text:
    People of the State of Illinois, Plaintiff-Appellee, v. Guadalupe Ruel, Defendant-Appellant.
    Gen. No. 69-101.
    Second District.
    March 19, 1970.

      Roy S. Lasswell, Lasswell and Sodergren, of Geneva, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

A jury found the defendant, Guadalupe Ruel, guilty of the murder of Raymond Wilson, an auxiliary police officer of the West Chicago Police Department. The court sentenced the defendant to from thirty-five to seventy-five years in the penitentiary.

He now appeals to this court claiming that the trial court erred: (1), in refusing his instruction on involuntary manslaughter; (2), in limiting his testimony on his own behalf, which would have informed the jury of the background of his life and his experiences, which assertedly had a material bearing on his state of mind just prior to the alleged offense; and (3), in holding that the evidence was sufficient to prove him guilty beyond a reasonable doubt.

On July 25, 1965, the defendant was attending a fund-raising carnival, sponsored by the West Chicago Fire Department, at Reed Park. Beer was being sold at the carnival, and on July 22, the first day of the carnival, the defendant, then a minor, when seen drinking beer, was asked to leave the park by Officer Wilson. Again on July 25, the defendant, and several companions, were asked to leave the carnival grounds because of a similar occurrence. No arrests were made on either of these occasions.

On the night of July 25, when requested by Officer Wilson to leave the carnival grounds, the defendant did so for a brief time only and then returned to an area of the carnival where a dance was being held. Subsequently, a conversation ensued between the defendant and Wilson regarding the defendant’s failure to leave the grounds; at this time the defendant was not drinking. After this colloquy, the defendant and Wilson separated. At approximately 11:20 p. m., Arthur Grumpier, a plainclothes detective of the West Chicago Police Department, who was on duty at the carnival, talked with Wilson and assisted him in locating the defendant. Wilson then escorted the defendant away from the crowd and both Grumpier and Wilson asked him why he had not departed from the grounds as requested.

At this point, there is great disparity in the testimony of the material witnesses, but it is clear that Wilson began leading the defendant further away from the crowd; that they stopped; and that the defendant contends that Wilson then struck him and tore buttons off of his shirt. Grumpier testified that he did not see the altercation start in that he had turned back toward the crowd upon hearing noises; and that when he turned around, the defendant and Wilson were struggling.

Dennis Marvin, who had been with the defendant earlier in the evening, and who was present in the vicinity, ran out from the crowd and jumped on Wilson, forcing him to his knees. The defendant then drew the gun from Wilson’s holster and began to retreat; Wilson rushed toward him in an apparent effort to retrieve his gun or subdue the defendant and the shooting began — both the defendant and Grumpier discharged their weapons numerous times. The testimony of various witnesses is contradictory with reference to how many shots were fired and who fired first.

In essence, the People’s position is that while the defendant was retreating with Wilson’s gun in hand, that Wilson rushed toward him and that the defendant deliberately fired at and hit him with the first shot which he fired. Essentially, the defendant’s position is that as he was retreating with the gun in hand, Grumpier fired on him; that he returned the fire and that while so doing, Wilson was accidently struck by the fatal shot.

Under either theory of the case, we think there was no error in refusing the defendant’s instruction on involuntary manslaughter. Ill Rev Stats 1965, c 38, par 9-3, provides in part: “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Emphasis ours.)

In this case, a careful examination of all of the testimony indicates at most, that the jury could have reached three possible conclusions: the defendant was guilty of murder; or, of voluntary manslaughter, having acted under intense passion or provocation; or, that he was engaged in the use of justifiable force in the defense of his person, having been fired upon by Grumpier, and, therefore, he was guilty of no crime. See: Committee Comments, SHA c 38, § 7-7, pp 282,283.

There is no testimony whatsoever in the record to substantiate that the defendant was guilty of an act or acts, performed recklessly, which caused Wilson’s death. At the time in question, the testimony on behalf of the People indicated that the defendant was shooting at somebody; namely, Wilson; and that the defendant did not just recklessly fire the gun at an undetermined object. The act or acts which caused Wilson’s death were, under the evidence, either intentional or accidental. If intentional, the defense of self-defense, on the part of the defendant, is not consistent with death by involuntary manslaughter; and if accidental, the defense of accident, likewise is inconsistent therewith. The jury was fully instructed on murder, voluntary manslaughter, and self-defense. Under these circumstances, an instruction on involuntary manslaughter would have been improper. People v. Dockery, 72 Ill App2d 345, 360, 219 NE 2d 687 (1966).

We next consider the contention that the court erred in limiting the defendant’s testimony on his own behalf as to the background of his life and his experiences, which allegedly had a material bearing on his state of mind. We believe that the trial court’s refusal to admit this testimony was correct. Testimony as to the defendant’s prior acquaintance with Wilson properly appears in the record in that such testimony is admissible under the general principle that the conduct of an accused on other occasions is relevant where such conduct tends to throw light on his motive in doing the act complained of. 14A ILP, Criminal Law, § 266.

We find no relevance, however, as to the defendant’s dealings with, and impressions of, other law enforcement officers, since the relationships with others not involved in this action cannot be an issue in this case. Generally, the test of admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put in evidence which tend to make the proposition at issue either more or less probable. The People v. Galloway, 28 Ill2d 355, 360, 192 NE2d 370 (1963).

Clearly, prior encounters with the victim may be relevant where one asserts a defense of self-defense. However, to permit testimony of prior encounters with other officers not involved in the incident in question, would open the door to irrelevant, collateral and unconnected matters. Such evidence would not be helpful, and could only serve to confuse a jury. The evidence must be confined to the matters in issue under the general rule of relevancy. 14A ILP, Criminal Law, § 261.

In contending that he was not proven guilty beyond a reasonable doubt, the defendant argues that the People failed to prove express malice in the commission of the crime. Under our statute, however, actual malice need not be proven, and here the jury could reasonably believe that the defendant killed Wilson without lawful justification by an act which he knew created a strong probability of Wilson’s death or of great bodily harm to him. See: Committee Comments, SHA c 38, § 9-1 (a) (2), pp392-401.

Furthermore, it is well established that it is within the province of the jury to weigh the evidence, determine the credibility of witnesses, and the guilt or innocence of the accused; and where such evidence is in conflict, the reviewing court will not substitute its judgment for that of the jury, where evidence offered by the People, is sufficient, if believed by the jury, to establish the guilt of the accused beyond a reasonable doubt. The People v. Goodpaster, 35 Ill2d 478, 480, 221 NE2d 251 (1966), cert denied, 386 US 967 (1966).

From a careful examination of the testimony in this case, we cannot say that it is so improbable, unreasonable, or unsatisfactory as to justify our entertainment of a reasonable doubt of the defendant’s guilt and our interference with the verdict of the jury. Therefore, we affirm the judgment of the trial court.

Judgment affirmed.

ABBAHAMSON and SE1DENFELD, JJ., concur.


source: Caselaw Access Project

author: RYAN, J.

license: Public Domain

text:
    Donald C. and Frances Bigham, David D. and Margaret A. Gottwalt, Leo A. and Hilda Keller, Warner K. and Wilma K. Albrecht, Mary A. and Thomas M. Flanagan, Harlan M. and Angeline Wiss, Helen Whitebook, George L. and Jeav Everhart, Don and Mabel Glancey, J. Paul and Mary J. Van Hoorebeke, and S. S. D. Corporation, Plaintiffs-Appellants, v. The City of Rock Island, Illinois, a Municipal Corporation, and James F. Nelson, Defendant-Appellee.
    Gen. No. 69-39.
    Third District.
    March 23, 1970.

      Sidney S. Deutsch, of Rock Island, for appellant.
    Marvin Andich, Dorothea O’Dean, and Bernard Gill-man, of Rock Island, for appellee.
   RYAN, J.

Plaintiff in this case challenges the validity of a certain zoning ordinance of the City of Rock Island changing the classification of a certain area from R-2 to R-5, the latter classification increasing the use density of the property. Plaintiff raised several points of objection at the trial level. The case was heard before the Court without a jury. Following a judgment in favor of the City, plaintiff took this appeal and presents a single issue for review. Plaintiff contends that the ordinance rezoning the property was not properly enacted.

The matter first came before the City Council at its meeting of December 18, 1967, when the Council was advised that the Planning Commission recommended approval of the proposed rezoning. Upon motion made, seconded and carried, the matter was referred to the Committee-of-the-whole for further study.

At the January 8, 1968 meeting of the Council, the Council was again advised of the report of the Planning Commission recommending approval of the requested change in rezoning and a motion at that time was made, seconded and passed for the purpose of referring this requested change to the City Attorney for the purpose of preparing an Ordinance.

At the January 15, 1968 meeting of the City Council, the special rezoning ordinance was adopted unanimously. The “yea” and “nay” votes were recorded by the City Clerk in a bound book kept for this purpose. This is a separate book from the book in which the minutes of the meeting are kept.

Plaintiff’s contention that the ordinance is invalid is based on three points.

The first point raised by the plaintiff is that the Committee-of-the-whole meeting was not a public meeting and was held in violation of the statute. (Ill Rev Stats 1967, c 102, § 41 et seq.) Plaintiff contends that such proceedings violate the public policy of the state and that the statute is, therefore, void. The plaintiff has offered no evidence that any action concerning the ordinance in question was taken at any Committee-of-the-whole meeting. In the case of Goldman v. Summer, 64 Ill App2d 277, 212 NE2d 132, there was evidence which showed that the Board of Education at an “executive conference” authorized its attorney to proceed with condemnation proceedings. The court in that case held that the authority conferred in this manner was invalid. There is no such evidence in the case now before this court. The ordinance here considered was validly enacted by the city council at a regular meeting of the city council held on January 15, 1968. The evidence indicates that all action taken concerning this ordinance was taken at meetings of the city council which were duly and lawfully held.

The plaintiff has also raised a question concerning the failure of the city council to comply with the public notice section of the statute. (Ill Rev Stats 1967, c 102, § 42.02.) The public notice requirement was enacted into law in July of 1967. This notice enactment provided that written public notice of meetings may be given at the beginning of the calendar year or the fiscal year of the city. The evidence is that the first fiscal year of the City of Rock Island after this notice statute became effective, did not begin until April 1, 1968. Under the statute, the City had the option of giving this notice either at the beginning of the calendar year or at the beginning of its fiscal year. Since the commencement of the fiscal year after the effective date of the statute had not occurred prior to the passage of the ordinance in question, it cannot be said that the City was acting contrary to statute or that the notice requirement was operative at this period of time so far as this matter is concerned. The action taken with regard to the ordinance was at the regular meetings of the City Council which were clearly public and notice of which had been posted.

Plaintiff’s third and final objection that the “yeas” and “nays” were not recorded in the journal, as required by the section of the Municipal Code previously cited, is without merit. There is no requirement in law that a single book called a journal be kept. Both the letter and spirit of the law are observed if a permanent public record is maintained in some reasonable form. This point has previously been passed on and well explained by our Supreme Court in the case of People v. Strohm, 285 Ill 580, 121 NE 223, where it stated at page 585:

"... a city council or village board is required to keep a journal of its proceedings. No form of such journal is specified, neither is it set out what such journal shall contain, nor whether it be in one or more books kept for that purpose. In this case it appeared that the village clerk kept a minute book and a book styled an ordinance record. The replications disclose no such violation of this section of the act as to render void the journal of proceedings of the village board. . . . The ordinance was passed in a manner substantially complying with the statute and was therefore legally passed.”

In this court the plaintiffs contend that the record discloses that a “yea” and “nay” vote was recorded on a motion to consider the zoning ordinance, but that the record does not disclose that such a vote was recorded as to the vote on a motion to adopt the ordinance. Plaintiffs’ exhibit No. 1 is a copy of the minutes of the meeting of the City Council held on January 15, 1968. This exhibit reflects that both a motion to consider the ordinance and a motion to adopt the ordinance were made, seconded and unanimously adopted on roll call vote but the minute book does not reflect the “yea” and “nay” vote of each councilman on these motions. The City Clerk testified that these votes were recorded in a separate book as above stated. This book was apparently in court and referred to by the City Clerk during his testimony. On cross-examination he testified as to what this book revealed as to how each councilman voted on the motion to consider the ordinance. He was not interrogated on either direct or cross-examination as to what this book revealed as to the vote of each councilman on the motion to adopt the ordinance, neither this book nor an extract therefrom was introduced into evidence.

Plaintiffs rely on the Village of Bourbonnais v. Herbert, 86 Ill App2d 367, 229 NE2d 574, wherein this court held that the statute required that the names of those voting “yea” and the names of those voting “nay” be recorded in the journal. It was not enough to record the number of those voting in favor or against the ordinance. We do not consider the Village of Bourbonnais case to support plaintiffs’ position herein. In that case at page 370 we stated:

“A municipal ordinance ordinarily is regarded as presumptively valid and the burden is upon the one assailing it to overcome that presumption.”

We further held that this presumption of validity can be overcome by contrary evidence. In the Bourbonnais case the contrary evidence consisted of the minutes of the meeting at which the ordinance in question was purportedly adopted. Those minutes reflected that each individual trustee’s vote on the motion to adopt the ordinance was not recorded as required by statute.

It does not appear from the Complaint as contained in the abstract of record filed herein that the invalidity of the ordinance based on the failure to record the “yea” and “nay” vote on the motion to adopt the same was raised in the trial court. The trial judge’s memo of his decision in this case as presented in the defendants’ brief indicates that the only question relating to the recording of the “yea” and “nay” vote raised in the trial court concerned itself with the validity of maintaining a record of such vote in a separate book from the book in which the minutes of the meetings are recorded.

Plaintiffs did not present any evidence to the trial court that the vote on the motion to adopt the ordinance was not properly recorded. The book in which the votes were recorded was in court and the city clerk was examined and cross-examined concerning the contents thereof. Plaintiffs did not see fit to question the witness as to what the book in which the votes were recorded disclosed as to the recorded vote on the motion to adopt the ordinance. We, therefore, conclude that the plaintiffs have failed to sustain the burden of overcoming the presumption of the validity of the ordinance in question.

The decision of the trial court in favor of the defendant, City of Rock Island, should be and the same is hereby affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Raymond Spiotta, Plaintiff-Appellee, v. William W. Hamilton and Eagle Food Centers, Inc., Defendants-Appellants.
    Gen. No. 69-118.
    Second District.
    March 23, 1970.

      Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, for appellants.
    Rathje, Woodward, Dyer and Burt, Peter A. Zamis, of Wheaton, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Raymond Spiotta recovered a judgment for personal injuries, based on a jury verdict, against William W. Hamilton and his employer, Eagle Food Centers, Inc., defendants, in an action arising from an intersectional collision.

On appeal defendants urge that the verdict and a special finding that plaintiff was free of contributory negligence are against the manifest weight of the evidence, and that the court should have directed a verdict finding plaintiff guilty of contributory negligence as a matter of law. The defendants, additionally, claim prejudicial trial errors precluded a fair trial, including the giving and refusing of certain instructions and rulings on objections to closing argument of plaintiff’s counsel.

The action occurred approximately 3:30 p. m. on Saturday, December 10th, 1966. The day was overcast with sporadic snow flurries. The intersection was regulated by traffic lights, but at the time of the occurrence, the lights were inoperative as a result of a mechanical failure.

Hamilton, operating a vehicle owned by Eagle Food Centers, was traveling in an eastbound direction on Route 56 as he approached its intersection with the Wheaton-Naperville Road in a rural area. Spiotta was traveling northbound on the Wheaton-Naperville Road. Both were two-lane highways.

Spiotta testified he was familiar with the intersection, and when he was about two-tenths of a mile from the intersection he noticed that the stop-and-go lights were inoperative. He began to slow his car and when he was about 200 feet south of Route 56, approaching 30 to 35 miles per hour, he activated his left turn signal, intending to turn left, which would take him westbound on Route 56. There was a northbound car ahead of him, not yet to the intersection. He stopped some distance from the intersection behind the other northbound car and saw southbound and westbound cars stopped at the intersection. He first noticed the defendant Hamilton’s car when it was about 500 feet to the west, moving 50 to 55 miles per hour. When he saw the northbound car ahead of him move out, he moved up to the intersection and stopped again. He observed other vehicles southbound and westbound which came up to the intersection and took turns proceeding from a dead stop. Other southbound and westbound vehicles were also coming up and stopping behind these cars and halting.

Plaintiff testified that he then looked to the west and saw Hamilton’s car for the second time, at which time the car was about 200 feet from the intersection and “slowing up quite rapidly.” He estimated Hamilton’s speed at that time to be 30 to 35 miles per hour. He then glanced to the north to check the southbound traffic, looked to the east to check the westbound traffic, and slowly entered the intersection. He did not see Hamilton’s car again prior to the impact, but estimated that Hamilton’s car was about 100 feet from the intersection when he entered, relying on his judgment.

At impact he was. in the first gear, going about 3 miles per hour. He heard the sound of a brake, which first called his attention to the occurrence of a collision, and immediately glimpsed a part of the Hamilton car in contact with his vehicle. When his car was struck, plaintiff had traveled 20 feet or almost to the center line of Route 56. He did not honk his horn or swerve prior to impact. There were no obstructions to plaintiff’s view of the Hamilton car. He did not see any other cars moving at or near the intersection when he started his turn. When he started into the intersection he did not see that Hamilton’s car was stopped.

Defendant Hamilton testified that when he was about one-half mile from the intersection he was traveling 50 to 55 miles per hour. There were no other eastbound vehicles between defendant and the intersection. Route 56 is a straight road for a distance of one-half mile west of the intersection, with a slight downhill grade. When he attained this point, he was able to get a clear view of the intersection, to observe the existence of traffic control lights and also to observe an accumulation of cars at the intersection. He observed a northbound car approach the intersection, come to a stop, and then turn or go north through the intersection. At the time that car went through the intersection, defendant was about a quarter of a mile from the scene. He reduced his speed from 50 to 55 miles per hour down to 30 to 35 miles per hour by taking his foot off the accelerator.

As he approached within one block from the scene he saw a westbound car turn right, and at that same distance from the intersection observed plaintiff Spiotta’s vehicle slowly come to a stop. Defendant’s speed was 30 to 35 miles per hour at this time; he never decreased his speed any further until the time he reached the western part of the intersection at which point he slammed on his brakes just prior to the collision.

Defendant further testified that plaintiff’s vehicle was about 8 feet south of the edge of Route 56 when it came to a full stop. When Hamilton arrived at the western part of the intersection still traveling 30 to 35 miles per hour, he saw the plaintiff start to pull out. He was about 20 feet from the plaintiff’s vehicle at this time. The accident occurred in the southeast quadrant of the intersection.

Hamilton stated that he had a conversation with the plaintiff after the accident and that Spiotta asked the whereabouts of the “other guy” who was in the accident; that he identified himself and that Spiotta said, “Well, where the hell did you come from?” (But the plaintiff recalled no conversation with the defendant.) Hamilton further testified that he observed his skid marks and pointed them out to trooper Allen. (But Allen who testified, did not have a notation of the skid marks listed on his report and had no independent recollection.) The defendant stated that he did not sound his horn prior to the accident.

Defendants argue that the undisputed testimony of plaintiff that he did not look to his left after seeing the defendant Hamilton 200 feet away moving 30 to 35 miles per hour amounts to contributory negligence as a matter of law.

Defendants cite Sharp v. Brown, 343 Ill App 23, 98 NE2d 122 (1951) and Kirchoff v. Van Scoy, 301 Ill App 366, 22 NE2d 966 (1939). Both cases are authority for the proposition that a driver of the vehicle approaching the intersection from the right cannot, as a matter of law, proceed upon the conclusive presumption that a vehicle approaching from his left will yield the right-of-way, but these cases are not applicable on thier facts.

Here the plaintiff did not proceed into the intersection without looking at any time in reliance on a preferential right-of-way. After looking, whether it was reasonable for the plaintiff to assume that Hamilton would stop his slowing vehicle at the intersection was properly a question for the jury. While defendants argue that it was contributory negligence as a matter of law for plaintiff not to look a second or third time before entering the intersection, this, also, was a question for the jury. See Neurohr v. Richmond, 78 Ill App2d 467, 472, 222 NE2d 808 (1967); Quigley v. Crawford, 19 Ill App2d 454, 458, 153 NE2d 867 (1958); Bennett v. Boyer, 111 Ill App2d 426, 429, 250 NE2d 316 (1969).

Defendants claim error in the giving of a “right-of-way” instruction under the circumstances of the case. (IPI 70.02, 60.01.) The instruction is properly used only when motor vehicles approach an unprotected intersection. Under the particular circumstances of this case, however, we believe that this was such an intersection, at the time of the accident. While the exact question does not seem to have been decided in this state, it would appear on reason that a right-of-way instruction is properly applied to the intersection of two nonpreferential roads, both when signals are nonexistent or temporarily out of operation. This has been the holding in several other jurisdictions. See Montalbano v. Hall (La), 108 So2d 16, 19 (1958) and Coshun v. Mauseau, 62 Ohio App 249, 23 NE2d 656, 657 (1939). Vierke v. Sunset Valley Creamery Co., 58 Ill App2d 323, 329, 208 NE2d 305 (1965), cited by defendants does not represent a contrary view, in our opinion. There one of the roads was a preferential road and the stop sign for the crossing stop street was temporarily down. The plaintiff knew that it was down and, in fact stopped, so that it could not be said that an unprotected crossing was actually involved.

The Court did not err in refusing to give an instruction with reference to plaintiff’s testimony having been impeached. The plaintiff had testified that at the moment of the impact he had “heard something.” Plaintiff did not deny hearing the brake and it was not impeaching material to quote from a deposition that the plaintiff did hear the sound of the brake. The plaintiff also did not recall a conversation with the defendant after the accident. He did not deny a statement and the fact that the defendant Hamilton testified to a statement was not the kind of impeachment which would warrant the instruction.

Nor was it error for the court to instruct the jury that Hamilton was an agent of the defendant Eagle Food Centers, Inc. as a matter of law. The testimony was undisputed that Hamilton would leave his home, go to his various stops, merchandise, sell and display Eagle Food Company bread and then return to his home without going to a home office to report. And he was driving a car that was given to him by the corporate defendant. The evidence raised no question of fact for the jury to decide on the question of agency. See Urban v. Industrial Commission, 34 Ill2d 159, 161-4, 214 NE2d 737 (1966).

We have also examined the closing arguments and have found no prejudicial error in the court’s rulings thereon.

We find that there was substantial evidence to support the general verdict and the special finding in favor of the plaintiff, and that the court did not err in denying defendants’ motion for a directed verdict under the standards established in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

We, therefore, affirm the judgment below.

Affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: SMITH, J.

text:
    John Munson Young and Nina Maxine Young, Plaintiffs-Appellees, v. Belinda Jane Prather, a Minor, and Velma Faye Prather, Defendants-Appellants.
    Gen. No. 11,100.
    Fourth District.
    March 25, 1970.

      Lewis, Blickhan & Garrison, of Quincy, for appellant.
    Schneidman, Keefe & Snowden, and A. L. Pezman, of Quincy, for appellees.
   SMITH, J.

This is an appeal by the natural mother from a decree of adoption of her five-year-old daughter, Belinda, by the mother’s sister and her husband. While other errors are assigned, we deem it necessary to discuss only the question of whether or not the evidence in the record is sufficient to support the decree. We think not.

Belinda was born of her mother’s prior marriage, and her father consented to the adoption. Her mother opposed and contested the adoption. Under these circumstances it is clear from the statute and the decisions that the evidence must show by its preponderance that the natural parent is unfit for one of the reasons set forth in the statute to authorize adoption without the parents’ consent. We have had oc-

casion recently to discuss this question in two cases and what was said in each of the two cases need not be repeated. See Carlson v. Oberling, 73 Ill App2d 412, 218 NE2d 820; Robinson v. Neubauer, 79 Ill App2d 362, 223 NE2d 705. The statute, Ill Rev Stats 1967, c 4, § 9.1-8, states: “Except as hereinafter provided in this Section, consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act.” Section 1 defines an unfit person as follows : “ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the foUowing: ...(h) Depravity.” The exceptions mentioned in the statute and other enumerated grounds for unfitness are not here applicable. The only applicable grounds for unfitness is depravity — the petition so charged — and the court granted the petition on such grounds. Neither the charge in the petition nor the finding of the court is supported by the evidence.

The term “depravity” has been defined by our Supreme Court in Stalder v. Stone, 412 Ill 488, 107 NE2d 696, and in 26A CJS, p 492, as “an inherent deficiency of moral sense and rectitude.” Rectitude is defined as “rightness of principle or practice.” The American College Dictionary, Harper and Brothers. As we read Stalder, a single deviation from moral principles does not per se establish depravity. The acts constituting depravity within the meaning of the statute must be of sufficient duration and of sufficient repetition to establish a “deficiency” in moral sense and either an inability or an unwillingness to conform to accepted morality. Likewise, Stalder recognizes the superior right in a parent to the custody of its child and where unfitness of the natural parent is shown by the evidence to be clear and satisfactory, then the natural right of the parent to the child must yield to the best interest of that child. In our determination of this case, we need not discuss the fitness of the adoptive parents nor the quality of the home in which they reside. Neither do we relate nor discuss in detail the life of the defendant mother prior to the time she entered the Macomb County Jail in January 1966 charged with burglary. She was convicted and sentenced to the reformatory at Dwight and released on January 13, 1967. She returned to her sister’s home and married her present husband in November 1967. She was first married at the age of 15, was a mother of five children, was twice divorced, and her conduct up to and including the burglary may be defined as considerably less than exemplary. By contrast, her behavior in the penitentiary and her behavior and conduct since that time are exemplary except for two or three minor incidents which are referred to as an indication of a continuation of depravity. It seems to be the petitioners’ point of view that once depraved— always depraved. Assuming for the moment that the evidence establishes depravity prior to her admission to Dwight, the only factors in this record that suggest such depravity continues are minor violations of her curfew hour on parole, a bicycle ride where she rode a bicycle in the streets of Ripley, Illinois, in the evening in her shorty pajamas and a housecoat that reached her knees, a charge that she urinated on the back of her cousin after her daughter had done so and this incident is explained by the fact that actually it was only a practical joke and she had wet a Kleenex and squeezed the water on the back of her cousin, and lastly, that she stayed out in the car with her present husband a couple of times overnight. On one instance her sister locked her out of the house and on another occasion they all worked together papering a home of the petitioner until about 3 a. m. and she stayed out with her present husband the rest of the night. Both the defendant and her present husband denied any impropriety on either occasion. To characterize these incidents as evidence of a continuation of preexisting depravity does not have the clear and convincing ring required to terminate the parent-child relationship by adoption. Oeth v. Erwin, 6 Ill App 2d 18, 126 NE2d 526; Smith v. Andrews, 54 Ill App2d 51, 203 NE2d 160.

It is clear from the testimony that the defendant began her rehabilitation in the penitentiary. She maintained her contact with her children and her family. She asked the petitioners to take care of Belinda when Belinda’s father obtained a divorce, on the grounds of conviction of a felony. On her release from the reformatory, she returned to her sister’s home, worked in Rushville and Mt. Sterling and showed attention, love and affection for her children. They were taken to her at the reformatory in Dwight. Her employers, her husband and her mother-in-law testified in her behalf as to her character and industry, that she was a good housekeeper and a fit person to have the custody of the children. Belinda’s older brother is in the custody of the defendant mother. The petitioners surrendered the boy on demand, but refused to give up Belinda because the court had awarded them custody of Belinda in the divorce proceedings while the mother was in Dwight. The defendant’s present husband is employed full time at a good salary and is providing a home — a clean home — and wants to adopt the children. Significant also is the fact that the present petition for adoption was filed about three days before the marriage of the defendant to her present husband.

In Thorpe v. Thorpe, 48 Ill App2d 455, 198 NE2d 743, the court holds that in an adoption proceedings clear and convincing proof of the unfitness of a natural parent must be established. It is also significant to note that the petitioning sister who now asserts the depravity of the mother was asked on cross-examination that when the mother made efforts to obtain her rights in her two children, the Park boys, immediately upon her return froto Dwight “you thought she was fit and proper to have custody of her two Park boys at that time, didn’t you?” The answer was: “Yes. I thought she was.” The witness then stated that after they observed her actions which we have described above that “we didn’t think so.” Accepting every bit of the testimony of the petitioners as to conduct following release from the penitentiary as true, it falls short of clear and convincing evidence that depravity on the part of the mother existed at the time of the petition or at the time of the decree. The defendant mother is still on parole and custody jurisdiction of Belinda has been reserved by the divorce court pending the outcome of this proceeding. The welfare of Belinda is protected. The unfitness required by the adoption statute to terminate the parent-child relationship does not appear from this record. If depravity existed prior to Dwight, it has now left the scene. Its departure should not take with it the loss of a mother’s right to her children. Yesterday’s black clouds do not eclipse today’s sunlight. The decree for the adoption is reversed.

Reversed.

CRAVEN, P. J. and TRAPP, J., concur.


author: JONES, J.

text:
    Charles J. Appel, et al., Plaintiffs-Appellants, v. Zoning Board of Appeals of the City of Mattoon, Suburban Trailway Parks, Inc., a Corporation, Raymond Koehl, Charles Weber, Sr., and Paul Young, Defendants-Appellees.
    Gen. No. 11,110.
    Fourth District.
    March 30, 1970.
    Donald E. Castles, Craig & Craig, of Mattoon (Richard F. Record, Jr., of counsel), for appellants.

      John J. Yelvington, City Attorney, of Mattoon, and Douglas & Church, of Mattoon (Mark B. Hunt and Alonzo Church, of counsel), for appellees.
   JONES, J.

Plaintiffs appeal the trial court’s dismissal of their complaint for administrative review of a decision of the Zoning Board of Appeals of the City of Mattoon.

On February 28, 1968, the individual defendants herein filed with defendant Zoning Board of Appeals of the City of Mattoon a petition requesting a conditional use, for a mobile home park, for certain property described in the petition. Due notice of public hearing was given on March 15, 1968, and on April 2, 1968, a public hearing on the petition of the defendants was held in accordance with the notice. At that hearing all persons to this proceeding were present either in person or by counsel.

On April 2, 1968, following the hearing, defendant Zoning Board of Appeals of the City of Mattoon, granted the conditional use as requested in the petition of the individual defendants.

On May 17, 1968, the plaintiffs filed their complaint in this cause in the Circuit Court for the Fifth Judicial Circuit, Coles County, Illinois, alleging, among other matters, that they were directly and adversely affected by the decision of said Zoning Board of Appeals of the City of Mattoon. Answers of defendants were duly filed and, among other denials, specifically denied the plaintiffs’ allegations that they were directly and adversely affected by the decision of the said Zoning Board of Appeals of the City of Mattoon. The cause proceeded to trial on August 5, 1968. All parties were represented by counsel and answered ready for trial. Plaintiffs offered no evidence of any type, but presented argument and rested. Defendants moved for judgment at the close of plaintiffs’ case. Thereupon plaintiffs made oral motion to reopen their case, argument was heard and motion denied.

On August 30, 1968, a post-trial motion to vacate judgment or in the alternative for leave to reopen plaintiffs’ case to present evidence was filed. Arguments were heard on the motion and on November 16, 1968, the court entered its order denying plaintiffs’ post-trial motion. In its order the court specifically found that plaintiffs must plead and prove that they were parties to the administrative hearing and that they were parties whose interests were adversely affected. The court further found that the plaintiffs had introduced no evidence before the Circuit Court and that the Circuit Court was not required to look to the certified record of proceedings before the Zoning Board of Appeals for evidence of the standing of the plaintiffs to bring an action under the Administrative Review Act; that it was incumbent upon the plaintiffs to introduce evidence of such standing in open court. It is from this order that appeal has been taken by plaintiffs.

Thereafter the parties entered into a stipulation that the sole issue to be presented on appeal is:

“Did the Circuit Court err in granting the Motion of defendants for judgment at the close of plaintiffs’ case on the grounds that the plaintiffs failed to introduce evidence before the Circuit Court, tending to prove the standing of the objectors to bring the Administrative Review Action, or to prove that they were directly and adversely affected by the action of the Zoning Board of Appeals of the City of Mattoon.” Pp 183 and 184 of the record on appeal.

The Administrative Review Act, chapter 110, section 265, Ill Rev Stats 1967, provides in part:

“This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any
other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed after the effective date hereof.”

The relevant ordinance of the City of Mattoon creating the Zoning Board of Appeals specifically incorporates all provisions of the Administrative Review Act.

Section 274 of the same Act provides:

“Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

Thus the statute expressly provides that review of administrative decisions shall be upon the record and that no new or additional evidence shall be heard by the court. This provision has been before the Illinois Supreme Court a number of times and that Court has consistently held that the statute precludes the presentation of evidence to the court which is reviewing the administrative decision. Strohl v. Macon County Zoning Board of Appeals, 411 Ill 559, 104 NE2d 612; Rock Island Metal Foundry, Inc. v. City of Rock Island, 414 Ill 436, 111 NE2d 499; Pipe Trades, Inc. v. Rauch, 2 Ill 2d 278, 291, 118 NE2d 319. See also, Des Plaines Currency Exchange, Inc. v. Knight, 29 Ill2d 244, 194 NE2d 89; Daley v. License Appeal Commission, 55 Ill App2d 474, 205 NE2d 269.

If the administrative body preserves no record, the proceeding is ineffective and the Circuit Court has no jurisdiction to commence a trial de nova. Where the record is insufficient, the case should be remanded to the administrative agency. Strohl v. Macon County Zoning Board of Appeals, supra.

Defendants contend their motion to dismiss and the order of dismissal in the trial court is justified by the following language in 222 East Chestnut St. Corp. v. The Board of Appeals of the City of Chicago, 14 Ill2d 190, 152 NE2d 465:

“The law is well settled that the right to review a final administrative decision is limited to those parties to the proceeding before the administrative agency whose rights, privileges or duties are affected by the decision. (Winston v. Zoning Board of Appeals, 407 Ill 588; Krachock v. Dept. of Revenue, 403 Ill 148.) In recently applying this principle in zoning litigation to which the present plaintiff was also a party, we held it is incumbent upon the party seeking review to both allege and prove that the board’s decision would in fact adversely affect such party. (222 East Chestnut Street Corp. v. Board of Appeals, 10 Ill2d 130, and 10 Ill2d 132.)”

The defendants’ position is not well founded. Such interpretation of the language of the 222 East Chestnut Corporation case would be contrary to the statutory provisions prohibiting presentation of evidence on review under the Administrative Review Act. For its authority for the rule advanced by defendants, the Supreme Court cited a previous case involving the same parties. 222 East Chestnut St. Corp. v. Board of Appeals of City of Chicago, 10 Ill2d 132, 139 NE2d 218. An examination of that case discloses that the proof required must be found in the administrative record for the court summarized the history of the case by stating:

“The superior court, after hearing questions 'presented by the record, affirmed the board’s decision and dismissed the complaint.” (Emphasis added.)

And when discussing the quantum of proof required of plaintiff, the court further stated, at page 136:

“In its brief plaintiff fails to show any evidence whatever to support them, (allegations of injury) nor have we found such support in the record.” (Emphasis added.)

For the foregoing reasons the judgment of the Circuit Court of Coles County is reversed and the cause remanded for hearing upon the merits of plaintiffs’ complaint.

Reversed and remanded.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois and William R. Ketcham, State’s Attorney, Plaintiff-Appellant, v. Odon Gonzales, Defendant-Appellee.
    Gen. No. 69-183.
    Second District.
    March 30, 1970.

      William R Ketcham, State’s Attorney of Kane County, of Elgin, and W. Ben Morgan, Assistant State’s Attorney, for appellant.
    Geister, Schnell, Richards and Brown, of Elgin, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

An indictment returned by the grand jury of Kane County charged the defendant with the offense of Unlawful Sale of Narcotic Drugs in violation of section 22-3 of the Illinois Criminal Code in that he did, on December 23, 1968, knowingly sell marihuana to one Kenneth Cloud.

On July 21, 1969, the trial court ordered the State to furnish the defendant and his counsel with a list of all prosecution witnesses and their residence addresses pursuant to the motion of the defendant brought under section 114-9 of the Code of Criminal Procedure (HI Rev Stats 1967, c 38, § 114-9). On August 12, the State furnished a list of the names and addresses of six witnesses. The list included three witnesses, among them Kenneth Cloud, who were special agents of the United States Bureau of Narcotics and Dangerous Drugs and gave as their address 205 W. Wacker Drive, Chicago, the address of the Bureau. The State also furnished a letter from the Bureau of Narcotics that indicated that the agents could be contacted at the Bureau during office hours any time Monday through Friday between the hours of 8:30 a. m. and 12:00 midnight or on Saturdays and holidays from 8:30 a. m. to 5:00 p. m., but that the Bureau would not furnish the residence address or telephone numbers. On August 13, the court entered an order, pursuant to motion of the defendant, that found William R. Ketcham, the State’s Attorney, in contempt of court for his willful refusal to furnish the residence addresses of the three government agents and dismissed the indictment. It appears that the parties agreed to a dismissal of the indictment to expedite the matter at issue to this court for determination.

Section 114-9 of the Code provides in subparagraph (a) that “On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses.” The committee comments point out that the purpose of this section is to prevent surprise and to combat false testimony in accordance with the case of The People v. Quevreaux, 407 Ill 176, 95 NE2d 62. The Code does not indicate if the address to be furnished must be the residence address and there are no reported cases on that precise point.

The defendant relies primarily on the recent case of Smith v. Illinois, 390 US 129, decided by the Supreme Court of the United States in January of 1968, and the cases decided thereafter on the basis of that decision to support his contention that he has a constitutional right to be furnished the residence address of all witnesses to confront him. In the Smith case, the defendant was accused of the sale of narcotics and, at the trial, an informer testified for the prosecution. On cross-examinatian, the informer was asked as to his real name and his residence address and the trial court sustained objections to both questions. The Supreme Court ruled that the failure to disclose the real name and residence address of the principal prosecution witness was a violation of the defendant’s right to be confronted with the witnesses against him as guaranteed by Article VI of the amendment to the Constitution of the United States and made obligatory on the states by Article XIV.

The court quoted extensively from its earlier decision in Alford v. United States, 282 US 687, to the effect that one of the purposes of cross-examination is to identify a witness with his community so that the trier of fact may determine his credibility. The court stated that “The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

Since the Smith case, the Supreme Court granted certiorari in the cases of United States v. Garafalo, 385 F 2d 200 (7th Cir) and People v. Shaw, 89 Ill App2d 285, 233 NE2d 73. In Garafalo, an informer testified as to his residence address at the time of the alleged crime but was not permitted to testify as to his address at the time of trial. In Shaw, the trial court sustained objections to questions as to an informer’s address and place of employment where it appeared that the accused knew him prior to trial. Both cases were remanded for reconsideration consistent with the Smith decision.

A concurring opinion filed in Smith, stated that the right of cross-examination is not absolute and that a trial court may, at its discretion, restrict inquiry as to an informer’s place of residence if a danger to the witness has been disclosed to the court by the prosecution. On the basis of that concurring opinion the Circuit Court of Appeals for the Seventh Circuit has recently held in two cases that the address of an informer need not be disclosed where a threat to the life of the witness has been

shown. United States v. Varelli, 407 F2d 735; United States v. Palermo, 410 F2d 468.

The Smith decision has also been followed in two recent cases from the First District where convictions for the sale of narcotic drugs were reversed on the grounds that the defendant was unduly restricted in his cross-examination. In both cases, the principal prosecution witness was an informer and the trial court sustained objections to questions posed in cross-examinatian as to their place of residence. The Appellate Court held that the defendants were entitled to elicit the current address of the informers inasmuch as their credibility was a crucial issue in the determination of guilt or innocence. People v. Hall, 117 Ill App2d 116, 253 NE2d 890; People v. Dunams, 118 Ill App2d 76, 254 NE2d 582.

The State made no offer of evidence that the witnesses had been threatened, only a general averment by the State’s Attorney that it had been the policy of the Bureau of Narcotics not to furnish the home addresses of undercover agents. In light of the foregoing decisions, it appears that upon a showing by the People of threats to the life of an agent or informer, that the home address of said informer or agent need not be disclosed. There is no indication of such threats in the instant case. We conclude that the trial court was not in error in dismissing the indictment.

On the contempt proceeding against the State’s Attorney, it appears that he had no knowledge or information to furnish to the court by way of residence addresses of the agents, as required by section 114-9, and could not comply. We are of the opinion that the trial court was in error in holding the State’s Attorney in contempt. The court could not hold him in contempt when he could not comply.

Reversed in part and affirmed in part.

DAVIS, P. J. and MORAN, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    Lawrence Lenit, Petitioner-Appellant, and Hugh M. Matchett, Aggrieved Person-Appellant, v. Leo J. Powers, John P. Coghlan, and The Chicago Law Institute, Defendants-Appellees.
    Gen. No. 53,040.
    First District, Third Division.
    June 19, 1969.
    Rehearings denied April 2, 1970.

      Thomas McManigal, Lawrence Lenit, and Hugh M. Hatchett, pro se, of Chicago, appellants.
    Spray, Price, Hough & Cushman, of Chicago (Robert S. Cushman and Benno P. Ludwig, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

A petition for a writ of mandamus was broughtix) compel the calling of an annual meeting of the membership of the Chicago Law Institute. The petition was dismissed and this appeal followed.

The petitioner, Lawrence Lenit, is a member of the Law Institute; another petitioner, William Hettleman — also a member of the institute — was dismissed from the cause early in the proceedings. The respondent, Chicago Law Institute, is a private corporation, created by a special act of the Illinois Legislature (Laws of Illinois, 1857, p 1186) which corporation operated and maintained a law library located on the 10th floor of the County Building — rent free. The respondents, Leo Powers and John Coghlan, were, at the time the petition was filed, the president and secretary respectively of the Law Institute,

On December 6,1965, the Law Institute entered into an agreement to transfer the institute’s law library and other assets to the County of Cook. The County planned to establish a free law library on the 29th floor of the Chicago Civic Center and the institute believed it could not compete with the County — even if the institute could find new, rent-free quarters.

On December 10, 1965, the Chicago Law Institute and two of its members filed a complaint for declaratory judgment: Chicago Law Institute v. County of Cook. The complaint designated as defendants the County, the Attorney General of Illinois and several individuals whom the respondents in the present action describe as “a representative number of members of the Chicago Law Institute, including some who were opposed to the relief which the plaintiffs requested.” Two of the members named were the petitioners in the instant case, Lenit and Hettleman. The complaint stated that the Law Institute could not continue to operate in competition with the free law library proposed by Cook County. Therefore, the plaintiffs requested that the Chancery Division of the Circuit Court, under the doctrine of cy pres, apply the assets of the Law Institute to a similar charitable use. Specifically, they asked approval of the agreement to transfer the institute’s law library and other assets to the County to be used for the County’s law library. They also asked for direction authorizing the institute and the County to execute the agreement.

After the suit was filed but before it reached a final decree, the following occurred: The 1966 annual meeting of the institute for the election of officers and managers directed by the bylaws of the institute to be held on the last Friday in January of each year was not held; the respondents and the other officers and managers elected at the January 1965 meeting continued in office. No meeting was called to preserve the status quo pending the disposition of the litigation seeking approval of the transfer of the assets of the institute. In March 1966, a meeting had yet to be held and the petitioners formally demanded that the acting officers and managers of the institute issue a call for one, but the demand was either refused or ignored.

Thereafter, in April 1966, the petitioners filed a petition for a writ of mandamus to compel the respondents to call the annual meeting of the institute. The respondents filed a motion to dismiss in May of 1966. The next month, pursuant to stipulation, the petitioner, Hettleman, was dismissed from the case.

On July 8, 1966, the remaining petitioner, Lenit, filed an amended petition. One week later, the respondents filed a petition for a temporary injunction. The respondents’ petition stated that on July 13, 1966, the Circuit Court entered a final decree in the case of Chicago Law Institute v. County of Cook (hereafter this final decree will be referred to as the Circuit Court decree) which approved the agreement entered into between the County and the institute. The respondents asserted that they intended to raise the Circuit Court decree as a defense to the amended petition for a writ of mandamus. The respondents also asserted that some members of the institute had called a special meeting to elect officers. They alleged that the special meeting would oust the Circuit Court of jurisdiction over the mandamus petition. They prayed for an injunction to restrain the members of the institute from holding any special meeting for any purpose whatsoever except an informal meeting to discuss the future of the institute, an appeal from the Circuit Court decree and to solicit funds to finance such an appeal. The temporary injunction was allowed.

The respondents presented their motion to dismiss the amended petition on July 25, 1966. They contended that no meeting should be held pending disposition of the appeal from the Circuit Court decree. Some members of the institute had filed notices of appeal to the Appellate Court from that decree. They did not make the notice of appeal a supersedeas, however, or file a supersedeas bond. The respondents contended that a meeting of the institute would interfere with the jurisdiction of the Appellate Court.

The attorney for the petitioner withdrew in June 1966. From that time, Lenit represented himself pro se. In October 1966 Hugh M. Hatchett, a member of the institute, was permitted to file an appearance as addi-. tional counsel for him.

On December 20,1966, the respondents filed an amended motion to dismiss the amended petition. It advised the court that the previous week the Appellate Court dismissed an appeal from the Circuit Court decree and also denied a petition for leave to file a late notice of appeal. It also said that all other appeals taken from the decree had been finally dismissed and that the time within which to take further appeals had expired. (In addition to the appeals to the Appellate Court, other appeals had been taken to the Illinois Supreme Court and a separate action had been filed in the United States District Court. These had also been terminated at the time of the respondents’ motion to dismiss.) The motion stated that the agreement between the institute and the County was in full force and effect, making moot the question of further adjournment of the institute’s annual meeting in order to preserve the status quo. It declared the intention of the respondents to call a meeting of the institute at the earliest practicable time to report to the membership, file a current account and call for the election of officers. The motion was allowed January 12, 1967, and the amended petition was dismissed.

On February 10, 1967, the petitioner filed a motion to vacate the judgment of January 12th and to amend the previously amended petition. The motion referred to the respondents’ intention, expressed in their motion to dismiss, to call a meeting at the earliest practicable time and alleged that 28 days had since passed and that neither the January 1966 meeting nor the now overdue January 1967 one had been called. The petitioner’s mo-, tian demanded the issuance of a writ of mandamus to compel the calling of a meeting. On February 14, 1967, the court vacated the judgment, allowed the amendment of the amended petition and ordered the respondents to answer.

At this point, it should be noted that in January 1967 a motion to vacate the Appellate Court’s dismissal of the appeal was filed and denied. In February 1967 the denial was appealed to the Illinois Supreme Court.

The petitioner filed his second amended petition on February 21, 1967, and on March 1st the respondents filed their answer. Thereafter, on August 9, 1967, the petitioner filed a motion for summary judgment. On August 16, 1967, the court entered a judgment for the respondents. In doing so, the court recognized the transfer of assets which had occurred sometime after August 22, 1966, the date the Circuit Court entered an order approving the “physical transfer of the books of the Law Institute to the 29th floor of the Civic Center.” The court said, “The right of the members of the Chicago Law Institute to hold an annual meeting has become abstract in that the corporation is in effect dissolved and has no assets and a meeting would serve no useful purpose/’ The court dismissed the second amended petition for a writ of mandamus and assessed costs against the petitioner.

The petitioner filed a notice of appeal to the Illinois Supreme Court. His attorney, Hatchett, also filed a notice of appeal but for himself, not his client. Hatchett’s appeal identified himself as a “member in good standing of [the] Chicago Law Institute, an Illinois corporation, a person not a party of record prejudiced or aggrieved by the Judgment. . . .” He asked that his appeal be treated as an original action (see Ill Rev Stats 1967, c 110A, § 381) and prayed that the judgment of the Circuit Court be reversed without remandment and for a writ of mandamus directing the respondents to call the annual meetings for January 1966 and 1967. The appeals of Lenit and Hatchett were consolidated and one brief was filed in the Supreme Court. As the basis of jurisdiction, they alleged that the failure of the institute to hold an annual meeting and elect new officers deprived the appellants, as members of the institute, of property rights — the rights of members to hold a meeting and to vote, and the interest of members in the assets of the corporation and their distribution in the event of dissolution — in violation of the 14th Amendment of the Federal Constitution and article II, sections 2 and 19, of the Illinois Constitution. The appellants further alleged that the ultimate issue in the case was whether an appeal then pending before the United States Supreme Court from the Circuit Court decree constituted a defense to the mandamus petition. The Illinois Supreme Court concluded that it did not have jurisdiction of the case on direct appeal and transferred the case to this court.

Parenthetically, it is of interest to note the following: The United States Supreme Court on March 11, 1968, in a per curiam decision, dismissed the appeal before it for want of jurisdiction and then, treating the papers for appeal as a petition for a writ of certiorari, denied certiorari. Hettleman v. Chicago Law Institute, 390 US 338 (1968) rehearing denied 390 US 1036 (1968). This, however, did not end the litigation seeking approval of the agreement to transfer the assets of the institute to the County. On July 11, 1968, two members of. the institute, Hettleman and Edmunds, filed a petition to vacate as null and void the decree of the Circuit Court. The petition was denied August 9, 1968, and a motion to vacate that order was denied August 19, 1968. This litigation is still in progress. A direct appeal has been taken to the Illinois Supreme Court from the denials of the motion to vacate.

In his second amended petition, Lenit had asked for a writ of mandamus to compel the calling of the January 1966 and 1967 meetings. In their brief in this court, Lenit and Matchett ask that these meetings be consolidated with the January 1968 meeting. They have not amended their brief to include the January 1969 meeting, the time for which has now also passed, but we will consider their appeal as if this had been done.

The issue in this appeal is whether the court erred in refusing to issue a writ of mandamus. Mandamus is an extraordinary remedy. Daniels v. Cavner, 404 Ill 372, 88 NE2d 823 (1949); National Fire Ins. Co. of Hartford v. Municipal Court, 28 Ill App2d 401, 171 NE 2d 687 (1961). One seeking the writ must show a clear right to it. People ex rel. Adamowski v. Dougherty, 19 Ill 2d 393, 167 NE2d 181 (1960); People ex rel. National Bank of Austin v. County of Cook, 56 Ill App2d 436, 206 NE2d 441 (1965). Where the applicant shows a clear legal right to the relief he seeks, the court cannot arbitrarily refuse it. People ex rel. McCormick v. Western Cold Storage Co., 287 Ill 612, 123 NE 43 (1919) ; People ex rel. Bradford Nat. Bank of Greenville v. School Directors of Dist. No. 62, Franklin County, 309 Ill App 242, 32 NE2d 1008 (1941). However, mandamus is not a writ of right. People ex rel. Cannella v. City of Chicago, 7 Ill2d 416, 131 NE2d 98 (1956); People ex rel. Aramburu v. City of Chicago, 73 Ill App2d 184, 219 NE2d 548 (1966). Despite the presence of a clear legal right for which mandamus is an appropriate remedy, the writ may be denied in the exercise of sound judicial discretion because of the consequences accompanying its issuance. People ex rel. Harrison v. Kelly, 391 Ill 136, 62 NE2d 705 (1945); Hagemann v. Chicago Great Western Ry. Co., 2 Ill App2d 401, 119 NE2d 523 (1954). The writ may be denied where it will cause confusion and disorder or fail to “operate impartially or promote substantial justice. People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill 424, 19 NE2d 336 (1939); People ex rel. Lyle v. City of Chicago, 360 Ill 25, 195 NE 451 (1935). It may also be disallowed where the issuance will be a fruitless or unavailing act (People ex rel. Cassidy v. Fisher, 372 Ill 146, 22 NE2d 937 (1939) ; Thornton v. Ramsey, 24 Ill App2d 452, 165 NE2d 65 (1959)), serve no useful or beneficial purpose (People ex rel. Town of Cicero v. Sweitzer, 339 Ill 28, 170 NE 728 (1930); Parrish v. Miller, 336 Ill 630, 168 NE 671 (1929)) or where it will directly affect another judicial proceeding then pending (People ex rel. Harrison v. Kelly, supra; People ex rel. Staats-Zeitung Co. v. Common Council of City of Chicago, 53 Ill 424 (1870)).

The appellants contend that where a clear legal right to the writ is shown, the court must grant the petition. Some of their authorities (e. g. People ex rel. Jonas v. Schlaeger, 381 Ill 146, 45 NE2d 30 (1942); People ex rel. Blome v. Nudelman, 373 Ill 220, 25 NE2d 811 (1940) ; Dorris v. Johnson, 363 Ill 236, 2 NE2d 74 (1936) ; Illinois Cent. R. Co. v. People, 143 Ill 434, 33 NE 173 (1892)) support their position, but the weight of authority does not. The weight of authority holds that even where a clear legal right to the writ is shown, the court, in view of the consequences attendant to its issuance may still deny it. E. g., People ex rel. Stettauer v. Olsen, 215 Ill 620, 74 NE 785 (1905); People ex rel. Harrison v. Kelly, supra; People ex rel. McCormick v. Western Cold Storage Co., supra; Hagemann v. Chicago Great Western Ry. Co., supra; People ex rel. Bradford Nat. Bank of Greenville v. School Directors of Dist. No. 62, Franklin County,. supra.

In this case, the petitioner had, and the appellants have, a clear legal right to the issuance of a writ of mandamus because:

(1) The bylaws of the institute provide for an annual meeting for the election of officers and managers and to conduct other business. Section 12 of the bylaws, as amended January 29,1955, states:

“There shall be an annual meeting of the Institute for the election of officers and managers, and the transaction of such other business as shall come before it, on the last Friday in the month of January of each year at 3:00 o’clock in the afternoon at the Institute rooms, unless otherwise ordered by the Executive Committee. ...”

(2) The petitioner-appellant, Lenit, and the appellant, Matchett, are members in good standing of the institute. According to section 12 of the bylaws, such members and only such have the right to vote.

(3) The corporation is still in existence. At the time of the original petition for the writ, the agreement to transfer its assets had been entered but not approved by the courts. At the time of the denial of the writ, it was judicially approved and the assets transferred, but even today the litigation continues and the corporation has not been dissolved.

(4) At the time of the first petition for a writ of mandamus, despite the litigation in process seeking approval of the agreement to transfer, and at the time of the . dismissal of the second amended petition — which occurred after the Circuit Court decree approving the agreement to transfer and after the transfer itself — there was legitimate business to be conducted at a meeting. For example, the old officers could have filed the annual report or reports. The members could have reelected the incumbent officers or elected new ones and directed them to support or oppose in the Circuit Court or on appeal the litigation seeking approval of the agreement to transfer. The officers could also have been directed to prepare to reinstate the library or dissolve the institute or to discuss the future of the institute in anticipation of the termination of that litigation. Today there is still much of the same business to be conducted.

(5) The bylaws of the Law Institute do not permit an indefinite postponement or omission of the ánnual meeting. One bylaw (section 12) does provide for a failure to hold the annual meeting upon the order of the Executive Committee and another (section 3) provides for the continuation in office of the officers and managers until their successors are elected but these bylaws permit only temporary postponements of a meeting. They do not afford the incumbent officeholders the privilege of extending their terms indefinitely. See 5 Fletcher, Cyclopedia Corporations, c 13, § 2001 (perm ed, rev vol 1967).

Where a corporation is not dissolved, there is legitimate business for shareholders to conduct at an annual meeting. This is true even where the corporation is in receivership. Butler v. Beach, 82 Conn 417, 74 A 748 (1909); Lehigh Coal & Navigation Co. v. Central R. Co. of New Jersey, 35 NJ Eq 349 (1882); State v. Merchant, 37 Ohio St 251 (1881). The right to vote and act in corporate matters is a valuable right, which cannot be taken away by the act or failure to act of the corporate officers. Albert E. Touchet, Inc. v. Touchet, 264 Mass 499, 163 NE 184 (1928); see also Trustees of Dartmouth College v. Woodward, 4 Wheat 518 (1819) (Story, J., concurring). Mandamus is a proper remedy to compel the calling of an annual meeting and election. 55 CJS, Mandamus, § 221; see e. g., People ex rel. Fleming v. Hart, 11 NYS 673 (1890); People ex rel. Maclaury v. Hart, 11 NYS 670 (1890).

However, despite a clear right to a writ of mandamus, the court, in view of the consequences accompanying its issuance, did not abuse its discretion in denying the petition. A meeting was not necessary to promote substantial justice; the occurrences at a meeting might have directly interfered with another judicial proceeding then pending and there might have been confusion and disorder.

An annual meeting was not necessary to promote substantial justice because the primary purpose of the petitioner in demanding one — to oppose the agreement to transfer — could have been accomplished through opposition to the declaratory judgment action seeking approval of the agreement. Hettleman, the petitioner who later withdrew, Lenit, the petitioner-appellant and Matchett, an appellant, had an opportunity to contest the agreement in the declaratory judgment action. Hettleman and Lenit were parties to the chancery proceeding which at the time of the filing of the original petition for the writ was before the Circuit Court but had not been decided. We do not know whether the appellant, Matchett, was a party or not, but as a member of the Law Institute he had a right to intervene. See Ill Rev Stats 1965, c 110, § 26.1. In addition, if the allegation of the respondents in this case is correct (and Matchett has not challenged it), Hatchett’s interest in the chancery suit was protected by- naming as defendants a representative number of members of the institute, including some who were opposed to the transfer. Any objection which the petitioners or appellants had to the transfer could have been raised in the declaratory judgment action for the purpose of that action was to determine the validity of the agreement.

The occurrences at a meeting might have directly interfered with the decree of the Circuit Court approving the agreement. For example, at a meeting, the appellants declared that the members of the institute could ratify or reject the agreement and could support the old officers or elect new ones and make the holdovers account for their dereliction of duty in entering the agreement. The necessity of a vote of ratification and the propriety of the officers’ actions in entering the agreement were questions which were or could have been determined in the chancery suit. Furthermore, at a meeting, the appellants indicated that the members could reelect the old officers or elect new ones who would repudiate the agreement and take steps to recover the transferred assets. The new officers, though, could not rightfully act in conflict with the court-approved transfer. Their only recourse would be to appeal the decree approving it. .

A meeting might have resulted in confusion and disorder. With the outcome of the transfer-litigation unresolved, the officers of the corporation would not have known where to proceed. They could not have dissolved the corporation because the litigation was not settled; they could not have repudiated the agreement to transfer and taken back the assets because the appeal from the order approving it was not yet successful.

Moreover, some of the appellants’ declared purposes of an annual meeting would have been fruitless and unavailing. An annual assessment would have been pointless for a library which had given away all its assets; an annual report would have been of minimal interest for a library which had ceased to operate.

There was legitimate business to be conducted at an annual meeting but this business was not so essential to the interests of the corporation or its members as to require that a meeting be held despite the consequences that would ensue. An election of officers could have been held and the officers directed to prosecute or defend appeals from the decree approving the transfer, although this was not essential to the representation of the interests of the corporation or its members in that litigation. An annual report detailing the agreement to transfer and the actions taken to effect it could have been presented, but much of this information was available in the record of the chancery suit. Preparations for the reinstatement of the library or dissolution of the corporation could have been made but also could have awaited the termination of the litigation.

Thus, at the time the second amended petition for a writ of mandamus was denied, the ordering of a meeting was not essential to the interest of justice while good reason militated against it. The court did not abuse its discretion in refusing to issue the writ. Today there is even less reason to order the calling of a meeting. The litigation seeking approval of the transfer is closer to termination. Appeals all the way to the United States Supreme Court have failed to upset the decree which approved the transfer and a motion to vacate the decree has twice been denied. No useful purpose would be served by holding a meeting at this point. Chaos and confusion could well result, including duplication of what could and would be accomplished at a meeting following the finality of the litigation of the agreement to transfer. When that litigation is settled, the future of the Law Institute will be clear. Then a meeting of the institute can be held.

No claim has been made that a meeting will not be held at the completion of the litigation of the agreement. All along the respondents have declared such ah intention. Their failure to call a meeting in January 1967 when they said they would do so is explained by the continuation of the appeals from the Circuit Court decree, the motion to vacate the order of the Appellate Court, its denial and the appeal to the Illinois Supreme Court.

The judgment of the Circuit Court will be affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.