text:
    Sheridan Shores, Inc., and Esther Michaels, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 46,989.
    First District, Third Division.
    April 17, 1957.
    Rehearing denied May 8, 1957.
    Released for publication May 8, 1957.

      John C. Melaniphy, Corporation Connsel, of Chicago (Sydney R. Drebin and Claude E. Whitaker, Assistant Corporation Connsel, of Chicago, of counsel) for defendant-appellant.
    Maurice J. Nathanson, of Chicago (L. Louis Karton, of Chicago, of counsel) for plaintiffs-appellees.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

Defendant appeals from a declaratory judgment entered on the pleadings alone, in favor of plaintiffs.

The complaint alleges, inter alia, that the plaintiff corporation is the owner in fee simple of the real estate described therein, located on Sheridan Road in the block between Ardmore Avenue and Thorndale Avenue in Chicago; that the premises have a frontage of 200 feet by a depth of 229 feet to the shore of Lake Michigan; that the premises are improved with a brick, steel and concrete fireproof building having thirteen floors above grade and containing approximately 187 apartments; that part of the ground floor and below the surface is a garage serving the automobile parking requirements of the tenants of the building; that plaintiff Michaels is the lessee of the garage portion located on the lower level and ground floor of said building, and is engaged in maintaining said garage for the accommodation of the tenants of the building who desire to use the facilities; that she acquired possession of the garage about January 1, 1953, and that at that time there were several gasoline storage tanks, each of the capacity of 1,000 gallons, underground and immediately beneath the garage premises, for motor fuel kept for the accommodation of the tenants of the building who used the garage.

The complaint further alleges that the right to store and sell such motor fuel to the building tenants is granted to Michaels by the owner of the building under the garage lease; that during the month of April, 1954, Michaels and one of the officers of the plaintiff corporation were served with arrest notifications by the police of the city of Chicago, charging them with operating a public garage in an apartment zone (Violation 194A — 8—zoning ordinance) and the storing and selling of gasoline without a license (Violation 129.1 — 1 —Municipal Code); that in the month of May, 1955, said Michaels and the officer of the plaintiff corporation were charged, in a suit brought by the city of Chicago, with the failure to remove gasoline tanks and pumps installed in the garage premises; that plaintiffs, or either of them, or agents of the plaintiff corporation, have variously been charged with maintaining the garage, engaging in the sale of flammable liquids, and installing tanks for the storage of gasoline without having the consents of the neighboring property owners; that following these charges brought by the defendant against them, plaintiff Michaels procured written consents of the neighboring property owners in compliance with all ordinances of the Municipal Code of Chicago, requiring consent, which pertains to the installation of underground tanks for the storage of flammable liquids and for the maintenance of facilities for the storage and sale of motor fuel; and that she filed such written consents with defendant’s commissioner of buildings.

It is further alleged that in the month of March, 1955, she appeared at the office of the city clerk and applied for a license to maintain a garage under section 156 — 15 of the Municipal Code, and the right to sell motor fuel to the tenants of the building aforesaid; that the city clerk refused to issue a license on the ground that the maintenance of a public garage and the business of selling gasoline to tenants whose cars are stored in said garage, both in a private building as aforesaid, are enterprises not permitted in an apartment district (Chicago Zoning Ordinance, §8); that the Zoning Ordinance of the City of Chicago divides the city into ten use districts and four volume districts, and that said ordinance contains fifty use district maps; and that use district map No. 10 indicates that the premises in question are located in an apartment house, volume 3, district.

The complaint sets forth the Off-Street Parking and Loading provisions of the Chicago Zoning Ordinance, as amended July 28,1954; that plaintiff Michaels does not advertise the garage or the fact that she sells gasoline; that no signs of any kind are visible to the public or placed anywhere on the outside of the building calling attention to the existence of the garage or to the sale of gasoline; that no invitation of any kind is extended to the public to patronize the plaintiff, either for the storage of an automobile or for the sale of gasoline; that whatever is done by plaintiffs in connection with the storage of automobiles or sale of gasoline is strictly as required by the Chicago Zoning Ordinance for the accommodation of those tenants of the building or their guests or tenants of nearby buildings within the perimeter, who ask for the service; that if the court should determine that the maintenance of the garage in question is licensable under Chapter 156 of the Municipal Code, and that the sale of gasoline on the premises is licensable under section 127 of the Municipal Code, plaintiff Michaels is ready, willing and able to apply for such license or licenses, and prays for the court to direct defendant to issue such a license or licenses upon application; that plaintiffs have a large and substantial investment in their property and have great need to utilize their property for the purposes stated, and should they be deprived by any provisions of the Municipal Code of Chicago from maintaining the garage aforesaid, and from storing and selling motor fuel to the tenants, then said Municipal Code would contravene and violate the due process clause of the Federal and State Constitutions.

The answer of the defendant, to which no reply was filed by plaintiffs, in substance alleges that said garage is not maintained for accommodation of the tenants in the building, but is servicing the automobile requirements as a business for persons other than the tenants of the building, and is maintaining and operating a gasoline filling station with the use of gasoline storage tanks underground, in violation of the zoning laws and other provisions of the Municipal Code; that when plaintiff Michaels obtained possession of the garage premises, several gasoline storage tanks, each of 1,000 gallon capacity, had been installed, and gasoline dispensing pumps had been connected thereto, all done without a permit from the municipal authorities and in violation of the zoning laws of the city of Chicago.

The'answer further alleges that plaintiffs are operating and maintaining a public garage in the premises in violation of law, and that the storage and sale of motor fuel therein is not merely incidental and auxiliary to the operation of a private garage and is forbidden by the Municipal Code; that plaintiff Michaels applied to the Building Department of the City of Chicago for a permit to install four gasoline tanks of a capacity of 1,000 gallons each, and to sell gasoline therefrom to the tenant occupants of said apartment building; that on September 9, 1954, her application was denied by that department; and that on September 27, 1954, she applied to the Zoning Commission for a variation, which Commission, after a hearing had on November 1,1954, denied her appeal and recommended to the City Council of the City of Chicago that a variation in her case be denied.

The answer also alleges that defendant filed complaints against plaintiff Michaels and an officer of plaintiff corporation in the Municipal Court of Chicago for violations of the ordinances, in the maintenance of the garage and the sale of gasoline therein; that they were both found guilty after a hearing, and a fine was imposed for violation of said ordinances.

The declaratory judgment found plaintiffs had a clear legal right to maintain and conduct the garage in question for the accommodation of the tenants of said building and their guests and for such others who are permitted in an apartment house district by the Off-Street Parking provisions of the Chicago Zoning Ordinance to utilize said private garage for off-street parking purposes, and that plaintiffs had a clear legal right to maintain on the premises underground tanks and store gasoline therein, for sale only to the occupants of said private garage as auxiliary and incidental to the maintenance and operation of said private garage without advertising the same or displaying any notice on the outside of the building to the effect that gasoline is available on the premises; and that the court retained jurisdiction in said judgment order for the purpose of carrying out the judgment order entered.

Section 73 — 6.01 of the Cities and Villages Act (Ill. Rev. Stat. 1955, Chap. 24, par. 73 — 6.01) provides as follows:

“All final administrative decisions of the board of appeals under this Article shall be subject to judicial review pursuant to the provisions of the ‘Administrative Review Act,’ approved May 8,1945, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term ‘administrative decision’ is defined as in Section 1 of the ‘Administrative Review Act.’ ”

The Administrative Review Act, Section 1, (Ill. Rev. Stat. 1955, Chap. 110) provides:

“. . . ‘Administrative decision’ or ‘decision’ means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties, or privileges of the parties and which terminates the proceedings before the administrative agency . . . .”

Section 57.1, Chapter 110 (declaratory judgments), permits a declaratory judgment declaring the rights of parties in cases of actual controversy, including the determination of the construction of any statute, municipal ordinance or other governmental regulation. It is under this section plaintiffs predicate their right to the instant judgment.

The rule is well settled in this state that a particular and specific enactment in a statute must prevail over general provisions on the subject, either in the same statute or in the general laws relating thereto. Robbins v. Lincoln Park Commissioners, 332 Ill. 571, 579; Moyer v. Board of Education, 391 Ill. 156, 159; Department of Revenue v. Wakeford Hardware Co., 2 Ill.App.2d 66, 69.

In the instant case we have directly involved, the question whether defendant was justified in denying plaintiffs’ application for a permit, as alleged in the complaint and answer, and whether the Zoning Appeal Board, to whom plaintiffs appealed, was justified in deciding in effect that plaintiffs’ conduct of their business was in violation of the Zoning Ordinance, and that they were not entitled to any variation. The Zoning Appeal Board having so decided, the Administrative Review Act specifically applies to a review of its decision and makes ample provision for appeal to the courts in such review.

In Bright v. City of Evanston, 10 Ill.2d 178, plaintiff sought a declaratory judgment that the Zoning Ordinance of the City of Evanston, as applied to plaintiff’s property, was unconstitutional. The court there held:

“We agree with the contention that plaintiff cannot challenge the validity of the ordinance in its application to his property without first exhausting an administrative remedy. Under the city’s zoning ordinance, applications to vary a classification as it affects particular property may he made to the hoard of appeals, which is authorized to recommend variations to the city council in cases of practical difficulties and particular hardship. Neither the present plaintiff nor his predecessor made such application for relief. U

“. . . where the claim is merely that the enforcement or application of a particular classification to the plaintiff’s property is unlawful and void, and no attack is made against the ordinance as a whole, judicial relief is appropriate only after available administrative remedies have been exhausted. . . .

“In the case at bar the zoning ordinance has made provision for variation in particular cases by application to the board of appeals, which is empowered to make recommendations to the city council with respect thereto. The plaintiff has not seen fit to apply for such a variation. He does not complain of the zoning ordinance as a whole, but claims only that the classification of his lot for residential rather than commercial uses infringes his constitutional rights. Under such circumstances he should apply in the first instance to the board of appeals, and if unsuccessful there he can seek judicial relief. His action for a declaratory judgment without first exhausting his administrative remedies will not lie.”

There is no merit in plaintiffs’ contention that defendant’s point as to the necessity for exhausting the remedies under the Zoning and Administrative Review Acts, referred to, is waived, because raised by defendant for the first time on this appeal. The answer of defendant specifically alleged the application made by plaintiffs for a permit and their petition to the Zoning Appeal Board for a variation. When such facts are alleged, it sufficiently raises the question of law for the trial court and this court as to whether the Circuit Court should have entertained the instant complaint for a declaratory judgment.

In view of the holding in the Bright case, which we regard as clearly applicable to the instant ease, plaintiffs are not entitled to a declaratory judgment until they have exhausted their administrative remedies, specifically provided by statute.

Accordingly, the judgment appealed from is reversed and the cause remanded with directions to dismiss the complaint.

Reversed and remanded with directions.

KILET, J., concurs.

LEWE, J., took no part.


source: Caselaw Access Project

author: JUDGE KILEY

license: Public Domain

text:
    Maxine Langfelder Chapman, and Archibald Chapman, Plaintiffs-Appellants, v. Northern Trust Company, and Arthur Wolf, individually and as Trustees under the Will of Samuel Rothschild, deceased, Sarah Rothschild, and Freda Baer Goldsmith, Defendants-Appellees.
    Gen. No. 46,997.
    First District, Third Division.
    April 17, 1957.
    Released for publication May 8, 1957.

      Philip R. Toomin, of Chicago, for appellants.
    Sidney J. Wolfe, of Chicago, for appellee, Arthur Wolf; Ratner, Miller & Levenson, of Chicago, for appellee, Northern Trust Company.
   JUDGE KILEY

delivered the opinion of the court.

This is a chancery action seeking construction of a testamentary trust, and discovery from, and removal of, the trustees. The chancellor on defendants’ motion struck the amended complaint, plaintiffs elected to stand by the pleading, and the suit was dismissed. Plaintiffs have appealed.

The motion to strike admits the well-pleaded allegations among which are those now set out as pertinent to our decision.

Samuel Rothschild died testate September 1, 1944, devising all of his real estate to the Northern Trust Co. and Arthur Wolf, defendant trustees. Under the terms of the trust the net income from the realty is payable quarterly, one third to Sarah Rothschild, one third to Maxine Chapman, and one third to Freda Baer Goldsmith. Sarah Rothschild is testator’s sister, and Freda Goldsmith and Maxine Chapman are cousins of his wife who predeceased him. If either Sarah Rothschild or Freda Goldsmith died before the trust terminated, the share which would have been paid such decedent is to be paid equally to the surviving beneficiaries. Maxine Chapman’s son Archibald is named as contingent beneficiary of her share of the income. The latter are the plaintiffs and they joined Sarah Rothschild and Freda Goldsmith as defendants with the trustees.

The provision of the trust vital to this suit is:

“(d) I desire my Trustees to hold all real estate . . . at least until the death of . . . Sarah Rothschild, unless the sale of all or any part of such real estate shall, in their sole discretion, he deemed by them to be advantageous to my sister, Sarah, having in mind the best interests of . . . Sarah, as a life tenant under the will of my deceased brother, Charles Rothschild, and otherwise.”

The trust is to terminate twenty-one years after the death of Sarah Rothschild, unless terminated earlier by the sale of all the trust real estate. The corpus, proceeds of sales, and accumulated income on termination is to be distributed to the income beneficiaries according to the same proportions and contingencies as the income.

The trustees in August 1945 made a sale of a part of the trust property at 6454 Ellis Avenue, Chicago. The following October plaintiffs sued in the Superior Court asking for a construction of trust paragraph “(d)” set forth above, and claiming that the trustees’ discretion of sale was not absolute, but was to be exercised in the light of Sarah Rothschild’s interests under the will of her deceased brother Charles, and that this exercise presupposed a consideration by the trustees of “basic facts” of which plaintiffs were entitled to be informed. That suit was dismissed by agreement “upon the basis” of a letter from the trustees dated March 18, 1946.

This letter stated that though the trustees were advised that neither the law nor the trust required them to do so,

“we hereby agree that, in the event we decide to sell any additional parcel or parcels of real estate . . . we will notify you of such decision ... by letter ... at least seven days prior to the execution of any contract for the sale of any such trust real estate or the sale thereof, if no contract is executed.”

In March of 1947 the trustees gave notice to plaintiffs, in accordance with their letter of March 18, 1946, of their “intention” to sell trust properties located at 6153-59 S. Kenwood Avenue, and 1350-54 E. 62nd Street, Chicago, Illinois. Plaintiffs requested information of “basic facts” on which the intention was based, the trustees consulted a real estate analyst, reconsidered their intention and decided against selling. Again in April 1948 trustees notified plaintiffs of an “intended sale” of vacant trust property, setting forth the “basic facts” upon which the decision rested. Plaintiffs made no objection and the sale was made.

On September 20, 1955 the trustees wrote plaintiffs “in accordance with our letter . . . March 18, 1946, for the purpose of notifying you that we have decided to sell . . . .” the Kenwood and 62nd Street properties. Plaintiffs requested a conference and in writing asked for the “basic facts.” Defendants denied the request and plaintiffs sued.

The controversy arises from the application of paragraph “(d)” to the Kenwood and 62nd Street trust properties. The chancellor sustained the motion of the trustees and Sarah Rothschild and dismissed the suit. The question is whether the complaint is sufficient to show plaintiffs were entitled to discovery of the “basic facts” sought.

The rule, that the amended complaint should be construed most strongly against plaintiffs, applies primarily to ambiguities and inconsistencies, Church v. Adler, 350 Ill. App. 471, and prevents drawing “inferences or conclusions” in favor of plaintiffs, Klein v. Chicago Title & Trust Co., 295 Ill. App. 208, 216, but it does not prevent giving plaintiffs the benefit of “reasonable intendments,” Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106. The pertinent definition given by Webster for intendments is “3 . . . the true meaning, understanding or intention of . . . any legal instrument . . . .” The Supreme Court statement in the Doner case is another way of saying that “The presumption against the pleader does not require that the words of the pleading should be wrested to disregard the obvious meaning of the language used.” Toledo, Peoria & Western R. R. v. Brown, 375 Ill. 438, 450.

Plaintiffs contend that their pleading sufficiently states a cause of action under the general law of trusts applied to paragraph “(d)” of the trust, as well as under the agreement of March 18, 1946. We need not consider the question whether the trustees were obliged to divulge information to plaintiffs as a matter of law, since our decision rests upon the letter of March 18th, 1946. There is no merit in the contention that defendants “could not, by agreement or otherwise, restrict, enlarge, or modify” their trust powers. No authority is cited by them to support their position that the letter of March 18, 1946 was an unlawful restriction, enlargement, or modification of their trust powers. The.power was that of sale with their “sole discretion” limited in the interests of Sarah Rothschild. We shall assume but not decide that it was within the scope of the power of the trustees to determine whether and to what extent the beneficiaries would be consulted with respect to a sale. Under this assumption any such determination would be merely a detail, not affecting the scope of the power granted. We think that the March 18th letter bound defendants, and that, the requirement of punctilious behavior on the part of the trustees imposed the burden of good faith in fulfilment of their promise. This is especially so since the letter was, according to the complaint, supported by consideration, namely the dismissal of plaintiffs’ suit in 1945.

We are unable to see how, once a determination to consult plaintiffs was made, the consequences could in any way violate the trustee’s obligation to, nor in any way interfere with a loyal trust relationship with, Sarah Rothschild. The letter did not commit defendants to acceptance of any views of plaintiffs which were not of help or of use. We assume that if plaintiffs’ views were helpful or useful in the administration of the trust, defendants would be glad to consider these views and to change a decision already made, if the views indicated that the best interests of the trust and Sarah Rothschild required the change.

Defendants argue that there is no showing in the complaint that they did not fully comply with whatever burden they assumed in the March 18th letter. They claim their only obligation was to notify plaintiffs of any decision to sell additional trust real estate, by letter mailed at least seven days before “the execution of any contract for the sale ... or the sale thereof, if no contract is executed.”

We agree with plaintiffs that the intention of the parties in providing the seven day period in the March 18th letter must have been to give plaintiffs time, before defendants bound themselves, in which to learn the basis for their decision to sell so that plaintiffs might if they saw fit, present arguments, to prevent the proposed sale. This construction was placed on the letter by the trustees on two previous occasions in 1947 and 1948 and on one occasion they were persuaded to change their minds. The trustees, before giving plaintiffs notice, executed their deed of the premises in controversy on September 13,1955, the grantees executed a deed in trust September 14th, and the trustees executed a mortgage September 15th— and accordingly were guilty of breach of their obligation. Plaintiffs upon receiving notice sought information about the “decision” and sought a conference, but were put off from time to time until September 29th, when they were informed the property had been disposed of and no useful purpose would be served by giving the information sought.

The trustees finally claim the complaint did not sufficiently charge that they made “binding arrangements” to sell before the expiration of the seven day period. We think that the complaint is sufficient to show prima facie that the sale had been made. The burden is upon defendants to answer with facts showing that there had not been “binding arrangements” to dispose of the Kenwood Avenue and 62nd Street properties.

We conclude therefore for the several reasons given that the chancellor erred in dismissing the amended complaint and the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.

FEINBERGr, P. J., concurs.

LEWE, J., took no part.


author: JUDGE ROETH

text:
    Velma Early, Conservator of the Estate of Othel Early, an incompetent person, Plaintiff-Appellant, v. Lester Early, Defendant-Appellee.
    Gen. No. 10,098.
    Third District.
    April 23, 1957.
    Released for publication May 9, 1957.
    Denis A. McGrady, of Gillespie, for appellant.
    Gilbert K. Hutchens, and Tom Roady, Jr., of Carroll-ton, for appellee.
   JUDGE ROETH

delivered the opinion of the court.

This is an appeal from a judgment entered on the verdict of a jury on May 2, 1956. A motion to strike the report of proceedings and affirm the judgment, or in the • alternative, to dismiss the appeal has been filed by defendant-appellee in this court.

Notice of appeal with proof of service thereof, was filed May 31, 1956. The praecipe for record requested the clerk to prepare a complete authenticated transcript of record including the report of proceedings at the trial. Thus the report of proceedings was required to be procured and filed in the trial court on or before July 20, 1956, in accordance with the rule which fixes an original period of 50 days for this purpose. App. Ct. Eule 1; Sup. Ct. Eule 36 (Ill. Rev. Stats. 1955, ch. 110, Sec. 101.36). No application to extend the time for filing the report of proceedings was ever made to the trial court as provided for in said rule.

It is conceded by counsel for plaintiff-appellant that the report of proceedings was never filed in the trial court at any time. Likewise it is conceded that it was never delivered to and left with the clerk of the circuit court for filing. The report of proceedings was delivered to the clerk of this court on July 28, 1956, along with a transcript of record containing the pleadings, motions, orders and judgment. The report of proceedings should have been filed in the trial court on or before July 20, 1956. Since this was not done it is not availáble before this court. Lukas v. Lukas, 381 Ill. 429, 45 N.E.2d 869.

This court finds that a report of proceedings is necessary to a consideration of the errors relied upon by plaintiff-appellant for reversal. In the absence of such report there are no questions presented by the record for review in this court. The appropriate order is to strike the report of proceedings and affirm the judgment. Accordingly the report of proceedings is ordered stricken and the judgment of the circuit court is affirmed.

Affirmed.


author: PRESIDING JUSTICE NIEMEYER

text:
    City of Chicago, Appellee, v. John Corney, Jr. et al., Appellants.
    Gen. No. 47,055.
    First District, First Division.
    April 29, 1957.
    Released for publication May 21, 1957.

      Howard T. Savage, of Chicago, for appellants.
    John C. Melaniphy, Corporation Counsel of the City of Chicago, of Chicago (Sydney R. Drebin and Harry H. Pollack, Assistant Corporation Counsel, both of Chicago, of counsel) for plaintiff-appellee.
   PRESIDING JUSTICE NIEMEYER

delivered the opinion of the court.

Defendants appeal from separate judgments for $100 and costs entered against each of them on a finding of guilty of disorderly conduct, in violation of Chapter 193, Section 1, sub-section 1 of the Municipal Code of Chicago.

Defendants are a mixed racial group — four Caucasians and two Negroes. All of the defendants except Jeanne Wesson were members of the Chicago Committee of Racial Equality, commonly referred to as CORE, an organization dedicated to the principle of achieving racial justice through the use of nonviolent methods. On May 11, 1956, about 10:30 p. m., defendants and four other persons went to Jennie’s Restaurant at 658 East 79th Street, Chicago, a licensed public tavern and restaurant, for supper; they were refused service; they remained on the premises and stated their intention to stay until they were served or the place was closed; the police were called by the manager and defendants were arrested; they were tried on a complaint sworn to by Michael Berg, a customer at the bar, charging the making or aiding in making an improper noise, riot, disturbance, breach of peace, or diversion tending to a breach of the peace. .

Two Negro members of the group — one a defendant —-had previously been denied service in the restaurant. Jeanne Wesson had previously visited the premises with persons other than the defendants and talked with the bartender, who was also the manager, about service to people without reference to . race or color. They were unable to see Jennie. The bartender testified that he had said he would not serve Negroes in the tavern. At a meeting of the group in the home of one of its members on May 11th they decided to go to the restaurant for food. Each defendant testified as to what was to be done to procure service. Defendant Wesson, married and the mother of two children, said that their purpose, if not served, was to sit there and wait until somebody came to talk to them, and maybe they could persuade the management by words and nonviolent action to serve the members of the group. She defined nonviolent action as “action taken to achieve a change with love, without rancor, without violence of any kind, physical or any other type of violence, words, mental, emotional, and so on.” Defendant Fields, a shipping clerk and husband of defendant Katherine Fields, testified that they did not intend to use any violent means or any loud or abusive language in order to be served. Defendant Corn'ey, an artist, said that they, intended to get service by sitting down and waiting until served; they had no intention to use any violent methods to force people to serve them. Defendant Forbes, a medical technician, testified it was “not ourintention to obtain service regardless of the means”; their intention “was to remain seated until such time as we would be served or the place would close,” and “it was clearly understood that this was the method to be used.” Defendant Katherine Fields said they went to the tavern to be served and to wait to be served because Jennie’s had a public license. Defendant Drews, a 20-year-old student and employee of a university, said that the sole purpose of going to Jennie’s was a “desire to be served regardless of the racial composition of the group.” There is no other evidence as to the intent or plan of the defendants, and the court correctly found that defendants “definitely planned to enter Jennie’s place and insist in a nonviolent manner to obtain service of food.”

There is a direct conflict in the evidence as to the means and manner of the entry of the group into the restaurant and of the conduct of the respective defendants after entry, particularly with reference to defendants Katherine Fields and Drews. Plaintiff’s evidence is to the effect that ingress to and egress from the premises at the main entrance was controlled by a buzzer operated by the bartender, who could see persons, wishing to enter, through the glass of the inner door of the vestibule; that the group, including defendants, entered when he pressed the buzzer to permit the exit of customers; that they were noisy, grabbed seats at tables marked reserved, threw themselves on the floor and boisterously demanded service and refused to leave after, being told that the kitchen, or the place, was being closed and they would not be served. When required to detail the actions of each defendant, the witnesses for plaintiff, except Berg, limited their testimony to the conduct of Katherine Fields and Drews. They testified that Katherine Fields was loud and boisterous from her entry to the premises until placed under arrest, shouting her demand for service and creating a disturbance; that Drews laid on the floor several times, obstructing the aisles and interfering with the orderly passage of patrons and employees in the premises. Berg testified that Fred Fields and Corney started hollering “We want service.” Testimony on behalf of defendants is to the effect that the entry into the premises was peaceful and quiet, through an unlocked door; that they sat at tables not marked reserved and asked to be served with food, without noise or disturbance; that the tables at which they were sitting were forcibly removed and they were told they would not be served, and an effort was made to remove them from the premises.

In finding defendants guilty the court said:

“. . . evidently they (defendants) had some skepticism in their minds about being served here; nevertheless, they did go to Jennie’s place and whether or not the tables were marked reserved and whether or not they were told the kitchen was closed or whether or not they were refused service in an outright manner without any other statement being made, is immaterial in this case. The important thing as I see it, . . . they were definitely told either that the kitchen was closed or that they would not be served, or that the tables were reserved, and they knew shortly after they entered that under no circumstances would they receive any food on that particular evening. Yet, notwithstanding that fact . . . they continued to remain there, all times knowing full well that they would not be served at that particular time. Their action in so doing, together with the testimony as brought out by the City’s witnesses that there was a lot of noise, that they were tumultuous, and that Joffree Stewart (not a defendant here) hit the floor as soon as he got in this restaurant; that he was joined there shortly by one of the other defendants; that one of the defendants in particular continued shouting for the entire time she was there, and that this was a concerted plan of action of all the defendants that remained there, and their action was such that might very well have caused other individuals in the place to become violent against these particular individuals who are now on trial. Their action was not such that one would say that they were in the peace of the people.” (Emphasis added.)

According to this statement the judgment was based on a finding that defendants remained in the restaurant, “knowing full well that they would not he served,” coupled with noise and tumultuous conduct — the concerted plan of all defendants. The principal question is the right, if any, of persons conducting themselves in a peaceful and orderly manner, to remain in the tavern and restaurant after service has been denied them on account of race or color, or because members of the group are Negroes. The statute of the state, generally referred to as Civil Eights statute, in so far as it is pertinent here (Ill. Rev. Stats. 1955, chap. 38, par. 125), provides in section 1 that

“All persons within the jurisdiction of said State of Illinois shall be entitled to the full and equal enjoyment of the accommodation, advantages, facilities and privileges of inns, restaurants, eating houses, hotels, . . . taverns, . . . cafes, . . . and all other places of public accommodations and amusement, subject only to the conditions and limitations established by laws and applicable alike to all citizens; . . . .”

Section 2 provides that any person who shall violate the provisions of section 1

“by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense, forfeit and pay a sum not less than $25 nor more than $500 to the person aggrieved thereby, . . . and shall also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not to exceed $500, or shall be imprisoned not more than one year, or both.”

The purpose of the statute, as stated in Pickett v. Kuchan, 323 Ill. 138, “is to regulate, for the promotion of the public good, certain businesses in which the public have an interest, and it is therefore remedial.” As applied to taverns and restaurants, such as Jennie’s, the statute imposes obligations and duties and gives to persons wishing to patronize such places rights unknown to the common law. Horn v. Illinois Cent. R. Co., 327 Ill. App. 498. Under the, statute, the accommodations, advantages, facilities and privileges of taverns and restaurants, like those of inns and common carriers of passengers or freight under the common law, must be made available on equal terms and conditions to all persons without distinction as to race- or color. Persons seeking such accommodations, etc., cannot be excluded from the premises so long as they conduct themselves in a peaceable and orderly manner. The rule governing common carriers is stated in Old Colony Railroad Co. v. Tripp, 147 Mass. 35 (1887). In that case the railroad company brought a tort action against defendant for obstructing the station grounds of plaintiff at Brockton; defendant, the owner of a job wagon engaged in carrying baggage and merchandise, had been going to plaintiff’s station to wait for trains and solicit business from passengers on plaintiff’s trains. The railroad entered into a contract with Porter and Sons to handle that business, and posted a notice in the station excluding other job wagon owners from entering the station to solicit business. The trial court directed a verdict for plaintiff. On appeal the judgment was affirmed, and the court, in defining the rights of plaintiff in its station, held that passengers taking and leaving the trains at the station had a right to access and use of the station buildings and grounds superior to the rights of the plaintiff to exclusive occupancy. It said (pages 36-37):

“The plaintiff has all the rights of an owner in possession, except such as are inconsistent with the public use for which it holds its franchise; that is, with its duties as a common carrier of persons and merchandise. ... It provided its depot for the use of persons who were transported on its cars to or from the station, and holds it for that use, and it has no right to exclude from it persons seeking access to it for the use for which it was intended and is maintained. . . . The station was a passenger station. Passengers taking and leaving the cars at the station, and persons setting down passengers or delivering merchandise or baggage for transportation from the station, or taking up passengers or receiving merchandise that had been transported to the station, had a right to use the station buildings and grounds, superior to the right of the plaintiff to exclusive occupancy. All such persons had business with the plaintiff, which it was bound to attend to in the place and manner which it had provided for all who had like business with it.” (Emphasis added.)

The defendants here, so long as they conducted themselves in an orderly manner, had a right superior to the rights of the owners and employees of the tavern and restaurant business, to enter the premises and wait for service, so long as the place was open and occupied by others enjoying the accommodations of thé business being conducted there. The owners and employees could not, by violating the law and refusing service on account of the race or color of some members of the group, deprive them of the right. Excepting the defendants Katherine Fields and Drews, the record does not support the finding of noisy or tumultuous conduct. No witness for plaintiff mentions the defendant Forbes. He was merely present. Defendant Wesson passed out three or four pamphlets published by CORE to patrons at the bar, and conversed with several of them — so far as the record shows, in conversational tone and without objection from the patrons. Although Berg testified that Fred Fields and Corney shouted “We want service,” the bartender merely says that Fields was standing and Corney was sitting during the occurrence. Fields and Corney deny any disorderly or boisterous conduct. The statement of the court that the action of Drew in lying on the floor, and of Katherine Fields in shouting continuously during the time she was in the restaurant, was “a concerted plan of action of all the defendants,” is in direct conflict with the finding, heretofore stated, that the defendants “definitely planned to enter Jennie’s place and insist in a nonviolent manner to obtain service of food.” It is also contrary to the undisputed testimony of the defendants, hereinabove stated.

The finding of the court as to defendants Katherine Fields and Drews is not against the manifest weight of the evidence. Their conduct cannot be justified by any right to service in the restaurant, or excused by disregard of that right by the manager. The judgment as to these defendants is affirmed. The judgment against the remaining defendants is reversed.

Affirmed in part, reversed in part.

BURKE and FRIEND, JJ., concur.


text:
    Hector Peraza, Petitioner-Appellee, v. Manuel Tovar and Elsie Tovar, Respondents-Appellants.
    Gen. No. 47,031.
    First District, First Division.
    April 29, 1957.
    Released for publication May 21, 1957.

      Moore, Ming’ & Leighton, Thaddens B. Rowe, all of Chicago (Thaddens B. Rowe, of Chicago, of counsel) for respondents-appellants.

      Henry J. Hyde, of Chicago, for petitioner-appellee.
   PRESIDING JUSTICE NIEMEYER

delivered the opinion of the court.

■ Respondents, grandparents of Hector Manuel Peraza, Jr., born June 17, 1951, appeal from a judgment order in a habeas corpus proceeding awarding custody of the child to his father, petitioner, and to Rachel Peraza, wife of petitioner.

■The mother of the child is the daughter of respondents. She died December 24, 1951. The child was in the custody of respondents from a few weeks after his birth to May 22, 1954, when he was taken by petitioner. Respondents filed a petition for a writ of habeas corpus June 4, 1954, seeking the custody of the child. On June 7, 1954, after notice and hearing, at which petitioner herein was present as respondent, the temporary custody of the child was given to respondents, and thereafter, on February 7, 1955, at a hearing at which the petitioner herein — the father of the child— was not present or represented by counsel, a final order was entered awarding, the custody of the child to his grandparents, petitioners in the first habeas corpus proceeding and respondents here. About eight months thereafter the petitioner herein filed a motion to vacate the order of February 7, 1955. This motion was denied because, as stated in the petition herein, the trial court “ruled that the custody order could not be vacated nor set aside out of term.” On November 28,1955 petitioner filed the petition for writ of habeas corpus, now before us, before the same judge who had entered the final order on the petition of respondents. He ordered that the writ issue, and thereafter the case was transferred to Judge B. Fain Tucker, who entered the order now complained of.

Motions were made by respondents to strike the petition for insufficiency. The first motion was denied without prejudice by the trial judge who entered the order in the first proceeding, and later was denied by Judge Tucker on the final hearing herein. In the final order in the first habeas corpus proceeding the court specifically found that the then respondent, petitioner herein, “is an Alien subject to deportation from the United States because of illegal entry.” The principal question in the trial court, and on this appeal, is the right of petitioner to the remedy sought in this proceeding because he is now, as respondents have stipulated, legally in the United States and not subject to deportation. We think that the allegations in the petition setting out the finding in the former order that petitioner herein was on February 7, 1955 illegally in the United States and subject to deportation, is not presently true, sufficiently informed respondent of the nature of petitioner’s claim, and the court did not err in refusing to strike or dismiss the petition.

Respondents contend first that the order of October 3, 1955 denying petitioner’s motion to vacate the judgment order of February 7, 1955 is res judicata of the issues raised in the present petition. The motion was denied because petitioner misconceived his remedy and because the court was without jurisdiction to vacate the prior judgment on motion made more than 30 days after its entry. Res judicata cannot be based upon a remedy that is misconceived. Orminski v. Hyland Electrical Supply Co., 326 Ill. App. 392.

Respondents contend that the present proceeding can be maintained only on a showing of a change in circumstances affecting the child subsequent to the entry of the order in the first proceeding; that a change in the condition or situation of the father of a child is not sufficient. No authorities are cited directly supporting this contention, and an examination of the numerous cases in our reports in habeas corpus and divorce involving the custody of minor children wherein the decision is based on change in the condition of a parent, shows that respondents’ contention in this respect is without merit.

Bespondents further contend that the change, if any, in the right of petitioner to remain in the United States occurred prior to the entry of the final order of February 7,1955, in the first proceeding, and therefore is not available as the basis of the present proceeding. They state in their brief: “Petitioner Peraza’s status changed in January 1955, before the order of February 7, 1955. Actually, this fact disposes of this contention of petitioner.” This statement is based upon the testimony of the petitioner, who stated that he was legally in the country at the time of his testimony; that he had gone to Mexico on the 17th of December 1954 and returned to the United States on January 20,1955. He produced his Alien card. It was not received in evidence. He then produced a passport, which does not appear to have been received in evidence, and on its production counsel for petitioner stipulated that petitioner was then legally in this country. The position of respondents is somewhat inconsistent. If, as they contend, the finding of February 7, 1955 is conclusive and res judicata of petitioner’s status as of that date, and petitioner was by respondents’ stipulation legally in the country at the time of the trial, the change in status must have occurred subsequent to the time of the entry of the final order.

Affirmance of the order appealed from, insofar as it grants custody to petitioner, rests on firmer ground. In proceedings in habeas corpus for the custody of minor children, as in proceedings in divorce suits involving the custody of minor children, the welfare of the children is the primary and controlling factor. The rules, therefore, as to the institution of new proceedings in habeas corpus, or moving to modify a former order or decree fixing the custody of children, are necessarily the same. The rale is broader than stated by respondents — that a change in conditions occurring subsequent to the prior order is the only basis for a new proceeding in habeas corpus or a modification of a former order in a divorce suit. The rule as to the power of the court in divorce proceedings is stated in 17 Am. Jur., Divorce and Separation, section 684, as follows:

“A decree fixing the custody of a child is, however, final on the condition then existing and should not be changed afterwards unless on altered conditions since the decree or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.”

The Illinois cases support this rule. In People ex rel. Stockham v. Schaedel, 340 Ill. 560, a habeas corpus proceeding brought by the father to procure the custody of two minor sons whose custody had been awarded to the father in a divorce proceeding in Ohio —the children at the time of the habeas corpus suit being in the custody of the mother in Illinois, the Supreme Court, in affirming the order of the trial court remanding the children to the custody of the mother, held that the order in the divorce suit was not conclusive as to the rights of the respective parents to the custody of the children, and said (p. 563):

“In 19 Corpus Juris, 366, with reference to foreign decrees for the custody of children, it is said: ‘Usually such decrees are necessarily provisional and temporary in character, and are ordinarily not res judicata, either in the same court or that of a foreign jurisdiction, except as to the facts before the court at the time of the decree.’ ” (Emphasis added.)

In Thomas v. Thomas, 233 Ill. App. 488, p. 493, the court said:

“A decree fixing the custody of a child is final on the conditions then existing and should not he changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child. 9 R. C. L. 476.” (Emphasis added.)

Similarly, in Harms v. Harms, 323 Ill. App. 154, p. 159, the court said:

“The court would not be justified in altering the original decree as to the custody of the children unless there was a change in the situation, or unless facts or circumstances which should have been called to the attention of the court at the time the decree was entered, were overlooked.” (Emphasis added.)

See also People ex rel. Potter v. Potter, 2 Ill.App.2d 419, 426-427, and Nye v. Nye, 343 Ill. App. 477, 481.

Petitioner did not appear on the final hearing of the habeas corpus proceeding brought by respondents herein. He had been served with summons, but through inadvertence or oversight he was not advised of the final hearing of the case, and states in his petition that his then attorney knew nothing of the entry of the order until February 21, 1955, and that the attorney failed to take any immediate steps to vacate the order. The matters relied on by petitioner to establish his legal presence in this country were never presented in the first habeas corpus action. We agree with the trial court that the finding in the first case that petitioner herein — respondent in that proceeding — was an Alien subject to deportation for illegal entry into the United States, must have been an influencing factor in the case, and that the legal presence of petitioner in the country at the time of the trial in this proceeding was a change of circumstances ■which would give the court jurisdiction. There is nothing in the record tending to show unfitness or inability of petitioner to properly care for and rear his son. He is married; at the time of the trial had a baby girl about one year old; his present wife is willing to take the boy into the family. Under the circumstances the child should be reared by his father. The welfare of the child should not be affected by the negligence, if any, of petitioner or his attorney in failing to appear in the first habeas corpus proceeding.

The wife of the petitioner is not a party to this proceeding. She has no claim to the custody of the child, and the judgment order before us is erroneous in awarding the custody to petitioner and to Rachel Peraza, his wife.

The order granting custody to petitioner is affirmed, and that part of the order granting custody to his wife is reversed.

Affirmed in part, reversed in part.

BURKE and FRIEND, JJ., concur.


author: JUDGE CAEEOLL

text:
    In Matter of Estate of Albert N. McClallen, deceased. Elton R. Heiser, as Executor, of Estate of Albert N. McClallen, deceased, Petitioner, v. Harrington McClallen et al., Defendants. Elton R. Heiser, as Executor of Estate of Albert N. McClallen, deceased, Petitioner-Appellee, and Harrington McClallen et al., Defendants-Appellees, v. Thornton McClallen, Defendant-Appellant.
    Gen. No. 10,112.
    Third District.
    April 29, 1957.
    Released for publication May 15, 1957.

      Cassidy, Sloan & Cassidy, of Peoria, for Thornton McClallen, defendant-appellant.
    Frank M. Wanless, of Morton, for Elton E. Heiser, Executor of the Estate of Albert N. McClallen, deceased, petitioner-appellee.
   JUDGE CAEEOLL

delivered the opinion of the court.

This is an appeal from a decree of the County Court of Tazewell county, directing the sale of a 40 acre tract of land to pay debts in the estate of Albert N. McClallen, deceased.

The decedent left a will which was admitted to probate on June 10, 1955. By the first item of this instrument, the testator directs his executor to pay his funeral expenses and all his just debts, including costs of administration as soon after his ■ death as convenient. This item also contains the following direction to the executor:

“I also direct that my Executor pay all inheritance taxes and other governmental charges, taxes or liens imposed upon my estate passing under the terms of this, my Last Will and Testament, or upon the interest of any of the legatees, devisees or beneficiaries therein, by any present or future law of the United States or of any State, relating to the transmission of property by descent or devise, and that all such charges, taxes or liens be considered and treated as expenses and costs of administration of my estate and be paid out of the same before distribution thereof.”

The testator then makes a number of cash bequests and provides that if there are not sufficient funds to pay these bequests, that the same be a charge on the real estate passing under the residuary devise. In items 10 through 13 of the will, certain devises of real estate are made. By item 14 all of the rest and residue of the estate is devised and bequeathed to seven named persons, one of whom is the defendant-appellant.

On October 4, 1955, the executor filed a petition for leave to sell 40 acres of land which was a part of the residuary estate to pay debts of decedent. It is alleged in the petition that the total value of the personal property in the estate is $12,799.74; that the total liabilities thereof including death taxes, administration costs and legacies charged against the residuary real estate are $69,643.59; that under the will all real estate is specifically devised except the 40 acre tract passing under item 14 thereof and that such real estate has an estimated value of $60,000. The defendant answered the petition, denying that the liabilities of the estate amount to the sum claimed by the executor and further alleging in substance that the sale of real estate as prayed in the petition will result in the residuary legatees receiving nothing under the will, which was not the intention of the testator; that it was his intention that the death taxes be charged against the whole estate and not solely against the tract of real estate passing under the residuary clause of the will; and that the executor should not sell this single tract but should charge all of the testator’s several parcels of real estate proportionately with the death taxes. A further defense alleged is that a suit to contest the will of decedent is pending and undetermined in the Circuit Court of Tazewell county.

Following a hearing on the petition and answer, the County Court directed the sale of the 40 acre tract and this appeal followed.

The primary question to be decided is whether the County Court was correct in determining, as it did, that the executor could not resort to the lands specifically devised as a source of funds to pay debts until he had first exhausted the assets passing under the residuary clause of the will.

The defendant argues that the decree should not have singled out for sale the 40 acre tract which is the only real estate going to the residuary devisees because under the will, the death taxes, claims and costs should be charged proportionately against the whole estate. It is pointed out that three of the individuals named in the residuary clause are the closest living relatives of the deceased; that the other four named in said clause including the defendant are cousins of deceased; that if the total of the estimated claims is charged against the residuary estate, it will mean that the residuary devisees will be deprived of any share in the estate; that such a result is contrary to the testator’s intention; that since the testator, in the first item of his will, directed payment of the death taxes out of his estate, he must have intended to make such tax charge payable out of his whole estate and that if such a construction is not placed on the will, it will mean disinheriting defendant and other relatives, which result the law does not favor. Desmarteau v. Fortin, 326 Ill. 608 and Smith v. Garber, 286 Ill. 67 are cited in support of such argument. In both of these cases, the court followed the well established rule that any ambiguity in a will should be resolved in favor of the heir in preference to persons not so closely related. Clearly these cases are not applicable to the situation before us on this appeal. Here we deal with no ambiguous or dubious words. The testator expressly provided that all inheritance taxes and other governmental charges, taxes or liens imposed upon his estate or upon the interest of any of his beneficiaries should be treated as costs of administration and paid out of his estate before distribution thereof. Such language leaves no room for doubt or uncertainty. The testator having expressed his intention that the death taxes be paid out of his estate and not charged against the specific legacies, the executor was required to follow such direction and treat such taxes as an indebtedness of the estate. The practice of providing by appropriate language in a will that specific legacies shall not be burdened with inheritance taxes is not an uncommon one and the legal effect thereof is generally understood to be that such taxes shall be paid from the residuary estate.

Where as in this case it becomes necessary to sell real estate of a testator for the payment of debts, it is the established rule that land passing under a residuary devise must be sold first and it is error to decree a sale of land passing under a specific devise before the residuary real estate has been resorted to and exhausted. In Rayborn v. Grand Lodge, I. O. O. F., 234 Ill. App. 183, the court states the rule and the basis therefor to be as follows:

“The general rule has always been that a specific legacy is a gift of a specific part of a testator’s estate, identified and distinguished from all things of the same kind, and can only be satisfied by the delivery of the particular thing, and that if the estate, for any reason, should turn out to be less than the testator anticipated, or if for any reason there is required an abatement as to any of the legacies, general legacies, or residuary funds must first be abated before any abatement of the specific legacies conld be required. (Citing cases).

“This principle of law has been so universally recognized and of such elementary application that its mere suggestion indicates that it is applicable in this case. With this record before the lower court, even though appellants were in default, it was error to decree the sale of the ‘Kennedy Farm’ lands before the lands passing under the residuary clause of the will had been resorted to for the payment of debts and exhausted.”

The 40 acre tract was a part of the residuary estate and the court properly decreed its sale to pay debts of the estate.

Defendants further contention that the County Court erred in entering the decree herein while a suit to contest decedent’s will was pending is without merit. The fact that a purchaser of the real estate might take with notice of the pending will contest case would in no way restrict the power of the County Court to authorize the executor to proceed with a sale of real estate to pay debts in the due course of the administration of the estate.

Finding no error in the record and being convinced that the decree found ample support in the evidence, the same will be affirmed.

Affirmed.


author: JUSTICE EOVALDI

text:
    People ex rel. Board of Education of Pembroke Community Consolidated School District No. 259, Kankakee County, Illinois, et al., Petitioners-Appellees, v. Fred Davis, Ike Parrish, et al., Respondents-Appellees, and St. Anne Community High School District No. 302, Kankakee and Iroquois Counties, Illinois, Respondent-Appellant. Consolidated with People of State of Illinois, on Relation of Board of Education of Community High School District No. 302, Counties of Kankakee and Iroquois, State of Illinois, and Board of Education of Community High School District No. 302, Counties of Kankakee and Iroquois, State of Illinois, Petitioners-Appellants, v. County Board of School Trustees of Kankakee County, Illinois, et al., Respondents-Appellees.
    Gen. No. 11,005.
    Second District.
    May 16, 1957.
    Released for publication June 3, 1957.

      Butz, Blanke & Stith, of Kankakee, for Board of Education of St. Anne Community High School District No. 302, Kankakee and Iroquois Counties, appellant.
    Donald D. Zeglis, of Momence, for appellees.
   JUSTICE EOVALDI

delivered the opinion of the court.

These consolidated cases involve, as the sole question to be determined, the interpretation of Section 27, Article 13, Chapter 122, Illinois Revised Statutes, 1955, which reads as follows:

“Distribution Of Funds Resulting From Liquidation Of Permanent Funds. Any funds received as the result of the liquidation of the permanent funds belonging to any school township shall after the payment of the necessary expenses connected therewith be apportioned and distributed to the school districts or parts of districts of such township in which schools have been kept as required by law during the preceding year ending June 30 according to the number of pupils in average daily attendance in grades one to eight, each inclusive, as reported in schedules prepared under Section 23 — 3 of this Act, and upon the completion of such liquidation and distribution and the submission of all reports required by law the office of township land commissioners and their treasurer in such township shall terminate.”

The first of these consolidated causes was instituted by the Board of Education of Pembroke Community Consolidated School District No. 259, Kankakee County, Illinois and the Board of Directors of Doney Common School District No. 89, Kankakee County, Illinois, as relators and petitioners, by a Petition for Mandamus, against the County Board of School Trustees of Kankakee County and the individual trustees by name, as the principal defendants, to compel liquidation by said County Board of the assets of the permanent or loanable fund of School Township No. 30 North, Banges 10 and 11 West of the Second P.M., Kankakee County, Illinois and distribution thereof to only those school districts wholly or partially within the school township which actually maintained school grades one to eight, inclusive, under the terms and provisions of the above mentioned section of the statute.

The appellant, St. Anne Community High School District No. 302, Kankakee and Iroquois Counties, was made a respondent and answered by its Board of Education claiming that the high school district should share in the distribution of the liquidated funds as a school district within the meaning of the Statute.

The individual members of the County Board of School Trustees and the County Board of School Trustees of Kankakee County, Hlinois, answered the petition, stating they were ready and willing to liquidate the fund but were unwilling to distribute the net funds until the matter of distribution had been clarified.

The Board of Education of St. Anne Community High School District No. 302, Kankakee and Iroquois Counties, State of Hlinois, then instituted a second action, as relator and petitioner, by a Petition for Mandamus, against the County Board of School Trustees of Kankakee County, Illinois, as the principal respondent, setting forth the same factual situation and praying that the County Board of School Trustees include relator district as a distributee of the liquidated fund. The County Board of School Trustees answered again asking clarification of the matter of distribution. The other school districts named as respondents denied the right of relator in the second action to share in the distribution because it did not maintain school grades one to eight, inclusive.

The cases were consolidated for hearing, and following the hearing, the circuit court entered its order awarding a Writ of Mandamus to the relator school districts in the first filed cause, being the school districts which maintained school grades one to eight, inclusive, but denied a Writ to the appellant, Board of Education of St. Anne Community High School District No. 302 in the second filed cause because the appellant district did not maintain school grades one through eight, inclusive.

The Board of Education of St. Anne Community High School District No. 302, Kankakee and Iroquois counties, Illinois, appellant here, appeals from the order of the Circuit Court and asks that the consolidated causes be remanded to the circuit court with directions to issue a Writ of Mandamus to the County Board of School Trustees of Kankakee County, Illinois, commanding that Board to include the St. Anne Community High School District No. 302 as a distributee of the liquidated fund in the pro-rated portion set forth in relator’s petition.

From the evidence in this case, it appears that the school districts maintaining schools as required by law whose territory lies within or partly within combined school township No. 30 North, Ranges 10 and 11 West are as follows: Pembroke Community Consolidated School District No. 259, Kankakee County; Doney Common School District No. 89, Kankakee County; Fair-more Community Consolidated School District No. 10, Kankakee County; Wichert Community Consolidated School District No. 262, Kankakee County; Momence' Community Unit School District No. 1, Kankakee County; and St. Anne Community High School District No. 302, Kankakee County; that the first four of said districts maintain schools with a program of studies extending through grades one to eight, inclusive, and do not conduct a school with grades nine through twelve, inclusive; that the Momence Community Unit School District No. 1 conducts a school with a program of studies extending from grades one through twelve, inclusive; and that the St. Anne Community High School District No. 302 keeps and conducts a school with a program of studies extending from grades nine through twelve, inclusive, hut does not conduct a school with grades one through eight.

The courts have no legislative powers and may not incorporate in a statute provisions not within the intention of the General Assembly as expressed in the statute itself. First Nat. Bank v. Hahnemann Inst., 356 Ill. 366, 372; Coon v. Doss, 361 Ill. 515, 521; Burley v. Lindheimer, 367 Ill. 425, 429. As was said by the Supreme Court, in People v. Olympic Hotel Bldg. Corp., 405 Ill. 440, at 448: “This court will not read into a statute words which are not found therein either by express inclusion or a fair implication.” If the General Assembly had intended that the overlying high school districts were to share in the distribution, it could easily have so provided by stating that distribution should he according to enrollment in grades from one through twelve. Then the unit district, educating children in grades one through twelve, would share equally with the dual system, consisting of an elementary district and high school district, and likewise the elementary district would not be penalized by a disproportionate distribution to the overlying high school district by allowing the latter to use their pupil census as a formula for fixing the high school district’s share. Each district having the responsibility of educating the children in grades one through eight, inclusive, then would receive its proportionate share based on the number of students for which it is responsible to furnish an elementary education. This gives effect to the policy of the state embodied in the various sections of the School Code that the funds and assets of schools should follow the liabilities and responsibilities attendant upon providing for an educational system. People v. Trustees of Schools, Tp. 4, 347 Ill. App. 330, 336. A statute must be construed, as was done by the circuit court, so as to be given a reasonable, practical and common sense construction. Scott v. Freeport Motor Casualty Co., 379 Ill. 155, 162.

We hold that the provisions in the quoted section of the statute requiring distribution to the school districts according to the number of pupils in average daily attendance in grades one to eight, each inclusive, is limited to the schools of such class, and that the appellant high school district does not qualify for distribution in the funds involved in these proceedings.

The judgment of the circuit court of Kankakee county is affirmed.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: PRESIDING JUSTICE ROBSON.

text:
    Mary Rose Smith, Appellant, v. Pioneer Trust & Savings Bank, Appellee.
    Gen. No. 46,988.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      David Reiff and Alexander J. Reiff, both for appellant, David Reiff, of counsel; Crowe, Yates, Abrahamson & Fisk, for appellee, Burt A. Crowe, of counsel.
   Opinion by

PRESIDING JUSTICE ROBSON.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Ray Angelini, Plaintiff-Appellant, v. Ella Constance Mohrmann et al., Defendants-Appellees.
    Gen. No. 11,016.
    Second District.
    April 12, 1957.
    Released for publication May 20, 1957.
    McClory and Bairstow, for appellant, David K. Anderson, of counsel; J. E. Bairstow, for appellees.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUDGE McCOEMICK.

text:
    Alec Shatz, Appellee, v. Aaron K. Paul, Seymour Hirschfield and Harold Hirschfield, copartners, doing business as Empire Factors, Appellants.
    Gen. No. 46,992.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.
    Samuel J. Andalman, for appellants; Collen, Kessler & Kadison, for appellee, Mark A. Greenhouse, of counsel.
   Opinion by

JUDGE McCOEMICK.

Not to be published in full.


author: JUDGE SCHWARTZ.

text:
    Nellie Warshawsky, Appellee, v. American Automotive Products Co., Appellant.
    Gen. No. 46,965.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.
    Sidney J. Goldstein and Charles A. Greenstein, for appellant; McKay & Krulewitch, for appellee.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.


author: PRESIDING JUSTICE FEINBERG.

text:
    Aubrey J. Greenberg, Appellant, v. Harold F. Birnberg, Appellee.
    Gen. No. 46,980.
    First District, Third Division.
    April 17, 1957.
    Released for publication May 8, 1957.

      James A. Thompson and Edward Slovick, for appellant; Brown, Fox & Blumherg, for appellee, Eugene L. Resnick, of counsel.
   Opinion by

PRESIDING JUSTICE FEINBERG.

Not to be published in full.


author: JUDGE KILEY.

text:
    N. Flyer & Son, Inc., Plaintiff-Appellee, v. Rabbi Louis N. Levy, Defendant-Appellant.
    Gen. No. 46,986.
    First District, Third Division.
    April 17, 1957.
    Rehearing denied May 8, 1957.
    Released for publication May 8, 1957.
    Louis A. Rosenthal, for defendant-appellant; George A. Vinik and Shulman, Shulman, Abrams and Joseph, for appellee, George A. Vinik, and Milton K. Joseph, of counsel.
   Opinion by

JUDGE KILEY.

Not to be published in full.


author: PRESIDING JUSTICE REYNOLDS.

text:
    Bertha Graff, Plaintiff-Appellee, v. Harvey J. Graff, Defendant-Appellant.
    Gen. No. 10,103.
    Third District.
    April 23, 1957.
    Released for publication May 23, 1957.
    Raymond H. Imig and Joseph W. DePew, for defendant-appellant; Cassidy, Sloan & Cassidy, for plaintiff-appellee.
   Opinion by

PRESIDING JUSTICE REYNOLDS.

Not to be published in full.


author: PRESIDING JUSTICE NIEMEYER.

text:
    People of State of Illinois, Defendant in Error, v. Michael Battiesse, Plaintiff in Error.
    Gen. No. 47,125.
    First District, First Division.
    April 29, 1957.
    Released for publication May 21, 1957.

      Stephen Lee, for plaintiff in error; Benjamin S. Adamowski, State’s Attorney of Cook County (L. Louis Karton, John T. Gallagher,. Assistant State’s Attorneys, of counsel) for defendant in error.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


author: JUDGE FRIEND.

text:
    Elizabeth A. Curran, Plaintiff-Appellant, v. Harris Trust and Savings Bank, Defendant. Harris Trust and Savings Bank, Counter-Plaintiff, v. Elizabeth A. Curran, Thomas D. Nash, Jr., Administrator de Bonis Non with the Will Annexed of the Estate of Helen Carlin, deceased, Louise McGough, Margaret Mahan, Counter-Defendants.
    Gen. No. 46,952.
    First District, First Division.
    April 29, 1957.
    Rehearing denied May 20, 1957.
    Released for publication May 21, 1957.
    George B. Craven and Eugene P. Meegan for appellant; Clark & Fisher (William E. Moran, of counsel) for appellee.
   Opinion by

JUDGE FRIEND.

Not to be published in full.


author: JUDGE BURKE.

text:
    Charles Caravella, Appellant, v. Mario Quarrella, Appellee.
    Gen. No. 47,105.
    First District, First Division.
    April 29, 1957.
    Rehearing denied May 20, 1957.
    Released for publication May 21, 1957.
    Sidney S. Altman, for appellant; Epton, Scott, McCarthy & Epton (Bernard E. Epton, and Alfred S. Druth, of counsel) for appellee.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    Nancy Levinson, Plaintiff-Appellee, v. King’s Court Corporation, F. A. Gates et al., Defendants-Appellants.
    Gen. No. 47,104.
    First District, First Division.
    April 29, 1957.
    Rehearing denied May 20, 1957.
    Released for publication May 21, 1957.
    Kinne and Scovel (Harry C. Kinne, Sr., of counsel) for defendants-appellants cross-appellees; Morris K. Levinson, for plaintiff-appellee cross-appellant.
   Opinion by

JUDGE BURKE.

Not to be published in full.


author: JUDGE BARDENS

text:
    Delores Pennell, as Administrator of Estate of Anial A. Pennell, Deceased, Plaintiff-Appellee, v. Baltimore and Ohio Railroad Company, Defendant-Appellant.
    Term No. 56-O-9.
    Fourth. District.
    January 28, 1957.
    Rehearing denied May 28, 1957.
    Supplemental Opinion May 28, 1957.
    Released for publication May 28, 1957.

      Kramer, Campbell, Costello & Wiechert, of East St. Louis, for defendant-appellant; Edwin EL Burgess, and Kenneth EE. Ekin, of counsel.
    Dan McG-lynn, McG-lynn & McG-lynn, of East St. Louis, for plaintiff-appellee; Edward J. Murphy, of counsel.
    Floyd E. Thompson, Albert E. Jenner, Jr., Harlan L. Haekbert, and Thomas P. Sullivan Amici Curiae.
   JUDGE BARDENS

delivered the opinion of the court.

Defendant appeals from a judgment of the City Court of East St. Louis entered on a jury’s verdict in the amount of $150,000 in a death case brought under the Federal Safety Appliance and Equipment Act, 45 U. S. C. A., Chapter 1. The complaint was in two counts, the verdict resting on Count II, which charged that the railroad cars of defendant involved in this accident were not equipped with couplers, operating automatically on impact. Defendant urges that the trial court erred in denying its motions for a directed verdict, its motion for judgment notwithstanding the verdict and the alternative motion for a new trial. The latter motion raises issues relating to the weight of the evidence, the size of the verdict, arguments of counsel, the giving of certain instructions and rulings on the admissibility of certain evidence.

Plaintiff’s intestate was foreman of a switching crew and was killed in the course of switching operations on July 21,1955. We do not deem it necessary to fully detail the circumstances of such incident. It suffices to say that decedent ran to a car that had failed to couple and was attempting to set the hand brake to keep it from rolling back into the path of another car that had been kicked down the track by the engine. He was unsuccessful and was instantly killed when caught between the two cars as they cornered. The evidence established that decedent was 37 years old at the time of his death and left surviving his widow and a seven year old son. His earnings, including miscellaneous income, as well as railroad pay, in 1955, aggregated $2,615.95 for the six and three-quarters months. Further elaboration of the evidence will be made in discussing the issues involving such evidence.

The familiar issue raised by defendant’s motions for a directed verdict and for judgment notwithstanding the verdict is whether there is a total failure of proof of any necessary element in plaintiff’s case. Bonnier v. C. B. & Q. R. R. Co., 2 Ill.2d 606, 119 N.E.2d 254. Under the Safety Appliance and Equipment Act, 45 U. S. C. A., Chapter 1, the duty of the railroad is, of course, absolute, and liability exists apart from actual negligence of defendant. Affolder v. New York, C. & St. L. R. Co., 339 U. S. 96, 70 S. Ct. 509. Defendant urges, however, that the failure of the couplers to function automatically was not the proximate cause of decedent’s death hut only furnished a condition which resulted in tragedy because decedent voluntarily left a place of safety to climb on the runaway car. "We find no merit in such contention. Were defendant’s employees to weigh every action in terms of possible personal injury, defendant’s business would virtually halt. Decedent’s reaction to the emergency created by the failure of the couplers to operate automatically was certainly that which might be expected of a responsible railroad employee. The fine line between “condition” and “cause” urged by defendant in this case cannot be drawn as a matter of law. And, under recent TJ. S. Supreme Court decisions in railroad cases, it is clear that given an evidentiary basis in the record, the jury’s verdict is decisive of any issue resting on causal connection. Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740. We find ample support for submitting the issue of causation to a jury and for the verdict on such issue. New York C. and St. L. R. R. Co. v. Affolder, 174 F.2d 486, Adams v. Chicago & Erie Ry. Co., 314 Ill. App. 404, 416, 41 N.E.2d 991.

The limited scope of review in railroad eases as set forth in the Lavender case, supra, is likewise determinative of any issue turning on the weight of the evidence, Harsh v. Illinois Terminal R. Co., 351 Ill. App. 272, 114 N.E.2d 901, rev. 348 U. S. 940, reh. den. 348 U. S. 977.

Defendant’s main contention is that the verdict is manifestly excessive, which issue the trial court considered in denying defendant’s motion for a new trial. We must now determine whether such ruling by the trial judge constituted an abuse of discretion. We observe that the jury arrived at the figure of $150,000 without the aid of any actuarial evidence concerning life expectancy or present value of future earnings. In the briefs, however, the verdict is defended and attacked on actuarial grounds. In support of the verdict, plaintiff points out that decedent earned $5,816.75 in 1953; that railroad men were given a 10 per cent pay raise in December, 1955, and that, therefore, the jury might have considered plaintiff’s probable pecuniary loss to he approximately $5,918.42, taking into consideration the $480 retained by decedent for his personal use. Then plaintiff argues, using 2% per cent as the discount rate and 33 years as the life expectancy, the sum of $131,924.06 would be required to produce $5,918.42 for 33 years. The difference between this figure and $150,000 is attributed to the intangible element of the pecuniary value of the loss of decedent’s care and guidance in rearing the minor son. Allendorf v. Elgin, Joliet & E. Ry. Co., 8 Ill.2d 164, 179. On the other hand defendant points out that decedent was 37 years old and had a life expectancy of 31.3 years (average of four tables); his earnings from all sources for six and three-quarters months to date of death totalled $2,615.95; and that decedent admittedly retained $480 per year from his earnings for personal expenses. The actual pecuniary loss to plaintiff from these figures would appear to he approximately $5,200, giving no consideration to the portion of such sum attributable to decedent’s share of living expenses. It is then pointed out that $150,000 invested at 3 per cent would yield $4,500 annually, and leave the principal sum undisturbed, or would produce 31 annual payments of approximately $7,500 before the principal is exhausted. It is also argued that plaintiff’s pecuniary loss in fact is more nearly $3,000 or $3,500, annually, giving consideration to decedent’s share of living expenses; that the present cash value of $3,000 and $3,500 annually, at 3 per cent interest, over 31 years is $60,001.20 and $70,001.40, respectively.

These figures and defendant’s other arithmetical analyses of the verdict give substantial support to its argument that it is excessive even though other factors, such as loss of decedent’s guidance and care in rearing of the minor son, and his handiness as a workman around the house would be proper items to consider in arriving at an over-all pecuniary loss figure. Allendorf v. Elgin, Joliet & E. Ry. Co., 8 Ill.2d 164, 179. However, it follows from the U. S. Supreme Court’s determination that appellate courts have no power to review the weight of the evidence in railroad cases, that the power to review the size of the verdict is likewise so limited. To consider this issue would necessarily require reviewing the weight of the evidence since it is obvious there is an evidentiary basis for a substantial verdict. The recent case of Southern Railway Company v. Neese, 350 U. S. 77, 100 L. Ed. 60, lends support to this view. In that case, the Court of Appeals determined in a carefully considered and actuarially supported opinion that the verdict was excessive. The Supreme Court, in a per curiam opinion, simply concluded that the record supported the jury’s verdict and reversed the Court of Appeals. While there was no clarifying discussion of the scope of review of the issue of excessiveness of the verdict in intermediate appellate courts, the result reached indicates the view of the Supreme Court on such issue. In addition, our examination of the cases reaching the U. S. Supreme Court touching on the issue of excessiveness of the verdict reveals no objective criteria against which an intermediate appellate court might weigh the exercise of discretion by the trial court in handling such issue. Nor has the Congress defined the outer limits of recovery in such cases. Therefore, in the light of the Harsh case, and in the absence of any approved standards or criteria by which a verdict may be adjudged either reasonable or excessive or so large as to indicate prejudice of the jury, this court cannot determine the trial court’s treatment of this issue to be erroneous.

Various other errors are urged by defendant. The introduction in evidence of decedent’s photograph was related to the issue of his earning ability as a part-time musical entertainer. Though its materiality is certainly very tenuous and the possibility of its prejudicial effect apparent, its admission rested in the discretion of the trial judge and there is insufficient indication of an abuse of such discretion to warrant a reversal on such ground.

We find no reversible error in the giving of the several instructions complained of by defendant, and will comment only briefly on them. An instruction in the language of the statute has specifically been approved in F. E. L. A. and Safety Appliance Cases, Howard v. B. & O. C. Terminal R. Co., 327 Ill. App. 83, 63 N.E.2d 774, Fritz v. Penn. R. Co., 185 F.2d 31 and is particularly appropriate in a case such as this where the issues are simple. The two instructions complained of as repetitious do contain certain common elements and overlapping language. However, in essence, we feel the distinction is an appropriate one between explaining what constitutes proof of failure to couple automatically and the legal effect of such failure. The next instruction complained of informed the jury that the measure of damages was the “present cash value of future pecuniary benefits” but did not explain the phrase “present cash value” or provide a method of making such computation. The authorities agree, however, that the burden is on defendant to supply any definitions or formulae which it feels desirable or necessary to explain the phrase “present value.” Wetherbee v. Elgin, Joliet & E. Ry. Co., 191 F.2d 302, O’Donnell v. Elgin, Joliet & E. Ry. Co., 193 F.2d 348, Louisville & Nashville R. R. Co. v. Holloway, 246 U. S. 525, 62 L. Ed. 867. The final instruction complained of succinctly pointed out that contributory negligence is no defense under the Safety Appliance Act. Defendant urges that such instructions should cover the proximate cause issue. Since the instruction was limited to the one matter of contributory negligence and was not peremptory, we do not feel there is merit to defendant’s contention.

Finally, defendant urges that the trial court erred in allowing improper and prejudicial argument to the jury by plaintiff. The alleged impropriety centers around plaintiff’s counsel talking about life expectancy and work expectancy in connection with his argument on damages when, as defendant alleges, no evidence had been offered on these points. We have carefully considered this matter since the case is unusual in its total lack of statistical and actuarial proof. Plaintiff was content to submit its case without the traditional evidentiary aids usually employed by plaintiffs’ counsel in these cases. But it does not follow, as defendant contends, that the jury, therefore, had insufficient evidence on which to base its estimate of damages. Proof was made as to decedent’s age, health, earnings, habits, and other factors upon which damages for pecuniary loss could be based. Actuarial testimony and mortality tables are not the only evidence of life expectancy. Such evidence is, of course, helpful to the jury in reducing the items of damages to monetary figures, but it is not a prerequisite to the establishment of a plaintiff’s case. Bunch v. Padva, 333 Ill. App. 24, 76 N.E.2d 544. And, of course, defendant was equally entitled to make use of such evidence if it deemed it necessary to a fair consideration of the issue of dam“ages. We therefore find no reversible error in the argument of plaintiff’s counsel in this connection.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

SCHEINEMAN, P. J. and CULBERTSON, J., concur.

Supplemental Opinion on Denial of Petition for Rehearing

The defendant has filed a petition for rehearing and we have allowed the intervention of Amici Curiae for the purpose of filing the brief in support of the petition for rehearing. The principal contention on rehearing and the only contention that we will consider in this additional opinion concerns our holding in the main opinion to the effect that this Court has not the power to disturb verdicts in Federal Employers Liability Act cases on the ground that the verdicts are against the manifest weight of the evidence, provided there is found to be an evidentiary basis of a submissible case for consideration by the jury.

In this connection we feel it may be helpful to review the ease on which we relied, namely, Harsh v. Illinois Terminal Railroad Company, 348 U. S. 940, 99 L. Ed. 736, which resulted in the reversal of our judgment reported in 351 Ill. App. 272. It will be noted that we found that the plaintiff, Harsh, had made out a submissible case to the jury and we then found that the verdict of the jury was' against the manifest weight of the evidence and reversed and remanded the case for new trial. Thereafter, petition for rehearing was filed and for the first time the plaintiff questioned our power to consider weight of evidence in Federal Employers Liability Act cases. We then appended a supplemental opinion shown at page 282 and 283 holding that a traditional right of procedure in Illinois governing cases of this type gave us the right to pass upon manifest weight and distinguished the cases cited by the plaintiff on the ground that the cited cases pertained to directed verdicts or judgments entered notwithstanding verdicts. One of the cases cited was Lavender v. Kurn, 327 U. S. 645, 90 L. Ed. 916, 66 S. Ct. 740. We denied the petition for rehearing. Thereafter the plaintiff filed his affidavit in compliance with the provisions of 2(C) of Paragraph 75 of the Practice Act, waived his right to a new trial, and asked that the remanding order be stricken. In pursuance to this petition and affidavit, the remanding order was stricken. Leave to appeal was denied by the Supreme Court of Illinois, but Writ of Certiorari was granted by the Supreme Court of the United States and resulted in reversal in a per curiam opinion which reads as follows: “Judgment Reversed. Lavender vs. Kurn, 327 U. S. 645, 90 L. Ed. 916, 66 S. Ct. 740.”

Amici Curiae contends that the most that can be said for the Harsh decision is that the U. S. Supreme Court disagreed with our conclusion. The citation of Lavender v. Kurn showed that the Supreme Court of the United States treated our power to reverse and remand for a new trial as against the manifest weight of the evidence the same as a directed verdict where there is sufficient evidence to make out a submissible case to the jury. The Supreme Court of the United States used the following language in deciding Lavender v. Kurn: “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”

Under the above holding we concluded that the decision of the Supreme Court of the United States in the Harsh case clearly denied the right to this Court to follow Illinois procedure and grant new trials on the basis that the verdict was against the manifest weight of the evidence. If this result provides “one brand of justice for one group of defendants and another brand for other groups,” as contended by counsel, we can only reply that we are following the dictates of an upper court and the result is not our responsibility.

For these reasons the petition for rehearing is denied.

CULBERTSON, P. J. and SCHEINEMAN, J., concur.