author: Mr. Justice Davis

text:
    (No. 34025.
    Herbert Glenn, Appellant, vs. The People of the State of Illinois, Appellee.

      Opinion filed September 25, 1956.

      Moore, Ming & Leighton, of Chicago, (George N. Leighton, of counsel,) for appellant.
    Latham CastlE, Attorney General, of Springfield, and John GuTicnECht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and David C. LEE, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

On November 20, 1952, Herbert Glenn, hereinafter called appellant, was found guilty in the criminal court of Cook County under an indictment charging him with the crime against nature, and was sentenced to serve a term of five to twenty years in the Illinois State Penitentiary. The court appointed counsel on his behalf and he waived jury trial, entered a plea of not guilty, and was tried before the court. On January 27, 1956, he filed, in the original criminal case, a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act, (Ill. Rev. Stat. 1955, chap, 110, par. 72,) asking that the judgment of conviction be vacated on the ground that he was insane at the time of the commission of the alleged offense and therefore incapable of committing any crime against the laws of the State of Illinois. (Ill. Rev. Stat. 1955, chap. 38, par. 592.) The People moved to dismiss the motion upon the grounds hereinafter considered. The motion to dismiss was sustained by order of the court entered on January 27, 1956. On February 3, 1956, appellant filed a motion to vacate the order of January 27 on the ground that the court, in entering that order, had misinterpreted and misapplied the applicable provisions of the Criminal Code, and that the effect of the order was to deny full faith and credit to the judgment of a sister State, contrary to the provisions of the constitutions of the United States and the State of Illinois. The question of the competency of court appointed counsel is not raised in this proceeding.

On February 15, 1956, the court, after hearing, entered an order denying the motion to vacate. Appellant appealed directly to- this court from both orders, on the ground that a constitutional question is involved. (People v. Humphreys, 353 Ill. 340; People v. McGurn, 341 Ill, 632.) He further contended that under the decisions of this court, his motion, filed in the criminal action involving a crime above the grade of a misdemeanor, which under our former practice was in the nature of a writ of error, continued the identity of the cause as a criminal case, and that the orders entered therein are directly reviewable. We are in accord with appellant’s contention in this respect. (People v. Quidd, 409 Ill. 137; Schroers v. People, 399 Ill. 428.) However, we must observe that the proceedings under the petition or motion are not a continuation of the original proceeding. Ill. Rev. Stat. 1955, chap, no, par. 72(2).

The record here presented for our consideration, consisting of the common-law record in the original criminal proceeding, motions filed, and orders entered in the later proceeding under section 72 of the Civil Practice Act, is inadequate in many respects.

The motion to vacate the judgment of conviction alleged that appellant was arrested in the city of Chicago on September 30, 1951, and later indicted for the crime against nature allegedly committed on that date upon the person of Cecil Powell, a member of the male sex; that the complaining witness was the mother of Cecil Powell; that on October 31, 1951, the Public Defender was appointed to represent appellant and a Behavior Clinic examination was ordered; that on November 9, 1951, a jury found appellant insane and an order was entered committing the appellant to the Illinois Security Hospital, which provided among other things that upon a future finding of sanity appellant was to be returned to Cook County to stand trial under the indictment which was then stricken with leave to reinstate; that appellant was brought back for trial, and on September 30, 1952, the criminal case was reinstated and a Behavior Clinic report again ordered; that the cause was thereafter continued, and that on November 20, 1952, a jury was empaneled to determine the sanity of appellant; that the jury returned a verdict finding appellant to be sane, after which, on the same date, appellant was arraigned, entered a plea of not guilty and waived jury trial; that a trial was then held before the court resulting in the finding of guilty and sentence; that on and prior to September 30, 1951, (the date of the alleged offense,) and at all times during the proceedings in the criminal cause, appellant was insane; that appellant had been adjudicated and determined to be insane by order of the superior court of the county of Spokane in the State of Washington, a court of competent jurisdiction, on October 1, 1948, as evidenced by a certified copy of the order of his commitment by that court to the Eastern State Hospital, Medical Lake, Washington, attached to the motion; that on October 5, 1950, appellant was transferred to the Veterans Administration Hospital, American Lake, Washington, from which he left about February 1, 1951; that there had been no subsequent adjudication or determination that appellant was sane up to and including the date of the alleged offense; that appellant’s legal incompetency to commit a crime on September 30, 1951, was not properly brought before the court; that because of appellant’s insanity the court lacked jurisdiction to enter the judgment of conviction; and that had his insanity at the time of the alleged crime been brought to the attention of the court, the court would not have entered the judgment of conviction against him.

The People urged the dismissal of the motion to vacate on the grounds that (1) appellant’s motion showed on its face that it had not been filed within the time limited by section 72 of the Civil Practice Act; (2) that the matters presented by the motion were res judicata, as appellant had raised the identical issues in the criminal court under Post-Conviction Act proceedings on which he was given a full hearing on November 6, 1953; and (3) that the motion did not state a cause of action in that it showed on its face that appellant was adjudicated sane on November 20, 1952, prior to his trial, and therefore was then capable of asserting the defense of his insanity at the time of the commission of the crime, and that his failure to do so was due to his own negligence, no facts being alleged to show that he was in any way prevented from making that defense. Though the People have presented and argued the matter of the timeliness of the motion in their brief, this question was voluntarily abandoned in oral argument before the court and need not be considered. The question of res judicata apparently was not considered by the court below, formed no basis for its decision, and was not mentioned in the briefs or arguments for either party. The record is without reference to the hearing under the Post-Conviction Act, except that the People’s motion contained the bare allegation that such a hearing was held. Therefore that issue is not presented here. Attention will be given only to the third contention of the People.

The purpose of a petition or motion under section 72 of the Civil Practice Act is to bring before the court rendering the judgment matters of fact not appearing in the record, which, if known to the court at the time the judgment was entered, would have prevented its rendition. (People v. Quidd, 409 Ill. 137.) The error of fact which the writ may be employed to correct includes such matters as the death of one of the parties pending the suit and before judgment; infancy where the party was not properly represented by a guardian; coverture, where the common law disability still exists; insanity at the time of the trial; and a valid defense which existed in the facts of the case but which, without negligence on the part of the defendant, was not made, having been prevented through duress, fraud or by excusable mistake. (People v. Quidd, 409 Ill. 137, at page 140; Schroers v. People, 399 Ill. 428, at pages 434 and 435.) Though section 72 of the Civil Practice Act was amended in 1955, it is not suggested that the scope or purpose of its provisions was altered so far as a petition or motion in the nature of a writ of error coram nobis is concerned. Proceedings under the present section are governed by the rules and principles heretofore announced by this court subject to statutory provisions to the contrary. The petition or motion under the statute is the filing of a new action, civil in nature, and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. (People v. Samman, 408 Ill. 549.) Where the motion fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss. (Thompson v. People, 398 Ill. 366.) A motion to dismiss a motion in the nature of a writ of error coram nobis admits the facts well pleaded just as in any civil case. Schroers v. People, 399 Ill. 428.

The admitted facts are that appellant was adjudged insane by order of the superior court of Spokane County in the State of Washington on October 1, 1948, and committed to a mental institution in that State; that there had been no subsequent adjudication of his sanity up to and including the date of the alleged offense on September 30, 1951; that on November 9, 1951, a hearing was had before a jury on the question of his sanity and the jury found he was then insane, after which he was committed to the Illinois Security Hospital; that on November 20, 1952, after his case had been reinstated in the criminal court, a hearing on the question of sanity was again held and the jury found he was then sane; thereafter he entered a plea of not guilty, waived jury trial, and was tried before the court, resulting in his conviction. It should be noted that no facts are stated to support the alleged conclusion that appellant was insane on September 30, 1951, (Carrico v. Barker, 411 Ill. 263; Owens v. Green, 400 Ill. 380; Connett v. Winget, 374 Ill. 531,) except the statement of his adjudication of insanity on October 1, 1948, and the lack of any adjudication of sanity between that date and September 30, 1951. In addition, the record before us affirmatively shows that appellant did not raise at his trial any question of his sanity at the time of the commission of the offense. These facts present for our immediate consideration the question of whether appellant’s failure to raise the issue at his trial precludes him from doing so under section 72 of the Civil Practice Act, where the record shows that he was sane at the time of his trial.

Under the statute (Ill. Rev. Stat. 1955, chap. 38, par. 592,) when a preliminary hearing is ordered to determine a defendant’s sanity, the inquiry is confined to a determination of his sanity at the time of the trial for the purpose of determining whether he is capable of understanding the nature and object of the proceeding against him, of comprehending his own condition in reference to such proceeding, and of conducting his defense in a rational, reasonable manner. (Cf. People v. Geary, 298 Ill. 236.) His mental condition at the time of the commission of the crime is - foreign to the inquiry and becomes pertinent only when the accused is placed on trial for the alleged crime. (People v. Lewis, 2 Ill.2d 328; People v. Gavrilovich, 265 Ill. 11.) The defense of insanity at the time of the commission of the crime may be urged on the hearing of the cause, notwithstanding a finding of a jury that defendant was sane at the time the jury was empaneled. (People v. Shaffer, 400 Ill. 332; People v. Reck, 392 Ill. 311.) The defense of insanity at the time of the commission of the crime is an affirmative defense which it is incumbent on the defendant to raise during the trial. (People v. Wagner, 390 Ill. 384.) His failure to do so waives that defense. (Brown v. People, 8 Ill.2d 540.) This is especially true where a defendant has submitted the issue of his sanity to a jury and a jury has found him sane at the time of the hearing. In People v. Shaffer, 400 Ill. 332, at page 335, this court stated: “The difficulty with the position of defendant on this point is that he had already submitted to a jury the question of his sanity, and the jury had found the defendant sane at the time of the hearing. To all intents and purposes at the time of the trial, the defendant was sane and was not precluded from raising the question of his sanity at the time of the commission of the crime as a defense to the charge.”

In the case before us the motion alleges and the record shows that appellant at his request was afforded a hearing on the question of his sanity before his trial and that a jury found him to be sane. The common-law record presented here contains none of the testimony or evidence presented at that hearing, but it is not contended that it was insufficient to support the verdict. Since he was sane at the time of his trial he was presumably capable of understanding the nature of the charge, co-operating with his counsel and making any defense available to him. There is nothing whatever in the record to suggest that he was prevented from making the defense through fraud, duress, mistake, or any lack of understanding of his rights; nor is there any allegation of incompetency, lack of diligence or co-operation on the part of his counsel. The responsibility of raising the question of the insanity of appellant was upon his counsel. People v. Wagner, 390 Ill. 384 at 386.

Had the facts of this case come before us on writ of error from the original judgment of conviction, we would have been bound to hold, under our earlier decisions, that the defense had been waived. (Brown v. People, 8 Ill.2d 540; People v. Shaffer, 400 Ill. 332.) There is no reason why the result should be otherwise on this appeal from the orders entered on the motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act.

The appellant seeks to make a distinction between an adjudication of insanity and a plea of insanity and states that since he had been adjudicated insane in 1948 and there had been no adjudication of sanity up to the date of the alleged offense, it is immaterial that he failed to plead insanity or interpose the defense at his trial. We cannot agree. The duty to interpose the defense exists, whether it is founded upon an adjudication of insanity or upon a showing of facts and circumstances existing at the time of the commission of the alleged offense. The effect of an adjudication of insanity is to raise a presumption that the condition continues, and this presumption is rebuttable by evidence of sanity. (People v. Samman, 408 Ill. 549; People v. Varecha, 353 Ill. 52.) Even this rule is subject to the following qualifications; (1) that the insanity must be of a permanent type or continuing nature; and (2) that too long a period of time must not be shown to have elapsed between the proved insanity and the time to which it is asserted that such insanity continues. (People v. Samman, 408 Ill. 549.) Thus, an adjudication of insanity is not of itself conclusive evidence that such condition exists at a subsequent time. The appellant’s prior adjudication of insanity would have raised a presumption of his insanity had he made such defense at his trial, but even then such defense would have been subject to the above limitations and could have been overcome by evidence to the contrary. However, when the defense of such prior adjudication is not asserted by a defendant who is capable of making it and is not prevented in any way from so doing, or is not asserted by competent counsel, that defense is waived the same as any other defense which is not raised, and is based on known facts, circumstances and conditions existing at the time of the commission of the alleged crime.

Our conclusion in the case at bar finds support in the decision in the Circuit Court of Appeals, Seventh Circuit, in United States ex rel. Samman v. Ragen, 167 F.2d 543, wherein the appellant appealed to said court from the denial of his application for discharge on a writ of habeas corpus. He had been convicted and sentenced on a plea of guilty for armed robbery in the State of Illinois in 1931, within a few months after his adjudication of insanity by a California court, and thereafter had never been legally restored to sanity. In that case the court held that the adjudication of insanity by the California court could not be availed of by collateral attack on the judgment of conviction for armed robbery in Illinois, where that adjudication was not called to the attention of the Illinois court, and that the sanity or insanity of a person charged with the commission of a crime must be determined by a jury in the court where the cause is pending, and certiorari was denied by the Supreme Court of the United States. (335 U.S. 830.) In said case, as in the case at bar, the appellant contended that foreign adjudication of insanity was entitled to full faith and credit until superseded by the decree of a court of competent jurisdiction. At pages 545 and 546 of its opinion, the court stated: “We cannot agree with appellant as to the binding and conclusive effect of an adjudication of insanity. We have found no case, even at common law, holding that an adjudication of insanity in some other court, at some earlier time, could be set up by collateral proceeding where the earlier adjudication was not even called to the attention of the court. Nor do we find any case where such a prior adjudication was relied upon as conclusive proof of insanity either as of the time of the commission of the crime or of the trial thereof. In fact, the rule appears to be that a prior adjudication is only prima facie, and not conclusive evidence of criminal irresponsibility. See 7 A.L.R. Annotation, 568; 68 A.L.R. Annotation, 1310.”

Assuming that the order of the superior court of Spokane County is entitled to full faith and credit, without limitation, in the courts of this State, which assumption is questionable, (28 Am. Jur. p. 670 and 671; 7 A.L.R. 568; 68 A.L.R. 1310; 102 A.L.R. 445,) that cannot relieve the appellant or his counsel of the duty of pleading that judgment in the proper proceeding here. On the record before this court, we are not justified in presuming that the insanity adjudication of the State of Washington was not considered by the trial court at the time of the sanity hearings. However, the record and pleadings affirmatively show that the appellant failed to assert the benefits of that decree in the trial in the original criminal proceeding, as required by the laws of this State.

It may well be argued that a denial of adequate opportunity to sustain a plea of insanity is a denial of the safeguard of due process within the scope of such clause of the United States and State constitutions. However, that is not the case before this court. That opportunity was offered and used by appellant in the hearings on the question of his sanity at the time of the trial. After a jury of a court of competent jurisdiction found appellant to be sane, he stood trial, and neither he, nor his counsel, saw fit to raise the defense of insanity at the time of the commission of the crime. The record fails to disclose the facts and circumstances which led appellant and his counsel to this strategic move in presenting a defense to the indictment. However, a claim of denial of due process can hardly be predicated upon calculated defense strategy which in retrospect proved inadequate. (United States v. Baldi, 344 U.S. 561.) Thus the action of the trial court in this proceeding was not a denial of full faith and credit to the decree of the superior court of Spokane County.

The appellant places much emphasis on the fact that a jury in the criminal court found him to be insane on November 9, 1951. The only issue determined in that hearing was whether or not appellant was then sane and thereby capable of co-operating with his counsel and properly conducting his defense. (People v. Lewis, 2 Ill.2d 328.) That finding was not a determination of his mental condition at the time of the commission of the alleged crime. Thereafter he was committed to the Illinois Security Hospital under an order that he should be returned for trial if he became sane. Subsequently the hospital authorities determined that appellant was sane and returned him to Cook County for trial. The adjudication of his sanity on November 20, 1952, confirms this view and establishes his sanity at the time of the trial. We cannot ascribe to the findings of the jury of November 9, 1951, any effect beyond the legal scope of that inquiry.

Throughout his argument appellant has relied upon Schroers v. People, 399 Ill. 428. In that case Schroers, who had pleaded guilty to an indictment for murder in 1923, filed a motion in the nature of a writ of error coram nobis in 1947 to vacate the judgment of conviction. This motion was supported by numerous affidavits concerning his mental condition at the time of the offense and at the time of trial and thereafter. The principal contention of Schroers was that he was in such mental condition when the plea of guilty was entered that he did not understand the effect of his plea, or the defense of insanity which he might have interposed. A motion to dismiss the action was filed by the People and sustained by the trial court. This court reversed the judgment, holding that the facts stated in the affidavits showed that the mental condition of Schroers at the time of the trial was such as to render him incapable of conducting his defense; that such condition of insanity had continued, so that the action was properly filed, though more than five years had elapsed since his conviction; and that the motion stated a cause of action and should not have been dismissed. Thus, the Schroers case is distinguishable from the case at bar. In the Schroers case defendant had been afforded no hearing on the question of his sanity at the time of his trial, and his motion was supported by numerous affdavits to show that he was insane at that time and therefore incapable of urging the defense of insanity at the time of the commission of the crime. In the case at bar, appellant was afforded a sanity hearing at the time of his trial and, after a determination that he was sane, was presumably capable of interposing any defenses he might have. He alleges no facts whatever in his motion which would warrant any other conclusion.

Upon the record before us, we find that the orders of the criminal court of Cook County were correct, and they are therefore affirmed.

Orders affirmed.


source: Caselaw Access Project

author: Mr. Justice HERshey

license: Public Domain

text:
    (No. 34065.
    The People Gas Light and Coke Company et al., Appellants, vs. The City of Chicago et al., Appellees.

      Opinion filed September 25, 1956.

      Daily, J., took no part.
    Ross & O’Keefe, Sibley, Austin, Burgess & Smith, Wilson & McIlvaine, Forest D. SiEfkin, and C. Bouton McDouGal, all of Chicago, for appellants.
    John C. Melaniphy, Corporation Counsel, of Chicago, (Joseph F. Grossman, and Earl E. Meisenbach, of counsel,) for appellees.
   Mr. Justice HERshey

delivered the opinion of the court:

The Peoples Gas Light and Coke Company sued in the circuit court of Cook County to restrain the enforcement of a Chicago ordinance imposing a tax upon persons engaged in the business of selling gas for use or consumption within the city at the rate of 5 per cent of gross receipts. Upon motion of the city for summary judgment, the court dismissed the complaint. A constitutional question being involved, this court has jurisdiction on direct appeal.

In June of 1955, the General Assembly enacted Senate Bill 750 which amended the Revised Cities and Villages Act and purported to give cities the following additional tax powers:

“To tax any or all of the following occupations or privileges:
“1. Persons engaged in the business of transmitting messages by means of electricity, at a rate not to exceed 5% of the gross receipts from such business originating within the corporate limits of the municipality.
“2. Persons engaged in the business of distributing, supplying, furnishing, or selling gas for use or consumption within the corporate limits of the municipality, and not for resale, at a rate not to exceed 5% of the gross receipts therefrom.
“3. Persons engaged in the business of distributing, supplying, furnishing, or selling electricity for use or consumption within the corporate limits of the municipality, and not for resale, at a rate not to exceed 5% of the gross receipts therefrom.
“4. Persons engaged in the business of distributing, supplying, furnishing or selling water for use or consumption within the corporate limits of the municipality, and not for resale, at a rate not to exceed 5% of the gross receipts therefrom.” Ill. Rev. Stat. 1955, chap. 24, par. 23 — 113, p. 590.

At the same session, the Public Utilities Act was amended to allow these taxes to be passed on to the consumer. Ill. Rev. Stat. 1955, chap, mji, par. 36.

Acting pursuant to this statute, on December 1, 1955, the Chicago city council passed three ordinances. The first, called the “Gas Ordinance,” taxed persons engaged in the business of selling and distributing gas in Chicago (including Peoples Gas Light and Coke Company, the only public utility selling gas in Chicago) at the rate of 5 per cent of gross receipts. The second, called the “Electricity Ordinance,” taxed persons engaged in the business of selling and distributing electricity (including Commonwealth Edison Company, the only public utility selling electricity in Chicago) at the rate of 5 per cent of gross receipts. The third, called the “Messages Ordinance,” taxed persons engaged in the business of transmitting messages by means of electricity (i.e., Illinois Bell Telephone Company and Western Union Telegraph Company) at the rate of 2 per cent of gross receipts.

However, in the “Electricity Ordinance” a credit, equal to street use payments, is allowed against the tax. Since under its franchise ordinance Commonwealth Edison pays 4 per cent of its gross receipts for use of streets, this taxing ordinance actually exacts only an added 1 per cent — or taken together, the stated 5 per cent. (Commonwealth Edison’s franchise ordinance contemplates and provides for a credit of this type.) Likewise, Illinois Bell pays the city 3 per cent of its gross receipts for use of streets under a franchise agreement, so that the additional 2 per cent exacted by the “Messages Ordinance” results in payments equal to 5 per cent. But Peoples Gas, under a perpetual charter granted by the General Assembly in 1855 and consented to by the city of Chicago in 1858, is not required to pay for use of city streets.

Peoples Gas was joined by three of its customers in its attack on the validity of the “Gas Ordinance.” The cause was heard on complaint and motion for summary judgment, with affidavits filed by both sides. The court held with the city, granting its motion for summary judgment.

In asking us to reverse the circuit court, Peoples Gas makes three contentions: (1) The tax is not uniform as to class, in violation of section 1 of article IX of the Illinois constitution. (2) The tax results in the unconstitutional impairment of a contract subsisting between it and the city. (3) The statute upon which the ordinance is based was not passed in accordance with the procedures required by article IV of the Illinois constitution.

The principal issue in the case involves the validity of the tax as against the contention that it is not uniform as to class. (Ill. Const., art. IX, sec. 1.) To determine this question, we must ascertain the following: (1) Did the General Assembly authorize the city of Chicago to impose this particular tax? (2) If so, does the legislation so delegating that authority create an unconstitutional classification?

■ As to the existence of the authority, the statute empowers a city to tax my or dll of the four enumerated occupations or privileges. Moreover, as among these four the rates may vary, so long as none exceeds 5 per cent of gross receipts. Therefore, even if we assume that the actual effect of the “Electricity Ordinance” is to- exact a tax of only 1 per cent, as contrasted with the “Gas Ordinance” which imposes a 5 per cent tax, it is clear that the statute contemplates and provides for that possibility. Eor this reason, any unconstitutional classification must be found, if at all, in the statute.

The pertinent constitutional provisions are as follows:

“§ 1. The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so- that every person and corporation shall pay a tax in proportion to the value of his, her or its property — such value to- be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise; but the general assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, innkeepers, grocery keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, vendors of patents, and persons or corporations owning or using franchises and privileges, in such manner as it shall from time to time direct by general law, uniform as to the class upon which it operates.
“§ 2. The specification of the objects and subjects of taxation shall not deprive the general assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution.”

Peoples Gas contends that it is in the same “class” as Commonwealth Edison or other sellers of electricity, in that the businesses are competitive and both involve the sale of energy. On the basis of this, it asserts that the tax rates must be equal.

No argument is made, however, that those engaged in transmitting messages by telegraph or telephone, or in selling water, are likewise in the same class with the sellers of electricity and gas. (Cf. Liberty National Bank v. Collins, 388 Ill. 549, 558.) Accordingly, we must determine whether the legislature may classify separately, for occupation or privilege tax purposes, those engaged in the business of selling gas and those engaged in selling electricity. It is a question of first impression in this State.

It must be recognized at the outset that the two occupations are not identical, and because of their differences the possibility of a separate classification is not necessarily precluded. But there are certain similarities, and it must be judged whether they are sufficient to require that the two be grouped in a single “class,” as that word is used in section 1 of article IX of our constitution.

Our general approach must be one of respect for the legislative determination, since a classification of objects for taxation is valid unless shown to be unreasonable or arbitrary. (Johnson v. Halpin, 413 Ill. 257; McGrath v. City of Chicago, 309 Ill. 515.) Great latitude is given legislative bodies to classify trades, callings, occupations, or businesses, the only requirement being that the classification rest upon a reasonable basis. City of Chicago v. The Willett Co. 1 Ill.2d 311; Reif v. Barrett, 355 Ill. 104.

The constitutional provision itself makes a number of separate classifications, and these offer some indication as to the broad discretion vested in the General Assembly to classify occupations for revenue purposes. For among those specifically enumerated are some who' are in competing businesses or occupations: e.g., peddlers, hawkers, merchants, and commission merchants; showmen and jugglers; toll bridges and ferries.

Similarity here arises mainly from the fact that both electricity and gas are forms of energy which can be used for the same ultimate purpose (though the means of adaptation are different,) and those engaged • in selling gas are in certain areas and at certain times in competition with the sellers of electricity. But we do not believe the similarity is so strong as to- demand a single classification.

First, as illustrated by the development of Peoples Gas itself, we note significant changes in the characteristics of the product offered for sale and the uses to which it is put. Peoples Gas was incorporated in 1855 by a special act of the legislature, which empowered it to manufacture and sell illuminating gas "for the purpose of lighting the City of Chicago or the streets thereof and any building, manufactories, public places or houses therein contained.” Later, in 1897, the legislature provided that companies theretofore authorized to manufacture and distribute illuminating gas could manufacture and distribute gas for fuel purposes and also distribute natural gas. By 1916 approximately 80 per cent of the gas sold by Peoples Gas was used for cooking, heating or other nonlighting uses, and 20 per cent for lighting purposes. This trend continued, it appearing, for example, that at the end of 1953 the city of Chicago had 118,794 lamps served by electricity, but not a single gas lamp in operation. Moreover, during this time, the gas was changed so as to enhance its heating value while at the same time diminishing its illuminating value.

The foregoing, in our opinion, indicates one of the hazards of erecting a constitutional bar to the instant classification and supports that view which leaves it with legislative bodies to keep pace with changes and make needed adjustments through ordinary political processes.

Second, while competition between the two businesses is a factor to be considered, it certainly is not conclusive, especially in view of the constitutional provision itself which enumerates occupations in some ways competitive. Further, this record discloses a vast area where the two businesses are no longer competitive at all. The “gas light era” having passed, lighting is done almost exclusively by electricity.

It appears that at the time the instant ordinance was passed, Peoples Gas was engaged almost entirely in the sale of natural gas for fuel purposes. In this field, it is admitted that gas and electricity may be competing services. But even here, there are basic differences in the means by which the two products are produced, distributed and used; and so many variable factors are involved in determining their respective market positions as to negate the absolute necessity for a single classification.

Third, although there are no Illinois authorities directly in point, there are cases where this court has upheld legislative classifications that differentiated between objects having similar characteristics or attributes. (Johnson v. Halpin, 413 Ill. 257, cigarettes, as distinguished from other tobacco products; People v. Deep Rock Oil Corp. 343 Ill. 388, gasoline, as distinguished from other kinds of motor fuel; Routt v. Barrett, 396 Ill. 322, horse racing, as distinguished from harness racing; Reif v. Barrett, 355 Ill. 104, sale of tangible personal property generally, as distinguished from sales under conditional sales contracts or sales on time or credit. See also Heisler v. Thomas Colliery Co. 260 U.S. 245, bituminous coal, as distinguished from anthracite coal, and Southwestern Oil Co. v. Texas, 217 U.S. 114, wholesale dealers in coal, oil, naphtha, benzine, or any other mineral oils refined from petroleum, as distinguished from other wholesalers.) Indeed, classifications have been approved where a general occupation has itself been subdivided in some reasonable manner. McGrath v. City of Chicago, 309 Ill. 515, tax on furniture movers graduated according to size and number of vehicles operated; Metropolis Theater Co. v. City of Chicago, 246 Ill. 20, graduated license fees for theaters based on price of admission.

Apparently the validity of this type of classification has arisen in only one jurisdiction, Nebraska. In 1916, a Federal district court found a Nebraska 2j4 per cent occupation tax on gas companies to be lacking in uniformity. (Lincoln Gas & Electric Light Co. v. City of Lincoln, 182 Fed. 926.) The court said a page 929: “* * * an electric plant, which furnishes to the public light, heat, and power should be classed the same as a gas plant, which furnishes to the public light, heat, and power. The fact that one furnishes the light, heat and power by means of an electric current — the other by a current of gas — does not * * * justify a difference in classification.” This conclusion was approved that same year by the Nebraska Supreme Court in City of Lincoln v. Lincoln Gas & Electric Light Co. 100 Neb. 182, one justice dissenting. The latter said: “The real question is whether there is any difference in the occupation of manufacturing and selling gas and that of producing and selling electricity as to afford room for classification. It seems to me there is no room for doubt here. An electrician carries on an entirely different occupation from that of a gas maker, and makes a different product, though it may be used for some similar purposes.”

We do not find the Nebraska cases persuasive. Even at the time, the differences between the occupations or businesses were probably such as to permit of a separate classification, but since then these differences have increased. An instance already mentioned is the field of lighting in which competition between the two services is practically nonexistent today.

For the reasons stated, we do not believe it has been demonstrated that the legislative classification is unreasonable or arbitrary; hence, we conclude that the requirements of section 1 of article IX of the Illinois constitution have been met.

Next, Peoples Gas contends that the tax results in the unconstitutional impairment of a contract subsisting between it and the city. The argument runs as follows: Peoples Gas, under its charter, is not obligated to pay the city for use of streets; nor does the city have statutory authority to exact street use payments. (Village of Lombard v. Illinois Bell Telephone Co. 405 Ill. 209.) Commonwealth Edison, on the other hand, pays the city 4 per cent of gross receipts for use of streets, as required by franchise agreement. So, while both the “Gas Ordinance” and the “Electricity Ordinance” purport to tax at the rate of 5 per cent, in actual effect Commonwealth Edison pays only an additional 1 per cent. Therefore, the purpose of the city council was not to exact an equal tax rate, but under the guise of a taxing ordinance to impose a street use charge of 4 per cent on Peoples Gas. This, it is asserted, is an unconstitutional impairment of contract.

However, even if we accept the contention of Peoples Gas that the city sought to equalize the actual rate of recovery from the two companies and in effect exacted unequal tax rates, still the 5 per cent tax under the “Gas Ordinance” does not cause an unconstitutional impairment of contract. For, as aforesaid, the legislature’s grant of authority, containing a valid classification respecting sellers of electricity and sellers of gas, authorized a tax against Peoples Gas up to an amount equal to 5 per cent of gross receipts. Up to this amount the tax is valid regardless of what rate is purportedly imposed or actually exacted under the “Electricity Ordinance.” Even if the actual motive of the city council was as represented, there is no constitutional bar to their so acting. The city had express authority from the legislature to do the very thing it did impose a tax against sellers of gas not exceeding 5 per cent and a tax not in excess of 5 per cent against sellers of electricity), and this delegation of power was shown to have been valid.

Finally, it is argued that the statute upon which the ordinance is based was not passed in accordance with that part of section 13 of article IV of the Illinois constitution which declares that every bill “and all amendments thereto shall be printed before the vote is taken on its final passage.”

This legislation, Senate Bill No. 750, was introduced on May 26, 1955. After passage in the Senate, the bill was transmitted to the House of Representatives, where it was amended and then passed as so amended. But the Senate refused to concur in the House amendments. On June 30, the last day of the session, a conference committee was appointed, consisting of three members from each body. That committee made a report recommending that the House recede from its amendments and also that a new amendment be adopted. On the same day, each house voted to adopt the committee report.

The journal of the House recites that the conference committee report was printed; but the Senate journal does not state whether the report was ever printed in the Senate, and it is this which Peoples Gas claims vitiates the act.

On this record, we do not believe the objection is well taken. The bill as finally adopted differed in no material respect from the bill as it left the Senate. The only effect of the conference committee amendment was to accomplish the following: restate the exemption of transactions subject to the Municipal Retailers’ Occupation Tax Act which was already in the bill; add a provision for uniformity of taxation upon all persons engaged in businesses of the same class, whether privately or municipally owned, (matters already covered in the definition of “Person,”) and make a minor change in the definition of the words “transmitting messages.” Such being the case, it cannot be said that the amendment was so connected and dependent upon the remainder of the act that the legislature would not have passed the latter without the former. Hence, even if it be assumed that the constitution requires that the committee report be separately printed by each house, failure to print the conference committee amendment in the Senate would not render the whole act void, but would, at most, invalidate the amendment. (See People ex rel. Brady v. La Salle State Trust and Savings Bank, 269 Ill. 518, 523.) And since none of the provisions challenged in the instant suit were contained in or materially affected by the amendment, the plaintiffs have not sustained their constitutional attack on the provisions affecting them.

The decree of the circuit court of Cook County is affirmed.

Decree affirmed.

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


author: Mr. Chief Justice Klingbiel

text:
    (No. 33903.
    The People of the State of Illinois, Defendant in Error, vs. Henry Morris, Plaintiff in Error.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Henry Morris, pro se.

    Latham Castle, Attorney General, of Springfield, and John GuticnEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L-Carlin, of counsel,) for the People.
   Mr. Chief Justice Klingbiel

delivered the opinion of the court:

Plaintiff in error Henry Morris, and one Fisher Brown, were indicted in the criminal court of Cook County for the crime of murder. Plaintiff in error, who was tried separately before a jury, was found guilty. He was sentenced to the penitentiary for a term of 199 years, and prosecutes this writ of error to review the proceedings.

The record shows that on August 28, 1948, at about 10 P.M., Earl Vappie, an operator of a Chicago Motor Coach bus, was shot and killed while driving the bus north along South Park Avenue in Chicago. There were four eye-witnesses to the crime, exclusive of Fisher Brown. Norfleet Vappie, the brother of the deceased bus driver, was seated in the bus on the long seat right behind the driver. He testified that he observed two men get on the bus. One of these men, whom Vappie identified as the killer, walked immediately to the back of the bus and took a seat. He described this man as being a dark-colored negro, dressed in a brown suit, black T shirt, and a hat which was pulled down all the way around. He also stated that this man wore dark glasses and had a patch of adhesive tape on his cheek. Some time after this man went to the back of the bus he walked up to the front, leaned over the bus driver and had some conversation with him, which the witness was unable to hear. At that time he heard a gun go off and saw his brother slump over the wheel. He saw the killer leave the bus by the front door. Three other passengers — namely Beatrice Harris, who was seated between Earl Vappie and the driver; Briggs Connell, seated for a time beside the defendant, and Robert Steward, seated near the rear door of the bus — testified substantially the same.

Defendant was arrested at about four o’clock in the morning following the night of the crime. At that time he was in an automobile with three other men; and a gun, later identified as the murder weapon, was found under the front seat. All four men were taken to the police station, booked on charges of disorderly conduct, and admitted to bail. When their case came on for trial the charges were dismissed. Defendant was again arrested on October 4, when he was placed in a line-up and viewed by Connell, Steward and Norfleet Vappie. Steward pointed out defendant as the man who shot the bus driver. Vappie and Connell told the police merely that defendant resembled the killer.

Fisher Brown testified that on August 28 defendant visited him at his home. At that time Brown said he had a gun, which he displayed to defendant. The latter obtained possession of the gun from Brown, refused to give it back, and said he had to see a fellow who owed him some money. Defendant forced Brown to go with him and they walked a short distance when they boarded the bus operated by deceased. When Brown saw the defendant walk toward the front of the bus he was afraid there would be trouble so he started to crawl out of the window and when the gun went off, he jumped out the window and ran down the street. Defendant pursued him but Brown dashed into a near-by housing project and lost defendant. Brown then went down to the police station to report the theft of his gun. Since he did not know the gun’s registered number, the desk sergeant told him to come back the following day with that information, which he did. Brown was arrested on October 4, and taken to the police station where he was asked to look through a crack in a door and see if he could identify the man in the other room. He identified defendant as the man who took his gun and shot the bus driver.

Testimony concerning an oral confession was given by Vappie, Connell, Steward, an Assistant State’s Attorney and several police officers, who all testified that at the time of defendant’s third arrest on October 4, immediately following the show-up, defendant orally admitted that he had taken the gun from Brown and had shot the bus driver. The witnesses all testified that defendant refused to give a written statement at that time saying that he was not going to sign himself to the electric chair.

The defense interposed by defendant was an alibi and a complete denial of any involvement in the crime. He denied making any oral confession. He testified that on the day of the crime he was on a picnic with his wife and several other persons. They did not leave the picnic area until around 10 :oo P.M. when they boarded a street car which took them back to the home of defendant’s wife’s parents. They talked there for awhile and went inside and ate and left the house between 10:30 and 11:00 P.M. Defendant then went to a service station where he remained until about 3 :oo in the morning. At about that time a car drove into the service station. The men in the car asked if defendant could direct them to the Flamingo Lounge and defendant said he could. While they were driving the car, they were arrested by police as previously stated. Defendant’s testimony was corroborated by that of his wife and one of the other people who were on the picnic. Defendant’s wife testified that the other persons were unable to appear as witnesses for the reason that they would lose their jobs if they took time off from work.

The principal errors assigned by defendant are that the State failed to establish his guilt beyond a reasonable doubt, and that the court improperly instructed the jury. An instruction concerning the oral confession told the jury that “There has been admitted in evidence in this case a confession. It is for the jury to determine from all the facts and circumstances in the case what weight or credit shall be given by them to this confession, and shall be considered by the jury with all the other evidence in the case in determining the guilt or innocence of the defendant.” It is clear that the giving of this instruction was error. One of the controverted questions in the case was whether a confession had been made. Witnesses for the prosecution testified that defendant had made the statements in question. The defendant, on the other hand, denied that he had made them. The instruction, however, assumes the existence of the confession, leaving to the jury only the matter of what weight should be given to it. The question whether the confession had in fact been made by the defendant was one to be passed upon by the jury, upon a consideration of all the evidence in the case. This court has repeatedly held that where the facts are controverted and the evidence is conflicting it is error to assume such controverted facts to be true. People v. Biella, 374 Ill. 87; People v. Harvey, 286 Ill. 593; Hellyer v. People, 186 Ill. 550.

In view of the error discussed it is unnecessary to express any opinion upon the weight of the evidence, or upon other assignments of error. For the reason stated the judgment of the criminal court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Schaeeer

text:
    (No. 33750.
    Chicago City Bank & Trust Company, Trustee, et al., Appellees, vs. The City of Highland Park et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Thomas H. Compere, Corporation Counsel, of Highland Park, (S. GrosshandlER, of counsel,) for appellant.
    Maurice J. Nathanson, of Chicago, and Paul C. BEhanna, of Highland Park, (Leonard J. Braver, of counsel,) appellees.
   Mr. Justice Schaeeer

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Lake County which declared invalid certain provisions of the zoning ordinance of the city of Highland Park, as they apply to plaintiffs’ property. The trial court certified that the public interest required a direct appeal to this court. The challenged provisions are those which govern intensity of use, the height of buildings and off-street parking facilities.

Plaintiffs’ property is located at the northeast corner of the central business district in Highland Park, at the intersection of Sheridan Road and Park Avenue. It is improved with a building which contains six retail stores on the main floor and seven apartments on each of the second and third floors. The fourth floor is an attic area under a high mansard roof, which plaintiffs desire to convert into seven additional apartments. When the building was built in 1929, the elevator shaft, electrical circuits and rough plumbing were run up to the fourth floor.

The American Legion Hall and the Highland Park Woman’s Club are located in the block to the north on Sheridan Road. North of these buildings is a public school with a tower rising higher than plaintiffs’ building. Immediately to the east of plaintiffs’ property is a two-story building occupied by doctors’ offices and apartments. Beyond this building is a residential area extending east about a mile to1 Lake Michigan. The central business district lies to the south and west of plaintiffs’ property. Four blocks west and south is the city water tower, which rises to a height considerably greater than that of the plaintiffs’ property.

Since 1926 the zoning ordinances of the city of Highland Park have continuously prohibited the erection or alteration of any building to' exceed three stories or 45 feet in height. In 1928 the then owners of this property applied for a permit to- erect a five-story store and hotel building. The denial of this application was affirmed by the Zoning Board of Appeals, which found that no practical difficulty or unnecessary hardship was involved. Thereafter, in 1929, the owners erected the present building, pursuant to' a permit for the construction of a three-story store and apartment building. Plaintiffs are the trustee and the beneficiary of a trust which purchased the property in 1947.

In 1947, shortly before the plaintiffs purchased the property, the city enacted a new zoning ordinance which retained the three-story limitation. A comprehensive zoning survey preceded enactment of this ordinance. At that time the then owners urged the council to remove the limitation. After three public hearings the council determined that it was not in the best interest of the city to do so. In 1948 the council reaffirmed its judgment in this matter after a series of public hearings before the zoning committee of the city council, upon the written request of the plaintiff Reingold for a special permit to extend the use of the building in question. The committee report filed at that time recommended disallowance on the grounds that the sewers serving the building were inadequate for present use, and that the parking situation was acute in the area.

In addition to violating the three-story limitation, use of the fourth floor for apartments would violate the intensity of use provision of the ordinance. The premises in question have a lot area of approximately 13,310 square feet, which is equal to 950 square feet per family for 14 families, or 634 square feet for 21 families. The zoning ordinance of 1926 required 950 square feet of lot area per family, and the ordinance of 1947 requires 1500 square feet of lot area per family. For a new building, the present ordinance would permit occupancy by nine families. Plaintiffs seek permission for occupancy by 21 families.

The ordinance also requires the maintenance of parking space to accommodate one car for each unit in a multiple dwelling on the lot or within 200 feet therefrom. Although there is some dispute on the point, it appears that the nearest off-street parking area available to tenants of the building is a public parking lot more than 500 feet distant from the premises.

The trial court entered a decree holding the ordinance invalid as to plaintiffs’ property and ordering issuance of a building permit. Plaintiffs admit that the proposed alterations do- not comply with the height and intensity of use limitations, but contend that there is adequate parking space within 200 feet. This contention is not supported by the evidence. The private parking lots of a nearby mortuary and theater are not available to the public. The municipal parking lot across the street from the theater does not permit overnight parking, as plaintiffs’ tenants would require. The only other off-street facility in the area is the municipal parking lot more than 500 feet from the premises.

In a memorandum opinion the trial court stated that it could “see no applicability of any rule requiring a minimum amount of lot space for persons occupying the building * * * since the structure is located in the central business district and rules which might apply to residential structures would obviously not apply.” This conclusion was erroneous. The statute which authorizes enactment of regulations governing intensity of land use is not limited to residential areas. (Ill. Rev. Stat. 1955, chap. 24, par. 73 — 1.) The ordinance expressly states that the minimum lot area requirements are to be the same in the central business district as in wholly residential areas. One of the purposes of such a regulation is to protect the public facilities from excessive use. In view of the heavy demands put on such public facilities as water mains, sewers and streets, by commercial users, restrictions upon intensity of use are no less necessary in central business areas than in wholly residential areas.

In its opinion the trial court held the three-story limitation arbitrary, unreasonable and confiscatory as to plaintiffs’ property. Allowing the proposed alteration, the court said, would greatly enhance the value of plaintiffs’ property without impairing the public health, comfort, safety and general welfare. In so holding the court stressed the fact that the overall height of the building would not be increased, and its exterior would not be altered. This holding, however, ignored the function of the three-story limitation as a regulation of the intensity of use of the premises. It is true that one of the purposes of height limitations is to assure adequate light and air to- adjacent properties, but that is not their only function. The broader purpose of the city council in enacting this ordinance is clear from the fact that the limitation is expressed in number of stories as well as in number of feet.

“Where the proper authorities have adopted a zoning ordinance pursuant to- a legislative grant, a presumption favoring its validity always obtains [citations]. One assailing the validity of such an ordinance as arbitrary and unreasonable * * * must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action, that there is no- permissible interpretation which justified its adoption or that it will not promote the safety and general welfare of the public.” First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 225.

The plaintiffs attempted to overcome this presumption by the testimony of three witnesses: plaintiff Reingold, Evert Kincaid, a professional city planner, and Donald Anderson, a former manager of the property. Reingold testified that there was a serious shortage of rental housing units in Highland Park, particularly for many widows and elderly couples who would like to sell their large, old homes, if they could find other places to live; that these people ordinarily preferred accommodations as close to the shopping area as possible, and that allowing him to remodel the building as proposed would help meet the need he described.

Kincaid testified that the property was designed to be used in the proposed manner, and that it was practical to complete the building as proposed by plaintiffs; that the highest and best use of the property would be with completion of the fourth floor in connection with its present use; that the proposed alteration would have no adverse effect on the surrounding property, particularly since the exterior of the building would not be affected, and that the increased availability of rental housing (“We have young families who desire to rent a home or place to live and such facilities are not available”) would help to meet a serious community need. He further stated that in his opinion “Highland Park had insufficient property zoned for multiple-family use in proper locations.”

Anderson, the former manager of the building, testified that in his opinion the building was now worth about $275,000; that the proposed improvements could be made at a cost of about $40,000, and that they would increase the value of the building about $75,000 to $80,000; that while he was manager, the building was tenanted by 19 or 20 elderly persons, who caused no parking problems because most of them were too old to drive automobiles; that he assumed that the sewer facilities servicing the building were adequate, and that in his opinion the highest and best use of the property would be with completion of the fourth floor as proposed by plaintiffs.

In our opinion this evidence wholly fails to prove that application of the ordinance to- plaintiffs’ property is arbitrary or capricious. No evidence was offered to show a more intensive use of property anywhere in the city than now exists on plaintiffs’ property. The present ordinance would permit use of the property for nine apartments. Plaintiffs now have 14 apartments on the property, and would have 21 apartments under the proposed alteration. Nor did plaintiffs’ evidence indicate any building of more than three stories in the entire city. The only structures which rise to- a greater height are the ornamental tower of the public school and the city water tower. That the ordinance permits churches to have 75 foot steeples, and certain public or quasi-public buildings, such as hotels, hospitals, churches and schools to- be erected to- a height of 60 feet, does not establish discrimination.

The plaintiffs seek a privilege accorded no- other person under this ordinance. Indeed, if plaintiffs were allowed to create the additional apartments by finishing off the fourth floor of their building, it is difficult to see how the limitations of the ordinance could fairly be enforced against any owner of property in the central business district. Plaintiffs, however, argue that a distinction exists between their property and other properties. The fourth story is already built, they say, and was designed to be finished off in the manner proposed.

We think that the attempted distinction is without substance. Plaintiffs’ predecessors, in 1928, constructed the building pursuant to- a permit to erect a three-story building, issued after a permit for a five-story hotel had been denied. Their action in erecting this building, and in taking substantial steps toward completing the fourth floor was gratuitous, and appears to- have been taken in violation of the ordinance. The building is either a legally constructed three-story building with an attic, or it was illegally constructed. The unnecessary and possibly illegal action of plaintiffs’ predecessors affords no basis for now according to plaintiffs the exclusive privilege of owning the only four-story building in the central business section of Highland Park. If any hardship is involved, it was self-induced.

Although plaintiffs’ witness Kincaid testified that “Highland Park does not have sufficient area zoned for multiple-family use in proper locations,” he did not identify any deficiencies in the present zoning plan. The defendant attempted to rebut this testimony by showing that there are 30 acres of land zoned for multiple-family use, which are not now so used. The trial court sustained plaintiffs’ objections to' admission of this rebuttal evidence on the ground that considerations relating to other properties were not relevant in this proceeding, which concerned the use of an existing building. This ruling was erroneous. The existing zoning was clearly relevant when an alleged shortage of property zoned for multiple-family housing was being urged as a basis for voiding an intensity of use limitation. Weseman v. Village of La Grange Park, 407 Ill. 81.

It was further urged that the merchants would benefit by the increased business patronage of the people in the fourth floor of the building. To' the extent that such tenants had automobiles and parked them in the street during business hours, the interest of the merchants would suffer. In any case, the factor was one to be weighed by the city council, rather than by the court. First National Bank of Lake Forest v. County of Lake, 7 Ill.ad. 213.

The evidence shows that as early as 1925 the sewer servicing the plaintiffs’ building was considered shallow and inadequate. There was testimony by the former city engineer that the mains servicing this property were installed in 1891 and are six inches in diameter; that State law now establishes eight inches as a minimum, and that in the residential area to the east of the building there has been trouble with flooded basements. He testified that the load on the sewers averages 150 gallons per person per day, and that in his opinion adding seven additional apartments would seriously burden the system. The only evidence offered by plaintiffs was the testimony of the former building manager, Anderson, that while he was manager of the building, between 1946 and 1951, he had experienced no difficulties. That evidence does not, of course, meet the issue.

There was also considerable evidence of a serious parking problem in the immediate area. That evidence need not be stated in detail. It is sufficient to point out that unless some arrangement was made with the mortuary or the theater the automobiles of the prospective tenants would remain on the streets at least a part of the time. To the extent that they did, they would aggravate the already acute shortage of parking spaces.

The record as a whole shows a reasonable basis for the enactment of the ordinance and for the action of the city council in refusing to grant special permission to plaintiffs to complete the proposed alteration. The decree of the circuit court of Lake County is reversed, and the cause remanded to that court, with directions to dismiss the complaint.

Reversed and remanded, with directions.


author: Mr. Justice Hershey

text:
    (No. 33813.
    The People ex rel. John C. Byrnes et al., Appellees, vs. Stillman J. Stanard, Director of Agriculture, et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Latham Castle, Attorney General, of Springfield, (William C. Wines, Raymond S. Sarnow, and A. Zola Groves, of counsel, for appellants.
    Michael F. Ryan, of Chncago, (Richard F. Mc-Partlin, Jr., of counsel,) for appellees.
   Mr. Justice Hershey

delivered the opinion of the court:

Fight original plaintiffs and three intervening plaintiffs, former civil service employees in the Illinois Department of Agriculture, brought a mandamus suit in the circuit court of Cook County to compel restoration of their jobs and payment of back salaries, claiming their dismissals were in violation of applicable provisions of the State civil service laws.

The defendants, all State officers, moved to dismiss the complaints. But the court overruled the motions as to all but one of the plaintiffs, John A. McNamara. (The latter’s complaint was stricken on the ground of laches.) After the defendants elected to stand by their motions, judgments were entered for the ten plaintiffs, with the court reserving jurisdiction as to rights to back salaries. The defendants and plaintiff McNamara appealed to- the Appellate Court, where the appeals were consolidated. The Appellate Court affirmed as to all plaintiffs except McNamara. And as to him, the judgment was reversed and the cause remanded with directions to overrule the defendants’ motion. 6 Ill. App.2d 441.

Before reaching the merits of the case, we must pass on a motion by the plaintiffs to dismiss the appeal, based on a contention that the defendants’ petition for leave to appeal was not filed in apt time and this court is therefore without jurisdiction.

The Appellate Court order was entered on June 13, 1955. The defendants petitioned for a rehearing, and on July 5, 1955, an order was entered, signed by Justice Grover C. Niemeyer, which recited that he had considered the petition for a rehearing and ordered it denied. On August 24, 1955, the defendants asked that the July 5 order denying a rehearing be expunged, asserting that it was signed by one justice only and was therefore void. On September 6, 1955, the plaintiffs moved to- amend, nunc pro■ tunc, said July 5 order. And a week later, on September 13, 1955, the Appellate Court did amend that order, nunc pro tunc as of July 5, 1955, to make it read as follows: “On this day in vacation during the June Term, A.D. 1955, the Honorable Joseph Burke and Grover C. Niemeyer, Justices of said Court, having considered the petition of appellants praying for a rehearing in said cause and the said Justices being now fully advised in the premises doth order that the prayer of said petition be and the same is hereby denied.” This order further recited that the previous order had been concurred in by Justice Burke, but through a clerical error was shown to have been the action of Justice Niemeyer alone.

The defendants filed their petition for leave to appeal on September 21, 1955, and the question arises as to whether it was filed within 40 days from the date the judgment of the Appellate Court became final through the denial of a petition for rehearing. (Ill. Rev. Stat. 1955, chap, 110, par. 75.) The answer to this depends upon whether the time is computed from July 5 (the date of the order signed by one justice) or from September 13 (the date of the amended order). In our opinion, the latter date is controlling, and it follows that the petition for leave to appeal was timely.

The July 5 order purported to be the action of one justice acting alone, and since the concurrence of two is necessary for every Appellate Court decision (Ill. Rev. Stat. 1955, chap. 37, par. 31,) it was void on its face. It was not validated until the order of September 13, and until then the defendants could not have asked for a further review of the case. Since the entry of a valid order denying a rehearing was essential to a further appeal, it follows that September 13 must be held to mark the beginning of the 40-day period. Otherwise, a court could, in effect, retroactively abrogate the right to seek a review of a case by causing to be spread on the record an order that was void on its face, and then, more than 40 days later, reform the same nunc pro tunc. Such a course would clearly be violative of the statutory provisions pertaining to this aspect of our appellate practice and procedure.

Turning next to the substantive issue, the legality of the dismissals, we first summarize the allegations of the complaints, all of which stand admitted by reason of defendants’ motions to dismiss.

Prior to their dismissals in June, 1953, the plaintiffs were employed by the Department of Agriculture as “Foods and Dairies Inspectors.” Having duly qualified for their positions by civil service examination, they had civil service status. Their duties consisted of inspecting and examining foods and food establishments for the purpose of enforcing food and sanitary laws.

Back in 1949, the Director of Agriculture instituted a program designed to improve and simplify the department’s organizational structure. Among other things, the Division of Standards and the Division of Foods and Dairies were consolidated, the new division being called “Division of Foods, Dairies and Standards.” One of the objectives of the change was to avoid duplication and better coordinate the work of “Weights and Measures Inspectors” and “Foods and Dairies Inspectors.” In September, 1952, the department conducted a special training school to acquaint personnel with the administrative changes. Foods and dairies inspectors were taught to check small scales, so as to eliminate the necessity for a weights-and-measures inspector making a special trip to a food establishment being inspected by a foods-and-dairies inspector. It was determined by the Director of Agriculture and the Civil Service Commission, and the plaintiffs were so advised, that the consolidation would in no way affect their civil service status or create any new position for which an examination would be necessary. And in January, 1953, the director issued identification cards to the plaintiffs in which they were listed as “Standards Inspectors — Foods and Dairies Inspectors I” under the Civil Administrative Code.

At the 1953 session of the General Assembly, laws were passed to reflect and formalize these administrative changes and to approve the same for fiscal, payroll and accounting purposes. As regards those provisions affecting the plaintiffs, the title of “Foods and Dairies Inspector” was changed to “Foods, Dairies and Standards Inspector,” but the essential functions, duties and responsibilities of the position were not altered.

On June 20, 1953, the director advised the plaintiffs by letter that the General Assembly had abolished the position of inspector in the Division of Foods and Dairies, and because of this their connection with the State would be severed. A few days later they received separation notices in which the director told them they were “laid off” and gave the following reason: “Lay off due to legislative action and for the reason of efficiency and economy.” However, the director subsequently employed noncivil service personnel under the title of “Foods, Dairies and Standards Inspector” to perform the identical duties previously performed by the plaintiffs. The latter made formal demand for reinstatement, but their demand was ignored. The instant suit was filed on September 21, 1953.

The plaintiffs contend that the minor additions to the title and duties of their civil service position did not operate to abolish the position or abrogate their civil service tenure. They assert that the actions of the defendants amount to a to deprive them of their civil service rights. The defendants, on the other hand, argue that the legislature abolished the position, and since the plaintiffs never qualified by civil service examination for the new position, the dismissals were lawful.

We believe the plaintiffs presented a case for reinstatement. The General Assembly did not abrogate their civil service tenure, but rather ratified and confirmed that tenure. For the allegations of the complaints, which were admitted by defendants’ motions to dismiss, show that the title change was made in order to conform the title, for payroll and accounting purposes, to the title conferred by the director in his departmental consolidation and administrative reform. Moreover, it is admitted that the minor addition to the plaintiffs’ duties did not change the essential character of the job. It has been held repeatedly that normal accretion of duties imposed by the passage of time and by department heads, in the interest of more efficient operations, do not create new positions or invalidate the civil service rights of the incumbents. People ex rel. Turner v. Johnson, 340 Ill. App. 171; McArdle v. City of Chicago, 216 Ill. App. 243; McArdle v. City of Chicago, 172 Ill. App. 142; Corbett v. Allman, 312 Ill. App. 484, 490-1.

The cases relied upon by defendants are ably analyzed and distinguished in the Appellate Court opinion, and further statement or elaboration is unnecessary.

Finally, as to plaintiff McNamara, the trial court sustained the defendants’ motion to dismiss on the ground of laches. The Appellate Court reversed this portion of the trial court’s judgment and remanded the case as to McNamara with directions to deny the motion to dismiss and for further proceedings. This did not dispose of the case as to McNamara, and as to him the judgment of the Appellate Court is not final and appealable. (Cf. Cory Corp. v. Fitzgerald, 403 Ill. 409, 414-5.) The appeal as to McNamara is dismissed.

The judgment of the Appellate Court as to the other plaintiffs is affirmed.

T j . n~ . Judgment affirmed.


text:
    (No. 33931.
    Chicago Historical Society, Appellee, vs. Herbert C. Paschen, County Collector, et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      John GuTknecht, State’s Attorney, of Chicago, (Gordon B. Nash, Vincent P. Flood, Charles D. Snewind, and William Sylvester White, of counsel,) for appellants.
    King, Robin, Gale & Pillinger, of Chicago, (George W. Gale, of counsel,) for appellee.
   Mr. Justice Schaeeer

delivered the opinion of the court:

The Chicago Historical Society brought this action to restrain the county of Cook and its officials from collecting taxes for the years 1947 through 1954 which had been assessed against four parcels of real estate owned by the Society. The complaint alleged that in an earlier action in the same court an injunction had been issued to restrain the collection of 1945 taxes upon the same properties, “and that said decree is res judicata of the fact that said real estate is, and so long as the plaintiff continues to own it will continue to be, exempt from all real estate taxes.”

The answer set out the act of 1857 which incorporated the Society and the amendment of 1867 which authorized it to mortgage its real estate and provided that “the real estate and property of said society shall be exempt from taxation.” The answer alleged the circumstances under which the Society acquired title to the real estate in question in 1941. It also contained allegations as to the early history of the Society designed to show that the exemption was intended to apply only to the real estate owned and actually used by the Society in 1867, and not to real estate subsequently acquired and held for income production, like that here involved. The answer also alleged that the amendment of 1867 was invalid because it violated the constitution of 1848 and that it was repealed by the constitution of 1870 and subsequent legislation.

The answer denied that the issues raised in the present case were presented in the earlier case, and alleged that the issues now raised have not been adjudicated. The Society moved for judgment on the pleadings. Its motion was allowed, a decree for the plaintiff was entered, and the defendants appeal.

The case turns on the effect to be given to the prior decree which found these properties exempt from taxation.

The trial court held that it was conclusive as to the exempt status of the property, and in this we think it erred.

To sustain the decree plaintiffs rely on People ex rel. Carr v. Psi Upsilon Fraternity, 324 Ill. 540. There the county court of Cook County held a fraternity house exempt from taxation for the years 1923 and 1924. Those judgments were not reviewed. Later the question of the taxability of the same property came before this court in connection with taxes for the year 1925, and it was held that the county court’s judgment was conclusive as to the tax exempt status of the property, in the absence of a change in ownership or use. (Cf. Oak Park Club v. Brenza, 7 Ill.2d 389.) Parenthetically, it may be noted that when the question of the taxability of fraternity houses finally came before this court on the merits in People ex rel. Carr v. Phi Kappa Sigma, 326 Ill. 573, they were held taxable. But res judicata was nevertheless considered effective to preserve an anomalous tax exempt status for one fraternity house. See People ex rel. Harding v. Psi Upsilon Fraternity, 335 Ill. 317.

We are not here called upon to review the soundness of the rulings in the Psi Upsilon cases. In those cases there was no suggestion that the issues in the later cases differed significantly from those in the first case. Here the contention is that the issues in the present case were not raised in the earlier one. Because “a cause of action for taxes for one year is not the same as or identical with a cause of action for taxes for subsequent years,” (People ex rel. Lloyd v. University of Illinois, 357 Ill. 369,) a former judgment as to the tax exempt status of property can at most be binding only as to those questions which were raised and determined. It does not control those issues which might have been raised, but were not. The distinction is the familiar one between res judicata on the one hand, and collateral estoppel, or as it is sometimes called, estoppel by verdict, on the other. People ex rel. Lloyd v. University of Illinois, 357 Ill. 369; People ex rel. Adams v. McKibben, 377 Ill. 22; People ex rel. Oller v. Missouri Pacific Railroad Co. 388 Ill. 271; Oak Park Club v. Brenza, 7 Ill.2d 389.

In this case the defendants assert that the issues tendered by their answer were not litigated in the earlier case. Neither in the trial court nor in this court has the plaintiff attempted to show that the issues raised by the defendants’ present answer were involved in the former case. Instead it has taken the position that it is entitled to a decree in its favor so long as the ownership and the use of the property are unchanged. That position is unsound.

The burden is upon the party who relies upon res judicata or collateral estoppel to establish its applicability. (Charles E. Harding Co. v. Harding, 352 Ill. 417; City of of Geneseo v. Illinois Northern Utilities Co. 378 Ill. 506.) Plaintiff made no effort to satisfy that burden by showing that the issues now sought to be raised were presented and determined in the earlier case. Before the case could be ripe for decision it was necessary that the scope of the prior judgment be ascertained, and that any new issues be heard and determined. It was therefore error to enter a decree for the plaintiff on the pleadings. The decree must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded, with directions.


author: Mr. ChiEE Justice Klingbiel

text:
    (No. 33966.
    Ray Franzen et al., Appellees, vs. Charlotte Donichy et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Charles F. Grimes, William M. Rice, James W. Bayer, and A. Howard LangerT, all of Chicago, for appellants.
    Edward G. BicEk, and AlerEd F. Beck, both of Chicago, for cross-appellant, Leah Palkey.
    C. Hilding Anderson, and Joseph P. Burke, both of Chicago, for appellee.
   Mr. ChiEE Justice Klingbiel

delivered the opinion of the court:

Ray Franzen, the purchaser at a tax foreclosure sale in the circuit court of Cook County, filed a petition to set aside a redemption on the ground that the respondents, Charlotte Donichy and Patricia Theriault, did not have sufficient title or interest in the property to entitle them to redeem. Leah Palkey, the occupant of the property, filed an intervening petition claiming title and praying that respondents be decreed to- have no interest therein. The issues were referred to1 a master, who found in favor of respondents and recommended that both the original and the intervening petitions be dismissed. The court sustained petitioner Fran-zen’s exceptions to the report. Those of the intervening petitioner were overruled and the intervening petition was dismissed. By separate decrees dated November 28, 1955, the court ordered the county clerk to expunge the redemption and to issue a tax deed to petitioner Franzen. Respondents appeal, insofar as the decrees set aside their redemption, and the intervening petitioner has perfected a cross-appeal objecting to the dismissal of the intervening petition. Jurisdiction of this court on direct appeal is based on the fact that a freehold is involved. See People v. Hess, 7 Ill.2d 192.

The foreclosure suit was begun in 1952, for unpaid taxes and assessments from 1929 to- 1946. The suit proceeded regularly to* foreclosure decree and order of sale. At the sale, held December 30, 1952, petitioner Franzen was the purchaser; and in due course the sale was approved by the court and certificates of sale were issued to him. On December 21, 1954, respondents redeemed; and on January 20, 1955, the present petition was filed. No question is raised concerning the validity o-f the foreclosure and sale, the sole issue being whether the respondents had sufficient interest to entitle them to redeem.

The record shows that in 1932 the property in question, consisting of a small house on four lots in Franklin Park, Illinois, was owned by one Anna Frost. In that year she applied for admission to the Danish Old Peoples Home. On July 16, 1935, she was admitted to the Home, which agreed in writing to keep and maintain her for the remainder of her life in consideration of the sum of $500 and certain promises to be performed by her. The instrument, executed by both parties and acknowledged by Anna Frost, is set forth on a printed form bearing the title “Contract,” and appears in the form of a contract. Paragraph 3 thereof provides in part that the applicant “does hereby grant, bargain, sell and convey to* said The Society for the Danish Old Peoples Home, all of his property, both real and personal, of every kind and description, and wherever situated, which he now owns or to which he may now or hereafter be entitled, * * * and does further agree and covenant to promptly furnish the said Home with full information in relation to any such property or rights; and also to execute and deliver to said Home any further transfers, conveyances, assurances and instruments which may be required or requested of me for the purpose of carrying this agreement and provisions thereof into effect.” Anna Frost remained in the Home until her death on April 6, 1938.

The Society for the Danish Old Peoples Home conveyed its interest in the property to- respondents by quitclaim deed on November 30, 1954. The instrument between Anna Frost and the Old Peoples Home was recorded November 17, 1954, and the quitclaim deed was recorded December 6, 1954. The question presented is whether the respondents, by virtue of these instruments, possessed an interest in the property so as to give them the right to redeem. A determination of that question depends, in turn, upon (x) whether the instrument of July 16, 1935, was sufficient to convey a legal or equitable title to the Old Peoples Home, (2) whether Anna Frost had conveyed her property to the intervening petitioner prior to that date, and (3) whether the intervening petitioner had acquired title by adverse possession prior to the redemption by respondents.

With respect to the effect of the instrument dated July 16, 1935, respondents contend first that it constituted a conveyance of the legal title, and second that even if it were only an agreement to convey, the Old Peoples Home thereby acquired an equitable interest in the property upon fully performing its part of the agreement. We think it clear that the instrument is merely a contract, not a deed or conveyance of title. The question is one of intention, to be gathered from the instrument itself; and “although there are words of conveyance in praesenti in a contract for the purchase and sale of lands, still if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey and not a conveyance.” (See Williams v. Paine, 169 U. S. 55, 76, 42 L. ed. 658, 667.) It makes no difference for present purposes, however, that the instrument was a mere contract to convey. It was effective to vest in the Home an equitable title to the interest of Anna Frost. The general reference to all of her real estate was sufficient to identify the property, with the aid of extrinsic evidence, and did not render the instrument void for uncertainty of description, as urged by the petitioners. See Welsh v. Jakstas, 401 Ill. 288; Cumberledge v. Brooks, 235 Ill. 249; Holbrook v. Forsythe, 112 Ill. 306.

If Anna Frost still retained an interest in the real estate at that time, the Home became equitably entitled to it; and if the right of the Home and its grantees has not been since extinguished by adverse possession on the part of the intervening petitioner, the respondents could redeem even though their interest was merely equitable in nature. While a mere stranger to the property has no right to redeem, it is enough if the person assuming to redeem has some “interest” therein, even though it does not amount to complete ownership. (People v. Hess, 7 Ill.2d 192; Houston v. Buer, 117 Ill. 324.) Redemptions are looked upon with favor, and unless injury is to result to the purchaser at the sale a liberal construction will be given redemption laws. Mohr v. Sibthorp, 395 Ill. 418.

It is further contended that the intervening petitioner and her husband, since deceased, had acquired title from Anna Frost prior to' her contract with the Old Peoples Home by an unrecorded deed which has since been lost; and that the latter therefore did not own the property when she executed the contract through which respondents purport to derive their interest. The only evidence to sustain this claim is the testimony of the intervening petitioner, Palkey, that in 1932 or 1933 she and her husband received a quitclaim deed in consideration of $350 in cash and a promise to pay $1050 additional at the rate of $35 per month and to assume a $2000 mortgage indebtedness. Petitioner also seeks corroboration for such a sale by the facts that in her 1932 application for admission to the Home, Anna Frost stated as her means of support “income from sale of real estate;” and that neither in the application nor in the subsequent contract did she list any real estate, although a statement of property owned was called for therein. The record contains evidence, on the other hand, of conversations prior to the hearing, in which the witness stated she had been paying “rent” to' Anna Frost. The master specifically found that she was evasive, and that “She was obviously trying tO' say the right thing to support her case rather than to recite facts. Her demeanor was not such as to induce credence and most of her examination was a confusion of leading questions, conclusions and contradictions from which little admissible evidence could be drawn.” It is clear that the conclusions of the interested witness, Palkey, are not enough to prove a conveyance of the property, nor can the equivocal statements and omissions in Anna Frost’s application and contract with the Old Peoples Home supply the deficiency. One who seeks to establish the existence of a lost deed by parol testimony must bear the burden of making such proof in a clear and conclusive manner. Deeds are evidence of title, and if they are lost public policy demands that proof of their former existence be strong and conclusive. (Stephens v. Collison, 330 Ill. 48.). The evidence offered here falls far short of this standard.

The same infirmity exists in the intervening petitioner’s alternative contention that she acquired title by adverse possession. The evidence discloses that she was in posession for over 20 years and had made some repairs, but no taxes were paid and there is little to indicate her possession was adverse or under claim of title. It appears instead that she entered into occupancy as a tenant, and there is no satisfactory evidence to show a subsequent change in the character of the possession. Petitioner points to the fact that Anna Frost listed no real estate in her application and contract with the Old Peoples Home, and they ask us to infer from this “that she knew she had parted with title” and that “the only ones to' whom she could have conveyed were the Palkeys.” If such an inference were justified title would have been shown by actual conveyance, and it would be unnecessary to establish claim of ownership for purposes of adverse possession. But such meager evidence is as inadequate for the purpose of proving adverse possession as it is for establishing the existence of a lost deed. “In repeated decisions we have announced the rule to' be that adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be clear, positive and unequivocal.” (Sottiaux v. Bean, 408 Ill. 25.) Where possession has been acquired in subserviency to the owner, clear and positive assertion of an adverse right must be shown before any foundation can be laid for the operation of the statute. (Joseph v. Evans, 338 Ill. 11.) Both the master and the court found there was insufficient evidence to prove Leah Palkey had acquired title, either through adverse possession or by deed, and it is clear that such findings are not against the manifest weight of the evidence.

We conclude that the circuit court properly dismissed the intervening petition, but erred in expunging the redemption and ordering issuance of the tax deed. The decrees are reversed and the cause remanded with directions to enter a decree for respondents in accordance with the views herein expressed.

Reversed and remanded, with directions.