author: Mr. Chile Justice Hershey

text:
    (Nos. 33806-9 Cons.
    The People ex rel. C. Ward Harris, County Collector, Appellee, vs. Chicago and North Western Railway Company et al., Appellants.

      Opinion filed March 22, 1956.

      Nelson Trottman, of Chicago, and Hugh Dobbs, and Miles Gray, both of Springfield, (Lowell Hastings, and Gerald M. Chapman, of counsel,) for appellants.
    Edward R. Phelps, State’s Attorney, of Carlinville, and Paul C. VerTicchio, Assistant State’s Attorney, of Gillespie, (J. E. Wenzel, of counsel,) for appellee.
   Mr. Chile Justice Hershey

delivered the opinion of the court:

These four tax objection cases from the county court of Macoupin County present the same legal question and have been consolidated for argument and decision. Two of the cases (Nos. 33806-7) involve the 1952 taxes of Community Consolidated School District No. 10, and the other two (Nos. 33808-9) the 1953 taxes of this school district. The objectors are the Chicago and North Western Railway Company and the Superior Coal Company, who urge on this appeal that the court erred in refusing to permit them, before hearing, to add another ground in support of their pending objections.

To understand the problem here it is necessary to review briefly the litigation between these parties relative to the 1951 taxes of this district, which culminated in a decision by this court. People ex rel. Harris v. Chicago and North Western Railway Co. 4 Ill.2d 216.

On August 11, 1951, the district held an election at which the voters approved a rate of $1,775 Per $I0° of assessed valuation. In protesting the 1951 taxes, the objectors claimed this election was void, for the reason that the district had failed to establish itself as a 12-grade district and was limited to the $1.125 rate that could lawfully be voted for an elementary school district. (Ill. Rev. Stat. 1951, chap. 122, par. 17 — 3.) The county court overruled the objections, and we affirmed. On that appeal, however, the objectors also argued that the August election was invalid because the rate could not be increased from $.90 to $1.775 at a single election. (Ill. Rev. Stat. 1951, chap. 122, par. 17 — 4.) But since that ground was not specified below, we held that they could not urge it on appeal. Ill. Rev. Stat. 1951, chap. 120, par. 716.

After our opinion on the 1951 taxes was published, the objectors asked permission to amend similar objections to the 1952 and 1953 taxes which were then pending in the county court, so as to put in issue this alleged violation of section 17 — 4 in raising the rate from $.90 to $1.775 at a single election. The requests were made before hearing, but the county court refused to permit the amendments, overruled the objections and entered judgments for the collector.

The sole question is whether the county court erred in refusing the objectors leave to file the preferred amendments.

Section 235 of the Illinois Revenue Act (Ill. Rev. Stat. 1951, chap. 120, par. 716,) provides inter alia-: “In all judicial proceedings of any kind for the collection of taxes and special assessments, all amendments may be made which by law could be made in any personal action pending in such court.” In construing an earlier statute containing identical language, this court said: “This language is broad and comprehensive, and under it amendments to objections to judgment and order of sale for delinquent taxes may and should be permitted in so far as may be necessary to permit objectors to fairly present any existing valid objections to the application for judgment and sale against their lands for delinquent taxes, if made in apt time.” (Chicago, Madison and Northern Railroad Co. v. People ex rel. Elsesser, 207 Ill. 312, 314.) The right to amend in a tax objection proceeding is governed by the same rules applicable to ordinary pleadings. People ex rel. Anderson v. Chicago and Eastern Illinois Railroad Co. 399 Ill. 520; People ex rel. Nelson v. Ridge Country Club, 399 Ill. 46. See Ill. Rev. Stat. 1951, chap. 110, par. 170; Ill. Rev. Stat. 1951, chap. 7, par. 1.

No reason appears, especially in the light of the liberal amendment provisions which prevail in this State, why the objectors should not have been granted permission to amend the objections. Specifically, the amendments were tendered before hearing, they did not change the objections themselves but merely added a new ground or reason in support thereof, they came as no surprise to the appellee in view of the objectors’ unsuccessful attempt to raise the question on the appeal covering the 1951 taxes, and the objectors were not guilty of undue delay since they tendered the amendments soon after our decision on the 1951 taxes was published. Under these circumstances, it was clearly an abuse of discretion for the county court to deny the objectors their day in court to litigate the defense stated in the prof erred amendments.

The collector, however, argues that a trial court does not abuse its discretion in refusing leave to amend where the amendment adds a “new, distinct and unrelated objection,” citing People ex rel. Brittain v. Outwater, 360 Ill. 621. This decision is not in point. For one thing, in the instant cases the objectors did not seek to press a new objection. Rather, they asked to state a new ground for the original objection. Thus, they asserted originally that the election of August 11, 1951, was invalid for the reason that the district was not properly established as a 12-grade district and hence was limited to the rate for elementary school districts. (Section 17 — 3 of the School Code.) But while their 1952 and 1953 objections were pending, this court decided in the case involving the 1951 taxes that they were wrong in this contention. Moreover, we held that since the objection did not specify a violation of section 17 — 4 of the School Code, that matter could not be considered on appeal. Accordingly, in order to test the merits of this second ground for objecting to the August 11, 1951, election, and for that matter to then have any reason for complaining of the election, the objectors had to secure leave of court to amend the objection by adding this second ground. In both instances, however, the objection is directed to the validity of the August n, 1951, election, with only a difference in the grounds or reasons advanced to support the objection.

The collector also advances a waiver or estoppel argument. He apparently takes the position that an objector is precluded from ever asserting any ground for objection not set forth originally. This, however, would completely destroy the statutory right to amend and finds no support in the cases.

For the reasons stated, the judgments are reversed and the causes remanded with directions to allow objectors’ motions to amend and to proceed in due course.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Dairy

license: Public Domain

text:
    (No. 33824.
    Liberty National Bank of Chicago, Trustee, Appellant, vs. Robert N. McCreary et al., Appellees.

      Opinion filed March 22, 1956.

      Benjamin A. Rasky, of Chicago, for appellant.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, (George R. Lyon, of counsel,) for appellees.
   Mr. Justice Dairy

delivered the opinion of the court:

Liberty National Bank of Chicago, as trustee and titleholder under a land trust, commenced this action by filing a complaint in equity in the circuit court of Cook County. The complaint was stricken on motion of the defendants and plaintiff was granted leave to file an amended complaint. The latter pleading alleged that defendants Robert N. McCreary and Harriet Gay were the owners of real property adjoining that owned by plaintiff, that the respective properties were improved with a common structure, and prayed for the declaration and enforcement of alleged contractual, easement and prescriptive rights running between the parties and their properties. The amended complaint was likewise stricken on motion of the defendant McCreary and his spouse, the order of the court reciting that it was defective in that it failed to allege the facts or terms relative to the claimed contractual rights and easements. With further leave of court, the plaintiff then filed pleadings titled “First” and “Second” amendment to the amended complaint. To these pleadings the McCrearys filed a motion to strike and to dismiss the cause for want of equity. After hearing, the court granted the motion, its order stating in part: “* * * neither the first or second amendment to the complaint [ííc] cured the defects for which the original complaint and the amended complaint were heretofore respectively stricken.” Plaintiff has appealed directly to this court from such order on the theory that an easement, and thus a freehold, is involved so as to give us jurisdiction. The scope of the errors assigned for reversal is that the amended complaint stated a cause of action, and that the court should have ordered defendants to plead so the cause could proceed to a hearing on the merits.

We think it apparent that we have no jurisdiction of the appeal. In the first place the easement which may be said to involve a freehold so as to give this court jurisdiction is a perpetual easement or one of indefinite duration. (Burke v. Kleiman, 355 Ill. 390; Bartley v. Pleasure Driveway and Park District of Peoria, 251 Ill. 373; Stevenson v. Lewis, 244 Ill. 147.) Here the plaintiff’s complaint makes only the bare allegation that “easements” exist and says nothing concerning their nature, their duration, or the circumstances under which they come into existence. In short, the complaint leaves the duration of the easements claimed entirely to conjecture. It is true the second amendment to the amended complaint alleges an oral agreement for the division of rents from the common property, but here again the allegations are too incomplete and vague to sustain a theory that indefinite or perpetual easements in defendants’ land were created thereby. This court may not speculate on the nature and duration of the easement plaintiff intended to claim, nor may it assume jurisdiction on so tenuous a pleading of the jurisdictional ground.

Wholly apart from what has been said, there is yet another reason which precludes us from having jurisdiction. For this court to entertain jurisdiction on the ground that a freehold is involved, it must be involved not only in the original proceeding but also in the questions to be determined upon review by this court. (Jones v. Hodges, 1 Ill. 2d 415; Frey v. Schaab, 379 Ill. 315.) The chancellor in the present case did not reach the question of whether the easements existed and could be enforced but decided only, as a matter of practice, that the complaint was a defective pleading and dismissed the cause when it appeared plaintiff had been unable to cure the defects after being given three opportunities to do so. There was thus no question of freehold involved in the decision and it cannot be said that a freehold was gained or lost thereby. (Cf. Hawkins v. City of Elgin, 1 Ill. 2d 540.) Similarly, and by the scope of the errors plaintiff assigns here, it is only a question of practice that is involved in the issue presented by this appeal, vis., Was the complaint defective, or did it properly state a cause of action? If we were to reverse the order of the trial court our only alternative would be to remand the cause with directions to deny the motion to strike and to proceed to a hearing on the merits; if we were to affirm the order we would, in effect, decide only that the complaint was defective. By neither action would a freehold be gained or lost or a decision rendered on the merits of the plaintiff’s claim to a freehold interest. (Smith v. Johnson, 313 Ill. 17; McCarthy v. McCarthy, 6 Ill. 2d 52.) We would, rather, only be deciding a matter of practice which we have no jurisdiction to review.

The cause is transferred to the Appellate Court for the First District.

Cause transferred.


author: Mr. Justice SchaEREr

text:
    (No. 33830.
    Arthur R. Lindburg et al., Appellants, vs. Zoning Board of Appeals of the City of Springfield et al., Appellees.

      Opinion filed March 22, 1956.

    DeBoice, Greening & Ackerman, of Springfield, for appellants.
    A. M. Fitzgerald, and Walter T. Day, both of Springfield, for appellees.
   Mr. Justice SchaEREr

delivered the opinion of the court:

The Zoning Board of Appeals of the city of Springfield permitted a variance from the requirements of the Springfield zoning ordinance with respect to two adjoining residential properties. Arthur R. Lindburg and 16 other owners of property in the vicinity instituted a proceeding in the circuit court of Sangamon County under the Administrative Review Act to review the action of the board. The circuit court affirmed the decision of the board, and this appeal followed.

Jurisdiction of this court upon direct appeal rests upon the appellants’ contention that section 73 — 4 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1953, chap. 24, par. 73 — 4,) is unconstitutional. That section authorizes zoning boards of appeals to vary the application of zoning regulations “in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter” of the regulations. The appellants emphasize that this language is almost identical with that which was held invalid in Welton v. Hamilton, 344 Ill. 82. The Springfield ordinance follows the language of the statute, and appellants contend that it, too, is invalid, citing Speroni v. Board of Appeals, 368 Ill. 568. They urge also that the orders of the zoning board of appeals failed to comply with the command of the statute that “Every variation * * * shall be accompanied by a finding of fact specifying the reason for making the variation.” (Ill. Rev. Stat. 1953, chap. 24, par. 73 — 4.) Other grounds are advanced for reversal but in the view we take of the case they need not be stated.

While the question of the validity of the statute is properly presented and sustains the jurisdiction of this court upon direct appeal, the constitutional question should not be decided if the case can be disposed of on other grounds. (People ex rel. Downs v. Scully, 408 Ill. 556; Winston v. Zoning Board of Appeals, 407 Ill. 588.) The considerations which prompt judicial reluctance to pass upon the validity of legislation unless it is necessary to do so are here augmented by the fact that the statute in question has been amended since this case arose. (Ill. Rev. Stat. 1955, chap. 24, par. 73 — 4.) We turn, therefore, to the contention that the orders of the zoning board of appeals did not contain the findings required by statute.

The properties in question are located in the “A” residential and “A” area districts. One and two-family dwellings and apartment houses of two stories or less are among the uses permitted in the “A” residential district. In the “A” area district, a minimum of 3000 square feet of lot area is required for each family. The same uses and others are permitted in the “B” residential district, but the “B” area district requires a minimum lot area of only 580 feet per family. The owners of the properties filed petitions for variances which stated the dimensions of the respective lots, that each was improved with a two-story frame residence occupied as a dwelling by a single family and that the owners desired to remodel them into apartment houses of the type permitted in a “B” residential district. The board conducted a hearing and then entered the orders in question.

Excluding formal portions, the orders read as follows:

“It further appeared to the Board that there were at the present time other homes in the vicinity in which there were apartments for more than one family.

“That there are practical difficulties and hardships in the way of carrying out to the strict letter the restrictions in the code pertaining to the ‘A’ residential use of the above described property, insofar as the use of the building or structure now located thereon.

“That the proposed variation in use of said property would not impose any undue hardship or burden on the neighborhood or adjoining property.”

These orders do not comply with the statute. They do not contain “findings of fact specifying the reason for making the variation.” The requirement of the statute is not met by parroting the highly generalized statutory phrases, “practical difficulties” and “particular hardship.” The single statement that amounts to a finding of fact, “that there were * * * other homes in the vicinity in which there were apartments for more than one family” is consistent with present “A” residential use of those other homes, because apartment houses of two stories or less are permitted in the “A” district. It is therefore meaningless as a basis for a zoning variation.

The order of the circuit court is reversed and the cause remanded, with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.


author: Mr. Justice Bristow

text:
    (No. 33829.
    Eleanor E. Bergendahl, Appellee, v. Logan J. Stiers et al., Appellants.

      Opinion filed March 22, 1956.

      William J. Curtis, of Calva, for appellants.
    Huber, Reidy & Katz, of Rock Island, (Isador I. Katz, and John M. TellEEn, of counsel,) for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

Defendants-appellants appeal directly to this court from a decree of the circuit court of Henry County entered on the pleadings construing the last will of Logan J. Stiers, deceased, to the effect that plaintiff and the two defendants each own an undivided one-third interest in a certain 80 acres and decreeing partition thereof. The title to a freehold being directly in issue, the appeal properly comes direct to this court.

Logan J. Stiers died testate on January 17, 1919, a resident of Henry County, Illinois, owning the real estate here in issue. His will, which was duly admitted to probate, contained only one dispositive clause which provided as follows:

“Second. I give, devise and bequeath all my Real Estate and Personal Property of whatsoever kind and wheresoever situated unto my wife, Ethel I. Stiers, for her use and her use alone, so long as she shall live; and at her death said Real Estate and Personal Property shall become the property of my heirs in body then living. This bequest is made on the condition that the above mentioned Real Estate shall never be sold or mortgaged.”

The testator left him surviving his widow and three children, vis.: Florence Stiers Wilson, Logan J. Stiers, and Cosetta Stiers Luallen. The widow took and continued in possession of the farm until her death on July 10, 1950. Florence Stiers Wilson died in 1939 and left her surviving one child, Eleanor F. Bergendahl, plaintiff-appellee herein. On the death of testator’s widow, Logan J. Stiers and Cosetta Stiers Luallen, defendants-appellants, entered into possession of the farm and have been in possession continuously since then, claiming exclusive ownership as tenants in common.

Plaintiff-appellee filed her complaint to construe the will of Logan J. Stiers, deceased, for partition, and for an accounting, alleging in substance the above facts and claiming that under the will plaintiff and the two defendants were tenants in common in equal parts of the farm as they were “heirs in body then living” of Logan J. Stiers, deceased. Defendants’ motion to dismiss the complaint as being insufficient in law was denied. Thereafter defendants’ answer was filed, the first part of which admitted the facts as recited above and the second part of which alleged that under said will the defendants and Florence P. Wilson, named in the complaint as Florence Stiers Wilson, each became vested with an undivided one-third interest in the real estate subject to the widow’s life estate and contingent upon their surviving the life tenant and that by the death of Florence P. Wilson prior to the life tenant the defendants each became vested with an undivided one-half interest therein. Plaintiff’s motion to strike the second part of said answer as being insufficient at law and previously ruled upon was granted by the trial court. Defendants’ amended answer omitted the second part of the original answer, and denied the interests of plaintiff in the land and her right to partition or accounting. Plaintiff thereupon filed her reply and motion for judgment on the pleadings, upon which motion the decree appealed from was entered.

Defendants assign sixteen propositions as error, but their points and authorities and argument are all directed to the single question of whether the trial court correctly construed the will in question and the answer to that question is determinative of the case.

The substance of the testamentary provision in question is to devise a life estate in real estate to testator’s surviving widow, and a contingent remainder therein to a class designated as “my heirs in body then living.” All parties have correctly agreed that “my heirs in body” refer to the same thing as “heirs of the body.” Defendants also correctly concur in the proposition that “heirs of my body” is not limited to “children” but includes in such classification any lineal descendant who is an heir of the testator at the time of the determination. (Gridley v. Gridley, 399 Ill. 215; Hickox v. Klaholt, 291 Ill. 544.) A gift to heirs of the body is a gift to a class. Lancaster v. Lancaster, 187 Ill. 540.

The basic question at issue is the time of determination of the class to take the remainder interest. Is the class intended to take the remainder those heirs of the testator’s body in existence at the testator’s death who may survive the life tenant? Or did the testator intend such class to comprehend all lineal descendants who would be an heir of his at the time the life estate terminated?

Defendants argue in support of the first proposition that members of a class are ascertained and determined at the death of a testator, citing Brumsey v. Brumsey, 351 Ill. 414, and Way v. Geiss, 280 Ill. 152, and that the word “then” does not. refer to the time when the right to take will be determined but refers to the event upon the happening of which the right to possession begins, citing Campbell v. Campbell, 380 Ill. 22, and People v. Camp, 286 Ill. 511.

Plaintiff primarily argues in support of the second proposition that where the word “then” is used as an adverb of time and not merely referring to an event, it will have the effect of postponing the ascertainment of the class until the period to which it has reference, citing Sloan v. Beatty, 1 Ill.2d 581; Boldenweck v. City National Bank and Trust Co. of Chicago, 343 Ill. App. 569, cases from other jurisdictions and encyclopedic works. Plaintiff further argues the presumption that a testator does not intend to disinherit a lineal descendant unless such an intent is clearly shown, citing Lee v. Roberson, 297 Ill. 321; Morrison v. Tyler, 266 Ill. 308; Straw v. Barnes, 250 Ill. 481; and Olcott v. Tope, 213 Ill. 124.

The authorities cited by defendants to the effect that members of a class are ascertained and determined at the death of a testator, although recognizing such rule as existing, qualify such rule by recognizing that where distribution is postponed a class gift will comprehend all members of the class born up to the period of distribution. In Way v. Geiss, 280 Ill. 152, there was a devise of a life estate to the testator’s widow and after her death to the testator’s son and his children, but if such son be dead, leaving no issue, to the children then living of another son share and share alike. The contention was made that the devise to the son and his children took effect immediately upon death of the testator and that such son, then having no child or children, took the fee as sole owner. At the termination of the life estate the son had one child living and it was held that each took an undivided one-half interest under the foregoing devise. In so holding the court said, at page 156: “The devise to the children of Harvey D. Way was to a class. When a devise is to a class and nothing in the will shows a contrary intention, the members of the class will be determined upon at the death of the testator and the persons answering the description at that time will be included. The testator may by his will, expressly or by necessary implication, fix the time when the members of the class are to be ascertained at a period other than at his death, if the time fixed is not so remote as to violate the rule against perpetuities. The wish of the testator with reference to the time when the members of the class will be determined will be given effect when not contrary to law. (Thompson on Wills, sec. 192.) An immediate gift to a class of persons takes effect in favor of those who constitute the class at the death of the testator unless a contrary intention is found in the will, but where a particular estate is carved out, with a gift thereupon to a class, such as to the children of the person to whom the particular estate is devised or the children of any other person, the gift will embrace not only those living at the death of the testator but also those who may come into existence down to the time of distribution. Children coming into existence after that time would not be included. Bigelow on Wills, 284, 285; Handberry v. Doolittle, supra.”

In Brumsey v. Brumsey, 351 Ill. 414, there was a devise of a life estate in real estate to the testator’s child and upon the termination of said life estate by death, or the occurrence of a prior contingency, the remainder to the child or children of the body of the life tenant, and in the event of default or failure of such child or children “to my then living heirs at law.” This court there held that upon the termination of the life estate by occurrence of a prior contingency the class “then living heirs at law” was determined as of the date of the termination of the life estate as if the life tenant had died and not as of the date of death of the testator.

The general rule that where distribution is postponed a class gift will comprehend all members of the class born up to the period of distribution has been recognized and followed in numerous other decisions of this court. Kiesling v. White, 411 Ill. 493; Carey & Schuyler, Illinois Law of Future Interests, p. 354.

Of course the paramount rule of testamentary construction is that the intention of the testator, as expressed in his will, governs the distribution of his estate, and the intention of the testator, once it has been ascertained, will be given effect unless to do so would violate some settled rule of law or be contrary to public policy. Sloan v. Beatty, 1 Ill.2d 581; Barnhart v. Barnhart, 415 Ill. 303.

All rules of construction yield to the intention of the testator as expressed in the will and no rule of construction will be applied to defeat that intention. (Harris Trust & Savings Bank v. Jackson, 412 Ill. 261.) Furthermore, it must be kept in mind that the precedents in other will cases are never of controlling importance in determining the intention of a testator as expressed in the particular will under consideration. Barnhart v. Barnhart, 415 Ill. 303; Sloan v. Beatty, 1 Ill.2d 581.

The testator in this case has clearly expressed his intention that at the death of the surviving widow, the life tenant, the remainder shall become the property of “my heirs in body then living.” It must be first noted that the testator has used the words “my heirs in body,” which, as heretofore observed, is a classification much broader than that of children. This definitely evidences an intention that someone other than a child might be the eventual taker of the remainder in the real estate which the testator owned. If the testator had intended that only his children shall share in the fee title of his estate, that undoubtedly would have been the word he would have used in drafting his will. This one point does not resolve the controversy here but it does serve to evidence an intention that the testator did not intend to disinherit any grandchildren such as might be living at the death of the life tenant in the event that the mother or father of such grandchild had predeceased the life tenant. Because of the possibility of the death of a child prior to the life tenant and the survival of bodily issue an interpretation which would allow a distribution of the remainder in this case to only a portion of the testator’s “heirs in body” would disregard the testator’s clearly expressed intention that the remainder go to his “heirs in body then living.”

While the word “then” may be used as a word of reference, as contended by defendants, it may also be used as an adverb of time. Sloan v. Beatty, 1 Ill.2d 581; Strain v. Sweeny, 163 Ill. 603.

In this particular clause the word “then” clearly refers to the preceding phrase “at her death” and it appears to us that the intention was to use the word “then” as an adverb of time.

It is our opinion that the trial court correctly construed the will in this case as using apt language to indicate a testamentary intention that the devise over in question is not limited to the testator’s children, but is intended to include the tesator’s “heirs in body” ascertained at the death of his wife.

Accordingly the decree of the trial court is affirmed.

Decree affirmed.


author: Mr. Chief Justice Hershey

text:
    (No. 33828.
    The People of the State of Illinois, Defendant in Error, vs. John M. Boyden, Plaintiff in Error.

      Opinion filed March 22, 1956.

      I. Stanley PinkETT, of Chicago Heights, and Harry G. Fins, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and Frank H. Masters, State’s Attorney, of Joliet, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Chief Justice Hershey

delivered the opinion of the court:

The defendant, John M. Boyden, was convicted in the county court of Will County of the unlawful practice of dentistry. Ill. Rev. Stat. 1953, chap. 91, pars. 60, 70.

The trial was before the court on a three-count information, charging that on December 13, 1953, the defendant was the manager, proprietor, operator or conductor of an establishment known as Boyden Dental Laboratory where Sam Jonas, a person not licensed to practice dentistry, extracted a tooth from Roy Wurst (count I), offered to furnish, supply and construct a partial denture for Roy Wurst (count II), and constructed a partial denture for Roy Wurst (count III).

The charges were based on section 5 of the Dental Practice Act, which provides, inter alia as follows: “A person practices dentistry within the meaning of this Act: * * * (2) Who is a manager, proprietor, operator or conductor of a place where dental operations are performed; * * (Ill. Rev. Stat. 1953, chap. 91, par. 60.) Section 16 of the act prescribes the penalties for practicing or offering to practice dentistry without being licensed. Ill. Rev. Stat. 1953, chap. 91, par. 70.

The trial court found the defendant guilty on all three counts. He was sentenced to a term of one year in the county jail on count I and fined $1000 on each of the other two counts.

On writ of error to the Appellate Court, Second District, the judgment was affirmed. See 7 Ill. App.2d 87.

The defendant contends the evidence is insufficient for conviction. He further insists, however, the trial court erred in sentencing him on all three counts, since each count charged the same offense and only one penalty could therefore be imposed.

As to the first contention, the sufficiency of the evidence, we adopt the opinion of the Appellate Court, where the evidence is fairly summarized and the issue correctly decided.

But we believe the trial court did err in sentencing the defendant on all three counts. The information charges but one crime, namely, being a manager, proprietor, operator or conductor on December 14, 1953, of an establishment where dental operations were performed. Each count is merely a particularization of the one crime, not the statement of a separate offense. To show this we need only refer to the applicable statutes, sections 5 and 16 of the Dental Practice Act.

Section 16 provides that “any person who shall practice or offer to practice dentistry in this State without being licensed for that purpose, * * * shall, upon conviction, be fined by any sum not less than two hundred dollars ($200.00) nor more than one thousand dollars ($1,000.00), or imprisoned in the county jail for not less than one month nor more than one year, or both so fined and imprisoned in the discretion of the court.” Section 5, which is divided into ten subsections, specifies what constitutes the practice of dentistry. Among those who are said to be practicing dentistry is one who extracts a human tooth or teeth, subsection (5), who performs dental operations of any kind, subsection (3), and who is a manager, proprietor, operator or conductor of a place where dental operations are performed, subsection (2).

In this case, the defendant is not charged with extracting a tooth from Roy Wurst or with offering to construct or constructing a partial denture for him. Rather, he is charged with being the manager, proprietor, operator or conductor of a place where Sam Jonas, who did not have a license, did those things. Thus, while it may be that Jonas committed separate offenses on December 13, 1953, it is clear that the defendant did not. The use of the plural, “dental operations,” further indicates that each operation made on a particular date would not constitute a separate offense by the one who is alleged to be the manager, etc., of the establishment on that date.

We conclude, therefore, that the evidence is sufficient to sustain a conviction of unlawful practice of dentistry, but the cause must be remanded to the trial court for the imposition of a proper sentence.

The judgment of the Appellate Court is affirmed in part and reversed in part, and the cause is remanded to the county court of Will County with directions to vacate the judgment and enter a judgment not inconsistent with the views expressed in this opinion.

Affirmed in part and reversed in part and remanded.


author: Mr. Justice Schaefer

text:
    (No. 33839.
    The People of the State of Illinois, Defendant in Error, vs. Joe Homer, Plaintiff in Error.

      Opinion filed March 22, 1956.

      Eugene W. Wood, of Chicago, for plaintiff in error.
    Latham CasteP, Attorney General, of Springfield, and John GutknPCht, State’s Attorney, of Chicago, (Erpd G. Lpach, Edwin A. Strugaea, Irwin D. Beoch, John T. Gaeeaghpr, Rudoeph L. Janpga, Wieeiam L. Carein, and Samupe PapanPk, of counsel,) for the People.
   Mr. Justice Schaefer

delivered the opinion of the court:

The defendant, Joe Homer, was convicted of larceny after a trial without a jury in the criminal court of Cook County and was sentenced to the penitentiary for a term of not less than nine nor more than ten years. He assigns as error that the evidence did not prove his guilt beyond a reasonable doubt, that prejudicial evidence was improperly admitted, and that the State’s Attorney was guilty of misconduct which deprived him of a fair trial.

The complaining witness, Edward Johnson, testified that on June 26, 1953, he was riding west on Roosevelt Road in a bus. He was seated near the front of the bus, and was carrying a fishing rod and a bag. As he rose to get off the bus, he felt a hand in his pocket and saw a man remove his wallet. Johnson shouted, and the man passed the wallet to the defendant, Homer. The man who took the wallet was tall, considerably taller than Homer. That man was not apprehended and his name does not appear in the record. The man who had taken the wallet then moved to the rear of the bus and Homer tried to leave by the front door, but was blocked by Johnson. As Johnson blocked the exit, the defendant drew a knife and threatened him, but Johnson held him off with his fishing rod. The bus driver, hearing the commotion, stopped the bus and went to get a policeman.

The taller man returned to the front of the bus, and Homer passed the wallet back to him. By this time, Johnson had backed out the front door of the bus, but was still blocking Homer’s exit. The taller man left the bus by the side door, came around to the front, returned Johnson’s wallet, which he said had been lying on the steps of the bus, and then proceeded to beat Johnson severely, causing him to be hospitalized for over two weeks. The man then left the scene and disappeared. As Johnson lay on the ground, Homer came over to- him and, waving his knife, said, “I ought to kill you for squawking.” The police arrived and took Homer and Johnson to the police station.

Robert Zeigler testified that he was on the bus, and that he saw Homer pass the wallet to “the big fellow.” He further testified that Homer had a knife in his hand as he tried to1 push by Johnson to leave the bus. During the course of the examination, the prosecutor claimed to be surprised by Zeigler’s statement that the wallet was passed to the other man, instead of from the latter to Homer, as Johnson had testified, and he attempted to have the witness recall a conference before the trial, in which Zeigler had apparently said that the taller man had passed the wallet to Homer. The effort was not successful.

Ida Mae Cannon testified that she had been sitting near Johnson on the bus, that she heard him shout, “You have my pocketbook,” and saw a large man pass a wallet to Homer. Homer had a knife and threatened Johnson as he tried to push by him and get off the bus.

The driver testified that he heard a commotion and stopped the bus, that he saw Johnson, Homer, and a taller man, that Johnson was in front of Homer, preventing Homer from leaving the bus, and that Johnson was shouting that he wanted his wallet back. He said that Homer had a jacket over his arm and that he did not see a knife.

Police officer Baer, who took Homer and Johnson to the station, testified that Johnson told him that Homer had taken his wallet. He searched the defendant at the scene but did not find a knife. Officer Schmidt, assigned to investigate the case, stated that he talked to Homer at the police station and that Homer said that he did not know why he was arrested and refused to answer any questions.

The defendant took the stand. He admitted that he was on the bus, but denied participation in the crime. He testified that he was held in jail four days without knowing why he had been arrested. He stated that his real name was James Cummings, that Joe Homer was an alias which he used for this arrest and that the address which he gave the police was incorrect. The prosecutor cross-examined him at length about his refusal to answer questions put to him by officer Schmidt and as to whether he was accused of the crime by Johnson in the presence of the arresting officers.

In rebuttal, the prosecution called officer Hayes, the driver of the patrol wagon, who testified that Johnson had told him about being assaulted by a man who had taken his wallet and passed it to Homer and that Homer had said nothing, although he was within hearing distance. The prosecution then offered in evidence a prior conviction of the defendant under the name of James Coleman, another alias, for the crime of larceny.

In our opinion the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. The victim, Johnson, testified that he saw his wallet removed from his person by another man and passed to the defendant, who thereupon tried to push by him while carrying the wallet in one hand and threatening him with a knife in the other. Ida Mae Cannon testified that she saw the other man pass the wallet to Homer, and that she saw Homer try to force his way out of the bus by threatening Johnson with a knife. The testimony of Robert Zeigler also corroborates the defendant’s attempt to force his way off the bus with a knife. It is argued that the testimony of Zeigler was inconsistent with that of the victim and of Ida Mae Cannon on the question as to whether the wallet was passed from Homer to the other man, or vice versa. The sequence of events was rapid, and Zeigler may have seen the second transfer of the wallet, when the tall man got it back from Homer. In any event, his testimony establishes the defendant as a participant in the crime.

It is argued that the prosecutor’s attempts to reconcile the apparent inconsistency in Zeigler’s testimony by referring him to a conference before trial in the witness room was improper, as tending to impeach his own witness. Objection to this line of inquiry came late, and the statement of the trial judge indicates that when objection was ultimately made he felt that the questioning on the subject had gone so far that it should be completed. But even if the impropriety of this inquiry be conceded, we do not think that it was prejudicial in the light of the other evidence of guilt.

Defendant complains of the admission of the testimony of Johnson and two of the arresting officers to the effect that when Johnson pointed out the defendant as a participant in the theft and asked that he be taken into custody, the defendant remained silent. When an accusation is made under circumstances which would naturally call for contradiction or reply, evidence of the accusation and of the silence of the person accused is admissible because it gives rise to an inference of the truth of the accusation. The accusation is not hearsay, because it is offered not for its truth, but to show the significance of the reaction of the accused. (McCormick on Evidence, sec. 247; Wigmore on Evidence, 3d ed., sec. 1071ff; People v. Kozlowski, 368 Ill. 124; People v. Pfanschmidt, 262 Ill. 411, 448-9.) The surrounding circumstances must always be carefully considered. Here the witnesses testified to the position of the parties when the accusation was made. The defendant’s denial that he heard the accusation did not preclude its admission. Whether the accusation was heard, and whether the other circumstances were such that a response would normally be made, were questions which the trial judge had to determine, and it does not appear that he erred in holding the testimony admissible.

Defendant also contends that the court erred in permitting officer Schmidt, who investigated the matter, to testify that while the defendant was held in jail he refused to answer any questions concerning the charge against him. The inquiry was improper, but no objection was made in the trial court. Later the defendant testified on his direct examination that he was held in jail four days without knowing that he was charged with any wrongdoing. The prosecutor then cross-examined him at length about his conversations with officer Schmidt. We have previously held that a person accused of crime need not make a statement to the police, and that evidence of a refusal to make such a statement is prejudicial error. (People v. Rothe, 358 Ill. 52.) In the present case, however, the cross-examination was designed to show that shortly after the offense the defendant knew that he was charged with it, and in view of the defendant’s testimony it was not improper.

The case was tried by an assistant State’s Attorney. After the evidence was in, the case was continued until the following morning for disposition. When the case was called the next day, the State’s Attorney himself was present. Just prior to the opening of court the State’s Attorney had a private conference with the trial judge in his chambers. When objection to this conference was made by counsel for the defendant, the judge and the State’s Attorney both stated that the visit was purely social in character, to confirm a dinner engagement, and that neither this nor any other pending case was discussed. Upon this record the circumstance does not afford a basis for reversal.

The judgment of the criminal court of Cook County is affirmed.

Judgment aiffirmed.


author: Mr. Justice Maxwell

text:
    (No. 33827.
    Jesse Metzger, Appellant, vs. Kate Mowe, Exrx., Appellee.

      Opinion filed March 22, 1956.

      Burton C. Bernard, of Granite City, for appellant.
    W. R. Weber, of Belleville, and Louis Beasley, of East St. Louis, for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

The plaintiff appeals from a decree of the circuit court of St. Clair County dismissing his complaint in a will contest suit, the will devising real estate.

The will was admitted to probate in the probate court of said county over the objection and opposition of the plaintiff. Subsequently this complaint was filed alleging that plaintiff is the son and only heir of the testator and resides in Salem, Oregon; that said will names the defendant, Kate Mowe, as executrix and sole devisee of the testator’s estate; that the testator was, at the time the will was executed, of unsound mind and memory and said will was obtained as a result of undue influence exerted on the testator by Kate Mowe, who for many years prior thereto lived with decedent alone in the same house and exerted all possible effort prior to the execution of the will to alienate decedent from his family. The complaint prayed that the purported will be declared null and void and not to be the last will of the testator. The defendant’s answer admits the execution and probate of the will, admits that Kate Mowe is named therein as executrix and sole devisee, but denies the allegations that testator was of unsound mind and memory and that defendant Kate Mowe exerted any undue influence upon the testator. Defendant, for affirmative defenses, alleges that the testator was of sound mind and memory and was not under duress or undue influence when the will was executed and alleges that she had nothing to do with the execution of testator’s will and had no knowledge of its existence until after testator’s death. No reply was filed by plaintiff.

The only evidence offered by plaintiff was the testimony of defendant, Kate Mowe, whom plaintiff called under section 60 of the Civil Practice Act. Her testimony,- as abstracted by the plaintiff, was that she lived with the testator in a three-room flat in a building owned by testator; that she acted as apartment manager collecting the rents; that “decedent liked cats — gray, white, yellow and black;” that plaintiff was decedent’s son; that decedent owned real estate at the time of his death and an inventory had been filed in the probate court. After this testimony plaintiff rested. The defendant moved to dismiss the suit for the reason that plaintiff had offered no evidence in support of the allegations of the complaint and the court allowed this motion, subsequently entering a decree finding the equities are with the defendant and against the plaintiff and dismissing the complaint for want of equity.

The plaintiff in this appeal concedes the evidence offered by him at the hearing was not sufficient to establish that testator was of unsound mind and memory or that the execution of the will was procured by undue influence. His position is that the trial court erred in dismissing the complaint because a will contest suit affords a contestant a trial de novo on the issue whether the instrument produced is or is not the will of the deceased; that the court must decide that issue and that the burden of producing the will and proving its execution in compliance with the statutes rests upon the proponent of the will. Since the proponent failed to do this plaintiff asks that the decree dismissing his complaint be reversed and that a decree issue finding the will referred to in the complaint is not the will of the testator or, in the alternative, that this cause be remanded for further evidence.

Plaintiff’s theory seems to be based upon the premise that upon the filing of a suit to contest a will the order of probate previously entered by the probate court is null and void and whether the contestant is or is not able to sustain his complaint the proponent of the will must proceed to get a finding in the contest proceeding that the will is the will of the deceased and a new order of probate.

Prior to the Civil Practice Act which became effective January 1, 1934, there might have been merit in plaintiff’s contention. Formerly, in a will contest suit, the proponent of the will was required to make a prima facie case by showing the will and its execution complied with the statutory requirements. (Donovan v. St. Joseph’s Home, 295 Ill. 125.) This procedure, however, has been changed by statute and by the rules of this court.

At the December term, 1933, this court adopted new rules to become effective January 1, 1934, when the Civil Practice Act went into effect. Rule 25 (355 Ill. 27) of such rules specifically provided: “In proceedings to contest the validity of a will, testament or codicil, the contestant shall in the first instance proceed with proof to establish the invalidity of such instrument; and the proponent may then present evidence to sustain the will, testament or codicil.” In Ginsberg v. Ginsberg, 361 Ill. 499, the court, at the conclusion of the appellant-contestant’s evidence allowed the motion of the proponent of the will to strike all the contestant’s evidence and directed the jury to find the issues for the appellee, the proponent. The appellant contended that the trial court did not have power to direct a verdict at the close of his evidence because Rule 25 did not change the rule that the burden of proof rested on the proponents of the will — it merely changed the order of proof to require the contestant to introduce his proof first. We there held that the rule of the Donovan case was not a rule of substantive law but merely a rule of procedure which clearly came within the rule-making power. The contestant in the first instance having failed to sustain the allegations of his complaint, the court did not err in directing a verdict for the proponent of the will.

Section 92 of the Probate Act (Ill. Rev. Stat. 1953, chap. 3, par. 244,) adopted in 1939, to be effective January 1, 1940, provides: “Any party to the suit may demand a trial by jury as in actions at law. An issue at law shall be made whether or not the instrument produced is the will of the testator. The contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant’s case, the proponent may present evidence to sustain the will. An authenticated transcript of the testimony of any of the witnesses taken at the time of the hearing on the admission of the will to probate is admissible in evidence.” It is noted that Rule 25 has been incorporated in this statute, and is now statutory law.

The statute now requires the contestant to proceed in the first instance with proof to establish the invalidity of the will. Since an order of probate is a prerequisite to his right to bring a contest suit (Shelby Loan and Trust Co. v. Milligan, 372 Ill. 397,) it is proper to' allege that a purported will has been admitted to probate as and for the will of the testator but said will is invalid for the reasons alleged. If the answer admits the allegation of the probate of the will the preliminary proof of its compliance with the statutory requirements becomes unnecessary and the contestant is required to proceed with proof to establish the allegations of'his complaint as to the invalidity of the will. In Friberg v. Zeutschel, 379 Ill. 480, at page 486, we stated: “The distinction between the old practice and the present is that formerly the proponent had to establish the validity of the will and its due execution, which necessarily required its production and identification by the attesting witnesses. The present rule and statute, however, makes the invalidity of the will the issue, and requires the contestant to make such proof before the proponent makes his. It necessarily follows that if the contestant fails to make sufficient proof of invalidity to submit the issue to the jury the will is sustained without further action by the proponent. We have substantially so held in Lewis v. Deamude, 376 Ill. 219, and Peters v. Peters, 376 id. 237.”

A motion for a directed verdict in a will contest suit on the grounds that there is no evidence in the record tending to prove the allegations of the complaint is governed by the same rules which apply to actions at law and if there .is no such evidence the motion should be allowed. Shevlin v. Jackson, 5 Ill.2d 43; Johnson v. Bennett, 395 Ill. 389.

In the instant case the appellant, contesting the invalidity of the will by allegations of lack of testamentary capacity and undue influence concedes that there is no evidence in the record tending to establish these allegations. The cause was being heard by the court without a jury and the court did not err in dismissing the complaint for want of equity.

The decree of the circuit court of St. Clair County is affirmed.

Decree affirmed.


text:
    (No. 33837.
    The People of the State of Illinois, Defendant in Error, vs. Ethel Rogers, Plaintiff in Error.

      Opinion filed March 22, 1956.

      Irving M. Wiseman, of Alton, for defendant in error.
    Latham Castle, Attorney General, of Springfield, and Albert W. Hall, State’s Attorney, of Jacksonville, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court:

Plaintiff in error, hereinafter referred to as the defendant, prosecutes this writ of error to reverse the jury verdict and judgment of the circuit court of Morgan County, finding her guilty of the crime of burglary, and sentencing her to the Illinois State Reformatory for Women for a term of not less than two years nor more than three years. The defendant was indicted by the grand jury in Morgan County, and she was thereafter arraigned and pleaded not guilty. She then filed her petition for change of venue on account of prejudice of the judge, a motion to suppress evidence, a motion to quash the indictment, motions for directed verdicts, and the usual post-trial motions, all of which were overruled.

The burglary was charged to have occurred on September 25, 1953, in Morgan County, in a community known as Alexander, and consisted of the breaking and entering of a building of J. A. Zeller, with intent to feloniously and burglariously steal and carry away the chattels of the complaining witness, Mildred Zeller, located in said building.

The defendant asserts that the questions involved in this case relate to the degree of participation, if any, by the defendant, the admissibility of the confession by the defendant, the question of admissibility of a new pair of men’s gloves and a red dressing gown, which were taken from the apartment of the defendant after she had executed a written consent to the deputies to search for "the property of or formerly in the possession of Mildred Zeller.”

As to the first contention, the defendant admits that it is undisputed that she was present in Morgan County and at the scene; that she did, in part at least, drive the automobile owned by her and used in the burglary; and that she owned an apartment in Alton in which the goods were found.

The evidence showed that defendant owned a Buick automobile, was 37 years old, had been employed for over eight years in a dry-cleaning establishment, had been married, was divorced in 1949, and has a child three years of age; that she met one Francis Cope during the year 1953, lived with him, did not know whether or not Cope had a criminal record prior to her arrest; and that she had never been in trouble before herself.

On September 23, 1953, the defendant, the said Francis Cope, and one Donald Dillon, went to Jacksonville in her car, and then went to the Zeller house in Alexander, from which the three took the questioned property, put it in her car, whereupon Cope and she took it to her apartment, where they lived together clandestinely. Defendant testified that Cope was under the influence of alcohol and that Dillon threatened her with a knife demanding that she drive her car on this felonious excursion and that she reveal the facts concerning it to no one.

Two days later, Cope drove her car to Alexander, with one Buddy Smith, a former patient in a mental institution, and the defendant as passengers. Cope and Smith left her in the car, then returned, and Cope drove the car to the garage on the property of J. A. Zeller, and all three of them participated in another burglary, loading the car with wearing apparel and other goods, which Cope and Smith had previously found in the apartment of the complaining witness. The men’s gloves, admitted in evidence as People’s exhibit No. 3, are the same gloves that were found in the yard on these premises after the entry was made on September 23.

Defendant’s uncorroborated testimony is that Cope and Smith induced her to go with them over her protests, and that while she was under threats made by Smith, and against her wishes, the stolen goods were taken to her apartment. She testified that she wanted Cope to turn himself in to the police, and that he had promised to do so when he obtained settlement of a workmen’s compensation case against a former employer. She testified that both Dillon and Smith told her that she was involved in the crime, and that she had better keep her mouth shut. After Cope and the defendant were arrested, she married Cope.

On October 20, 1953, the Alton police took her into custody in front of her apartment, and questioned her at the station, and thereafter she was taken to the Pike County jail at Pittsfield, where she was interrogated by two Morgan County deputies and the Pike County sheriff, to whom she confessed. Her statement was reduced to writing and signed by her before witnesses in the following form, to-wit:

“October 23, 1953. My name is Ethel Rogers, I am 35 years old and have a first year high school education. I know right from wrong and make this statement of my own free will. No threats or promises have been made to me and I understand the following statement can be useed against me.
“I met Frank Cope in Alton in August, 1953, and started keeping company with him. I did not know he had a criminal record when I started to go with him. On or about the 23rd day of September Frank Cope and Donald Lee Dillon came to my house and we got in my 1950 Buick 4-door sedan and started driving up highway in. We came to Waverly then to Franklin where we took a black top road north to Alexander where we went into a town and had a drink. Then we went back south to a house in the south edge of town. Frank backed the car in the garage and went to a window and broke into the house. He then opened the front door and let me in and we went upstairs and Donald Dillon was upstairs when we got there. He was piling up stuff out of the drawers and Frank helped him. I helped carry the stuff out to the garage making three trips. What I carried was all clothing both women’s clothes and men’s clothes. Then Frank and Donald carried out a radio and put it in the car. There was a box of men’s hats with three hats in it. We were there about 45 minutes or an hour. We then went south on the oiled road to Franklin then on 104 to Waverly then on in to Alton. We stopped on 19th or 20th on Belle Street and let Donald Dillon out. He took some of the clothing but I do not know what it was. We went on to my house and Frank and I carried the rest of the things to my house which is a two-room furnished apartment. The next day we took the console radio and a small radio we had taken from the Zeller house and drove to St. Louis, Missouri, to a used furniture store on South Broadway where we sold them to the man for eight dollars. That is what Frank said he got. I didn’t see him receive the money. A woman came out and looked at them and they carried them in. We fooled around St. Louis a while and then went back to Alton arriving at about 1:3o. We then went over to Buddy Smith’s house off of East 7th Street and picked up Buddy and returned to Alexander to the same house we were at the night before. We parked on the road in front of house and Frank and Buddy went around the house. I heard glass being broken and when they came out to the car they both had their arms loaded with clothing and Frank told me he had cut his wrist on the window. It was bleeding pretty badly and he got weak from loss of blood and I had to take the wheel and drive. We went right straight to Alton to the home of Dr. Hayes on Main Street where he had the wound dressed, the doctor taking two stitches to close the wound. We then went back and unloaded the clothing. This loot was mostly women clothes and also three mens hats in a box. Everything that has been brought to my house from the house at Alexander is still there except the two radios. This statement has been read to me by Harry Timmons Deputy Sheriff of Morgan County and it is true to the best of my knowledge and belief.
Signed Ethel Rogers
Witness :
/s/ L. Ross Crowcroft
/s/ Ray V. Lyman
/s/ Harry Timmons”

This was admitted in evidence as People’s exhibit No. 1 over defendant’s objection.

Defendant contends that the confession was forthcoming only as a result of many attractive promises of leniency; furthermore, that she was confined in jail three days, worried about the welfare of her three-year-old child, and forbidden during the period of inquisition to contact her lawyer. Giving consideration to defendant’s uncorroborated testimony on this issue and the contradictory evidence we find no reason for ruling that her confession was inadmissible.

With respect to defendant’s contention that she did not participate, a cursory reading of her statement renders this argument unworthy of further consideration. The statement shows that she participated, not once, but twice, and assisted in the selling of a part of the articles stolen from the complaining witness.

On October 26, 1953, her third day in jail, defendant signed a consent to search, in the following form, to-wit:

“I, Ethel Rogers, hereby authorize Deputies Harry Timmons and Ross Crowcroft to conduct a complete search of my residence located at 206 Hamilton Street, Alton, Illinois. Each or any of the above such authorized individuals are by me authorized to take from said above premises any letters, papers, materials or other property which they or anyone or more of them may desire, including, but not by way of limitation, any such property as may be, in their opinion, the property of or formerly in the possession of Mildred Zeller, of the community commonly known as Alexander, Morgan County, Illinois.
“This written permission is given by me voluntarily and without threats or promises of any kind.
“I realize that any property thus found on such search might be presented in open court and used against me in proceedings in court.
“Dated at Pittsfield, Illinois this 26th day of October, A.D. 1953.
/s/ Ethel Rogers
Witness :
/s/ Ross Crowcroft
/s/ Ray V. Lyman
/s/ Harry Timmons”

This was admitted in evidence as People’s exhibit No. 2, over defendant’s objection. Cope executed a similar document which was admitted in evidence as People’s exhibit No. 5, over defendant’s objection.

Defendant complains that each consent is too general and does not contain a sufficient description of the property to be taken, and relies on People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933, 934; People v. Martin, 382 Ill. 192, and Frost v. People, 193 Ill. 635, page 639. Defendant’s consent conforms to the rules laid down in these cases. The trial court properly overruled objections to People’s exhibits Nos. 2 and 5, and admitted in evidence plaintiff’s exhibit No. 4, a lady’s red dressing gown, both of which were identified by the complaining witness as her property, taken from her apartment in Alexander, and found after defendant’s arrest in Alton. The consent was voluntarily signed, and the words “the property of or formerly in the possession of Mildred Zeller” particularized the items for which they were entitled to search. The fact that the complaining witness was assisting the deputies to whom the consent was given does not make this case one involving an unreasonable search or seizure.

The evidence in this record clearly demonstrates defendant’s guilt. The jury’s conclusion of guilt finds support therein. We have considered all assignments of error, such as the instruction on circumstantial evidence, and the State’s Attorney’s alleged misconduct in his manner of questioning witnesses, and we reach the conclusion that defendant has been proved guilty beyond a reasonable doubt in a trial that was substantially free of error. The sentence that followed was a fair one. The judgment of the trial court is affirmed.

Judgment affirmed.


text:
    (No. 33655.
    Rogers Park Post No. 108, The American Legion, Department of Illinois, Appellee, vs. John B. Brenza, County Collector, et al., Appellants.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      John Gutknecht, State’s Attorney, of Chicago, (Gordon B. Nash, Vincent Flood, Roman R. Stachnik, William S. White, and Charles D. Snewind, of counsel,) for appellants.
    Joseph Fisher and Marshall Korshak, both of Chicago, (David H. Mendelsohn and Thomas J. Finnegan, of counsel,) for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

On March 8, 1948, plaintiff, an American Legion Post, acquired certain improved real estate located at 1440 West Devon Avenue in the city of Chicago. Real estate taxes were extended against said real estate for the years 1948 to 1951 both inclusive. On August 17, 1951, plaintiff filed the requisite affidavit in the office of assessor for Cook County claiming exemption of the real estate. Thereafter, the assessor’s office marked the said property as exempt from real estate taxes for 1952 and subsequent years and it has been exempt since that time.

Plaintiff filed the complaint herein in chancery to have removed as clouds upon the title to said real estate, all general real estate taxes, interest, penalties and costs extended against said real estate for the years 1948 to 1951, both inclusive, and to enjoin the tax levying, assessing and collecting officials of Cook County from collecting or attempting to collect the same.

The chancellor entered a decree finding plaintiff to be a charitable and beneficent corporation organized under the laws of the State of Illinois as a corporation not for profit and that the real estate in question was used during the years 1948 to 1951, both inclusive, solely and exclusively for a charitable.purpose within the intent of the constitution and statutes of the State of Illinois. From the decree granting the prayer of the complaint, defendants appeal.

The plaintiff offered in evidence its charter, defining the object for which it was formed as follows: “To maintain and conduct a constituent Post of the American Legion under the Department of Illinois, and in conformity with the National Constitution and By-Laws of the American Legion.” The preamble to the constitution and by-laws of the plaintiff are as follows: “For God and Country, we associate ourselves together for the following purposes to uphold and defend the Constitution of the United States of America; to maintain law and order; to foster and perpetuate a one-hundred per cent Americanism; to preserve the memories and incidents of our association in the great wars; to inculcate a sense of individual obligation to the Community, State and Nation; to combat autocracy of both the classes and the masses; to make right the master of might; to promote peace and good-will on earth; to safeguard and transmit to posterity the principles of justice, freedom and democracy; to consecrate and sanctify our comradeship by our devotion to mutual helpfulness.”

The real estate in question is improved with a two-story building with a basement. It contains an auditorium or hall which is used for Legion purposes and as a meeting hall. It has a canteen “for members of the Legion.” At one end of the building there is a parking lot. The building cost in the neighborhood of $140,000 and is encumbered with a $30,000 mortgage.

The premises are used by the Legion itself and also by the Women’s Auxiliary and the Junior Auxiliary of the Legion. The Legion holds regular meetings in the auditorium twice a month. On occasions, the auditorium is used by other organizations such as the Boy Scouts, the City of Hope and other charitable and religious organizations for meetings, dances and weddings. The Legion accepts donations from these groups for use of the premises to cover the costs of maintenance, cleaning and upkeep.

No part of the premises is used for commercial or residential purposes. The post is maintained by dues paid by its 519 members. There is no income from the real estate, except donations for the use of the hall. The officers of the plaintiff, a not-for-profit corporation, receive no salary. The corporation never issued any stock. No dividends, profits, bonuses or premiums have ever been distributed to any of the members.

Defendants, in this appeal, present two points for consideration : (x ) The plaintiff failed to establish a right for tax exemption and (2) the property sought to be exempt was not used exclusively for a charitable purpose within the intent of the constitution and the statutes of the State of Illinois.

It is the well settled rule of law in the State of Illinois that all property is subject to taxation, unless exempt by statute, in conformity with the constitutional provisions relating thereto. Taxation is the rule — tax exemption is the exception.

Section 1 of article IX of the constitution of the State of Illinois requires that the General Assembly shall provide such revenue as may be needful for governmental purposes by levying a tax by valuation so that every person and group shall pay a tax in proportion to the value of his, her or its property. Section 3 of the article provides that the property of the State, county and other municipal groups, both real and personal, and such property as may be used exclusively for agricultural and horticultural societies, for schools, religious, cemetery and charitable purposes may be exempt from taxation by general law. This provision of the constitution is not self-executing and the General Assembly, in the exercise of its constitutional power, provided by the seventh paragraph of section 19 of the Revenue Act of 1939 (Ill. Rev. Stat. 1953, chap. 120, par. 500(7),) that all property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other State of the United States, and all property of old peoples’ homes, when such property is actually and exclusively used for such charitable or beneficent purposes and not leased or otherwise used with a view to profit, shall be exempt from taxation.

Provisions granting tax exemptions are to be construed strictly and must come not only within the terms of the statute but also the authority given by the constitution. The burden of proving and establishing a right to exemption is upon the party seeking the right to exemption. (Oak Park Club v. Lindheimer, 369 Ill. 462.) In determining whether property is included within the scope of a tax exemption all facts are to be construed and all debatable questions resolved in favor of taxation. (Turnverein "Lincoln” v. Board of Appeals, 358 Ill. 135; People ex rel. McCullough v. Deutsche Gemeinde, 249 Ill. 132.) Every presumption is against the intention of the State to exempt property from taxation. It is, therefore, incumbent upon the plaintiff to show clearly that its organization and the use of its property come within the provisions of the statute and constitution as charitable.

Two things are necessary to the exemption of property used for charitable purposes from taxation: One, ownership by a charitable organization; the other, its exclusive use for charitable purposes. Neither exists here. The plaintiff is not a charitable organization under the law. There is no evidence in the record of any expenditures by plaintiff for charitable purposes. It is a corporation and its character and the purpose for which it was organized must be ascertained by reference to its charter. (Distilling and Cattle Feeding Co. v. People ex rel. Barnewalt, 161 Ill. 101, People ex rel. Mercer v. Wyanet Electric Light Co. 306 Ill. 377; Hall v. Woods, 325 Ill. 114.) The instant plaintiff was organized to carry out the purposes and objectives of the American Legion, to foster love of country, respect for our civil institutions and to benefit and afford comradeship to its members. These purposes and objectives are patriotic, laudable and public spirited. Nonetheless, they do not constitute charitable purposes, however desirable or however beneficial. Primarily the premises are used solely by members of plaintiff and members of its various auxiliaries. From time to time bingo parties, dances and weddings are held on the premises both by the plaintiff and by third parties. None of these uses are for charitable purposes. We are told in the testimony that the premises are also used on occasion by the Boy Scouts, the City of Hope and other charitable organizations. In all instances, whether the user be a charitable organization or not, the plaintiff accepts a “donation” from the user for maintenance and cleaning up and the expenses on the premises. It is apparent from the record before us that the dominant use to which real estate of plaintiff is put is that of a private club rather than a headquarters for the dispensation of charitable relief. The objects chiefly subserved by this real estate and the methods of administration stamp it plainly as a patriotic and social and not as a charitable enterprise.

Plaintiff contends that its property is exempt from taxation for 1952 and subsequent years and should be exempt for 1948 and subsequent years. In support of this proposition, plaintiff argues that the Attorney General of the State of Illinois and the State’s Attorney of Cook County have issued opinions holding property of American Legion Posts, Veterans’ of Foreign Wars, and veterans’ organizations to be exempt from taxation. The assessor of Cook County, acting pursuant to these legal opinions, formulated a policy whereby he marked exempt the property of American Legion Posts when that property was used exclusively for Legion purposes. The assessor, pursuant to said policy, aforesaid, designated the real estate of plaintiff exempt for 1952 and subsequent years. The opinions of the Attorney General of the State of Illinois and the several State’s Attorneys of the State of Illinois, while persuasive, are not binding upon this court. Nor is the action of assessing bodies binding on this court with respect to the assessment of taxes. (People ex rel. Wangelin v. City of St. Louis, 367 Ill. 57; People ex rel. Lloyd v. University of Illinois, 357 Ill. 369.) Courts have no power to create exemption from taxation by judicial construction. Such authority rests in the legislature. The burden of establishing statutory authority for exemptions within the limitations of the constitution rests upon the person who asserts it. The plaintiff has failed to sustain the burden imposed upon it. The charter, the constitution, the by-laws, and the oral testimony disclose that the primary purpose to which the real estate of plaintiff was put, when the taxes for the years 1948 to 1951 were imposed, was patriotic and social and that the charitable use by plaintiff, was, at best, secondary. The real estate of plaintiff is not exempt from the taxes imposed for the years in question and the plaintiff is not entitled to the relief prayed for in the complaint.

The decree of the superior court of Cook County is reversed.

Decree reversed.