author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry James Cowsette, Defendant-Appellant.
    Gen. No. 52,954.
    First District, First Division.
    January 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert Kelty, Special Assistant State’s Attorney and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Larry James Cowsette, was found guilty after a bench trial, of the crime of rape and sentenced to a term of five to fifteen years in the penitentiary. It is contended on appeal that the identification procedure was so unnecessarily suggestive and conducive to mistaken identity as to deny defendant due process of law.

The evidence discloses that Caroline Ballinger was visiting her neighbor, Hattie Anderson, at 2513 West Harrison about 11:00 a. m. on September 13, 1966. A man appeared at the kitchen door and asked Mrs. Anderson about a man who could help get his car started. After a short conversation he left. Soon afterwards the man reappeared, opened the door and entered with a gun in his hand. He made both women lie on a bed and then forced Mrs. Ballinger to have intercourse with him.

Hollis Members testified that about 3:00 p. m. of the same day he was talking with a group of men, including the defendant, outside the tavern. He heard the defendant say that he had just raped a white woman on Harrison and Denvir, which was near the area in questian. Porter Jordan, Mrs. Anderson’s brother-in-law, heard of this conversation and had the defendant arrested the day after the rape took place. Accompanied by Mr. Jordan, the two women at 1:00 p. m. on September 14th, identified the defendant who was in a squad car, as their assailant.

The defendant denied raping Mrs. Ballinger. He also denied ever knowing Hollis Members or making the alleged statement. The defendant testified that he was at several other places on the day of the incident. His mother testified that she saw him at home on September 13,1966, at 10:45 a. m.

The defendant contends that since he was of a different race than Mrs. Ballinger and Mrs. Anderson the “showup” identification procedure was very suggestive and could easily lead to a mistaken identification. This, he argues, was compounded by the fact that the crime involved is the highly emotional one of rape and by the fact that both ladies viewed him at the same time. Adding further to the suggestiveness of the procedure is the fact that the women were accompanied to the “showup” by Mr. Jordan who knew that the defendant had bragged of raping a white woman. This identification procedure, it is alleged, was thus so suggestive and conducive to mistaken identity as to deny the defendant due process of law.

We need not reach the question of whether this procedure was unduly suggestive since under the recent case of People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152, a reviewing court may affirm a conviction if it finds that each witness’s identification had an origin independent of any suggestive viewing of the defendant. The record in this case clearly discloses such an independent origin for the identification of each witness. Two of the main factors mentioned in Blumenshine which may be considered in deciding this question are a prior opportunity to observe the alleged criminal act and the lapse of time between the alleged act and the contested identification. In this case the identification was the next day. Mrs. Anderson had an excellent opportunity to observe the defendant when he first talked with her at the door. Both women then spent twenty to thirty minutes during this attack. Mrs. Ballinger had a particularly good opportunity to view and talk to the defendant at that time because of details which we need not relate. Of course, Mr. Members’ corroborating testimony was not influenced by the contested identification procedure. We find on the record that the identification of the defendant as their assailant, by Mrs. Ballinger and Mrs. Anderson, had an origin independent of the contested identification procedure.

The case at bar is distinguishable from People v. Gardner, 35 Ill2d 564, 221 NE2d 232, on which the defendant relies. In the Gardner case, the Supreme Court reversed a rape conviction because the court did not believe the defendant’s guilt was proved beyond a reasonable doubt where there was a single identification by the victim which was based mainly on the defendant’s clothing and the defendant had a strongly substantiated alibi. In the present case the victim and the occurrence witness who each had a good opportunity to see the attacker’s face, identified the defendant. There was corroborative testimony by Mr. Members who said he heard the defendant claim he had just raped a white woman in the area of the incident. The defendant’s alibi was substantiated mainly by his mother’s statement that he was at home a short time before the incident. We believe the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

For the reasons stated the judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ned Wilder, Defendant-Appellant.
    Gen. No. 53,472.
    First District, First Division.
    January 19, 1970.

      Robert S. Bailey and Arthur E. Engelland, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of the offense of aggravated incest, in that he knowingly had sexual intercourse with his 13-year-old stepdaughter in violation of chapter 38, § 11-10 (b), Ill Rev Stats. He was sentenced to the penitentiary for a term of four to eight years.

On appeal defendant asserts prejudicial trial errors in that the trial court (1) improperly restricted the cross-examination of defendant’s wife and mother of the victim, who testified as a State’s witness, and (2) permitted tile State to argue after both sides had waived argument and reopened the proofs, after both sides had rested, to permit one of the State’s witnesses to testify as a court’s witness.

At the trial the prosecutrix, defendant’s stepdaughter, testified that sometime during the early morning hours of February 1, 1967, she was awakened by defendant standing over her, naked and with a knife in his hand. Her brother Donnie, aged 12, shared her bedroom, and he was awake at the time defendant entered the room. The prosecutrix related in detail defendant’s act of sexual intercourse with her, the tearing of her pajamas, the washing out of a bloody sheet, and the giving to her of $10, admonishing her not to tell anyone. He also gave a dollar to Donnie and admonished him to remain silent. The prosecutrix then dressed and with Donnie went to a neighbor’s apartment (Mrs. Wheeler), who telephoned the witness’s mother, who was visiting in Birmingham, Alabama, and then called the police. The prosecutrix was then taken to Billings Hospital, where she was examined by a doctor.

The testimony of the prosecutrix was substantially corroborated by her brother Donnie and Patricia Wheeler and Alice Walker, neighbors who lived in the building. Patricia Wheeler lived on the first floor, and the Wilders lived on the third floor. Patricia Wheeler testified that the prosecutrix came to her. apartment with Donnie in the early morning of February 1, 1967, appearing very upset. After having a conversation with the prosecutrix and Donnie, she called Edith Wilder in Birmingham, Alabama. The prosecutrix spoke with her mother, and after that conversation Patricia Wheeler called the police. Alice Walker also arrived at her apartment, and she left with the Johnson children and the police.

Alice Walker, as a State’s witness, testified that in the early morning of February 1, 1967, she received a telephone call from Mrs. Wilder at approximately 1:45 a. m., from Birmingham, Alabama. She began a conversation with Mrs. Wilder, stopped, and went downstairs to Mrs. Wheeler’s apartment. She brought the prosecutrix back upstairs to her apartment and terminated the call. Later the police came to her apartment, and she went with the police and the prosecutrix to Billings Hospital, where a doctor examined the prosecutrix. On the way to the hospital the prosecutrix gave her a ten dollar bill, which she gave to Officer Downey.

Edith Wilder, defendant’s wife, testified for the State. On January 31 and February 1,1967, she was in Birmingham, Alabama, with her mother and was on friendly terms with defendant before she left. She received a telephone call early in the morning from her daughter, the prosecutrix. After terminating that conversation, she called Alice Walker, who lived on the third floor. On February 1, 1967, her daughter, the prosecutrix, was 13 years old.

Police Officer John Downey testified he was assigned to investigate the occurrence. He went to Billings Hospital and talked with the prosecutrix and Alice Walker, who gave him a ten dollar bill, which he marked. After going to the hospital, he went to 1140 East 64th Street, where he went to the third floor with another police officer, the prosecutrix and Mrs. Walker. He entered the apartment and observed a knife lying on a table inside the door. Hearing a noise in the rear of the apartment, he found the defendant, Ned Wilder, cooking in the kitchen. The prosecutrix identified the defendant, and Officer Downey arrested him.

The court received into evidence as State’s exhibits the knife, the torn pajamas of the prosecutrix, a bed sheet and the ten dollar bill. It was stipulated that the Chicago Crime Laboratory had examined the sheet and pajamas, and that both contained dry human blood and spermatozoa. It was also stipulated that Dr. Merrick would testify that on February 1, 1967, he conducted a vaginal examination of the prosecutrix, and that various chemical tests indicated that human spermatozoa was on the swab. The State then rested its case in chief.

Defendant testified and recounted his whereabouts during the entire night of January 31 and February 1, 1967. He had sexual relations with two different women. He left the first one about 10:30 p. m. and was in the company of the other from 11:30 until about 1:30 a. m. He further said that he was home at 5:00 a. m. on February 1, 1967, and that he was home earlier on that night. Defendant’s account of his whereabouts was supported by the direct testimony of Anna Britton and by a stipulation as to the testimony of Susie Addison to the effect that defendant left her home at approximately 1:30 a. m. on February 1,1967.

In rebuttal, Edith Wilder and Officer John Tully testified for the State. Edith Wilder testified that at 11:30 p. m. on the night in question she received a telephone call in Birmingham, Alabama, from defendant, who told her he. was at home. At 1:30 a. m. she received a call from her daughter. Later she called defendant, who answered the telephone, and she asked him what he had done. He said nothing. He also told her that Rendella and Donnie were not in the house. Later on that evening defendant called her again and asked what happened, and she told him nothing. Ten or fifteen minutes after that she had a telephone call from Mrs. Wheeler and talked to a detective. After the incident she separated from the defendant.

Officer Tully testified that he was the first police officer on the scene, and that after his arrival and prior to taking the prosecutrix and Mrs. Walker to Billings Hospital, he searched defendant’s apartment. He found no knife, no sheet, no torn pajamas. All he found was one small boy sleeping, and defendant was not present at that time.

At the conclusion of Officer Tully’s testimony both sides rested and waived final argument. Then the State was permitted, over defendant’s objection, to argue. Defendant’s counsel also argued at the time. Thereafter, and following an extended colloquy, the trial court, over the objection of the defendant, reopened the case and examined Officer Tully as a court’s witness. Officer Tully stated that he did not look for evidence in searching the apartment, only for the offender. After examining Officer Tally, the court remarked: “Well, that was the only point that disturbed the Court. I can’t hold it against the State because the officer didn’t operate as I thought perhaps one would have operated under those circumstances, but I think the evidence is overwhelming. There is no dispute, too, that there was sexual intercourse. There was all the evidence as to that. There will be a finding of guilty.”

Considered first is defendant’s contention that the court erred in restricting the cross-examination of defendant’s wife when she testified in rebuttal. Counsel for defendant opened the cross-examination with the question, “Mrs. Wilder, you lied before on the stand haven’t you?” The State’s objection was sustained, and after further attempts to impeach the credibility of this witness by showing that she had previously lied on the witness stand in stating that defendant, Ned Wilder, had stabbed her son, the cross-examination was concluded.

Defendant argues it is difficult to postulate more impeaching evidence than the fact that a witness had previously lied under oath in a criminal case against the very defendant now on trial — that was what defendant Wilder attempted to prove, and the trial judge did not permit it. Defendant’s authorities include Pointer v. Texas, 380 US 400 (1965); Smith v. Illinois, 390 US 129 (1968); and People v. Armstrong, 80 Ill App2d 77, 224 NE2d 675 (1967). In Pointer v. Texas, it is said (p 403):

We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.
“It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in á criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. . . . The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution.”

The State argues that a proper foundation must be laid to impeach a witness for bias, and that this was not done here. Also, “the question, as asked, did not imply any search for bias, nor for any prior inconsistent statement related to this cause.” Citations include People v. Rainford, 58 Ill App2d 312, 320, 208 NE2d 314 (1965), and People v. Payton, 72 Ill App2d 240, 248, 218 NE2d 518 (1966).

We find no merit in defendant’s instant contention. The defendant in a criminal prosecution should be permitted the widest latitude in the cross-examinatian of the State’s witnesses for the purpose of establishing bias, particularly in a sex case. (People v. Naujokas, 25 Ill2d 32, 37, 182 NE2d 700 (1962).) The question propounded to Mrs. Wilder failed to include any details as to time, place or circumstances. The defendant made no attempt to lay a foundation after the State’s objection was sustained. Defendant had the opportunity to rephrase his question or to make it more definite, and his attorney chose not to do so. The limitation of cross-examination is a matter which is ordinarily left to the sound discretion of the trial judge, and the exercise thereof will be sustained in the absence of a clear showing of abuse, which we fail to find here. People v. Caldwell, 62 Ill App2d 279, 284, 210 NE2d 556 (1965).

Defendant’s next contention is that the trial court erred in permitting the State to argue in rebuttal and reopen the evidence after defendant had waived argument. Defendant argues that his waiver of argument left nothing for the State to rebut, and that permitting the prosecutor to argue over the objection of defendant’s counsel “destroyed the balance of the trial and represented a departure from the accepted norms of criminal procedure which could only have severely prejudiced Defendant’s case.”

Defendant further argues that recalling Officer Tully to the stand, to testify as to why he found no evidence of the crime when he arrived on the scene, was prejudicial error. Defendant notes that the trial judge “entertained serious doubts concerning the sufficiency of the evidence to convince [him] of the guilt of defendant,” and that reopening the evidence to allow Officer Tully to testify that he did not search for evidence “operated distinctly to the disadvantage of the Defendant and was not warranted by the dictates of fairness and justice.” Authorities cited include Cunningham v. People, 210 Ill 410, 71 NE 389 (1904); People v. Franceschini, 20 Ill2d 126, 169 NE2d 244 (1960); and People v. Crump, 5 Ill2d 251, 125 NE2d 615 (1955).

In Cunningham v. People, defense counsel waived argument after the State had concluded its summation to the jury. A second Assistant State’s Attorney insisted on the right to argue in rebuttal without regard to defendant’s waiver, and the trial court allowed him to resume argument. The Illinois Supreme Court held (p 418) :

“When the attorney for the People closed the opening argument, the attorney for the defendant had the right to waive the argument to the jury upon behalf of the defendant if he saw fit so to do, and if he did waive defendant’s right to have the case argued to the jury, the People did not have the right to further argue the case to the jury.”

In People v. Franceschini, the court stated (pp 131-132):

“As a general proposition it is never improper for a judge to aid in bringing out the truth in a fair and impartial manner. In People v. Lurie, 276 Ill 630, 641, this court observed that ‘It is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice, but in so doing he must not forget the function of the judge and assume that of the advocate.’ ”

In People v. Crump, the court stated (p 267) :

“It is a general rule that a witness should not be called by the court as a court’s witness unless it is shown that otherwise there may be a miscarriage of justice or the requesting party, for a reason about which he informs the court, doubts the integrity or veracity of the witness.”

After examining this record we find that no prejudicial error was committed by the court in allowing the State to argue in rebuttal after defendant had waived his argument. The record shows that defense counsel was also permitted to argue and did so. Also, we find that it was within the sound discretion of the court to reopen the evidence and to recall Officer Tully to the stand. Apparently the trial judge was concerned over Officer Tully’s prior testimony that he did not search defendant’s apartment. We believe that both of these contentions come within the guidelines set forth in People v. Cross, 40 Ill2d 85, 237 NE2d 437 (1968), where it is said (p 90):

“It is in the sound discretion of the trial court whether a case may be opened for further evidence and this discretion will not be interfered with except where it is clearly abused.”

We conclude that the evidence established defendant’s guilt beyond a reasonable doubt, and that he received a fair trial, free from prejudicial error. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    People of the State of Illinois ex rel. Hawkonsen, et al., Petitioners-Appellees, v. James B. Conlisk, et al., Respondents-Appellants.
    Gen. No. 54,368.
    First District, First Division.
    January 19, 1970.
    Rehearing denied February 10, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellants.
    Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an interlocutory appeal from, a temporary injunction. By its terms the respondent, the Superintendent of Police, was restrained from filling any office of sergeant of police from any purported civil service list published on or after June 4, 1969, until petitioners’ suit for a writ of mandamus was determined on the merits.

Since we believe that for the purpose of this appeal we must consider whether the petition for a writ of mandamus sufficiently states a claim for mandamus, we will summarize its allegations. Petitioners generally aver in Count I that the Superintendent of Police in 1968, requested an appropriation for more men because of the press of police business for the coming fiscal year. Pursuant to the Mayor’s budget message and recommendation for an additional appropriation for the police department, which was approved by the City Council, additional personnel was added and a total of 1,279 sergeants positions were provided.

It is further alleged that each of the petitioners has completed the requirements of efficiency and seniority as a patrolman and passed the sergeant’s examination on August 10, 1966. The petitioners were listed from numbers 432 to 474 on the September, 1966 promotion eligible list. Since the respondent has selected 424 men from that list, the petitioners became numbers one (1) to forty-nine (49) on that promotional list. The Civil Service Commission, also respondent herein, removed the promotional list on June 4, 1969, and petitioners allege that such removal was improper. Since there were more than fifty vacancies in the rank of sergeant on June .4, 1969, petitioners claim that they had a legal right to each of such vacancies as they occurred and that their promotion required only the ministerial duty of the certification of their names.

It is stated in the petition that the petitioners recognized the degree of discretion reposed in the superintendent to determine his department’s needs and so they withheld demand for promotion pending the superintendent’s exercise of that discretion. Petitioners allege that now that the superintendent, respondent in this action, and the Mayor, under his budgetary responsibility, have determined minimal needs in excess of existing vacancies, the respondent’s administrative discretion has been exercised, and all that remains is the predetermined mechanical chore of designation from the list, choice and promotion. The petitioners therefore pray that the superintendent be directed to promote the petitioners to the existing vacancies of sergeant to which they are entitled.

Petitioners further aver, under Count II, that Section 1 of Rule IV of the Civil Service Commission provides that when vacancies are to be filled from the promotion register, the commission shall certify to the appointing officer the names of the three candidates standing highest on such register. The petitioners pray that the mandamus be directed to the Civil Service Commission to take steps to effect their promotion. In Count III, it is alleged that on June 4, 1969, when the commission removed the list of September, 1966, upon which the petitioners’ names appeared for promotion to sergeant, another list was approved. The petitioners had been informed and believe that the presently existing vacancies will be filled from the latter list before the court had an opportunity to resolve the legal question posed in the petition. The petitioners therefore prayed that an injunction issue forthwith restraining the Superintendent of Police from notifying the Civil Service Commission and restraining the Civil Service Commission from certifying any names from the list of on or after June 4, 1969, for promotion to the rank of sergeant until the court had finally determined the legal question involved.

This petition was filed on July 2,1969. The petitioners moved for an order staying the filling of any vacancies on July 3, 1969. In an affidavit it was alleged that there were rumors that the superintendent intended to fill some fifty vacancies from the new list. An order was entered on that day restraining the superintendent from filling any office of sergeant until the matter was determined and a hearing was set for July 23,1969.

An appearance was filed by respondents on July 10, 1969. Respondents filed a motion to dismiss the petition on July 18, 1969. In that motion respondents cited certain statutes and authorities which they contended established the Civil Service Commission’s authority to strike the list of eligibles after their names had appeared on the list for more than two years. On July 23, 1969, an order was entered denying respondents’ motion to dismiss and setting the matter for trial on August 29, 1969. The superintendent was again restrained in that order from filling any office of sergeant. Respondents appeal from the orders entered on July 3, and July 23.

Respondents contend that (1) injunctive relief cannot . be awarded to enforce political rights, as distinguished from property or civil rights; (2) the Civil Service Commission’s striking of the names which were on the eligible register for sergeant of police for over a two-year period was authorized by statute; (3) the petitioners fail to allege that vacancies exist which the Superintendent of Police or the Civil Service Commission are legally bound to fill and (4) that the petitioners had an adequate legal remedy under the Administrative Review Act.

Petitioners argue that there are only two issues: (1) is the petition sufficient to state a claim for mandamus and (2) did the trial court abuse its discretion in granting a temporary injunction maintaining the status quo pending a trial of the issues.

The basic issue in this case is whether the Superintendent of Police exercised his discretion by requesting additional personnel so as to give the petitioners a legal right to the vacancies in the rank of sergeant. We think that he did not.

We take judicial notice of the appropriation ordinance of the City of Chicago, adopted by the City Council on December 13, 1968 (Coun J 12-13-68, p 4035) wherein it is stated:

Section 6 ... In case of a vacancy in any office or position, the head of the department in which the vacancy occurs shall not be required to fill such vacancy or position if, in his judgment and discretion, there is no necessity therefor.

The appropriation ordinance thus specifically provides that the superintendent, as head of his department, need not fill vacancies unless he thinks it necessary to do so.

In order for the Civil Service Commission to fill vacancies from an existing list, notification to the commission of the vacancies by the department head is required by Section 14 of the Municipal Code of 1961 (Ill Rev Stats 1967, e 24, § 10-1-14):

The head of the department or office in which a position classified under this Division 1 is to be filled shall notify the Commission of that fact ....

There is no allegation in the petition that the superintendent gave any such notification to the Civil Service Commission.

The Civil Service Commission in striking the names from the register for sergeants of police, which had been posted on September 14, 1966, was acting under the authority given to it by section 14 of the Municipal Code (Ill Rev Stats 1967, c 24, § 16-1-14) which provides in part:

The Commission may strike off names of candidates from the register after they have remained thereon more than two years.

The pleadings establish that the commission cancelled the entire list including the names of all the petitioners from the sergeant’s register on June 4, 1969, which was more than two years from the posting of that list on September 14,1966.

Petitioners admit the authority of the commission to cancel a list after two years which has been upheld in People ex rel. Baker v. Wilson, 39 Ill App2d 443, 189 NE2d 1; Baldwin v. Hurley, 9 Ill App2d 532, 133 NE2d 522; People ex rel. Lynch v. City of Chicago, 271 Ill App 360; and People ex rel. Walsh v. City of Chicago, 226 Ill App 409. In the Baker case this court stated:

Civil service positions are in the nature of public offices, political in character, in which the holders “have no property right.” (Citing authority) 39 Ill App2d at 446, 189 NE2d at 3.

Petitioners, however, challenge the power of the commission to cancel a register when there are vacancies caused by the successful request of the superintendent for more money and men. This is similar to the contention in People ex rel. Erickson v. Sheehan, 24 Ill App2d 43, 163 NE2d 834, that the commission could not strike off an unpublished register. In upholding the commission’s power to do so, the court pointed out that in the statute the word “register” is not qualified or modified by the words “posted” or “published.” Of course, the statute does not say that the commission may only cancel the register when there are no vacancies in new offices created at the superintendent’s request.

In the Erickson case the basic issue was whether the Civil Service Commission could lawfully expunge the promotional examination successfully passed by a number of lieutenants of police on December 4, 1954, leaving it free to hold the 1958 examination. In upholding the commission’s power to strike names from the unpublished list, after the names had been on it for more than two years, the court said:

The policy behind this provision is to maintain an up-to-date register, the vitality of which may be guaranteed by the discretion placed in the commission to meet changing conditions and circumstances. Toward that end, the commission is authorized to strike a register which is no longer suitable to fulfill the function for which it was intended. That policy applies whether a promotional register is published or not. (24 Ill App2d at page 47, 163 NE2d at 836.)

In that case the court concluded as we do here that

[discipline is vital in the police department which constitutes a force of armed men organized to protect the City. The offices of mayor, chief of police and civil service commission constitute branches of the executive department charged with the maintenance of discipline in this group of armed men. Courts must move with great care and caution before they set aside the acts of the executive department of the government under any circumstances, but especially in matters such as this. (24 Ill App2d at page 54, 163 NE2d at 839.)

People ex rel. Roderick v. City of Chicago, 283 Ill 462, 119 NE 599, is relied on by petitioners. In that case, the court held that the filling of a vacancy in the position of superintendent of machinery of the fire department was not discretionary with the fire marshall. The court stated that the fire marshall could not abolish a position which the City Council had created by not filling it. In the case at bar, however, the City Council expressly instructed the superintendent that he need not fill vacancies unless in his judgment and discretion there was a need for them to be filled.

The purpose of an interlocutory injunction is to maintain the status quo until a final hearing on the merits. A showing, however, should be made that there is a probability of ultimate success on the part of the party in favor of whom the injunction is asked, and if the petitioner can have no ultimate relief at the hearing of the case on its merits, he should not be granted an injunction. Chicago Motor Coach Co. v. Budd, 346 Ill App 385, 390,105 NE2d 140, 143.

The writ of mandamus is a writ commanding an official or official board to perform a ministerial act where the law imposes a duty to act and no discretion is vested in the official or board. Grove v. Board of Sup’rs of Piatt County, 246 Ill App 241, 244. In order to warrant the issuance of a writ of mandamus, it must appear that the petitioner has a clear right to the performance of a particular act or duty by the respondent. No such right is shown by the pleadings, because the Superintendent of Police, under the facts and circumstances of this case, is under no legal duty to fill vacancies for the position of sergeant merely because appropriations have been made for such offices, at his request.

In the view we take of the case, it will not be necessary to discuss any other questions raised on appeal. The interlocutory orders restraining the superintendent from filling any office of sergeant of police from any purported civil service list published on or after June 4, 1969, is hereby reversed and the petition dismissed.

Reversed and petition dismissed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    John J. Neal, Plaintiff-Appellee, v. Independent Boiler and Tank Company, an Illinois Corporation, Independent Construction Company, an Illinois Corporation, and Edward T. Wilkens, Defendants-Appellees, Metropolitan Life Insurance Company, Intervenor-Appellant.
    Gen. No. 52,974.
    First District, Fourth Division.
    January 21, 1970.
    Rehearing denied February 24, 1970.
    Epton, McCarthy, Bohling & Druth, of Chicago (Bernard E. Epton and Ray Jeffrey Cohen, of counsel), for appellant.

      Hubachek, Kelly, Rauch & Kirby, Van Duzer, Gershon, Jordan & Peterson, of Chicago (Richard W. Burke, Michael B. Roche, and Louis Gershon, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Metropolitan Life Insurance Company, as intervenorappellant, appeals from an order denying it leave to file an amended petition to intervene under section 5(b) of the Illinois Workmen’s Compensation Act (Ill Rev Stats 1961, c 48, § 138.5(b)) in a suit brought by plaintiff against defendants for personal injuries resulting from an automobile accident.

Appellant’s original petition to intervene alleged that: (1) plaintiff was employed by the petitioner, both of whom were operating under the provisions of the Workmen’s Compensation Act, (2) plaintiff was injured in an accident which arose out of and in the course of his employment, without the fault of the petitioner, and (3) petitioner paid to plaintiff “in discharge of its liability” $5,000 pursuant to and in accordance with the provisions of the Workmen’s Compensation Act. In paragraph 6 of the original petition, petitioner further alleged that the plaintiff had filed an application for adjustment before the Illinois Industrial Commission and that thereafter the claim was fixed and determined by a settlement approved by the Industrial Commission.

Plaintiff moved to dismiss the petition to intervene alleging that no application for adjustment was ever filed before the Industrial Commission and also that no settlement was ever approved by the Industrial Commission. He further alleged that the notice of lien which was served upon him was defective in that the petitioner failed to take the necessary steps to cause a lien to arise pursuant to the provisions of the Workmen’s Compensation Act and that there existed no basis upon which petitioner had any lien in the proceedings. The plaintiff prayed that the court enter an order dismissing the alleged lien of petitioner and dismissing petitioner from the proceeding.

In a hearing on the motion to dismiss, the petitioner admitted that no adjustment claim nor settlement was ever filed or approved by the Industrial Commission and asked leave to file an amended petition deleting these statements. Petitioner also asked for leave to increase the amount of its claimed compensation to $7,988.40.

No evidence was adduced but counsel for defendant in the personal injury suit read from a deposition of the plaintiff in which he stated that on the date of the accident he was driving to a school for certified underwriters to attend a class paid for by the company; that he had to pay for his own transportation to and from school; and that he was not on company business as he drove down to school. On appeal plaintiff urges that this statement clearly demonstrates that plaintiff was not in course of his employment. During the argument before the trial court counsel for plaintiff also contended that the monies paid to plaintiff were not paid as compensation under the Workmen’s Compensation Act. The trial court held that since there was a misrepresentation in the original petition as to the filing of a claim and since there was no application to or adjudication by the Industrial Commission, the intervener had no lien. The court denied petitioner leave to file the petition of December 15, 1967 (hereinafter referred to as the amended petition although it is not so labeled).

Petitioner contends that the court erred in its ruling. It argues that the petition stated sufficient facts to entitle it to leave to file the amended petition. Plaintiff argues that petitioner did not have an enforceable lien since the pleadings showed that no proceedings were filed with the Industrial Commission and no adjudication was ever entered by the Commission. We do not believe that proceedings before the Industrial Commission are a condition precedent to a claim for reimbursement by the employer. The Workmen’s Compensation Act refers to payment by the employee to the employer from the amount received by the employee in payment or settlement of employee’s suit against a third person. It further states that the employer may, at any time after service upon him of notice that the employee has filed a suit against the third party, “join in said action upon his [employer’s] motion.” There is no requirement that the employer serve the employee with any notice of lien. Another provision of the same statute states that the employer “may have or claim a lien.” Thus an employer has. the right to join in the lawsuit of the employee for the purpose of getting an adjudication of his “claim of lien” and if his petition shows on its face that the facts stated therein give rise to a claim for reimbursement the court should permit the petition to be filed.

In the instant case the petition alleged that, an employee was injured in an accident which arose out of and in the course of his employment through no fault of his employer and that the employer paid this employee $7,-983.40 compensation pursuant to the Illinois Workmen’s Compensation Act. We find that this petition states the necessary grounds for intervention. We make no determination of the merits thereof since plaintiff has the opportunity after leave to file is granted to contest the allegations of the petition on the grounds that plaintiff was not in the course of his employment, that the compensation was not paid under the Workmen’s Compensation Act and such other grounds as plaintiff may deem advisable. The merits of the petition will then be determined by the trial court.

Therefore we reverse the judgment and remand with directions to allow the filing of the amended petition and for further proceedings not inconsistent herewith.

Reversed and remanded with directions.

STAMOS, P. J. and LEIGHTON, J., concur.

       The relevant paragraphs of section 5(b) are:
      Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act.
      If the injured employee or his personal representative shall agree to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party. (Emphasis supplied.)
      In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which the suit is brought, filing proof thereof in such action. The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. . . .


text:
    Richard Duryea and Kathryn Duryea, His Wife, and Socony Mobil Oil Company, Inc., a Corporation, Plaintiffs-Appellees, v. The City of Rolling Meadows, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,017.
    First District, Fourth Division.
    January 21, 1970.

      Donald M. Rose, Moriarty, Rose, Faccenda & Hultquist, of Chicago, for appellant.
    Brown, Dashow, Langeluttig, Arons & Doran, of Chicago (Norman H. Arons, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, City of Rolling Meadows, appeals from a judgment declaring that its zoning ordinance is unconstitutional as applied to plaintiffs’ property and ordering the issuance of a permit for the construction of a gasoline service station on this property.

During the trial the judge summarily terminated the presentation of evidence by the defendant before it had rested. Plaintiffs have confessed error on this point and move this court to reverse and remand the cause for further proceedings. Defendant contends that the plaintiffs, having presented their case in full, failed to sustain the burden of overcoming the presumptive validity of its zoning ordinance. Defendant argues that an absolute reversal of the trial court’s declaratory judgment order is required. We must determine whether the judgment order requires the cause to be reversed and remanded or whether an absolute reversal is warranted based upon the evidence presented.

In their complaint the plaintiffs, Richard and Kathryn Duryea, allege that they are the owners of three lots located at the northwest corner of Kirchoff and Wilke Roads in the City of Rolling Meadows and that the plaintiff, Socony Mobil Oil Company, Inc., has an interest in the subject property under a contract of purchase with the Duryeas. The complaint also alleges that the subject property is currently zoned R-2, single-family residence district, under the city’s zoning ordinance of February 14, 1956. The subject property has a frontage of 223 feet, 1% inches on Wilke Road and a frontage of 209 feet, 1 inch on Kirchoff Road with a total lot area of 30,163 square feet. The complaint further alleges that Kirchoff and Wilke Roads are well traveled arterial thoroughfares.

The complaint then sets forth plaintiffs’ attempt to secure a change in the zoning to C-3, general service wholesale and motor vehicle district, before the Special Zoning Commission of Rolling Meadows and the Corn-mission’s recommendation that the application be denied. This ruling was subsequently accepted by the City Council.

Plaintiffs having exhausted all administrative and local remedies filed this complaint seeking a declaratory judgment and other relief. The complaint alleged that plaintiffs have been deprived of their property without due process of law and without compensation, contrary to the provisions of the United States and Illinois constitutions and that the highest and best use of the subject property is for the development of an automobile service station.

Defendant’s answer admits the zoning ordinance with the exception that the subject property is presently classified R-2 pursuant to the comprehensive zoning ordinance of 1964 but denies that the plaintiffs have been deprived of their property without due process of law and without compensation. The answer alleges that the highest and best use of the property is for the continuation of the present R-2 zoning.

Defendant’s answer then sets forth its affirmative defense to the complaint. Defendant alleges that the subject property is completely surrounded by single-family residences and that any change in the R-2 zoning would constitute illegal “spot zoning.” It also alleges that the subject property being less than one acre in area violates section 5, Minimum Areas for Zoning Districts of Article IV of the Comprehensive Zoning Ordinance of the City of Rolling Meadows of 1964, which provides that the minimum area for a C-3, general services, wholesale and motor district shall be four acres. Defendant further claims that the proposed use also violates Article XI, section 4, subsection 4.2-4, which provides that an automobile service station shall be not less than one acre. Finally, defendant alleges that the erection of the station violates section 12-261 of the city’s Business and Occupation License and Permit Code which provides:

No tank for the storage and handling of flammable liquids shall be installed within 200 feet of a school, hospital, church or theatre, or within one hundred fifty feet (150) of any residence or within two hundred and fifty (250) feet of any electrical distribution center.

Defendant alleges that the subject property is located within 150 feet of a residence and within 250 feet of an electrical distribution center.

No reply was filed by the plaintiffs to the affirmative defense.

Testimony of Alfred C. Stier, called by the plaintiffs:

He negotiated the purchase of the property in behalf of Mr. Duryea. However, Mr. Duryea is the nominee of Mobil Oil and the property is to revert back to KimbellHill Homes, Inc., if the rezoning was unsuccessful. Payment of the $80,000 purchase price is contingent upon the property being rezoned. There are other gas stations within one-third of a mile from the subject property, but he did not know in which municipal jurisdiction each station was located. The subject property is surrounded by single-family homes with several new homes being constructed just east of the subject property.

Testimony of Edward Cahill, called by the plaintiffs:

He is a field engineer employed by the Mobil Oil Corporation. He described the type of station to be built on the property which would have a buffer zone between the adjoining residential homes. This zone would be either fenced in or landscaped. The service gas pumps would be approximately 120 feet from the north lot line. The construction of the station would comply with the applicable ordinances of the city.

Testimony of John McNamara, called by the plaintiffs: He is a real estate broker and has been in the real estate business for 41 years. He knew that there were other service stations in the area, with the nearest one being approximately one-half mile away, on the corner of Central and Wilke. Several of these stations were near or were surrounded by single-family homes. However, none of these particular stations are located in the City of Rolling Meadows; they are either located in Arlington Heights or the unincorporated areas of Cook County. Kirchoff and Wilke Roads are considered arterial roads, both being major thoroughfares.

The subject property would require a C-3 or M-2 zoning classification. A C-3 classification would be the same as the recently built Texaco station at Euclid and Hicks Roads in the City of Rolling Meadows. This Texaco station is surrounded by single-family homes to the south and west. The proposed service station on the subject property would be compatible with the uses to which the other service stations were put on their respective corners at major intersections.

In his opinion the value of the subject property under the present zoning was $15,000. If the property was developed under the proposed use the value would be $90,000. Since the property is located at the intersection of two main traffic arterial roads, there would be a great deal of sales resistance to single-family use. The highest and best use would be for a gasoline service station and its construction would not have any deleterious effect upon the surrounding area.

The only station surrounded by single-family homes in the city is two miles from the subject property in an area zoned M-l industrial. Some of the homes directly adjoining this station were built before the station was constructed. Directly across from this station is a cloverleaf turn for Route 53 expressway traffic.

To his knowledge the subject property has never been offered for sale as single-family residential. He agreed that there is nothing surprising about the fact that the subject property would be more valuable zoned for commercial use as against single-family use.

Testimony of Richard W. Manke, called by the defendant:

He is a real estate broker, appraiser, developer and builder. He has been so employed for 22 years. The entire intersection and neighborhood within a distance of one-half mile from the subject property is either currently being developed or is 100% developed as residential property. In his opinion the subject property takes its character from the surrounding properties which is 100% residential in use and zoning. The installation of a service station would have a deleterious effect upon the value of the surrounding property with an average depreciation of $19,000 to $20,000 on the adjoining residences.

He believes that the subject property could be developed for single-family residences, even with the electrical and water substations located on the property. These substations would have no depreciative effect upon the single-family residences.

The service station located at the corner of Central and Wilke Roads and the one located at Euclid and Wilke Roads are in the unincorporated areas of Cook County, while the station located at Campbell Street and Wilke Road is in Arlington Heights. As far as he knew no service station located within the City of Rolling Meadows has ever been built upon land zoned residential.

The Texaco station located at Euclid and Hicks was built within the last year (1966). The City issued a special use permit for its construction. There are single-family residences located directly behind this station. However, this property was zoned M-l industrial at the time the permit was granted. In addition, there is a great deal of traffic generated by the cloverleaf turn to the expressway.

In his opinion the highest and best use for the subject property would be for a continuation of the current single-family residential zoning.

Testimony of Daniel Ferrone, called by the defendant:

He is a town planner and zoning consultant. In his opinion the construction of a gasoline service station on the subject property would not be compatible with the surrounding uses. A rezoning would constitute illegal spot zoning. The electrical and water substations are necessary for the community and are not incompatible with a single-family use. The subject property has always been zoned single-family residential and could easily be developed for single-family use. In his opinion the highest and best use would be for a continuation of the present single-family zoning district.

Opinion

The defendant contends that the plaintiffs failed to overcome the presumptive validity of its zoning ordinance. A presumption exists in favor of the validity of a zoning ordinance and the one challenging its validity has the burden of overcoming this presumption by clear and convincing evidence. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201; Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96; LaSalle Nat. Bank v. Village of Palatine, 92 Ill App2d 327, 236 NE2d 1; and Menolascino v. Village of Franklin Park, 106 Ill App 2d 472, 246 NE2d 122. In order to meet this burden the plaintiffs tried to show the disparity in value of the subject property under the different zoning classifications, the heavy use made of Wilke and Kirchoff Roads by commercial vehicles, the proximity of their property to the commercial district in the center of the city, and the existence of other gasoline service stations, one within one-half mile of the subject property, and the city’s granting of a special use permit for the construction of another service station. They argue that the combinatian of all these factors makes the defendant’s single-family district classification unreasonable.

Plaintiffs’ evidence shows that their property would have a much greater value if its proposed use was allowed. While the value of the subject property is a factor to be considered in determining the reasonableness of defendant’s zoning ordinance, it is not of itself sufficient to invalidate the present single-family ordinance. River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671; Jacobson v. City of Evanston, 10 Ill2d 61, 139 NE2d 205; and First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 130 NE2d 267.

Plaintiffs’ evidence also shows that both Wilke and Kirchoff Roads are heavily traveled arterial thoroughfares. While this too is a factor to be considered in determining the reasonableness of defendant’s ordinance, a single-family classification is not invalid simply because it fronts on heavily traveled streets. Cosmopolitan Nat. Bank of Chicago v. Village of Mt. Prospect, 22 Ill2d 463, 177 NE2d 365; Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771; and Menolascino v. Village of Franklin Park, supra. Furthermore, the combination of proximity to a commercial zone, the city’s shopping district, and location on a heavily traveled road, Kirchoff Road, does not render a classification unreasonable and invalid. Jans v. City of Evanston, 52 Ill App2d 61, 201 NE2d 663.

Plaintiffs and defendant agree that a factor of paramount importance in determining the reasonableness of the city’s zoning ordinance is whether or not the property is zoned in conformity with the surrounding existing zoning and uses. The plaintiffs’ property is surrounded on all sides by single-family residences or vacant land zoned for residential use which is currently being developed. The service stations mentioned by plaintiffs’ witnesses north and south on Wilke Road and northwest on Kirchoff Road (the closest one being one-third to one-half mile away) are either located in the Village of Arlington Heights, the unincorporated areas of the county, or in areas zoned for commercial use by the defendant. Since 1956, and by subsequent amendment in 1964, the area surrounding the subject property has continuously been zoned R-2, single-family residential. No commercial use or intrusion has been allowed by the defendant in any district presently zoned for single-family use.

Plaintiffs’ evidence does show that the defendant granted a special use permit for the construction of a Texaco service station approximately two miles from plaintiffs’ property. This station is located at Euclid and Hicks Roads in a district originally zoned M-l industrial and is directly across from a major cloverleaf turn to the expressway. Furthermore, the single-family residences adjoining this station were built with the knowledge that this property was zoned M-l industrial. In the instant case the subject property has always been zoned for single-family use, and the surrounding property owners relied upon this fact when they bought and developed their property. We therefore must conclude that the present zoning is reasonable.

Defendant urges that the rezoning sought by plaintiffs constituted “spot zoning.” In Reskin v. City of Northlake, 55 Ill App2d 184, 189, 204 NE2d 600, this court found that two requisites must coexist to constitute “spot zoning”:

a change of zone applicable only to a small area, and a change which is out of harmony with comprehensive planning for the good of the community as a whole.

In the instant case a change in the present zoning of plaintiffs’ property would only cover three lots as corn-pared to the entire surrounding single-family district, and it would permit the first encroachment of a commercial use into an otherwise solid and stable residential zone. Therefore, we believe that the effect of declaring defendant’s residential zoning ordinance invalid as it applies to plaintiffs would constitute illegal “spot zoning.”

The plaintiffs claim that the judgment should not be disturbed because it is not against the manifest weight of the evidence. In Menolascino v. Village of Franklin Park, supra, 476, the plaintiff argued this same issue, but the court concluded that:

. . . the very best that can be said of plaintiff’s, position is that a legitimate dispute may exist as to the desirability of the zoning classification presently imposed upon her property. Under such circumstances the legislative judgment must prevail. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 471, 194 NE2d 201; LaSalle Nat. Bank v. City of Chicago, 68 Ill App2d 412, 415, 216 NE2d 224; Jans v. City of Evanston, 52 Ill App2d 61, 72-73, 201 NE2d 663.

In the instant case we find that the plaintiffs failed to overcome the presumptive validity of defendant’s zoning ordinance and that the judgment was against the manifest weight of the evidence.

Defendant also points out that the judgment orders the issuance of a permit to construct the gasoline service station regardless of the fact that its construction would be in violation of other provisions of defendant’s ordinances, e. g.: plaintiffs’ property is less than one acre in size in violation of Article IV, section 5, of defendant’s code; it is less than four acres in size in violation of Article XI, section 4, of the code; and the construction of the gasoline service station within 150 feet of a residence and within 250 feet of an electrical distribution center would be in violation of defendant’s Occupation License & Permit Code. There was no evidence that these provisions of the ordinances were unreasonable, arbitrary, discriminatory or unconstitutional.

The judgment is reversed.

Reversed.

STAMOS, P. J. and LEIGHTON, J., concur.


author: CLARK, J.

text:
    The People of the State of Illinois ex rel. Hickman, Plaintiff-Appellee, v. Frank M. Dallape, Carl Wisely, Everett Collins, Robert C. “Peter” Moon, and Lina Gulley, Defendants-Appellants.
    Gen. No. 69-38.
    Fifth District.
    January 21, 1970.
    Elmer Jenkins, of Benton, for appellants.
    Robert S. Hill and Lewis & Lewis, of Benton (Loren E. Lewis, of counsel), for appellee.
   CLARK, J.

The State’s Attorney of Franklin County filed a Complaint in quo warranta against certain named defendants who were purportedly elected commissioners of the Benton Community Park District on October 15, 1966, to determine by what warrant and authority they claim to hold the office. The election to select commissioners was held at the same time and place as the election to form the Park District.

A resident and taxpayer of the District was allowed to intervene in the proceedings, and thereafter following his death, the Circuit Court allowed another taxpayer to be substituted as an intervening petitioner.

The Complaint in quo warranta, Answer of the defendants, Reply to Answer and Pleas of plaintiff, and Reply to Answer and Pleas by Intervener present the issues in this cause, all of which attack the validity of the formation of the District, and, therefore, the right of the Park Commissioners to hold office.

The Judge of the Circuit Court of Franklin County entered judgment of ouster on January 16, 1969, after a hearing wherein the facts and record were agreed upon pursuant to stipulation of counsel.

The following facts appear from the pleadings and evidence:

On August 19, 1966, a petition was filed in the Circuit Court of Franklin County petitioning the Judge to call an election for the purpose of voting for or against the formation of the Benton Community Park District. The petition described the territory to be encompassed in said proposed Park District as “all the territory included with (in) Benton Grade School District #47.” A legal description of the Benton Grade School District, Community Consolidated District #47 was not filed with the original petition, but was introduced in evidence at a subsequent hearing along with a map of the territory of the proposed Park District.

The Judge, after reviewing the Petition, ordered that a hearing be held with notice to be given by publication. The notice of said hearing was by one publication in the local newspaper. The publication notice set a date for hearing on the Petition and provided in part “NOTICE is hereby given to the residents of Benton Grade School District, Community Consolidated District No. 47, that a Petition to form a Park District had been filed in the Circuit Court of Franklin County.” The notice did not describe the territory to be included in the proposed Park District.

A hearing was held on the Petition, and the Judge ordered that an election be held within the proposed district, Benton Grade School District, Community Consolidated District #47, to submit the question of formation of said district to the voters and to elect five commissioners for said district. The order further provided for one publication notice in a local newspaper, and established one polling place at the Benton Consolidated High School located at 609 East Main Street in Benton, Illinois. The time for opening the poll was set at 12:00 o’clock, noon, and the closing was set for 6:00 o’clock p. m. The publication notice for the election provided in part that notice of election was being given to the residents of “Benton Grade School District, Community Consolidated District No. 47,” and further that said Park District would embrace the territory within said School District. The publication notice gave the polling place and the time of opening and closing the poll as set forth in the Court Order, and further stated that five commissioners were also to be elected.

The election was held, and the location of the poll was changed without notice from the Benton High School at 609 East Main Street, Benton, to the High School Gymnasium located in the 500 block on East Main Street, Benton.

The copy of the official ballot in the Report of Proceedings shows only one side which states the proposition and lists the candidates. The reverse side of the ballot is not included in the Report of Proceedings.

The return of election was signed by only one election judge, and indicates that there were 754 votes cast, with 621 votes cast for organization of the Park District and 133 votes against said proposition. Thereafter, an order was entered declaring the Benton Community Park District to be organized and established by the maps and descriptions filed. The order further provided that the five persons receiving the highest number of votes were declared to be commissioners.

The Defendants contend by their Answer and Pleas of Justification that the proper procedure had been followed in organizing the Park District and the election of five commissioners. They contend that they have complied with the statutory requirements and procedural steps for the organization of a Park District as set forth in chapter 105, Article II, Ill Rev Stats 1965. The Defendants further state that thes'e preliminary organizational sections of the statute are directory and not mandatory, and that the manner of conducting the election was within the sound discretion of the Trial Judge. Plaintiff contends that certain mandatory statutory requirements have not been followed and that the judgment of ouster entered by the Franklin County Circuit Court is proper.

Plaintiff contends that the petition to organize the Park District does not contain a proper description of the territory of the proposed district. The Petition to form the Park District describes the territory of the proposed Park District as all the territory of Benton Grade School District No. 47. The official publication notice for the hearing on the Petition to form the Park District, and the publication notice for holding the election, give notice to the residents of Benton Grade School District, Community Consolidated District No. 47 and set forth that the Benton Park District would “embrace the territory included within said school district.”

We find that the Petition to form the Park District and all proceedings are defective in that they fail to properly describe the territory of the proposed Park District with reasonable certainty. The term “Benton Grade School District No. 47” does not describe the territory of the proposed Park District as of a specified date. This description does not meet the statutory requirements as School District boundaries are subject to change.

Plaintiff further contends that the election is invalid for the reason that only one polling place was established for the election. Section 1-4, chapter 105, Ill Rev Stats 1965, provides in part as follows:

“. = . In any park district which encompasses more than one municipality at least one polling place shall be provided in each such municipality at all elections for officers where there is more than one candidate for an office . . . .”

Plaintiff contends this is a mandatory provision of the Park District Code.

We are inclined to say that it was mandatory that at least one polling place be established within the Village of West City as well as one in the City , of Benton. The statute provides for the establishment of a polling place in each municipality; however, it is not necessary for us to decide whether the statute is directory or mandatory for the reason that we have found the description of the District to be defective.

Plaintiff contends that there were certain other irregularities in holding the election which would make said election void. Defendants state these procedures involve directory sections of the statute and they would not invalidate the election unless it was shown that they were fraudulently done. While the record discloses that in other matters there appears to have been no attempt to substantially comply with the statutory provisions provided, we do not here determine whether such irregularities were so substantial as to render the election void.

For the above reasons, the order entered by the Circuit Court of Franklin County declaring the organization of the Benton Community Park District null and void and the Order of Ouster of the five commissioners of said Park District is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry O. Simmons, Defendant-Appellant.
    Gen. No. 69-93. (Abstract of Decision.)
    Third District.
    January 22, 1970.

      W. H. Henning, Public Defender, of Gales-burg, for appellant; Donald C. Woolsey, State's Attorney of Knox County, of Galesburg, for appellee.
   Opinion by JUSTICE RYAN. Not to be published in full.


author: GOLDENHERSH, J.

text:
    Leonard Roth, Plaintiff-Appellee, v. Richard J. Daley, Mayor of the City of Chicago, the City of Chicago, a Municipal Corporation, and James Y. Carter, in His Capacity as Public Vehicle License Commissioner of the City of Chicago, Defendants-Appellants.
    Gen. No. 52,998.
    First District.
    January 23, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellants.
    Edward W. Barrett and Robert A. Sprecher, of Chicago, for appellee.
   GOLDENHERSH, J.

Defendants, Richard J. Daley, Mayor of the City of Chicago, the City of Chicago, and James Y. Carter, Public Vehicle License Commissioner of the City of Chicago, appeal from the judgments of the Circuit Court of Cook County, entered in plaintiff’s action for Declaratory Judgment and Mandamus. In the declaratory judgment order the circuit court held certain portions of an ordinance to be “arbitrary, unreasonable and capricious as they apply to the petitioner in this lawsuit and void and of no effect as to him.” It issued a Writ of Mandamus ordering defendants Carter and Daley to issue plaintiff an Ambulance-Attendant-Driver’s license. It also issued a temporary writ of injunction “restraining and enjoining defendants, James Y. Carter and Richard J. Daley, Mayor of the City of Chicago, and their agents and employees, and each and all of them, from doing or taking, or causing to be done or taken, any action to arrest, prosecute or otherwise interfere in the activities of Leonard Roth as they relate to his engaging in the business or occupation of being an ambulance attendant-driver as defined in the applicable sections of the Municipal Code of the City of Chicago, and more particularly as to his engaging in the aforementioned business or occupation without the benefit of having a valid license as defined in the applicable ordinances of the Municipal Code of the City of Chicago; all until the further order of this Court.”

Chapter 103 of the Municipal Code of Chicago provides in part:

“103-12. It shall be unlawful for any person to drive an ambulance or to act as an attendant on an ambulance or to participate in the transportation and care of patients in any manner whatsoever on any public way from place to place within the corporate limits of city without first having obtained a license as an attendant, or as an attendant-driver.
“103-13. All applications for ambulance attendants or attendant-driver license shall be made in the same manner as application for public chauffeur license, and shall be subject to provisions of sections 3, 4, and 6 of chapter 28.1 of this code. . . .”

The pertinent portions of Chapter 28.1 provide:

“28.1-3. Applications for public chauffeur licenses shall be made in writing to the commissioner upon forms provided by him therefor. They shall contain the full name and Chicago street address of the applicant and such other information as may be required by the commissioner to properly identify the applicant and disclose any information as to his character, reputation, physical qualifications, past employment and conduct which the commissioner deems relevant to the question of qualifications of the applicant for a chauffeur’s license.
“Every applicant shall be at least twenty-one years old, a citizen or declarant of citizenship of the United States of America and the licensee of an Illinois state chauffeur’s license. He shall be able to speak, read and write the English language, be of sound physique, have good sight, not be subject to epilepsy, vertigo, heart trouble or other infirmity of body or mind and not be addicted to the use of drugs or intoxicating liquors which may render him unfit to drive a public passenger vehicle.
“No public chauffeur’s license shall be issued to any person who has been convicted of a felony or any criminal offense involving moral turpitude within eight years prior to his application for such license, excepting only if such person shall have received, since the time of his conviction, an honorable discharge from any branch of the armed services of the United States of America, and if, in the discretion of the public vehicle license commissioner, such person is trustworthy of the responsibility imposed by the issuance of such license. No such license shall be issued to any person at any time after conviction of a crime involving the use of a deadly weapon, traffic in narcotic drugs, the infamous crime against nature, incest or rape.
“28.1-4. The character and reputation of each applicant shall be investigated under the supervision of the captain of the police district in which the applicant resides, and a report of such investigation containing any facts relevant to the character and reputation of the applicant shall be forwarded by the captain to. the commissioner of police, who shall forward the same to the commissioner together with his recommendation. If the commissioner shall be satisfied that the applicant is of good character and reputation and is a suitable person to be entrusted with driving a public passenger vehicle he shall issue the license. Pending such investigation the commissioner may issue a temporary permit authorizing the applicant to drive a public passenger vehicle until the time designated in such permit. If the investigation is not completed by that time the commissioner may, in his discretion, extend the time of such permit until such further time as in the opinion of the commissioner the investigation can be completed.
“28.1-5. Each applicant for a chauffeur’s license shall be examined by a person designated by the commissioner as to the applicant’s knowledge of the geography of the city, its traffic regulations and the laws and city ordinances governing traffic and the ordinances governing public passenger vehicles and their operations. If the examination discloses lack of adequate knowledge of the above subject matter, the applicant shall be refused the license. If required by the commissioner, each applicant shall demonstrate his skill and ability to handle a public passenger vehicle safely by driving it through a crowded section of the city accompanied by an inspector designated by the commissioner.”

The record shows that plaintiff has been an ambulance attendant-driver since 1955, and since 1961 has operated the Acorn Ambulance and Oxygen Service. Prior to the enactment of chapter 103 in its present form, the sole requirement set by the defendant, City of Chicago, for ambulance attendant-drivers was a certificate issued by the Chicago Board of Health. The pertinent provisions óf chapter 103 became effective January 1, 1967. It is admitted that plaintiff has been issued an Ambulance Attendant’s Certificate by the Commissioner of Health, and has completed the requisite first aid courses.

Plaintiff submitted an application for an Ambulance-Attendant-Driver’s license. The record shows that in 1950 plaintiff was convicted of two counts of Armed Robbery and sentenced to the Illinois State Penitentiary. Defendant, Carter, in his capacity as Public Vehicle License Commissioner, denied the application on the ground that plaintiff could not be licensed because of the express prohibition contained in section 28.1-3 above quoted. Because he deemed plaintiff ineligible to be licensed, he did not conduct the investigation and examination provided for in 28.1-4 and 28.1-5.

Defendants contend that enactment of the provision prohibiting the issuance of ambulance attendant and attendant-driver licenses to persons convicted of certain criminal offenses is a valid exercise of the police power, and the circuit court erred in holding the portion of the ordinance void insofar as it applied to plaintiff. They argue further that the trial court’s order is neither based upon, nor supported by the pleadings.

It is settled that under the delegations of police power from the State, a city may regulate occupations, the unrestricted pursuit of which might injuriously affect the health of its citizens; that whether an ordinance is unreasonable and arbitrary is primarily a question for legislative determination; that the city council is the judge in the first instance of those matters and the courts will not interfere unless the exercise of its judgment and discretion is manifestly unreasonable. Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill 246, 65 NE 2d 805. It is equally well settled that enactments which are arbitrary, unreasonable and unrelated to the public purpose sought to be attained, or which are arbitrary in that although reasonably designed to promote the public interest, they effect classifications which have no reasonable basis, are invalid and cannot stand. City of Chicago v. Vokes, 28 Ill2d 475, 193 NE2d 40.

In our opinion the provisions set forth in the last sentence in the last paragraph of 28.1-3 result in classifications which are unreasonable and arbitrary. Under these provisions an applicant who had perpetrated multiple murders by strangulation, poison or arson could be licensed, as could one who had been repeatedly convicted of Attempt To Rape, Burglary, Theft, Kidnapping or Aggravated Battery. In view of this fact, we fail to perceive in what manner the prohibition contained in the ordinance bears any relationship to public health or safety. In our opinion the circuit court correctly held this portion of the ordinance invalid as to the plaintiff.

The argument with respect to the pleadings is that plaintiff did not plead that the classification in the ordinance is unreasonable, arbitrary and void, but only that it should not be applied to him. We have examined the pleadings and conclude they are broad enough to support the prayer and the judgment. Assuming arguendo they are not, under the provisions of section 46 of the Civil Practice Act (c 110, § 46, Ill Rev Stats) and Supreme Court Rule 362, any necessary amendment can be made in this court, either on motion of the parties or by the court of its own motion, and absent evidence of defendants’ being prejudiced in any manner by the alleged deficiency of the pleadings, the judgment will not be reversed on this ground.

Defendants argue that assuming the invalidity of a portion of the ordinance, the trial court erred in ordering the writ of mandamus to issue. They point out that paragraph 20 of chapter 103 of the Chicago Municipal Code provides that if any portion of the ordinance is held unconstitutional, such portion shall be deemed a separate and distinct provision and the holding shall not affect the validity of the remaining portions. They further argue that while a court may direct that action be taken, the writ must be restricted to directing that action be taken, but may not direct what action be taken.

Plaintiff argues that the pleadings have placed in issue each of the qualifications necessary to plaintiff’s being issued the license and the court found him qualified for and entitled to the license. Relying upon People ex rel. Zaransky v. Chicago, 293 Ill App 301, 12 NE2d 239, he contends the court properly ordered the license to issue.

The evidence shows plaintiff to be an experienced ambulance operator, and as stated above, he has completed the first aid training, and the Commissioner of Health has issued him the certificate requisite to his being licensed. There is not, however, any evidence with respect to plaintiff’s knowledge of the geography of the defendant City, and assuming there were, plaintiff’s qualifications, character and reputation are in the first instance matters for administrative determination. The writ should have directed defendant Carter to take the action required by the ordinance, and erred in directing what action he was to take. The People ex rel. Walsh v. Board of Commissioners of Cook County, 397 Ill 293, 74 NE2d 503.

In People ex rel. Zaransky v. Chicago (supra) the city refused to issue a license on the sole ground that Zaransky had been convicted of a crime, when in fact his conviction had been reversed and a retrial had resulted in acquittal. That case is clearly distinguishable on its facts, for the reason that there remained no determination required to be made by the defendant City prior to issuance of a license. Here, although the classification is declared invalid and inapplicable to plaintiff, there remain for administrative action the investigations and determinations provided for in the ordinance.

We now consider the propriety of the issuance of the temporary injunction. Whether a petition for a temporary injunction should be granted or denied rests largely in the discretion of the trial court, O’Brien v. Matual, 14 Ill App2d 173, 144 NE2d 446. On appeal the sole question presented is whether the trial court abused its discretion in granting the temporary injunctive relief, and unless there has been such abuse of discretion, the order of the trial court will not be disturbed. H. K. H. Development Corp. v. Metropolitan Sanitary Dist. of Greater Chicago, 47 Ill App2d 46, 196 NE2d 494. We are unable to say that the trial court abused its discretion.

For the reasons stated, insofar as it holds the following provision of chapter 28.1-3 of the Municipal Code of Chicago, to wit:

“No such license shall be issued to any person at any time after conviction of a crime involving the use of a deadly weapon, traffic in narcotic drugs, the infamous crime against nature, incest or rape.”

invalid and inapplicable to plaintiff, the declaratory judgment is affirmed. The judgment ordering the writ of mandamus to issue is reversed, and the cause is remanded to the Circuit Court of Cook County with directions to enter judgment ordering the issuance of a writ of mandamus ordering the defendant, James Y. Carter, in his capacity as Public Vehicle License Commissioner of the City of Chicago to consider and act upon plaintiff’s application for an Ambulance Attendant-Driver’s License. The order allowing plaintiff’s petition for temporary injunction is affirmed.

Judgment affirmed in part, reversed in part and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Irene Sutton, a Minor, by Jean Sutton, Her Guardian and Next Friend, Plaintiff-Appellee, v. The Peoples Gas Light & Coke Company, a Corporation, and Phillip Corbett, Defendants-Appellants.
    Gen. No. 53,428.
    First District.
    January 23, 1970.

      Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (George J. O’Grady, Robert W. Bartlett, and R. Marlin Smith, of counsel), for appellants.
    Cooney & Stenn, of Chicago (John Navigate and William J. Harte, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

The first trial of this case resulted in a mistrial and unfortunately the second trial must share the same fate. The trial court entered a judgment on a verdict of the jury in favor of the plaintiff for $20,000. The occurrence events are in basic dispute and in our consideration of the case the facts become immaterial. Generally speaking, the plaintiff was a seven-year-old girl who ran out into the street and whose right foot was run over by the defendant truck driver. On the record as it now stands the weight of the evidence and the credibility of the witnesses in this case are solely for the jury. The principal error requiring a new trial centers around the special interrogatories submitted to the jury.

The first interrogatory was “Was the defendant, Phillip Corbett guilty of negligence that proximately contributed to cause the occurrence in question?” Interrogatory No. 2 reads “Do you find from the evidence that at, and immediately prior to the occurrence in question, the plaintiff was guilty of any contributory negligence which was proximate cause of her injury?” The jury returned a general verdict for $20,000, answered interrogatory No. 1 “Yes” and interrogatory No. 2 “No.” The answers to the interrogatories were thus consistent with the general verdict.

Plaintiff’s counsel in closing argument stated:

“Folks, the Court may give you some special interrogatories and I would like to make mention of one of those. One of those questions asks you ‘Was the plaintiff in this case guilty of contributory negligence?’ Well, I might say this to you folks, if you answer that question ‘yes’ then no matter what the verdict is that you want to give or will give on the large form of verdict you will be asked to sign, if you answer that question ‘yes’ that she was, no matter what else you say this little girl will get nothing.
“Mr. O’Grady: I object to that argument, if the Court please, it is entirely improper.
“The Court: He has a right to indicate that, sir.
“You may proceed.
“Mr. Navigato: Thank you, your Honor. No matter what else you say, if you mark that ‘yes’ she gets nothing. No matter what you want to say or what you will say, please keep that in mind.”

In submitting these interrogatories, the court stated orally the following:

“These special interrogatories referred to by counsel are to be consistent with your verdict. Whatever your verdict is these must be consistent with it.

Defense counsel objected to this statement on the grounds that (1) it was error to orally instruct the jury and (2) to tell the jury that “their answers to the special interrogatories must be consistent.” In response to this, the court stated:

“Let the objection be noted, and the Court will overrule it. I think it is about time somebody said something about that. We throw these matters at a Jury, and they’re not lawyers, somebody has got to tell them. Maybe you’re right, but they’ve got to be told.”

The plaintiff tacitly concedes that the procedure just outlined is contrary to established law by seeking to bypass the cases on the theory that her statement in rebuttal was induced by defense counsel’s emphasis on the special interrogatories in his closing argument. We have read the closing argument of defense counsel as abstracted and note that he discussed the occurrence events and the occurrence facts concerning interrogatory No. 1. “I submit . . . that your answer has to be ‘No,’ it can’t be anything else.” He likewise repeated the second interrogatory and then discussed the evidence of negligence in detail. This was proper. His discussion of the evidentiary facts would have been perfectly proper with or without interrogatories. In discussing the interrogatories, defense counsel properly argued the evidence as it related to plaintiff’s contributory negligence and the evidence as it related to the defendant’s negligence. Such arguments cannot be said to have induced either the remarks of the plaintiff’s attorney or the remarks of the trial judge nor were they calculated to do so. Such remarks have been repeatedly characterized as reversible error requiring a new trial. Sommese v. Maling Bros., Inc., 36 Ill2d 263, 222 NE2d 468; Swanson v. Chester Johnson Elec. Co., 5 Ill App2d 175, 125 NE2d 304; Mathes v. Basso, 104 Ill App2d 237, 244 NE2d 362. In Sommese, the plaintiff without objection stated that the jury should harmonize its answer to the interrogatory with the verdict so as not to deprive this woman of any right to recovery. Notwithstanding no objection was made, the Supreme Court held that the error was so seriously prejudicial as to prevent the defendant from receiving a fair trial. In Swanson, the trial court stated orally to the jury that the verdict you reach should be compatible with the interrogatories. This statement was held to be prejudicial error. The case at bar suffers from both disabilities and the authorities cited mandate a new trial.

In view of our holding, it is not necessary to discuss at length other errors which are assigned. One deals with some hanky-panky about a couple of witnesses that the plaintiff did not call, but who had testified on the previous trial and who had been in the courtroom during the early part of this trial, but were not available after the plaintiff failed to call them. Defendant’s assumption that they would be available if and when he wanted them to testify leaves to others the control of his evidence. It is true that he did make ten or eleven efforts to subpoena the witnesses after the plaintiff did not call them, but without avail. No motion for continuance was made nor is their absence chargeable to the plaintiff. He now asserts their testimony would have mandated a directed verdict in his favor. Perhaps this situation will not occur on the next trial.

In addition, there were other children present in the area and argument was made that the reason they weren’t called was that they would be adverse to the plaintiff. Plaintiff then suggested that he had given the list of names to the defendant and the defendant could have called them. Both attorneys departed from the record and neither can complain of the action of the other in this respect.

For the reasons assigned, this cause is reversed and remanded to the trial court for further proceedings in conformity with this opinion.

Reversed and remanded.

CRAVEN, P. J. and TRAPP, 3"., concur.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    In re Estate of Corene Cowdery Davison, Deceased. Gertrude O’Meara Sponsel, Petitioner-Appellant, v. Louise Cowdery Willard, et al., Respondents-Appellees.
    Gen. No. 53,502.
    First District.
    January 23, 1970.
    Vincent D. McConnell, of Chicago, for appellant.
    Defrees, Fiske, Voland, Alberts & Hoffman, of Chicago (William P. Steinbrecher and Edward J. Griffin, of counsel), for appellees.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Direct appeal was taken to the Supreme Court from the judgment of the Circuit Court of Cook County, Probate Division, denying probate of a will dated March 25, 1940, and codicil thereto dated October 8, 1940, executed by Corene Cowdery Davison, and of a second will executed by her on December 3,1964.

Decedent, Corene Cowdery Davison, executed a will on March 25,1940, and a codicil thereto on October 8, 1940. On December 3, 1964, she executed a second will which specifically revoked all prior wills and codicils. On December 18, 1964, she revoked the second will by obliterating it in the presence of her attorneys in New York City. She died more than two years later (March 3, 1967) without executing any further wills.

Gertrude O’Meara Sponsel, named as executrix in the 1940 will, petitioned for admission to probate of that will and its codicil and for the issuance of letters testamentary. Application was made to take the deposition of attesting witnesses to its codicil.

Louise Willard Kearns, a niece of decedent and one of her heirs at law, filed a petition for an order denying the application for the commission, denying the probate of the 1940 will and codicil, and for a finding that decedent died intestate. This latter petition also prayed that hearing be had for proof of the 1964 will and of its revocation.

In the trial court, Gertrude O’Meara Sponsel contended that the 1964 will was the result of fraud, undue influence and testamentary incapacity, was void ab initia, and could not revoke the 1940 will and codicil. At the hearing on the petitions, two of the attesting witnesses to the 1964 will testified as to its execution. They were cross-examined in an effort to show that the 1964 will was procured by undue influence of testatrix’ maid, Ella Meade.

The testimony showed that the testatrix, a childless divorcee and lifelong resident of Chicago, went to New York City during the middle 1940’s for medical attention and remained there a number of years to undergo treatxnent for a chronic tubercular condition complicated by an acute infection. While receiving treatment for these ailments Miss Cowdery, then in her seventies, developed carcinoma and underwent surgery twice — in 1960 and in October, 1964. She lived in an apartment suite at the Plaza Hotel and was cared for by Ella Meade.

After her return (in November of 1964) from the hospital to her apartment following her second operation for cancer, she executed the will of December 3, 1964, by which she left the bulk of her estate in six equal shares to named persons, one of whom was Ella Meade.

Thereafter, on December 18, 1964 (fifteen days later), when one of Miss Cowdery’s New York attorneys, who had drawn her 1964 will, went to her apartment, she inquired as to how to revoke the will. After being informed as to the method to revoke it, she marked across it, wrote “Cancelled” at the top of each page and signed her name underneath. Two people then signed as witnesses to the revocation. Miss Cowdery did not make any later will.

At the hearing on the petitions, attorneys for appellant represented that they intended to show the 1964 will was procured by undue influence of Ella Meade. The heirs filed a petition requesting a determination as to whether such evidence should be permitted at the probate hearing on . the 1964 will. At the outset of the hearing the trial judge indicated he would reserve his ruling on this point until the conclusion of the evidence in support of the 1964 will. In the course of the hearing appellant’s attorneys stated their intention to take depositions in New York to establish if there was evidence of undue influence or lack of testamentary capacity in connection with the 1964 will. At the conclusion of the heirs’ proof, the court continued the hearing for two months for the specific purpose of enabling the obtaining and presenting of evidence, if any existed, of fraud, undue influence or lack of testamentary capacity.

While certain depositions of various witnesses were taken in New York City, appellant’s attorney did not appear for those depositions. However, at the time the continued hearing was set, appellant requested an additional two months’ continuance. This was granted. At the date of the second continued hearing, appellant’s attorney advised the court that he could not produce any testimony and requested another continuance to file a pleading or memorandum to present the legal questions. That continuance was granted.

At the hearing thereafter held, appellant presented an abstract of certain parts of the testimony in a suit against Charles Rivers Aiken, then pending before a master in chancery in the Circuit Court of Cook County. That suit had been filed by decedent for an accounting of some $191,000 of assets which Aiken had taken possession of through a power of attorney from decedent. Aiken had counterclaimed for attorney fees. Aiken’s attorney (who also was appellant’s) asked the court to take judicial notice of the testimony in the Aiken case and accept the abstract and photostats of exhibits as evidence in this case. That offer was denied.

No other evidence was tendered. The court then entered its order finding that the 1964 will had been validly executed, thereby revoking the 1940 will and codicil, and that the 1964 will had thereafter been revoked. Both wills and the codicil were denied probate.

The Supreme Court transferred the case to this court. The issue raised involves section 46 of the Illinois Probate Act (Ill Rev Stats 1965, c 3, par 46) which provides:

“Revocation — Revival.) A will may be revoked only ...(b) by the execution of a later will declaring the revocation, ....
"A will which is totally revoked in any manner shall not be revived other than by its re-execution, or by an instrument in writing declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will. . . .”

Appellant contends that the trial court erroneously applied section 46 in refusing to permit her to introduce evidence of undue influence in the execution of the 1964 will so that it was not a properly executed will and thus was ineffective to revoke the 1940 will and codicil. Also, appellant contends that to apply section 46 of the Probate Act as its language was in 1965 to an earlier will executed in 1940 is a retroactive application of a statute, which would impair the contract rights of Aiken who received a $5,000 specific legacy in the 1940 will claimed to have been pursuant to a contract with decedent for fees.

As to the latter contention, this appears to be but an afterthought since it was never raised or considered in the trial court, nor was any proof offered of the alleged contract. The law is well-settled that a point not raised and passed on by the trial court cannot be raised for the first time on appeal. Holmes v. First Union Trust & Savings Bank, 362 Ill 44, 198 NE 671 (1935); Russo v. Kellogg, 37 Ill App2d 336, 185 NE2d 377 (1st Hist 1962). Further, we find no merit in the point, as decedent did not attempt to revive the 1940 will in the manner which the law has required since 1957. Actually, the revival provisions of 1965 under consideration were enacted substantially in 1957.

On the first contention of appellant, we cannot agree that the trial court barred all testimony of undue influence. The fact is that appellant introduced no competent evidence of undue influence. The abstract of another and different suit between different parties was not competent. The court properly refused to admit this abstract into evidence. The pleadings in that case were not presented so that identity of issues also could not be examined. No error is raised on appeal on that ruling. Hence, the trial court properly held that the 1964 will revoked the 1940 will and codicil, and in turn the 1964 will was revoked in accordance with the statute.

The courts of this State have long held that during the proof of offer of a will for probate the only affirmative evidence that opponents to the probate may offer is that which shows fraud, forgery, compulsion or other improper conduct. Section 69 of the Illinois Probate Act (Ill Rev Stats 1965, c 3, par 69) provides:

“If the proponent establishes the will by sufficient competent evidence it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.”

Evidence of undue influence is not properly admitted on the hearing for probate. Schaefer v. Schaefer, 215 Ill App 208 (1919); Shepherd v. Yokum, 323 Ill 328, 154 NE 156 (1926); In re Guinane’s Estate, 65 Ill App2d 193, 213 NE2d 30 (1st Dist 1965); Berndtson v. Heuberger, 21 Ill2d 557, 173 NE2d 460 (1961); Ruffing v. Glissendorf, 41 Ill2d 412, 243 NE2d 236 (1968).

The judgment orders were correct.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.