author: Mr. Justice Daily

text:
    (No. 33767.
    The People ex rel. Carl H. Kramer, County Collector, Appellant, vs. Chicago, Burlington and Quincy Railroad Company, Appellee.

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

      Calhoun W. J. Phelps, State’s Attorney, of Princeton, (Donald E. Blodgett, and Gregg A. Young, of counsel,) for appellant.
    Trimble and Trimble, of Princeton, Walter McFarland, and J. I. Shields, both of Chicago, for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

Appellant, the county collector of Bureau County, appeals from an order of the county court sustaining certain of the objections filed by Chicago, Burlington and Quincy Railroad Company, the appellee, to taxes levied against its property in said county for the year 1952.

The first objection of appellee was that the levy for the county general fund was excessive by $92,747.36 and it sought a refund of the amount of tax it was caused to pay by the resulting excessive rate. Pertinent facts, all of which were stipulated, show that the board of supervisors, on September 9, 1952, adopted their annual budget and appropriation resolution for the fiscal year commencing December 1, 1952. The budget fixed the estimated receipts for the year at $364,339.69, which figure contained an estimated revenue of $132,250 exclusive of taxes, and an estimate of $112,089.69 as being the cash balance on hand on December 1, 1952. The record discloses that the sum of $247,330 was appropriated for general county purposes. On the same day, the board adopted its annual tax levy resolution by which it levied a tax for general county purposes in the total sum of $151,275.

Subsequently, on November 25, 1952, the board amended the budget and appropriation, first, by lowering the estimated cash balance on hand to $54,183.03; second, by lowering the estimate of total receipts to $306,443.03; and, third, by increasing the amount of appropriations to $249,196.40. The levy resolution was not altered and thereafter taxes were extended at a rate which would produce $118,103.81. When the latter amount is totalled with the amount of nontax revenue estimated to be received it produces a sum approximating the amount appropriated for the year.

It appears from the stipulated facts, however, that the actual cash balance on hand in the general county fund on December 1, 1952, was $147,263.55. Appellee admits that the 1952 levy did not have the effect of materially increasing the cash balance which had been accumulated by the county but contends that the board knew, or should have known, what the true cash balance would be and reduced their levy proportionately instead of seeking to preserve the accumulation. At the same time appellee recognizes the propriety of permitting the county to maintain sufficient funds to operate on a cash basis at all times, but contends that the cash balance preserved by the 1952 levy is far in excess of the amount reasonably necessary for such a purpose. Accordingly, by its objection, appellee alleged in effect that all except approximately $50,000 of the cash on hand should have been deducted in determining the tax needs of the county and that the action of the board in failing to do so was unreasonable and an abuse of discretion. The county court, however, held in effect that a cash balance of $101,000 was not unreasonable and sustained the objection only insofar as it related to the remainder of the $147,263.55 cash balance. Appellee does not contest this result but it is appellant’s contention that the court erred in sustaining the objection even to the extent it did.

This court has frequently observed that taxes are levied because they are necessary to defray the expenses of government and not for the purpose of enriching the public treasury. To such end it is held that taxing bodies may not levy taxes faster than they are likely to be needed and that an unnecessary accumulation of money in the public treasury is unjust, impolitic and against the policy of the law. (People ex rel. Stevenson v. Atchison, Topeka and Santa Fe Railway Co. 261 Ill. 33; People ex rel. Harding v. Chicago and Northwestern Railway Co. 331 Ill. 544; People ex rel. Manifold v. Wabash Railway Co. 386 Ill. 149.) At the same time it has been recognized that a reasonable construction of our revenue laws does not require the authorities to wait until money is actually needed to defray outstanding obligations before levying a tax, but permits them to maintain sufficient monies in their treasury to pay indebtedness as it becomes due. (People ex rel. Brenza v. Gebbie, 5 Ill. 2d 565; People ex rel. DeRosa v. Chicago and North Western Railway Co. 391 Ill. 347; People ex rel. Salm v. Crear, 300 Ill. 611.) Thus taxing authorities must anticipate as nearly as they can the amount of money necessary for operating their political subdivision and arrange to have funds ready to meet obligations when due. We have consistently held that the amount necessary for such purpose is ordinarily committed to their reasonable discretion and that courts will not interfere with the exercise of sound business judgment except for a clear abuse of discretion. (People ex rel. Brenza v. Chromium Corp. 3 Ill. 2d 271; People ex rel. Schlaeger v. Siebel, 388 Ill. 98.) The presumption is that the authorities, in levying taxes, properly discharged their duties, and the burden is on the objector to clearly show that they did not. People ex rel. Stevenson v. Atchison, Topeka and Santa Fe Railway Co. 261 Ill. 33; People ex rel. Batman v. Illinois Cen tral Railroad Co. 366 Ill. 408; People ex rel. Manifold v. Wabash Railway Co. 386 Ill. 149.

In the present case appellee has made no clear showing of an abuse of discretion. Insofar as the record shows it relies solely upon the implications which arise from the fact that the county levied a tax of $151,275 while it had approximately $147,000 in its treasury. There is, however, no showing by clear and explicit evidence either that all of such balance could be used for expenses of the county, (cf. People ex rel. Stevenson v. Atchison, Topeka and Santa Fe Railway Co. 261 Ill. 33,) or that such amount was more than would be necessary to permit the county to operate on a cash basis while the 1952 taxes were in the process of collection. (Cf. People ex rel. Bergan v. New York Central Railroad Co. 392 Ill. 525.) Appellee states that the county court decided as a question of fact that a cash balance of $101,000 was not unreasonable, yet the record does not disclose what those facts were. Manifestly, therefore, there is no clear showing that the county board committed an abuse of discretion in making the levy it did and we must hold, on the record presented, that the county court erred in substituting its discretion for that of the taxing body.

Appellee also objected to certain items contained in the levy for general county purposes the first of which were: $1000 for the acquisition of motor vehicles, $1500 for the maintenance and operation of such vehicles, and $500 for repairs and parts. The county court overruled the objection to the levy for acquisition but sustained the objection to the items for maintenance, operation, repair and parts. The objection states that each of the items were levied for the sheriff’s office and were, therefore, in violation of section 10 of article X of the constitution which provides: “The county board, except as provided in Section 9 of this article, shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses * * * and in all cases where fees are provided for, said compensation shall be paid only out of, and shall in no instance exceed, the fees actually collected.” It is argued that under this section the items for the maintenance, operation, repair and parts of the sheriff’s vehicles are expenses of the office payable only out of fees collected and hence that the county could not appropriate money or levy taxes for the payment of the same. Appellant, who states in argument that the levies relate to three county vehicles only one of which is assigned to the sheriff, asserts that they are not chargeable to the sheriff as part of his compensation and that there is statutory authority for the levy of each item.

By the first proviso of section 24 of the Counties Act, (Ill. Rev. Stat. 1951, chap. 34, par. 24,) counties are invested with the express authority “To purchase and hold the real and personal estate necessary for the uses of the county.” By the third proviso of the same section they are empowered “To make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers.” Having thus provided for the acquisition of property, the legislature, by section 25.01 of the Counties Act, has ordained that the county board shall have the power “To take and have the care and custody of all the real and personal estate owned by the county.” When these express authorizations are considered, we are of the opinion that little doubt can arise but that a county may, at its own expense, acquire vehicles for use by its sheriff if the county board, in the exercise of its discretion, reasonably believes they are necessary for the proper discharge of the corporate duties delegated to the sheriff’s office. The same would be true of the purchase of radio, radar and other scientific devices which become necessary for the efficient and proper discharge of the sheriff’s duties. Having been charged with the care and custody of property so purchased it would follow in sequence that the county board is also charged with the duty of keeping such equipment in repair so that it could be used for the county purposes for which it was purchased. While the custody of the vehicle in the instant case is given to the sheriff, his authority to use and retain it is subject to the control of the county board whom the statute charges with its care. When the express powers and duties prescribed by statute are considered, we are of the opinion that it cannot be seriously contended that the cost of repairing and replacing parts of a county-owned vehicle is not a proper corporate expense for which the county may levy and collect taxes.

Insofar as the item levied for the expense of maintaining and operating the sheriff’s vehicle is concerned, the case of People ex rel. Goodman v. Wabash Railroad Co. 395 Ill. 520, is decisive on the objection now made. There the objection was to an item for “sheriff, car expense for patrolling roads.” We held (p. 533) that since a sheriff is, by statute (Ill. Rev. Stat. 1951, chap. 53, par. 37,) entitled to fees for patrolling public highways and conveying prisoners, such fees may be paid out of the public treasury without violating section 10 of article X of the constitution. The rationale of the decision was that even though such fees are earnings of the office, and accountable as such, they are nevertheless fees which the county is liable to pay and it is stated that it makes no difference whether the money is paid as fees for services rendered or as expenses of the sheriff’s office. In the absence of any showing in the present case that the levy for the expense of operating and maintaining the sheriff’s vehicle was for purposes other than those for which the county is obligated by statute to pay, we conclude that it was properly levied for lawful purposes.

The next item of the county levy objected to by appellee and sustained by the county court was the levy of $1000 for the payment of premiums on the surety bonds of county officials. Without citation of specific authority appellee again reasons that such item is an expense of the office contemplated by the constitutional provision rather than a corporate expense of the county. We find, however, that the question is conclusively answered by the statute relating to the cost of official bonds, (Ill. Rev. Stat. 1951, chap. 103, par. 16,) which expressly directs that the cost of any official bond furnished by county officers in compliance with any law, rule or regulation, shall be paid out of the funds of the county. Inasmuch therefore as the levy was for the purpose of creating a fund to pay a liability imposed upon the county by statute, it was proper and the objection should have been overruled.

The concluding item of the county levy to which appellee objected was that of $2500 for the purchase of right of way for State aid roads, an item which this court found to be a proper county purpose in McKean v. County of Carroll, 324 Ill. 243. It is conceded that authority for the levy is conferred upon the county by sections 25.05, 25.10 and 56 of the Counties Act. (Ill. Rev. Stat. 1951, chap. 34, pars. 25.05, 25.10 and 57.) The first section referred to authorizes the county to levy and collect taxes annually for county purposes, the second confers power “To widen or otherwise improve any county or state highway within the county, in the discretion of the county board, including state roads taken over and maintained by the State, * * *” while the third provides that the county board “shall have power to appropriate funds to aid in the construction of roads and bridges in any part of the county, whenever a majority of the whole board of the county may deem it proper and expedient, * * From the stipulated facts, however, it appears that the board also levied the county highway tax authorized by the State Highways Act, (Ill. Rev. Stat. 1951, chap. 121, par. 304,) and it is the contention of appellee that both taxes cannot be levied. In other words it is appellee’s argument that if the county highway tax authorized by the State Highways Act is levied, the general powers bestowed by the Counties Act relative to levying taxes for the improvement and construction of roads are abrogated.

On several occasions, shortly after the enactment of the Roads and Bridges Act of 1913 (Laws of 1913, pp. 520-581,) had posed similar taxing problems, this court held that the passage of the act did not repeal, limit or modify the taxing powers with respect to roads and bridges conferred by the Counties Act, that the county board continued to have discretionary power to aid in their construction apart from the provisions of the Roads and Bridges Act, and that the provisions of the latter did not exclude the exercise of the general authority to raise taxes for road and bridge purposes (People ex rel. Krebs v. Jacksonville and St. Louis Railway Co. 265 Ill. 550; People ex rel. Thomas v. Wabash Railroad Co. 265 Ill. 530; People ex rel. Hewitt v. Kankakee and Seneca Railroad Co. 265 Ill. 497; Goodwine v. County of Vermilion, 271 Ill. 126.) Nothing contained in the present chapter on Roads and Bridges, and particularly in paragraph 304 thereof, commands a different result, and since the authority conferred in each act exists independent of the other, there can be no merit in the contention that the exercise of the authority conferred by the State Highways Act abrogated the powers expressly given by the Counties Act. The same items may not, of course, be levied for in both the highway and county funds but such does not appear to have been done in this case. Appellee draws an inference from People ex rel. McWard v. Wabash Railroad Co. 395 Ill. 243, at 251, that funds to be expended in connection with State-aid roads may never be included in the county levy for general corporate purposes. However, in view of the language of section 25.10 of the Counties Act which gives the county power to widen and improve any county or State highway, including State roads taken over and maintained by the State, it would appear that the distinction between State-aid and other roads contended for, does not exist. We conclude that the item was properly included in the levy for the county general fund.

The next objection of appellee embraced a claim that the tax levied for the tuberculosis sanitarium fund was excessive by $3594.07. Facts pertinent to the objection disclose that on September 12, 1944, the county board, acting in accordance with section 27 of the Counties Act, (Ill. Rev. Stat. 1943, chap. 34, par. 27,) adopted a resolution proclaiming the need of additional taxes for the purpose of providing care and treatment of persons afflicted with tuberculosis, and calling for a referendum vote upon the question of whether a levy of not exceeding 1 mills on the dollar, and in excess of the statutory limit of 25 cents on each $100 valuation, could be made for a period of ten years, beginning in 1944. In apparent compliance with the direction of section 27 that the board’s order “set forth substantially the amount of such excess required,” the resolution contained the provision “that the amount of such excess tax required in each year of the next ten (10) successive years, beginning with 1944, is not less than Thirty-six Thousand ($36,000) Dollars, nor more than Forty-four Thousand ($44,000) Dollars.” Thereafter the people of the county voted on the proposition and authorized the additional tax for a period of ten years at a rate not to exceed 1 mills on the dollar of assessed valuation.

For the year 1952 there was an appropriation of $55,700 for tuberculosis fund purposes and a levy of $50,400. The tax was extended at a rate which would produce the sum of $47,594.07. Although the rate extended did not exceed the additional rate authorized by the voters, the amount produced was in excess of the $44,000 maximum fixed by the resolution of the board; hence appellee’s claim that the tax was excessive by $3,594.07. It is appellant’s contention that since the notice of election and the ballot made no mention of the $44,000 limitation, and because the rate extended was within the additional rate stated on the ballot and authorized by the voters, the tax was valid in its entirety. The issue then is whether the maximum set by the resolution of the board operates to limit the amount of additional tax that may be raised.

When treating upon section 27 of the Counties Act and its predecessors, whereby counties have been permitted to raise taxes in excess of statutory and constitutional limits, this court has held that its provisions are to be strictly construed when examined from the standpoint of the county’s power, and construed liberally when considered with reference to the protection of the taxpayer. (People ex rel. Hargrave v. Baltimore and Ohio Railroad Co. 394 Ill. 471; Peoria and Pekin Union Railway Co. v. People ex rel. Knupp, 198 Ill. 318.) The section provides that before the proposition for an additional tax can lawfully be submitted to the voters, the county board shall enter an order of record which shall set forth substantially the amount of excess required, the purpose for which it will be needed, and the number of years it will be required. Such order or resolution, it is held in the Peoria and Pekin Union case (p. 326), is the very basis of the grant of power to exact taxes in excess of legal limitations, and must itself be strictly construed.

Because the resolution in the present case did not in specific terms qualify the maximum amount set forth as being “substantially” the amount of excess to be required in each year, appellee contends that it is to be construed as fixing an absolute and self-imposed limitation of $44,000. Upon the same basis it is urged that the language employed led the voters to believe the maximum amount to be expended in each year for tuberculosis treatment would be no more than $44,000. As presented, appellee’s argument ignores both the existence and effect of the minimum amount of $36,000 which was also contained in the resolution. Certainly there could be no serious contention either that the latter amount in the resolution fixes an absolute minimum that must be raised in each year or that the board so intended. Considering the entire resolution it is apparent that the board was not striving for exact precision when it employed minimum and maximum figures but was attempting to do only what section 27 requires, namely, to estimate as nearly as possible the amount of excess required in each year. We think this was likewise apparent to the voters, particularly when it is considered they were informed the excess tax was for the purpose of meeting expenses yet to be determined, rather than a fixed indebtedness. (Cf. Peoria and Pekin Union Railway v. People ex rel. Knupp, 198 Ill. 318.) Under all the circumstances, it is apparent the amounts employed in the resolution could only be estimates and could only be understood as such. To say that the estimates became fixed limitations because they were not qualified with the word “substantially” is to enlarge upon the terms of section 27 which, as pointed out in Central Illinois Public Service Co. v. Thompson, 1 Ill.2d 468, is so phrased as to demonstrate the legislative awareness that the amount of excess to be needed for future years cannot be stated with precision where a fixed indebtedness is not involved. We conclude that the resolution of the board was nothing more than the estimate section 27 requires and that it does not have the effect of fixing an absolute maximum. Whether the amount estimated was substantially the amount of excess to be needed in each year must, of course, be determined from the facts of each case. Here, no contention is made that the amount of tax over the estimate is immoderate or unreasonable but we note in passing that it is substantially less than the excess approved by this court in the Central Illinois Public Service case. It was error for the court to sustain this objection on the grounds advanced.

Pursuant to authority conferred in the State Highways Act, (Ill. Rev. Stat. 1951, chap. 121, par. 304,) the county board also levied a tax of $51,500 for “County Highway Fund — Acquisition and Maintenance of Machinery and Equipment.” The section cited fixed the maximum rate extendable for such purposes at .0375 per cent in counties having less than 500,000 population and further provided that such limitation on rate was “subject to the provisions of the General Revenue Law of Illinois.” In the instant case the county clerk extended the tax at a rate of .031 which appellee claims should have been reduced by .010 by application of the Revenue Act. The specific issue thus made is whether the rate in question was subject to being scaled down in accordance with the provisions of section 162a of the Revenue Act. (Ill. Rev. Stat. 1951, chap. 120, par. 643a.) When the language of the applicable statutes is read it is clear that the rate was properly not debased. Section 162a, as it existed in 1952, expressly stated that the restriction on maximum rates provided for therein should be applicable “unless modified by the provisions of Section 162b of this Act.” Subparagraph (2) of section 162b (Ill. Rev. Stat. 1951, chap. 120, par. Ó43b(2),) in turn provided that the corporate authorities of every taxing district subject to the section “shall, not later than December 31, 1951, establish by ordinance or resolution the maximum permissible tax rate limitation that may be extended thereafter for each of its funds * * *.” Under the terms of subparagraph (3) of the section if the resolution “establishes a maximum tax rate limit for a fund which is not greater than the tax rate limit in effect for said fund as of the date of adoption of the ordinance or resolution,” such rate shall, without more, go into effect immediately. Thereafter subparagraph (10) provides: “Any tax rate limit for any fund established as provided in this Section 162b shall supercede any other tax rate limit for such fund established by any other applicable statute including Sec. 162a * * * of this Act, * * *.”

The facts here show that the county board, on Novemher 30, 1951, adopted a resolution establishing a permanent rate limit of .0375 per cent for the machinery and equipment segment of the county highway tax. The rate adopted was no greater than the tax-rate limit for such purposes fixed by the State Highways Act and thus, under section 162b (3), became immediately effective without the necessity of a referendum. By the terms of section 162b (10) it superseded the rate which would have otherwise been established under the debasement provisions of section 162a. Appellee’s argument to the contrary assumes that “the tax rate limit in effect” mentioned in subsection (3) refers to the tax rate as scaled under the formulas of section 162a. Such a position is untenable in view of the fact that section 162b modifies section 162a, and that the stated purpose of section 162b is “to provide the procedure for an orderly change from maximum tax rate limits imposed by the General Assembly to maximum tax rate limits established locally on the basis of local needs.” If the rate as debased was held to be the tax limit contemplated by subsection (3), there could be no change from the limit imposed by section 162a and subsection (3) would be rendered meaningless. We conclude that the rate of .031 was proper in this case and that the court erred in sustaining the objection made.

Appellee’s final objection raises a question of the validity of a referendum whereby the qualified voters of School District No. 152, in Bureau County, authorized a tax-rate limit in excess of that fixed by the debasement provisions of section 162a of the Revenue Act. Statutory background shows that, in 1947, section 17 — 2 of the School Code, (Ill. Rev. Stat. 1947, chap. 122, par. 17 — 2,) authorized school districts of less than 500,000 inhabitants to levy a tax of not to exceed .50 per cent for educational purposes, but expressly stated that the limitation was subject to the provisions of section 162a of the Revenue Act. Section 17 — 3 of the code, also expressly made subject to the provisions of the “General Revenue Law,” provided that if such a school district desired in any one year to levy more than the rate authorized by section 17 — 2 it could cause the proposition to be submitted to the voters and, in the event a majority of the votes being favorable, could levy annually the tax authorized until such time as the authority was revoked in like manner. An interrelated provision of the Revenue Act, found in subsection (3) of section 162a, was that the ballot to be used in a referendum such as contemplated by section 17 — 3, would be substantially in a form which would cause the voters to vote “Yes” or “No” on the following proposition: “Shall the maximum tax rate for the...... fund of......be established at......per cent on full, fair cash valued instead of......per cent, the maximum rate otherwise applicable to the next taxes to be extended?”

It is stipulated here that prior to September 15, 1947, the maximum tax rate for the educational fund of School District No. 152, under the debasing formula of section 162a, was .275 per cent. On the day named, however, at an election held pursuant to the statutes last discussed, the voters of the district voted favorably on a proposition to increase the rate which was stated on the ballot as follows: “Shall the maximum tax rate for the educational fund of School District No. 152 be established at .51 per cent on full, fair cash value instead of .50 per cent, the maximum rate otherwise applicable to the next taxes to be extended ?” It does not appear that the authority so conferred had been revoked when the tax here under consideration was levied.

The 1952 tax for the district’s educational fund was levied at .344 per cent. This is in excess of the rate authorized under the debasement provisions of section 162a applied to the .50 per cent maximum set forth in section 17-2 of the School Code, but less than the .51 per cent rate set forth in the referendum, which rate is specifically excluded from the debasement provisions of section 162a. (Ill. Rev. Stat. 1945, chap. 120, par. 643a.) In this regard it is to be noted that section 17 — 2 of the School Code, as it existed in 1952, still provided that the maximum rate for educational fund purposes was .50 per cent and that such rate was subject to the provisions of the “General Revenue Law.” (Ill. Rev. Stat. 1951, chap. 122, par. 17 — 2.) Appellee’s objection to the tax was that the rate was excessive by .069 per cent, the basis for such claim being that the referendum of 1947 was ineffective and void thus causing .275 per cent to be the highest rate that could be levied in 1952, i.e., the normal rate of .50 per cent as reduced by the formula provisions of section 162a. Appellant contends, of course, that the 1947 election validly removed the questioned rate from the restrictions of section 162a and, in light of the .51 per cent rate authorized, insists that the rate levied was proper.

In claiming the 1947 referendum to be ineffective and void, it is appellee’s contention that the proposition voted upon was improperly stated and had the effect of deceiving the voters as to the size of the tax increase being authorized. Appellee reasons that inasmuch as the .50 per cent maximum rate was, prior to the election, subject to the debasement provisions of section 162a, and the .51 per cent rate set forth in the referendum would not be subject to any debasement provision, therefore the reduced rate of .275 per cent was “the maximum rate otherwise applicable to the next taxes to be extended,” and was the rate which should have been stated on the ballot instead of .50 per cent. Appellant’s reply to such argument is that the proposition voted upon properly stated the maximum tax rate permissible for the educational fund under the provisions of section 17 — 2 of the School Code. The issue thus presented is whether the legislature intended the proposition on the ballot to reflect the maximum tax rate limit fixed in statutes subject to the Revenue Act, or the rate limit created by the restrictions imposed by section 162a.

We think the construction urged by appellee is the true one. The express language of section 162a as well as the applicable decisions of this court, leave no doubt that the maximum rate at which the school district could extend the tax for its educational fund was, immediately prior to the 1947 election, the normal rate as reduced by the formula provisions of section 162a. (See: People ex rel. Ross v. Chicago, Burlington and Quincy Railroad Co. 411 Ill. 167, 169; People ex rel. Harding v. Chicago and North Western Railway Co. 413 Ill. 93, 95.) Without the authority conferred by referendum, such reduced rate was, in fact, the maximum rate otherwise applicable to the next taxes to be extended. Further, when it is considered that subsection (3) of section 162a was expressly designed to permit avoidance of the rate restrictions imposed by the section, it follows that the restricted rate, being the maximum rate applicable to the next taxes to be extended, was the one intended by the legislature to be shown on the ballot. That this is so is borne out by the further language of subsection (3) which provides : “No proposition to increase a tax-rate limit above that provided by this Section, shall increase the tax-rate limit to more than the maximum tax-rate limit, * * * afforded by the terms of any other applicable statutory provision * * [Emphasis supplied] Ill. Rev. Stat. 1947, chap. 120, par. 643a(3).

As demonstrated by the facts of this case, it could only be through the use of the reduced rate, the rate which would apply if the referendum failed or was not had, that the voters would be exactly informed of the size of the tax increase they were authorizing. Here the voters were led to believe they were authorizing an increase of 2 per cent when, in reality, they were authorizing an increase of almost 85 per cent over the amount of tax that would be produced by the maximum rate otherwise applicable to the next taxes to be extended.

Appellant contends that a contrary result was reached in People ex rel. Ross v. Chicago, Burlington and Quincy Railroad Co. 411 Ill. 167. The rationale of that decision was that section 162a, as it existed in 1948, did not require a school district, before holding a referendum for a tax rate above the normal .50 per cent rate for educational purposes, to first submit to a referendum the proposition of whether the tax could be extended at the normal rate. We find nothing in the decision on the issue there presented which is to be construed as authority for deviating from the legislative direction as to how the proposition to exceed the normal rate should be presented to the voter. Although it be true no referendum is needed for authority to extend the normal rate authorized, when an attempt to exceed the normal rate is made, the voters should be fairly apprised of the amount of increase they are being asked to authorize. It is our conclusion therefore, that the objection to the school district’s tax was correctly sustained.

For the reasons stated, the order of the county court is affirmed in part and reversed in part, and the cause is remanded to that court with directions to proceed in conformity with the views expressed in this opinion.

Affirmed in part, reversed in part and remanded, with directions.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 33793.
    The People of the State of Illinois, Appellee, vs. R. K. Holmstrom, Appellant.

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

      John Chivari, of Aurora, for appellant.

      John C. FriEdland, State’s Attorney, of Elgin, and Robert W. QualEy, of Geneva, for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

The People, by the State’s Attorney, filed an action in debt in the county court of Kane County against R. K. Holmstrom, defendant, to recover delinquent personal property taxes for the years 1947, 1948, 1950, 1951, 1952 and 1953. After defendant filed a plea of nil debet supported by an affidavit, the court heard evidence in the matter, then, on June 23, 1955, entered judgment for plaintiff as prayed. Since the revenue is involved defendant has appealed directly to this court for review.

The defenses raised by defendant’s plea were: (1) that publication of the assessment lists for each year had not been accomplished within the time provided in section 103 of the Revenue Act of 1939, as amended, and (2) that the requirements of section 170 of the same act, relative to collector’s warrants, were not met. (See: Laws of 1939, pp. 925-926 and 949, respectively.) The question of the merit of such defenses is embodied in the errors assigned in this court, defendant contending that the omissions complained of operated to deny him due process of law as guaranteed by State and Federal constitutions.

During the years in question, section 103 of the Revenue Act, as it applied to Kane County, provided for the publication of personal property assessments on or before July 10 during the years 1947, 1948 and 1950, and on or before August 10 during the years 1951, 1952 and 1953. (See: Ill. Rev. Stat. 1947, chap. 120, par. 584; Ill. Rev. Stat. 1953, chap. 120, par. 584; and par. 584 of intervening statutes.) Publication was made for the years involved in this proceeding as follows:

1947— August 16 1951 — September 21
1948— August 26 1952 — August 30
1950 — August 15 1953 — August 29

Delay in publication, it appears, was occasioned in each instance by the failure of township assessors to make timely delivery of assessment books to the supervisor of assessments as provided in section 94 of the Revenue Act of 1939. See: Laws of 1939, pp. 922-923.

The issue raised by the error assigned here is whether the failure to publish the lists within the time prescribed by statute rendered the assessments void. It is the contention of defendant that the publication requirement of section 103 is a mandatory one for the protection of the taxpayer and, under authority of People v. Jennings, 3 Ill.2d .125, that noncompliance vitiates the tax. We find, however, that a validating act, approved and made effective May 21, 1955, and thus prior to the judgment in this cause, was enacted by the 69th General Assembly to provide that all real and personal property assessments for the year 1954 and for all years prior thereto, as provided in the Revenue Act of 1939, as amended, are validated for all purposes of taxation notwithstanding that the publication of the assessments was not made as provided by statute. (Laws of 1955, p. 175; Ill. Rev. Stat. 1955, chap. 120, par. 823.) Without more the defense relied upon by defendant may be held for naught. He contends, however, that the validating act itself is void and, in support of his position, urges that the General Assembly has power to validate by curative act only in the case of irregular or defective exercise of authority and that it cannot, in such manner, make a void proceeding valid.

While the argument of defendant may approximate a true statement of law, it is inapplicable to the validating act in question. The general rule is that in the absence of a constitutional prohibition the legislature may validate by a curative act any proceeding which it might have authorized in advance. (People ex rel. Price v. Wisconsin Central Railroad Co. 219 Ill. 94.) As applied to tax legislation, the rule has been interpreted to mean that the legislature has the power to pass an act curing a defect in a tax levy when the defect consists of the failure to observe some requirement of the law without which the legislature might have authorized the levy to be made. Thus, in the absence of constitutional requirements to the contrary, it has been held authority existed to cure the defect of failing to publish an appropriation ordinance, (People ex rel. Stuckart v. Sandberg, 282 Ill. 245,) the defect of failing to itemize a tax as required by statute, (People ex rel. County Collector v. Chicago, Burlington and Quincy Railroad Co. 323 Ill. 536; People ex rel. Andrew v. Chicago, Milwaukee and St. Paul Railroad Co. 324 Ill. 43,) and defects which stood in the way of a city council to'act in the capacity of highway commissioner in levying road and bridge taxes. People ex rel. Koehler v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 349 Ill. 476.

Looking to the present case, it is clear there is no constitutional requirement that tax assessment lists be published. Likewise, there seems to be little question that the legislature has the power to require or waive their publication as it sees fit. This was the effect of Grant Land Association v. People ex rel. Hanberg, 213 Ill. 256, where this court applied a statute which provided that the failure to publish tax assessments in any of the modes provided by statute did not constitute a valid objection to the tax. The latter case was cited with approval in People v. Jennings, 3 Ill.2d 125, upon which defendant relies and in which a failure to publish was held to void the tax. The Jennings case, however, may be distinguished both from the present case and the Grant case in that there was neither a validating act nor a statute to provide against the failure to publish the assessments. Under the facts, therefore, the principle of the cases previously discussed is the one to be applied here and we conclude that inasmuch as the legislature had the power to permit the levy of the taxes without requiring the assessments to be published, it was likewise within its power to cure irregularities in publication by the validating act.

Nor does the fact that publication of the assessments is waived constitute a denial of due process of law. Under comparable circumstances arising in Dietman v. Hunter, 5 Ill.2d 486, we stated that the requirements of due process are satisfied by a law which affords an opportunity to be heard with respect to assessments before the board of review. In this case the Revenue Act provided for such hearings as did the rules of the board of review.

The second defense relied upon by defendant relates only to that part of the judgment embracing taxes levied for the years 1947, 1948 and 1950. During the years in question section 170 of the Revenue Act made the following provision: “To each collector’s book a warrant, under the hand and official seal of the county clerk, shall be annexed, commanding the collector to collect from the several persons named in said book the several sums entered in the column of totals opposite their respective names.” (Ill. Rev. Stat. 1947, chap. 120, par. 651.) In 1947, 1948 and 1950, the “collector’s book” for the township in which defendant resided consisted of 27 volumes. A warrant of the county clerk was attached to the first of the volumes for each year, in which defendant’s assessments did not appear, but none was affixed to the remaining volumes. The failure to attach a warrant to the books in which his assessments appeared is urged by the defendant as making the present proceeding to collect null and void.

This is an action in debt instituted in the name of the People by the State’s Attorney. It has long been held that distraint by the collector is not an exclusive remedy, and that a delinquent personal property tax, being a personal liability, may be collected in an action for debt. (Town of Geneva v. Cole, 61 Ill. 397; People ex rel. Carr v. Chicago and Northwestern Railway Co. 322 Ill. 150; People ex rel. McDonough v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co. 354 Ill. 438.) In such an action the return of the collector that the taxes are delinquent is made prima facie evidence that they are due and unpaid, but if for any reason the return should be excluded, the liability of the taxpayer and the right of the taxing authority to recover may be shown by proving a valid assessment, the levy by competent authority, the extension of the taxes by proper officers, and their nonpayment. (Ottawa Gas Light and Coke Co. v. People, 138 Ill. 336, 345.) All of these elements from which defendant’s personal liability stems are admitted or proved in the record before us. Indeed, defendant does not claim the assessments, levies and extensions were invalid, but contends only that the failure to attach a warrant to the books in which his assessments were recorded operates to bar this proceeding to collect them. Such a contention must be held to be without merit in view of the fact that the annexing of a collector’s warrant is a condition precedent neither to the personal liability which has arisen by virtue of assessment, levy, and extension, nor to the right of the People to enforce such liability in an action of debt.

The judgment of the county court of Kane County was correct and is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Klingbiel

text:
    (No. 33796.
    United States Steel Corporation, Plaintiff in Error, vs. The Industrial Commission et al.—(Harry C. Tillman, Defendant in Error.)

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

      Stevenson, Conaghan, Velde & Hackbert, of Chicago, (Harlan L. Hackbert, and Douglas F. Stevenson, of counsel,) for plaintiff in error.
    Abraham W. BrussELL, of Chicago, for defendant in error.
   Mr. Justice Klingbiel

delivered the opinion of the court:

Harry Tillman filed claim under the Workmen’s Compensation Act for an alleged injury suffered in the course of his employment by United States Steel Corporation. An award for permanent total disability was confirmed by the circuit court of Cook County. Upon petition of the employer we granted a writ of error for further review.

Tillman, a laborer about 60 years old, had been employed for 18 years in petitioner’s steel plant. He had been troubled with arthritis for several years. On July 4,

1951, he entered a hospital, where he remained for two weeks of diagnostic treatment under the care of Dr. Stine and Dr. Sherman, the latter a neurologist at the hospital. At the conclusion of a series of tests, including a spinal puncture and bonemarrow studies, the doctors described his condition as “spastic paraplegia — probably due to sub-acute combined degeneration of the spinal cord.”

On his release from the hospital Tillman filed a claim for benefits under a company group nonoccupational accident and health insurance policy. The application, dated August 22, 1951, stated that the disability for which benefits were sought “is in no way connected with or due to my employment.” It contained the following question: “If disability is due to accident, where and how did it occur?” Tillman inserted no answer to the question. A further question appeared as follows: “Have you or do you intend to present a claim for workmen’s compensation arising out of this disability?” Tillman answered “No.” The application, signed by Tillman, was returned to his employer; and the insurance company thereafter paid his hospital bill and the sum of $26 per week for 26 weeks.

When these insurance benefits terminated in February, 1952, Tillman applied for and received, under his employer’s nonoccupational disability plan, a pension on which he was still receiving payments at the time of the hearing in this case. On March 25, 1952, he filed the present claim for workmen’s compensation, on account of the same disability, alleging that on June 27, 1951, he had been injured “while lifting plates of steel.” To reverse the judgment plaintiff in error contends that under the manifest weight of the evidence (1) there was no injury in the course of employment, (2) no notice was given within thirty days, and (3) claim on the employer was not made within six months.

Tillman testified that on June 27, 1951, he was working with a partner chipping steel — that his duties involved turning over the steel plates or “billets,” and that in the process of turning one over, the partner’s wrench slipped off, “and the blade carried me down, and my back popped on me and hurt me, and then I had to go and sit down.” The co-worker referred to was not identified and did not testify. Tillman further testified that he spoke to his foreman about the occurrence, but that he could not remember the foreman’s name. He then stated that although he was present at his job every day thereafter until July 4, he merely sat around and did not do any work; that when he returned to the plant in August he told Walter Hyzy, the general foreman, he was hurt and unable to work; that he asked what Hyzy was able to do; and that Hyzy “said I could get what little insurance I had in there and get that out, compensation, whatever you call it.”

Drs. Weiner and Rubert were called on behalf of defendant in error. Dr. Weiner, who had examined Tillman for about 45 minutes, gave his opinion of Tillman’s condition. He further testified, in answer to a hypothetical question based upon an assumption that no trouble had previously been experienced, that in his opinion an incident such as that related by defendant in error has a causal connection with the subsequent condition. Dr. Rubert, who had also examined Tillman on one office call, confirmed Weiner’s findings, and gave a similar answer to a hypothetical question based upon the same assumptions. He also stated that he testified before the Industrial Commission “in about half a dozen cases a month,” always for claimants.

The foremen who had supervised Tillman were called as witnesses by plaintiff in error. They testified that Tillman, over a long period of time prior to the date of the alleged accident, had walked with a “wobble” or “shuffle,” and that he had complained of being bothered with arthritis. Dr. Leonard Stine, a specialist in internal medicine, had been consulted by Tillman on June 27, 1951, the latter giving him a history of pains in the back and legs experienced during the preceding year and becoming more severe during the preceding month. Dr. Stine recommended hospitalization for further study. In his admission statement to an intern at Michael Reese Hospital on July 4, defendant in error stated he had suffered from stiffness in his legs for two years, and pain in his hip, low back and legs for two months. Dr. Irving Sherman was thereafter called in as a consulting neurologist. Drs. Stine and Sherman, who conducted extensive examinations of Tillman during his two-week confinement in the hospital, testified they found a degenerative disorder of the spinal cord. Dr. Chester Zeiss, chief surgeon at the company’s plant, testified that on July 23, 1951, Tillman came into the emergency hospital wishing to return to work; that he stated he had been hospitalized from July 4 for a spinal puncture; and that a general physical examination was made and a pension recommended to the company. No claim of injury was made.

In determining whether findings of the commission have substantial foundation courts must weigh and consider the evidence; and if an award is clearly against the weight of the evidence it is the duty of the court to set it aside, even though there is testimony which, if uncontradicted, would be sufficient to sustain it. (Corn Products Refining Co. v. Industrial Com. 6 Ill.2d 439.) A claimant under the Workmen’s Compensation Act must establish, by a preponderance of the evidence, that an accidental injury was sustained in the course of his employment. A finding of liability is not justified when the facts and circumstances in evidence preponderate in favor of the opposite conclusion. Mirific Products Co. v. Industrial Com. 356 Ill. 645.

In the present case the only evidence adduced to show an accident is the testimony of the claimant, entirely uncorroborated by other relevant testimony, that his back “popped” while he was working at his job. He does not identify the “partner,” who he says was present. He cannot remember the name of the foreman, whom he purportedly told about the event. He testified that before the date of the “accident” he had no trouble when walking and had no pain in his back when he bent over and lifted anything. Yet the foremen’s observations, his statements to them, the history of his condition as related by him to his physician and to the hospital intern, the findings of his own doctors at the hospital, and statements of his counsel in this court, all acknowledge a pre-existing arthritic or other disordered condition. On the date of the alleged accident he consulted a physician, a week later he entered a hospital, a few days after his release from the hospital he sought to resume work and was examined by the company doctor, on August 22 he applied for disability benefits, and in the following February he applied for a pension under his employer’s nonoccupational disability plan. On none of these occasions is there evidence that he mentioned any accident or injury sustained at his work. On the contrary, his application for disability benefits affirmatively admits that his condition did not arise from his employment. The answers of Drs. Weiner and Rubert to the hypothetical questions are of little probative value, since they were based on an assumption which the overwhelming weight of the evidence shows is unwarranted here.

We think that under the facts and circumstances shown in this record the award is clearly without basis and that the circuit court committed error in confirming it. (Corn Products Refining Co. v. Industrial Com. 6 Ill.2d 439.) We are well aware of the rule, repeatedly urged herein on behalf of defendant in error, that awards by the Industrial Commission should not be upset unless without substantial foundation in the evidence, and that questions of credibility are primarily for its determination. But this rule does not relieve a court of the duty to set aside an award where it is clearly against the manifest weight of the evidence. The mere existence of testimony by an interested party does not require its acceptance. Assent to the argument of counsel for defendant in error would require an award to be confirmed whenever the claimant testified to an injury no matter how much his testimony may be contradicted by the record, or how evident it might be that his story is a fabricated afterthought. It is clear that such is not the effect of the rule.

Defendant in error points to his own testimony about just sitting around on the job after June 27, 1951, and being unable to work; and to testimony by the hospital intern that Tillman had noticed “something which precipitated his coming into the hospital, which I don’t recall, within a few weeks.” It is urged that these statements constitute proof of accidenal injury on that date. We fail to see that the matters testified to, if true, tend to prove origin from occupational accident any more than from natural or degenerative causes.

In explanation of the inconsistent statements on the application for nonoccupational disability benefits, counsel relies on Tillman’s lack of education, arguing that “insofar as Tillman was concerned, all he did was to sign the papers.” It might be pointed out, also, that he received the benefits, to which he would not have otherwise been entitled. Obviously statements in formal written documents cannot be tendered at face value for the purpose of obtaining benefits, and then lightly explained away when they stand in the way of claims for other benefits of an inconsistent nature. See Corn Products Refining Co. v. Industrial Com. 6 Ill.2d 439.

We conclude that the award is against the manifest weight of the evidence and cannot stand. In view of such conclusion it is unnecessary to discuss other assignments of error. The judgment of the circuit court of Cook County is reversed, and the award by the Industrial Commission is set aside.

Judgment reversed and award set aside.


author: Mr. Chief Justice Hershey Mr. Justice Davis,

text:
    (No. 33770.
    H. C. Hammer et al., Appellants, vs. Charles W. Sanders et al., Appellees.

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

      Davis, Schaefer, and Klingbiel, JJ., dissenting.
    Schwartz & Cooper, and Leon M. Despres, both of Chicago, (Ira S. Kolb, of counsel,) for appellants.
    Brundage & Short, of Chicago, (Charles F. Short, and Narcisse A. Brown, of counsel,) for appellees.
    Latham Castle, Attorney General, of Springfield, (John L. Davidson, Jr., and Edwin A. Strugala, of counsel,) for Charles F. Carpentier, Secretary of State, amicus curiae.

   Mr. Chief Justice Hershey

delivered the opinion of the court:

In the circuit court of Cook County, the plaintiffs, H. C. Hammer, Morris Norian and Richard Norian, obtained judgments against the defendants, Charles W. Sanders, John L. Fye and O. R. Thoureen, individually and as co-partners doing business as the Sanders-Fye Drilling Company, for sums paid the latter pursuant to 51 separate oil transactions. The judgments were for $40,328.18, $31,279.86 and $6,988.36, respectively.

The plaintiffs successfully maintained in the trial court that the money was for the purchase of “securities” within the meaning of section 2 of the Illinois Securities Act of 1919 (Ill. Rev. Stat. 1953, chap. 121JÍ, par. 97,) and since the defendants had not complied with this statute relative to registration, etc., the sales could be rescinded and, upon tender, the consideration paid, plus reasonable attorney’s fees, could be recovered. Ill. Rev. Stat. 1953, chap. 121 par. 132.

On appeal, the Appellate Court reversed, holding both that the transactions did not involve the sale of “securities” within the statutory definition and that there was no proper tender. (See 6 Ill. App.2d 346.) We allowed petition for leave to appeal and granted the Secretary of State permission to appear as amicus curiae.

The cause was heard on motions for summary judgment, and for the most part the facts are undisputed.

The defendants, who were in the oil business as partners under the name of Sanders-Fye Drilling Company, owned oil leases in Indiana, Illinois and Kentucky. During the summer of 1952 they concluded 51 separate transactions with the plaintiffs relative to developing these leases, 45 of which were based on so-called letter agreements and six of which were evidenced by invoices only. The letter agreements were identical in form, differing merely as to' date, location of property, amount of interest, and sums of money due. For reference, we quote one of these instruments in full:

“Sanders-Fye Drilling Co. Contractors — Oil Producers Lamkin Building Olney, Illinois
Date_June 15, 1952__
Re-Sec. 29, 38-13W_
Gibson Indiana
County State
Mr. Hy Hammer
Hammer Bros.
33 N. Western Ave.
Chicago 12, Ill.
Dear Sir:
This letter will confirm our understanding regarding your acquisition of an interest in leases on property as set forth below.
We will assign to you an undivided . _i/128 th. _working 200._acres, for the sum interest, under oil and gas leases on a block of— located in_Gibson_County,._Indiana, of $_242.19--
We agree to commence or cause to be commenced, upon the leasehold estate described above, the drilling of a well for oil and/or gas, to diligently prosecute the drilling of same and to test all possible oil formations encountered to a depth of approximately _3000_feet, unless oil or gas in commercial quantities is discovered at a lesser depth, for the sum of $_242.19_, which is your share of the drilling cost of this well. We will plug the well should it be a dry hole.
In the event of a producing well, it is understood and agreed that, in addition to the amount as set out above, you will pay your proportionate part of the casing, drilling in expense, and for all equipment necessary to complete the well, as well as your proportionate part of the monthly operating expense, upon receipt of invoice. It is also understood that for any additional wells that might be drilled, you will pay your proportionate part of all costs, which costs may include the normal drilling profit of Sanders-Fye Drilling Company.
It is agreed that each individual co-owner retains the right to revoke at will the operator’s power to sell such co-owner’s oil and also denies the operator the power to enter into any contract beyond the minimum needs of the industry under the circumstances and in any event in excess of one year.
It is also agreed that }mu are purchasing this interest for investment purposes only without any present intention of reselling this interest.
If this is your understanding of our agreement, kindly signify your acceptance by signing in the space provided below and return one copy to this office.
Very truly yours,
SANDERS-FYE DRILLING COMPANY, By_/s/ John L. Fye_
Partner
Accepted
_/s/ Hy Hammer-
-July 21, 1952-

In each instance, drilling was either in progress at the time the instrument was signed or commenced shortly thereafter. Shares ranged from 1/256th to i/8th.

The first six transactions involved the drilling on an Indiana lease, and oil was discovered there in paying quantities. For these, the defendants then executed written assignments, covering the interests specified in said letter agreements.

In six other transactions, there was also oil production. But these differed from the others. A dispute arose in which the plaintiffs claimed that one of the defendants’ agents had guaranteed there would be production from a certain well, but it turned out to be a dry hole. While maintaining that the agent had no authority to make any such guarantee, the defendants said they would assign to them, at defendants’ cost, interest in another lease where there was production. The transactions are evidenced by written invoices billing the plaintiffs for the cost, which they paid. No written assignments had been executed as of the time the instant suits were filed.

In all other cases, involving seven different leases, drilling resulted in dry holes and no assignments were made or further action taken.

By their complaints, filed in February, 1953, the plain: tiffs sought to rescind the transactions and recover all sums expended by them. They alleged a violation of both the Illinois Securities Act of 1919 and the Federal Securities Act of 1933. The defendants disputed their right to recover, and as presented and argued in the briefs and on oral argument, the determinative issue is two-fold: (1) Were the instruments or interests involved securities which were sold in violation of the Illinois statute? (Ill. Rev. Stat. 1953, chap I2iy2, par. 97.) (2) If so, did the plaintiffs make proper statutory tender? (Ill. Rev. Stat. !953> chap. 121^, par. 132.)

The applicable provisions of the Illinois Securities Law of 1919 are as follows:

“The word ‘securities’ shall mean * * * any oil, gas or mining lease, royalty, or deed, and interest, units or shares in any such lease, royalty, or deed * * * ‘sale’ * * * shall include every disposition, or attempt to dispose, of a security or interest in a security for value. The term ‘sale’ means and includes contracts and agreements whereby securities are sold, traded or exchanged for money, property or thing of value, or any transfer or agreement to transfer, in trust or otherwise.” Ill. Rev. Stat. 1953? chap. 12134, par. 97.

“Every sale and contract of sale made in violation of any of the provisions of this Act shall be void at the election of the purchaser, and the seller of the securities so sold * * * shall be * * * liable, in an action at law or in equity, upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, the consideration given or the value thereof, together with his reasonable attorney’s fees in any action brought for such recovery.” Ill. Rev. Stat. 1953, chap. 121 )4, par. 132.

We discuss initially those transactions evidenced by an instrument of the type set out above. In this regard, we must analyze the terms of the instrument with a view to determining, at least in a general way, its legal effect.

It appears that Sanders-Eye Drilling Company and Hy Hammer had some understanding as to the latter’s acquiring an “interest” in the designated leases, and this letter is sent tO' confirm (or, more properly, to effectuate) that understanding.

Considered in its entirety, the instrument seems to have two purposes: (1) to assign or evidence the sale of or promise to assign, an undivided 1/ 128th “working interest” in the leases to Hammer for $242.19; (2) to evidence an agreement whereby Sanders-Eye is to drill a test well and Hammer is to pay $242.19 as his share of the cost, with a further provision for the payment of his “proportionate part” in equipping and operating a producing well and in drilling additional wells.

Hammer’s “proportionate part” of this additional expense is obviously meant to be i/i28th, his share of the working interest. Likewise, the amount of oil to which he is to be entitled is determined by his share in the working interest. Assuming the usual i/8th royalty to the lessor, this would give Hammer a 1/ 128th undivided interest in 7/8Ü1 of the oil produced. Cf. Fry v. Farm Bureau Oil Co. 3 Ill.2d 94, 95; Illinois National Oil and Gas Co. v. Sinclair, 373 Ill. 581, 582.

On its face, then, the instrument involves the sale of an undivided 1/ 128th working interest in the leases, coupled with or forming a part of a development contract to procure a test of the land for oil and gas. (See Summers, The Law of Oil and Gas, vol. 4, sec. 722.) Nothing further appearing, it would seem that this sale of a 1/ 128th working interest in the leases for the sum of $242.19 amounted to the sale of an “interest” in an oil “lease” within the purview of the Illinois statute and hence a “security.” (Cf. Securities Exchange Com. v. Joiner Corp. 320 U.S. 344; People v. Craven, 219 Cal. 522; Commonwealth v. Yaste, 166 Pa. Super. 275). However, while the terms of the instrument apparently call for the payment of two identical sums, just one sum was actually paid. And this was regarded by the parties as the only amount due. Thus, Hammer did not pay $242.19 for the undivided 1/128th working interest and another $242.19 for drilling costs. Rather, he paid $242.19 only, and by his own admission this was for drilling costs alone, as provided in the third paragraph of the instrument.

When we thus consider performance, we discover what appears to be a conflict between the import of the instrument and the parties’ own understanding of its terms. That such should arise, however, is not surprising in view of the varying interpretations which might with some justification be urged. Were there to be two payments, one for the working interest (second paragraph) and another for drilling costs (third paragraph) ? On its face, this is certainly a reasonable interpretation. But, as the minority suggest, it might be that only one payment is contemplated. The foregoing, in our opinion, brings to light an ambiguity or uncertainty which we may attempt to clarify by considering extrinsic evidence. And “in the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.” 12 Am. Jur., Contracts, sec. 249, pp. 787-8. See also 12 I.L.P., Contracts, sec. 244.

The practice of the parties is enlightening. SandersFye, a drilling company, held leases on property which they wished to test for oil. They estimated the cost of drilling a well to the depth at which it was believed oil would be found and then sought to finance the drilling by executing instruments like the one herein considered. After execution of the instrument, which stated the estimated drilling cost allocable to the undivided working interest transferred, they proceeded with the drilling. The various participants were then billed for the amounts they agreed to pay to defray the drilling costs. But no- sums were ever paid Sanders-Fye for a working interest as such, nor was it ever intended that anything was or ever would be due for such “interest.”

Significantly, the plaintiffs treated all sums advanced by them as “intangible drilling and development costs” on their Federal income tax returns, not as payments for a leasehold interest, a security, or any other capital asset. Further, Hy'Hammer and Morris Norian both declared that all money expended by them was pursuant to bills of Sanders-Fye for drilling (or in one instance, equipping,) costs.

Nor did Sanders-Fye consider the money as payment for a share in a working interest. Lenn Franke, who represented Sanders-Fye in some of the transactions, stated by affidavit that the plaintiffs contacted him relative to getting into the oil business and that he explained to them the operations of the Sanders-Fye Drilling Company. Among other things, he told them: “If you wish to join in the drilling of these wells or in any future wells, a proportionate share of the working interest in the lease covering the property where the well or wells are to be drilled, will be transferred to you at no additional cost, and in the event of a producing well, a proportionate interest will be assigned to you so that you can sell your share of the oil directly to the purchaser if you so desire.” The plaintiffs nowhere assert that this does not correctly reflect their own understanding of the proposed ventures.

Now the first few ventures were successful, and the defendants executed written assignments to the plaintiffs. From these wells the plaintiffs received, and presumably are still receiving, income proportionate to their shares in the leases. The plaintiffs never at any time questioned this procedure.

Piecing all this together, we believe the record shows that the development contract aspects of the instrument were uppermost in the minds of the parties. The only sums advanced by the plaintiffs were for drilling costs — not in payment of shares in working interests. The transfer of a working interest, even if it be assumed that it was effective immediately upon execution of the instrument, merely served as a basis for agreeing on the drilling of a test well and for establishing the plaintiffs’ share of the oil, if and when produced. In effect, the parties, as co-owners of the working interest, were thereby enabled to form an association for oil development, with the ultimate profits to be distributed as their interests appeared. At best, the transfer of a working interest was incidental to the development contract.

Therefore, Hammer should not be entitled to recover the $242.19 expended by him in our illustrative transaction. For even assuming he acquired a “security” within the statutory definition, he did not pay the $242.19 for it. This money was paid for drilling costs in accordance with a development contract. Despite the purport of the instrument, which seems to contemplate the payment of an additional $242.19 for an undivided working interest in the leases, in point of fact no such additional amount was ever paid Sanders-Fye. Nor was such ever within the actual contemplation of the parties. In short, Hammer did not pay the stated consideration for the “security,” or for that matter any sum of money, so there was no “amount paid” or “consideration given” for him to recover.

The statute contemplates the return of money expended in purchasing the “security,” and it is the plaintiffs’ burden to demonstrate a right tO' recover. In this regard, a basic distinction must be recognized here; namely, the difference between sums spent to acquire the interest and sums advanced to exploit the property (i.etest for oil and gas). If a group of people own undivided shares of a working interest, an agreement among them to develop that property is clearly not within the purview of the statute. These 45 transactions are, in substance, of the same type, even though the transfer of the interest and the entering into of the contract for drilling may be said to occur simultaneously. For while there were many ways Sanders-Fye and the plaintiffs might have arranged for the transfer of the interests and the drilling of the wells, they in fact utilized but one method. And that, as related above and as borne out by the record, was to transfer a share of the working interest to one who was willing to exploit that property with them by contributing a proportionate share of the estimated drilling costs. Sanders-Fye were not brokers, and they expected profits from oil production, not from selling working interests. All sums involved were advanced for and used in drilling, and this was fully understood by all parties concerned.

Even if we were compelled to judge the transactions without benefit of the practical construction given them by the parties themselves, as the minority apparently advocate, we would, conclude no differently and our reasoning would be much the same. The instruments on their face call for two payments, one for an undivided working interest (second paragraph) and the other for drilling costs (third paragraph). The statute allows a recovery for sums spent in purchasing the interests, but when it is shown that no such sums were in fact spent, the plaintiffs’ case fails. While the statute has a wide scope and a worthy purpose, it should not be applied so as to permit the plaintiffs to recover money they expended as their share of drilling costs. Apart from the statute, there could not, in justice, be a recovery without proof of fraud, duress, or similar conduct justifying rescission. Nor as we view the matter can there be, by statute, any recovery under the circumstances here and as the issues have been presented for our decision. And while it is of no legal consequence, it is interesting to note that this is in accord with the position adopted by the Secretary of State at one time. The defendants allege, and plaintiffs do not deny, that they sought to register instruments of this type with the Secretary of State in 1936 but were informed by the then Secretary of State that the law did not require it.

Remaining for consideration are the six transactions, evidenced by invoices only, where there admittedly were sales of undivided working interests in producing wells. These clearly involved the sales of securities under our statute.

The defendants, however, question the sufficiency of the tender. They point out that the plaintiffs had received income from the wells which they did not tender, nor did they tender a written assignment, quitclaim deed, or any other written disclaimer of interest showing their relinquishment of an interest in the lease.

As to the first objection, the applicable statute contains no requirement that the income received be tendered, stating merely that “securities sold” be tendered. This was changed by amendment in 1953, but the earlier statute governs here.

Nor was the tender otherwise insufficient. The sales were evidenced by invoices only, no written assignments having been made. In such case, the plaintiffs, both in a prior letter of rescission and in their complaint, made a sufficient tender by offering to return all that they had received. Their tenders were as formal as the evidence of sale, and under the circumstances all that could reasonably be deemed necessary.

For the reasons stated, the judgment of the Appellate Court is affirmed in part and reversed in part. The cause is remanded to' the circuit court of Cook County with directions to enter judgments for the plaintiffs as to sums advanced pursuant to said six transactions where they purchased interests in leases, deny them recovery for any other sums paid the defendants, and to proceed in a manner not inconsistent with the views expressed in this opinion.

Affirmed in part and reversed in part, and remanded, with directions.

Mr. Justice Davis,

dissenting:

I can neither concur with the reasoning of the majority which places the transactions before us beyond the scope of section 2 of the Illinois Securities Act, nor understand their failure to consider the charge of violation of the Federal Securities Act, as alleged in count II of the complaint and assigned as error and so argued by plaintiffs. These transactions cannot be placed outside the purview of the State or Federal Securities Acts without ignoring the plain language of the statutes and the clear economic import of the transactions.

The statutes are drawn in the broadest terms:

“The word ‘securities’ shall mean and include * * * investment contracts, * * * participation certificates, * * * certificates evidencing shares or interest ffi * * * associations, * * * or any contract * * * representing * * * evidence of * * * title to or interest in * * * property * * * of the Issuer thereof, and any oil, gas or mining lease, royalty, or deed, and interest, units or shares in any such lease, royalty, or deed * * * and any other instrument commonly known as a security * * *. The term ‘sale’ means and includes contracts and agreements whereby securities are sold, traded or exchanged for money, property or thing of value, or any transfer or agreement to transfer, in trust or otherwise.” Ill. Rev. Stat. 1953, chap. 121%, par. 97.

“(1) The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” U. S. Code, Title 15, chap. 2A, subchap. 1, par. 77b (1).

By the breadth of the language used, our congress and legislature, as well as the legislatures of other States, sought to bring the widest variety of economic speculation within the purview of regulation, and tO' avoid devious and ingenious schemes to circumvent the act. See Bloomenthal, SEC Aspects of Oil and Gas Financing, 7 Wyo. L. J. 49? 55 (i953) i 46 Col. L. Rev. 885.

The history of the exploitation of oil and gas rights is one of great commercial and economic development with concurring wildcat speculation and fraudulent and deceitful promotions. “(It) has been accompanied by the creation of legal interests which are, in many respects, sui generis. The law relating to these interests combines familiar principles of the law of property, contracts, landlord-tenant, and tenancy-m-common; however, in no other field are they combined in the particular pattern and with the particular overtones that they are found in oil and gas law.” Bloomenthal, SEC Aspects of Oil and Gas Financing, 7 Wyo. L. J. 49.

It was therefore reasonable and necessary that securities be defined so as to embrace every clear attempt to provide a type of “security” investment regardless of the peculiar legal form of the transaction. In a situation similar to the one before us, the Supreme Court of the United States laid down a succinct but useful test, applicable here. “The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” (Securities & Exchange Com. v. Howey Co. 328 U.S. 293, 301.) In view of the salutary purposes of regulatory securities legislation, the term “securities” has been given a broad and liberal construction. (Securities & Exchange Com. v. C. M. Joiner Leasing Corp. 320 U.S. 344; Anno. 163 A.L.R. 1030 et seq.) “The statutory policy of affording broad protection to investors is not to be thwarted by unrealistic and irrelevant formulae.” (Securities & Exchange Com. v. Howey Co. 328 U.S. 293.) In determining whether a particular instrument is a security within the meaning of the statute, the substance of the transaction and the relationship between the parties will control as against the form of the alleged security. Securities & Exchange Com. v. Universal Serv. Assn. (C.C.A. 7th) 106 F.2d 232; certiorari denied 308 U.S. 622.

I do not understand that my colleagues of the majority disagree with these principles, and indeed they admit that the instruments “on their face” are “securities” within the purview of the Illinois statute, and that the resulting transactions might lead one to believe that the money was paid for a working interest in the leases. However, I believe that these conclusions determine the question before this court. I find no' “conflict between the import of the instrument and the parties’ own understanding of its terms.”

The letter agreement prepared by defendant, provided: “It is also agreed that you are purchasing this interest for investment purposes only without any present intention of reselling this interest.” This provision illustrates that defendants, sellers of the interests and drillers of the wells in question, recognized the transaction as a sale of a working interest, or lease, for it is certain that no one would purchase a share of the drilling cost of an oil well as an investment.

The letter agreement was artfully drafted by the defendants. It commences: “We will assign to- you an undivided * * * working interest, under oil and gas leases * * * for the sum of-.” The letter continues with a usual and customary covenant as follows: “We agree to commence * * * the drilling of a well for oil and/or gas, to diligently prosecute the drilling of same and to test all possible oil formations * * * for the sum of-which is your share of the drilling cost of this well.”

It is definite that the assignment is to be made for a certain sum, which is to be considered a share of the drilling cost. In clarification of the agreement, the letter further states that: “In the event of a producing well, it is understood and agreed that, in addition to the amount as set up above, you will pay your proportionate part of the casing, drilling in expense (etc.).”

The majority concludes that it was the agreement of the parties that only one sum was to1 be paid. I do not consider that this gives rise to an ambiguity, but rather believe that it expresses a reasonable understanding of the terms of the contract. The plaintiffs, who had no knowledge or experience in the oil business, clearly desired to provide venture capital which would be used for the drilling of an oil well in the anticipation that they would receive a royalty or leasehold interest in the oil produced. The defendants-promoters, on the other hand, obtained money to finance their drilling operation in exchange for the promise of a portion of the anticipated oil profits. Clearly, this was a case of investment of money in a common enterprise by the plaintiffs with the anticipated profits to come solely from the efforts of defendants. (Securities Exchange Com. v. Howey Co. 328 U.S. 293.) The instrument was a security under the definitions of the Illinois and Federal Securities Acts. Ill. Rev. Stat. 1953, chap. 121½ pars. 96-37.18, incl.; U.S.C. Title 15, chap. 2A, subchap. I, par. 77b(i).

The form of the instrument does not in any way change the obvious practical and economic relationship of the parties. As was said by the Supreme Court of the United States in Securities & Exchange Com. v. C. M. Joiner Leasing Corp. 320 U.S. 344: “It is clear that an economic interest in this well drilling undertaking was what brought into being the instruments that defendants were selling and gave to the instruments most of their value and all of their lure. The trading in these documents had all the evils inherent in the securities transaction which it was the aim of the Securities Act to end.”

It seems to me that the majority has left the world of realism when they state that “the development contract aspects of the instrument were uppermost in the minds of the parties. The only sums advanced by plaintiffs were for drilling costs — not in payment of shares in working interests.” The plaintiffs invested money, with the understanding that it would be used for drilling a well; but the drilling of the well, in itself, would benefit them not an iota unless they received, for that investment, a right to share in the oil benefits reaped by the drilling efforts of the defendants. There was no provision for further payment for the acquisition of a “working share” but merely an agreement to pay certain set expenses upon production of oil.

However, even if we assume, as the majority hold that, “at best, the transfer of a working interest was incidental to the development contract,” the majority conclusion is contrary to the provisions of the Illinois Securities Law which reads: "Any security given or delivered with, or as a bonus on account of, any purchase of securities or other thing of value shall be conclusively presumed to constitute a part of the subject of such purchase and to have been sold for value.” (Ill. Rev. Stat. 1953, chap. 121½, par. 97(4).) Thus any working interest given or delivered with, or as a bonus on account of payments made for drilling costs, under the act is conclusively presumed to constitute a part of the subject of such purchase and to have been sold for value and constitutes a sale within the purview of the act. Whittaker v. Hall, 226 Fed.2d 868.

There is nothing in the activities of these parties to detract from the clear language of their written agreement. The practical relationship between the parties is inescapable. The defendants had a lease and financed the exploitation of that leasehold interest by obtaining their drilling expenses in exchange for a conveyance of a working interest. Their gain was to be obtained without financial risk, by the retention of a substantial overriding interest. This was not a joint venture. There was neither provision for any control of the operation by the plaintiffs, nor for them to share in any losses of the venture beyond their initial investment.

I believe that the hyper-technical and basically impractical analysis of the majority has given rise to a simple method to circumvent the Securities Act and create a potentially powerful instrument for fraudulent promotions to bilk the public, and that the decision serves to judicially abrogate the clear language and intention of the legislature.

In my opinion, the fact that both parties sought to take advantage of the special provisions of the Internal Revenue Code does not militate against this view. The purposes and policies behind the deductions and exemptions allowed by our Federal tax laws are far different from those which form the basis of our State and Federal “Blue Sky” laws. Even though the Congress of the United States sees fit to permit the deduction of these expenses, this circumstance neither lessens the imminent danger of fraud which our Securities Acts were designed to prevent, nor aids in their construction. The tax treatment of these expenditures by the parties should not serve to abrogate a regulatory statute of this state or nation.

Schaefer and KlingbiEL, JJ., concur in the foregoing dissenting opinion.


text:
    (No. 33774.
    The People of the State of Illinois, Defendant in Error, vs. Robert Harris, Plaintiff in Error.

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

      McDonnell & McDonnell, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John Gutknecht, State’s Attorney, of Chicago, (Ered G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Daily

delivered the opinion of the court:

Defendant, Robert Harris, was indicted in the criminal court of Cook County for the crime of murder. However, at the jury trial which followed, he was convicted of voluntary manslaughter and sentenced to the penitentiary for a term of 14 years. On writ of error, he now contends (1) that the trial court erred in submitting manslaughter instructions for jury consideration; (2) that the verdict was contrary to the evidence, and (3) that the lower court erred in unduly restricting his direct and redirect examination.

The record discloses that on the night of September 18, 1954, James Ellis, the deceased, was employed as a “bouncer” by the Tan Club Tavern, which was located at 2922 West Madison Street in the city of Chicago, and, as such, was wearing a blue uniform and star similar to those of a police officer, and was carrying both a night stick and a bolstered gun. Sometime around midnight, the defendant entered the tavern, walked to the rear, and commenced talking with some friends. For some unexplained reason, he was almost immediately accosted by Ellis and ordered to leave the premises, and when he refused to do so, he was severely beaten with the night stick and forcibly evicted. After a lapse of time, the duration of which is in dispute, defendant reappeared at the tavern entrance and fired one shot from a .32 caliber automatic which struck Ellis in the back, resulting in his almost immediate death. Thereupon, the defendant fled from the scene on foot but was pursued and apprehended a few blocks away;

Although all the witnesses agreed that the shooting took place at approximately 12 :3o A.M., they were in disagreement as to the time of the prior incident. The testimony of the People’s witnesses indicated that the beating occurred around 11145 P.M. while the witnesses for the defense stated that it took place almost thirty minutes later. The defendant himself testified that he entered the tavern at approximately 12:15 A.M. on the morning of September 19 and was attacked by the deceased without reason. Upon being evicted from the tavern, he walked a short distance down the street and sat on the fender of a parked automobile, where he was found by an acquaintance known only as George Jones who suggested that they return to the tavern to see why he had been beaten. The defendant agreed, and as they approached the tavern entrance, Jones handed him a gun, whereupon the defendant then stepped into the doorway and beckoned for Ellis to come outside. According to the defendant’s testimony, Ellis turned to face the door, took one or two steps towards the defendant, and then reached for his gun. At that instant, defendant fired the fatal shot. Although an eyewitness swore that Ellis was shot in the back while standing at the bar talking to friends, the defendant describes the shooting as follows: “When he reached for his gun, that is when my gun went off. That was when I fired one shot * * *. When I brought this gun up I did not know I was pulling the trigger. When I went to the Tan Club entrance I did not intend to shoot anybody. I went there to find out why he hit me.” Based upon this testimony, instructions as to both accidental shooting and the right of self-defense were given at the request of the defendant. It is now contended, however, that the court erred in giving manslaughter instructions which were tendered by the State.

We have long held that if there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given. (People v. Brown, 415 Ill. 23; People v. Newman, 360 Ill. 226; People v. Beil, 322 Ill. 434; People v. Tokoly, 313 Ill. 177.) In cases of voluntary manslaughter, this evidence must consist of facts which would indicate that a serious and highly provoking injury was inflicted upon the defendant which would be sufficient to excite an irresistible passion in a reasonable man, or that an attempt was made by the deceased to inflict a personal injury, and that the killing resulted from the violent passion before sufficient time had elapsed for the voice of reason to return. (People v. Smith, 404 Ill. 350; People v. Bissett, 246 Ill. 516; Ill. Rev. Stat. 1955, chap. 38, par. 362.) What constitutes a sufficient “cooling-off period” depends upon the extent to which the passions have been aroused and the nature of the act which caused the provocation (26 Am. Jur., Homicide, sec. 24), and, for that reason, no yardstick of time can be used by the court to measure a reasonable period of passion but it must vary as do the facts of every case. Humans react violently to the infliction of a serious injury, and the degree of pain which results therefrom not only governs the passion itself but also influences the duration of the cooling period. Here, according to the defendant’s own testimony, he was beaten to such an • extent that he did not know where he was or who assisted him from the tavern, and within 15 minutes after the assault, while still bleeding, he returned to the tavern and fired the fatal shot without realizing that he had even pulled the trigger. He further testified that for a period of two weeks following his arrest, he could not chew solid food but was on a strict diet of sweet milk and eggs. These statements of the defendant as to the severity of his injuries, are corroborated by jail records in evidence which indicate that at the time of defendant’s admission, his bruises and lacerations were of such a nature that both the jail warden and physician suspected a possible fracture of the jaw and cheek bones. What has been held to constitute a reasonable cooling-off period in instances where no prior injury was at any time inflicted upon the defendant cannot govern that duration under facts similar to those of the present case. Thus, People v. Newman, 360 Ill. 226, which is heavily relied upon by counsel for the defense, is not controlling. In view of the evidence of the severe beating and other provocatory circumstances which so closely preceded the shooting, it is our opinion the trial court was justified in submitting to the jurors’ consideration, the question of whether the killing resulted from an irresistible impulse before defendant’s passion had cooled and before his voice of reason had returned. Accordingly, we hold that the court did not err in giving the manslaughter instructions now complained of.

Neither do we believe the verdict was contrary to the evidence presented. Although there were facts in the record which might indicate that the defendant was guilty of murder, there was also evidence to support the manslaughter theory. The jury and trial judge observed the witnesses, heard them testify, and were in a much better position to determine their credibility than a court of review. This court will reverse because of insufficient evidence only where that evidence is so palpably contrary to the verdict, or is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Smith, 404 Ill. 125.) This is not true of the present case.

The defendant finally contends that the lower court erred in unduly restricting his right to testify as to his state of mind at the time of the shooting. On direct examination, he was asked (1) “At the time that the deceased reached for his gun out of his holster, did you then reasonably fear that you were in immediate danger ?” and (2) “Did you have any fear of the deceased going to shoot you?” On redirect examination, the defendant was also asked: “Were you then in fear of receiving great bodily harm or being killed ?” The State objected to each of these questions as leading and, on each occasion, the objection was sustained.

In such cases the defendant’s state of mind is material and a proper subject of examination, (People v. Biella, 374 Ill. 87; People v. Scott, 284 Ill. 465; Wohlford v. People, 148 Ill. 296,) yet this does not warrant the use of leading or other improper interrogatories. (People v. Bennett, 3 Ill.2d. 357.) In the present case, not only did the questions lead the witness by indicating the answer desired, (People v. Schladweiler, 315 Ill. 553; Peebles v. O’Gara Coal Co. 239 Ill. 370,) but they also required conclusions as to the reasonableness and degree of fear which were more properly within the scope, of jury determination. The trial court’s ruling sustaining objections to these questions in the form in which they were asked was correct. Having been restrained from asking improper questions, defendant’s counsel voluntarily abandoned any further interrogation dealing with the point. There is, thus, nothing in the record to show defendant was, or would have been, prevented from giving testimony as to his fears and beliefs in response to proper questioning. On the state of the record, therefore, there can be no merit to the contention that examination of defendant was unduly or erroneously restricted in this regard.

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

Judgment affirmed.