author: Mr. Justice Schaeeer

text:
    (No. 33646.
    Edward S. Flynn, Appellant, vs. La Salle National Bank, et al., Appellees.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Harry J. Myerson, Maurice H. Kamm, and Fred A. Gariepy, all of Chicago, (John Spalding, of counsel,) for appellant.
    Nicholson, Nisen & Elliott, of Chicago. (John R. Nicholson, Charles M. Nisen, and Clyde O. Bowles, Jr., of counsel,) for appellee La Salle National Bank; Murphy, Pearson & O’Connor, of Chicago, (Walter P. Murphy, and Walter Wm. Pearson, of counsel,) for other appellees.
   Mr. Justice Schaeeer

delivered the opinion of the court:

This is a class action on behalf of the minority beneficiaries of a trust of improved real estate. The complaint sought an injunction to restrain the acceptance by the trustee of an offer by the majority beneficiaries to purchase the trust property, and other relief. Plaintiff appeals from a decree of the circuit court of Cook County, entered pursuant to the recommendations of a master in chancery, which directed the trustee to convey the real estate to the majority’s nominee. Our jurisdiction is properly invoked because a freehold is involved.

The property which is the corpus of this trust is located at the southwest corner of Michigan Avenue and Oak Street in Chicago. It is improved with a three-story shop and office building and two apartment buildings. The equitable interest in the trust is divided into 1400 units of beneficial interest, represented by land trust certificates.

The trust was established in 1925 to hold title to the property subject to1 a 99-year lease to the Edith Rockefeller McCormick trust. The tenant defaulted during the depression. By a decree of the circuit court of Cook County entered March 22, 1939, in a suit arising as a result of the default in the McCormick lease, the terms of the trust were modified in certain respects. Specifically, the trustee was vested with full and complete authority to sell, lease, operate and otherwise dispose of the real estate. In the event of a proposed sale, however, the decree requires the trustee to notify the beneficiaries and request their advice as to whether the property shall be sold on the terms proposed, and to make reasonable efforts to comply with the expressed advice of the majority of the beneficiaries. In the event that the trustee finds such action impracticable, he is authorized to take whatever action he deems desirable.

In 1947 the trustee entered into a 15-year contract with the firm of Farr, Chinnock & Sampson to manage and rent the property. The firm was to be paid 5 per cent of all rentals collected from the property. In the event of termination of the management contract at any time during the 15-year period the firm was to be paid 5 per cent of all rentals due or to become due on the unexpired term of all leases effected during the period of the agency. The firm was also designated as exclusive broker on any sale of the property. In the event that there was a cooperating broker, it was provided that the brokerage fee should be divided equally.

On April 15, 1954, the trustee notified the beneficiaries that it had received an offer to purchase the trust real estate from Anthony J. Frystak for the sum of $800,000, that such offer was made on behalf of the owners of 790 of the 1400 units of beneficial interest, and that Ronald J. Chinnock, a partner, and Newton C. Farr, a retired partner, in the firm of Farr, Chinnock & Sampson, managing and selling agents of the trust real estate, were among the certificate holders on whose behalf the offer was made. The notice stated that the brokerage fee, in the estimated amount of $29,000, would be waived in the event of a sale to Frystak, but not in the event of a sale to any other purchaser. The notice further stated that if the management agreement should be terminated by the purchaser, the managing agents would demand payment of the termination penalty, estimated to be about $24,000. The Frystak offer, attached to the notice, reserved the right to meet any higher offer within five days after notification of its terms.

On April 28, 1954, the complaint in this case was filed. It charges that the offer and proposed sale are unfair because (a) the provision giving Frystak the right to meet higher offers will stifle competitive bidding, (b) the insistence by the managing agents on a brokerage fee, in the estimated amount of $29,000, in the event of a sale to anyone but Frystak, is unfair and will discourage other bids, (c) other bids will be discouraged as a' result of the managing agents’ insistence that the termination penalty be paid by the purchaser in the event that the management contract is terminated, (d) the managing agents, as selling agents, should not be permitted to participate in the purchase of the property, and (e) the majority beneficiaries, in these circumstances, occupy a relation of trust to the minority and should not be permitted to effect a sale to themselves at a discount. The complaint prays that the management agreement be declared invalid and that the property be sold under the supervision of the court to the highest and best bidder. The complaint also charges that Farr and Chinnock acquired their certificates through the improper use of certain confidential information and prays that the certificates which they acquired be declared to be the property of the trust upon reimbursement of the cost of acquisition.

The answer of Frystak admits that he is the nominee of the majority beneficiaries. The answers of Farr and of Chinnock allege that Farr retired from Farr, Chinnock & Sampson prior to 1947, deny the allegations of impropriety in the acquisition of certificates, admit that they insist upon the penalty if the management agreement is terminated, deny that the “right to meet” provision will stifle competition and assert that the only effect of the waiver of brokerage commissions is to make the Frystak offer equivalent to $829,000.

The answer of the trustee, the La Salle National Bank, alleges that it sought unsuccessfully to have the managing agents assert the termination penalty only against the trust, instead of against any purchasers other than Frystak. It stated that the trustee had also tried unsuccessfully to have Frystak remove the “right to meet” provision, but that it thought higher offers would probably eliminate Frystak from the bidding, and with him this problem. The answer further alleges that the owners of 906 units of beneficial interest have approved selling the trust property for the net sum of not less than $800,000 and that, anticipating this approval, the trustee had arranged to advertise the property for sale prior to the filing of the complaint. The answer sought instructions from the court as to the best method of obtaining the highest price for the property.

On May 5, 1954, the day following the filing of the answers, the trustee petitioned the court to approve the plan of advertising upon which it had already embarked. On presentation and argument of the petition that day, an order was entered approving the advertising and authorizing the trustee to solicit other offers until June 28, 1954» and to report such other offers to Frystak in accordance with the condition stated in his offer. The order directed that the trustee file a report of the highest offer, and provided that such offer be submitted to the court for approval, before acceptance.

The trustee reported, on July 12, 1954, that it had received 69 inquiries, but had received only one bid, that of Joseph Horwitch, on June 28, 1954, for $824,000, with a waiver of the cooperating brokers’ commission, by Arthur Rubloff & Co. The net value of this bid to the estate was reported to be $809,140. Horwitch stated that he would be willing to increase his offer, but was reluctant to do so unless a competitive sale could be arranged on a fixed date. The Horwitch offer was communicated to Frystak who thereupon increased his bid to $825,000, net to the trust, on July 2, 1954. The report of the trustee concluded that the Frystak offer was the best offer received under the terms of the advertising, approved by order of the court of May 5, 1954, which invited offers until June 28, 1954, and allowed Frystak five days to meet the highest offer received.

Plaintiff filed objections to the trustee’s report, on July 15, 1954, in which he charged that the trustee’s advertising had discouraged competitive bidding because of the “right to meet” provision, which it expressly reserved to Frystak, and because it invited offers on the basis that the majority was entitled to a competitive advantage in the bidding, in the amount of the brokerage fee. The report and objections were referred to a master in chancery. At the master’s hearing, Frank G. Price, an assistant vice-president of the trustee bank, testified that he had received 69 inquiries in response to the advertising, that many of those who inquired had objected to the “right to meet” provision, and that in all such cases he had advised those persons that the best way to eliminate the problem was by driving Frystak out of the competition with higher bids. He stated, however, that many persons lost interest in the property because the foundation of the building did not lend itself to additional construction so as to' increase income.

Joseph G. Porter, one of the vice-presidents of the trustee bank, stated that he had had the property appraised at $900,000, just prior to receipt of the Frystak offer, that he had tried to prevail on counsel for Frystak to eliminate the "right to meet” provision from the offer, and that they had referred him to Farr, who refused to do so. Porter testified that one prospect refused to bid because a lease of the main building ran until 1962, and that that was the "real hurdle” to a sale.

Correspondence was introduced in which the trustee sought to have the cost of terminating the management agreement applied only to the trust, and the managing agents insisted that the prospective purchaser would have to bear the cost of terminating the agreement, unless the property was sold subject to the agreement. The trustee contended in its correspondence that a sale subject to the agreement would not bring the best price, since it was likely that most purchasers would want to manage the property themselves and would be reluctant to purchase if there was risk of assertion of the penalty.

Chinnock testified that his firm intended to assert the penalty against any purchaser who did not continue to employ his firm, and that his firm intended to claim the brokerage commission if the property was sold to anyone except Frystak. He further testified that Farr had been retired from Farr, Chinnock & Sampson since 1946, although his name still appears on the letterhead as a “consultant.” He admitted that he and Farr, who is his brother-in-law, and their families own over 300 units of beneficial interest in the trust.

In response to the notice to beneficiaries, seeking their advice, it was shown that the owners of go6%s units indicated approval of the acceptance of the Frystak offer, owners of units disapproved, and owners of 410^5 units failed to reply.

It was further shown that the only offer submitted within the period of time fixed by the advertising was the Horwitch offer, on June 28, 1954, in the amount of $824,000, together with a $40,000 cash deposit to secure the bid. When Frystak met this offer, Horwitch, on July 13, 1954, increased his bid to an amount reported by the trustee as $835,000. Thereafter I. S. Kaplan appeared in court and offered to bid $850,000 in a competitive sale under supervision of the court.

The master’s report, filed July 22, 1954, found that the majority beneficiaries did not occupy a fiduciary relationship to the minority, and that it was the wish of the majority that the Frystak offer be accepted unless a higher offer could be obtained. It also found that the $825,000 offer of Frystak was fair, and was the best offer submitted within the time limit set in the advertising, which had been approved by the order dated May 5, 1954. The offer of Horwitch, of July 13, was submitted too late, the master concluded.

The decree approved the recommendation of the master that the Frystak offer of $825,000 be accepted, and expressly adopted each of the master’s findings and conclusions. At the hearing before the court Frystak was persuaded to increase his offer to $835,000, the amount at which the second Horwitch offer was reported by the trustee. The court thereupon decreed that the Frystak offer be accepted and that the necessary conveyances be executed. The decree reserved jurisdiction to determine the remaining issties in the case.

Plaintiff seeks reversal of the trial court’s decree and urges error in the following respects: (1) in directing acceptance of the Frystak offer and in ordering conveyance of the property to him; (2) in failing to enjoin the sale; (3) in holding the management agreement valid; (4) in compelling the minority to sell to a syndicate organized by the brokers employed to sell the real estate; (5) in holding the majority not to be in a fiduciary relationship to the minority beneficiaries; (6) in holding that the trustee did not violate its duty of impartiality; (7) in dismissing the complaint as amended for want of equity, insofar as it sought to enjoin the sale of the property.

The most significant fact in this case is that Frystak is not a stranger to the property. He is the nominee of the majority beneficiaries of the trust. The property for which he is bidding constitutes the corpus of the trust. In the event that he is successful, the trust will terminate. In substance, what the majority is doing is buying out the minority, rather than buying an asset of the trust. The interests of the majority and the minority are completely antagonistic. The one group is interested in obtaining the highest possible selling price while the other group, the majority, wants the lowest.

The dominant persons in the majority group are Farr and Chinnock, who are or have been actively connected with this property for many years. Farr was the trustee of the original lessee of the property, the Edith Rockefeller McCormick trust, and is a consultant to the firm of Farr, Chinnock & Sampson, managing agents of the trust. Chinnock, the brother-in-law of Farr, is a partner in the firm. Farr and Chinnock, together with the members of their families, own 300 units of beneficial interest in the trust. In such a situation a court of equity is alert to see that the utmost good faith and impartiality characterize the transaction. Chicago Hansom Cab Co. v. Yerkes, 141 Ill. 320; Straus v. Anderson, 366 Ill. 426.

The management agreement provided: “Should the property * * * be sold while this agreement is in effect, then Ronald J. Chinnock and Richard H. Sampson, doing business as Farr & Company, shall be exclusive agents for the sale of the property * * It also provided that in the event the management agreement should be terminated, the agents would receive five per cent of all rentals received from leases made or renewed by the agents. It is argued that these provisions made the management agreement void, but as we view the case it is unnecessary to determine that question. For even if the provisions of the agreement are assumed to have been valid, the use to which the agreement was put by the managing agents was clearly improper.

The management agreement contemplated disinterested activity in behalf of the trust and all of its beneficiaries. Equity will not permit a position so acquired to be converted into one favorable to some beneficiaries, including the managing agents and members of their families, and hostile to the interests of other beneficiaries. In this case an effort was made to- use each of the challenged provisions of the management agreement to provide leverage to assist in the acquisition of the interests of the minority beneficiaries. In neither instance did the trustee effectively challenge the attempt.

With respect to the brokerage commission claimed by the managing agent upon a sale to anyone other than Frystak, the agreement provided that the managing agents “shall be exclusive agents for the sale of the property.” The trustee solicited all bids. It may well be that for that reason alone no commission was payable to the managing agents, for a distinction has been drawn between an “exclusive agency” to sell realty and an “exclusive right” to sell such property. In the former situation the owner is not precluded from selling the property himself, but is only barred from appointing another agent, while in the latter case the owner remains liable for the commission even if he effects the sale himself. Wozniak v. Siegle, 226 Ill. App. 619; 5 Illinois Law and Practice 522; Restatement of the Law, Agency, sec. 449.

It is unnecessary to decide this question, however, because by becoming prospective purchasers the managing agents disqualified themselves from acting as brokers in the solicitation of competing bids. Whatever considerations may have been responsible for incorporating in the management agreement an exclusive selling agency lasting fifteen years, that agreement cannot be read as creating a right in the agent to- levy tribute upon a sale which he had disqualified himself from negotiating.

Under these circumstances it was improper for the trustee to take the position that Frystak was entitled to a competitive advantage in the bidding in the amount of the brokerage fee. All competing bids were reported to the court on that basis. It is impossible to determine how many persons may have been deterred from bidding because of this factor. It is also impossible to determine how many beneficiaries, not members of the purchasing group, advised the trustee to proceed with the proposed sale on the ground that it would increase the distributable proceeds, by eliminating the payment of a brokerage fee as an expense of the sale.

With respect to the provision for commissions in the event of termination of the management agreement, the trustee took the position at the outset that the trust, and not the purchaser, would be liable for the termination penalty, since the trustee did not plan to make the sale subject to the management agreement. The managing agents refused to concede this point, and insisted that the purchaser would have the problem of settling the question. At the hearing Chinnock confirmed that his firm intended to insist on the termination penalty against a purchaser desiring to terminate the agreement.

It is easy to understand why the managing agents would want the penalty passed on to the purchaser. If the commissions were paid by the trust, a major portion of the cost would be borne by the purchasing group. Further, the threat that the penalty would be asserted would tend to discourage bidding by persons interested in managing the property themselves. As the trustee pointed out in its correspondence with the managing agents, most purchasers would want to manage the property themselves, and it would not produce the best price to offer the property subject to the agreement.

The attempt thus made to assert a claim against competing purchasers was improper. It is true that the trustee’s advertising makes no reference to the claim and that inquiries were handled by the trustee, not the managing agents. The notice to the beneficiaries, however, contained a reference to this claim of the managing agents. The trustee now argues that the provision in the notice was merely to advise the beneficiaries of a claim against the trust — and not against the purchaser. Certainly the notice did not expressly so state, and since the position of the managing agents was unequivocal the trustee could hardly have intended to mislead the beneficiaries.

The third restrictive condition complained of is the “right to meet” provision. The evidence of the depressing effect of this condition is clear and direct. The bid which was accepted is $835,000. Horwitch had offered to increase his bid, if the condition complained of were removed and a competitive sale were arranged. Kaplan offered to bid $850,000 in a competitive sale. The trustee acknowledged that there were numerous complaints about the provision from prospective bidders, and that it had tried unsuccessfully to have the provision removed. There is no way of telling how many persons may have failed to reply to the advertising at all because of the condition.

. It is argued that the “right to meet” provision is commonly used in sale contracts and has been upheld by the court in Gumbiner v. Alden Inn, Inc. 389 Ill. 273. The facts in that case are dissimilar. There the bidder, Lake Shore Hotel Co., which had inserted the “right to meet” provision was a stranger to the selling corporation. There was no conflict of interest between the majority and the minority. The loss of one was the loss of all. The action of those in control of the corporation was taken at the same financial sacrifice that was suffered by the complaining minority. No question involving the duty of impartiality arose.

In the present case, as has been pointed out, the interests of the majority and the minority are antagonistic. In our opinion the trustee violated its duty in allowing the majority the “right to meet” higher offers. The trustee argues that it was necessary to have an opening bid to submit to the beneficiaries and to open the negotiations. Ignoring any effect that reference in the advertising to this right reserved to Frystak might have had on potential bidders, it soon became apparent that the provision seriously affected the bidding, and that a higher price could probably be realized at some type of competitive sale. The trustee, however, adhered rigidly to its original plan for selling the property. In so doing we think that the trustee failed in its duty to deal impartially with the beneficiaries of the trust and to secure the highest price for the property. The evidence fails to show the exercise of that continuous and independent discretion that was required of the trustee at all stages of the transaction. Accordingly, we think that it was error for the chancellor to direct acceptance of the Frystak bid.

Although a court will hesitate to substitute its own discretion for that of a trustee, in our opinion a sufficient showing has been made that the trustee failed to secure the highest obtainable price for the property, and there is sufficient evidence in the record of irregularities attending the solicitation of offers and the conduct of the sale that the chancellor should have denied confirmation of the sale.

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

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Davis Mr. Justice KeingbiEE,

license: Public Domain

text:
    (No. 33680.
    Erma McNely, Exrx., Appellant, vs. Board of Education of Community Unit School District No. 7, Appellee.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Klingbiel, and Hershey, JJ., dissenting.
    A. G. WhitehousE, of Gillespie, and Hemphill & Kelsey, of Carlinville, for appellant.
    D. A. McGrady, of Gillespie, for appellee.
   Mr. Justice Davis

delivered the opinion of the court:

Plaintiff, as executrix of the will of Earl J. McNely, deceased, filed complaint in the circuit court of Macoupin County against the Board of Education of Community Unit School District No. 7 of said county, seeking to recover damages for the wrongful dismissal of decedent as teacher and superintendent. Defendant filed answer denying the material allegations of the complaint and asserting affirmative defenses. Plaintiff filed replication denying such defenses and issues were joined on the pleadings. The cause was submitted to a jury after denial of defendant’s motion for directed verdict, and the jury found the defendant not guilty. The trial court entered judgment for the plaintiff in the amount of $4900 notwithstanding the verdict. On appeal to the Appellate Court, the judgment was reversed, (5 Ill. App. 2d 84) and this court granted plaintiff’s petition for leave to appeal.

Mr. McNely died on July 3, 1952, and his executrix subsequently filed this complaint alleging that by reason of his employment for two consecutive school terms, decedent entered upon contractual continued service within the meaning of section 24 — 2 of the School Code and that his discharge by the board was wrongful and without cause, and that decedent was entitled to damages measured by the salary he would have received for the period ending with the date of his death.

The defendant raised the following defenses to this action: (1) the decedent was properly discharged; (2) the Teacher Tenure Law does not apply to non-teaching superintendents; (3) the issues in this case were presented in an earlier case which was abated in the Appellate Court, and the action of that court is res judicata of the issues here presented; (4) this action, being in contract, cannot lie because the decedent had no contract at the time of his dismissal; and (5) the plaintiff is barred from recovery herein because the decedent did not seek review of the action of the board of education in accordance with the provisions of the Teacher Tenure Law.

It appears from the evidence that decedent was employed as superintendent of the schools of the district for the 1948-1949 and the 1949-1950 school years. His employment was evidenced by written contracts of obsolete form which provided, “that this contract is subject to contractual continued service as provided in Sec. 127^4 of the Teacher’s Tenure Law.” During the 1950-1951 school year the decedent worked for the district without the issuance of further contract. On April 24, 1951, the board adopted a motion eliminating the job of superintendent and gave written notice to decedent that for reasons of economy, the office of superintendent was discontinued and that his services were terminated. This notice appeared to be based on the provisions of section 24 — 3 of the School Code (Ill. Rev. Stat. 1949, chap. 122, par. 24 — 3,) relating to dismissal due to discontinuance of some type of teaching service.

However, one of the school principals of the district was hired as superintendent of the district and as principal of the high school by resolution of the board of education adopted July 19, 1951. It is thus apparent from the record that the position of superintendent, which was eliminated on April 24, 1951, was reinstated on July 19, 1951, without the tender of such post to the decedent, as required by section 24 — 3 of the School Code. The notice of dismissal and the resolution on which it was based were bottomed solely on the elimination and discontinuance of the job of superintendent, rather than on dismissal for cause, and under the circumstances of this case the attempted dismissal of the decedent was not in compliance with the statute and he was under contractual continued service with the board.

We next consider the defendant’s contention that the Teacher Tenure Law is not applicable to nonteaching superintendents. The relevant provisions of section 24 — 2 declare that “Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such period.” The term “teacher” is defined as “any or all school district employees regularly required to be certified under laws relating to the certification of teachers * * Ill. Rev. Stat. 1949, chap. 122, par. 24 — 2.

The Teacher Tenure Law was enacted primarily for the protection of educational personnel who, prior to its enactment in 1941, served at the pleasure of school directors or boards of education. Its object was to improve the Illinois school system by assuring personnel of experience and ability a contractual continued service status based upon merit rather than insecurity of employment based upon political, partisan or capricious consideration. Donahoo v. Board of Education, 413 Ill. 422; Betebenner v. Board of Education, 336 Ill. App. 448.

It was for the legislature rather than this court to determine who should be embraced within the scope of its purpose. There is specific statutory direction for the inclusion of educational administrative and supervisory personnel of the type school district in question within the provisions of the Teacher Tenure Law. Judicial construction is not required to accomplish this result. In enacting the Teacher Tenure Law the legislature recognized a distinction between school districts of fewer than 1,000 population, governed by school directors and those over 1,000 governed by boards of education. In applying tenure provisions to districts having directors the legislature included “all teachers, principals and superintendents” (Ill. Rev. Stat. 1949, chap. 122, par. 24 — 1.) By this provision the legislature evinced a clear determination that the policy of tenure was as applicable to superintendents and principals as to teachers. In the following sections of the act which apply to the larger districts having boards of education, the legislature recognized the existence of employees who assist the superintendent and principal, perform the many and complex requirements of such positions, and, whose duties may be, in part, administrative, supervisory, and instructional in nature. Such employees of the larger type districts would not fit neatly into1 the three classifications of teacher, principal or superintendent. Tenure was designed for such educational personnel but not for clerical employees, janitors, custodians, maintenance men, etc., who, in many areas, are subject to1 the provisions of the Civil Service of Cities Act. (Ill. Rev. Stat. 1949, chap. 243/2, pars, 39-yya incl.) It was the policy of the legislature to include within the Teacher Tenure Law only those employees required to be certified. It stated that policy by the simple method of defining teachers for the purposes of the act, as “any or all school district employees regularly, required to. be certified under laws relating to the certification of teachers.”

Faced with the clear statutory definition of the term “teacher” as used in the applicable portions of the act, the only proper inquiry for this court is whether superintendents are required to be certified. The defendant has pointed out that in other parts of the School Code, the legislature has recognized a difference between “teaching” and "supervising” and has given to the superintendent duties that are clearly supervisory rather than teaching. We freely grant that teaching and supervising are different functions both in common parlance and in fact and that this distinction is recognized by the legislature in other statutes. Likewise, in many sections of the School Code, the word “teacher” must be construed to include superintendents, principals, and supervisors if absurd results are to be avoided in statutory construction. (Ill. Rev. Stat. 1949, chap. 122, pars. 21 — 15, 21 — 21, 21 — 23, and 21 — 26.) Yet this circumstance is of no force -here. The legislature was free to define “teacher” as used in the Teacher Tenure Law without regard to its common meaning. Indeed its definition here is less broad, and far more in accord with its generally accepted meaning than the definition of “teacher” in. the article relating to the teacher’s retirement system. The legislature there not only included superintendents and principals within the meaning of the word “teacher,” but also school nurses, librarians, county superintendents of schools and assistants, Superintendent of Public Instruction, and any person employed in his office as executive. Ill. Rev. Stat. 1949, chap. 122, par. 25 — 4.

Justice Cardozo set forth the rule of construction for such cases when speaking for the court in Fox v. Standard Oil Co. 294 U.S. 87, 95: “There might be force in this suggestion if the statute had left the meaning of its terms to the test of popular understanding. Instead, it has attempted to secure precision and certainty by rejecting a test so fluid and indeterminate and supplying its own glossary * * *. In such circumstances definition by the ordinary man or even by the ordinary dictionary with its studied enumeration of subtle shades of meaning is not a substitute for the definition set before us by the lawmakers with instructions to apply it to the exclusion of all others * * *. There would be little use in such a glossary if we were free in despite of it to choose a meaning for ourselves.”

Under sections 2 — 27 and 11 — 15 of the School Code (Ill. Rev. Stat. 1949, chap. 122, pars. 2 — 27 and n — 15,) the Superintendent of Public Instruction is given power to set standards for the recognition of elementary and high schools. Pursuant to this power the conditions of recognition required by said Superintendent and the University of Illinois, among other things, provide: “Regulation 4— Certification. All Superintendents, principals, supervisory officers, and teachers employed in public high schools are required by statute to be properly certified.” (The Recognition and Accrediting of Illinois Secondary Schools, issued October, 1940, page 32; also see Illinois School Board Journal, Sept.-Oct. 1941, page 103.) Section 21 — 1 of the School Code at the time this action .arose provided that “No one shall teach in the public schools * * * who does not hold a certificate of qualification * * (Ill. Rev. Stat. 1949, chap. 122, par. 21 — 1.) The interpretation of the school law by the Superintendent of Public Instruction to require superintendents to be certified under the laws relating to teachers is of long standing. Newton Bateman, former Superintendent of Public Instruction, so construed the school law in 1865, and such construction is noted in his book entitled “Common School Decisions,” (Pillsbury revised edition, 1889,) page 200, which reads:

“4. Superintendents of City and Village Schools. It is held that the superintendent of city and village schools belongs to the teaching force, and should, therefore, have a certificate of qualification in order that he may draw his pay.”

This court, in considering uniform and long continued construction placed upon the charter provisions of a railroad, relating to taxation by the State’s public officials, in the case of People v. Illinois Central Railroad Co. 273 Ill. 220, at pages 242 and 243, held: “If it be assumed that the meaning that should be placed upon the charter provisions of appellant company here under consideration is doubtful, then the contemporaneous, uniform and long continued construction placed upon these charter provisions by public officials will have great weight with the court.” Also see Mississippi River Fuel Corp. v. Commerce Com. 1 Ill.2d 509; and Nye v. Foreman, 215 Ill. 285. This court has not heretofore determined whether under the school law as it existed prior to 1951, superintendents were required to be certified. However, our conclusion cannot but be guided by the above decisions and by the words of Mr. Justice Cartwright in the case of County of Cook v. Healy, 222 Ill. 310, at page 317: “Where a particular construction has been given to a provision and it has been contiued for a long term of years and acquiesced in by the public at large, such construction is entitled to great weight and may be equal in force to a judicial construction.”

In 1951 section 21 — 1 of the School Code was amended to provide: “No one shall teach or supervise in the public schools * * * who does not hold a certificate of qualification * * *.” (Ill. Rev. Stat. 1951, chap. 122, par. 21 — 1.) We recognize that this subsequent legislation does not afford proof of prior status of the law; but the force of the long continued administrative construction of the school law requiring the certification of superintendents and public acquiscence therein, coupled with the later statutory enactment in conformity thereto, leaves us with the inevitable conclusion that superintendents are, under present law, and were under prior law, “teachers” within the definition of the Teacher Tenure Law. Our decision in this respect finds support in other jurisdictions. (State ex rel. Frank v. Meigs County Board of Bducation, 140 Ohio St. 381, 44 N.E.2d 455; School City of La Fayette v. Highley, 213 Ind. 369, 12 N.E.2d 927; Gallardo, Commissioner of Education v. Gonzales, 143 F.2d 947.) Nothing said in Eelkema v. Board of Education, 215 Minn. 590, 11 N.W.2d 76, militates against this conclusion. The Minnesota court was there interpreting unlike statutory language in a different historical setting.

The defendant pleaded and argued the defense of res judicata. The record indicates that the prior action which abated in the Appellate Court was a mandamus proceeding wherein the board of education and Earl J. NcNely were parties. The present suit is an action in contract by the personal representative of the decedent and against the board of education wherein the plaintiff demands judgment in the sum of $5400. Mandamus is a summary, expeditious, and drastic common-law writ of an extraordinary character, sometimes referred to as the highest judicial writ known to law. (People ex rel. Dolan v. Dusher, 411 Ill. 535.) Generally, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights, questions, and facts in issue as to the parties and their privies in all other actions in the same or any other court of concurrent jurisdiction. The defendant has failed to prove the identity of the same issues in the actions in question and the burden of such proof was upon it. City of Geneseo v. Illinois Northern Utilities Co. 378 Ill. 506; Charles E. Harding Co. v. Harding, 352 Ill. 417.

The defendant has also asserted that this action, being in contract, cannot lie, because the decedent had no contract at the time of his dismissal. Section 24 — 2 of the School Code provides that: “Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to the provisions of this Act and the lawful regulations of the employing board.” In view of this provision, we find no merit in this assertion.

The defendant has also argued that the plaintiff is barred from recovery because the decedent did not seek review of his dismissal by the board of education in accordance with the provisions of the Teacher Tenure Law. Section 24 — 3 of the School Code provides for the dismissal of tenure teachers for cause and for their dismissal due to the decision of the board to decrease the number of teachers or to discontinue some particular type of teaching service. If removal is for the latter reason 60-day notice prior to the end of the school term must be given the teacher along with a statement of honorable dismissal. If the dismissal is for cause, then the cause must be stated and the pertinent provisions of this section must be met relative to notice and hearing, and review of the decision of the board is under the Administrative Review Act, as provided for in section 24 — 8 of the School Code. Section 24 — 3 contains no provision for review under the Administrative Review Act of decisions of the board to dismiss teachers due to board determination to decrease the number of teachers employed or to discontinue some particular type of teaching; this section, however, does provide for tender to such dismissed teachers of the position in question if it is reinstated within one year. Thus this contention of the defendant must likewise fail.

We conclude that the Appellate Court erred in reversing the judgment of the trial court and the Appellate Court judgment is accordingly reversed, and the judgment of the circuit court is affirmed.

Appellate Court reversed; circuit court affirmed.

Mr. Justice KeingbiEE,

dissenting:

I am compelled to express my objection to what seems to me a clear instance of judicial legislation in the guise of construction. The practice of shaping the meaning of words to accord with ideas of what the legislature should have said, instead of what it did say, must ultimately result in rendering statutory language of such unpredictable, vague import that no course of conduct can be safely undertaken without a prior judicial “interpretation.” The function of language is to convey with as much precision as possible the particular thought or idea. When accepted definitions are judicially disregarded in favor of tortuous, far-fetched and unjustified constructions, this precision is destroyed, making it necessary for persons to1 guess what kind of interpretation a court might decide to put upon common, ordinary words. The particular litigation may be of limited significance, of course, but the delimitizing of meaning goes to the very foundations of the law.

Granting that the legislature is free, within reasonable limits, to define “teacher” without regard to its common meaning, what has it actually done here? It has said merely that a teacher is an employee who is required to be certified “under laws relating to the certification of teachers.” When reference is made to the laws relating to the certification of teachers, in force when this litigation arose, we discover the simple provision that no one shall “teach” who does not hold a certificate. By what rational process is it found that a certification provision which does not mention superintendents, amplifies a definition provision governing, in turn, the scope of the tenure provision, neither of which says anything at all about supervisory personnel ?

The opinion points out that under sections applying to districts of a different class, superintendents are expressly included. But instead of applying the accepted rule in such cases, the court holds that the difference in language evidences an intended identity of meaning! If the legislature had intended to include superintendents or others having some administrative or supervisory duty, nothing would have been simpler than to have said so, as it did in preceding sections. Failure to do- so shows an intention to exclude them.

The provision relied on here provided that no one shall “teach” who is not certified. By subsequent amendment, not applicable here, its scope was expanded to provide that no one shall “teach or supervise” who is not certified. Here, again, by a novel doctrine of interpretation, the difference in language is held evidence of identity of content. If no change was intended, why the amendment ? If teaching is supervising, why specify both in the disjunctive? If a supervisor is a teacher, and if supervising is teaching, the words “or supervise,” as contained in the later amendment, must be pure surplusage. If a superintendent is a teacher, whom does he teach? What subjects does he teach? Section 7-11 makes the superintendent the executive officer of the board, and assigns him the duty to carry out its administrative and executive functions. He is an administrator, not a teacher. In the case at bar the evidence is undisputed that decedent did no teaching, and that his services were solely administrative in character. In the absence of specific statutory direction, supervisory and administrative officers of a school district should not, by a process of judicial construction, be brought within the coverage of provisions in terms applicable only to teachers. Both in law and in practice such positions constitute a class distinct from that of a teacher. As the Minnesota court observed in Eelkema v. Board of Education, 215 Minn. 590, 11 N.W.2d 76, “The character of the services of a superintendent of schools to the district and of his relations to the board is such that it should require a clear declaration of legislative intent to bring him within the continuous employment effected by the tenure act.”

Other statutory provisions referred to in defendant’s brief indicate that the legislature was aware of the distinction between the two types of activity, and that it would have included express provisions had it intended the term “teacher” to refer as well to a supervisor. The Teacher Tenure Law created a new liability on the part of school boards. In such cases the courts will not extend or enlarge the liability by construction, nor will they go beyond the clearly expressed provisions of the statute. (Anderson v. Board of Education, 390 Ill. 412.) In that case we pointed out that "The Teacher Tenure Law clearly creates a new liability where none would otherwise exist; it makes a contract for the parties by operation of the law, where otherwise none would exist.” By a well-reasoned opinion the Appellate Court for the First District, in Biehn v. Tess, 340 Il. App. 140, concluded that the principal of a high school district is not a “teacher,” within the meaning of the Teacher Tenure Law, and I think a similar result is required here. A court cannot properly read into a statute abnormal definitions that are not found therein either by express inclusion or by fair implication (See Anderson v. Board of Education, 390 Ill. 412, 425) ; nor can interpretations contained in administrative announcements or school board journals take the place of legislation.

The legislature may wish at some future time to bring superintendents within the application of tenure provisions. But, on the other hand, there are reasons why it may not wish to do so. As representatives of the people, the board of education is the body charged with the primary responsibility in formulating educational policy and supervising school administration. In order for the board to discharge these responsibilities and be responsive to the wishes of the electorate, it would seem essential that they have the right to choose, in their discretion, the district’s chief executive officer. Otherwise, the board would have duties but lack the necessary means of fulfilling them.

If the decision were predicated upon the estoppel contention I should have refrained from expressing my views. But to base it on the present distortion of terminology has consequences which I feel can only aggravate whatever confusion and uncertainty now exist in the law.

I would affirm the judgment of the Appellate Court.

Mr. Justice HershEy concurs in the foregoing dissenting opinion.


author: Mr. Justice Daily

text:
    (No. 33773.
    James A. Mahoney et al., Appellees, vs. The City of Chicago, Appellant.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      John C. Melaniphy, Corporation Counsel, of Chicago, (L. Louis Karton, and Sydney R. DrEbin, of counsel,) for appellant.
    McCarthy, Toomey & Reynolds, of Chicago, (John E. Toomey, and John M. KavEny, of counsel,) for appellees.
   Mr. Justice Daily

delivered the opinion of the court:

This is an appeal by the city of Chicago from a declaratory judgment of the circuit court of Cook County holding the city zoning ordinance, as amended, unconstitutional and void insofar as it affected certain property belonging to appellees. The trial court has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.

Appellees are the owners of three adjoining lots located at the southeast corner of Laramie Avenue and Jackson Boulevard and have an opportunity to dispose of them to a purchaser who desires to utilize the site for an undertaking establishment. As situated, the lots are in a district zoned for apartment use, said district being bounded on the north by the alley just south of Madison Street, on the east by the alley just west of Cicero Avenue, on the south by the alley just north of Harrison Street, and on the west by Central Avenue. Over all, the distance between Madison and Harrison is eight blocks, and appellees’ lots are located in the center of the district. Within the district above described, the lots along the west side of Laramie are zoned for business use for the full distance between Harrison and Madison, thus we have the situation where Laramie is zoned for apartment use on the east side and for business on the west side. Section 8 of the city’s zoning ordinance, as amended in 1942, prohibits the operation of an undertaking establishment in an apartment district; section 10 permits their operation in a business district.

By their complaint for declaratory judgment, appellees alleged that the limiting of their property to an apartment use, while designating identical property located on the opposite side of the street for business, is an unreasonable and discriminatory exercise of the police power which bears no relation to the public health, safety, morals or welfare, and which serve to deprive them of their property without due process of law. The city denied such allegations and the trial court thereafter heard extensive evidence all of which bore upon the question of whether the divergent zoning classifications on the two- sides of Laramie were reasonable and related to the public good. At the conclusion of the hearing, however, the court predicated its judgment that the ordinance was void in its application to appellees’ property on the ground that the city zoning ordinance, as amended in 1942, effected an arbitrary and illegal classification when it excluded undertaking establishments from apartment districts.

We find nothing unreasonable in the provisions of the zoning ordinance classifying hotels, hospitals, nursing homes, schools, clubs, libraries, museums and certain other uses as permissible in an apartment district but permitting funeral homes to be located only in a business district. We consider the matter of locating funeral homes to be within the legislative discretion, and the propriety of such action to be a debatable question for determination by the city council and not by this court. La Salle Nat. Bank v. City of Chicago, 6 Ill.2d 22.

There remains for determination the question of whether the court’s finding that the ordinance was unreasonable and void in its application to appellees’ property may be sustained on the ground that the city improperly exercised its police power when it zoned the east side of Laramie for apartment use while zoning the west side for business use. There is no dispute as to the facts of the case, the sole problem being what zoning principles are applicable. The west side of Laramie, between Madison and Harrison, is almost exclusively devoted to- business uses, among which are included an auto sales agency, repair shop, beauty and barber shops, taverns, grocery stores, a laundry, a gasoline station and other retail shops. Appellees emphasize that the comer directly across Laramie to the west of their property is used as a gas station, while the corner to the northwest, or diagonally across from their lots, is improved with a supermarket grocery. On the east side of Laramie, except for the extreme corner lots at Madison and Harrison, respectively, the land is either vacant or devoted to various types of residential uses, mostly of recent construction. As situated, these properties are a part of a compact residential area which exends to the east for a distance of three blocks.

To sustain their contention that the diverse zoning on the two sides of Laramie is unreasonable and confiscatory as to their property, appellees rely upon Forbes v. Hubbard, 348 Ill. 166, People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321, Braden v. Much, 403 Ill. 507, Northern Trust Co. v. City of Chicago, 4 Ill.2d 432, and Petropoulos v. City of Chicago, 5 Ill.2d 270, which, in varying degrees, have applied the principle that in zoning some types of territory, a dividing line should not be fixed in such a way as to- make one side of a main artery of travel purely residential where the opposite side is used for business property and has established its character as such. While we are of the opinion that there are many factual distinctions between the present case and those which led to the decisions relied upon, it is sufficient to point out that this court has held in La Salle National Bank v. City of Chicago, 6 Ill. 2d 22, and Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill. 291, that the Forbes decision “is not to be regarded as establishing any hard and fast mle as to the location of dividing lines along streets.” In each of the cases last cited it was held that it was not unreasonable to have different zoning classifications on either side of the streets there involved.

The record in this cause shows that both sides of Laramie in the area in question were originally zoned for commercial use by a comprehensive zoning ordinance adopted by the city in 1923. After a nineteen-year period in which the property on the east side of Laramie failed to develop commercially, that side of the street and the area adjoining it on the east were rezoned for duplex residence use; because of existing uses and the adoption of refinements in zoning classifications, the property on the west side of Laramie was changed to its present business classification. In 1948, the classification of the district, exclusive of the property on the west side of Laramie, was lowered to apartment use. Since 1942 then, Laramie has been the line of demarcation between the business and residential areas, and the evidence shows that, under the protection of such barrier, the area to the east has experienced a rapid and continuing development for residence, duplex and apartment purposes. Based upon the axiom that zoning must begin and end somewhere, it has become a recognized method of zoning to cause streets to serve as the line of demarcation between higher and lower use districts. (Miller Bros. Lumber Co. v. City of Chicago, 414 Ill. 162; Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265.) With regard to such method it is held that mere proximity to the line of demarcation is, of itself, insufficient to show that the ordinance creating it is invalid or discriminatory as to such property. (Wesemann v. Village o f La Grange Park, 407 Ill. 81.) Here appellees base their claim of unreasonableness largely upon the circumstance that property across the dividing line has a different classification. On the other hand Laramie Avenue constitutes a logical physical barrier between the two use districts. If the restrictions on the east side of the street were to be removed as to appellees’ property, the business area on the west side would be allowed to' expand into the residential area, even though the record shows that such expansion is not necessary. In such a manner the protection afforded tO‘ the residential area by making Laramie the line of demarcation would be dissipated and the way opened for further encroachments which, in time, could defeat the purpose of the residential restrictions.

We have held, too, that traffic considerations may sometimes justify different zoning classifications on either side of a street. The evidence here is that both Laramie Avenue and Jackson Boulevard are heavily traveled arteries of traffic and that both are utilized by public bus transportation. We are not told, however, in what manner this should affect or control the zoning of nearby property. It may well be that the public safety and convenience will best be served by keeping the congestion which normally attends a business zone from the residential areas.

Taking into consideration the exclusive residential development which the current zoning classification has effected to the east of Laramie, together with the evidence of traffic conditions, we find no firm basis to say that the city acted arbitrarily or unreasonably when it zoned the two sides of the street differently. This view is strengthened by photographic evidence introduced by both parties which shows a remarkable contrast in the appearance and condition of the opposite sides of the street. One side shows a typical business development; the other a typical and desirable residential area. A change of zoning cannot be justified simply because certain individuals want it, but only because the public welfare demands it. (Dunlap v. City of Woodstock, 405 Ill. 410.) It has also long been held that the judgment of municipal authorities with reference to zoning is conclusive unless it is shown to be arbitrary, capricious and unrelated to the public good, and where there is room for a legitimate difference of opinion concerning the reasonableness of a particular ordinance the finding of the legislative body will not be disturbed. (Jacobson v. Village of Wilmette, 403 Ill. 250.) Under the evidence presented in this record, we think the most that can be said of the question of whether appellees’ property should be characterized as business or residential apartment is that it is fairly debatable and is a question to be resolved by the city council and not the courts. (Cf. La Salle National Bank v. City of Chicago, 6 Ill.2d 22.) It is our opinion that appellees have failed to sustain their burden of proving that the ordinance, as it applies to> their property, is arbitrary and unreasonable, or unrelated to the public welfare; thus we find no basis to disturb the legislative judgment of the city.

As a further basis for the invalidity of the ordinance appellees argue at length that their property would be more valuable if zoned for business purposes. While the extent to which property values are changed by zoning regulations is a proper consideration in determining the validity of the regulation, the gain that would accrue to individual property owners if the zoning restrictions were removed must be weighed against the detriment to the public welfare that would result from such action. If the gain to the public is small when compared with the hardship imposed upon individual property owners, no valid basis for an exercise of the police power exists. Where, however, it is shown that the restrictions imposed by such a regulation protect the health, safety and welfare of the public, they must be sustained even though private interests are to some extent impaired. (Evanston Best & Co. v. Goodman, 369 Ill. 207, 211; Neef v. City of Springfield, 380 Ill. 275.) In this case appellees have not sustained their burden of showing that the zoning of their property is arbitrary or unreasonable, or that it has no relationship to the public good. This being so, the profit which appellees might realize through a change of zoning, must give way to the public benefits to be realized by. leaving the zoning unchanged.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.


author: Mr. Justice SchaepEr

text:
    (No. 34128.
    The People of the State of Illinois, Defendant in Error, vs. Judson Griffin et al., Plaintiffs in Error.

      Opinion filed September 26, 1956.

   Mr. Justice SchaepEr

delivered the opinion of the court:

In 1953, Judson Griffin and James Crenshaw were co-defendants to an indictment for armed robbery in the criminal court of Cook County. They were convicted and sentenced to the penitentiary. They filed in the trial court a motion requesting that they be furnished copies of the common-law record and of the transcript of proceedings without cost. The motion was denied. Thereafter, they filed a petition under the Post-Conviction Hearing Act which alleged that failure to furnish the stenographic transcript of proceedings at the trial violated sections 2 and 19 of article II of the constitution of Illinois, and denied them due process and equal protection of the law under the fourteenth amendment to the Federal constitution. The trial court dismissed this petition and this court affirmed the dismissal on the ground that it presented no substantial constitutional question. The Supreme Court granted certiorari and vacated the judgment of this court. Griffin v. Illinois, 351 U.S. 12, 100 L. ed. 891.

The cases are again before us on the mandate of the Supreme Court which remanded the cause for further action not inconsistent with the following paragraph of the opinion of Mr. Justice Black: “The Illinois Supreme Court denied these petitioners relief under the Post-Conviction Act because of its holding that no constitutional rights were violated. In view of our holding to the contrary the State Supreme Court may decide that petitioners are now entitled to a transcript, as the State’s brief suggests. See Ill. Rev. Stat, 1955, c. 37, 163f Cf. Dowd v. United States ex rel. Cook, 340 U. S., at 209-210. We do not hold, however, that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders’ bills of exceptions or other methods of reporting trial proceedings could be used in some cases. The Illinois Supreme Court appears to have broad power to promulgate rules of procedure and appellate practice. We are confident that the State will provide corrective rules to meet the problem which this case lays bare.”

So far as the present petitioners are concerned, disposition is not difficult. We were in error in holding that no constitutional question of substance was presented. The judgment of this court is therefore vacated and the cause is remanded to the criminal court of Cook County with directions to vacate its judgment in the post-conviction proceeding. The constitutional objection, however, is one which does not affect the judgment of conviction, and that judgment need not be disturbed. The trial court will enter an order directing the court reporter to transcribe his notes in full and to deliver a copy of the transcript to each of the petitioners without charge. Petitioners may then proceed in accordance with the rules of this court.

The impact of the decision of the Supreme Court of the United States is not, of course, confined to these petitioners. The net of that court’s holding is that since Illinois provides a full review of all errors alleged to have occurred in the course of a criminal trial at the instance of a defendant who brings before the reviewing court a transcript of the proceedings at the trial, Illinois violates the equal-protection clause of the fourteenth amendment (and perhaps the due-process clause as well) when it denies such a review to one who cannot afford to pay the court reporter for writing up the transcript. The scope of the decision is thus not limited to the case of the petitioners.

As to the future, the proper course is clear. Twenty-nine states provide free transcripts as of right to indigents convicted of noncapital crimes. (Griffin v. Illinois, 351 U.S. at 33, 100 L. ed. at 906.) That this course is highly desirable has long been apparent. The decision of the Supreme Court now makes it imperative.

Accordingly, on June 19, 1956, this court adopted Rule 65 — 1, which relates to persons sentenced after April 23, 1956, (the date of the decision in Griffin v. Illinois,) and which provides that upon a showing of indigence such persons shall be entitled to a copy of the transcript at the expense of the State.

As to the past, the problem has been more difficult. The doctrine announced in Griffin v. Illinois was not foreshadowed by earlier rulings. Certiorari had been denied by the Supreme Court in earlier cases which presented the identical issue. The dissenting justices in the Supreme Court pointed out that the opinion of Mr. Justice Black, in which the Chief Justice, Mr. Justice Douglas and Mr. Justice Clark concurred, “is not limited to the future. It holds that a past as well as a future conviction of crime in a state court is invalid where the State has failed to furnish a free transcript to an indigent defendant who has sought, as petitioner did here, to obtain a review of a ruling that was dependent upon the evidence in his case.”

This aspect of the case prompted Mr. Justice Frankfurter to urge that the prospective character of the decision of the court should be recognized, in the manner sanctioned in Great Northern Ry. Co. v. Sunburst Oil and Refining Co. 287 U. S. 358, 363-366. But the suggestion does not appear to have been explicitly approved in any of the other opinions in the case.

We have considered the applicability of doctrines of waiver. Our rules require that reports of proceedings at the trial be presented to the trial judge for approval within 100 days from the entry of judgment, or within an extended period fixed by the trial judge. It could be held that a prisoner who did not request a free transcript within the time so fixed has waived his right. But waiver assumes knowledge, and we are unwilling to hold, under the circumstances of this case, that the constitutional rights of prisoners have been waived. As pointed out by Mr.'Justice Frankfurter, “It would be an easy answer that a claim that was not duly asserted — as was the timely claim by these petitioners — cannot be asserted now. The answer is too easy. Candor compels acknowledgment that the decision rendered today is a new ruling. Candor compels the further acknowledgment that it would not be unreasonable for all indigent defendants, now incarcerated, who- at the time were unable to pay for transcripts of proceedings in trial courts!, to urge that they were justified in assuming that such a restriction upon criminal appeals in Illinois was presumably a valid exercise of the State’s power at the time when they suffered its consequences. Therefore it could well be claimed that thereby any conscious waiver of a constitutional right is negatived.” 351 U.S. at 25, 100 L. ed. at 902.

The same considerations militate against the view that a prisoner who had pursued his remedy under the Post Conviction Hearing Act, but did not raise the present issue, is now barred by res judicata.

Accordingly we have amended our Rule 65 — 1 to provide for the furnishing of transcripts, if they can be procured, to indigent prisoners at the expense of the State. In the case of prisoners sentenced prior to- April 23, 1956, the provisions of Rule 65 with respect to the time within which reports of proceedings at the trial are required to be presented are made inapplicable, and when the transcript has been furnished the cases will be reviewed upon petition for a writ of error. The procedure will be as provided for the review of judgments in post-conviction cases.

The judgment of the criminal court of Cook County is vacated, and the cause is remanded to that court for further proceedings in accordance with this opinion.

Judgment vacated and cause remanded.


author: Mr. Justice Hershey

text:
    (No. 33836.
    The People of the State of Illinois, Defendant in Error, vs. Lee Magnafichi, Plaintiff in Error.

      Opinion filed September 25, 1956.

    Charles A. Bellows, of Chicago, for plaintiff in error.

      Latham Castle, Attorney General, of Springfield, and August B. Black, State’s Attorney, of Morris, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Hershey

delivered the opinion of the court:

After a jury trial in the circuit court of Grundy County the defendant, Lee Magnafichi, was found guilty of burglary and sentenced to a term of not less than 15 nor more than 30 years in the penitentiary.

On this writ of error, he contends that the State failed to prove him guilty beyond a reasonable doubt and that the trial court made erroneous rulings.

The defendant was charged with burglarizing the Veterans of Foreign Wars club rooms in Morris on May 23, 1953. The prosecution rests upon the testimony of four people who were at the club while the alleged burglary was committed (Bernard Wardinski, Kenneth Johnson, Mrs. Kenneth Johnson, and Calvin Westphal,) and three others who testified to circumstances said to be related to the crime (Frank Hanson, Arthur Olson, and Austin Gaylord).

Bernard Wardinski said he opened the club on May 23, 1953, at around 12:10 P.M., and shortly after 12:30 P.M. was there with Mr. and Mrs. Kenneth Johnson. At that time a stranger walked in, pulled a revolver, told the three to “freeze,” cautioned Mrs. Johnson to sit still and ordered Johnson to “hit the floor.” Afterward, he began directing them to the men’s wash room, and as he was doing so two other strangers entered, one through the front door and the other from the rear. As one of the men opened the wash room door to check on the parties, Wardinski saw another of them going through the cash register. And while he was confined in the wash room he heard a noise outside that sounded like the tail gate on a big truck being dropped or the dragging of chains. Calvin Westphal, another member of the V.F.W. club, arrived while the burglars were still there, and he too was put in the wash room. One of the men asked Wardinski to open the safe, and after the latter said he did not know the combination, he was locked in the boiler room. He remained there until after the burglars had gone. He discovered that about $150 had been taken from the cash register.

Wardinski testified at a preliminary hearing before a justice of the peace, at which the defendant was also present. But he was unable to identify the defendant as one of the men involved in the burglary.

Kenneth Johnson’s testimony was substantially the same as that of Wardinski, and he was also unable to identify the defendant as one of the burglars.

Mrs. Johnson corroborated the other two witnesses, and she too was unable to identify the defendant as one of the three.

Calvin Westphal arrived at the V.F.W. while the burglars were still there, after parking his car with the keys in it in front of the club. One of the men asked him for the keys to his car and Westphal said they were in it. Then he was ordered to the wash room with the others. A short time later Westphal heard the front door slam and he immediately ran to the front. He saw that his own car was gone and noticed a blue Oldsmobile parked across the streeet. He also observed a dark scrape mark on the sidewalk next to the building. This witness likewise was unable to identify the defendant as one of the burglars.

These four were the only eyewitnesses to the burglary, and none of them connected the defendant with the crime.

The State also called Frank Hanson who said that he did see the defendant at around 1 :oo P.M. on the day in question, standing on the sidewalk about one-half block from the club rooms. As he watched, a blue Oldsmobile drove up and the defendant got in.

Arthur Olson, the chief of police, testified that he went to the club rooms at about 1 :oo P.M. and interviewed Wardinski, Westphal, and Mr. and Mrs. Johnson. He checked on the blue Oldsmobile parked across the street and found that the universal joint at the end of the drive shaft was broken and the shaft was hanging to the ground. He also found fresh scrape marks in the alley adjacent to the club. He had the car towed to the police station, and that same night the defendant came with a tow truck to pick it up. When asked about the car, the defendant said it belonged to his sister, that he had borrowed it, and that it had broken down in Morris. The police found a zipper bag in the car which contained several pairs of pliers, screwdrivers, a hammer, and a crescent wrench. Over the objections of defendant, these items were introduced in evidence.

In an attempt to link the defendant with the crime, the State called Austin Gaylord, who was the proprietor of a hardware store across from the club. At some time between 12:3o and 1 :oo P.M. on the day of the burglary, he saw a blue Oldsmobile drive up to the alley adjacent to the club and saw two men get out of the car, go toward the club building, and “apparently enter.” He then saw another man get out of the car, after which he heard a scraping noise and a “little thud.” A short while after that, the two men returned and started to get in the car. But the car would not start, so the three of them pushed it. They pushed it out on the street, and then turned the wheels and brought it into a parking zone in front of Gaylord’s store. After transferring things within the car, they walked á-round it and “back and forth,” locked the doors and trunk, and walked across and up the street. The witness said the defendant looked like one of the three men.

The defendant offered no evidence on his own behalf.

As appears from the foregoing summary, the State’s case is based entirely upon circumstantial evidence, and for the most part rests upon the testimony of Austin Gaylord.

To justify a conviction, circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that the accused committed the crime. Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand. People v. Taylor, 410 Ill. 469; People v. Widmayer, 402 Ill. 143; 15 I.L.P., Criminal Law, sec. 912.

This record is almost totally lacking in any probative evidence of guilt. In the first place, the four eyewitnesses did not identify the defendant as one of the burglars. Moreover, the only circumstantial evidence that links him in any way to the burglary was Gaylord’s testimony, which was neither strong by itself nor consistent with other facts of record.

Gaylord was unable to state definitely that the two men entered the club. He said they went toward the building and “apparently entered.” He never noticed the third man, who he said looked like the defendant, walk toward or enter the club. Gaylord’s version was that the two men returned to the car, and then the three of them spent time in pushing it, arranging its contents, walking back and forth, and locking the car doors and trunk before they walked away. However, the other witnesses speak of three men committing the burglary and of hearing the scraping noise (presumably caused by the broken shaft) during the course of the burglary. And Westphal, who ran to the front door immediately after the burglars departed, said his own car was missing and the burglars were not around. It is impossible to reconcile the testimony of Westphal with that of Gaylord.

Assuming that the two men who got out of defendant’s car, as related by Gaylord, were indeed the burglars, and that they burglarized the club knowing the car was disabled, it would be very unlikely that they would walk back from the club after the burglary and do those time consuming things which the witness speaks of. And this hypothesis is rendered all the more untenable by the testimony of Westphal that he rushed to the front door after he heard the door slam but did not see the burglars. During this brief interval the three men would scarcely have had time to do those things which Gaylord said they did. Or if we assume, on the contrary, that the parking of the car was all done before the burglary and that the three men, after parking the car, walked across the street and then burglarized the club, we are faced with conflicts in Gaylord’s testimony and are confronted by the testimony of Wardinski and Mr. and Mrs. Johnson who said they heard the thumping and scraping sound, (apparently the drive shaft hitting the ground,) while they were in the wash room and the burglary was in progress.

The State seems to contend, in its brief, that it was for the defendant to explain his presence in Morris at the time of the crime, and his failure to give an account of himself and to produce as witnesses his two alleged companions establishes his guilt. But no rule is more firmly settled than that a defendant in a criminal case is not bound to prove himself innocent, but the State must prove him guilty beyond a reasonable doubt, the defendant being presumed innocent. An accused is entitled to rely upon this presumption, and if the evidence of the State fails to establish guilt, as we believe it fails to do in this case, the defendant need not introduce any evidence.

Since the State failed to establish the guilt of the defendant, the judgment of conviction must be reversed, and it is not necessary that we consider the other assignments of error. Moreover, since it does not appear that there are witnesses available other than those who have already testified, the cause will not be remanded for a new trial. People v. Sheppard, 402 Ill. 347; People v. Bradley, 375 Ill. 182.

Judgment reversed.


text:
    (No. 33845.
    The People of the State of Illinois, Defendant in Error, vs. Darrell Bilderback, Plaintiff in Error.

      Opinion filed September 25, 1956.

    Paul E. Thurlow, of Joliet, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and Martin J. Corbell, State’s Attorney, of Vandalia, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Schaeeer

delivered the opinion of the court:

The problem here is one of statutory construction. Darrell Bilderback was indicted in the circuit court of Fayette County for the crime of assault with intent feloniously to escape from the Illinois State Farm at Vandalia. He pleaded guilty and was sentenced to the penitentiary for a term of not less than seven nor more than twelve years. The case is here on writ of error, and the question presented is the propriety of the judgment in view of the statutory change which took place between the commission of the offense and the judgment of conviction.

The offense occurred on July 9, 1951. At that time section 5 of the State Farm Act provided: “Whoever being a prisoner at the Illinois State Farm escaped [sic] therefrom is guilty of a felony and upon conviction shall be imprisoned in the penitentiary not less than one year nor more than ten years.” (Ill. Rev. Stat. 1949, chap. 118, par. 18.) Defendant was not indicted for escape from the State farm, but was indicted and. sentenced for an assault under section 23 of division I of the Criminal Code: “An assault with an intent to commit murder, rape, mayhem, robbery, larceny, or other felony, shall subject the offender to imprisonment in the penitentiary for a term of not less than one year nor more than fourteen years.” (Italics supplied.) Ill. Rev. Stat. 1955, chap. 38, par. 58.

Defendant was indicted on August 31, 1951. He pleaded guilty and was sentenced the same day. In the interim between the offense and the judgment, section 5 of the State Farm Act had been amended to read as follows: “Whoever being a prisoner at the Illinois State Farm escapes therefrom or escapes while in the custody of an employee of the farm shall be imprisoned either in the county jail for not more than one year or in the penitentiary not less than one year nor more than ten years.” (Laws of 1951, p. 1971; Ill. Rev. Stat. 1955, chap. 118, par. 18.) The amendment became ■effective on August 2, 1951, when it was approved by the Governor. (Weil-McLain Co. v. Collins, 395 Ill. 503.) By authorizing the alternative punishment of imprisonment in the county jail, the amendment changed the offense of escape from the Illinois State Farm from a felony to a misdemeanor. Ill. Rev. Stat. 1955, chap. 38, pars. 585, 586; People v. Bain, 359 Ill. 455, 470.

Until the amendment, escape from the Illinois State Farm was a felony, and an assault with intent to escape was therefore, in the language of section 23 of division I of the Criminal Code, “An assault with intent to commit * * * felony.” After the amendment, such an assault was no longer an assault with intent to commit a felony. While the Criminal Code defines an assault, (Ill. Rev. Stat. 1955, chap. 38, par. 55,) and fixes the penalty for assault with intent to commit a felony, (Ill. Rev. Stat. 1955, chap. 38, par. 58,) it contains no general provision with respect to assault with intent to commit a misdemeanor. Assault with intent to commit larceny has been held to fall within section 23 of division I of the Criminal Code, although larceny may be either a felony or a misdemeanor depending upon the value of the property taken. (Kelly v. People, 132 Ill. 363; cf. People v. Dogoda, post. 198, decided this day.) But larceny is one of the offenses specifically mentioned in the section, whereas the present offense is included only because it falls within the clause, “or other felony.”

The net of it is that while defendant’s act was a felony when it was committed, the offense of which he was com victed no longer existed when he pleaded guilty and was sentenced. The amendment contained no saving clause as to offenses previously committed. In this situation at common law there would have been no doubt as to the result, for when a penal statute was repealed all prosecutions under it which had not reached final judgment were abated. United States v. Chambers, 291 U.S. 217.

The People argue, however, that section 4 of the Statutory Construction Act (Ill. Rev. Stat. 1955, chap. 131, par. 4,) requires a different result. That section provides: “No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.”

Upon its face this statute would seem to dispose of the problem for there was here an “offense committed against the former law” which is not to be affected by the repeal. There are, however, two decisions which suggest a contrary view. One of them, People ex rel. Eitel v. Lindheimer, 371 Ill. 367, involved the effect of the repeal of a section.of the Revenue Act which provided that taxes paid on an excessive valuation of property should be refunded or credited upon subsequent taxes. This section was enacted in 1934 and expressly repealed in 1935. The relators sought to secure refunds or credits after the repeal. The court held that the taxpayers had no vested right to a refund or credit, and that “The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them.” (371 Ill. at 373.) The court then considered the effect of section 4 of the Statutory Construction Act and said: “Where the legislature passes a repealing act and nothing is substituted for the act that is repealed, the effect is to obliterate such statute as completely as if it had never been passed. (Merlo v. Johnston City and Big Muddy Coal Co. [258 Ill. 328].) The holdings that such a repeal wipes out all remedies under the prior statute and leaves the parties where the repeal finds them, (People v. Clark, [283 Ill. 221,] and other authorities above cited,) necessarily makes the repealing act retrospective. The intent of the legislature that it should be so is manifest from the nature of the absolute repeal, which is quite different from an act which shows an intent to continue or only to change a remedy or penalty under a former statute.” 371 Ill. at 375.

The result reached in the Lindheimer case was sound enough under our decisions dealing with “special remedial statutes” and procedural matters, (cf. Orlicki v. McCarthy, 4 Ill.2d 342; see note, 45 Ill. L. Rev. 109,) but the two cases relied upon do not support the statements made as to the effect -of the Statutory Construction Act. Merlo v. Johnston City and Big Muddy Coal and Mining Co. 258 Ill. 328, involved the effect of a revision of the law applicable to coal mines. The question was whether or not the revised statute, which contained no saving clause, extinguished rights of action under the earlier act which was repealed. Relying upon the Statutory Construction Act, the court held that the right of action was saved despite the repeal. The statement attributed to the Merlo opinion was indeed used by the court in that case, but it was used in describing the rule at common law which the Statutory Construction Act was designed to change. The other case relied upon, People ex rel. Foote v. Clark, 283 Ill. 221, did not mention the Statutory Construction Act.

The other case which suggests that section 4 of the Stautory Construction Act is not applicable is People v. Speroni, 273 Ill. App. 572. There the Appellate Court held that the conviction of a defendant who had sold intoxicating liquor in violation of the Illinois Prohibition Act must be reversed when that act was repealed while the case was pending in the Appellate Court. In reaching that result the court emphasized the wording of section 4, pointing out that the section begins with the words, “No new law shall be construed * * *” and that it provides “that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.” Emphasizing these portions of the statute, the court concluded that the section “is intended to apply only to new acts of legislation amending existing acts, or to subsequent legislation which by repugnant provisions therein repeals or changes certain portions of an existing act. We do not believe that this section contemplates a complete extinction of an old act, without any new or subsequent legislation created to take its place.” This conclusion of course wholly disregards the last sentence of section 4: “This section shall extend to all repeals either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.”

Other decisions of this court have expressed a contrary view of the language relied upon by the Appellate Court in the Speroni case. In Mullinix v. People, 76 Ill. 211, the defendant was indicted for selling intoxicating liquor to “a person in the habit of getting intoxicated.” He was prosecuted under the act of 1872 which had been repealed by the statutory revision of 1874. The court said: “The 4th section of this latter statute, [the Statutory Construction Act] in express terms, saves and reserves the rights which have accrued under a repealed statute, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued. Hence the repeal of the former liquor law in nowise affected the people’s right to prosecute for penalties incurred under that act, until barred by limitation.” See, also: Farmer v. People, 77 Ill. 322; People v. Nordenberg, 362 Ill. 347.

The course of decision under section 4 of our Statutory Construction Act has not been smooth. (See note, 45 Ill. Law Rev. 109; cf. Orlicki v. McCarthy, 4 Ill.2d 342.) Whether the repeal of a statute is to operate retroactively is a problem difficult of generalized solution. Nor are the difficulties confined to Illinois. See note, 55 Col. L. R. 1040; Levitt, Repeal of Penal Statutes, 9 A.B.A.J. 715; Seeman,-Retroactive Bffect of Repeal Legislation, 27 Ky. L. J. 75-

The common-law rule operated unsatisfactorily. Under it the effect of the repeal depended upon the fortuitous circumstances of the apprehension and conviction of the defendant. If two men committed the identical crime on the same day, whether they were punished would depend upon when they were apprehended, and when their judgments of conviction, upon appeal or otherwise, became final. The reaction against the common-law rule took the form of generalized statements of legislative intention, like our section 4. They produce their own anomalous results. When a newer social view decides that certain conduct is no longer to be punished, the general statute steps in and imposes the punishment fixed by an earlier generation. Yet if the legislature has taken the lesser step of reducing the punishment, the criminal has the benefit of the new policy. So cases like Speroni are hard cases that put a great stress upon a general construction statute. Such a statute is at best the statement of a present legislature as to the intention of a future one. It is so easy to show that the statute, when applicable, has often been overlooked by lawyers and judges that it is hard to believe that legislators have always had it in mind. Without looking beyond our own borders, it is clear that here, at least, such a statute has not been an effective substitute for individualized statements of legislative purpose.

In the case at hand, solution is not complicated by doubt as to what the General Assembly intended. The present statutory situation is the coincidental result of the combined effect of the statutory definition of a felony plus the change in the punishment for escape from the State Farm. Nowhere in the combination of circumstances out of which this problem arose is there a suggestion that the legislature was expressing its purpose that conduct which took place before the statutory change should no longer be criminal. No thought of a general pardon for those who had committed the offense here involved can be distilled from the circumstances of this legislative change. The case falls squarely within the terms of the Statutory Construction Act, and the judgment was correct.

Judgment affirmed.


author: Mr. Justice HershEy

text:
    (No. 33701.
    H. Kohnstamm & Co., Appellee, vs. The Department of Revenue et al., Appellants.

      Opinion filed September 25, 1956.

      Latham Castle, Attorney General, of Springfield, (William C. Wines, Raymond S. Sarnow, A. Zola Groves, and Samuel A. Kanter, of counsel,) for appellants.
    Michael M. Phillips, of Chicago, for appellee.
   Mr. Justice HershEy

delivered the opinion of the court:

This case involves the taxability under the Illinois Retailers’ Occupation Tax Act of one who sells soap and chemicals to laundries. It arose on an action for refund, in which the circuit court of Cook County sustained the taxpayer’s claim as to all items borne by it, the .remainder being waived here by failure to file a cross appeal. From the judgment for the taxpayer, allowing $20,571.25 out of the total $35,821.53 refund claimed, the State appeals.

The taxpayer sells all laundry and dry cleaning supplies other than machinery and equipment, but particularly soap and chemicals. It sells to laundries, where the soap and chemicals are used in laundering items brought or sent in by owners of clothing. Alkali, stain remover, sour, bluing, other chemicals, and rinses are used as well as soap. These items are not preserved or recovered, but go mainly down the drain, although an “infinitesimally small amount” is left in or on the clothing. No sales to self-service laundries are involved, and none of the laundries buying from this taxpayer make any special charge for soap to the owners of the clothing laundered.

The taxpayer does not contend that the laundries resell the soap to the clothing owners, but only that the latter use or consume the soap. On these facts, then, was the tax properly imposed?

The Illinois Retailers’ occupation tax is not a privilege tax on the consumer, a property tax on the goods, or a sales tax on the transaction. It is a tax on the business of selling tangible personal property at retail — that is, for use and consumption and not for resale. (See Herlihy Mid-Continent Co. v. Nudelman, 367 Ill. 600; Material Service Corp. v. McKibbin, 380 Ill. 226; Ingersoll Milling Machine Co. v. Department of Revenue, 405 Ill. 367; Burrows Co. v. Hollingsworth, 415 Ill. 202.) While taxability thus involves several questions, the only issue here is whether the sale was for use and consumption.

We are of the opinion it was. For the use and consumption involved is that of the laundries themselves, who use the soap in their laundry process. The clothing owner never handles, touches, or even sees the soap. It is down the drain long before he has his clothes back, and only an “infinitesimally small amount” remains with the clothing.

On these facts, we find Acme Printing Ink Co. v. Nudelman, 371 Ill. 217; Smith Oil and Refining Co. v. Department of Finance, 371 Ill. 405, and Robertson Products Co. v. Nudelman, 389 Ill. 281, persuasive, as cases in which the printer, iron foundry, and hotel keepers, respectively, “used” the printer’s ink, core oil, and paper articles and soap, even though their customers derived some benefits therefrom. The sellers of these items to the printer, foundry and hotel were held to have sold for use and consumption and not for resale.

In the Robertson case, the taxpayer sold soap and various paper products, such as napkins, towels, drinking cups and toilet tissue, to hotels and others who furnished them as part of the service to patrons, tenants or guests. While the hotel guest actually used the items, still “the use is no less the use by the hotel, for it is generally recognized that such articles are to be furnished by the hotel as a standard method of doing its business just as the carpets on the floor and the pictures on the wall are furnished.” (p. 286.) In short, the use and consumption, for tax purposes, was that of the hotel owner in rendering a hotel service.

Certainly if the individual use of soap by a hotel guest does not render a sale to the hotel nonretail, the use claimed in the instant case, that of the laundry customer, is far less an ultimate use. For here, as pointed out, the clothing owner does not see or touch the soap, and it is not trans- ' ferred to him as a part of his clothing. This, therefore, must be considered a use and consumption by the laundry, with the customer receiving only the return of his clothes in a clean and renovated condition as a result of the laundry service, a service in which the laundry used and consumed the soap it bought from the taxpayer.

The cases cited by the taxpayer may be distinguished. The sales there were to persons or institutions for at least a physical transfer of the property in its existing form to others. See Mallen Co. v. Department of Finance, 372 Ill. 598; Stolze Lumber Co. v. Stratton, 386 Ill. 334; Huston Brothers Co. v. McKibbin, 386 Ill. 479; Burrows Co. v. Hollingsworth, 415 Ill. 202.

In the Mallen case, the medical supplies and drugs were sold by the taxpayer to physicians, hospitals and sanitariums, who in turn sold or transferred the items to patients who themselves made use of them. The matter was treated by the court as similar in nature to the resale of eyeglasses to an optical patient. In the Stolse case, the use of the contractor who purchased from the taxpayer was not viewed as the ultimate use, for the contractor made a physical transfer to the home owners who were the ultimate users of the goods. The Huston case, decided the same day, was controlled by the Stolse case, the court again stressing the nontaxability of sales for transfer to others.

In the Burrows case, the matter of the physical transfer by the taxpayer’s purchaser was refined to distinguish between transfers to paying patients and charity patients — in essence, a distinction based not so much on the use and consumption aspect as on the resale aspect.

In all these cases, the physical transfer by the taxpayer’s purchaser to others who made the ultimate use rendered the taxpayer not liable for a tax measured by such transactions. Such a transfer is not present in the case now before us.

The taxpayer here also argued for affirmance on the ground that the only issue properly raised by the Department’s tentative denial of its claim for refund and by the Department’s notice of hearing was whether there was a compliance with section 6 of the Retailers’ Occupation Tax Act. (Ill. Rev. Stat. 1953, chap. 120, par. 445.) This, it is urged, limits the inquiry to whether the taxpayer bore the tax for which a refund is asked.

However, in its original claim for refund, the taxpayer based his request on the following: “The amount of taxes covered by this claim was paid under mistake of fact or error of law, upon gross receipts from sales of soaps, laundry supplies, etc. sold to laundries, cleaners and dyers, etc., who in turn transferred said items incidental to the rendering of their services. • The sales of these items were not made by the taxpayer to an ultimate user or consumer.” In its tentative denial, the Department not only asserted that section 6 had not been complied with, but also that there was a “lack of sufficient proof that other provisions of the said Act do not apply.” Then, at the hearing, the taxpayer undertook to show that he had borne the tax and that the transactions involved could not measure a tax since the purchasers did not use or consume the items sold. There was evidence submitted by both parties on each of these issues, and it is clear that both matters were properly raised and considered.

The judgment allowing the borne portion of the taxpayer’s claim is reversed, and the cause is remanded with directions to enter judgment against it as to the whole of the refund claimed.

Reversed and remanded, with directions.