author:
Mr. ChiEP Justice Hershey
      Mr. Justice Schaefer,

text:
    (No. 33696.
    The People of the State of Illinois, Defendant in Error, vs. Marven E. Riggins, Plaintiff in Error.

      Opinion filed January 19, 1956
    Rehearing denied March 21, 1956.

      Schaefer, Maxwell, and Klingbiel, JJ, dissenting.
    Berry & Simmons, of Rockford, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and Robert R. CanpiEld, State’s Attorney, of Rockford, (Ered G. Leach, and George W. Schwaner, Jr., of counsel,) for the People.
   Mr. ChiEP Justice Hershey

delivered the opinion of the court:

The defendant, Marven E. Riggins, was indicted in the circuit court of Winnebago County for embezzlement. (Ill. Rev. Stat. 1953, chap. 38, par. 210.) After a verdict of guilty by a jury, the court sentenced him to a term in the penitentiary of not less than two nor more than seven years.

The defendant argues for reversal on the ground that as operator of a collection agency he was an independent businessman, who at no time acted as “agent” for the complaining witness, Dorothy Tarrant, within the meaning of this embezzlement statute. However, he insists that even if he is wrong in this contention, he is still entitled to a new trial.

We consider initially the defendant’s argument that he was not a member of a class designated by the statute. Only that evidence relevant to this question is stated.

At the time of the indictment (January, 1955), the defendant was the owner and operator of a collection agency in Rockford, called the Creditors Collection Service, and had been so engaged for about five years. He maintained an office, had both full and part-time employees, and during 1953 and 1954 had a clientele of some 500 persons and firms for whom he collected delinquent accounts.

In February, 1953, he called on the complaining witness, Dorothy Tarrant, who operated a firm known as Cooper’s Music and Jewelry. He said he was in the collection business and asked to collect the firm’s delinquent accounts. As a result, they reached an oral agreement whereby the defendant was to undertake the collections.

By this agreement, the defendant was to receive one third on city accounts and one half on out-of-city accounts. It was further agreed that he need not account for the amounts collected until a bill was paid in full, at which time he was to remit by check.

There is a conflict in the evidence as to whether the defendant was to give a check for the whole amount collected and then receive his commission, or whether he was authorized to- deduct his commission and account only for the net amount due.

It was further agreed that the defendant would be liable for court costs in the event he chose to file suit on any of the accounts, but the first money collected was to be applied to those costs. If no collection was made, however, the defendant was to stand the loss.

The parties operated under this agreement for almost two years. During that time the complaining witness exercised no control over the defendant as to the time or manner of collecting the accounts, and with her knowledge he commingled funds collected for all his clients in a single bank account. He also used this as a personal account, from which he drew for business, family and personal expenses.

In October, 1954, the complaining witness became aware that the defendant had collected several accounts for her in full, but had not accounted to her. She discussed the matter with him, and he assured her that he would bring his records up to date and pay what was due. After the defendant defaulted on this promise, she made further investigations and discovered new breaches of the agreement. She had further discussions with him and received additional promises to pay up, none of which were kept. Negotiations were terminated December 14, 1954, when the defendant filed a bankruptcy petition listing Cooper’s Jewelry and Music, among others, as a creditor. Thereafter, the complaining witness preferred the charges against the defendant which resulted in his indictment and conviction for embezzlement.

To decide whether the defendant, a collection agent, can be guilty of embezzlement in Illinois, it is helpful to consider our embezzlement statutes in the historical context of this crime.

Embezzlement, unknown at common law, is established • by statute, and its scope, therefore, is limited to those persons designated therein. (People v. Preble, 316 Ill. 233; 29 C.J.S., Embezzlement, sec. 13.) The general objective of embezzlement statutes is to meet and obviate certain defects in the law of larceny through which many persons who misappropriated another’s property escaped criminal prosecution. (18 Am. Jur., Embezzlement, sec. 2.) Thus, the Illinois statutes which make embezzlement a felony state that the violator “shall be deemed guilty of larceny.”

Viewed in their entirety, our laws relating to embezzlement are broad and comprehensive. The following persons are included in those statutes making the crime of embezzlement a felony: “Whoever embezzles or fraudulently converts to his own use” (Ill. Rev. Stat. 1953, chap. 38, par. 207) ; “a clerk, agent, servant or apprentice of any person” (par. 208); “any banker or broker, or his agent or servant, or any officer, agent or servant of any banking company, or incorporated bank” (par. 209) ; “any clerk, agent, servant, solicitor, broker, apprentice or officer * * * receiving any money * * * in his fiduciary capacity” (par. 210) ; public officers (par. 214) ; administrators, guardians, conservators and other fiduciaries (par. 216) ; and certain members and officers of fraternal societies (par. 218).

In addition, certain sections of the Criminal Code make the crime of embezzlement a misdemeanor and cover the following: “any warehouseman, storage, forwarding or commission merchant, or other person selling on commission, or his agent, clerk or servant” (par. 212) ; “any attorney at law, justice of the peace, constable, clerk of a court, or other person authorized by law to collect money.” (par. 213).

In this instance, we are particularly interested in the general embezzlement statute (par. 208,) and the special statute under which defendant was indicted (par. 210). The former, applying to “any clerk, agent, servant or apprentice of any person,” was originally enacted in 1827, and has existed in its present form since 1874. The latter, however, refers to “any clerk, agent, servant, solicitor, broker, apprentice or officer * * * receiving any money, * * * in his fiduciary capacity” and was not passed until 1919. For present purposes, this latter enactment is very significant, for it also provides as follows: such' person “shall be punished as provided by the criminal statutes of this state for the punishment of larceny, irrespective of whether any such officer, agent, clerk, servant, solicitor, broker or apprentice has or claims to have any commission or interest in such money, substitute for money, or thing of value so received by him.” (Italics added.)

In Commonwealth v. Libbey, 11 Metcalf (Mass.) 64, decided in 1846, it was held that a collecting agent, who followed that as an independent business and who had the right to- commingle funds, could not be convicted as an “agent” under a general embezzlement statute. This was predicated on the idea that he had a joint interest in the property said to be embezzled. This doctrine was later applied in other jurisdictions, (see, for example, State v. Kent, 22 Minn. 41, and State v. McClane, 43 Tex. 404,) and was recognized as valid elsewhere. Clark v. Commonwealth, 97 Ky. 76, 29 S.W. 973, 16 Ky. L. R. 703; State v. Lanyon, 83 Conn. 449, 76 Atl. 1095. Cf. State v. Sarlls, 135 Ind. 195, 34 N.E. 1129.

Similarly, a 1903 decision of this court reversed the conviction of an agent who was employed to solicit subscriptions on commission and who was authorized to deduct her commissions from the amounts collected, for the reason that she was joint owner with the principal in the amounts collected. (McElroy v. People, 202 Ill. 473.) In so deciding, the court cited 'with approval the Cibbey case. In People v. O’Farrell, 247 Ill. 44, however, the court distinguished the McBlroy case and affirmed an embezzlement conviction where under the terms of the contract creating the agency the agent was not authorized to deduct his fees from the amount collected, but accounted in full to his principal.

Briefly, then, this was the status of the law in 1919 when the special statute (par. 210) was passed, which declared that there was embezzlement “irrespective of whether” the accused “has or claims to have any commission or interest in such money.” This statute expressly abrogated the doctrine enunciated in the foregoing cases and relied upon by the defendant here. Moreover, it is clear that, in accordance with said statute, the defendant was an “agent” who received money in a “fiduciary capacity.”

First, the cases relied upon by the defendant to take a collection agent out of the “agent” category are based upon the notion that there can be no embezzlement where one has a joint interest in the property, not that an agent for collection is any less an agent. And, as aforesaid, the problem posed by those cases has been obviated by statute in Illinois.

Second, it can hardly be disputed but that the defendant acted as agent for the complaining witness in collecting her accounts. He undertook the collections on her behalf by virtue of authority which she delegated to him. He had no right to collect from anyone except as authorized by her and was required to render a full account of all matters entrusted to him, the same as any agent. Likewise, it is apparent that in so acting he assumed other duties ordinarily attendant upon that relationship, such as the duty to exercise good faith, make full disclosure, etc. The prevailing view of the courts in construing embezzlement statutes is succinctly expressed in 18 Am. Jur., Embezzlement, sec. 30, as follows: “The term ‘agent’ as used in embezzlement statutes is construed in its popular sense as meaning a person who undertakes to transact some business or to manage some affair for another by the latter’s authority and to' render an account of such business or affair. The term ‘agent’ as employed in such statutes imports a principal and implies employment, service and delegated authority to do something in the name and stead of the principal — an employment by virtue of which the money or property embezzled came into the agent’s possession. The employment, however, need not be permanent. It may be temporary, occasional, general, or special.”

Third, it is clear that the defendant received the funds in his fiduciary capacity. In Illinois, as in other jurisdictions, the relationship of principal and agent is a fiduciary one. (1 I.L.P., Agency, sec. 4.) One acts in a fiduciary capacity where special confidence is reposed in one who is bound in equity and good conscience to act in good faith with due regard to the interest of the person reposing the confidence. Wharton v. Meyers, 371 Ill. 546.

We conclude that the defendant was an “agent” of the complaining witness, receiving money in a “fiduciary capacity” and, therefore, within the purview of said embezzlement statute.

However, the present conviction must be set aside and the cause remanded for a new trial, because of prejudicial error which intervened at the trial. This resulted for the most part from improper remarks of the trial court during defense counsel’s closing argument.

For example, the court at one point interrupted to ask: “Would the defendant be discharged in bankruptcy if it were determined this money was embezzled?” There was thereby injected into the trial the question of what effect the jury’s verdict would have upon the defendant’s civil liability to the complaining witness, a matter which had no bearing upon the determination of guilt or innocence. And in the setting in which it was asked, the question appears to have been a subtle suggestion to the jury that if the defendant was found guilty of embezzlement his civil liability to the complaining witness would be preserved. The effect of this might well have been to excite sympathy for the complaining witness and prejudice against the defendant. For jurors are ever watchful of the attitude of the trial court, so that his lightest word or intimation is usually received with deference and may prove controlling. People v. Marino, 414 Ill. 445; People v. Lurie, 276 Ill. 630.

The court frequently interrupted defense counsel’s argument, usually for the purpose of clarifying the issue of agency. Standing alone, this may not have been objectionable. But considered in context, we are convinced that the tenacity and frequency of the interruptions plus the somewhat extended comments made, served to impress upon the jury that the court believed the defendant guilty of the charge. (See People v. Egan, 331 Ill. 489, 493.) And when this is considered with reference to the bankruptcy question, we think it evident that the defendant was denied that type of trial to which he is entitled.

The judgment of conviction is reversed, and the cause is remanded to the circuit court of Winnebago County for a new trial.

, Reversed and remanded.

Mr. Justice Schaefer,

dissenting:

The indictment in this case contains four counts. Two of them charge that the defendant was the agent of Dorothy Tarrant, doing business as Cooper’s Jewelry, and two of them charged that he was her servant. It is not contended in this court that the relation of master and servant existed between the complaining witness and the defendant. The critical question is whether the defendant was the agent of the complaining witness. Upon the record it seems to me that he was not. He maintained his own office, had his own employees, and collected accounts for approximately 500 other individuals and firms. He was subject to no control whatsoever by any of his customers in making his collections. His customers knew that he kept all of his collections in a single account. That the defendant was not an agent would be clear, I think, if vicarious liability was sought to be asserted against Dorothy Tarrant on account of the defendant’s conduct in the course of his collection activities.

The conclusion of the majority that the defendant was an agent rests upon the assertion that “[t]he term ‘agent’ as used in embezzlement statutes is construed in its popular sense * * That generalization runs counter to the basic rule that criminal statutes are strictly construed.

More important than generalized statements as to the proper approach to the problem of construction, however, is the language to be construed. The statute under which the defendant was indicted (Ill. Rev. Stat. 1953, chap. 38, par. 210,) refers to “any clerk, agent, servant, solicitor, broker, apprentice or officer.” If “agent” has the broad meaning which the majority gives it, each of the other terms is superfluous because all are embraced within the single term “agent.” Many of the specific enumerations in the other statutes referred to by the majority likewise become largely, if not entirely, meaningless, for the particular relationships they seek to reach are also swallowed up in the expanded definition of the term “agent.”

It is arguable of course that the conduct of the defendant in this case should be regarded as criminal. The General Assembly might wish to make it so. But it might not. It might regard the collection agency as a desirable service enterprise which should not be made unduly perilous. If the defendant in this case, with his little agency, is guilty of one embezzlement, he is guilty of 500. The General Assembly might not want to make the enterprise so hazardous. It has not done so, in my opinion, by the statute before us.

Maxwell and Klingbiel, JJ., concur in the foregoing dissenting opinion.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    (No. 33838.
    Edward V. Donovan, Jr., Appellant, vs. Sidney T. Holzman et al., Appellees.

      Announced January 19, 1956
    Opinion filed February 28, 1956.

      Rehearing denied March 21, 1956.

      Thomas P. Henehan, of Chicago, (William J. Isaac-son, and Edward V. Donovan, Jr., both of Chicago, of counsel,) for appellant.
    Theodore J. Isaacs, and Jerome F. Dixon, both of Chicago, for appellees.
    Latham Castle, Attorney General, of Springfield, (William C. Wines, of counsel,) amicus curiae.

   Mr. Justice Davis

delivered the opinion of the court:

This case brings before this court the question of the constitutionality of “An Act to apportion the State of Illinois into senatorial and representative districts and to repeal an Act herein named,” (Ill. Rev. Stat. 1955, chap. 46, pars. 158 — 1 to 158 — 8, inclusive,) commonly referred to as the Reapportionment Act.

The plaintiff filed his complaint for declaratory judgment against defendants as members of the Board of Election Commissioners of the city of Chicago seeking a determination that the Reapportionment Act was in violation of sections 6, 7, and 8 of article IV of the Illinois constitution ; that no valid senatorial districts were created by said act; and that no valid primary or general elections may be held thereunder.

By the complaint, the plaintiff alleged his interest as a taxpayer and registered voter residing in the city of Chicago; set forth the senatorial districts created in the city of Chicago by the said Reapportionment Act, and alleged that said act was per se unconstitutional and void for two reasons: (1) the senatorial districts sought to be created in the city of Chicago are not compact, and (2) they are not uniform in area; and that the sections of said act purporting to reapportion the State into representative districts were unconstitutional and void in that the act is incomplete, the General Assembly having failed to reapportion the State into valid senatorial and representative districts in a single act as required by section 8 of article IV of the State constitution. By their answer, defendants admitted the senatorial districts were created as alleged but denied their invalidity. At the trial the matter of the plaintiff’s interest was stipulated, and the only evidence adduced was that of a map-engineering draftsman and a registered engineer who identified maps offered in evidence and testified that the city of Chicago could be divided into 18 divisions, substantially equal in area without cutting through blocks or houses. On this record judgment was entered for the defendants declaring the Reapportionment Act of 1955 constitutional. From this judgment plaintiff appeals to this court, the constitutionality of a statute being directly involved. Prohm v. Non-High School Dist. No. 216, 7 Ill.2d 421.

On the record before us we are concerned solely with the question of whether the senatorial districts created by the Reapportionment Act of 1955 are, on their face, so violative of the constitutional mandate as to render the act unconstitutional.

A determination of this question first requires a consideration of the language of section 6 of article IV of the constitution of 1870 and a history of the creation of the senatorial districts thereunder. It provided that the General Assembly should apportion the State every ten years beginning with 1871, by dividing the population as ascertained by the Federal census by the number 51, and that the quotient should be the ratio of representation in the senate, and that the State should be divided into 51 senatorial districts and that they should “be formed of contiguous and compact territory, bounded by county lines, and contain as nearly as practicable an equal number of inhabitants; but no district shall contain less than four-fifths of the senatorial ratio. Counties containing not less than the ratio and three-fourths, may be divided into separate districts, and shall be entitled to two senators, and to one additional senator for each number of inhabitants equal to the ratio contained by such counties in excess of twice the number of said ratio.” Both senators and representatives were chosen from the senatorial districts thus created.

The legislature last obeyed this constitutional mandate by the Reapportionment Act of 1901. By that act Cook County was given 19 senatorial districts compared with 32 downstate. In the ensuing years Cook County’s population increased from 1,838,735 to 4,508,792, compared with an increase downstate from 2,982,815 in 1900 to 4,203,384 in 1950.

The increasing inequality in representation caused by the shift in population coupled with legislative unwillingness to meet the constitutional requirement of reapportionment led to numerous attempts to force redistricting. This court decided as early as 1895 that it was without power to compel the legislature to act affirmatively to perform its constitutional duty, (People ex rel. Woodyatt v. Thompson, 155 Ill. 451,) and has repeatedly reaffirmed this view, (People ex rel. Fergus v. Blackwell, 342 Ill. 223; Fergus v. Kinney, 333 Ill. 437; Fergus v. Marks, 321 Ill. 510,) as have the Federal courts. Keogh v. Neely, 50 F.2d 685; Colegrove v. Green, 328 U.S. 549.

This reluctance to redistrict can be attributed almost entirely to the fact that the General Assembly was opposed to giving control of both houses of the legislature to population-heavy Cook County. (Witwer, The Blue Ballot, p. 4; Wham and Sprecher, Solution of the Problem of State Legislative Representation, Chicago Bar Record, Nov. 1948.) As a result, redistricting was held up until a satisfactory compromise between Cook County and downstate Illinois could be achieved. In deliberating the so-called “Blue Ballot” amendment of sections 6, 7 and 8 of article IV of the constitution, the legislature considered at least nine different plans of apportionment. (Legislative Apportionment in Illinois, Publication 112, Illinois Legislative Council, 1952.) Their debate and reflection resulted in the adoption of the present section 6 of artice IV which reads as follows:

“The General Assembly in 1955 shall redistrict the state for the purpose of electing state senators. There shall be fifty-eight senatorial districts. Cook county shall have twenty-four of the districts. These twenty-four districts shall be located as follows: Eighteen in the territory that is within the present corporate limits of the city of Chicago; and six in the territory that is in Cook county outside such corporate limits. The remaining one hundred and one counties of the state shall have thirty-four of the senatorial districts.

“All senatorial districts shall be formed of contiguous and compact territory. In their formation, area shall be the prime consideration.

“The senatorial districts shall be numbered one, two, three, and so forth, including fifty-eight. Each such district shall elect one senator, whose term of office shall be four years. Senators elected in districts bearing even numbers shall be elected in 1956 and every four years thereafter ; and senators elected in districts bearing odd numbers shall be elected in 1958 and every four years thereafter.”

The proposed amendment was approved by the voters at the general election on November 2, 1954. The official statutory explanation of the proposed amendment given to the voters is clearly an aid in determining the meaning of the amendment. That explanation reads as follows:

“The Constitution now requires legislative districts to be based solely on population. This has proved unworkable ever since the 1910 census because a valid redistricting would have given the single county of Cook a majority in both houses of the General Assembly.
“The proposed amendment offers a solution. Representation in the House of Representatives is to be based upon population, and as long as Cook county has a majority of the population, it will have a majority of the seats in the House. Representation in the Senate, on the other hand, is to be based on area in such a manner that the remaining 101 counties are guaranteed a majority in the Senate.
“This amendment follows the system which the founding fathers wrote into the national constitution and which has proved so successful in the case of Congress. There the House of Representatives is based on popular representation and the Senate is based on a form of area representation, similar in principle to what is proposed for Illinois.
“Illinois badly needs a legislative redistricting. The present districts stand as they were created half a century ago. As a result, serious inequalities of population have developed, not only as between Cook County and downstate, but even within these major areas of the State. The apportionment amendment tends to assure the people of a constitutional districting because if the General Assembly fails to act, a commission is provided; and if the commission fails to act, legislators will be elected at large..”

The sole question put to us is whether the senatorial districts created within the corporate limits of the city of Chicago, as shown by the map on page 94 of this opinion, on their face violate the constitutional mandate that they “shall be formed of contiguous and compact territory,” and that “In their formation, area shall be the prime consideration.”

At the outset, we think it clear that this court has the power to strike down an apportionment act which is violative of the clear requirements of the constitution. While we cannot exercise legislative powers or compel their proper action, the judiciary has always had the right and duty to review all legislative acts in the light of the provisions and limitations of our basic charter. The mere fact that political rights and questions are involved does not create immunity from judicial review. (Marbury v. Madison, 5 U.S. 137; People ex rel. Mooney v. Hutchinson, 172 Ill. 486; People ex rel. Woodyatt v. Thompson, 155 Ill. 451; Anno. 2 A.L.R. 1337.) However, this historic function does not give us the right to indirectly exercise the legislative function by striking down a redistricting merely because we conceive that it might have been done better. The complicated considerations involved require careful study and a weighing of factors. We believe a standard of review, as accurate as possible, was set down by this court in People ex rel. Woodyatt v. Thompson, 155 Ill. 451, on page 480, where we said: “There is a vast difference between determining whether the principle of compactness of territory has been applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been attained. The first is a question which the courts may finally determine; the latter is for the legislature.”

We do not suggest that this is an easy standard to apply in all cases. Justice Peckham, considering a New York apportionment act, put the problem well when he said: “We have no trouble whatever in detecting the difference between noon and midnight; but the exact line of separation between the dusk of the evening and the darkness of advancing night is not so easily drawn.” People v. Board of Supervisors, 138 N.Y. 95, 33 N.E. 827.

Mindful of the inherent difficulty of our task, we consider the specific attacks upon the creation of the senatorial

districts here involved. It is alleged that they are not compact and that they are not equal in area. Upon the record before us we have only the outline of the actual districts to consider. We have no evidence in the record to indicate existing ward or precinct boundaries, arterial highways, parks, forest preserves, railroad yards, lakes, rivers, canals and waterways, large industrial and commercial areas, natural or artificial boundaries within the city, transportation facilities, and other of the vast spectrum of factors that might militate against laying out the city of Chicago in equal districts as suggested by plaintiff (see map on p. 95) and we do not have judicial knowledge of such matters. Nor is there any evidence in the record to indicate that the legislature gave “prime consideration” to population, ethnic groups or the preservation of political sinecures rather than area. And as stated in People ex rel. Woodyatt v. Thompson, 155 Ill. 451, at page 469, “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitution.” Likewise, a determination by the legislative branch of the government is presumed to be supported by facts known to it unless facts judicially known or proved preclude that possibility, (Clark v. Gray, 306 U.S. 583; South Carolina State Highway Dept. v. Barnwell Bros. 303 U.S. 177,) and the presumptions are in favor of the constitutionality of a law passed by the legislature, and the courts will, if possible, give it such construction as will enable it to have effect. People ex rel. Woodyatt v. Thompson, 155 Ill. 451; People ex rel. Mooney v. Hutchinson, 172 Ill. 486.

We know that House Bill No. 1123 (Ill. Rev. Stat. 1955, chap. 46. pars. 158 — 1 to 158 — 8 inclusive) was introduced May 24, 1955, and was thereafter amended, debated and then subjected to conference committees and finally approved on June 28. We further know that the General Assembly that proposed the reapportionment amendment to the constitution was substantially the same as the one that passed the Reapportionment Act, and presumably understood its limitations. They considered, debated and adopted the act and thereby construed it to comply with the constitution. That fact is entitled to consideration, (Mitchell v. Lowden, 288 Ill. 327; City of Chicago v. McCoy, 136 Ill. 344,) although it is not determinative. Marbury v. Madison, 5 U.S. 137; Wolfson v. Avery, 6 Ill.2d. 78.

On this record we cannot conclude that the legislature did not apply the principal of compactness nor give “prime consideration” to area. The very use of the word “prime” negates the meaning “sole” which plaintiff seeks to read into the constitution. Rather, it affirmatively suggests that other proper considerations might be applied which could lead to less than perfect symmetry and division. Since there is no evidence in this record, other than the maps in question, to rebut the assumption that proper consideration motivated the legislature (People ex rel. Mooney v. Hutchinson, 172 Ill. 486,) and that area was given prime consideration, we must hold that the Reapportionment Act is not void on its face. It is clear that the purpose of the separate senatorial and representative districts was to insure popular representation in one house, and insure downstate control in the other. This has been accomplished, and there is no evidence to indicate that it was attained in violation of the constitutional mandate.

Accordingly, the judgment of the trial court must be affirmed.

Judgment affirmed.


author: Mr. Justice Bristow

text:
    (No. 33819.
    Maurice O. Cherry et al., Appellants, vs. The City of Rock Island, Appellee.

      Opinion filed February 28, 1956
    Rehearing denied March 21, 1956.

      Eagle & Eagle, of Rock Island, for appellants.
    Charles D. Marshall, Jr., City Attorney, of Rock Island, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

Plaintiffs appeal directly to this court from a decree of the circuit court of Rock Island County dismissing for want of equity their complaint to declare invalid a municipal off-street parking revenue bond ordinance of the city of Rock Island and to enjoin payment of bonds issued thereunder. The trial court certified that the validity of a municipal ordinance was involved and that the public interest required a direct appeal.

The sole contention in the complaint is that the city of Rock Island has surrendered its police power by virtue of certain specific covenants authorized and required to be in the bonds by the ordinance. It is specifically contended that section 9(c) of the ordinance surrenders city control over buildings and other facilities to be erected in the future on lots to be acquired in the future and over free parking thereon; that section 9(e) surrenders city control over street traffic; and that sections 9(g) and 10 surrender power to finance and acquire future parking lots.

Insofar as pertinent, those sections of the ordinance provide as follows:

“Section 9. * * *

“(c) * * * that the City will from time to time make all needful and proper repairs, replacements, additions, and betterments to the equipment and facilities of said system so that it may at all times be operated properly and advantageously, and when any parking meter or other equipment or facilities of said system shall have been worn out, destroyed, or otherwise become insufficient for proper use, it shall be promptly replaced or repaired so that the value and efficiency of the facilities shall be at all times fully maintained and its revenues unencumbered by reason thereof; provided, however, said City shall at its discretion be authorized to provide facilities for free off-street parking not to exceed ten per cent (10%) of the square-foot area of all the said off-street parking facilities of said City. J ^ *

“(e) That the City will maintain parking meters and collect rates therefrom in the manner required by this ordinance on all public streets where such parking meters are presently located as of the date of the passage of this ordinance, and on such streets and in off-street parking lots where parking meters shall hereafter be located until all of the bonds authorized by this ordinance have been paid in full, both as to principal and interest; provided, however, this covenant shall not be construed to prohibit necessary changes in the location of such parking meters made necessary by street widening or street closings or substitution or changes in the location of parking meters to provide essential and necessary traffic regulation and control and which will not materially lessen the income and revenues to be derived from such meters.

sjs ?|c

“(g) That so long as any of the bonds authorized hereunder are outstanding, the City will not sell, loan, mortgage or in any manner dispose of or encumber said parking system until all of said bonds hereby authorized shall be paid in full, both principal and interest, or unless and until provision shall have been made for the payment thereof, and that said City will take no action in relation to said facilities which would unfavorably affect the security of the bonds or the prompt payment of principal and interest thereon:

* * *

“Section 10. * * * while any of the bonds herein authorized to be issued are outstanding, no bonds or other obligations payable from and sharing ratably and equally with the bonds herein authorized in the income and revenues derived and to be derived from the motor vehicle parking system of said City, as herein defined, shall be issued unless the average net revenues, determined after deducting all operation and maintenance expenses, derived from the operation of said motor vehicle parking system for the last two preceding fiscal years, or the net revenues for the then last preceding fiscal year, whichever shall be the lower, are equal to at least one and one-half times the maximum amount to become due in any year for principal and interest on all bonds then outstanding payable from the revenues of such system and on such additional bonds proposed to be issued.”

This ordinance was adopted by the city pursuant to authority granted by article 52.1 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1953, chap. 24, par. 52.1 — 1, et seq.) commonly referred to as the Parking Act. Such act specifically empowers corporate authorities to provide in the bond ordinance such “covenants as may be deemed necessary or desirable to assure a successful and profitable operation of the project and prompt payment of principal of and interest upon the said bond so authorized.” (par. 52.1 — 3(f)) It also authorizes the municipality to covenant “to maintain the project in good condition” (par. 52.1 — 3(e)) and concerning “the issuance of additional bonds that may thereafter be issued payable from the revenues derived from the operation of any such parking facilities.” (par. 52.1 — 3(a)) This court held such act valid in Poole v. City of Kankakee, 406 Ill. 521, and no- question of statutory validity is here presented.

In the City of Kankakee case the validity of a city ordinance adopted under said act was also in issue. Since the ordinance here in question is patterned after and in many respects is similar to the Kankakee ordinance, and since the Kankakee ordinance was attacked on the ground among others that it surrendered police powers of the municipality, defendants assert that the decision of this court in the City of Kankakee case resolves the issues here presented and is conclusive.

We have examined carefully the Kankakee case and are of the opinion that the issues there presented and the reasoning of this court therein does furnish the answer to all of plaintiffs’ contentions. When presented to this court for decision two grounds of invalidity of said ordinance, among others, were asserted, viz: (1) the act granted no authority to pledge income of parking meters already installed as security for the bonds to be issued for the payment of the off-street parking sites and, (2) the ordinance relinquished the city’s right of police power until the bonds were paid. In considering the first proposition we noted at page 533 that “The validity of an ordinance which is within the power granted is presumed, and the burden of showing its invalidity rests upon the party attacking it.” Thereafter, various sections of the act were considered in relation to each other and at page 534 we observed as follows: “Considering the Parking Act as a whole, it is apparent that the legislature had the entire parking system of a city under consideration and not just the separate facilities which would be acquired. To say that the parking system should be broken down into isolated parts for financing and disposal of revenue is inconsistent with the public purpose of the act, i.e., the orderly control and regulation of traffic. The language employed indicates the legislature intended that, where necessary, a city could, within its discretion, pledge the revenues from ‘any or all’ of its parking facilities for the purpose of maintaining, extending or improving the overall uniform parking system.” As to such first argument it was then held that the pledge of income from existing facilities did not render the ordinance invalid.

As to the second argument that the Kankakee ordinance surrendered the city’s police power because of the provision preventing any change in the ordinance until the bonds were paid in full, such provision was considered in its relation to other ordinance provisions concerning change of location of meters when necessary for traffic regulation and control, withdrawal of existing off-street parking facilities for erection of multiple level parking structures, provision of limited free off-street parking and the right of redemption. After recognizing that a city may not validly enter into a contract the effect of which is to prevent the exercise of police power by the State, we held that there was no such attempt in the Kankakee ordinance, saying at page 536: “Insofar as we can determine, the ordinance here commits the city only to the performance directed by the Parking Act, and as such does not constitute a surrender of its police power.”

The Rock Island ordinance is identical with the Kankakee ordinance except the right to provide free off-street parking is limited to 10 per cent instead of 25 per cent of such facilities. The parking system must be considered as an entirety, as recognized in the Kankakee case. While in such case our remarks were directed to the pledge of revenues from existing facilities, the same reasoning applies with equal or greater force to facilities to be acquired in the future. The covenants complained of specifically follow the authorization contained in the act to provide such covenants as may be necessary to assure a successful and profitable operation of the project and prompt payment of the bonds, and to maintain the project in good condition, and concerning issuance of additional revenue bonds. The judgment of the city council within its express authority as to what is necessary or desirable in that respect will not be overridden by the court in the absence of a clear showing of error or abuse of discretion. (Melton v. City of Paris, 333 Ill. 190.) No such showing is here made.

Plaintiffs cite no decisions from this State supporting their position but do refer to three cases from foreign jurisdictions. In Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153, the South Carolina court held that a covenant to maintain on-street parking meters throughout the life of certain revenue bonds was invalid as a surrender of police power over traffic regulation, but specifically recognized that Illinois had squarely met the same issue and held to the contrary in the City of Kankakee case.

The opinion in the South Carolina case expressly recognizes that not only Illinois, but also Michigan, Florida, and West Virginia have approved such covenants as are here involved as not surrendering its police power.

In City of Panama City v. State, 60 So.2d 658, the Florida courts reached a conclusion similar to the South Carolina courts, but the subsequent case of Gate City Garage v. City of Jacksonville, 66 So.2d 653, suggests a different view. The case of State v. City of Topeka, 176 Kan. 240, 270 Pac.2d 270, is not in point on the facts, as it involved a municipal lease and not a revenue bond' issue.

Plaintiffs in effect ask this court to overrule its prior decision in the City of Kankakee case. Considering the Rock Island ordinance in its entirety with the Parking Act it does not appear that the city of Rock Island has surrendered any of its police powers, but on the contrary has retained wide discretion in that respect while reasonably protecting the interests of holders of its revenue bonds by covenants specifically authorized in the enabling statute.

The decree of the trial court is affirmed.

Decree affirmed.


author: Mr. Justice Daily

text:
    (No. 33617.
    S. H. Krom et al., Appellees, vs. The City of Elmhurst, Appellant.

      Opinion filed March 22, 1956.

      George E. BillETT, of Chicago, (Ervin F. Wilson, of counsel,) for appellant.
    Rathje & Woodward, of Wheaton, (Alered E. Woodward, of counsel,) for appellees.
   Mr. Justice Daily

delivered the opinion of the court:

The city of Elmhurst here appeals from a judgment of the circuit court of Du Page County holding the city zoning ordinance, as amended, unconstitutional and void in its application to a parcel of land owned by Chicago Title and Trust Company, as trustee, and for which S. H. Krom, who is an appellee here along with the company, has entered into a contract of purchase.

The disputed property, consisting of 3.35 acres, is located very near the southern limit of the city. It is bounded on the south by Butterfield Road for a distance of 275.5 feet, on the southeast for 259 feet by a triangular lot improved with a gasoline station, on the east by York Street for 273 feet, on the north by Van Burén Street for 246 feet, and on the west by Kendall Avenue for a distance of 551 feet. Plats in the record show that appellees’ tract and the triangular lot from which the gasoline station is operated consists of an entire block lying within the boundaries of the streets named. The block is vacant except for the gasoline station and it was the opinion of a witness that the vacant portion owned by appellees could be divided into 18 or 20 residence lots. Butterfield Road is a heavily traveled east-west traffic artery which connects the city of Chicago with the Pox River valley and over which passes Illinois Route 56. York Street, which is improved with a two-lane blacktop road in the area, is the main north-south street bisecting the city of Elmhurst and connects with the main business district some two and a half miles to the north. The intersection of Butterfield and York is a busy one and traffic is controlled by four-way stop signs. Kendall Avenue is but a block long and, like Van Burén Street, has no improved road where it adjoins appellees’ land.

By a zoning ordinance enacted in 1924, the triangular lot where the gasoline station is presently located was given a commercial zoning classification which continues to this day. The balance of the block, however, was zoned residential. In 1951 the ordinance was amended to change the classification of the vacant property in the block to “A- — • single-family residence,” the most highly restricted of all the zoning classifications employed. During March, 1954, Krom, as vendee under a contract to purchase the vacant portion of the block, made application to the city to rezone the property to a commercial classification, his intention being to erect a shopping center and accompanying parking facilities thereon. The application was denied by the zoning commission and such denial was concurred in by the city council. This action for a declaratory judgment followed with appellees’ alleging, and the trial court holding, that the amended ordinance, as it applied to their property, bore no relation to the public health, safety, morals or welfare, and that it was an arbitrary and unreasonable regulation which deprived appellees of their property without due process of law. On this appeal the city contends to the contrary and insists that its legislative judgment should not be disturbed.

The question of whether a zoning ordinance is arbitrary, unreasonable and capricious in its application to a given parcel of land, or whether it is reasonable and bears a substantial relation to the public welfare, is subject to review by the courts and, of necessity, each case must be decided upon its own particular facts. Chief among the factors to be given consideration are the use and zoning of nearby property, the character of the neighborhood, the extent property values are diminished, and the relative gain to the public as compared to the hardship imposed upon the owner. Since there is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant, the one assailing its validity has the burden of proof that the ordinance is invalid or unreasonable and confiscatory as to his property. If it appears from all the facts that there is room for a difference of opinion concerning the reasonableness of a classification, the legislative judgment of the city council must be conclusive. For further exposition of these established principles see: La Salle National Bank v. City of Chicago, 5 Ill.2d 344; Tower Cabana Club, Inc. v. City of Chicago, 5 Ill.2d 11; LaSalle National Bank v. City of Chicago, 4 Ill.2d 253; Herzog Building Corp. v. City of Des Plaines, 3 Ill.2d 206; Miller Brothers Lumber Co. v. City of Chicago, 414 Ill. 162.

The facts peculiar to the case at hand disclose that the disputed tract of land is, generally speaking, located adjacent to a commercial district which has been formed around the intersection of Butterfield Road and York Street in an area which, for a radius of approximately three fourths of a mile from the intersection, is otherwise zoned or used for residential purposes. The lots at the four corners of the intersection lie in commercial zones which, with the exception of the zone comprising the triangular lot adjoining appellees’ property, extend in all four directions and on both sides of the streets from the intersection. Thus on Butterfield and York, respectively, the lands directly across from the disputed tract are zoned commercial for distances of approximately one block; on York south of Butter-field and on Butterfield east of York, the commercial zoning extends for 166 feet and 300 feet, respectively. The zoning to the west and north of appellees’ property, across Kendall and Van Burén, is for single-family residences. Likewise, the areas adjacent to the commercial zones described are classified as residential both by city and county zoning regulations as they apply.

As previously stated there is a gasoline station on the triangular lot at the northwest corner of Butterfield and York. Appellees’ land adjoins the triangle at its base and flanks it at the points where the sides of the triangle join the base. On the northeast corner of the intersection there is located a second gasoline station. To the north of this station there is located on the east side of York, and thus directly across from appellees’ property, the following: a combination residence and television repair business, four residences, a combination residence and barber shop, and a combination residence and real-estate office. To the east of the same station, along the north side of Butterfield, there is a two-story building having an apartment upstairs and a carry-out food service on the first floor, an electric transformer station, and two residences. Still a third gasoline station is located on the southeast corner of the intersection and we gather from the testimony and photographic evidence that there are no other structures in the immediate vicinity. The fourth or southwest corner of the intersection is improved with a drive-in hamburger and ice cream stand. Immediately south of the stand, along the west side of York, is found a grocery store and meat market, and a real-estate office; to the west, along the south side of Butter-field and directly across from appellees’ property, there is located a combination grocery and liquor store and a parking lot for the customers of that business.

The lots which face appellees’ land from across Kendall and Van Burén are vacant with the exception of a residence located at the northwest corner of Van Burén and York, which fronts on York. Kendall is but a block long and, just as Van Burén, has neither improved road, water, nor sewer. In regard to this condition, it was brought out at the hearing that the city has an ordinance prohibiting the erection of a building for human habitation on any lot or parcel within the city “unless highway, road, street or way for public service facilities, improved with water mains and sanitary sewers is provided to serve said lot or parcel of land.” From a land use map in evidence it appears that the areas to the north and west of appellees’ property are largely vacant and unimproved except for scattered residences and one concentration of residences about nine blocks west. The undeveloped condition of the area was attributed by several witnesses to the lack of water and sewer therein. To the east and north of appellees’ tract there is, with the exception of the commercial properties already described, almost complete residential development over an area 14 blocks square. To the south, across Butter-field, there is again but scattered residences both in the small area of the city that is found there and in the unincorporated area adjoining.

Three real-estate brokers testifying for appellees valued the latters’ property at $95,000 to $107,000 for commercial purposes, and at $25,000 to $30,000 for single family residence purposes. These estimates were in no way refuted by appellant. With regard to the properties situated in the commercial zones immediately to the east and south, appellees’ witnesses were of the opinion their value would be increased by the rezoning. As opposed to this J. E. Vandivere, a real-estate expert called by appellant, testified only that houses in the commercial zone along the east side of York Street would be reduced in value for residence purposes about 30 per cent. Two of appellees’ witnesses testified that the vacant lots opposite appellees’ property on Kendall and Van Burén had no value since the lack of an improved street, water and sewer prevented their use for single family residences, and because of this were of the opinion that the rezoning of appellees’ tract would cause no depreciation in value; a third witness valued the same vacant lots at $600 apiece and stated that the commercial rezoning of appellees’ land would depreciate their value about 25 per cent, or $125 each. It was Vandivere’s opinion, however, that the lots on Kendall had a value of $20 per foot and those on Van Burén a value of $28 to $30 per foot. He testified that the rezoning sought would reduce the value of these lots by 50 per cent and was of the opinion that the next tiers of lots beyond those fronting on Kendall and Van Burén would be reduced by 30 per cent.

Witnesses for both sides told of the city’s rapid population increase and accompanying building boom in recent years but reached different conclusions as to how such factors should affect the zoning of appellees’ land. Similarly, they were at odds as to how the ever-increasing vehicular traffic at the intersection of York and Butterfield should influence the zoning. Those appearing for the city were of the opinion appellees’ land was needed for residential purposes, and that a site three fourths of a mile to the east, which the city proposed to zone commercial, was better suited for a shopping center because it is located away from a congested corner and contains more area. Appellees’ witnesses testified that the disputed tract was ideally situated for a shopping center since it was already the focal point for people seeking trade in the area and because it was located at a point where traffic was under control. Additionally, it was brought out that there are still many vacant lots in the area available for residence purposes, and that although the population in the area surrounding appellees’ property had increased 80 per cent from 1950 to 1954, no property therein had been rezoned for commercial use since 1930. The same witnesses were of the opinion that more shopping facilities were needed in the area in question.

A consideration of all the facts and circumstances impels the conclusion that the circuit court was correct in finding the zoning ordinance, as amended, to be unreasonable, confiscatory and void in its application to appellees’ property. Since Forbes v. Hubbard, 348 Ill. 166, where the zoning at the busy intersection of Harlem and Chicago avenues in the city of Chicago was under consideration, this court has given cognizance to the rule that in zoning territory of such a character, dividing lines of districts should be fixed in such a manner as to avoid making one side of a main artery of travel purely residential when the opposite side is already used as a business zone in such a manner as to establish its character in that regard. At the same time, however, we recognized in Mundelein Fstates, Inc. v. Village of Mundelein, 409 Ill. 291, that a main artery of travel may, in some instances, constitute so natural and proper a dividing line between commercial and residence zones as to cause the property on one side of the highway to take its character from the residential district it adjoins rather than the commercial zone it faces. Relying upon the latter case, which bears no similarity on the physical facts involved, appellant insists that appellees’ property is characterized by the residential zones lying to the north and west. It is quite evident, however, that the predominant feature of the whole area affected is the intersection of Butterfield and York where, because of zoning regulations in effect since 1930, a center of trade has been developed on properties occupying the same relative position to the intersection as does the property of appellees. As situated, appellees’ tract is a natural component part of the commercial district which has been permitted to develop in all directions from the intersection. When this feature is considered along with the comparative physical aspects and traffic experience of Butterfield and York on the one hand, and Kendall and Van Burén on the other, it is apparent that appellees’ tract does not take its character from the residence zones of surrounding areas but, rather, from the commercial zone adjoining it and the similar zones it faces across the streets of the intersection. In this, and other physical aspects relating to the reasonableness of the zoning regulations under consideration, the disputed property is to be distinguished from those under consideration in Herzog Building Corp. v. City of Des Plaines, 3 Ill.2d 206, and La Salle National Bank v. City of Chicago, 4 Ill.2d 253, which appellant cites as being persuasive here. In view of the extent of the commercial zoning permitted on three sides of the intersection, no reasonable basis of public welfare suggests itself for the restricted zoning on the segment of the intersection where appellees’ land is found.

Taking into consideration photographs of nearby structures, traffic charts reflecting conditions at the intersection, the testimony of the expert witnesses, and the evidence showing the disputed tract to be adjoined by a commercially zoned lot of irregular size that is improved with a gasoline station, it is quite evident that the portion of appellees’ property which abuts on Butterfield and York has little desirability for residential purposes. Under a continued single-family residence classification this portion of the property would in all probability degenerate into permanent vacant property which would be unsatisfactory both for aesthetic and tax considerations. That this is so would seem to be borne out by the fact that no human habitation has been built on the land during the 25-year period that it has been zoned for residences, even though the city has experienced a tremendous building boom in the past eight years. The balance of appellees’ tract, abutting on Kendall and Van Burén, cannot be used for residential purposes until such time as those streets are improved with water and sewer. Thus the combined effect of the two police measures enacted by the city is, under the present conditions, such as to render much of appellees’ land unusable for any purpose. Zoning ordinances restricting a certain area to residential use have long been held void as to property located in such area but so situated, in its relation to a commercial zone, as to render it peculiarly unattractive and of little value for residential purposes, if at all salable therefor. (Tews v. Woolhiser, 352 Ill. 212; People ex rel. Lind v. City of Rockford, 354 Ill. 377 ; Petropoulos v. City of Chicago, 5 Ill.2d 270.) The physical location and zoning of the premises under consideration brings the city’s ordinance within the rule of the cited cases.

In determining whether the invasion of property rights under a purported police power is unreasonable and confiscatory, the degree in which the values incident to affected properties are diminished by provisions of the zoning ordinance must also be considered. (State Bank and Trust Co. v. Village of Wilmette, 358 Ill. 311.) Insofar as the vacant lots opposite appellees’ property along Kendall and Van Burén are concerned, opposing witnesses ranged from one extreme to the other in expressing opinions both as to their value and the diminution of value which would result if appellees were permitted to use their land for the commercial purpose desired. Two of appellees’ witnesses testified the lots had no value for residence purposes inasmuch as habitations could not be built thereon until such time as the streets were improved with water and sewers. There was, however, no evidence given to show that such improvements were unattainable, or that their cost would be prohibitive, thus we think such opinions on value to be unpersuasive. Of greater significance was their testimony that the area had little to induce persons to build homes in the area, and their opinion that the shopping center proposed by appellees would be instrumental in speeding residential development. On this basis, and from past experience, they stated that the shopping center would have the effect of creating a market for the lots on Kendall and Van Burén and of increasing their value. A third witness for appellees testified that the lots in question had a value of $600 each and that the commercial use of appellees’ premises would diminish such value by 25 per cent, or $125. Vandivere, the expert witness called by appellant, testified that the value of the lots ranged from $20 to $30 per foot and that the diminution would be 50 per cent in the case of the lots on Kendall and 25 per cent in the case of those on Van Burén. This opinion, it appears, was based on the noise, traffic hazards and unsightliness which he felt would accompany a commercial use. On cross-examination, however, he stated that if the business structure was attractive and the premises landscaped, his estimates of diminution would be lowered by 5 to 10 per cent. He agreed with appellees’ witnesses that there was no present market for such lots because of the absence of water and sewers.

With regard to the properties situated in the commercial zones to the east and south of the disputed premises, appellees’ witnesses all testified their value would be increased by the development of the proposed shopping center. Vandivere, when testifying for appellant, did not contradict such conclusion but testified only that the value of residence properties located in the commercial zone along the east side of York, (which he estimated were already reduced in value by 43 per cent because of existing commercial uses and the traffic on York,) would further be reduced in value for residence purposes by 30 per cent. Such an opinion, we believe, has but little probative value when it is considered that several- of the residences are being used for commercial purposes and that all are located in a commercial zone. The record shows that the deeds to these residence lots contained a covenant that they would not be used for commercial purposes until 1969, but it is quite apparent that it is not being enforced. Under the circumstances it is doubtful that any substantial diminution in the value of such properties would in fact be effected by the presence of one more commercial use in the area. Cf. Northern Trust Co. v. City of Chicago, 4 Ill.2d 432.

As opposed to- the testimony relating to the value of surrounding properties, appellees’ uncontradicted evidence is that to enforce the single-residence classification would depreciate their property from approximately $100,000 to $27,000. While the element of property value is not controlling in passing on the validity of a zoning ordinance, it is an element that must be considered, and where a destruction of value occurs the test to be applied is whether such destruction promotes the public health, safety, morals or general welfare. Applying this test to the record before us, we find nothing to indicate that any public need or consideration demands such a confiscation of values as would be made here. (See: Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200, 214; Chicago Title and Trust Co. v. Village of Franklin Park, 4 Ill.2d 304, 306; Bullock v. City of Evanston, 5 Ill.2d 22, 34.) The hardship to appellees is apparent and uncontradicted; on the other hand the gain or detriment to nearby property owners is uncertain. Also there is sufficient credible evidence upon which to base a belief that the additional shopping facilities are needed by the community and that the use proposed by appellees would enhance the value of surrounding properties, residential and commercial alike, in that it would open up the development of an area which heretofore has had little attraction to residence builders. In such a manner the appearance of the area will be improved and additional tax revenues will be realized to the benefit of the whole community. Considering the evidence in its entirety, we think it manifest that the benefit, if any, which the public receives from the existing ordinance is slight when compared to the extreme hardship imposed upon the appellees.

When the element of property values is considered together with the area zoning and physical features which have caused appellees’ property to become best adapted to commercial use, it is our considered judgment that the questioned ordinance, which restricts the said property to single-family residence use, is unreasonable and void, and has the effect of depreciating the property to the point of confiscation without corresponding benefit to the public generally. For these reasons, therefore, the judgment of the circuit court of Du Page County is affirmed.

Judgment (affirmed.


author: Mr. Justice Klingbiel

text:
    (No. 33620.
    The People of the State of Illinois, Defendant in Error, vs. Homer Flynn et al., Plaintiffs in Error.

      Opinion filed March 22, 1956.

      Paul W. SchnaicE, of Aurora, for plaintiffs in error.
    Latham Castle, Attorney General, of Springfield, and John C. FriEdland, State’s Attorney, of Elgin, (Fred G. Leach, Edwin A. Strugala, and John S. Petersen, of counsel,) for the People.
   Mr. Justice Klingbiel

delivered the opinion of the court:

Plaintiffs in error, Homer D. Flynn and James Yoakum, hereinafter referred to as defendants, were indicted in the circuit court of Kane County for the crime of armed robbery. After trial by jury, verdicts were returned finding them guilty as charged, and judgment was entered sentencing Flynn to the penitentiary for a term not less than two nor more than five years, and Yoakum for a term not less than eight nor more than twenty years. Defendants prosecute this writ of error to review the proceedings.

No question is presented concerning the sufficiency of the evidence, and it need not be related here. It is contended, first, that the court erred in admitting incompetent and prejudicial evidence; and second, that defendant Yoakum was denied due process of law by reason of being held in jail for eighteen days before being formally charged with a crime, during ten days of which he was not permitted to see either his family or his counsel.

We must consider, at the outset, the State’s contention that since defendants’ motions for new trial and for judgment notwithstanding the verdict were orally presented, and nothing appears of record to show the grounds urged in support thereof, the objections cannot be considered on review. It is not disputed that defendants failed to file written motions for new trial or in arrest of judgment, and the record does not disclose any specific grounds presented to the trial court in support of their oral motions. Neither does the record show, however, any request by the prosecutor that defendants specify their grounds in writing. In People v. Jankowski, 391 Ill. 298, relied upon by the State, it was held that since 1933 the requirement that motions for new trial and in arrest of judgment be in writing is a mandatory one in criminal cases; that the legislature, by the 1933 amendment to section 17 of division XIII of the Criminal Code, intended to require defendants in criminal cases to apprise the trial court in writing of all grounds for a new trial or for arrest of judgment, and that failure to do so precludes assigning as error any point not so specified. We deem it appropriate here to reexamine the basis for this holding, and to inquire whether it represents a reasonable and just construction of the statute.

The amendment in question provides merely that “all motions for new trial and in arrest of judgment shall be made in writing.” (Ill. Rev. Stat. 1953, chap. 38, par. 747.) There is nothing in the bare language of this amendment from which we can reasonably infer a legislative intent to change or alter the rule existing at the time of its passage, or to prescribe the consequences of a failure to comply. Prior to 1933 the rule, in both civil and criminal cases, required the moving party to file his points in writing, particularly specifying the grounds of his motion. However, if a verbal motion was made without objection, the party could avail himself of any cause for a new trial which might appear in the record. If the party filed a written motion specifying the grounds, then he would, of course, be confined on review to the reasons specified in the trial court, and would be held to have waived all causes for a new trial not set forth in writing. People v. Cohen, 352 Ill. 380; Anderson v. Karstens, 297 Ill. 76; Bromley v. People, 150 Ill. 297; Ottawa, Oswego & Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.

The 1933 amendment substantially restated the requirement of writing which had theretofore appeared in section 77 of the Practice Act of 1907, governing procedure in both criminal and civil cases. Nothing in its language purports to change the character or incidents of the requirement, and the holding in the Jankowski case to the contrary is not supported by sound reasons. If the legislature desired to change the established consequences of a failure to comply, and intended that an oral motion without objection should constitute a waiver, on review, of all grounds for a new trial, it would have said so by specific provision. It would not have left such a change to be inferred from a mere absence of provisions to the contrary We think the decision on this point, made in the Jankowski case, was wrong; and that case, in so far as such holding is concerned, is hereby overruled.

We think the better rule to be that applied in Ottawa, Oswego & Fox River Valley Railroad Co. v. McMath, 91 Ill. 104, wherein a question of legislative intent similar to that presented in the Jankowski case was considered. After a sound and realistic analysis of the issue, we concluded: “The analogies of the law all force us to the conclusion these written points (sic) may be waived, and to the further conclusion that when the motion for a new trial is submitted for decision without any statement in writing of the grounds therefor, and that too without objection, then they (sic) are to be considered as waived.” It is undoubtedly a better practice for attorneys to specify the grounds in writing and preserve them in the bill of exceptions. The opposite party, or the trial court on its own motion, may compel this to be done. But there seems to be no good reason why the requirement of writing may not be waived. In the case at bar there is nothing to indicate that either the prosecutor or the court called on defendants to specify in writing the points on which they based their motion, and the State must therefore be held to have waived such requirement. As this court observed with reference to the defendant in the Ottawa Railroad case, “it would be unjust and unfair to permit him, when he could have had the written reasons for the motion before the argument by asking for them, to quietly lie by and argue the motion without them and submit it to the decision of the court, and then object for the first time in the Appellate Court. He should not thus be permitted to trifle with the rights of his opponent.” (91 Ill. at 111.) We conclude that since the State failed to object to the absence of a written motion it has waived any question as to its form and defendants are not precluded from assigning the present matters as error.

We are thus brought to the first contention that the court erred in admitting incompetent and prejudicial evidence. It appears that each defendant testified in his own behalf. On cross-examination the prosecutor asked each whether he had ever been convicted of a felony. After each defendant answered that he had, an objection by their attorney was overruled, and the prosecutor proceeded to question them concerning the nature of the prior offense. The State does not contend the questions were proper; but it urges that since timely objection was not made the incompetency of the testimony was waived. It is true that objection was not interposed as promptly as it should have been. But objection was made after the first answer was given, and we think the impropriety of the questions was so flagrant that the conviction, under the circumstances shown here, cannot be upheld.

This court has repeatedly held that it is improper to cross-examine a defendant as to his conviction of a crime. (Bartholomew v. People, 104 Ill. 601; People v. Halkens, 386 Ill. 167.) In People v. Rosearas, 408 Ill. 179, at page 181, the court stated: “To repeat what was said in People v. Decker, 310 Ill. 234, there is no question more damaging to a defendant with a jury than one which suggests or intimates that he is a criminal or has been charged with criminal offenses. Such damage is magnified twofold when it is elicited from a defendant on cross-examination and he is compelled to testify against himself.” Defendant’s conviction of a prior felony may be shown to affect his credibility by offering the record of his conviction, or an authenticated copy thereof, in evidence (People v. Halkens, 386 Ill. 167,) and not'otherwise.

It is unnecessary, in view of our conclusion, to discuss the second assignment of error. The judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.


text:
    (Nos. 33656, 33657, 33658.
    Frank Reidelberger, Sr., et al., Appellants, vs. Bi-State Development Agency et al., Appellees.—The City of Venice, Appellant, vs. Same Appellees.—The People of the State of Illinois, Appellant, vs. Same Appellees.

      Opinion filed March 22, 1956.

      FrEd P. Schuman, State’s Attorney, of Edwardsville, F. Edmond Cook, of Madison, and Harry E. Hartman, of Granite City, for appellants.
    Henry Driemeyer, of East St. Louis, J. F. Schlaely, Jr., and George D. Burroughs, of Edwardsville, (Pope & Driemeyer, VerliE, Eastman, Schlaely & Goderey, and Burroughs, Simpson & Burroughs, of counsel,) for appellees.
   Mr. Justice Klingbiel

delivered the opinion of the court:

Three separate actions were brought in the circuit court of Madison County against the Bi-State Development Agency, each challenging its right to purchase a certain bridge over the Mississippi River between Venice, Illinois, and St. Louis, Missouri, and to lease the same back to certain railroads pursuant to contract. In each case the court dismissed the complaint for lack of jurisdiction, and the plaintiffs appeal to this court. The cases have been consolidated for consideration here.

The Bi-State Development Agency is a corporation created by a compact between Illinois and Missouri for the purpose, inter alia, of constructing and operating bridges. The commissioners of the Agency entered into an agreement with a group of railroads whereby the Agency was to purchase the “McKinley Bridge” and lease back to the railroads the railroad facilities of the bridge. Shortly thereafter the State’s Attorney of Madison County filed a complaint in quo warranto, asking the court to determine that the compact creating the Agency is unconstitutional and void and that the Agency has no legal existence, or, in the alternative, that the Agency does not have power under the compact to purchase the bridge. A few days later the city of Venice filed suit for a declaratory judgment that the Agency was without power to purchase the bridge and lease it to private railroads. The third suit, brought by certain taxpayers, sought a permanent injunction to obtain essentially the same relief requested in the other actions.

In each case the defendants filed a motion to dismiss, assigning various grounds including lack of jurisdiction of the court. The court found that the validity and meaning of compacts entered into between States and consented to by Congress are Federal questions over which the Federal courts alone have jurisdiction, and the complaints were dismissed. The judgments dismissing the complaints further recited that “The Court having determined that it is without jurisdiction to hear and determine the matters involved herein, the Court does not attempt to answer or pass upon or decide the other questions raised by the complaint and submitted to the Court, by the respective parties, as questions involved herein.”

Plaintiffs insist the circuit court had jurisdiction of the subject matter of the suits; that the assent of Congress to the compact does not make it a law of the United States; and that even if its interpretation involved a Federal question the circuit court nevertheless would have jurisdiction. We agree. There is nothing in the compact clause of -the United States constitution (U.S. Const., art. 1, sec. 10) that purports to govern the jurisdiction of courts; and the law is clear that in the absence of constitutional or statutory-provisions limiting jurisdiction to Federal courts, State courts have authority to enforce rights under the constitution or statutes of the United States. (14 Am. Jur. 440, Courts, sec. 247; 21 C.J.S. 798, Courts, sec. 526.) Indeed, the defendants no longer urge their jurisdictional claim. They now argue that the judgment should be sustained on other grounds specified in their motion to dismiss, despite the fact that the trial court expressly declined to pass upon them. They even urge that “this court should affirm the judgments appealed from because of appellants’ failure to assign error or advance any reason why the judgments appealed from were not correct notwithstanding possible doubt of the correctness of the reasoning of the court.” We cannot accede to such a proposal. It is true, as defendants contend, that reviewing courts are concerned with the result and not with the reason, and that if a trial court makes a correct ruling but assigns an incorrect reason its judgment will not be reversed. But this rule cannot be utilized, under the circumstances shown here, to invoke this court’s determination of questions upon which the trial court expressly refused to pass, because the trial court agreed with defendants’ contention that he lacked jurisdiction.

The circuit court erred in holding that it had no jurisdiction. Since the court did not consider the other grounds presented, the judgment must be reversed and the cause remanded with directions to consider and pass upon the remaining questions raised by the motion to dismiss.

Reversed and remanded, with directions.


text:
    (No. 33638.
    In the Matter of the Estate of Ernest C. Schureman.—(The People of the State of Illinois, Appellant, vs. Masonic Board of Control of Jacksonville et al., Appellees.

      Opinion filed March 22, 1956.

    Latham Castle, Attorney General, of Springfield, (John L. Davidson, Jr., John E. Howarth, and Mada-Lyn Maxwell, of counsel,) for the People.
    Inghram & DittmeyER, of Quincy, for appellee Quincy Masonic Temple Association ; and Albert W. Hall, of Jacksonville, for appellee Masonic Board of Control of Jacksonville.
   Mr. Justice Bristow

delivered the opinion of the court:

The State of Illinois appeals directly to this court from an order of the county court of Adams County finding certain bequests to the Masonic Board of Control of Jacksonville and the Masonic Temple Association of Quincy exempt from inheritance tax as charitable bequests. The revenue of the State of Illinois being directly involved, the appeal properly comes direct to this court.

The last will of Ernest C. Schureman, deceased, specifically bequeathed the testator’s stock in Mercantile Trust and Savings Bank of Quincy to the Masonic Temple Association of Quincy. The residue of the decedent’s estate was bequeathed equally to the Masonic Temple Association of Quincy and to the Masonic Board of Control of Jacksonville. In the inheritance tax return the gift to the Masonic Board of Control of Jacksonville, totalling $58,616.43, and the gift to the Quincy Masonic Temple Association, totalling $66,616.43, were each claimed exempt from taxation as charitable gifts.

Insofar as pertinent to the question at issue, section 28 of the Inheritance Tax Act provides : “When the beneficial interests of any property or income therefrom shall pass to or for the use of * * * any * * * benevolent or charitable purpose, * * * by grant, gift, bequest or otherwise, the same shall not be subject to any such duty or tax, but this provision shall not apply to any corporation which has the right to make dividends or distribute profits or assets among its members.” Ill. Rev. Stat. 1951, chap. 120, par. 401.

The Quincy Masonic Temple Association, a not-for-profit corporation, is organized solely and exclusively “to erect and maintain a building for Masonic purposes for the Masonic bodies that are stockholders.” The stockholding bodies and members are four Masonic lodges, the Consistory, a Chapter of Royal Arch Masons, and the Commandery of Knights Templar. The association has no income except from assessments against its member organizations as their share of the expenses in connection with the use and occupancy of the building and from a bank deposit. None of the funds received are used for any purpose other than the maintenance, repair and upkeep of the Masonic Temple.

The Jacksonville Masonic Temple building is owned in undivided shares as tenants in common by two Masonic lodges, a Chapter of Royal Arch Masons, and the Commandery of Knights Templar. On the date of death of testator the only organization by the name of Masonic Board of Control of Jacksonville was an unincorporated association composed of individual members of the four owning bodies and affiliated women’s organizations. Its sole function was to administer maintenance of the building. It owned nothing and received funds necessary for its purposes by apportioned assessments against each of its member bodies. Seven months after testator’s death, the Masonic Board of Control of Jacksonville, Illinois, was incorporated as a not-for-profit corporation, its stated purposes being charitable, benevolent, eleemosynary, educational, civic, patriotic and social. It owns no property and has no income. The unincorporated association had not been dissolved at the time of hearing but the evidence indicates that the corporation will take over the association’s functions as well as receive gifts and gratuities and administer them.

The State contends that the testamentary gifts here in question are not for benevolent or charitable purposes because the will does not by its language limit the bequests to the benevolent and charitable activities of the fraternal bodies.

In approaching a tax problem we must bear in mind certain principles of law that are beyond debate in this State: the burden of taxation should fall equally upon all, all exemption statutes must be strictly construed and not extended by judicial interpretation, and those claiming exemption have the burden of clearly establishing the same.

This court has not passed upon the inheritance tax status of a bequest to fraternal groups such as is involved in this case. Consequently, the State relies primarily upon two decisions of this court holding that real estate owned and managed by Masonic groups is subject to real property taxes. People ex rel. Nelson v. Rockford Masonic Temple Building Association, 348 Ill. 567; People ex rel. Thompson v. Dixon Masonic Building Association, 348 Ill. 593.

Each of these cases had in issue the exemption from real property taxes of Masonic Temple buildings held for the sole use and benefit of the several branches of the Masonic order as a place for lodge meetings, the conduct of ritualistic work, fraternal and social purposes. Exemption from such' taxation was claimed under section 2 of the Revenue Act then in force, (Smith-Hurd Stat. 1933, chap. 120, par. 2,) which, so far as pertinent, provided as follows: “All property described in this section, to the extent herein limited, shall be exempt from taxation, that is to say: * * * Seventh — All property of * * * beneficent and charitable organizations, * * * when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit.” Appellees argue that those cases are not necessarily determinative because the language in section 2 requires the property to be used “exclusively for charitable purposes” before exemption is justified, whereas section 28 of the Inheritance Tax Act requires that the property pass simply for a “charitable or benevolent purpose.”

Before giving any further consideration to the Nelson and Thompson cases, let us turn to two other cases. The first of these appellee urges here is an authority for the proposition that a Masonic lodge is necessarily a charitable institution. In Grand Lodge v. Board of Review, 281 Ill. 480, 483, this language appears: “It has been quite uniformly held by the courts that the primary objects of a Masonic lodge being benevolence and charity, such a lodge is a charitable institution.” This broad pronouncement transcended the boundaries of the problem before the court. In that proceeding the Masonic Grand Lodge of the State of Illinois was given 200 acres of land to be used as a part of a Masonic Home owned and maintained by them at Sullivan, Illinois, for the care and support of Master Masons, their widows and orphans unable to earn their own living and without relatives or friends, able and willing to support them. The court was called upon to decide the narrow question as to whether the charity involved being confined to Masons was a public charity. It was held that the Masonic Home is a public charity and it was determined that exemption followed.

Fourteen years later this court decided the case of People ex rel. Wagner v. Freeport Masonic Temple, Inc., 347 Ill. 180. Therein the property involved and sought to be exempted from taxes consisted of a building costing $400,000, the title thereto being held for the Freeport Consistory, used and controlled by the Consistory and the branches of the Masonic order in the city of Freeport. The majority opinion held that the property was used for charitable purposes to such an extent that exemption should follow as provided by statute. The building involved in that case is a large structure over 108 feet in length and approximately that in width. Forty per cent of it is used for an auditorium, designed for the ritualistic ceremony of Scottish Rite Masonry. The balance of the building consists of lodge rooms, which are rented to the Masonic Blue Lodges, the Council, the Chapter, the Eastern Star, the Copernaum Shrine, the Boy Builders and the Consistory Auxiliary, a ladies organization, all of which are parts of the Masonic order. There are also offices of the secretary of the corporation as well as a lounge, club rooms, toilets and hallways. In the basement were two dining rooms and a kitchen. The lodge membership totaled 5593 persons, all of whom had access to and rights in the building. The charter of the corporation indicated that its objects were “to promulgate the teachings of Scottish Rite Masonry and to promote fraternity and benevolence and to purchase, lease, erect and own a masonic temple for its lodge and club rooms.” Two justices dissented from the majority opinion, cogently and persuasively holding that there is no validity in the conclusion that every Masonic organization is a charitable organization or that judicial notice can be taken that any Masonic lodge or organization is a charitable institution. They also observed that the holding in the Grand Lodge case that every Masonic lodge is a charitable organization was dictum of the purest variety. Within six months this court adopted the views of the dissenting justices and expressly overruled the Freeport case. People ex rel Nelson v. Rockford Masonic Temple Building Association, and People ex rel Thompson v. Dixon Masonic Building Association.

In the Preeport case where the activities were similar to those in the case at bar, the dissenting opinion, which soon became the expression of the majority, had this to say in characterizing the lodge purposes, at page 191: “It appears, therefore, that the object for which the objector is organized is threefold: to promulgate the teachings of Scottish Rite Masonry, to promote fraternity and benevolence, and to purchase, lease, erect and own a masonic temple for its lodge and club rooms. The latter object can hardly be regarded as a charitable purpose — the purchase, construction and maintenance of a building for its own purposes, for its lodge and club rooms. Nor can we take judicial notice that the promulgation of the teachings of Scottish Rite Masonry is a charitable purpose. We may doubtless take judicial notice that Freemasonry is a widely extended secret fraternal organization of very high and ancient origin, but the very fact that it is a secret organization, with an esoteric ritual and ceremonies and teachings designed for and understood by the initiated only, precludes the courts from taking judicial notice of the character of the objector, whether charitable or otherwise. Judges, even if members of the order, cannot take judicial notice of that which they know because they are members — which the general public does not know. To promote fraternity and benevolence is too vague and indefinite a description of an object to constitute a charity. A charitable purpose must refer to some specific form of conduct or course of action tending to promote the well-doing and well-being of social men.”

In People v. O’Donnell, 327 Ill. 474, the court in construing section 28 of the Illinois Inheritance Tax Act said at page 475: “The act is purely a revenue-producing measure, and it is not to be assumed that the legislature surrendered the revenue of the State without some compensation. The theory of exempting from taxation property devoted to religious, educational and charitable uses is that the beneficences bestowed relieve the State of burdens which it would otherwise be obliged to carry. Where the property, or the income from it, is devoted to such religious, educational or charitable uses within the State, the State is compensated for its loss of revenue by its relief from the burden which would otherwise fall upon it and which it would have to meet by appropriations from the public fund, * * *.” In the Grand Lodge case this court held that the Masonic Home at Sullivan was a public charity, and stated at page 485, “* * * but if it operates upon indefinite persons whose care and support rest upon the public the effect is to afford relief from the public burden and the charity is public in its nature.”

Another quote from the O’Donnell case at page 477 can be appropriately mentioned: “* * * ‘The State is not itself a charitable institution, and does not authorize its representatives to expend the public money, by exemptions from taxation or otherwise, for purposes having little or no relation to the welfare of the inhabitants of the State. The purpose of such laws is the acquisition of some supposed public advantage. If it is impossible to see how the public good of the State is promoted by a claimed exemption from the tax burden, it cannot be inferred that the legislature intended such a result from language which does not necessarily require such a construction.’ In Morgan v. Atchison, Topeka and Santa Pe Railway Co. 116 Kan. 175, 225 Pac. 1029, the Supreme Court of Kansas says: ‘Taxes must be raised for the support and conduct of the government. Exemption to charitable, educational and religious organizations is bottomed upon the fact that they render service to the State, for which reason they are relieved of certain burdens of taxation. The effect of an exemption is equivalent to an appropriation.’ * * * ”

The record in this case shows that the lodges were not engaged in practical charity as their principal object. It may well be that in Masonry, its members in their ceremonials, are instructed in the precepts of duty to others and in kindliness and fraternal feeling, but courts generally have not given the words “charitable purposes” such broad signification.

In the case of Scottish Rite Building Co. v. Lancaster County, 106 Neb. 95, the exemption of the Scottish Rite Cathedral of Lincoln, Nebraska, was urged under the applicable statute, thus worded: “The following property shall be exempt from taxes: First, all property of the State, counties, and municipal corporations; second, such other property as may be used exclusively for agricultural and horticultural societies, for schools, religious, cemetery and charitable purposes.” In refusing exemption the court held that the words “charitable purposes” were not intended to have so broad a signification and were not intended to include the expression or inculcation of charitable sentiments, thereby giving a merely subjective meaning to the words “charitable purposes,” but what those words meant was concrete, practical, objective charity, manifested by things actually done for the relief of the unfortunate and the alleviation of suffering or in some work of practical philanthropy, as contrasted with the sentimental or ethical standpoint.

Applying the foregoing principles of law to the facts appearing in this record we have reached the conclusion that the testamentary gifts under consideration are not entitled to exemption by virtue of section 28 of the Inheritance Tax Act. The order of the county court of Adams County is reversed.

Order reversed.


author: Mr. Justice Keingbiee

text:
    (No. 33621.
    The People of the State of Illinois, Defendant in Error, vs. Homer D. Flynn et al.—(Homer D. Flynn, Plaintiff in Error.)

      Opinion filed March 22, 1956.

    Paue W. SchnaicE, of Aurora, for plaintiff in error.
    Latham CasTeE, Attorney General, of Springfield, and John C. Friedeand, State’s Attorney, of Elgin, (Fred G. Leach, Edwin A. Strugaea, and John S. Petersen, of counsel,) for the People.
   Mr. Justice Keingbiee

delivered the opinion of the court:

Plaintiff in error, Homer D. Flynn, together with two companions, was indicted in the circuit court of Kane County for larceny of a motor vehicle. Judgment was entered on verdicts of guilty, and Flynn was sentenced to imprisonment for a term of two to five years, the sentence to run concurrently with that imposed in a companion case. (See People v. Flynn, Docket No. 33620.) He prosecutes this writ of error to review the record.

His sole contention is that incompetent and prejudicial evidence was erroneously admitted against him. Plaintiff in error testified in his own behalf. On cross-examination he was asked whether he had told a police officer he had been in the penitentiary. He replied it had nothing to do with the present case. He was then asked whether he had in fact been in the penitentiary, and whether the conviction had been for robbery or larceny. He refused to answer the questions. Counsel for plaintiff in error made no objection to these questions.

The State, while not disputing the impropriety of the questions, takes the position that there was no objection to them; that their impropriety was therefore waived; and that since the motions for new trial and for judgment notwithstanding the verdict were oral only, and no grounds were specified in writing, “the trial court properly overruled” them.

The questions presented are in substance the same as those considered in People v. Flynn, Docket No. 33620, decided today, and that decision is controlling here. The lack of technical nicety in the form of plaintiff in error’s protest cannot be availed of to invoke the rule that failure to object to the admission of incompetent testimony is a waiver of error. The judgment of the circuit court is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    (No. 33728.
    The People of the State of Illinois, Defendant in Error, vs. Charlie Chinn, Plaintiff in Error.

      Opinion filed March 22, 1956.

    Charlie Chinn, pro se.

    Latham Castle, Attorney General, of Springfield, and Frank W. Curran, State’s Attorney, of Kankakee, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court:

Plaintiff in error, Charlie Chinn, appearing in his own behalf, prosecutes this writ of error for a review of the common-law record of his 1954 conviction of the crime of armed robbery.

The judgment entered herein which is challenged because the sentence is allegedly too uncertain and ambiguous reads as follows: “Defendant sentenced to the Illinois State Penitentiary for a term of not less than one year nor more than life and it is provided that as a part of this sentence he be confined not less than eight years nor more than fifteen years.”

This court had occasion to consider this identical problem at this term in case No. 33795, People v. Whitcomb, and concluded that the challenged sentence duly complied with section 2 of the Sentence and Parole Act as amended in 1943. People v. Stacker, 5 Ill.2d 55.

We adhere tO' the conclusions reached in the Whitcomb case, thus necessitating an affirmance of the judgment entered herein.

Judgment affirmed.