author: JUDGE BURKE

text:
    Kennedy E. Watters, and Florence Watters, Plaintiffs-Appellants, v. Robert M. Schulz, d/b/a Metropolitan Screen Printing, Defendant-Appellee.
    Gen. No. 46,797.
    First District, First Division.
    May 7, 1956.
    Rehearing denied June 12, 1956.
    Released for publication June 12, 1956.

      Alphonse Cerza, of Chicago, for plaintiffs-appellants.
    Morton E. Anderson, and Howard B. Bryant, both of Chicago, for defendant-appellee.
   JUDGE BURKE

delivered the opinion of the court.

On May 1, 1952, Kennedy E. Watters and Florence Watters, as lessors, and Robert M. Schulz, as lessee, signed and delivered a written lease for the store on the first floor of a two-story brick building at 5858 West Division Street, Chicago, to be occupied for “printing and for no other purpose whatever,” for a term commencing May 1, 1952 and expiring April 30, 1954, at a rental of $3,000 payable in monthly installments of $125. On the face of the lease the lessee is shown as the “Metropolitan Screen Printing.” On March 5, 1954, a judgment by confession for $1263.75, pursuant to a warrant of attorney in the lease, was entered in favor of the landlords and against Robert M. Schulz, doing business as Metropolitan Screen Printing. Defendant’s amended and supplemental affidavit in support of his motion to open and vacate the judgment was allowed. The order provided that the defendant be given leave to appear and defend, that his petition stand as an affidavit of defense and that the judgment stand as security. A trial without a jury resulted in a finding and judgment for the defendant. Plaintiffs appeal.

Defendant argues that plaintiffs cannot prevail because the lease was a partnership obligation, pointing out that the lessee named in the body of the lease is “Metropolitan Screen Printing” and that it is signed by defendant. The defendant executed the lease and the judgment is against him. The fact that in the body of the lease the lessee, is identified by a trade name rather than his true name does not affect his liability. In Pine v. Wheeler, 4 Ill.App.2d 374, we held that a judgment was valid notwithstanding the payee was named in the note in a trade name.

The defendant says that the judgment in his favor should be affirmed because the business operated as the Metropolitan Screen Printing was a partnership with James A. Polcer and the defendant as the partners, and that the judgment was confessed only against the defendant. There is only one signature on'the lease and the trade name does not disclose that it is a partnership. There was no evidence that the plaintiffs knew or were told of the alleged partnership. If the lease were a. partnership obligation, that fact would not relieve the defendant from liability. The claims of the partners could be settled in a suit between the partners without the plaintiffs becoming involved therein. Section 15(b) of the Uniform Partnership Act, (Oh. 106%, Ill. Rev. Stat. 1955 [§ 15, subd. (b)]) provides that any partner may enter into a separate obligation to perform a partnership contract. Defendant urges that a judgment on an obligation of joint obligors cannot be confessed against one individual; that a judgment on a partnership obligation cannot be confessed against the individual partners; and that in the case of an obligation of an association no authority is given to confess a judgment against individuals. These contentions have no application to the facts of the instant case as it is not a judgment on a joint obligation, not a judgment on a partnership obligation and not the obligation of an association.

The defendant asserts that his amended affidavit shows a constructive eviction. He relies on a notice from the Burean of Fire Prevention of the Fire Department of the city dated February 18, 1953, to comply with an ordinance by discontinuing the use of the premises for storing and spraying flammable liquids, as “this building used for dwellings is not suitable for this occupancy” and that failure to comply at once will result “in such action as the law provides.” The affidavit states that to avoid the penalty of the law and to comply with the directive of the Fire Department the partners moved from the premises on April 10, 1953. The affidavit further states that when the plaintiffs signed the lease with the partners they knew that the Municipal Code prohibited the use of the premises for the purpose designated in the lease “or they did not know it”; that if they knew of the prohibition “they are guilty of fraud which renders the contract voidable”; and that “if plaintiffs were not familiar with the prohibition of the Code there was a mutual mistake as to the facts.”

It will be observed that the notice from the Fire Department did not tell the defendant to move from the premises. In the lease the defendant agreed to obey all laws and ordinances, that he would not use flammable liquids on the premises and that he would not use any chemicals with odors. There was testimony of a conversation between one of the plaintiffs and defendant wherein the plaintiff told defendant that he would have to move if he did not stop using the liquids that caused the odor and that defendant said he could not operate his business without the flammable liquids. In defendant’s amended affidavit there is no claim that he moved at the direction of plaintiffs. He states that he moved because of a desire to avoid the penalty of the ordinance and to comply with the directive of the Fire Department. A reading of the transcript makes it clear that plaintiffs were insisting on compliance with provisions of the ordinance and the lease against the storing and use in the premises of flammable liquids.

Defendant, calling attention to the provision of the lease that the premises were to be occupied for “printing and for no other purpose whatever,” insists that because one of the necessary operations in screen printing is storing and spraying flammable liquids, he could not continue to occupy the premises after being ordered to discontinue the use of such liquids. The fact that in the body of the lease the lessee is described as the Metropolitan Screen Printing does not constitute notice to the plaintiffs that flammable liquids or chemicals with odors will be used in the operation. The lease provides that the premises are to be occupied for “printing and for no other purpose.” The lessee further agrees in the lease that in the conduct of the business he will not use flammable liquids and that he will not use any chemicals with odors. The fact that plaintiffs went to the premises to see defendant’s business in operation prior to the signing of the lease adds emphasis to these provisions. The Municipal Code does not prohibit the operation of a printing business on the premises. It prohibits the use of flammable liquids. The defendant could have continued the occupancy of the premises in compliance with the lease and the ordinances. No act of the landlords caused defendant to vacate the premises. There was no constructive eviction.

Defendant states that under the ordinance the premises could not be used for the purpose for which it was leased and that therefore the lease was illegal and a nullity. The lease is not illegal. It was not made in violation of a statute or an ordinance. It was not made for an illegal purpose. To support his position the defendant cites cases involving gambling establishments, houses of ill fame and acts prohibited by law. In the case at bar the ordinance does not prohibit a printing establishment on the premises. The defendant agreed in the lease that he would observe all laws and that he would not use flammable liquids or any chemicals with an odor. Defendant also relies on cases presenting the doctrine of impossibility of performance due to the intervention of domestic legislation such as the prohibition laws. These cases do not have any application to the facts in the case at bar. There has been no change in the law. The ordinance invoked was adopted prior to the making of the lease.

The defendant had the right to use the premises in the conduct of a printing business. He moved when the Fire Department insisted on compliance with the ordinance against the use and storing of flammable liquids in a building occupied by other persons as a dwelling. All the parties to this action are presumed by the law to know the provisions of the fire ordinance. The defendant violated the fire ordinance and the provisions of the lease. Plaintiffs had a right to insist that defendant comply with the provisions of the lease and the requirements of the ordinance. For these reasons the judgment entered June 17, 1955, is reversed and the cause is remanded with directions to restore the original judgment.

Judgment reversed and cause remanded with directions.

FRIEND, P. J. and NTEMEYER, J., concur.


source: Caselaw Access Project

author: PBESIDHSFG JUSTICE HIBBS

license: Public Domain

text:
    Paul Hammers, Plaintiff-Appellant, v. Board of Fire and Police Commissioners of City of Mattoon, Illinois, Defendant-Appellee.
    Gen. No. 10,060.
    Third District.
    May 14, 1956.
    Rehearing denied June 11, 1956.
    Released for publication June 11, 1956.

      Kenneth A. Green, of Mattoon, for plaintiff-appellant.
    Craig & Craig, and B. G. Beal, City Attorney, all of Mattoon, for defendant-appellee; J. E. Horsley, of Mattoon, of counsel.
   PBESIDHSFG JUSTICE HIBBS

delivered the opinion of the court.

The plaintiff, appellant here, instituted this action in the Circuit Court of Coles county to reverse an administrative decision of the Board of Fire and Police Commissioners of the City of Mattoon entered July 21, 1954, which discharged the plaintiff as a policeman. The Circuit Court affirmed the action of the administrative board.

On or about February 1,1952 Larkin Jones, then the Chief of Police of the City of Mattoon filed a letter with the Board of Fire and Police Commissioners of that city requesting that the Board discharge Paul Hammers, a policeman. The letter set up that on the night of January 29, 1952 the Chief arranged to put into effect on the following night a trap for a person who had assaulted one Medra Ellsworth. Under the plan all police officers including the appellant, Paul Hammers were to take their places in specified spots in the 'vicinity of the 1400 block on Lafayette avenue in that city and were not to leave the scene until the Chief picked up Officer Heckwine, who was to be used as a decoy, and personally came by each car and notified the officers that they could leave their post of duty.

On the night of January 30, 1952, pursuant to such plan, all police cars and two sheriff’s cars were assigned to certain places indicated by the schedule. The plaintiff, the appellant, and officer Baker were assigned to one car spotted at the corner of 15th street and Lafayette avenue. They stayed there while officer Heck-wine made three or four trips by their car and then officer Hammers said: “I guess it is all over, let’s go,” and proceeded to leave the designated spot to where officers Plummer and Creek were stationed in their car. It was charged that the plaintiff told Plummer and Creek that it was over, “Let’s go home,” and they also left, thus leaving two gaps in the line.

It was further charged in the letter that plaintiff wilfully and without authority disobeyed the orders of the Chief of Police in not remaining at the spot assigned until relieved by personal orders, and through his wilful conduct endangered the life of officer Heck-wine and so disrupted the plan to apprehend the person who had been causing the assaults that he escaped.

The Chief recommended that officer Hammers be relieved of his duties as a police officer in the City of Mattoon.

The Board of Fire and Police Commissioners held a hearing on the purported charges in February 1952 without filing written charges against Hammers, as required by the provisions of Chapter 24, Sec. 14 — 11 of Hlinois Revised Statutes, 1951. At the conclusion of that hearing the plaintiff here was discharged by the Board. Later he filed a complaint with the Circuit Court to review the decision, which was affirmed. Thereafter Hammers appealed to this court where the cause was reversed for the reason that no written charges had been filed and the appellant nor anyone in his behalf had any knowledge of the contents of the letter or the particular charges against him. (Hammers v. Board of Fire & Police Com’rs, 1 Ill.App.2d 421.) In that case it is said: “If the letter written by Chief Larkin Jones to the chairman of the Board had been given to Hammers in reasonable time so that he would have had full knowledge of the offense charged against him and time to prepare any defense he may have had, then the provisions of the statute would have been satisfied. But this was not done. Instead, the officer was notified orally late in the evening of February 3, 1952, that he would have a hearing before the Board at 10:30 A. M. the following morning. This court does not believe that the statute has been complied with, either in letter or spirit.”

Thereafter the Board of Fire and Police Commissioners ordered the plaintiff reinstated, and three days later, the Board filed the charges against the appellant. The first charge consisted of a recital of the letter of the former police chief, Larkin Jones. Then there was added six other charges. The additional charges, especially three to six, are not now of importance inasmuch as the Board’s opinion and decision was based solely upon the charges contained in the letter of February 1,1952 of the then Chief of Police, Larkin Jones. The appellant was served with a written copy of the charges against him and relieved of his position as a patrolman on the police force. The charges were set for hearing for June 4, 1954. The decision of the Fire and Police Commissioners Board was filed on the 21st day of July 1954 and found that the charges contained in the letter of Larkin Jones, former Chief of Police, had been sustained by the evidence. The Board found that on the 30th day of January 1952 the appellant wilfully and without authority disobeyed the orders of his superior officer in failing to remain at the post of duty assigned to him and in so doing endangered the life of officer John Heckwine and disrupted the plan of the Chief of Police to apprehend the person who had theretofore viciously assaulted a woman in the City of Mattoon, that he cursed his superior officer and was guilty of insubordination towards him. The order finally found that the appellant was not a fit and proper person to be a member of the police force of the City of Mattoon, and his discharge on the 5th day of February, 1952 was thereby made permanent.

It is contended by the appellant in this court, (1) that the Board of Fire and Police Commissioners could not legally prefer the charges and then sit as judges at the hearing thereof; (2) that due process of law applies to administrative proceedings as well as judicial proceedings; (3) that in the interpretation of the fire and police commissioners statute, Chap. 24, Article 4 and particularly Sec. 14 — 11, Illinois Revised Statutes, it must be liberally construed towards the fireman or policeman; (4) that the discharge of an officer under the provisions of the act must be for “cause”; and finally (5) the decision of the administrative board is against the manifest weight of the evidence.

A resume of the facts show that in January of 1952 a Miss Nedra Ellsworth was going home from the business district of the City of Mattoon between 9:30 and 10:00 P. M. when an unidentified man assaulted her and beat her with a brick or other object, as a result of which she was seriously injured. The attack occurred in the 1400 block of Lafayette avenue in that city. On January 29, 1952 a meeting to plan strategy was held at the police department. The appellant, Paul Hammers was present and there were other officers also present. A plan was adopted which required placing of several officers in private cars in the vicinity in which the attack had occurred. Officer Heckwine was to be “designed as a woman and serve as a decoy.” The arrangement was set up so that the department would have approximately four men or more who could constantly watch and observe the decoy officer as he walked along the sidewalk in the danger area. Heck-wine was to continue to walk the area, and it was on his fifth trip when he was assaulted. “After the trap” should have been sprung following the assault on Heckwine in his female attire, it was found that the plaintiff, who was an alerted officer participating in the plan, had left his post of duty. In the assault Heck-wine sustained a blow on the side of the head which raised a knot about half the size of a hen’s egg and the assailant escaped.

Among the officers who participated in the execution of the plan was the plaintiff, Paul Hammers and officers, Creek, Plummer and Baker, as well as others including the sheriff and his deputies. Hammers was a senior city patrolman. He and Baker were in Hammers’ car on the evening of January 30, 1952 as a part of the execution of the plan to trap the assailant. They were located just south of Lafayette avenue on 15th street, a few feet west of where Miss Ellsworth had been attacked. They saw Heckwine walk past them. Baker saw him three times. The car radio was on and the windows were open. At about 9:30 P. M. or shortly thereafter Hammers told Baker it appeared that it was all over and he had to go home and dress in his uniform to go on duty at 11:00 P. M. Baker stated that he believed they should stay and further testified he understood the Chief would come by and advise them when to leave. Nevertheless they drove around the block to where officers Plummer and Creek were located at their post of duty and Hammers stated to them that he thought it was all over, in consequence of which Plummer and Creek left. After the plaintiff had left his assigned post of duty, Heckwine was assaulted about five or ten feet from the alley. Heckwine saw the attacker, drew Ms gun and fired two shots hut the assailant escaped. A search of the area was made without success. The Chief of Police, Larkin Jones returned to headquarters and telephoned the plaintiff who shortly thereafter reported at the police station. The Chief of Police released Hammers from duty and told Mm to go home.

On February 1, 1952 the CMef submitted to the chairman of the Board of Fire and Police Commissioners a set of charges which constituted the charge upon which the plaintiff was tried in this proceeding.

The plaintiff admitted he attended the meeting on January 29, 1952 in the office of the Chief of Police concerning the setting of the trap for the night of January 30th following, but he said that the Chief did not give any directive in his presence concerning the time when the men were supposed to leave their post of duty. He further testified that Edward Horn, captain of the police force was present. Horn testified that he was present in the Chief’s office on the 29th of January, and all men were notified either on the evening the decoy was to be put out or on the evening prior thereto as to where they were to be stationed. Their instructions were that they were to have the windows of their cars down and a signal, the blowing of a police whistle, would indicate that there was trouble and the decoy had been assaulted. The headlights were to be out. He further testified that the officers would remain there until they were given orders to leave.

The appellant was tried by a Board of Fire and Police Commissioners of the City of Mattoon on six charges, the first and second of which was the complaint of Larkin Jones, Chief of Police, and the third, fourth, fifth and sixth charges were withdrawn or held by the Board to have not been established. The first charge is the communication received by the Board from the Chief of Police and the second was that on January 30, 1952 the appellant, while a police officer, used profane and abusive language toward the Chief of Police and committed acts of insubordination towards the said Chief, a part of which is incorporated in the complaint made by the Chief.

It is true that the specific charges numbered one to six were signed by the Board of Fire and Police Commissioners of the City of Mattoon. Complaint is made by the appellant that because the charges were signed by the Board, they are disqualified to sit at the hearing. Article 14, Chap. 24, being secs. 14 — 1 to 14 — 17 inclusive, 1951 Illinois Revised Statutes provides for the adoption of the optional Fire and Police Commissioners Act in cities of less than 100,000 inhabitants and also in cities, villages and towns of 13,000 inhabitants and not more than 250,000, which is not subject to an “Act to regulate the civil service of cities” and provides for the appointment of a board of fire and police commissioners, qualification of the members, rules of conduct of the examination of firemen and policemen and their removal and discharge. Sec. 14 — 11 provides that no officer or member of the fire or police department of any municipality subject to the act “shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. These charges shall be investigated by the board of fire and police commissioners, and in case any officer or member is found guilty, the board may remove or discharge him, or may suspend him not exceeding ten days without pay. The board may suspend any officer pending this investigation, but not to exceed thirty days at any one time. In the conduct of this investigation, each member of the board shall have power to administer oaths and affirmations, and the board shall have power to secure by its subpoena both the attendance and testimony of witnesses and the production of books and papers relevant to the investigation.”

The only question before this court involves the charges made by Larkin Jones, the then Chief of Police of the City of Mattoon under date of February 1, 1952. No other question is before this court for review. In our former opinion we merely held that inasmuch as the plaintiff had not been furnished with a copy of the charge and an opportunity to defend himself he had not had a hearing contemplated by the statute and the cause was reversed. The merits of the matter were not disposed of by this court. Thereupon the complaint contained in the letter of the Chief of Police was incorporated in a charge together with certain other charges, which were later withdrawn or held not substantiated. Plaintiff was served with a copy of the charge and a date was set for the hearing.

The Board of Fire and Police Commissioners was not in fact in this case the accuser, but it was the Chief of Police, Larkin Jones. The only connection the Board had with the charges upon which the plaintiff was tried and found guilty was to have them written down and personally served in conformity with the statute. In Tarr v. Hallihan, 375 Ill. 38 the complaints were filed with the Department of Registration and Education against certain licensed dentists by a regular employee of the department at the request and direction of the department. It was argued that while the hearings were had before the dental examining committee, its personnel was chosen by the director, and while the director may not enter an order of revocation except on the action and written order of the committee, he has the right to send the case back to the same committee or a new committee whenever he disagrees with the conclusions and recommendations of the committee. From this it was contended that the director can control the action of the committee by continuing to resubmit the cause until a recommendation satisfactory to him is had. It was contended further that in this connection the director was accuser, prosecutor and judge. At page 40 of their opinion the court say: “We are unable to agree with appellants’ contention that the procedure is lacking in due process because the complaints were signed by an employee of the department. That appellants are entitled to a hearing before an unbiased tribunal is not questioned. However, the mere fact that charges are made by an employee of the department does not, in our opinion, establish that the dental examining committee would be prejudiced against appellants.”

In Pipe Trades, Inc. v. Rauch, 2 Ill.2d 278, it is said at page 289: “Looking to the first contention, the argument advanced seems to be that due process of law means judicial process, a premise long since rejected by State and Federal courts. (Citations.) Insofar as due process of law arises in public administrative law, the rule is concisely stated in 42 Am. Jur., Public Administrative Law, Sec. 116, as follows: ‘While the constitutional guaranty of due process of law, the object of which is to preserve personal and property rights against the arbitrary action of public officials, applies to administrative as well as judicial proceedings, due process is not necessarily judicial process, except in the case of punishment for crime, and all the formalities of judicial proceedings are not essential to constitute due process of law in an administrative proceeding.’ The same section, and many of the cases cited therein, tells us that administrative process by a board, executive or administrative officer, is as much due process as is judicial process, particularly when judicial review of the administrative action is provided.” Again the court say at page 290: “Thus, the requirements have been fully met in this case for it is unchallenged that appellant had notice and a hearing, and, further, it is apparent that a full process of judicial review has been available before the administrative order becomes final.”

It is next contended that under the provisions of the statute the officer must be discharged for cause. It will suffice to say without again quoting from the statute that no officer or employee where the Fire and Police Commissioners Act is in force can be removed or discharged except “for cause,” after written charges and after an opportunity to be heard in his own defense. In the case of Heaney v. City of Chicago, 117 Ill. App. 405 at page 411 it is said: “This, of course, implies that the written charges must state a ‘cause’ for his removal, which must be some substantial shortcoming which renders his continuance in his office or employment in some way detrimental to the discipline or efficiency of the service.” Again it is said at page 411: “That negligence and incompetency on the part of an officer in regard to some particular work which it has been his duty to do or to supervise and look after, are causes for which the Commission may properly allow a removal, cannot be seriously doubted. To hold otherwise would be to make of the Civil Service Act something very different from what the Legislature intended, and a menace instead of a protection to public interests.” While that case involved the administration of the Civil Service Act it is so much like the present case involving Sec. 14 — 11 of Chap. 24 of Illinois Revised Statutes that the holding of the court there is controlling here.

It is next contended that the decision of the administrative board is against the manifest weight of the evidence. The Chief of Police testified that Miss Ells-worth was assaulted in the 1400 block on Lafayette avenue and on the 29th day of January 1952 they worked out a scheme at the police station for trapping the assailant. Captain Ed Horn, Paul Smith, who was the radio operator for Coles county, Mike Dowling, the sheriff, Paul Hammers and McDuffy were all there and two or three other men. The plan was discussed with them and each was to have a part. “We determined to lay the trap the next evening.” On January 30th they started the trap at nine o’clock. “I told the officers where to place their cars, and officers, Hammers and Baker, had their car south of Lafayette avenue and headed north on the east side of the street approximately fifty or one hundred feet back of the intersection of 15th Street and Lafayette Avenue. Heck-wine was designed as a woman.” The Chief would pick him up at 12th and Lafayette and haul him up to the alley by the Madison theater and Heckwine would proceed on his tour down south 15th street to Lafayette avenue, east on Lafayette to 12th street and the Chief would pick him up there and haul him to the alley back of the theater. “The arrangement was so we would have approximately four men or more where the decoy could be seen. The flood lights would furnish background for Hammers and Baker at their position. All the officers took their places on the evening of January 30th. Heckwine was on his fifth round at the time he was assaulted. At the meeting at the police headquarters on January 29th someone asked when they would quit. Someone, not even I, said, ‘Let the chief come around and tell us,’ and I said, ‘Well, that’s what I will do.’ Two men who were sitting in the car at the corner of 15th Street and Lafayette could have seen the assault upon Heckwine at the alley between Wabash and Lafayette on 15th Street. The officers I found missing were Hammers, Baker, Creek and Plummer. All four were at the meeting on January 29th. After I found that Creek, Plummer, Baker and Hammers were off duty, I found officers Walker and Elder still on duty and the sheriff and his deputies had not left their station.”

Edward Horn, captain of the police force testified he was present when the plans were drawn up with reference to the capture of the assailant of Nedra Ells-worth. That conference took place in the Chief’s office. The officers were to be at their station about 8:30 and were to remain until they were given orders to leave. “I heard no instruction as to what time the service at the particular station would terminate, but being that he (meaning the chief) is my superior officer, that would be for him to tell me when to leave or the officer with me or any other officer, because he was in charge of the detail, not me.”

John Baker, a patrolman testified, that he had his advice from the Chief and it was his understanding that the Chief would “come by and advise each of us when to leave. My recollection is that Hammers was there, and I was in the car with Hammers on the evening of January 30, 1952, located just south of Lafayette Avenue on 15th Street. We could see Heckwine as he approached. We had the radio on and the windows open. I counted three times that Heckwine passed. He could have passed more than that. Officer Hammers said it appeared to him it was all over and he had to go home and dress and prepare to come back to work at eleven o’clock and said, T think we’ll go’ and we left and stopped and talked to officers Plummer and Creek. Hammers told Plummer and Creek that he thought the thing was over. I believe I stated that we should stay and officer Hammers said that he had to go home and get ready to come back to work at eleven o’clock.”

It is true that there is also evidence in the record including plaintiff’s that the officers assigned were not informed as to how long they were to remain at their stations. The fact is that Hammers knew they were laying a trap for a criminally inclined person who had made a vicious assault on a woman a few nights before. He also knew that his co-patrolman, Heckwine was disguised as a woman patrolling the particular street or streets involved, and might be assaulted by this person. He claimed that he was off duty at the time but had volunteered his services. Whether he did so volunteer is not material. He was assigned to a certain spot, he knew that the Chief of Police was in charge, and he had no right to leave his post of duty until he was advised so to do by one of his superior officers. If he had remained in that post, he and his companion officer would have seen the assault, inasmuch as the scene thereof was within their view. Notwithstanding the admonishment of his companion, who thought they should remain, the plaintiff not only left his post of duty but he drove around the block and advised Plummer and Creek, co-patrolmen at their post of duty that he thought it was all over and was going home and as a result they also went home.

There is in this record substantial evidence that the plaintiff failed to remain at a post of duty assigned to him and thereby endangered the life of his fellow officer, Heckwine and disrupted the plan to apprehend the person who had theretofore viciously assaulted a woman in the City of Mattoon. Although as stated above there is conflict in the evidence, we do not believe that the order of the Board of Fire and Police Commissioners of the City of Mattoon is contrary to the manifest weight of the evidence.

Finally it is contended that inasmuch as no charges were lodged against officers Plummer and Creek the procedure before the Board may be attacked as contrary to the equal protection clause of the constitution. We do not believe there is any substance to the point thus made. Further, the plaintiff was a senior patrolman and it was at his suggestion that the matter was over and he was going home that led to their leaving their post of duty.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: JUDGE REYNOLDS

text:
    In Matter of Estate of Samuel James, Deceased. C. A. Williams, Administrator of Estate of Samuel James, Deceased, et al., Petitioners, v. E. B. Van Scoyk, Executor of Last Will and Testament of Samuel James, Deceased, Respondent. E. B. Van Scoyk, Appellant, v. C. A. Williams, Administrator of Estate of Samuel James, Deceased, and Katie Mitchell, Sole Heir, Appellees.
    Gen. No. 10,036.
    Third District.
    May 14, 1956.
    Rehearing denied June 11, 1956.
    Released for publication June 11, 1956.

      Kenneth A. Green, of Mattoon, for appellant.
    Bennett & Bennett, Grendel F. Bennett, and Caslon K. Bennett, all of Marshall, and C. A. Williams, of Casey, for appellees.
   JUDGE REYNOLDS

delivered the opinion of the court.

Samuel James, a resident of Clark county, Illinois, died on August 29, 1950, at the age of 92. He was survived by his daughter, Katie Mitchell, an only child, and his sister Martha Spear. He left a purported will, by the terms of which he left all his property to his sister Martha Spear, except $500 which was bequeathed to the Presbyterian Church of Mattoon, Illinois, and 40 acres of land which was devised to the daughter Katie Mitchell, provided that in the event that Katie Mitchell contested the will, then the 40 acres was to go to the Baptist Church of Westfield, Illinois. The will was admitted to probate in the County Court of Clark county, and E. B. Van Scoyk was appointed executor. Afterwards, Katie Mitchell filed a suit in the Circuit Court of Clark county to contest the will. The first trial resulted in a hung jury. In the second trial the jury returned a verdict setting aside the will. A petition was filed in the County Court by the then executor E. B. Van Scoyk, and Martha Spear for authority to appeal the decision in the Circuit Court to the Supreme Court. This was denied by the County Court, but the appeal was perfected and in the case of Mitchell v. Van Scoyk, 1 Ill.2d 160, the Supreme Court affirmed the judgment of the Circuit Court. C. A. Williams was then appointed administrator of the estate. After-wards, the then executor, Van Scoyk filed a final report as such executor in the County Court. Objections to this report were filed by the daughter, Katie Mitchell and C. A. Williams, Administrator. E. B. Van Scoyk as executor and Kenneth A. Green, attorney for the executor, having filed their petition for the fixing of fees of the executor and attorney, the petition for the fixing of fees and the objections to the final report were consolidated. On May 8, 1954, the County Court entered an order ruling on the final report and the objections thereto. The matter was continued pending the final determination of the case in the Supreme Court, and on June 28, 1954, the executor’s compensation was fixed at $3,725 and the attorney’s fees were allowed in the sum of $4,550, and the executor ordered to file an amended report within 30 days. From this order, both the objectors and Van Scoyk appealed to the Circuit Court. On March 2,1955, the Circuit Court of Clark county entered an order that the said E. B. Van Scoyk, as executor, be charged with certain sums received by him as such executor, that he be allowed credit for certain expenses of the estate, fixed the fee of the executor at $1,900 and the attorney’s fees at $3,300. The order further found that E. B. Van Scoyk, executor of the Last Will and Testament of Samuel James, owed to C. A. Williams, administrator of the Estate of Samuel James, deceased, the sum of $18,971.66, and ordered this paid to the estate.

On April 12th, 1955, the Circuit Court entered an amended order and in the amended order the cause was remanded to the County Court of Clark county, with instructions to enter an order modifying the order of the said County Court of Clark county, rendered June 28,1954, with directions to enter an order in conformity with the findings of the Circuit Court as expressed in the opinion filed on March 2, 1955. From this order as amended, E. B. Van Scoyk as Executor, appeals to this court.

From the inheritance tax return filed for this estate it appears that the total value of the estate was $49,789.87, of which $23,332.37 was money, $57.50 was chattel property, and $26,400 was real estate. An additional sum of $6,304.77 shows on the final report as income from the real estate. In the final report filed by the executor, $13,000 was charged for attorney fees, and $5,250 was charged for executor’s compensation. The attorney’s fees were broken down as follows: Fees for administration of the estate $2,000; fees for defending first will contest case $3,750; fees for defending second will contest case $3,750; fees for appeal to the Supreme Court $3,500. The attorney fees were paid by the executor without order or authorization from the County Court.

The items in the final report of the executor, which were objected to are many and varied. It is not necessary for the purpose of this appeal to burden the record with all of them, and only those matters raised by the appellant in his appeal will be considered. These items are as follows:

1. That portion of said order which fixed the witness fees of Dr. L. H. Johnson at $2.70 and that of Dr. F. B. Weaver at $4.90 for testimony in the will contests instead of the $35 charged.

2. That portion of said order which states “insofar as the final report of E. B. Van Scoyk, Executor of the Last Will and Testament of Samuel James, Deceased, is at variance with this order, objections thereto are expressly sustained.”

3. That portion of the order which:

(a) Disallows the charge of $35 paid to Dr. L. H. Johnson as a witness fee at the second will contest.

(b) Disallows the charge of $35 paid to Dr. F. B. Weaver as a witness at the second will contest.

(c) Disallows the fees of $100, $100, and $62 paid to Mrs. Trimble for second will contest.

4. That portion of the order which fixes the attorney’s fee for administration at $1,000 instead of the $2,000 reported on the final report.

5. That portion of the order which fixes the attorney’s fee at $1,400 for the first will contest case instead of the $3,750 reported on the final report.

6. That portion of the order which fixes the attorney’s fee at $900 for the second will contest case instead of the $3,750 reported on the final report.

7. That portion of the order which fails to allow $3,500 by way of attorney fees for appeal to the Supreme Court and which fails to allow $154 for printing.

8. That portion of the order which fixes the Executor’s fee at $1,900 instead of the $5,250 claimed on the final report.

9. That portion of the amended order which allows Administrator’s and Katie Mitchell’s objections numbered 23, 24, 25 and 26.

10. That portion of the amended order which allows in part Administrator’s and Katie Mitchell’s objections numbered 18, 19, 20, 21, 29, 30, 31, 32 and 33.

11. That portion of the amended order which orders the Executor, E. B. Van Scoyk to pay to the present Administrator the sum of Eighteen Thousand Nine Hundred and Seventy-one Dollars and Sixty-six cents ($18,971.66).

12. That portion of the amended order which requires E. B. Van Scoyk to pay the costs in the Circuit Court.

13. That portion of the amended order which remands the cause to the County Court of Clark County with directions to render an order in conformity with the opinions filed in the Circuit Court.

While the brief submitted by the appellant does not take any position or cite any authorities to support his position on some of the errors assigned, this court in order to dispose of the whole matter, will take them up in numerical order.

1. The Circuit Court fixed the fees of Dr. L. H. Johnson and Dr. F. B. Weaver, at $2.70 and $4.90 respectively. Apparently, the executor paid these two doctors on the basis of expert testimony, but the law does not recognize a difference between the ordinary witness and the so-called expert witness. This was determined by the case of Commissioners of Lincoln Park v. Schmidt, 395 Ill. 316, where the court said: “We have also held expert witnesses are in the same position as other witnesses with respect to their fees, (Hutchinson v. Hutchinson, 152 Ill. 347) and that an expert can be compelled to testify despite his objection that he is entitled to be paid on the basis of being an expert. Dixon v. People, 168 Ill. 179.”

2. This is a general ground which is not pursued by the appellant in his brief and will not be considered by this court.

3. (a) and (b). The reason for the disallowance of the two doctors’ fees as witnesses in the second will contest trial does not appear in the Circuit Court order. If they were witnesses at the second trial, they would be entitled to the statutory fee allowed other witnesses. Dependent upon the statutory fee allowed, these fees should be allowed, if they testified in the second will contest, (c) The sums of $100, $100 and $62 paid the official court reporter for transcript of the second will contest, are part of the money expended by the executor in the appeal to the Supreme Court. Since these payments are governed by the law governing the right of the executor to charge the estate with the expenses and costs of the appeal of the will contest case, this item will be discussed later in this opinion.

4, 5, and 6. These concern the attorney fees in the two will contest cases, and the administration of the estate. As charged in the final report of the executor these amounted to $13,000. The County Court reduced them to $4,550. The Circuit Court fixed the attorney fees at $3,300.

Section 491, Chapter 3, Illinois Revised Statutes provides for attorney fees for an executor in the following language: “The attorney for an executor, administrator, administrator to collect, guardian, or conservator shall be allowed reasonable compensation for his services.” This section is construed by the appellant as saying that the jurisdiction of the court is limited only to allowing reasonable fees and that the court does not have the power to fix the fee of the attorney. This is not the law. The right of the Probate Court to allow an executor or administrator credit in his account for reasonable attorney’s fees for services in enabling such officer to properly, and efficiently perform duties of his office, is undoubted, but the amount paid for attorney’s fees is to be determined by the court in exercise of judicial discretion. In re Gilbert’s Estate, 319 Ill. App. 15. Compensation of an administrator and his attorney are matters peculiarly within province of the probate judge. In re Kanner’s Estate, 2 Ill.App.2d 530.

The court is not bound by testimony as to the amount of fees to be allowed. In ascertaining what is a proper amount to allow for attorney’s fees, the court is not bound to accept the opinions of the witnesses as conclusive, but should take into consideration its own knowledge of the value of the services rendered. Gentleman v. Sanitary Dist. of Chicago, 260 Ill. 317. Goodwillie v. Millimann, 56 Ill. 523; Metheny v. Bohn, 164 Ill. 495. In the Goodwillie v. Millimann case, snpra, that court said: “In taxing such fees the chancellor should exercise his own judgment, and not be wholly governed by the opinion of attorneys as to the value of the services. He has the requisite skill and knowledge to form some idea as to what is a fair and reasonable compensation, and he should exercise that judgment. He should, no doubt, consider the opinions of witnesses and evidence of the sum usually charged and paid for such services, but should not be wholly controlled by the opinions of attorneys as to their value.” In the case of McMannomy v. Chicago, D. & V. R. Co., 167 Ill. 497, in discussing the fixing of attorney’s fees, that court said: “While opinions are receivable and entitled to due weight, the courts are also well qualified to form an independent judgment on such questions, and it is their dnty to do so.”

In the case of Mumper v. Murphy, 212 Ill. App. 52, the court said: “Courts have some knowledge concerning the value of an attorney’s services, and a court may to some extent and should exercise an independent judgment in passing on questions concerning the amount to be allowed an attorney in any case. Giger v. Bishop, 231 Ill. 472; Colton v. Coffey, 187 Ill. App. 558.”

So it would seem to be the law in Illinois, that the courts have not only the right but the duty, under the Probate Act, to fix and allow attorney’s fees. And where a cause has been appealed from the County or Probate Court to the Circuit Court, the same right and'duty extends to the Circuit Court. On a trial de novo before the Circuit Court on objections to a final report of an executor, all the questions, including attorney’s fees, that were before the County Court could be properly brought before the Circuit Court, since a trial de novo could adjudicate all the matters before or passed upon in the court of original jurisdiction. In re Estate of Betts, 2 Ill.App.2d 453. The appellant has urged that the purchasing value of the dollar was far greater in cases which date from 1885 to 1943, and that the court may take into consideration the difference in the purchasing power of the dollar. This is undoubtedly the law, but there is nothing in the record to show to this court that the trial court did not so consider the difference in the purchasing power of the dollar in arriving at its determination as to what was a reasonable attorney fee in this cause.

The appellant urges that the previously decided cases on the point of reasonableness of fees must be followed. That the doctrine of stare decisis is a substantial and fundamental part of our law. We agree that the doctrine of stare decisis is a substantial and fundamental part of our law, but the difficulty lies in determining what is stare decisis in cases of this kind. There are many cases in our Supreme and Appellate Courts determining the reasonableness of fees, but each case had its own peculiar facts and circumstances, and what would be reasonable in one could be unreasonable in another. Each case must rest on its own facts and circumstances and no hard and fast rule can be or has been laid down in determining what would be a reasonable attorney fee in each individual case. In this case, the trial court, after hearing the witnesses, examining the record, and being fully advised, fixed and determined what it considered to be a reasonable attorney’s fee for services rendered by the attorney for the estate. This court cannot say that the determination of the trial court is manifestly or palpably erroneous and finds nothing that would justify it in overruling the judgment of the Circuit Court.

7. Appellant assigns as error the refusal or failure of the Circuit Court order to allow $3,500 as attorney fees for appeal of the judgment of the Circuit Court holding the will invalid, and which fails to allow $154 for printing. In passing on this the money paid to the official reporter for transcript of the evidence in the second will contest case, amounting to $262 should also be considered, because if one is proper, the other would also be proper. Formerly it was the law in Illinois that money expended by an executor in defending a suit to contest the validity of a will, in behalf of the personal interest of the devisees named in the will, in which suit the will is set aside, are not proper credits to be allowed against the estate, and the executor must look to such devisees for such expenditures. Shaw v. Moderwell, 104 Ill. 64. This rule has been abrogated by Section 245 of Chapter 3, Illinois Revised Statutes which make it the duty of the executor to defend the will and appeal a decree of the Circuit Court invalidating the will. But while there is a duty on the part of the executor to defend the will and appeal if necessary, there is no duty or right on the part of the executor, to involve the estate in unnecessary litigation or to pursue an issue at great cost to the estate, where the executor has reasonable grounds to believe that the decree finding the will invalid by reason of undue influence was proper, as in this case. The case of Leonard v. Burtle, 226 Ill. 422 is somewhat analogous to this case. In that case there was undue influence. In that case there were fiduciary relations existing between the appellant and his mother. In this case the Supreme Court in Mitchell v. Van Scoyk, 1 Ill.2d 160, on page 169 said: “It leaves little doubt that there was a strong fiduciary relationship between Martha Spear and her brother, Samuel James, during the last two years of his life and at the time the will and codicil were executed.” The court went further and said on page 172 of the opinion: “It thus appears that Martha Spear and E. B. Van Scoyk, both of whom were to benefit materially and extensively by the will and who occupied a fiduciary relationship with James, were connected with the making of the will, though Van Scoyk was not present at the time of its execution.” And in this case it further appears that the same attorney who now asks attorney fees for appealing the judgment of the Circuit Court in the will contest case to the Supreme Court, was the same attorney who drew up the will, tried the case twice in the Circuit Court on the question of the validity of the will, and was fully conversant with every detail of the transaction. As said in the Leonard v. Burile case, supra, the court was justified, in the exercise of a sound discretion, in awarding costs against appellant individually. And in this case, in view of all the circumstances, this court must hold that the Circuit Court was justified in denying the allowance of an attorney fee for the appeal to the Supreme Court. This would apply to costs as well and the costs of the official reporter should be paid by the executor individually and not charged against the estate.

8. The right and duty of the Circuit Court to fix the fees and compensation of the attorney in this case, extends to the compensation of the executor. Under the law as formerly laid down, the fees of the administrator or executor of an estate were limited to 6% of the personal property in the estate. Under the law now, Section 490, Chapter 3, Illinois Revised Statutes, an executor shall be allowed reasonable compensation for his services. Here the Circuit Court has fixed $1,900 as reasonable. This court can perceive no valid reason or right of this court to overrule that determination.

9 and 10. These relate to certain objections of the administrator and Katie Mitchell to the executor’s final report, relating to court costs of the appeal, the allowance of printing fees, and attorney and executor fees and have been passed upon.

11 and 12. These relate to the computation of unauthorized payments by the executor and order the repayment by the executor. Because we have held in this opinion that these payments should be charged to the executor and not the estate, the order of the Circuit Court should be affirmed as to these items.

13. This relates to the order of the Circuit Court remanding the cause to the County Court with instructions to enter an order in conformity with the order of the Circuit Court. This was proper and necessary and is not error.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Central Standard Life Insurance Company, Plaintiff-Appellant, v. C. Hayden Davis, et al., Abraham Lincoln Hotel Company, Abraham Lincoln Hotel Operating Company, and Charles H. Mitchell, Defendants-Appellees.
    Gen. No. 10,067.
    Third District.
    May 14, 1956.
    Rehearing denied June 11, 1956.
    Released for publication June 11, 1956.

      Vernon R. Loucks, of Chicago, and H. E. Fullenwider, of Springfield, for plaintiff-appellant; Charles 0. Loucks, and James L. Henry, both of Chicago, of counsel.
    Barber & Barber, of Springfield, and E. K. Bekman, of Ottumwa, Iowa, for C. Hayden Davis, F. M. Condit, E. E. Nicholson, Abraham Lincoln Hotel Operating Company, and Charles H. Mitchell, defendants-appellees; Clayton J. Barber, and Alton G-. Hall, both of Springfield, of counsel; Griffin, Winning, Lindner & Newkirk, of Springfield, for Abraham Lincoln Hotel Company, defendant-appellee; Montgomery S. Winning, of Springfield, of counsel. •
   JUDGE REYNOLDS

delivered the opinion of the court.

The plaintiff, Central Standard Life Insurance Company, as holder of 4098 shares of the preferred stock of the Abraham Lincoln Hotel Company, an Dlinois corporation, filed suit in chancery in the circuit court of Sangamon county as a class action on behalf of itself and the other holders of preferred capital stock of said corporation, asking the court to direct a sale of the assets of the hotel company and to liquidate the corporation. To the complaint the defendant corporation filed an answer and a separate defense of estoppel. After the suit was started, Charles H. Mitchell intervened and answered the complaint, as an intervening defendant. In addition, the Abraham Lincoln Hotel Operating Company, an Hlinois corporation, as lessee of the hotel, and C. Hayden Davis, F. M. Condit and E. E. Nicholson, holders of common capital stock of the Abraham Lincoln Hotel Company named as defendants, filed their answer. The matter was referred to a master in chancery, and on December 3, 1954, the master in chancery, in his report, held that there was no evidence of any dissent by the plaintiff or its predecessor in title to any action taken by the boards of directors or stockholders, and that the actions of the defendants, C. Hayden Davis, F. M. Condit and E. E. Nicholson had not been illegal, oppressive or fraudulent, and that the action should be dismissed. The plaintiff filed objections to the master’s report, which were overruled and these objections by agreement of the parties stood as exceptions to the court, and on January 10,1955, the court overruled the exceptions to the report of the master in chancery and approved the same and dismissed the plaintiff’s complaint for want of equity. From that decree the plaintiff appeals to this court.

The Abraham Lincoln Hotel Company was incorporated about May 1, 1924. The corporation acquired real estate and a leasehold interest in certain property for the site of the hotel, and on August 1, 1924, issued $700,000 of first mortgage bonds bearing interest of 6 per cent secured by lien on the fee, leasehold interest and building of the corporation. At that time 7250 shares of preferred capital stock were issued of $100 par value per share, carrying a 7% per cent cumulative dividend provision. These shares of preferred stock were sold for $725,000. At the same time, the corporation issued 8000 shares of the common stock without par value, which were sold at $5 per share, or a total of $40,000. Of the shares of stock issued, both preferred and common, the plaintiff at the time of the commencement of the suit held 4098 shares of the preferred stock. The others were scattered among approximately 400 owners, and C. Hayden Davis owned 7990 shares, F. M. Condit owned 5 shares and E. E. Nicholson owned 5 shares of the common stock, the three holding all of the common stock.

The Abraham Lincoln Hotel Operating Company, an Illinois corporation, defendant herein, was organized to operate the hotel, and on June 1, 1944, entered into a lease with the Abraham Lincoln Hotel Company for the lease of the hotel. This lease was for 15 years and expires on August 1, 1959. By the terms of the lease the operating company was to pay all general and special taxes, ground rents, certain insurance and other expenses, and one-half of the profits from the operation of the hotel as rent. After the suit was commenced on April 24, 1954, C. Hayden Davis, Mabel E. Davis and John Hayden Davis sold to Charles H. Mitchell for the sum of $1,500,000, 8000 shares of common stock and 127 shares of the preferred stock of the Abraham Lincoln Hotel Company, 4051 shares of the common capital stock and 418 shares of the preferred capital stock of the Abraham Lincoln Hotel Operating Company, together with the fixtures, furnishings, equipment, merchandise and other chattel property of the hotel and the drug store located in the said hotel building. By reason of his interest in the said hotel company and the operating company, Charles H. Mitchell was permitted to file an intervening petition and answer in this cause on May 25,1954.

There is no dispute as to certain of the facts. C. Hayden Davis, through his ownership of approximately 8000 shares of the common stock, was in control of the Abraham Lincoln Hotel Company, and by his ownership of practically all of the stock of the Abraham Lincoln Hotel Operating Company, was also in control of that corporation. It is not disputed that no dividends have been paid on the preferred stock of the Abraham Lincoln Hotel Company since 1931. There is a dispute as to the value of the hotel, the plaintiff claiming and submitting evidence to the effect that the hotel is worth approximately $700,000 to $1,000,000. The defendants deny this and claim that the property and net assets of the hotel company is in excess of $2,000,000, and in support of their estimate show the appraisal of the property by Lloyd-Thomas Company showing net value of the property at $2,150,273.77, and the purchase by Charles Mitchell of the stock and merchandise of the hotel operating company for $1,500,000. The plaintiff, who seeks to make this a class action on behalf of itself and the other stockholders, sets up as grounds for its complaint that the acts of C. Hayden Davis and those in control of the hotel corporation are illegal, oppressive or fraudulent; that the corporate assets of the company have been misapplied or wasted and asks the court to order, direct and decree that the assets and business of the hotel company be liquidated; that a receiver be appointed; that the property of the hotel company be sold upon such terms and conditions as to the court shall seem proper, and the proceeds of the sale be applied to extinguish the indebtedness of the hotel company, and that any proceeds from the balance be turned over and delivered to the holders of the preferred stock. The principal question before this court is whether or not a court of equity under the conditions here shown has the authority and right to liquidate the assets and business of a corporation. The other question is whether or not the plaintiff’s predecessor in title to the stock of the hotel company acquiesced in the actions of the boards of directors or stockholders and is therefore estopped.

In discussing the right of the minority stockholders to dissolve the corporation, the plaintiff cites the case of Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197. This is an old case, decided long before the enactment of the present corporation act, but the law as laid down then is equally applicable today. In that case, it was said: “In the absence of statutory authority, courts of chancery had no jurisdiction to decree a dissolution of a corporation by declaring a forfeiture of its franchise, either at the suit of an individual or of the State. . . . The mode of enforcing a forfeiture of the charter at common law was by scire facias or quo warranto in courts of law only, and at the suit, only, of the sovereign. The judgment in such cases, at law, relates solely to the right to exercise the corporate franchise, and operates to extinguish corporate existence. In respect of trade corporations, independently of statutory provision, and notwithstanding the dissolution of the corporation, its assets belong to those who contributed to its capital and for whom it stood as representative in the business in which it was engaged, and are treated in equity as a trust fund, to be administered for the benefit of the bona fide holders of stock, subject to the just claims of creditors of the corporation.” And the court in that case continuing, said: “The necessity for invoking the aid of a court of equity after judgment of forfeiture at law, that court alone being competent to reach and administer the fund, has led to statutory enactments vesting courts of equity with jurisdiction to decree a dissolution of the corporation and to wind up its affairs, in given cases, at the suit of an individual beneficiary of the fund. The power to confer such jurisdiction by statute, as one of the powers over corporations reserved by the State, has been uniformly recognized, and nowhere more clearly than in this State . . . and whenever the power of the court of chancery has been properly invoked the jurisdiction has been sustained. Life Ass. of America v. Fassett, 102 Ill. 315; Chicago Life Ins. Co. v. The Auditor, 101 Ill. 82; Mining Co. v. Mining Co., 116 Ill. 170, and cases supra.” The court then proceeds to enumerate the grounds set out in the statute for the courts of equity to act in dissolving a corporation. And the court continuing, said: “It is, however, fundamental in the law of corporations, that the majority of its stockholders shall control the policy of the corporation, and regulate and govern the lawful exercise of its franchise and business. . . . Every one purchasing or subscribing for stock in a corporation impliedly agrees that he will be bound by the acts and proceedings done or sanctioned by a majority of the shareholders, or by the agents of the corporation dnly chosen by such majority, within the scope of the powers conferred by the charter, and courts of equity will not undertake to control the policy or business methods of a corporation, although it may be seen that a wiser policy might be adopted and the business more successful if other methods were pursued. The majority of shares of its stock, or the agents by the holders thereof lawfully chosen, must be permitted to control the business of the corporation in their discretion, when not in violation of its charter or some public law, or corruptly or fraudulently subversive of the rights and interests of the corporation or of a shareholder.”

The present statute providing for the dissolution of a corporation is Chapter 32, Section 157.86 of Illinois Revised Statutes. That section provides as follows:

“(a) In an action by a shareholder when it is made to appear:

“(1) That the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock, and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or

“(2) That the shareholders are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose term has expired or would have expired upon the election of their successors; or

“(3) That the acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent; or

“(4) That the corporate assets are being misapplied or wasted.

“(b) In an action by a creditor:

“(1) Whose claim has been reduced to judgment and an execution thereon returned unsatisfied and it is made to appear that the corporation is unable to pay its debts and obligations as they mature in regular course of its business; or

“(2) When the corporation has admitted in writing that the claim of the creditor is due and owing and it is made to appear that the corporation is unable to pay its debts and obligations as they mature in the regular course of its business.

“(c) Upon application by a corporation which has filed a statement of intent to dissolve, as provided in this Act, to have its liquidation continued under the supervision of the court.

“(d) When an action has been filed by the Attorney General to dissolve a corporation and it is made to appear that liquidation of its business and affairs should precede the entry of a decree of dissolution.”

So far as this case is concerned, only subsections (a)-(3) and (a)-(4) need to be considered. These grounds are set up in the complaint in Paragraph 9, where it is claimed that the acts of C. Hayden Davis and those who are in control of the corporation, are illegal, oppressive or fraudulent and that the corporate assets are being misapplied or wasted. If any of these charges are proved, then there is no question of the right of the court to decree dissolution and for the appointment of a receiver. The plaintiff impliedly recognized by the use of such words that in order to avail itself of the remedy provided for dissolution that such remedy is only available within the language and .intent of the Statute. So that the law as laid down in the case of Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197 is still the law in Illinois. A corporation, such as this, a business corporation, is created by Statute. Its dissolution is also controlled by Statute. And unless one of the grounds set forth by the Statute is violated by the directors or those in control of the corporation, a court of equity is without jurisdiction to step in. As was said in People ex rel. Barrett v. Shurtleff, 353 Ill. 248, at page 263: “Under our decisions and in consonance with the well settled rule recognized in other jurisdictions, courts of equity are without jurisdiction, in the absence of a statute conferring it, to dissolve a corporation or to wind up its affairs and sequestrate its property, or to appoint a receiver for the collection of its assets, the settlement of its business, the payment of its debts and the distribution of its property.”

This interpretation of the law has been recognized in other cases. National Bureau of Property Administration, Inc. v. Tax Service Ass’n of Illinois, 290 Ill. App. 152, and Wiedoeft v. Frank Holton & Co., 294 Ill. App. 118. In the former case, the court there said: “It is well settled by a long line of decisions in this State that the courts of chancery have no general power to appoint receivers of corporations and can do so only when expressly authorized by statute, except at the instance of the attorney general. People v. Weigley, 155 Ill. 491; Blanchard Bro. & Lane v. Gay Co., 289 Ill. 413; Steenrod v. Gross Co., 334 Ill. 362; Nelson v. Toluca State Bank, 334 Ill. 83; People ex rel. Palmer v. Peoria Life Ins. Co., 357 Ill. 486.”

The plaintiff cites the case of Tower Hill-Connellsville Coke Co. of West Virginia v. Piedmont Coal Co., 64 F.2d 817, in support of its contention that the court has the authority to dissolve the corporation. The defendants contend that that ease is not in point. In that case there were interlocking directorates of two corporations. In that case there was open manipulation that dissipated the assets of the corporation. That case would have come under the Illinois Statute where the corporation may be dissolved upon showing that the acts of the directors or those in control were fraudulent, or that the corporate assets were being misapplied or wasted. This court can see no conflict in the decision of that case, and the law of Illinois as declared in the Shurtleff and other cases. In that case, as in the Illinois cases, where there is a misapplication of the assets, fraudulent acts of the directors or those in control, or illegal acts, the court of equity may step in and provide a remedy. One of the contentions in the Tower-Hill case was that the corporation being a West Virginia corporation, the federal court was without jurisdiction to enter a decree, because of the West Virginia Statute. Under West Virginia law, not less than one-fifth in interest of the stockholders were required to ask to wind up the affairs of a corporation. The court in passing on this matter said: “This statute points a way in which a dissolution of a corporation may be brought about, but it does not provide that it may not be brought about in a proper proceeding in any other way. The remedy given by the statute is not an exclusive one and does not prevent a federal court of equity from entering a decree which, while it winds up the affairs of the company, does not specifically cancel the charter. The decree of the court is not in conflict with the provisions of the statute. If a state statute creates a substantive equitable right, a federal court of equity may enforce it.” On that point this court can see no conflict with the law of Illinois.

As said before, sufficient grounds have been assigned by the plaintiff, if proven, to bring this matter within the jurisdiction of a court of equity. If the action of the directors or those in control have been either “illegal,” “oppressive” or “fraudulent,” then the court has jurisdiction. If the assets of the corporation are being or have been misapplied or wasted then the court has jurisdiction.

The language of the statute is clear and unambiguous. If the directors or those in control acted illegally, that would be sufficient. If they acted oppressively, that would be sufficient. If they did any one of the acts charged, the court would have jurisdiction. The word “or” denotes one or the other of two or several persons, things or situations and not a combination of them. In the case of People v. Vraniak, 5 Ill.2d 384, where the court was passing on the sufficiency of a criminal indictment, the court in construing the use of the word “or” in a provision of a statute said: “As used in its ordinary sense, the word ‘or’ marks an alternative indicating that the various members of the sentence which it connects are to be taken separately.” In the case of Chicago Catholic Workers’ Credit Union v. Eosenberg, 346 Ill. App. 153, that court in passing on the effect of the word “or” said: “As said in 50 Am. Jur., Statutes, sec. 281, ‘If the disjunctive conjunction “or” is used, the various members of the sentence are to be taken separately.’ ”

In considering the charges as separate acts, there is nothing in the evidence or the exhibits that would sustain the charges of illegal acts on the part of the directors or those in control. The same is true as to the charge of fraud. If the charge of the plaintiff is to be sustained as to subsection (a)-(3) of Chapter 32, Section 157.86 it will have to be sustained on the charge of oppressive action on the part of C. Hayden Davis and those with him who controlled the corporation. “Oppressive” is defined by Webster’s Dictionary as “unreasonably burdensome; unjustly severe. Tyrannical. Overpowering to spirit or senses.” We do not find that the courts of Illinois have defined “oppressive,” although certain acts have been defined in other jurisdictions as oppression or oppressive. An oppressive act has been held in the case of Gallegos v. Sandoval, 15 N. M. 216, 106 Pac. 373, 376, as “an act of cruelty, severity, unlawful exaction, domination, or excessive use of authority.”

In the case of Eureka Building & Loan Ass’n v. Myers, 147 Kan. 609, 78 P.2d 68, 71, it was defined as follows: “Oppressive means harsh, rigorous or severe.” The case of Storrow v. Texas Consol. Compress & Manufacturing Ass’n, 87 Fed. 612 (CCA 5th, 1898) is cited by the plaintiff in support of its contention that the directors and those in control here acted “oppressively.” In that case the association had earned sufficient net profits from the operation of its compresses to pay the 6 per cent dividend on its preferred stock, but had failed to do so. The court in that case does not attempt to define the acts of those in control of the corporation as oppressive but says that the bill and the matters presented in the complaint are such as warrant a hearing by a court of equity. We do not regard the facts in that case as analogous to those in this case, and there is no definition of “oppressive” acts as set forth in the plaintiff’s brief.

In considering this cause this court is bound by the evidence and the record. An examination of the evidence relied upon to sustain the plaintiff’s position, is therefore necessary to properly pass on the question involved. It is admitted that the hotel corporation has not paid a dividend since 1931. It must be admitted or at least it is evident that C. Hayden Davis and his associate shareholders, through their ownership of the 8000 shares of the common stock and some of the preferred stock of the hotel corporation, controlled for all practical purposes, the hotel corporation. As to the hotel operating corporation, the lessee, Mr. Davis and his associates were in absolute control. There is no evidence of misuse of funds of either the operating company or the hotel company. There is only conjectural evidence that the business was not operated properly, and that would have to be based solely upon the fact that the income from the operation of the hotel was not sufficient to show a profit. The operating statements introduced in evidence show that fact. The evidence on the part of the plaintiff that the hotel today is only worth $700,000 to $1,000,000 which is disputed by the defendants, is not such evidence that would conclusively or even impliedly show mismanagement, or misapplication of assets. It is true that with an investment of only $40,000 the defendant C. Hayden Davis and his associates could control and direct the control of the hotel company, while those, who, with the plaintiff have an investment of about 16 times as much as Davis and associates, have no voice in the management of the corporation. This is an unfortunate situation for those who have such an investment. But the laws of the State of Illinois set up certain rules for the election of directors, and the operation of a business corporation. This court has no power nor has a court of equity the power to interfere, unless one or more of the acts set forth in the statutes for the dissolution of a business corporation is committed. This court in considering the evidence and the record cannot say that the acts of C. Hayden Davis and his associates in the operation of the hotel company have been “oppressive” so as to warrant a court of equity to intervene. It may well be, that the management was not good. It may also be that through the operation of the hotel by way of a lease to the hotel operating company, the officers of the operating company have been paid at the expense of the hotel company. But these matters have not been properly shown except by implication. And that implication is based upon the fact that the hotel has not made a profit. To hold otherwise on the state of facts here, would be to throw every business corporation operating under the laws of the State of Illinois open to attacks by stockholders who are dissatisfied because the corporation is not making money or even making enough money to satisfy those stockholders. In so holding, this court recognizes that in the cases where clear abuse of trust is shown, that courts of equity not only have the power but the duty to step in and grant relief to the stockholders. But, in order for the court to intervene, a violation of those grounds set forth in the Statute must be properly proved. In this case this was not done. Because of the foregoing conclusion, it will be unnecessary to pass upon the question of estoppel raised by the defendants. The decree of the circuit court dismissing the cause for want of equity will be affirmed.

Affirmed.