author: JUDGE BUEKE

text:
    John L. Colmar and James J. O’Meara, Jr., Plaintiffs-Appellees, v. Greater Niles Township Publishing Corporation and Roland R. Moore, Defendants. Appeal of Roland R. Moore, Defendant-Appellant.
    Gen. No. 46,996.
    First District, First Division.
    March 12, 1957.
    Released for publication May 2, 1957.

      Thomas C. Strachan, Jr., John E. Whitman, Pope & Ballard, of Chicago, for appellant, Eoland E. Moore.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for plaintiffs-appellees; Howard Ellis, Max E. Wildman, and Don H. Eeuben, of Chicago, of counsel.
   JUDGE BUEKE

delivered the opinion of the court.

John L. Colmar and James J. O’Meara, Jr., sued The Greater Niles Township Publishing Corporation and Eoland E. Moore to recover damages based upon allegedly libelous matter published by the corporation in its newspaper. A trial resulted in a verdict finding Moore guilty and assessing damages of each plaintiff at $15,000. The jury then separated. The trial judge later recalled the jury and gave oral instructions, after which the jury retired and returned a second verdict finding the corporation guilty and assessing damages against it in the amount of $15,000 for each plaintiff. Plaintiffs subsequently dismissed the corporate defendant and the court entered two judgments in the amount of $15,000 each against Moore. He appeals. The complaint alleges that plaintiffs are attorneys at law; that the article claimed to be libelous appeared in the October 22,1953, issue of “The News”; that it was composed, published and circulated by both defendants; and that none of the statements made in the article were true, but were wilfully and maliciously written and circulated for the purpose of damaging plaintiffs’ reputations as attorneys and citizens. By their answer the composition, publication and circulation in “The News” of the article was admitted as to the corporation. The answer asserted that Moore in no way participated therein. Defendants stated that the alleged libelous matter was in fact true; that publication of it was provoked and procured by plaintiffs “by openly stating the substance thereof” to third persons; and that the facts set forth in the article were obtained “from trustworthy sources,” inducing a belief that they were true.

Defendant maintains that the uncontradicted evidence established, as a matter of law, that the allegedly libelous article was true and constituted a news report published, without malice, on a matter of public interest in the community, and that the court erred in refusing to direct a verdict for the defendants. The headline of the article reports that plaintiffs’ clients “sue for redress.” The text accuses the two of instigating a lawsuit and charging an “extortionate” fee for their work and concludes by asserting that a spokesman for the property owners stated that plaintiffs “not only are faced with a lawsuit to defend their highhanded action, but also face possible disbarment proceedings because of unethical tactics.” Any statement published of an attorney at law with respect to his profession is actionable if it tends to injure or disgrace him as a member of his profession. Oral or written words which impute to him a want of the requisite qualifications to practice law or which charge him with dishonest or improper practices in the performance of his duties as an attorney are actionable per se. Am. Jur. Sec. 76, page 88. People v. Doss, 318 Ill. App. 387, 384 Ill. 400; Levy v. Gelber, 175 Misc. 746, 25 N.Y.S.2d 148; Weber v. Credit Office, 106 N.Y.S. 583; Brill v. Minnesota Mines, 274 N. W. 631.

No suit was filed against plaintiffs for redress. After the publication of the article an attorney for the former clients of plaintiffs filed a suit for an accounting. Plaintiffs were joined in that suit because of their stakeholder position. There was no evidence to sustain the statement in the article that a suit was instigated by plaintiffs. The record establishes that plaintiffs were retained when a citizen representing various persons approached them. There was no evidence to support the statement, that plaintiffs charged an extortionate fee. Defendant asserts that the truth of the statement attributed to the spokesman of the property owners to the effect that plaintiffs face “possible disbarment proceedings for unethical conduct” is established by the record. He also says that the publication was justified and made without malice with reference to a matter of public interest in the community. The person mentioned in the article as the spokesman did not testify. No disciplinary or disbarment proceedings were filed against the plaintiffs. In justifying the publication defendants place great reliance on a wire recorded report of a conversation between the plaintiffs and the man who was later mentioned as the spokesman. The defendant argues that the report of the recorded conversation establishes that ' in negotiating and settling their clients’ case the plaintiffs were representing “conflicting interests” and that in so doing, they violated the canons of professional ethics. The recorded conversation is the justification by the defendant for the alleged statement by a spokesman for the property owners that plaintiffs face “possible disbarment proceedings for unethical conduct.” Plaintiffs assert that the evidence concerning the settlement meeting does not establish that they were in any way disloyal to their clients. There is support for the plaintiffs’ contention that the political talk on which defendant relies came at the latter part of the meeting, and that the proposals for a political truce were not conditioned on the settlement of the zoning case. We conclude that the court was right in deciding that the question of the truth of the libel was for the jury. There is competent evidence to sustain the verdict. We are of the opinion that the argument of the defendant that the verdict is against the manifest weight of the evidence is without merit.

We turn to a consideration of defendant’s assertion that plaintiffs’ counsel was guilty of prejudicial misconduct in making, during his opening statement, inflammatory statements and assertions of fact, which were not proved, concerning allegedly improper motives and acts of malice against plaintiffs on the part of the defendant. In his opening statement to the jury counsel said that “Moore had a financial interest” in the “water and sewage programs” in their town; that “it was discovered” by plaintiffs “and some other civil people in the community” that Moore “had a financial interest ... in what was done by the citizens in that he wanted the people in the Village to vote one particular way”; that “the referendum was defeated twice, partially . . . due to the efforts” of plaintiffs “who went around seeking votes against it from the citizens”; that “he took after the two young lads [plaintiffs]”; that “in the fall of ’53 the water and sewage bond problem came up again, and by this time Mr. Moore and his friends had bought up the bonds, but it had to be submitted to a vote of the citizens of the community for a referendum”; and that plaintiffs “again . . . took after him [Moore], circulated petitions, and they beat the referendum and Mr. Moore was left holding the bonds which he never should have purchased in the first place, honestly.” Plaintiffs’ counsel continued: “That happened in the fall of 1953. Immediately he [Moore] initiated a series of articles in the paper which he owned, headlines in every issue starting with October 1, 1953.”

These statements were made despite repeated objections, including a request for a mistrial, and in the face of warnings by the court that plaintiffs’ counsel was taking on the responsibility of proving them. On such objections and warnings, assurances were given by counsel that there would be proof of them. No evidence was introduced to support any of these charges against Moore. Both a general and explicit instruction were given to the jury ordering them to disregard the statement of counsel because it was not sustained by any evidence. Counsel for the plaintiffs also told the jury in his closing argument to disregard his remarks concerning Moore’s ownership of the bonds because he did not prove it. The attorney for the defendant was permitted freely to comment upon the fact that plaintiffs had not introduced any evidence to support this portion of the opening statement. In McCarthy v. Spring Valley Coal Co., 232 Ill. 473, the attorney for the plaintiff who was injured while working in defendant’s coal mine made a statement to the jury in his .opening statement concerning the size of plaintiff’s family. The objection to this was sustained by the trial court. In ordering a new trial the Supreme Court said (479):

“The fact once lodged in the minds of the jury could not be erased by an instruction, and appellee by this statement secured the benefit of the fact to the same extent as if he had introduced evidence to prove it. . . . It is impossible to tell the effect, on the verdict, of the impressions wrongfully conveyed to the jury’s mind by the improper conduct of counsel.”

The verdicts in the instant case are for substantial amounts. In view of the nature of the case it is unlikely that the impression conveyed to the jury in the opening statement could be removed by the statements of counsel or the instruction. The statement deprived the defendant of the fair trial to which he was entitled.

The defendant complains that prejudicial error was committed when he was asked without any warrant whether he had used aliases or received money under any other names. Counsel first asked the defendant whether he had been known “under any other names,” to which he replied in the negative. He was then asked whether he had “ever been known or received any money under the name of Johnson.” Objection to this question was sustained. Plaintiffs’ next question was, “Have you ever been known under the name of or received any money under the name of Laritz?” This testimony could not be received on the theory that the plaintiff was showing the pecuniary circumstances of the defendant. The law does not permit such evidence where there is more than one tortfeasor joined as defendant in the suit. See Spelina v. Sporry, 279 Ill. App. 376, 385. Under the issues and the record the court erred in permitting the examination of Moore along this line. The defendant urges that the court erred in improperly admitting conclusions and opinions of the witnesses. We do not think that the court committed error in overruling defendant’s objections that certain questions called for the conclusions of the witness.

Defendant insists that the court erred in preventing defendant from introducing in mitigation of damages evidence as to sources on which defendants relied in writing the allegedly libelous article, and in refusing to give defendants’ instruction tendered in that connection. The article which the defendants sought to introduce was the October 19, 1953, issue of the North Side Sunday Star. They made an offer of proof with respect to this article, in chambers, that the defendant newspaper did in fact rely upon it as a source for the alleged libelous article. Plaintiffs say that the authorities support the propriety of such evidence, at least in mitigation of damages. We are of the opinion that the article in the Star has no relationship to the libel. Nowhere does it describe a suit for redress, a solicitation, an extortionate fee or a disbarment proceeding, nor are the plaintiffs’ names mentioned.

The defendant states that the court erred in refusing to give the following instruction:

“Even if you should find that the article here complained of is false and libelous, yet if you believe from the evidence that defendant Roland R. Moore did not himself participate in the preparation, composition, printing, publication or circulation of said article or have knowledge thereof prior to its publication, then you should find the defendant Roland R. Moore not guilty.”

The defendant says that the court erred in giving the following instruction:

“If you find that the article here complained of is false and libelous, and if you further find that the defendant, Roland R. Moore, did not himself participate in the preparation, composition, printing, publication or circulation of said article, or have knowledge thereof prior to its publication, then you may not award punitive damages against the said Roland R. Moore.” The trial court in effect instructed the jury that Moore was liable with the corporation for everything connected with the alleged libel, whether or not he participated, excepting only as to punitive damages. If the jury found Moore a nonparticipant, then under the law he could not be held liable for any damages at all. In Folwell v. Miller, 145 F. 495, the court said (495):

“That the defendant was not liable merely because he was president of the corporation and a stockholder is a proposition which does not require extended discussion. The president of the corporation is an agent of very extensive, but not unlimited, powers. He is not personally liable because of his official capacity, any more than are the directors or stockholders, for torts committed by the corporation, in the absence of personal participation in the tortious act. As an agent, he is not liable for the acts of misfeasance or nonfeasance of his subordinate agents or employees. .- . . Of. course, he is liable equally with the proprietor when he has personally assisted in any manner in the preparation, revision, or otherwise of the publication of the libel. There is doubtless a presumption of fact that the managing editor has supervised the contents of the newspaper, and performed the duties of his office in that behalf. So doubtless when it appears that he has actually done so, the fact that he has omitted to notice some of the contents will not relieve him from the consequences of his participation. But when it appears affirmatively that he was not on duty during any part of the time between the reception of the libelous matter by the newspaper and the publication, and could not have had any actual part in composing or publishing, we think he cannot be held liable without disregarding the settled rule of law by which no man is bound for the tortious act of another over whom he has not a master’s power of control. The action of libel is not based upon neglect of duty, but is for a positive tort; and there is no reason upon which an editor, any more than any other individual, can be held responsible for such a tort when it appears that he was actually innocent of all complicity in it.”

We are of the opinion that on a retrial the tendered instruction should be given and the instruction which was given should be refused. Moore’s participation in the preparation, composition, printing, publication or circulation of the article became a question of fact for the jury.

Moore cannot complain of any error in the return of a verdict against the corporation in view of the subsequent dismissal of the suit against the corporation. Finally, defendant states that the trial court erred in refusing to instruct the jury that under the proof the words published came under the class which the law designates as “privileged communications” and plaintiffs cannot recover unless they show actual malice, that is, hatred or ill will on the part of the defendant, or show a want of just cause or excuse in making the statements in the article. The court properly refused to give the instruction. Under the evidence the communication was not privileged.

For the reasons stated the judgment of the Superior Court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

NIEMEYER, P. J. and FRIEND, J., concur.

On Rehearing.

Having considered the points discussed in the petition for rehearing and the answer thereto, we have decided to adhere to the views expressed and the directions given in the opinion heretofore filed.


source: Caselaw Access Project

author: JUDGE FRIEND

license: Public Domain

text:
    American Civil Liberties Union, a New York Corporation, and Charles Liebman, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Martin H. Kennelly and Timothy J. O’Connor, Defendants-Appellees.
    Gen. No. 46,889.
    First District, First Division.
    March 18, 1957.
    Released for publication April 9, 1957.

      Richard Orlikoff, Sanford I. Wolff, and Abner J= Mikva, all of Chicago, for appellants; Henry Heine-man, and F. Raymond Marks, Jr., of Chicago, of counsel.
    John C. Melaniphy, Corporation Counsel, for defendants-appellees.
   JUDGE FRIEND

delivered the opinion of the court.

Sections 155 — 1-155—7 of the Municipal Code of Chicago make it unlawful to exhibit any motion picture or to distribute any motion picture to any exhibitor in the city without having first secured a permit from the commissioner of police. The commissioner is required to issue the permit upon application and payment of the prescribed fee unless he determines that the picture is “immoral or obscene . . . ,” in which case he is required to refuse a permit. The American Civil Liberties Union and Charles Liebman, assignees of the right to distribute and exhibit in Chicago a motion picture • called The Miracle, applied to the commissioner for a permit. The commissioner refused to issue it on the ground that the picture was immoral and obscene. As provided by the ordinance, an appeal was taken to the mayor, who affirmed the commissioner’s decision.

Thereupon plaintiffs filed a complaint in the Circuit Court seeking a declaration that they had the right to exhibit the motion picture without first obtaining a license from the defendants, the city of Chicago, its mayor and its police commissioner. Upon hearing, Judge Fisher found the provisions of the code to be unconstitutional and restrained defendants from interfering with plaintiffs’ right to exhibit the film: he certified that, in his opinion, public interest required that an appeal be taken directly to the Supreme Court of Illinois. Accordingly, defendants appealed to the Supreme Court, which (American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334) reversed the trial court, holding that the ordinance was constitutional and that the city had the right to deny a license if it found that the film was “obscene.” The cause was remanded to the Circuit Court with instructions to determine whether or not the motion picture was obscene. At this point in the proceedings plaintiffs appealed to the United States Supreme Court which, in a six-three decision (American Civil Liberties Union v. City of Chicago, 348 U. S. 979), refused to take jurisdiction of the cause “for want of a final judgment,” Justices Black, Douglas and Harlan dissenting.

Upon redocketing of the cause in the Circuit Court, it was assigned to Judge Tuohy, who found the film to be “obscene” and concluded that plaintiffs had no right to exhibit it in Chicago. Judgment was entered for defendants, and this appeal followed.

Because plaintiffs were not issued a permit, the picture has never been publicly shown in Chicago. The Miracle was produced in Italy by Roberto Rossellini, with Anna Magnani in the leading role. The United States Supreme Court had occasion to view this film, as reported in the case of Burstyn v. Wilson, 343 U. S. 495. There, Mr. Justice Frankfurter, specially concurring in the judgment of the court, introduced Bosley Crowther’s summary of the story from the Atlantic Monthly, April 1951: “ ‘A poor, simple-minded girl is tending a herd of goats on a mountainside one day, when a bearded stranger passes. Suddenly it strikes her fancy that he is St. Joseph, her favorite saint, and that he has come to take her to heaven, where she will be happy and free. While she pleads with him to transport her, the stranger gently plies the girl with wine, and when she is in a state of tumult, he apparently ravishes her. (This incident in the story is only briefly and discreetly implied.)

“ ‘The girl awakens later, finds the stranger gone, and climbs down from the mountain not knowing whether he was real or a dream. She meets an old priest who tells her that it is quite possible that she did see a saint, but a younger priest scoffs at the notion. “Materialist!” the old priest says.

“ ‘There follows now a brief sequence — intended to be symbolic, obviously — in which the girl is reverently sitting with other villagers in church. Moved by a whim of appetite, she snitches an apple from the basket of a woman next to her. When she leaves the church, a cackling beggar tries to make her share the apple with him, but she chases him away as by habit and munches the fruit contentedly.

“ ‘Then, one day, while tending the village youngsters as their mothers work at the vines, the girl faints and the women discover that she is going to have a child. Frightened and bewildered, she suddenly murmurs, “It is the grace of God!” and she runs to the church in great excitement, looks for the statue of St. Joseph, and then prostrates herself on the floor.

“ ‘Thereafter she meekly refuses to do any menial work and the housewives humor her gently but the young people are not so kind. In a scene of brutal torment, they first flatter and laughingly mock her, then they cruelly shove and hit her and clamp a basin as a halo on her head. Even abused by the beggars, the poor girl gathers together her pitiful rags and sadly departs from the village to live alone in a cave.

“ ‘When she feels her time coming upon her, she starts back towards the village. But then she sees the crowds in the street; dark memories haunt her; so she turns towards a church on a high hill and instinctively struggles towards it, crying desperately to God. A goat is her sole companion. She drinks water dripping from a rock. And when she comes to the church and finds the door locked, the goat attracts her to a small side door. Inside the church, the poor girl braces herself for her labor pains. There is a dissolve, and when we next see her sad face, in a closeup, it is full of a tender light. There is the cry of an unseen baby. The girl reaches towards it and murmurs, “My son! My love! My flesh !” ’ ”

It appears from Burstyn v. Wilson that the picture had been banned in New York on the ground that it was “ ‘sacrilegious.’ ” The United States Supreme Court held “that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor’s conclusion that it is ‘sacrilegious,’ ” and concluded by saying that “since the term ‘sacrilegious’ is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor-, motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us.” In his specially concurring opinion, Mr. Justice Reed went beyond the majority opinion by stating that “this film does not seem to me to be of a character that the First Amendment permits a state to exclude from public view.”

In his concurring opinion, in which Justices Jackson and Burton joined, Mr. Justice Frankfurter says: “ ‘The Miracle’ — a film lasting forty minutes — was produced in Italy by Roberto Rossellini. Anna Magnani played the lead as the demented goat-tender. It was first shown at the Venice Film Festival in August, 1948, combined with another moving picture, ‘L’Umano Voce,’ into a diptych called ‘Amore.’ According to an affidavit from the Director of that Festival, if the motion picture had been ‘blasphemous’ it would have been barred by the Festival Committee. In a review of the film in L’Osservatore Romano, the organ of the Vatican, its film critic, Piero Regnoli, wrote: ‘Opinions may vary and questions may arise— even serious ones — of a religious nature (not to be diminished by the fact that the woman portrayed is mad [because] the author who attributed madness to her is not mad).....’ While acknowledging that there were ‘passages of undoubted cinematic distinction,’ Regnoli criticized the film' as being ‘on such a pretentiously cerebral plane that it reminds one of the early d’Annunzio.’ The Vatican newspaper’s critic concluded: ‘we continue to believe in Rossellini’s art and we look forward to his next achievement.’ In October, 1948, a month after the Rome premiere of ‘The Miracle,’ the Vatican’s censorship agency, the Catholic Cinematographic Centre, declared that the picture ‘constitutes in effect an abominable profanation from religious and moral viewpoints.’ By the Lateran agreements and the Italian Constitution the Italian Government is bound to bar whatever may offend the Catholic religion. However, the Catholic Cinematographic Centre did not invoke any governmental sanction thereby afforded. The Italian Government’s censorship agency gave ‘The Miracle’ the regular nulla osta clearance. The film was freely shown throughout Italy, but was not a great success. Italian movie critics divided in opinion. The critic for II Popolo, speaking for the Christian Democratic Party, the Catholic party, profusely praised the picture as a ‘beautiful thing, humanly felt, alive, true and without religious profanation as someone has said, because in our opinion the meaning of the characters is clear and there is no possibility of misunderstanding.’ Regnoli again reviewed ‘The Miracle’ for L’Osservatore Romano. After criticising the film for technical faults, he found ‘the most courageous and interesting passage of Rossellini’s work’ in contrasting portrayals in the film; he added: ‘Unfortunately, concerning morals, it is necessary to note some slight defects.’ He objected to its ‘carnality’ and to the representation of illegitimate motherhood. But he did not suggest that the picture was ‘sacrilegious.’ The tone of Regnoli’s critique was one of respect for Rossellini, ‘the illustrious Italian producer.’ ”

In American Civil Liberties Union v. City of Chicago, the Supreme Court of Illinois, on review of Judge Fisher’s judgment, noted that it had twice previously upheld the constitutionality of the ordinance in question, that “defendants consider the question settled,” but that plaintiffs took the position that the court’s decisions were superseded by subsequent decisions of the United States Supreme Court which plaintiffs regarded as rendering unconstitutional, “as a prior restraint upon freedom of speech,” all censorship of motion pictures. In view of this contention the Illinois Supreme Court considered that disposition of the case required a review of its former decisions, as well as a consideration of the decisions of the United States Supreme Court, and after a detailed discussion of both State and Federal cases concluded that “in any event, we do not regard these decisions [Federal cases] as automatically compelling us to overrule this court’s prior approval of the Chicago censorship ordinance,” but “we do regard them ... as requiring a re-examination of that ordinance in terms of the standards and the procedures which are available to the State in the highly sensitive area of prior restraint upon the expression of ideas.” Considering first the standards of the ordinance, the court observed that censorship in this case rests upon the ground that the film is obscene; and after expressing the view that the meaning of the term “obscene” does not vary with the particular medium of expression, proceeded to review and discuss the judicial interpretations placed on the term “obscene” and the relative importance of instances of obscene diction or episodes in relation to the entire text, as treated in the numerous state and federal decisions, textbooks and law journals cited in the opinion as applicable mainly to the censorship of books. In the light of the authorities reviewed, the court pertinently observed that “the general course of decisions indicates that the work in question is approached as an aggregate of different effects, and the determination turns on whether the salacious aspects are so objectionable as to outweigh whatever affirmative values the book may possess . . .” The court found the attitude of Judge Learned Hand, in United States v. Kennerley, 209 Fed. 119, persuasive: “I question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas, and whether they will not believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses. Indeed, it seems hardly likely that we axe even to-day so lukewarm in our interests in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child’s library in the supposed interests of a salacious few . . .” In the light of the decisions cited and discussed, Mr. Justice Schaefer, speaking for the court, prescribed the standard for determining obscenity as follows: “We hold, therefore, that a motion picture is obscene within the meaning of the ordinance if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. In making this determination the film must be tested with reference to its effect upon the normal, average person.” Con-tinning, the court enunciated the rule that “upon review of- the censor’s action, the plaintiff does not carry a burden of proving that that action was arbitrary and unreasonable, but rather ... it must affirmatively be made to appear that the film fairly falls within the proscriptive terms of the ordinance.”

Under this rule the censoring authority, in refusing to issue a permit for showing the film, should be obliged to specify reasons for so doing; and upon trial of the issue whether the ban is justified, the trial court should require the censor to assume the burden of establishing the validity of his refusal.- The trial court, as well as the reviewing court, would then have a record, in addition to the film itself, on which to decide whether the ban should be approved. To permit the banning of a motion picture film without requiring the censoring authority to substantiate his action runs directly counter to the spirit and the letter of the law relating to censorship. Freedom of expression is the rule, limitations upon it the exception; in accord with this doctrine, and in conformity with the Illinois Supreme Court ruling that the censoring authority must assume the burden of his action, such authority must present compelling and persuasive reasons to establish a film as obscene; such a determination must rest on something more than mere speculation. Without such procedure, the courts become, not only the final tribunal to pass upon films, but the only tribunal to assume the responsibilities of the censoring authority.

The evidence introduced by the city in support of the ruling here appealed from consisted of the film itself and two still enlargements made from the opening portion of the film — one of Webster’s International Dictionary (Unabridged), open to the page containing the definition of the word “love”; the other, a part of the definition reading: “. . . ardent affection, passionate attachment, men’s adoration of God, sexual passion, gratification, devotion.” Defendants offered no evidence in support of their reasons for rejecting the picture on the ground of obscenity but stood on the film alone. After viewing The Miracle, Judge Tuohy held it to be “obscene” within the meaning of the term as defined by the Illinois Supreme Court. The calculated purpose of the film, he felt, narrowed down to a presentation of sexual passion and gratification. In considering the effect of the film, the trial judge discussed the morals of the goatherdess portrayed in the picture, the events leading to her motherhood — including the advances by the stranger on the mountainside — and concluded that, taken with the dictionary definition, the predominant effect of the film was to arouse sexual passion.

As the case comes to us for review, the question presented is whether the trial court properly applied to the picture the test of the term “obscenity.” Since the film is attached to the record as an exhibit, and in the absence of any supporting evidence offered by defendants for rejecting the film,- we were obliged to rely on the film alone for the purpose of determining whether it falls within the scope of the term “obscene” as legally defined.

The Miracle is the story of a demented girl who thought she saw in a bearded stranger St. Joseph and envisioned a hope that he would take her to Heaven. Following the incident on the mountainside — which was but one of a series of events and, it seemed to us, one handled with appropriate restraint — she regards herself as a virgin destined to bear a child; the remainder of the film is concerned primarily with her belief in her destiny, with her abject misery, and with her long climb up a steep hill to a deserted church where she gives birth to her child. To suggest that the predominant effect of the film is to arouse sexual passion is to deny the producer’s intent and his artistry, and to emphasize the incident on the mountainside as against the principal theme of the picture; it is to overlook the aesthetic and the dramatic merit of the film. Rossellini, the producer, stated (as quoted in Mr. Justice Frankfurter’s concurring opinion in the Burstyn case) that “ ‘In The Miracle men are still without pity because they still have not come back to God, but God is already present in the faith, however confused, of that poor, persecuted woman; and since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the poor, demented woman regains sanity in her maternal love.’ ” Thus, we think, the emphasis is wrongly placed if sexual passion is considered as the mainspring of the action; it is, rather (to go back to the dictionary definition as given at the outset of the film), “men’s adoration of God.” The love of a girl for a man — or, more accurately here, her transient interest in a man — , and the love of a mother for her child, are used in The Miracle, by way of cumulative effect, by way of contrast, to highlight and interpret the principal theme of men’s adoration of God. To adopt the comment of William P. Clancy from The Commonweal (likewise a quotation from Mr. Justice Frankfurter’s concurring opinion) .• “ ‘the film is not obviously blasphemous or obscene, either in its intention or execution.’ ”

The Hicklin standard, as formulated by Cockburn, C. J., in 1868 in Regina v. Hicklin, L. R. 3 Q. B. 360, was based on “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this, sort might fall” — thus making the young, the inexperienced or the salaciously inclined individual the object of the censor’s protection; the lower Federal courts here followed this test until 1913, when Judge Hand, in the Kennerley opinion, in effect rejected the Hicklin individual as the norm when he stated that he “scarcely” thought that “they [society] would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its members.” “To put thought,” he continued, “in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.” “The views thus expressed by Judge Hand were subsequently taken up,” Judge Schaefer commented in the American Civil Liberties Union opinion, “and the Hicklin test was repudiated in the Federal courts, in proceedings under both the postal and tariff laws. The rule now followed there, and generally in the State courts is that a book is to be judged as a whole and in terms of its effect on the average, normal reader.”

I£ is not at all probable, it seems to us, that The Miracle would arouse sexual desires in the “average, normal” individual contemplated by Judge Schaefer; indeed, it appears unlikely that even the salaciously inclined individual would be so affected by a film whose central character is clothed only in rags and whose personality is devoid of any charm; there is no gloss of glamour anywhere in the film.

Censorship is not unconstitutional, but it is a power which must be exercised with the greatest care. The Illinois Supreme Court follows and enjoins this rule of caution; therefore, a motion picture should not be excluded from public view unless it is fairly shown to lie within the proscribed area defined by the ordinance. The Miracle, as we view it, is not such a picture. Accordingly, we think the trial court erred in holding it to be obscene. For the reasons indicated, the judgment of the Circuit Court is reversed and the cause remanded with directions to enter judgment for plaintiffs, to order defendants to issue a permit upon application and payment therefor, and to enjoin them from interfering with the exhibition in Chicago of the motion picture film,- The Miracle.

Judgment.reversed and cause remanded with directions.

BURKE, J., concurs.

NIEMEYER, P. J., took no part.


author: JUSTICE EOVALDI

text:
    Fay Miller, Appellee, v. Edward G. McDonough and Ruth H. McDonough, Appellants, and Gerry D. Scott, Sr. et al., Appellees.
    Gen. No. 11,009.
    Second District.
    March 20, 1957.
    Rehearing denied May 7, 1957.
    Released for publication May 7, 1957.

      Edward Zukosky, of Wenona, for' appellants.
    Engene R. Johnson, of Peoria, Ben C. Leiken, of Enreka, Robert A. Barnes, and O. B. Pace, Jr., both of Lacón, for appellee.
   JUSTICE EOVALDI

delivered the opinion of the court.

This case involves the foreclosure of four mortgages. The circuit court entered a deqree of sale directing that the mortgaged premises be sold subject to a certain lease agreement entered into between the mortgagors and the mortgagee" in three of the mortgages. The mortgagors have brought this appeal.

Edward Gr. McDonough and his wife, Ruth H. McDonough, appellants, are the owners of a forty acre tract of land known as Indian Springs, located in Woodford county. The property consists primarily of swamp land and has for several years been operated as a public fishing area and as a duck hunting club during the duck season each. year. The McDonoughs executed a series of three, mortgages .on the premises to Fay Miller, the plaintiff, appellee, herein. The first of these mortgages was in the snm of $7,000 and was executed February 28, 1947. The second mortgage was executed on February 22, 1950, and was in the principal amount of $2,180. The third mortgage was executed on September 28, 1951, in the amount of $4,000.

In addition to the mortgages, the McDonoughs had also, on July 16, 1941, by written agreement, granted to Fay Miller fishing and hunting privileges on the premises for a period of thirty years. In 1945, Fay Miller and his brother, Bay Miller, built a cabin on the premises. On February 14, 1949, the McDonoughs leased to Fay Miller that portion of the premises upon which the cabin stood. This lease was to expire at the same time that Miller’s hunting and fishing privileges were to expire under the 1941 agreement.

Simultaneously with the execution of the third mortgage and the extension of the two prior mortgages, defendants-mortgagors, who were represented by an attorney, entered into a lease agreement with Fay Miller. Before he would lend more money on the premises, Miller insisted on an agreement giving him considerable control over the use of the property. This lease restricted the use of the premises to a duck hunting club, .pole and line fishing grounds, and the operation of a restaurant. It limited the duck hunting to six shooting privileges, with Fay Miller owning two of the privileges, Bay Miller one, Eugene Nelson one, Eugene B. Johnson one, and defendant, Edward G. McDonough owning the remaining privilege. The agreement recited that the written permission of Fay Miller was required before any improvements could be made on the premises, or any peat, wood or other matter could be removed.

Fay Miller filed his action to foreclose his three mortgages subject to the 1951 lease agreement. Harry F. Stoller, who was the mortgagee in the fourth mortgage, was made a party defendant, and he filed a counterclaim foreclosing his fourth mortgage, stipulating and agreeing that the lien of his trust deed was junior and subordinate to the lien or liens of the mortgages of the plaintiff, and to the rights, privileges, and charges created by the said agreements. The matter was referred to a Master in Chancery who found in favor of Fay Miller, and recommended that the premises be sold subject to the 1951 lease agreement. The McDonoughs excepted to the Master’s findings but were overruled by the trial court. The decree directed the sale of the premises subject to the 1951 lease agreement.

The evidence discloses that all four mortgages were in default. The only point raised on appeal is as to the form of the order of sale which directs sale of the premises subject to the 1951 lease agreement. It is the position of the appellants that the premises should be sold free and clear of this agreement. They contend that all of the agreements regarding hunting privileges were merged into the 1951 agreement and that there was no consideration for that agreement and that it should be considered void for lack of consideration. They further take the position that the practical effect of the 1951 agreement is to cut off the equity of redemption on the part of the mortgagors inasmuch as, they argue, the terms of the 1951 agreement make the property unsaleable to anyone other than the mortgagee.

The doctrine of merger is not applicable in this situation. The 1941 agreement is a grant of a thirty-year hunting and fishing privilege, with an attendant right of ingress and egress. The 1951 agreement expressly recognizes and reiterates that grant, and grants certain other additional rights to Fay Miller. The universal definition of a merger is that it occurs when a lesser and greater estate unite in the same person. Neither the 1941 nor the 1951 agreement creates or grants an estate as contemplated by the doctrine of merger. In Winters v. Polin, 309 Ill. App. 458 at page 463, the court in quoting from Dunkum v. Maceck Bldg. Corp., 256 N. Y. 275, at page 281 said:

“ ‘The doctrine of merger has never been favored in equity and there the estates will be held to be separate when justice requires it and such was- the intention of the parties.’ ” ,,

In 19 Am. Jur., Sec. 135, page 588, it is stated:

“Under the common-law definition, which is generally accepted under the modern law, merger is the absorption of one estate in another, where a greater estate and a less coincide and meet in one and the same person without any intermediate estate, whereby the less is immediately merged or absorbed in the greater. To constitute a merger, it is necessary that the two estates be in one and the same person, at one and the same time, and in one and the same right. ...”

Sec. 136, page 589 states, “The modern doctrine is that merger is not favored either at law or in equity.” In Hooper v. Goldstein, 336 Ill. 125 at page 132, the Supreme Court said:

“A merger takes place when a greater estate and a lesser meet in one and the same person, in one and the same right, without any intermediate estate. The lesser estate thereby merges in the greater. But a merger is not a necessary result of the union of the two estates in the same person. The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place.”

To the same effect is Chicago Title & Trust Company v. Kesner, 296 Ill. App. 187, 192.

As to defendants’ contention that there was a failure of consideration for the 1951 lease agreement, the evidence in the case indicates otherwise. In the preamble of this agreement, the following mutual recitals are recorded:

“Whereas, Miller has under date of February 28, 1947, and under date of February 22, 1950, loaned to Mc-Donough various sums of money, no part of which has been repaid, and upon which indebtedness no interest has been paid ; and

Whereas, said McDonough now desires said Miller to loan him additional funds, and whereas said Miller is willing to do so, in part upon the conditions hereinafter set forth; and

Whereas, further the said McDonough for the last two years has had the use of Miller’s cabin on the premises hereinafter described, free of charge. . . .”

Immediately thereafter, the consideration for the agreement is expressed as follows:

“Now, therefore, in consideration of the above premises and of the mutual benefits and advantage's accruing to each of the parties hereto, it is agreed by and between them as follows

The evidence discloses that upon entering into this agreement, Fay Miller did lend an additional $4,000 to the appellants and that he took a third mortgage as security for the additional loan. He and his brother, Ray. Miller, spent an additional sum, between $1,500 and $2,000, in making improvements upon the land in ’ connection with their duck hunting rights thereon. The consideration for the 1951 lease agreement was adequate. Fay Miller parted with his money. He agreed to forego his remedies under the mortgages then in default, and he extended the maturity of his two prior mortgages. The defendants, in return, granted the plaintiff a greater control over the mortgaged premises, and agreed to refrain from committing waste or otherwise so to use the premises as to damage them for hunting and fishing purposes. These mutual concessions under the established principles of law constitute lawful consideration. “It is a fundamental rule of law that a valuable consideration consists of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other.” Lipkin v. Koren, 392 Ill. 400, at page 406.

Since there was adequate consideration for the 1951 lease agreement the trial court was correct in entering the order for sale subject to the terms of that agreement.

Decree affirmed.

DOVE, P. J. and CROW, J., concur.


author: JUDGE McCORMICK

text:
    Leonard Abbott et al., Appellees, v. William A. Lee, Albert W. Williams and John J. Ahern, constituting the Civil Service Commission of City of Chicago, Appellants.
    Gen. No. 47,151.
    First District, Second Division.
    April 9, 1957.
    Rehearing denied April 30, 1957.
    Released for publication May 21, 1957.

      John C. Melaniphy, Corporation Counsel of City of Chicago, for def endants-appellants; Sydney R. Drebin, and Harold M. Nudelman, Assistant Corporation Counsel, of Chicago, of counsel.
    Michael F. Ryan, of Chicago, for plaintiffs-appellees; Richard F. McPartlin, Jr., of Chicago, of counsel.
   JUDGE McCORMICK

delivered the opinion of the court.

An action for declaratory judgment was brought by Leonard Abbott and others (hereafter referred to as plaintiffs), all of whom were patrolmen of the police department of the city of Chicago, against William A. Lee, Albert W. Williams and John J. Ahern, constituting the civil service commission of the city of Chicago (hereafter referred to as defendants), to have the court declare the sergeant’s promotional examination held by the Chicago civil service commission void because of the alleged failure of the commission to comply with certain provisions of the Civil Service Act and with its own rules and regulations. The complaint also asked for a temporary injunction enjoining the civil service commissioners of the city of Chicago from publishing a promotional eligible register for sergeants of police. Pursuant to a petition by one of the plaintiffs the trial court issued a temporary injunction so enjoining the commission, from which order of the Circuit Court of Cook county this appeal is taken. The trial court entered an order waiving the filing of a bond by the defendants.

In their brief the plaintiffs urge that the appeal should be dismissed because the defendants did not file a bond in compliance with section 78 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 78) governing appeals from interlocutory orders. The defendants claim that as public officers they were exempted from such requirement. In order to properly evaluate the arguments advanced concerning this contention it is necessary to examine some of the earlier cases dealing with the issues herein involved.

In Village of Warren v. Wright, 3 Ill. App. 420 (1878), the village, in the trial court, prayed an appeal, which was allowed conditioned upon the village filing bond within thirty days. The record was filed in the Appellate Court without the bond having been filed. The plaintiff thereupon moved to dismiss the appeal. The court therein held that the right of a city or village to appeal without bond depends entirely upon the construction of the statute, and held that while under the statute cities and villages may sue and be sued in their corporate name, they were not invested with greater privileges than any other suitors, nor could they be except by a specific statutory provision. In its opinion the court also pointed out that the Practice Act approved February 22, 1872 did not exempt cities and villages from the necessity of filing a bond on appeal. That Act (sec. 67) provided that appeals should be initiated by the allowance of a prayer for appeal in the trial court conditioned upon the filing of a bond with sufficient security to be approved and filed within a time limited by the court. In another section of the Act (sec. 72) charitable, educational, penal and reformatory institutions under the control of the state were relieved from the necessity of filing such bond. The court also noted that the Cities and Villages Act, approved April 10, 1872, in article. 10, section 9, provided that a city or village on prayer for appeal should not be required to furnish an appeal bond. The Practice Act (sec. 67) containing the same provisions above referred to was subsequently re-enacted in 1877, and contained a provision repealing all laws and parts of laws in conflict therewith. The court held that under a proper construction of the Practice Act then in force municipal corporations would be required to file a bond unless they fell under the specific exclusionary clause and that it was the legislative intent by the enactment of the Practice Act of 1877 to repeal section 9, article 10, of the Cities and Villages Act. Hence the municipality was by the terms of the Act required to file bond. The court dismissed the appeal.

In July 1879 the Practice Act was amended to exempt municipal corporations from filing bond in “all cases of appeal or writ of error by them from any inferior court to any higher court,” and provided further that the Supreme Court or Appellate Court might grant them writs of supersedeas without the necessity of filing a bond (sec. 71).

In Holmes v. City of Mattoon, 111 Ill. 27 (1884), an attack was made on section 71 of the Practice Act on the ground that it violated the provisions of the Illinois constitution. The court in its opinion pointed out that the state has an inherent right to prosecute or defend criminal and civil suits without liability for costs, damages or forfeitures and has constantly prosecuted writs of error without bonds or any restrictions whatsoever. The court stated that municipal corporations, when suing or defending in their official capacity for the benefit of the public, are instruments of the state to carry out its powers for the public welfare, and they may have extended to them the same exemptions in suits as belong to the state. The court quoted with approval from Andrews v. Rumsey, 75 Ill. 598: “ ‘. . . The language, “Appeals and writs of error shall be allowed from the final determination of county courts, as may be provided by law,” (Const, sec. 19, art. 6,) is too plain to admit of doubt that it is purely a question for the legislature to determine how and upon what terms such appeals shall be granted.’ ” The court held that section 71 of the Practice Act was constitutional.

In 1887 the legislature amended the Practice Act and incorporated therein a provision that interlocutory appeals might be taken, providing that any party taking such appeal should give bond.

In City of Chicago v. O’Hare, 124 Ill. App. 290 (1906), an appeal from an interlocutory order was taken by the city without giving bond. The court cited with approval Harding v. Harding Incandescent Co., 98 Ill. App. 141 (1901), which stated: “The right of appeal is a matter of statutory creation, not a common law right. Hence conformity to the statute is essential and a lack of it jurisdictional.” The court held that section 71 (cited therein as section 72) of the Practice Act which exempted municipal corporations from the necessity of filing bonds in all cases of appeal governed; that it included appeals from interlocutory orders; that the two sections of the Practice Act were not repugnant, nor could the section permitting the city to appeal without filing bond be deemed to have been repealed by the section dealing with interlocutory appeals. Section 71 was treated by the court as being an exemption in favor of municipal corporations which must be read into the provision of the Practice Act dealing with interlocutory appeals.

In McCarthy v. City of Chicago, 197 Ill. App. 564 (1916), the city took an appeal from an interlocutory order of injunction. A motion was filed by the appellee to dismiss the appeal on the ground that the appellant had not complied with the provision of section 123, chapter 110, Hurd’s Rev. Stat. of Illinois, 1911, which provided that an appeal from an interlocutory order must be taken within thirty days from the entry of such order and perfected in the Appellate Court within sixty days from its entry, and that the party taking such appeal shall give bond to be approved by the clerk of the trial court. In its opinion the court points out that the only manner in which an appeal can be taken is by filing a bond approved by the .clerk of the court below, citing cases. It also points out that in City of Chicago v. O’Hare, supra, it was held that section 98 of the Practice Act providing that municipal corporations may in all cases take an appeal or sue out a writ of error without giving bond included appeals from interlocutory orders or decrees; but the court further says: “However, the mere fact that municipalities are exempt from filing a bond does not alter or detract from the rule of law laid down in the foregoing decisions that the benefit of an appeal can be had only by strict conformity to the provisions of the statute by which the right is created.” The court held that since the city did not comply with the further provision. of the statute requiring that the appeal must be perfected in the Appellate Court within sixty days the appeal should be dismissed.

Under the Practice Act of 1872, as amended, it was provided (Cahill’s Ill. Rev. Stat. 1931, chap. 110, sec. 92) that in all cases an appeal must be prayed for and allowed by the trial court with bond to be approved and filed.

A new Practice Act was adopted in 1933 and the provision with reference to interlocutory appeals was enacted as section 78. This section, as amended July 21, 1941, provided that a bond must be given; that the appealmust be taken and record filed in the Appellate Court within thirty days from the entry of such interlocutory order or decree unless extended as therein provided; that no notice of appeal need be filed in perfecting an appeal under this section. (The provision in the former Practice Act to the effect that the appeal must be “perfected” in the Appellate Court within sixty days was not included.) The. Practice Act of 1933 also provided (sec. 76) that other appeals were perfected by the filing of a notice of appeal by the appellant in the lower court, and that such filing is the only step in the appeal procedure which is deemed jurisdictional. There was no requirement that in any appeal other than one from an interlocutory order need a bond be filed. If a bond was filed, the appeal would operate as a supersedeas (sec. 82), and in this section there was a further provision that where an appeal is prosecuted by a public, municipal, governmental or quasi-governmental corporation, or by any public officer in his official capacity for the benefit of the public, the trial or reviewing court or any judge thereof may, without requiring a bond, order that the appeal operate as a supersedeas.

The Practice Aet adopted in 1955 in substance reenacted section 78 dealing with interlocutory appeals, but specifically provided that “the appeal shall be perfected by the filing of a bond in the trial court, approved by the clerk or the judge thereof . . .,” and also that in such appeals a notice of appeal' was unnecessary.

The plaintiffs argue that since there is no statutory provision dispensing with the necessity of a municipal corporation filing a bond in an appeal from an interlocutory order, failure to file such bond is fatal since the filing of a bond in perfecting the appeal is jurisdictional. The defendants contend that section 82(3) of the Civil Practice Act, which provides that municipal corporations may be granted supersedeas without the necessity of filing a bond, should be construed so as to hold' that it was the legislative intent that in no case of an appeal by a municipal corporation was a bond necessary. In other words, the defendants’ contention is that the former section 98 of the Practice Act in force before the adoption of the Act of 1933 should be by implication made a part of section 82(3).

Section 98 of the former Practice Act was repealed in 1933. Section 9, article 10, of the Cities and Villages Act was repealed in 1941. In both of the repealed sections it was provided that in all cases municipal corporations were exempted from filing a bond in all appeals taken by them. There is no provision of like tenor in the present statutes. It is well established that a municipal corporation has no greater right in the taking of an appeal than any other litigant except where it is so specifically provided by statute. Village of Glencoe v. Industrial Com., 354 Ill. 190 (1933), came before the Supreme Court on a writ of error to review a judgment confirming an award of the Industrial Commission under the provisions of the Workmen’s Compensation Act. Application for certiorari had been filed in the trial court. A motion to quash the writ on the grounds that the bond was not properly approved was not passed upon, and in the Supreme Court it was urged that the court below was without jurisdiction. It was argued that the village was not required to give bond. The case was heard in the trial court before the Practice Act of 1933 was enacted and while section 98 of the former Practice Act was in full force. The court there held that neither the then Practice Act (sec. 98) nor section 9, article 10, of the Cities and Villages Act was applicable inasmuch as the Workmen’s Compensation Act, an Act complete in itself, provided that no writ of certiorari shall issue without the filing of a bond. The court held this provision applied to municipal corporations and ordered the writ of certiorari to be quashed.

The section of the statute dealing with interlocutory orders is complete in itself. It provides, among other things, that only the Appellate Court can enter an order staying the force and effect of an interlocutory order or decree during the pendency of the appeal. Section 81(1) of the Practice Act dealing with supersedeas in the case of appeals from final judgments provides that either the trial court or the Appellate Court may enter an order for supersedeas upon the filing of a bond. Beading this section in its entirety it is apparent that it has no connection with the section dealing with appeals from interlocutory orders, and it must always be kept in mind that the legislature has repealed the only two sections which exempted municipal corporations from filing bonds in all cases of appeal. In construing a, statute the court has the right to consider the legislative intent, but it is not permissible to read into one section of the statute another section dealing with an entirely diverse matter. To do so would require the court to hold that when the legislature made the filing of a bond in all cases in appeals from interlocutory orders jurisdictional it did not mean what it said. It is true that the bond required to be filed is a cost bond, but the type of bond is immaterial since the filing of the bond perfects the appeal and confers jurisdiction upon the Appellate Court. J. H. Walters & Co. v. Canham Sheet Metal Corp., 8 Ill.App.2d 121.

The defendants cite Engles v. Rosenthal, 274 Ill. App. 272 (1934) as holding that an appeal from an interlocutory order was perfected by filing a transcript of the record in the Appellate Court. That case is not applicable here because it is specifically provided in section 78 of the Practice Act of 1955 that the filing of a bond perfects the appeal.

The defendants also urge that the plaintiffs have waived any objection they might have to the entering of the order in the trial court waiving the filing of a bond since they made no objection. In C., P. & S. W. R. R. Co. v. Trustees, 104 Ill. 91, it was argued that where an order was entered in the lower court allowing an appeal upon the filing of a bond within a certain period and where, the bond not having been filed and the appellee having filed with the Appellate Court a waiver of any appeal bond, the appeal was thus fully perfected. The court held that the waiver did not operate to perfect the appeal and that the parties were in the same condition they were before it was filed, and the appeal was dismissed. This decision is in accord with the ordinary rule that it is impossible to confer jurisdiction of the subject matter by waiver or agreement.

If the statute had in apt words excused the defendants from the necessity of filing a bond in their appeal from the interlocutory order, the entry- of any order waiving the requirement would be unnecessary and inappropriate. Without such a' statutory provision the entry of such an order was futile. The appeal of the defendants from the order of the Circuit Court of Cook county is dismissed.

Appeal dismissed.

ROBSON, P. J. and SCHWARTZ, J., concur.

Memorandum on Overruling Petition for Rehearing •

This memorandum is filed in order to further clarify the opinion as filed.

The filing of a bond in an interlocutory appeal is significant because there must be some time definitely fixed at which the Appellate Court acquires jurisdiction of the action. By providing that the filing of a bond perfects the appeal, the legislature has specifically determined the time when the jurisdiction of the Appellate Court attaches. In an appeal from a final judgment the appeal is perfected by the filing of the notice of appeal. and the jurisdiction of the Appellate Court attaches qt the time of the filing of such notice. In an appeal from an interlocutory order there is no notice of appeal. Unless a bond is filed it cannot be determined when the jurisdiction of the Appellate Court attaches. It is not necessary for all parties affected by the order appealed from to prosecute such appeal. The parties must be identified in order for the Appellate Court to enter an ultimate judgment including that for costs in favor of or against the appropriate parties. The only statutory method provided for such identification in an interlocutory appeal is the filing of the bond. That identification must appear from the record, of which the bond, when filed, would necessarily be a part. Such identification cannot be based merely upon a statement by counsel in a brief. A municipality under the Act must file a bond in an appeal from an interlocutory order in order to perfect the appeal. Such compliance by a municipality with the statute need not impose any hardship upon it. The trial court might, if it saw fit, approve such a bond without requiring a surety thereon.


text:
    People of State of Illinois, Defendant in Error, v. Joseph Niewinski and Markus Svendsen, Plaintiffs in Error.
    Gen. No. 46,976.
    First District, Second Division.
    April 9, 1957.
    Released for publication May 21, 1957.

      Coghlan & Coghlan, of Chicago (John P. Coghlan, and John E. Toomey, both of Chicago, of counsel) for plaintiffs in error.
    Benjamin S. Adamowski, State’s Attorney of Cook county, of Chicago (Gordon Nash, and William Sylvester White, Assistant State’s Attorneys, of Chicago, of counsel) for defendant in error.
   JUDGE McCORMICK

delivered the opinion of the court.

Joseph Niewinski and Markus Svendsen, police officers of the City of Chicago, were indicted under Section 9 — 92 of the Cities and Villages Act (chap. 24, par. 9 — 92, Ill. Rev. Stat. 1953) and tried before a jury and found guilty. They were each fined $500 and removed from their positions as officers and policemen of the city of Chicago. Motions for a new trial and arrest of judgment were overruled, and plaintiffs in error sued out this writ of error to review the judgment of the court.

The matter is submitted to this court on a stipulation entered into between the State’s Attorney of Cook County and the plaintiffs in error (hereafter referred to as defendants), through their attorneys. In the stipulation appears the following paragraph:

“The sole question presented for review is the claim of the defendants that section 9 — 92 (chap. 24, Par. 9 — 92, Ill. Rev. Stats. 1953) making removal from office mandatory on a finding of guilty, can apply only to elective and appointive officers and is repugnant to section 12, (Chap. 24%, Par. 51 Ill. Rev. Stats. 1953) governing removal of persons appointed under Civil Service.” .

The stipulation also sets out that the two defendants were originally indicted on two counts, count one charging a violation under section 208 of the Criminal Code (chap. 38, par. 449, Ill. Rev. Stat. 1953), and count two charging a violation under the Cities and Villages Act. At the conclusion of all the evidence the State’s Attorney was allowed by the court to dismiss count one. Count two in substance set out that the defendants, officers and policemen of the city of Chicago, on December 28, 1953 verbally and maliciously threatened to accuse one Robert Frederickson of the crime of selling liquor to minors, with the intent of extorting from him the sum of $500, and that the defendants were guilty of malconduct.

An abstract of the evidence is also set out in the stipulation, and is to the effect that the defendant Niewinski talked to Frederickson by telephone from the tavern of which Frederickson was the manager and told Mm there had been a minor in the tavern, that he (Frederickson) was in serious trouble and should come down to the tavern at once and bring some money with him to straighten things out. Frederickson thereupon came to the tavern, and the defendants told him that if he paid $500 the matter would be forgotten. Frederickson said he could not get that much money and the defendants then went with Frederickson to the police station to wMch they were assigned. They again tallied to him there, and he told them he could get $100 that night which he would give them and would pay $200 the following night. The offer was accepted. Frederickson obtained and gave them $98. The defendants failed to return for the $200 the next Mght. On a showup Frederickson identified the two defendants as the officers who obtained the money from him. They denied the charge.

Under the stipulation no question is here raised concerning the conduct of the trial of the defendants, nor is it disputed that they were guilty of the misdemeanor for which they were tried and convicted. There are only two questions presented to us for determination : first, Did section 9 — 92 of the Cities and Villages Act apply to police officers? and second, Was that portion of the section which made removal from office mandatory on a finding of guilty repugnant to section 12 of the City Civil Service Act?

Section 92, article 9, of the Cities and Villages Act (par. 9 — 92, chap. 24, Ill. Rev. Stat. 1953), provides:

“Every municipal officer who is guilty of a palpable omission of duty, or who is guilty of willful and corrupt oppression, malconduct, or misfeasance in the discharge of the duties of his office, shall be liable to indictment in any court of competent jurisdiction and, on conviction, shall be fined not exceeding $1,000. The court in which such conviction is had shall enter an order removing the convicted officer from office.”

The defendants in their reply brief admit they were either de facto or de jure officers of the city. That being so, they fall within the scope of section 92, article 9, of the Cities and Villages Act dealing with “every municipal officer.” The defendants, however, strenuously urge that notwithstanding the fact they are de facto or de jure officers they do not come within the purview of the mandatory clause of the above section since they are civil service employees, whose removal is governed by section 12 of the City Civil Service Act (par. 51, chap. 24%, Ill. Rev. Stat. 1953), which provides:

“. . . No officer or employee in the classified civil service of any city who shall have been appointed . . . shall be removed or discharged except for cause; upon written charges and after an opportunity to be heard in his own defense.”

It is well established law that where there is no constitutional limitation involved the legislature has complete control over all offices created by statute. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished and compensation taken away from the incumbent. Groves v. Board of Education, 367 Ill. 91. In People v. Kipley, 171 Ill. 44, in passing on the constitutionality of the Act to Regulate the Civil Service of Cities, the court discusses the philosophy underlying the enactment of such laws, and points out that their purpose is to do away with the “spoils system,” to improve the efficiency of employees coming within their scope, and to establish a system under which the right to employment and promotion is determined according to merit and fitness based upon competitive examinations free to all. The court says:

“A public office is not property, nor are the prospective fees of an office the property of its incumbent. An office is a mere right to exercise a public function or employment. It is not the subject of sale, purchase or incumbrance. The term ‘office’ implies a delegation of a portion of the sovereign power of the government to the person filling the office. Its duties are to be performed for the benefit of the public and in the public interest. (19 Am. & Eng. Ency. of Law, 381, 382).”

The court points out that the right of an incumbent in office is not based upon a contract or grant, but that such office is conferred upon him as a public trust to be exercised for the benefit of the public, and that the legislature has the power, within constitutional limitations, to control the municipalities created by it and may direct how municipal officers may be elected or appointed by the cities and villages in the state and how such officers shall be removed.

It is true that the Civil Service Act does make certain provisions with reference to tenure of office. These provisions, however, are subordinate to the main purpose of the Act. The reason for the existence of civil service laws is a protection of the public and in carrying out that purpose they protect civil service employees. A civil service employee is not awarded a life tenure in office. The jurisdiction of the civil service commission is limited, and any authority claimed by it must be conferred upon it by statute. People ex rel. Hurley v. Graber, 405 Ill. 331. In construing a statute the court must ascertain and give effect to the intention of the legislature, which is to be gathered from the necessity or reason for the enactment and the meaning of the words, enlarged or restricted according to their real intent. In determining this intent the court must consider the existing circumstances, contemporaneous conditions and object sought to be attained by the statute, together with the language used by the legislature and the evil to be remedied. Petterson v. City of Naperville, 9 Ill.2d 233. The provision in the Civil Service Act that no person employed in the classified service of the city can be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense, must be given a reasonable meaning. Considering the statute, as we must, in the light of the stated and generally accepted purpose underlying the institution of civil service in -municipalities, the fundamental reason for the enactment of this provision dealing with tenure of office is for the benefit and protection of the public. Without this restriction upon the removal of civil service employees a workable civil service could not be maintained, and we would be confronted with the very abuses which the civil service laws were intended to prevent: the removal of employees for political or other reasons at the whim of department heads or civil service commissions without any regard as to whether or not the performance of the incumbent in his office warranted dismissal either without making any charges or permitting him on a hearing to vindicate himself against such charges as are made. It has been repeatedly held that in spite of this prohibition an office or employment held under civil service may be abolished and the incumbent removed without any right to the preferring of'charges against him or a hearing before the civil service commission. City of Chicago v. People ex rel. Byrne, 114 Ill. App. 145.

In the case before us we must assume, since no objection is here urged, that the defendants were afforded a fair trial and that the evidence in the case was sufficient to convict them of the offense charged. The statute under which they were tried provided that if they were found guilty of malconduct as officers it was mandatory upon the court to remove them from office. It would'be unreasonable to assume that the legislature, in providing in the Civil Service Act that no civil service employee could be removed or discharged without written charges and a hearing before the civil service commission, meant that if such employee had been convicted in the criminal court of conduct in utter disregard of his duty to the public under a statute requiring the court upon such conviction to remove him, it would still be necessary for a further and additional hearing to be held before the civil service commission. As was said in Matter of Kenny v. Kane, 27 Misc. 680, 59 N.Y.S. 555: “To give an employee an opportunity to make an explanation when there is nothing to explain would be an idle ceremony.” The law does not require the doing of unnecessary things.

As we said in Martin v. Civil Service Commission, 7 Ill.App.2d 128:

“The problem of proper discipline, morale and law enforcement by the Police Department is one directly affecting the administration of justice. The police have the responsibility of apprehending those who violate the law and assisting in the preparation of the cases that are to be brought before the courts for trial. A corrupt and dishonest police officer can persecute the honest and assist the guilty to avoid prosecution. As a result of such dishonesty and corruption, all who are connected with the administration of justice can be brought into disrepute. In this the people of the community and all those connected with the administration of justice are vitally interested.”

It is the duty of a police officer to protect the citizens of his community and not to prey upon them.

We can find no force in the argument that the cited provision of the Civil Service Act is repugnant to the mandatory provision of the Cities and Village^ Act. They are mutually exclusive.

Furthermore it may be noted that the Civil Service Act relating to cities and containing the clause above referred to has been in force in this State since 1895. The revised Cities and Villages Act was with some minor changes re-enacted in 1941. It must be assumed that the legislature knew of the provision contained in the Civil Service Act, and by passing the revised Cities and Villages Act in 1941 their intent was to limit the application of the restrictive clause in the Civil Service Act so that it did not include the provision under which the defendants were convicted. The argument of the defendants that they should not have been tried under section 9 — 92 of the Cities and Villages Act, but under some other statutory provision, is outside the scope of the stipulation and will not be considered. To say that after a proper conviction of the defendant police officers of such conduct as was set out in the stipulation it would be necessary, before they could be removed from their positions, to go through the meaningless formula of a filing of charges and a hearing before the civil service commission is not in accord with commonly accepted rules of law or reason; and it is repugnant to the judicial conscience to say that a person, after conviction of such an offense, is still entitled to remain as an officer of the police department. It may reasonably be assumed that this was within the consideration of the legislature when it passed the revised Cities and Villages Act in 1941.

The judgment of the Criminal Court of Cook county is affirmed.

Judgment affirmed.

ROBSON, P. J. and SCHWARTZ, J., concur.