text:
    Karen Blazer and Howard Blazer, Minors, by Gladys Blazer, Their Mother and Next Friend, Gladys Blazer and Eugene Blazer, Plaintiffs-Appellants, v. Highway Commissioner of Marengo Township, Defendant-Appellee.
    Gen. No. 67-113.
    Second District.
    March 11, 1968.

      Pollock, Meyers & Eicksteadt, of Marengo, for appellants.
    Kell and Conerty, of Woodstock, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiffs filed this action to recover for personal injuries and for property damage to an automobile, allegedly suffered by reason of the negligence of the defendant in failing to maintain, repair and preserve River Road in such manner as to provide a safe surface thereon for the passage of vehicles. This action was brought against the “Highway Commissioner of Marengo Township,” as defendant. The plaintiffs alleged, in the various counts of their complaint, that the defendant had the duty to maintain the road in question in a state of repair sufficient to permit safe travel by the general public and by plaintiffs; and that the defendant breached this duty.

The defendant filed a motion to dismiss, solely on the ground that the named defendant does not have legal capacity to be sued as it is neither a natural nor artificial person, but rather, an office or description of an individual person elected to such office. The court granted the defendant’s motion and ordered that the complaint be dismissed. Apparently, leave was not sought to amend the complaint, nor was it granted.

The plaintiffs have appealed from the order dismissing the complaint, and have presented to this court the single issue of whether or not the “Highway Commissioner of Marengo Township” has the capacity to be sued.

At the outset, we must answer the defendant’s contention that there was not a final order from which an appeal could be taken. The defendant points out that the order merely dismissed the complaint; that the plaintiffs were invited to amend their complaint to name the particular highway commissioner in office at the time of the incident, or his executor — in that he had died prior to the bringing of this action — , and that the plaintiffs refused to do so.

We believe that the decisions recently rendered by this court in Martin v. Masini, 90 Ill App2d 348, 232 NE2d 770 (1968), and Peach v. Peach, 73 Ill App2d 72, 78, 218 NE 2d 504 (1966) sufficiently answer the defendant’s contention. The order, in the case at bar, terminated the litigation between the parties and finally determined, fixed and disposed of their rights as to the issues made. It was final and appealable and the appeal properly brings the issue in question before this court.

With reference to the merits of the appeal, we are of the opinion that the defendant has the capacity to be sued. The relevant statute provides that the highway commissioner “shall” perform certain functions, among which are: determine the taxes necessary to be levied on property within his district for road purposes, and separately state the amounts to be levied for the construction and maintenance of roads and bridges, the purchase of machinery and repairs thereto, and for other items; lay out, alter, widen or vacate roads; direct the expenditure of all moneys collected in the district for road purposes and draw warrants therefor; “(C)onstruct, maintain, and repair and be responsible for the construction, maintenance and repair of roads within the district”; have “general charge of the roads of his district, keep the same in repair and to improve them so far as practicable”; and have authority to purchase or lease highway construction and maintenance equipment. (Ill Rev Stats 1965, c 121, pars 6-201-201.17 incl.)

Section 6 of Article V of the Township Organization Act (Ill Rev Stats 1965, c 139, par 49) provides that in all suits by or against town officers, in their name of office, costs shall be recovered as in other cases and that “(J)udgments recovered against a town or against town officers in actions prosecuted by or against them, in their name of office, shall be a town charge, and when collected shall be paid to the person or persons to whom the same shall have been adjudged.” Section 6-402 of the Roads and Bridges Act (Ill Rev Stats 1965, c 121, par 6-402) provides that Highway Commissioners “may be proceeded against jointly by any parties interested in such bridges or culverts, for any neglect of duty in reference to such bridges or culverts, or for any damage growing out of such neglect.” And, section 6-412.1 of the Roads and Bridges Act, as well as section 3.24 of Article IV of the Township Organization Act (Ill Rev Stats 1965, c 139, par 39.24) authorize township highway commissioners to purchase liability insurance for themselves, their agents and employees against any liability or loss resulting from the wrongful or negligent act of such officer, agent or employee while discharging and engaged in his duties or functions.

These statutes are in pari materia and should be construed together. People ex rel. Bell v. New York Cent. R. Co., 10 Ill2d 612, 621, 141 NE2d 38 (1957); Bronson v. Washington Nat. Ins. Co., 59 Ill App2d 253, 260, 207 NE2d 172 (1965). The implication of the foregoing sections is that the “highway commissioner” is both the office and the officers and that he can sue and be sued.

In Euziere v. Highway Com’r of Town of Rockville, 346 Ill 131, 134, 136, 178 NE 397 (1931), where the highway commissioner was sued as an entity, the court referred to some of the above powers and duties conferred upon the commissioner of highways by statute, and treated the office as a quasi-public corporation with implied powers to do those things necessary to exercise the powers conferred and to perform the duties enjoined upon it by law.

In Highway Com’rs of Town of Rutland v. Highway Com’rs of Town of Dayton, 60 Ill 58 (1871), both the plaintiff and the defendant were highway commissioners and the suit was brought by and against each in his official — as opposed to individual — capacity. It was there contended that the suit should have been brought in the individual names of the officers. The court disagreed and stated on page 61 that the officers should sue in their official, as opposed to their individual, capacities. Thus, the court recognized the highway commissioners as quasi-corporations.

In McMechan v. Yenter, 301 Ill 508, 511, 512, 134 NE 39 (1922) the court held that in a suit seeking a mandatory injunction to compel the removal of certain tile drains from public highways, the commissioner of highways, in his official capacity, was a necessary party. In remanding, with directions to make the “commissioner of highways of the Town of Ursa” a party defendant, the court noted that when a suit is brought seeking to bind the commissioner of highways in his official capacity, “he should be sued in his official and not his individual capacity.” Thus, the court recognized that a decree against a party in his individual capacity does not bind him in his official capacity. Also see: People v. Baltimore & O. R. Co., 322 Ill 623, 627, 153 NE 697 (1926); Euziere v. Highway Commissioner of Town of Rockville, 260 Ill App 29, 32 (1931); Illinois Nat. Bank v. Town of Bois D’Arc, 243 Ill App 587, 591 (1927).

Black’s Law Dictionary (4th ed 1957) defines quasi-corporations as:

“Organizations resembling corporations; municipal societies or similar bodies which though not true corporations in all respects, are yet recognized by statutes or immemorial usage as persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be maintained by suits at law.” (Emphasis ours.)

Our courts, on numerous occasions, have recognized a township highway commissioner as a quasi-public corporation, distinct and apart from the entity of the Town or Township, and possessing both the capacity to sue and to be sued. People v. Rice, 356 Ill 373, 376, 190 NE 681 (1934); Roesch-Zeller, Inc. v. Hollembeak, 5 Ill App2d 94, 107, 124 NE2d 662 (1955); Illinois Nat. Bank v. Town of Bois D’Arc, supra. Also, section 18 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 18) acknowledges the right to sue a “quasi” municipal corporation, as well as a municipal or public corporation, by providing the manner of service of summons in a suit against a quasi-municipal corporation.

This suit was properly brought against the office of the Highway Commissioner of Marengo Township if it was the plaintiff’s intent — as it apparently was — to seek to bind that office in its official capacity. The plaintiffs could have added the name of the present eommissioner, but that would have been mere surplusage. Also, if the plaintiffs had sued a named individual as Highway Commissioner, they would have invited additional procedural and substantive legal problems by virtue of the expiration of the individual’s term of office and, as in the case at bar, because of the death of the individual. Highway Com’rs of Town of Rutland v. Highway Com’rs of Town of Dayton, supra, 61, 62. The motion to dismiss the complaint should have been denied.

The only ground raised by the defendant in its motion to dismiss was that it lacked capacity to be sued. We have answered this contention. However, both parties, by brief and argument in this court, also raised and discussed the issue of whether the defendant may be held liable in its official capacity for the tort allegedly committed. This issue was probably considered in the trial court, and undoubtedly will be raised on remand of the case; consequently, we will briefly consider it.

Until the relatively recent case of Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959), there was little concern over this issue because of the prevailing doctrine of governmental immunity from tort liability. In holding that such immunity should no longer exist, the court stated on page 20 that the underlying concept of the law of torts today is that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The court held that this principle should apply to the school district in question — a quasi-municipal corporation. At page 24, the court quoted from Dean Hamo (Harno, Tort Immunity of Municipal Corporations, 4 Ill LQ 28, 42), as follows:

“A municipal corporation today is an active and virile creature capable of inflicting much harm. Its civil responsibility should be co-extensive. The municipal corporation looms up definitely and emphatically in our law, and what is more, it can and does commit wrongs. This being so, it must assume the responsibilities of the position it occupies in society.”

In Harvey v. Clyde Park Dist., 32 Ill2d 60, 203 NE2d 573 (1964), the court again held that a quasi-municipal corporation — a park district — was not protected by the doctrine of governmental immunity. At page 63 the court recognized that township and district highway commissioners are fully liable for neglect of duty, and cited Ill Rev Stats 1963, c 121, par 6-402 as authority for such conclusion, which section stands unaltered in the Illinois Revised Statutes of 1967.

The rationale of the Molitor case is equally applicable in this case. We have recognized the status of a township highway commissioner as a quasi-public corporation — an entity created for the purpose of, and charged with the duty of, maintaining certain roads and bridges. To the extent that there may be negligence, in some manner, in the carrying out of these duties by the officer, his agents or employees in the course of their employment, the quasi-public corporation, the defendant, may be held liable therefor.

The fact that the agent or employee of the Highway Commissioner of Marengo Township, or the individual holding the office in question, under certain circumstances, may also be personally or individually liable, does not affect the liability which may also be imposed on the quasi-public corporation, the defendant.

We are not expressing an opinion as to whether or not liability in fact exists in this case, in that such question is not in issue before us. We have determined only that the defendant has the capacity, not only to be sued, but, also, to be held liable for the commission of torts.

For the foregoing reasons, the cause is reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BURKE.

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Alonzo Roland, Appellant.
    Gen. No. 51,447.
    First District, Second Division.
    March 12, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Solomon Dawson, (Impleaded), Defendant-Appellant.
    Gen. No. 51,583.
    First District, Second Division.
    March 12, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s At-
    torney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    Mirko Gasparas, Plaintiff-Appellee, v. Wallace Leack, et al., Being and Constituting the Board of Fire & Police Commissioners of the Village of Justice, Cook County, Illinois, and Edward Naydeck, Defendants-Appellants.
    Gen. No. 52,326.
    First District, Second Division.
    March 12, 1968.

      Sodaro, Wisner & Beaver, of Chicago (Dean J. Sodaro, of counsel), for appellants.
    Walter C. Wellman, of Lyons, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

After a hearing before the Village Board of Fire and Police Commissioners, plaintiff Captain Mirko Gasparas was found guilty of conduct unbecoming a police officer and of insubordination, and was ordered discharged from his position with the Police Department of the Village of Justice. Plaintiff appealed the decision of the Board to the Circuit Court of Cook County pursuant to the provisions of the Administrative Review Act, and the Circuit Court held the findings of the Board to be against the manifest weight of the evidence, reversed the Board’s order of discharge and reinstated plaintiff to his former position with the Police Department. Defendants appeal.

On October 27, 1966, four charges were filed against plaintiff by defendant Edward Naydeck, Chief of Police of the Village of Justice. The first charge alleged plaintiff was guilty of conduct unbecoming a police officer in violation of the rules of the Police Department, in that on the date of June 16, 1966, he made certain statements derogatory to the other members of the Justice Police Department, used profanity before a group of citizens, and interfered with officers of the Village Police Department while they were in the process of arresting Wayne Gasparas, plaintiff’s son. The three remaining charges related to allegations of insubordination on plaintiff’s part: that on October 13, 1966, plaintiff refused to obey an order given by Chief Naydeck that plaintiff turn over books, records and equipment belonging to the Village Police Department which plaintiff allegedly had in his possession during the six-year period plaintiff was the Chief of Police of the Village of Justice; that on the same date plaintiff refused to obey an order given by Chief Naydeck that plaintiff resign his position with the Fire Department of the Village of Justice in that the rules of the Police Department prohibited a police officer from also holding a position on the volunteer Fire Department of the Village; and that on the same date plaintiff further refused to obey Chief Naydeck’s order that he submit to a fingerprint examination.

The first charge against plaintiff, that of his having engaged in conduct unbecoming a police officer, arose out of an incident which occurred on June 16, 1966, in the front yard of the home of Wayne Gasparas, plaintiff’s son. Andrew Tomi testified that he was a Village of Justice patrolman and that at approximately 3:30 p. m. he had stopped an automobile for a traffic infraction on a two-lane road in the Village and had pulled his marked squad car alongside the other vehicle in order to speak to the driver. The squad car and the vehicle Tomi had stopped were standing two abreast on the road and as Tomi engaged the driver in conversation, Wayne Gas-paras stopped his automobile behind the vehicle Tomi had stopped and began blowing the horn of his automobile, telling the drivers of the vehicles in front to move on and shouting obscenities. Tomi told the other driver to proceed, alighted from his squad car and told Gasparas he was under arrest for disorderly conduct. Tomi testified that Gasparas then drove off and that he, Tomi, gave chase and radioed for assistance in order to effect an arrest.

As Gasparas turned his automobile onto the road running in front of his home, he was forced to stop due to a roadblock formed by a squad car operated by Village of Justice Police Officers Britton and Muscato. Other officers from the neighboring municipalities of Willow Springs, Hickory Hills and Bridgeview also appeared on the scene in marked squad cars, apparently in response to Tomi’s radio request for assistance. Tomi testified that Gasparas alighted from his automobile and began walking toward his property, and that he and an officer from Willow Springs stopped Gasparas and informed him he was under arrest for disorderly conduct and reckless driving. Some words were exchanged between the officers and Gasparas, a struggle ensued and the officers attempted to place handcuffs on Gasparas in order to take him to the police station. Tomi stated that a large crowd of local residents had by then gathered at the scene. At this point plaintiff arrived dressed in civilian attire and driving his private automobile.

Tomi testified that plaintiff alighted from his automobile and began hollering, “Get your damn hands off my boy. What are you doing to him ?” At another point in his testimony Tomi stated the plaintiff’s comments at this point were, “Get your goddamn hands off my boy. What the hell is going on here?” However, Tomi later testified that he was uncertain whether plaintiff used the term “goddamn” when he arrived on the scene and it was further brought out that Tomi, in his testimony at the trial of Wayne Gasparas on the charges of reckless driving, disorderly conduct and resisting arrest, made no mention of profanity having been used by plaintiff during the incident. Plaintiff also ordered that the single handcuff which the officers had succeeded in placing on Wayne Gasparas be removed.

Tomi also testified that plaintiff stated, after he had alighted from his automobile, that plaintiff was the only police officer at the scene and that he had papers in his automobile to prove it. It appears that Captain Gasparas and six other Village of Justice police officers were discharged from their respective positions on the force and that six other persons were appointed in their stead, the latter group apparently including witness Tomi. Captain Gasparas and the six other discharged police officers filed an action in the Circuit Court of Cook County for, among other relief, a writ of mandamus to require reinstatement of the seven men. It was stipulated at the trial that Gasparas was entitled to certification to civil service status with the rank of captain. The Circuit Court, on the day prior to the incident of June 16, 1966, ruled that the appointment as police officers of the second group of men (that group which apparently included Tomi) was null and void for failure on the part of the Village to conform to the statute relating to the appointment of policemen in municipalities having a population of over 5,000 persons. The Circuit Court’s action in this regard was upheld by this Court in the recent case of People ex rel. Gasparas v. Gualano, 88 Ill App2d 227, 231 NE2d 669. Plaintiff thereafter stated that if an arrest were to be made that he, plaintiff, would drive Wayne Gasparas to the police station, which in fact was done.

Officer Britton of the Village of Justice Police Department testified at one point in the hearing that plaintiff stated, as he came onto the scene, “Take your hands off my son,” but testified at another point that plaintiff stated, “Take your goddamn hands off my son.” The officer further testified that a large crowd had gathered at the scene while the officers were attempting to arrest Wayne Gasparas and were hollering such things as “police brutality” and the like.

Officer Burda of the Willow Springs Police Department, one of the officers who responded to Tomi’s radio request for assistance, testified that after the officers arrived at the home of Wayne Gasparas a crowd of some 100 persons had gathered nearby and that an “explosive situation” had developed; the people were attempting to interfere with the arrest of Gasparas and were accusing the officers of “running down their children.” The officer stated that after plaintiff arrived he heard plaintiff say to Tomi that he, plaintiff, was the only police officer at the scene and had papers to prove it; the words were directed to Tomi and not to the crowd. Officer Burda did not testify that he heard plaintiff use profanity.

Officer Marcoline testified that he was a police officer of the Village of Hickory Hills and that he was one of the officers who responded to Tomi’s radio request for assistance. He testified that when plaintiff arrived on the scene, plaintiff stepped between an officer present at the scene and Wayne Gasparas, stated he would take care of the matter and “said something to the effect that . . . the rest of the fellows there were not police officers, and he had papers in his car to prove it.” The officer further testified that no one at the scene disputed plaintiff’s authority at the time he said he would handle matters.

Joseph Kresser, Chief of Police with the Willow Springs Police Department, also responded to Tomi’s radio request for assistance. Chief Kresser testified that he knew plaintiff to be the Captain of Police with the Justice Police Department. Chief Kresser left shortly after plaintiff arrived because, he testified, plaintiff was “superior officer at the scene.”

William Jones testified that he lived next door to Wayne Gasparas and that he was present at the scene from the time Gasparas and the officers first arrived until Gasparas was taken to the police station by plaintiff. He stated he observed Tomi’s squad car pursuing Wayne Gasparas’ automobile and that the latter was forced to come to a stop due to a roadblock created by the squad car of Officer Britton. Several officers then dragged Gasparas from his automobile and threw him against the rear portion of the vehicle, and one of the officers “began kneeing him.” The witness approached to within 10 feet of the officers and Gasparas, and shouted to them to stop. Plaintiff then arrived and told the officers present to remove the handcuffs from his son. By this time, Mr. Jones testified, a crowd of some 100 persons had gathered at the scene. Plaintiff then placed his son in his own automobile and drove him to the police station. The witness further testified that he heard plaintiff use no profanity at any time during the incident.

Wayne Gasparas testified that as he arrived at his home on the date in question he was unable to enter his driveway because Officer Britton’s squad car was blocking it. Gasparas alighted from his automobile in the road, and Tomi told him he was under arrest but would not give a reason therefor. Officer Burda then told Gas-paras to go to the police station to get the matter cleared up, which Gasparas agreed to do. The officers wanted Gasparas to ride to the station in a squad car, but Gas-paras stated he would drive his own automobile. As he entered his vehicle, Gasparas testified, he was dragged from and pushed against the rear of the vehicle, and the officers attempted to handcuff him. One of the officers was “kneeing” the witness. Plaintiff then arrived, ordered the handcuffs removed from the witness and took him to the police station. The testimony of Mrs. Nadine Gasparas, wife of Wayne Gasparas, was much the same as that of her husband and William Jones. She stated she did not hear plaintiff use profanity at the time he ordered the handcuffs removed from her husband and that plaintiff directed the remark that he was the only officer in the Justice Police Department to Tomi.

Plaintiff testified with regard to the June 16th incident that he was on his way to his son’s home to check on some repair material he had ordered for the house and that when he arrived at his son’s home he observed several squad cars nearby and his son standing near his automobile surrounded by several policemen. Plaintiff attempted to ascertain what was the matter, told one of the officers to remove the handcuffs from his son, and stated that if an arrest were to be made he, plaintiff, would drive his son to the station where the proper charges would be made. Plaintiff further stated he used no profanity during the incident and that he stated to Tomi and the officers from the other municipalities who were present at the scene that Tomi was not a police officer of the Village of Justice and that he, plaintiff, had “a court order to prove it.”

With regard to the charges arising out of the conversation of October 13, 1966, between plaintiff and Chief Naydeck at the Village of Justice police station, the chief testified that on the morning in question he requested plaintiff to return files and equipment which plaintiff allegedly had in his possession during the period plaintiff was Chief of Police of the Village of Justice. The chief testified that plaintiff replied, “No, I’m not turning nothing [sic] in.” Also present at the conversation was an ex-trustee of the Village of Justice, Robert Stuernfeldt. Chief Naydeck testified that the only items he specifically requested at the time were a “walkietalkie” set, several safety award plaques, and a typewriter. Other than the foregoing the chief was unable to specifically state what other “equipment and files” plaintiff had in his possession which the chief felt belonged to the Police Department.

Plaintiff testified that the typewriter was his personal property and that the “walkie-talkie” set was in a desk drawer in the police station, as were the safety award plaques which had been removed from the walls when the office was being decorated. Mr. Stuernfeldt testified that Chief Naydeck stated to plaintiff, “You have two walkie-talkies.” Plaintiff’s reply was, “Granted.” When the chief asked plaintiff if he had a typewriter and an adding machine belonging to the Department, plaintiff replied, “No, I don’t.” Mr. Stuernfeldt testified that the matter "was dropped right there.”

Chief Naydeck further testified that he asked plaintiff if he was still connected with the Village of Justice Fire Department and that he wanted plaintiff to “divorce” himself from the Fire Department for the reason that the rules of the Police Department did not permit such a double association. The chief testified that plaintiff replied, “Oh, no! I don’t get paid for that. We will see about that.” The chief stated plaintiff also replied, “We will wait and see.”

Plaintiff testified that in July or August 1966 he requested from Mr. George Mack, Chief of the Village Fire Department, a leave of absence from the Department pending a determination of the validity of the requirement that policemen could not be associated with the Fire Department. George Mack corroborated this testimony, stating that plaintiff requested a leave of absence sometime during the second week in June 1966 for the same reason as that given by plaintiff at the hearing. The only evidence in the record that plaintiff was in any way actively associated with the Fire Department after he was granted the leave of absence and before the request by Chief Naydeck to disassociate himself from the Department appears to have been in connection with the operation of a fire ambulance, on one occasion in July 1966, to the scene of an automobile accident after the accident was brought to his attention over the police radio. When he arrived at the scene plaintiff was advised by Chief Naydeck that an ambulance was not needed and he returned the vehicle to the firehouse.

Mr. Stuernfeldt testified that during the conversation of October 13, 1966, Chief Naydeck asked plaintiff if he was still with the Fire Department, to which plaintiff replied, “Yes.” The chief then stated, “Well, you know what the rules are.” Plaintiff replied, “Yes, I know.” Mr. Stuernfeldt also stated that this was the extent of the conversation with respect to plaintiff’s association with the Fire Department.

As to the final charge brought against plaintiff, Chief Naydeck testified that he requested a set of fingerprints from plaintiff to be taken by someone of the chief’s choosing. The chief stated plaintiff refused to submit to an examination and offered him a set of fingerprints which had been on file with the Police Department prior thereto; the chief, however, stated he desired another set of prints. The set of fingerprints offered to the chief by plaintiff and introduced into evidence at the hearing before the Board is dated March 1962 and appears to be a properly authenticated set of plaintiff’s fingerprints. The chief admitted in examination that a person’s fingerprints do not change merely because of the aging of that person. Chief Naydeck stated that this was the extent of the conversation concerning the fingerprints because a person entered the station seeking information.

Plaintiff testified that the chief asked him for a set of his fingerprints and that he, plaintiff, secured a copy thereof from another office in the police station and gave them to the chief. Mr. Stuernfeldt’s testimony concerning this segment of the conversation was substantially the same as Chief Naydeck’s, adding only that plaintiff stated to the chief that only one set of fingerprints was required.

While the findings and conclusions of an administrative agency on questions of fact are presumed to be prima facie true and correct, a court of review is required to consider the entire record in determining whether the findings are against the manifest weight of the evidence. Nolting v. Civil Service Commission of City of Chicago, 7 Ill App2d 147, 158, 129 NE2d 236. As stated in Welch v. County Board of School Trustees of Peoria County, 22 Ill App2d 231, 160 NE2d 505 at pages 236-237:

“. . . the findings of an administrative agency must be supported by substantial evidence, and . . . the court has power to review all questions of law and fact presented by the record. Where it is found that the order of an administrative agency is without substantial foundation in the evidence, it is the duty of the courts to set it aside. Illinois Cent. R. Co. v. Illinois Commerce Commission, 395 Ill 303, 70 NE 2d 64.”

The Board of Fire and Police Commissioners of the Village of Justice found with regard to the charge of conduct unbecoming a police officer, that on June 16, 1966, plaintiff (a) interfered with police officers who were in the process of making a lawful arrest, (b) publicly stated that he was the only police officer in the Village of Justice, thereby deprecating and harming the effectiveness of the other members of the police force, (c) issued orders immediately upon arriving at the scene of the incident without first having ascertained the nature of the circumstances, and (d) used profanity before a large crowd of local citizenry. We are of the opinion that the trial court was correct in holding these findings to be against the manifest weight of the evidence.

Without entering a consideration of the alleged authority under which Andrew Tomi and the officers from the other municipalities acted in their attempt to effect an arrest of Wayne Gasparas, the evidence clearly shows plaintiff actually aided in, rather than interfered with the arrest. He succeeded in accomplishing this fact with dispatch and quite apparently without arousing the ire of the local citizenry as the other officers had done. It is undisputed that Wayne Gasparas and several officers were struggling prior to plaintiff’s arrival, and the crowd which had gathered apparently had become incensed over the actions of the police. The crowd had become unruly and was attempting to interfere with the actions of the officers, accusing them of brutality and of running down their children. There was testimony that arguments began breaking out. Upon his arrival, plaintiff, as senior police officer at the scene, had a right under the circumstances to direct that order be restored, that the handcuffs be taken off Wayne Gasparas, and that he be permitted to take charge of the prisoner. From all the evidence it clearly appears that plaintiff’s alleged “interference” in the arrest of Wayne Gasparas quelled, as one officer stated it, “an explosive situation” and that matters thereafter proceeded without incident.

The evidence with respect to the alleged use of profanity by plaintiff before a crowd of people is at best equivocal. Andrew Tomi’s testimony vacillated on this issue. He stated first that plaintiff used the word “damn” when ordering the other officers away from Wayne Gas-paras; he later stated that plaintiff used the words “goddamn” and “hell” at this time; finally, Tomi testified he was not certain whether plaintiff in fact used the word “goddamn.” It further appears that Tomi made no mention of plaintiff’s use of profanity during the incident when he testified at the trial of Wayne Gasparas on the charges of reckless driving, disorderly conduct, and resisting arrest. The only other testimony with respect to the use of profanity by plaintiff was that of Officer Brit-ton who testified plaintiff stated, as he alighted from his automobile, “Take your hands off my son.” He later testified plaintiff stated, “Take your goddamn hands off my son.” No other witness testified plaintiff used profanity during the incident.

With regard to the finding that plaintiff made statements tending to deprecate the standing of the other police officers in the Village, the weight of the evidence is that plaintiff stated to Tomi and the officers from the other municipalities present at the scene that he, plaintiff, was the only police officer at the scene and that he had a court ruling to prove same. The record does not disclose that plaintiff stated this fact aloud so that the entire crowd could hear, nor that the statement was intended to arouse the passion of the crowd. The record clearly discloses that no one questioned plaintiff’s authority to act and take charge of the situation once he arrived on the scene, nor does it appear that anyone challenged plaintiff’s statement that he was the only police officer in the Village.

As to the second charge, that plaintiff was guilty of insubordination, the Board found that on October 13, 1966, plaintiff (a) showed disrespect to a superior officer, Chief Naydeck, in failing to immediately carry out the chief’s order to turn over books, equipment and records allegedly in his possession belonging to the Police Department, (b) failed to sever association with the Fire Department in accordance with the order of Chief Naydeck, and (c) failed to obey Chief Naydeck’s order that plaintiff submit to a fingerprint examination. We are of the opinion that these findings are also against the manifest weight of the evidence, and that both the specifications made in support of the charge of insubordination and the evidence in support thereof are insubstantial.

Chief Naydeck testified that he requested plaintiff to return files and equipment to the Police Department which plaintiff allegedly had in his possession during the years he held the position of Chief of Police, which request plaintiff refused to obey. The chief testified that he specifically requested plaintiff to return a “walkietalkie” set, several safety award plaques, and a typewriter. It clearly appears that both the “walkie-talkie” set and the safety award plaques were in a desk drawer in the police station at the time the chief requested them, and it is not disputed that the typewriter was plaintiff’s personal property. As to the chief’s request for books and files, he did not detail to plaintiff what he was seeking at the time of the request, nor could he specify at the hearing what files he was seeking nor was it established whether such files were in fact in existence. The testimony of Mr. Stuernfeldt, a disinterested witness, was that Chief Naydeck matter-of-factly stated that plaintiff had a “walkie-talkie” set and that plaintiff replied, “Granted.” He further testified that, after plaintiff denied having a typewriter and an adding machine belonging to the Police Department, the matter “was dropped right there.”

Defendants maintain that plaintiff was guilty of insubordination in refusing to withdraw from the Village Fire Department upon order of Chief Naydeck. On the contrary, it is undisputed that plaintiff requested and was granted a leave of absence from the Fire Department sometime during the summer of 1966 pending the outcome of a determination of the validity of the very Police Department rule envoked by Chief Naydeck when he allegedly ordered plaintiff to “divorce” himself from the Fire Department. This is consistent with the chief’s testimony that one of plaintiff’s replies to his request was, “We will wait and see.” It further appears from the testimony of Fire Chief Mack that a vote by the entire Fire Department would be necessary to reinstate plaintiff on the force in the event he resigned, in view of plaintiff’s age. Again, the testimony of Mr. Stuernfeldt concerning this portion of the conversation between plaintiff and Chief Naydeck was that the chief simply asked plaintiff if he was still connected with the Fire Department, and in response to plaintiff’s affirmative answer thereto, the chief stated, “Well, you know what the rules are.”

With respect to the final specification made in support of the charge of insubordination, that plaintiff refused to submit to a fingerprint examination at the request of Chief Naydeck, the evidence clearly shows that although plaintiff did refuse to be fingerprinted, he presented the chief with a set of fingerprints made less than five years earlier, which appear to be a completely authentic and valid set of plaintiff’s fingerprints and which were on file in the Police Department. Inasmuch as the chief himself testified that a person’s fingerprints do not change simply because the person grows older, it is difficult to understand why a second set of fingerprints would be necessary.

For these reasons the judgment of the Circuit Court is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE CRAVEN

text:
    La Salle Casualty Company, an Illinois Insurance Corporation, Plaintiff-Appellant, v. Charlotte Lobono, et al., Defendants-Appellees.
    Gen. No. 51,550.
    First District.
    March 13, 1968.

      Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for appellant.
    Van Duzer, Gershon, Jordan & Petersen, and White, White & Berman, of Chicago (Louis Gershon, Horace W. Jordan, James H. Handler, Arthur L. Berman, and Wayne Rhine, of counsel), for appellees.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiff insurance company appeals from the judgment of the circuit court of Cook County dismissing, upon motion, a complaint for declaratory judgment action and entering judgment for defendants.

An action for declaratory judgment had been brought by plaintiff, a dramshop liability insurer, against its insureds, William Sagall, dramshop operator, Albert H. Wolff and Hannah Wolff, building owners, and Charlotte Lobono and Joseph Lobono, claimants in a suit for personal injuries allegedly sustained by Charlotte Lobono in Sagall’s tavern. In this action, plaintiff-insurer sought an adjudication that its insurance policy did not obligate it either to defend its insured in the personal injury suit or to satisfy any liability which might be imposed upon its insured in the suit.

Plaintiff alleged that its policy contained certain clauses which excluded coverage of a claim arising for injuries, either caused by Sagall’s bartender or resulting from insured’s sale or gift of liquor to that bartender. Plaintiff prayed that the court declare its liability insurance coverage did not extend to the claims filed nor require it to defend its insured in the personal injury suit, and that the defendants had no interest in or liens upon the proceeds of the policy.

The trial court’s dismissal of the complaint recited that it had not “passed on the question of the interpretation of the exclusions in the Plaintiff’s dram shop policy or their applicability to these facts” but sustained the motions to dismiss “for the reason that there is an adequate remedy at law.”

The adoption of the declaratory judgment procedure in Illinois by addition in 1945 of section 57.1 to the Illinois Civil Practice Act (SHA, c 110, § 57.1) brought Illinois in line with some other 42 states adopting this remedy. A federal statute adopted the general declaratory judgment procedure in 1934, and many special declaratory judgment statutes are in effect in numerous states. This remedy is strictly procedural. It creates no new substantive rights. It is designed to afford security and relief against uncertainty with a view to avoiding litigation, rather than in aid of it, and to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right, and thus promote peace, quiet and justice, with the end always constantly in view that one of the chief purposes is to declare rights rather than to execute them. Freeport Motor Cas. Co. v. Tharp, 406 Ill 295, 94 NE2d 139 (1950). Historical and Practice Notes, SHA (1956) c 110, § 57.1. In order to carry out the purpose for which this remedy was designed, the courts have given a liberal interpretation of the act.

The construction of a clause in an insurance policy is the proper subject of. a declaration of rights in a declaratory judgment action. Lentin v. Continental Assur. Co., 412 Ill 158, 105 NE2d 735 (1952), 44 ALR2d 463, 142 ALR 8, 12, 16 Am Jur (1960 Supp), Declaratory Judgments § 35.

A litigant need not wait until the blow has fallen to seek a construction of an insurance policy where a controversy exists, Walton Playboy Clubs, Inc. v. City of Chicago, 37 Ill App2d 425, 185 NE2d 719 (1st Dist 1962); Farmers Elevator Mut. Ins. Co. v. Burch, 38 Ill App2d 249, 187 NE2d 12 (4th Dist 1962), or until a personal injury suit has proceeded to judgment, Farmers Automobile Ins. Ass’n v. Janusick, 30 Ill App2d 352, 174 NE2d 705 (2nd Dist 1961); Lincoln Cas. Co. v. Vic & Mario’s, Inc., 62 Ill App2d 262, 210 NE2d 329 (2nd Dist 1965).

That an adequate legal remedy exists is not grounds for refusing to entertain a complaint for declaratory judgment as the mere existence of another form of remedy does not necessarily preclude judgment. While declaratory judgment was not designed to supplant existing remedies, it is an alternative or additional remedy to facilitate the administration of justice. When a complaint seeks relief declaring rights in an actual and legal controversy, declaratory judgment may lie even though there is another adequate legal remedy. American Civil Liberties Union v. City of Chicago, 3 Ill2d 334, 121 NE2d 585 (1954); Koziol v. Village of Rosemont, 32 Ill App2d 320, 177 NE2d 867 (1st Dist 1961); State Farm Mut. Automobile Ins. Co. v. Morris, 29 Ill App2d 451, 173 NE2d 590 (2nd Dist 1961).

A complaint for declaratory judgment which alleges facts showing an actual or justiciable controversy between the parties and prays for a declaration of rights and other legal relations of the parties is sufficient to state a cause of action as against a motion to dismiss for its insufficiency. Koziol v. Village of Rosemont, supra. In the instant case, a reading of the complaint shows that it seeks a construction of an insurance policy and its exclusionary clauses as these apply or not to a pending action for personal injuries, and a declaration of the rights of the parties under the policy. It alleges a controversy which is justiciable. The complaint was legally sufficient.

The trial court failed to observe the basic distinction between refusal to grant declaratory relief and refusal to entertain the action as against a motion to dismiss. The trial court has a discretion as to granting declaratory judgment even though the statute would permit a judgment under the facts. Kitt v. City of Chicago, 415 Ill 246, 112 NE2d 607 (1953); Goodyear Tire & Rubber Co. v. Tierney, 411 Ill 421, 104 NE2d 222 (1952). However, when considering a motion to dismiss the complaint, the court has no exercise of discretion where the complaint states a cause of action. It is only where the plaintiff is entitled to no relief on the facts alleged that the complaint should be dismissed. Goldberg v. Valve Corp. of America, 89 Ill App2d 383, 233 NE2d 85 (1st Dist 1967); Greene v. Gust, 26 Ill App2d 2, 167 NE2d 438 (1st Dist 1960).

In the instant case, the complaint stated a cause of action appropriate for a declaratory judgment action. While we fail to perceive any other available legal remedy which would afford the plaintiff adequate relief under the facts, even the existence of such a legal remedy is not alone proper grounds for dismissing the complaint. The trial court should have denied the motions to dismiss and heard the matter for declaratory judgment.

For the above reasons, the judgment dismissing the complaint and entering judgment for defendants was erroneous and should be, and is, reversed and remanded with directions to proceed in a manner consistent with this opinion.

Reversed and remanded with directions.

SMITH, P. J. and TRAPP, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    American National Bank and Trust Company of Chicago, a National Banking Association, Plaintiff-Appellant, v. Thomas F. Whitehead, Defendant-Appellee, and Steven L. Amdur, Cosmopolitan National Bank of Chicago, as Trustee Under Trust No. 15289, Bernard A. Fried and Mabel G. Weidmann, Supplemental Defendants-Appellees.
    Gen. No. 51,966.
    First District, Third Division.
    March 14, 1968.
    Rehearing denied April 16, 1968.
    Arnstein and Levin, and Edward A. Berman, of Chicago (Edward A. Berman, of counsel), for plaintiff-appellant.
    Merwin S. Rosenberg, of Chicago, for supplemental defendant-appellee Mabel G. Weidmann.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order finding defendant Weidmann’s rights to certain assets prior and superior to those of plaintiff.

On July 6, 1965, plaintiff recovered a judgment by confession against defendant Whitehead in the amount of $8,501.98, plus costs. Execution was dated July 7, 1965, and was returned marked “defendant moved, cannot serve.” The note on which the judgment was based was signed by Whitehead individually.

Plaintiff next filed citations to discover assets directed against, among others, defendants Amdur, Cosmopolitan National Bank (Cosmopolitan) and Fried. Examinations pursuant to the citations were held in September, 1965. At those proceedings it was revealed that defendants Whitehead and Fried entered into a partnership agreement on June 1, 1963. The purpose of said partnership was the purchase, remodeling and operation of a building on Wellington Street in Chicago.

On April 28, 1965, Fried and Whitehead entered into a contract for the sale of the Wellington property to Amdur as agent for Cosmopolitan. Among other provisions, $15,000 was payable to the partners on November 1, 1965. By a court order entered on October 29th Amdur and Cosmopolitan were enjoined from transferring or disposing of any money to which Whitehead might be entitled under the contract of sale.

On November 17, 1965, the court ordered Baird & Warner, managing agent of the Wellington property under the Fried and Whitehead ownership, to pay over to plaintiff 60% of the funds from operation of the building.

On December 29th plaintiff filed a petition for a turnover order against Amdur and Cosmopolitan. On January 7, 1966, Amdur and Cosmopolitan filed their answers which stated that on July 8, 1965, they had received notice that the interest of Fried and Whitehead in the contract was assigned to defendant Weidmann on June 28th and that another person subsequently claimed rights in 60% of the funds under an assignment by Whitehead.

Defendant Weidmann was given notice of the proceedings and filed her verified answer on February 7, 1966. She stated that, for good and valuable consideration, by a written instrument signed by Fried, she had been assigned the interest of Fried and Whitehead, as copartners, under the contract of sale. She further stated that the consideration was the overdue balance of the purchase price of certain property in Chicago.

On October 31, 1966, the trial court entered an order finding the rights of Weidmann to be prior and superior to the rights of plaintiff and vacating the injunction order of October 29, 1965. Plaintiff was found to have a lien on Whitehead’s interest in the contract which was inferior to Weidmann’s claim. Plaintiff appealed.

Plaintiff contends on appeal that: (1) defendants are estopped by their silence from raising the assignment as a defense; (2) the attempted assignment of the partnership assets must fail for lack of consideration, and (3) the assignment by one partner of all the partnership assets without the consent or ratification of the copartner is a nullity.

Defendant Weidmann claims that the assignment to her is not subject to attack by plaintiff.

Plaintiff first contends that defendants are estopped by their silence from raising the assignment as a defense. It is pointed out that Fried was a party to the proceedings and testified twice in September, 1965, but did not mention the assignment in favor of Weidmann. The existence of such was revealed only after plaintiff filed a turnover petition against Amdur and Cosmopolitan. Fried also was silent as to the existence of the assignment at the time the order was entered directing Baird & Warner to pay over Whitehead’s share of the net rents to plaintiff.

Weidmann argues that the estoppel theory is inapplicable to her for two reasons. First, Fried’s testimony related to funds held by Baird & Warner, not those held by Amdur and Cosmopolitan, and the order entered referred only to rental funds and made no reference to the contract of sale of the property. Secondly, at the time Fried failed to speak up Weidmann was not a party to the action and she was given no notice of the proceedings until January, 1966. Any comments or failure to comment by Fried cannot bind or prejudice Weidmann. She refers us to Lamm v. Armstrong, 95 Minn 434, 104 NW 304, a Minnesota case wherein the assignor of a contract of sale of land agreed with the purchaser to cancel the contract. The court held that the assignment of the contract created a lien on the land in favor of the assignee which could not be destroyed by the subsequent actions of the assignor and the purchaser. The assignee was not bound by the acts of the assignor. Analogously, the fact that an assignor (Fried) made no mention of the assignment of the contract rights, when he was questioned only as to rents collected and operating expenses, can hardly be said to estop the assignee from asserting her rights in the proceeds of the contract of sale after she is given notice of proceedings in which an adverse party is seeking benefits from that contract. Plaintiff cited several cases in support of its position. However, those cases involved estoppel of parties to assert their rights when they themselves had notice of the conditions or proceedings.

Plaintiff contends that the attempted assignment must fail for lack of consideration. Plaintiff filed no reply to Weidmann’s answer which set out the assignment and stated that it was for good and valuable consideration. Section 43(4) of the Civil Practice Act provides:

“The facts constituting any affirmative defense, such as . . . want or failure of consideration in whole or in part, . . . must be plainly set forth in the answer or reply.”
(Ill Rev Stats 1965, c 110, par 43 (4).)

Plaintiff claims that on its face the assignment showed a lack of consideration. The assignment recited that the assets were to be security for a past due debt guaranteed by Fried and Whitehead. It is only reasonable that the assignment was in return for forbearance on Weidmann’s part from bringing suit against the partners. Forbearance to bring suit on past due debts constitutes consideration to the partnership for the assignment in question. Although the underlying obligation was that of both individual partners, partnership assets might be reached to satisfy individual creditors, after the payment of any partnership creditors. No partnership creditors appear in this suit.

Plaintiff finally contends that lack of consent by Whitehead to the assignment nullifies the assignment. On the other hand, defendant Weidmann contends that the assignment is not subject to collateral attack by plaintiff. In Farwell v. Huston, 151 Ill 239, 37 NE 864, a partnership creditor was held to have no standing to challenge judgments by confession entered against the partnership. The court held that, while the judgment debtor (the partnership) could challenge the judgments, a third party, even though he be a creditor, could not object to them. Plaintiff points out that the Farwell case predates the enacting of the Uniform Partnership Act by Illinois. (Ill Rev Stats 1965, c 106½.) While this is true, the act complained of in that case, that of confessing judgment by less than all of the partners, is covered by the same section of the new act as is the assignment of partnership assets by less than all of the partners. Section 9 provides in part:

“(2) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.
“(3) Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to:
“(a) Assign the partnership property in trust for creditors . . .;
“(c) Do any other act which would make it impossible to carry on the ordinary business of the partnership;
“ (d) Confess a judgment;
« 99

(Ill Rev Stats 1965, c 106½, par 9.)

The Farwell case, supra, held the right to challenge a partner’s authority or another partner’s lack of consent to those acts to be limited to a wronged partner. It may be that the court felt that a noncomplaining partner was an acquiescing partner. We feel that the rule expressed in the Farwell case, supra, is still good law and, furthermore, that it applies as well to cases in which less than all of the partners assign partnership assets.

Plaintiff cites the case of First Nat. Bank of Charleston v. White, 268 Ill App 414, wherein a personal judgment creditor of one partner was able to reach that partner’s interest and obtain an accounting from the remaining partner, notwithstanding an assignment of the debtor’s interest to his partner. In that case, however, the judgment was obtained and execution issued on the same day and the next day the debtor partner assigned his interest in the partnership to his partner. In the instant case, the assignment was executed on June 28, 1965, and plaintiff obtained its judgment in July, 1965. The assignment was prior to the establishment of plaintiff’s lien on Whitehead’s interest and, therefore, plaintiff has a right to satisfaction only out of the interest of Whitehead remaining after satisfaction of Weidmann’s claim.

Since only a partner may challenge the validity of an assignment of partnership assets and there was no showing of a lack of consideration therefor, the judgment of the trial court must be affirmed.

A motion of defendant Fried to strike the briefs of appellant was taken with the case. Since we have gone into the merits of the case the motion will be denied.

Affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: PER CURIAM.

text:
    Betty Dolar Kazubowski, Plaintiff-Appellee, v. Edward J. Kazubowski, Defendant-Appellant.
    Gen. No. 66-101.
    Third District.
    March 14, 1968.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, and Anna A. Phelps, of Kewanee, for appellant.
    Gregg A. Young, of Kewanee, for appellee.
   PER CURIAM.

The nature of the appeal and the proceedings in this Court can best be understood by a recital of what apparently transpired in the trial court.

The proceeding arose as an action for divorce by Betty Dolar Kazubowski as against appellant, Edward J. Kazubowski. As a result of a jury trial, the issues on the complaint of plaintiff were found in favor of plaintiff and against defendant (and as against defendant on defendant’s counterclaim). By reason thereof, a decree for divorce was entered on June 13, 1966. There were no children of the parties and no custody problems are involved.

The decree contained a recital that there was “no reason for delaying enforcement or appeal of this portion of the order” as an attempt to comply with section 50(2) of the Civil Practice Act (1965 Ill Rev Stats, c 110, § 50(2)). The decree made no adjustment of property rights but such matters were reserved by the court for later determination. On July 12, 1966, a post-trial motion was heard with respect to the decree of June 13, 1966, and such motion was denied.

Thereafter, on July 25, 1966, a four-page stipulation was entered into by attorneys for each of the parties presumably settling all property rights. Among other things the stipulation provided for a $15,500 payment by the defendant (the husband) to the plaintiff and such payment was to be secured by a “second mortgage” on property which was owned jointly. To carry this into effect, the interest of the plaintiff was to be conveyed by plaintiff to defendant. The property was owned in joint tenancy during the marriage and there was a first mortgage on it. However, since the divorce action had been instituted, a judgment had been entered as against defendant by confession in the sum of $10,000, in favor of the mother of defendant, Mary Kazubowski. Since a second mortgage would amount, under such conditions, to a third lien, the court decree which was entered later in August, which adopted the stipulation, provided that defendant should secure his payment of $15,500 with a “second lien.” The decree further provided that plaintiff (wife) could retain her joint interest in the property until she was given a “second lien” on the property. It is this provision in the stipulation and the action of the court in the decree which appears to be the basis of the problems which arise in this cause. The defendant had filed a motion to amend the stipulation prior to the time the decree was actually entered pursuant to such stipulation.

On July 27, 1966, defendant filed a motion for continuance requesting that no hearing be held on the property division until the divorce decree became final by failure of defendant to file notice of appeal within 30 days after the denial of the post-trial motion which was on July 12,1966. This motion apparently gave recognition to the recital contained in the decree that there was no reason for delaying enforcement or appeal of the portion of the order decreeing that a divorce was granted.

On August 31, 1966, the court entered the property settlement decree which contained the “second lien” provision hereinabove referred to. The decree was presumably entered pursuant to stipulation of the parties and following appearance of attorneys for the parties in court. At the same time, the court denied defendant’s motion to modify the stipulation and the decree, and the property settlement decree was entered. Thereafter, on September 6, 1966, defendant filed objections to the decree on the ground that the court had incorrectly modified the stipulation between the parties. On September 8, 1966, plaintiff filed a petition requesting that defendant be cited for contempt and be ordered to pay attorney’s fees. On September 15, 1966, defendant filed amended objections and motion to vacate the decree and an answer to the petition filed by plaintiff.

On September 15, 1966, defendant filed a notice of appeal from the decree of August 31, 1966, covering property settlement in this cause. On this same date, September 15, 1966, a hearing was held with respect to plaintiff’s relief requested. The only testimony offered at such time was that of plaintiff’s attorney. On cross-examination he was asked about the negotiations with respect to the stipulation and he stated unequivocally that he refused to take anything less than a second lien as security against defendant’s obligation to pay the $15,500. The court entered an order overruling defendant’s objections; allowing citations for contempt; finding defendant in contempt for failure to pay $4,900 on September 1, 1966; allowing $500 attorney’s fees for plaintiff’s counsel; holding defendant in willful contempt; and directing the clerk to issue a mittimus committing defendant to jail for six months or until he sooner purges himself by payment of $5,400.

On September 19, 1966, plaintiff filed a petition for alimony during the period of appeal and for attorney’s fees to pay for the appeal. Defendant filed a special and limited appearance to this motion. On September 23, 1966, a hearing was held in regard to the relief requested on the petition of September 19 referred to and the court awarded $70 a week as alimony and $1,700 as attorney’s fees to plaintiff to be paid by defendant. On September 28,1966, plaintiff filed a petition for a rule to show cause why the September 23,1966, order was not complied with. Defendant replied to such petition and on September 29, 1966, asked that the September 23 order be included in the appeal. The court allowed this but ordered that the June 13, 1966, decree (the original divorce decree) was not to be part of the appeal. Thereafter, in October and November there were a series of petitions and orders dealing with enforcement of the decree by contempt and also allowing defendant to include these various later orders in the appeal.

On appeal in this court, defendant contends that it was reversible error to exclude matters prior to July 12, 1966, from the record on appeal. This is based on the contention asserted that the decree for a divorce only is not enforceable nor final and appealable. The June 13, 1966, divorce decree, if appealable, would become final 30 days after July 12, 1966, the date upon which the post-trial motion was denied. There was no appeal from such decree during such period. Chapter 110, § 50(2) (1965 Ill Rev Stats) of the Civil Practice Act provides:

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or rights and liabilities of fewer than all of the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before entry of the order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.”

The question before us is whether this section operates to make the June 13 decree a decree which was not final or appealable.

It is the contention of the defendant that the June 13, 1966, decree could not be construed as a final and appealable order even if there was the finding referred to in section 50 (2) on the basis of Biagi v. O’Connor, 18 Ill2d 238, 163 NE2d 461, and Davis v. Childers, 33 Ill2d 297, 211 NE2d 364. In the Biagi case (which involved a partnership accounting) a decree was entered dismissing a countercomplaint and referring the matter to a Master. It involved a decree entered in June, 1954, before section 50(2) was passed. A later decree was entered in July, 1956. The Appellate Court, in construing the section, stated that it was procedural and applied it retroactively. The basic question in the Biagi case was that of constitutionality of such retroactive application and is not a precedent for construction of the issue before us.

In Davis v. Childers, supra, there was a trial before a jury in an automobile accident case. The jury found for the defendant but the trial judge entered a judgment notwithstanding the verdict for plaintiff and in that judgment provided there was no reason for delaying the appeal. The question of damages was reserved for determination. The appeal was dismissed in the Appellate Court and this action was affirmed in the Supreme Court on the ground that section 50(2) could not apply even if the judge provided that there could be an immediate appeal. The court there found that there was only a single claim and a single party involved. This tort action is not a precedent to be applied in a divorce action where there is both a termination of the marriage, and an independent, supplementary claim for property settlement even though the relief as to both is sought in one complaint. They are in fact separate claims.

In McGee v. McGee, 36 Ill App2d 105, 183 NE2d 545, a complaint for divorce on the ground of drunkenness was heard without a jury and a decree was entered awarding plaintiff a divorce. The divorce decree simply ordered that the question of property settlement, alimony and attorney’s fees are reserved for future consideration of the court. There was no express finding under section 50(2) that there was no just reason in delaying the appeal, but, on the contrary, the court expressly found that there were still rights to be adjudicated between the parties and which were expressly reserved for future consideration. The court stated that in absence of an express finding required by section 50(2), the decree adjudicated fewer than all of the matters in controversy between the parties and was not appealable. The court expressly stated (at page 107):

“Thus, multiple claims for relief were involved in plaintiff’s action. Under such circumstances section 50(2) of the Civil Practice Act provides that the court may enter a final decree as to fewer than all of such claims only upon an express finding that there is no just reason for delaying appeal, and that in the absence of that finding, any decree which adjudicates fewer than all of such claims is not appealable.”

The court in Ariola v. Nigro, 13 Ill2d 200, 148 NE 2d 787, in interpreting section 50(2), also pointed out that no specific finding under section 50 (2) was made in that case and consequently a court determination was not appealable. Since on the basis of the record, there was such specific finding in the cause before us in compliance with section 50(2), the decree for divorce was final and appealable. In view of the fact that there was no appeal from such decree, that decree could not be reviewed on this appeal.

The next issue for consideration was whether the decree of August 31, 1966, was proper. In this connection the first question for review is whether the stipulation by attorneys for both parties signed July 25, 1966, was a proper stipulation and a true agreement of the parties and not invalid because of fraud. The parties admit that it was signed properly by attorneys for both parties at the time. Such stipulation in absence of a showing of fraud is binding upon the parties. A stipulation is an agreement between the parties or their attorneys with respect to business before the court and the courts look with favor upon stipulations designed to simplify, shorten or settle litigation and save costs to the parties (34 ILP 166). It is obvious that one of the parties to a stipulation cannot withdraw from the binding force of such stipulation unless he has the consent of the other party or leave of the court (Vidon v. Roberts, 330 Ill App 104, 69 NE2d 721).

Stipulations between parties are enforced by the courts unless there is a showing that the stipulation is a result of fraud, or is unreasonable or contrary to public morals (People v. Spring Lake Drainage & Levee Dist., 253 Ill 479, 97 NE 1042). In the case before us there was no contention by defendant of any fraud. In fact, the only apparent objection that defendant had to the stipulation appears to be in the variation from the language in the stipulation which referred to a “second mortgage” to a wording of “second lien” in the decree, as an interpretation of what the court felt the parties really intended. It is obvious that stipulations must be construed by the courts when they are enforced as part of a proceeding before the court. In construing a stipulation, the court will look to the actual intention of the parties (General Elec. Co. v. Industrial Commission, 411 Ill 401, 104 NE2d 257; Lake Shore & M. S. R. Co. v. Hessions, 150 Ill 546, 37 NE 905). The interpretation of the trial court that what the parties intended was a mortgage or lien second only to an existing first mortgage was reasonable in light of the facts and record before us. Nothing is shown on appeal in this court to indicate that this interpretation was erroneous or unsound, nor was any question of fraud raised with respect to this stipulation. We, therefore, conclude that defendant cannot now claim that he is not bound by the stipulation and the interpretation thereof by the trial court. Since the stipulation entered into by attorneys was valid and the decree was proper under the record, we find no basis for setting aside or modifying such decree.

It is also contended in this court that the refusal of the trial judge to permit the entire record to be included in the appeal was reversible error. Defendant filed a praecipe for the entire record to which plaintiff objected with respect to the inclusion of any proceedings prior to August 31, 1966. A docket entry was made sustaining objections to the praecipe (although plaintiff contends that since the clerk had not entered the order on the objections, defendant could still have brought up the entire record on appeal). Since we have determined that the June 13, 1966, decree was not appealed from, there was no occasion to have a review of the record prior to August 31, 1966. It is, therefore, unnecessary to determine whether or not defendant was inhibited or prevented from bringing that portion of the record to this court on appeal. Such exclusion could not have been error under the record before us.

The next fundamental question before us is whether the September 15, 1966, order of contempt could be enforced as against defendant within the 30-day period after it was entered. Defendant contends that decrees do not become final and enforceable for a period of 30 days after they are entered. Defendant could have prevented the enforcement of such decree by a proper appeal under section 82 of the Civil Practice Act (1965 Ill Rev Stats, c 110, § 82) and the filing of bond. The appeal would then operate as a supersedeas. This was not done before the enforcement proceeding on September 15, 1966. Accordingly, the contempt order was valid. Decrees are valid when entered (Horn v. Horn, 234 Ill 268, 84 NE 904). Defendant had an opportunity to suspend the enforcement of the August 31,1966 decree by institution of an immediate appeal. Under the facts as appear before us, however, the September 15, 1966 contempt order was valid.

Defendant filed his notice of appeal in this case on September 15, 1966. He then attempted on several occasions to amend the notice of appeal to include a number of later orders including the order of September 23 relating to temporary alimony and attorney’s fees. While, under the record, it is uncertain whether the appeal has been perfected as to this order (1965 Ill Rev Stats, c 110, § 101.33), we believe that the record before us is such that there is no showing made in this court that the trial court abused its discretion in entering the order of September 23, 1966. Under the standards reviewed in Micelli v. Micelli, 45 Ill App2d 159, 195 NE2d 233, we feel that no showing is made on appeal that such order was not within the sound discretion of the court.

The appeal of appellant, Edward J. Kazubowski, with respect to the decree for divorce is accordingly dismissed and the decree of August 31, 1966, as well as the orders of September 15, 1966, and September 23, 1966, are affirmed.

Certain appeals dismissed and certain decree and orders affirmed.


author: ALLOY, P. J.

text:
    Mary W. Riva, Plaintiff-Respondent, v. James M. Riva, Defendant-Petitioner.
    Gen. No. 66-104.
    Third District.
    March 14, 1968.

      Kevin D. Kelly, of LaSalle, for appellant.
    MeNeilly & Olivero, of Peru, for appellee.
   ALLOY, P. J.

This cause is before us on a petition for leave to appeal by James M. Riva from an order of the Circuit Court of LaSalle County granting the post-trial motion of the plaintiff, Mary W. Riva, and ordering a new trial. The proceeding originated in the Circuit Court as a result of a complaint for divorce filed by Mary W. Riva on the ground of cruelty. After the defendant answered the complaint denying most of the allegations, the cause was tried by the court below sitting without a jury. The court found the issues in favor of the defendant and judgment was entered by the court thereon.

Thereafter plaintiff filed a post-trial motion praying that the trial court enter an order granting her a new trial on the ground that the decision of the court was contrary to the manifest weight of the evidence, etc. Such post-trial motion was allowed by the trial court and a new trial was ordered. Within a period of 30 days after the entry of such order granting a new trial, the defendant filed a petition for rehearing of the order granting a new trial. The petition was ostensibly filed under the authority of section 68.3 of the Civil Practice Act (1965 Ill Rev Stats, c 110 § 68.3). Following a hearing the trial court denied the petition for rehearing on November 14, 1966. Thereafter, defendant filed a praecipe for record on the petition for leave to appeal from the order granting the new trial on December 9, 1966. Plaintiff-respondent in this court contends that the appeal should not be considered in this court because the petition was filed more than 30 days after the order of the trial court granting plaintiff a new trial. Respondent contends that the defendant failed to comply with Supreme Court Rule 30 and Appellate Court Rule 22 and with section 76 of the Civil Practice Act by not appealing within 30 days of the granting of the new trial. Order granting new trial was entered on October 10, 1966. Respondent also contends that the petition for rehearing filed by the defendant within the 30-day period from the date of the order granting the new trial was worthless because the Civil Practice Act does not specifically provide for any such remedy at the trial level.

It is noted that section 68.3 of the Civil Practice Act provides specifically that any party may within 30 days after entry of a decree or judgment in cases tried without a jury file a motion for a rehearing or a retrial or modification of the decree ... or for other relief. It is specifically stated that neither the filing nor the failure to file a motion under this section would limit the scope of the review. It is also expressly provided that a motion filed in apt time stays execution and that the time for appeal from the decree or judgment does not begin to run until the court rules upon the motion. It is notable that the comments of the joint committee at the time of the passage of the new Civil Practice Act in 1955 (SHA c 110, § 68.3, p 758) in referring to the second paragraph of section 68.3 had pointed out that inasmuch as there was no post-trial motion under former law in a non jury case, the filing of the post-trial motion had not tolled the running of the time for appeal. Since this rule was “a trap for the unwary” the second paragraph abolishes it and it provides that time for appeal and stay of execution would be the same in jury as in non jury cases where a post-trial motion is filed. It is also notable that the petition for rehearing was actually set for hearing and considered by the court. Time for appeal did not begin to run until 30 days after the court had determined the petition for rehearing with respect to the new trial order. Consequently, it is appropriate to consider the appeal in this court.

As to the propriety of granting the new trial, we have frequently said that the granting of a new trial is within discretion of the trial court and the determination by the trial judge should not be disturbed unless there is a clear abuse of such discretion (Ledferd v. Reardon, 303 Ill App 300, 25 NE2d 116; Hulke v. International Mfg. Co., 14 Ill App2d 5, 46,142 NE2d 717). We have also observed that the courts of this State have given greater latitude to the trial court in granting of a new trial than in denying a new trial (River v. Atlantic & Pacific Tea Co., 31 Ill App2d 232, 240, 175 NE2d 593; Roberts v. Hyland Builders Corp., 34 Ill App2d 276, 280, 181 NE2d 197). In a case such as the one before us where the weight of evidence is involved, the court on appeal will normally not disturb the order granting the new trial unless there is affirmative showing of a clear abuse of discretion (Masters v. Central Illinois Electric & Gas Co., 7 Ill App2d 348, 363, 129 NE2d 586).

In the cause before us, plaintiff testified that defendant had slapped her along the side of her face and that her ear ached for three weeks and that on another occasion, defendant struck her on the left side of her face and eye, leaving a bruise. There was corroborative evidence that marks and bumps on plaintiff’s face were seen on both occasions. In the case of Tuyls v. Tuyls, 21 Ill2d 192, 171 NE2d 779, the Illinois Supreme Court had specified that to establish cruelty within the meaning of the Divorce Act of this State it was necessary to prove by a preponderance of the evidence that the guilty party had at least on two separate occasions committed acts of physical violence against his spouse resulting in pain and bodily harm. (See also Curran v. Curran, 19 Ill2d 164, 168, 166 NE2d 13.) While defendant denied striking plaintiff, it is obvious that the trial court was in the best position to determine whose testimony to believe and in our judgment there could be no abuse of discretion in the granting of a new trial on the basis of such evidence in the record (Curran v. Curran, supra; Berlingieri v. Berlingieri, 372 Ill 60, 22 NE2d 675).

Nothing in this opinion should be construed as a determination by this Court that the evidence in this case requires the granting or denial of a divorce. We have simply determined that there was no abuse of discretion in the granting of a new trial. It was also contended that the manifest weight of the evidence showed condonation of the acts of cruelty committed by defendant. The record, however, does not bear out such contention since the testimony of the defendant himself indicated that, although the parties lived in the same dwelling, they slept in separate rooms and did not have any relations as husband and wife after the time of the acts of cruelty referred to.

We must, therefore, conclude that there was no abuse of discretion on part of the trial court in granting the new trial. The order of the Circuit Court in granting a new trial will, therefore, be affirmed, and this cause will be remanded to the Circuit Court of LaSalle County for further proceedings.

Affirmed and remanded.

STOUDER and SCHEINEMAN, JJ., concur.


text:
    Frank Richmond and Gilbert Lawrenz, Plaintiffs-Appellants, v. County Board of School Trustees of Whiteside County, Illinois, Lyndon Community High School District Number 305, Whiteside County, Illinois, and Morrison Community High School District Number 307, Whiteside County, Illinois, Defendants-Appellees.
    Gen. No. 67-71.
    Third District.
    March 14, 1968.

      Nelson & Weinstine, of Morrison, for appellants.
    Donald L. Sipe, of Prophetstown, for appellees.
   ALLOY, P. J.

Plaintiffs Frank Richmond and Gilbert Lawrenz filed a petition for detachment from the Lyndon High School District (which is known as District No. 305) in White-side County, Illinois, and for annexation to the Morrison High School District (District No. 307) in said county. The prayer of the petition was denied by the County Board of School Trustees. Upon administrative review, the Circuit Court of Whiteside County affirmed the action of the Board of School Trustees.

On appeal in this court, the plaintiffs contend that the evidence presented before the County Board of School Trustees of Whiteside County clearly showed educational advantages and extracurricular advantages which would accrue to the students involved in the petition for detachment; that the decision of the County Board of School Trustees of Whiteside County was contrary to the manifest weight of the evidence. It is the contention of plaintiffs that Lyndon High School District would not be jeopardized by the loss of such revenue resulting from the detachment.

It appears from the record that Lyndon High School District is considerably smaller than Morrison High School District and that the assessed valuation for the Lyndon District is $5,672,146 upon which a tax rate of .920 (the highest in the County) is levied for the educational fund. The Morrison High School District has an assessed valuation of $35,505,524. The probable effect of the proposed change on the losing district would be a loss of $83,000 in equalized assessed valuation with a gain in the same amount to the annexing district. The record discloses that both schools offer a good basic education but that the Morrison High School District, as the larger district, offers a much broader curriculum together with more extracurricular activities. The extent to which the students participate in such activities is not clearly shown in the record. There was also a contention made that the City of Morrison is the natural community center for the petitioners.

The farm of plaintiff Lawrenz adjoins the Morrison District. Lawrenz has no children involved in the petition. The farm of plaintiff Richmond does not adjoin the Morrison District but adjoins the farm of Lawrenz. Richmond had a senior daughter and a sophomore son attending the Morrison High School. The daughter has since graduated from Morrison High School so there is only one pupil, a son, involved in the petition. The area involved in the petition is located at an equal distance from the two schools and both schools furnish bus transportation for students. They both also have a lunch program.

It was likewise disclosed that the Lyndon District is now levying the maximum tax rate it can levy without a referendum and that its present expenditures exceed its revenues. The effect of the change of boundary would result in a loss of about $900 of annual revenue to the Lyndon High School District. Such loss could cause a curtailment in services in the Lyndon District.

We have had occasion in a number of cases to consider the question of detachment as between school districts, and have, in Wheeler v. County Board of School Trustees of Whiteside County, 62 Ill App2d 467, 210 NE2d 609, reiterated the guiding principles which apply to such detachment proceedings. In that case we were concerned also with a detachment and annexation as between school districts in Whiteside County and examined at length the principles which should guide a court of review in considering the record in such cases. We point out in that case that a change of boundaries or a refusal to change the boundaries in such proceedings should depend on the best interests of the schools in the area as well as the educational welfare of the pupils. We acknowledge that, in the event the determination of the County Board of School Trustees in any such case is not supported by substantial evidence, the rule which accords a prima facie validity to administrative decisions does not relieve a court of the important duty of examining the evidence in an impartial manner, setting aside any order which is unsupported in fact (Oakdale Community Consol. School Dist. No. 1 v. County Board of School Trustees of Randolph County, 12 Ill2d 190, at 195, 145 NE2d 736). We also observed in the case of Wheeler v. County Board of School Trustees of Whiteside County, supra, at page 476, that loss of assessed valuation alone would not prevent detachment where the maximum tax rate is not being levied by the losing district. We noted in the Wheeler case, however, that the loss of territory involved would not affect the operation of the school district from which detachment was sought. We also underlined in such case that if detachment in fact would jeopardize the losing district, this would be a significant, substantial basis for denial of detachment.

In the case before us, the record discloses that the trial judge found, as appears in the record, that the financial effect is rather serious for the Lyndon District, since it is already indebted on tax anticipation warrants and its prospective operating expenses will exceed its current income. It is apparent from the record that, with the present expenditures exceeding the revenue of the Lyndon District, there would clearly be jeopardy to the district if detachment were approved. On the basis of the showing in the record of such jeopardy and disadvantage to the Lyndon District, we do not believe that we would be justified in setting aside the decree of the Circuit Court (which affirmed the decision of the County Board of School Trustees denying such detachment). As we had indicated in the Wheeler case referred to, such jeopardy could, in a proper case, be a significant, substantial basis for denial of detachment.

The judgment of the Circuit Court of Whiteside County in this cause is, therefore, affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frederick J. Harr, Defendant-Appellant.
    Gen. No. 67-117.
    Second District.
    March 14, 1968.

      Marco and Mannina, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly and Patrick Mazza, Assistant State’s Attorneys, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The defendant, Frederick J. Harr, after a bench trial, was found guilty of driving a motor vehicle while his operator’s license was suspended. The Magistrate imposed a sentence of seven days in the county jail and a fine of one hundred dollars and costs, from which defendant appeals.

Defendant contends that the court erred in denying his motion to suppress evidence without a hearing; and in denying the same motion after evidence adduced by the State. The evidence sought to be suppressed was defendant’s driver’s license which showed an expired date on its face, and the certificate of the Secretary of State showing the suspension.

The testimony of the police officer as stipulated was: at about 1:30 a. m. on April 15, 1967, he observed the defendant’s motor vehicle coming out of a gas station which was closed for business for the night; that the vehicle proceeded westbound on Warren Street; that the vehicle and its driver appeared suspicious and since he had not seen this vehicle in this vicinity before, he made a routine stop of the defendant’s vehicle to determine who the defendant was, where he was going and where he had been; that he asked the defendant for his driver’s license and the defendant produced an expired license. That the defendant was taken to the police station where a check was made and it was determined that the defendant’s license was suspended. At the time he first saw the defendant and at all times prior to his stopping defendant, the defendant was not violating any ordinance of the Village of Downers Grove, statute of the State of Illinois, nor any law of the United States; that he stopped the defendant on suspicion.

On these facts the State argues that there was no illegal arrest or search in that the officer was empowered to stop a motor vehicle and ask the driver to produce his license under the provisions of chapter 95%, section 6-118 of the Illinois Revised Statutes; that if the demand of the officer constituted a search, defendant consented; and finally, that the driver’s license was not admitted in evidence, but a separate public record of the office of Secretary of State certifying to the suspension.

At issue is whether a police officer can stop a motorist for purpose of identifying him and inquiring of him where he is going and where he has been on mere suspicion which is not based upon any known violation of law; and after stopping the motorist and demanding his driver’s license, arrest him for an apparent license violation.

The State claims the right to stop the motorist initially under the provisions of chapter 95i/2, section 6-118, Illinois Revised Statutes 1965, which provides:

“License and permits to be carried and exhibited on demand. Every licensee or permittee shall have his operator’s or chauffeur’s license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the Illinois State Highway Police, a sheriff or other peace officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court or the office of the arresting officer satisfactory evidence that an operator’s or chauffeur’s license was theretofore issued to him and was valid at the time of his arrest.”

The facts in this case indicate that the police officer here did not stop the defendant’s car for the purpose of enforcing this statute. He stopped it, on the admitted facts, for the purpose of finding out who the defendant was, where he had been and where he was going. The statute cannot, in any event, be made applicable as authority to inspect the license as a mere subterfuge to obtain information or evidence not related to the licensing requirement. Cox v. State, 181 Tenn 344, 181 SW2d 338; Anno: Requiring Motorist To Show License, 154 ALR 812.

The State has cited the cases of Morgan v. Town of Heidelberg, 246 Miss 481, 150 So2d 512; State v. Campbell, 95 RI 370, 187 A2d 543, and People v. King, 175 Cal App2d 386, 346 P2d 235, in support of its position. It appears to the court that they do not. In the Morgan case the defendant attempted to evade a roadblock which was for the sole purpose of examining all drivers’ licenses during a certain period of time under a statute similar to the provision in Illinois. The court held that the statute, by necessary implication, empowered the officers to stop cars and require exhibition of licenses, but only where it was done in good faith for that specific purpose and not as a mere subterfuge or excuse. Similarly, in the Campbell case, the officer stopped the motorist for the express purpose of checking his driver’s license. In the King case the agent stopped the defendant after having had information about a robbery which had been recently committed in the vicinity, including description of car and occupant which closely fitted, and no driver’s license demand was involved.

In Mincy v. District of Columbia, 218 A2d 507, 508, the court upheld the conviction for the driver’s license violation but reiterated that stopping a motorist for a routine check to see whether he possessed a valid driver’s license could not be used as a substitute for search for evidence of some possible crime unrelated to the possession of the license.

Nor can the conviction of the defendant be sustained on any other grounds. The conviction flows from the demand for the driver’s license, and the State’s argument that an independent record was offered and admitted is without merit. The facts do not justify the conclusion that defendant consented except as the consent was secured by the officer’s demand and the authority of his office. This does not amount to a waiver of defendant’s constitutional rights. U. S. v. O’Connell, 43 F2d 1005; People v. Zazzetta, 27 Ill2d 302, 311, 189 NE2d 260. Nor can the search for the driver’s license be justified on the basis of the mere suspicion testified to by the officer unsupported by any other facts in the record amounting to probable cause. U. S. v. O’Connell, supra; People v. Zazzetta, supra; People v. Catavdella, 31 Ill2d 382, 387, 202 NE2d 1.

The conviction is reversed.

Reversed.

DAVIS and MORAN, JJ., concur.