author: ALLOY, J. STOUDER, P. J.

text:
    People of the State of Illinois, Appellant, v. Eugene Forest Miner, Appellee.
    Gen. No. 66-81.
    Third District.
    July 18, 1967.
    STOUDER, P. J., dissenting.
    George E. Sangmeister, State’s Attorney, of Joliet, for appellant.

      Harold Shabelman, of Joliet, for appellee.
   ALLOY, J.

This cause originated as a result of the issuance of three traffic tickets citing Eugene Forest Miner for driving with a revoked driver’s license, for disobeying a stop sign, and for operating a motor vehicle while under the influence of intoxicating beverages. Defendant moved for a preliminary hearing. The People filed a verified complaint but refused to participate in a preliminary hearing. The court then dismissed the complaint as a result of the refusal of the People to conduct a preliminary hearing. On appeal in this cause, the People contend that the statute does not provide for a preliminary hearing where the judge presiding over such preliminary hearing has jurisdiction to try the offense charged. It is contended that a preliminary hearing is authorized only in those misdemeanor cases where the judge presiding over the preliminary hearing does not have jurisdiction to try the offense.

The record discloses that the defendant, Eugene Forest Miner, was brought before a magistrate of the Twelfth Judicial District of Will County for arraignment. He thereafter asked for and was granted a continuance so that he could obtain counsel. A few weeks later defendant appeared with his counsel who moved that People file a verified complaint and for a preliminary hearing. The verified complaint was filed but People objected to a preliminary hearing in writing. Such objections were overruled and the People thereupon refused to participate in a preliminary hearing. On defendant’s motion to dismiss, thereafter, for failure of the People to proceed with the preliminary hearing, the court dismissed the complaint. The People then perfected this appeal to test the court order so dismissing the complaint for failure to proceed with the preliminary hearing.

In Chapter 38, § 109-1 of 1965 Illinois Revised Statutes, it is provided as follows:

“(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
“ (b) The judge shall:
“(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
“ (2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code.
“(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
“(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.”

In Chapter 38, § 102-17, 1965 Illinois Revised Statutes, it is provided:

“ ‘Preliminary examination’ means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense.”

The charges against the defendant in this cause were for violation of chapter 95%, §§ 6-303,128, and 144,1965 Illinois Revised Statutes. Under section 6-303, there is a penalty upon conviction of imprisonment of not less than seven days nor more than one year and a fine may be imposed in addition thereto of not more than $1,000. Section 128 provides for a penalty upon conviction of a fine of not less than $1 nor more than $100 for a first conviction; for a second conviction within one year thereafter such person could be punished by a fine of not less than $25 nor more than $200; and upon a third or subsequent conviction within one year after the first conviction, such person could be punished by a fine of not less than $100 nor more than $300 (section 234). Section 144, referred to, provides for a penalty upon conviction of imprisonment for not less than two days nor more than one year or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. In a second or subsequent conviction, defendant could be punished by imprisonment for not less than 90 days nor more than one year and in the discretion of the court, be fined not more than $1,000.

It is noted that all of the charges against the defendant in this cause were for offenses classified as misdemeanors. The Magistrate Division of the Twelfth Judicial District, Will County, has jurisdiction to try the defendant on all of the cited charges (c 37, § 624, 1965 Ill Rev Stats). An administrative order adopted in such Circuit specifically vests the magistrate with such jurisdiction and authority. It is noted that subsection (b) of section 109-1, 1965 Illinois Revised Statutes, provides that the judge shall hold a preliminary hearing “in those cases where the judge is without jurisdiction to try the offense.” Under the provisions of section 109-3 of said chapter 38, in the event following a preliminary hearing there is found to be probable cause to believe the offense has been committed, the defendant is held over to answer to the court having jurisdiction of the offense.

The State contends that it is pointless for the court to make a finding that there is probable cause and then holding defendant over to itself and points out that this is not the intent of the court or the statutes. It is also contended that the terminology of the statute is clear and unambiguous, and that the defendant, under the state of facts as exist in the present case where the judge before whom he is arraigned has jurisdiction to try the offense, is not entitled to a preliminary hearing.

In considering the entire act, as we must in discerning the objective of the legislature (People v. Gibbs, 413 Ill 154, 108 NE2d 446), it becomes apparent that it was not the intent of the legislature to provide for a preliminary hearing in all cases. Obviously, if a defendant is charged with a felony, the basic reason for having a preliminary hearing becomes apparent. An inquiry as to whether there is a probability of guilt in order that a party may be held in custody or required to give bail in cases not coming within the jurisdiction of the magistrate, is a sound procedure (People v. Morris, 30 Ill2d 406, 197 NE2d 433). In cases involving a felony, this is all a magistrate is normally empowered to do, although in some cases lawyer-magistrates are given broader powers. Where misdemeanors are involved, however, a magistrate has authority to try and also dispose of the case in most instances.

Since a preliminary hearing is not one where the rights of defendant must be determined conclusively, and since defendant is not required to even enter a plea at such time (People v. Morris, supra), granting defendant a preliminary hearing to determine if he shall be held in custody or admitted to bail to await a future court appearance which may be considerably delayed, is obviously an appropriate procedure.

It should be observed that in many counties where lawyers may not be available to sit as magistrates, the powers of some magistrates in certain cases have been limited by statute or rule (1965 Ill Rev Stats, c 37, § 626). In such case, a preliminary hearing may be had because the matter is assignable to a magistrate who does not have power to hear and dispose of the case because he is a nonlawyer (see committee comments to §§ 109-1 and 109-3 by Professor Charles H. Bowman, Smith-Hurd Ill Rev Stats Annotated of chapter 38).

Apparently this is a case of first impression. The language of the act (chapter 38, § 109-1(3)) specifically provides that the judge “shall hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense.” The subsection is apparently an attempt to cover the wide variations as to power of some magistrates in regard to specific offenses. Some magistrates before whom a majority of the violaters are brought by the police in the first instance have limited jurisdiction in criminal cases in the sense of authority to hear and determine the cases. It is also pointed out that by local rules, some individual magistrates are assigned more restricted hearing and trial duties than others, especially with regard to night or day duties when a member of the State’s Attorney’s office may or may not be available.

The provision for preliminary hearing is one which emanates from the legislature and the intention of the legislature in this respect will control. The language is clear and unambiguous in that it provides that the preliminary hearing is required to be conducted only if the judge does not have “jurisdiction” to dispose of the case. Since the magistrate in the cause before us had jurisdiction to dispose of the case, it was not requisite that he conduct a preliminary hearing, and the action of the trial court in dismissing the complaint following the refusal of the State’s Attorney to participate in such preliminary hearing was erroneous and should be reversed.

We can see no basis for nullification of the legislative provision (1965 Ill Rev Stats, c 38, § 109.1) on the theoretical ground that the Circuit Court, as a result of the unified court system, now has jurisdiction which is broad enough to dispose of all cases. The legislative provision obviously refers only to the individual judge who is presiding and provides for a preliminary hearing only if he is without jurisdiction to try the offense. This is an obvious attempt to describe the power and capability of the individual judge with respect to the case under consideration and clearly indicates that if the particular judge has limited authority by assignment or rule, a preliminary hearing is required. Obviously if no objection is raised to the authority of the particular judge this right could be waived by a defendant. If the legislature had intended to require preliminary hearings in all cases it would have been very simple and easy for the legislature to specify that preliminary hearings would be had in all cases where defendant requests such hearings. The provision, however, is limited to those cases where the judge does not have authority to try the offense. To conclude, in view of such specification, that the language of this provision could be ignored, would be inconsistent with the Act and the normal standards of statutory construction. Nor do we believe that this section should be nullified because other statutory provisions dealing with court organization (1965 Ill Rev Stats, c 37, §§ 624, 626, 628) may not have contained consistent explanatory language.

The order of the Circuit Court of Will County will, therefore, be reversed with directions to such court to vacate the order of dismissal of the complaint and to reinstate such complaint and to proceed in this cause in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

CORYN, J., concurs.

Dissenting Opinion

STOUDER, P. J.

I must respectfully disagree with the opinion of the majority of the court since I believe that the judgment of the trial court should be affirmed. At the outset it should be noted that this appeal was initiated by the People and only the People filed briefs and arguments and orally argued the appeal. In part the failure of the Defendant to respond on appeal may be due to the nature of the procedure involved, since regardless of the decision on appeal the Defendant may be required to defend against the offenses charged.

To reach the conclusion that no preliminary hearing is required in some cases, both the People and the majority opinion rely basically on section 109-3 (a) and section 109-1 (b) (3), the latter section providing that preliminary hearings shall be held “. . . unless the judge shall have jurisdiction to hear the offense.” To the extent that these sections provide or assume that there are or may be judges or courts with differing “jurisdictions” to hear offenses I believe that such sections are violative of the constitutional amendment, commonly referred to as the judicial amendment, being Article 6, adopted November 6, 1962, effective January 1, 1964. Section 9 of said article provides that “The Circuit Court shall have unlimited original jurisdiction of all justiciable matters. . . .” In providing for a single integrated trial court it was the intent of this amendment to abolish the distinctions theretofore existing in the jurisdictions of the several trial courts. That the single trial court might more effectively discharge its duties by establishing departments or branches does not mean that the jurisdiction of the circuit court may be divided, segmented or fragmented. The theory of a unified trial court is that each judge thereof shall have the same jurisdiction and that the assignability of matters or the departmentalizing of the affairs of the court relate to the effective administration of justice and not to jurisdiction. Section 628, chapter 37, Ill Rev Stats 1965, recognized this intent of the judicial amendment by providing, in dealing with matters assignable to magistrates, that improper assignment must be asserted by motion and if not so asserted it is deemed waived. Further such section provides that the judgment of the magistrate is not void or subject to collateral attack if the matter were improperly assigned. Clearly assignment or the assign-ability of matters is not a matter of “jurisdiction.” Other sections, relating to matters which may be heard by magistrates, are consistent with this proposition since they refer only to assignment to magistrates and do not refer to the “jurisdiction” of magistrates. A statute which provides or assumes that there are, may, or can be differing “jurisdictions” of judges of the circuit court, violates both the letter and spirit of the judicial amendment. In my opinion that part of the statute, which is the basis of the opinion of the majority, violates this principle and is unconstitutional. The sections under consideration are included in the Criminal Code of 1963, which revised and codified criminal law procedures. It had been under consideration by groups within and without the legislature for months or years and the consideration of these groups of the problems involved was not specifically directed toward the judicial amendment. Much attention was devoted to the codification and revision of the code before it could have been known whether the judicial amendment would be adopted. No doubt the language of this section could have resulted from an oversight or failure to consider it in relation to the judicial amendment.

Even if sections 109-1 (b)(3) and 109-3(a), chapter 38, Ill Rev Stats 1965, be deemed free of the constitutional infirmities discussed above, I do not agree with the conclusions of my colleagues particularly in view of the consequences logically resulting therefrom. How can it be said that the right of an alleged offender to a preliminary hearing should depend on whether he appears before one judge or another? Why should persons charged with the same offense in one event be entitled to a preliminary hearing and in another event not? My colleagues indicate the meaning of the sections is clear and unambiguous. Nevertheless “jurisdiction” is interpreted to mean the power or authority of the judge or court derived from assignment or assignability of matters which may be heard by the judge or court. Further my colleagues suggest that the meaning to be given the sections is both explained and supported by the flexibility of assignment of matters to magistrates. Indeed sections 624, 625, 626, chapter 37, Ill Rev Stats 1965, do permit wide flexibility in the assignment of matters to magistrates. No uniformity of assignment is required. Matters assignable to magistrates may differ from circuit to circuit, county to county or as between magistrates of the same county. Such flexibility of assignment in my opinion furnishes no adequate basis upon which the right to a preliminary hearing should depend but rather suggests the contrary. Suppose, for example, a magistrate is assigned preliminary hearings and non-jury matters but is not assigned hearings where a jury is required. Since it cannot be known whether a jury will be required at the time an alleged offender is en~ titled to a preliminary hearing whether the ultimate disposition is within the class of matters assigned to the magistrate is in fact unknown.

The majority opinion also indicates that the consequences of less serious offenses as contrasted with more serious offenses are such that a distinction based thereon, relative to a right of a preliminary hearing, is appropriate. In the first place the distinction created is not based on the seriousness of the offense charged and in the second place where the penalty may be incarceration the duration or place of confinement would appear to have little relationship to the principle that a person should not be required to answer or defend himself against baseless or unsubstantiated criminal charges. The havoc that may result to personal family or financial affairs when a person is required to answer criminal charges with the possible consequence of imprisonment is such that a person should not be required to do so in the absence of sufficient reason or probable cause. That the presentation of evidence of probable cause may be burdensome to the prosecution does not in and of itself warrant the conclusion that the ends of justice are served by a denial of a right thereto.

Nor can it be said that it is pointless to present evidence at a preliminary hearing to a judge who may later consider the same evidence, at least in part, upon the ultimate disposition of the case. Initially it should be noted that the rule would apply where the judge might be able to hear and determine the case on its merits. There is no requirement that he will do so or that he must do so. Furthermore the same reasoning would be equally applicable where a felony is charged and an indictment is required or where a warrant of arrest is sought. The same judge who conducted the preliminary proceedings might very well preside at the ultimate disposition of the case.

In summary I do not believe that so significant a right as that to a preliminary hearing could or should depend merely upon the authority derived from assignment of the judge to whom the matter is originally presented. The interpretations of the sections of the majority of the court would in fact preserve distinctions which the judicial amendment was designed to avoid.


source: Caselaw Access Project

author: CRAVEN, P. J.

license: Public Domain

text:
    James E. Fox, Plaintiff-Appellant, v. William R. Fearneyhough, Defendant-Appellee.
    Gen. No. M-10,839.
    Fourth District.
    July 18, 1967.

      Thomson and Thomson, of Jacksonville (Robert B. Thomson and David E. Robinson, of counsel), for appellant.
    Foreman, Rammelkamp, Bradney and Hall, of Jacksonville (Robert E. Bradney, of counsel), for appellee.
   CRAVEN, P. J.

This appeal arises from dismissal of the complaint of the plaintiff upon motion of the defendant. The action is for money damages to property occasioned by the death of plaintiff’s livestock from overeating defendant’s grain.

The basis of the action is improper maintenance of defendant’s share of a division fence between property leased by plaintiff and property leased by defendant. Plaintiff’s allegations concern alleged violation of the defendant’s duty to maintain his portion of the division fence under the fence law (Ill Rev Stats 1965, c 54, § 1 et seq.) and by virtue of the common law.

Plaintiff’s complaint alleges the following facts: On August 4, 1964, the plaintiff had leased certain land in Morgan County, Illinois, which was bordered on the south by land leased by the defendant. There was a woven and barbed wire fence situated along the south side of the plaintiff’s tract and the north side of the defendant’s. The fence was a division fence. Both plaintiff and defendant used their own land, bordered by the fence, at different times, for the pasturing and feeding of livestock. Previous agreement between the parties and custom, practice and usage had established the plaintiff’s obligation to maintain the west half of the division fence and the defendant’s obligation to maintain the east half of the division fence. The defendant was guilty of one or more of the following negligent acts or omissions:

(a) Failed to maintain a legal and sufficient fence of the height of four and one-half feet on his just portion of the aforesaid division fence in violation of Illinois Revised Statutes 1965, ch 54, sec 2;
(b) Failed to properly or regularly inspect his portion of the aforesaid division fence;
(c) Permitted sections of his portion of the aforesaid division fence to fall into disrepair so as to permit plaintiff’s cattle to pass through the same;
(d) Failed to make necessary or proper repairs to his portion of the aforesaid division fence;
(e) Permitted sections of the woven and barbed wire composing his portion of the aforesaid division fence to separate from the posts to which they were previously affixed or to sag.

Certain cattle described in the complaint, belonging to the plaintiff, passed through a section of the defendant’s portion of the division fence as a direct and proximate result of one or more of the alleged negligent acts, consumed quantities of standing grain crops on the defendant’s land and foundered and died. The complaint also alleges that plaintiff was in the exercise of due care and caution for the safety of his property.

Defendant filed a comprehensive motion to dismiss which questioned the legal sufficiency of the complaint on several grounds. The objection to the alleged statutory liability, we believe, is well-taken for the reason that the Fencing Act appears to us to be self-contained and plaintiff’s remedy for defendant’s failure to maintain his portion of the fence is set forth in section 11 which requires ten days’ notice to the party in default and then, if repairs have not been made, the party giving notice may repair the fence and impose liability upon the nonrepairing party for the costs thereof. (Ill Rev Stats 1965, c 54, § 11.) The common-law portion of the action is barred by contributory negligence. Despite the allegation that the plaintiff was in the exercise of ordinary care for the safety of his property, the other allegations of the complaint show that the fence was in a state of disrepair with the knowledge of the plaintiff, or at least that the plaintiff had the same means of knowledge of the state of disrepair as did the defendant, and notwithstanding, he chose to pasture his cattle in the field in question. Stewart v. Gannaway, 45 Ill App2d 1,195 NE2d 255 (3d Dist 1964).

Because of these two overriding reasons, it is unnecessary to discuss in detail the other grounds for dismissal of the complaint alleged by the defendant.

We hold the trial court was correct in dismissing the complaint and entering judgment upon plaintiff’s election to stand on this pleading.

Judgment of the circuit court of Morgan County is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: SMITH, J.

text:
    Anthony J. Jones, Plaintiff-Appellant, v. Matilda McCollen, et al., Anthony J. Jones, as Administrator of the Estate of Florence Malone Jones, Acme Roofing and Sheet Metal Company, Emmett-Scharf Electric Company, Byrl D. Robertson, d/b/a B. D. Robertson Company, and Unknown Owners of the Premises, and Unknown Persons in Possession of the Premises, Defendants-Appellees.
    Gen. No. 10,845.
    Fourth District.
    July 18, 1967.

      Donald B. Mackay and Eugene J. Larkin, of Bloomington, for appellant.
    McCoy, Ming and Black, of Chicago (Walter K. Black, of counsel), for appellees.
   SMITH, J.

Plaintiff filed his second amended complaint to set aside a certain trust deed, to obtain partition of the real estate described therein and for an accounting for the rents, issues and profits therefrom. The trial court dismissed the suit on the ground that the amended complaint does not show a partitionable interest in the real estate, that the plaintiff does not allege a lack of adequate remedy at law in seeking his accounting, and that the complaint failed to state a cause of action. The suit was dismissed with prejudice at plaintiff’s cost. From this judgment order, plaintiff appeals.

On May 11, 1959, Florence M. Jones, a widow, executed a deed in trust conveying the real estate involved herein to Louise A. Jones and Frederick Albert Jones as trustees. This deed is attached to and made a part of the second amended complaint, was duly recorded in the records of McLean County on June 8, 1959, and among other things recites that the property is conveyed to them as “trustees under the provisions of a trust agreement dated the 11th day of May, 1959, known as Trust No. 1.” This deed reserved to the grantor a life interest in the property and then granted to the grantees full power and authority to improve, manage, protect and subdivide, to vacate a subdivision and resubdivide, to convey to successor trustees, to mortgage, pledge and encumber, to lease, to exchange the property, to grant easements and to generally deal with said property and every part thereof in any way that would be lawful for any person owning the same to deal with it. It further provided that the interest of each beneficiary shall only be in the earnings, avails and proceeds arising from the sale or other disposition of said real estate, that such interest is hereby declared to be personal property, that no beneficiary hereunder shall have any title or interest legal or equitable in or to said real estate as such, and gave the power to the survivor of the trustees to carry out the express provisions of the deed. The deed does not name the ultimate beneficiaries of the trust, does not indicate the share of each beneficiary, specifies no time for the distribution of the proceeds of said trust, nor does it provide for any termination date.

The complaint alleges the ownership of this property in Florence M. Jones as of and prior to the 12th day of February, 1962; that on that date she died intestate, leaving her surviving her children consisting of the plaintiff and the individually named defendants in this suit; that each became vested with an undivided y7th interest in and to said real estate; that on the 28th day of February, 1962, Anthony J. Jones was appointed administrator of said estate and was made a defendant in such capacity; that on May 11, 1959, Florence M. Jones did execute the deed of trust above described; that Florence M. Jones did not at any time during her lifetime execute a trust agreement described as Trust No. 1 in the deed of trust, nor did she at any time ever execute any instrument creating or purporting to create a trust of the above described property; that on the 12th day of February, 1962, the grantees and purported trustees went into the possession of the real estate and have collected the rents, issues and profits therefrom without accounting to the plaintiff or his brothers and sisters; that said deed in trust should be declared invalid, void and without effect and should be set aside as a cloud upon the title; that partition should be granted, and that the defendant grantees and trustees should be required by the court to make a true and correct accounting.

It is fundamental that to state a cause of action for partition, the plaintiff must either allege facts showing a legal estate in himself at the time of filing the complaint or allege facts which show he is the equitable owner with such additional circumstances as would justify a court of equity in vesting in him a legal estate by decree of court and which in the same proceedings may be made the subject of partition and division among the beneficiaries. Ylonen v. Ylonen, 2 Ill2d 111, 117 NE2d 98; Harris v. Ingleside Bldg. Corp., 370 Ill 617, 19 NE2d 585. To establish that he has a legal partitionable interest in the real estate, plaintiff asserts that the deed in trust is void as it is inadequate to create an express trust; that it is merely a cloud on the title; that this being so, the grantor died seized and possessed of the fee simple title to this property; that the plaintiff as one of the seven heirs-at-law of said decedent thus inherited an undivided 1/7th interest in the property and he is now entitled to partition of that legal interest.

To create an express trust, the instrument or instruments of creation must describe with certainty the subject matter, the beneficiaries, the nature of the beneficiaries’ interest and the manner in which the trust is to be performed. Kraft v. Kretchman, 17 Ill2d 71, 160 NE2d 806; Tucker v. Countryman, 414 Ill 215, 111 NE 2d 101. The trust deed in this case, standing alone, does not meet these requirements. It does not name the beneficiaries, does not indicate the share of each beneficiary or the number of such beneficiaries, specifies no time for the distribution of the proceeds from said trust, nor does it specify any termination date for it. Inadequate then to create an express trust, is the deed a nullity?

The deed in trust recites that there was a trust agreement dated the 11th day of May, 1959, known as Trust No. 1. Plaintiff alleges that no such agreement was ever executed and further alleges that Florence M. Jones did not at any time execute any instrument creating or purporting to create a trust of the above described real estate. If the plaintiff’s allegations are true, then there is no express trust. It does not follow, however, that the deed in trust is a nullity. “Where property is conveyed on an express trust which fails, in whole or in part, a resulting trust arises as against the trustee in favor of the grantor and those claiming under him in the property conveyed.” ILP, Trusts, ¶ 42. In Wagner v. Clauson, 399 Ill 403, 78 NE2d 203, a testator gave the residue and remainder of her estate to a trustee “for the purpose of converting it into cash and making distribution thereof in accordance with a memorandum of instructions prepared by me [the testator] and delivered to her.” The testator died owning real estate. The only memorandum in existence was a memorandum relating to personal property. The trial court held this provision of the will invalid, and decreed partition of the real estate. The express trust in the real estate failed for want of designated beneficiaries. The Supreme Court there held that while the will had put the legal title in the person designated as trustee, the failure of the express trust places the title in those who would by law take it in event there was no will and that the theory upon which this follows is that the failure of the original trust produces a resulting trust in favor of the heirs. It would seem to us therefore to follow that if as a matter of fact there was no declaration of trust in the instant case, there is a failure to establish an express trust and instead a resulting trust arises therefrom. In this posture, the real estate here is partition-able not because the deed in trust is a nullity, but rather because the deed in trust creates an equitable partition-able interest in real estate. It is partitionable, if at all, not as a legal interest in real estate, but as an equitable interest.

Pleadings are the vehicles in which the right to relief ride. In his original complaint, the plaintiff alleged that the defendants, Louise A. Jones and Frederick Albert Jones, support their claims to title as trustees by a declaration of trust dated June 27, 1964, and recorded July 20, 1964, and by an affidavit dated July 21, 1964, and recorded on August 10, 1964. These allegations were eliminated in the amended complaint. The contents of these documents were not before the trial court nor are they before this court. What effect, if any, they have upon the title to this real estate is thus unknown. Whether they are in conflict with or in implementation of the deed of trust which recites the execution of a trust agreement is not known. Where the language of a pleading is at variance with the recitals of a document attached to or made a part of such pleadings, the recitals in the documents prevail. Sangamon County Fair & Agricultural Ass’n v. Stannard, 9 Ill2d 267, 137 NE2d 487; Lictorio, Inc. v. Sears, Roebuck & Co., 317 Ill App 375, 46 NE2d 130. The rule just stated applies when the instrument sued on is the basis for recovery or where the instrument sets up a claim contrary to the relief sought by the pleadings. Fowley v. Braden, 4 Ill2d 355, 122 NE2d 559. The relief sought by the plaintiff in his pleadings is that he is entitled to partition as the legal owner of y7th of this real estate. His own pleadings establish that there is an equitable ownership now outstanding on this real estate and precludes partition on this theory as the owner of a legal interest.

Neither does the plaintiff state a cause of action for equitable relief. If as a matter of fact a declaration of trust was executed contemporaneously with the deed in trust, was the plaintiff a named beneficiary? The record before us is silent. Does the subsequent declaration of trust in 1964 and the affidavit pleaded implement the deed in trust as a matter of fact and as a matter of law? The record is silent. Is the plaintiff an equitable owner under this subsequent declaration of trust and affidavit ? The record is silent. Plaintiff alleges no facts asserting equitable ownership or interest in this real estate in himself. It follows, therefore, that the trial court properly dismissed this suit.

Plaintiff further complains that the trial court went beyond the issues in this case in dismissing his suit “with prejudice.” The motion directed to the original and amended complaints was filed under HI Rev Stats c 110, § 45. Subsection (4) of that section provides: “After rulings on motions, the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part.” The motion filed by the defendants makes it clear that the motion was directed to the proposition that the pleadings set up no legal interest in the real estate subject to partition, that the only interest of the plaintiff under the deed in trust, if any, is personal property. The issue before the trial court was therefore this narrow issue. There was no effort on the part of the plaintiff to further amend his complaint or to plead in the alternative or to set up any equitable interest in or claim to this property. Plaintiff has had his day in court on the narrow legal issue. Whether as a matter of fact or as a matter of law he has any equitable interest in this property is not shown by this complaint nor for that matter is such an equitable interest claimed.

Accordingly, the judgment of the trial court is correct and it should be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    The People of the State of Illinois ex rel. Buffalo Utility Company, an Illinois Corporation, Plaintiff-Appellant, v. Village of Buffalo Grove, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 51,984.
    First District, Fourth Division.
    July 20, 1967.

      Arvey, Hodes & Mantynband of Chicago (Louis M. Mantynband and Richard J. Troy, of counsel), for appellant.
    Richard G. Raysa and Isham, Lincoln & Beale, of Chicago (Arthur C. Gehr, Robert E. Cronin and C. Richard Johnson, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Relator sought to bring a quo warranto proceeding, and appeals from the dismissal of its amended complaint for failure to show a sufficient interest to maintain the action.

In 1957, relator was certified by the Illinois Commerce Commission to construct, operate and maintain public sewerage and waterworks in the Village of Buffalo Grove. In 1964, the village annexed certain property contiguous to its boundary (referred to as Glen Grove) which approximately doubled its area. Subsequent to the annexation of Glen Grove, the village passed an ordinance authorizing the acquisition and construction of a municipally owned combined waterworks and sewerage system for the Glen Grove area and authorizing the issuance and sale of waterworks and sewerage revenue bonds to pay for construction of the system. As housing projects began to be developed in Glen Grove, the village sold some of the bonds and began construction.

Relator then requested the Illinois Attorney General and the State’s Attorneys of Cook and Lake Counties to institute a quo warranto proceeding challenging the authority of the village to construct the system and to issue the bonds. The requests were refused and plaintiff thereafter was granted leave of court to file its own complaint (subsequently amended) in which it alleged that the village ordinance was void. Relator had been providing water and sewer services only in that part of the village which lies outside of the new Glen Grove area, but in its complaint it alleged that this gave it a sufficient interest to bring the action because (1) it had installed oversized pipes in anticipation of serving any territory which might be annexed to the village, and the action of the defendant would render valueless such oversized facilities; and (2) there is a possibility that the proposed system will interfere with plaintiff’s water and sewer system. Defendant moved to dismiss on the ground of the insufficiency of relator’s interest. The motion was allowed, and this appeal followed, presenting that sole and narrow issue.

The general principle applicable to the interpretation of the right to bring an action under the quo' warranto statute is set forth in People ex rel. Monument Co. v. Rosehill Co., 3 I112d 592, 595, 122 NE2d 283, where the court stated:

We have had numerous occasions to construe the Quo Warranto Act of 1937 with respect to the right of private citizens to maintain actions thereunder. Our holdings have consistently been that the interest of an individual must be one that is personal to him and not common to the public. It must be of such a nature that the usurpation of a public grant, franchise or of fice, has trespassed upon or injured his private . . . rights as differentiated from the injury to the general public. (Citing cases.)

Further, the particular interest alleged must be specifically pleaded. People ex rel. Koontz v. Emmerson, 313 Ill 209, 214, 145 NE 106.

In support of its position, relator relies upon the Rosehill case, just cited, and upon People ex rel. Blake v. Oak Woods Cemetery Ass’n, 17 Ill2d 64, 160 NE2d 759. In each of those cases, the defendant cemetery associations sold grave markers in direct competition with the respective relators, who were located across the street from the cemeteries. The Supreme Court held in each case that the relator had an interest by which it could contest the association’s authority to compete in the monument business. However, the court emphasized that the defendants’ activities had produced a currently recognizable effect upon the relators’ present business. By their competition they had, in each case, made substantial inroads into the relators’ already existing market. Those cases are, therefore, distinguishable from the instant case. In the case at bar, there is no claim that the defendant’s action can ever affect the relator’s market within its existing certificated area.

We recognize that if a public utility seeking to supply a new area not then being serviced, were to apply for a certificate from the Illinois Commerce Commission, an already certified public utility serving an adjacent area would be given the first chance to show its ability and willingness to provide service for the new area. Citizens Valley View Co. v. Illinois Commerce Commission, 28 Ill2d 294, 301, 192 NE2d 392. However, municipal utility systems are specifically excepted from the provisions of the Public Utilities Act. Ill Rev Stats, 1965, c 111%, § 10.3. Furthermore, that act declares that a certificate issued by the Commission “shall not be construed as granting a monopoly or an exclusive privilege.” Ill Rev Stats, 1965, c 111%, § 56. As a result, relator is not protected from the acts of defendant as the operator of its own utility in the way it would be from the acts of another utility company in its own status. Springfield Gas & Electric Co. v. Springfield, 292 Ill 236, 126 NE 739, affirmed 257 US 66. And there is nothing to prevent a municipally owned utility from competing directly in the same area of operation with a privately owned utility. Central Illinois Public Service Co. v. City of Bushnell, Ill., 109 F2d 26, 28 (7th Cir 1940).

Against this background, relator is in no position to assert any present, private right to service the new area. Nor does its alleged investment in oversized facilities to accommodate anticipated future demands in other areas, clothe it with the required interest to bring a quo warranto proceeding.

As to the alleged damage to existing facilities, it is not stated affirmatively that they will be damaged or destroyed, but only that such a result is possible. This falls woefully short of showing the interest necessary for quo warranto. At best, it would only seek to challenge the manner in which the village was about to exercise its authority, rather than the authority itself which is the only proper scope of a quo warranto proceeding. People ex rel. Chillicothe Tp. v. Board of Review of Peoria County, 19 Ill2d 424, 427, 167 NE2d 553.

We therefore conclude that relator has no private interest in the village’s development of its own water and sewer system which would enable it to bring a quo warranto proceeding in its own right. The order of the Circuit Court dismissing the amended complaint is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       The authority to institute a quo warranto action is set forth in Ill Rev Stats, 1965, c 112, § 10:
      The proceedings shall be brought in the name of the People of the State of Illinois by . . . ; or by any citizen having an interest in the question on his own relation, . . . and when . . . leave has been granted by any court of competent jurisdiction, or any judge thereof.

       Both the village and relator agreed that in the light of the rapid pace of the housing development and the necessity for water and sewer services in the Glen Grove area, the case required prompt disposition. Therefore, to simplify and to expedite the proceedings in the trial court, the parties agreed that relator would formally be granted leave to file a complaint in quo warranto, but that the village would retain all defenses to the filing of the complaint, including the defense of lack of necessary interest on the part of relator.


author: MR. PRESIDING JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kevin McGrath, Defendant-Appellant.
    Gen. No. 66-68M.
    Second District.
    July 20, 1967.

      Overholser, Flannery & Dunlap, of Libertyville, for appellant.
    Bruno W. Stanczak, State’s Attorney of Lake County, of Waukegan, and Wayne B. Flanigan, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant was tried before a magistrate on a misdemeanor charge (Ill Rev Stats 1965, c 38, § 12-3), found guilty and sentenced to the Illinois State Farm at Vandalia, Illinois, for a period of ninety days. Motions in arrest of judgment and for a new trial were denied. It is from the orders denying these motions that the defendant appeals.

The complaint, charging battery, was signed on March 21, 1966, and a warrant for the defendant’s arrest was issued pursuant thereto. The caption of the complaint was as follows:

“In the Circuit Court of the 19th Judicial Circuit, Lake County, Illinois.”

In the body of the complaint, although the county was not mentioned, still, the following phrase was used:

“. . . in the said County and State. . .”

There was no conflict between the caption and the body of the complaint as to the county; nor was there any evidence that defendant was prejudiced or that venue was improper.

On March 24, 1966, the defendant, without counsel, was brought before a magistrate for arraignment and the following is a portion of the order that was entered:

“And the said defendant Kevin McGrath being now arraigned to plead for plea says that he is not guilty in manner and form as charged in said Complaint and hereby waives trial by jury.”

The magistrate then ordered the cause to be heard on April 7, 1967. On the date set, the defendant appeared pro se and was found guilty by the court.

Since a court reporter was not present we are without the aid of a report of proceedings; and therefore, this appeal is founded on the common-law record. There was attached to the motion for a new trial, the affidavits of the defendant and his mother stating that the defendant was not advised of his right to trial by jury, did not knowingly waive such right and that he was denied a continuance to obtain counsel to defend against the charge. However, affidavits are not part of the common-law record (People v. Twitty, 405 Ill 60, 61, 89 NE2d 827 (1950)) and this court is not authorized to consider statements, arguments or contentions dehors the record. People v. Rogers, 26 Ill2d 599, 603, 188 NE2d 22 (1963).

The defendant complains of error in that (1) the body of the complaint did not allege the county wherein the offense took place, (2) that he was not advised of his right to counsel and (3) that he did not knowingly and intelligently waive his right to trial by jury.

As to the first urged error, our Supreme Court in the recent decision of People v. Williams, 37 Ill2d 521, 229 NE2d495 (1967) stated:

“Where, . . . there is no conflict between the caption and the body of the charge, no suggestion that the venue was improper or improperly proved, and no showing of prejudice to the defendant, we see no reason to refuse to read the caption as part of the complaint. So read, the complaint sufficiently designates the county in which the offense was alleged to have been committed.”

Consequently, the complaint in this case is proper.

The remaining two contentions are more formidable because of the lack of a complete record. Both involve the substantial rights of the defendant as guaranteed by the Sixth Amendment of the U. S. Constitution and by Article II, Section 9 of the Constitution of Illinois. The record herein does not reveal as to whether the defendant expressly and understandingly elected to forego a jury trial; or, whether the defendant knowingly and intelligently waived his right to the appointment of counsel.

We are cognizant of the fact that hearings had on misdemeanor offenses, in many cases, are not reported and transcribed. However, under Supreme Court rule 323 (c) (d), recently adopted, this void may now be rectified, thereby alleviating any guess or conjecture on the part of the reviewing court as to what actually transpired at the trial proceedings. And, as in the case at bar, where there is a material question in controversy upon a material issue and the record fails to disclose all of the evidence on that issue, this court has the power to reverse the judgment and remand the cause for further evidence. American Smelting & Refining Co. v. Industrial Commission, 353 Ill 324, 329-330, 187 NE 495 (1933); Henry’s Drive-In, Inc. v. Anderson, 37 Ill App2d 113, 128, 185 NE2d 103 (1962); Section 92(e) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 92 (1) (e)).

Since we do not have the benefit of a verbatim transcript of the proceedings upon which to base a considered judgment in this case, we are compelled to reverse the judgment of the trial court and remand with directions to reinstate this cause for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE MORAN

text:
    First National Bank & Trust Company of Evanston, a National Banking Association, Plaintiff-Appellant, v. Rockenbach Chevrolet Sales, Inc., Defendant-Appellee.
    Gen. No. 66-117M.
    Second District.
    July 20, 1967.
    Zenoff, Westler, Jones and Kamm, of Chicago, for appellant.
    Churchill and Baumgartner, of Grayslake, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On May 28, 1965, one Jerry Brown received a loan from the plaintiff Bank in order to purchase a Chevrolet automobile from the defendant agency. Brown signed a note and security agreement and deposited same with the plaintiff. Thereupon, the plaintiff credited Brown’s account with the amount in question and Brown made and delivered his check to the defendant agency. The check contained an endorsement on the reverse side stating that the check constituted payment in full for the automobile, indicating its serial number, and that the payee warranted that he had good title and that, in the Bill of Sale and Application for Certification of Title, he had shown a lien in a specified amount in favor of the plaintiff Bank and indicated that on said application the Certificate of Title would be sent to the plaintiff Bank. The defendant endorsed and cashed the check.

Thereafter, application for Title was made by the defendant, but when the Title was issued by the Secretary of State it contained no notation of the plaintiff’s lien and the Title itself was mailed to Brown. It now appears that Brown has defaulted on his note to plaintiff, has sold the car and also made himself unavailable.

Plaintiff filed its complaint in the Magistrate Division of the Circuit Court of Lake County alleging the execution of the note and security agreement and the delivery of the check by Brown to the defendant agency. Plaintiff then alleges that the defendant negligently failed to note plaintiff’s lien upon the Title Application, permitting the Secretary of State to issue the Title, absent the lien notation.

The defendant filed a Motion to Dismiss on the grounds that there was no privity of contract between plaintiff and defendant. The Magistrate granted the Motion on that ground and dismissed the case.

An examination of the complaint reveals that the appellant inarticulately attempted to plead the common-law action of trespass on the case — negligence, and whether or not he did so properly was not raised before the trial court or this court. The appellee, as stated before, by motion in the trial court and by argument in this court, argues that, since there is no privity between the parties, the trial court was correct in dismissing the suit. However, the duty to exercise ordinary care, upon which a negligence action is based, does not depend upon contract, privity of interest, or the proximity of relationship. Kahn v. James Burton Co., 5 Ill2d 614, 622, 126 NE2d 836 (1955); Westlake Finance Co. v. Oak Park Motors, 19 Ill2d 66,166 NE2d 23 (1960).

It is therefore necessary to conclude that the trial court erred in dismissing the appellant’s complaint on the basis of privity and this case must be reversed and remanded for further proceedings, consistent with the views expressed herein.

Reversed and remanded.

DAVIS P. J. and ABRAHAMSON, J., concur.


text:
    The Aurora National Bank of Aurora, Illinois, a Corporation, Plaintiff-Appellant, v. Ed Fanning Chevrolet, Inc., a Delaware Corporation, Defendant-Appellee.
    Gen. No. 66-146.
    Second District.
    July 20, 1967.

      Tyler and Peskind, of Aurora, for appellant.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On August 18, 1964, the plaintiff Bank agreed to lend one David Stanley money for the purchase of a Chevrolet automobile from the defendant’s automobile agency.

The plaintiff prepared its draft payable to defendant agency and stamped on the front and back of the draft the notation that a security interest lien in the amount due was to be recorded on the title application in favor of the plaintiff Bank and forwarded to them. Stanley gave the draft to the defendant and drove off in his new car. The defendant agency prepared the title application and statement of origin and indicated in each that there was no lien. The application was not marked to be forwarded to the plaintiff Bank but instead Stanley’s address was given: The defendant agency endorsed the draft and received the proceeds. Stanley quickly fell into default on his obligation to plaintiff and neither Stanley nor the automobile can now be located.

The plaintiff filed this action in the Circuit Court of Kane County alleging the facts hereinbefore set forth and concluding that the defendant had wrongfully converted the Bank money order for its own use without protecting the plaintiff’s interest by noting the lien on the application for title and statement of origin. Both parties filed Motions for Summary Judgment in the Trial Court. The Trial Court granted the Motion of the defendant and dismissed the case.

Section 3-104 of Chapter 95% of the Illinois Revised Statutes for 1965 covers the subject of the application for a first certificate of title for a motor vehicle. Subsection (b) provides:

“If the application refers to a vehicle purchased from a dealer, it shall contain the name and address of any lienholder holding a security interest created or reserved at the time of the sale and the date of his security agreement and be signed by the dealer as well as the owner, and the dealer shall promptly mail or deliver the application to the Secretary of State.”

Despite this language the defendant urges us to accept the proposition that an automobile dealer has no duty to a lender to assure that his security interest will appear on a certificate of title. The clear language of the statute places two duties on the shoulders of the dealer. He must sign the application, which shall set forth the lien, and he must mail or deliver it to the Secretary of State. It would have been meaningless for the legislature to require the dealer to sign the application if they did not intend that the dealer see to it that the lien were correctly shown upon that application. The legislature is presumed to know the realities and among them is the fact that the dealer is sophisticated in these matters and far better able than the owner to see a correct description of the lien. In the case at bar the notations on the check were clear notice to the dealer of the existence of the lien, and under the statute aforesaid he had a duty to see to it that the lien was correctly set forth on the application for title.

Defendant next urges us to accept the proposition that the plaintiff has not been damaged because Stanley would not make his payments without regard to the existence of the lien on the certificate of title, and the fact that the lien is not noted does not assist the plaintiff in collecting from Stanley. The fact that the lien was noted obviously would not put money into the hands of Stanley, but on the other hand a notation of the lien would prohibit Stanley from transferring title to the car and would protect the plaintiff, at least to the extent of the value of the car. This same issue was considered by the Supreme Court in the case of Westlake Finance Co. v. Oak Park Motors, 19 Ill2d 66, 166 NE2d 23 (1960), wherein the court said at page 71:

“By delivering to Mrs. Evelyn Slaughter possession of the car and the certificate of title showing no existing lien thereon, defendant gave her an opportunity to perpetrate a fraud upon the plaintiff . . . Under such circumstances, defendant could reasonably have foreseen that plaintiff’s lien might be destroyed. Regardless of whether the misstatements were intentional or were the result of mere mistake or inadvertence liability must follow, under the familiar doctrine that where one of two innocent persons must suffer, he should bear the burden whose conduct induced the loss . . . The loss suffered by plaintiff can be directly traced to the wrongful conduct of the defendant in the premises.”

It does not appear to us that the defendant is an innocent person. The plaintiff did all that it could do to protect itself. Defendant could have protected the plaintiff but did nothing, and as a result the plaintiff suffered a loss.

The parties argue at length as to whether or not the notation on the check was a condition of payment. It seems to us that it doesn’t matter, because even if it was not a condition of payment it was certainly notice to the defendant that the plaintiff had a lien which the defendant is duty bound to protect under the statute aforesaid. We are not here dealing with parties who are inexperienced in the sale of automobiles on credit. All are presumed to know the law but this defendant has particular knowledge in the field.

The transaction which gave rise to this litigation is very common in today’s market place. The defendant would have us say that a bank issuing its check is not protected without regard to any notation or endorsement on the check and that the dealer may reap the benefits without making any effort to protect his benefactor. Such a rule would make for fraud and chaos. Business could not be conducted if that were the law. The legislature has sensibly foreseen the realities of the market place and placed a duty upon the dealer who is after all the beneficiary of the system. We conclude, therefore, that the defendant should have protected the plaintiff and did not do so. This case is therefore reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: STOUDER, P. J.

text:
    Phillip C. Storck, Plaintiff-Appellant, v. The Quaker Oats Company, Defendant-Appellee.
    Gen. No. 67-24.
    Third District.
    July 20, 1967.
    Moehle, Moehle & Reardon, of Pekin, for appellant.
    Frings, Hoffman & Bagley, of Pekin, for appellee.
   STOUDER, P. J.

Plaintiff Appellant, Phillip C. Storck, commenced this action in the Circuit Court of Tazewell County against Defendant Appellant, The Quaker Oats Company, claiming that he was entitled to two weeks’ vacation pay from defendant. The action is based on a labor management contract a copy of which contract is attached to the complaint. In substance the complaint alleges that Plaintiff was employed by Defendant for a certain period of time, that in July, 1966, the Defendant employer posted a vacation schedule indicating Plaintiff’s vacation period was to be two weeks in August, that prior to the vacation period so designated Plaintiff was discharged by Defendant and that under such circumstances Plaintiff was entitled to receive and recover two weeks’ vacation pay. Defendant moved to dismiss the complaint alleging that the complaint failed to state a cause of action because the labor management contract, which was the basis for Plaintiff’s claim, provided that the only remedy available to Plaintiff, if any, was under the grievance and arbitration procedure set forth in said labor management contract. The trial court dismissed the complaint and this appeal follows.

In seeking to reverse the judgment of the trial court Plaintiff argues that his claim being for wages, the Grievance and Arbitration Procedures, provided for in the labor management contract, are not applicable and do not bar his action. This controversy arises primarily from conflicting interpretations of certain provisions of the contract. In Article 3 of the contract dealing with Arbitration and Grievance procedure a Grievance is defined as “The word ‘Grievance’ wherever used in this Agreement shall mean any complaint on the part of the Union or any employee in regard to the interpretation and application of the specific terms and provisions of this Agreement.” Further in the same article it is provided, “Arbitration shall be limited to the settlement of specific claims arising out of the interpretation and application of the specific terms and provisions of this Agreement. The Board of Arbitration shall have no power to add to, subtract from or modify any of the terms of this Agreement. It is agreed that wages shall not be subject to arbitration.” In support of his argument that his claim is for wages Plaintiff relies primarily on section 440, chapter 48, Ill Rev Stats 1965, and Cummings v. Chicago, A. & E. Ry. Co., 348 Ill App 537, 109 NE2d 378. Section 440, provides in substance that where the employer and employee have agreed upon terms and conditions relating to vacation the same shall be deemed to be wages. In Cummings v. Chicago, A. & E. Ry. Co., supra, the court held that if an employee was entitled to receive a vacation after working a certain period of time the right to a vacation, or for compensation in lieu thereof, was earned, and the employee was entitled to compensation therefore even though his employment may have terminated before such vacation was scheduled. Defendant agrees with the rule announced in the Cummings case but points out that it is not applicable to the facts in the instant case since no arbitration or grievance procedure was involved. No Illinois case, nor any case from another jurisdiction, has been called to our attention where the exclusion of vacation pay from an arbitration procedure was the issue of the case. Defendant relied on cases such as United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 US 593, 80 S Ct 1358, and Republic Steel Corp. v. Maddox, 379 US 650, 85 S Ct 614, none of which deal with vacation pay or an exclusionary clause contained in an arbitration agreement as in the instant case. The general purport of the cases relied upon by Defendant is that the arbitration and grievance procedures in labor management contracts are in accord with public policy and such agreements will be enforced by the courts according to their terms.

We believe that the trial court was correct in holding that the Plaintiff was required to prosecute his claim in accord with the Grievance and Arbitration Procedures of the contract. From a consideration of the provisions of the contract as a whole, we believe that the provision excluding wages from the Arbitration Procedure refers to the general scale of wages or to disputes concerning wages that may result when negotiations for a new contract ensue. In our opinion the claim presented by Plaintiff is within the definition of Grievance as used in the contract. In a general sense any claim for money under a labor management contract is for wages. Were we to adopt the view contended for by Plaintiff the Grievance and Arbitration Procedures would be of little effect. Claims based for vacations, overtime, downtime, sick leave or holidays could in a general sense be considered claims for wages. However we believe that it was the intent of the contract that such issues be resolved by resort to the Arbitration and Grievance Procedure. The Arbitration and Grievance Procedure is designed to provide a method for resolving disputes between employer and employee under such circumstances that the viability of the employment relationship may continue satisfactorily while at the same time the disputes may be resolved. Even though in the instant case, the Plaintiff was discharged, it would appear that such disputes might well develop during the continuance of the employment relation and be settled in accordance with the provisions of the contract by arbitration without destroying or impairing the employment relation.

Finding no error in the judgment of the Circuit Court of Tazewell County the judgment of said court is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Defendant in Error, v. John Gaston, Plaintiff in Error.
    Gen. No. 51,264.
    First District, Third Division.
    July 20, 1967.

      Edward M. Keating, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Four indictments were returned against the defendant, charging him as follows:

Indictment No. 61-549 — Armed Robbery
Indictment No. 61-550 — Armed Robbery
Indictment No. 61-551 — Armed Robbery
Indictment No. 61-552 — Assault with intent to Commit Robbery.

Defendant pleaded not guilty to the charge in Indictment No. 61-551 and on a jury trial was convicted and sentenced to a term of ten years to fifty years in the penitentiary. He then pleaded guilty to the remaining charges and was sentenced as follows:

Indictment No. 61-549 — Ten years to life;
Indictment No. 61-550 — Ten years to life;
Indictment No. 61-552 — One year to fourteen years,

these sentences to run concurrently with the sentence in Indictment No. 61-551. The court also increased the sentence on the original charge (No. 61-551) to a term of ten years to life.

Defendant charges error in the trial of Indictment No. 61-551 in that (1) the court assumed the role of a prosecutor by extensively examining the witnesses, and (2) the prosecutor made statements in his closing argument which were not supported by the evidence and which were calculated to prejudice the jury. Defendant also contends that he was coerced into pleading guilty to the charges in the remaining three indictments because of remarks made by the judge at the time of sentencing on the first charge. His final contention is that the court improperly increased the sentence on the charge in No. 61-551 after he pleaded guilty to the other charges. Because no issue is raised concerning the defendant’s guilt, it is not necessary to detail the facts, but we shall summarize them briefly.

On the night of January 12, 1961, the University Liquors at 1003 East 55th Street, Chicago, was robbed of $270 and a wristwatch was taken from the bartender, one Ben Krakover. Eight persons were arrested in connection with the crime, among them the defendant and one Barbara Carter. Krakover and Thomas Jordan, a student present at the time of the robbery, identified the defendant as one of three men who entered the tavern and took the money and watch. John Joyce, a detective of the Chicago Police Department, testified that on the morning after the robbery he saw Barbara Carter wearing the watch at the police station.

With respect to the first charge of error relating to the court’s conduct of the trial, the record reveals that the examination of witnesses by the attorneys was interrupted several times by inquiries from the bench, but it is also apparent that the court was merely seeking to clarify the testimony of particular witnesses and that he did so fairly and without prejudice to the defendant. We will not set forth each instance in which the court interjected his own questions into the proceeding, many of them being of a routine nature, but will analyze certain passages particularly relied upon by defendant as having “emphasized weaknesses in the defendant’s case,” and as having “indicated to [the jury] the Court’s hostility towards the defendant. . . .” During the examination by the State of the prosecution witness Detective Joyce, Joyce testified that on the night of the robbery he was assigned to the investigation of another tavern robbery at 934 East 75th Street; that he did not see the defendant until the morning after the robbery, when he saw him at the police station. At that point the court interceded:

“THE COURT: As I understand it, officer, you did not arrest the defendant?
“THE WITNESS: That’s right, Your Honor.
“THE COURT: You did not?
“THE WITNESS: Yes, I did not make the arrest.
“THE COURT: But you later saw him in the presence of Barbara Carter?
“THE WITNESS: Yes, sir.
“THE COURT: And Barbara Carter is the girl who was wearing this wristwatch?
“THE WITNESS: Yes, sir.”

The defendant argues that the court’s question with respect to Barbara Carter’s possession of the wristwatch, alleged to have been taken from the bartender, unduly stressed that element of the prosecution’s case. The questioning was understandable however because of the possibility of confusion arising from Joyce’s testimony that he had investigated another robbery and had not participated in defendant’s arrest. Moreover, despite the repetition of certain answers, it does not appear that particular emphasis was placed on any one portion of the testimony or that the judge revealed a bias as to the answers given.

Defendant also contends that the court indicated hostility toward him by interrupting an answer he was giving during the course of his own cross-examination.

“THE COURT: Well, did she tell the police, in your presence, that you had given her the wristwatch?
“THE WITNESS: She most certainly did not; as a matter of fact, after Barbara Carter and I were arrested—
“THE COURT: All right, you said no.”

It is evident that defendant had answered the question asked of him and had done so to his own advantage. It is not unreasonable to assume that the court’s action prevented the defendant from incriminating himself.

Defendant cites People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295; People v. Kelley, 29 Ill2d 53, 193 NE2d 21; People v. Tyner, 30 Ill2d 101, 104, 195 NE2d 675, and other cases for the proposition that the court may not exceed his role by becoming an advocate for one party or the other, but in each of those cases the court made direct comment on the credibility of witnesses or made attacks on counsel. In People v. Tyner, supra, the court went so far as to say that the witness “was lying like a goat.” On the other hand, it must be borne in mind that the judge does not play the part of an owl, merely gazing at the participants and looking wise. He must observe with care and seek to understand the issues and the testimony. If a question or an answer appears confusing, it is not only his right but his duty to seek to clarify it. Ultimately he may have to pass upon a motion for a new trial and his decision in turn may depend on the confusion or clarity with which questions are asked and answers given.

In the instant case the judge did not impugn the credibility of any witness. He acted as a conscientious and capable judge should and there was no error in his conduct of the trial.

Defendant’s second contention is that the closing arguments of the prosecuting attorneys were improper because they attributed to defendant the statement, “Don't raise your head or I’ll blow your head off.” The State contends that this argument was permissible as an explanation of the prosecution witness’ failure to remember details of the defendant’s clothing, but this position is not sustained by an examination of the allegedly improper remarks which are set forth as follows:

“They [the customers] were told to lie face down on the floor; while back there, this man told one of the witnesses, whom you heard testify yesterday. . . . ‘Don’t raise your head or I’ll blow your head off.’ That gives you the tenor in this type of case, ‘Don’t raise your head or I’ll blow your head off.’ ”

Defendant concedes that there is evidence that someone made this threat, but he argues there is no evidence that it was he who did so. The record sustains his contention. The argument of the State’s Attorney was therefore improper, but such error does not necessarily require reversal. People v. Lofton, 64 Ill App2d 238, 212 NE2d 705.

Where the defendant’s attorney does not object to the argument deemed improper, the court will not reverse unless it appears that he was deprived of his right to a fair trial. In the instant case defendant’s attorney made no specific objection to the statements in question. The only objection we can find in the record following the argument referred to comes some time after it had been made and seems to relate to other matters. Defendant received a fair trial and his guilt was proved beyond reasonable doubt. The impropriety in the argument on behalf of the State does not constitute a basis for reversal.

Defendant’s third contention is that he was coerced into pleading guilty on the remaining three indictments because the judge said at the time of sentencing on Indictment No. 61-551 that he “should have come in and pled guilty. This man is a professional robber. . . .” Evidence had been introduced of two convictions prior to the offense in question, and one of these was for robbery. The remark made was no more than a natural reaction under the circumstances. It is also clear from the record that the judge was solicitous of the defendant’s rights and that defendant’s plea of guilty was made with awareness of the consequences and without compulsion. There was no error with respect to this phase of the trial.

Defendant’s final contention is that the court erred by increasing his sentence in Indictment No. 61-551 after the sentencing on the remaining three charges. The increase was from a term of ten to fifty years to a term of ten years to life. No prejudice can result to the defendant from this increased sentence. On the other two charges of armed robbery (Nos. 61-549 and 61-550) defendant was given terms of ten years to life, the sentences to run concurrently with the sentence in 61-551. The sentence in 61-551 was simply another concurrent sentence of ten years to life. Hence the defendant remains eligible for parole after the expiration of ten years less time for good behavior.

The judgment is affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Lockett, Defendant-Appellant.
    Gen. No. 51,041.
    First District, Third Division.
    July 20, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, George Lockett, was indicted for the offense of murder, tried by a jury, found guilty of voluntary manslaughter, and was sentenced to serve a term of from 7 to 17 years in the penitentiary.

The defendant contends on appeal that his conviction was brought about by the refusal of the trial court to give a defense instruction on the subject of self-defense. In the alternative, he contends that the sentence imposed by the trial judge is too severe and requests this court to reduce it.

Alonzo Woods, age 18, was shot twice — once in the arm and once in the heart — on the evening of April 7, 1965. He died the next day, never having regained consciousness. Two youths, acquaintances of both Lockett and Woods, were inside a food store belonging to Lockett’s aunt when they heard four shots fired. They ran outside just in time to see Woods fall to the ground and Lockett run away.

Early the following morning Lockett, age 17, accompanied by his parents, surrendered to the police. He admitted firing the shots which killed Woods, but asserted that he and Woods had fought on prior occasions and that he had been beaten up repeatedly. He had a black eye at the time and complained of pains in his groin. He asserted that when they met on April 7th he thought Woods was going to strike him and he pulled the revolver and began shooting.

At his trial he testified that he and Woods associated together but were unfriendly; that they had a fight two weeks before the shooting and had fought twice the night before, and that on these occasions Woods was both the aggressor and victor. He said that preceding the last fight Woods remarked, “Don’t you know I’ll kill you?” His testimony about the two fights the night before the shooting was corroborated by one of the boys who heard the shots fired on April 7th.

Lockett further testified that after his last beating he stole a gun from his aunt’s store because he was not in condition to fight and did not want Woods jumping on him. He said he did not go looking for Woods but the next evening, with the weapon in his pocket, he stood outside the store for two hours. Woods walked up and swung at him. He said he fired a shot over Woods’ head and warned him to leave him alone. When Woods put his hand into his pocket Lockett thought he was reaching for a gun and shot him. However, he also testified that Woods was ten feet away when the first shot was fired. After the shooting Lockett got on a bus, transferred to the elevated, threw his gun away and went to a relative’s home. From there he telephoned his parents.

Lockett stated that he thought Woods was reaching for a gun because he knew Woods had carried a gun on previous occasions; that he had been shot in the leg by an unknown person in January 1965, and several weeks afterwards people in the neighborhood told him that Woods was saying he did it. The officer who had investigated the January 1965 shooting testified in rebuttal that his report of that incident indicated that Lockett stated that he was in the company of his friend, Lorenzo Woods, when he was shot. Furthermore, the witness who had corroborated Lockett’s account of the two fights on April 6,1965, testified that he had never known Woods to carry a gun. No gun or weapon of any kind was found on or near Woods’ body.

From this evidence the jury could have found that the killing was murder, manslaughter or justifiable homicide. It was murder if Lockett sought revenge against Woods, armed himself for this purpose, stood in one place for two hours waiting for Woods to come by, shot at him from ten feet away as he approached and then fired three more shots at him in rapid succession. It was manslaughter if Lockett believed he was in danger of losing his life or suffering great bodily harm but under the circumstances his belief was unreasonable. It was justifiable if Lockett reasonably believed the killing was necessary to prevent his own death or his receiving great bodily harm from the boy who he said had bullied and beaten him. Murder: Ill Rev Stats 1965, c 38, § 9-1(1); People v. Davis, 35 Ill2d 55, 219 NE2d 468 (1966); Manslaughter : Ill Rev Stats 1965, c 38, § 9-2 (b); People v. Johnson, 54 Ill App2d 27, 203 NE2d 283 (1964); Justifiable Use of Force: Ill Rev Stats 1965, c 38, § 7-1; People v. Strader, 23 Ill2d 13, 177 NE2d 126 (1961); People v. Smith, 404 Ill 350, 88 NE2d 834 (1949). For a killing to be justifiable it is not necessary that the danger be real. If the defender had reasonable ground to believe himself in danger of losing his life or of suffering great bodily harm he may protect himself even if he is mistaken and the danger only apparent. Whether the danger is actual or apparent does not depend upon the assailant using a deadly weapon or having one in his possession. People v. Motuzas, 352 Ill 340, 185 NE 614 (1933); People v. Organ, 345 Ill 339,178 NE 73 (1931).

The defendant presented an instruction embodying the principle that it is not necessary for the assailant to be armed. The trial court refused to give the instruction and the defendant contends that this was reversible error. The instruction reads as follows:

“The Court instructs the jury that if you find from the evidence that the deceased was physically capable of inflicting great bodily harm upon the defendant, and that the defendant had reason to believe and did believe that the deceased was about to inflict such injury upon him, and under such belief wounded the deceased to prevent himself from such harm, then it is immaterial whether the deceased was armed or not at the time of the killing.”

The refused instruction stated correct principles of law. The State objected to it on the sole ground that the word “wounded” was misleading because the deceased was more than wounded. This objection could have been met by the insertion of the word “fatally” before the word “wounded,” but the failure to do this did not invalidate the instruction. The deceased was dead whether the instruction said the defendant wounded or fatally wounded him. The instruction could well have been given and the failure to do so would have been error had not the court instructed the jury on the same principle of law.

The defendant submitted other instructions on self-defense which were accepted by the court and read to the jury. Among them was the following:

“The Court instructs the jury that if a person is assaulted in such a way as to induce in him a reasonable and well grounded belief that he is actually in danger of losing his life, or of suffering great bodily harm, then he would be justified in defending himself whether the danger is real or only apparent. Actual and positive danger is not indispensable to justify self-defense. All that is necessary is that the defendant had reasonable grounds to believe that the danger was real and about to fall on him, and if he acted in good faith and under an honest belief that he was in apparent danger of losing his life or receiving great bodily harm, then he cannot be found guilty, even though he may have made a mistake as to the impending danger.”

This instruction is broader in scope than the refused one but it sufficiently covers the principles of law contained in that instruction. A court is under no obligation to give more than one instruction on the same subject matter (People v. Young, 398 Ill 117, 75 NE2d 349 (1947)) and if an instruction is given which adequately covers the same subject as the one refused, it is not error for the court to refuse the latter. People v. Moretti, 6 Ill2d 494,129 NE2d 709 (1955).

The statutory penalty for the offense of voluntary manslaughter is imprisonment in the State penitentiary for a period of from one to twenty years. Ill Rev Stats 1965, c 38, § 9-2 (c). In the case at bar the prosecutor recommended a sentence of 10 to 20 years and the trial judge imposed a sentence of 7 to 17 years. The defendant protests that this sentence is too severe and urges this court to reduce it under the power granted us by Ill Rev Stats 1965, c 38, § 121-9 (b) (4). Under the sentence imposed the defendant will be eligible for parole when he has served four years and nine months (including time credit for good behavior). This is not a harsh minimum period of servitude for one who has taken another’s life under circumstances the jury found were unjustifiable. The minimum and maximum limits of the sentence allow the State Parole Board wide latitude in determining when the defendant should be released and give it ample time to ascertain whether or not he has been successfully rehabilitated.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Webb, et al., Defendants-Appellants.
    Gen. No. 50,476.
    First District, Second Division.
    July 21, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John McGarry, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS

text:
    Steve Renieris, et al., Plaintiffs, v. Village of Skokie, a Municipal Corporation; The Chicago Title and Trust Company, a Corporation, as Trustee Under Trust No. 38036 and John Brooke, et al., Defendants. The Chicago Title and Trust Company, a Corporation, as Trustee Under Trust No. 38036, John Brooke, et al., Counter-Plaintiffs-Appellees, v. Village of Skokie, a Municipal Corporation, Counter-Defendant-Appellant.
    Gen. No. 51,367.
    First District, Second Division.
    July 21, 1967.

      Harvey Schwartz, of Skokie, for appellant.
    Donald L. Vetter, of Chicago, for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the counterdefendant, Village of Skokie, (hereinafter referred to as the Village) from the entry below of an order of summary judgment upon the motion and in favor of the counterplaintiffs, John Brooke, George Eisermann, David Brooke, and Chicago Title and Trust Company.

This cause originated on June 30,1964, when a group of Skokie residents and a local property owners’ association filed a suit in the Circuit Court which prayed for injunctive relief against the Village and the eventual counter-plaintiffs to this action as codefendants. The action sought to enjoin the development and construction of a Holiday Inn Motel at the intersection of Niles Center Road and Touhy Avenue within the village limits of the municipality, a large northern suburb of the City of Chicago. The suit was commenced because construction of such a facility had been made possible in the Village by the granting of a special use permit to the instant counter-plaintiffs pursuant to an amendatory zoning ordinance enacted by that Village’s Board of Trustees on June 2,1964. The granting of such a permit had been theretofore recommended by the local Plan Commission. The permit itself did not issue until June 19, 1964, seventeen days subsequent to the enactment of the amendatory ordinance.

The matter was thereafter referred to a Master in Chancery. The voluminous testimony and exhibits, which had been offered before the Master, showed that in February of 1964 counterplaintiffs, J. Brooke, Eisermann and D. Brooke, had entered into a contract for the purchase of a certain parcel of land situated in the Village of Skokie with counterplaintiff, Chicago Title and Trust Company, as Trustee under Trust No. 38036. The agreed purchase price was $334,566. Thereafter, $20,000 as earnest money deposit was advanced in escrow by the purchasers. The purchasers likewise advanced $10,000 to the Holiday Inns of America for a motel franchise, their intent being to erect a motel bearing the name of that parent organization at the location.

The Master, after hearing considerable testimony and argument on the subject, rendered his finding in August of 1965 upholding the amendatory ordinance of June 2, 1964, as a valid and reasonable exercise of the Village’s legislative powers notwithstanding the protests of numerous property owners whose dwellings would be in proximity to the proposed motel. It was the Master’s recommendation that a decree be entered accordingly. No objections to this Master’s Report were filed by the Village as the Master’s findings sustained the Village’s then existing contention that a motel use was a proper subject property at the site in question.

Subsequent thereto, and after notice and hearing, the Village Board of Trustees (which then consisted of newly elected members other than those who had acted on the original amendatory ordinance, according to. counsel on oral argument) on September 13, 1965, passed and approved a second amendatory zoning ordinance which repealed the prior ordinance of June 2, 1964, revoked the counterplaintiffs’ special use permit, and restored the tract back to its original zoning classification of B-2. A B-2 classification in the Village is a commercial district classification wherein motel construction is prohibited, absent the granting of a special use permit of the B-3 (business district) category, by amendatory ordinance.

This second amendatory ordinance having been enacted and the counterplaintiffs’ special use permit having been thereby revoked, the original plaintiffs to this cause, upon their own motion, were eventually dismissed from the litigation. In answer to that motion to dismiss however, and by leave of court, the counterplaintiffs filed this subsequent action against its then codefendant, the Village. The counterclaim prayed that the second amendatory ordinance be declared a nullity, and that the Village be perpetually enjoined from further interfering with the use of the subject property for motel purposes.

The counterclaim alleged in substance that the complainants had expended in excess of $100,000 in reliance upon the amendatory ordinance of June 2, 1964, and that a motel use was, in fact, a proper use of the subject property. The Village, in its answer, denied the propriety of a motel use at the subject site, and further denied that the monies expended had been relinquished in reliance upon the first amendatory ordinance. Issue thereby being joined, the counterplaintiffs moved for a summary judgment accompanied by supporting affidavits. No counteraffidavits were filed by the Village. The Village thereafter filed a motion to strike the motion for summary judgment.

The Chancellor denied the motion to strike and granted the motion for summary judgment, concluding that the Village was estopped from withdrawing the counterplaintiffs’ special use permit by virtue of their reliance upon the original amendatory ordinance, which conferred that permit and the resulting material change of position in the fifteen month interim that followed. The Chancellor rendered no opinion relative to the propriety of a motel use at the subject site. He did, however, expressly order the Master’s Report which treated that issue to be made part of the record in the cause. Judgment was entered accordingly, from which the Village has taken this appeal.

It is the Village’s theory of the case (1) that the expenditures made by the counterplaintiffs were not made in reliance upon the prior amendatory ordinance as they alleged hence no vested rights to that ordinance have attached ; and (2) that there has been no binding determination made in the present litigation as to the propriety of the B-2 reclassification of the subject site.

It is the counterplaintiffs’ theory of the case (1) that they have acquired a vested right in the original amendatory ordinance by virtue of their substantial outlay of commitments and monies in good faith reliance thereon; (2) that the Village is precluded from now changing its theory to deny that a motel use at the subject property is proper; and (3) that the testimony taken before the Master clearly established that a motel use at the site was one of the highest and best uses of which that property was susceptible.

The Village first contends that, notwithstanding the Master’s finding which upheld the validity of a B-3 utilization of the property, the pertinent question is the propriety of the site’s zoning classification in its present and existing state, there having been, as yet, no binding determination of the subject. While this court concedes that, in fact, no determination has to date been rendered relative to the validity and reasonableness of the B-2 reclassification of the would-be motel site, we do not attach any significance to this purported issue.

The reasoning is clear. Briefly, the propriety of a B-3 special use at the tract in question was considered in depth by the Master below at which time the Village vigorously advocated the validity of that special use. The Master resolved the issue in favor of permitting the motel use in his report. To that report, which has been properly made a part of the record before this court, the Village never filed objections so as to preserve the question for review. The Village has thereby waived its right to question the validity of a B-3 utilization of the property or to assert that the counterplaintiffs acted in bad faith in relying upon an invalid ordinance. Hiller v. Casey, 26 Ill App2d 261, 168 NE2d 44 (1960); Barrett v. Carter, 39 Ill App2d 400,188 NE2d 736 (1963).

The counterplaintiffs and Village do not quarrel with the applicable law on the subject before this court; to wit, a property owner acquires a vested right in a municipal zoning ordinance when he makes a material change of position by incurring expenses or obligations in good faith reliance upon that ordinance, or as the case is here, a special use permit conferred by amendatory ordinance. Deer Park Civic Ass’n v. City of Chicago, 347 Ill App 346,106 NE2d 823 (1952); River Forest State Bank v. Village of Hillside, 6 Ill2d 451, 129 NE2d 171 (1955); Fifteen Fifty North State Bldg. Corp. v. City of Chicago, 15 Ill2d 408, 155 NE2d 97 (1958); People ex rel. Skokie Town House Builders, Inc. v. The Village of Mortom Grove, 16 Ill2d 183, 157 NE2d 33 (1959); Nott v. Wolff, 18 Ill2d 362, 163 NE2d 809 (1960); Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605 (1961); Cos Corp. v. City of Evanston, 27 Ill2d 570, 190 NE2d 364 (1963); People ex rel. Interchemical Corp. v. City of Chicago, 29 Ill2d 446, 194 NE2d 199 (1963). These cases seem to establish the now well accepted rule with the authorities varying only on the degree of change required to create the vested right. 8 McQuillin, Mun Corp 272,3rd Ed (1965).

The special motel use at the subject site having been determined by the Master to constitute a valid utilization of that property without objection from the Village, there exists but a single factual question in this case. That question is whether the counterplaintiffs had theretofore acquired a vested right in the original amendatory ordinance as a consequence of their substantial outlay of funds in alleged reliance upon the enactment of that ordinance and issuance of the special permit. It is fundamental that a legislative enactment, otherwise valid, cannot operate retroactively to divest a secured property right. Accordingly, should this issue be resolved in the affirmative, the propriety of the B-2 reclassification of the tract is completely immaterial.

The Village next submits that the general principle of law regarding vested rights in municipal ordinances is unavailing to the counterplaintiffs. It is the Village’s contention that the expenses incurred were not in reliance upon the first amendatory ordinance as alleged, but rather in anticipation and furtherance of the special permit via the amendatory ordinance to be forthcoming. It maintains further that any liabilities assumed by the counterplaintiffs subsequent to the filing of the original action to enjoin were undertaken in bad faith and at their own risk, the counterplaintiffs being on notice that their special permit was in jeopardy. We do not feel the Village’s contentions are supported by the record.

To the contrary, the Chancellor, in granting the motion for summary judgment, found that there existed no material dispute relative to the fact that the counterplaintiffs had expended in excess of $96,000 in reliance upon the amendatory ordinance of June 2, 1964. The Chancellor specifically attributed these expenses to Village permits, attorneys’ fees in defense of the original ordinance, attorneys’ fees involved in the purchase of the subject property, expenses subsequent to June 2,1964 incurred to accomplish the building of the motel, and architects’ and engineers’ fees while disqualifying certain expenditures totaling $30,000 as having been made prior to the original ordinance.

A motion for summary judgment cannot be employed to call upon the court to try issues of fact. Rather, the motion’s sole function is to determine whether a genuine and material dispute of fact does exist. Illinois Power Co. v. City of Jacksonville, 18 Ill2d 618, 165 NE2d 300 (1960) ; Ray v. City of Chicago, 19 Ill2d 593, 169 NE 2d 73 (1960); Schoeffler v. Village of Oak Park, 64 Ill App2d 454, 212 NE2d 517 (1965). Where no material factual issue exists which would otherwise warrant a trial, the motion is properly granted. Ill Rev Stats 1965, c 110, § 57.

Here, the counterplaintiffs’ motion for summary judgment, together with supporting affidavits, averred with specificity, that in excess of $100,000 had been expended in good faith reliance upon the ordinance of June 2, 1964. The Village never filed counteraffidavits. Instead, the Village elected to test the legal sufficiency of the motion for summary judgment by a motion to strike. It is settled law that where facts well alleged in affidavits in support of a motion for summary judgment are not contradicted by counteraffidavit, the facts so averred must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings, which purport to establish a valid defense and raise bona fide issues of fact. Murphy v. Cory Pump & Supply Co., 47 Ill App2d 382, 197 NE2d 849 (1964); Slone v. Morton, 39 Ill App2d 495, 188 NE2d 493 (1963); St. Louis Fire & Marine Ins. Co. v. Garnier, 24 Ill App2d 408, 164 NE2d 625 (1960).

The Village has adhered to the theory that the expenditures were made in anticipation of, rather than in reliance upon, the first amendatory ordinance. Yet, it has failed to offer any evidence which would tend to refute the contrary allegations of the affidavits in support of the motion for summary judgment. It does not deny that expenditures were, in fact, made.

Points 9,10,13 and 14 of the Chancellor’s order of February 17,1966 specifically found that no material dispute existed relative to the fact that the counterplaintiffs had expended $96,000 in good faith reliance upon and subsequent to the original amendatory ordinance. That conclusion is manifestly borne out by the record. Nor can the Village be heard to suggest the absence of good faith by the counterplaintiffs as a triable issue of fact precluding a summary judgment. The counterplaintiffs were justified in considering the amendatory ordinance to be presumptively valid. As previously discussed, the Village has failed to preserve its right to question the validity of the B-3 special use or to assert that the counterplaintiffs proceeded at their own peril in relying on an invalid ordinance. Moreover, the counterplaintiffs have repeatedly alleged and the Village has never denied, that it was the latter’s affirmative support which initially induced the reliance.

For the above reasons, the judgment is affirmed.

Affirmed.

BURKE and BRYANT, JJ., concur.