author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Defendant in Error, v. Daniel Lofton, Plaintiff in Error.
    Gen. No. 50,088.
    First District, Third Division.
    November 4, 1965.

      Richard M. Rosenberg, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John Gannon, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Daniel Lofton was convicted in a jury trial of the murder of Catherine Hamb and was sentenced to the penitentiary for a minimum of 14 and a maximum of 25 years. He appeals, alleging that the evidence did not prove him guilty beyond a reasonable doubt and that the argument of the prosecutor was prejudicial.

Daniel Lofton was a married man with three children and at the time of the trial was 29 years of age. He had known Catherine Hamb a long time and had sexual relations with her for several years. He admits that on the night of the shooting he was in Catherine Hamb’s apartment and that he fired the gun which inflicted the fatal wound upon her. The conflict in the evidence concerns the shooting itself and the events directly preceding it.

The evidence presented by the State indicated that on the night of April 27, 1962, Lofton arrived at the apartment building in which Catherine Hamb lived some time between 10:30 and a quarter to 11:00. A neighbor who lived close by testified she saw Lofton going toward the basement apartment of her neighbor, Rosa Thomas, and that she saw him take a gun from one pocket and transfer it to another. At about 11:00 p. m. she heard a pistol fired.

Mrs. Thomas testified that she had spent the evening with the deceased and left her around 10:00 p. m. At about 10:45 Lofton came to her door. He told her that he had telephoned Catherine Hamb a half-hour earlier and that she said for him to come over, but she had not let him in when he called on her. He asked Mrs. Thomas if Catherine was at home and she replied that she had seen her earlier. He said: “[S]he may be with Will.” He said that he would go back and see if he could get in. Mrs. Thomas testified that while he was speaking to her he pulled something from his pocket. She could not identify it in the darkness, but she heard a clicking sound and saw him stick the object into his belt.

Mrs. Thomas went to the Hamb apartment the following morning. She found Catherine Hamb with a bullet wound in her head and in serious condition. She called the police and Miss Hamb was taken to a hospital where she remained until May 14th. She was allowed to return home but was unable to care for herself and Mrs. Thomas assisted her with her personal needs. She died on June 5th of an abcess of the brain caused by an infection which developed along the path of the bullet. .

After the shooting the police instituted a search for Lofton but were unable to locate him for more than a month. On May 29th he was arrested in the home of one Maggie Williamson, where he was found hiding in a bedroom closet on the second, floor. He first denied shooting Catherine Hamb but later admitted that he had shot her and that he had thrown the gun into Lake Michigan. He was taken to the lake and he showed the police the place where the gun had been thrown.

Lofton, who testified in his own behalf, was the only witness to recount the purported circumstances of the shooting itself. He admitted carrying on an affair with the deceased for seven or eight years but stated that he had not seen her during the four months prior to the shooting. He and his wife were working at a small tavern which was owned by his mother. He stated that on the evening of April 27th Catherine Hamb called him at the tavern- and told him that she wanted to see him. He left the tavern, drove his wife home, got his pistol from his home and then went on to see Miss Hamb. He said he took his pistol with him because he intended to return to the tavern and would be bringing money home. After he parked his car in front of Miss Hamb’s apartment, he took the gun, which he said was a .38 or a .32 “automatic revolver,” from the seat of the car on which it was lying and placed it in his belt. He rang her bell but was unable to gain entrance and then went to see Rosa Thomas to make inquiries. He said he had the gun in his belt but he denied pulling it out at any time. He went back to the apartment, knocked on the back door, and Catherine admitted him.

She sat down in one of the kitchen chairs and he stood near her, the gun still in his belt. According to Lofton she asked why he had not come to see her of late and he told her that the tavern was occupying all of his time and that he would be unable to see her in the future. As he was saying this he started to sit down and, finding that the gun in his belt made this uncomfortable, took it from his belt intending to put it in his pocket. At that moment Catherine jumped up from her chair and as she did so her left hand struck the gun causing it to discharge. He said he had his finger on the trigger but that he did not pull it. Lofton stated that he became frightened and fled, drove around for some time and then went to the lake front and threw the gun away. He said that he stopped at a phone booth in the area and notified the police of the shooting but did not give his name and did not call a doctor. After this he returned to the tavern.

His explanation for not going to the police was simply that he was frightened and unsure of what he should do. He explained that the “Will” he had mentioned to Mrs. Thomas was another boyfriend of Catherine Hamb’s. He admitted hiding in Maggie Williamson’s apartment and his explanation for being in the closet was that he slept there.

The State introduced rebuttal evidence showing that Lofton had seen the deceased in the months just prior to the shooting. A police officer testified that Lofton never told them that the deceased’s hand struck his gun prior to its going off; what he had told them was that she had raised her hand in front of her face just before she was shot.

It is the defendant’s contention that Catherine Hamb died as the result of an accident and that he should not be held guilty of murder because there is no evidence that he intended to inflict great bodily harm upon her or to kill her. He points out that he and the deceased were friends, that he had no reason for killing her and no motive was proved for his doing so; that his conduct before the shooting is inconsistent with an intention to kill her as is his firing the pistol but once, and that the coroner’s physician, who testified that her left index finger had an old scar an inch and a half long and that the bullet in her head traveled downward and backward, corroborated his version of what occurred. He argues that under the evidence there is a reasonable hypothesis of innocence; that he was the only eyewitness to the shooting and his direct testimony that it was an accident must be accepted over the State’s circumstantial evidence.

A conviction based on circumstantial evidence may be upheld where the proof of circumstances leads on the whole to a satisfactory conclusion and produces a reasonable and moral certainty that the defendant committed the crime as charged. People v. Bernette, 30 Ill2d 359, 197 NE2d 436. It is not necessary that the jury be convinced beyond a reasonable doubt of each link in the chain of proof if the whole convinces of guilt beyond a reasonable doubt. People v. Franklin, 341 Ill 499,173 NE 607.

The jury could have reasonably believed that outside of Rosa Thomas’ apartment Lofton moved his gun from one pocket to another; that.in the doorway of that apartment he again took it out, did something to it which made it click and placed.it in his belt; that in doing this he was readying the weapon with the intent of using it and that he went to Catherine Hamb’s apartment carrying a loaded gun ready to be fired. From Lofton’s own testimony we know that he was holding the gun with his finger on the trigger at the time she was shot, and that after the shot had been fired he fled and disposed of the gun in a place where there was not much chance of its ever being recovered. While flight from the scene of a crime does not, in and of itself, prove guilt, if it is of such a character that it indicates an attempt to avoid capture and thus shows a consciousness of guilt on the part of the defendant, it may be considered with all the other evidence in the case as a factor tending to show guilt. People v. Haygood, 60 Ill App2d 70, 208 NE2d 373; People v. Brown, 27 Ill2d 23, 187 NE2d 728; People v. Weber, 401 Ill 584, 83 NE2d 297. The jury could well infer an intent to avoid capture and a consciousness of guilt from the defendant’s flight and from his remaining in hiding until arrested. His testimony that he anonymously called the police from a lake front phone booth is unsupported and, since his testimony had been discredited in other respects, the jury might have attached little credence to his statement. At any rate, such a call, if made, would not be of much value in mitigating the inference of guilt that could be drawn from his flight and subsequent efforts to remain hidden.

The evidence presented by the State was sufficient, when taken alone, to convict the defendant beyond a reasonable doubt and he is placed in a position where his defense, that the shooting was accidental, must stand or fall on the weight and credibility to be attached to his own testimony. It is never necessary that the defendant in a criminal action take the stand in his own behalf, but when he chooses so to do he must expect to be judged by the same standards of credibility used by the jury in assessing the merit of any other witness. He necessarily runs the risk of being disbelieved or discredited. It has been said that when a defendant undertakes to explain his presence at the scene of a crime while denying any participation in the crime, he must tell a reasonable story or be judged by its improbabilities. People v. Lane, 29 Ill2d 326, 194 NE2d 272; People v. Hansen, 28 Ill2d 322, 192 NE2d 359.

The jury found Lofton’s story unworthy of belief, and, therefore, he was left with no evidence to support a hypothesis of accident. The State’s evidence was strong and convincing and was sufficient to sustain the jury’s conclusion that he was proven guilty beyond a reasonable doubt.

The defendant complains that error was committed by the state’s attorney in his argument to the jury. The assistant state’s attorney who made the first of the two closing arguments was overzealous and mentioned four times the adulterous relationship between the defendant and the deceased. He also made representations of fact not in evidence concerning the operation of an automatic pistol and suggested that those jurors who were familiar with firearms explain the operation to others. Neither argument was objected to when it was made. The defendant now objects that the first was inflammatory and the second prejudicial. His contention about the latter is that it furnished information outside the record from which the jury could infer that he was preparing his pistol for firing at the time Mrs. Thomas heard him make the clicking noise. It is his further contention that from this the jury could also infer that it was his intention to kill the deceased.

A court of review will not consider objections to argument which are made for the first time on appeal unless it appears that the argument is so seriously prejudicial as to prevent a defendant from receiving a fair trial. People v. Morgan, 20 Ill2d 437, 170 NE2d 529; People v. Moore, 9 Ill2d 224, 137 NE2d 246. While both arguments were improper, we do not think they prevented the defendant from receiving a fair trial.

Lofton admitted his sexual relations with Catherine Hamb. This was part of the evidence and as such was subject to comment. While the assistant state’s attorney commented on the relationship too often, he also cautioned the jury that the question they were to decide was not the morality of either Daniel Lofton or Catherine Hamb (who was unmarried and had two children) but was whether Lofton was guilty of murder. The impropriety of his too frequent comments was mitigated by this admonition.

The evidence was not clear whether the gun used by the defendant was a revolver or an automatic. Lofton variously referred to it as a “pistol” and as an “automatic revolver.” Neither the prosecutor nor the attorney for the defendant asked him to describe the weapon but both assumed in their arguments that it was an automatic. There was no evidence of how this type of gun worked and each attorney went beyond the evidence in describing its operation: the state’s attorney told how it was cocked and the defense attorney how it fired. The state’s attorney said: “It is loaded by operating the slide. It pulls back the entire top of the gun and the feed mechanism puts a bullet up into the barrel. . . . The slide mechanism being operated putting the bullet into the barrel is what Rosa Thomas heard. . . . He was arming the pistol for firing. . . .” The defense attorney argued that the firing of but one shot showed that the shooting was an accident. He said: “This is an automatic pistol, mind you. And if he had kept his finger on that trigger, not one but six, seven or eight shells would have exploded.” Whether either statement was correct or inaccurate was a matter of speculation as far as the jury was concerned. While certain information about firearms is common knowledge, the method by which particular guns are loaded and discharged is not. Neither statement should have been made but the defense having made the same mistake as the prosecution cannot complain too effectively. The jury could have concluded on its own that the clicking sound heard by Mrs. Thomas had something to do with readying the gun and the state’s attorney’s statement would have done no more than reinforce that idea.

Whether the weapon was an automatic or a revolver is not too material. The guilt or innocence of the defendant does not depend on ballistics. The defendant admitted shooting the deceased and the question is whether the gun, automatic or revolver, was fired accidentally or purposefully. The defendant could say whatever he liked about how the shooting took place — there was no one to contradict him. But there were other things that showed his guilt such as his taking the gun with him from his car to the Hamb apartment, his transferring it from one position to another while he was on his way, his flight after the shooting, his disposal of the gun, his hiding, his denial of any knowledge of the shooting when first accosted, and his saying nothing, after he did acknowledge the shooting, about the deceased striking the gun with her hand.

The guilt of the defendant was established beyond a reasonable doubt and the errors in argument do not warrant a reversal. The judgment of the Criminal Court will be affirmed.

Affirmed.

SULLIVAN and SCHWARTZ, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Ambrose McMurry, Defendant-Appellant.
    Gen. No. 64-66.
    Second District.
    November 5, 1965.
    Rehearing denied December 8, 1965.

      Robert P. O’Meara and Richard B. Kuseski, both of Waukegan (Richard B. Kuseski, of counsel), for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan (Jack Hoogasian, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the Court.

Defendant-Appellant was indicted on four counts of murder and one count of voluntary manslaughter. The jury returned a verdict finding him guilty on the manslaughter count, but returned no verdict on the murder counts.

Defendant’s principal contention is that the evidence' failed to sustain the charge of voluntary manslaughter. This count of the indictment alleged that the defendant:

“. . . committed the offense of voluntary manslaughter, in that he, acting under a sudden and intense passion, resulting from serious provocation by Henry Louis Clauds, did stab and kill the said Henry Louis Clauds with a butcher knife . . . without lawful justification. . .”

The language of 'this count was substantially in the words of Ill Rev Stats ch 38, sec 9-2 (a) (1), (1963).

We will examine the evidence in the case to see whether it sustains the charge of voluntary manslaughter. The defendant was employed at the Thorngate Country Club in Deerfield, Illinois, as a kitchen helper. He lived at the Club and shared a room with Henry Louis Clauds, the deceased, who was a dishwasher. In the early morning hours of August 19, 1963, the police received a call to go to the club. When they arrived, they found Clauds’ body in the kitchen. The defendant was in the lobby of the club. Defendant gave the police his version of the matter at that time, and later repeated essentially the same story to the State’s Attorney on several occasions. He stated that he had gone out after work the previous evening and had returned to his room about one o’clock in the morning. When he entered the room, Clauds was in bed but still awake. The defendant asked Clauds to pay him the two dollars he owed the defendant, whereupon a brief argument ensued. According to the defendant, Clauds then jumped out of bed and ran at him with a knife. The defendant struck Clauds’ arm, and the knife fell to the floor. They struggled for the knife, and the defendant stabbed Clauds. Clauds then ran from the room and went downstairs. The defendant followed him and remained until the police arrived.

One of the witnesses for the State was Abdul Dahleh, another employee at the club who occupied the room next to the one shared by defendant and Clauds. Dahleh testified that he was awakened the night of the occurrence by the sound of voices in the next room. He then heard the sound of footsteps leaving the room and walking down the hall. Five or six minutes later, he heard the sound of footsteps returning to the room. He heard voices again, whereupon he got out of bed and stepped into the hall. He saw Clauds emerge from the next room and run downstairs.

Another witness for the State was Eugene Garner, who occupied the same cell with the defendant at the Lake County jail while defendant was awaiting trial. Garner testified that the defendant had told him that he had gone downstairs to get the knife, that when he had returned to the room Clauds had called him a name, they argued, and defendant stabbed Clauds while fighting with him.

The defendant testified in his own defense and gave essentially the same version of the occurrence that he had given to the police and State’s Attorney. The medical evidence showed that Clauds had been stabbed once, and that this wound had been fatal.

The foregoing was all of the evidence concerning the facts of the killing. We must agree with the defendant that this evidence is insufficient to establish the crime of voluntary manslaughter. This crime is committed when the defendant kills without lawful justification while “acting under a sudden and intense passion resulting from serious provocation by the individual killed.” Ill Rev Stats ch 38, sec 9-12 (a)(1), (1963). There simply is no evidence in this record that the defendant was acting under an intense passion caused by the kind of provocation contemplated by the statute. This is true on either version of the facts. If the defendant’s own account be credited, he was not reacting in anger but was attempting to defend himself. If the testimony of Abdul Dahleh, together with the testimony of Eugene Garner, could be regarded as sufficient to establish that defendant and Clauds had some words, whereupon defendant walked downstairs to the kitchen, procured a butcher knife, and then returned to the room five or six minutes later and stabbed Clauds during the course of a fight, these facts would establish a murder, not a manslaughter. The only evidence of “provocation” on this theory would be the “voices” overheard by Dahleh, and, of course, it is clear that mere words can never amount to the “provocation” necessary to reduce a killing from murder to manslaughter. People v. Marrow, 403 Ill 69, 75, 85 NE2d 34 (1949) ; People v. Russell, 322 Ill 295, 301, 153 NE 389 (1926). Moreover, the five or six minute interval between the “voices” and defendant’s return to the room with the butcher knife would, in our view, be a period of sufficient length to negate the possibility that the defendant was acting under a “sudden and intense passion” within the meaning of the statute.

On the evidence in this record, the defendant was either guilty of murder or he was not guilty of anything. The case is therefore controlled by such authorities as People v. Newman, 360 Ill 226, 231, 232, 195 NE 645 (1935), where the court stated:

“This court has often announced the rule that where the evidence is such that it admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime.”

See also People v. Smith, 404 Ill 350, 354, 355, 88 NE2d 834 (1949).

The defendant made timely objection to the instruction given the jury on manslaughter, and also to the verdict form which was submitted on the question of manslaughter. In his post-trial motion, defendant asked for a judgment of acquittal on the manslaughter count notwithstanding the verdict of the jury, or, in the alternative, for a new trial. It does not appear that the evidence would be any different on a new trial. This is simply not a manslaughter case on any view of the facts. Therefore, there would be no point in remanding the case for a new trial on that count. The failure of the jury to return any verdict on the murder counts resulted in an acquittal on those counts. People v. Hinkle, 408 Ill 533, 97 NE2d 837 (1951); People v. Schneider, 370 Ill 612, 613, 19 NE2d 748 (1939). Likewise, the finding of guilty on the manslaughter charge amounts to an acquittal on the murder charge. People v. Newman, supra, 360 Ill 226, at 232, 195 NE 645.

Accordingly, the judgment of the lower court will be reversed without remand. Because of the result we have reached, it will not be necessary for us to consider the other assignments of error presented by the defendant.

Reversed.

ABRAHAMSON, P. J. and Davis, J., concur.


author: MR. JUSTICE DAVIS

text:
    Village of Winfield, an Illinois Municipal Corporation, for the Use of Harry W. Kuhn, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Reliance Insurance Company, a Corporation and Vincent Di Vito, Defendants-Appellants.
    Gen. No. 65-10.
    Second District.
    November 5, 1965.
    Rehearing denied December 9, 1965.

      Samuel Morgan, George Brode, and Dent, Hampton & Doten, all of Chicago, for appellants.
    John Demling, of Glen’Ellyn, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The issue before this Court is whether, under the circumstances of this case, the plaintiff, Harry W. Kuhn, Inc. (herein called Kuhn), as a creditor of the defendant, Vincent Di Vito (herein called Di Vito), made an improper application of funds which Di Vito had received from the Village of Winfield (herein called Winfield) and had paid to Kuhn.

On or about October 19,1960, Di Vito was awarded the contract for the construction of a sanitary sewer system in the Village of Winfield. De Vito procured a bond for the payment of all labor and materials furnished by subcontractors, as required by the provisions of Ill Rev Stats 1963, c 29, (Contracts), sec 15. The Standard Accident Insurance Company, which was subsequently merged into The Reliance Insurance Company, was surety on the bond. Kuhn furnished gravel and hauling services, as a subcontractor, on the Winfield project and subsequently brought this action against Di Vito and the surety, under the provisions of Ill Rev Stats 1963, c 29, sec 16, for monies due him for such labor and materials.

During the period beginning January 26, 1961 and ending November 18, 1962, Di Vito paid $11,500 to Kuhn. Defendants urge that these payments were made from funds derived from the Winfield project; that Kuhn wrongfully applied them to antecedent debts of Di Vito and may not, under the doctrine of Alexander Lumber Co. v. Aetna Acc. & Liability Co., 296 Ill 500, 129 NE 371 (1921), recover from Di Vito and the surety for labor and materials furnished in connection with the Winfield project. Kuhn contends, and the trial court in the bench trial found, that applying the first-in, first-out principle, only $3,000 of the payments received by Kuhn were from Winfield funds; and that after crediting this amount to the total indebtedness due from Di Vito on the Winfield project, there remained due to Kuhn thereon, the sum of $8,316.15, for which both Di Vito and the surety were liable. This appeal is from the judgment entered in the trial court in favor of the plaintiff in that amount.

Kuhn made the first delivery on the Winfield job in November of 1960. At that time Di Vito owed Kuhn $4,715.56 on non-Winfield jobs. Between November 1960 and January 26, 1961, Kuhn provided services and materials on the Winfield job totalling $200. On the latter date, when he had a bank balance of $7,382.51, none of which was derived from Winfield sources, Di Vito deposited the sum of $32,980 from the Winfield project and $2,325.33 from other sources and paid Kuhn $2,000. Applying the first-in, first-out principle, none of this $2,000 payment was from Winfield funds.

Thereafter, on February 10 and 14 and March 8, Di Vito deposited $17,120.55 from non-Winfield sources. On March 16, his bank balance was $3,535.17, after which he deposited $48,200 from the Winfield project. On the next day — March 17, 1961, Di Vito paid Kuhn $2,000. Continuing with the first-in, first-out principle, this payment was also from non-Winfield funds.

On March 23 and April 18, Di Vito received $8,285 of non-Winfield funds; on April 24, he received $25,820 from the Winfield project; and on May 10, 1961, when his balance was $15,537.02, Di Vito paid Kuhn the sum of $1,500, which under the first-in, first-out principle, was all from Winfield funds.

Thereafter, on May 15, June 1 and 2, Di Vito deposited a total of $17,100, none of which was Winfield money; on June 16, he deposited $25,400 of Winfield funds, and on June 19, 1961, paid Kuhn $1,500 when his bank balance was then $29,665.45. As only the last $25,400 of this balance was Winfield money, the $1,500 did not come from Winfield sources.

Between June 30 and July 10, 1961, Di Vito deposited $4,706 from sources other than Winfield. On July 17, 1961, he paid Kuhn the sum of $1,500, when his bank balance totalled $9,339.60. As only the last $4,706 of this balance was non-Winfield funds, all of the $1,500 payment was from Winfield funds.

On July 18, 1961, Di Vito deposited $32,000 from the Winfield project. The Di Vito bank statement for the month of August was not produced, but his bank balance as of July 31 was $11,042.03 and the balance as of August 31 was $36,391.73. While we do not know the full extent of deposits and withdrawals during August, we do know that there was a net gain of $25,349.70, all of which was from non-Winfield sources. On September 16, at a time when his bank balance totalled $18,300.74, Di Vito paid Kuhn another $1,000. This payment was derived from the deposits made in August and was not, therefore, from the Winfield funds.

Thereafter, from September through November, substantial amounts were deposited from non-Winfield sources. Nothing was deposited from the Winfield project. The last payment made to Kuhn was on November 18, 1961, in the sum of $2,000. None of this was from Winfield funds. Under the theory advanced by Kuhn, it is clear that of the $11,500 paid by Di Vito to Kuhn, only $3,000 can be traced to Winfield funds. Applying this as a credit on the amount due for the Winfield project, Kuhn had the sum of $8,316.15 remaining due to him.

The application of voluntary payments by the creditor, either with or without' direction from the debtor, and where neither has made an appropriation thereof, the application by the court, as well as the rights of third parties secondarily liable on one. or more of the debts under consideration, has produced a substantial body of law wherein courts have applied diverse rules to the end of dispensing intrinsic justice between the parties. 29 ILP (Payments) secs 21, 22 and 23, pp 492-500; 26 West’s Ill Digest, (Payments) secs 36-47 incl, pp 382-392; Callaghan’s Ill Digest, (Payments) secs 22-28, pp 608-616; 70 CJS (Payments) secs 50-80, pp 255-282; 40 Am Jur (Payments) secs 108-150, pp 790-817.

In Dehner v. Helmbacher Forge & Rolling Mills, 7 Ill App 47 (4th Dist 1880) at page 49 the court succinctly stated the general rule pertaining to the application of payments in these words:

“Where a debtor makes a payment to his creditor, to whom he is indebted on several accounts, he has the right to indicate upon which item the payment shall apply. If he does not do so, the creditor may ordinarily select the item, and if no selection is indicated by either, the law will apply the payment as may seem reasonable and just. And in such cases the application will ordinarily be made upon the item first due. Lowry v. Gear, 32 Ill 382; Bayley v. Wyncoop, 5 Gil 459; Sprague v. Hazenwinkle, 53 Ill 419; Bonnel v. Wieder, 67 Ill 327.”

There are a number of cases in Illinois which hold that where the debtor makes no direction as to the application of a payment, to a creditor holding various claims, and no application is made by the creditor, the law will apply the payment most advantageously to the creditor. Haas Electric & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill 452, 464, 86 NE 248 (1908) ; Barbee v. Morris, 221 Ill 382, 383, 384, 77 NE 589 (1906); Monson v. Meyer, 190 Ill 105, 107, 108, 60 NE 63 (1901). It is also the law in Illinois that the general rules regarding the appropriation- of payments will not be applied when, from the circumstances surrounding the case, it appears that the application of such rules would work an injustice. Alexander Lumber Co. v. Aetna Acc. & Liability Co., 296 Ill 500, 129 NE 371 (1921).

The first-in, first-out principle, is one of the rules of law which determines the ordinary application of voluntary payments or withdrawals when the parties have made no application for themselves and the circumstances of the case do not require a different application. The rule will not be applied where it produces an unjust result. Lowden v. Northwestern Nat. Bank & Trust Co., 84 F2d 847, 851, 852 (CA 8, 1936). Also see: Lincoln Storage Warehouse v. Commissioner of Internal Revenue, 189 F2d 337, 341 (CA 3, 1950); Oregon Cedar Products Co. v. Ramos & Kohler, 148 Cal App2d 679, 307 P2d 447, 449 (1957); Hollywood Wholesale Elec. Co. v. John Backin, Inc., 121 Cal App2d 415, 263 P2d 665, 674 (1953); Anderson v. Laurel Oil & Fertilizer Co., 228 Miss 95, 87 So2d 556, 557 (1956); and CJS (Payments) sec 72(b) pp 276, 277.

In our decision of this case, we are in accord with the pronouncement of Mr. Justice Cardozo in the case of Carson et al. v. Federal Reserve Bank of N. Y., 254 NY 218, 172 NE 475, 480, wherein he stated:

“We have no thought to suggest that this or any other formula as to the application of payments to the items of an account is of such inflexible validity as to admit of no exceptions. Whatever rule is framed will be subordinated to the broader principle that an application, usually appropriate, may be varied by the Court when variance is necessary to promote the ends of justice.”

In the case at bar, Kuhn urged the application of the first-in, first-out principle. The defendants have not replied to this contention other than to suggest that during this period in which payments were made to Kuhn there were sums deposited from sources other than Winfield, which funds were only a small fraction of the total deposits and which were used to pay bills other than those of Kuhn. Neither contention is supported by the evidence. There is nothing in the record to indicate to whom, other than Kuhn, the non-Winfield funds were paid or the purpose of such payments. Further, while we are unable to ascertain the full extent of the August 1961 deposits, it is apparent that at least $163,764 of the deposits made during this period, or about 50% of Di Vito’s total deposits, were from non-Winfield sources. This is hardly an insignificant portion thereof.

Di Vito and the surety contend that the case of Alexander Lumber 'Co. v. Aetna Acc. & Liability Co., 296 Ill 500, 129 NE 371 (1921) is controlling and decisive in their favor. The Alexander case, at page 503, recognizes at the outset that the “ . . . general rule as to the application of payments is that the debtor may specify the account to which he desires application made, and if he does not do so the application which is made by the creditor is binding not only upon the debtor but upon his surety . . . .” The Alexander case further holds that under the provisions of that bond, similar in import and effect to the one before this court, the surety had a special equity in the funds arising from the construction project and that a privity of the contract existed between the surety and the obligee.

The ultimate holding in the Alexander case was, however, based upon the court’s specific affirmance of the finding of the master to whom the case had been referred, that payments made to the subcontractor “from the funds arising from the chemistry building were sufficient in amount to discharge the debt due it for materials furnished for said building had such payments been so applied.” (p 508.) Such is not the finding in the case at bar. In the Alexander case, the court refused to apply the general rule regarding the application of payments: “ . . . when, from all the surrounding circumstances, to do so would work an injustice.” (p 506.) The court then concluded at page 506, “ . . . the surety . . . has a right to have payments to the material-man from funds derived from the building covered by the surety contract applied to the account for materials furnished for said building.”

The contention advanced by Kuhn and the conclusion we reach is not inconsistent with the holding or rationale of the Alexander case. Those funds which could be traced to the Winfield project, were, in fact applied to that account. It is under this theory that $3,000 of the payments received by Kuhn were applied to the Winfield account. In view of the circumstances of this case, the Alexander case may neither be construed to prohibit Kuhn from applying non-Winfield funds received to antecedent debts nor to hinder Di Vito from directing such application.

Harry W. Kuhn testified that in November of 1961, at Kuhn’s office, in the presence of his bookkeeper and himself, Vincent Di Vito, while making a payment on account, stated: “This will straighten it up, everything but Winfield, and you’ll have to wait for Winfield until we get the money because we have a problem — we have trouble on the job.” This testimony was not denied by Di Vito.

The case of United States for the Use and Benefit of Crane Co. v. Johnson, Smathers & Rollins, 67 F2d 121 (CA 4, 1933), also cited by defendants, is not in conflict with the decision reached here. In that case the court held that it was improper for the materialman to apply to one account, funds which were established to have come from another account and the source of which were known to the materialman; that it was incumbent upon the materialman to establish that the surety had not in fact been harmed by the misapplication of funds; and that the materialman had failed to do so. The issues present in the Johnson case are not at hand in the case at bar. The funds here found to have come from the Winfield project were set off, in their entirety, against the amounts due Kuhn for labor and material furnished thereto.

Under the circumstances of this case, we believe that the judgment of the trial court was proper and fair. Here the Alexander case rule was inapplicable except as to the $3000 of the payments received by Kuhn and applied by him to the Winfield account. Such rule is flexible in its application, dependent upon the facts of the case. The rules of law pertaining to the application of payments are not an end in themselves, but rather are a means to an end — the promotion of intrinsic justice. The rules here applied have accomplished that result. Accordingly, the judgment of the trial court should be affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Defendant in Error, v. John D. Shaw, Plaintiff in Error.
    Gen. No. 10,647.
    Fourth District.
    November 8, 1965.

      J. Waldo Ackerman, of Springfield, for plaintiff in error.
    Basil G. Greanias, State’s Attorney, of Decatur, for defendant in error.
   SMITH, P. J.

Defendant prosecutes this writ of error from a judgment of the circuit court of Macon County finding him guilty of murder and imposing a life sentence.

Following indictment, the State’s Attorney filed suggestion of insanity and on a trial of this issue, the jury found the defendant sane. Defendant was rearraigned, entered a plea of not guilty, waived a trial by jury and proceeded to trial before the court. During all of the proceedings in the trial court, defendant was represented by lawyers of his own choice and of recognized trial expertise.

In the insanity hearing, the court instructed the jury that they might find the defendant insane if they found he does not understand the nature of the charge against him and that he is unable to cooperate with his lawyers in a proper defense of the case. He further instructed the jury they could find the defendant sane if they found that he fully understands the nature of the charge and is able to cooperate with counsel in a proper defense of this case. People v. Munroe, 15 Ill2d 91, 154 NE2d 225, is cited as condemning the use of the conjunctive and. In that case, insanity at the time of the crime was the prime defense; the evidence was in substantial conflict; other instructional error intervened, and the necessity for accurate instructions was vital. An instruction that insanity as a defense required the defendant lack not only the ability to distinguish between right and wrong, but also must lack the ability to choose between.them was held error. The court observed that the existence of either precluded conviction. Under our new Code of Criminal Procedure, Ill Rev Stats 1963, c 38, § 104-1, a person charged with an offense is incompetent if he is unable to understand the nature of the proceedings against him or to assist in his defense. This statute was not in effect at the time of the trial and we see no cogent reason for its retroactive application to this case. We would further observe that the evidence on the sanity hearing was not preserved and we thus find it difficult to determine whether the instruction, if erroneous, could possibly have affected the verdict. We would further note that the jury found the defendant sane and were instructed that they could do this if he fully understood the nature of the charge and was able to cooperate with his counsel. We can only presume that they found him qualified on both counts. This, together with his conduct during the principal trial begun three days later, demonstrates that the finding of sanity was not in error.

Defendant next complains that the three counts of the indictment charged the murder of Virginia Eades in the County of Macon and State of Illinois on December 17, 1960, without identifying the time or place further. It is suggested that he has the constitutional right to know the nature of the accusation against him so that he may adequately prepare his defense and plead the judgment in bar of a subsequent prosecution for the same offense. We would first observe that there was no statute in effect either at the time of the offense or at the time of the trial requiring further particularity as to time and place. This issue is raised for the first time in this court and is thus readily distinguished from People v. Williams, 30 Ill2d 125, 196 NE2d 483, where a motion to quash was filed in the trial court. We are a court of review and are not, as is sometimes stated with tongue-in-cheek, a court of original error. The alleged error is not before us for review. People v. Starr, 50 Ill App2d 399, 200 NE2d 118. The suggestion of double jeopardy is, we think, feigned rather than real. It is as unlikely that two Virginia Eades came to death by violent means in Macon County on December 17, 1960, as it is to find two needles of the same size in the same haystack. This contention is without merit.

It is next suggested that only a docket entry shows a waiver of trial by jury and it must be assumed that the waiver was not understandingly made. This is effectively refuted by the supplemental record. Defendant stated that his lawyers had advised him of his right to trial by jury; that he understood he had that right; the court then fully explained what the responsibilities of the jury would be, and that the same issues could be submitted to the court without a jury. The defendant was then handed a jury waiver which, if signed, the court stated, “I will consider that you are saying: T do not want a jury trial.’ ” The waiver was then properly and, we think, knowingly signed.

It was stipulated that Virginia Eades came to her death on December 17, 1960, as a result of shooting by a shotgun. There were no eyewitnesses. The conviction rests on circumstantial evidence and statement attributed to the defendant. The defendant contends that the circumstances fail to show beyond a reasonable doubt that he did the shooting, but even if he did, he was too drunk to form an intent or have any malice and cannot, therefore, be guilty of murder. It seems clear that intoxication will negative the essential elements of general intent and malice in a murder case only where it is so extreme as to suspend the powers and preclude mental action on the defendant’s part. People v. Hare, 25 Ill2d 321, 185 NE2d 178; People v. Cochran, 313 Ill 508, 145 NE 207.

The principals in this tragedy were the defendant, a married man whose divorce was apparently in process; Moxie, a girl friend of some four or five years standing; and Virginia Eades, the decedent for whom he had deserted Moxie for a period of time. He apparently left Virginia and returned to Moxie about November 20,1960. He had paid Virginia $40 per week so she wouldn’t have to work. Moxie loaned him money to buy a new station wagon and held his note for $3,800. On December 16, defendant had spent most of the day with her; cleaned his guns which he kept at her apartment; left to look over his mail, and returned to depart with her to buy a Christmas tree. Apparently they visited Rambo’s Tavern between 6 and 7 p. m., had a drink of vodka and squirt and a fish sandwich, although neither defendant nor Moxie remember this. They then began to drink and apparently between them drank approximately two quarts of vodka or more with a grapefruit juice mix. Moxie either passed out or went to sleep on the floor. Defendant drank 10-12 drinks of 4-5 ounces each and remembers nothing of the evening’s occurrences after 8:30 or 9:00 p. m. The evidence further shows that prior to this time they had discussed Virginia. Defendant testified that something was wrong with Moxie and, after a few drinks, she said some female had called her stating that defendant and Virginia were mixed up again. He said it was a lie. Moxie also reminded him that he had said Virginia had called his father and said she must see the defendant.

The curtain rings down until sometime near 1:00 a. m. when Moxie awakened. Defendant was walking around and suggested they go get something to eat. They drove to Russ and Grace’s where Virginia worked, saw her leaving in her car and waved to her. They did not stop but returned to Moxie’s apartment where defendant told Moxie to get out and he drove away. Moxie testified there was nothing unusual about defendant’s driving or his speech at this time. Moxie noticed the mess in the sink and the amount of liquor consumed. She became worried, called defendant’s father and Virginia’s mother. Virginia’s mother verified these calls; one inquiring for defendant and one for Virginia. Defendant was gone for about an hour, returned to Moxie’s and said: “I blew Virginia’s brains out” and fell head first into a chair. She couldn’t arouse him — she got him undressed and to bed. He reenters the scene about 10:00 a. m. the next morning.

Virginia Eades was next seen at Greider’s Cafe about 1:15 a. m. About this time two police officers saw defendant in. his car near the transfer house and headed toward Greiders. He ran a stop sign and almost ran into one officer’s car. The officer drove along side of him, showed his badge and told him he had run a stop sign and defendant replied, “If I did, I’m sorry.” Neither officer noticed anything unusual with his manner, conduct, driving, or otherwise. Around 1:30 and after the second call from Moxie, Virginia’s mother heard two shots as did one of her neighbors. Her mother found the body about 7:00 a. m. the next morning.

Moxie’s version of the next morning is substantially as follows: Defendant, already dressed, awakened her and told her to get dressed as “they will be coming for me.” She received a phone call. When completed, she put her hand on defendant’s head and said: “Was she worth it?” He said: “No, she wasn’t.” Defendant called his uncle, a lawyer, and asked him to “come up to 147 East Macon as soon as you can. I killed Virginia.” Moxie walked out of the kitchen and saw the shotgun setting near the T. V. with two shells on the chair. He kissed her goodbye and said: “This will probably be the last time I will kiss you for a long time.”

Defendant left and went to his uncle’s house where Red Hagen picked him up. Defendant said “I’m your man” or something to that effect. Defendant told Hagen where the gun was and Hagen picked it up at Moxie’s.

Police officers picked up one shotgun shell on the first step of the porch about four feet from the center of the body and another in a bush about 12 feet away. Part of the decedent’s head was shot away and an officer testified: “I saw parts of the body lying different places around the scene. A lot of the insides of the body were lying here and there on the porch, down the steps, in the driveway and in the street. There was much blood and tissue all over the scene.”

A chemist from the State laboratory testified that there was human blood and flesh on the left shoulder area on the jacket worn by the defendant. He couldn’t tell how long they had been there. He further testified that he could not say that the shells had been fired from the same firearm, but that they were ejected by the same firearm. He stated: “It is scientifically impossible for any two extraction marks to be the same on a gun.” He then testified that the two shells found at the scene had been extracted from defendant’s gun.

Defendant testified in his own behalf and couldn’t recall some of the statements attributed to him by Moxie on the morning of the 17th. He did call his uncle — he went to his uncle’s house. He did call Red Hagen and he did say he must have been drunk. He disavowed any dislike for Virginia, any reason for shooting her and, what is more, states he does not believe that he did it.

The trial court heard and saw the witnesses and for the record carefully reviewed their evidence. He correctly concluded that the evidence of the shotgun shells and the blood on the jacket was uncontradicted and that such circumstances preclude the view that the defendant was not the active agent in Virginia’s death. Defendant’s statements and conduct on the following morning as related by Moxie, if believed, do not mesh with the reactions of an innocent man. Neither his conduct nor his manner suggested to Moxie, by her own testimony, that he was intoxicated. She rode with him. It was the empty bottles that made her wonder. He went to the place where Virginia worked — he drove his car and his driving caused only a lifting of eyebrows on the part of the police officers. He went toward Greider’s Cafe where Virginia frequently stopped after work. He found her' home in the 1300 block West Macon without apparent difficulty and returned to Moxie in the 200 block East Macon. We cannot say that his powers of reason were so beclouded as to negative malice. The trial court’s determination that the evidence establishes defendant’s guilt beyond a reasonable doubt was well founded.

It is next urged that we should reduce the degree pf the offense or the penalty under the power recently given us by Ill Rev Stats 1963, c 38, § 121-9. We see nothing in this record to justify the exercise of that authority. The elements of a lesser homicide are wholly lacking. The decedent was sought out and killed. No lawful justification or excuse appears. The use of two shells at short range certainly demonstrated an intention to kill or to do great bodily harm. It hardly appears to have been unintentional or accidental. The penalty was imposed by a trial judge of long experience in such matters with the full opportunity to appraise the circumstances and the defendant at first hand. The taking of a human life under4 the circumstances shown here should not be lightly treated. We do not think the sentence offends any principle of proper justice.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    Vermilion County Good Government League, Inc., a Corporation, Carl Hickman, Jr., et al., Plaintiffs-Appellants, v. Keith J. Smith, as County Clerk of Vermilion County, Illinois, and Board of Education, School District No. 118, Vermilion County, Illinois, Defendants-Appellees.
    Gen. No. 10,654.
    Fourth District.
    November 8, 1965.

      Unger & Litak, of Danville (John Unger, of counsel), for appellants.
    John P. O’Rourke, State’s Attorney, and John M. Bookwalter & Myer, all of Danville, for Keith J. Smith, appellee. Wendell W. Wright, Wright and Young, of Danville, for Board of Education of School Dist. No. 118, Vermilion County, appellee.
   SMITH, P. J.

Plaintiffs filed their suit against the county clerk of Vermilion County seeking a declaratory judgment that a levy of Danville Consolidated School District No. 118 for junior college educational and building purposes was illegal and void and asked that he be enjoined from extending the tax. The Board of Education obtained leave to intervene in the suit and both the Board and the county clerk filed their separate motions to dismiss. These motions were allowed and the complaint dismissed for the reason that declaratory judgment and injunction were not appropriate remedies under the allegations of the complaint. Plaintiffs elected to stand on their complaint, a judgment in bar of the action was entered and this appeal followed. On appeal to the Supreme Court, that Court found that a procedural question rather than revenue was involved and, on its own motion, transferred the case to us for decision.

The spawning ground of this suit is Ill Rev Stats 1963, c 122, § 13-17.1. By its authority, the Board of Education passed a resolution on May 18, 1964, to levy an additional annual tax of not to exceed .175 % rate for educational purposes and not to exceed .075% for building purposes for the maintenance of a junior college then in existence. As required by the statute, the Board published a notice to the voters that a petition might be filed within 30 days requesting a referendum on the proposed increased rates. On June 16, a petition was filed with the secretary of the Board allegedly signed by more than 10% of the voters in the district. On July 15, in an open meeting, the Board found the petition insufficient because unsupported by the jurat of those circulating the petition and voted to certify the levies to the county clerk without a referendum. On September 28, 1964, tax levies of .05 % for educational purposes and .075% for building purposes were certified by the Board to the county clerk for the extension of taxes. On November 18, this suit was filed and on November 30, the Board became a party by virtue of its intervening petition.

The motions to dismiss filed by the Board and the clerk alleged a failure to state a cause of action, laches, adequate remedy at law and that a class suit would not lie. The memorandum of the trial judge recognized these several issues, but grounded his dismissal on the nonavailability of declaratory judgment and injunction under the circumstances here existing. The complaint alleged the filing of the petition, the duty of the Board to call a special election, its duty not to certify the levy without calling an election and that the Board did “improperly and illegally determine that said petition was insufficient because unsupported by the jurat of the circulators and voted to certify said levies to the county clerk without submission to the voters as required by law . . . .” The petitioners contend that the requirement of the jurat is a Board-made rule devoid of statutory foundation and thus voids the levy and the resultant tax.

The statutory requirement is that “if within 30 days after such publication of such notice a petition is filed with the secretary of the school board signed by not less than 10% of the voters of the district” requesting a referendum the Board shall not certify the levy to the county clerk without an approving special'election. The statute is silent as to the form, content and dignity of the petition. The record does not contain the petition and we do not have before us what the Board had before it. It seems clear from the pleadings that the jurats of the circulators were wholly lacking.

We deal with a statute which provides for what is sometimes referred to as a “back door referendum”, i. e. a power is granted subject to the control of the electorate through election initiated by a petition conforming to the statutory requirements. Since the legislature may authorize school, districts to increase rates without any referendum whatsoever, such a referendum is a matter of legislative grace rather than of right. People ex rel. Garwood v. New York Cent. R. Co., 21 Ill2d 315, 172 NE2d 357. It seems clear to us that the agency to whom the petition is directed must act in an administrative rather than a judicial capacity to determine whether the petition conforms to the statute. In discussing a somewhat analogous situation involving a county superintendent of schools it has been held that if a petition appears on its face to conform to the statute, it is the mandatory duty of the superintendent to call an election. People v. Birdsong, 398 Ill 455, 76 NE2d 185. Conversely, if the petition shows on its face that it did not satisfy the requirements of the statute, he should refuse to call the election. Frye v. Hunt, 365 Ill 32, 5 NE2d 398. We can perceive no reason and none has been suggested why a like authority and a like duty did not rest with the Danville Board of Education. Since a referendum under the statute is a matter of grace rather than of right, the duty to call a special election and to abide its results before filing the levy can be fathered only by a valid petition. It imposes no hardship upon petitioners to require them to affirmatively show a valid petition. Without it, the Board is powerless to call an election. Without it, an election so called is void. Trustees of Schools v. Hoyt, 311 Ill 532, 143 NE 59.

It is thus clear that the birthplace of the duty to call an election is a valid petition and that the Board is the statutory agency initially responsible for a determination of its sufficiency. A petition “signed by not less than 10% of the voters of the district” is the legislative requisite for a valid petition. Its validity must appear from the record. It would seem that the jurisdictional pre-requisite might well be established by an appropriate jurat of the circulators. In the alternative, the petition itself, by appropriate allegations, might well establish them. “. . . A petition setting forth that at least fifty persons signing it were legal voters residing in the proposed territory was necessary to authorize the county superintendent to order the election. The presentation of a petition making this allegation was a jurisdictional fact and without it all proceedings of the superintendent were void. Carrico v. People, 123 Ill 198, 14 NE 66.” Frye v. Hunt, 365 Ill 32, 5 NE2d 398, 401. Here the jurat was wholly lacking. What the petition itself alleged or contained is not before us. It is apparent that we deal not with a total want of authority in the Board to levy the rates or to act, but its exercise of that authority.

An action for declaratory judgment is neither legal nor equitable but is sui generis and the forum depends on the issues involved and the relief sought. ILP Declaratory Judgments § 4. The relief here sought was to enjoin the extension of a tax. Equity has historically been reluctant to turn to equitable relief in tax matters and it is only under special circumstances that it will do so. Hodge v. Glaze, 22 Ill2d 294, 297, 174 NE2d 873, 874, states the rule thus:

“. . . The rule is that unless there exists special grounds for equitable jurisdiction, such as fraud, irreparable injury, or the absence of an adequate remedy at law, equity will act to enjoin the collection of a tax only if the tax is without legal basis, is levied by officials without authority to act, or is laid upon exempt property. (Lakefront Realty Corp. v. Lorenz, 19 Illd 415; Owens-Illinois Glass Co. v. McKibbin, 385 Ill 245; Ames v. Schlaeger, 386 Ill 160.) . . .”

The trial court correctly observed that the tax levied was specifically authorized by § 13-17.1 of the School Code and was levied and certified by the proper taxing body. There was no want of authority. In Hodge, the complaint was that the Sangamon County board of review did not comply with the applicable statute in establishing the multipliers for Woodside Township. In disposing of the matter, the Supreme Court said at page 298: “. . . Thus, the issue here concerns, not the lack of authority, but the exercise of that authority by the duly constituted taxing officials, and in our opinion is not sufficient to justify equitable intervention. . . .” This, in our judgment, is controlling here. In view of this holding, it is not necessary to consider the question of mootness or the propriety of amendment in this Court.

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

Affirmed.

TEAPP and CEA VEN, JJ., concur.


author: CRAVEN, J.

text:
    Robert H. Goldman, et al., as Members of the Board of Education of Springfield School District No. 186, Sangamon County, Plaintiffs-Appellants, v. Charles N. Zimmer, Defendant-Appellee.
    Gen. No. 10,633.
    Fourth District.
    November 8, 1965.
    Rehearing denied December 16, 1965.

      Richard R. Grummon, of Springfield, for appellants.
    Brown, Hay & Stephens, of Springfield (Paul W. Gordon, Jr., and Edward J. Cunningham, of counsel), for appellee.
   CRAVEN, J.

This is an appeal from an order of the circuit court of Sangamon County granting the defendant’s post-trial motion for arrest of judgment and dismissing a petition for condemnation. The issue here for determination is the validity of the purported exercise of the power of eminent domain by the plaintiff board of education.

The petition for condemnation was filed in May of 1963. In it was the allegation that the plaintiffs were the members of the Board of Education of Springfield School District No. 186, that the same was a special charter school district, that there existed statutory authority for the exercise of the power of eminent domain, and the petition set forth the land sought to be taken. The intended use was stated to be for “a school site and for school purposes including but not limited to warehouse and administrative facilities.” The failure of the parties to agree on a price was alleged, as was defendant’s ownership of the land sought.

Thereafter, in July of 1963, a motion to dismiss the petition was filed which, in substance, asserted that the intended use was not a use specified in sec 32-4.13 of art 32 of the School Code of 1961 (Ill Rev Stats 1961, c 122, § 32-4.13), i. e., not as a site for a school building or an addition to a school building, nor as a playground for school children.

Thereafter plaintiffs amended the petition to add the allegation that the land was to be taken “ ‘for a site for a school building.’ ” The motion to dismiss was then denied.

In November of 1963, the defendant filed another motion to dismiss, asserting that no bona fide attempt had been made to agree on a price, that the land was not necessary for the purpose specified, and that the amount sought to be taken was excessive. It was further urged in the motion that part of the premises was to be used for parking facilities, a use alleged to be beyond the authority of the school board. The motion also asserted that there had been no official action taken by the plaintiffs to authorize the condemnation proceeding.

Prior to a hearing on this motion, the defendant took the depositions of two of the plaintiffs, the school superintendent and the assistant school superintendent in charge of buildings and maintenance. These depositions were received in evidence at the hearing on the second motion to dismiss over the objections of the plaintiffs.

In January of 1964, the motion to dismiss was denied. The defendant thereupon made demand for a copy of the resolution authorizing the condemnation proceeding, and likewise made demand for a copy of the plans and specifications of the building proposed to be erected on the premises. In response to this demand the plaintiffs filed a certified copy of a resolution of the board of education, which said resolution recited that the board, at an executive conference, had authorized and directed its attorney to proceed with the condemnation proceedings, that the board was informed of the progress of said proceedings by the attorney, and further contained this language:

“NOW THEREFORE BE IT RESOLVED by the Board of Education of Springfield School District No. 186, Sangamon County, Illinois, that the action of its attorney, in compliance with the oral instructions, in filing the condemnation proceeding against Charles N. Zimmer for the real estate described above and more specifically described in said legal proceedings, be and the same is hereby fully ratified and accepted officially in the same manner and to the same extent as if this technicality had been complied with prior to the filing of said proceeding.”

No plans or specifications were filed, the answer to the demand for the same being that there were none.

Another motion to dismiss was then filed by the defendant resulting in a further amendment to the complaint by the plaintiffs, as a result of which this motion was also denied.

The defendant then filed a cross-petition for a determination of damages to land not taken. The cause proceeded to trial and the jury returned a verdict fixing damages on the cross-petition at $2,000 and compensation for the land taken at $8,000. Judgment was entered on this verdict.

The defendant, by his post-trial motion, reasserted the matters presented by the earlier motions, and the post-trial motion was allowed, the judgment vacated and the action dismissed.

This appeal is concerned only with the question of the validity of the petition as amended, no appeal having been filed by either party from the jury’s findings on the question of damages.

The depositions that were admitted into evidence established that the school board, in an “executive session,” authorized its attorney to negotiate with the defendant for the purchase of the land now sought to be taken by eminent domain. Appraisals were obtained, an offer of $2,000 per acre was made and refused. The defendant countered with an offer to sell at $46,800, or about $12,000 per acre. Subsequently the petition for condemnation was authorized, again at an “executive” or nonpublic session. The authorization to negotiate and the authority to institute the instant proceedings were informally given, there were no minutes of the proceeding and no formal motions or resolutions were adopted.

School boards, while not held to the highest decree of accuracy or formality in the discharge of their duties, must, nevertheless, exercise power in the manner provided by statute. Carter Oil Co. v. Liggett, 371 Ill 482, 21 NE2d 569 (1939). Lingle v. Slifer, 8 Ill App2d 489, 131 NE2d 822 (1956). Casual meetings of members purporting to transact official business have no validity. Shortal v. School Directors of Dist. 27, 255 Ill App 89 (1929).

Sec 42 of ch 102, Ill Rev Stats 1961, which provides, generally, that all official meetings of public bodies shall be public, does except school board meetings where the acquisition or sale of property, among other things, is being considered. Plaintiffs suggest this statute validates the informality of their proceeding. We do not agree.

This statute, so far as relevant, permits discussion of land acquisition in closed meetings. It does not eliminate the necessity for formal action nor does it contemplate that records of the closed meetings are not to be maintained.

As stated in ILP Schools sec 67, at 78:

“A record is required to be kept of the essential steps in the exercise by the board of its powers; every essential proceeding in the course of its exercise of its powers must appear in some written and permanent form in the records of the body authorized to act upon them. Proper minutes and records should be kept by a school board to the end that the persons who are carrying the tax load may make reference thereto and future boards may be advised of the manner of disposition of questions which have arisen. The record of the board imports verity and constitutes the only lawful evidence of action taken.” (Footnotes omitted.)

It is apparent, therefore, that the “executive session” authorization to institute this proceeding was not an effective exercise of the power of the board to commence condemnation. The original petition was, thus, insufficient.

The deficiencies in the petition were ultimately cured, however, through the labored process of motion and amendment. The fact of the adoption of the formal resolution, filed in response to the demand therefor, ultimately established, before the trial of the issue, that the board of education, by appropriate resolution, authorized this proceeding.

It has been recognized that a board may, under proper circumstances, amend its records to correctly reflect the facts as the same existed. Lingle v. Slifer, supra. See also People ex rel. Stewart v. Chicago, M. & St. P. Ry. Co., 326 Ill 179, 157 NE 200 (1927). Effectively, by the amendment process and by the introduction of the depositions, all of the necessary conditions precedent to the institution of the proceeding were set forth in the pleadings, with the possible exception that there had not been a demonstration that the parties were unable to agree on compensation. Here it was evident from the contest and the acts of the parties that the parties could not agree as to compensation to be paid for the land sought to be condemned. The divergent views of the parties as to value were such that all could reasonably conclude that agreement was impossible. Chicago, N. S. & M. R. Co. v. Chicago Title & Trust Co., 328 Ill 610, 160 NE 226 (1928).

The other issues raised in the various motions and reasserted in the post-trial motion have often been adjudicated in this State. It is well-established that the determination to use the power of eminent domain for specified purposes is essentially legislative, and it is but for the court to decide whether the statutory conditions authorizing the exercise of the power exist. Bierbaum v. Smith, 317 Ill 147, 147 NE 796 (1925). The quantity of land sought to be taken is likewise not subject to judicial interference in the absence of a showing of a clear abuse of the legislative discretion.

As to the final question remaining — whether the intended use was one permitted by the School Code — we think there is little controversy. Two sections of the code grant to the plaintiff board the power of eminent domain: Sec 32-4.13 of ch 122, Ill Rev Stats 1961, authorizes condemnation for a site for a school building; and sec 16-6 of the same chapter authorizes the acquisition of land “as a site for a building or for any education purpose.” The allegation of the petition is well within these statutory limitations and the defendant demonstrated the use to be within these limitations.

The action of the circuit court in granting the post-trial motion was error. The order appealed from must, therefore, be reversed and the cause remanded to the circuit court of Sangamon County with directions to deny the post-trial motion and to reinstate the judgment.

Judgment reversed and remanded, with directions.

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


author: SMITH, P. J. CRAVEN; J.,

text:
    People of the State of Illinois, Plaintiff-Defendant in Error, v. Lawrence Phillip Dean Pygott, Sr., Defendant-Plaintiff in Error.
    Gen. No. 10,578.
    Fourth District.
    November 9, 1965.

      W. A. Sappington, of Decatur, for plaintiff in error.
    Basil G. Greanias, State’s Attorney of Decatur, for defendant in error.
   SMITH, P. J.

Defendant appeals front an order committing him to the custody of the Director of Public Safety as a sexually dangerous person. We summarize the proceedings complained of.

On November 4, 1963, defendant was arraigned on an information charging- the taking of indecent liberties with a minor child. A copy of an alleged confession was served on him and the Public Defender appointed to represent him. So that they might confer, the arraignment was continued. At the continued hearing, six weeks later, December 23, indictment was waived, and through his counsel, defendant proffered a plea of guilty. Such proffer was resisted by the Assistant State’s Attorney, who said that his office had letters from two psychiatrists indicating that defendant was a sexually dangerous person, and asked that the matter be continued to determine the advisability of filing a petition to “have this person declared an S.D.P.” The precise problem, so it appears, was whether, from the point of view of treatment, defendant would be better off under a commitment as a sexually dangerous person, rather than on a conviction of the charges stated in the information. Defendant’s counsel retorted:

“[T] hat the defendant has made confession and states that he is guilty of the-crime as charged in Count 1 of the indictment, and that it is his desire to plead and it is my understanding that since he would not be asking for probation but would be sentenced, that going through the diagnostic portion of his incarceration early in the incarceration, that if psychiatric help is needed it would be furnished to him, and I take the viewpoint that by his pleading at this time here he is able to cooperate with counsel and knows right from wrong that it is much better that he do it in this way and while he is serving his time and paying his debt to society he would be receiving the psychiatric treatment rather than have him committed under a commitment and have him come back at a time later than this and then have to dispose of his plea.”

The court wondered out loud whether defendant had the right to insist upon entering a plea, and continued the matter to find out, entertaining the views of both counsel in the meantime. At the adjourned hearing on December 27, the problem became academic, because a plea of not guilty was entered, followed by the filing of a petition to have defendant declared a sexually dangerous person. The court thereupon appointed two psychiatrists to make examination and to file their reports. Next, a stipulation was filed which we will detail later on. It was signed by the State’s Attorney and defendant’s counsel. The court then inquired if the record could show the reports of the two psychiatrists on file, to which counsel answered: “The record may so show,” at the same time acknowledging receipt. “[T]he next matter to be touched upon,” the Assistant State’s Attorney said, “would be an admission or denial of the material allegations of the petition by the defendant.” These were therefore gone into. Paragraph 1 related to defendant’s conviction for contributing to the delinquency of a minor in 1951; Paragraph 2, a conviction for the same in 1954; Paragraph B, the subject matter of Count 1 of the information — indecent liberties. Each of these paragraphs was read to defendant by his counsel, and he acknowledged their correctness, changing one date, and qualifying his admission as to Paragraph 3, by stating that he didn’t know what he was. doing, up to a point, and after that, “I didn’t continue.” Apropos of the fourth and concluding paragraph, contributing to the delinquency of a child in 1962, counsel advised that they would make no statement. Defendant, upon inquiry as to his “feeling about this matter,” advised the court that the Paragraph 3 act was committed while he was more or less asleep, but as soon as he came to, he quit. About a year later, he continued, he told his wife about the incident; that she left him; that he thereupon went to the police station for help, where, “They asked me questions. I gave them answers.”

The questioning at the police station, as might be surmised, was transcribed and turned up as the “confession,” and now became people’s exhibit No. 1. Counsel stipulated that it was voluntary, and that he had “no objections” to its admission into evidence. Defendant was advised as to his right to a jury trial, and the court inquired specifically: “Do you want a jury trial in this matter, Mr. Pygott?,” to which defendant responded, “No, Sir,” with counsel adding, “Defendant waives his right to a trial by jury in this cause.” By letter, the State’s Attorney obligated himself not to prosecute defendant, “[I]f and when the defendant is declared cured by psychiatrists,” and such became a part of the record, a result which the statute itself requires. Ill Rev Stats 1963, c 38, ¶ 105.9.

The stipulation, previously alluded to, provided the psychiatric reports made to the State’s Attorney’s office prior to the filing of the petition, “may be filed in this cause and stand in lieu of the psychiatric examination and report in writing thereof as required by the aforesaid order of this Court”; that if the psychiatrists were called as witnesses, they would testify as to the same matters as set forth in the report; that such could be submitted as evidence; and that they would further testify:

“[T]hat it is their opinion, based upon a reasonable degree of medical certainty that the said [defendant] is a person suffering from a mental disorder, which mental disorder has existed for a period of not less than one year immediately prior to the filing on December 27, 1968, of the aforesaid petition to have said [defendant] declared a sexually dangerous person and that said mental disorder is coupled with criminal propensities to the commission of sex offenses and that the said [defendant] has demonstrated propensities towards acts of sexual molestation of children and is, therefore, a sexually dangerous person.”

This is almost a verbatim recital of the statutory definition of sexually dangerous, and one might wonder after so stipulating, what a defendant might urge for reversal of an order finding him to be just that.

His first contention is that the statute was not strictly adhered to, pointing out that the examination and reports, predated the filing of the petition. This is, of course, true. Section 4 of the Act (§ 105-4, c 38, Ill Rev Stats 1963) reads:

“After the filing of the petition, the court shall appoint two qualified psychiatrists to make a personal examination of such alleged sexually dangerous person, to ascertain whether such person is sexually dangerous, and the psychiatrists shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the respondent.”

It is obvious that the requirements as to examination were not strictly adhered to, but the real question is, can such requirements be waived, and if so, were they waived here? Answering the last question first, the stipulation, as we have seen, contains an explicit waiver. As to the other question, we conclude that these requirements can properly be waived. People v. Bruckman, 33 Ill2d 146, 210 NE2d 537. The stipulation says that if the psychiatrists had been called on the day of the hearing, “they would testify to the same facts and opinions as set forth in their respective written reports aforesaid.” It seems somewhat of a waste of time to insist that a re-examination be had for the purpose of redating the reports to satisfy the time sequence called for in the statute. As to his complaint that he did not receive a copy of the reports, it is answer enough that the record shows his counsel did. We have never understood that counsel could not answer for his client, at least as to perfunctory matters relating to service. We agree with defendant that the statute should be strictly construed. People v. Capoldi, 10 Ill2d 261, 139 NE2d 776. That we will so construe it, does not mean that we will not permit a defendant to waive a time •sequence, or that delivery of the reports must be to him personally and not to counsel.

His next contention is that there was no preliminary proof of the voluntariness of the “confession,” nor of the corpus delicti — “of the incidents described in the statement.” Again, the record belies this assertion. The “confession” was admitted into evidence, specifically, as we have seen, without objection. What is more, its voluntary nature was the subject matter of an oral stipulation. The argument that there is no proof of the corpus delicti eludes us. The People were not required to establish the corpus delicti of the crime described therein. The hearing pertained, one might say, to a determination of “status,” not as to guilt or innocence of the act described in the statement, or indeed, of the charges set forth in the information.

A more serious question is presented by the contention that there was no proof that defendant was suffering from a mental disorder that had existed, as the statute requires, “for a period of not less than one year immediately prior to the filing of the petition.” But as we have seen, the stipulation specifically covers this precondition. It is true, that the stipulation casts this element in conclusionary language, indeed in the language of the statute, but, in effect, it is defendant’s conclusion, and these conclusions certainly could have been testified to by expert witnesses, as the psychiatrists were. It is defendant’s fault and no one else’s that the conclusion was not tested in the usual mode by cross-examination. The stipulation is enough, in our opinion, to satisfy this alleged lack of proof. It is certainly not hearsay, as he contends, for one may stipulate as to what witnesses, if called, would testify to.

His final contention is that he was not adequately admonished as to the consequence of waiving a jury. The court advised him of such right, and both he and his counsel said they didn’t want one. This is indeed enough in this situation.

The stipulation, standing alone, covered all the preconditions necessary to finding that the defendant was a sexually dangerous person. The other matters furnished ample corroboration. No question is raised as to the propriety of this all-inclusive stipulation, and we know of none. Stipulations of fact, are common occurrences, and are, for obvious reasons, much favored by courts. The cases cited to us, where apt, relate to matters engendered in contest and are not especially relevant to this appeal. Here for all intents and purposes, the defendant joined in the petition. Even so, the court was extremely careful in coming to the conclusion that it did. There were three separate hearings, extending over a period of six weeks, and it is difficult for us to characterize the entire proceeding as other than orderly and deliberate. Furthermore, one overriding circumstance must be kept in mind — that the defendant was represented by counsel throughout. No issue is raised as to competency, and to rebut an insinuation that such was an issue, his Reply Brief states: “[Defendant] did not say the Public Defender was . . . incompetent.” But for this appeal, all would assume that the order was properly entered. In our opinion, it was, and therefore, we affirm it.

Affirmed.

TRAPP, J., concurs.

CRAVEN; J.,

dissenting:

The majority opinion in this case permits statutory conditions precedent to commitment as a sexually dangerous person to be supplied by stipulation. It is my view that this is not permissible under the required strict construction of the act relating to sexually dangerous persons.

It has been held that proof of a mental disease that has existed for at least one year prior to the filing of a petition was essential to support a jury verdict finding the defendant to be a sexually dangerous person. People v. Sims, 382 Ill 472, 47 NE2d 703. In this case the finding was by the court based upon a stipulation that expanded psychiatric findings. The effect of the majority opinion is to permit of voluntary commitment as a sexually dangerous person.

In the case of People v. Capoldi, 10 Ill2d 261, 139 NE2d 776, and in other cases, the most recent being People v. Olmstead, 32 Ill2d 306, 205 NE2d 625, the court has stated that in proceedings under the Sexually Dangerous Persons Act the defendant must be accorded the essential protections available in a criminal trial and that the Sexually Dangerous Persons Act must be given a strict construction.

The commencement of proceedings under the Sexually Dangerous Persons Act is conditioned upon the existence of a criminal charge. After the filing of a petition provision is made for the court to appoint two “qualified psychiatrists” to make an examination of the defendant and to report the same to the court and to the defendant. Here, the psychiatrists were appointed prior to the filing of the petition.

In order that a person be found to be a sexually dangerous person, it must be established that he is suffering from a mental disorder, which mental disorder has existed for a period of at least one year immediately prior to the filing of the petition, coupled with criminal propensities to the commission of sex offenses, and these propensities must have been demonstrated toward acts of sexual assault or acts of sexual molestation of children. This proceeding, then, is a judicial inquiry into the question of mental disorder and it has nothing to do with guilt or innocence, but only with the ascertainment of mental condition. It seems to me highly contrary to strict construction to permit one who is the subject of inquiry as to mental condition to supply, by way of stipulation, omitted but essential proof of the mental condition.

The record in this case indicates that counsel for the defendant was under the erroneous impression that commitment as a sexually dangerous person would leave pending the criminal charge. It seems one of the motives for the stipulation and the resulting commitment as a sexually dangerous person was an understanding that the criminal charges then pending would be dismissed. Such dismissal is not discretionary, but rather dismissal of the underlying criminal charge is required upon cornmitment as a sexually dangerous person. (Ill Rev Stats 1963, c 38, par 105-9.)

Commitment as a sexually dangerous person means not only a deprivation of liberty and incarceration not unlike incarceration upon conviction of a felony but carries with it the imposition of a label as a sexually dangerous person. The legislature has conditioned the imposing of such a label by requiring psychiatric testimony as to the existence of a mental condition as well as the other stated conditions precedent. See People v. Hampsten, 32 Ill2d 596, 208 NE2d 577 (1965). Since the finding of the court in this case could not be based upon such psychiatric testimony which, however fallible, is more certain as to mental condition than the stipulation of the one sought to be committed, the order of commitment should be reversed.


author: STOUDER, J.

text:
    The People of the State of Illinois ex rel. Glenn Skonberg and Robert Cherry, Plaintiffs, James Wachtel and Dale Whitaker Intervenors, Appellees, v. Calvin A. Paxton, Defendant-Appellant.
    Gen. No. 65-49.
    Third District.
    November 10, 1965.

      Fred J. Brown, of Kewanee, and Cassidy & Cassidy, of Peoria, for appellant.

      James Fulton, State’s Attorney, of Cambridge, and Andrews & Andrews, of Kewanee, for appellees.
   STOUDER, J.

This is a proceeding in Quo Warranto brought by the State’s Attorney of Henry County to determine the authority by which Defendant, Calvin A. Paxton held office as Alderman for the City of Geneseo. From an order of ouster entered by the Circuit Court of Henry County, Defendant appeals.

The facts are not in dispute. The City of Geneseo is a municipal corporation organized under a special act of the General Assembly. The city charter provides, “All vacancies that shall occur in the Board of Aldermen, shall be filled by the remaining members of the said Board of Aldermen, by their appointment from the ward wherein the vacancy occurred and a record of the same made in their said journal of proceedings.” A vacancy did occur prior to April 9, 1965 djie to the death of R. P. McClorey, Alderman of the First Ward.

The City Charter further provides that the City Council of Geneseo shall meet for business on the second Tuesday in each month, and at such other times as may be necessary upon the call of the Mayor, or any two members of the City Council. The second Tuesday in April, 1965 fell on April 13 but on April 9 the City Council met, with the Mayor and all Aldermen present. Since the charter provided for a meeting to declare the results of an election immediately after the poll books had been delivered to the Mayor and since a city election was held on April 5, 1965, it is presumed that one of the purposes of this meeting was to canvass the results of the election.

At the meeting on April 9, immediately following the declaration of election results, the following appears from the journal of the meeting:

“Mayor Whitted stated that a vacancy existed for Alderman of the First Ward due to the death of R. P. McClorey, that he would like to appoint Calvin A. Paxton to serve the unexpired term of the late Mr. McClorey as Alderman of the First Ward and asked the members of the City Council to approve this appointment.”
“Moved by Alderman Sweeney, seconded by Alderman Woodrum that the appointment of Calvin A. Paxton as Alderman of the First Ward to serve out the unexpired term of the late R. P. McClorey be approved. Carried by the following call note. Those voting yes: Aldermen Carlson, Himmelman, Holke, Sweeney and Woodrum. Alderman Kittrell voted no.”

The oath of office was administered to Paxton by the City Clerk on April 12, 1965. On May 6, the State’s Attorney for Henry County filed a Complaint in Quo Warranto and on May 12 Appellees Wachtel and Whitaker filed a petition to intervene showing their interest as Aldermen elected on April 5 and seated as members of the City Council on April 12. The prayer of the petition was granted.

Paxton’s answer shows his justification to the Complaint by alleging the actions of the Aldermen as above stated. A Motion to strike the answer was filed on grounds that (1) the answer did not show Paxton’s appointment by the City Council as required by the charter but showed instead his appointment by the Mayor and the approval of the City Council and (2) a copy of the journal of proceedings of the City Council was not attached to the answer. Concurrently Appellees moved the court to compel Appellant to attach such copy. The trial court sustained the motions to strike and gave Defendant 7 days in which to amend, which amendment was accomplished by attaching to the answer a certified copy of the proceedings of the Council Meeting of April 9, as above quoted. Appellees renewed the motions to strike alleging that the amended answer showed the appointment to be illegal. The trial court sustained the motions to strike and entered an order of ouster.

Appellant argues that the judgment of the trial court should be reversed because he should not have been required to attach a copy of the proceedings of the City Council and because the actions of the Mayor and Aider-men should have been construed to be in effect, an appointment by the Aldermen.

Appellees argue that Appellant’s answer was in effect a plea of justification in which he failed to (1) plead facts showing his right to the office (2) plead his qualifications for office (3) show an appointment as required by the Geneseo Charter and (4) show that the meeting of April 9 was one in which any appointment could be made.

We think Appellant’s contention as to the necessity of attaching a copy of the Council proceedings is without merit. As Defendant in a Quo Warranto proceeding the burden was on Appellant to show affirmatively every fact giving rise to his right to hold the office of Alderman. People v. Kirstein, 413 Ill 333, 108 NE2d 915; People v. Redfirn, 48 App2d 100, 197 NE2d 841. One of such facts was that of his appointment, a record of which was contained in the journal of proceedings, and our Supreme Court has repeatedly held that “the official acts of municipal corporations must be recorded and the records are the only lawful evidence of the action to

which they refer. Such record cannot be contradicted or supplemented by oral evidence.” People v. Board of Supervisors, 125 Ill 334, 17 NE 802; Trust Co. of Chicago v. Lincolnwood Village, 385 Ill 236, 52 NE2d 703; People v. Hartquist, 311 Ill 127, 142 NE 475. Western Sand and Gravel Co. v. Town of Cornwell, 2 Ill2d 506, 119 NE2d 261. By alleging in his answer, only a part of the actual proceedings of the council meeting, Appellant tends to obscure the true issue in this case. Furthermore, by amending his answer by including the copy of proceedings, Appellant has waived this objection.

We likewise find that Appellees’ arguments as to the Appellant’s qualifications and the calling of the April 9 meeting are not well taken. The record discloses no objection to either of these matters in the lower court. The fact that Appellant resigned from one office as Alderman in order to accept another is a matter of record and undisputed by Appellees. We find nothing in the record showing that the purposes of a special meeting were required to be identified in the notice of the meeting and in any event, the actual presence of all of the Aider-men and their action on the matter of the appointment, cured any possible defect in the notice of the meeting. Ward v. City of DuQuoin 173 Ill App 515.

This brings us to what we consider the real issue involved in this case. Did the action of the City Council, as evidenced in the journal of proceedings, amount to a proper appointment of Appellant by the Aldermen as directed by the Geneseo Charter? Or was the action that of appointment by the Mayor and approval by the Aider-men as contended by Appellees ?

It is true, as indicated by both parties, that there is some ambiguity in the clerk’s record of proceedings. The rules governing construction of legislative action are consistent whether the action be that of a City Council or the State Legislature and whether such action be an ordinance or other proceedings of the City Council. Illinois Bell Telephone Co. v. Fox 402 Ill 617, 85 NE2d 43; Dean Milk Co. v. City of Chicago 385 Ill 565, 53 NE2d 612; Dwight v. Chicago Railways Co. 270 Ill 87, 110 NE 394. In construing such action the paramount objective is to ascertain and give effect to the intentions of the legislative body. Illinois Bell Telephone Co. v. Fox supra; Stiska v. City of Chicago, 405 Ill 374, 90 NE2d 742; Fowler v. Johnston City Coal Co. 292 Ill 440, 127 NE 31.

Where the language employed by the legislative body is specific and unambiguous, there is no need for interpretation or construction. Stadler v. Fahey 87 Ill App 411; People’s Gas, Light & Coke Co. v. Hale, 94 Ill App 406. Where however, as in the instant case, the language employed is susceptible of different interpretations, it is incumbent upon the courts to give that interpretation which will give meaning to the legislative action. People v. Chicago R. Co., 270 Ill 278, 110 NE 394; DuBois v. Gibbons 2 Ill2d 392, 118 NE2d 295; Village of Northbrook v. Sterba 318 Ill 360, 149 NE 258.

Appellee relies heavily on People v. Janosky 273 Ill App 254; and People v. Krupicka 279 Ill App 269. We do not believe them to be of material assistance. In each of the above cases, the issue was whether the Cities and Villages Act had so augmented the powers of a president of the board of trustees as to give him the same powers of appointment as were held by a Mayor. The court held that it did not. In the instant case there is no question as to by whom the appointment should be made. Both parties concede that the appointment must be made by the Aldermen and the question is one of interpretation of the word “approved” as used in the motion of Aider-man Sweeney.

It must be assumed that the Mayor and the Aldermen knew of the requirement of the Geneseo Charter. It must also be assumed that both the Mayor and the Aldermen intended to carry out the provisions of this charter. To assume otherwise would lead to the absurd conclusion that the act was intended to be a nullity. The preliminary remarks of the Mayor may be interpreted as a suggestion that there was a vacancy to be filled and his desire to see it filled by appellant. Alderman Sweeney’s motion and its adoption may be construed as an effort to make this appointment. It is conceded that the use of the word “approved” was inept. However our Supreme Court has held that “Strict construction of a statute means only that it must be confined to such subjects or applications as are obviously within its terms and purposes. It does not require such an unreasonably technical construction that the words used cannot be given their fair and sensible meaning in accord with the obvious legislative intent.” DuBois v. Gibbons supra. Were we so to construe the word “approved” in the instant case, the entire action of the Aldermen would be a nullity. We can add little to the opinion in People v. Whittock 237 Ill 584, 86 NE 1094, where the court stated, “The highest degree of accuracy is not always attained or to be expected in the framing of statutes or city ordinances. If such accuracy in the use of language was applied by the courts in construing ordinances, the purposes for which many of them are passed would doubtless be defeated. Whenever the meaning of a word, as used in a statute or ordinance, becomes the subject of controversy in a legal proceeding, the ascertainment of its strict primary signification is not a matter of so much importance as it is to discover the sense in which it was used by the legislative body, for the latter must control, although the word has been used without proper regard to its appropriate and primary meaning.”

We therefore find that the order of Ouster by the Circuit Court of Henry County was in error and such order is hereby reversed.

Reversed.

ALLOY, P. J. and CORYN, J., concur.


author: JUSTICE CORYN.

text:
    Jay J. Keith, Plaintiff-Appellee, v. Marvin Everts, et al., Defendants-Appellants.
    Gen. No. 65-3.
    Third District.
    November 12, 1965.
    Arthur B. Copeland and Hollis W. Benjamin, both of Peoria, for appellants; Davis, Morgan & Witherell, of Peoria, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.