author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Charles L. Watson et al., Plaintiffs-Appellees, v. Chicago Transit Authority et al., Defendants-Appellants.
    (No. 55921;
    First District (3rd Division)
    May 17, 1973.

      Rehearing denied July 26, 1973.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and James East, all of Chicago, for appellants Wade Simmons and Chicago. Transit Authority.

      Sidney Robin and Louis G. Davidson, both of Chicago, for appellees Charles L. Watson and Levi Jackson.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiffs, Charles Watson and Levi Jackson, were injured while boarding a Chicago Transit Authority bus. They sued for damages allegedly-caused by the defendants, the C.T.A., Wade Simmons the operator of the bus, Walter Jones the driver of an automobile, the proprietors of a bowling alley which sold intoxicating liquor to Jones, and the owner of the building occupied by the bowling alley. A settlement was reached with the dram shop defendants. At the close of the evidence the court directed a verdict against Jones on the issue of liability. The jury returned a verdict against the C.T.A., Simmons and Jones and assessed Watsons damages at $100,000 and Jacksons at $300,000. From the judgments entered on the verdict the C.T.A. and Simmons appealed to the Illinois Supreme Court which transferred the case here. The transfer order stated that the supreme court had no jurisdiction on direct appeal.

The C.T.A. and Simmons were charged in the plaintiffs’ complaint with stopping their bus an unreasonable distance from the curb so that in boarding it, Watson and Jackson were compelled to walk into the street where other vehicles were operating, and that by stopping the bus in this manner they violated an ordinance of the City of Chicago which required passenger buses to stop with the right front wheel within 18 inches of the curb. The defendants contest the constitutionality of the ordinance and further argue that there was no evidence the ordinance was violated, that there was no causal connection between the place where the bus stopped and the plaintiffs’ injuries, and that the verdict was against the manifest weight of the evidence.

Shortly after 5:30 A.M. on June 11, 1966, Jackson and Watson were waiting at a bus stop on the southeast corner of Pulaski Road and 15th Street for a bus northbound on Pulaski. Waiting with them were Watson’s sister, Therese Baggett and her fiance, Joseph Eagle. According to the plaintiffs’ evidence, when the bus approached the bus stop it did not pull to the curb although no cars were parked there to prevent it from doing so. Rather, it stopped approximately six feet away from the curb and opened its front door to receive passengers, making it necessary for those wishing to take the bus to walk out into Pulaski Road. Miss Baggett and Eagle boarded the bus without mishap. However, as Watson and Jackson each put one foot on the first step, Jones, who was driving his automobile south on Pulaski, made a left turn into 15th Street. Jones, who had not slept for 24 hours and had spent the pight drinking at a bowling alley, lost control of his automobile and it struck the right front of the bus and both plaintiffs, hurling them to tire pavement. The automobile veered onto the sidewalk and came to rest with its front against a fire hydrant and its right wheels in the street. Watson’s left leg was severed above the knee and it hung on the bumper of Jones’ car. It was necessary to move the car to free the plaintiffs so that an ambulance could take them to a hospital.

In addition to the loss. of his left leg, Watson’s right thigh was frac-, tured. One of Jackson’s legs had to be amputated; he was also paralyzed, his speech was impaired, he suffered bowel and bladder complications and was unable to leave his home. The defendants do not question the damages awarded to either plaintiff.

The plaintiffs assert that the defendants should not be permitted to question the constitutionality of the ordinance they were charged with violating since this issue was not brought to the attention of the trial court. The record shows that the ordinance was challenged in the defendants’ post-trial motion so it may be. assumed that the court considered that issue in ruling upon the motion. Furthermore, as two of the allegations of negligence in the complaint (failing to stop the bus within 18 inches of the curb and taking on passengers other than at a designated loading place) were based upon the violation of the ordinance, its validity directly affected the existence of the plaintiffs’ cause of action. The question of whether a complaint fails to set forth grounds of liability which the law will recognize can be raised at any time. (Wagner v. Kepler (1951), 411 Ill. 368, 104 N.E.2d 231; Hodorowicz v. Szulc (1958), 16 Ill.App.2d 317, 147 N.E.2d 887.) We will, therefore, consider the defendants’ contention.

Relevant provisions of the ordinance (Municipal Code of Chicago, 1958, ch. 27, sec. 276(b),(c)) were received in evidence at the trial and instructions pertaining to them were read to the jury. The ordinance provides:

Par. (b) “The driver of a bus shall not stop such vehicle upon any street at any place for the purpose of loading or unloading passengers other than at a designated bus stop, bus stand, passenger loading zone, or bus terminal except in case of emergency.”
Par. (c) “The driver of a bus shall enter a bus stop or passenger loading zone on a public street in such a manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb and the bus approximately parallel to the curb so as not to unduly impede the movement of other vehículár traffic.”

The defendants argue that the legislature has not given municipalities the power to adopt such regulations and that the Uniform Act Regulating Traffic on Highways, 1935 (Ill. Rev. Stat. 1965, ch. 95½, par. 98 et seq.), precluded the City from controlling the operation of buses when temporarily engaged in loading or- unloading passengers. It is provided in section 25 of the Uniform Act that: “* * * no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this Act unless expressly authorized herein.” Section 26(a)(1) of the Act permits local authorities to regulate the standing and parking of vehicles. The term “park” is defined in section 19(c) to mean, when prohibited, “the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading.” Because of this definition, the defendants contend the City’s ordinance is incompatible with the statutes and invalid. The reasoning seems to be that a local authority is only permitted to regulate parking when it is of a more permanent nature than the brief standing of buses to load and unload passengers. This argument is without merit Not only does section 26(a)(1) of the Uniform Traffic Act permit municipalities to regulate the standing of vehicles, but section 25 empowers them to adopt additional traffic regulations which are not “in conflict with the provisions of this Act.”

The State may assume complete control over the regulation of streets and highways, thus depriving municipalities of any power or authority over them. (City of Rockford v. Floyd (1968), 104 Ill.App.2d 161, 243 N.E.2d 837.) However, our legislature has not chosen to do this. In Ill. Rev. Stat. 1965, ch. 24, par. 11 — 80 — 2, it is provided that: “The corporate authorities of each municipality may regulate the use of the streets and other municipal property.” Such power includes the right to impose reasonable conditions and restrictions in order to promote the general welfare and prevent accidents. (Yellow Cab Co. v. City of Chicago (1947), 396 Ill. 388, 71 N.E.2d 652.) The City of Chicago used this authority in enacting the ordinance, which has been treated by this court as a public safety measure. (Gauchas v. Chicago Transit Authority (1965), 57 Ill.App.2d 396, 206 N.E.2d 752.) The provisions of the ordinance are not in conflict with State law and the City did not exceed its authority in adopting them.

Sections 25 and 26(b) of the Uniform Act also provide that municipal traffic regulations shall not be effective until signs giving notice of them “are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.” Therefore, the appellants urge as alternative reasons for the invalidity of the City ordinance that it did not provide for the posting of warning signs, that the City did not post the sign at the bus stop, and that those signs which were erected did not provide sufficient notice of the regulation. It is undisputed that there were signs on the southeast corner of Pulaski and 15th Street informing the public of the bus stop at that location and that parking was forbidden. Sections 25 and 26(b) of the Act do not require that each municipal traffic regulation be accompanied by a provision for the posting of a sign, or that the municipality itself must erect the sign. What is mandatory under the Act is that “signs * * * are posted * * It is immaterial that the C.T.A. rather than the City was responsible for the erection of the sign, as long as there was adequate notice of the municipal regulation.

Paragraph (b) of the ordinance provides that buses must stop at designated stops or zones for the purpose of loading or unloading passengers. Since the sign at the east curb of Pulaski pointed out the bus stop, it constituted sufficient notice to bus drivers that they were to stop at that location. Indeed, the defendant Simmons testified that he was familiar with the intersection of Pulaski and 15th Street and knew there was a bus stop sign on the southeast comer.

The sign did not specify the position buses had to be in, relative to the curb, when stopped to receive or discharge passengers. However, the regulations enacted in paragraph (c) of the ordinance had been incorporated into the rules of the C.T.A. The rule provides:

“(a) The operator of a bus shall enter a Bus Stop Zone in such a manner that when standing to load or discharge passengers the right front wheel shall be not more than eighteen inches from the curb and the bus approximately parallel to the curb * * Chicago Transit Authority Rule 103(a).

It may be assumed that the.C.T.A. and its agents were aware of their own rales.

The provisions of the ordinance here considered are of much broader scope than those which seek to regulate conditions on a particular highway or part thereof, such as, for example, rules concerning the maximum speed at which vehicles may travel. Although paragraphs (b) and (c) bear upon a single class of motorists — bus drivers — they apply uniformly on a city-wide basis. We do not believe that the legislature could have intended that regulations such as those set forth in paragraph (c) had to be posted at the innumerable locations in the City where buses are required to stop to load or unload passengers. Since paragraph (c) of the City ordinance and rule 103(a) of the C.T.A. are identical in meaning, once the posted sign has made the bus driver aware of the presence of a bus stop, he can be held to have notice of the required position in which his vehicle has to stop. We reject, therefore, the C.T.A.’s and Simmons’ alternative arguments as to the invalidity of the ordinance.

They next argue that there was no evidence they, violated either paragraph (b) or (c) of the ordinance. Watson, Eagle and Therese Baggett Eagle testified' that the bus did not pull to the curb, but remained at least six feet or four paces away. The Eagles also declared that the bus stopped in the crosswalk, which was outside the designated bus stop. Witnesses for the defense claimed that the bus stopped close to the east curb of Pulaski, within the area assigned as. a bus stop. However, the chief defense witness, Simmons, the driver of the bus, conceded that after he stopped the bus he saw Jones’ car,.a car length away, coming from the north and that it was to his right, thereby lending support to the plaintiffs’ contention that the bus was some distance from the curb. Furthermore, Simmons admitted that he had stated in a pre-trial deposition that when he saw the' southbound car a portion of it was in the lane closest to the east curb and a portion of it was in the second lane from the curb. A conflict in the evidence was created which the jury resolved against the .defendánts. At the defendants’ request there was submitted to the jury a special, interrogatory which inquired: “Was the right front wheel of the C.T.A. bus within 18 inches of tire east curb of Pulaski Road and the bus approximately parallel to that curb just before and at the time of the occurrence involved in this suit?” The jury answered the interrogatory in the negative, thus unequivocally voicing its belief that the defendants violated the ordinance. Its finding that the defendants violated the ordinance was supported by substantial evidence and we will not set it aside.

A violation of an ordinance constitutes prima facie evidence of negligence and creates a cause of action if it is the proximate cause of the resulting injuries. (Gauchas v. Chicago Transit Authority.) The defendants contend that if there was a breach of the ordinance it was not the proximate cause of tire plaintiffs’ injuries. Watson testified that it was necessary for him and Jackson to leave the curb and walk out into the street in order to board the bus. They were thus compelled to expose themselves to danger from vehicles on the roadway. The defendants counter that they would have been injured by Jones’ car even if they had remained on the sidewalk. Obviously, the jury did not agree with this view of the occurrence as it found that Simmons and the C.T.A. as well as Jones, were liable for the plaintiffs’ injuries.

Questions of proximate cause are customarily questions of fact for a jury to decide. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74.) The Jones car struck the bus on the right front and then the plaintiffs who were at the right front door. If the bus had been 18 inches or less from the curb instead of six feet away, and if Jones’ car continued in the same path, the bus would have been struck on its left front. It would have served as a protective barrier between the car and the plaintiffs on the curb. Even if the car swerved in some manner from its indicated pathway, a correctly positioned bus would have enabled the plaintiffs to jump away from the oncoming auto or to escape by quickly boarding the bus. Also, had the bus halted at the curb, the time required for the plaintiffs to get on it would have been less than that needed to walk out into the street to do so. The Eagles found safety in the bus and the difference of a few seconds might have saved Watson and Jackson from injury.

The defendants’ negligence in violating the ordinance, or their common law negligence in stopping an unreasonable distance from the curb, did not have to be the only cause for the plaintiffs’ injuries in order for the defendants to be liable. It was sufficient if it concurred with some other cause which, acting simultaneously, caused the injury. (Lutz v. Chicago Transit Authority (1962), 36 Ill.App.2d 79, 183 N.E.2d 579.) In such a situation one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury, even though the injury would not have occurred but for the negligence of the other person. (Naslund v. Watts (1967), 80 Ill.App.2d 464, 224 N.E.2d 474.) The plaintiffs sufficiently established that the negligence of the defendants in either violating the ordinance or in forcing prospective passengers to board the bus out in the street proximately caused their injuries.

The complaint is made that the verdict resulted from sympathy and was against the manifest weight of the evidence. No specific instances are cited to support the speculation that the sympathy of the jurors was aroused for the plaintiffs. The testimony concerning the plaintiffs’ injuries was extremely brief, provided only by Watson and by the wife of Levi Jackson, as Jackson’s paralysis prevented him from being in court. However, the defendants emphasize that they produced several disinterested witnesses (two firemen, two neighborhood residents, and a policeman) who testified that the bus was stopped in the position required by the ordinance. They argue that this testimony should have been accepted by the jury in' preference to the plaintiffs’ evidence, as Watson, his sister and Eagle his brother-in-law, had an interest in the outcome of the case. The jury was fully apprised of this relationship and of the facts and circumstances regarding the accident as the witnesses remembered them. Since the evidence was conflicting and substantial factual questions were in dispute, and since different inferences could be drawn from those facts, the determination of the truth depended upon the jury’s evaluation of the credibility of the witnesses. (Winston v. Chicago Transit Authority (1971), 2 Ill.App.3d 151, 276 N.E.2d 65.) It is the jurors who are the sole judges of such credibility and the weight to be accorded the testimony. (Moore v. Checker Taxi Co. (1971), 133 Ill.App.2d 588, 273 N.E.2d 514.) That the defendants produced the greater number of witnesses did not make their version of the accident the one the jury had to accept.

The jury’s verdict was supported by substantial evidence and the judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG

license: Public Domain

text:
    Santa Fe General Office Credit Union, Plaintiff-Appellant, v. Gottar A. Gilberts, Defendant—(National Surety Corporation, Defendant-Appellee.)
    (No. 56177;
    First District (1st Division)
    May 29, 1973.

      Rehearing denied July 26, 1973.

      William J. O’Brien, of Chicago, for appellant.
    Edward P. McNeela and John P. Hampton, both of Chicago, (Dent, Hampton & McNeela, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The legal problems to be unraveled here stem from a most unfortunate series of defalcations from a credit union by a trusted fiduciary and officer. Suit was originally filed by Sante Fe General Office Credit Union (plaintiff) against its former treasurer, Gottar A. Gilberts (defendant), and also against National Surety Corporation (National) which had acted as surety on his official bonds. In addition, National filed a counterclaim seeking indemnity against defendant.

Plaintiff filed motions for summary judgments against defendant and National. These motions were denied. National filed a motion for partial summary judgment limiting plaintiff’s recovery. The trial court granted National’s motion and limited plaintiff’s recovery against National to $10,000 plus interest. Judgment was accordingly entered in favor of plaintiff and against National in the amount of $12,629.11. Defendant stipulated to a judgment in favor of National and against himself on National’s counterclaim in the amount of $12,629.11. The court heard the evidence on the balance of the claim and entered judgment in favor of plaintiff against defendant in the amount of $252,437. This represented amounts actually embezzled $176,081.60; interest thereon of $51,355.40 and also $25,000 for punitive damages. Apparently the embezzled amounts have been entirely dissipated and the judgments against defendant remain unsatisfied. Plaintiff appeals from the partial summary judgment in favor of National limiting National’s liability to $12,629.11 and from the order denying plaintiff’s motion for summary judgment against National in the amount of $144,092.45 plus interest and costs. The divergent contentions raised by plaintiff and National will have greater significance if set forth after the following statement of fact.

Defendant was first elected treasurer of plaintiff organization on February 23, 1946. He held this office, with re-election on an annual basis, until 1965. His first embezzlement took place in 1948. He misappropriated plaintiff’s funds in varying amounts thereafter during each and every year without exception until and including 1965. The smallest amount taken was in 1955 in the amount of $4710 and the largest thefts occurred in 1953 in the total amount of $17,890. Plaintiff contends that the total amount of these defalcations was $192,617.45. However, defendant made some repayment of funds from time to time perhaps in an effort to lay the foundation for additional misappropriations. This amounted to $16,535.85 leaving a net amount abstracted of $176,081.60. These various shortages were confirmed by adequate accounting procedures.

The relationship between plaintiff and National commenced in 1946 with the execution of a position schedule bond bearing National’s Identification No. 862703. This bond is dated February 28, 1946. It covered loss of money for dishonest, fraudulent or criminal acts committed by employees of plaintiff while occupying any position designated in the bond. There is a provision that such losses are to be reported to National in writing within 15 days after discovery by plaintiff and “within three years after termination of coverage on the employee causing the loss # # #»

Various schedules were subsequently appended to this bond setting forth the positions covered, the amount of liability of National as to each position and the amount of premium charged in each instance. After the initial year, each of these schedules provided, “That this schedule supersedes all prior schedules attached to the bond * * The original schedule dated February 28, 1946, also provided:

“The amount of coverage on each such position is the amount stated in the appropriate schedule or endorsement. Any such amount may be changed by endorsement, or by naming a different amount in a new schedule identified as aforesaid and attached as of any anniversary date.”

The original schedule also provided:

“The coverage on any position for separate periods shall not be cumulative as to any occupant, but the full amount of coverage shall be available for losses caused by each different occupant of the position.”

Each of the subsequent schedules further provided:

“* * * the coverage on each employee is continuous from its inception to its termination, and the coverage for separate periods shall not be cumulative; that if the coverage on any employee for separate periods be for different amounts, the maximum liability of the Corporation for all defaults of that employee shall be governed by the provisions of the bond, and shall in no event exceed the largest amount of coverage in force during any period within which defaults shall have occurred, nor shall the coverage for one period be available for defaults occurring within any other period.”

The positions originally noted in the first schedule were president, vice president, treasurer, secretary and messenger. The designated liability in connection with the position of treasurer, occupied by defendant, was $5000. The three remaining officers had liability limits of $1000 each and the liability as regards the position of messenger was limited to $500. Total premium for all of these positions was $15, with $7.50 thereof being allocated to defendant’s position.

All subsequent schedules as issued and attached to this same fidelity bond bearing No. 862703 set out the position in question, the amount of the liability assumed by National, and the premium charged. The provisions thereof remained unchanged as above noted. There were minor variations in that the position liability as regards plaintiff’s president was increased to $2000 during 1951 with an additional premium being charged for the increase. Also, the position liability as regards defendant was increased first to $6000; and, in 1952, to $10,000. The annual premium for this last increase became $15 and the total premium charged by National that year was $24.

As regards the varying amounts expressed in the position bond, during each year, defendant made an annual report under oath to the Auditor of Public Accounts of Illinois in which he set forth the total assets of plaintiff. During the years from 1946 to and including 1957, in which this position bond remained in effect, the assets of plaintiff as thus reported by defendant varied from $27,143.65 in 1948 to $41,352.45 in 1957, During each of these years, the Auditor had issued schedules indicating minimum bond requirements for credit unions. For the years 1948 to and including 1957, this official minimum requirement for defendant’s bond as Treasurer of plaintiff Credit Union was $6000. As above indicated, the minimum of the treasurer’s bond was fixed by the Auditor at $6000 from 1948 to and including 1957. However, from 1948 to 1951 inclusive, the bond actually remained at this level; but, from 1952 to 1957 inclusive, defendant’s bond was given in the amount of $10,000, Thus, from 1952 to and including 1957, the schedules reflected an increase in the liability on the bond to $10,000. In each instance, the board of directors of plaintiff duly approved these expressed amounts of coverage on defendant’s bond. 111. Rev. Stat. 1951, ch. 32, par. 8. See also 111. Rev. Stat. 1955, eh. 32, par. 13.

During the latter part of 1057, the Auditor of Public Accounts requested a change in the type of bond then being used. This change was not initiated or requested by plaintiff or by National but. originated entirely from the Auditor’s office. The Auditor required that plaintiff obtain a blanket bond and that the surety on the bond notify the Auditor when this had been issued, with information as to the date and number of the bond. This request was made in writing and also contained a direction that plaintiff was required to obtain a blanket bond in the sum of not less than $8000.

Accordingly, plaintiff made a written application to National for the issuance of a blanket bond to be effective February 28, 1958, in the amount of $8000. This bond was actually executed by National and bears No. 3065971. The pertinent provisions thereof, will shortly be stated. This type of blanket bond remained in full force and effect until June 1, 1965. In 1958, it was in the amount of $8000; but, upon each and every annual renewal thereafter, the coverage on this blanket bond was raised to $10,000 and it remained in that amount to and including June 1, 1965. The Department of Financial Institutions and plaintiff and National treated this blanket bond as being renewed each year.

During each year in which the position bond and the blanket bond remained in force and effect, they were always in form and amount approved by the Auditor of Public Accounts, or, in later years, by the Director of Financial Institutions. As we will later observe, plaintiff claims that neither the position bond nor the blanket bond were in proper statutory form and that the Auditor or the Director therefore could not legally approve them. This contention, however, does not modify the fact that the Auditor and the Director actually did approve both of these bonds as to form and amount. In addition, the amount specified in both bonds originally as well as the amounts reflected in all- of the annual schedules of tire position bond and all renewals of the blanket bond were approved by the directors of plaintiff.

This blanket bond provided that by acceptance thereof plaintiff gave notice of termination or cancellation of the prior position schedule bond bearing No. 862703 becoming effective as of February 28, 1958, the commencement date of the new blanket bond. The blanket bond also contained a paragraph headed “Indemnity Against Loss Under Prior Bond Or Policy.” This provided as follows:

“If the coverage of this bond is substituted for any prior bond or policy of insurance carried by the Insured or by any predecessor in interest of the Insured which prior bond or policy is terminated, canceUed or allowed to expire as of the time of such substitution, the Underwriter agrees to indemnify the Insured against loss sustained by the Insured and discovered as aforesaid and which would have been recoverable by the Insured or such predecessor under such prior bond or policy except for the fact that the time within which to discover loss thereunder had expired: PROVIDED: (1) the indemnity afforded by this paragraph shall be a part of and not in addition to the amount of coverage applicable to such loss or losses under this bond; and (2) such loss or losses would have been covered under this bond, had this bond with its agreements, limitations and conditions- as of the time of such substitution been in force when the acts or omissions or casualty or event causing such loss or losses occurred; and (3) recovery under this bond on account of such loss or losses shall in no event exceed the amount which would have been recoverable under the coverage applicable to such loss or losses under this bond in the amount for which such coverage is written as of the time of such substitution, had this bond been in force when such acts or omissions or casualty or event occurred, or the amount which would have been recoverable under such prior bond or policy had such prior bond or policy continued in force until the discovery of such loss or losses if the latter amount be smaller.”

The blanket bond also contained a provision entitled “Non-Reduction of Liability” containing language as follows:

“Section 6. Payment of loss under this bond shall not reduce the liability of the Underwriter under this bond for other losses whenever sustained; PROVIDED, however, that the total liability of the Underwriter under this bond on account of * # * (c) any loss or losses * * * caused by acts or omissions of any person (whether one of the employees or not) or acts or omissions in which such person is concerned or implicated, * * * is limited to the sum above stated in the opening paragraph of this bond, irrespective of the total amount of such loss or losses.”

In addition, the blanket bond further provided:

“Non-Accumulation of Liability
Section 7. Regardless of the number of years this bond shall continue in force and the number of premiums which shall be payable or paid, the liability of the Underwriter under this bond with respect to any loss or losses specified in the PROVIDED clause of Section 6 of this bond shall not be cumulative in amounts from year to year or from period to period.”

Neither the original position schedule bond nor the original blanket bond specified a date for termination thereof. They were each renewed upon their annual anniversary dates by a schedule or an application form executed by plaintiff and National. Separate premiums were paid each year on both bonds.

Defendant commenced his defalcations in 1948. This course of conduct continued until 1965. Plaintiff first ascertained the existence of these losses during May of 1965. It is agreed that plaintiff filed timely and proper proof of loss with National on November 19, 1965. The amounts of the abstractions by defendant have been broken down upon an annual basis and they are as follows:

Stolen 1948-1957 Inclusive Stolen 1958-1965 Inclusive
(Position Bond) (Blanket Bond)
1948 $' 6,300.00 1958 $ 6,670.00
1949 10,815.00 1959 9,425.00
195b 13,455.00 1960 10,180.00
1951 16,230.00 1961 10,995.00
1952 17,040.00 1962 11,885.00
1953 17,890.00 1963 12,825.00
1954 12,480.00 1964 12,120.00
1955 4,710.00 1965 7,382.45
1956 5,935.00
1957 6,290.00

This blanket bond was renewed each year upon its expiration and premiums were paid upon an annual basis. In February of 1963, the premium was prepaid for three years. As in the case of the position bond, the premium was based upon the amount of assets handled by defendant. Premiums in the appropriate amount of $70.00 were paid each year by plaintiff. Each annual.-renewal was effected by a separate application form requested by National and executed by plaintiff.

It is plaintiff’s basic contention that it is entitled to a summary judgment against National on the total aggregate amount of all the losses it sustained. Plaintiff takes the position that, as a matter of law, National undertook a separate and distinct liability for each of the years from 1948 to 1965 inclusive. Plaintiff also contends that each year National became liable on a separate and distinct statutory bond. Predicated upon the same theory, plaintiff further urges that the summary judgment limiting the liability of National to $10,000 was erroneous as a matter of law. Plaintiff’s basic theory is that the applicable provisions of the Illinois Credit Union Act are mandatory and must be construed together with the bonds in ascertaining the true basis of National’s liability and that these statutory provisions require that National’s liability be cumu-lated by total computation of its liability during each of the years in question.

Quite to the contrary, defendant contends that it is liable only upon two bonds; the position bond and the blanket bond, each of which constitutes a single continuing contract. National urges that premium schedules and renewal applications cannot be treated as bonds but are separate and distinct therefrom. National further contends that the two bonds in question have clear, unambiguous and enforceable conditions for noncumulation of liability and that these provisions of the two bonds do not violate or contravene the statutes of Illinois but actually comply with the Illinois Credit Union Act and are standard forms approved by the proper officials of the State of Illinois and thus presumptively valid.

Consideration of the first issue requires examination of the provisions of the contractual documents executed by these parties. As above shown, the position schedule bond executed on February 28, 1946 (No. 862703) provided that the coverage on any position for separate periods should not be cumulative as to any occupant thereof. Each of the schedules executed by the parties for later years provided that the coverage for separate periods should not be cumulative; the liability of National for all defaults of any employee should not exceed, the largest amount of coverage in force during any period within which defaults occurred and also the coverage for one period would not be available for defaults occurring within any other period. As above shown, the coverage in force during individual years of this position bond was .$6000 for 1948 to 1951 inclusive and. $10,000 from 1951 to 1957 inclusive.

The blanket bond (No. 3065971) was then put into effect by agreement of the parties during 1958 and remained until June 1, 1965. The amount of this bond was fixed at $10,000 by agreement of the partiés during every year except 1958, when it remained at $8000. This bond provided that National’s total liability was limited to the amount stated in the opening paragraph of the original bond. It also provided, under the heading “Non-Accumulation of Liability”, that, regardless. of the mimber of years that the bond continued in effect, the loss or losses should not be cumulative in amounts from year to year or period to period.

Plaintiff’s first contention is that National is liable, separately, as. to each of the years from 1948 to 1965 so that' plaintiff is entitled to recover the total amount of losses it sustained. This is predicated upon the theory that there was a new and separate bond executed in and for each year, The contrary position is taken by National that there were only two bonds executed by the parties; each of which constituted a single continuing contract. Merely upon reading the provisions of the two bonds, it would seem that National’s theory comports with the provisions thereof. However, we will examine the leading cases pertaining to this type of situation which have been cited and discussed by both parties.

In U.S. Fidelity Co. v. First Nat. Bank, 233 Ill. 475, 84 N.E. 670, the' Supreme Court dealt with a position bond. It provided that the aggregate liability of the surety should not exceed the amount written on the original bond opposite the name of each employee. Losses occurred during several years. The surety contended that its total liability was the amount specified in the bond and there was but one bond which was renewed from time to time. The court sustained this contention.

We find of greater value the later opinion in Quinlan & Tyson, Inc. v. National Casualty Co., 311 Ill.App. 369, 36 N.E.2d 470, written by Mr. Justice Burke of this court. There, the parties entered into a position schedule bond which remained in effect for a number of years. One employee was involved in a series of losses during four consecutive years. These losses aggregated far more than the amount of liability specified in the bond. The bond provided that liability of the surety should not exceed the amount specified in the bond schedule for each employee. The bond was renewed annually by means of an anniversary list of employees. The renewal document provided that the surety did not assume liability for defaults exceeding the amount determined by the original bond obligation. The employer urged that each anniversary list constituted a separate contract and each imposed an additional liability on the surety. It urged that the contract should be construed in favor of the employer and against the surety.

This court held that the bond and the anniversary lists were one single continuing contract and did not constitute separate agreements. The court pointed out that, at the time the bond was issued, and as each anniversary list was issued, the employer could obtain the amount of protection for which he was willing to pay the premium. Also, if the employer so desired, the surety would enter into an agreement whereby the coverage of plaintiffs employees could be made continuous and also cumulative. This court held that under the contractual provisions of the pertinent documents the surety was not obligated to pay the total aggregate amount of all sums lost by the defalcations but was liable only to pay the amount specified in the bond as the limit thereof.

In Massachusetts Bonding & Ins. Co. v. Julius Seidel Lumber Co., (8th cir. 1960), 279 F.2d 861, losses were suffered by the employer over a number of years. The parties had executed a position schedule bond. The same issue developed as in the case at bar regarding cumulation of the liability of the surety upon an annual basis. The bond provided that the liability of the surety should not be cumulative; its aggregate liability on account of any one employee should not exceed the largest amount set opposite the position of such employee and the suretyship for one period should not cover defaults occurring within any other period. From time to time certificates of renewal were executed which also provided that the aggregate liability of the surety should not exceed the sum written opposite the name of the employee upon the renewal schedule. Other renewal documents provided that the coverage for separate periods should not be cumulative and that coverage for- one period should not be available for default occurring within any other period.

The U.S. Court of Appeals decided the issue in favor of the surety. The court held that there was no ambiguity and that the contract between the parties was to be construed as plainly written. The court thus reached its conclusion after consideration of what it regarded as the clear language of the contract documents before it. The court cited a number of authorities to the effect that, where a bond is for an indefinite term, annual payment of premiums does not convert it into a series of separate annual contracts and, therefore, there is an implied exclusion of cumulation of liabilities which occurred during a series of years even in the absence of a specific provision against cumulative liability. See 279 F.2d 861 at 868, 869.

In Columbia Hospital v. United States Fidelity & G. Co., (D.C. cir. 1951), 188 F.2d 654, the court dealt with a position bond. There, also, as in the case at bar, the employer suffered from a series of embezzlements by one certain named employee. The aggregate of these embezzlements exceeded the amount stated in the bond. The bond was for an indefinite term beginning on the date thereof and ending at the time of cancellation, with provision for payment of an annual premium. There was a provision that payment of premiums would not render the bond cumulative from year to year. There, also, as in the case at bar, the surety contended that its total liability was limited to the original amount of the bond. The employer contended that each renewal constituted a new bond. The court pointed out that where the bond was written for an indefinite term, with specification only of the date of its commencement, the annual payment of premiums does not create a series of separate yearly contracts. The court noted that even in the absence of specific language forbidding cumulative liability, this was excluded by implication because of the continuous term of the bond. The court then disposed of the issue with the following language, (188 F.2d 654 at 657):

“Where, as here, in addition to the continuous term of the bond, there was language in the bond or its attachments which militated against a finding of cumulative liability, the courts have consistently held liability to be limited, in the aggregate, to the amount stated in the bond (i.e., non-cumulative). United States Fidelity & Guaranty Co. v. Barber, 6 Cir., 70 F.2d 220; Brulatour v. Aetna Casualty & Surety Co., supra; Hack v. American Surety Co. of New York, 7 Cir., 96 F.2d 939.”

Plaintiff attempts to differentiate Columbia Hospital primarily by reference to the dissenting opinion. This opinion merely holds that the language of the bond created an ambiguity so that it should be construed against the surety. However, we note that the United States Supreme Court denied certiorari (342 U.S. 817, 96 L.Ed. 618, 72 S.Ct. 31.) We find no later decision of the United States Court of Appeals or .of the United States Supreme Court adopting the views set forth in the dissent. In addition, as above shown, the law of Illinois is in accord with the majority opinion. We have carefully examined each and all of the many remaining cases cited by plaintiff. We do not find any decision involving a surety bond containing a clear provision forbidding accumulation of liability, as in the case at bar, where the court permitted imposition of cumulative liability by reason of the payment of annual premiums for renewal.

It would be impossible for us to consider within the space limitations of this opinion all of the cases cited by plaintiff in connection with this aspect of the case at bar. However, we will consider three decisions, all cited and relied upon by plaintiff, as representative of its contentions. In our opinion, none of these cases are applicable here for the reasons stated.

In United States v. American Surety Co., (2nd cir. 1949), 172 F.2d 135, the court considered a surety bond covering a postal clerk. The bond did not contain any express provision against non-accumulation of annual liabilities such as we find in the case at bar. The court expressly stated that cases involving bonds which contain provisions clearly negating cumulative liability were not in point. (See 172 F.2d 135 at 137.) This decision was the subject of an annotation in 7 A.L.R.2d 946. The annotator expressly states that in cases involving language specifically limiting liability, these provisions are generally upheld. (See 7 A.L.R.2d 946 at 948.) The annotation cites a number of cases supporting the proposition that courts will not hesitate to enforce clear and unambiguous provisions in employees’ surety bonds which expressly negate cumulation of annual liabilities. (See 7 A.L.R.2d 946 at 957 and following.) Another example of adherence to this principle by the courts is to be found in a later decision by the Court of Appeals for the 2nd Circuit. In Scranton Volunteer Fire Co. v. United States F. & G. Co., (2nd cir. 1971), 450 F.2d 775, the court enforced such an express provision against noncumulation and stated that the courts of New York have reached a similar result. 450 F.2d 775 at 776-777.

Plaintiff next relies upon Aetna Casualty & Surety Co. v. Commercial State Bank, (E.D. Ill. 1926), 13 F.2d 474, reversed in (7th cir. 1926), 19 F.2d 969, for reasons not material here. The bond involved in that litigation did not contain specific provisions against cumulation of liability as in the case at bar. Consequently the district judge concluded that the parties did not intend to restrict the liability to the amount stated in the bond. The court of appeals expressly refrained from passing upon this question.

In Standard Acc. Insurance Co. v. Collingdale State Bank, (3rd cir. 1936), 85 F.2d 375, the court expressly stated that, “Neither the bond nor the schedules contain any statement that the liability was to be noncumulative.” (85 F.2d 375 at 376.) This language contradicts the statement made by plaintiff that the bond, there, was “identical” to the language in the case at bar. The bond itself involved in that case is reproduced in full in the opinion. It has.no prohibition against cumulation of liabilities but merely states “# * * nor shall the suretyship granted for one period cover defaults occurring within some other period.” See 85 F.2d 375 at 377.

By way of contrast in the case at bar, the repeated language in both the position bond and the blanket bond and the accompanying documents is clear and unambiguous and impels forcefully to the conclusion that the liability of the surety shall not be cumulative from year to year or from period to period irrespective of the total amount of the employer’s losses. This basic distinction is graphically illustrated in Hood v. Simpson, 206 N.C. 748, 175 S.E. 193 which is also quoted from and relied upon by plaintiff. In that case, a bank cashier embezzled funds during each year from 1920 to 1931 inclusive. The parties executed one bond and a number of renewal documents. In 1929 the parties executed a so-called “superseded suretyship rider.” This document was a prime example of ambiguity. It provided that the superseding bond covered any loss which would have been recoverable under any superseded bond. It also provided that it should not be construed to render the surety Hable for a larger amount than would have been recoverable under such superseded bond and also that the Habihty of the company would not be cumulative.

The court enforced cumulative Habihty. The court pointed out, by reference to its earher decision in Jacksonville v. Bryan, 196 N.C. 721, 147 S.E. 12, that this result was reached because of the existence of the ambiguity. In Jacksonville, there was no ambiguity. (See Hood v. Simpson, 206 N.C. 748, 175 S.E. 193 at 199.) In the case at bar, since the language of the agreement between the parties is similarly clear and unambiguous, we are not authorized to use canons of construction (as plaintiff suggests) but we are obhged to enforce the agreement in accordance with its unmistakable terms. Illinois National Insurance Co. v. Trainer, 1 Ill.App.3d 34, 37, 272 N.E.2d 58. See also Lauer v. Blustein, 1 Ill.App.3d 519, 521, 274 N.E.2d 868.

However, plaintiff carries the argument further and urges strongly that the appHcable provisions of the Illinois Credit Union Act are binding and mandatory and must be construed together with the contractual documents before us and that this statute requires that the Hability of National be cumulated.

In this regard, we must first state two general principles which constitute essential points of departure. The contract documents involved in the case at bar were all approved as to amounts by plaintiffs own board of directors. They were also approved, without exception, as to amounts and as to form by the Auditor of Pubfic Accounts or by the Director of Financial Institutions of Illinois. Each and aH of these documents were duly filed with either one of these two state officials. Under circumstances of this type, there is a presumption of validity of the bonds as they were written and executed by the parties. In this situation, the absence of any action by the duly elected officials of IHinois during all of the years in which these bonds were in their possession requires us to infer that the bonds were in proper form in accordance with the appHcable law of IHinois. (See Bernardini v. Home & Automobile Insurance Co., 64 Ill.App.2d 465, 467-468, 212 N.E.2d 499.) This principle is buttressed by its corollary which requires courts to presume that duly designated governmental officials have performed their duty in accordance with law. (Weinstein v. Daley, 85 Ill.App.2d 470, 476, 229 N.E.2d 357.) The next principle, also to be considered, is that the law of IHinois, which existed at the time of execution of these documents of surety, is deemed a part thereof with the same force and effect as though expressly referred to or incorporated therein. This has reference to the law as expressed in the constitution, statutes, and appHcable court decisions. Goble v. Central Sec. Mutual Insurance Co., 125 Ill.App.2d 298, 302, 260 N.E.2d 860.

Application of these principles and disposition of this contention made by plaintiff requires examination of the pertinent statutes of Illinois. The Credit Union Act of Illinois was in existence when the original bond was executed by these parties in 1948. (Ill. Rev. Stat. 1947, ch. 32, par. 474 et seq.) This statute required the directors of the credit union to fix the amount of the surety bond which was to be required of all officers and employers handling money. The bond was to be approved as to amount by the Auditor of Public Accounts. This Act was amended by legislation effective October 31, 1953. (Ill. Rev. Stat. 1953, ch. 32, par. 496.1, et seq.) The provision for fixing of the amount of bond by the directors was retained. The amended statute also stated three pertinent requirements with reference to these surety bonds (par. 17): the bond was stated to be “* * * a condition precedent to qualification or entry upon the discharge of his duties * * *” as to every appointed or elected person handling funds or property of the credit union; the bond was to be given “* * * in such adequate sum as the Board of Directors and the Auditor of Public Accounts shall require and approve # * *”; schedule or blanket bonds were expressly permitted and such bonds were to “* * * be in the form prescribed by the Auditor of Public Accounts.” These provisions, now relied upon by plaintiff, were retained in each and all of the credit union statutes applicable to and including 1965. The only change in the above cited language was the substitution of the Director of Financial Institutions for the Auditor of Public Accounts as stated in the 1965 enactment.

Upon examining this statute, it is most notable that there is no prohibition expressly set forth therein against contract provisions for non-cumulation of the annual liability of the surety such as exist in the case at bar. There is no provision in this statute which expressly requires that new and distinct bonds be given during each year of the incumbency of any officer of the credit union. Neither does such prohibition appear by necessary implication from the language of the statute. This situation is accentuated by examination of Hood v. Simpson, 206 N.C. 748, 175 S.E. 193, quoted from and relied upon by plaintiff as above mentioned. There, the applicable statute of North Carolina contained language that any bank injured by breach of the statutory bond “* * * may put the same in suit and recover such damages as it may have sustained * * (175 S.E. 193 at 197.) This same language was repeated in several subsequent amendments to the statute. In view of the patent ambiguity existing in the contract in Hood, it appears that the statute would enable the bank to recover all of its damages. No comparable situation exists in the case at bar.

The courts of Illinois have given us precedent involving mandatory provisions of statutes which are required to be read into policies of insurance issued thereunder. In Morelock v. Millers Mutual Insurance Assn., 125 Ill.App.2d 283, 288, 260 N.E.2d 477, the court held that statutory language requiring insertion in an automobile liability policy of a provision covering damage or injury caused by the operator of an uninsured motor vehicle was necessarily deemed included within a policy and superseded a clause in the policy which would have attempted to limit this provision.

In the later case of Smiley v. Estate of Toney, 44 Ill.2d 127, 254 N.E.2d 440, in considering the same statute, the Supreme Court pointed out that mandatory provisions in the statute as to amount of recovery are binding upon the parties and may not be disregarded. Beyond the area of mandatory coverage, the parties were governed by the provisions of their own contract. This principle is applicable in the case at bar. There is no mandatory provision in the Credit Union Act of Illinois which requires cumulation of liabilities from year to year in the case at bar. The rights of these parties must necessarily be governed by the language of their own agreement.

In this regard, counsel for plaintiff presses the argument that the three above, cited provisions of the statute should be construed to require accumulation of liability. We cannot agree. The requirement that the bond was a condition precedent to qualification of the officer was fully complied with in the case at bar. It has no further efficacy. The form of each of the bonds and of the renewal documents, without exception, were prescribed by the Auditor or by the Director and approved by them. We cannot possibly construe the words “adequate sum” as reaching the result urged by plaintiff. In this context, the word “adequate” cannot possibly be taken to be equivalent to “unlimited.” This language must be applied in a reasonable manner and necessarily must have reference to the situation as it existed in the minds and intentions of the interested parties when the bonds were written. This is shown by considering the entire language of this portion of the statute which provides that the bonds shall be in such adequate sum as the designated state official and plaintiff’s own directors should require and approve. This record is clear and uncontradicted that the amounts in each case were fixed by these authorities upon due consideration of plaintiff’s assets at the time in question. We cannot construe this statute as requiring cumulation of the annual liabilities.

It follows that the trial court acted properly and in accordance with law in limiting the recovery of plaintiff against National to the amount of $12,6,29.11, in entering judgment in favor of plaintiff and against National for said amount and also in denying plaintiff’s motion for summary judgment against Nationál in a larger amount.

Judgment affirmed.

BURKE, P. J., and HAYES, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    John Linebaugh Knuppel, Plaintiff-Appellant, v. John F. Adams et al., Defendants-Appellees.
    (No. 73-1;
    Third District
    July 3, 1973.

      Robert H. Brunsman, of Springfield, for appellant.
    Robert L. Welch, State’s Attorney, of Virginia, and Walter J. Sebo, of Canton, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The State Electoral Board declared the plaintiff, John. Linebaugh Knuppel, elected to the office of State Senator from the 48th Legislative District of Illinois by virtue of having received 41,080 votes against 40,-743 votes for John F. Adams, his opponent at the November 7th, 1972 election. A certificate of election was thereupon issued to the plaintiff. The defendant, John F. Adams, then filed instruments alleged to be peth tions for discovery in certain precincts of five counties in the eight-county senatorial district. Plaintiff filed a complaint against the defendant Adams together with the county clerks of all of the counties in the senatorial district, seeking a permanent injunction and moving for a temporary restraining order to enjoin the discovery of ballots.

The complaint and motion are substantially based on allegations that the petitions for discovery are insufficient and do not comply with the statute (Ill. Rev. Stat. 1971, ch. 46, par. 22 — 9.1); and further that the statute in limiting discovery recounts to precincts using paper ballots and in failing to provide the same rights, procedures and remedies to a declared successful candidate as are provided to an unsuccessful candidate violates the due process and equal protection clauses of both the Illinois Constitution of 1970 and the United States Constitution. Plaintiff alleges irreparable damage unless the recount is enjoined.

The discovery recounts were set for December 13th, 19th, 20th, 21st and 26th, 1972. On December 11th, 1972, a temporary restraining order was entered pursuant to the request of the motion. On December 18th, 1972, defendant Adams moved to dissolve the temporary restraining order and on the same day plaintiff moved for a temporary injunction. The court set a hearing date for December 21st, 1972, at which time it denied the temporary injunction motion, confirmed that the temporary restraining order was at an end, and set an appeal bond. A motion for stay of enforcement was subsequently filed and denied and this interlocutory appeal followed.

Presumably the discovery recounts in question have already taken place. Defendants have not filed an answering brief in this court, but ■have advised us that in their view the question is moot “for the Senate of the State of Illinois has directed a recount be had and the discovery proceedings involved in the case would not be used.” The plaintiff has answered that it is his position that the case is still a justiciable matter inasmuch as there are eight counties included in the legislative district, and stating “while recount appears to have been determined to be ordered in four of the counties, we believe the matter should be decided by the Court.”

Although plaintiffs answer has not persuaded us that affording him the requested relief of reversing the trial court would serve, at this point in time, a useful purpose, the appeal of the denial of the temporary injunction will not be dismissed as moot as an issue of substantial public importance meriting some analysis is involved. (Wachta v. Pollution Control Board (1972), 8 Ill.App.3d 436, 437.) For reasons which we shah discuss, we have concluded that the trial court properly denied the requested temporary injunction.

First, without discussing in detail the defects which plaintiff claims exist in defendant’s petitions for discovery recount, it is clear to us that the technical defects aHeged and argued on appeal are not jurisdictional. The petitions were apparently timely filed and sufficiently inform the clerics of what is requested. The defects complained of here do not relate to any mandatory requirements of the statute. (Cf. Whitley v. Frazier (1961), 21 Ill.2d 292; Bethard v. Mink (1971), 131 Ill.App.2d 1007.) A reading of section 22 — 9.1 of the Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 22 — 9.1) indicates that obtaining discovery should be a relatively non-technical procedure. (Compare par. 22 — 9.1 with par. 23 — 20 of Ill. Rev. Stat. 1971, ch. 46.) Thus enjoining the discovery recount on the basis of the form of defendant Adams’ petitions would be improper, since no irreparable harm to the plaintiff can accrue by reason of technical defects in the petitions in question.

Second, in order to obtain temporary injunctive relief, plaintiff must allege some irreparable harm if the status quo is not preserved. (County of Du Page v. Robinette (1966), 77 Ill.App.2d 167, 170.) In none of his pleadings does plaintiff state in particular terms and in what manner he will be irreparably harmed if a temporary injunction is not granted. Nor does a reading of the discovery statute in question reveal how plaintiff will suffer, since he is entitled to be present at the discovery recounts, the discovery cannot affect the results of the canvass, and the recount is not binding in an election contest. (Ill. Rev. Stat. 1971, ch. 46, par. 22 — 9.1.) The mere conclusionary language in the pleadings that plaintiff will be irreparably harmed is therefore insufficient. Delta Die Casting Co. v. Village of Schiller Park (1958), 17 Ill.App.2d 543, 546.

Third, a temporary injunction should not be granted where it has the effect of giving to the plaintiff all the relief which could be obtained by a final decree. (City of Monmouth v. Payes (1963), 39 Ill.App.2d 32, 40-42.) Defendant Adams would want to know the results of his discovery recounts before the time for initiating an election contest had expired (Ill. Rev. Stat. 1971, ch. 46, par. 23 — 13 (30 days)), so he could determine whether sufficient grounds exist for initiating such a contest. Granting plaintiff a temporary injunction would, in effect, destroy the usefulness of defendant Adams’ statutory right to discovery before a hearing on the merits of plaintiff’s complaint.

The challenge to the constitutionality of tire discovery statute, while raising substantial questions of interpretation and public policy, is not ripe for decision in this appeal. The gist of the constitutional issue is not so much that the statute by its terms allows discovery only to an unsuccessful candidate, but that once involved in an election contest the winner declared by the Canvassing Board may be unable to obtain recounts in uncounted precincts because he cannot specify that substantial errors will be revealed in the ballots which have not been subject to the discovery procedures (barring an independent basis for that conclusion). In effect, the claim is not that the inexpensive and informal discovery procedure allowed under section 22 — 9.1 operating by itself is inequitable (it may in fact benefit the successful candidate by revealing favorable errors), but that there may be circumstances in the election contest procedures as a whole when the successful candidate may be prejudiced if he cannot obtain recounts in areas not specified by his opponent because he could not conduct discovery there which could possibly outweigh any losses suffered in the specified areas. Cf. situation in Louden v. Thompson (1971), 1 Ill.App.3d 809.

Plaintiff therefore would have the enjoining court assume that the discovery recount turns up evidence which on balance is favorable to the defendant; that on the basis of such discovery the defendant initiates an election contest; that plaintiff then loses the contest on the basis of discovery evidence; and that all the precincts are not counted. Unless all these contingencies occur, affording only the unsuccessful candidates a discovery recount will not prejudice the candidates declared successful by the Canvassing Board. (See, e.g., Crum v. Green (1966), 68 Ill.App.2d 246, 247 — 248.) Moreover, plaintiff’s theory of unconstitutionality assumes that plaintifFs ability to obtain further formal recounts in the election contest (cf. Ill. Rev. Stat. 1971, ch. 46, par. 23 — 23) will be interpreted in a manner which will result in his unequal protection. And further it assumes that the resolution of the contest in the Senate (as provided under Ill. Rev. Stat. 1971, ch. 46, par. 23 — 2) will be on the basis of procedures similar to those afforded under section 23 — 23 of the Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 23 — 23), rather than by the rules of the Senate, which are not before us.

A temporary injunction should not issue on the basis of a statute alleged to be unconstitutional unless such unconstitutionality appears clearly on the face of the statute. Statutes are presumed constitutional and courts are to exercise caution in issuing preliminary injunctions especially where defendant seeks to exercise a legal right. (Chicago Motor Coach Co. v. Budd (1952), 346 Ill.App. 385, 396.) Plaintiff assumes that now is the only time to attack the constitutionality of the discovery statute by means of the drastic remedy of temporary injunction. However, a court will not anticipate constitutional questions and the inconvenience of postponement of decision will not disturb that determination. (People v. Illinois Protestant Children’s Home (1965), 33 Ill.2d 60, 65.) And a court will not discuss the constitutionality of a provision of an act where the party urging the invalidity of such provision is not in any way aggrieved by its operation. (Crum v. Green (1966), 68 IlI.App.2d 246, 248; People v. Illinois Protestant Children’s Home (1965), 33 Ill.2d 60, 65; People v. Diekmann (1918), 285 Ill. 97, 101.) Plaintiff at the time he sought the injunction would in no way be harmed by the operation of the alleged unconstitutional discovery statute. The question therefore, in our view, is not ripe for a decision on the merits.

To the extent that the appeal is based upon alleged irregularities in the discovery petition, plaintiff’s argument is without merit. As to the constitutional issue raised, while we concede that the issue is a substantial one and perhaps should be resolved at the proper time and upon proper pleadings, the circumstances here do not present an appropriate case in which to decide the constitutional issue directly on its merits. For the reasons indicated, we hold the trial court properly denied issuance of the temporary injunction.

We therefore affirm.

Judgment affirmed.

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Holmes, Defendant-Appellant.
    (No. 11614;
    Fourth District
    July 5, 1973.

      Charles J. Gramlich, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Walter H. Kasten, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of murder and attempted armed robbery upon a jury verdict. Sentence of 50 to 100 years was imposed.

Upon appeal it is urged that the trial court abused its discretion in denying defendant’s motion for continuance made upon the morning of the trial date, that it was error to consider a prior adjudication of delinquency at the hearing in aggravation and mitigation, that certain reports prepared by the Department of Corrections and introduced over objection at said hearing were inadmissible hearsay and that the sentence was harsh and excessive. The events and the acts of defendant during the offense are not relevant to the issues to be considerd.

It is contended that the refusal of the continuance deprived defendant of a sufficient time to prepare his defense. Such motion was presented on the morning of the first day of trial, March 29,1971. Defendant and two co-defendants represented by a public defender had been arraigned on January 5th. On January 18th, defendant’s counsel was appointed and on February 18th numerous discovery motions were filed by him. Such motions were heard on March 1st. On March 11th, the prosecution filed numerous matters in response to the motions, including the statements of the witnesses and the police investigative reports. Such documents contained the names of all of the witnesses which appeared on the list of witnesses thereafter supplied defendant on March 26th, except the names of four. The record shows that the testimony of the latter were essentially corroborative or cumulative in detail of matters otherwise in evidence. The testimony of the additional witnesses, whose names were provided on the date of trial, did not include any matter critical upon the issue of guilt. The State’s Attorney offered and the court directed that such witnesses be made available for interview. The report shows effective cross-examination of such witnesses, and there is, in fact, no specific claim of prejudice. While the list of witnesses provided on March 26th including 44 names, such names were contained in the statements of witnesses and police investigative reports supplied upon March 11th.

A continuance because of inadequate time for preparation is within the trial court’s discretion and will not be disturbed on review unless it is shown that the discretion has been abused. (People v. Kenzik, 9 Ill.2d 204, 137 N.E.2d 270; People v. Bond, 99 Ill.App.2d 45, 241 N.E.2d 218.) The burden of showing that it was prejudicial to permit the unlisted witnesses to testify, or that he was surprised by the testimony, is on the defendant. (People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595.) The issue contended for is not persuasive in view of the fact that the motion was not made until the date of trial. (People v. Bond. See also People v. Mitchell, 128 Ill.App.2d 90, 262 N.E.2d 798.) People v. Panker, 120 Ill.App.2d 203, 256 N.E.2d 471, is relied upon by defendant, but such case is clearly distinguishable in that neither defendant nor his attorney had received notice of the trial date, and the case was called for trial within 14 days of the arraignment.

Defendant’s claim of surprise by reason of the granting of a severance on the day of trial shows no more than a statement that defendant’s counsel had expected to have co-counsel at the trial. The record discloses that the severance essentially resulted from the fact that the two co-defendants claimed dissatisfaction with the public defender representing them and procured retained counsel who was in trial on this date in another county. At a hearing on March 26, 1971, defendant’s attorney stated that he had no position with reference to the motion of the co-defendant to sever. The co-defendants were not called during the trial to testify. In People v. Allen, 132 Ill.App.2d 1015, 270 N.E.2d 54, it was held that where a co-defendant was removed from the trial at a subsequent time after defendant’s arraignment, and where such co-defendant was not called to testify during the trial, the defendant was not prejudiced by the severance and there was no reversible error. The motion to sever had been pending for nearly a month and defendant had no particular right to assume that it would be denied. See People v. Jordan, 38 Ill.2d 83, 230 N.E.2d 161.

Defendant urges that it was error to admit evidence over objection of a delinquency decree entered in 1965 under the provisions of the Family Court Act, Ill. Rev. Stat. 1965, ch. 23, par. 2001.

We note initially that the issue here is distinguishable from the issue in People v. DeGroot, 108 Ill.App.2d 1, 247 N.E.2d 177; People v. Stewart, 130 Ill.App.2d 623, 264 N.E.2d 557, and People v. Rice, 5 Ill.App.3d 18, 282 N.E.2d 526. In these cases the court actually listened to hearsay testimony or prejudicial statements while in the stage of determining guilt, and it was said that in overruling the objections to the evidence the court was deemed to have considered the evidence competent for consideration, and that such was reversible error. Here, the evidence consisted of exhibits identified as a delinquency decree and certain diagnostic reports, each marked as an exhibit and admitted. At such point the evidence in aggravation was terminated, counsel spoke with defendant briefly and proceeded with one witness in mitigation. The record shows that the court immediately proceeded to hear counsel, and thereupon pronounced sentence. The court’s comments at the time of sentence were directed entirely to the grossness of the conduct in committing the murder charged without any reference to defendant’s record. Within the limits of the record presented, testimony was not heard by the court as in DeGroot, Stewart and Rice. It does not appear that there was opportunity for the court to actually examine the several exhibits in this record. It does not affirmatively appear that the court was misled or improperly influenced. People v. Grodkiewicz, 16 Ill.2d 192, 157 N.E.2d 16.

Apart from such conclusion, such evidence was admissible. The section of the Family Court Act noted provided that the delinquency decree and the evidence in support thereof should not be admissible in a civil or criminal proceeding except that upon subsequent conviction of the felony such may be introduced and considered upon an application for probation. The Juvenile Court Act, Ill. Rev. Stat. 1971, ch. 37, par. 702 — 9(2), effective January 1, 1966, provides that a judgment of delinquency and the evidence in support thereof may also be considered in determining the sentence to be imposed upon a subsequent conviction of the “crime”.

It is defendant’s contention that since the delinquency concerned was determined under the Family Court Act, the evidentiary exclusion proceedings and motion apply to those proceedings without regard to the provisions of the Juvenile Court Act. There is, however, no vested right in a rule of evidence. (Public Aid Com. v. Brauer, 11 Ill.2d 416, 142 N.E.2d 789.) The evidence of a prior juvenile record is admissible in mitigation and aggravation. People v. Powell, 53 Ill.2d 465, 292 N.E.2d 409.

It is urged that defendant was not a “delinquent minor” within the meaning of Ill. Rev. Stat. 1969, ch. 37, par. 702 — 2. That paragraph defines a delinquent as one who violates or attempts to violate any state or federal law. In the delinquency decree defendant was designated as “incorrigible”. The Family Court Act, ch. 23, par. 2001, then in effect, defined delinquency in terms of a violation of law and certain other conduct which, under the Juvenile Court Act, Ill. Rev. Stat. 1971, ch. 37, par. 702 — 3, would now be classified as a need of supervision. The decree at issue, despite the characterization “incorrigible”, committed defendant to the Youth Commission and ordered a warrant of commitment to issue. The exhibits in evidence show that defendant did, in fact, violate the law on several occasions and attempted other violations. The record shows that defendant was delinquent within the terms of ch. 37, par. 702 — 3.

Defendant further urges that it was error to admit the diagnostic reports prepared while defendant was with the Youth Commission. The objection was that the witness did not prepare the report and could not testify that the records were made or kept under his supervision. The testimony is that such reports were a part of the files maintained by the Illinois Department of Corrections, prepared at the Diagnostic Center and maintained for use in parole placement. In Douglass & Co. v. Industrial Com., 35 Ill.2d 100, 219 N.E.2d 486, it was held that records kept by persons in public office which they are required to maintain for the performance of official duties are admissible as evidence of matters properly required to be maintained and recorded in such office. We further note that as to the argument upon hearsay received for purposes of sentence, Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g) contemplates a broad hearing upon the background of the defendant, including his criminal records for the purposes of sentence. (People v. Spann, 20 Ill.2d 338, 169 N.E.2d 781; People v. Forman, 108 Ill.App.2d 482, 247 N.E.2d 917.) The so-called “rap sheet” of prior convictions is admissible, although a matter of hearsay. (People v. Daugherty, 106 Ill.App.2d 250, 245 N.E.2d 7.) Similarly, probation reports or pre-sentence reports contain much hearsay, but are deemed admissible for consideration in determining sentence.

Counsel urges, in general terms, that the sentence is harsh and excessive. At the time of sentence, defendant’s counsel suggested a minimum of 20 years. The trial court pointed out that eligibility for parole upon the minimum sentence imposed was the same as that for the suggested minimum for 20 years. (See Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1003 — 3 — 3.) The court noted that he wished to assure the maximum possible time for supervision in the event of the release upon parole. The trial court heard the evidence and had the opportunity to observe the defendant. No mitigating circumstances can be discovered in the conduct culminating the murder. The authority of a reviewing court to reduce sentence is to be used with caution. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) Such authority is not to be used to substitute the judgment of the reviewing court for that of the trial court. People v. Scott, 117 Ill.App.2d 344, 253 N.E.2d 553.

The jury verdicts found defendant guilty of both murder and attempted robbery. Judgments were entered upon each of such verdicts although no sentence was imposed on the conviction of attempted robbery. It appears that the attempted robbery cannot be said to be independently motivated or otherwise separable from the offense of murder, and accordingly the conviction of attempted robbery is reversed. People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651.

The conviction of murder is affirmed but the conviction of attempted robbery is reversed and the cause is remanded to the circuit court with directions to issue an amended mittimus.

Affirmed in part, reversed in part and remanded with directions.

CRAVEN, P. J., and SMITH, J., concur.


author:
Mr. JUSTICE SMITH
      Mr. PRESIDING JUSTICE CRAVEN

text:
    The City of Champaign, Petitioner-Cross Respondent, v. The Pollution Control Board et al., Respondents-Cross Respondents—(The Board of Trustees of the University of Illinois, Respondent-Cross Petitioner.)
    (No. 11651;
    Fourth District
    July 5, 1973.

      CRAVEN, P. J., dissenting.
    Albert Tuxhorn, City Attorney, of Champaign, (James W. Evans, Assistant City Attorney, of counsel,) for petitioner.
    William J. Scott, Attorney General, of Springfield, and James J. Costello, of Urbana, (Thomas J. Immel and Frederick C. Hopper, Assistant Attorneys General, and Donald V. Dobbins, of counsel,) for respondents.
    Frank M. Pfe'fer and Thomas W. Kelty, of Illinois Municipal League, of Springfield, for amicus curiae.

   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal from an order of the Illinois Pollution Control Board originating in administrative proceedings before that Board initiated by complaint, of the Environmental Protection Agency against the cities of Champaign and Urbana. Urbana’s motion for severance was granted. The City of Champaign and the University of Illinois seek review directly in this court under the provisions of section 41 of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111½, par. 1041.) Forsake of brevity, we will refer to the City of Champaign as the “City”; the Environmental Protection Agency as “EPA”; the Pollution Control Board as the “Board”; Alpha Material and Fuel Company as “Alpha”; and the Board of Trustees of the University of Illinois as the “University”. The underlying basic issue as charged is that the City caused or allowed water pollution on certain dates by permitting contaminants to enter the Boneyard Creek. The Boneyard Creek is a natural water course meandering through the corporate limits of the City and into it runs the surface waters of a part of the City and into it water is delivered from separate storm sewers, owned and maintained by the City. The lower terminus of the Boneyard Creek is its junction with the West Branch of the Salt Fork of the Vermilion River. A barrage of constitutional and procedural deficiencies is leveled at the Act creating the EPA. Our discussion will be limited to a determination of those issues only which are necessary to a disposition of this case.

. At the outset the stance of the EPA in this court is that it is an innovative administrative body witth a new approach and new procedures in the solution of one of society’s many problems. It is suggested that it is an innovative administrative body with powers not necessarily subject to either civil or criminal rules as they are normally understood. However innovative it may be, we do not believe the legislature intended to create a legalistic gadfly unrestricted by well recognized constitutional, civil and criminal procedures.

The City filed a motion before the Board to bring in additional parties. respondent. This motion was allowed and the City was directed by the hearing officer to file a third-party complaint against Alpha and the University. Alpha was charged with the discharge of contaminants on September 21 — an apparently single-shot violation — and a cease and desist order was entered against it in the Board’s final order. Alpha does, not appeal.

The University was charged by the City in the third-party complaint with contributing to the pollution through the operation of its Abbott Power Plant on August 7 and August 18 and sought to transfer its responsibility to the University. The EPA stipulated to the truth of file University’s claim “that the University has been, is now and will continue to be developing a sound engineering plan for the disposal of waste water which will meet the requirements of the EPA Act.” In addition, under section 47(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1047(a)), the State of Illinois and all of its agencies are required to comply with the provisions and regulations adopted under the Act, and each agency or institution is required to annually assess the environmental problems created by its operations and to report to the EPA on or before December 1 of each year. Under section 47(c) of the Act, each such agency is required to file with the EPA the plans, specifications and cost estimates for any proposed installation of facilities that may cause a violation of the Act or the regulations adopted thereunder. From anything charged by the EPA against the University, we cannot assume that there will be a violation of these provisions by the University. Furthermore on the two dates specified in the third-party complaint the Board specifically found that a pollutional discharge into the Boneyard Creek did occur on August 7, but that there was no proof by any party to substantiate the claim that the Abbott Power Plant was the source of that pollution. The Board also found that the allegations of pollution occurring on August 18 were not established. Procedural simplicity and procedural exactitude suggest that if the Abbott Power Plant of the University is contributing to the pollution of the Boneyard Creek, it can and should be established by appropriate pleadings and appropriate proof. The pollution charged was not established and the Board so found. The Board further stipulated that the University was in effect doing all it could to abate any pollution that might result and lastly the order of the Board only required the University to comply with the statute above stated without any finding that such an order was either necessary or required. There was no justiciable issue between the Board and the University and the order against the University, on this record was an exercise in futility.

The Illinois Municipal League has filed its amicus curiae brief, which along with the briefs of the other parties attacks the constitutionality of the Environmental Protection Act on many grounds. Most, if not all, of the constitutional questions so raised are not reached on this record. No monetary sanctions or penalties have been imposed against either the University, the City or Alpha. The time required for the parties to make reports under the Board order has expired and those issues are now moot. In addition, paragraph 4 of the order states that “upon receipt of the above required reports, the Board will decide what further proceedings are appropriate." What if any final order may be entered by the Board is at this point in limbo.

The order does require the City to submit to the Board “a detailed program for the policing of Boneyard Creek and of its storm sewers in order to prevent the discharge of unnecessary pollutants into the creek from the storm sewer system operated and maintained by the City.” This record indicates that the City does own storm sewers which empty into Boneyard Creek and that street surface water of the City finds its way into Boneyard Creek. The City contracted with the Urbana-Champaign Sanitary District in 1949 for the Sanitary District “to provide and keep in repair an adequate system of storm sewer drainage .therein and to correct any unsanitary and unhealthful conditions existing therein.” Until after the City files its program for policing the discharge of unnecessary pollutants into Boneyard Creek, there can be no appropriate determination whether or not or to what extent the responsibility rests with the City or other parties nor any basis to determine if, when, how or by whom the Boneyard may be made pure. We think the aption of the Board must be within the- pleadings, supported by the evidence and present a justiciable issue. See City of Monmouth v. Environmental Protection Agency, 10 Ill.App.3d 823, 295 N.E.2d 136.

Its order as to the University is vacated and for naught held. Its order as to the City is vacated and the cause remanded for such further proceedings as may now be deemed proper and appropriate within the scope of existing or appropriate supplemental pleadings and evidence. .

Reversed in part; reversed and remanded in part.

SIMKINS, J., concurs.

Mr. PRESIDING JUSTICE CRAVEN

dissenting:

This appeal should be dismissed for want of a final appealable order and because the issues are moot.

This court reviews final orders of the Pollution Control Board by reason of the provisions of section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1041). That statute provides, in part, that any party adversely affected by a final order or determination of the Board may obtain judicial review under the provisions of the Administrative Review Act. This proceeding must, therefore, relate to a final order. The only difference between this case and most administrative review cases is that the review is initially obtained in the appellate court. We are limited, however, to a review of final orders or determinations.

Boneyard Creek is polluted by reasons of the discharge of contaminants and polluted waters into that creek. A stipulation filed in this proceeding establishes the fact of pollution and the further fact that polluted waters are discharged into the Boneyard through various outlets of storm sewers owned by the City of Champaign. In some instances, the City has had no knowledge of such pollutional discharges and on other occasions it has had knowledge of such pollutional discharges and has made some effort to stop, and has stopped, such discharges. The stipulation further establishes that the University of Illinois has contributed to the pollutional problems of Boneyard Creek by virtue of discharge from its Abbott Power Plant. Thus, under that stipulation there cannot be any debate about the fact of pollutants being discharged into the Boneyárd. This proceeding, was properly concerned with ascertaining what to do about that pollution and fixing responsibility for corrective action.

The Pollution Control Board rendered an opinion and the parties are not happy with some of the findings. The fact of the matter is, however, that the Pollution Control Board by its order only required the City of Champaign, no later than March 16, 1972, to submit a report to the Environmental Protection Agency. That report was to contain further information and a recitation of steps taken by the City to deal with the pollution and a detailed program to clean up and improve the quality of the water in Boneyard Creek within a reasonable fixed period of time and to the extent practicable. The order specified that upon reciept of the report the Pollution Control Board would decide what further proceedings were then appropriate. No specific affirmative action program was imposed upon the City. Only the filing of a report was required. The City has now filed such report. Thus, as to the City of Cham-paign, there is no order that finally determined anything, but rather the order is purely interlocutory in nature. It is not dispositive of any of the issues. It does not purport to impose any sanction and it is not final. Inasmuch as it is not final, it is not reviewable. Furthermore, the report has been filed and it seems strange that this court is determining the validity of an order requiring the filing of a report which has already been filed. The issue is moot and as to the City of Champaign the appeal should be dismissed.

As to the University of Illinois, it has admitted to the discharge of pollutants from its Abbott Power Plant. The Board ordered the University to file a report containing a program detailing the corrective measures to be taken by the University to stop the pollution. Here, again, the Board reserved for its future determination what further proceedings might be appropriate after receipt of the report. It does not appear that the University has filed the required report. However, even absent the order of the Pollution Control Board, the University is statutorily required to report to the Environmental Protection Agency on or before December 1 of each year with reference to the same subject matter encompassed in the report. Thus, the order of the Pollution Control Board as to the University essentially only duplicates the statutory duty. (See Ill. Rev. Stat. 1971, ch. 111½, par. 1047.) Thus, as to the University, the order is not final and only requires the doing of that which the law already requires. A review of that order is thus an academic exercise. The appeal should be dismissed as to tire University.