author: MR. JUSTICE DAVIS

text:
    Serbian Eastern Orthodox Diocese for United States of America and Canada, etc., et al., Plaintiffs-Appellees, v. Firmilian Ocokoljich, et al., Defendants-Appellants. The Right Reverend Bishop Firmilian Ocokoljich, et al., Plaintiffs-Appellants, v. Dionisije Milivojevich, Defendant-Appellee.
    Gen. No. 65-40.
    Second District.
    April 7, 1966.
    Supplemental opinion September 7, 1966.
    Rehearing denied September 7, 1966.

      Raymond, Mayer, Jenner & Block, Katz and Karacic, and John J. Crown, all of Chicago, and Henry D. Fisher, of Waukegan, for appellants.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves two actions — consolidated in the trial court — which narrate a dispute over the control of the Serbian Eastern Orthodox Diocese for United States and Canada, and the property and assets of this Diocese, and of a related institution. The trial court determined this matter by granting a summary judgment in one suit, and granting a motion to dismiss in the other. The judgment and order were based upon extensive pleadings, depositions and affidavits. Because of the summary presentation and the conflicting representations of the parties, the factual background necessary to an understanding of the case, is not in all respects certain.

We will relate the church and corporate histories, and the church and corporate laws of the institutions involved, as best we comprehend them under the posture of this appeal, in that such background is essential to an understanding of the issues involved in these pleadings.

In California and Pennsylvania in the 1890’s, Americans of Serbian descent formed completely autonomous religious associations. In 1917, these Serbian church societies became associated with the Russian Orthodox Church which sent Father Mardarije Uskokovich to this country to organize an “independent” Serbian Diocese in America.

In the 1920’s, the Diocese in this country became affiliated with the Serbian Orthodox Church of Yugoslavia. This Diocese was incorporated in 1927 under the laws of the State of Illinois, as a religious society, under the name of “Serbian Orthodox Diocese Council for United States and Canada.” It duly adopted a Constitution, which was approved by the Serbian Orthodox Church of Yugoslavia.

This charter was permitted to lapse, and in 1935, a new religious society was again incorporated under the laws of the State of Illinois, and was called “Serbian Eastern Orthodox Diocese for United States of America and Canada.” Its Constitution was substantially the same as that of the first corporation and it was likewise approved by the Serbian Orthodox Church of Yugoslavia.

The Holy Bishops Assembly of the Serbian Orthodox Church, Yugoslavia, elected Dionisije Milivojevich as Bishop in 1938, and the following year appointed him as Bishop of the Diocese in this country. When King Peter H of the Kingdom of Yugoslavia was deposed by the Communists in 1944, Bishop Dionisije became concerned that efforts might be made by the Communist government to obtain control of the property of the Diocese in this country. Consequently, this religious corporation, acting through its Diocesan Council, which is hereafter more fully defined, adopted a resolution calling for the incorporation — under the general not-for-profit corporate laws of the State of Illinois — of a separate corporation, to which the assets of the religious corporation would be transferred and in which the title to the various assets would be held. Such a corporation was formed in the year 1945 under the name “Serbian Orthodox Monastery of Saint Sava.”

Before completing this chronology, we will briefly relate the relevant portions of the Constitutions and Bylaws of the Serbian Orthodox Church; of the Serbian Eastern Orthodox Diocese for the United States of America and Canada, the religious corporation; and of the Serbian Orthodox Monastery of Saint Sava, the not-for-profit corporation.

The Constitution of the Serbian Orthodox Church (with its headquarters in Belgrade, Yugoslavia) sets forth that the Serbian Orthodox Church is autocephalous, and governs and regulates independently, all of its religious affairs; and that it has the rank of a Patriarchate and maintains dogmatic and canonical unity with all other Orthodox Churches. It provides that the Church is episcopal with the main administrative divisions “composed of dioceses, both in regards to church hierarchical and church administrative aspect.”

Article 10 provides that there are the following church hierarchical and administrative authorities, bodies and organs:

“1. Patriarch, Holy Bishop’s Council and Holy Synod, High Ecclesiastical Court, Patriarchal Council and Patriarchal Board;
“2. Diocesan Bishop, diocesan ecclesiastical court, diocesan council and diocesan executive board;

Additional authorities at a level below the dioceses are then set forth which are not pertinent to this decision. It is provided in Article 12:

“The Serbian Orthodox Church is epsicopal. Its main administrative division is composed of dioceses, both in regard to church hierarchical and church administrative aspect.’’ (Emphasis ours.)

Article 13 provides in part:

“At the head of each diocese there is the diocesan bishop as its direct ruler. He is, according to the church canonical regulations, chief representative and guiding leader of all church spiritual life and church order in the diocese and he rules the diocese assisted by his clergy and laymen.”

Article 14 reads: “These are the Dioceses in the Serbian Orthodox Church . . . .” It then lists a number of dioceses, all located within Yugoslavia. Article 15 provides that in addition to the dioceses previously named, there are additional dioceses outside of Yugoslavia “under the jurisdiction of the Serbian Orthodox Church in spiritual and heirarchical aspect.” (Emphasis ours.) Among those listed is the Serbian Orthodox Church in the United States of America and Canada. Article 16 provides that “Decisions of establishing, naming, liquidating, reorganizing, and the seat of dioceses ... is decided by the Holy Council of Bishops, in agreement with the Patriarchal Council.” For the reasons hereinafter stated, we believe that Article 16 applies only to those dioceses of the Serbian Orthodox Church which are under its jurisdiction in both church hierarchial and church administrative aspects.

Next, in the body of private laws governing the institutions before the court, is the Constitution of the Diocese. It states that the Diocese “is considered ecclesiastically —judicially as an organic part of the Serbian Patriarchate in the Kingdom of Yugoslavia.” Article 2 provides that “All statutes and rules which regulate the ecclesiastical — canonical authority and position of the Serbian Orthodox Church in the Kingdom of Yugoslavia are also compulsory” on the Diocese “with the exception of specific cases which must be formulated with regard to local circumstances in accordance with ecclesiastical and judicial principles.”

Article 3 of this Constitution provides that the jurisdiction of this Diocese includes the entire political territory of the United States and Canada, which by its geographical location enjoys “full administrative freedom” under which “it can independently regulate and rule the activities of its church, schools and other diocesan institutions and all funds and beneficiences, through its organs, but in accordance with the laws of this constitution and in agreement with the laws of the United States of America and Canada.” The highest legislative and administrative authority of the Diocese is the Diocesan National Assembly; its executive and administrative organ is the Diocesan Council. The Diocesan Assembly is opened by the Diocesan Bishop. One of its functions is to make changes and amendments to the Constitution “with the approval of the Holy Bishop’s (sic) Assembly of the Serbian Patriarchate.”

Article 9 provides that the Bishop of the diocese shall be appointed by the Holy Assembly of Bishops of the Serbian Patriarchate. Article 13 specifies that when the seat of the Diocese Bishop is vacated, the administration of the Diocese, in spiritual and administrative matters, shall be upheld by the Diocesan Ecclesiastical Court and Diocesan Council until an administrator is appointed “by the Serbian Patriarch with the Holy Poantifical Synod.” Article 14 provides that the Diocesan Bishop is the supreme head of the St. Sava Monastery in Liberty-ville and that he appoints the abbot of the monastery and “conducts the canonical supervision and the higher executive authority over the monastery.”

Article 149 provides that the property owned by the Diocese is “to serve exclusively for the purpose designated by the statutes of this Constitution and cannot be used for any other purpose.” Article 155 provides that the Diocesan Fund consists of “all funds and assets which the Serbian people of the entire Diocese, individually or collectively through their church-school congregations and other various societies and organizations should establish, increase and dedicate to the mutual necessities of its church and school for the religious and educational aims of the entire Diocese.” It further provides that the Diocesan Fund is to be supervised by the Diocesan Council. Article 156 provides that all real estate and personal property of the St. Sava Monastery in Liberty-ville is supervised by the monastery’s administration “under the direct control of the Diocesan Bishop.”

The Bylaws of the Serbian Orthodox Monastery of Saint Sava — the not-for-profit corporation formed in 1945 — provide that it is an autonomous Serbian Church institution; and further provide that the corporation “possesses its own property which cannot be disposed of, sold, mortgaged or otherwise conveyed by any Serbian Church authority, without the consent and approval of the Diocesan Council, headed by the Bishop and the Dioceson Church conventions.”

Article V provides that the Diocesan Bishop, “received as such by the Diocesan Council, by the Diocesan Church court and by the Diocesan Convention, is the supreme head of the Monastery and is the general overseer according to the Holy Canons of the Church. (By-Law 156 of the Diocese.)” Article VI of the Bylaws provides that the “president of the Board of Directors shall be the canonical Bishop of the Diocese, received as such by the Diocesan Council, by the Diocesan Church Court and by the Diocesan Convention.”

With the above Constitutions and corporate histories in mind, we considered the following chronology of events: On May 10,1963, the Holy Episcopal Synod of the Serbian Orthodox Church of Yugoslavia suspended Bishop Dionisije, and at the same time appointed Firmilian Ocokoljich as administrator of the Diocese; on May 17, 1963, its Holy Episcopal Council disbanded the American-Canadian Diocese and in its place established three new Dioceses, which extended beyond the borders of the United States and Canada and included South Africa and South America; and on said latter date, the Holy Episcopal Synod appointed Firmilian Ocokoljich, Gregorije Udicki and Stefan Lastavica as temporary administrators of the respective Dioceses. The Holy Bishops’ Council, on July 27, 1963, discharged Bishop Dionisije as Diocesan Bishop and elected Bishop Firmilian as Diocesan Bishop in his place. It is significant that Bishop Firmilian was not elected as Bishop of the Serbian Orthodox Diocese Council for United States and Canada, but rather was elected as Bishop of one of the three newly created Dioceses. The other two temporary administrators were likewise each respectively elected as a Bishop of one of the other two newly created Dioceses.

The Diocesan National Assembly adopted a resolution declaring the division of the Diocese into three Dioceses, to be unlawful and unconstitutional, and refused to recognize the suspension of Bishop Dionisije or the election of the other three Bishops. The Holy Bishops’ Synod of the Serbian Orthodox Church responded by declaring the Diocesan National Assembly unlawful. In reply to this, the Diocesan National Assembly, at an adjourned meeting held in November, 1963, passed amendments to the Diocese Constitution, declaring the autonomy of the Diocese and its freedom from all control of the Patriarchate in Belgrade. These amendments were not submitted to the Holy Bishops’ Assembly for approval. On March 15, 1964, the Holy Episcopal Council, comprised of the Patriarch, Metropolitan and Diocesan Bishops of Yugoslavia defrocked Bishop Dionisije.

The appellees, referred to herein as the “Dionisije faction,” brought the first suit in the names of the religious and not-for-profit corporations against the three Bishops of the new Dioceses, appellants, referred to herein as the “three Bishops faction,” praying that none of the defendants be permitted to interfere with the administration of the properties of the plaintiff corporations. The “three Bishops faction” brought the second suit praying that the court find that Bishop Dionisije had been removed as Bishop; that the three Bishops be found to be lawfully appointed and be permitted the use of all the Diocesan properties; that only those members of the Church, who recognize the three Bishops, be acknowledged as members of the Serbian Orthodox Church for the Diocese of the United States and Canada; that the two corporations be found to hold their assets in trust for members of the Serbian Orthodox Church residing within the Dioceses, and for other similar relief. As indicated, the trial court consolidated these actions, considered the pleadings, depositions and affidavits, and granted the “Dionisije faction” summary judgment on their complaint and granted their motion to dismiss the complaint of the “three Bishops faction.”

The appellants contend that the issue before this court is simply whether they or the appellees, are entitled to exercise the religious authority of the Serbian Orthodox Church in this country. Appellants assert that only ecclesiastical matters are involved, and the appellees urge that only the property rights of Illinois corporations are embraced in this litigation.

We believe that both contentions are correct, in part. While both factions claim the right to control the properties and assets held by the Illinois corporations, neither the religious nor the not-for-profit corporation may claim title to or use of the assets free of trust or use for the benefit of the members of the Diocese. The determination of the disputed right to control such properties and assets cannot be made solely by resolving the question of title or the exercise of corporate authority under the Illinois corporate laws.

Article 155 of the Constitution of the Diocese imposes a trust upon the use of the Diocesan Fund and Article 149 further limits the use of the property “to serve exclusively for the purpose designated by the statutes of this Constitution and cannot be used for any other purpose.” Section 46f of the Religious Corporations Act (Ill Rev Stats 1963, c 32, par 181) further imposes such a trust, which arises by operation of law in the absence of a declaration of trust or use in the gift, devise or grant in the instrument giving the property to the Church.

By the same token, the resolution of the Diocesan Council calling for the creation of the not-for-profit corporation to which the assets of the Diocese were to be transferred, can only have validity if this trust is likewise to follow the assets into the hands of this corporation and govern the administration of such assets. The creation of the Serbian Orthodox Monastery of Saint Sava, pursuant to the resolution of the Diocesan Council, is consistent with the degree of autonomy and administrative freedom reserved by the Diocese unto itself in Article 3 of the Constitution which provides that “it can independently regulate and rule the activities of its church, schools and other diocesan institutions and all funds and beneficiences, through its organs.” The bylaw of the not-for-profit corporation providing that its property “cannot be disposed of, sold, mortgaged or otherwise conveyed by any Serbian Church authority without the consent of the Diocesan Council, headed by the Bishop and the Diocesan Church conventions” is not inconsistent with either the trust imposed or the Constitutional requirements of the Diocese.

It is within the framework of these organizational laws that this dispute must be resolved. The protection of the law extends to religious associations the same as to other voluntary associations of benevolent or charitable purposes. The rights of property or other civil rights of such associations are equally under the protection of law, and the actions of their members, subject to its restraints. Ginossi v. Samatos, 3 Ill App2d 514, 520, 123 NE2d 104 (1st Dist 1954).

In Watson v. Jones, 13 Wall 679 (1871), 20 L Ed 666, the United States Supreme Court set forth the three categories of cases which have come before the courts pertaining to the rights of property held by ecclesiastical bodies, namely: (1) When the property, by the express terms of the instrument under which it is held, must be devoted to some specific form of religious doctrine or belief; (2) When the property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority; and (3) Where the ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control, more or less complete, in some supreme judicatory over the whole membership of the general organization.

The Supreme Court in Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, 344 US 94 (1952) at page 110, 97 L Ed 120, 133, 134, also defined the third group — the hierarchical churches— as those organized as a body with other churches having similar faith and doctrine, with a common ruling convocation or ecclesiastical head. We do not believe it can seriously be contended that the American Diocese is not a part of such a hierarchical structure. The constitutions referred to above abound with references to the hierarchical framework, with the Serbian Orthodox Church as the General Church. The Church history indicates this is so, and the manner of incorporating the Diocese in this country further evidences this fact.

There are two methods of incorporating religious societies under the Illinois Religious Corporations Act: sections 35-46 inclusive of the Act provide for the incorporation of independent church organizations (Ill Rev Stats 1963, c 32, pars 164-175, incl.); and sections 46 (a)-(k) inclusive, provide for the incorporation of any church organization which is “under the patronage, control, direction or supervision of any ecclesiastical body, diocesan or like ecclesiastical officer . . . .” (Ill Rev Stats 1963, c 32, pars 176-186, incl.) The Diocese in this country was incorporated in 1935 under the latter provisions. This fact, together with the constitutional language, church history and practice, clearly establishes the hierarchical nature of the Serbian Orthodox Church. Ginossi v. Samatos, supra, at 525.

In disputes involving churches, hierarchical in nature, the secular courts must accept the decisions of the ecclesiastical judicatories within the structure, as to questions of discipline, faith or ecclesiastical rule, custom or law. If a civil right depends upon an ecclesiastical matter, the civil court must take the ecclesiastical decisions as it finds them. Watson v. Jones, supra; Ferraria, et al. v. Vasconcellos, et al., 31 Ill 25, 46 (1863). It is only where the decision of a church tribunal is tainted with fraud, collusion or arbitrariness that the decision need not be accepted by the secular court. Gonzalez v. Roman Catholic Archbishop of Manila, 280 US 1, 16, 17 (1929), 74 L Ed 131, 137.

The appointment and removal of a Bishop is clearly a canonical act. Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church of North America, supra; Gonzalez v. Roman Catholic Archbishop of Manila, supra. We may not alter what was done by the ecclesiastical governing authorities in this respect. It is clear that the Diocese recognized the right of the Serbian Patriarchate in this regard by providing in Article 9 of its Constitution that its Bishop shall be appointed by the Holy Assembly of Bishops and by recognizing in Article 2, the ecclesiastical-canonical authority of the Serbian Orthodox Church in the Kingdom of Yugoslavia. We must in this regard accept the ecclesiastical determination that Dionisije is not the Bishop of the Serbian Eastern Orthodox Diocese for the United States of America and Canada.

We do not accept that it must necessarily follow, however, that the action of the Serbian Orthodox Church in dividing this Diocese into three new Dioceses, and changing its boundaries, and in appointing Bishops for the three supposedly new Dioceses, is proper. We find that there was manifested in the Constitution of the Diocese a very evident intent to retain autonomy and independence in the administration of its affairs while accepting the ecclesiastical-canonical authority and position of the Serbian Orthodox Church of Yugoslavia. Thus, Article 2 provides that the Diocese is considered ecclesiastically-judicially as an organic part of the Serbian Patriarchate. It does not state that the Diocese is considered as a part of the Patriarchate administratively. Article 3 provides that the Diocese is to enjoy full administrative freedom within the entire political territory of the United States of America and Canada, under which “it' can independently regulate and rule the activities of its church, schools and other diocesan institutions and all funds and beneficiences, through its organs, but in accordance with the laws of this constitution and in agreement with the laws of the United States of America and Canada.”

Further, the Diocese did not surrender to the Serbian Patriarchate the power to alter or change its basic governing law — its Constitution. The Serbian Patriarchate was not given the power to initiate changes in the Diocesan Constitution, but was only given the power to approve changes to the Constitution introduced and adopted by the Diocesan Assembly. It is inconceivable to us that the Serbian Patriarchate, which is denied the express power to alter or amend the Constitution of the Diocese, has the implied power to totally revoke and abrogate this constitution by decreeing the Diocese to no longer be in existence. We cannot accept such conclusion and find the Constitution of the Serbian Patriarchate and that of the Diocese consistent in this regard.

Article 12 of the Patriarchate’s Constitution provides that the Diocese is the main administrative division of the church in both the church hierarchical and church administrative aspect, and Article 14 significantly states: “These are the Dioceses in the Serbian Orthodox Church” and thereafter lists only the Dioceses within Yugoslavia. In a separate Article — Article 15 — there are listed the Dioceses which are “under the jurisdiction of the Serbian Orthodox Church in spiritual and hierarchical aspect.” Article 15 does not mention or specify that the Dioceses there listed are under the jurisdiction of the Serbian Church in the administrative aspect. It is there that the American-Canadian Diocese is listed. We believe that Article 16 — granting power to establish, liquidate and reorganize Dioceses — applies only to those completely subordinated to the Serbian Orthodox Church, in the administrative aspect as well as in the spiritual and hierarchical aspect, as set forth in Article 12.

The appellees have argued that the Diocesan Assembly, as the highest executive and administrative body of the Diocese, had the power, by majority vote to amend its Constitution, and they" cite Kuns v. Robertson, 154 Ill 394, 414, 40 NE 343 (1895) as authority on this point. However, in Kuns, the Constitution contained no provision — as did Article 23(8) of the Diocesan Constitution— that the highest body of the Diocese (the Assembly, in the case at bar) in amending its Constitution, must also obtain the approval of yet another society (the Holy Bishops’ Assembly of the Serbian Patriarchate, in the case at bar). As we understand the appellees’ position, they claim to have validly amended the Constitution in 1963 by the action of the Diocesan Assembly alone; they do not assert that they renounced its force and effect. Having failed to obtain the approval of the Holy Bishops’ Assembly as required by the Constitution, the purported amendments cannot be valid.

In Lawson, et al. v. Kolbenson, et al., 61 Ill 405 (1871), the court held that the congregation could act by its majority and could not be controlled by a higher religious body — a synod. However, we must note the type of religious organization which the court had under consideration when making this pronouncement. At page 421, the court stated:

“This church organization is unlike those of other denominations, where they can not exist at all except in subordination to a higher and controlling organization. This church had a complete legal existence, self-governing in character, before it united with any synod.”

The Lawson case, like the Ginossi case, supra, both cited by the appellees, are the second type of case noted in Watson v. Jones, where the religious organization is completely independent of other ecclesiastical associations. They are not relevant to our determination.

The appellees suggest that the case of Romanian Orthodox Missionary Episcopate v. Trutza, 205 F2d 107 (CA 6th, 1953) is authority for the proposition that they had the right to amend their Constitution so as to elect their own Bishop and declare their complete autonomy. Again, the bylaws and history of the Church show that Trutza is factually inapposite. In Trutza, the sole issue was defined as the right of the Episcopate to elect its own Bishop. When enacted, the bylaws provided that the Episcopate was autonomous and had power to elect its own Bishop; and that the Episcopate maintained only spiritual and canonical unity with the Romanian Orthodox Church. Thereafter, a Bishop obtained an amendment to the bylaws providing for the election of future bishops by the Holy Synod in Bucharest, and later the Episcopate further amended its bylaws to again restore this power to the Episcopate. It is nowhere contended in Trutza that any of the amendments were made in contravention of the provisions of the existing bylaws. Such is not the case here.

The appellees also rely upon the case of Russian Orthodox Greek Catholic St. Peter & St. Paul’s Church of Lorain v. Burdikoff, 177 Ohio App 1, 189 NE2d 451 (CA Ohio 1962) and Ginossi, supra. In Burdikoff, the Patriarch of Moscow had long recognized the autonomy of the Metropolia in this country. The court held that the Patriarch was prevented either by laches or by estoppel from now asserting its control over the Metropolia. On the record in the case at bar, we find no such basis for asserting that the appellants are prevented by laches from asserting control. In Ginossi, the Constitution of the Diocese reserved unto the Diocese “absolute and unqualified” power to amend its constitution and bylaws. Such reservation was absent in the case at bar.

The Supreme Court in Kedroff, at page 116, in referring to the case of Watson v. Jones stated: “The opinion radiates, however, a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” This theory is applicable, however, not only to the mother religious organization, the Serbian Orthodox Church, but also to the member religious organization, the Serbian Eastern Orthodox Diocese for United States of America and Canada. In addition to being religious societies, both are constitutional societies existing within the framework of their respective bodies of law. To the extent that the Diocese retained unto itself certain matters of church government by its Constitution, it is not for the Serbian Orthodox Church to usurp these functions by the pretended power of its higher hierarchical authority.

In the last analysis it must be said that all church societies may not lend themselves precisely to the three categories set forth in Watson v. Jones, supra. As indicated in the divergence of constitutional provisions of the cases which have been before the courts, there may be varying degrees of autonomy. Where, as here, the Diocese has reserved unto itself certain powers of church administration and government, and granted unto a superior tribunal, limited powers — such as the appointment of its head and the approval of any changes in its fundamental law — those reserved powers must be protected not only from State interference, but also from interference from other ecclesiastical societies.

From the views we have expressed herein, the Serbian Orthodox Church has authority to make the ecclesiastical decisions relative to the removal and appointment of a Bishop for the Serbian Eastern Orthodox Diocese for United States of America and Canada, as well as the appointment of a temporary administrator. It exceeded its authority, however, and infringed upon the authority of the Diocese when it purported to change the geographical structure of the Diocese and eliminate its reserved administrative powers, including the control over Church properties, subject to the trust imposed thereon, by dissolving the Diocese and creating three new Dioceses.

Accordingly, the summary judgment granted by the trial court in cause No. 63-1644 is hereby reversed, as is the order dismissing the amended complaint in Cause No. 63-2313; and the causes are remanded with directions to the trial court to proceed, under proper pleading, with a full hearing on the merits of the causes in accordance with the views expressed herein.

Reversed and remanded with directions.

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

Supplemental Opinion on Denial of Petition for Rehearing

Plaintiffs-appellees, in their petition for rehearing, vigorously contend that the court has misapprehended certain points raised in their brief. We deem this case of sufficient significance to warrant elaborating on our opinion concerning these matters.

Plaintiffs-appellees first contend that the opinion should be corrected to read that the Holy Episcopal Council of the Serbian Orthodox Church of Yugoslavia on May 10, 1963 purported to divide the American-Canadian Diocese into three new Dioceses, and on May 17, 1963, the Holy Episcopal Synod, in executing this decision, appointed Firmilian as temporary administrator of one of the three supposedly newly created Dioceses in place of Bishop Dionisije. This is all quite true and, as pointed out in the opinion, the Serbian Orthodox Church exceeded its authority in these respects. It was without authority to disband the American-Canadian Diocese, and it follows that the purported appointments of temporary administrators and Bishops of these supposedly new Dioceses were without validity.

This decision was, however, only one of the decisions made at the May 10 meeting. The Holy Episcopal Synod, under the date of May 17, 1963, and under No. 1725/2a p 237 and under No. 1726/2a p 238, notified Firmilian of the decision to divide the Diocese and of the facts that Dionisije was Bishop of the newly created Middle Western American Diocese, and having been suspended, that he, Firmilian, was temporary administrator. Under our opinion, this notice and these decisions were likewise void.

Previously, however, under date of May 10, 1963, and under No. 1664/2a p 188, the Holy Episcopal Synod advised Bishop Dionisije that, as of that date, it had suspended him as Bishop of the American-Canadian Diocese pending examination of the charges against him, and that it was appointing Firmilian as temporary administrator thereof in his place. In our original opinion, we held that these ecclesiastical decisions were within the power of the Holy Episcopal Synod, and, as a result, Firmilian was validly appointed temporary administrator, not of one of the supposedly new Dioceses, but of the original American-Canadian Diocese. Later Bishop Dionisije was discharged as such Diocesan Bishop.

Plaintiffs-appellees object to that part of the opinion wherein we state, “We must, in this regard, accept the ecclesiastical determination that Dionisije is not the Bishop of the Serbian Eastern Orthodox Diocese for the United States of America and Canada.” They complain that appellants are quoting this sentence for propaganda purposes; that the trial court did not hold a hearing on appellants’ complaint, having dismissed it; and that the appellees thus did not have to present proof of such factors as might justify a secular court in not accepting the ecclesiastical decision of a church tribunal.

Our opinion was based on the summary presentation and the conflicting representations of the parties. No testimony was taken at the trial. Consequently, it was not our intent to prejudge what might be presented to the trial court on remandment in an orderly and complete hearing of these consolidated cases on their merits. If, upon proper pleadings, competent testimony and other valid evidence, the appellees can present a case which would warrant and justify the trial court — a civil court —in not accepting a pertinent ecclesiastical decision or decisions, we do not mean to be understood to preclude them from doing so. Our purpose in remanding the case is to afford all of the litigants a complete and full hearing on the merits pertaining to the many issues and questions involved. The factual background of this case is indeed significant, but it is not without dispute, as is evidenced by the numerous conflicting representations made to the court through extensive pleadings, depositions, affidavits, and briefs.

The legal conclusions reached in our opinion are based upon the facts as they appear to us as the case stands at this juncture. Should a full hearing develop factual matters of significance, different from those upon which this opinion is based, then our opinion would be limited accordingly.

While we have due respect for the law of judicial parsimony, we do not believe that an opinion should judicially shortchange the litigants by failing to chart a course of procedure upon return to the trial court. Such failure would aggravate, rather than aid, in the ultimate dispositon of the litigation, as well as encourage further appeals.

We will only briefly comment on the contention raised upon rehearing that the 1935 Constitution of the American-Canadian Diocese was a mere contract or compact between it and the Serbian Orthodox Church, which the latter repudiated, renounced and abandoned when it sought to dissolve the Diocese, and that thereafter the Diocese did not have to obtain approval of Constitutional amendments by the Holy Bishops’ Assembly as required by the Diocesan Constitution.

To us the Constitution of the Diocese is something more than a contract or compact under which certain powers were delegated by the Diocese which could allegedly be restored unto it upon a repudiation of the contract. We view the Diocesan Constitution, together with the Constitution of the Serbian Orthodox Church, as expressions of the fundamental laws governing the relationship and authority of these respective church organizations— which were thereby joined in certain respects in a hierarchical and episcopal structure — as distinguished from an autonomous or congregational church entity. An act contrary to such constitution is not a repudiation, permitting the Constitution to be abandoned and ignored. Such act is rather without validity, force or effect.

For these reasons, we adhere to the opinion herein as originally adopted, subject to the limitation expressly set forth above.

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


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    E. T. Allen, Robert Allen, David Allen, Richard Allen and Terry Allen, Partners d/b/a E. T. Allen & Sons, Plaintiffs-Appellants, v. Richard Treat, Highway Commissioner of Chatham Township, a/k/a Chatham Township Road District, Sangamon County, Illinois, Defendant-Appellee.
    Gen. No. 10,708.
    Fourth District.
    June 30, 1966.
    Rehearing denied July 19, 1966.

      W. P. Roberts, of Springfield, for appellants.
    Alfred H. Greening, of Springfield, for appellee.
   TRAPP, P. J.

This is an appeal from a judgment of the circuit court dismissing the complaint of E. T. Allen, Robert Allen, David Allen and Terry Allen, partners, doing business as E. T. Allen and Sons, against Richard Treat, Highway Commissioner of Chatham Township Road District, Sangamon County, Illinois. The complaint consisted of three counts, on contracts for delivering and spreading road oil, for individual sales of road oil, and on quantum meruit, respectively. All counts covered the same subject matter, that is to say, the sale, delivery and spreading of road oil in the total amount of $37,943.36, on which $15,694.18 had been paid, and $23,354.88 remained unpaid.

It is not disputed that an election had been held in the district authorizing a special road oil tax, which had been levied and collected for the maintenance work in issue.

Count I set forth alleged written contracts for the years 1960, 1961 and 1962 between plaintiff and defendant’s predecessor. The alleged contracts were identical except for date. The 1962 contract is as follows:

“ROAD OIL AGREEMENT”
“This agreement made this 8th day of January, 1962, between E. T. Allen and Sons, Road Oil and Asphalt and William Sommers Commissioner of Highways of Chatham Township, in Sangamon County, Illinois, Witnesseth:
“E. T. Allen and Sons, Road Oil and Asphalt, agree to furnish, heat and apply, in good and workmanlike manner 100,000 gallons, more or less, of road oil on roads of Chatham Township designated by said Commissioner.
“Said Commissioner as such and in behalf of said Township agrees to pay E. T. Allen and Sons, Road Oil Asphalt, for said oil and work at the rate of Fourteen ($0.14) cents per gallon.
“The foregoing provisions and undertakings of each party are for and in consideration of those of the other.
“In Witness thereof, said parties have hereunto set their hands this 8th day of January 1962 at Chatham, Illinois.
“E. T. Allen and Sons,
Road Oil and Asphalt
“By /s/ E. T. Allen
“Commissioner of Highways Of /s/ Wm. Sommers, Township
“The foregoing Contract approved:
“By-
County Superintendent of Highways”

The oil was delivered and spread in nineteen separate batches between August 17 and October 12, 1960, sixteen separate batches between September 11 and October 9, 1961, and twenty separate batches between June 14 and October 9, 1962. The value of the batches ranged from $341.18 to $855, except for one batch delivered September 22,1962, of the value of $1,106.

Defendant contends that since the alleged contracts did not have the written approval of the County Superintendent of Highways, the contracts are void. At times material hereto the statute, Chap 121 (Ill Rev Stats, 1963) provided in part, as follows:

“6-201. Highway Commissioner.) § 6-201. The highway commissioner of each road district shall perform the functions stated in Sections 6-201.1 to 6-201.16, inclusive:
“6-201.7. Construction and maintenance of roads in district — Contracts.) § 6-201.7. Construct, maintain and repair and be responsible for the construction, maintenance and repair of roads within the district, let contracts, employ labor and purchase material and machinery therefor, subject to the limitations provided in this Code. No contract shall be let for the construction or repair of any road or part thereof in excess of the amount of $1,000, nor shall any material, machinery or other appliance to be used in road construction or maintenance of roads in excess of such amount be purchased, nor shall several contracts each for an amount of $1,000 or less be let for the construction or repair of any road or part thereof when such construction or repair is in reality part of one project costing more than $1,000, nor shall any material, machinery or other appliance to be used therein be purchased under several contracts each for an amount of $1,000 or less, if such purchases are essentially one transaction amounting to more than $1,000, without the written approval of the county superintendent of highways in the case of road districts other than consolidated township road districts or without the written approval of the highway board of auditors in the case of consolidated township road districts. As amended by act approved July 10,1959.
“6-407. Contracts for construction and repair of roads and bridges within district.) § 6-407. The highway commissioner in each road district may contract for the construction and repairing of roads and bridges lying wholly within the limits of his district. When any such contract or other expenditure shall be for a sum in excess of $1,000, the commissioner shall not let or make any payment on the same without the approval of the county superintendent of highways in the case of road districts other than consolidated township road districts or without the written approval of the highway board of auditors in the case of consolidated township road districts. The county superintendent shall keep a record of all payments approved by him. . . .”

We have reviewed and considered the following cases cited by defendant:

In DeKam v. City of Streator, 316 Ill 123, 146 NE 550, a contract for engineering services for a sewer system was entered when there was no prior appropriation. The statute prohibited a city from making a contract or expenditure without a prior appropriation, required the appropriation to be in the first quarter of the fiscal year, and forbade other appropriations unless sanctioned by a vote of the people. The Criminal Code also made it an offense to contract for a greater sum than may have been appropriated. The suit was to enjoin the payment of any further sums under the contract. The court held that the statute put it beyond the power of the municipality to make the contract, that the contract was void, that it could not be ratified and that the city could not be estopped to deny payment for the benefits received. The court said, p 129:

“A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law cannot at the same time prohibit a contract and enforce it. The prohibition of the legislature cannot be disregarded by the courts. . . .”

In Izzo v. City of Loves Park, 20 Ill App2d 117, 155 NE2d 312, one count of a complaint based upon a quantum meruit was dismissed because of the failure to allege a prior appropriation. At this time the statute itself declared contracts made or expenditures incurred in violation of the requirement of prior appropriation were null and void.

In Bituminous Cas. Corp. v. City of Harrisburg, 315 Ill App 243, 42 NE2d 971, the court held that contracts for insurance premiums not approved by the city council created no obligation upon the municipality, and stated, p 251:

. . If there is a statute prescribing the method by which an officer or agent can bind a municipal corporation by contract, such method must be followed, since there can be no implied contract or liability on the part of such municipal corporation. . . .”

Folkers v. Butzer, 294 Ill App 1, 13 NE2d 624, concerned an action to enjoin payment of tax anticipation warrants where the special tax levy had expired before these warrants were issued, so that the warrants in litigation would have to be paid from the general funds. The highway commissioner had let a contract for improvement of 14 miles of road in the township by grading, draining and graveling the same for the sum of $39,945.07. The statute required plans and specifications, for filing the same with certain officers, and for advertisement for three weeks for sealed bids. It was undisputed that no advertisement for bids was made, no notice posted and no plans or specifications were filed. The court held that one dealing with a municipal corporation was bound to take notice of the powers of the officers to make a contract. The court said, p 7:

“Where by statute a public officer can only let contracts to the lowest bidder after advertisement, a contract made in violation of such requirements is illegal. . . .”

Brownell Improvement Co. v. Highway Com’r of Town of Sumner, 280 Ill App 43, involved crushed stone for a specific hard road project where the statutory limitation on purchases without approval of the county superintendent, and without taking bids, was $200, and thirty-five warrants were issued for $199.

In all of the foregoing cases there was a definite public policy against doing the thing done. Not one dollar of money could lawfully be contracted for or expended upon the project involved without complying with the statute involved, and the court in each case found a want of power to act in the governing body involved.

In the present case, the highway commissioner unquestionably had the power conferred by statute to purchase road oil or other material without the consent of the county superintendent of highways wherever the purchases did not individually exceed $1,000, and the individual purchases were not “in reality part of one project costing more than $1,000.” In Euziere v. Highway Com’r of Town of Rockville, 346 Ill 131, p 135, 178 NE 397, where one hundred thirty-one items ranging from thirty cents to $40.85 for coal, stone, tile and cement, delivered from February 1,1924, to June 30,1927, the court said:

“The appellant had the power prima facie to purchase materials for the purposes stated; after the delivery of the materials the obligation to pay for them was not dependent upon some act to be done or forborne by the appellee and any fact or circumstance limiting or restricting the appellant’s power to make the purchases should have been pleaded in defense of the suit.”

In Standard Oil Co. v. Town of Patterson, 300 Ill App 385, 21 NE2d 12, there was a suit upon certain anticipation warrants and upon the common counts. Over 200 sales tickets for gasoline and tires ranging from $1.35 to $70.22, delivered between March 10, 1930, and June 10, 1934, to the highway commissioner, in total amount of $3,622.67, were the subject matter of the claim. The warrants issued to pay for the items were void. The court held the highway commissioner had prima facie power to purchase the material and since no single purchase exceeded $200, the consent of the county highway superintendent was not required. The court rejected the contention that the issuance and acceptance of the invalid warrants estopped plaintiff from suit on the account.

In County of Coles v. Goehring, 209 Ill 142, 70 NE 610, a contract for the construction of a courthouse provided that it should be paid for in interest bearing county orders. These orders were invalid as being in violation of a statute which required that orders be issued against taxes already levied. The court held that the invalidity of the provision for the county orders did not relieve the county of its obligation to pay for the benefit received. The court, p 169, said:

“In Hitchcock v. Galveston, 96 US 341 where a city agreed to pay for sidewalks in city bonds and the bonds were held to be invalid, it was decided that the city was liable upon its contract, and that, although it had agreed to pay in a way in which it had no power to pay, yet, having received the property, it was estopped to deny its power to contract; and it was there said by the Supreme Court of the United States: ‘It is enough for them (the plaintiffs) that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay, and that, after having received the benefit of the contract, the city has broken it.’
“It makes no difference that the contract in the case at bar provided for payment in county orders, and that these county orders are invalid. In Hitchcock v. Galveston, supra, it was said: Tf payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force, so far as it is lawful.’ ” (Emphasis ours.)

A statement concerning mere irregular exercise of an actual power in Westbrook v. Middlecoff, 99 Ill App 327 on 330, approved in County of Coles v. Goehring, 209 Ill 142 on p 165, 70 NE 610, is as follows:

“Where the statute authorizes a municipal corporation to exercise a certain power, but specifically regulates the mode in which it may be exercised, an attempt on the part of the municipal officers to override the regulations and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it is estopped from setting up the irregular exercise of the power when called upon to pay for what it has received.”

In McGovern v. City of Chicago, 281 Ill 264, 118 NE 3, where a contract was let to a contractor who did not, in each case, comply with a provision in the advertisement that no bid would be accepted that did not contain an adequate and reasonable price for each item named in the schedule of quantities and the time of execution extended beyond the fiscal year of the appropriation, the court held recovery could be had for the work done under the contract. The court said, p 283:

“. . . There is another class of municipal contracts which are usually classed as ultra vires which are only so in a limited or secondary sense. These are contracts which are within the general powers of the corporation but which are void because the power was irregularly exercised, or where some portion of an entire contract exceeds the corporate powers but other portions of the contract are within the corporate powers. This class of municipal contracts is well illustrated by the case of City of East St. Louis v. East St. Louis Gas Light and Coke Co., 98 Ill 415. In that case the city of East St. Louis contracted for the lighting of its streets with the gas company, at a fixed price per light, for the term of thirty years. A suit was brought by the gas company to recover the monthly installments that were past due under the contract. The city defended on the ground that the contract was ultra vires and that no suit could be maintained thereon. This court held that the lighting of the streets was a purpose clearly within the corporate powers of the city; that the contract had no element of illegality in it and that it was only illegal in respect to the term of its duration; that the corporation having received the benefits under a contract which was merely ultra vires it was bound to pay for the benefits received, and that the rule applicable to municipal corporations in this regard was the same as in the case of a private corporation. Many cases are to be found applying this rule, and the principle is now firmly established that the doctrine of ultra vires is not applied (except in cases where the contract is prohibited by some rule of law) where its enforcement would enable the municipality to obtain an unconscionable advantage of the other party to the contract, and that municipal corporations, as well as private corporations and natural persons, are bound by the principles of common honesty and fair dealing. . . .” (Emphasis ours.)

The Illinois authorities and, indeed, the majority of courts in other jurisdictions (see 53 ALR2d 498; 42 ALR 632; 142 ALR 542; 84 ALR 936; 110 ALR 153; 154 ALR 356), hold that a municipality or other political subdivision may become obligated to pay the reasonable value of benefits accepted or appropriated by it as to which it has the general power to contract. The lines are not always clearly drawn by the cases. In Great Lakes Dredge & Dock Co. v. City of Chicago, 353 Ill 614, 188 NE 196, a written contract between the City of Chicago and a dredging company required specific authorization from the city council for alterations which would increase the expense of the work. Work was done in building cofferdams not in the contract, which were said to have been caused by unprecedented water levels, without obtaining the specific consent of the city council. The court said, p 627:

“. . . The city, by standing by and without objecting permitting this work to be done and accepting the benefits of that work, must be held to have ratified it. Ratification may be proved by circumstances or inferred from acquiescence after notice. (American Car Co. v. Industrial Commission 335 Ill 322.) It was long ago said by this court: ‘If one sees another doing work for him beneficial in its nature and by his agent overlooks the work as it progresses and does not interfere to forbid it, the work itself being necessary and useful, and appropriates the work to his own use, he might be liable on an implied promise to pay the value of the work.’ (DeWolf v. City of Chicago, 26 Ill 443; Maher v. City of Chicago, 38 id. 266.) A municipality may be es-topped to defend that its agents were without power to make a contract when the facts show that such municipality has accepted the benefits of that contract, where the contract is such as the municipality was empowered to make. (McGovern v. City of Chicago, 281 Ill 264; People v. Spring Lake Drainage and Levee District, 253 id. 479.) We are convinced that either under the common counts, which have been fully proved and not disputed, or under the contract made by the commissioner of public works with plaintiff in error, the latter is entitled to judgment for the value of that work in the amount claimed.” (Emphasis ours.)

The cases of James Anderson Co., Inc. v. City of Highland Park, 276 Ill App 327 on 338; Woods v. Village of La Grange Park, 287 Ill App 201 on 208, 4 NE2d 764 and Welsbach Traffic Signal Co. v. City of Chicago, 328 Ill App 467, 478-480, 66 NE2d 471, state the same principle.

In the present case the documents which purport to be contracts are, upon examination, offers to supply a certain quantity of oil at a certain price. The offers are indefinite as to period and there is no obligation to take a particular quantity, and it appears that the material and labor are to be furnished upon an as needed and designated basis.

The power to purchase the material, oil, and to order it spread, without consultation with anyone existed in the highway commissioner. If properly ordered by the highway commissioner, the county superintendent could not have forbid or enjoined the purchase. It appears doubtful to us that the county superintendent did not know that this quantity of oil was being spread in this township over this period of time.

We hold that the fact that the highway commissioner executed documents which could not have been upheld as contracts did not remove from him the power to order materials for and work upon roads, so long as the orders were within the statutory jurisdictional amounts. The township received the benefit of the materials and service. The materials and service were ordered by the official whose duty it was to do so.

Plaintiff concedes that the highway commissioner exceeded his authority as to the order of September 22, 1962. If, in fact, any of the other orders were “in reality part of one project costing more than $1,000,” or constitute “essentially one transaction,” this may be set up by way of defense.

We do not agree with plaintiff that “maintenance” is excluded from § 6-201.7, but the fact that the oil was used for maintenance would suggest that it was not “in reality part of one project” or “essentially one transaction.”

The judgment of the circuit court is reversed and remanded with directions to sustain the dismissal of Count I and to rule the defendant to answer Counts II and III.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    Strat-O-Seal Manufacturing Company and Paul H. Philips, Plaintiffs-Appellants, v. William J. Scott, as Treasurer of the State of Illinois, Michael J. Howlett, as Auditor of Public Accounts of the State of Illinois, James A, Ronan, as Director of Finance of the State of Illinois, and Harold O. Swank, as Director of Public Aid for the Department of Public Aid of the State of Illinois, Defendants-Appellees.
    Gen. No. 10,736.
    Fourth District.

      June 30, 1966.
    Seyforth, Shaw, Fairweather & Geraldson, of Chicago (Owen Fairweather, Walter P. Loomis, Jr., and Jerald L. Sager, of counsel), for appellants.

      William G. Clark, Attorney General of Illinois, of Springfield (Madalyn Maxwell, of counsel), for appellees.
   SMITH, J.

The single limited issue in this case is whether strikers and their families may receive aid under the Public Assistance Code when the need for such aid arises solely and initially from participation in a strike arising out of a labor dispute. Such aid is now made available under the rules and regulations of the Department of Public Aid. The trial court found for the defendants and refused to enjoin the use of public funds for such payments. Plaintiff taxpayers appeal.

The controversy centers on the provisions of the Code that general assistance is available to “persons who for unavoidable causes are unable to maintain a decent and healthful standard of living” further restricted by the proviso that “any employable person who refuses suitable employment or training for self-support work shall not receive general assistance.” Ill Rev Stats c 23, § 401 (1963). We focus our attention on the words “unavoidable causes” and “suitable employment and training.” Plaintiffs’ principal thrust is that need arising initially and solely from the status of striker is voluntarily assumed either through participation or acquiescence and is thus not for “unavoidable causes.”

Also under fire is the provision for aid to dependent children as defined in the Code restricted as follows:

“. . . If the parent or parents refuse without good cause, as defined by rule and regulation of the State Department, to accept employment in which he or they are able to engage, which is offered through the public employment offices, or refuse any other bona fide offer of suitable employment, as defined by rule and regulation of the State Department, family assistance granted the child and his family shall be terminated for as long as the parent or parents refuse the offered employment.” Ill Rev Stats c 23, § 605.3 (1965).

Plaintiffs contend that the words “without good cause” means a cause not voluntarily assumed through participation or acquiescence in a strike.

The payments now attacked have been made for some fifteen years last past. Plaintiffs contend that this is contrary to the announced policy of our State to remain neutral in labor disputes, Buchholz v. Cummins, 6 Ill2d 382, 128 NE2d 900, and the refusal of the legislature to finance strikes out of public funds. Local Union No. 11 v. Gordon, 396 Ill 293, 71 NE2d 637. Both of these cases were considering our statute relating to unemployment compensation. Ill Rev Stats c 48, ¶ 300 (1965). Section 604 of that Act [¶ 434 of the statute] provides:

“An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed. . . .”

American Steel Foundries v. Gordon, 404 Ill 174, 88 NE2d 465, held that a labor dispute includes a strike; that one who strikes becomes voluntarily unemployed; that where two weeks were required after the strike was settled to fire the furnaces and resume work such unemployment was, nevertheless, a necessary consequence of the strike; that during such two weeks they were not involuntarily unemployed and were not entitled to compensation for such two weeks even though ready and willing to resume work. Thus, both the legislature and the Supreme Court have spoken unequivocally so far as unemployment compensation to strikers is concerned.

It is urged that like results should obtain under the Public Assistance Code. Otherwise, it is urged, the State violates its neutrality in labor disputes, utilizes the public revenue to finance striking laborers and grants to striking laborers and their families under the Public Assistance Code financial assistance which has been denied them under Unemployment Compensation. Thus, the restrictive provisions which deny compensation to striking laborers are, in effect and in fact, reduced to a porous shell. Such a conclusion, we think, stems from an astigmatic view of the nature and purpose of the two legislative enactments. Compensation is generated through lack of work with economic need purely incidental thereto. Assistance is triggered by economic need with lack of suitable work incidental thereto. Whether they should, might or could be controlled by the same principles is not before us. The issue is whether or not the legislature can be said to have so treated them. We think not.

Plaintiffs argue that it is indeed anomalous to hold that a striker is voluntarily unemployed and ineligible for unemployment compensation benefits and, at the same time, hold that he is out of work due to “unavoidable cause” and thus eligible for general assistance benefits. Such patently inconsistent intent should not be charged to our legislators, it is said. If an anomaly does exist, it would appear that it is now about sixteen years old. In practice it has resulted in a denial of unemployment compensation to strikers and the allowance of aid to striking employees and their families under the Public Assistance Code. It seems hardly conceivable that this was not known to our legislators. They did nothing. Late in the 73rd General Assembly, Senate Bill 358 passed the Senate and was sent to the House incorporating into the Public Assistance Code the basically same provisions as to strikers which are in the Unemployment Compensation Act. Either for lack of time or insufficient votes or pure indifference — and for our purposes at this point it makes no difference — the bill did not pass. If the Public Assistance Code as it now exists denies payments to strikers and their families, no amendments are necessary. If the legislature felt that such payments should be specifically denied — and it knew or should have known that administratively they weren’t being denied — it either failed or refused to say so. Devoid of legislative capacity, we see no reason for us to do a remodeling job when it would seem that the legislature likes the structure as it is and as it is being administered now. The Unemployment Compensation Act suggests that the legislature knows what language to use to specifically express its intention.

The present policy was generated by an unpublished opinion of the Attorney General to the State’s Attorney of Will County dated May 5, 1950, in which he said:

“. . . It is my opinion that subject to the approval of the Illinois Public Aid Commission, if otherwise eligible, a person ‘in need’ due to ‘unavoidable causes,’ is entitled to receive Public Assistance, even though he may be out of employment because of a strike.”

A second opinion dated January 19, 1962, 1962 Op Atty Gen 189, reads in part as follows:

“. . . The Illinois Public Aid Commission also has this authority under Paragraph 607 of the Illinois Public Assistance Code, and nothing in the statutory sections discussed herein precludes the payment of Aid to Dependent Children to the children of persons engaged in a labor strike, where the other tests of eligibility are met.”

Both sides concede that the issue before this court is a matter of first impression in the courts of this State. This being true, these opinions of the Attorney General as Chief Law Officer of the State of Illinois “will be accorded considerable weight.” City of Champaign v. Hill, 29 Ill App2d 429, 444, 173 NE2d 839, 846. These opinions as well as administrative policy pursued as a result of them and the fact that the legislature has seen fit to remain quiescent through several successive sessions suggests and indicates “legislative acquiescence in the contemporary and continuous interpretation” which they announced. People ex rel. Spiegel v. Lyons, 1 Ill2d 409, 414, 115 NE2d 895, 898. It would seem that we too ought to fold our tents and steal away.

To avoid our departure, plaintiffs suggest that final construction of statutes is for the courts and not for an executive or administrative branch of government and that an erroneous construction by such branches, even though somewhat aged, is not binding on the courts. This is true. Ray Schools-Chicago, Inc. v. Cummins, 12 Ill2d 376, 146 NE2d 42; C. O. Baptista Films v. Cummins, 9 Ill2d 259, 137 NE2d 393. Even though not binding, we have already indicated that it is and should be persuasive. In addition, we do not regard the interpretation given the Public Assistance Code over the years as patently erroneous. We cannot accept plaintiffs’ thesis that one who voluntarily participates or acquiesces in a strike cannot be considered unemployed for “unavoidable causes,” or that one who voluntarily withholds his services from his employer by electing to go on a strike has “refused” employment which is available to him or that he has not “for good cause” refused a bona fide offer of suitable employment by refusing to remain on the job in the face of a bona fide strike. Labor union membership or activity and the right to strike in proper cases and under proper circumstances is an accepted fact in our industrial community. Plaintiffs would ask us to exact by judicial interpretation as the price of exercising that right a forfeiture of the benefits available to others under the Public Assistance Code. By so doing, we exact a quid pro quo and impose economic sanctions not specifically required by the Code. The strong arm of the State is thus employed to strangle otherwise authorized activity and State neutrality ends. We do not see how the legislature has or how we should create a blanket classification when the Code itself conveys the thought that the propriety of assistance rests on individual need and individual performance. It is now so administered and should remain that way.

Plaintiffs contend that both opinions of the Attorney General as well as the judgment order of the trial court are ambiguous when they say, in effect, if you are otherwise eligible for public assistance, participation in a strike does not in itself act as a bar. This, they say, means only that if the need arises from unavoidable causes independent of the strike, then such person would be eligible for public assistance even though unemployment resulted from participation in a strike. This is much different they say than the ruling sought here that where the inability to support oneself and the resultant need for aid arises solely and initially from participation in a strike, such aid is not authorized by the statute. It seems to us that we are asked to enunciate a meaningless rule of law. It seems to us that need arising initially and solely from participation in a strike is purely a theoretical phantom. Present employment terminates through participation or acquiescence in a strike. It may be a factor contributing to the ultimate creation of an economic need, but it cannot solely, and standing alone, create such a need; nor does it do more initially than set the stage. Economic need is not then ipso facto born. It does not arise until economic reserves, other available resources, if any, and the inability or refusal to find other suitable employment is exhausted. The need for aid does not arise solely and initially from participation in a strike. It arises either from the refusal to help oneself or the inability to do so. The former is a bar to public aid; the latter is clearly within the purview and intent of the Public Assistance Code. The former is clearly an avoidable cause; the latter is clearly an unavoidable cause. The latter is an avoidable cause only if it may be said that it can be avoided by abdicating the right to participate in a proper strike or by remaining on the job in the struck plant. To so hold is to place the hangman’s noose over an existing right when the legislature has not specifically done so. Plaintiffs would have us hold that you can participate, or acquiesce in a strike at the place of your employment only if you can initially afford it and then only so long as you can continue to afford it. The expenditure of public funds for the use of such people is predicated upon their compliance with the other requirements of the Public Assistance Code. Unless they do, they are entitled to no aid. If they do, the fact that they are on a bona fide strike does not bar proper assistance. We do not now question the right of the legislature to weave the noose as a matter of public policy if it so desires. We cannot say that it has done so. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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


author:
GOLDENHERSH, P. J.
      EBERSPACHER, J.,

text:
    Olin Mathieson Chemical Corporation, a Corporation, Plaintiff-Appellee, v. J. J. Wuellner & Sons, Inc., a Corporation, Federal Steel & Supply Company, a Corporation, Defendants-Appellants.
    Gen. No. 65-54.
    Fifth District.
    July 1, 1966.
    Rehearing denied August 4, 1966.

      Green and Hoagland, of Alton, for defendants-appellants, J. J. Wuellner & Sons, Inc., Schafly, Godfrey & Fitzgerald, of Alton, and Listeman, Bandy & Hamilton, of East St. Louis, for defendants-appellants, Federal Steel & Supply Company.
    Clausen, Hirsh, Miller & Gorman, of Chicago, and Burroughs, Simpson & Burroughs, of Edwardsville, for plaintiff-appellee.
   GOLDENHERSH, P. J.

Defendants appeal from the order of the Circuit Court of Madison County dismissing, with costs, their amended counterclaims. Included in the order of dismissal, as required by section 50 (2) of the Civil Practice Act, is a finding that the order is final and there is no just reason for delaying enforcement or appeal.

Plaintiff’s complaint alleges the execution of a contract between plaintiff and the defendant, J. J. Wuellner & Sons, Inc., providing for “Removal and Replacement of approximately 48,200 square feet of roof deck over existing Brass Mill Building 38,” that the defendant, J. J. Wuellner & Sons, Inc., as prime contractor, and defendant, Federal Steel & Supply Company, as its subcontractor, were guilty of acts of negligence and of wilful and wanton misconduct, as the result of which plaintiff’s building was damaged by fire, its business was interrupted, and it suffered great loss and damage. It also charges breach of a contractual provision requiring defendant “to make good by paying for damage, injury and losses sustained by plaintiff arising out of said contract. . . .”

Defendants answered, and filed separate counterclaims, which as amended, allege that the contract between the parties contained the following provision:

“Owner will arrange fire and extended coverage insurance to cover not only its own interest, but also that of the contractor and sub-contractors on the entire project, including materials and supplies to be used in the project. However, this insurance will not extend to the tools, clothing, automobiles and other personal property owned by mechanics or any tools, equipment, scaffolding, staging, towers and forms owned or rented by the contractor or subcontractor, the capital sum of which is not included in the cost of the work. Similarly, the insurance will not cover temporary structures. All of the excluded property shall be the responsibility of the contractor or respective sub-contractor.”

The counterclaims further alleged that defendants are informed and believe that plaintiff did not comply with the agreement, but secured fire and extended coverage insurance to cover its own interests only; that if plaintiff had complied with the agreement, defendants would be “named insureds” and covered under the fire and extended coverage policies, and neither plaintiff nor an insurer could maintain an action against defendants; that if plaintiff recovers damages as sought in its complaint, defendants will have been damaged to the extent of any such recovery by virtue of plaintiff’s breach of contract. Defendants’ counterclaims conclude with prayers for judgment against plaintiff for any sums for which defendants may be found liable to plaintiff.

Plaintiff’s motions to dismiss the counterclaims state that the counterclaims are defective in that they allege a breach of a nonexistent contract obligation, that the contract required it to procure fire and extended coverage insurance to cover property interests only, and did not require it to secure liability or indemnity insurance in defendants’ behalf, that if defendants are found to Tbe negligent under the contract between the parties, their liability is not subject to indemnity, and the counterclaims fail to state a cause of action in that the relief prayed is predicated conditionally upon defendants’ liability under the complaint, and “therefore the relief prayed for in the counterclaims is to be governed by the matters involved in the lawsuit herein and is not a separate cause of action.”

Section 38 of the Civil Practice Act (c 110, § 38, Ill Rev Stats 1965) provides that a demand by a defendant against a plaintiff “whether in the nature of set-off, recoupment, cross-bill in equity, cross demand or otherwise . . . , may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.”

In Stow v. Yarwood, 14 Ill 424, the Supreme Court held that mutual demands arising out of the same subject matter, capable of being balanced against each other, may be adjusted in one action, and a defendant may, by recoupment, use his claim against the plaintiff, in mitigation of damages. “Recoupment is in the nature of a cross-action, where defendant alleges that he has been injured by a breach by plaintiff of another part of the contract on which the action is founded, and unliquidated damages may be so recouped.” Luther v. Mathis, 211 Ill App 596, 601. The purpose of section 38 is to abolish the distinctions between the various types of cross-demands, and substitute therefor the counterclaim. Defendants’ counterclaims are clearly in the nature of recoupment, and, as such, are pleaded in the manner contemplated by the Civil Practice Act.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Ch 110, § 33(3), Ill Rev Stats 1965. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. (C 110, § 4, Ill Rev Stats 1965.) Liberal construction of the Civil Practice Act requires that the sufficiency of a pleading purporting to state a cause of action, or a defense, be determined by whether the pleader can, under the pleading, prove a set of facts in support of his claim, or his defense, which would entitle him to relief. Simply stated, a complaint or counterclaim should not be dismissed for failure to state a cause of action unless it appears that the pleader can prove no set of facts in support of his claim which would entitle him to relief.

Plaintiff contends that the contractual provision upon which the counterclaims are based required it to arrange fire and extended coverage only for the “project,” which it defines as being limited to the specific work covered by the contract, i. e., the roof being replaced, and the substructure supporting it. It argues that the complaint seeks to recover only for damages to plaintiff’s building, the machinery and equipment therein contained, and the interruption of its business, and seeks no recovery for the damage to the project upon which the defendants were engaged. It distinguishes between the roof work which it refers to as the “project” and the building, machinery and equipment, which it describes as “its own property.” In the complaint it alleges that defendants’ negligence and wilful and wanton misconduct “caused a fire in the aforesaid sub-ceiling, which spread to the premises of the plaintiff.”

In the decision of this appeal, we do not reach the issues of the extent of defendants’ insurable interest in the project, nor what comprises the “entire project.” We need not pass on defendants’ contention that an action against them by an insurer would be barred by reason of their being “named insureds,” for the reason that in the present posture of the case we need only determine whether the circuit court erred in dismissing the amended counterclaims. As stated by Mr. Justice Schaefer, speaking for the Supreme Court in Mahin v. Baltis, 34 Ill2d 413, 216 NE2d 132, at page 137, “Factual and legal issues that may thereafter arise are not now presented for decision.”

The amended counterclaims allege a breach of a contractual provision requiring plaintiff to “arrange fire and extended coverage insurance” to cover not only its own interest, but also that of the defendants “on the entire project.”

Assuming that plaintiff’s contractual obligation required it to arrange such insurance only for the “project” as defined by plaintiff, if plaintiff failed to arrange such insurance, any loss suffered by defendants by reason thereof would be recoverable by counterclaim. The fact that plaintiff seeks no recovery for damage to the “project” does not preclude defendants from asserting their claim by counterclaim. Luther v. Mathis, supra. Defendants’ prayers for relief are broad enough to encompass a verdict in the amount of defendants’ loss, if any be proved, and plaintiff has not objected to the form of the prayer. Ch 110, § 34, Ill Rev Stats 1965. Testing the sufficiency of the counterclaims by the rule above stated, we cannot say that defendants cannot prove a set of facts in support of their counterclaims which would entitle them to relief, and the circuit court erred in dismissing the amended counterclaims.

For the reasons herein stated the judgment of the Circuit Court of Madison County is reversed, and the cause remanded, with directions to deny plaintiff’s motions to dismiss the amended counterclaims, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

MORAN, J., concurs.

EBERSPACHER, J.,

specially concurring.

While I agree that the trial court erred in dismissing the counterclaims, I do not consider Luther v. Mathis, 211 Ill App 596, 601, as authority for the statement made in the opinion, “The fact that plaintiff seeks no recovery for damage to the ‘project’ does not preclude defendants from asserting their claim by counterclaim,” nor do I agree with that statement.

Examination of the complaint discloses that in each count, the prayer is for damages to plaintiff’s premises or property, not plaintiff’s premises or property other than “the entire project.” We are not called upon to determine the extent of defendants’ insurable interest in the project, nor what comprises the “entire project” because plaintiffs by their complaint seek to recover all their damages, including those on that part of their property, which the pleaded contract shows they clearly agreed to insure. Therefore, the allegations of a breach of the contract to insure are properly recoupment in this case, and properly claimed by counterclaim.

Had plaintiffs, by their complaint sought recovery only for damages to its property, other than “the entire project,” we would be called upon to determine, in passing on the sufficiency of the amended counterclaims, of what the “entire project” consisted; and if we determined that “entire project” included parts of the building not being repaired, proof of failure to insure would be the proper subject matter of the counterclaims; but if it was determined that “entire project” consisted only of parts of the building being repaired, the roof deck and substructure, then, since it would appear from the pleaded contract that plaintiff had no duty to insure that property which was damaged and was not part of the “entire project,” the counterclaims would not state a cause of action. Since the complaint prays for all damage to all of plaintiff’s property damaged, both that in which plaintiff had a duty to insure defendant’s interest, and that in which there was no duty to insure defendant’s interest, the counterclaims meet the requirements interest, the counterclaims meet the requirements of Luther v. Mathis, supra. Although plaintiffs contend that they seek only damages for property, other than is embraced in “the entire project,” the complaint does not so state and defendants have not conceded that plaintiffs seek only damage for property other than is includible in “the entire project” nor did plaintiffs see fit to amend their complaint to specifically claim damages for only their damage to property on which they were not obligated to insure defendants’ interest.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Adams, Defendant-Appellant.
    Gen. No. 48,782.
    First District, Second Division.
    October 23, 1962.

      Charles L. Michod, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Rudolph L. Janega and Edwin J. Belz, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

An information charged that on December 20, 1961, John Adams unlawfully carried concealed on or about his person a 25-caliber automatic pistol. In a trial without a jury on a plea of not guilty the court found the defendant guilty as charged in the information, fined him $25 and suspended the fine. He appeals.

The defendant, married and the father of three children and with a good reputation as a peaceable and law-abiding citizen, was driving to his house in Chicago at about 1:30 a. m., Wednesday, December 20, 1961, when two police officers in an automobile patrolling the area, required the defendant’s car to stop. The police officers were on the lookout for a burglary suspect driving a compact car of the type defendant was driving. The defendant got out of his car. An officer searched the automobile and found a 25-caliber loaded pistol on the floor in front of the front seat. The policeman who made the search testified that the gun was lying on the floor of the car on the driver’s side immediately in front of the front seat, and that upon his arrest defendant said that he had the gun for protection.

Defendant had been the manager of a well-known bowling alley with a good reputation for six years. Defendant and the proprietor of the bowling alley testified that the proprietor requested the defendant to purchase a gun “for protection” as they had been having trouble with rowdies at the bowling alley. The proprietor paid for the gun. It appears from the testimony that when the defendant left the bowling alley to go home he did not realize that he had the gun in his possession. When he discovered that he had the gun, he shoved it under the front seat. It was well under the front seat at the time he stopped his car on command of the police. He thought that when he suddenly applied his brakes the gun slid forward on the floor from its position under the front seat. He is a stout man and cannot readily reach down from his position behind the wheel.

The defendant is charged with carrying a pistol concealed on or about his person. At the time defendant was stopped by the police the gun was not accessible nor was it concealed on or about his person. See People v. Liss, 406 Ill. 419, 94 NE2d 320; People v. McClendon, 23 Ill. App2d 10, 11, 161 NE2d 584. The gun was inaccessible. Defendant could not have grasped it without opening the door of the compact car he was driving. Under the law and the evidence the defendant should have been acquitted.

The judgment entered in this case is unusual in that it is followed by the words “fine suspended.” In criminal law the terms “sentence” and “judgment” are generally synonymous and denote the action of the court formally declaring the legal consequence of the guilt which the accused has confessed or of which he has been found guilty. 24 CJS, Criminal Law, § 1556, page 380. The general rule is that in the absence of statutory authority, the court has no power indefinitely to suspend the execution of its sentence, and that any such order made after judgment, or as a part thereof, is to that extent void. 24 CJS, § 1618(1), page 868. The only suspension of sentence authorized in Illinois is given in the Probation Act. People v. Wright, 296 Ill. 455, 462, 129 NE 819. Should the order suspending the fine be considered a vacation of the judgment, the case would be pending and there would be no judgment from which to appeal. In the instant case we choose to view the suspension of the fine as beyond the power of the court and a nullity. Under this assumption the defendant has a right to appeal from the final judgment.

For the reasons stated the judgment is reversed and the cause is remanded with directions to find the defendant not guilty and to enter judgment for him.

Judgment reversed and cause remanded with directions.

BRYANT, P. J. and FRIEND, J., concur.