author: MR. JUSTICE DOVE

text:
    Wauconda Township High School District No. 118 in Lake and McHenry Counties, State of Illinois, Plaintiff-Appellant, v. County Board of School Trustees of McHenry County; School District No. 156 in McHenry County, Illinois: Earl Lawrence et al., Defendants-Appellees.
    Gen. No. 10,848.
    Second District.
    September 27, 1955.
    Released for publication October 17, 1955.

      Looze & Kinne, of McHenry, and Runyard & Belianna, of Waukegan, for appellant; Harry G. Kinne, Jr., of McHenry, of counsel.
    Charles C. Stadtman, of Woodstock, for appellees.
   MR. JUSTICE DOVE

delivered the opinion of the court.

It appears from the record in this case that on December 3,1953, a petition was filed with County Board of School Trustees of McHenry County in accordance with the provisions of Article 4B of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B—1 et seq. [Jones Ill. Stats. Ann. 123.754B(4)]) praying for the detachment of certain described territory from Wauconda Township High School District No. 118 in Lake and McHenry Counties and annexing said territory to School District No. 158 of McHenry County, Illinois. Written notice of the presentation of said petition was duly given to said Wauconda Township High School District No. 118 and said School District No. 156. This notice was in accordance with the provisions of section 4B-4 of the School Code and stated when the petition was filed, the description of the territory, the prayer of the petition, and fixed the return day as January 4, 1954. Wauconda Township High School District No. 118, by its attorney, appeared at the hearing and objected to the granting of the petition. On January 12, 1954, the County Board of School Trustees of McHenry County entered an order of detachment and annexation in accordance with the prayer of said petition.

On February 11, 1954, the instant complaint was filed in the Circuit Court of McHenry County under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1953, chap. 110, par. 264 et seq. [Jones Ill. Stats. Ann. 104.094(1) et seq.]) by Wauconda Township High School District No. 118 of Lake and McHenry Counties which made the County Board of School Trustees of McHenry County and School District No. 156 in McHenry County defendants. The County Board of School Trustees answered. Upon motion, Harold Vaupell and five other persons, some of whom appeared at the hearing before the County Board of School Trustees in support of said detachment petition, were granted leave to intervene as parties defendant in the proceedings in the Circuit Court, and they filed a motion to dismiss the complaint. The ground for the allowance of this motion to dismiss, as stated therein, is that “it appears on the face of the complaint that the plaintiff has not legal capacity to sue for the reason the statute does not authorize a Board of Education to commence an action to review the administrative decision of a County Board of School Trustees in the matter of changing school district boundaries.” This motion was heard and sustained and from an appropriate order dismissing the complaint, the plaintiff appeals.

The sole question presented by this record is whether appellant, Wauconda Township High School District No. 118, is entitled to seek a review of the decision of the County Board of School Trustees, which decision detached from its district a substantial part of its territory.

Counsel for appellee insists that the Administrative Review Act does not specify the parties who may petition for a review of the decision of an administrative agency and that the matter of who may be a party plaintiff in such a proceeding is therefore governed by the provisions of the School Code and that its applicable provision limits the parties who may apply for a review under the Administrative Review Act to “any resident who appears at the hearing or any petitioner” (Ill. Rev. Stat. 1953, chap. 122, par. 4B—5 [Jones Ill. Stats. Ann. 123.754B(5)]). Counsel argue that while the record discloses that appellant appeared at the hearing before the administrative agency, it owns no property, has no voting rights and cannot be held to be a resident within the meaning of the language used in this section of the School Code.

School districts are involuntary political or civil divisions of the state created as auxiliaries of the state to aid in the general administration of government. A legally constituted school district is composed of the territory included within its corporate boundaries. It is a quasi-municipal corporation and the board of education of a school district is an agency of the state and not a subdivision thereof and is a separate and distinct corporation which furnishes the method and machinery for the government and management of the district. (The People v. Thomas, 361 Ill. 448, 453; Melin v. Community Consol. School Dist. No. 76, 312 Ill. 376, 382; Fiedler v. Eckfeldt, 335 Ill. 11, 21.) In the construction of our statutes, the words, “person” or “persons,” as well as all words referring to or importing persons may extend and be applied to bodies politic and corporate as well as individuals. (Ill. Rev. Stat. 1953, chap. 131, sec. 1.05 [Jones Ill. Stats. Ann. 27.13(5)].) The word resident, as used in section 4B-5 of the School Code imports a person, but whether the word resident, as so used in this provision of the School Code, embraces appellant need not be determined, as under the provisions of the Administrative Review Act, appellant is entitled to a review of the decision of the County Board of School Trustees.

Section 4B-4 of the School Code provides that upon the filing of the instant petition with the secretary of the County Board of School Trustees, the secretary shall cause a notice of the presentation thereof to be given in writing to each board of any district involved in the proposed boundary change and shall also publish a notice in a newspaper having general circulation within the area of the territory described in the petition, and this notice shall state when the petition was filed, the description of the territory sought to be detached, the prayer of the petition, and the return day upon which the hearing on the petition will be held. It is further provided: “On such return day, or on a day to which the county board of school trustees shall continue said hearing,” the petition shall be heard. Section 4B-5 of .the School Code provides in part that the decision of the County Board of School Trustees shall be deemed an “administrative decision” as defined by section 1 of the “Administrative Review Act.” Section 1, subpar. 2 of the Administrative Review Act defines “administrative decision” as any order or determination of an administrative agency rendered in a particular case which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency. (Ill. Rev. Stat. 1953, chap. 110, par. 264.)

Section 2 of the Administrative Review Act [Ill. Rev. Stats. 1953, ch. 110, § 265; Jones Ill. Stats. Ann. 104.094(2)] provides that unless review is sought of an administrative decision within the time and in the manner therein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision. Section 4 of the same Act [Ill. Rev. Stats. 1953, ch. 110, § 267; Jones Ill. Stats. Ann. 104.094(4)] provides that every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within thirty-five days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. Section 8 of the same Act [Ill. Rev. Stats. 1953, ch. 110, § 271; Jones Ill. Stats. Ann. 104.094(8)] provides that in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.

The decision which is sought to be reviewed in this case affects the legal rights, duties, and privileges of appellant. Section 2 of the Administrative Review Act clearly implies that the parties to the proceeding before the administrative agency may obtain a judicial review of the decision of the administrative agency. Section 4B-4 of the School Code required notice to be given appellant, as it was a school district involved in the proceedings before the County Board of School Trustees. There would be no purpose in presenting notice to appellant of the hearing before the County Board of School Trustees unless it would have a right to appear and be heard before the County Board of School Trustees made its decision; and, after having-made a decision which affected its rights, duties, and privileges, it must have been the intention of both the School Code and the Administrative Review Act to afford it an opportunity to seek a judicial review of a decision which so vitally affects its interests.

Counsel for appellees insists that the statutory provision for giving written notice to the districts affected does not make these districts parties to the proceedings to such an extent as to entitle such school districts to institute an action to review the decision of the County Board of School Trustees under the provisions of the Administrative Review Act. Counsel suggests that the notice by the secretary of the County Board of School Trustees to the boards of education of the affected school districts is in the nature of a subpoena rather than a summons, so that at the hearing before the County Board of School Trustees the affected districts will furnish the County Board of School Trustees the information which the County Board of School Trustees must have, as required by Section 4B-4 of the School Code, before it issues 'any order in the detachment proceeding.

The School Code does not require a board of education of any school district involved in the detachment proceeding to appear before the County Board of School Trustees and supply information to the County Board of School Trustees. Certain information is to be furnished to the County Board of School Trustees by its secretary, as outlined in Section 4B-4 of the School Code. There is nothing in the Act that would warrant us in concluding that the written notice required to be given a school district affected in a detachment-annexation proceeding is in the nature of a subpoena rather than a summons. Such notice is more in the nature of a summons. Its purpose was to. afford the school district involved an opportunity to appear at the hearing and be heard, if it so desired, and being a party to the record, under the provisions of the Administrative Review Act, it had a right to have reviewed the decision of the County Board of School Trustees.

The judgment of the Circuit Court of McHenry County is, therefore, reversed and this cause is remanded with directions to overrule the motion of the interveners to dismiss.

Reversed and remanded with directions.

EOVALDI and CROW, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Anna C. Swenson, Plaintiff-Appellee, v. City of Rockford, Defendant-Appellant.
    Gen. No. 10,856.
    Second District.
    September 27, 1955.
    Released for publication October 17, 1955.

      Angelo N. Gaziano, and Láveme E. Anderson, both of Rockford, for defendant-appellant; Angelo N. Gaziano, of Rockford, of counsel.
    Irving M. Greenfield, of Chicago, and Henry H. Caldwell, of Rockford, for plaintiff-appellee; Henry H. Caldwell, of Rockford, of counsel.
   MR. JUSTICE DOVE

delivered the opinion of the court.

This action was brought to recover damages for personal injuries sustained by the plaintiff when she fell, on June 13, 1953, while walking along a cement sidewalk on the east side of South Main Street in front of the Galluzzo Market in the City of Eockford. The issues made by the pleadings were submitted to a jury, resulting in a verdict and judgment in favor of the plaintiff for $15,000, and defendant appeals.

There is no question raised as to the pleadings, the admission or rejection of evidence, the general instructions of the court to the jury at the conclusion of the evidence, or the amount of the verdict. The only errors relied upon for reversal are the refusal of the trial court to direct a verdict in favor of the defendant at the close of the plaintiff’s case and following the return of the verdict, its failure to sustain defendant’s motion for judgment notwithstanding the verdict. It is insisted by counsel for appellant that the evidence discloses no actionable negligence on the part of the city and that plaintiff, as a matter of law, was guilty of contributory negligence.

The plaintiff was the only occurrence witness. She testified that she was sixty-six years of age at the time of the accident, and only wore glasses to read and sew and did not have them on when she left her home between three and four o’clock of the afternoon of June 13, 1953, to go to the Galluzzo Grocery and Market, located at 1418 South Main Street in Eockford. The plaintiff and her husband lived at 1423 Eock Street, which was one block east of the grocery, and had lived there for ten years prior to the date of the accident. In order to reach the grocery, she went out the back door of her house and walked through an alley between a building occupied by a laundry located just south of the grocery and went around the west end of the store building on a concrete sidewalk. She testified she had traveled this course from her home to the grocery four or five times a week for ten years, and upon her first trip to the grocery, on the afternoon of June 13,1953, she saw the crack in the sidewalk where she fell and had also observed the place where she fell “before June 13, 1953, for quite awhile.” She was wearing white low-heeled shoes and, without any mishap, entered the grocery, made her purchases, and returned to her home. When she arrived home she discovered she had forgotten to purchase some article and immediately returned to the store by the same route. She testified that the weather was pleasant and it was a clear, sunny day.

After testifying that she had noticed this long crack in the cement sidewalk not only on her previous trip to the grocery that afternoon but also on other occasions, the plaintiff was then asked by her counsel on direct examination: “Did you fall down any place near a grocery store, Mrs. Swenson?” and her answer was, “Yes, I did.” She was then asked: “And where did you fall?” and she replied: “When I went to the grocery store, I noticed this long crack in the sidewalk which had made the sidewalk fall down forming a ridge, and on the end of this ridge was a hunk of cement. When I went to go into the grocery store, I went to go over this ridge and my foot slipped off that ridge and I knocked my foot into that piece of cement and went off balance and fell on my right side.” She further testified that after she fell she laid on the sidewalk about a minute and then got up and walked into the grocery and later walked home.

On cross-examination, plaintiff testified that at the time she fell she was walking no faster than usual and as she came around the corner of the building on her way to the store the second time that afternoon, she saw the ridge in the pavement and as she proceeded she placed her left foot on the ridge and her foot slipped off the ridge, which she estimated to be about two inches, and she fell. She further testified that she had seen this ridge before but had never stumbled there prior to the afternoon of June 13, 1953.

The plaintiff’s husband, Hjalmar Swenson, testified that he was a painter by occupation and that he and his wife, on June 13, 1953, were living just across the alley from 1418 South Main Street; that he was familiar with, the locality and the streets and sidewalks at that address and that he had had occasion to walk upon the sidewalk in question two, three, or four times a week for ten years prior to June 13, 1953. He further testified that there is a crevice or drop in the sidewalk there of two-and-a-half inches and identified four photographs taken a few weeks after the accident and indicated thereon the crevice he testified about, and his testimony is that this condition had existed for over two years prior to June 13, 1953. These photographs were admitted in evidence, and, when shown to the plaintiff, she indicated on each of them the location of the spot where she fell.

Mamie Galluzzo testified on behalf of the defendant to the effect that she and her husband operated the Galluzzo Grocery at 1418 South Main Street and had operated it seven years prior to June 13,1953; that the plaintiff was a frequent visitor and patron of the grocery store, coming there three or four times every week; that on the afternoon of June 13, 1953, she came to the store, purchased some groceries and left, later returning to buy some groceries which she had forgotten; that the return trip was made about one-half hour after she bought the first groceries; and that before she came into the store the second time to purchase the items which she had forgotten, she fell. This witness further testified that prior to the time the plaintiff fell, the witness had had no occasion to notice the sidewalk in front of her store, but after plaintiff had fallen she “went out and looked at the sidewalk and saw a little bump. It was about an inch and a half or something like that. I really don’t know, ’cause I never measured it. The bump was caused by the fact that the sidewalk was cracked, but I had never noticed it prior to that time.”

Joseph Bruno also testified on behalf of the defendant to the effect that he was superintendent of streets of Rockford and that his records did not disclose that any report had ever been made to the city of any defective conditions in the sidewalk in front of 1418 South Main Street.

Other than the plaintiff’s testimony as to the injuries she received as a result of this accident and the medical testimony, none of which is abstracted, the foregoing is a fair resume of the evidence found in this record.

In order to sustain the judgment, counsel for appellee cite Franklin v. City of Edwardsville, 4 Ill.App.2d 495; Stevenson v. Byrne, 3 Ill.App.2d 43; City of Mattoon v. Faller, 217 Ill. 273; Village of Clayton v. Brooks, 150 Ill. 97; Ashby v. Irish, 2 Ill.App.2d 9; and White v. City of Belleville, 364 Ill. 577.

In the Franklin case, the court sustained a judgment in favor of the plaintiff, who had only one leg and used two crutches in walking, when he was injured caused by a fall while traveling on a cracked and broken concrete walk when he placed his crutch on a chunk of concrete which tipped under his weight throwing his crutch out, thus causing him to fall.

In Stevenson v. Byrne, 3 Ill.App.2d 43, plaintiff, a tenant in an apartment building, was injured as she was leaving her apartment to go to work. When she reached the front door of the building she found there was no door knob on the door and she put her finger in the hole where the knob should have been, pulled at the door, and when it swung open she stepped into a hole in the cement flooring, tripped and fell through the door onto the outside landing. The court sustained a judgment for the plaintiff and held that plaintiff was not guilty of contributory negligence as a matter of law.

In City of Mattoon v. Faller, 217 Ill. 273, it appeared that the plaintiff stepped on the end of a plank of a wooden sidewalk which was out of repair and in a bad condition and plaintiff knew it was defective. When the plaintiff stepped on this plank, the other end flew up, and in endeavoring to step over that end with his other foot he lost his balance, got his foot caught on the edge of a defective plank and fell receiving serious injuries. The court sustained a judgment for the plaintiff, stating that it is well-settled law in this state that where a man knows of a defect in a sidewalk and walks thereon, his doing so with such knowledge is not negligence per se, as a matter of law, as all the law requires of a man, going upon a public sidewalk with knowledge that it is defective, and with knowledge that there is another way of going, is that he shall be in the exercise of ordinary care for his own safety. The opinion in the Faller case cited Village of Clayton v. Brooks, 150 Ill. 97, and quoted extensively therefrom.

In White v. City of Belleville, 364 Ill. 577, the plaintiff in the trial court recovered a judgment for damages for injuries sustained by her as a result of a fall on a granitoid sidewalk in the City of Belleville. It appeared that the sidewalk, where the accident occurred, had been repaired and that there was a depression in the walk extending nineteen inches north and south and sixteen inches east and west and varying in depth from two to four inches. At the edges of the break in the walk, caused by the detachment of a repaired slab from the main walk, there was a crevice sufficiently wide to permit the heel of a woman’s shoe to enter. Plaintiff’s testimony was that she walked across or upon the repaired portion of the walk and as she stepped down into the depression, the heel of her shoe dropped into a hole and she was thrown forward and fell upon the street. The Appellate Court held (White v. City of Belleville, 284 Ill. App. 322, 331) that the trial court erred in not directing a verdict for the city because the plaintiff had failed to prove any negligence on the part of the city. The Supreme Court reviewed the record and in reversing the judgment of the Appellate Court held that there was substantial evidence to support the charge that an unsafe condition of the sidewalk existed where the accident occurred.

The facts in the instant case distinguish it from the several cases relied upon by appellee. Here appellee was traveling upon a walk with which she was familiar. It extended east from the street curb to the west wall or west property line of the Galluzzo Grocery. Its width does not appear from the evidence, but we have examined the photographs and they disclose that it is the ordinary concrete walk in common use, cracks appearing thereon at different places and marked off in sections of substantial size. A portion of the west side of one of the middle sections had settled. According to the plaintiff, the result of this settling was to leave the surface of the adjoining section two inches higher than the surface of the portion of the section which settled. According to the testimony of plaintiff’s husband, this inequality was two and one-half inches. Mrs. Galluzzo characterized this inequality as “a little bump about an inch and a half or something like that.” This condition had existed for at least two years and plaintiff had seen the ridge, that is the edge of the concrete slab that had not settled, on many occasions, had seen it on her previous visit to the store on June 13, 1953, and again upon her return trip just before she fell. Knowing this she placed a portion of her left foot on this ridge and when she did so her foot slipped off the edge from the higher to the lower level and she was unable to retain her balance, fell and was injured.

The question whether an offset in a sidewalk such as disclosed by the evidence in this case is of such a character that danger to a pedestrian from its existexice may reasonably be foreseen and anticipated by the city and whether, in permitting this inequality to remain, the city had kept and maintained its sidewalk in a reasonably safe condition for ordinary use by pedestrians exercising due care for their own safety are questions of fact for the jury to determine. It has been held that permitting the existence of substantial differences in the level of adjoining flagging or sections of concrete in a sidewalk is insufficient as a matter of law to support a finding that the municipality was negligent.

In Parker v. City and County of Denver, a Colorado case reported in 128 Colo. 355, 262 P.2d 553, 37 A.L.R.2d 1177, the trial court directed a verdict for the defendant in an action brought to recover damages for personal injuries sustained by the plaintiff when she tripped on a sidewalk made of concrete blocks where the elevation of one block over an adjoining-block varied from one-and-a-half to two inches on one side to about one inch on the other side. In reversing the judgment rendered upon a directed verdict for the defendant the court cited numerous cases from other jurisdictions and held that actionable negligence in connection with the maintenance of a sidewalk is a question of fact for a jury’s determination when it appears that reasonable and fair-minded men may form different opinions and draw different conclusions from the same undisputed facts. The court overruled two of its previous decisions stating that they were basically wrong in their determination that depressions or elevations constituting actionable negligence may be measured in inches. Following the report of this case in 37 A.L.R.2d, beginning at page 1187 is an annotation which supplements one on the same subject appearing in 119 A. L. R. 161, on the degree of inequality in a sidewalk which makes question for jury or for court as to a municipality’s liability.

In City of Chicago v. Norton, 116 Ill. App. 570, it appeared that the plaintiff was walking upon a sidewalk of stone flagging and fell near the middle of the sidewalk at a point where the party line between two adjoining properties if extended would cross the walk. At the curbstone, the walk was level but at the building line it was five inches higher than the adjoining walk on the west. At the point where plaintiff fell, the difference in level was from two and one-half to three inches. In the course of its opinion, the court said that the ground of liability is negligence and that the question presented was whether the fact that one of two adjoining flagstones in a sidewalk was two and one-half or three inches lower than the other is sufficient to charge the city with the result of injuries received by a person who fell while stepping from the higher to the lower level. In holding that the city was not liable the court said (p. 572): “If the existence of a difference in level of three inches between two adjoining pieces of flagging or pieces of plank in a sidewalk may be held to render such sidewalk not reasonably safe and be deemed evidence from which the fact of negligence in respect thereto may be inferred and found, then there is scarcely any sidewalk in any city that is reasonably safe. It is a matter of common knowledge that such differences in level may be found in almost every sidewalk in Chicago and a person walking along a sidewalk will step from a plank or stone three inches above the plank or stone upon which he steps without observing the difference in level. From such a difference in level, danger is not in common experience to be anticipated and a city can only be found guilty of negligence when the defect in a sidewalk was such that a reasonably prudent man should anticipate some danger to persons walking thereon. In our opinion the sidewalk in question was reasonably safe and the defendant, the city of Chicago, was not guilty of negligence in respect thereto.”

In Bleiman v. City of Chicago, 314 Ill. App. 471, the plaintiff sought to recover damages for injuries resulting in a fall on a driveway leading from a street over a sidewalk into an adjacent garage. It appeared that the plaintiff, in walking from his car over the plates to the sidewalk, did not notice the difference in level caused by the plates which extended over the curb and the heel of his left shoe caught the plate and he slipped off the plate into the street, a drop of about four inches, resulting in a fractured femur. In reversing a judgment for the plaintiff, the court said: “The controverted issue is whether the driveway, at the place where plaintiff fell, was reasonably safe as a matter of law. Under the well-settled rule in this State, a city can be found guilty of negligence only when the defect in a sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. This rule was enunciated in the early case of City of Aurora v. Pulfer, 56 Ill. 270, wherein the court held that ‘obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such nature that they are in themselves dangerous, or such that a person, exercising ordinary prudence, can not avoid danger or injury in passing them.’ ”

In Powers v. City of East St. Louis, 161 Ill. App. 163, the plaintiff, while walking on a granitoid sidewalk, fell and broke her arm and recovered a judgment in the trial court. In reversing that judgment the court reviewed the evidence and held that the city was not guilty of the negligence charged and that the plaintiff was not in the exercise of reasonable care for her own safety at and just before her injury. The court pointed out that the walk where plaintiff was traveling was six feet wide, practically level, but three inches higher at the property line than the adjoining walk and two inches higher than the adjoining walk at the street curb; that plaintiff fell when she did not observe the difference in the height of the levels as she was proceeding along the walk on a clear, light day. In the course of its opinion, the court said (p. 166): “There was nothing inherently dangerous to a traveler in this walk. There was no concealed defect or imperfection in its construction or make-up. For one to pass over it and say that they did not see the incline and difference in levels, is to admit that they did not look at the walk at all, unless their sight be very, very poor. The plaintiff testifies that her sight is not so good as when younger, but that she can see all right; that it was a fine, sunshiny day when she was injured; that if she had looked down at this rise in the walk that she would have seen it; that she was looking ahead; that she didn’t look only when she fell; that there was nothing to prevent her from seeing if she had looked, and that if she had looked and known it was there she would not have fallen. How then can it be said that she was in the exercise of ordinary care for her own safety, when added to this evidence is the further fact that she had already just a moment before her injury stepped down from the same higher level to the lower level of the walk twenty-five feet south from the place of her injury? We cannot hold that a walk of two smooth granitoid surfaces built upon two different levels, varying in height of from two to three inches and connected with smooth bevel surfaces, is proven to be unsafe and dangérous to travelers thereon using reasonable care for their own safety simply because some one has been injured by falling on it. . . . No reasonable mind, it seems to us, could foresee that an injury would happen to a traveler thereon while exercising reasonable care. To hold that this sidewalk as constructed was not reasonably safe within the meaning of the law would be virtually to hold that all walks should be smooth and level. This would require of cities perfection in the construction of their walks and would make them virtually insurers against all damages; but the law of this State does not require such exactions, and our courts have repeatedly refused to hold cities and villages liable in such cases as this one. When a city or village has exercised reasonable care and prudence to construct its sidewalks in a reasonably safe condition for travelers using reasonable care for their safety, it has done all the law required of it in that regard. It is not required to foresee and provide against every possible danger or accident that may occur.”

In our recent case, Shepard v. City of Aurora, 5 Ill.App.2d 12, we had occasion to refer to many of the authorities involving segments of a sidewalk having a difference in levels and affirmed the judgment for the plaintiff for injuries resulting from a fall, the court stating that it was a fair inference from the evidence that the plaintiff fell when her shoe did not clear a one and one-half inch raise as she walked along a sidewalk containing a five-foot-square trap door.

Whether inequalities in the surface of a sidewalk constitute actionable defects depends upon their character, extent and surrounding circumstances. The test ordinarily is whether they are of such magnitude or extent as to be likely to cause injuries to travelers who are proceeding with due care. Liability has frequently been imposed for injuries resulting from such inequalities or structural defects in the surface of a sidewalk. Slight depressions, holes, and other inequalities in the sidewalk have been held not to constitute actionable defects. A material or substantial difference in height between adjacent sections of a walk may render the municipality liable for injuries to pedestrians who stumble over it, but slight differences in level of adjacent portions will not have that effect. (25 Am. Jur. Highways, sec. 488, pp. 774-6.) The cases examined cannot be harmonized. What is considered a slight and trivial inequality by some courts is held to be a substantial inequality by others. We are inclined to the view expressed by those courts which hold that actionable negligence in such cases cannot be measured in inches, and that the character of the defect and surrounding circumstances are to be taken into consideration, and that it is ordinarily a jury question. In the view we take of the record in the instant case, it is unnecessary for us to determine whether appellant was or was not guilty, as a matter of law, of the negligence charged.

From the undisputed facts as disclosed by the record in this case, plaintiff is precluded from a recovery because as a matter of law she was guilty of contributory negligence. As said in Powers v. City of East St. Louis, 161 Ill. App. 163, there was nothing inherently dangerous to a pedestrian using this walk, no concealed defect or imperfection in its construction or makeup. How can it be said upon this record that plaintiff was in the exercise of ordinary care for her own safety when, knowing the conditions that then existed, she placed her foot where she intended to place it, aware that when she did so it would rest upon the ridge of a slab of concrete which was at a higher level than the section of concrete which she was traversing? Evidently, she did not place her foot far enough upon the adjoining section, and the weight of her body caused her foot to slip and she lost her balance and fell. There was no foreign substance on the ridge with which her shoe came in contact to cause it to slip, and the surface was in the same condition as the surface of the section upon which her other foot was resting. Had plaintiff supposed that there was any danger she would have stepped somewhere else or exercised such precaution as would have prevented her falling. She was injured because she failed to place her foot securely on the section of concrete she proposed to cross. Placing her foot where she did resulted in her fall and, therefore, proved dangerous to her. By so doing, she therefore failed to heed visible danger, and failing to heed visible danger precludes her from recovering.

Contributory negligence is the neglect of the duty imposed upon everyone to observe ordinary care for their own safety. (38 Am. Jur. Negligence, sec. 181, p. 859.) Ordinary care has been defined to be that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. (Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112, 120.) The law is that where one knows of a defect in a sidewalk and walks thereon, his doing so with such knowledge is not negligence per se, as matter of law. All that the law requires of a person going upon a public sidewalk with knowledge that it is defective and with knowledge that there is another way of going is that he shall be in the exercise of ordinary care for his own safety. (City of Mattoon v. Faller, 217 Ill. 273, 282.) The law is, too, that the care which a plaintiff, in a case of this character, is required to exercise is in proportion to the danger involved. (38 Am. Jur. Negligence, sec. 190, p. 867.) The law imposes upon a person, sui juris, the obligation to use ordinary care for his own protection, the degree of which is commensurate with the dangers to be avoided, and one who voluntarily and unnecessarily assumes a position of danger, the hazards of which he understands and appreciates, cannot recover for an injury from a risk incident to the position. (38 Am. Jur. Negligence, sec. 182, p. 859.)

In the instant case there is no conflict in the evidence as to what plaintiff did at and before the time she fell. It does not appear that she was distracted by the influence of any unusual or extraordinary conditions. She was familiar with the imperfections of the sidewalk upon which she was traveling. She had a perfect legal right to step where she pleased. She chose to place her foot on the ridge of this section of elevated concrete. Her experience must have taught her that if she did so and did not obtain a secure footing and then lifted her other foot preparatory to taking another step she would lose her balance, and if she was unable to regain her balance she would fall. She, therefore, in so doing, voluntarily and unnecessarily assumed a position of danger, because what happened is what an ordinarily prudent person knew would happen, and, in so doing, she must be held to be guilty of contributory negligence as a matter of law, which precludes a recovery.

The judgment of the Circuit Court of Winnebago County is reversed.

Judgment reversed.

EOVALDI and CEOW, JJ., concur.


author: MB. JUSTICE CROW

text:
    People of State of Illinois, Defendant in Error, v. John M. Boyden, Plaintiff in Error.
    Gen. No. 10,866.
    Second District.
    September 27, 1955.
    Released for publication October 17, 1955.

      I. Stanley Pinkett, of Chicago Heights, and Harry G. Fins, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General of State of Illinois, of Springfield, for defendant in error; Frank H. Masters, State’s Attorney, of Joliet, Fred G. Leach, and George W. Schwaner, Jr., Assistant Attorneys General, both of Springfield, of counsel.
   MB. JUSTICE CROW

delivered the opinion of the court.

The plaintiff in error, John M. Boy den, was found guilty, after trial without a jury, by the County Court of Will County on an amended information consisting of three counts, charging, substantially, that the defendant unlawfully practiced dentistry, in that he was the manager, proprietor, operator or conductor of the Boy den Dental Laboratory, in Joliet, on the 14th day of December 1953, without possessing a valid and existing license to practice dentistry, and at said place on the day in question, one Sam Jonas, not possessing a valid and existing license to practice dentistry, did unlawfully (1) extract a tooth from the upper jaw of one Roy Wurst; (2) offer to furnish, supply and construct a partial denture for Roy Wurst; and (3) furnished, supplied and constructed a partial denture and placed it in the mouth of Roy Wurst, the said Roy Wurst being a prospective user thereof. The court found the defendant guilty on all counts, and entered judgment, imposing a sentence of one year imprisonment in the County Jail on Count I, a fine of $1,000 on Count II, and a fine of $1,000 on Count III.

The plaintiff in error by this writ of error seeks to review the judgment and claims these errors: (1) That the People failed to prove that the defendant was the manager, proprietor, operator, or conductor of the place where Sam Jonas performed dental operations; (2) that the People failed to prove the defendant guilty of the material matters charged in the information beyond a reasonable doubt; (3) that the penalties imposed by the Trial Court are excessive and are in violation of the Dental Practice Act; and (4) the judgment and sentence are purely arbitrary, not based on any evidence, and violate the provisions for “due process of law” and “equal protection of the laws,” of the United States Constitution.

A review of the facts establishes that neither the defendant John M. Boyden, or Sam Jonas, who actually performed the dental operations on Roy Wurst in the Boyden Building, was licensed by the State of Illinois to practice dentistry at the time of the occurrences. The evidence further shows that the building where the occurrences took place is located at 301 East Jackson Street, Joliet, Illinois, is known as the “Boyden Building,” and is owned by the defendant Boyden, who is a dental technician; that prior to the occurrences Dr. Charles George Embleton, a licensed dentist, had apparently occupied a dental office at 301 East Jackson Street, in the same building, but he had become ill and had had to be confined to a hospital in or near Chicago, and while going to or on leave from the hospital he met Sam Jonas, and Jonas agreed to go to Joliet and to the Boyden establishment for the purpose of temporarily taking Dr. Embleton’s place and practicing dentistry; that Jonas reported to the defendant Boyden and when he first came to Boyden’s office, the defendant said: “You can go in there,”— pointing to the dental office formerly occupied by Dr. Embleton. From the front entrance to the building, four steps led up to a lobby or hall; down the hall is a door which opens into a reception room; the door into the reception room has printed thereon “John M. Boy-den, Dental Technician” or “Boyden Dental Laboratory.” From the reception room, doors lead off to a ladies’ rest room, a men’s rest room, the laboratory, and to the dental office occupied by Jonas. The door to that dental office has the sign “Dentist” on it. The name “Dr. Charles George Embleton, Dentist,” however, did not appear on the door to this dental office or on the door into the reception room at the time in question. The dental office can be reached only by coming first through the outer hallway door into the reception room, on which outer door, as we’ve indicated, appear only the words “Boyden Dental Laboratory” or “John M. Boyden, Dental Technician,” and by then going through the door off the reception room which was labeled simply “Dentist.”

All charges set forth in the three counts of the information are based upon ch. 91, Ill. Rev. Stats. 1953, par. 60, and, particularly, par. 60 (2) [Jones Ill. Stats. Ann. 39.06, subd. (2)]. The statute provides that: “A person practices dentistry, within the meaning of this Act:—(2) Who is a manager, proprietor, operator or conductor of a place where dental operations are performed; . . .” Paragraph 70 of the same chapter provides the penalties for practicing or offering to practice dentistry without being licensed.

It is not disputed that Sam Jonas, who occupied the dental office on the date in question, did extract a tooth from the jaw of Boy Wurst; that Jonas offered to furnish and construct a partial denture on Wurst; and that Jonas did furnish, supply.and construct a partial denture in the mouth of Boy Wurst, a prospective user. Therefore, there is no question but that these were “dental operations” within the meaning of the Act. The plaintiff in error practically concedes that the case depends upon the issue as to whether the State proved beyond a reasonable doubt that the defendant John M. Boyden was, on December 14, 1953, the “manager, proprietor, operator or conductor” of the place where Sam Jonas performed the admittedly “dental operations” on Boy Wurst.

There is no evidence that the defendant actually participated in any fees, as such, charged by Sam Jonas, but such is not essential to the offense under the statute. The evidence relied upon by the State to sustain the charges, in addition to that already indicated, is to the effect that the defendant fixed or set the fees that Jonas was to charge; according to Jonas “He (defendant) had certain set fees I was to charge,” —“He gave me a list of fees of all the work . . . done in the office”; that it was the office practice for someone in the reception room to send patients to Jonas; that everyone was brought into Jonas either by the defendant or someone from the defendant’s office; when Jonas came there the defendant told Jonas that he, the defendant, and no one else, had control over the establishment; Jonas says the defendant controlled the dental office; that the defendant manifested control over the office at the start by telling Jonas, when Jonas first came there, “Where does Embleton get the idea he can have you come in here? It is up to me. I am the one,” and when Jonas then asked the .defendant “How about it?” the defendant said: “Well, o.k. there is a room in there, a dental office in back. You can go in there”; when Jonas extracted a person’s teeth he did not make impressions, but the person would be turned back to the Boyden Dental Laboratory; here, when the patient Wnrst first came into the reception room the defendant said: “I will send a dentist out to yon,” and then directed Wurst into the dental room off of the reception room, and later Jonas came in and introduced himself as Dr. Jonas; subsequently when some dispute arose between Wurst and Jonas as to the method of paying the bill they had a discussion with the defendant Boyden who said “I will take care of this thing. Don’t worry about it. We don’t do that kind of business running people into the street”; and in a later discussion of the bill between Wurst and the defendant, the defendant said “Don’t worry about it, I will take care of it,” and that was the last Wurst heard of the matter. There is also evidence to the effect that the defendant Boyden indicated upon occasion some appliances which were necessary for patients, or extractions, and that Jonas should do the actual extractions or work. The evidence indicates that the defendant Boyden directed generally the activities^ of every person that went into the office and upon whom Jonas worked, and told Jonas what fees to charge, notwithstanding the fact that apparently the defendant did not actually receive fees from the dental operations of Jonas, as such. Some of the instruments in the dental office belonged apparently to the defendant, and some to Dr. Embleton.

We are not unmindful, to the extent any of it may be material, of the. evidence to the effect the patient Wurst here paid Sam Jonas, not the defendant, for the dental work done; that Sam Jonas formerly was a licensed dentist, but his license had been revoked in 1947; that Sam Jonas paid no rent for the space he occupied; that he owned none of the equipment and instruments; that Dr. Embleton says he rented an office from the defendant at this address from May 1953, continuously through the particular time in question, December 1953, and paid rent thereon; that Dr. Embleton says he and Jonas had an arrangement by which Jonas was to run the office and they were to divide 50-50 any fees above overhead, — though, Jonas, it seems, did not send Dr. Embleton any money; that Dr. Embleton says he was in the dental office in December 1953, though on Sundays only; and that Sam Jonas was there with Dr. Embleton’s knowledge and consent. But, we believe, under the circumstances, there is sufficient evidence in the record for the Trial Court properly to have found, concluded, and inferred that the defendant did, in fact, control, conduct, regulate, rule, govern, and direct the whole establishment and the professional activities of Jonas and that he, the defendant Boyden, was actually in charge of the whole place, and was the “manager, proprietor, operator, or conductor” of the place where Jonas performed the dental operations. When there is a mere conflict in the testimony, if there be a conflict, we are not inclined to substitute our judgment for that of the Trial Judge, sitting without a jury, in weighing the evidence and determining the credibility of the witnesses, although here there is really not too much conflict in the material testimony. We do not believe the verdict and judgment is palpably contrary to the evidence, or that the evidence is so unreasonable or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant’s guilt, and in such event it is not our province to disturb the verdict: People v. Gotter (1934), 357 Ill. 214; People v. Tensley (1954), 3 Ill.2d 615.

Although we believe the terms “manager, proprietor, operator, or conductor” are not technical terms of art, but common, ordinary, everyday terms having a reasonably well-nnderstood acceptation and meaning, consideration may be given to such authority as there is defining them.

The only cases the defendant refers to on this are People v. Carr, 276 Ill. 329; People v. Beak, 291 Ill. 449; People v. Cooper, 366 Ill. 113; People v. Robinson, 372 Ill. 503; and Connally v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322. We have considered them all and believe none of them to be in point.

Bouvier’s Law Dictionary defines “manager” as, among other things, “One who has the conduct or direction of anything”; defines “proprietor” as, among other things, “the owner”; does not specifically define “operator”; and does not specifically define “conductor” except as applied to a railroad and in that connection says “ ‘conductor’ or ‘manager’ are used interchangeably and mean a person who has charge of the train.”

Webster’s New World Dictionary defines “manager” as, inter alia, “a person who manages; especially a person who manages a business, institution, etc.”; defines “proprietor” as, inter alia, “a person who has a legal title or exclusive right to some property; owner”; defines “operator” as, inter alia, “a person who operates; specifically (a) a person who effects something”; and defines “conductor” as, inter alia, “a person who conducts; leader; guide; manager.”

“Conduct” includes regulating, directing, ruling, or governing: Chicago Packing & Provision Co. v. City of Chicago (1878), 88 Ill. 221. “Proprietor” means an owner, the' person who has the legal right or title, whether in possession or not: Latham v. Roach (1874), 72 Ill. 179. “Manager” ordinarily means one who has the conduct or direction of anything: Royal Indemnity Co. v. Siders (1930), 257 Ill. App. 100.

We believe the defendant, under the circumstances, came within the meaning of “manager, proprietor, operator, or conductor,” and that the evidence justified the Trial Court in finding the defendant guilty on all three counts.

We find nothing to substantiate the defendant’s theory that the penalties imposed are excessive and in violation of the Dental Practice Act, and the defendant cites no authority to that effect. The penalties are authorized by the statute, ch. 91, Ill. Rev. Stats. 1953, par. 70 [Jones Ill. Stats. Ann. 39.16], which provides, so far as material, that any person who shall practice or offer to practice dentistry without being licensed shall upon conviction be subject to a fine of not less than $200 and not more than $1,000, or imprisonment in the County Jail of not less than one month and not more than one year, or both. Different crimes which are of the same nature or grow out of the same transaction may be embraced in different counts of the same indictment: People v. Routson (1933), 354 Ill. 573; People v. Cotter (1934), 357 Ill. 214. Different and separate misdemeanors of the same character may be joined in the same indictment (or information), in separate counts, and the court may and should fix a separate punishment on each count on which there is a conviction: People v. Player (1941), 377 Ill. 417. In the case at bar Count I of the information charges, in substance, that the defendant practiced dentistry, without being licensed, by being the manager, proprietor, operator, or conductor of a place where Sam Jonas, also not licensed, performed the dental operation of extracting a tooth from Roy Wurst; Count II charges, in substance, that the defendant practiced dentistry, without being licensed, by being the manager, proprietor, operator, or conductor of a place where Sam Jonas, also not licensed, performed the dental operation of offering to furnish, supply, and construct a partial denture for Roy Wurst; and Count III charges, in substance, that the defendant practiced dentistry, without being licensed, by being the manager, proprietor, operator, or conductor of a place where Sam Jonas, also not licensed, performed the dental operation of furnishing, and supplying a partial denture and placing it in the mouth of Roy Wurst. The offenses charged are, under the applicable statute, different crimes of the same nature, or growing out of the same transaction, they are different and separate misdemeanors of the same character, they may he joined in the same indictment (or information), in separate counts, and the court may and should and did here fix a separate punishment on each count on which there was a conviction, — each within the statutorily authorized penalties. Each isolated instance may constitute a complete, separate and distinct violation of the statute: People v. Mattei (1942), 381 Ill. 21.

The only alleged reasons the defendant suggests for his contention that the judgment and sentence violate the provisions for “due process of law” and “equal protection of the laws” of the United States Constitution are that, as the defendant says, the judgment and sentence are “purely arbitrary and not based on any evidence.” The writ of error in this case was first sued out of the Supreme Court of Illinois by the defendant on the theory that a constitutional question was involved: Ch. 38, Ill. Rev. Stats. 1953, pars. 780¼, 780½ [Jones Ill. Stats. Ann. 37.802, 37.803]; Ch. 110, Ill. Rev. Stats. 1953, par. 199 [Jones Ill. Stats. Ann. 104.075]. The Supreme Court apparently determined there was not and transferred the cause to this court, without a formal opinion. So far as we are concerned, we cannot perceive that there is any fairly debatable constitutional question presented, or urged in the Trial Court, the ruling on which is preserved in the record ; a mere assertion that a constitutional question is involved or a constitutional right invaded is not sufficient; there is presented here merely a question of the validity, propriety, and correctness of the judgment and not a constitutional question: People v. Brickey (1947), 396 Ill. 140; People v. Moe (1942), 381 Ill. 235; People v. O’Connor (1953), 414 Ill. 51; Maupin v. Maupin (1949), 403 Ill. 316. Furthermore, it is apparent from the record and what we’ve heretofore said that the court here had jurisdiction of the subject matter and the person of the defendant and that the judgment and sentence are not purely arbitrary and are based on the evidence. The defendant has had a fair and impartial trial, free from prejudicial error, the evidence established his guilt of the offenses charged beyond a reasonable doubt, and there are no errors of law which would reasonably affect the result: People v. Boyden (1948), 400 Ill. 409. The only cases the defendant cites on this point are: Rochin v. People (1951), 342 U. S. 165, 96 L. Ed. 183; Lyons v. Oklahoma (1943), 322 U. S. 596, 88 L. Ed. 1481; and Hill v. Texas (1941), 316 U. S. 400, 86 L. Ed. 1559;—all of which we’ve read, and none of which have any bearing on the case at bar.

The judgment of the Trial Court is, accordingly, affirmed.

Affirmed.

DOVE and EOVALDI, JJ., concur.


author: MR. JUSTICE EOVALDI

text:
    Community Consolidated School District No. 201 of La Salle County, Illinois et al., Plaintiffs-Appellants, v. County Board of School Trustees of La Salle County, Illinois et al., Defendants-Appellees.
    Gen. No. 10,862.
    Second District.
    September 27, 1955.
    Released for publication October 17, 1955.

      Zwanzig, Thompson & Lanuti, of Ottawa, for appellants.
    Jack Trager, of Ottawa, for appellees.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

This case involves an appeal from an order of the circuit court of La Salle county, Illinois, affirming the order of the' County Board of School Trustees of said county, detaching approximately four sections of territory from Community Consolidated School District No. 201 and annexing same to Consolidated School District No. 230, both being in La Salle county.

Plaintiffs-appellants contend that the County Board of School Trustees failed to comply with paragraph 4B—4, chap. 122, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 123.754B(4)], in a comprehensive consideration of the welfare of all the pupils and schools of the area, and that the board’s order was against the manifest weight of the evidence and therefore the circuit court should have reversed said order.

For answer, defendants-appellees take the position that said order was in all respects in accordance with the law and the evidence; that there was a full compliance with the above section of the statute; that the order was not arbitrary or unreasonable and was not against the manifest weight of the evidence.

A petition was signed and filed, by 38 of the 39 legal voters residing in the territory, in the office of the county superintendent of schools of said county, requesting detachment of the territory therein described from District No. 201 and annexation to District No. 230. After timely notice, a hearing was had at which evidence was heard, which resulted in a decision granting the petition to so detach and annex.

District No. 201, and two individual objectors, filed their complaint for review of such administrative decision under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1953, chap. 110, par. 264 et seq. [Jones Ill. Stats. Ann. 104.094(1) et seq.]).

There is a dispute in the testimony. A review of the pertinent facts discloses that the territory in question is compact and adjacent and contiguous to District No. 230; that the territory included all of the balance of Rutland Township not already in said District No. 230, except the Wiley Farm, St. Joseph’s Health Resort and a narrow strip of land between the public highway and the Fox River; that the bridge across the Fox River at Wedron (which afforded access to the schoolhouse in District No. 201) was so unsafe that the school bus loaded with school children could not cross it without exceeding the weight limit posted on the bridge; that the children were, therefore, unloaded from the bus on o ne side of the Fox River and were required to walk across the bridge, and then boarded the bus on the other side of the river; that there were four classrooms in the school of District No. 201, quite small, and that there were between 110 and 120 pupils in the school, and that the rooms were crowded.

District No. 230 was then operating three separate schools, with between 80 and 90 children attending, including 10 or 11 from the territory involved; all of the children were transported to school by bus; and said District No. 230 offered all the required subjects and offered a music program and had recreational facilities.

The testimony of the two individual plaintiffs is to the effect that the school facilities at the Wedron School in District No. 201 were ample to accommodate all of the children attending the school, and that they would have better educational facilities than they would have in District No. 230; that the schoolhouse in District No. 201 had been modernized in recent years and that the district had recently acquired additional property and improved it to the extent of $7,500. One of said plaintiffs admitted, however, that his primary purpose in objecting to the petition for detachment from District No. 201 was the loss of valuation, and subsequent tax increase to the residents of said District No. 201..

Based upon the testimony of the Secretary of District No. 201, appellants strenuously urge that the detachment would cause undue hardship and would seriously impair the financial condition of District No. 201, as approximately 25 per cent of the territory would be detached from that district so that the remaining pupils in said District No. 201 would not be able to receive the proper consideration for their education; that the tax rate in District No. 201 was considerably higher than in District No. 230; and that, therefore, the detachment was made in violation of section 4B-4 of the School Code, as the administrative agency acted arbitrarily and unreasonably in arriving at its decision.

As pointed out in People ex rel. Dixon v. Community Unit School Dist. No. 3, 2 Ill.2d 454, this is no defense to the detachment proceedings. Here, the loss of assessed value amounts to 22.9 per cent. While it is true that the loss of the valuation might cause an increase in the tax rate, surely the legislature had this in mind when it provided a method of detaching property from one school district and annexing same to another, knowing that in each such case there would be some financial loss to the school district from which the territory was detached. It was certainly not the intention of the legislature to freeze the boundaries of school districts in order to prevent an increase in the tax rate. From an examination of the exhibit which was admitted in evidence at the hearing before the County Board of School Trustees, and from the admission of appellants in their brief, it appears that the tax rate in District No. 201 is .574 per cent in the educational fund and .129 per cent in the building fund. In this case while District No. 201 might have to increase its said tax rate, this does not mean that it will be required to levy a tax rate in excess of the limitation imposed by statute as contended by appellants. Actually, the legal maximum tax rate for District No. 201, without further referendum, is .90 per cent in the educational fund and .25 per cent in the building fund. It can readily be seen, therefore, that District No. 201 is nowhere near its legal statutory rate. And, even if it was, the rate could be raised by referendum. In the case of Trustees of Schools v. School Directors of Dist. No. 2, etc., 190 Ill. 390, it was held that a proposed change in a school district is not rendered unjust, unreasonable and oppressive by the fact that to carry out such change the district will have to be taxed to the statutory limit.

The County Board of School Trustees saw the witnesses and received the report from the County Superintendent of Schools as to the school needs and conditions, the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction and as to whether it would be to the best interests of the schools of the area and the educational welfare of the pupils that the territory be detached from District No. 201 and annexed to District No. 230. With all of this evidence before them, the County Board of School Trustees exercised its discretion and granted the prayer of the petition. In discretionary matters, the court will not substitute its judgment for that of the administrative agency. People ex rel. Loughry v. Board of Education of Chicago, 342 Ill. App. 610. Where evidence is conflicting the finding of the administrative agency will not be disturbed, as it is only where its decision is without substantial foundation in the record or is manifestly against the weight of the evidence that such decision will be set aside. Town of Cicero v. Industrial Commission, 404 Ill. 487; Crepps v. Industrial Commission, 402 Ill. 606.

We therefore conclude that the disputed territory was properly detached from Community Consolidated School District No. 201 of La Salle county, and annexed to Consolidated School District No. 230, of said county. The judgment of the circuit court of La Salle county is affirmed.

Judgment affirmed.

DOVE, J., concurs.


author: MR. PRESIDING JUSTICE LEWE

text:
    Roosevelt Lewis, Appellant, v. Glen Motors, Inc., Appellee.
    Gen. No. 46,634.
    First District, Third Division.
    September 28, 1955.
    Released for publication October 18, 1955.
    Arthur Gomberg, of Chicago, for appellant; Samuel Nineberg, of Chicago, of counsel.
    No brief filed for appellee.
   MR. PRESIDING JUSTICE LEWE

delivered the opinion of the court.

Plaintiff appeals from an order dismissing his amended complaint and entering judgment against plaintiff upon defendant’s motion to strike. No appearance or brief has been filed in this court by defendant.

According to the allegations of the amended complaint plaintiff purchased from defendant, an automobile dealer, a 1950 Chevrolet automobile for the sum of $955. Plaintiff paid $50 in cash and was allowed by defendant a trade-in value of $200 on plaintiff’s 1946 Ford Sedan, thus leaving a balance due defendant on the purchase price of $705.

At the time the transaction was consummated defendant’s agent orally promised and agreed with plaintiff that the balance amounting to $705 would be financed by defendant at a legal rate of interest. Plaintiff signed a printed form of contract in blank entitled “car invoice” furnished by defendant. After plaintiff signed the “car invoice” defendant, with intent to deceive the plaintiff and without his knowledge or consent, added below the plaintiff’s signature the following: “Payable in 18 monthly installments of $58.62 commencing-to Glen Motors, Inc.” Defendant sold and assigned the “car invoice” indicating an alleged balance due of $1,055.16 on the Chevrolet automobile to an automobile finance company which informed plaintiff that in the event he failed to make the monthly payments as provided in the car invoice it would repossess the automobile. Plaintiff has paid the finance company the amount of installment payments due under the terms of the alleged contract. He claims damages in the sum of $350.16, that being the difference between the aggregate installment payments and $705 actually due on the purchase price.

In its motion to strike the amended statement of claim defendant averred that plaintiff agreed to pay 18 monthly installments of $58.62 each; that the statement of claim is ambiguous; and that by making the monthly payments to the finance company plaintiff ratified the contract.

In ruling on defendant’s motion to strike we must assume the allegations of the amended complaint to be true. The pleadings do not show any privity of contract between the plaintiff and the finance company nor does it appear that the finance company knew about the particular sale between plaintiff and defendant. This is an action against the defendant for deceit in fraudulently inducing the plaintiff to enter into the contract here in controversy. Under the circumstances alleged in the amended complaint payments to the finance company did not ratify the transaction between plaintiff and defendant. In Manufacturers Finance Trust v. Stone, 251 Ill. App. 414, the finance company, a bona fide purchaser of a note and chattel mortgage securing payments due on the purchase price of an automobile, instituted a replevin suit to recover possession. There the court held that it is not usury to buy notes in the course of business at a discount higher than the interest allowed by law. We think the facts in that case are readily distinguishable from those in the present case. Here the defendant agreed that the balance due on the purchase price would be financed at a legal rate of interest. Instead, the defendant, according to the charges of the amended complaint, fraudulently added a provision to the contract increasing the balance due to $1,055.16. In our view the amended complaint states a good cause of action and the trial judge erred in sustaining the motion to strike.

For the reasons given, the order appealed from is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

KILBY and FEINBBRG-, JJ., concur.


author: MR. JUSTICE KILEY

text:
    People of State of Illinois ex rel. Raymond J. Hahn et al., Appellants, v. Stephen E. Hurley et al., Members of Civil Service Commission of City of Chicago, and Lloyd M. Johnson, Commissioner of Department of Streets and Sanitation of City of Chicago, Appellees.
    Gen. No. 46,447.
    First District, Third Division.
    September 28, 1955.
    Released for publication October 18, 1955.
    Michael F. Ryan, of Chicago, for appellants; Richard F. McPartlin, Jr., of Chicago, of counsel.
    John J. Mortimer, Corporation Counsel of City of Chicago, for appellees; L. Louis Karton, Head of Appeals and Review Division, and Arthur Magid, Assistant Corporation Counsel, both of Chicago, of counsel.
   MR. JUSTICE KILEY

delivered the opinion of the court.

This is a mandamus proceeding to compel nullification of a civil service examination and resultant list for sign hangers in the city of Chicago. The court denied the writ and plaintiffs have appealed.

The Civil Service Commission called the examination October 18, 1951 and after several delays it was given April 11, 1953. When they took the examination plaintiffs were employed as sign hangers by the city, under temporary appointments. Moscato had been appointed in October 1951, Finucane in April 1952 and Hahn in May 1952.

Two hundred twenty-two applicants took the examination and one hundred twenty-one, including plaintiffs, passed. Moscato was given a mark of 70, Finucane a mark of 71.67 and Hahn a mark of 74.67. These marks placed them respectively number 119, number 105 and number'71 on the eligible list. The places were not high enough to qualify them for certification to positions of sign hanger provided in the city budget. They were discharged from their temporary positions and thereafter brought this suit.

The principal issues made by the pleadings were whether the Civil Service Act was violated because the examination did not include physical qualification and health tests; whether the examination was sufficiently practical and relevant to test the relative capacities of the applicants; and whether these failures rendered the examination void. The court found that the failure to include physical qualification and health tests violated the Civil Service Act. The writ, however, was denied. The question here is whether this ruling was erroneous.

Defendants admit that the examination did not include physical qualification and health tests. The trial court’s finding implies that plaintiffs had a clear right to the writ because it found the act was violated but it refused the writ because the harm to follow awarding the writ would outweigh the good to result in granting it.

In People ex rel. McCormick v. Western Cold Storage Co., 287 Ill. 612, at page 618, the court said:

“There may be circumstances under which the writ will not operate fairly, will occasion confusion or disorder or will not promote substantial justice, and under which the court may therefore deny the writ though the petitioner has a clear legal right. This discretion . . . must be exercised according to legal principles, and ordinarily, where a clear legal right is shown, petitioner is entitled to the writ.”

The trial judge in the instant case thought he should take judicial notice “from the testimony” of the harmful effect of awarding the writ. We have been unable to find any testimony which would justify this notice; there is no evidence that any harmful results would follow. People ex rel. Herlihy Mid-Continent Co. v. Nudelman, 370 Ill. 237, 241. We conclude that the decision was an abuse of discretion, if plaintiffs showed a clear legal right to the writ.

The question pending involves a construction of Sec. 6 of the Cities Civil Service Act (Ill. Rev. Stat. 1953, Chap. 24½, Pars. 39-77a [Jones Ill. Stats. Ann. 23.040-23.080(a)]). The pertinent parts of that section are:

“All applicants . . . shall be subject to examination, which shall be public, competitive, and open . . . with specified limitations as to residence, age, health, habits and moral character. . . . Such examinations shall be practical in their character, and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions . . ., and shall include tests of physical qualifications and health, and when appropriate of manual skill; provided, however, whenever an applicant shall be unable to pass the physical examination solely as a result of an injury . . . received . . . as the result of the performance of an act of duty ... as a temporary employee in the position for which he is being examined, such physical examination shall be waived and the applicant shall be considered to have passed. . . .” (Emphasis added.)

In the first sentence of the section the use of the word shall is clearly imperative requiring the examinations to be public, open and competitive. The first several clauses, preceding the proviso, in the second sentence quoted we think set down the norms for examination and consequently the use of shall therein is again imperative, requiring that examinations be practical, relevant to duties and include tests of “physical qualifications and health.” We think that shall include is implied as an imperative before the phrase “when appropriate of manual skill.” This implied imperative is made relative by the term “when appropriate” requiring manual skill tests when reasonably proper. The discretion given with respect to manual skills is absent from the preceding imperatives in that sentence and confirms their imperative character. The use of shall in the proviso expresses simple futurity in its first use anticipating the injury and expresses a mandate with respect to waiver because of the injury. In Teece v. Boyle, 345 Ill. App. 88, 98, this court stated that “the connotation of the word ‘shall’ is not fixed” and its meaning “must be gained primarily from the legislature’s intent as shown by the context.” The uses of shall in Sec. 6 support the court’s statement.

The waiver proviso in the second sentence quoted contemplates a physical examination, of the injured applicant, included in the examination for the position. The second paragraph of Sec. 6 which we did not deem necessary to set out here, provides for a “second examination” prior to appointment, of an eligible under certain circumstances. This clearly presupposes the examination provided for in the sentence we have analysed above.

We conclude that the legislature intended that “tests of physical qualifications and health,” must be included in the examination for the position of sign hanger. Arguments of defendants about the expense, time and inconvenience involved should he made to the legislature. We agree with the finding of the trial court that the examination violated Sec. 6 of the Cities Civil Service Act and that a clear right has been shown for issuance of the writ. We need not decide whether the examination also violated Sec. 6 in that it lacked practicality and did not fairly test the relative capacities of the applicants.

Defendants rely upon dictum in People ex rel. Carter v. Hurley, 4 Ill.App.2d 24. This court in that case decided that a temporary injunction was improvidently issued because equity had no jurisdiction in actions involving purely political rights. The court “expressed its views” on a further question it was “not called upon to decide” and concluded that the tests of physical qualifications and health were not intended by “the statute to be a subject for competitive examination.”

Plaintiffs here claim a violation of the act because the sign hangers examination did not include “tests of physical qualifications and health.” Defendants extend this claim in their brief and argue that the act does not make mandatory the inclusion of those tests in the “competitive examination.” We see no need of going beyond the claim of plaintiffs to sustain the trial court’s finding of a violation of the act. (It is interesting to note, however, that in the 1949 sign hangers examination physical qualification tests were competitive factors and at the time of this trial they were factors in examinations for crossing guard, bricklayer, steam fitter, bridge tender, electrical mechanic and lineman.) The Carter case dictum is not helpful in this case.

This court in People ex rel. Clark v. Hurley, 343 Ill. App. 182, decided that the act did not “so clearly require” a competitive manual skill test in the examination for lineman as to make mandamus appropriate. That case is not pertinent here.

In People ex rel. Witherell v. Chicago, 131 Ill. App. 266, the Appellate Court decided that the trial court properly expunged that part of the prayer for relief which sought a recomputation of grades in a civil service examination, eliminating, among other things, “lung and muscle tests.” This court thought the commission had discretion to decide whether the examination for police officer should include “certain physical tests.” Cited to this statement was Reddick v. People ex rel. Mason, 82 Ill. App. 85, 92. This case involved mandamus of sanitary district trustees to instruct their clerk to pay a contractor’s bill. This holding was an application of the rule that municipal authorities having discretion may be compelled to act but not in any particular way. We are of the opinion that the Witherell case is not authority for the proposition that the act does not require including tests of physical qualifications and health.

We think the trial court’s finding of violation of the Cities Civil Service Act was correct but we think denial of the writ was error. The judgment is reversed and the cause remanded with directions to order that the writ issue.

Reversed and remanded with directions.

LEWE, P. J. and FEINBERG-, J., concur.


author: JUSTICE REYNOLDS.

text:
    Frank Wade, Plaintiff-Appellee, v. Loyd Mathis, Defendant-Appellant.
    Gen. No. 10,017. (Abstract of Decision.)
    Third District.
    September 21, 1955.
    Released for publication October 7, 1955.
    Ernest G. Utter, for appellant;
    Doane G. Troné, for appellee.
   Opinion by

JUSTICE REYNOLDS.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Village of Justice, a Municipal Corporation, and Oak Lawn Construction Company, Appellants, v. James G. Jamieson et al., Appellees.
    Gen. No. 46,615.
    First District, Second Division.
    September 20, 1955.
    Released for publication October 25, 1955.

      Harvey L. Cavender, Joseph C. Kanak, and Chester R. Wesly, all of Chicago, for appellants.
    John Gutknecht, State’s Attorney of Cook County, Daley & Lynch, and Lawlor & Walsh, all of Chicago, for appellees; Gordon Nash, Martin R. Handelman, Charles D. Snewind, and William Sylvester White, Assistant State’s Attorneys, and George J. Schaller, and Edwin D. Lawlor, all of Chicago, of counsel.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiffs filed this suit praying that the court declare invalid an ordinance of the County Board of Cook County, rezoning certain real estate described in the complaint and seeking an injunction to restrain defendants James G. Jamieson, Edward T. Morris, Bernard F. Gerard, Jr. and Marjorie Martin, as trustee, from proceeding with the erection and construction of a trailer camp upon the premises. The chancellor upon motion of defendants struck the complaint and dismissed the suit. The question before us is whether the complaint states a case against defendants. For the purpose of this proceeding the averments of the complaint must be taken as true.

The complaint charges that defendant Marjorie Martin on November 9,1953, filed an unsworn petition with the County Board of Cook County, seeking to rezone real estate located near the Village of Justice, from F-District (Farming) to 1-1 (Light Industry). Light Industry includes trailer camps. The County Board duly transmitted the petition to the Board of Appeals of Cook County for a hearing on the proposed reclassification, and a hearing was held January 8, 1954. Objections were voiced by the parties present and written objections were filed on behalf of certain objectors. A discussion took place but no witnesses were sworn nor was there any request that this be done. On January 28, 1954, the Board of Appeals transmitted its findings to the County Board. The Board of Appeals found that due notice of the hearing had been given; that the property in question is adjacent on the west to an established 1-1 District; that north of the property there is a cemetery; that the plan of petitioner is to construct one-story buildings for the construction of finished glass awnings and carports and also a building for the assembling of house trailers; that the owner of the 80-acre tract to the west stated he planned to subdivide his property and to construct homes thereon and that his company had no objection to the proposed amendment; that the Villages of Bridgeview and Justice, both of whose boundaries lie within 1% miles of the property in question, opposed the proposal. The Board found that the evidence was convincing of the public need and desirability for extension of the present light industrial zone to include that of the property in question, and that the public interest will not thereby be adversely affected and recommended adoption of the ordinance.

The complaint further charged that the matter came up for hearing before the County Board February 1, 1954; that representatives of the Village of Justice and citizens thereof were present, objecting to the adoption of the recommendation of the Board of Appeals; that the County Commissioners said they would take no action at that time; that before any action was taken they would again notify the parties in attendance; that thereafter, without any notice to the plaintiffs, the County Board passed a resolution rezoning the real estate; that plaintiffs had no knowledge of the County Board’s action; that an application for a permit for the construction of a trailer camp was then filed with the Building and Zoning Bureau; that defendant Jamieson is Supervisor of that Bureau; that Gerard is Chief of Police of the Village of River Forest, and that Edwin T. Morris is District Engineer for the locality in which the real estate is located and has to do with inspection of all buildings, trailer courts and other improvements upon real estate therein; that Marjorie Martin did not own lots 31, 32 and 33 included in the real estate sought to be rezoned; that those lots were owned by Morris and Jamieson; that any lots mentioned in the petition, being eleven in number, held by her were held for the benefit of Morris and Jamieson, and that Morris and Jamieson were the real persons in interest in the lots; that Morris and Jamie-son are interested in construction of the trailer camp and that therefore they were ineligible to pass upon or permit the issuing of a license or permit. Plaintiffs charge that by reason of the misrepresentation of Marjorie Martin and by reason of the secret interest of Jamieson and Morris, the latter were incompetent to take part in the proceeding or the issuing of the permit. Plaintiff, Village of Justice, states that the trailer camp would cause damage to its streets, depreciate the value of real estate, and cause other damages. Oak Lawn Construction Company, plaintiff, states that it has constructed twelve new homes a short distance west of the real estate in question and is contemplating the construction of at least twenty-four more homes and that the location of a trailer camp as proposed would cause great damage. It is upon this that plaintiffs pray that the amendment to the zoning ordinance he held invalid and that a temporary and permanent injunction issue, restraining the erection, construction and operation of the trailer camp.

While the complaint makes charges involving employees of the County Board, no facts of which a court can take legal cognizance are presented. Plaintiffs’ brief merely says that the actions of these employees constitutes a fraud upon the plaintiffs’ rights but no legal basis is stated on which a temporary or permanent injunction could be decreed. If there is substance to plaintiffs’ charges with respect to these employees, it is a matter for the County Board to consider and not for the courts.

Plaintiffs contend that the amendment in question is invalid because no legal hearing was held by the Board of Appeals, no evidence having been presented by witnesses who had been sworn, examined and cross-examined, as in a formal legal proceeding. This point rests upon the requirement of paragraph 152m of the Zoning Act (Illinois Revised Statutes 1953, ch. 34, § 152m [Jones Ill. Stats. Ann. 33.190(5)]) which reads as follows:

“The regulations imposed and the districts created under the authority of this Act may be amended from time to time by ordinance or resolution, after the ordinance or resolution establishing same has gone into effect, but no such amendments shall be made without a hearing before the board of appeals.”

Under paragraph 152k.3 of the Zoning Act (Illinois Revised Statutes 1953, ch. 34, § 152k.3 [Jones Ill. Stats. Ann. 33.190(3.3)]), the Board of Appeals is authorized to hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with enforcement of an ordinance or resolution adopted pursuant to the Act.

Two types of hearings are thus provided for before the Board of Appeals. Under paragraph 152k.3 it sits as a reviewing administrative agency to determine the validity of an administrative act, and from an order entered in such a hearing an appeal may be taken to the courts. Under paragraph 152m it sits as a sort of legislative committee to give parties a hearing and to give the County Board facts with respect to the merits of a proposed amending resolution, as it did in the instant case. In such a case the action having legal significance is the County Board’s passage of the amending ordinance. This being legislative, the court cannot inquire into whether the action of the County Board was based on adequate knowledge nor into the motives of its members or employees, nor is there any principle or precedent on which a legislative act may be held invalid because some fact was misrepresented to the legislative body. The nature of an inquiry by the County Board and by the Board of Appeals is different from that conducted by the Board of Appeals under paragraph 152k.3. It cannot be limited to the formality of a legal hearing. Various groups of citizens may he heard in protest or in favor of a proposed change. The merits of an amending ordinance as it relates to a particular locality balanced against the general needs of the county are required to be taken into consideration. These are legislative questions.

Plaintiffs in support of their position cite Flick v. Gately, 328 Ill. App. 81; Magnolia Petroleum Co. v. National Labor Relations Board, 112 F.2d 545; and Chicago & E. I. Ry. Co. v. Commerce Commission ex rel. Hoopeston Grain & Coal Co., 341 Ill. 277. It will be noted that these are all cases in which appeals from administrative orders are involved. In the first case cited, Flick v. Gately, the plaintiff was given a permit by the Building Commissioner of the City of Chicago to operate a machine shop. Adjoining property owners appealed from the Building Commissioner’s order to the Zoning Board, questioning the decision on the ground that the plaintiff’s premises were in a district zoned for commercial purposes. After a “purported hearing,” the Zoning Board reversed the Commissioner of Buildings. The case was taken to the Superior court by the plaintiff and upon an adverse decision, an appeal was taken to this court. This Division reversed and remanded the case to the Superior court with directions to hear the entire matter de novo. The court referred to Hughes v. Board of Appeals of Chicago, 325 Ill. 109, and quoted therefrom as follows, p. 91:

“ ‘In providing for the review of the order of a zoning board of appeals by means of a writ of certiorari the legislature saw fit to widen the field of review by the court so as to include not only questions of jurisdiction and regularity but also questions of fact, if the court should'deem necessary for the proper disposition of the matter. . . . The object of this provision was to broaden the field of investigation of the circuit court.’ ” With respect to the particular method of procedure for conducting hearings before the Board of Appeals on appeals from administrative orders, the court said that as no method was provided, its hearings must be governed by established rules of procedure, that the Board did not afford the plaintiff a hearing as required by law, that no witnesses were heard and that, in effect, a hearing was refused. The proceeding before the Board of Appeals, insofar as it relates to appeals from administrative officers, was considered by the court in Flick v. Gately, supra, to have the aspects of a judicial hearing. That cannot be said to apply to a Board of Appeals acting pursuant to a resolution to hold a hearing and to report its recommendations on a legislative matter to the County Board. The other cases cited by plaintiffs are likewise distinguishable.

Plaintiffs also contend that as paragraph 152k.2 of the Zoning Act (Illinois Revised Statutes 1953, ch. 34, § 152k.2 [Jones Ill. Stats. Ann. 33.-190(3.2)]) empowers the chairman of the Board of Appeals upon a hearing to administer oaths and compel the attendance of witnesses, we should construe this to be an absolute requirement as to all hearings. We do not so consider it in a proceeding such as the one involved in the instant case. That there was a discussion of the merits and demerits of the proposed resolution, that various groups presented their views and that these were duly registered with the County Board all appear clear from the averments of the complaint. We hold that this was an adequate compliance with the requirements of the statute. Other points urged by plaintiffs appear to us to be without merit.

Order affirmed.

McCORMICK, P. J. and ROBSON, J., concur.