text:
    In the Matter of the Estate of Maurice Pohn, Deceased. Jerome B. Reich, M.D., Claimant-Appellee, v. Leonard Barnett, Administrator-Appellant.
    Gen. No. 50,787.
    First District, Second Division.
    January 25, 1966.

      Henry W. Kenoe and Raphael Fine, of Chicago, for appellant.
    Gregory A. Gelderman, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Jerome B. Reich, M.D., filed an amended claim for $3,500 in the Estate of Maurice Pohn, deceased, saying: (1) that decedent was indebted to him in this amount for usual customary and reasonable charges for medical care for the period July 1, 1962 to January 23, 1964 and (2) in the alternative, that on or about July 1, 1962, decedent orally promised to pay claimant $25 for each visit for medical care and that at his death decedent was indebted to claimant in the sum of $3,500 for visits to the home of decedent between July 1, 1962 and January 23, 1964. An answer by the administrator denied that decedent was indebted in the amount claimed; asserted that claimant was paid in full for all services; that he had no knowledge sufficient to form a belief as to whether decedent orally promised to pay claimant $25 for each visit; denied that decedent was indebted to claimant on January 23, 1964 in the amount of $3,500 for visits made by claimant to the home of decedent between July 1, 1962 and January 23, 1964; and alleged that claimant was paid for all visits made “at least to and including November 30, 1963.” As an additional defense the administrator set out that decedent made payments to claimant by checks on February 24, 1963, of $100, and on November 30, 1963, of $100, and that these checks paid claimant in full to the respective dates on which they were issued and that claimant was fully paid by the decedent for all services to and including January 23, 1964, except for an unpaid balance of “three hundred some odd dollars.” A trial resulted in an order allowing the claim of Dr. Reich for $2,800 to be paid in due course of administration. The administrator, appealing, asks that we modify the order by reducing the amount allowed to Dr. Reich to not to exceed $395.

Dr. Reich supported his claim by the testimony of Irving Fenchel and Selma Samuel. The decedent and Fenchel were friends for many years and resided in the same apartment at the Park Lane Hotel in Chicago. Fenchel testified that decedent was in severe pain on July 1, 1962, and Fénehel called the claimant, who came to the apartment. He examined the decedent. The decedent asked Dr. Reich what he owed him and the latter said that he charged $25 for house calls and that the decedent said that he had no objection and asked the Doctor to do what he could for him. Fenchel further testified that claimant came to the apartment from 150 to 160 times between July 1, 1962 and January 23, 1964; that decedent was always in severe pain; that decedent was not attended by any other physician during this period and that he did not leave the apartment except to go for an occasional automobile ride. Fenchel, continuing, testified that claimant was required to and came at night to decedent’s apartment and gave him sedation; that some weeks claimant came to see the decedent three or four times; that the number of times claimant called to see decedent varied and was dependent upon the physical condition of the patient. On cross-examination Fenchel was asked if he had a claim against the Estate. An objection was sustained on the ground that it was immaterial, irrelevant and not proper cross-examination. An objection was also sustained to inquiry as to whether Dr. Reich was to testify for Fenchel on his claim. No offer of proof was made by the administrator after these objections were sustained. On cross-examination, Fenchel testified that decedent never paid claimant anything for any of the visits; that the only time decedent gave claimant “anything was for the Heart Fund. I think it was a hundred each time for the Fishman’s Heart Fund.”

The second witness called by claimant was Selma Samuel, who had been keeping company with the decedent since 1940 and saw him constantly in the apartment at the Park Lane Hotel. She testified that commencing July 1, 1962, she visited the apartment four times a week and sometimes seven nights a week; that she would arrive from 5:30 to 6:00 p. m.; that she used to cook meals for decedent, Fenchel and herself and that it was hard to figure the number of times she was in decedent’s apartment but that her best judgment was that she saw Dr. Reich in the apartment from 75 to 100 times between July 1, 1962 and January 23, 1964. Miss Samuel stated that she never saw decedent pay the claimant anything, nor did the decedent ever tell her he paid the claimant anything and she never heard it discussed.

Two checks of the decedent, offered by the administrator for whatever probative value they had, were received in evidence. These checks, each for $100, are dated February 24, 1963 and November 30, 1963. In offering them the administrator stated that their purpose was to show that at least up to the time of the date of the last check, November 30, 1963, that Dr. Reich was paid in full. The court stated that he would allow the checks into evidence but that he could not draw the conclusions of the administrator.

The administrator read the evidentiary deposition taken in California of Andy Rice, Jr., a nephew of decedent who testified that he met Dr. Reich on the morning of decedent’s funeral, while in the company of Irving Fenchel, in the lobby of the Park Lane Hotel while waiting for the limousine; that from the conversations he knew that claimant had treated his uncle; that to the best of witness’ recollection the conversation between Dr. Reich and Fenchel was as follows:

“Mr. Fenchel said that, ‘He died in my arms. . . . He was such a wonderful man, he was my friend all his life, and I loved him.’ And the Doctor said, ‘Yes, Irv, you were real good, real kind with him.’ Then Mr. Fenchel said, T know that you are owed three hundred plus, three hundred plus dollars, I don’t know exactly the amount, but I know it was three hundred some odd dollars.’ ‘As soon as this thing is settled, you will get your money.’ And the Doctor says, ‘Oh, don’t worry about it.’ ”

Rice further testified that there was no further conversation ; that they were going to the funeral; that the Doctor did not say anything to him directly, but that the amount of money, just the way he said it, left an impression on him because it seemed unusual that they would bring up money; that they talked money the morning of the funeral; that claimant indicated his assent to Fenchel’s statement,' saying “Forget it, don’t worry about it,” and that no one else was present during this conversation. Fenchel, under cross-examination, following his testimony in chief, denied that there was any conversation between himself, Dr. Reich and Andy Rice on the morning of the funeral. In this cross-examination Fenchel denied that he told Dr. Reich the day after the funeral that he, Fenchel, would see to it that Dr. Reich was paid $300 for his services.

The first point advanced by the administrator is that claimant’s burden was to establish his claim beyond a reasonable doubt. We have examined the authorities as to the proof required in establishing claims against decedents’ estates. We think that the following excerpt from Floyd v. Estate of Smith, 320 Ill App 171, at page 172, 50 NE2d 254, expresses the Illinois rule:

“At the very inception of defendant’s contentions that this judgment should be reversed our attention is directed to the- fact that claims against estates of deceased persons should be scrutinized with care and not be permitted to prevail except upon clear proof. We are aware of this provision of the law and recognize that before an allowance can be made of a claim for services to the decedent it is essential that either an express or an implied contract or obligation on the part of the decedent be established by a preponderance of the evidence. (McAuley v. O’Connor, 92 Ill App 592), and, under the law, the burden of proving a contract or obligation against the estate of decedent is upon the claimant. (In re Estate of Teehan, 287 Ill App 58.) ”

See also 34 CJS, p 285, Sec 452(2), Executors and Administrators. The claimant was not required to prove his claim beyond a reasonable doubt.

The second contention of the administrator is that our courts will take judicial notice that physicians’ bills are customarily rendered monthly. The record contains no testimony that physicians’ bills are customarily rendered monthly. In Kelly v. Carroll, 223 Ill App 309, the court said that the custom must be generally known and established and so well settled and so uniformly acted upon as to raise a fair presumption, that it was known to both contracting parties and that their contract was made upon the basis of the existence of the custom. The trial judge was not required to take judicial notice of the asserted custom, and we do not think that we should do so.

We turn to the argument that claimant had the burden of overcoming a presumption that he had received payment for much of his earlier care and that claimant admitted that he had only “three hundred some odd dollars” coming. The burden of proof of payment rests upon the administrator who has asserted it. This burden required the administrator to prove that the decedent had discharged his debt to Dr. Reich. Boon v. Estate of Edmund Bliss, 98 Ill App 341, 344; Andrews v. Votaw, 240 Ill App 311, 321. Fenchel in his testimony explained the two checks for $100 each as charitable contributions. The claimant observes that if these checks were available there should have been other evidence of payment among the records and effects of the decedent and that the failure of the administrator to produce any other evidence supports an inference that none existed. We think that the trial court was correct in deciding that the administrator did not sustain the burden of proof that payment of Dr. Reich’s account had been made.

The administrator asserts that the trial magistrate erred in refusing to allow cross-examination of claimant’s witness, Fenchel, and made a like error as to Selma Samuel, who was not permitted to testify whether she had a claim or would testify on behalf of Fenchel. The administrator says that he can “only assume that the answers would have been in the affirmative.” In the absence of an offer of proof we cannot say that the magistrate committed reversible error in his ruling. The allowance or disallowance of a claim by Dr. Reich would not necessarily affect claims by both or either witness and would tend to introduce an immaterial issue.

The administrator states that the court erred in receiving the opinions of claimant’s witness Fenchel that claimant visited decedent 150 to 160 times and of Miss Samuel that he (claimant) visited decedent from 75 to 100 times. The testimony was within the personal knowledge of these witnesses who were in the apartment when Dr. Reich called to treat the decedent. The testimony of these witnesses was as to the fact of the visits and was not opinion testimony.

The case was tried without a jury. We will not substitute our findings of fact for the findings of fact of the trial court unless these findings are against the manifest weight of the evidence. The trial magistrate accepted the testimony of Irving Fenchel and Selma Samuel and the explanation by Fenchel as to the two checks and did not give credence to the testimony of Andy Rice, Jr. The record supports the order. Therefore the order is affirmed.

Order affirmed.

BRYANT, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN.

license: Public Domain

text:
    Oak Park National Bank, Trustee Under Trust No. 1500, by S. K. Stearn, Agent, Plaintiff-Appellee, v. Richard Montanelli, d/b/a Montanelli & Sons, Defendant-Appellant. Exchange National Bank, Garnishee-Defendant.
    Gen. No. M-50,395.
    First District, Third Division.
    January 27, 1966.
    Stephen Lee, of Chicago, for appellant;
    no appearance or brief filed by appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: PRESIDING JUSTICE SCHWARTZ.

text:
    Ruth Gilliam, et al., Plaintiffs-Appellees, v. Agar Packing Co., Inc., and John C. Popp, Defendants-Appellants.
    Gen. No. 50,060.
    First District, Third Division.
    January 27, 1966.

      Irvin Tiseher of Chicago (Sidney Z. Karasik, of counsel), for appellants;
    Warren J. Hickey, of Chicago (Edward Wolfe, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clifton Bridges, Defendant-Appellant.
    Gen. No. 50,146.
    First District, Third Division.
    January 27, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Clifton Bridges was indicted for illegal possession of narcotics in violation of the Uniform Narcotic Drug Act. He was tried without a jury, found guilty and sentenced to a term of two to five years in the penitentiary.

A police officer of the City of Chicago observed the defendant standing on a street comer talking to three men who the officer knew were narcotic addicts. He saw the defendant leave the men, walk to a vacant lot, search in the weeds and pick up a small brown bottle. As the officer approached him the defendant dropped the bottle to the ground. The officer picked it up and found 11 tinfoil packages inside which contained white powder. The defendant said the packages were for his own use. A subsequent laboratory analysis was made of the content of one of the packages. The test established that the powder was heroin.

The defendant testified that he went to the vacant lot to look for a roll of bogus money he had hidden there. He denied that the bottle was his and he denied telling the police officer that it was. He said that after his arrest the officer picked up a girl friend and gave the bottle to her.

The defendant contends (1) that he was denied a fair trial because the State and court failed to call the officer’s girl friend who, it is argued, was the only known independent witness who might have corroborated the defendant’s testimony; (2) that his conviction should be reversed because he was not given a transcript of the testimony at his preliminary hearing which, it is argued, might have impeached the police officer’s trial testimony; and (3) that the indictment was fatally defective in that (a) it did not state the time and place of the offense and (b) did not specify the statutory provision alleged to have been violated.

After the defendant was found guilty his attorney made oral post-trial motions. The court asked that the motions be filed in writing. Written motions were thereafter submitted for a new trial and in arrest of judgment. The motions were denied.

The written motion for a new trial contained two points, neither of which is one of the trial errors urged on appeal. The errors now urged as grounds for a new trial were waived by the failure to include them in the written post-trial motion. People v. Irwin, 32 Ill2d 441, 207 NE2d 76 (1965); People v. Touhy, 31 Ill2d 236, 201 NE2d 425 (1964); People v. Greer, 30 Ill2d 415, 197 NE2d 22 (1964); People v. Gratton, 28 Ill2d 450, 192 NE2d 903 (1963) . We might add that these errors are not, as the defendant argues, plain errors affecting substantial rights which call for the exercise of our statutory power to consider them. Ill Rev Stat, 1963, ch 38, sec 121-9 (a); People v. Fleming, 54 Ill App2d 457, 203 NE2d 716 (1964) . There was no showing that the woman who joined the defendant and the arresting officer saw the defendant with the bottle or that her testimony was in any way material. No request for the transcript was made either before or during the trial; the transcript was first mentioned by the defendant after he was found guilty and it was then established by the defendant’s attorney that no transcript was available because there had been no reporter at the preliminary hearing.

The defendant’s written motion in arrest of judgment set forth two grounds: an alleged variation between the averments of the indictment and the proof, and the alleged error of the trial court in overruling the new trial motion. Neither of these grounds is one which, if substantiated, would require the trial court to grant the motion in arrest of judgment. Ill Rev Stats c 38, §116-2 (b)(1) and (2) (1963). Hence, the trial court properly denied the motion.

The defendant urges upon appeal two points not included in his motion in arrest of judgment or his motion for a new trial: that the indictment did not specify the time and place of the offense and did not cite the statutory provision allegedly violated. He attempts to establish that these points are preserved for review by contending that his motion in arrest of judgment should be treated as a general oral motion because it was not argued in the trial court.

In People v. Flynn, 8 Ill2d 116, 133 NE2d 257 (1956), the court held that if a motion for a new trial is made orally without objection by the State and without the trial court on its own motion directing that the new-trial motion be presented in writing, the requirement of the statute (Ill Rev Stats 1963, c 38, § 116-1 (b)) that such a motion be written is waived, and on appeal a defendant can avail himself of any cause for a new trial which might appear in the record. In People v. Prohaska, 8 Ill2d 579, 134 NE2d 799 (1956), this waiver was extended to motions in arrest of judgment which, according to the statute, must also be written, Ill Rev Stats 1963, c 38, § 116-2(a). The court stated:

“[W]hen a motion in arrest of judgment does not specify the ground therefor, it will be presumed, on appeal, that every proper ground for arrest of judgment was presented to the trial court.”

The defendant’s endeavor to come within the rule of the Prohaska case by equating his unargued written motion in arrest of judgment with an oral one is unsound. There is no logical or legal foundation for such equation.

The further contention of the defendant is that the failure of the indictment to state the time and place of the offense (as required by section 111-3 (a) (4) of chapter 38, HI Rev Stats 1963), and the particular statutory section alleged to have been violated (as required by section 111-3 (a) (2)) renders the indictment fatally defective and the judgment of conviction void. The non-inclusion of these points in his post-trial motions would not prevent the defendant from challenging the indictment in this court if the omission in the indictment of the time and place of the offense and the statutory provision alleged to have been violated resulted in the indictment not charging an offense, for a conviction based upon a void indictment cannot stand. People v. Sowrd, 370 Ill 140, 18 NE2d 176 (1938); People v. Minto, 318 Ill 293, 149 NE 241 (1925); People v. Fain, 30 Ill App2d 270, 173 NE2d 825 (1961). The indictment under consideration, however, does charge an offense. Although the indictment only describes the place of the crime as Cook County, this is an adequate description. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965); People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 (1965). And, although the indictment does not cite the exact statutory provision alleged to have been violated, this does not make the indictment fatally defective, for it cites the Uniform Narcotic Drug Act and sets forth the nature and elements of the offense of possession of a narcotic drug and thus informs the defendant of the definite crime he is alleged to have committed.

The requirement in the Code of Criminal Procedure of 1963 that the charge shall cite “the statutory provision alleged to have been violated” (section 111-3 (a) (2)) must be distinguished from the requirement in the Code that the charge shall set forth “the nature and elements of the offense charged” (section 111-3 (a) (3)). The former is not listed among the ten grounds for dismissing an indictment, information or complaint (section 114-1 (a) of the Code) and it is not a ground for arresting judgment (section 116-2 (b)); whereas the latter is a ground for dismissal (section 114-1 (a) (8)) and is also a ground for arrest of judgment (section 116-2 (b) (1)). Failure to cite a particular statutory provision cannot be equalized with failure to state the nature and elements of the offense charged. The latter is on a higher level and parallels the constitutional requirement that an accused shall have the right “to demand the nature and cause of the accusation.” Constitution of the State of Illinois, Article II, sec 9.

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

Affirmed.

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


author: STOUDER, J.

text:
    Mary Ann Shaw, Plaintiff-Appellant, v. Ernest F. Blessman and Harold E. Berry, d/b/a Blessman & Berry, Schmidt-Doty Motors, Inc., Ray Eutsey, Sheriff of LaSalle County, Illinois, and Marion Mitchell, Defendants-Appellees.
    Gen. No. 65-58.
    Third District.
    January 27, 1966.

      Perona and Perona, of Spring Valley, for appellant.
    Robert E. Richardson, State’s Attorney, of Ottawa, and Berry & O’Conor, of Streator, for Sheriff Ray Eutsey, appellee. Thomas R. Flood, of Streator, for Ernest F. Blessman and Harold E. Berry, d/b/a Blessman & Berry, appellees.
   STOUDER, J.

Appellant, Mary Ann Shaw, commenced this action against Ernest F. Blessman and Harold E. Berry, d/b/a Blessman & Berry, Ray Eutsey, Sheriff of LaSalle County, Illinois and Marion Mitchell for damages resulting from the use of appellant’s trailer. The cause was heard by the court without a jury. At the close of appellant’s evidence, on motion of Sheriff Ray Eutsey, the complaint was dismissed as to him and thereafter judgment was entered in favor of Sheriff Eutsey and against appellant. At the close of all the evidence, judgment was entered in favor of appellant and against Ernest F. Blessman and Harold E. Berry, d/b/a Blessman & Berry, and Marion Mitchell in the amount of $450. Appellant appeals from each of these judgments.

It appears from the evidence, that prior to July 1, 1959, appellant was the owner of a tractor-trailer unit used for the transportation of freight. On that date appellant and her husband decided to sell the tractor-trailer unit and appellant’s husband delivered the unit to Marion Mitchell, a friend and mechanic, for the purpose of enabling Mitchell to sell the unit, the selling price being $2,200. In October of 1959, an employee of Blessman & Berry had conversations with Mitchell concerning the latter’s help in a levy of execution by Sheriff Eutsey upon a judgment of Blessman & Berry against Schmidt-Doty Motors. On October 21, 1959, Mitchell used the truck and trailer of appellant to pick up the parts under the levy and transport the same to the LaSalle County jail leaving the trailer and parts at the jail in the apparent belief that the parts would be stored in the trailer temporarily. Although Mitchell was paid for his services nothing was said about payment for the use of the trailer for storage purposes. In December of 1959, appellant’s husband, having learned that the trailer was at the jail, called Mitchell who admitted that it was there but stated that Sheriff Ray Eutsey had agreed to pay $30 per day for rental of the trailer. It does not appear from the record that any conversation between Mitchell and Ray Eutsey concerning rental of the trailer in fact took place. Both Blessman & Berry and Sheriff Eutsey dealt with Mitchell in the belief that he was the owner of the trailer and did not become aware that appellant owned the trailer until June, 1960. In June, 1960, after discussing the matter with his attorney, appellant’s husband went to the jail and hauled the trailer to DePue, Illinois. On the following day appellant’s husband was arrested for talcing the trailer and spent two or three days in the LaSalle County jail. While appellant’s husband was in jail Sheriff Eutsey first became aware that appellant owned the trailer. In reply to a question by appellant’s husband as to whether or not he was entitled to rent for the trailer, the Sheriff responded that every man is entitled to a reasonable rental for his equipment and indicated that he would help Shaw get the rent. Also at this time, the trailer and parts having been returned to the jail, the Sheriff offered to unload the trailer and return it to appellant’s husband which offer was declined. As a result of the foregoing incident, Blessman & Berry became aware of appellant’s ownership of the trailer but neither appellant nor her husband did anything more about the trailer or had any conversations with Blessman & Berry, or anyone acting for them, about the rental of the trailer.

The Sheriff’s execution sale of the parts stored in the trailer, did not take place until September 21, 1961, the delay being occasioned by an intervening trial of right of property action. After the sale, appellant was notified that the trailer could be picked up and it was returned to appellant in October, 1961. Appellant stored material in the trailer for a few months and then sold it for $200.

Stuart Halm, Vice President of H. J. Tobler Transfer, Inc., testified that he was familiar with the leasing and rental of trailers such as the one owned by appellant and expressed his opinion that the reasonable rental of the trailer would be $150 per month or approximately $5 per day. As a reason for his opinion Halm stated that his company had and would rent such a trailer to contractors for storage purposes for short periods of time at such rental. He also stated the fact that the trailer had a hole in its roof, or that its sides were rusted, would make no difference.

S. V. Osman, testifying on behalf of appellees, stated that he worked for Sherer Freight Lines and that he had inspected the trailer in question on July 28, 1961. He described the condition of the trailer at that time, indicating it was not in condition to be used on the road. He expressed his opinion that the value of the trailer at that time was $300 and that it would cost approximately $435 to restore it to operating condition and offered the opinion that if the defects were corrected, the trailer would be worth between $700 and $800. This witness, not being familiar with the rental of trailers, expressed no opinion on rental value.

Appellant filed her complaint in four counts. The first two sounded in trover and conversion, the third alleged an express contract and the fourth claimed a quasi contract. The factual allegations in each count were substantially the same. The trial court in its judgment in favor of plaintiff did not specify which theory of recovery it adopted. The facts giving rise to the dispute are not substantially in conflict, the issue of damages being the main area of controversy.

Appellant contends that the measure of damages, on her various theories of recovery, should be the same, namely the reasonable rental value of the trailer. She further contends that the judgment of the court below is inadequate and therefore erroneous because from the judgment it can only be concluded that the court applied an incorrect measure of damages.

Appellant relies on Alley v. McCabe, 147 Ill 410, 418, 35 NE 615, and Fruehauf Trailer Co. v. Lydick, 325 Ill App 28, 59 NE2d 551, as well as other cases to the same effect, which hold that where there has been a wrongful detention of property subsequently restored to the owner, the measure of damages is the owner’s loss of use thereof as measured by the reasonable rental value. She further contends that under the theory and reasoning of this rule, in order that she be adequately compensated for the deprivation of her property, her loss is substantial and not merely nominal.

In our opinion it is not necessary to distinguish between the consequences of a wrongful detention and a technical conversion. The original possession of the trial-er, by the Sheriff, may have been unauthorized, however, appellant learned of the unauthorized use of the trailer in December, 1959 and took no action. The trailer was returned to her temporarily in July, 1960 and thereafter returned to the Sheriff without objection by appellant. No further claim or demand was made and the trailer was returned in October, 1961. We believe that appellant’s knowledge and acquiescence constituted a ratification of the transaction and that the continued possession of the trailer by the Sheriff was not unauthorized. Accordingly we believe that the facts do not support any theory of recovery based on conversion.

It is equally clear from the evidence that no express agreement existed between the parties. Although appellant ratified the conduct of Mitchell, nevertheless it is clear from the evidence no one agreed to pay for the use of the trailer, although Sheriff Eutsey apparently indicated that some one should.

This leaves us with appellant’s last theory of recovery, namely that of a contract implied in law or a quasi contractual obligation. A contract implied in law is not the result of an express agreement between the parties but is rather the result of the conduct of the parties. In Board of Highway Com’rs v. City of Bloomington, 253 Ill 164, 97 NE 280, the court stated, “A familiar illustration of an implied contract is, where one person, in the absence of any express agreement, renders valuable services to another, which are knowingly accepted by such other, the law will imply a promise to pay a fair and reasonable compensation for such services.” We believe the similarity between the example and the facts in the instant case is apparent. Appellant without any express agreement, consented to and permitted the appellees to use her trailer. Appellees voluntarily accepted the benefits of the use of the trailer, under such circumstances that its use could not be presumed to be gratuitous. Hence an implied promise to pay the reasonable rental for said trailer arises. In our view of this case, the proper measure of damages was the reasonable rental value of the trailer.

Appellant, in support of her contention that the amount of the judgment was inadequate, relies on the principle that where the testimony of a witness is uncontradicted, either by positive testimony or circumstances, and is not inherently improbable, it cannot be rejected. Jenkins v. Gerber, 336 Ill App 469, 84 NE2d 699. It follows, according to appellant, that since Halms was the only witness expressing an opinion on the reasonable rental value of the trailer, a judgment for an amount less than suggested by his testimony is improper. With this conclusion we cannot agree. The court in making its determination of reasonable rental of property may properly consider the value of the property, its condition and use as well as expert opinion. We believe, from the record, that there is evidence relevant to the determination of rental value, other than the testimony of Halm. Viewing the facts contained in the record as a whole and in relation to Halm’s testimony, we find aspects of his testimony, either inapplicable to the facts or inherently improbable. His opinion was based on rental of trailers to contractors for short periods of time for storage purposes, and did not give any effect to the condition of the trailer. We do not regard an opinion as to the reasonable rental value of a trailer, based on a short period of time necessarily applicable to the rental of a trailer admittedly in poor condition for a period of two years. Under these circumstances we do not believe Halm’s testimony was controlling on the issue of damages. The judgment of the court below, being within the range of the evidence, we find no error in such judgment. We do not find it necessary to consider the errors, urged by appellant, with respect to the judgment in favor of Sheriff Ray Eutsey since appellant concedes that a consideration of such errors would only be pertinent if the judgment against the other appellees was reversed.

Accordingly the judgments of the Circuit Court of La Salle County are affirmed.

Judgments affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael A. DeSimone, Defendant-Appellant.
    Gen. No. 50,113.
    First District, Fourth Division.
    January 28, 1966.

      Michael A. DeSimone, pro se, of Joliet, appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James M. Sammons, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

In January 1964 the defendant, Michael A. DeSimone, was convicted of murder after á jury trial and sentenced to the penitentiary for not. less than twenty nor more than forty years. Defendant ¿ppealed to the Supreme Court which transferred the case to this court. In his pro se presentation defendant contends that the court erroneously, over objection, allowed his confession to be introduced into evidence and that the court committed various additional prejudicial errors, thereby depriving him of a fair trial.

In 1956 defendant was sentenced to the penitentiary for the crime of auto larceny and while incarcerated assaulted another prisoner and a guard. Upon the expiration of his term defendant was committed to the Chicago State Hospital for the mentally ill in December of 1959 as a person “in need of mental treatment.” While a patient therein defendant and another patient, Kenneth Anderson, left the hospital on May 4, 1980, and allegedly committed the crime of murder to which he (defendant) confessed on May 6. At no time did the defendant request an attorney. On October 31, I960, defendant was convicted of that crime upon a plea of guilty and was sentenced to a term of ninety-nine years in the penitentiary. That conviction was reversed and remanded by the Supreme Court on the ground that the trial court should not have accepted the plea of guilty without first holding a sanity hearing (People v. DeSimone, 28 Ill2d 72, 190 NE2d 831).

The record on this appeal shows that a sanity hearing to determine defendant’s competence to stand trial was conducted prior to trial wherein the jury found that defendant “was at the time of impaneling of the jury and now is sane.” There is no complaint of error in that hearing.

Defendant urges three grounds in support of his contention that the confession should have been suppressed. First, relying upon Escobedo v. Illinois, 378 US 478, he asserts for the first time in his appeal that at the time of his confession he was not apprised of his right to remain silent and of his right to consult with an attorney. Since defendant never requested counsel the ruling in Escobedo is inapplicable. The doctrine of Escobedo does not require the rejection of a voluntary confession merely because the defendant was not affirmatively advised of his right to counsel and of his right to remain silent. People v. Miller, 33 Ill2d 439, 211 NE2d 708; People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33. Furthermore, since no such claim was raised in the trial court, the applicability of Escobedo cannot be considered for the first time on review. People v. Buckholz, 32 Ill2d 482, 207 NE2d 451.

The second ground urged by defendant is that since he was a patient in the Chicago State Hospital at the time of his confession he was non compos mentis at that time. A pretrial hearing was held upon defendant’s motion to suppress his confession wherein he alleged solely that at the time thereof he was non compos mentis. The prosecution presented five witnesses who testified that defendant was sane at the time of his confession but the defendant presented no evidence that he was insane. The court held that the defendant was sane at the time of his confession and denied defendant’s motion to suppress the confession. A hearing was also held during the trial (before a different judge than at the first hearing) upon defendant’s motion to exclude his confession from consideration as evidence on the ground that he was non compos mentis at the time of the confession and consequently that the confession was involuntary. The prosecution’s evidence was substantially the same as in the prior hearing and the court again determined that defendant was sane at the time of his confession and denied the motion to exclude the confession. The record shows that the defendant was committed to the Chicago State Hospital as a person “in need of mental treatment.” The testimony of Dr. Raul Zaldivar, the clinical director of the hospital during • defendant’s period of confinement and the supervisor of the team that managed him during that time, was substantially as follows:

It [the diagnosis of the defendant’s mental condition in December of 1959] was sociopathic personality, anti-social reaction. The diagnosis is a classification pertaining to a personality type. Sociopathic personality is a social diagnosis in more sense than it is mental illness or psychiatric diagnosis. It implies the type of personality which is characterized by inability to learn from experience and inability to accept moral or social codes of society .... It does not contain deviations of thoughts or hallucinations or delusions or abnormalities of perception .... On the basis of the record, my opinion is that he was sane in December of 1959.

The witness further testified that defendant was sane continuously during the period of December 12, 1959, to May 6, 1960; that on May 6 (the date of the confession) he examined the defendant at the request of the Assistant State’s Attorney and concluded that at that time the defendant was sane, knew what he was doing, understood what he was saying, was legally responsible, and could cooperate with counsel.

Dr. Argelia Heller testified that she was completing her psychiatric training as a resident at the Chicago State Hospital during April, May and June of 1960; that she observed the behavior of the defendant at approximately fifteen group ward meetings; that an average of 45 to 50 patients attended each meeting which lasted one hour; that she is trained to give a medical opinion on the sanity of a person from these observations; and that from her observations she concluded that the defendant was sane during the entire time.

Jerome Lillian testified that he is a psychiatric social worker and was employed at the hospital for the period of December, 1959, through May, 1960; that he observed the defendant’s behavior at the aforementioned ward meetings and in addition personally interviewed the defendant during that period of time. He further testified that:

There was never any question in my mind as to his sanity. There was no inappropriate behavior at the time I saw Mr. DeSimone in the hospital. It was my opinion that Michael was sane.

The witness stated that his opinion includes the period up to the date on which defendant left the hospital.

Nina Mason, an activities therapist’s aid (not a psychiatrist), testified that she had been employed at the Chicago State Hospital for eight years, which included the period of defendant’s confinement, and that in her opinion defendant was sane.

Confessions are competent evidence only when voluntarily made, and the question of their competency is basically one for the trial court. In determining whether a confession by an accused is admissible the court need not be convinced beyond a reasonable doubt of its voluntary character. People v. Gavurnik, 2 Ill2d 190, 117 NE2d 782. On review the decision of the court on the question of whether a confession was voluntary will not be disturbed unless manifestly against the weight of the evidence or unless the court has clearly committed an abuse of discretion. People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33; People v. Di Gerlando, 30 Ill2d 544, 198 NE2d 503. Since commitment to a mental institution does not necessarily indicate that the accused lacks the mental capacity to stand trial (Withers v. People, 23 Ill2d 131, 177 NE2d 203; People v. Woods, 26 Ill2d 557, 188 NE2d 1), that same commitment does not necessarily indicate that he lacked the mental capacity to voluntarily confess to the crime of murder. So. long as the accused is capable of making a narrative of past events or of stating his own participation in the crime, his statements are admissible against him. People v. Townsend, 11 I112d 30, 141 NE2d 729. The mental subnormality on the part of one confessing to a crime does not of itself deprive the confession of its voluntary character. The confession remains admissible so long as the subnormality has not deprived the person in question of the capacity to understand the meaning and effect of the confession. People v. Townsend, supra. The testimony at both hearings on defendant’s motions to suppress his confession amply supports the conclusion of the court in each instance that defendant was sane at the time of his confession, that the confession was voluntary, and that it should be admissible into evidence.

Defendant’s third and final ground for excluding the confession is that it names three persons as witnesses thereto but bears the signature of only one; and that in addition, the confession is signed by Officer Steve Pizzello who is not listed thereon as a witness. From this assertion defendant contends that this confession (which he signed) should not have been admitted into evidence, citing Illinois Eevised Statutes, 1959, chapter 38, section 729. That statute requires the defendant to be furnished with a list of witnesses to his confession. However, defendant does not allege that he was not furnished with the requisite list (defendant in fact admitted that he did receive a copy) but only that all parties named as witnesses on the confession did not affix their signatures thereto and that one extra signature appeared thereon. Therefore the statutory authority cited by defendant has no applicability to the instant case. Moreover, even if the requisite list was not furnished to defendant, the statutory requirement was waived by his failure to raise the necessary objection at trial. People v. Seno, 23 Ill2d 206, 177 NE2d 843; People v. Villalobos, 20 Ill2d 315, 169 NE2d 745.

Defendant next contends that the court committed various prejudicial errors during the course of the trial which deprived him of a fair trial. First, defendant asserts that every fact of his life relevant to the defense of insanity is competent evidence. From this assertion defendant argues that the court erroneously refused to allow into evidence Exhibit 7, the entire record of the Chicago State Hospital pertaining to the defendant. However, a hospital record is admissible into evidence only after the laying of a proper foundation. Defendant introduced no evidence as to the authenticity of the entries in the record but urges that the entire record was properly authenticated because Dr. Zaldivar identified Exhibit 7 after he had, without objection, referred to portions thereof in his testimony. There was no testimony by those persons who made the innumerable entries in the record (or even as to who in fact made them), nor was there testimony that Dr. Zaldivar was either the custodian of the record or that the entries were made under his supervision. The hospital records were not authenticated and therefore were properly excluded from consideration as evidence. Stewart v. DuPlessis, 42 Ill App2d 192, 191 NE2d 622.

Second, defendant argues that his witness, James DeSimone, was improperly cross-examined by the prosecution. The direct testimony of the witness dealt only with his opinion that defendant was insane between June 1961 and the following December or January, which opinion was irrelevant because the crime was committed on May 4, 1960. The rambling cross-examination sought to bring out that at a prior sanity hearing, the purpose of which was to determine defendant’s ability to stand trial, the witness had testified that defendant was sane. This was denied by the witness. Upon examining the confused questioning and cross-questioning on this immaterial issue (whether defendant was sane or insane a year after the crime and prior to the time of his trial), we find no prejudicial error.

Defendant next argues that the record shows that the prosecution, in the course of reading defendant’s confession to the jury, read portions thereof pertaining to unrelated offenses contrary to the direction of the court. However, the certified supplemental record clearly shows that there was a stenographic error in the transcription of the original record; that pursuant to instruction by the court the prosecution did not read to the jury any of the defendant’s statement relating to his participation in another taxi robbery. Defendant claims that the supplemental record is a falsification of the actual proceedings and that the original record is correct but he did not make timely or proper objections to the supplemental record. We find no merit in defendant’s contention that the State violated the court’s direction not to read to the jury that portion of the confession concerning unrelated offenses.

Defendant also argues that his motion for a directed verdict should have been granted in that the court erroneously construed section 6-2 of the Criminal Code of 1961 as respects insanity at the time of the commission of a crime (Ill Rev Stats 1961, c 38, § 6-2). That statute provides as follows:

(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms “mental disease or mental defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

The court, in denying defendant’s motion, stated:

The Court must find with respect to your motion that your witness, Dr. Haines, testified, to the understanding of this Court, that what you had was a sociopathic personality or character disorder which manifested itself in essence by antisocial conduct which is expressly excluded from the type of mental defect we find in the statute.
I must, therefore, deny your motion.

In construing the above statute the court in People v. Miller, 33 Ill2d 439, stated at page 443, 211 NE2d 708, that:

We have carefully reviewed their testimony [the testimony of a clinical psychologist and a psychiatrist] and it indicates that defendant has a “personality disorder,” “forms unrealistic judgments,” and is “unable to evaluate situations that face him.”
We think that the evidence offered falls far short of establishing a “mental disease or mental defect” within the meaning of the act. ... In addition, the testimony of defendant at the trial, and his prior statements, effectively rebut any claim of insanity at the time of the crime, but on the contrary indicate he acted rationally.

Defendant introduced no evidence to establish the defense of insanity under section 6-2 of the Criminal Code of 1961. However, although both the State and defendant proceeded under the assumption that the test of insanity was governed by section 6-2, we would point out that section 6-2 was adopted in 1961 but the alleged crime was committed in 1960. Under section 4 of the Construction of Statutes Act (Ill Rev Stats 1961, c 131, § 4) the law which was in effect at the time of the commission of the crime is controlling. However, defendant adduced no evidence whatsoever to establish the defense of insanity under the law in force at that time as expressed in People v. Carpenter, 11 Ill2d 60, 142 NE2d 11. In that case the court approved the following instruction to the jury:

The Court instructs the jury that a safe and reasonable test in all cases of insanity is that whenever it appears from the evidence that at the time of doing the act charged the defendant was not of sound mind but affected with insanity and such affliction was the efficient cause of the act, and that he would not have done the act but for that affliction, he ought to be acquitted. But the unsoundness of mind, or affliction of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged by overriding the reason and judgment and obliterating the sense of right or wrong as to the particular act done or depriving the accused of the power of choosing between right and wrong.

Defendant’s motion for a directed verdict was properly denied.

Defendant next argues that the prosecution, in its closing argument to the jury, erroneously stated that since defendant was sane at the time of the trial, he must have been sane at the time of the murder. Defendant’s objection to these remarks was sustained but the jury was not at that time admonished to disregard the remarks in question. However, in its instructions to the jury the court stated:

If, in putting in the evidence, or in argument, counsel for either party has made any statement not based upon the evidence, or if counsel made any statement which he afterwards withdrew, or which the court afterwards struck out, the jury should wholly disregard such statements.

Moreover, the defendant introduced no pertinent evidence that he was insane at the time of the commission of the crime. Consequently, if error was in fact committed it was not prejudicial. Other objections asserted here by the defendant as to the prejudicial nature of the closing argument by the prosecution are without foundation.

Defendant’s final contention is that four of the instructions to the jury by the court were erroneous. The State’s Instruction No. 1, wherein the court gave the jury the definition of the crime of murder, is in the language of Illinois Revised Statutes, 1959, chapter 38, section 358, and was properly given. Instruction No. 5, objected to by the defendant, provides as follows:

The Court instructs the jury, that if you believe from the evidence beyond a reasonable doubt that at the time of committing the alleged crime (if you believe from the evidence beyond a reasonable doubt that he did commit such crime) the defendant was able to distinguish right from wrong as to the particular act done and was able to choose between them and was able to control his action accordingly, then you can not acquit him on the ground of insanity.

Defendant argues that under this instruction he could not be acquitted on the ground of insanity unless he was unable to distinguish right from wrong and was also unable to choose between them and act accordingly whereas under the law if either of the above elements is lacking he was entitled to be found not guilty because of insanity, citing People v. Munroe, 15 Ill2d 91, 154 NE2d 225. Defendant, however, misinterprets the instruction as given. The instruction is unartfully drawn and merely states in the negative that the defendant cannot be acquitted on the ground of insanity if both of the requisite elements of sanity are shown. The instruction does not state any rule as to when the defendant can be acquitted. Since the basic test applied in this instruction is founded upon People v. Carpenter, supra, (heretofore discussed) it was not error to give it. The State’s Instruction No. 15 in the language of section 6-2 of the Criminal Code of 1961, and defendant’s Instruction No. 1 and the State’s Instruction No. Zero encompassing the test of section 6-2, were erroneously given inasmuch as that section is not applicable to the instant case as we have heretofore pointed out. However, since defendant adduced no evidence that would tend to establish the defense of insanity either under section 6-2 or under the law in effect prior to the effective date of section 6-2, the error was harmless.

Therefore we conclude that the defendant’s confession was properly admitted into evidence, that the evidence warranted the finding of the jury that defendant was sane at the time of the murder and that defendant received a fair trial.

The judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       A joint statement was taken from Kenneth Anderson and the defendant in addition to an individual statement taken from the defendant... . . .....

       Assistant State’s Attorney Michael Greenfield, wh.o testified as to defendant’s sanity in the first hearing, did not testify at the second hearing. Dr. William H. Haines, a psychiatrist, testified only at the second hearing and stated that defendant had a character disorder hut was sane.

       Section 729 provides in pertinent part:
      Whenever a written or oral confession shall have been made before any law enforcement officer or agency in this State by any person charged with any crime, a copy of such confession, if written, together with a list of the names and addresses of all persons present at the time such confession was made shall be given to the defendant or his counsel prior to arraignment. . . .
      No confession shall be admitted as evidence in any case unless the confession and/or list of names and addresses of persons present at the time the confession was made is furnished as required by this section.

       However, the court did, over objection, admit into evidence as defendant’s Exhibits 8 and 9, two excerpts from the hospital record which were not authenticated: Exhibit 8, a “Release Progress Report” purportedly prepared by Dr. Groves B. Smith (Dr. Haines testified that the signature thereon was not that of Dr. Smith) and Exhibit 9, a letter purportedly written by Dr. Tacea of the hospital (who was in Mexico at the time of trial) to the Selective Service System stating that the hospital planned to send defendant to the Illinois Security Hospital.

       On June 30, 1965, the State moved for leave to file the supplemental record, after notice to defendant mailed on June 29. The hearing on the motion was set for July 7. Although defendant did not file objections nor send a communication to the court that he wished to do so, as provided by Rule 3(3) of the Rules of the Appellate Court of Illinois, First Judicial District, the motion was taken under advisement. On July 13, no objections or request for continuance being on file, the motion of the State was allowed. Thereafter the Clerk of the court received from defendant a “motion to dismiss and deny” the State’s motion to file the supplemental record but leave to file these belated objections was never requested. Defendant did not move to vacate the order nor did he file a motion under Supreme Court Rule 27(9) (a) showing that the supplemental record was not true or correct; therefore, it must be taken as true and correct since it was properly certified by the reporter as required by that rule.


author: PRESIDING JUSTICE DRUCKER.

text:
    Edward Leppa, et al., Plaintiffs-Respondents, v. Manuel Gomez and Tameling Bros. Cartage, Inc., a Corporation, Defendants-Petitioners.
    Gen. No. 50,878.
    First District, Fourth Division.
    January 28, 1966.
    Vogel & Vogel, of Chicago (David F. Holland, of counsel), for petitioners;
    Angelos & Angelos, of Chicago, for respondents.
   Opinion by

PRESIDING JUSTICE DRUCKER.

Not to be published in full.


text:
    Dr. Walter F. Collins, Plaintiff-Appellant, v. People of the State of Illinois, ex rel. Edgar T. Stephens, Department of Registration and Education of the State of Illinois, Vera M. Binks, Director of the Department of Registration and Education, Frederick B. Selcke, Superintendent of Registration, Leo H. Lowitz, Supervisor of Complaints, Board of Dental Examiners, et al., Defendants-Appellees.
    Gen. No. 64-58.
    Third District.
    January 28, 1966.

      Jacobs, Ribstein & Lieberman, of Chicago (Eugene Lieberman, of counsel), for appellant.
    William G. Clark, Attorney General, of Chicago (Richard A. Michael and Edward A. Berman, Assistant Attorneys General, of counsel), for Department of Registration and Education, et al., defendants-appellees. Peterson, Lowry, Rail, Barber & Ross, of Chicago (Owen Rail and John R. Porter, of counsel), for Edgar T. Stephens, defendant-appellee.
   STOUDER, J.

This is an appeal by Plaintiff, Walter F. Collins, from a judgment of the Circuit Court of Peoria County under the provisions of the Administrative Review Act affirming an order of the Department of Registration and Education of the State of Illinois revoking the license of the Plaintiff, Appellant herein, to practice dentistry in the State of Illinois.

On January 27, 1958, Edgar T. Stephens, as Relator, one of the defendants in the Circuit Court, and, one of appellees herein, filed a complaint with the Department of Registration and Education of the State of Illinois, likewise a defendant in the Circuit Court, and, an appellee herein, alleging that appellant had violated the provisions of Chapter 91, Smith Hurd Statutes, 1957, paragraphs 56 thru and including paragraph 72, being commonly referred to as, the Dental Practice Act. The complaint was referred to the Board of Dental Examiners and after several hearings the Board found appellant guilty of multiple violations of the statute and entered its order on April 3, 1959, recommending to the Department of Registration and Education that appellant’s license to practice dentistry in the State of Illinois be revoked. A petition for rehearing was denied by the Department of Registration and Education on July 9, 1959 and on February 15,1961 the Department of Registration and Education entered its order revoking the license of the appellant. Thereafter, a complaint for review under the provisions of the Administrative Review Act was filed by the appellant in the Circuit Court of Peoria County, against Edgar T. Stephens, Relator, and, the Department of Registration and Education as defendants, seeking a reversal of the order of the Department of Registration and Education. The order of the Department of Registration and Education was affirmed by the Circuit Court of Peoria County on July 1, 1964, and, it is from this judgment of the Circuit Court that this appeal followed.

No issues are raised by the parties on the pleadings or the procedure excepting that appellant makes the general contention that incompetent evidence was received and proper evidence excluded by the Board of Dental Examiners. However, since appellant does not refer to any such evidence in his brief or argument this contention shall be deemed to have been abandoned by appellant and shall not be considered by this court.

Appellant seeking a reversal of the judgment of the court below revoking his license to practice dentistry in the State of Illinois, urges; (1) that even though certain conduct on the part of a dentist may be improper this does not justify revocation of his license to practice unless the offense imparts venality, criminality, fraudulent conduct, moral turpitude or constitutes some danger to the public and (2) that the order of the Department of Registration .and Education was against the manifest weight of the evidence and not supported by competent substantial evidence.

Walter F. Collins, appellant herein, was licensed to practice dentistry in the State of Illinois in 1911 and has practiced continuously in Illinois since that time. For a period of approximately 14 years prior to 1947, appellant practiced dentistry at 128 So. Jefferson, Peoria, Illinois and from 1947 to the filing of the complaint practiced at 115 So. Jefferson, Peoria, Illinois. The offices at 115 So. Jefferson, were located on the second floor and consisted of a reception room, a laboratory work room, three dental units and a storage room, and, at the time of the filing of the complaint were occupied by Walter F. Collins and the Peoria Dental Laboratory. The Peoria Dental Laboratory was owned and operated by Dr. H. H. Skolnik, prior to his death in 1953. Mrs. Ethel Skolnik, the widow and executrix of the estate of Dr. H. H. Skolnik, continued an association with the Peoria Dental Laboratory after the death of her husband. Appellant, claimed that he had purchased the dental laboratory in 1954 and Relator, claimed that the laboratory was owned and operated by Ethel Skolnik from the date of her husband’s decease until the time of the filing of the complaint.

The substance of the complaint filed with the Department concerns occurrences subsequent to the death of Dr. Skolnik and prior to the date of the filing of the complaint. The complaint alleges that appellant associated himself professionally with an unlicensed person who was practicing dentistry without a license during the period in question, such unlicensed person being Ethel Skolnik, doing business as Peoria Dental Laboratory, 115 So. Jefferson, Peoria, Illinois. It also alleges that appellant advertised unlawfully, and, was holding himself out to the public as a specialist, when in fact he was not authorized to do so, and, that he was practicing dentistry under a name other than his own. Paragraph (2) of the complaint filed with the Department alleges that Mrs. Skolnik is the owner, manager and operator of a place of business where dental operations are performed, performing dental operations for a fee, offering to furnish, supply, construct, reproduce or repair prosthetic dentures or other substitutes for natural teeth directly to the user or prospective user thereof, and actually furnishing, supplying, etc. said dental appliances to the user or prospective user thereof. All of the above being in violation of Paragraph 62 of Chap 91, Smith Hurd Stat 1957 which provides that: “The department may refuse to issue the license provided for in this Act, or may revoke or suspend any license now in force or that shall be hereafter given, if issued to an individual who has, by false or fraudulent representations, obtained or sought to obtain practice, or, false or fraudulent representations, obtained or sought to obtain money or any other thing of value, or has practiced under a name other than his or her own, or for any other improper, unprofessional, or dishonorable conduct in the practice of dentistry, or is convicted of a felony, or when the licensee is found guilty of any of the following acts or offenses: The Department of Registration and Education may refuse to issue or may suspend or may revoke any license now in force or that shall be hereafter given for any one or any combination of the following causes: ... 5. Division of fees or agreeing to split or divide the fees received for dental services with any person for the bringing or referring a patient, or assisting in the care or treatment of a patient, without the knowledge of said patient or his legal representative. ... 6. Employing, procuring, inducing, aiding or abetting a person not licensed or registered as a dentist to engage in the practice of dentistry; provided, that the person practiced upon shall not be deemed as accomplice, employer, procurer, inducer, aider, or abettor within the meaning of this Act. 7. Making any misrepresentations or false promises, directly or indirectly, to influence, persuade or induce dental patronage. 8. Professional connection or association with, or lending his name to another for the illegal practice of dentistry by another, or professional connection or association with any person, firm or corporation holding himself, themselves, or itself out in any manner contrary to this Act. 9. Obtaining or seeking to obtain practice, money, or any other thing of value by false or fraudulent representations. 10. Practicing under a name other than his own. 11. Improper, unprofessional or dishonorable conduct. ... 13. A violation of any provision of this Act. ... 16. Taking impressions for or using the services of any person, firm or corporation violating any of the provisions of Section 5a. 17. Except as otherwise provided in Section 18b, advertising or soliciting by himself or through another by means of handbills, posters, circulars, stereopticon slides, motion pictures, radio, newspapers or in any other manner for professional business.” At the hearings before the Board of Dental Examiners evidence was introduced showing that signs were located just inside the first floor door, at the head of the stairway and in the reception room, each with the following lettering, “PEORIA DENTAL LABORATORY, NEW TYPE PLASTIC PLATES.” The reception office was shared by Walter F. Collins and the Peoria Dental Laboratory and contained a glass display case in which approximately thirty-five (35) sets of dentures were displayed together with other dentures on the top of the case. A clock on the wall listed the names of, DR. H. H. SKOLNIK and DR. WALTER F. COLLINS, together with a reference to “NEW TYPE PLASTIC PLATES.” Evidence was introduced in the form of copies of pages from the 1957 classified and alphabetical telephone directories for the cities of Peoria and Pekin together with testimony of the officers of the companies in charge of such services showing that for the year 1957 classified ads had been ordered by Ethel Skolnik for publication in each of the directories.

The laboratory advertisement in the Peoria directory was a two inch, one column advertisement containing the words:

“PEORIA DENTAL LABTRY
Since 1943
115 S. W. JEFFERSON
2nd FLOOR
DIAL 3-5788
DENTAL PLATES
Dentures Made From Impressions of Illinois Dentists Only
115 SW Jefferson......3-5788”

In the Pekin classified directory the laboratory advertisement contained the words:

“Dental Laboratories
PEORIA DENTAL LABORATORIES
115 S. Jefferson Av......Peoria 3-5788”

The advertisement for Appellant in the Peoria Directory was comprised of the following:

“WF Collins
Practice Limited to Dentures (Plates)
2nd Floor
115 SW Jefferson......3-5788”

Plaintiff’s advertisement in the Pekin classified directory consisted of the words:

“Walter F. Collins
Practice Limited to Dentures (Plates)
115 S. Jefferson Av......Peoria 3-5788”

Appellant in his testimony admitted that the signs were on the premises prior to filing of the complaint and had been there for at least 11 years according to his knowledge. He also admitted that the telephone directory advertisements for the year 1957 had been placed with his knowledge and consent and that they had been in previous directories.

The ownership of the Peoria Dental Laboratory by Ethel Skolnik was controverted by Appellant. In his testimony Appellant claimed that in 1954 after the death of Dr. H. H. Skolnik and while the estate was being administered, he entered into an oral contract with the executrix, for the purchase of the dental laboratory. No purchase price had been agreed upon according to appellant’s testimony, and the arrangement was to have been consummated at some indefinite time in the future. Appellant claimed that Ethel Skolnik was his bookkeeper and office manager and that they jointly agreed on salaries to be paid to employees. It appears that the cash receipts for the services of Walter F. Collins and the laboratory were placed in a common - cash drawer to which the appellant and Ethel Skolnik had access, and that from these receipts Ethel Skolnik paid the employees in cash, paid expenses of purchasing supplies, and that both Ethel Skolnik and the appellant made withdrawals from the cash drawer as their needs required and not in any particular prearranged amount. The excess was deposited in the bank to the account of the Peoria Dental Laboratory. An officer of the bank testified that in 1953 a letter of authorization and signature card, both being introduced in evidence, were executed by Ethel Skolnik as the owner of the Peoria Dental Laboratory and that she was the only person authorized to make withdrawals from this account. Both the letter of authorization and signature card were currently in effect at the time the complaint was filed. Appellant claimed that the purchase price which would have been ultimately paid for the purchase of the laboratory, would have in some way been related to the withdrawals of each. Appellant by subpoena was directed to produce the books and records of the Peoria Dental Laboratory for years 1957 and 1958 but none were produced. Appellant testified he had no knowledge of income tax returns for the years 1954 thru 1957. Ethel Skolnik was also by subpoena, directed to produce the books and records of the laboratory but on the advice of counsel for the appellant she declined to testify or produce any such records by virtue of the 5th amendment to the U. S. Constitution. It appeared from the testimony of two employees, Doris Glenn and Gene McCabe that the employer listed on their withholding tax statements for the year 1957 was H. H. Skolnik. In June of 1958, while the hearings before the Board of Dental Examiners were in progress, the Department of Labor of the State of Illinois and the Department of Unemployment Compensation were notified by Ethel Skolnik of a change in ownership of the Peoria Dental Laboratory to Walter F. Collins and during the same month appellant applied for an employer’s identification number from the Division of Social Security of the United States Department of Health, Education and Welfare.

With respect to another phase of the testimony at the hearings, Edgar T. Stephens, Relator and an investigator for the Illinois Dental Society, testified he had called at the offices on November 4, 1957 and talked with Doris Glenn and Gene McCabe. Upon being advised that Walter F. Collins was sick, he made inquiries concerning a partial denture and testified that both of the employees examined his mouth, one of them using a dental mirror. He also testified, that in response to his inquiry about the price of the denture, the two employees consulted with one another and that Doris Glenn stated that the price would be ninety-five dollars ($95). An appointment card containing the date to see appellant and the price of the denture was given to Stephens and he thereafter appeared on the date of the appointment to have impressions made for the denture. On this visit it was the testimony of Stephens that on the request of appellant, Gene McCabe made further examination of his mouth and that the other employee, Doris Glenn, removed and inserted another tray out of the presence of appellant. On this occasion Stephens paid Mrs. Skolnik twenty-five dollars ($25) in cash and five dollars ($5) by check, receiving a receipt therefore. The check was later endorsed by appellant. Stephens testified further that he returned to the office on November 15, 1957 at which time the partial denture was fitted into his mouth by appellant. The denture did not fit properly and after appellant was unable to withdraw the denture it was withdrawn by McCabe. The denture was adjusted and Stephens paid the balance of the cost, sixty-five dollars ($65) to Mrs. Skolnik. Stephens testified that at no time was the cost of the denture discussed with him by appellant. The employees, Doris Glenn and Gene McCabe while admitting to conversations with Stephens denied any physical examination of Stephens excepting that Gene McCabe stated that he did remove the denture from Stephens mouth after Collins broke his thumb nail.

Since appellant filed his complaint for review of the order of the Department of Registration and Education under the provisions of the Administrative Review Act it is conceded by both parties that the order shall be considered prima facie true and that it is the duty of a court to affirm such order unless it is against the manifest weight of the evidence. If the order be supported by substantial competent evidence it is not the duty of the court to reweigh the evidence or substitute its interpretation of the facts for that of the Administrative agency. (Logan v. Civil Service Commission, 3 I112d 81,119 NE2d 754.)

There is no doubt that the right of a dentist to practice his profession is of vital importance and that revocation of his license to practice constitutes a practical destruction of his livelihood. Such drastic action as revocation should be supported by clear and convincing evidence. By accepting the privilege of practicing his profession the dentist also assumes the responsibilities incident to the trust and confidence placed in him. Chapter 91, Ill Rev Stats 1957, the Dental Practice Act, established the meaning of the practice of dentistry, the qualifications of those permitted to exercise its privileges and the standards of conduct required of those accepting and assuming its privileges and responsibilities. Appellant argues that only conduct which imparts venality, criminality, fraudulent conduct or moral turpitude or constitutes some damage to the public can justify revocation of a license to practice dentistry. With this argument we cannot agree. The grounds for revocation of a license to practice dentistry are clearly set forth in, paragraph 62, chap 91, Ill Rev Stats 1957, and although some of the grounds specified may impart criminality or moral turpitude many others do not. Appellant has not referred us to any authority, nor are we aware of any authority suggesting that improper conduct constituting specific violation of the provisions of the Dental Practice Act must also be accompanied by criminality, venality or moral turpitude in order to sustain revocation of a dentist’s license. Appellant has referred us to cases involving attorneys in violation of the Canons of Ethics. These cases do not suggest or support the limitations of specific statutory violations as contended by Appellant. Appellant, by his application for licensing under the statute, must be deemed to have assumed the standard of conduct and responsibility therein imposed.

The Board of Dental Examiners made numerous findings of fact upon which it based its conclusions that appellant was guilty of multiple violations of the Dental Practice Act as charged in the complaint and upon the bases of its conclusions recommended revocation of appellant’s license. These findings included all of the material allegations of the complaint. Of these allegations only the ownership of the laboratory and the incident involving Edgar T. Stephens were controverted by appellant. However, we believe that substantial competent evidence was presented to the Board on each of these issues. Most of the factual indicia of ownership of the laboratory was either admitted by appellant or was not rebutted. With respect to the incident involving Edgar T. Stephens the Board could and did consider the relationship of the parties testifying as well as other evidence bearing on their credibility. With respect to this issue there was likewise substantial competent evidence to support the findings of the Board. We believe that the findings of fact by the Board are not against the manifest weight of the evidence and are supported by substantial competent evidence.

Appellant next argues that the facts and findings of the Board do not support its conclusions that appellant was guilty of the violations of the statute as charged. In this connection appellant relies on and quotes extensively from the cases of: (Menning v. Department of Registration & Education, 14 Ill2d 553, 153 NE2d 52, and Bruce v. Department of Registration & Education, 26 Ill2d 612, 187 NE2d 711). From our reading of these cases it appears to us that the only similarities are that each involve a dentist having some relationship with a laboratory. In neither of these cases did a dentist and a laboratory become so closely associated and their relationship so confused nor was there significant evidence of fee splitting or of improper conduct by the laboratory. In the Bruce case, the court concluded that because the examining board itself had not found the charges in the original complaint substantiated by the evidence and because the evidence presented after the case had been reopened was improper, the order of revocation should not be sustained. The case of Dubin v. Department of Registration & Education, 396 Ill 276, 71 NE2d 785, presents a situation more comparable to that in the instant case. We do not believe that the conclusion reached by the Board are contrary to any of the cases relied upon by appellant with respect to appellant’s relationship to the Peoria Dental Laboratory.

Appellant also contends that his public representations that he limited his practice to dentures did not constitute a claim of specialization because it was an area of practice permitted under his general license. We find no merit in appellant’s contention. Appellant admitted that he was not licensed to practice any particular specialty. Paragraph 59a, of ch 91, Smith Hurd Stats, 1957 is the section of the Dental Practice Act dealing with specialization and after authorizing the creation of specialties in the branches of dentistry provides: “. . . The fact that any licensee shall announce by card, letter head, or any other printed matter using such terms as ‘Specialist,’ ‘Practice Limited To’ or ‘Limited to Specialty Of,’ with the name of such branch of dentistry practiced as a specialty, or shall use equivalent words or phrases to announce the same, shall be prima facie evidence that such licensee is practicing as a specialist.” We find nothing in the Statute to suggest that specialization in a branch of dentistry is limited to areas other than those permitted under a general license. The Board was amply justified in concluding that appellant violated this provision of the Statute.

Lastly we consider the propriety of the disciplinary action taken by the Department of Registration and Education. Section 62 of chap 91, Ill Revised Stats 1957 provides that the Department may revoke or suspend any license theretofore issued for any one or more of the causes listed in the section. Although the disciplinary power so granted is broad, it is not unlimited. Its exercise by the Department must be warranted by the facts of the case considered in their relationship to the purposes of the act. The record before us reveals a dentist, a practitioner for many years, who has failed to keep pace with or abide by the advancing ethics of his profession as embodied by the act. The charges proved, when considered with the absence of prior suspension or complaint, do not justify the finality or irrevocability inherent in revocation of appellant’s license. Nor is such revocation necessary to secure compliance with the act. Accordingly we believe that the Department’s action constituted an abuse of its discretion. Suspension of appellant’s license is justified by the record and is consistent with the purpose sought to be accomplished. We believe that the record before us is sufficiently complete that remandment for reconsideration of appropriate disciplinary action is not required and accordingly we find that appellant’s license should be suspended for one year.

The order of the Department of Registration and Education being erroneous, the judgment of the Circuit Court of Peoria County is likewise erroneous, and accordingly the judgment of said court is reversed and remanded with directions that upon the mandate of this court becoming final the Order of the Department of Registration and Education, revoking appellant’s license, should be modified by providing that appellant’s license should be suspended for one year.

Judgment reversed and remanded with directions.

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


author: ME. JUSTICE DAVIS

text:
    Maywood-Proviso State Bank, a National Banking Association, as Trustee Under Trust # 1646, The Flame, Inc., an Illinois Corporation, and Peter G. Makris and Gloria Makris, His Wife, Plaintiffs-Appellants, v. The City of Oakbrook Terrace, a Municipal Corporation, Walter C. Padgett, et al., Defendants-Appellees.
    Gen. No. 65-48.
    Second District.
    February 1, 1966.
    Rehearing denied March 11, 1966.

      John C. Polales and Daniel H. Pappas, of Chicago, for appellants.
    Hubert J. Loftus, of Addison, for appellees.
   ME. JUSTICE DAVIS

delivered the opinion of the court.

Plaintiffs, Maywood-Proviso State Bank, as Trustee; The Flame, Inc.; and Peter G. Makris and Gloria Makris, as beneficiaries under the aforementioned trust, brought this suit against the defendants, The City of Oakbrook Terrace and certain city officials, to enjoin the enforcement of a general liquor control ordinance in its application to the property held in said trust with reference to closing hours in connection with the sale of alcoholic beverages. The plaintiffs appealed from a decree rendered in favor of the defendants.

The plaintiffs contend that by virtue of a preannexation agreement entered into in December of 1962 between their predecessors in title to the real estate in question and the defendant municipality, it was agreed, among other things, that any liquor license granted to the owners of the real estate in question would permit the serving of alcoholic beverages up to 3:00 a. m. on Monday through Friday and up to 4:00 a. m. on Saturday, Sunday and holidays; and that by virtue of this agreement, a subsequent general liquor ordinance, adopted by the city in October of 1964, which prohibited the sale of alcoholic beverages after 1:00 a. m. on Monday through Friday and after 2:00 a. m. on Saturday, Sunday and legal holidays, could not be applied to the real estate in question. Defendants urge that the provisions of the agreement relative to the liquor license are contrary to the Liquor Control Act and therefore are void and unenforceable.

The preannexation agreement entered into between the city and plaintiffs’ predecessors in December of 1962 provided that the owners of the land in question would cause it to be annexed to the city, and the city would cause certain ordinances, relative thereto, to be enacted. The city agreed it would “cause the property to be given a zoning classification as a special use permit” and would adopt such other ordinances as would be necessary to permit the following uses on the property:

“1. b) 1. The serving of alcoholic beverages for consumption on the premises.

2. The granting of a liquor license for purposes of allowing alcoholic beverages to be served on said premises which said license shall permit the serving of alcoholic beverages up to 3 A. M. on Monday, Tuesday, Wednesday, and Thursday and Friday and up to 4 A. M. on Saturday and Sunday and legal Holidays.
4. It is expressly understood that any changes in the requirements of any relevant ordinances which may affect the premises shall conform to the spirit and intent of this agreement and that this agreement is made as an inducement to ‘Ellison’ to annex, develop and operate said property and the establishment thereon in the manner above described and ‘Ellison’ is entitled to further change his position in reliance upon this agreement.”

The agreement further provided:

“2. 6. Upon execution of this agreement by the parties hereto, the City agrees to enact such resolutions or ordinances as may be necessary to permit the City to comply with the terms of this agreement.”

The city adopted a contract ordinance authorizing the execution of the agreement on behalf of the city and thereafter adopted an ordinance annexing the property in question.

In 1963, the legislature added to the Municipal Code, division 15.1 relating to annexation agreements (Ill Rev Stats 1965, c 24, pars 11-15.1-1 through 11-15.1-5). Section 11-15.1-1 provides:

“The corporate authorities of any municipality may enter into an agreement with one or more of the owners of record of land in any territory which may be annexed to such municipality as provided in Article 7 such agreement to be valid and binding for a period of not to exceed 5 years from the date of execution thereof.”

As to the scope of such agreements, section 11-15.1-2 provides:

“Any such agreement may provide for the following as it relates to the land which is the subject of the agreement:
“(f) Any other matter not inconsistent with the provisions of this Code, nor forbidden by law.
“Any action taken by the corporate authorities during the period such agreement is in effect, which, if it applied to the land which is the subject of the agreement, would be a breach of such agreement, shall not apply to such land without an amendment of such agreement.”

Section 11-15.1-4 provides that such an agreement is binding upon successor owners of the land and successor municipalities and may be enforced by appropriate legal proceedings. Section 11-15.1-5 provides that any agreement entered into prior to the effective date of the Amendatory Act of 1963 which was executed pursuant to a two-thirds vote of the corporate authorities and which contains provisions not inconsistent with section 11-15.1-2 is valid and enforceable for the effective period of the agreement or for five years from the date of execution, whichever is shorter.

The parties concede that the agreement in question was executed in the manner set forth in section 11-15.1-5 and is, therefore, valid and enforceable for a period of five years from December 1962, if the provisions thereof referred to are not forbidden by law. If the provisions are forbidden by law, then the general liquor control ordinance, which would compel an earlier closing hour on the premises, would be applicable.

The power of a municipality relative to traffic in intoxicating liquors is derived entirely from the State. The control over such traffic is a necessary incident to the police powers of the State—not of the political subdivisions or municipalities thereof. Heidenreich v. Ronske, 26 Ill2d 360, 365, 187 NE2d 261 (1962); Henson v. City of Chicago, 415 Ill 564, 569, 114 NE2d 778 (1953); Sager v. City of Silvis, 402 Ill 262, 265, 83 NE2d 683 (1949). The State may delegate this power to license, regulate or prohibit traffic in intoxicating liquors to a municipality, but the municipality has only that power delegated to it and no other. The Liquor Control Act (Ill Rev Stats 1965, c 43, par 94 et seq.) contains the delegation of this power to municipalities and prescribes the limits beyond which a municipality may not act. Heidenreich v. Ronske, supra; Henson v. City of Chicago, supra. Any ordinance or act of a municipality beyond the legislative authorization of the Liquor Control Act is without legal force or validity.

Article I, section 1 of the Act (Ill Rev Stats 1965, c 43, par 94) provides that the Act is to be liberally construed to the end that the health, safety and welfare of the people be protected, and temperance in the consumption of alcoholic liquors be fostered and promoted by sound and careful control and regulation.

Section 1 of Article IV of the Act (Ill Rev Stats 1965, c 43, par 110) contains the delegation by the State to cities and other political subdivisions of “the power by. general ordinance or resolution to determine the number, kind and classification of licenses, for the sale at retail of alcoholic liquor not inconsistent with this Act . . . and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require;....” (Italics ours.)

The Act further provides that a license “shall be purely a personal privilege, good for not to exceed one year after its issuance . . . and shall not constitute property, . . . nor shall it be alienable or transferable, . . . .” (Ill Rev Stats 1965, c 43, par 119.)

The agreement and ordinance authorizing the agreement in this case are manifestly contrary to the provisions of paragraph 119 of the Liquor Control Act. By the agreement, the city purported to bind itself to grant a liquor license for use on these particular premises for the term of the agreement which, under the statute, was five years. Had the parties intended only that the land be given a zoning classification which would have permitted the sale of alcoholic beverages thereon, then sub-paragraph 1. (b) 1. of the agreement requiring such a zoning classification, was sufficient for this purpose. But the agreement of the parties went further and provided for the adoption of such other ordinances as may be necessary to authorize the use set forth in subparagraph 1. (b) 2, namely: “The granting of a liquor license for purposes of allowing alcoholic beverages to be served on said premises which said license shall permit the serving of alcoholic beverages up to 3:00 a. m. on Monday, Tuesday, Wednesday, and Thursday and Friday and up- to 4 a. m. on Saturday and Sunday and legal Holidays.” We believe that it is implicit in this subparagraph that the city is obligated to provide such a license for the five-year period.

The city did not have the power or authority to contract, in effect, for the issuance of a liquor license to a particular location for beyond the period of one year. The provisions relative to the granting of such a license and the ordinance authorizing the execution of the agreement containing such provisions are without legal force and are void. People v. Harrison, 256 Ill 102, 109, 99 NE 903 (1912); Karen v. Bartholomae & Roesing Brewing & Malting Co., 195 Ill App 21, 23, 24 (1st Dist 1915); 25 ILP, Liquor, Sec 63.

In Harrison, the Court held that part of an ordinance invalid which attempted to give to a liquor licensee, or his legal representative, the right to a renewal or reissue of the license upon compliance with the city ordinances; as well as the right to assign such right to renewal or reissue. The court held that the effect of this ordinance was to authorize the issuance of a license for one year, renewable indefinitely; and that the city had no discretion about the continuance of the license. The attempt to extend the rights conferred by the license beyond the time permitted by statute was held invalid. The effect of the contract, and ordinance authorizing the contract, in the case at bar, would likewise be to confer rights beyond the time permitted by statute. Such an attempt is without authority and is void.

The general liquor control ordinance adopted by the city in October of 1964, which provided for closing hours of 1:00 a. m. on certain nights and 2:00 a. m. on other nights, was a valid exercise of the power delegated to it by the State. The Liquor Control Act provides that a city council may restrict “the permissible hours for the sale of alcoholic liquors under such licenses in its political subdivision as the public good and convenience may require.” (Ill Rev Stats 1965, c 43, par 129.)

Such ordinance was, and is, a valid general ordinance governing the hours of sale of alcoholic liquor by all persons so engaged within its political subdivision. The plaintiffs contend that the ordinance authorizing the agreement with their predecessors in title, and the agreement, permitted and required that the closing hours set forth therein be applied to them. Such a distinction, as to plaintiffs, could not be deemed a reasonable classification, and such an ordinance is special, and not general, in nature. People v. Kaelber, 253 Ill 552, 555, 97 NE 1068 (1912). The power conferred by the State upon a municipality to control liquor traffic by “general ordinance or resolution” is granted by paragraph 110 of the Liquor Control Act, and is supplemented by paragraph 129 thereof. Any purported attempt by a municipality to grant special privileges or rights relative to a certain liquor licensee is of no effect. All ordinances of a city relative to liquor licenses must operate uniformly on all persons within the class to which they relate and must not be unjustly discriminatory or arbitrary in their classification. People v. Harrison, supra; Moore v. Mayor of Danville, 232 Ill 307, 310 (1908); 25 ILP Liquor, sec 53.

In the Harrison case, the court stated at pages 106 and 107:

“The legislature cannot confer any power which it does not itself possess, and cannot authorize a discrimination between individuals not founded on a reasonable difference, for it could not itself make such discrimination. The power to license, regulate and prohibit can be exercised only through an ordinance of the city, and such ordinance must be a general one, specifying the manner and conditions of the issue of the license, the power conferred by it, and uniform in its operation upon persons within its scope. (People v. Village of Crotty, 93 Ill 180; People v. Cregier, 138 id. 401; People,v. Mount, 186 id. 560.)”

In the Moore case an ordinance was held invalid,, as being discriminatory and unreasonable, which attempted to render one block, with the exception of one particular lot therein, as nonliquor license territory.

In the case at bar, the agreement between the city and plaintiffs’ predecessors in title, elsewhere purports to bind the city to conform to the spirit and intent of the agreement if any changes are made in the requirements of any ordinances which may affect the premises ; and to enact such resolutions or ordinances as may be necessary to permit the city to comply with the terms of the agreement. To the extent that these provisions purport to obligate the city to take certain action relative to the granting of a liquor license or the classification, terms or restrictions thereunder with reference to the premises in question, such provisions are likewise void.

The right to deal in intoxicating liquors is not an inherent or alienable right; a right of citizenship, or one of its privileges and immunities; nor is it a property right. A license to sell liquor is not a contract and it creates no vested right. Such license constitutes a personal privilege to pursue a business peculiarly subject to police regulation and control. Great Atlantic & Pacific Tea Co. v. Mayor and Com’rs of Danville, 367 Ill 310, 317, 11 NE2d 388 (1937); Boerner v. Thompson, 278 Ill 153, 158, 115 NE 866 (1917); 25 ILP, Liquor, Sec 62. The right given by license and the controls and regulations imposed relative thereto are determined by the requirements of “the public good and convenience.” Great Atlantic & Pacific Tea Co. v. Mayor and Com’rs of Danville, supra, 314, 315. These determinations and the underlying authority to make them are not to be curtailed by private contracts or interests. The exercise of the police power, delegated by the State to a municipality, should be consistent with the purposes set forth in paragraph 94 of the Liquor Control Act. A municipality may not, by private contract, deny to itself the power or authority lawfully vested in it to act relative to the regulation of liquor traffic where it deems action necessary to the public good and convenience.

Plaintiffs contend that the agreement does not require the issuance of a liquor license for a period of five years— the term of the agreement. We cannot agree with this contention. When read in its entirety, the agreement manifests an intent that the city be bound to grant a liquor license for the serving of alcoholic beverages on the premises in question for the term of the agreement— five years—and that under such license the serving of such beverages be permitted until 3:00 a. m. on Monday through Friday and up to 4:00 a. m. on Saturday, Sunday and holidays.

For the reasons set forth above, such agreement is contrary to the power and authority given to the municipality under the Liquor Control Act and is, hence, “forbidden by law,” and not permitted under the provisions of section 11-15.1-2 (f) of the Municipal Code. Accordingly, the decree of the trial court is affirmed.

Decree affirmed.

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