*1 111. Fitzsimmons v. The in error, asserts that however, the defend- ant in error has waived the to raise the right question Whittika’s refusal to submit to an The offer operation. was made and refused at the before commis- hearing sion on July The 31, commission and its ignored it, 1924. act in so was not doing attributable to fault of the de- any fendant in error. The cause was removed to the circuit the defendant in by. error, and that court set aside the decision of the commission for the reason that Whit- tika had refused to submit to an There was no operation. waiver of the to raise the right question. judgment circuit court is reversed and the

cause is remanded to that court, with directions to remand the cause to the commission for further consideration, leave to the to parties introduce further evidence if they so desire. Reversed and remanded, with directions. (No. Judgment affirmed.) 16585.- Plaintiff vs. Error, Frank Fitzsimmons, Defendant Illinois, in Error. Opinion 28, October filed 1926. private corporation, as a 1. Schools —State by

was not abolished Civil Administrative Code. The Education, being eleemosynary corporation, an was not abol- adoption transferring ished of the Civil Administrative Code powers agency as a to the Normal and the president, although expires, office of the his term continues until provided, prosecute his successor is and he is authorized to a writ judgment against from of error a party. a suit to which it was not a Appeals and errors —when is not estopped prosecute a writ error. is ren- Where an action on a con- dered estopped prosecute by it, it a writ of error tract executed party made a to the suit and did not ground that it was not on the merely the suit was defended at the trial because Oct. ’26.] Board of Education. which the and duties Ad- agency, Board as a were the Civil suit brought.

ministrative Code and Heard, part. J., took no *2 to the for Third Court Appellate

Writ Error error to the Cir- District; that court on writ of —heard cuit Court of the Hon. S. Sangamon county; Smith, E. Judge, presiding.

George George B. M. Thomas Gillespie, Gillespie, in error. for E. plaintiff E. Louis Gillespie, Gillespie, for defendant and B. L. Capen, Catron, Charles error. of the court: the opinion

Mr. delivered Farmer Justice name business under Frank Fitzsimmons, doing into a contract entered Fitzimmons Construction Company, for 24, 1916, with the on May dor- the women’s the construction of a known as building Nor- on at University, of the mitory, grounds the construction entered Fitzsimmons Illinois. mal, conduct wrongful alleged of the but reason work, by he this brought it was never completed, of defendants The decla- for contract. action for breach damages from hindered, delayed prevented he was ration alleged from the terms of the contract complet- complying conduct acts and building by wrongful ing A demurrer to the declaration. made defendants persons filed filed declaration and overruled. Defendants was to the a issue; verified general (2) plea, two pleas: (1) of the Normal denying in a A trial was had, resulting execution of the contract. and the Normal for for $30,000, judgment from an and was allowed appeal judg- prayed This court held the ment to the Court. judgment Supreme and not against was against Board and that no was involved question it jurisdiction to entertain the and trans gave appeal, ferred the cause to the Court for the Third Dis Appellate trict. (Fitzsimmons Ill. con Miller, 85.) Upon sideration case that court dismissed the on the appeal that the ground prosecuted defendants, who appeal are members of the Normal from judgment there and that no judgment against (Fitzsimmons v. Mil appellants. Ill. ler, App. 389.) Thereupon Edu cation sued out a writ error from the Appellate for the Third District. judgment was there reversed on the ground that the had not been made a to the party suit, was not served with process and never in court. This appeared court issued a writ of certiorari to review that judgment Court.

That the Board of Education of Illinois was decided this Fitzsim- *3 mons Miller, v. supra, and it is not now otherwise con- tended. The material questions argued are: Was the State Board of made Education defendant the suit? Did it by counsel and defend the cause on its merits? Is it now to contest the estopped The merits of judgment? the case are referred to but not discussed in the briefs.

Process was issued against served the upon chair man, secretary and members the Normal School but no issued or process served against upon the State The of the demurrer to the grounds that the suit was declaration an action were, against in violation of the Illinois, which constitution, State pro vides the shall never be made a defendant in State any The was sworn to special plea by of law equity. Normal “one of the defend secretary cause,” entitled ants the above alleged defendants not make deliver the sued on writing did and mentioned declaration. Oct. Board of Education. made the contract Board of Education, created a act of hav by 1857, corporation

sued upon, sue and succession, contract, power ing perpetual be In Ad be impleaded. 1917, by plead sued, Normal created, ministrative Board was and the act that numerous com officers, provided boards, missions, arms and theretofore created agencies them the by law, among Education of Illinois, were abolished. The Director of Registration is made chairman and the of Public Instruc Superintendent tion secretary Normal Board, and the act that the and duties vested provides rights, powers lawby in the shall be exercised Education Normal Board. an could eleemosynary corporation, not be abolished or de stroyed act of the v. legislature, (Board Greenebaum & Sons, Ill. 609; 122 id. Boehm Bakewell, Hertz, 182 id. 339; but 154;) the duties theretofore it as a performed by State agency were transferred to the Normal School Board, leaving corporate powers act of it. It creating necessarily follows that no valid could be rendered against unless it was made a defendant, served with or entered an process appearance.

Plaintiff contends the suit was chairman, members as trus School Board tees, exercising rights, duties of the of Illinois; Education of that the declaration was on a contract made with the on May 24, 1916, all ran allegations *4 Board of and not Education Normal This Board. court held Fitzsimmons Miller, that the supra, chairman, secretary members constitut the Normal ing Board, successor of and exercising and duties of rights, powers Edu- of Education. cation, were named as declaration, defendants to the that said defendants to the declara- appeared pleaded that the tion; declaration amended was were pleas re-filed to the declaration that amended;' as pending trial declaration was further as de- naming amended, fendants to the suit, and members chairman, secretary as trustees exer- “constituting cising rights, duties the Board Edu- cation a Illinois, corporation,” leave were re-filed the amended pleas again declaration. This court referred to the contention plain- tiff in error that the was made a defendant, and that it was to serve the necessary trustees, School Board because its members represented, as exercised its rights, pow- ers and duties. Those the court said it disputed questions could not determine, it had no jurisdiction appeal. case On both occasions the was before the that court held on this same record that the was not made a not defendant, was served with and did not manner process any court. It was not stated this court that the directly was not made a but defendant, reasonable effect of the and we fur- decision, cannot, upon ther to the contention of agree consideration, was made defendant. “defendants” made the special plea con- denying tract was sworn to Normal School Board, one the defendants. the contract When offered in evidence counsel for defendants on the objected it that was ground signed by with existence; had perpetual private corporation was not a

not been served defendant and process, objection overruled. represented. Plaintiff in error contends that suit was properly Board in brought representa- *5 Óct. Fitzsimmons Board of Education.

tive created capacity, the statute, the Civil Administra- tive because the of Code, officers of the Board State Edu- cation were abolished by that statute and became members of the Normal Board; School could be process served on or the separate agents officers of State the Education, and was entered judgment properly against the of Board the Education, Normal represented by State its School and duties un- exercising rights, powers der the provisions Civil Administrative Code. summons was issued and served against chairman, upon members of the Normal Board. The secretary School mem- chairman, individual designation of bers Board as was un- defendants School be treated as necessary may suit surplusage. brought Normal Board. against School Sometimes was called successor to or trustee or official representative contends a judgment against Board Education prop- rendered. erly far the record So discloses, only per- sons who were members both boards were the super- intendent of Public Instruction and Charles Capen one and we cannot see how other, a liability against can be established and judgment rendered it in an action against Normal against School Board. As we understand is that the it, theory plaintiff’s cannot, Board since passage in the Civil Administrative be sued form of ordinary an that the corporation; action Normal bringing against is created an Board agency exercise and duties of the rights, powers Educa- Normal be and the Board must summoned into tion, to obtain a judgment order If contention it would correct, be to hold the Administrative Code conferred necessary to exercise the right upon charter Educa- Board of Education. be the effect, would, tion as a private corporation, held This court has destruction latter’s legislature. modify no was reserved to the repeal power legislature Sons, & v. Greenebaum charter. (Board Boehm v. Bakewell, supra; supra; When supra.) appeal Hertz, held the this court we Board was taken to the validity and that involved, was not Administrative Code *6 of the Civil does code Court. the case to the Said Appellate transferred the Board of of amend the charter State purport refer to it in any of the act granted by Education Administrative the Before the of Civil manner. passage the Board of the through State Education had, Code State in the exercised certain powers support as a agency, State a free school which was system, and maintenance of ap The Administrative Hertz, in Boehm v. Civil supra. proved commissions boards. It many officers, Code abolished in Board of and it, the could not abolish State should used said board no be as an longer declared effect, The the Civil Administrative of government. State agency exercise the Normal Board should Code School provided vested in the the and duties before rights, powers State and the boards trustees of the other of Board Education The act did not affect the charter Normal schools. as a Board of private corporation. State Education in leave the asked Plaintiff presented the Board of against to file a plea estoppel State the writ of error. to file the to prosecute Leave Education it is insisted the court com- denied, and thereby was plea The in the mitted error. circuit plea was, theory Board of in was State appeal, Education court, for which the Normal the At- by represented other counsel and the appeared, General torney. from the writ estopped prosecuting Board Education no error committed think was by Appel- of error. We op Oct. Board Education.

late Court leave to file the The denying plea. was not because the Normal estopped Education other appeared Attorney General and coun-

sel and defended. to be as the proper contract sued on was made party sued, No it. process issued and it never appeared court. suit defended made defendant served with and the action of board process, and its counsel could not estop from out a error aside writ of to set rendered suing it in is so a suit to it was not a That party. whether from considered destruction standpoint existence of the corporate Administrative (for legislature had no to do or whether said act be considered power that,) making Board trustee to represent in the exercise of its charter pow- for that ers, would, effect, destroy exist- corporate ence of the In no view that can be taken can case it be said Edu- cation was made a defendant to suit or that it ever ap- *7 in court. The peared fact that a few of the persons who were members of the Normal Board were also mem- bers of the Board of can make no differ- ence. The Normal Board was defendant. Its were served, members such, and defended process, as members of that board and not as officers or members of the Education.

It is also contended terms of the officersof the State had and it has expired now no distinct officers or representatives aside from the Normal School Board, and reference is made to the testimony Capen that his term as of the president Educa- tion in June, The charter expired of the board pro- 1917. vided that the shall serve president until his successor is of Education. Charles sued out This writ of error was L.

elected. The of the president Capen, one but no in he was elected expired term for which the charter he con- under him, elected to succeed of error. out writ tinued as sued president properly in error is volumi- Although argument plaintiff material to and covers a wide the questions nous range, are, decision of the case Was the a defendant to the or did it at the trial so that suit, it is a valid We think judgment judgment? in both must be answered questions negative. is affirmed.

Judgment affirmed. Mr. took no in this decision. part Heard Justice for Subsequently, upon petition rehearing, following additional was filed: opinion

Per : The court Curiam this case granted rehearing of counsel for ‘petition upon Fitzsimmons, plaintiff error in this court. His contention Charles Capen had no sue the writ of error as out president authority Illinois was the Board but we have again reason for a rehearing, granting principal in our upon other passed opinion. questions considered that in last in error analysis for say Counsel this case whether determined deciding to be the question court and represented in the trial anyone appeared de de jure authority under Board of Education facto the fact based contention is do This so. the chair- filed made defendants as originally declaration members of man, “constituting named, all were who the rights, and exercising successor of Illinois.” duties “the names by substituting amended declaration follows,” suit, as naming to this defendants *8 Oct. Board of Education. and-

chairman, secretary members, the Normal “constituting Board as trustees School exercising rights, powers duties of the Board of of a Illinois, corporation.” Court and this court held that Appellate the suit was Board as defend ant. Plaintiff in error contended con now originally, tends, that we overlooked the fact in summons formed the Normal but Board that it was not sued into brought court as the real of representative party of defendant, Illinois, and that the Normal Board was named merely representative That contention is based capacity. upon Administrative which adopted 1917, pur ported to abolish certain boards, arms offices, commissions, agencies government, among the Board of exer Illinois, cise of whose the act in the De duties vested partment act created Registration that it should have provided it should be its to power duty succeed to and to admin ister all trusts and trust now or hereafter property belong to normal any or universities ing pertaining or and to duties which had schools perform previously the various boards trustees of the been performed No one has questioned' normal schools the State. act act. It does not of that validity repeal purport and both creating could not take from that to this suit admit the act parties the act of board charter powers stat the reason that the of no constitutionality For 1857. court transferred the direct ute was involved this appeal Fitzsimmons Mil Court. to this court Ill. ler, 85. former referred to the decisions of we

In our opinion the charter of court that this act of the char- legislature

could be repealed *9 Fitzsimmons Board or Education. of the taken from ter said board corporation powers transferred elsewhere. Plaintiff in error insists that so of we holding passed upon constitutionality not held was which we had Code, Administrative previously We in this case. We do not so understand it. involved Administrative the effect of the Civil construed merely is either this construction not disputed party, constitutionality. of its neither one them denies or questions was named in the declaration as chair F. Shepardson W. of Public Instruction was man, Superintendent State and Charles was named as named as Capen L. secretary the act of member of the Board. By Normal School is made of Public Instruction Superintendent State the Board of of secretary ex-officio he made Administrative Code is Illinois and the Civil of him Board. of the Normal Service secretary as of Board and upon Capen that was not service upon a member of board president of Board Education, although and secretary of and is averred that board is successor exercising it Education, and duties of powers rights, rendered under the no could be board trial, manner at the declaration unless it some appeared it not. are unable come we are of did We to opinion from at in our different conclusion that arrived to any Board Illi of opinion,—that did not suit, not a defendant to the it nois was at the and was was not trial, estopped represented from the to a writ of error to prosecute reverse judgment. he testified was president Capen

Charles There 1916, June, from May, his term as a member can discover that no evidence we there is no evidence that any- had of the board expired, him. succeed The charter of elected one was president biennial after the that at each meeting the board provides Oct. Board or Education.

first board shall one of members meeting elect shall serve until the next who biennial president, meeting his “and until successor is elected.” In his affidavit to filed 18, for writ of which was December error, petition swears he is 1923, Capen president In that he sued out the held writ. We capacity in this case that the Civil Administrative Code did not abol ish the but its effect was to trans fer to the Normal Board duties the had as an previously performed agency State, but did not and could not take from the its charter act of *10 Plaintiff in error here recognized existence 1857. causing to be entered it. As president corporation Capen had in authority to act its behalf out the writ. suing (Wetherbee v. Fitch, Ill. 67; Juris, Corpus 437; 14 117 Bank v. Ill. Griffin, 314; 168 Anderson v. Minneapolis Fuller, Co. id. Anderson Brewing 213; Co. v. Transfer 173 id. if term as ex 221.) had Capen’s Even president 174 he out the as a de acted, suing officer, pired, writ, facto and his act was valid. v. Ill. (Sharp Thompson, 447; 22 R. His do 78; C. Corpus Juris, 598.) right so cannot Kolbenson, be attacked collaterally. Lawson 61 Ill. Comrs. 405; Samuels id. Drainage

We held our that the writ of error was opinion prop- out, sued erly and are convinced upon further consideration that our decision investigation question, well as the other questions involved, supported by law, , , and therefore adhere it. TJudgment affirmed.