*1 Kunce, authority at the administrative arraignment, "purported exercise effect together” an administrative Supreme flowing Illinois Court of two criminal cases in which was accused. The plaintiff General, for the brief defendant indicates that the two judges, cases were severance are “consolidated.” controlled by statute Joinder Rev. Stat. pars. 8) are committed 114— 114— Bernette, sound (People discretion court. 45 Ill.2d N.E.2d 793 Plaintiff has (1970).) no facts indicate pleaded which would that defendant Kunce acted outside his error authority. Again, if committed plaintiff should have pursued appeal guaranteed him by right. has no facts
Plaintiff
indicate
that defendant
acted in
Spomer
other than as the
any capacity
chief
officer
prosecuting
such,
As
County.
it is his
to attend
Alexander
upon
and commence and prosecute
all criminal actions. (Ill. Rev. Stat.
And
par. 5.)
while
his
acting
the State’s At
capacity,
torney
the same
enjoys
immunity bestowed
See,
judiciary.
e.g.,
Cwiklinski,
Berg
Affirmed. and CARTER, P. J., concur.
JONES, J., al., Leonard Fuchs et Plaintiffs-Appellants, v. Arthur al., et Bidwill J. Defendants-Appellees. 12284; (No.
Fourth August 14, 1975. District *2 CRAVEN, dissenting. J., Meites, all of Marks, and Thomas R. Polikoff, David M.
Alexander Potter, & of Springfield, Londrigan, Londrigan of and Thomas Chicago, for appellants. Fuiten, ap- for of Springfield, & Heckenkamp of Heckenkamp,
R. G. Murphy. William Choate, Lewis, and Jr., W. W. Clyde pellees J. John Critser, Monmouth, ap- for & of Critser, Kritzer, Stansell E. of Kenneth T. McLoskey. Robert pellee Smith, of Dan- Bookwalter, & Bookwalter, Acton, Meyer M. of John
ville, Barbara Peters.' for appellee for Lansing, Walker, E. Panichi, and of Springfield, William T. Jack Pollack. Lillian H. appellee Boylnn, and Roger. & .Casey, Casey Casey, Springfield, Edward F.
n Cronin, Lee. Bidwill, L. Clyde Chicago, Arthur A. appellees J. delivered the court: TRAPP opinion Mr. JUSTICE , complaint, elected stand their having upon Plaintiffs accounting order an dismissed a their monies of Illinois upon trust favor of the State constructive impose in violation of have the defendants aUeged relation Plaintiffs appeal. and duties legislators. citizen, tax- resident and Fuchs is alleged plaintiff It was re- the action for the bringing following payer benefit institute action. General to an prosecute fusal Interest, Businessmen for the is described Public plaintiff, cor- not-for-profit prevention Illinois concerned with corporation office, has acted as a ruption self-dealing public- the interest corporation by asserting benefit preventing misconduct. owned, It is that in one Everett and controlled operated two race tracks certain that in 1960 corporations; she organized to conduct harness at one of such race tracks and corporation racing organization corporation racing was awarded prime *3 dates continued and to be awarded such dates favoring through and that as a result the corporation profits. earned large allege
Plaintiffs that defendants were members of the legis- influence, lature with and and power re- individually collectively the spect passage profits legislation affecting through racing licensing, racing. and of horse It is regulating taxing further alleged that of such following organization Everett in and corporation, 1961 time, from time secretly thereafter made available to the several de- shares fendants at the of one corporation dollar share price per 4900 shares, in amounts from 3000 to that ranging and 1965 beginning in times, at various Everett and thereafter arranged buy back from the defendants shares or of such shares at portions from prices ranging to seven dollars share and per three dollars that such transactions the investments, made large profits doubling defendants and some that the making profit, instances much and greater transactions were out conceal secretly carried divers means to through ownership defendants. respective the shares further
It is that Everett alleged made such shares. available to defen- dants because his office enabled public each exercise in- and power fluence legislation horse and that concerning racing which racing corporation provided profit the exercise of such power 570 making such reason for influence; knew of
and that each defendant avail- were made such shares knew that while to him and shares available available not generally were several defendants shares able to the Assembly. the General members of who were not persons constructive declared a defendant be that each The complaint prayed now he shares which Illinois of any the State of trustee the benefit of him, directly received by owns, and of all proceeds or indirectly, directly for all to account required and that be from such shares indirectly, each defendant owned, that so received from shares proceeds time and him at any such shares owned to account for all required realized therefrom. and profits for all proceeds complaint to dismiss filed motions defendants The several the plaintiffs upon findings, (1) was entered of the trial court order complaint action, and (2) to file no in court standing have insufficient as a matter law. was allega well-pleaded the review of such judgment,
For
purposes
true.
are to be taken
therefrom
inferences
tions and die reasonable
388,
Defendants v. funds as in United States ownership equitable allege 515; Russel, Fergus 30 S.Ct. Carter, U.S. 54 L.Ed.2d Holten, 130; 287 Ill. or the enforcement People Ill. N.E. Com., Public Building as in Paepcke property a trust 11. 263 N.E.2d Ill.2d insufficient in that it fails to complaint is also contended
It to the in- contrary did anything the defendants allege act, wrongful was a and that no facts that there terests of influence to aid Everett. an exercise of power show defendant did state that statutes at least one that the motion of noteWe in question. during period were enacted horse racing related to *4 officials public occupy positions agreed been long has It trust. public trust and the holder thereof cannot is a public office
“A public and are profit; for a officers indirectly personal it or irse directly in in themselves a which position personal place permitted not
571 owe they interest come into conflict with may 308, at 1037 public.” (46 (1928).) § C.J. Officers Incident to said trust: whom by people stand in a to the fiduciary relationship
“They
v.
City
(Jersey
have been elected
serve.”
they
appointed
and
584,
8,
115
18
Hague
589-90,
11.)
A.2d
(1955),
N.J.
that of
The
the State is
principal
between State official and
relationship
The
has
agent
relationship
and trustee and cestui
trust.
que
v.
in
83
the common
Williams
(1957),
described
founded
law.1
981;
34, 315 P.2d
v.
Co.
Burlington-Bristol Bridge
(1952),
Ariz.
Driscoll
201;
584, 115
8
18
433,
City
86 A.2d
Jersey
Hague (1955),
v.
N.J.
N.J.
8;
City
443,
A.2d
Panozzo
“Tire interests of large tolerate, any will not under public justice circumstances, that a official shall or ad- retain any profit he vantage which realize may acquirement an 286, 306, interest conflict his 217 U.S. fidelity agent.” 769, L.Ed. 775-76. 1871, Since Illinois has a statute had nature defining fiduciary 1971, 102, office.2 Stat. 3(Ill. Rev. As amended par. 3) 1949, it provides:
“No person office, either holding any election or appoint ment under the state, laws or constitution of this may any interested, manner either or his directly indirectly, name own or in the name of other any person, association, trust or corpora obligations concepts “These are not mere theoretical or idealistic abstractions of practical effect; they obligations imposed no pub force and are the common law on lic officers entering public and assumed them as a matter of law office.” Jersey City Hague 584, (1955), 115 A.2d 12. N.J. Act, January We conclude that Governmental Ethics effective does obligation not explicitly create a new but states more status of equity long par. has Stat. Rev. asserted. 601—105 " seq.) et opportunity’ purchase, any Section 1—105 includes: ‘Economic means sale, lease, contract, option, arrangement involving property or other transaction legislator gain wherein services an economic in benefit. term shall not gifts.” clude provides: Part Legislators”. 1 of article 3 of that Act “Rules of Conduct for Section legislator may accept 3—102 any opportunity, of that Act: “No economic under cir- possibility where knows should circumstances know that there is a substantial being opportunity him with intent to his afforded influence conduct performance of his official duties.”
tion, making work in the any tire of performance contract or any in. act or vote. upon or of be called which such officer letting * * * receive, or to take such offer Nor officer take or may any or or other receive, directly indirectly, money thing either any action his vote or valué as a or bribe or means gift influencing of of # * *” in his character. (Emphasis supplied.) oficial not liability require The of do principles related equity fiduciary . to the The of actual harm or measurable discovery injury public. Restatement a of that who (1963) provides fiduciary Restitution § received of his ‘bolds a profit upon violation what receives duty constructive trust for Comment c explains: the beneficiary.” rule is applicable profit stated in this Section although
“The is at the of the beneficiary. not expense ** * ra]e stated in those stated in the Section, this like other Sections in is based on harm done to the Chapter, this not case, rests a broad beneficiary upon principle but particular of a of interests the minds of preventing conflict opposing fiduciaries, whose it to act benefit of duty solely beneficiaries.” of funds trust public
In such tire or a of light ownership, public prop In United States is not the criteria followed courts. erty controlling 329 F.2d full 1964), v. Drumm Cir. defendant was (1st employed For some 5 poultry inspector. years during employment time as “consultant” by also as a businesses' he in engaged he was $35,000 In of earned as such con accounting action for an an spected. directed verdict for defendant was reversed. sultant, a The court said that there was could conclude such a conflict of interest as jury impartial in Wil compromise position inspector. Again, 315 P.2d v. State 83 Ariz. it was the (1957), duty liams Federal land for the procure Land Commissioner State. He pro State land, land, associated Federal not for himself any some cured it at a He was held liable to stranger profit. sold to a account for of interest as was a conflict with his there land procure the profit State. 115 A.2d (1955), v. Hague plaintiff Jersey City In N.J. trust upon a constructive of the defen- property to impress sought $15,000,000 to recover sums alleged to have been in an amount dants “kick-back” from salaries as of municipal defendants obtained One count of the years. of- complaint period over a employees extorted from wrongfully employees had money court reversed the order of the employment. condition a as city remanded, saying count dismissing
573: realized theory constructive trust was for profits the defendants officials.
Since is not. officials defining responsibilities .rule based upon harm equitable principles done necessarily but officials, a conflict there preventing interests in the minds opposing persuasive is.'little the contention that the fails weight complaint allege facts which disclose that was con- defendants did anything trary interest, acts, are, were, that there wrongful which disclose United an exercise of In power or influence to aid Everett. States v. Drumm if (1st Cir. 329 F.2d the court noted that 1964), *6 evidence, the evidence a breach fiduciary showed the absence of duty, the that inspector passed bad In United not bar poultry recovery. Carter, v. 286, 515, 217 769, U.S. 54 L.Ed. 30 it con- States S.Ct. was that the evidence showed that the official tended the work managed by the who received secret profit well done performed satisfactorily.. was The court said:
“It a dangerous would be un- precedent to that lay down law less some shown, affirmative fraud or loss can the agent may be on hold secret any benefit he out may be able to make of his 286, 217 agency.” 306, 54 769, U.S. L.Ed. 775. Again, we note 1971, that the statute defining Stat. bribery3 Rev. (Ill. that, 38, par. ch. contains 1) language similar substantially 33—
statutes concerning
(Ill.
1971,
102,
officers
Rev. Stat.
In
par. 3).
circumscribed area of a prosecution for
it is
it
held that
is im
bribery
the acts for
material whether
which the bribe
given
was
are performed.
Patillo,
v.
386 Ill.
54
566, N.E.2d
It
(People
548.)
is said
the gist
that
charge
bribery
is
acceptance of a
of value
thing
to influence
Clemons,
481,
action.
v.
(People
26 Ill.2d
187
N.E.2d
We
260.)
not conceive that
equitable
do
doctrine of restitution
official in
must
status
more
operate
strictly.
It
argued
is
that this action may
brought
be
by the
only
Attorney
Our statutes do not
General.
so
specify. Upon
date of the complaint,
4
“An
in regard
section of
Act
to attorneys general and
attorneys”
states
par.
Rev. Stat.
its
4) provided in
relevant
that
portions
represent
General shall
(1)
people of the state before
in
all cases in
supreme
which
state or the people are.in-
person
bribery
“A
commits
when:
'
#
#
#
d¡
receives,
agrees
accept any property
personal
He
retains or
advantage
or
accept knowing
law to
personal
not authorized
property
or
advantage
promised
was
or tendered
intent
per-
cause him to influence the
any
employment
act related to
any publics
formance of
or function
officer,
* *
employee
juror;
or
terested;
use
for the
institute and
“in
of and
actions
favor
(2)
prosecute
any
be
the duties of
state which
may
necessary
execution
officer”;
officer
his official
against any
defend actions
state
(3)
state
Attorneys
(5)
to consult with and
State’s
capacity;. (4)
advise
other
law.
any
required
attend and
him
perform
Sonnemann,
Saxby
600,149
comparable
318 Ill.
we find a
In
N.E.
for
member of the
for
accounting against a
proceeding
legislature
as an assistant
his term as
attorney general during
salary
The court sustained
member of the
awarded
legislature.
Corp.,
See also Kruse
Strearmcood Utilities
34 Ill.
salary.
100,
In
held
citizen and a
an action for
taxpayer may bring
equity
that a
In
trust
land.
that it was not necessary
enforce a
holding
damage
have a
court over
special
such plaintiff
supreme
injury,
Kerner,
Droste
34 Ill.2d
As stated N.J. restitution, law principle both at development “[T]he as a remedy and in breach his public official of equity, *7 Restitution, has been fiduciary obligations obviously by salutory. to its individual cases on adaptability equitable virtue of principles seen, we have reach situations as of other beyond grasp may, on criminal remedies do justice equitable civil or principles ” * # # the somewhat distinguish comparable enjoin note and action We to monies as statute provided Stat. by the disbursement Rev. et Such provides statute par. seq.). ch. action General, either the but if by people Attorney maintained be does proceed General not the action bringing taxpayer Such is statutory leave of court. limitation provided obtain must of suits filing which would delay the indiscriminate ad prevent Scott, Co. (Strat-O-Seal funds. Manufacturing ministration does 190 N.E.2d Such hazard not in this 312.) appear Ill.2d trust and accounting. for action issues raised several motions by concerning the essential suffi- The as a matter of law have been covered the fore- complaint of the ciency discussion. going of the trial and the cause is remanded court is reversed
for further the views expressed. not inconsistent with proceedings
Reversed and remanded.
SIMKINS, concurs. J.,P. CRAVEN,
Mr. dissenting: JUSTICE The issue before this cause of court is states a complaint whether action. The said and I for several reasons. agree, “no”
First, no plaintiffs judicial have to sue the laws or standing under precedents IUinois. of the None cases cited stands for majority proposition private parties not-for-profit corporations private may initiate recover cause of proceedings on a money judgment action held Rather, State. in the cited cases private parties were aHowed to bring enjoin actions to misapplication State funds. Without on the passing desirability cause action the plaintiffs seek to establish harm to possible society they activities seek to discourage, the creation of cause a new of action of this magnitude should be the legislature, not this court.
Second, the allegations of the complaint are in nature and conclusory fail to allege facts sufficient to a cause of action. support if we
Even set aside the lack of and the standing deficiency of the what pleadings, seek here is an plaintiffs to act in a opportunity private capacity “attorneys-general” State. Illinois has no provision Moreover, private attorneys-general. this particular case un- usual in that true, if plaintiffs’ allegations, the crime charge bribery. (Ill. Rev. Stat. Plaintiffs admit 1.) that the Attorney § 33— General has asked take refused; this case and has con- sequently, plaintiffs allow to act would to allow them to usurp or the powers Attorney General State’s attorney his role as enforcer criminal laws. I allegation note an essential Finally, the defendants used —that power and influence benefit individual who made this stock
available them —is no factual supported allegations. Throughout there were stated no period, significant changes in statutes governing racing. (See harness Ill. Rev. Stat. 1959 et 8. 37s. seq.) § defendants, Thus, the legislators, could have favored Mrs. Everett’s in collusion with the who only governor, interests appoints Illi- *8 Board, Senate, nois Racing which confirms such appointments, themselves, the Board who actually members assign racing dates. No conspiracy alleged. T affirm court’s dismissal of this complaint.