*1 Those cases to the are not majority’s position. helpful land, interests involve two distinct underlying acts and the surface mineral negligent rights rights. there was no in the mineral occurred rights, underlying Also, surface until the land to settle. to the began damage the first of the nature of the because operation, knowledge have of defective would be that an owner would support cases seem to be an the land. These settling that the statute of limitations the principle application run knows or should have when begins plaintiff action, the rule.” known of his “discovery right with the is also in conflict very clearly opinion recent of this Auster v. court Keck holding 63 Ill.
(No. 48929.— v. WILLIAM HOWLETT, Appellee, MICHAEL J. General, SCOTT, Appellant. 30, 1977. November Opinion filed *3 Scott, General, William of Attorney Springfield J. Terrazino, and Imelda R. (Paul Bargiel Assistant J. General, Witwer, Attorneys Samuel W. Assis- Special tant General, Attorney of of for the Chicago, counsel), People. Ellis, Reuben,
Kirkland & of H. Thomas Chicago (Don F. O’Neill, and William P. Ging, of for counsel), appellee.
MR. UNDERWOOD delivered the opinion JUSTICE of the court: 1976, Walker, Daniel then months of early
During Illinois, Howlett, Governor of and Michael then Illinois’ J. State, were candidates for the nomination of Secretary Governor, the Democratic for office of party Stackler, E. Governor Ronald by previously appointed as Walker Director of the Illinois Department Registra- office, tion and and then on leave from that was Education a candidate for the same as nomination Attorney party’s Scott, Illinois, General. General of William J. Republican for the candidate nomination party for the office of General. as a full-time
Michael had been employed until his executive Sun Steel from by Company of this State in election as Auditor of Public Accounts 1960, at he from his as which time resigned position he served company. years vice-president During $15,000 State he received as Auditor and Secretary per Sun services as Steel Company from year was disclosed consultant. of that by Receipt compensation reports filed State of his annual him each 1975, 127, Stat. ch. of Ethics Rev. Board par. (Ill. 101(b)). 604A — Hewlett's election Secre Subsequent created Vehicle of State in new tary legislation Board, of State was to the Secretary Recycling 95½, Stat. ch. serve as chairman. Rev. (Ill. par. et concerned with the This board is 4—300 seq.) primarily vehicles from efficient removal of abandoned highways and streets and with recycling wrecking, salvaging S. is owned M. Steel thereof. Sun wholly Company or or owns which also partially wholly Company, Kaplan companies in various several other steel controls engaged business of the steel industry. principal phases steel, a iron and major involves scrap Kaplan companies abandoned, or obsolete is wrecked of which source been which have automobiles junked. election, Director Stackler *4 the
Prior to March primary Howlett the by Secretary receipt publicly charged as Auditor $15,000 his years the during per year of State consti- (1972-1976) Secretary (1962-1972) State of to the Illinois tuted a conflict of interest entitling Walker the Governor Secretary. recover those funds from de- Director Stackler’s publicly supported charges action General institute a civil Scott manded Attorney the the to recover Secretary payments against the benefit the State. Considerable publicity given media, on and demands in news February charges of a General Scott announced Attorney appointment Davis, court, H. of this Charles “to retired former member head an team to determine there whether up independent is basis for Governor Daniel Walker’s any legal suggestion that a civil be suit considered recovery Secretary regarding of State Michael with Sun Mr. Howlett’s Steel.” position Davis died later, several weeks on 4 the and March Justice General announced the aas Attorney Special appointment Assistant Burt, General of F. Marvin a former circuit who at one time had been to service judge assigned court, on this out That carry original purpose. announcement stated “the is to be made report Burt as soon as it is Judge completed.” to the was delivered completed 41-page report General on 1976. It was based substan- July on facts as tially Howlett and given by Secretary Walker, Governor both whom cooperated fully during in detail recited the factual investigation. report background charges against concerning Secretary issues, earlier summarized herein. It three discussed con- that no conflict interest existed while cluding Secretary Howlett was Auditor. It also concluded there was an stalemate” on the “evidentiary question Secretary’s involvement with and for two support pieces legislation have would reduced costs of some scrap automobiles. The con- processors did junking clude, however, that a conflict of interest arose when Howlett, duties, his official performing became chairman of the Vehicle Board. Recycling (While *5 used, the to it
not Board had available sums large enterprise private which it use to could subsidize money recom- and automobiles.) report removing recycling that the General action until this mended delay Attorney recent court had its review two completed appellate on the conclusions were court decisions which report’s released this General based.' substantially Attorney 20, 1976, a the news media to on July report that the action be recommendation summary reiterating delayed. filed in the circuit later
Two Secretary days for his court of Cook declaratory County complaint and General as defendant judgment Attorney naming first arose when the that the controversy alleging a his intention to General announced special appoint that had to assistant charges; plaintiff investigate to all by investigator; completely responded inquiries interest existed a conflict of but that concluded report the outcome of cases await recommended that action legal court; that before this report publicly pending caused the release released that timing and cast to unfavorable substantial plaintiff publicity shadow of over him and his suspicion campaign, endanger- office; be a and that to candidate ing right threats an of an imminent suit created immediate and to irresolvable over retain his controversy plaintiff’s right A to the fees. was annexed consulting copy for a declaration that no conflict which complaint, prayed to retain of interest existed and that was entitled plaintiff received him from Sun Steel. all annual payments by 28, 1976, filed a motion for On July plaintiff he did not summary dispute alleged report, set in the and that material facts forth any General there was issue fact. The no genuine on moved to dismiss complaint alleging August inter alia did not present justiciable matter, i.e., it an sought and that no advisory opinion; actual justiciable then existed. The motion controversy dismiss was denied and an answer filed on August certain denying strict allegations demanding proof others. A counterclaim was also filed against Secretary Howlett, M. S. joining Kaplan Sun Steel Company additional a declaration parties, seeking Howlett held the received him payments from M. S. *6 and Kaplan affiliates, its he while Company was Secretary State, as constructive trustee for the seeking a full The counterclaim accounting. that alleged plaintiff’s of those receipt payments breached his fiduciary obliga- tion to the public.
Plaintiff moved to dismiss the counterclaim on Sep 1, motion, tember and that together plaintiff’s motion for was allowed one summary week judgment, later. We the General’s motion for direct granted this to court under Rule appeal Ill. R. 302(b) (58 2d 302(b)).
While the have briefed the merits of parties argued counterclaim, defendant’s in our it view is to necessary discuss the of the trial court’s denial of the only propriety motion to dismiss the declaratory judgment.
Our statute actions authorizing declaratory judgment cases, relief in permits declaratory and the only justiciable existence of an actual is essential. Rev. controversy (Ill. 1975, Stat. ch. We have discussed par. 57.1.) recently the of an actual requirement controversy Underground Contractors Association v. City 66 Ill. Chicago (1977), 371. There we said: 2d “ ‘Actual’ in this context does not mean that a must have been committed
wrong injury Rather, inflicted. it the requires showing facts and issues of the case are not underlying moot or so as to the court to premature, require on mere abstract pass propositions law, render an or advisory opinion, give legal to The case
advice as future events. [Citations.] must, therefore, a concrete ad dispute present anof immediate and definitive determina mitting the of which tion of resolution parties’ rights, will aid in the termination or controversy ” part some thereof. (66 ) [Citations.] 375.
In our action was judgment, plaintiff’s brought actual It is clear no prematurely. entirely controversy an assistant existed on An by July report investigative serve to create an actual to cannot ordinarily supervisor or matter to some indication controversy justiciable prior the course of action he intends to as to by supervisor Pollution Control Inc. v. take. Supermarket, (Gromer Board There was no 6 Ill. 3d 1036.) App. General of an intent indication by trust action constructive prosecute against from the of State. No such intent can be inferred interim, contained recommendations investigative assistant, when made particularly special that a conflict of its states that findings report expressly court interest existed are bottomed two upon appellate *7 of new decisions somewhat equi applications “providing further action and recommends table any principles” which were then of those cases await outcome pending before this court. statutes, like our
The Federal declaratory relief statute, of make the or denial declaratory grant v. Bank Peoples the court. with (Eccles discretionary 784, L. S. Ct. 426, U.S. Ed. 68 333 641.) 92 (1948), our Comments declaratory Committee judg upon Joint that “the the intent statute state granting ment expressly relief even when controversy or of declaratory denying is discre part settled thereof will be thereby or some 57.1, Stat., 110, ch. Ann. with the court.” par. (Ill. tionary is That intent Comments, at 131 (1968).) Committee Joint 143 of the the first of subsection sentence (1) reflected of actual cases “may, statute the court stating of make declarations (Em controversy, rights.” binding A discretion exercise of judicial sound phasis added.) a to us to dismissal of would necessitate complaint appear were of a declaration upon dependent seeking rights a cases. Such of then but undecided decision pending a does not concrete dispute admitting “present definitive determination an immediate and as Contractors Association Underground parties’ rights” are 371, result asimilar 2d requires 375). Dictating (66 cases those unsuitability, ordinarily, indicating in a in areas where the is actions law declaratory judgment Cincinnati state United States v. e.g., (see, developmental Transit, F. as the Inc. Ohio 337 1068), (S.D. 1972), Supp. was true assistant General’s indicated Relevant, too, Howlett had is the fact here. whatever Sun Steel and terminated his relationship a declaration were fixed. Normally, existed rights is not a function conduct nonliability past Brothers, statute Cunningham (see declaratory judgment 1165, 1169, cert. Inc. Cir. 407 v. Bail F.2d (7th 1969), 745, 959, L. 89 S. Ct. Ed. denied U.S. 2d (1969), 2100; Hanes Cir. Corp. Millard F.2d v. (D.C. 1976), institution those for in cases defendant’s 585), potential plaintiff of action potential declaratory deprives and, so, if when file, he will to determine whether right the status of and where. because Finally, plaintiff’s not determined with certainty, could have been conduct have noted, entered would at best earlier any judgment no Illinois have been an judges advisory opinion, 28 East to issue advisory authority opinions. Jackson 426; 65 Ill. Inc. v. Rosewell 2d Enterprises, (1976), 6 Ill. Cook County National Bank v. Exchange dismiss stated, hold the motion to reasons we For the *8 144 should have been allowed.
We difficulties do practical campaign recognize when Governor and confronting Secretary the later when Director made and charges fre released. Unfortunately, political campaigns publicly which cannot be to criticisms candidates subject quently all, the available time if at answered within adequately, But, even declaratory limitations. judg assuming an ment be could procedure conceivably appropriate these, it is means of such completely resolving problems in this case it is an method clear that not appropriate dependent on future of the were where parties rights not, at the time of the this court and were decisions by action, susceptible of accurate determination. trial court office which to a candidate may public prejudice conduct, and candi result from improper charges to secure a final determination date’s inability to the election which he of those propriety charges prior candidate, well our is a be unavoidable system may on the force of an which is government, dependent largely informed as to the opinion quality government officials, free and unfet service rendered by public Barr v. Matteo tered action public’s representatives. 1434, 1444, 564, 572, L. 79 S. 3 Ed. 360 U.S. 2d (1959), York New Times Ct. J., 1342 concurring); (Black, 254, 11 L. 84 U.S. Ed. Co. v. Sullivan 2d (1964), 1, 11. 710; S. Blair v. Walker Ct. in the representations pleading chronology was filed the counterclaim briefs indicate defendant’s motion the defendant’s trial court denied because the only fact, ruled the trial court properly In had to dismiss. not have could a counterclaim dismissed complaint, Ford Cir. F.2d 227.) v. 1938), been filed. (5th (Ford the merits to discuss it is unnecessary Accordingly, the counter- to dismiss the motion court’s on trial ruling & Trust Co. Bank National v. American claim. People *9 reasons, For the reverse the we foregoing judgment the circuit court of Cook the cause remand County, to vacate its directions order September and to allow the motion to dismiss dismiss the proceedings. remanded,
Reversed and with directions. MR. DOOLEY, dissenting: JUSTICE This has its in our recent proceeding genesis gubernatorial majority campaign. opinion aptly describes nature this case. political That the lost its with the election is litigation vitality obvious from the this before court. Counsel proceedings both have waxed in their parties representing eloquent man, of Michael Howlett the and Michael description J. J. servant of the with an long-time public admirable record for as a integrity capability official.
It would seem mortis overtook what issues there rigor were in this case on election November 1976. This day, cause to be interred. ought
I would dismiss the as moot. proceedings
(No. 49033.— ILLINOIS, OF THE STATE OF Appellee, THE PEOPLE McKINLEY, v. ROBERT Appellant. 30, 1977.
Opinion November filed