*1 Young, Sr., Plaintiff-Appellant, James C. v. James A. Hansen, Elgin, Illinois, Chief of Police Miller, Luecht, Lt. Charles P. Kenneth Officer Officer Lund, Grantham, Richard Robert Officer Al Officer Heneise, Schroeder, L. R. L. Officer Robert W. Brunton, City Illinois, City Manager Co., Elgin, Municipal Corporation, Elgin Y & C Cab Inc., Corporation, Lowry, Darnell Edward and Ward Defendants-Appellees.
Gen. No. 68-174. District. Second July 3, 1969. l *2 dissenting. MORAN, J., Puklin, Chicago, Karton, Edward
L. Louis Elgin, appellant. Brittain, Imming,
Morgan, John P. Calla- Ketcham & han, Jr., Abbott, Elgin, appellees. D. Gordon opinion of
MR. JUSTICE delivered the DAVIS court. Young, plaintiff, Sr., commenced James this C. declaratory against municipal judgment
action for a City defendants, City Brunton, Elgin, Man- Robert L. ager Elgin, Hansen, James A. Chief of Police of the Miller, Lt. P. Kenneth Officers Charles Lund, Luecht, Grantham, A1 L. Richard Robert Schroeder *3 City’s Force, Heneise, and R. of that Police W. members against Elgin Inc., and Co., also Y and two of its & C Cab agents Lowry. employees—Edward and Darnell and Ward together municipal defendants, Co., The and the Cab Lowry, dismiss, separate and filed Darnell motions plaintiff were allowed. The elected to stand his against complaint, judgment and entered him. This appeal followed. only questions
The pleadings. raised are based on the essence, alleged plaintiff’s complaint In that the plaintiff operator’s registration had received an card City Elgin, permitting operate a from the him to taxi- City, engaged cab business and that he had been operating his cabs until March de- when the fendant, Hansen, registration operator’s card, revoked his allegedly guilty because the had been found disorderly April 27, charges, conduct on Other 1967. however, against apparently pending were complaint on the The date of the revocation. also out set governing of the municipal the issuance ordinances registration operator’s cards. registration card provided that no
The ordinances
good
any person
moral char-
should
issued to
not of
acter,
Motor
repeated
of the Illinois
who is
violator
registration
Laws;
“Operator’s
cards
and that
Vehicle
and cancelled for
of Police
shall be revoked
the Chief
The
repeated
laws or ordinances.”
violations
traffic
charges
alleged
had
complaint
no
further
that
written
hearing
plaintiff;
no
had been
on the
that
been served
revocation;
plaintiff had
and that
prior
held
registra-
operator’s
the restoration
of his
demanded
Brunton,
defendants,
card,
Hansen and
tion
but that
rejected
had
to restore it.
demands and
refused
had
his
allegations
conspiracy
complaint
The
then
forth
set
alleged
they
defendants,
en-
part
and
on the
of the
maliciously to
conspiracy
harass
into
and scheme
tered
operation of his taxicab busi-
persecute him in the
and
business,
ness,
destroy
the value of
his
guise
they wrongfully
justification, under the
and without
enforcing
of Illinois and
of the State
statutes
prosecuted
arrested
ordinances of the
of his
procuring
the revocation
the intention
him with
registration
eliminate him as
card in order to
operator’s
Co.,
defendant, Elgin
Inc.
Y & Cab
competitor
C
conspiracy
then
were
in furtherance
Various acts
alleged.
prayed
a declaration that
operator’s
his
to a restoration of
plaintiff be entitled
injunction
the de-
registration card;
an
to restrain
against
plain-
engaging
in a
fendants
business;
separate
for a
trial
destroy
tiff
*4
damages
plaintiff,
due
sustained
to
determine the
alleged conspiracy.
charge
that
municipal
The
declaratory judgment
remedy
a
not entitled
seeking
really
remedy
in a manda-
a
available
that he is
money
act,
injunction
and an action for
action, an
mus
4
damages.
charge that a declara
The defendants’ motions
tory judgment
provide
intended to
a
action
recog
remedy
existing, adequate,
there are other
where
Goodyear
remedies,
they
nized
cite:
Tire & Rubber
Tierney,
430,
(1952) ;
421,
222
Co. v.
Ill
NE2d
Goldberg
America,
383,
Corp.
App2d
v.
Ill
Valve
(1967);
1967, 110, 57.1) par inapplicable merely c does not become relief or because remedies other than a declaration of rights sought. (1) provides are Subsection that a dec rights may any laration of be made “whether or not consequential relief is or could claimed.” be Subsection (2) provides rights that the relief of a declaration of may sought alone, part “or as incident or seeking . . . other relief as well . . . .” Sub (3) granting section relates further relief based rights a declaration of after the declaration has been made.
The Historical and Practice Notes to section 57.1
(SHA
110, pages 126-135)
ch
indicate
the declara
tory judgment remedy provides
new, additional,
cumu
lative
procedural
judicial
alternative
method for the
rights
may,
determination of substantive
and duties. It
may not be
that mandamus action could have afforded
at
part
sought; but,
least
of the relief he
so,
availability
remedy
even
of such a
is not suf
right
declaratory judgment.
ficient to bar
seek
In American
Chicago,
Civil
Union v.
3 Ill2d
Liberties
(1954),
The
complaint
legal dispute
details
between the
and the
suf
several defendants
ficiently, in
regard,
this
to withstand a motion to dismiss.
availability
The
of other remedies and
intention to
relief,
obtain
by
additional
prayer
as evidenced
complaint,
preclude
by
do not
the form of action chosen
plaintiff.
language
The
of the statute and the inter
pretation given
purpose
our
evince a
courts
to main
.it
scope
declaratory
tain the
judgment
relief broad and
liberal and not restricted
technicalities.
If there is no
particular
denying
procedure
reason
the use of this
remedy
available,
when
declaratory judg
another
is
ment action should also be available. Elm
Ceme
Lawn
tery
City Northlake,
392,
App2d 387, 391,
Co. v.
94
Ill
(1968);
The provisions forth sets of the ordi- nance, registration state that card be re- shall repeated voked and cancelled for of traffic violations laws alleges or regis- It further plaintiff’s ordinances. that the tration 17,1967, card revoked on March on was the stated ground disorderly finding—which of one conduct took place April 1967, approximately one month after registration seemingly card revoked. in- This congruous allegation explained allegation is later pleaded guilty charge, that the had earlier receiving plea assurance would not be any away used as the basis action to take licenses engage permits in the taxicab business. com- plaint asserts that the action the result of the con- among defendants,
certed several it specifically allegedly enumerates a number acts done *6 conspiracy. as a result of and furtherance of the acts, These forth in the com the facts set sufficiently plaint, particular are to state cause of ac By very nature, conspiracy, exists, tion. if one its normally object being precludes the one who is its from charge, complete position particularity, in a case, alleged conspiracy. details of the In a civil the acts pursuance conspiracy, have done in been of a itself, gist are B. Paul of the action. R. Lee, Co., App2d sen & Inc. v. 95 Ill at (1968); Sales, Inc., NE2d Jet Ammons v. Credit 465, 181 App2d 456, (1962). Ill NE2d 601 believe that We plaintiff’s complaint, seeking by relief means of declaratory judgment alleged from the con effects spiracy put business, him out taxicab states good cause of action. municipal moved defendants also to dismiss the grounds
complaint on the of the Local Government Employees Immunity (Ill Governmental Tort Act Rev 1967, 85, 1-101, par seq.). c Stats et The defendants cite following sections of this Act: Except by
“Sec. 2-201. provided as otherwise Statute, public employee serving position in a in- volving the policy determination of or the exercise resulting of discretion injury is not liable for an determining his act or omission in policy when acting in the though exercise of such discretion even abused.” public employee
“Sec. 2-206. A is not liable for injury by an caused issuance, denial, suspension by or revocation of issue, or his failure or refusal to deny, suspend any revoke, or permit, license, certifi- cate, approval, order or similar authorization where by he is authorized enactment to determine whether denied, issued, not such or authorization should suspended or revoked.” entity public
“Sec. 2-104. A local liable for is not injury suspension issuance, denial, an caused issue, of, or revocation or failure or refusal to license, deny, suspend revoke, any permit, or cer- tificate, approval, similar authorization order or entity employee where the or authorized its enactment to determine whether or not such au- denied, issued, suspended thorization should be revoked.” very dealing
There have been
with the
few cases
scope
meaning
Immunity
An
Act.
extensive
analysis
Liability
of the Act is found in Tort
of Local
Employees:
Governments and their
An Introduction to
*7
Immunity Act,
Baum,
the
Ill
Illinois
David C.
1966
Law
immunity
points
Forum 981. The author
the
af
out that
by
exercising
public employee
forded
to
section 2-201
in
determining policy,”
discretion is “in
and concludes that
immunity
fairly high
this
protect
is intended to
level of
making important
ficers in
policy
(P
determinations.
999.) The
points
author further
court de
out that
the
previously
cisions of
State had
this
limited the discre
tionary immunity
good
to
faith errors and not to instances
upon
of determinations based
malice. See: Fustin v.
Community
2,
Board of Education of
No.
Unit Dist.
App2d
Ill
(1968);
The. they malicious acts should not be actionable if fall within 2-201. immunity than section other sections specific defendants, 2-206, relied 2-104 and Sections immunity, grant with- They to purport sections. are such or denying, suspending issuing, exception, for acts out public offi- revoking where or certificate a license is of what the determination make cial is authorized conclu- that such not certain we are done. be While prior de- warranted—particularly in view sion is immunity extending cases in such State cisions of this good and not faith exercised only is where discretion par- motives—these malicious wanton or as a result of issue before determinative are not ticular sections court. this alleges en- the various maliciously to harass into a scheme
tered business; arrest his operation in the his end that him; process to the abuse prosecute destroyed eliminated he should business should be competition. Immunity provides: Act 2-202 of Section act or omis- public employee “A not liable for his is any law un- enforcement of in the execution or sion willful wan- act or omission constitutes less such negligence.” ton provides:
And section 2-208 public employee injury “A not liable for caused instituting prosecuting any judicial or *8 proceeding scope administrative within the of employment, maliciously unless he acts and without probable cause.” public policy
We believe that in view of the sound ex- foregoing pressed expressed in the in the sections prior State, public may of this official decisions not immunity maliciously hide the cloak behind of if he intentionally powers of misuses his office.
Consequently, plaintiff’s com we believe that the plaint adequately states a cause of action. The revocation registration card, charged complaint, but in carrying step alleged one final conspiracy. in out the We do not believe can afford that sections 2-104 2-206 protection charge alleged conspiracy from the in the complaint, which also acts in of the asserts furtherance type subject which are the matters of allegations sections 2-202 and 2-208. not Whether or fact, only have foundation in can determined trial the merits and such issue is not before us on this appeal. foregoing reasons, For the cause is reversed and remanded for proceedings further not inconsistent herewith.
Reversed and remanded.
ABRAHAMSON, J., concurs.
MORAN, J.,P. dissents. dissenting:
MORAN, J.,P. majority complaint concludes that filed action, herein (one states cause of in civil con- spiracy), and that the trial court erred in therefore allowing declaratory judgment to stand. disagree respectfully, strongly, I but most dis- thus sent. cursory reading A complaint, necessarily ap-
pended complete understanding, hereto for a automati- City “1. Plaintiff is the licensed owner four in the taxicabs Elgin, September 10, 1965, and on to Illinois wit received from City defendant, municipal corporation, Operator’s an Registration pursuant Card, provisions Chapter 28, (b) Elgin. Municipal 28-1302 section Code of engaged He “2. has been the taxicab under business style Top Co., individually operat- name and of Red Cab and has Elgin Regístra- Operator’s ed taxicab said until said
lo *9 attempting pleader cally impression that the raises the single-count allege of action in a separate causes three wit, year 1967, March Card, on to revoked tian No. Hansen, defendant, Chief of Police of James A. City Elgin. of ground The stated for said revocation was “3. disorderly April guilty of conduct on 1967. had been found 1301-1308, inclusive, Chapter 28, of the Munici- “4. sections Elgin relating pal hereto as Taxicabs is attached Code of part expressly made a hereof. ‘A’ and reference is Exhibit following (b), contains, 28-1302 ordinance in Section Said provision: any person registration ‘“No card shall be such issued repeated good character; moral is a is not who who regis- Operator’s Motor violator the Illinois Vehicle laws. of Police and cards shall be revoked the Chief tration repeated ordi- cancelled for violations of traffic laws or nances.’ provides 28-1308
“Section as follows: “ Any person violating any provisions ‘Penalties. this ordinance shall be fined not less than Five Dollars ($200.00). ($5.00) nor more than Two Hundred Dollars Such violations also herin shall be cause for revocation of licenses (sic) required.’ charges plaintiff. “5. No written have been served on hear- No ing prior has been held to the said revocation. Defendant, City Brunton, Manager, “6. Robert L. refused has Registration plaintiff’s Operator’s to take action to restore plaintiff’s attorney by Card and has informed letter that the action City Elgin’s Hansen ‘is final as defendant far as concerned,’ copy administration is letter is attached hereto, expressly part ‘B’ marked Exhibit made hereof. Operator’s Reg- Plaintiff demanded the has restoration of said rejected istration Card but Hansen and Brunton have his demands refuse restore said Card. alleges, upon belief, “7. Plaintiff information and there- Hansen, tofore and thereafter defendant James A. Chief of Police Elgin, Illinois, Miller, Lt. Charles P. Ken- Officer Luecht, Lund, Grantham, neth Officer Richard Officer A1 Officer Schroeder, Heneise, Brunton, Robert L. Officer R. W. Robert L. complaint—one injunctive relief, *10 another on founded mandamus and conspiracy. the third based a civil City Manager Elgin, Illinois; City Elgin, municipal of of a cor- poration, Elgin Company, Inc., Y & corporation, C Cab Ed- Lowry, agents ward Darnell and employees Ward and of said corporation, conspiracy maliciously entered into a and scheme to persecute operation harass and said in the of his taxicab business, destroy and to the business, value of his said taxicab wrongfully justification, guise and and without under the of en- forcing the statutes of the State of Illinois and the ordinances Elgin, prosecute of the plaintiff, to arrest and said and judicial process prosecution to abuse the in the of false and groundless charges and to obtain convictions of violations plaintiff of said statutes and said ordinances the with intention procuring plaintiff’s Operator’s Registration the revocation of Card and to obtain revocation of the owner’s license to ‘conduct transportation thereby business for the taxicabs,’ for hire in and competitor to Elgin eliminate as a of said Y & C Cab Company, Inc., City corporation, in the taxicab business Elgin, Illinois; agreed among and the defendants them- carrying selves to aid and abet each other in the out of the said conspiracy process and scheme. In the of said and scheme, following defendants have committed the acts: July wit, 9, 1966, plaintiff “a. On to phone received a call persons Elgin Hospital requesting at the State a taxicab transport to be sent to Elgin them to them from said State Hospital Greyhound to terminal, bus 222 Dundee Avenue operated by plain- which bus terminal is owned and plaintiff approached Elgin tiff. As Hospital, State driv- ing taxicabs, one of his operated by Cab Yellow owned and Elgin away defendant Company, Y & C Cab Inc. drove with persons telephoned plaintiff said who had and for he whom .calling. plaintiff complained After of this theft his customers, defendants, Lowry Darnell, Ward and Edward agents employees Elgin and Company, of said Y & C Cab Inc., complaints against plaintiff swore out July wit, to on 27, 1966, (1) damage property, for criminal to No. D 3474 (2) driving, and for reckless DNo. 3475. Plaintiff was ar- police rested and taken to required station and was to make appearances bond to obtain his release. After several by plaintiff period in Court months, over a of several said pleading is form of the procedural standpoint, From (Ill Act Rev Stats against Practice the Civil section wit, charges 1966 for on to October were dismissed prosecution to leave reinstate. want with Thereafter, Ward Low- on November “b. Elgin agents employees ry Darnell, Y said Edward complaints, Inc., D Company, out No. swore new & C Cab aforesaid, as D same incident based driving again charging plaintiff criminal reckless by police damage property. officer Plaintiff was served defendants, Hansen and Lund at Richard the direction police Miller, taken to station and and was arrested and again required give appearance. Thereafter bond for suggestion Attorney, Gene Mr. Assistant State’s at Armentrout, damage property charges of criminal disorderly driving *11 were dismissed and reduced and reckless a and entered and sus- conduct and pended. fine of costs was $15.00 guilty disorderly plea of conduct was not Said by plaintiff entered until he received assurances plea filing named that of said would defendants above any by be used as the of action the said defendants not basis affecting any engage permits plaintiff’s in licenses or the taxicab business. February plaintiff by wit, 23, 1967, “c. On to arrested was charged driving A1 too fast for Officer Grantham and with (No. 67M-4008). Grantham, conditions The said defendant justification, cause distorted without testified in a and resulting finding April 14, inaccurate manner in a guilty paid. costs, plaintiff and a and fine $10.00 which April 14, 1967, m., plaintiff wit, at “d. On about 6:00 a. using flag up, one was of his taxicabs with the and the taxi- plainly by stopped hire’ cab marked ‘not for and Officer was charged driving L. Schroeder and with a taxicab with- Robert having city permit, out but said officer released him when he pointed sign. express Later, out the ‘not for hire’ at the di- plaintiff defendant, Hansen, rections arrested was (sic) place said Officer L. in Robert Schoeder his busi- ness, terminal, up said and bus ordered to lock said patrol wagon into bus terminal and he was taken police given Appear (No. station there and Notice to 67M- charging 8299) driving and a him with taxicab permit. charge May 22, was thereafter on without Said separate 110, 33) c wherein it that causes § states separate may recovery action which be had shall by Judge prose- for dismissed John A. Krause want of cution. wit, 1967, plaintiff driving “e. On to June friends Elgin Hospital his to of terminal, State after he had closed the bus private car, in his wife’s not a He was taxicab. stopped Luecht, Heneise Officers R. W. and Kenneth hospital grounds guests They questioned. and his were riding police they informed the that as officers were fare-paying riding passengers, guests. but were him as with police hearing Thereupon, said officers in the and police guests, communicated to and station radio they ‘regretted they then stated to make the Appear that couldn’t charge stick.’ Plaintiff was with a Notice to served Charges as a result of said incident. have since been (No. 67M-13569) pending undisposed filed and are of on plaintiff’s plea guilty. of not applicants “f. Plaintiff has sent to defendant Hansen licenses, applied driver’s who under have for driver’s licenses (b) aforesaid, applied applicants Section 28-1302 as had employment himto taxicab as drivers but defendants repeatedly procrastinated Hansen and Miller have and de- layed applicants again and have told said to return again conditions, only proba- and have attached as that such tionary permits applicant(s) would be issued to said probationer if said should have one traffic violation within year, permit immediately one said would revoked. Such conditions are not Elgin contained ordinance imposed solely persecute been have to harass and plaintiff. “g. applicants positions plaintiff’s Various for drivers’ *12 company permits cab have tried to obtain driver’s but defend- persistently interposed Hansen ants and Miller have unwar- delays thereby discouraged and ranted unreasonable and have applicants proceeding applications said with their for operator’s applicants licenses. driver’s Various re- were permits they fused Miller that when informed defendants Hansen and they, sought plaintiff, appli- to work but said difficulty obtaining cants no have had in licenses to drive Elgin Company, C Inc., Y & Cab corporation, or for employers. other wrong separate stated in It to assert that counts. is declaratory judgment susceptible action to the is ap- Kathryn, to-wit, April 14, 1967, wife, “h. on Plaintiff’s registration
plied operator’s or for an driver’s card. Notwith- legal standing valid reason for that defendants have no they refusing to to her such a card have refused to issue only permit’ one, issued ‘conditional issue but have driving part- virtue of is a cab for which she time basis. Grey- $100,000.00 “8. Plaintiff has an investment of in the over hound bus terminal and in the four which he and taxicabs owns operates. Elgin engaged He is of in a native South and has been many years continuously there for there business and has resided until June and three 1967 and now resides with his wife children City Elgin. good reputation person He is in of is a of and being oppressed, persecuted in and harassed destroy the furtherance taxicab his of their and scheme to financially. him business and ruin “9. The refusal of defendants Hansen and Brunton to restore Registration plaintiff’s Operator’s permit and to Card him rights privileges entitled, pursuant exercise the and he (b) Municipal Elgin, deprives plaintiff to Section 28-1302 Code of right engage of his constitutional of in lawful business driving deprives thereby property a taxicab and him in his ordinance; process' violation said and due without of law provisions violation of the II 2 and 13 of Article Sections deprives property Constitution of Illinois and him of process equal protection without due law and of the of the law violation of Fifth and Fourteenth Amendments the Constitution of the United States America. justiciable “10. Plaintiff has exhausted his local remedies. A dispute controversy and an actual exists between the and City Brunton, Elgin, Illinois, the defendants Hansen and the municipal corporation, concerning plaintiff’s right Registration Operator’s rights restoration of his Card and the just proper thereunder it is therefore Court rights parties. declare the “WHEREFORE, PLAINTIFF PRAYS: “a. That the of the defendants, Hansen, action Chief of Police City Brunton, Manager, and of the a munici- *13 procedural governing same pleadings rules forms of as especially other actions. This is true consider when we the declaratory judgment fact that had in Civil its birth the creating very (Ill Practice rule Act the Rev Stats declaratory 57.1). kept c It must in mind be that § judgment remedy is a and is a cause of action cause action itself. important
More procedural aspect than the is sub- question stantive involved. Does the state a conspiracy by cause of action for civil concluded as majority? my I feel that and it does not will confine com- (although I ments to one facet there this believe to be many affirming additional trial reasons court’s decision).
pal corporation,
revoking
refusing
plaintiff’s
in
and
to restore
Operator’s Registration
may
by
Card
be declared
this Court to be
unreasonable, arbitrary, confiscatory,
unlawful,
discriminatory,
effect,
null and void and of no
in
and
violation of the Constitu-
tions of the
State
Illinois and of the United
States America.
judgment
finding
declaring
“b. That
herein
entered
and
plaintiff
rightfully
is
entitled to have said
issue to him
Operator’s Registration
pursuant
(b)
Card
28-1302
Section
Municipal
Elgin.
of the
Codeof
rights
parties
by
“c. That after the
declared
have been
Court,
injunction
aforesaid,
as
an
issue to
all of the
restrain
persecuting
op-
harassing,
within named defendants from
and
pressing plaintiff
engaging
conspiracy
and from
in a
and scheme
amongst themselves, maliciously
deprive
plaintiff
of his
said
right
operate
interfering
a taxicab and from
him in the
operation
presently operat-
of the taxicab
he
business which
ing
seeking by
conspiracy
destroy
and from
said
and scheme to
plaintiff’s
aiding
abetting
said taxicab
and from
business
carrying
conspiracy
each
other in
of said
out
scheme.
rights
parties
“d.
That after
of the
have been declared
may
Court,
aforesaid,
damages
as
a trial
be had to determine
plaintiff
sustained
herein
virtue of
the acts
de-
engaging
fendants herein
in the
in said
and scheme and
wrongful
Registration
plaintiff’s Operator’s
revocation of
judgment
Card,
may
be entered
favor
against
damages
the defendants for
as
such
shall be
entitled
found
to.”
*14
Damages
in a cause
action
is an essential element
fact,
conspiracy.
upon a civil
based
As matter
gist
damage arising
action
out of
civil
is
wrong,
conspiracy itself,
not the
that creates
270, 277,
Vilimas,
cause of action. Pustelniak v.
352 Ill
Lee,
Co.,
(1933);
v.
NE
B. R Paulsen &
Inc.
also,
146, 151-152,
(1968).
App2d
Ill
Damages, actions, may pre- in some common-law necessary sumed and plead therefore it not is same. damages Civil is not such an action. can- Since presumed, necessary not be then it becomes plaintiff plead, only not the fact that he has dam- been aged, but also the amount he believes he has been dam- aged. body Nowhere in the nor in the prayer for plaintiff relief has the set forth the amount damaged. he been has The defect cannot be by stating may interrogatories cured that defendants file discovery depositions. or take Where the fails plead necessary an element to his cause of action the result is that he has failed to state cause action. This being overly technical; it basic is as as foundation it a house. Were not for rules, the basic or substantive procedural rules, not the prevent filing what would newspaper clipping setting particular out a event place complaint? of a
Therefore, I majority dissent from opinion in this case wherein it is claimed that has stated a cause of action conspiracy. based civil