Hoagland v. Bibb
| Decision Date | 08 January 1957 |
| Docket Number | Gen. No. 10119 |
| Citation | 139 N.E.2d 417,12 Ill.App.2d 298 |
| Parties | Merle HOAGLAND, Loren R. Hoagland and Rene Hoagland, doing business as Hoagland Transfer Company, Plaintiffs-Appellees, v. Joseph D. BIBB, as Director of the Department of Public Safety of the State of Illinois, and William H. Morris, as Superintendent of the Division of State Highway Police, Department of Public Safety of the State of Illinois, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Latham Castle, Atty. Gen., Richard W. Husted, Asst. Atty. Gen., of counsel, for appellants.
DeBoice, Greening & Ackerman, Springfield, for appellees.
This is an appeal from an interlocutory order denying a motion to dissolve a temporary injunction. On October 29, 1956 plaintiffs filed a complaint against the Director of Public Safety and the Superintendent of the Division of State Highway Police of the Department of Public Safety praying for a declaratory judgment declaring Section 121.02 of the Uniform Act Regulating Traffic on Highways, being Section 218b of Chapter 95 1/2, Illinois Revised Statutes 1955 unconstitutional and for temporary and permanent injunction enjoining enforcement of the act. The act in question is commonly referred to as the Splash Guard Act. The amendatory act was passed at the 1955 session of the Legislature and was approved July 15, 1955. It became applicable to certain trucks on September 1, 1955 and applicable to all trucks on January 1, 1957. On October 30, 1956 plaintiffs gave notice to defendants that on November 1, 1956 they would appear in the Circuit Court of Sangamon County and move for a temporary injunction in accordance with the prayer of the verified complaint. On November 1, 1956 the Circuit Court with the Honorable Clem Smith presiding granted the motion and ordered a temporary injunction, restraining the defendants from enforcing the act in question during the pendency of the suit and until further order of the court. The order recites that the parties appeared by their respective attorneys and that the court was fully advised in the premises. While the record does not show any of the proceedings that occurred on this hearing, it was conceded by the Attorney General on oral argument before this court, that a full hearing was had and that the same propositions urged by the Attorney General on the subsequent motion to dissolve, were urged and considered by the Circuit Court at this hearing. No appeal was prosecuted from this order although the same was authorized by Section 78 of the Civil Practice Act, Ill.Rev.Stat.1955, c. 110, § 78.
On November 13, 1956 defendants filed a motion to dissolve the temporary injunction, setting up therein, the same grounds as a basis for the motion as were concededly urged orally at the hearing on November 1, 1956. This motion came on for hearing on November 21, 1956 before Honorable Creel Douglas, Acting Circuit Judge. After argument it was taken under advisement and subsequently on November 27, 1956 denied. This appeal was perfected from the order denying the motion to dissolve the temporary injunction. Subsequently one of the Judges of this court entered a stay order pending this appeal.
The primary purpose of notice of an application for temporary injunction is to afford a defendant an opportunity to show, if he can, that an injunction should not issue. I.L.P. Injunctions Par. 123. Here defendants have had two such opportunities before two different Judges. However, we have treated the motion to dissolve as properly made and the case properly before us for a determination of the questions ordinarily raised by such a motion and as are particularly raised by the motion in the case at bar.
It is to be observed at the outset that we may not concern ourselves with the constitutionality of the statute in question. We are limited in our inquiry to the question of whether plaintiffs' verified complaint was sufficient to sustain the order of the trial court denying the motion to dissolve. The actual merits of the cause are not before us on this appeal.
In support of their motion to dissolve defendants contend (1) the complaint does not state a cause of action, (2) there is no allegation in the complaint showing that the amendatory act is effective as to plaintiffs prior to January 1, 1957, (3) there is no actual controversy so as to make the provisions of the Civil Practice Act on declaratory judgments applicable, (4) that the allegations in the complaint of threatened enforcement by defendants are on information and belief and (5) that the temporary injunction instead of maintaining the status quo in effect defeats this purpose.
To properly evaluate these contentions it is necessary to examine the complaint. The complaint alleges that plaintiffs are owners and operators of motor vehicles of the second division consisting of various named types of trucks, trailers and tractors; that they hold a valid Certificate of Public Convenience and Necessity issued by the Commerce Commission; that they have equipped all of their trucks with and are now maintaining, rear fender splash guards in accordance with the requirements of the law as it existed prior to the enactment of the amendatory act in question; that they are informed and believe that defendants will proceed to enforce said amendatory act of 1955 against them so as to subject them to fines and penalties; that said act is unconstitutional in that it violates Section 22 of Article IV, Section 2 of Article II and Article III of the Constitution of the State of Illinois, S.H.A., and the 14th Amendment of the Constitution of the United States; that the amendatory act delegates legislative power to administrative officers without prescribing the rules, standards or limitations for its exercise; that the amendatory act is not a valid exercise of police power for eleven designated reasons; that as holders of a Certificate of Public Convenience and Necessity plaintiffs enjoy a valuable property right which they will be deprived of unless an injunction is issued because of the fact that they...
To continue reading
Request your trial
-
Peterson v. Hagan
... ... 373, 86 N.E.2d 444, 10 A.L.R.2d 436; Hyde Park Dairies v. City of Newton, 167 Kan ... 730, 208 P.2d 221; Hoagland v. Bibb, 12 Ill.App.2d 298, 139 N.E.2d 147 ... The superior court was correct in determining that Laws of 1959, chapter 294, § 5, ... ...
-
Farley v. Graney
... ... In the case of Hoagland v. Bibb, 12 Ill.App.2d 298, 139 N.E.2d 417 at page 420, the court stated: 'A declaratory judgment action will lie to determine rights under a ... ...
-
Austin Congress Corp. v. Mannina
... ... Hoagland v. Bibb, 12 Ill.App.2d 298, 304, 139 [46 Ill.App.2d 197] N.E.2d 417; Bowman Shoe Co. v. Bowman, 21 Ill.App.2d 423, 440, 158 N.E.2d 112; 3 Nichols ... ...
-
Marshal House, Inc. v. Rent Control Bd. of Brookline
... ... This in itself is no bar to the maintenance of the suits if the requisites for declaratory relief are present. Hoagland v. Bibb, 12 Ill.App.2d 298, 139 N.E.2d 417; Moore v. Langton, 92 R.I. 141, 167 A.2d 558; Peterson v. Hagan, 56 Wash.2d 48, 351 P.2d 127 ... 4 We ... ...