Patteson v. City of Peoria
| Decision Date | 15 April 1943 |
| Docket Number | Gen. No. 9845. |
| Citation | 318 Ill.App. 245,47 N.E.2d 867 |
| Parties | PATTESON ET AL. v. CITY OF PEORIA. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Peoria County; Henry J. Ingram, Judge.
Action by May H. Patteson and others against the City of Peoria, a municipal corporation, for sums allegedly due under the Policemen's Minimum Wage Act. From a judgment of dismissal, plaintiffs appeal.
Affirmed. Londrigan & Londrigan, of Springfield, and Michael A. Shore and E. V. Champion, both of Peoria, for appellants.
C. E. McNemar and J. Edward Radley, both of Peoria, for appellee.
Appellants, each claiming to have been a member of the regularly constituted police department of the City of Peoria, filed a complaint in the circuit court of Peoria County against appellee, seeking judgment for the difference between the amounts paid them, respectively, and the sum of $175 each, per month, subsequent to July 13, 1937, the effective date of the Policemen's Minimum Wage Act (Ill.Rev.Stat.1939, chap. 24, pars. 860a, 860b). The defendant's motion to strike the complaint for an alleged misjoinder and insufficiencies was overruled, an answer was filed, and a motion of the plaintiffs to strike certain portions thereof was likewise overruled. The cause was heard by the court without a jury, and at the close of the testimony for the plaintiffs the court granted the defendants' motion to dismiss the suit and entered judgment in bar of the action, from which judgment the plaintiffs have prosecuted this appeal.
The act under which appellants claim, as in force during the period in controversy, provided:
These provisions, without substantial change, were re-enacted in the 1941 revision of the Cities and Villages Act (Ill.Rev.Stat.1941, chap. 24, pars. 11--1, 11--2). The City of Peoria is within the designated class, and each of the plaintiffs was paid less than $175 per month during the time of her employment.
The complaint consists of six counts, respectively relating to each of the plaintiffs. Each count alleges that the plaintiff named therein “was a member of the regularly constituted police department of said defendant, sworn and commissioned to perform police duties in the said City of Peoria, from the 13th day of July, 1937,” to the time when such employment was ended, ranging, in the different counts, from February 15, 1940, to June 9, 1941.
None of the counts names any particular position claimed to have been held by any of the plaintiffs. They claim, and testified they held, during the period in controversy, the following positions, respectively: May H. Patteson and Hannah Dunne, policewomen; Iva Hagerty, police matron; Grace Fleming, night police matron; Elsie M. Dempsey and Irene McDonald, clerk of identification bureau. Each of the plaintiffs introduced in evidence a purported commission issued to her by the Board of Fire and Police Commissioners of the city, for the position she claims to have held, and a certified copy of her bond and oath. Most of these documents were admitted in evidence over objection of the defendant.
Plaintiffs also introduced in evidence, over objection, a section of the city ordinances, which provides:
Each of the plaintiffs testified to her duties, and the activities performed by her in the discharge thereof. Without detailing them it is enough to say that the title of each position indicates its duties. It was stipulated that for each of the years 1937 to 1941, both inclusive, the appropriation ordinances of the City carried items for two police women and two matrons; for the first two years mentioned, appropriations for two clerks of the identification bureau; and for the last two years, appropriations for two clerks of the records department. Appellee preserved an objection to the appropriation ordinances as incompetent, immaterial and not tending to prove the issues. None of the amounts appropriated was equal to the amounts claimed by appellants.
Appellants claim that the definition of “policeman” in section 1 of the act embraces any member of a regularly constituted police department, commissioned and sworn, and is not restricted to the particular positions thereinafter named; that the words “and includes” are words of enlargement, used in the same sense as “and also”; and that therefore they were members of the police department within the terms of that section. They also claim, as to Iva Hagerty and Grace Fleming, that the Policemen's Minimum Wage act modifies, by implication, the power of the city council, under the Police Matrons' Act (Ill.Rev.Stat.1939, chap. 24, pars. 837, 838), to fix salaries of police matrons, and that such power is subject to the limitation that such salaries cannot be fixed at less than $175 per month. Appellee takes the opposite position.
Questions which are not determinative of the scope of the statute will first be considered. Appellee urges that the complaint is insufficient in sixteen specified details, and would not sustain a judgment for appellants, had one been rendered in their favor. To set out the several denials and affirmative allegations of the answer would unnecessarily encumber this opinion. All material issues are raised by the allegations of the complaint and answer and the law is that defects in pleadings may be aided by the pleadings of the opposite party, and are thus cured by intendment after verdict. Gerke v. Fancher, 158 Ill. 375, 380, 381, 41 N.E. 982;Cottrell v. Gerson, 371 Ill. 174, 179, 20 N.E.2d 74. Furthermore, appellee has not assigned any cross error as to the denial of its motion to strike the complaint, which is a prerequisite to have that matter considered on review. Forest Preserve District v. Chilvers, 344 Ill. 573, 176 N.E. 720;Morgan v. County of DuPage, 371 Ill. 53, 58, 20 N.E.2d 40.
Nor is appellee in any position to urge its contention that there is no proof that the city ever adopted the Fire and Police Commissioners' Act (), by a referendum as specified therein, and that there is no proof that any fire and police commissioners were ever appointed in the city. The answer to the complaint affirmatively alleges that the police department of the city consisted of ninety-one members, every one of which was duly appointed by the Board of Fire and Police Commissioners of the city, thus recognizing the legal existence of the board. As to Iva Hagerty and Grace Fleming, the answer alleges they were appointed by the then mayor of the city, pursuant to the provisions of the Police Matrons act.
In Reed v. City of Peoria, 47 N.E.2d 863, we held under the provisions of Section 12 of the Fire and Police Commissioners' Act, as amended (Ill.Rev.St.1941, chap. 24, par. 14--11) the petitioning firemen were city officials and entitled to the protection afforded by that act.
This leaves for consideration the question of what construction is to be given section 1. The word “include” is obviously the determinative word. The meaning of the word “include” or “including”, employed in various statutes and other instruments, has been considered by courts of review in this State and other jurisdictions. An analysis of the cases demonstrates that the issue in each case was not settled by any hard and fast definition of the word used, but by ascertaining and applying the intention of the legislature to the particular statute, under the recognized rules of statutory construction, or the intention of the maker of the specific instrument involved.
In re Harper, D.C., 175 F. 412, 423, cited and relied upon by appellants, involved a provision of the Bankruptcy Act of 1898, c. 541, par. 1a, 11 U.S.C.A. § 1(11), that the word “ ‘debt’ shall include any debt, demand, or claim provable in bankruptcy.” The court said in the opinion:
In Wyatt v. City of Louisville, 206 Ky. 432, 267 S.W. 146, it was held that a statute authorizing a city to reconstruct sidewalks, including curbing, at the cost of the abutting property owners, gave power to construct either. Under that statute the intention of the legislature to include either sidewalks or curbing was specifically expressed. The holding...
To continue reading
Request your trial