Berg v. City of Chicago

• Decision Date: 19 June 1968
• Docket Number: Gen. No. 50804
• Citation: 240 N.E.2d 344,97 Ill.App.2d 410
• Parties: Jacob BERG and Evelyn Zwick, Individually and as Representatives of all Licensed Motorists Residing in the City of Chicago, a Class, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation; Joseph J. McDonough, Clerk of the Circuit Court of Cook County; and Hon. William G. Clark, Attorney General, State of Illinois, Defendants- Appellees. Jacob BERG, George Wojcik, Raymond Wickert, Daniel Anschel and Nathan Fishman, Individually and as Representatives of all Licensed Operators of Motor Vehicles Residing in Cook County, Illinois, a Class, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, and Joseph J. McDonough, Clerk of the Circuit Court of Cook County, and as Successor in Office of the Clerk of the Municipal Court of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 344

240 N.E.2d 344

97 Ill.App.2d 410

Jacob BERG and Evelyn Zwick, Individually and as

Representatives of all Licensed Motorists Residing

in the City of Chicago, a Class, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation; Joseph J.

McDonough, Clerk of the Circuit Court of Cook

County; and Hon. William G. Clark,

Attorney General, State of

Illinois,

Defendants-

Appellees.

Jacob BERG, George Wojcik, Raymond Wickert, Daniel Anschel

and Nathan Fishman, Individually and as Representatives of

all Licensed Operators of Motor Vehicles Residing in Cook

County, Illinois, a Class, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, and Joseph J.

McDonough, Clerk of the Circuit Court of Cook County, and as

Successor in Office of the Clerk of the Municipal Court of

Chicago, Defendants-Appellees.

Gen. No. 50804.

Appellate Court of Illinois, First District, Fourth Division.

June 19, 1968.

Rehearing Denied July 17, 1968.

L. Louis Karton, and Harold Z. Kaplan, Chicago, for plaintiffs-appellants.

Raymond F. Simon, Chicago, for appellee and cross-appellant City of Chicago.

Daniel P. Ward, Chicago, for appellee and cross-appellant Joseph J. McDonough; Sydney R. Drebin, Marvin E. Aspen, Ronald Butler, Chicago, of counsel.

McCORMICK, Presiding Justice.

This is an appeal from an order entered by the Circuit Court of Cook County on June 25, 1965, dismissing plaintiffs' class actions. Defendants have filed a cross-appeal from an order overruling their motion to dismiss the individual complaints. Two separate actions were brought by plaintiffs in their own behalf and on behalf of others similarly situated. The suits were consolidated over plaintiffs' objections. We will consider the suits separately.

The complaint in the first action was filed by Jacob Berg and Evelyn Zwick, residents of Chicago, citizens of Illinois, and motorists licensed by the State of Illinois, on behalf of themselves and as representatives on behalf of all other persons similarly situated, as a class, and claims against the City of Chicago, a municipal corporation, and Joseph J. McDonough, Clerk of the Circuit Court of Cook County, Illinois, and alleges that the City of Chicago enacted chapter 27 of its ordinances which consist of 437 traffic regulations, which result in more than one million prosecutions, excluding parking violations, in each year since 1961; the vast majority are against resident motorists of Chicago.

The complaint further alleges that the appendix attached to the complaint shows the ordinances, their statutory counterparts, and the conflicting statutory enactments, and that all the ordinances there set forth are null and void by reason of no power vested in the City of Chicago to enact them; that the effect of ordinance enforcement in the City of Chicago invokes prosecution under civil rules of procedure in violation of the uniformity requirements of section 112 of the UART.

It is further alleged that the plaintiffs, Berg and Zwick, have been arrested by the police of the defendant City at least four times in the last sixteen months, charged with violating 27--255 and 27--202 of the traffic regulations, and that they have a direct and immediate interest in the outcome of this controversy for themselves and as representatives of the class. Plaintiffs Berg and Zwich appeared in the Municipal Court branch of the Circuit Court on May 13, 1964, and filed counterclaims raising the issue that the City was without power to enact the ordinances. The City had the counterclaims dismissed, and in the complaint the statement is made that the City did, in order to frustrate a legal determination of the issues raised, move for a non-suit in both cases.

While it is not crystal clear whether or not the two original suits have been dismissed, there is no further reference made as to any suit against Berg. It does appear, however, that a suit (W2 243--958) brought against Evelyn Zwick, in her maiden name, charging her with violating one of the ordinances involved, was dismissed for want of prosecution on December 20, 1965. The defendant was present in court.

The complaint prays that

a) An interim declaratory order be entered on the Clerk of the Circuit Court and the City of Chicago that all fines collected by them (re the Traffic Regulations scheduled in the appendix) are declared to be paid under protest and subject to repayment to the payors upon final disposition of this cause, if plaintiffs shall prevail;

e) The court declare null and void all the Traffic Regulations set forth in the appendix attached.

On September 4, 1964, after consolidation of the cases, the defendants filed a motion to dismiss the suits on the ground that the court has no jurisdiction to review or collaterally attack the judgment of the Municipal Court of Chicago; that a class action under such facts and circumstances as are presented here does not lie, and equity will not act where the remedy at law is adequate and such action will restrain the enforcement of the ordinances in question. The plaintiffs moved to vacate the order of consolidation. On May 11, 1965, the court entered an order denying plaintiffs' motion and also denying defendants' motion to dismiss the complaints; the defendants were ordered to file an answer to the complaints within 30 days. The defendants thereupon filed a motion to vacate the order denying the motion to dismiss the complaints and moved the court to reconsider and to allow said motion. Suggestions in support of the motion were filed and an answer was filed thereto. On June 25, 1965, an order was entered which stated in part:

'It is hereby ordered that the order of the Court of May 11, 1965, denying the motion of defendants to dismiss the complaints in the consolidated causes herein and requiring defendants to answer within 30 days is vacated and held for naught.

'It is further ordered that the motion of defendants to dismiss the complaints as to the class action in the consolidated causes herein is allowed.

'It is further ordered that the class action of the plaintiffs be dismissed and judgment is hereby entered for the defendants in regard to these class actions with their costs wrongfully sustained.

'It is further ordered that the motion of defendants to dismiss the complaints as regarding the individual plaintiffs, in their individual capacity is denied and that defendants answer individual plaintiffs' complaint within 30 days.

'It is further ordered that, plaintiffs electing to stand upon their complaints, the Court finds that there is no just reason for delaying an appeal as regards the decision herein and the appeal bond of the plaintiffs is set at the sum of $500.00.'

The plaintiffs took the instant appeal from this order. The defendants took a cross-appeal from the order of the court refusing to dismiss the individual complaints.

As we have said, we will now consider the first action. In their reply brief filed in this court the plaintiffs say, concerning the first action:

'The ordinance case, when filed, simply challenged the validity of multiple traffic ordinances. In order to preserve the rights of plaintiffs and the class to a refund of fine monies paid Thereafter (as a result of conviction of ordinances held later to be invalid), an interim protective order was sought, but was denied.

'* * * If the ordinances are invalid, plaintiffs' asserted right to refunds attached to the judgments as they were rendered. The judgments entered were conditional on the validity of the ordinances.'

It is necessary to interpret the statute authorizing declaratory judgments (Ill.Rev.Stat.1961, ch. 110, § 57.1(1), (2)).

(1) No action or proceeding in any court of record is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, * * * The court shall refuse to enter a declaratory judgment, decree or order, if it appears that the judgment, decree or order, Would not terminate the controversy or some part thereof, giving rise to the proceeding. (Emphasis added.)

(2) Subject to rules, declarations of rights, as herein provided for, May be obtained by means of a pleading seeking that relief alone, or as incident to or part of a complaint, counterclaim or other pleading seeking other relief as well, * * * (Emphasis added.)

In 22 Am.Jur.2d, Declaratory Judgments § 27, it is stated:

In order for a controversy as to a statute or ordinance to justify declaratory relief, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of the statute or ordinance.

In a declaratory judgment proceeding challenging the constitutionality of a statute, the plaintiff must have an interest in the statute, special or peculiar to him, and not merely an interest in common with the public generally.

In 22 Am.Jur.2d, Declaratory Judgments § 24, it is stated:

A declaratory judgment is not available to restrain the enforcement of a criminal prosecution where the facts are in dispute, or open to different interpretations. A declaratory judgment proceeding is particularly inappropriate where a criminal action involving the identical question is already pending.

Declaratory judgments were unknown at common law and were created by statute. The statute is to be liberally construed but its provisions are to be strictly complied with. In order for this court to obtain jurisdiction to enter a declaratory judgment on the rights in question, it is incumbent upon the plaintiffs to demonstrate that such a judgment would be based upon an actual justiciable controversy. If the plaintiffs will suffer an infringement of their rights and be adversely affected thereby only in the event that some future possibility in fact occurs or does not...