Department of Disabled Am. Veterans v. Bialczak

• Decision Date: 06 May 1976
• Docket Number: No. 63199,63199
• Citation: 349 N.E.2d 897,38 Ill.App.3d 848
• Parties: DEPARTMENT OF Illinois DISABLED AMERICAN VETERANS, an Illinois not for profit Corporation and James Hamilton, Plaintiffs-Appellees, v. Victor BIALCZAK and Disabled American Veterans, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 897

349 N.E.2d 897

38 Ill.App.3d 848

DEPARTMENT OF Illinois DISABLED AMERICAN VETERANS, an Illinois not for profit Corporation and James Hamilton, Plaintiffs-Appellees, v. Victor BIALCZAK and Disabled American Veterans, Defendants-Appellants.

No. 63199.

Appellate Court of Illinois, First District, Third Division.

May 6, 1976.

Rehearing Denied July 1, 1976.

Pedersen & Houpt, Chicago, for defendants-appellants; Richard V. Houpt and Paul S. Altman, Chicago, of counsel.

Halfpenny, Hahn & Roche, Chicago, for plaintiffs-appellees.

McNAMARA, Justice.

This interlocutory appeal involves a dispute over title to the office of Commander of the Department of Illinois Disabled American Veterans. Plaintiffs, the Illinois Chapter of the DAV (hereinafter the Illinois DAV) and James Hamilton, brought a declaratory judgment action in the circuit court of Cook County seeking to declare Hamilton as the duly elected Commander. Plaintiffs also sought a preliminary injunction restraining defendants, The National Headquarters of the DAV (hereinafter the National DAV) and Victor Bialczak, from interfering with Hamilton or any other duly elected officer of the Illinois DAV. On September 9, 1975, the trial court granted the injunction at an ex parte hearing. Defendants appeal from the order of the trial court denying their motions to dissolve the preliminary injunction and to dismiss the complaint.

The only pleading filed is plaintiffs' complaint, the sufficiency of which is at issue. Therefore, for the purpose of this appeal the facts set forth in the complaint must be accepted as true and constitute the sole substantiation for the order of the trial court. As such, the facts in the complaint will be reviewed in some detail.

According to the complaint, the Illinois DAV is an Illinois not for profit corporation chartered as a state department of the National DAV. On June 28, 1975, the Illnois DAV held its annual convention, during which it was to elect its officers for the year, including the post of Commander. The convention appointed and approved a credentials committee which conducted hearings and examined the credentials of those members seeking to be seated as voting delegates. Majority and minority reports were presented to the convention, and the former was adopted. That report called for the seating of delegates from Illinois chapters 13, 14 and 29 and of past department Commanders entitled to vote in accordance with the by-laws of the Illinois DAV. The contest for the office of Commander was between plaintiff James Hamilton and defendant Victor Bialczak. Hamilton was declared the winner and was installed in office. Bialczak lodged no protest at the state convention.

On July 7, 1975, Bialczak and others filed a protest with the National DAV alleging irregularities in the seating of delegates to the Illinois convention and contending that Bialczak should have been installed as Commander. The National DAV suspended the charter of the Illinois chapter for 60 days from July 25, 1975. It also appointed and dispatched an investigating committee to Illinois. At the time of the initial hearing of the committee, plaintiffs had not been informed of the nature of the charges or of the evidence submitted by Bialczak. The request by plaintiffs' counsel for five days to review the charges and to prepare their rebuttal was denied by the investigating committee. In view of this denial to allow the preparation of an adequate defense, plaintiffs on advice of counsel refused to participate in the investigation.

On September 1, 1975, the investigating committee reported to the national convention of the DAV. The report recommended that the votes of Illinois chapters 13, 14 and 29 as well as the votes of three past department Commanders be deducted from Hamilton's total. It further recommended that the votes of chapter 14 be added to Bialczak's total. The report was adopted and the national convention directed that Bialczak be declared winner of the election and be installed as Illinois Commander. A resolution also was adopted stating that Illinois DAV had no further right of appeal within the organization. Plaintiffs' notification of this action was the appearance of Bialczak at the Illinois DAV's offices on the morning of September 5, 1975 demanding that he assume the duties of Commander. Plaintiffs then filed for declaratory judgment under Section 57.1 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 57.1) and successfully moved for a preliminary injunction.

We shall consider initially defendants' contention that the complaint should be dismissed. While upon an interlocutory appeal this court is not permitted to reach the merits of the case, it may consider whether or not the complaint upon which the preliminary injunction was issued was sufficient to sustain the injunction or support a judgment. Alfred Engineering, Inc. v. Illinois Fair Employment Practices Commission (1974), 19 Ill.App.3d 592, 312 N.E.2d 61; Ware v. D.R.G., Inc. (1974), 17 Ill.App.3d 758, 307 N.E.2d 740.

The primary issue in the present case is the dispute over rightful title to the office of Commander. Plaintiffs have brought a declaratory judgment action and have not brought the action under the Quo Warranto Act. (Ill.Rev.Stat.1973, ch. 112, par. 9 Et seq.) Defendants label this as a 'classic quo warranto situation,' contend that quo warranto is the exclusive remedy for plaintiffs, and urge that the present complaint must be dismissed.

Quo warranto has experienced only slight statutory alteration since its original and early enactment in Illinois. It has been defined as '(a)n extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted.' (Black's Law Dictionary, 4th Ed. 1417 (1951); People ex rel. Brooks v. Village of Lisle (1974), 24 Ill.App.3d 432, 434, 321 N.E.2d 65.) Although limited under its common law inception, quo warranto may be brought to remedy private as well as public wrongs. Consequently, we recognize it as an appropriate remedy in the present case.

Defendants insist, however, that in actions involving title to an office quo warranto is the exclusive remedy. Defendants have produced no cases nor has this court been able to discover a case which as a primary holding specifically asserts the exclusiveness of this remedy in the present situation. It is true that in certain instances quo warranto has been held to exclude other remedies. For example, quo warranto has unequivocally been granted exclusive status in testing the validity of annexation proceedings. (People ex rel. McCarthy v. Firek (1955), 5 Ill.2d 317, 125 N.E.2d 637; Edgewood Park No. 2 Homeowners Ass'n v. Countryside Sanitary District (1969), 42 Ill.2d 241, 246 N.E.2d 294; People ex rel. Village of Northbrook v. City of Highland Park (1976), 35 Ill.App.3d 435, 342 N.E.2d 196; Vallage of Bridgeview v. City of Hickory Hills (1971), 1 Ill.App.3d 931, 274 N.E.2d 925), or in considering the qualifications of a candidate. (Wagler v. Stoecker (1946), 393 Ill. 560, 66 N.E.2d 408; Dilcher v. Schorik (1904), 207 Ill. 528, 69 N.E. 807.) Conversely, quo warranto has been deemed to be an inappropriate remedy where direct review of an election exists (People ex rel. Town of Richwoods v. City of Peoria (1967), 80 Ill.App.2d 359, 225 N.E.2d 48), where appeals within an organization concerning an election have not been exhaused (People ex rel. Michajlowski v. Tanaschuk (1942), 317 Ill.App. 130, 45 N.E.2d 984), or where the official acts of public officers are being questioned. People ex rel. Chillicothe Township v. Bd. of Review of Peoria County (1960), 19 Ill.2d 424, 167 N.E.2d 553; People ex rel. Farrington v. Whitcomb (1870), 55 Ill. 172.

Defendants rely on three cases in support of their contention that quo warranto is an exclusive remedy when the right to hold title to a private office is disputed. The case of Edgewood Park No. 2 Homeowners Ass'n v. Countryside Sanitary District, supra, involved the validity of a pre-annexation ordinance. As stated, the law in that area is well settled, but we are confronted with an entirely different question and that case is not controlling here. Black v. Termunde (1973), 14 Ill.App.3d 937, 303 N.E.2d 803, decided by this court, involved an election contest, not a proceeding in quo warranto, and therefore has little bearing on the exclusiveness of quo warranto in this case. In Black, the court, citing Cipowski v. Calumet City (1926), 322 Ill. 575, 153 N.E. 613, does mention that 'a testing of the validity of an election' is a matter left to an action in quo warranto. The Cipowski case dealt with a special election for the purpose of voting upon the question of annexing territory to the city. Even if applicable, neither case mentions exclusiveness of the remedy of quo warranto. The third case relied upon by defendants, People ex rel. Stoolman v. Pyle (1924), 235 Ill.App. 532, is equally inapplicable. in Stoolman, a court of equity was said to be an improper forum without jurisdiction to try title to a corporate office, unless the question of who holds office is crucial collaterally to an issue properly before the court. Such a holding does not influence this court on the present issue, especially since Stoolman was decided prior to the merger in Illinois of law and equity and prior to the original enactment of the Declaratory Judgments Act in 1945. We do not disagree that quo warranto is a proper action in the question of trying title to corporate office. Such a conclusion is clearly stated in the statute. Rather we believe that neither the statute nor the case law mandates quo warranto as the exclusive remedy.

Plaintiffs have pointed out at least one case in which declaratory relief was granted when quo warranto was an available remedy. In Elm Lawn Cemetery Company v. City of Northlake (1968), 94 Ill.App.2d 387,...