Flannery v. People

• Decision Date: 08 February 1907
• Citation: 80 N.E. 60,225 Ill. 62
• Parties: FLANNERY v. PEOPLE. SHEA v. SAME. WOERNER v. SAME. BROWN v. SAME.
• Court: Illinois Supreme Court

225 Ill. 62

80 N.E. 60

FLANNERY

v.PEOPLE.

SHEA

v.SAME.

WOERNER

v.SAME.

BROWN

v.SAME.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 8, 1907.

Appeal from Appellate Court, First District.

Proceedings for contempt by the people against Michael Flannery, John M. Shea, Charles F. Woerner, and Harry Brown. From judgments sentencing defendants, affirmed by the Appellate Court, they appeal. Affirmed.

Scott, C. J., and Farmer, J., dissenting.

Barnum, Pollasky & Gilbert, for appellants.

Tenney, Coffeen, Harding & Wilkerson (Horace Kent Tenney and James H. Wilkerson, of counsel), for the People.

WILKIN, J.

These appellants were found guilty of contempt for violating a writ of injunction in the superior court of Cook county and punishment adjudged against each of them, as follows: Charles F. Woerner three months in the county jail and fined $250; John M. Shea 6 months in jail and fined $100; Harry Brown 40 days in jail, and Michael Flannery 30 days in jail. To reverse these judgments they prosecuted writs of error from the Appellate Court, where the several cases were heard together and the judgments of the superior court affirmed. This appeal is from that judgment of affirmance, and the cases have here been consolidated and again submitted together.

The bill upon which the injunction was issued with the violation of which these appellants are charged, is the same bill and writ which was before us in Franklin Union v. People, 220 Ill. 355, 77 N. E. 176, where a statement of the material facts applicable to the present appeal will be found. The petition for the rule on appellants to show cause was filed December 23, 1904, and charges each of them with having participated in the plan of inducing and coercing employees of the complainants to leave their employment; with having assisted in the maintenance of the unlawful picketing system; with having participated in the collection and disbursement of the fund of the union which was used in inducing complainants' employés to leave their employment by the payment of money; with having been part of the combination in control of the strike and responsible for the unlawful acts of the strikers. It was verified by the affidavit of Daniel C. Shelley, secretary of the Chicago Typothetae, one of the petitioners and one of the complainants in the original bill of complaint, who makes oath that he has read the foregoing petition and knows the contents thereof, and that he verily believes the same is true in substance and in fact. Many affidavits were filed in support of the charges made in the petition, and oral testimony was introduced upon the hearing by the petitioners. The charges are substantially the same as those made against the defendants in the Franklin Union Case, supra, and many of the questions here presented for decision were considered and decided in that case.

Question of jurisdiction. The first proposition insisted upon by counsel for appellants is: ‘The said superior court was without jurisdiction, power or legal authority to issue said writ of injunction, because Chicago Typothetae, the alleged complainant in said chancery suit, as appears upon the face of the bill, is neither a natural nor artificial person.’ From this principal proposition they deduce the following corollaries: (a) No amendment could be made to the bill for the reason that there was nothing to amend by; (b) this question can be raised at any time in the proceeding, for the reason that it is void for want of proper party complainant; (c) the want of a complainant, either natural or artificial, in said superior court could not be waived by appellants, or either of them. It is admitted that there is ground for the contention of opposing counsel that the principal question above stated was decided in Franklin Union v. People, supra, adversely to appellants, but the argument is that this is only apparently so, for the reason that the total want of jurisdiction in the superior court was not there urged but expressly waived. The bill filed October 9, 1903, upon which the writ of injunction was issued for the violation of which these appellants were tried and convicted, is the same bill and the same writ of injunction which were before us in the above-named case, this being a second proceeding for contempt. As shown by the statement of facts embraced in the opinion in that case, the bill was filed in the name of the Chicago Typothetae, a voluntary association for and on behalf of its members, naming them. Daniel C. Shelley, secretary of the complainant association and a member of the same, made affidavit to the bill, following which was a written statement signed by each of the members of the association, as follows: ‘We, the undersigned members of complainant association, hereto affix our seals and consent and request that action be brought in court by the filing of the foregoing bill of complaint.’ After the writ of injunction had been ordered and issued the bill was amended by leave of court without prejudice to the injunction, by which the several members of the Typothetae and the C. H. Morgan Company were made complainants, together with the original complainants.

Counsel are mistaken in the contention that the question here raised was waived or not decided in the former case. We there expressly said: ‘The first contention made is that the court was without jurisdiction, by reason of the want of proper parties, to enter the order of October 10 directing the issuance of said injunction, and for that reason it is urged the respondents could not be lawfully adjudged guilty of contempt of court for a violation of the injunction.’ The opinion then proceeds to discuss the proposition, and decides, on the authorities cited, that the question of the capacity of the complainant, the Chicago Typothetae, to maintain the bill could only have been raised by demurrer or a motion to dissolve the injunction. The second question discussed in the opinion is the one from which counsel make the quotation in support of their claim that the jurisdictional question was waived. It is too plain to be made the subject of discussion that the decision of the second proposition in no way affected the first, and, unless all that was said and decided in disposing of the first contention, should be overruled. Franklin Union v. People, supra, is decisive of appellants' foregoing major proposition. We have, however, reconsidered that question in the light of the present argument, but find no sufficient reason for departing from the views then expressed, and no good purpose would be served by a further discussion of the point. We are further of the opinion that the concession made by counsel for appellants on that hearing, as stated in the second point, was one which they could not escape and which must now be admitted. However irregular it may have been to file the bill in the name of the voluntary association on behalf of its members, it was not done until after each member of the association had signed a statement attached thereto, affixing his signature and seal to the same, consenting and requesting that the action be brought by filing the bill of complaint. If that statement had been contained in the body of the bill there could have been no substantial grounds for the contention that the bill was not filed in the individual names and for the benefit of the members, however awkwardly or inartistically it would have appeared in form. Before there was any appearance by the defendants or answer filed, it showed on its face, in substance, the rights of the members of the society which it was claimed had been violated, and that the object and purpose of the same was to protect those rights, and that it had been filed by and with the consent of the individual members. We entertain no doubt that every member of the association was amenable to all orders by the court regularly entered under that bill and entitled to any protection decreed thereunder. The defect was of form, and not of substance. It cannot, therefore, in our view, be maintained that the originalbill was a nullity and there was therefore nothing to amend by, consequently the amended and supplemental bill of October 18, 1903, cured whatever defects existed as to parties complainant.

The following additional grounds of reversal are also urged: First. The writ of injunction is ambiguous, indefinite and uncertain, and for this reason the judgment of the Appellate Court and of the superior court should be reversed. Second. The several allegations of the petition filed December 23, 1903, are not allegations of fact but of mere conclusions, and therefore the petition is insufficient to sustain the conviction. If contempt proceedings are begun by affidavits the affidavits are jurisdictional, and if made only upon information and belief, or upon belief only, they confer no jurisdiction and the proceedings are void. The affidavits filed in support of the petition did not aid it because made only upon information and belief. Third. The proceeding is criminal or quasi criminal in its nature, and the guilt of the defendants must be established beyond reasonable doubt. Fourth. The superior court erred in admitting evidence on behalf of the appellee, over the objection of appellants, relating to matters happening prior to the issuance of said writ of injunction. Fifth. There is no evidence that the complainant, the Chicago Typothetae, was injured. Sixth. The punishment is excessive. Seventh. The proceeding deprived appellants of liberty and property without due process of law, in violation of section 2 of article 2 of the Constitution of this state, and also contravened the rights guarantied to appellants by the Fourteenth amendment to the Constitution of the United States by depriving them of liberty and property without due process of law.

We will briefly consider these points in their order:

Ambiguity of the writ. The uncertainty in the writ complained...