Hackner v. Van Wyck
| Decision Date | 21 January 1943 |
| Docket Number | No. 26804.,26804. |
| Parties | HACKNER v. VAN WYCK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Elias Hackner against Allen Van Wyck and others wherein plaintiff as a stockholder sought to recover for benefit of corporation certain funds allegedly used by it for illeged purposes resulting in loss to corporation. Decree of dismissal, and plaintiff appeals.
Cause transferred to the appellate court.Appeal from Superior County, Cook County; John C. Lewe, Judge.
Shulman, Shulman & Abrams, of Chicago (Meyer Abrams, of Chicago, of counsel), for appellant.
Mayer, Meyer, Austrian & Platt, Andrew J. Dallstream, Thomas C. Strachan, Jr., George F. Callaghan, Beach, Fathchild & Scofield, Daily, Dines, White & Fiedler and Charles C. LeForgee, all of Chicago (Francis L. Daily and Donovan Y. Erickson, both of Chicago, of counsel), for appellees.
Appellant filed a complaint in the superior court of Cook county, as a stockholder's derivative suit, alleging he was a stockholder in the defendant-appellee Illinois Iowa Power Company. By this suit he seeks to recover for the benefit of the corporation certain funds allegedly used by it for illegal purposes resulting in a loss to the corporation. He sets out in his complaint that the corporation and others of the defendants were indicted in the United States District Court for using funds to contribute to campaign funds at various elections, and the corporation pleaded guilty and was fined $5,000. The case against other defendants was nolle prossed. Appellant says in his complaint that this $5,000 fine should be repaid to the corporation by the other defendants because, as directors of the corporation, they authorized its plea of guilty.
The appellee corporation, and the appellees alleged to be officers and directors of the Power Company, filed a motion to dismiss on the ground that the complaint does not state a cause of action sufficient to entitle plaintiff to maintain his suit. These motions set forth the reasons in support thereof. Among others, was the claim that the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq., is unconstitutional. An amended complaint was filed and the motions to dismiss allowed to stand to the complaint as amended. The chancellor sustained the motions and dismissed the complaint for want of equity. No reason is set out by the chancellor for his ruling and nothing appears in the record to indicate that he passed upon the constitutionality of the act. The cause is brought directly to this court because, appellant says, a constitutional question is involved. Though a constitutional ground was alleged in the motion of the defendants to dismiss, there is, as we have said, nothing in the record to indicate that it was passed upon. The principle argument made in the motion and on review here goes to the sufficiency of the complaint.
While the parties here do not raise the question, this...
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