People v. United Med. Serv., Inc., 23169.

CourtSupreme Court of Illinois
Citation362 Ill. 442,200 N.E. 157
Docket NumberNo. 23169.,23169.
Decision Date14 February 1936

362 Ill. 442
200 N.E. 157

PEOPLE, by KERNER, Atty. Gen.,

No. 23169.

Supreme Court of Illinois.

Feb. 14, 1936.

Proceeding on the petition of the People of the State of Illinois, by Otto Kerner, Attorney General, for leave to file an information in the nature of quo warranto against the United Medical Service, Incorporated. From an adverse judgment, the United Medical Service, Incorporated, appeals.

Judgment affirmed.

[362 Ill. 443]

[200 N.E. 158]

Appeal from Superior Court, Cook County; M. L. McKinley, judge.
Shannon, Morrill & Johnson, of Chicago (Angus Roy Shannon, of Chicago, of counsel), for appellant.

362 Ill. 444]Otto Kerner, Atty. Gen. (William C. Clausen and Harry Eugene Kelly, both of Chicago, of counsel), for appellee.
WILSON, Justice.

The Attorney General of the state of his own accord filed a verified petition in the superior court of Cook county for leave to file an information in the nature of a quo warranto to require United Medical Service, Inc., a domestic corporation, to show by what warrant it holds a franchise to practice medicine or any of its branches or any system of treating human ailments. The permission sought was granted, and an information containing the same allegations as the petition was filed. Thereafter the respondent moved to vacate the order and to strike the information on the ground that it was filed in violation of section 8 of the Quo Warranto Act (Smith-Hurd Ann.St. c. 112, § 8). The motion was allowed and the respondent was ordered to plead, answer, or demur to the petition instead of to the information. The respondent filed nine pleas to the petition and a single replication was filed to the pleas. General and special demurrers were interposed to eight of the replications. In lieu of settling the pleadings and proceeding to a trial, the parties elected to present an agreed case conformably to rule 48 of this court (Smith-Hurd Ann.St. c. 110, § 259.48) and stipulated the facts. The statement of the agreed case presented to the trial court consisted of the stipulation of facts and of thirteen questions of law. After an extended hearing, the court found the respondent guilty as charged, and rendered judgment of ouster against it. From that judgment, the respondent prosecutes this appeal.

The respondent was incorporated as a corporation for profit on December 15, 1930, with an authorized capital of 400 shares of common stock, having a par value of $100 per share. Although its statement of incorporation enumerates seven objects for which it was formed, the pursuit of only one is assailed in this case, namely, the promotion of [362 Ill. 445]individual and public health through the study, prevention, and treatment of disease.

The agreed statement of facts shows that in 1933 the respondent established in

[200 N.E. 159

Chicago a clinic, designed and denominated by it as a fixed-fee, low-cost medical service, with fully equipped offices to provide for the examination and treatment of all physical and mental ailments; that since 1933 it has continuously maintained the clinic and offices, and that all medical and surgical services which the respondent offers are rendered solely by physicians and surgeons licensed and registered by the state of Illinois. It also appears that on several occasions since 1933 the respondent has published announcements of its character and purpose in the form of paid advertisements in the public press, one of which states that the corporation itself is not a charity, nor is it associated with or supported by any charity, philanthropic, educational, or tax-supported organization, and affirmatively declares that it is organized for profit. Charges for specific medical services, such as examinations of the heart, the lungs, the eyes, ears, nose, and throat, and for other so-called regional examinations, laboratory examinations, and X-ray examinations, are set forth in the advertisement. With respect to the medical staff, this advertisement announces: ‘All essential medical service in general health and diagnostic examinations and treatment will be rendered to patients by competent physicians trained and experienced in their respective fields of medicine and registered under the laws of the State of Illinois.’ Persons seeking and receiving examinations and treatments in and through the clinic enter into contracts with the respondent, and the latter receives the fees for such services and pays the physicians and surgeons in its employ their remuneration. The corporation itself has never applied for or received a license to practice medicine in Illinois.

The respondent contends that the trial court lacked jurisdiction to enter a judgment of ouster because the record[362 Ill. 446]contains neither an order granting leave to file an information nor an information. The record in the present case discloses that the information filed pursuant to leave granted was stricken upon the respondent's motion, which specifically charged that the proceeding did not conform to section 8 of the Quo Warranto Act. Section 1 of this statute (Smith-Hurd Ann.St. c. 112, § 1; Ill.Rev.Stat. 1935, p. 2518), so far as pertinent to this inquiry, provides that in case any domestic corporation exercises powers not conferred by law, the Attorney General, or state's attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction for leave to file an information in the nature of a quo warranto in the name of the people of the state of Illinois, and that if such court shall be satisfied that there is probable ground for the proceeding it may grant the petition and order the information to be filed and process to issue. Section 8, approved July 6, 1933 (Laws 1933, p. 856 [Smith-Hurd Ann.St. c. 112, § 8]), and in force when this action was instituted, declares that it shall be unnecessary hereafter in any action of quo warranto to set out the cause of action in the writ, but that it shall be sufficient to summon the defendant in a summons in the usual form, commanding him to appear and answer the plaintiff in an action of quo warranto, and that the issue shall be made up by answering, pleading, or demurring to the petition as in other cases. This section was taken from, and its language is identical with, section 15 of the Practice Act of 1907 to the extent that the latter relates to quo warranto proceedings. Smith-Hurd Ann.St. c. 110, Appendix, § 15; Cahill's Rev.St. 1931, p. 2173. Section 15 was exactly the same as section 10 of the Practice Act of 1872 and was in force when the Quo Warranto Act was revised in 1874. The new section of the Quo Warranto Act deals only with the form of summons and the manner in which the issues shall be made up. It does not conflict with any of the preceding[362 Ill. 447]sections of the statute, but is in entire harmony therewith. People v. Moeckel, 256 Ill. 598, 100 N.E. 272.

The respondent, in its motion to strike the information, did not charge that probable ground for the proceeding was wanting. Following the entry of the order striking the information, the respondent pleaded to the petition, which charged that by means of its corporate franchise the respondent had unlawfully usurped the franchise of engaging in the practice of medicine and in the diagnosis and treatment of the diseases of human beings as governed by the Medical Practice Act. The petition and the information in this particular proceeding contain identical allegations and make the same charges. Furthermore, the parties entered into a stipulation by which they submitted an agreed case to the trial court, as provided for by the Civil Practice Act and rule 48 of this court (Smith-Hurd Ann.St. c. 110, § 259.48). They expressly

[200 N.E. 160]

stated that the agreed case contained the points of law at issue between them, and that ‘the court shall decide thereon and shall render judgment therein, according as the rights of the said parties in law may appear.’ An examination of the ‘statement of agreed case’ shows that the respondent did not raise the question of whether the filing of an information was prerequisite to the rendition of the judgment of ouster against it. While jurisdiction of the subject-matter cannot be waived, the method of acquiring jurisdiction of a particular case and irregularities in respect thereto may be waived. The defendant, in a case in which the court has general jurisdiction, may dispense with process altogether, waive irregular process, and appear. Wilson Bros. v. Haege, 347 Ill. 140, 179 N.E. 459;Brown v. Van Keuren, 340 Ill. 118, 172 N.E. 1. The respondent is not in a position to challenge the method of making up the issues, as it induced and acquiesced in the procedure which it now attacks.

The next contention is that sections 8, 82, 83, 84, and 85 of the Business Corporation Act (Smith-Hurd Ann.St. c. 32, §§ 157.8, 157.82 to 157.85) deprived the trial court of jurisdiction to determine the issue made up in a quo warranto[362 Ill. 448]action under the provisions of the Quo Warranto Act. Section 148 of the Corporation Act in effect prior to July 13, 1933 (Smith-Hurd Rev.St. 1931, c. 32, § 148; Cahill's Rev.St. 1931, p. 756) provided that when any domestic corporation, under color of any of the powers granted by the statute, committed any act in excess of such powers, such act should be voidable at the instance of the Attorney General, in a direct proceeding in the nature of a quo warranto instituted by him against the offending corporation. Section 1 of the Quo Warranto Act (Smith-Hurd Ann.St. c. 112, § 1) was also in force, and provided, among other things, that when any domestic corporation (1) did or omitted any act which amounted to a surrender or forfeiture of its rights and privileges as a corporation, or (2) exercised powers not conferred by law, the Attorney General, or state's attorney of the proper county, either...

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