Progress Development Corporation v. Mitchell

• Decision Date: 04 March 1960
• Docket Number: No. 59 C 2050.,59 C 2050.
• Citation: 182 F. Supp. 681
• Parties: PROGRESS DEVELOPMENT CORPORATION, a corporation, and Modern Community Developers, Inc., a corporation, Plaintiffs, v. James C. MITCHELL et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

182 F. Supp. 681

PROGRESS DEVELOPMENT CORPORATION, a corporation, and Modern Community Developers, Inc., a corporation, Plaintiffs, v. James C. MITCHELL et al., Defendants.

No. 59 C 2050.

United States District Court N. D. Illinois, E. D.

March 4, 1960.

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W. Willard Wirtz, Newton N. Minow, John W. Hunt, Richard G. Kahn and Howard Hoosin, Chicago, Ill., Stevenson, Rifkind and Wirtz, Chicago, Ill., of counsel, for plaintiffs.

William R. Englehardt and Allyn J. Franke, of Norman, Engelhardt & Zimmerman, Chicago, Ill., Gerald C. Snyder and Lewis D. Clarke, of Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, Ill., Thomas A. Matthews, Byron S. Matthews, John B. Moser, George B. Christensen, Harold A. Smith and Douglas C. Moir, of Winston, Strawn, Smith & Patterson, Edward J. Kelly, Chicago, Ill., for defendants.

PERRY, District Judge.

In this proceeding, plaintiffs complain that the defendant officials of the Village of Deerfield and of the Deerfield Park District, acting under color of law and using their offices as a cloak, have conspired with the other named defendants and have violated the civil rights of the plaintiffs contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States and contrary to the provisions of Title 42, Sections 1981, 1982, 1983, 1985 and 1988 of the U.S.C.A. They bring their action pursuant to 28 U.S.C. § 1331.

The section of the Fourteenth Amendment relied upon provides as follows:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The statutes relied upon provide as follows:

"§ 1981. Equal rights under the law

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. R.S. § 1977."

"§ 1982. Property rights of citizens

"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. R.S. § 1978."

"§ 1983. Civil Action for deprivation of rights

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. R.S. § 1979."

"§ 1985. Conspiracy to interfere with civil rights—Preventing officer from performing duties

* * * * * *

"(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. R.S. § 1980."

"§ 1988. Proceedings in vindication of civil rights

"The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."

The verified complaint, as amended, is divided into three counts. Count I names as defendants the Deerfield Park District and the individuals constituting the Board of the Deerfield Park District, namely, James C. Mitchell, President, and Dudley L. Dewey, Edward J. Walchli, Donald W. Keller, and Aksel Petersen, members thereof, and seeks a temporary injunction pendente lite with the prayer that such injunction be made permanent upon final hearing. (See para. 39 of summarization of allegations of complaint, post.)

Count II names as defendants the Village of Deerfield and the individuals constituting the Board of Trustees of said Village, namely, Joseph Koss, President, and Winston Porter, Harold L. Peterson, John Aberson, Maurice Petesch, and Arno Wehle, members thereof, and seeks a temporary injunction pendente lite with the prayer that such injunction be made permanent upon final hearing. (See para. 40 of summarization of allegations of complaint, post.)

Count III, a conspiracy count, names all of the foregoing as defendants (except the Deerfield Park District and the Village of Deerfield) and, in addition thereto, ten other individual defendants, namely, Joseph G. Powell, Andrew G. Bradt, Harold C. Lewis, Herbert H. Garbrecht, Hal A. Petit, Robert D. Rierson, Robert G. Mullen, Leonard Bronstein, David J. Maundrell and Frank M. Blake. Plaintiffs seek damages in the sum of $750,000.

The plaintiffs having served notice upon counsel for the individual defendants named in Counts I and II, moved the court for a restraining order against the defendants named in each of those counts and for a hearing date upon a motion for a preliminary injunction in each instance. Deerfield Park District and the Village of Deerfield were not then parties defendant and so were not served. Counsel for the individual defendants appeared but no testimony was heard. The court heard oral argument, considered the verified complaint and thereupon denied the motion for a restraining order against the individual defendants, who are described as President and members of the Deerfield Park District, upon the allegations of Count I.

The court, however, granted plaintiffs' motion for a restraining order against the President and members of the Board of Trustees of the Village, in their individual capacities, upon the allegations of Count II. The court fixed bond for $1,000 which the plaintiffs made and which was approved. Thereupon the court entered a restraining order upon the allegations of Count II, enjoining said individual defendants from enforcing the building code of the Village of Deerfield in any discriminatory, arbitrary or capricious manner against plaintiffs until further order of court, specifically providing, however, that the defendants were in no way restrained from lawfully enforcing said building code, all of which is more fully set forth in the order of this court entered on December 22, 1959.

The court fixed December 29, 1959, as the date for hearings. They were not completed on that date and the restraining order was continued in force until January 6, 1960, on which date said order expired by its own limitation. The court was without jurisdiction to extend such order again. Without further order of court, the parties proceeded to present evidence until hearings were completed on January 28, 1960, although final arguments were not completed until February 4, 1960.

On January 28, 1960, the court orally announced that no motion for a preliminary injunction would be granted upon the allegations set forth in Count II and the proof that had been adduced before the court at that time. The cause was taken and has been retained under advisement.

Immediately thereafter, the court began taking evidence upon the allegations of Count I, and on January 28, 1960, concluded evidence thereon although final argument was not concluded until February 4, 1960, upon which date the court took its decision thereon under advisement and has so retained it until this time.

The...