Weihl v. Dixon
Decision Date | 20 December 1977 |
Docket Number | No. 77-120,77-120 |
Citation | 13 Ill.Dec. 789,371 N.E.2d 881,56 Ill.App.3d 251 |
Parties | , 13 Ill.Dec. 789 Donald E. WEIHL, Plaintiff-Appellant, v. Alan J. DIXON, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
Donald E. Weihl, Belleville, for plaintiff-appellant.
William J. Scott, Atty. Gen., Chicago, for defendant-appellee; Gregory G. Lawton, Asst. Atty. Gen., Chicago, of counsel.
Plaintiff, Donald E. Weihl, filed an amended complaint for a declaratory judgment in the circuit court of St. Clair County against defendant, Illinois Secretary of State. From the judgment entered by the court in favor of defendant, plaintiff brings this appeal.
Plaintiff is an attorney engaged in the representation of certain unnamed "one man" Illinois corporations. As a part of his practice of law, plaintiff files required annual reports with defendant on behalf of his clients. In 1976, with regard to Illinois corporations with one shareholder and incorporator, the defendant instructed his office not to accept annual reports filed by such corporations which fail to show a corporate officer designated as "secretary." Such action was based upon section 43 of the Business Corporation Act (Ill.Rev.Stat.1975, ch. 32, par. 157.43) which provides that the officers of a corporation shall consist of a president, certain other officers and a secretary and that if the corporate by-laws so provide: "two or more offices may be held by the same person, except the offices of president and secretary". As a consequence of defendant's directive, those annual reports filed by plaintiff on behalf of his clients which failed to show a corporate officer designated as "secretary" were not accepted by defendant.
Plaintiff brought the instant action seeking a declaration that any corporation with one shareholder which was incorporated pursuant to section 46 of the Business Corporation Act (Ill.Rev.Stat.1975, ch. 32, par. 157.46), which permits the formation of a corporation by a single incorporator, need not hire another person to serve as secretary thereof. Defendant filed a motion to dismiss the cause which motion was denied. Thereafter defendant filed an answer raising inter alia as affirmative defenses grounds similar to those raised in the motion to dismiss. A stipulation of facts was filed by the parties framing four questions of law to be determined by the lower court: (1) whether an Illinois corporation with one shareholder must have a person to serve as secretary who is not the same person who holds the office of president; (2) whether the instant cause is a proper class action; (3) whether plaintiff has standing to bring the instant suit; and (4) whether an appeal from the determination of the Secretary of State underlying the first issue may only be had pursuant to Ill.Rev.Stat.1975, ch. 32, par. 157.148.
The stipulation of facts was taken under advisement by the trial court which then entered judgment in favor of defendant and against plaintiff "on all issues." The judgment of the court, however, contained an additional order which was subsequently amended on defendant's motion to modify and which states, as amended:
"It is further ordered that all corporations having had corporate Annual Reports for the year 1976 returned by the Secretary of State of Illinois for the correction of adding a 'Secretary' in the case of corporations with one shareholder and incorporator that were subsequently dissolved pursuant to Section 82A of 'The Business Corporation Act' of the State of Illinois, be reinstated without penalty or cost other than the ordinary statutory filing fees and franchise taxes, said reinstatement by the Secretary of State of Illinois to be made upon production to said Secretary of State of a certified copy of this Amended Order within 30 days hereof and upon compliance with all other applicable statutes."
It is to be noted that despite the anomaly of the amended judgment order finding in favor of defendant on all issues and further ordering defendant to reinstate a certain class of dissolved corporations, defendant has not appealed from the latter portion of the judgment order. In this appeal, plaintiff raises the sole question of whether an Illinois corporation with one shareholder must have a person serving as secretary who is not the same person who is serving as president. However, we find dispositive the defendant's response that plaintiff lacks standing to bring this action.
As stated by the court in Lynch v. Devine, 45 Ill.App.3d 743, 747-748, 4 Ill.Dec. 185, 188, 359 N.E.2d 1137, 1140:
(See also, Fuchs v. Bidwill, 65 Ill.2d 503, 3 Ill.Dec. 748, 359 N.E.2d 158.)
Article 6, section 9 of the Illinois Constitution of 1970 states in part: "Circuit Courts shall have original jurisdiction of all justiciable matters * * *." Standing is an aspect of justiciability in...
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