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Orlicki v. Mccarthy

OPINION FILED NOVEMBER 18, 1954.

STANLEY ORLICKI, SR., ET AL., APPELLANTS,

v.

JOHN F. MCCARTHY ET AL., APPELLEES.



APPEAL from the Second Division of the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.

MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

This cause is before the court by virtue of a certificate of importance issued by the Appellate Court, which affirmed a judgment of the circuit court of Cook County dismissing the complaint of plaintiffs, Stanley Orlicki, Sr., and Anna Orlicki, to recover under the Liquor Control Act their loss of support due to the death of Walter Orlicki, allegedly caused by defendants, on the ground that the complaint was not filed within the time designated under the 1949 amendment to the act.

The uncontroverted facts are that on July 10, 1949, Walter Orlicki was fatally injured while a passenger in an automobile driven by an allegedly intoxicated individual. At that time the right to recover under the Liquor Control Act (Ill. Rev. Stat. 1949, chap. 43, par. 135,) from owners and operators of places selling liquor for the loss of support due to the death of an individual caused by an intoxicated person could be asserted within five years from the date of death, under the general limitations statute. On August 10, 1949, the Liquor Control Act, upon which plaintiffs' rights against the defendants, as owners and operators of certain dram shops, are predicated, was amended to include a provision limiting the amount recoverable to $15,000, and requiring that "every action hereunder shall be commenced within two years next after the cause of action accrued." Plaintiffs' complaint was filed September 27, 1951, and while the cause was pending the Appellate Court of another district held that the time limitation provision in the amendment was retroactive. (Fourt v. DeLazzer, 348 Ill. App. 191.) Defendants thereupon filed motions to dismiss, which were allowed by the circuit court on the theory that the amendment to the act was procedural and therefore operated retroactively, and judgment was entered for defendants. The Appellate Court affirmed that judgment.

The sole issue in this cause is whether the time-limitation amendment to the Liquor Control Act applies to causes of action arising prior to the enactment of the amendment.

Plaintiffs contend that the 1949 amendment is not retroactive on the grounds that the time limitation was substantive; that the decision in Fourt v. DeLazzer is of limited value as a precedent since that case was not properly presented to the court; that the two-year-limitation provision is not jurisdictional, since there is a distinction between true statutory actions and those which are enforceable through common-law remedies, such as the right of action under the Liquor Control Act; and that the decision in Theodosis v. Keeshin Motor Express Co. 341 Ill. App. 8, holding the amendment increasing the ad damnum provisions of the Injuries Act to be prospective in operation, is determinative of the issue herein.

Defendants argue that the rights created by the Liquor Control Act are statutory, hence plaintiffs had no vested interest in the cause of action created, or in the procedure applicable to its enforcement. Defendants contend that if the provision of the act limiting the time within which an action may be brought is regarded as a "condition of liability," jurisdiction could be exercised only subject to this condition as prescribed at the time jurisdiction is invoked; and if the time limitation is regarded as procedural in character, it applies retroactively to all existing causes of action. They maintain further that a retroactive application was intended by the legislature and should be given effect, since plaintiffs had ample time after the amendment within which to institute suit.

The problem of the retroactive application of amendments is not novel in Illinois case law, and it is one upon which the jurists are not in agreement, either in their conclusions or rationale, not only in Illinois, but also in other jurisdictions. (77 A.L.R. 1338.) Some Illinois decisions have considered the issue in terms of vested or non-vested rights (Wall v. Chesapeake and Ohio Railway Co. 290 Ill. 227; People ex rel. Eitel v. Lindheimer, 371 Ill. 367;) others analyze it in terms of jurisdiction (Spaulding v. White, 173 Ill. 127; Dare v. Wabash, Chester and Western Railroad Co. 119 Ill. App. 256; McQueen v. Connor, 385 Ill. 455;) others have considered whether the provision was substantive or procedural (DuQuoin Township High School Dist. v. Industrial Com. 329 Ill. 543; Chicago Board of Underwriters v. Industrial Com. 332 Ill. 611; Board of Education v. City of Chicago, 402 Ill. 291;) other courts have relied upon the intention of the legislature (Theodosis v. Keeshin Motor Express Co. 341 Ill. App. 8; Hathaway v. Merchants Loan and Trust Co. 218 Ill. 580); and there are also decisions predicated on the statutes of construction (Merlo v. Johnston City and Big Muddy Coal and Mining Co. 258 Ill. 328; Gruber v. La Salle County Coal Co. 150 Ill. App. 427); or upon a combination of these legal concepts and rules.

It will serve no useful purpose to review the multitude of cases noted in our research involving the retrospective and prospective application of various types of statutory modifications. We shall instead confine our analysis to a brief reference to the legal history of this problem, relevant statutory provisions and the exceptions thereto; and to the cases involving the application of time-limitation amendments.

The doctrine that legislation must be prospective in character is traceable to Coke and Bracton, who recognized it as a rule of construction founded on doctrines of natural law, and it was incorporated into American jurisprudence by the learned jurists Kent and Story. (Dash v. Van Kleeck, 7 Johns (N.Y.) 477, 5 Am. Dec. 291; Gilmore v. Shuter, 2 Mod. 228, 310, 2 Inst. 292; Society v. Wheeler, 2 Gal., C.C. 105, 139.) The doctrine became in some instances a constitutional restraint on legislation, and in other cases a rule of construction. (Smead, Rule Against Retroactive Legislation, 20 Minn. L. Rev. 775.) In Illinois, the principle was reflected in the early case of Seegar v. Seegar, 19 Ill. 121, and was, in 1874, incorporated as a statute relating to construction (Ill. Rev. Stat. 1953, chap. 131, par. 4,) the relevant portion of which provides: "No new law shall be construed to repeal a former law, * * * as to any act done, * * * or any right accrued, or claim arising under the former law, or in any way whatever to affect any * * * act * * * done, * * * or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding."

The Illinois courts have limited the application of that statute by holding that the only rights within the protection of section 4 are "vested rights." (Wall v. Chesapeake and Ohio Railway Co. 290 Ill. 227; People v. Lindheimer, 371 Ill. 367; Board of Education v. Nickell, 410 Ill. 98.) Thus, it has been held that where a statute giving a special remedy is unconditionally repealed without a saving clause, all pending suits predicated thereon will terminate as of the date of the repeal, since there is no vested right in any statutory remedy. Wall v. Chesapeake and Ohio Railway Co.; Sharp v. Sharp, 213 Ill. 332; Board of Education v. Nickell, 410 Ill. 98.) This interpretation was in accordance with the prevailing judicial opinion. (77 A.L.R. 1345.) A similar exception has been effected by the New York court to a substantially identical rule of construction. Consol. Laws of N.Y., art. 5, secs. 93, 94; U.S. Mortgage Co. v. Ruggles, 248 N.Y.S. 525; Matter of Wentworth, 230 N.Y. 176, 187, 129 N.E. 646.

However, the concept of "vested right" is fraught with vagaries that defy precise definition. (Merlo v. Johnston City Coal Mining Co. 258 Ill. 328; Theodosis v. Keeshin Motor Express Co. 341 Ill. App. 8.) The concept has been referred to as "something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enjoyment of the demand, or a legal exception from a demand made by another." Beutel v. Foreman, 288 Ill. 106; People v. Lindheimer, 371 Ill. 367; Wall v. Chesapeake and Ohio Railway Co. 290 Ill. 227; Board of Education v. Nickell, 410 Ill. 98.

In the Wall case the 1903 amendment to the Injuries Act, providing that "no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State," was applied retroactively to bar a pending action to recover for a wrongful death occurring outside the State. The court in further defining "vested rights" stated at page 234, "There can be no vested right in the claim for damages in a tort not connected with or growing out of a contractual relation until judgment is rendered."

In addition to this broad exemption in section 4 of the act in relation to construction of statutes, commonly referred to as the Saving Statute, courts have also excepted amendments relating to matters of procedure, and have held that where the change in law merely affects the remedy, or the law of procedure, all rights of action will be enforcible under the new procedure without regard to whether they accrued before or after such change of law, and without regard to whether suit has been instituted or not, unless there is a saving clause as to existing legislation. Board of Education v. City of Chicago, 402 Ill. 291; Smolen v. Industrial Com. 324 Ill. 32; McQueen v. Connor, 385 Ill. 455; Weil-McLain Co. v. Collins, 395 Ill. 503; Ogdon v. Gianakos, 415 Ill. 591.

The term "procedure," however, has been invested with a meaning much wider than that of pleading or practice, and no simple formula can be evolved as to when an amendment relates to a procedural, or to a substantive right. In Theodosis v. Keeshin Motor Express Co. the court discussed the diversity of opinion among Illinois jurists as to whether the amendment increasing the ad damnum recoverable under the Injuries Act was procedural or substantive in character. Without deciding that issue the Appellate Court held the amendment to be prospective in operation on the basis of legislative intent, and by virtue of the Saving Statute. The court reasoned that the increase in ad damnum was tantamount to imposing a new liability upon defendants, which would contravene the Saving Statute. In that connection, it may be noted that there is a ...


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