APPEAL from the City Court of Alton; the Hon. I.H. STREEPER
III, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1959.
This is an appeal by the State of Missouri and the State Highway Commission of Missouri from a decree of the city court of the city of Alton. The decree discharged the receiver of the Clark Bridge which crosses the Mississippi River from Alton, Illinois, to St. Charles County, Missouri, and approved his final report. On this direct appeal the appellants, who were not parties to the action in the trial court, seek to challenge certain orders relating to the payment of attorney's fees by the receiver. In our disposition of the case we reach only procedural problems that relate to the propriety of this appeal. A statement of the relevant facts is necessary to an understanding of those problems.
The bridge was originally constructed by a private individual as a toll bridge under the authority of an act of Congress. (Pub. Law 274, H.R. 10090, 69th Cong., 1st Sess., 44 Stat. 620, as amended by Pub. Law 679, H.R. 16778, 69th Cong., 2nd Sess., 44 Stat. 1270.) That act recognized that the bridge might be acquired by a governmental unit. It provided that upon payment of the bonds issued by the governmental unit to finance the cost of acquisition, the bridge "shall thereafter be maintained and operated free of tolls or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper care, repair, maintenance and operation of the bridge and its approaches." 44 Stat. at 621.
St. Charles County, Missouri, became the owner of the bridge through foreclosure proceedings in 1936. By January 1, 1950, all but $25,000 of the bonds that had been issued by the county to pay the cost of acquiring the bridge had been retired from the proceeds of tolls collected from those who used the bridge. Those bonds were allowed to remain outstanding, and by May 16, 1952, the county had on hand an accumulated surplus of $400,000 in toll revenue. It then entered into an agreement with the State Highway Commission of Missouri which provided that the county would continue to collect tolls for use of the Clark Bridge until June 30, 1956, that the State Highway Commission would construct a new highway approach on the Missouri side of the bridge, that the county would pay to the commission all net toll revenues plus the $400,000 on hand until this project had been paid for, and that on June 30, 1956, the county would redeem and retire the $25,000 in outstanding bonds and transfer the bridge and any net toll revenues remaining to the State Highway Commission. The basic dispute arises from the use made by St. Charles County of more than $3,000,000 of toll revenues collected after January 1, 1950. Most of this money was spent for the construction of highway facilities in St. Charles County and for the purchase of real estate and erection of an office building in Alton.
In June of 1956 St. Charles County announced its intention to discontinue the collection of tolls and to transfer the bridge to the State Highway Commission of Missouri. The city of Alton then filed its complaint in this case. The complaint alleged that the application by St. Charles County of over $2,000,000 of toll revenues to highway construction and to the repair and improvement of the approaches to the bridge on the Missouri side of the river, without any comparable disbursement for the improvement of the bridge approaches in the city of Alton, constituted a fraud on the taxpayers of the city of Alton. It sought an injunction restraining St. Charles County from conveying that portion of the bridge located in the city of Alton and the appointment of a receiver to collect tolls in order to insure that the bridge approaches in the city of Alton would likewise be repaired and improved from toll revenue.
Proper service of process was made on St. Charles County. It failed to appear, and on June 29, 1956, an injunction was issued, restraining it from conveying that portion of the bridge located in the city of Alton. Paul W. Davey was appointed receiver, and was ordered to begin collection of tolls at the Alton toll station. Anthony W. Daly, Schaefer O'Neill and Emerson Baetz were appointed attorneys for the receiver.
On July 2, 1956, St. Charles County conveyed the Clark Bridge and its approaches to "the State of Missouri acting by and through the State Highway Commission of Missouri." Shortly thereafter the State of Missouri filed actions for injunctive relief against the receiver and the judge of the city court of Alton in the United States District Court for the Southern District of Illinois. Subsequently it dismissed these actions upon its own motion. It then initiated an original action in the Supreme Court of the United States but its motion for leave to file a complaint for an injunction was denied. (Missouri v. Davey, 352 U.S. 886, 1 L.ed. 83.) Emerson Baetz and Anthony W. Daly defended these suits.
The city court of Alton adjudged St. Charles County to be in default, heard evidence presented on behalf of the city of Alton, and on August 10, 1956, entered a decree pro confesso. The decree found that the application of toll revenue by St. Charles County for improvement of the Missouri approaches to the Clark Bridge without improving the approaches on the Alton side was "a constructive fraud upon the plaintiff The City of Alton and the citizens and taxpayers of the City of Alton and the State of Illinois." The decree continued the original injunction and the receivership until such time as the court might approve a plan to improve the Clark Bridge and its approaches or to construct new approaches.
On January 10, 1957, Missouri filed its limited appearance in the city court of Alton and suggested that the court lacked jurisdiction in the principal case. This suggestion was rejected. Thereafter the State of Missouri and Karl K. Hoagland, a user of the bridge, initiated an original mandamus action in this court to compel the city court of Alton to expunge its orders. We found that the city court of Alton had jurisdiction of the parties and of the subject matter, and denied the writ. (People ex rel. Hoagland v. Streeper, 12 Ill.2d 204.) Messrs. Baetz and Daly participated in the defense of this action.
On December 3, 1957, Rolla J. Mottaz and Francis M. Karr of Alton were granted permission by the city court of Alton to intervene for the purpose of suggesting a plan to end the receivership. They were represented by Roland C. Mottaz and Harold G. Talley, who appear in this case as special counsel for the present appellants. Hearings were had upon various suggestions with respect to the termination of the receivership, and on December 7, 1957, the court entered an order suspending the collection of tolls. Thereafter the State Highway Commission of Missouri and the Department of Public Works and Buildings of Illinois executed a "preliminary agreement" whereby the former agreed to convey to Illinois that portion of the Clark Bridge located in the State of Illinois, and Illinois agreed to undertake the repair and maintenance of that portion. It was further agreed that all funds remaining in the hands of the receiver, amounting to approximately $370,000, were to be paid to the Department of Public Works and Buildings of Illinois and deposited in the Road Fund, and that other funds, amounting to approximately $200,000, theretofore received by Missouri from St. Charles County should be retained by Missouri and disbursed in accordance with the final agreement to be entered into. The State Highway Commission of Missouri agreed to release the city of Alton from any liability "arising out of the seizure" of the bridge.
An order was entered on April 1, 1958, dissolving the injunction and terminating the receivership. On April 23, 1958, the final report of the receiver was approved and he was discharged. The court found that the State Highway Commission of Missouri had (1) assumed physical control of the bridge pursuant to the decree of April 1, 1958, (2) executed a release of liability to the city of Alton and delivered it to the clerk of the court, (3) executed a receipt to the receiver acknowleding the return of personal property, and (4) removed the toll house from the Alton side of the river and was in process of entering into a final agreement with Illinois with respect to the ownership of the bridge. The decree also found that the receiver had transferred the funds in his possession to the Department of Public Works and Buildings of Illinois.
A motion by the city of Alton to dismiss the appeal has been taken with the case. This appeal is unique in many ways. It is taken by the State of Missouri and its State Highway Commission, who were not parties below, and who actively sought, in this court and in the Federal courts, to prevent the exercise of jurisdiction by the trial court. Even in their notice of appeal they purport to waive sovereign immunity only for the purpose "of appeal and review." The appeal is limited to an attack upon the orders that allowed attorneys' fees to Anthony W. Daly and Emerson Baetz. Those orders were appealable when they were entered. (People ex rel. Russel v. Illinois State Bank of Crete, 312 Ill. 613.) The most recent of them was entered on November 14, 1957, and the notice of appeal was not filed until April 24, 1958. The normal time for appeals from those orders had expired before the notice of appeal was filed. (See Ill. Rev. Stat. 1957, chap. 110, par. 76.) Moreover it appears from the record that the appellants have accepted benefits under the final decree from which this appeal is taken.
The appellants contend that their appeal is authorized by section 74 of the Civil Practice Act, which provides: "The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error is preserved by notice of appeal." (Ill. Rev. Stat. 1957, chap. 110, par. 74.) Prior to the enactment of the Civil Practice Act in 1933, one who was not a party to an action had no right of statutory appeal. (Louisville, Evansville and St. Louis Consolidated R.R. Co. v. Surwald, 147 Ill. 194; People ex rel. Galloway v. Franklin County Building Ass'n, 329 Ill. 582.) He could, however, prosecute a writ of error by a showing that he was a privy to the record or would be injured by the ...