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Young v. Hansen

JULY 3, 1969.

JAMES C. YOUNG, SR., PLAINTIFF-APPELLANT,

v.

JAMES A. HANSEN, CHIEF OF POLICE OF THE CITY OF ELGIN, ILLINOIS, LT. CHARLES P. MILLER, OFFICER KENNETH LUECHT, OFFICER RICHARD LUND, OFFICER AL GRANTHAM, OFFICER ROBERT L. SCHROEDER, OFFICER R.W. HENEISE, ROBERT L. BRUNTON, CITY MANAGER OF ELGIN, ILLINOIS, CITY OF ELGIN, A MUNICIPAL CORPORATION, ELGIN Y & C CAB CO., INC., A CORPORATION, EDWARD DARNELL AND WARD LOWRY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff, James C. Young, Sr., commenced this action for a declaratory judgment against the municipal defendants, City of Elgin, Robert L. Brunton, City Manager of Elgin, James A. Hansen, Chief of Police of the City of Elgin, Lt. Charles P. Miller, Officers Kenneth Luecht, Richard Lund, Al Grantham, Robert L. Schroeder and R.W. Heneise, members of that City's Police Force, and also against Elgin Y & C Cab Co., Inc., and two of its agents and employees — Edward Darnell and Ward Lowry. The municipal defendants, and the Cab Co., together with Darnell and Lowry, filed separate motions to dismiss, which were allowed. The plaintiff elected to stand on his complaint, and judgment was entered against him. This appeal followed.

The only questions raised are based on the pleadings. In essence, the plaintiff's complaint alleged that the plaintiff had received an operator's registration card from the City of Elgin, permitting him to operate a taxicab business in the City, and that he had been engaged in operating his cabs until March 17, 1967, when the defendant, Hansen, revoked his operator's registration card, allegedly because the plaintiff had been found guilty of disorderly conduct on April 27, 1967. Other charges, however, were apparently pending against the plaintiff on the date of the revocation. The complaint also set out the municipal ordinances governing the issuance of the operator's registration cards.

The ordinances provided that no registration card should be issued to any person not of good moral character, or who is a repeated violator of the Illinois Motor Vehicle Laws; and that "Operator's registration cards shall be revoked by the Chief of Police and cancelled for repeated violations of traffic laws or ordinances." The complaint further alleged that no written charges had been served on the plaintiff; that no hearing had been held prior to the revocation; and that the plaintiff had demanded the restoration of his operator's registration card, but that the defendants, Hansen and Brunton, had rejected his demands and had refused to restore it.

The complaint then set forth allegations of conspiracy on the part of the defendants, and alleged that they entered into a conspiracy and scheme maliciously to harass and persecute him in the operation of his taxicab business, and to destroy the value of his business, and that they wrongfully and without justification, under the guise of enforcing the statutes of the State of Illinois and ordinances of the City of Elgin, arrested and prosecuted him with the intention of procuring the revocation of his operator's registration card in order to eliminate him as a competitor of the defendant, Elgin Y & C Cab Co., Inc. Various acts in furtherance of the conspiracy were then alleged. The complaint prayed for a declaration that the plaintiff be entitled to a restoration of his operator's registration card; for an injunction to restrain the defendants from engaging in a conspiracy against the plaintiff to destroy his business; and for a separate trial to determine the damages sustained by the plaintiff, due to the alleged conspiracy.

The municipal defendants charge that the plaintiff is not entitled to the remedy of a declaratory judgment in that he is really seeking a remedy available in a mandamus action, an injunction act, and an action for money damages. The defendants' motions charge that a declaratory judgment action was not intended to provide a remedy where there are other existing, adequate, recognized remedies, and they cite: Goodyear Tire & Rubber Co. v. Tierney, 411 Ill. 421, 430, 104 N.E.2d 222 (1952); Goldberg v. Valve Corp. of America, 89 Ill. App.2d 383, 391, 233 N.E.2d 85 (1967); Stern v. Material Service Corp., 44 Ill. App.2d 198, 214, 194 N.E.2d 511 (1963); Coven Distributing Co., Inc. v. Chicago, 346 Ill. App. 448, 453, 105 N.E.2d 137 (1952).

The Declaratory Judgments Act (Ill Rev Stats 1967, c 110, par 57.1) does not become inapplicable merely because relief or remedies other than a declaration of rights are sought. Subsection (1) provides that a declaration of rights may be made "whether or not any consequential relief is or could be claimed." Subsection (2) provides that the relief of a declaration of rights may be sought alone, "or as incident to or a part of a complaint . . . seeking other relief as well. . . ." Subsection (3) relates to the granting of further relief based upon a declaration of rights after the declaration has been made.

The Historical and Practice Notes to section 57.1 (SHA ch 110, pages 126-135) indicate that the declaratory judgment remedy provides a new, additional, cumulative and alternative procedural method for the judicial determination of substantive rights and duties. It may, or may not be that a mandamus action could have afforded the plaintiff at least part of the relief he sought; but, even so, the availability of such a remedy is not sufficient to bar his right to seek a declaratory judgment. In American Civil Liberties Union v. Chicago, 3 Ill.2d 334, 353, 121 N.E.2d 585 (1954), the court stated that the contention that the availability of affirmative relief by way of mandamus bars an action for declaratory judgment "is refuted by explicit language of section 57 1/2 (now 57.1) of the Civil Practice Act." The court then explained its holding in Goodyear Tire & Rubber Co. v. Tierney, supra, stating: "The case in no way suggests that an action for declaratory relief is defeated by the mere existence of another form of action which could presently be employed."

The plaintiff's complaint details a legal dispute between the plaintiff and the several defendants sufficiently, in this regard, to withstand a motion to dismiss. The availability of other remedies and the intention to obtain additional relief, as evidenced by the prayer in the complaint, do not preclude the form of action chosen by the plaintiff. The language of the statute and the interpretation given it by our courts evince a purpose to maintain the scope of declaratory judgment relief broad and liberal and not restricted by technicalities. If there is no particular reason for denying the use of this procedure when another remedy is available, the declaratory judgment action should also be available. Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill. App.2d 387, 391, 392, 237 N.E.2d 345 (1968); La Salle Cas. Co. v. Lobono, 93 Ill. App.2d 114, 118, 236 N.E.2d 405 (1968); Koziol v. Village of Rosemont, 32 Ill. App.2d 320, 327, 328, 177 N.E.2d 867 (1961).

The complaint sets forth the provisions of the ordinance, which state that a registration card shall be revoked and cancelled for repeated violations of traffic laws or ordinances. It further alleges that the plaintiff's registration card was revoked on March 17, 1967, on the stated ground of one disorderly conduct finding — which took place on April 27, 1967, approximately one month after the registration card was revoked. This seemingly incongruous allegation is later explained by the allegation that the plaintiff had earlier pleaded guilty to the charge, upon receiving assurance that the plea would not be used as the basis of any action to take away his licenses or permits to engage in the taxicab business. The complaint asserts that the action is the result of the concerted conspiracy among the several defendants, and it specifically enumerates a number of acts allegedly done as a result of and in furtherance of the conspiracy.

These acts, and the facts set forth in the complaint, are sufficiently particular to state a cause of action. By its very nature, a conspiracy, if one exists, normally precludes the one who is its object from being in a position to charge, with complete particularity, the details of the conspiracy. In a civil case, the acts alleged to have been done in pursuance of a conspiracy, and not the conspiracy itself, are the gist of the action. B.R. Paulsen & Co., Inc. v. Lee, 95 Ill. App.2d 146, at 151, 152, 237 N.E.2d 793 (1968); Ammons v. Jet Credit Sales, Inc., 34 Ill. App.2d 456, 465, 181 N.E.2d 601 (1962). We believe that the plaintiff's complaint, seeking relief by means of a declaratory judgment from the effects of the alleged conspiracy to put him out of the taxicab business, states a good cause of action.

The municipal defendants also moved to dismiss the complaint on the grounds of the Local Government and Governmental Employees Tort Immunity Act (Ill Rev Stats 1967, c 85, par 1-101, et seq.). The defendants cite the following sections of this Act:

"Sec. 2-201. Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."

"Sec. 2-206. A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where he is authorized by enactment to determine ...


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