People Ex Rel. Modern Woodmen of America v. Circuit Court

This cause is here on an original petition filed in this court praying that a writ of prohibition issue against the circuit court of Washington county, respondent herein. The petition was filed on the relation of the Modern Woodmen of America, a corporation, and alleges that there was filed in the circuit court of Washington county a bill of complaint in which H.J. Schmidt, William Lutz, J.W. McKissick and A.E. Rouland, members of the Modern Woodmen of America, are named parties complainant, suing on behalf of themselves and all others similarly situated, seeking to restrain the petitioner here from enforcing certain changes in the by-laws of the society and from enforcing increased rates of insurance authorized by such amended by-laws. The petition avers that petitioner is the same society named as one of the parties defendant in the case entitled Jenkins v. Talbot, 338 Ill. 441, decided by this court on February 21, 1930; that said case was instituted in the circuit court of Cook county shortly after the changes in the by-laws of petitioner, by Edward W. Jenkins and others, members of the society, on behalf of themselves and all other members of the society, and that other members of the society filed intervening petitions in that suit adopting the averments of the bill of complaint and adding further averments thereto. It is set out in the petition here that the object of the bill of complaint and intervening petitions was to restrain the petitioner from putting into effect the repeal of section 100 of the by-laws and the amendment to section 42 of such by-laws, and to obtain a decree declaring said actions of the Head Camp of the society taken in June, 1929, to be null and void; that a decree was entered denying the prayer of the bill of complaint and intervening petitions and dismissing them for want of equity, and that the decree of the circuit court was in all respects approved and affirmed by this court and said decree remains in full force and effect. The petition also alleges that the bill filed in the respondent court seeks the same relief sought in the case of Jenkins v. Talbot. The petition also avers that an application for an interlocutory injunction was made before Hon. Silas Cook, judge of the city court of East St. Louis, sitting as one of the judges of the Washington county circuit court; that petitioner filed its sworn answer to the bill for injunction, setting up the proceedings in Jenkins v. Talbot, quoting at length from the bill filed in that case and presenting a copy of the decree entered by the circuit court of Cook county and affirmed by this court, but that, notwithstanding this, the circuit court of Washington county entered a temporary injunction restraining the petitioner and its officers and agents from assessing or collecting any assessment under section 42 of the by-laws as amended in June, 1929, and from terminating the membership of complainants and others similarly situated for failure to pay the increased rates provided by section 42 as amended, or from enforcing any of the by-laws until final hearing of the cause and further order of the court. The petition further shows that after the bill of complaint was filed in the circuit court of Washington county petitioner filed a motion for leave to file a petition for writ of prohibition to restrain that court from proceeding in the case and that this court denied that motion, and that after the denial thereof the circuit court of Washington county proceeded to hear the application for the temporary injunction referred to and granted the same. The petition alleges that the bill of complaint filed in the circuit court of Washington county does not state a new or different cause of action but is the same cause of action heard and determined in the case of Jenkins v. Talbot, and that the entry of the temporary injunction of the circuit court of Washington county is an attempt to override and annul the judgment of this court in the Jenkins case and to abrogate the force and effect of that judgment, and that thereby the circuit court of Washington county has exceeded and abused, and is exceeding and abusing, its jurisdiction and interferes with the appellate jurisdiction of this court, and that its purported action tends to bring into disrepute the judicial system and the administration of justice in this State. The petition also alleges that the entry of said injunction order has already worked great and irreparable harm to the business and welfare of the petitioner, and that each day of the continuance of the injunctional order means tremendous loss to the petitioner for which it cannot be compensated; that the vast insurance business of the petitioner, in which millions of beneficiaries are vitally interested, is thrown into confusion and chaos and threatened with destruction and the obligations of the nine hundred thousand insurance contracts between petitioner and its members are impaired, and that petitioner would have for this reason no adequate remedy by a review of the action of the circuit court of Washington county save by a writ of prohibition issued against that court. The petition prays that a rule on said circuit court of Washington county be entered to show cause why a writ of prohibition should not issue against that court to prohibit all and each of the judges of that court, and said Hon. Silas Cook, or any other judge who may hereafter sit as one of the judges of that court, from assuming and exercising jurisdiction in the cause now pending therein.

There are attached to the petition, as exhibits, copies of the bill filed in the circuit court of Washington county and the amendments thereto, the sworn answer of the petitioner thereto, the decree entered in the case of Jenkins v. Talbot, and the order for temporary injunction entered by the circuit court of Washington county. A rule to show cause and a stay of proceedings pending the disposition of this petition were entered. Respondent has demurred to the petition. Briefs of the parties and an abstract have been filed.

The grounds on which the demurrer of respondent is based are, first, that this court has no original jurisdiction to grant the writ as prayed in the petition and that the petition attempts to invoke the original jurisdiction of this court; second, that this court has no jurisdiction to grant the writ prayed for in aid of its appellate jurisdiction; third, that the right to this writ has been previously adjudicated by this court against the petitioner; fourth, that the petition shows on its face that allowance of its prayer would violate constitutional rights of respondent and complainants in the bill filed in the circuit court of Washingtion county; and fifth, that the petition is insufficient.

The writ of prohibition is of ancient origin. In Beame's Translation of Glanville, pages 56, 96, 97 and 98, a number of forms of such writs as then in use are set out. Glanville's treatise was written about 1181 and is the earliest known work on the English law. Originally, in England jurisdiction to issue writs of prohibition was exercised by the Court of King's Bench, though it was later exercised by courts of chancery and common pleas or exchequer. (3 Blackstone's Com. 111.) In its original form it was used to prevent encroachments by the ecclesiastical upon the civil courts. It has always been defined as an extra-ordinary judicial writ issued out of the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior court from usurping a jurisdiction with which it is not legally vested and to keep such court within the limits and bounds prescribed for it by law. The Mayor v. Cox, 2 L. R. Eng. Ir. App. (1867) 239; People v. Works, 7 Wend. 486; High on Ex. Legal Remedies, (3d ed.) sec. 762.

A writ of prohibition is a common law remedy, and, like other common law remedies, it is generally recognized as existing in this country unless abolished by positive statutory enactment. The writ is here exercised by an appellate or superior court to restrain an inferior court from acting without authority of law when damage and injustice are likely to follow from such action. It is a prerogative writ, and, like all other writs of that character, it is to be used with caution, and only to secure order and regularity in judicial proceedings when none of the ordinary remedies provided by law are applicable or adequate. It may be invoked to prohibit the inferior tribunal from assuming jurisdiction in a matter over which it has no control and also from going beyond its legitimate powers in a matter over which it has jurisdiction. Its object is not to remove the subject matter of the proceedings from the lower to the higher court for purpose of a decision on the merits of the controversy, but to restrain the lower court from further action in such proceeding. It is never resorted to when there is another adequate remedy or to correct mere irregularities nor is it to be used to perform the functions of an appeal or writ of error. (People v. Circuit Court, 169 Ill. 201.) The power of this court to issue writs of prohibition was considered in the case just cited. It was there held that as the constitution conferred original jurisdiction on this court in certain specified cases it cannot exercise original jurisdiction in cases not so specified and that this court has no original jurisdiction to issue a writ of prohibition. Attention is there called to the difference between the constitutional provisions of other States where original jurisdiction to issue such writs is recognized, and the provisions of our own constitution. It was held, however, inPeople v. Circuit Court, supra, that such a writ may be issued by this court in aid of its appellate jurisdiction, and as ancillary thereto, in a cause properly before it. Attention is there called to the act of 1874 relating to courts, section 7 of which is as follows: "The Supreme Court shall be vested with all power and authority necessary to carry into complete execution all its judgments, decrees and determinations in all matters within its jurisdiction, according to the rules and principles of the common law and of the laws of this State." And section 8 reads: "It may issue writs of mandamus, habeascorpus, certiorari, error and supersedeas, and all other writs, not prohibited by law, which may be necessary to enforce the due administration of justice in all matters within its jurisdiction." (Cahill's Stat. 1931, chap. 37, p. 911.) It was also held in People v. Circuit Court, supra, that the grant of general power to exercise appellate jurisdiction implied the particular power to use the writ of prohibition if necessary to the exercise of such jurisdiction. It was, however, held in that case, that as the proceeding there involved had not been before this court it was not a proper case for the exercise of that jurisdiction.

In People v. Superior Court, 234 Ill. 186, a petition was filed in this court for writ of certiorari, in which it was averred that the superior court of Cook county was about to take jurisdiction of a petition for habeas corpus in a case entitled People vs. Lipsey. Lipsey had been convicted in the criminal court of Cook county of the crime of receiving stolen property and adjudged to be confined in the penitentiary, which judgment was affirmed by this court. The petition alleged that the superior court of Cook county was without jurisdiction of the subject matter of the petition for a writ of habeascorpus. It was argued in defense against the petition that this court did not have original jurisdiction to issue writs ofcertiorari but could only issue such writs in aid of its appellate jurisdiction, and that as the judgment of the criminal court had been affirmed and a mandate had issued from this court, the cause was no longer in this court and it had no jurisdiction to issue the writ applied for. People v. CircuitCourt, supra, was there considered, and it was pointed out that in that case it was determined that the court was without power to order the issuance of a writ of prohibition in aid of its appellate jurisdiction in a cause which had not been before this court, and that the writ could only issue where appellate jurisdiction had been already acquired by this court of the subject matter of the pending suit.

In People v. Superior Court, supra, the common source of jurisdiction to issue writs of prohibition and writs ofcertiorari was discussed and recognized and the distinction between that case and the case of People v. Circuit Court was pointed out and declared to be, that in the latter case the appellate jurisdiction of the court had never been involved, while in the matter under consideration, which was the criminal proceedings against Lipsey, the appellate jurisdiction of this court was involved. It was there said: "It seems illogical to say a writ of certiorari issued to preserve the status while the cause was here pending was issued for the purpose for which we might lawfully direct the issuance thereof as our power in the premises is above defined, but that a writ issued to prevent an interference with the execution of the judgment which we, in the exercise of our appellate jurisdiction, had directed should be carried into effect was not issued for the purpose for which we might so lawfully direct its issuance; that while the case is pending, and so long as the result is uncertain, this court may by certiorari prevent any disposition being made of the body of the prisoner that would render any judgment thereafter rendered nugatory, but that when this court has directed that the judgment itself shall be carried into effect the court is powerless to prevent any unauthorized and illegal interference therewith by an inferior tribunal. In our judgment, when we directed the criminal court to carry into effect the original sentence, that court, and the agencies made use of by it in complying with our direction, became our agencies, and any unauthorized interference with them, or either of them, while executing that sentence, was an illegal infringement of our appellate jurisdiction. Under such circumstances a writ of certiorari may properly issue from this court in aid of and to protect the appellate jurisdiction of this court and to prevent an unlawful interference with the execution of the sentence which this court has directed the criminal court to carry into effect."

The right of this court or the Appellate Courts to issue writs of certiorari in aid of their appellate jurisdiction was recognized in People v. Pam, 276 Ill. 181, and Courter v.Simpson Construction Co. 264 id. 488.

As stated, the general rule is that a writ of prohibition may be issued by a superior court to an inferior court to prevent the latter from assuming jurisdiction not vested in it, or exceeding jurisdiction which it has by going beyond its legitimate powers in a matter within its jurisdiction. Jurisdiction of a court in a particular case is not alone the power of the court to hear the cause but it likewise involves the power to render the particular judgment entered, and every act of the court beyond that power is void. Armstrong v.Obucino, 300 Ill. 140; People v. Siman, 284 id. 28; ChicagoTitle and Trust Co. v. Brown, 183 id. 42; People v.Superior Court, supra; Ex parte Reed, 100 U.S. 13.

It may be said that the rule is well settled in this State that while a writ of prohibition may not be used simply to prevent or correct errors of an inferior court, yet a superior court may, in aid of its appellate jurisdiction, issue such writ against an inferior court in a case in which this court has exercised its appellate jurisdiction and entered judgment, the purpose of the writ being to prevent an attempt on the part of such inferior court to set aside and nullify the judgment of the superior court once entered. This rule is a complete answer to the argument of respondent that the court, having entered judgment in the case of Jenkins v. Talbot, supra, at a prior term, had lost jurisdiction of the subject matter given to it by appeal and therefore has no appellate jurisdiction to protect. This rule is likewise established in other States. InCity of Palestine v. City of Houston, 262 S.W. (Tex.) 215, a writ of prohibition was issued out of the Court of Civil Appeals, directed to the district court of Harris county of that State, restraining such inferior court from issuing a temporary injunction. It appears that the controversy arose over the removal of the offices and shops of the Great Northern railway from the city of Palestine. A decree prohibiting such removal was entered by the district court of Cherokee county and later affirmed by the Court of Civil Appeals. The city of Houston thereafter filed a proceeding in the district court of Harris county to enjoin the railway company from maintaining its offices and shops at any other place than the city of Houston. The defendants in that proceeding filed an answer setting up former adjudication of the question, and the city of Palestine applied to the Court of Civil Appeals for a writ of prohibition. It was held that the proceeding in the Harris county district court had the effect to obstruct and interfere with the due enforcement of the judgment theretofore entered by the Court of Civil Appeals affirming the decree of the district court of Cherokee county and invaded the jurisdiction of that appellate court, and the writ was awarded. In State v. White, 40 Fla. 297, 24 So. 160, the writ of prohibition was held to be a proper remedy to prevent an invasion of the judgment of the court by an inferior court.

Respondent argues that as the petitioner had a right to appeal from the order of the Washington county circuit court awarding a temporary injunction this court was without jurisdiction to enter a writ of prohibition, for under the established rule such writ could not be issued in cases where a review of the decision of the inferior court might be had. It may be said that this is generally the rule where an adequate remedy is provided by law for a review of the proceedings in the inferior court. This is not, however, necessarily true in cases where a writ is sought in aid of the superior court's appellate jurisdiction, since the writ in such case is based on the want of power of the inferior court to invade or obstruct the judgment of the superior court or its consideration of the appeal, as the case may be. Again, it may be, as petitioner contends here, that an appeal would be wholly inadequate, and that before the matter could be reviewed on appeal the judgment of this court in the cause would be entirely abrogated and petitioner itself destroyed. Curtis v. Cornish, 84 Atl. (Me.) 799; Atchison v. Love, 119 Pac. (Okla.) 207; Jacobsen v.Superior Court, 219 Pac. (Cal.) 986.

In this case the demurrer of respondent admits all averments of the petition well pleaded. Among those are the allegations that since the entry of the judgment of this court inJenkins v. Talbot, supra, and on the basis of that judgment, petitioner has entered into hundreds of thousands of new insurance contracts with its members; has set aside reserves amounting to millions of dollars, as provided by section 42 of the by-laws as amended; has issued over four hundred thousand new memberships to those members who joined prior to July 1, 1919, or permitted them to take cash withdrawal benefits; has issued to members who joined prior to July 1, 1919, exchanged insurance in excess of $620,000,000 and increased insurance in excess of $32,500,000; has issued double indemnity in excess of $138,000,000; has issued limited accident insurance in excess of $6,250,000, and has disbursed all of the assets in the benefit fund in accordance with amended section 42, which fund on July 1, 1929, amounted to $39,000,000. The facts set up in the petition of petitioner and admitted by the demurrer show that by the issuance of a temporary injunction petitioner lost thousands of members through loss of confidence in the solvency of the society; that its affairs were thrown into confusion and chaos, and that an interruption for even a brief period of time in the collection of the adequate assessment rates by the society would result in the destruction of its actuarial solvency and therefore the destruction of the society. In such a state of facts as here alleged and admitted by the demurrer, a review, by appeal, of the order of the circuit court of Washington county would be a mere mockery. Such a remedy would be in nowise adequate.

Counsel for respondent also argue that while this court may issue a writ of prohibition in aid of its appellate jurisdiction in a case where there is an affirmative judgment entered by this court, yet here, where the only judgment was that affirming the circuit court of Cook county dismissing the bill of complaint in the Jenkins case, there is nothing for this court to protect and the rule with reference to protection of the judgment of the court does not apply. The judgment of this court which the temporary injunction of the respondent court was designed to affect was that section 42 of the by-laws as amended was a valid and legal by-law, and that judgment therefore necessarily fixed the right of the petitioner society to collect the assessment provided for by that by-law, and the temporary injunction could have no other effect than to obstruct that judgment.

Counsel also argue that the bill for injunction filed in the Washington county circuit court was on a different ground from that urged in Jenkins v. Talbot, and that therefore it was not an interference with the judgment of this court in that case; that the ground of attack in the bill filed in the Washington county circuit court was fraud, while such was not an issue inJenkins v. Talbot, supra. It appears, however, from the petition and by the answer filed in the Washington county circuit court, and as well by respondent's demurrer, that fraud was alleged as a ground for relief in the Jenkins case and was on the motion of complainants in that case dismissed out of the bill. It is clear, therefore, that the charge of fraud was made by complainants in the Jenkins case, a part of whom are complainants in the case filed in the Washington county circuit court, and that such charge was later abandoned by them. The question of fraud was not left open as a ground of later attack against the by-laws of petitioner but was necessarily disposed of in the Jenkins case. The rule concerning res judicata embraces not only what was actually determined in the former case between the same parties or their privies, but it extends to any other matter properly involved which might have been raised and determined and to all grounds of recovery or defense which might have been presented. (Phelps v. City of Chicago,331 Ill. 80; People v. Harrison, 253 id. 625; Godschalck v.Weber, 247 id. 269.) A litigant may not split his cause of action and try it piecemeal. The law does not permit one to seek a decree on one ground, and, failing, seek the same decree on another ground originally open to him. It requires him "to present the entire wealth of his case at once." (Harmon v. Auditor ofPublic Accounts, 123 Ill. 122.) The issues sought to be litigated in the case filed in the Washington county circuit court were open to complainants in the Jenkins case. They are again raised for the sole purpose of securing the same relief which complainants failed to secure in the Jenkins case. It is obvious that such relief cannot be granted without setting at naught the judgment of this court.

Counsel for respondent also argue that Jenkins v. Talbot,supra, having been appealed to the Supreme Court of the United States, this court thereby lost jurisdiction of the judgment entered by it pending such appeal, and therefore has no jurisdiction to award a writ of prohibition. As the Supreme Court of the United States has, since this case was taken under advisement, dismissed the appeal in the Jenkins case, no further attention need be given to this argument.

It is also argued that this court has passed upon the right of the petitioner to a writ of prohibition in this case by denying a previous application therefor. The facts on which this position is grounded are as follows: Subsequent to the filing of the bill under consideration in the Washington county circuit court, and prior to any action thereon by that court, an application was made to this court for the issuance of a writ of prohibition. It not then appearing that the Washington county circuit court would take any action in the premises affecting the judgment heretofore entered by this court, that application was deemed to be without sufficient showing and was therefore denied. This application, however, comes after the Washington county circuit court has entered a temporary injunction attempting, in effect, to set aside the judgment of this court in theJenkins case, and the present application was therefore permitted to be filed and a stay order was entered. The argument of counsel for respondent is therefore without force.

It is also argued that, this being a proceeding at law, the petition is insufficient, in that it includes by reference, only, the copies of the proceedings in the Washington county circuit court and in Jenkins v. Talbot, supra. The writ is a common law writ as generally recognized in this country. (Exparte Cooper, 143 U.S. 71; 36 id. (L. ed.) 232.) The exactions of common law pleadings have, however, never been recognized. The practice originally was to file a suggestion, with an affidavit in support thereof, where prohibition was sought for reasons not appearing on the face of the proceedings. (In reBaiz, 135 U.S. 403; 34 id. (L. ed.) 222.) It now may be made by complaint or declaration or by affidavit. It is necessary that the petition, however named, disclose facts from which the lower court, unless prohibited, will act beyond or in excess of its jurisdiction, and there must also appear such other facts as are necessary to justify the issuance of the writ. As we have seen, the verified petition in this case set out as facts the various proceedings in the respondent court as well as proceedings in this court and the circuit court of Cook county. It was not necessary that the records of the Washington county circuit court or of Jenkins v. Talbot, supra, be set out inhæc verba. While under the common law practice the respondent is said to demur or plead to the "declaration," it is not required that a common law declaration be filed.

We are of the opinion that this court not only has jurisdiction to enter a writ of prohibition in this case, but that in order to prevent the nullification of its judgment heretofore entered in the Jenkins case and in order to prevent ruin of the petitioner society, which must follow if it be relegated to its remedy by appeal, this court should award this writ. The writ of prohibition is therefore awarded as prayed.

Writ awarded.