{ "id": 5412803, "name": "Delbert Waller, Plaintiff-Appellant, v. Board of Education of Century Community Unit School District of Pulaski, Alexander, Massac and Johnson Counties, Defendant-Appellee", "name_abbreviation": "Waller v. Board of Education of Century Community Unit School District", "decision_date": "1975-05-01", "docket_number": "No. 74-296", "first_page": "328", "last_page": "333", "citations": [ { "type": "official", "cite": "28 Ill. App. 3d 328" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "286 Ill. 564", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4934365 ], "opinion_index": 0, "case_paths": [ "/ill/286/0564-01" ] }, { "cite": "321 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5166439 ], "opinion_index": 0, "case_paths": [ "/ill/321/0324-01" ] }, { "cite": "386 U.S. 714", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181828 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/386/0714-01" ] }, { "cite": "245 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "42 Ill.2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849238 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0045-01" ] }, { "cite": "240 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill.App.2d 305", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2647349 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/98/0305-01" ] }, { "cite": "243 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "104 Ill.App.2d 132", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601101 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0132-01" ] }, { "cite": "4 N.J.L. 330", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 16151 ], "opinion_index": 0, "case_paths": [ "/njl/4/0377-01" ] }, { "cite": "175 Ill. 619", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3162872 ], "opinion_index": 0, "case_paths": [ "/ill/175/0619-01" ] }, { "cite": "14 L.Ed. 181", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3361178 ], "opinion_index": 0, "case_paths": [ "/us/54/0363-01" ] }, { "cite": "278 Ill. 261", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4872399 ], "opinion_index": 0, "case_paths": [ "/ill/278/0261-01" ] }, { "cite": "22 Ill. 546", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5280522 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/22/0546-01" ] }, { "cite": "11 Ill. 26", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2576678 ], "weight": 2, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ill/11/0026-01" ] }, { "cite": "46 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "381 Ill. 549", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2559525 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/381/0549-01" ] }, { "cite": "302 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill.App.3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5341457 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1056-01" ] } ], "analysis": { "cardinality": 687, "char_count": 12786, "ocr_confidence": 0.759, "pagerank": { "raw": 2.0454212952749858e-07, "percentile": 0.7547426510194224 }, "sha256": "a02ad7798cedf2e6028027ef64a09a4e1acc2c4675fd96f92d9aa6e8294c74b9", "simhash": "1:b911c6c6a355f77e", "word_count": 2121 }, "last_updated": "2023-07-14T21:36:05.902616+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Delbert Waller, Plaintiff-Appellant, v. Board of Education of Century Community Unit School District of Pulaski, Alexander, Massac and Johnson Counties, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is the second appeal to this Court in this matter, an earlier.decision having been rendered in Waller v. Board of Education of Century Community Unit School District (1973), 13 Ill.App.3d 1056, 302 N.E.2d 190.\nIn the first action the facts were that the plaintiff, Waller, was dismissed from his position as superintendent of schools, and reassigned as a teacher. Later, the Board of Education voted to dismiss plaintiff as a teacher as well. The decision of the Board of Education was affirmed by the trial comt in April of 1972. On appeal, the judgment of the trial court was reversed because of the Board\u2019s failure to comply with the steps and procedures required by law for such dismissal.\nThen, plaintiff, in accordance with section 24 \u2014 12 of the School Code, filed a motion for damages in the circuit court requesting reinstatement as a teacher, lost wages, and various costs and expenses, including attorney's fees in the amount of $2450. The circuit court granted the items of damage in the motion except for attorney\u2019s fees. The court held that attorney\u2019s fees are not damages under the School Code. (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 12). From this judgment, the plaintiff has brought this appeal seeking the award of attorney\u2019s fees. There is no dispute as to the facts which preceded this appeal.\nThe issue presented by this appeal is whether a wrongfully discharged teacher may recover attorney\u2019s fees as damages under section 24 \u2014 12 (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 12), which reads in pertinent part:\n\u201cIf the decision of the board is reversed upon review or appeal, on a motion of either party the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein.\u201d\nIt is clear that at common law in Illinois a successful litigant is not entitled to recover costs and expenses of litigation from the other party. In Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41, the supreme court stated at pages 552 \u2014 554:\n\u201cThe allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. Any party to an action, claiming the right to recover costs from his adversary, must found his right upon some provision of a statute. This has been the law in this State from the earliest time. (Adams v. Payson, 11 Ill. 26; Chase v. De Wolf, 69 id. 47; Smith v. McLaughlin, 77 id. 596; Byers v. First Nat. Bank, 85 id. 423; Dixon v. People, 168 id. 179; Ricker v. City of Danville, 204 id. 191; Patterson v. Northern Trust Co., 286 id. 564.) A court of chancery may be vested with a power to exercise a discretion in awarding costs but the power to act must come from a statute and the discretion must be confined to that which is authorized by legislative enactment. Constant v. Matteson, 22 Ill. 546; Conwell v. McCowan, 53 id. 363; Hutchinson v. Hutchinson, 152 id. 347; Wilson v. Clayburgh, 215 id. 506; Metropolitan Life Ins. Co. v. Kinsley, 269 id. 529; Goudy v. Mayberry, 272 id. 54.\nTire rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. (Constant v. Matteson, supra; Conwell v. McCowan, supra; Hutchinson v. Hutchinson, supra; Rasch v. Rasch, 278 Ill. 261; Kinane v. Fay, 168 Atl. (N.J.) 724; Weinhagen v. Hayes, 190 N.W. (Wis.) 1002; Day v. Woodworth, 14 L.Ed. 181.) * * * It may be that the statutoiy costs awarded to a successful plaintiff are inadequate to compensate him for the injury caused by the defendant\u2019s wrongful conduct, but the question of the amount of costs which are to be allowed the successful party and the items of expense to be included therein is a question to be determined by the legislature and not by the courts. Smith v. Michigan Buggy Co., 175 Ill. 619; Potts v. Imlay, 4 N.J.L. 330.\u201d\nIn the cases that have followed Ritter, the basic principles of that case have been reaffirmed, The statutes which the party seeking fees have sought to use as a basis for recovery have been strictly construed. In People ex rel. Henderson v. Redfern (1968), 104 Ill.App.2d 132, 243 N.E.2d 252, two statutes were involved. One statute, section 41 of the Civil Practice Act (Ill. Rev. Stats. 1967, ch. 110, par. 41), provided specifically for attorney\u2019s fees but was inapplicable on the facts of the case. That statute provides:\n\u201cAllegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney\u2019s fee, to be summarily taxed by the court at the trial.\u201d (Emphasis added.)\nIn the alternative, plaintiff sought to rely on section 6 of the Quo Warranto Act (Ill. Rev. Stat. 1967, ch. 112, par. 14) which the court quoted and discussed at page 136:\n\u201c \u2018In case any person or corporation against whom such complaint is filed is adjudged guilty as charged in the complaint, the court may give judgment of ouster against such person or corporation from the office or franchise, and fine such person or corporation, and also give judgment in favor of the relator for the cost of the prosecution: * * *\u2019\nWe have found no Illinois cases defining the phrase \u2018cost of the prosecution\u2019 under this section. The Illinois Legislature in a variety of proceedings has provided specifically that attorneys\u2019 fees may be recovered by the successful party, but it did not do so under the Quo Warranto Act. While there might well be situations prompting action under this Act that in equity, would dictate assessing attorneys\u2019 fees against a party, this is a matter for legislative rather than judicial action. Consideration of the propriety of assessing attorneys\u2019 fees is permissible only where the statute specifically allows their assessment and we may not judicially enlarge the phrase \u2018cost of the prosecution\u2019 to include such expense.\u201d (Emphasis added.)\nThe legislature has in the past specifically provided for attorneys\u2019 fees where it wished to, and the courts have refused to interpret imprecise language as permitting attorneys\u2019 fees.\nThe appellant here argues that the language of section 24 \u2014 12 (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 12) requires or allows the trial court to grant attorney\u2019s fees. The language he relies upon is that the trial court is \u201c* * * not limited to loss of income and costs incurred therein\u201d in awarding damages.\nIn Miller v. Board of Education (1968), 98 Ill.App.2d 305, 240 N.E.2d 471, the statute presently under consideration was applied, and court reporter\u2019s fees were granted. It is important to note that the court specifically found that the order of the trial court did not include any attorney\u2019s fees, and that only court reporter\u2019s fees were being considered. The court in that case phrased the issue as whether court reporter\u2019s fees were \u201ccosts\u201d as that term is used in the statute. At page 312, the court made the following observations:\n\u201cCourt reporter fees were a necessary expense incurred by the plaintiff and he is entitled to reimbursement therefor. It should be noted that the statute, after prescribing loss of income and costs as damages, provides that damages shall not be limited to such items. Hence some additional damages must have been contemplated by the legislature.\u201d\nAppellant here argues that if the court reporter\u2019s fees are \u201ccosts,\u201d then some additional elements of damages are permissible, and that attorney\u2019s fees would be an additional element of damages that \u201cmust have been contemplated by the legislature.\u201d They also argue that court reporter\u2019s fees and attorney\u2019s fees are similar, and have received similar treatment at the hands of the court, and that if court reporter\u2019s fees have been allowed, attorney\u2019s fees should be allowed as well. If attorney\u2019s fees are not allowed, it is argued, the language of the statute is mere surplusage, and that construction must be avoided.\nThe legislature has determined when attorney\u2019s fees should be awarded. It has been done by specific language such as listing \u201cattorney\u2019s fees\u201d to overcome the common law rule. Where they have not used such specific language, the courts have consistently refused to give an expanded reading to the legislative language used. See State ex rel. Henderson v. Red- fern (1968), 104 Ill.App.2d 132, 243 N.E.2d 252, and the statutes cited therein.\nThe rationale, for the position of the courts was restated in House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 245 N.E.2d 468. In that case the appellant asked for an award of attorney\u2019s fees by the court on th\u00e9 basis of the court\u2019s rule-making power. The court\u2019s answer is given at pages 51 \u2014 52:\n\u201cDefendants next raise the issue, long settled by this court to the contrary (but now clothed in due process terms) that the eventual successful litigant should receive indemnification of all attorneys\u2019 fees and actual expenses reasonably incurred in enforcing his rights. They recognize that in this country, contrary to the English system, the idea has had scant acceptance. Apparently to avoid the view that this is a legislative matter, they suggest that this court has the power to make the change through its rule-making power. The constitutional argument seems to be that Illinois \u2018and the rest of the States\u2019 tend to discourage persons from seeking vindication because they cannot be made whole. This and similar arguments have often been made without avail. (See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 18 L.Ed.2d 475, 87 S.Ct. 1404.) Our oft-stated view is that, in the absence of statute (with exceptions not here germane), attorneys\u2019 fees and the ordinary expenses and burdens of litigation are not allowable to the successful party. (Scherzer v. Keller, 321 Ill. 324; Patterson v. Northern Trust Co., 286 Ill. 564; Ritter v. Ritter, 381 Ill. 549.) It is unnecessary to comment upon our rule-making power since we are not disposed to change a doctrine so ingrained in our system of jurisprudence.\u201d\nAlthough the appellant here does not ask for attorney\u2019s fees on the basis of rule-making powers of the court, House of Vision, Inc. v. Hiyane, (1969), 42 Ill.2d 45, 245 N.E.2d 468, is indicative of refusal which attempts to obtain attorney's fees have met where the legislature has not specifically granted attorney\u2019s fees.\nIf the court reporter\u2019s fees are \u201ccosts\u201d as the court seemed to indicate in Miller by its framing of the issue, then attorney\u2019s fees are not comparable to them. In Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41, the court specifically stated the .rule applicable to costs, and separately stated the rule applicable to attorney\u2019s fees and expenses. They are not the same.\nIf the court reporter\u2019s fees are not \u201ccosts\u201d as might be indicated by the quoted language, and come under the broad view that \u201csome additional damages must have been contemplated by the Legislature,\u201d the argument of appellant that unless attorney\u2019s fees are granted, the quoted language must necessarily be surplusage, is without merit.\nIf the legislature had intended to allow attorney\u2019s fees under this statute, they would have used specific language as they have in the enactment of other statutes where a grant of attorney\u2019s fees was allowed. Appellant argues that the legislative intent to include attorney\u2019s fees in the section is provided by the legislative history of the section. However, we find no merit to that contention. The changes in the statutory drafts consisted of a change from enumeration of specific items, to a broader expression. (See Senate Bill 596, 73rd General Assembly, and Senate Bill 596 in House, 73rd General Assembly.) Attorney\u2019s fees are not mentioned in the historical materials presented. The inference appellant attempts to draw from the broadening is unwarranted in view of the strong policy in this State against awarding attorney\u2019s fees without specific language permitting the award.\nFor the reasons stated herein, we affirm the judgment.\nJudgment affirmed.\nJONES, P. J., and CARTER, J., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Drach, Terrell and Deffenbaugh, P. C., of Springfield, for appellant.", "James W. Sanders, of Marion, for appellee." ], "corrections": "", "head_matter": "Delbert Waller, Plaintiff-Appellant, v. Board of Education of Century Community Unit School District of Pulaski, Alexander, Massac and Johnson Counties, Defendant-Appellee.\n(No. 74-296;\nFifth District\nMay 1, 1975.\nDrach, Terrell and Deffenbaugh, P. C., of Springfield, for appellant.\nJames W. Sanders, of Marion, for appellee." }, "file_name": "0328-01", "first_page_order": 352, "last_page_order": 357 }