{ "id": 3375573, "name": "The People of the State of Illinois, Defendant in Error, v. A. L. Whitmer and L. R. Cotter, Plaintiffs in Error", "name_abbreviation": "People v. Whitmer", "decision_date": "1927-02-07", "docket_number": "Gen. No. 31,222", "first_page": "244", "last_page": "250", "citations": [ { "type": "official", "cite": "243 Ill. App. 244" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 Ill. 87", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5104935 ], "opinion_index": 0, "case_paths": [ "/ill/309/0087-01" ] }, { "cite": "316 Ill. 77", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5140738 ], "opinion_index": 0, "case_paths": [ "/ill/316/0077-01" ] }, { "cite": "248 Ill. 546", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3393858 ], "opinion_index": 0, "case_paths": [ "/ill/248/0546-01" ] }, { "cite": "59 Ill. 94", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5231147 ], "opinion_index": 0, "case_paths": [ "/ill/59/0094-01" ] } ], "analysis": { "cardinality": 548, "char_count": 11781, "ocr_confidence": 0.504, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32256417266025933 }, "sha256": "8dc01291880e4a186c17de11e428fe5d87d5f3c32fdbee69f129266dad26fae2", "simhash": "1:b84c2eddf0b66839", "word_count": 1957 }, "last_updated": "2023-07-14T16:40:43.470699+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, v. A. L. Whitmer and L. R. Cotter, Plaintiffs in Error." ], "opinions": [ { "text": "Mr. Presiding Justice McSurely\ndelivered the opinion of the court.\nThis writ of error brings in review a prosecution under the Illinois Securities Act [Cahill\u2019s St. ch. 32, if 254 et seg.], in which, upon trial by the court, defendants A. L. Whitmer and L. E. Cotter were found guilty and fined $5,000 each.\nDefendants say that the information does not comply with the provisions of section 33, article VI of the Constitution of the State of Illinois, which commands that \u2018 all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois\u201d; the information here does not so run but \"is as follows:\n\u201cAgain on this day comes into open court in his own proper person, Eobert E. Crowe, State\u2019s Attorney in and for the County of Cook and State of Illinois, and prosecutes in this behalf for and on behalf of the said People of the State of Illinois.\u201d This objection is technical, but finds support in a number of decided cases.\n\u201cWhen a constitution or act of the legislature, prescribes a certain form to be used in legal proceedings, it would seem that the court has no power to dispense with that form. Therefore, as the indictment does not pursue the form given in the constitution, that all indictments shall be carred on \u2018in the name, and by the authority of the People of the State of Illinois,\u2019 it is bad.\u201d Whitesides v. People, Beecher\u2019s Breese (1 Ill.) 21.\n\u201cThe motion to quash should have been sustained. The information does not run, \u2018in the name and by the authority of the People of the State of Illinois,\u2019 as required by the constitution.\n\u201cThese words can not be dispensed with. They constitute matter of substance, and advantage can be taken of their omission, in arrest or on error.\n\u201cThis proceeding is a prosecution, and the language of the constitution must be used, as in indictments.\u201d Hay v. People, 59 Ill. 94.\n\u201cCounsel for plaintiff in error is correct in his position that if a suit was a prosecution the court could not dispense with words which are essential in all prosecutions and advantage of their omission can be taken on motion in arrest or on error.\u201d People v. Gartenstein, 248 Ill. 546.\n\u201cThe provision is mandatory in all prosecutions to which it is applicable, and the omission of the constitutional requirement in such cases may be urged on motion in arrest of judgment or on writ of error.\u201d State v. Froelich, 316 Ill. 77.\nNo cases to the contrary are presented. We therefore hold that the information is not in compliance with the constitution. The trial court should have sustained the motion in arrest of judgment and this error compels a reversal.\nDefendants were charged with having sold Class \u201cD\u201d securities without having first filed in the office of the Secretary of State the documents required by the Illinois Securities Act. Defendants say that the evidence shows that the securities were not Class \u201cD\u201d but Class \u201cA\u201d securities, and that by section 4 of the Illinois Securities Act (Cahill\u2019s St. ch. 32, ]j 257) Class \u201cA\u201d securities are exempt and not subject to the provisions of this act. Section 4 describes Class \u201cA\u201d securities as those:\n\u201c(3) Issued or guaranteed by any corporation operating any public utility in the United States or any state thereof or in the Dominion of Canada or any province thereof wherein there is or was at the time of issuance thereof in effect any law regulating such utilities and the issue of securities by such corporation,\u201d etc., and that \u201csecurities in Class \u2018A\u2019 and the sales thereof shall not be subject to the provisions of this act.\u201d\nThe defendants were charged with selling securities of the West Suburban Transportation Company, whose corporate purposes according to its charter are \u201cto own, control, operate, mortgage or lease, one or more busses propelled by gas, steam, electricity or other appropriate motive power or drawn by horses, or mules for the purpose of transporting passengers or goods, wares and merchandise on public highways and to do and perform any matter or thing necessary or incidental thereto.\u201d\nSection 10, Illinois Commerce Commission Act (Cahill\u2019s St. ch. 111a, H 25) defines a public utility as follows:\n\u201cThe term \u2018public utility\u2019 when used in this Act, means and includes every corporation * * * that now or hereafter:\n\u201c (a) May own, control, operate, or manage, within the State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property or the transmission of telegraph or telephone messages between points within this State\u201d; etc.\n\u201c(b) May own or control any franchise, license, permit or right to engage in any such business.\u201d\nIf such a corporation desires to issue securities, such issue is under the control of the Illinois Commerce Commission Act, section 20 [Cahill\u2019s St. ch. 111a, 35] of which is as follows:\n\u201cThe power of public utilities to issue stocks, stock certificates, bonds, notes and other evidences of indebtedness and to create liens on their property is a special privilege, the right of supervision, regulation, restriction and control of which is and shall continue to be vested in the State, and such power shall be exercised by the Commission hereby created according to the provisions of this Act and under such rules and regulations as the Commission may prescribe.\u201d * * *\nSection 21 [Cahill\u2019s St. ch. 111a, [[36] is as follows:\n\u201cSubject to the provisions of this Act and of the order of the Commission issued as provided in this Act, a public utility may issue stocks and stock certificates, \u2019 \u2019 etc.\nPursuant to this act, the West Suburban Transportation Company applied to the Illinois Commerce Commission for a certificate of convenience and necessity to operate a motor bus line between Cicero, Illinois, and Hinsdale, Illinois, and intervening points. April 19, 1922, this commission issued a preliminary certificate providing that after the company complied with certain terms and conditions a certificate of convenience and necessity would be granted. An appeal from this order was taken by the Chicago and West Towns Railway Company to the superior court of Cook county, which court, October 23, 1922, reversed this order. Prom this superior court decision, an appeal was taken to the Supreme Court which affirmed the decision in an opinion filed June 20, 1923, reported in 309 Ill. 87.\nJune 21, 1922, the Illinois Commerce Commission entered an order finding that the West Suburban Transportation Company had complied with the conditions contained in its order of April 19, 1922, and issued its certificate of convenience and necessity to said company and gave authority to operate motor vehicles between the points set forth in the order. The order further recited that, application having been made to the commission for the consent of the commission to the issue by the West Suburban Transportation Company of $100,000 of stock and the commission having found that the money to be procured by the issuance and sale of said capital stock is \u201creasonably necessary and required,\u201d it was therefore ordered \u201cthat the West Suburban Transportation Company be and it is hereby authorized to issue its capital common stock in the aggregate par amount of $100,000,\u201d and to sell the same under certain conditions as to price and accounts. The order also provided that all certificates of stock should be stamped on the face thereof as follows:\n\u201cIllinois Commerce Commission\nAuthorization No. 1324\nJune 19,1922.\u201d\nNo appeal was taken from this order of June 21,1922.\nThe defendants admitted that the West Suburban Transportation Company had not filed any statements with the secretary of State under the provisions of the Illinois Securities Act [Cahill\u2019s St. ch. 32, [f 254 et seq.].\nThe evidence shows that on June 11 and 18, 1923, Reverend Michael O\u2019Sullivan purchased 500 shares of the capital stock of the transportation company from a salesman of a brokerage firm.\nWe fail to see upon what reasonable theory it can be said that these certificates of stock are Class \u201cD\u201d and not Class \u201cA\u201d securities. Clearly they come under the description of Class \u201cA\u201d securities as those issued by a public utility company under the authority and control of the Illinois Commerce Commission Act, Class \u201cD\u201d are securities \u201cother than those falling within Class \u2018A,\u2019 \u2018B,\u2019 and \u2018C,\u2019 respectively.\u201d Section 8, Illinois Securities Act [Cahill\u2019s St. ch. 32, U 261].\nThe argument seems to be that, because the Supreme Court affirmed the order of the superior court declaring null and void the order of the commerce commission of April 19,1922, the securities are thereby transferred from Class \u201cA\u201d to Class \u201cD\u201d which is described as a kind of \u201ccatch-all.\u201d This does not follow. The Commerce Commission Act controls the issuance and sale of Class \u201cA\u201d securities and severe penalties are imposed for the violation of its provisions in this respect. See sections 24, 25, 26, 61 to 64, 76 and 77, Illinois Commerce Commission Act [Cahill\u2019s St. ch. 111a, 39, 40, 41, 80-83, 95 and 96]. The commerce commission has exclusive jurisdiction over the sales of stock of public utilities.\nWe conclude that the securities involved herein were Class \u201cA\u201d public utility securities subject to the provisions of the Illinois Commerce Commission Act and not subject to the provisions of the Illinois Securities Act, and that the prosecution under the Securities Act cannot be maintained.\nFor the reasons above indicated, the judgment of the municipal court is reversed with a finding of fact.\nReversed with finding of fact.\nHatchett and Johnston, JJ., concur.\nFinding of fact. We find as an ultimate fact that the securities which the defendants were charged with having sold are not Class \u201cD\u201d securities as charged, but are Class \u201cA\u201d securities and exempt from the provisions of the Illinois Securities Act and that the defendants are not guilty of selling Class \u201cD\u201d securities as charged in the information.", "type": "majority", "author": "Mr. Presiding Justice McSurely" } ], "attorneys": [ "Lee D. Mathias, for plaintiffs in error; Harvey E. Wood, of counsel.", "Egbert E. Crowe, State\u2019s Attorney, for defendant in error; Edward H. Taylor, Edward E. Wilson, James H. Mahoney and Mortimer C. Crover, of counsel." ], "corrections": "", "head_matter": "The People of the State of Illinois, Defendant in Error, v. A. L. Whitmer and L. R. Cotter, Plaintiffs in Error.\nGen. No. 31,222.\n1. Criminal procedure \u2014 when information does not comply with constitution. An information which declares that \u201cin his own proper person\u201d the State\u2019s attorney \u201cprosecutes in this behalf for and on behalf of the said People of the State of Illinois\u201d does not comply with the constitutional provision (Illinois Const. art. VI, \u00a7 33) which requires all prosecutions to be carried on \u201cin the name and by the authority of the People of the State of Illinois.\u201d\n2. Corporations \u2014 exclusive jurisdiction of Illinois Commerce Commission over sales of public utility stock. The Illinois Commerce Commission has exclusive jurisdiction over sales of stock of public utilities.\n3. Corporations \u2014 when stock of utility company not Class \u201cD.\u201d Stock of a public utility company issued under the authority of the commerce commission is not within Class \u201cD\u201d under the Securities Law, Cahill\u2019s St. ch. 32, 256, 261, merely because a preliminary, conditional certificate issued by the commerce commission was declared invalid by the Supreme Court, where immediately after the decision the commission issued an order reciting compliance with its previous order and authorizing the issuance of the stock, from which order no appeal was taken.\nError by defendants to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.\nReversed with finding of fact.\nOpinion filed February 7, 1927.\nLee D. Mathias, for plaintiffs in error; Harvey E. Wood, of counsel.\nEgbert E. Crowe, State\u2019s Attorney, for defendant in error; Edward H. Taylor, Edward E. Wilson, James H. Mahoney and Mortimer C. Crover, of counsel." }, "file_name": "0244-01", "first_page_order": 276, "last_page_order": 282 }