dissenting:
I do not share my colleagues’ opinion that the doctrine of collateral estoppel is inapplicable here, nor do I believe that an action for damages is permissible in these circumstances.
The majority cites section 7 — 12 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1979, ch. 32, par. 852, now Ill. Rev. Stat. 1983, ch. 17, par. 3195) to support its conclusion that Telegraph could proceed with a State court action for damages. However, that section, which is entitled in part “Notice of Custody — Action to Enjoin” (emphasis added), provides:
“*** If the contention is made that the Commissioner has no legal grounds for taking custody of the association or trust, the directors or officers of the association or the trustees *** may file a complaint * * * to enjoin further custody. The court thereupon shall cite the Commissioner to show cause why further custody should not be enjoined. If upon a hearing thereon, the court finds that such grounds did not or do not then exist, it may enter an appropriate order in accordance with the findings of fact ***.” (Emphasis added.)
It seems to me that this provision unambiguously limits the plaintiff association to injunctive relief. There is simply nothing to suggest that damages are recoverable. The term “appropriate order,” emphasized by the majority, obviously refers to the provisions of an order granting or denying the injunction, as that is the only purpose of the hearing. Too, if the General Assembly had intended to provide for damages in these circumstances, it seems likely that it would have explicitly stated so, for “[t]he body of the statute cannot encompass a broader subject than is stated in the title.” People v. Tibbitts (1973), 56 Ill. 2d 56, 64; 1A Sutherland, Statutory Construction sec. 18.01 et seq. (4th ed. 1972).
However, even if I were to concede that damages are recoverable under section 7 — 12, the Federal court proceedings involved here would, in my judgment, bar Telegraph’s State court action on collateral estoppel grounds. As the majority points out, to prevail in its suit for damages Telegraph must prove that no “emergency” existed which could have justified the Commissioner’s taking custody of the institution without written notice. Although the Illinois Savings and Loan Act does not specify what constitutes an “emergency,” the Federal district court found that Telegraph was on the brink of financial collapse and that the take-over was imperative to safeguard the depositors’ funds. The court noted:
“From July 1, 1979, to April 30, 1980, Telegraph’s book net worth steadily declined from nearly $5 million to $450,000.00. The operational losses for April 1980 alone exceeded $734,000.00. On May 19, Telegraph’s comptroller made the following projection:
‘Based upon my review of the books and records of Telegraph as of May 19, 1980 and taking into consideration my knowledge of the financial circumstances of Telegraph, I estimate that for the period May 1 through 19, 1980, Telegraph had lost $591,778.29 and I projected that for the entire month of May, Telegraph would lose $983,147.86.’ [citation.] On the basis of the projections of Telegraph’s own comptroller, Telegraph had a negative book net worth of approximately $142,000.00 on May 19 and of approximately $240,000.00 on May 22.” (Telegraph Savings & Loan Association v. Federal Savings & Loan Insurance Corp. (N.D. Ill. 1982), 564 F. Supp. 880, 888-89.)
In addition, the Seventh Circuit Court of Appeals observed that “[t]he evidence overwhelmingly establishes that Telegraph was in precarious financial condition and was continuing to decline.” Telegraph Savings & Loan Association v. Schilling (7th Cir. 1983), 703 F.2d 1019, 1025.
Curiously, the majority apparently does not believe these findings would be binding or relevant in a State court proceeding aimed at determining Telegraph’s financial status. Of course, to actually recover damages Telegraph will also have to show that it has suffered some loss that can be monetarily compensated. Should our courts also disregard the Federal findings on that issue? I think it is abundantly clear that any State court proceeding will involve precisely the same factual issues that have already been resolved by the Federal courts. In fact, a more appropriate case for application of the collateral estoppel doctrine is difficult to imagine.
I would accordingly reverse the judgment of the appellate court and affirm the judgment of the circuit court of Cook County.
RYAN, C.J., and SIMON, J., join in this dissent.