dissenting:
This record shows that the contention of plaintiffs that they lawfully refused to obey an unlawful order is specious in sum and in detail.
The position argued by plaintiffs and accepted by the majority requires an initial assumption that it was unlawful to proceed under assumed names in procuring a liquor license and entering into the business of operating a tavern. From the days of the common law down to the present time that assumption is substantially erroneous.
27 Ill. L. & Prac. Names §3 (1956) states:
“Without abandoning his real name, a person may, in the absence of statutory restrictions, adopt any name wholly or partly different from his own name by which he may transact business, execute contracts, and carry on his affairs. An adopted business name used by a party is equivalent in law to the actual name of the party, with respect to the effect of a contract entered into by the party by such adopted name.”
In Graham v. Eiszner (1888), 28 Ill. App. 269, 273, it was said:
“It is well settled that any person may adopt any name, style or signature over which he may transact business and issue negotiable paper and execute contracts, wholly different from his own name, and may sue and be sued by such name, style or signature.”
The statutory proceeding for a change of name (Ill. Rev. Stat. 1977, ch. 96, par. 1 et seq.) is not exclusive but merely permissive, and the common law is not abrogated. (Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 125 N.E.2d 675.) One may receive a municipal license under an assumed name. (Charles Lenz & Sons v. Village of Lombard (1963), 29 Ill. 2d 45, 193 N.E.2d 5.) Courts have recognized the validity of complaints for search warrant verified under an assumed name. People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431; People v. Rogers (1978), 59 Ill. App. 3d 396, 375 N.E.2d 1009.
Plaintiffs argue, and the majority opinion perceives with horror, acts of perjury in the obtaining of a liquor license from Calumet City. It is not contended that any false facts were contained in the application but that, at most, the assumed names used by plaintiffs were signed to the application. In so far as the pertinent ordinances are contained in the record, one finds no provision concerning the “true” identity of the person making such application. So far as the ordinance and application provides an “applicant” may use a name as at common law.
Since the license was issued by Calumet City in the names of the corporation duly organized under the laws of the State of Illinois, there would appear to be no violation of section 4 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State.” (Ill. Rev. Stat. 1977, ch. 96, par. 7.) The Business Corporation Act, in sections 46-51 (Ill. Rev. Stat. 1977, ch. 32, pars. 157.46, 157.51), concerning the formation of a corporation, contains no provision forbidding the use of a name assumed as at common law. The majority opinion concludes that there was a violation of the Dramshop Act. No document relevant to that issue appears to be included in the record and the conclusion is speculative.
In the context of plaintiffs’ attempted justification for disobeying the order, the record is barren of any substantial evidence that the plaintiffs raised the issue of “legality” prior to their act of closing the tavern. Assuming that an illegal act existed, such had been committed prior to opening the tavern and was without substantial evidence of complaint or appeal by the plaintiffs. The written memoranda prepared by each plaintiff following the closing of the business do not mention the alleged violation of law in procuring the documents incident to opening the tavern. Rather, they speak of their complete respective cooperation in establishing and opening the business.
The testimony and the memoranda disclose the essence of the respective complaints to the senior officers made at the series of meetings following the unauthorized closing of the tavern and preceding the order to reopen it were directed to the “volatile” conditions in the business, the long hours required of the agents, and the apparent jeopardy which they encountered. They complain of the lack of agent support immediately at hand and their individual conclusions that the operation would not be successful. In short, they took over the management of the planned project.
There were subsidiary objections that the plaintiffs were not fulfilling their duties if they failed to make immediate arrests of persons carrying a gun or fighting in the premises. They were advised that their duty would be fulfilled if they reported the unlawful conduct to the prosecuting attorney for appropriate action. As stated in Hoffa v. United States (1966), 385 U.S. 293, 310, 17 L. Ed. 2d 374, 386, 87 S. Ct. 408, 417:
“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, ” *
Defendants point out the provisions of section 4 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 4—8):
“(a) A person’s ignorance or mistake as to a matter of either fact or law, except as provided in Section 4 — 3(c) above, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the offense.
(b) A person’s reasonable belief that his conduct does not constitute an offense is a defense if:
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(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or agency legally authorized to interpret such statute.”
The majority opinion notes that the plaintiffs, in meetings with senior law enforcement officials and representatives of the County and Federal prosecutors and of the Attorney General of the State, were advised that the activities presently asserted to be illegal were not illegal because such acts were done without criminal intent or intent to defraud. Such statutory defense was recognized in People v. Campbell (1972), 3 Ill. App. 3d 984, 279 N.E.2d 123, appeal denied (1972), 50 Ill. 2d 649.
Upon the actual issue, the record does not support a factual determination that the plaintiffs disobeyed because their acts were deemed illegal, but rather because they believed the operation ill-advised, hazardous and personally objectionable. In effect, they undertook to refuse their assignment for such reasons rather than for the reasons devised for purposes of the present action.
The closing comment of the majority opinion concerning “judicial immunity” does not seem relevant. One finds no provision for “judicial immunity” other than that provided in section 106 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 106—2), relating to a grant of immunity to a witness testifying before a grand jury or at trial.
In a society devoted to a “paper chase” of malum prohibitum, the over-extended sweep of views expressed in the majority opinion would swathe sophisticated and organized criminal activity with an impenetrable cover. In Hoffa v. United States (1966), 385 U.S. 293, 315, 17 L. Ed. 2d 374, 389, 87 S. Ct. 408, 420, Mr. Justice Warren, in his dissent, stated:
“At this late date in the annals of law enforcement, it seems to me that we cannot say either that every use of informers and undercover agents is proper or, on the other hand, that no uses are. There are some situations where the law could not adequately be enforced without the employment of some guile or misrepresentation of identity. A law enforcement officer performing his official duties cannot be required always to be in uniform or to wear his badge of authority on the lapel of his civilian clothing. Nor need he be required in all situations to proclaim himself an arm of the law. It blinks the realities of sophisticated, modern-day criminal activity and legitimate law enforcement practices to argue the contrary.”
In requiring a law enforcement officer to always wear a “white hat,” the sweeping pronouncement of the majority produces the scenario of a highway patrol car driven at 55 miles per hour steadfastly pursuing a speeder disappearing over the horizon at 75 miles an hour. The product of the views expressed by the majority is that the penetration of secret and possibly “protected” criminal activity can be no more than superficial and transitory.
We are not here dealing with the integrity of a court within the context of the cited In re Friedman. The language of that opinion appears to refrain from comment upon the legality of the prosecutorial conduct considered and the ruling is upon a matter of professional ethics. Nor are we here concerned with an issue of the constitutional rights of an individual under the fourth and fifth amendments to the United States Constitution as in the eloquent dissent of Mr. Justice Brandéis in Olmstead v. United States.
Upon the conclusion that the contentions concerning the alleged illegality of the order disobeyed by plaintiffs are, in fact, a false issue, I would reverse the trial court.