dissenting:
The majority concludes that the complaint filed by the plaintiff herein states a cause of action, (one in civil conspiracy), and that the trial court therefore erred in not allowing the complaint for declaratory judgment to stand. I respectfully, but most strongly, disagree and thus dissent.
A cursory reading of the complaint, necessarily appended hereto 1 for a complete understanding, automatically raises the impression that the pleader is attempting to allege three separate causes of action in a single-count complaint—one for injunctive relief, another founded on mandamus and the third based upon a civil conspiracy.
From a procedural standpoint, the form of the pleading is against section 33 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 33) wherein it states that separate causes of action upon which separate recovery may be had shall be stated in separate counts. It is wrong to assert that a declaratory judgment action is not susceptible to the same procedural rules governing forms of pleadings as other actions. This is especially true when we consider the fact that declaratory judgment had its birth in the Civil Practice Act creating the very rule (Ill Rev Stats 1967, c 110, § 57.1). It must be kept in mind that declaratory judgment is a remedy for a cause of action and is not a cause of action itself.
More important than the procedural aspect is the substantive question involved. Does the complaint state a cause of action for civil conspiracy as concluded by the majority? I feel that it does not and will confine my comments to this one facet (although I believe there to be many additional reasons for affirming the trial court’s decision).
Damages is an essential element in a cause of action based upon a civil conspiracy. As a matter of fact, the gist of the action is the damage arising out of a civil wrong, and not the conspiracy itself, that creates the cause of action. Pustelniak v. Vilimas, 352 Ill 270, 277, 185 NE 611 (1933); B. R Paulsen & Co., Inc. v. Lee, 95 Ill App2d 146, 151-152, 237 NE2d 793 (1968). See also, 16 Am Jur, Conspiracy, §§ 43, 44, 53, 58, and the supplements thereto.
Damages, in some common-law actions, may be presumed and therefore it is not necessary to plead the same. Civil conspiracy is not such an action. Since damages cannot be presumed, it then becomes necessary that the plaintiff plead, not only the fact that he has been damaged, but also the amount he believes he has been damaged. Nowhere in the body of the complaint nor in the prayer for relief has the plaintiff set forth the amount in which he has been damaged. The defect cannot be cured by stating that defendants may file interrogatories or take discovery depositions. Where the plaintiff fails to plead an element necessary to his cause of action the result is that he has failed to state a cause of action. This is not being overly technical; it is as basic as a foundation to a house. Were it not for the basic or substantive rules, not the procedural rules, what would prevent the filing of a newspaper clipping setting out a particular event in place of a complaint?
Therefore, I dissent from the majority opinion in this case wherein it is claimed that the plaintiff has stated a cause of action based upon civil conspiracy.
“1. Plaintiff is the licensed owner of four taxicabs in the City of Elgin, Illinois and on to wit September 10, 1965, received from defendant, City of Elgin, a municipal corporation, an Operator’s Registration Card, pursuant to the provisions of Chapter 28, section 28-1302 (b) Municipal Code of Elgin.
“2. He has been engaged in the taxicab business under the name and style of Red Top Cab Co., and has individually operated a taxicab in said City of Elgin until said Operator’s Regístratian Card, No. 16, for the year 1967, was revoked on to wit, March 17, 1967 by defendant, James A. Hansen, Chief of Police of the City of Elgin.
“3. The stated ground for said revocation was that plaintiff had been found guilty of disorderly conduct on April 27, 1967.
“4. Chapter 28, sections 1301-1308, inclusive, of the Municipal Code of Elgin relating to Taxicabs is attached hereto as Exhibit ‘A’ and by reference is expressly made a part hereof. Said ordinance contains, in Section 28-1302 (b), the following provision:
‘“No such registration card shall be issued to any person who is not of good moral character; or who is a repeated violator of the Illinois Motor Vehicle laws. Operator’s registration cards shall be revoked by the Chief of Police and cancelled for repeated violations of traffic laws or ordinances.’
“Section 28-1308 provides as follows:
“ ‘Penalties. Any person violating any of the provisions of this ordinance shall be fined not less than Five Dollars ($5.00) nor more than Two Hundred Dollars ($200.00). Such violations shall also be cause for revocation of licenses herin (sic) required.’
“5. No written charges have been served on plaintiff. No hearing has been held prior to the said revocation.
“6. Defendant, Robert L. Brunton, City Manager, has refused to take action to restore the plaintiff’s Operator’s Registration Card and has informed plaintiff’s attorney by letter that the action of defendant Hansen ‘is final as far as the City of Elgin’s administration is concerned,’ a copy of which letter is attached hereto, marked Exhibit ‘B’ and expressly made a part hereof. Plaintiff has demanded the restoration of said Operator’s Registration Card but defendants Hansen and Brunton have rejected his demands and refuse to restore said Card.
“7. Plaintiff alleges, upon information and belief, that theretofore and thereafter defendant James A. Hansen, Chief of Police of the City of Elgin, Illinois, Lt. Charles P. Miller, Officer Kenneth Luecht, Officer Richard Lund, Officer A1 Grantham, Officer Robert L. Schroeder, Officer R. W. Heneise, Robert L. Brunton, City Manager of Elgin, Illinois; City of Elgin, a municipal corporation, Elgin Y & C Cab Company, Inc., a corporation, Edward Darnell and Ward Lowry, agents and employees of said corporation, entered into a conspiracy and scheme maliciously to harass and persecute said plaintiff in the operation of his taxicab business, and to destroy the value of his said taxicab business, and wrongfully and without justification, under the guise of enforcing the statutes of the State of Illinois and the ordinances of the City of Elgin, to arrest and prosecute said plaintiff, and to abuse the judicial process in the prosecution of false and groundless charges and to obtain convictions of violations by plaintiff of said statutes and said ordinances with the intention of procuring the revocation of plaintiff’s Operator’s Registration Card and to obtain revocation of the owner’s license to ‘conduct a business for the transportation for hire in taxicabs,’ and thereby to eliminate plaintiff as a competitor of said Elgin Y & C Cab Company, Inc., a corporation, in the taxicab business in the City of Elgin, Illinois; and the defendants agreed among themselves to aid and abet each other in the carrying out of the said conspiracy and scheme. In the process of said conspiracy and scheme, defendants have committed the following acts:
“a. On to wit, July 9, 1966, plaintiff received a phone call from persons at the Elgin State Hospital requesting a taxicab to be sent to them to transport them from said Elgin State Hospital to the Greyhound bus terminal, 222 Dundee Avenue in Elgin, which bus terminal is owned and operated by plaintiff. As plaintiff approached the Elgin State Hospital, driving one of his taxicabs, a Yellow Cab owned and operated by defendant Elgin Y & C Cab Company, Inc. drove away with said persons who had telephoned plaintiff and for whom he was .calling. After plaintiff complained of this theft of his customers, defendants, Ward Lowry and Edward Darnell, agents and employees of said Elgin Y & C Cab Company, Inc., swore out complaints against plaintiff to wit, on July 27, 1966, (1) for criminal damage to property, No. D 3474 and (2) for reckless driving, No. D 3475. Plaintiff was arrested and taken to the police station and was required to make bond to obtain his release. After several appearances by plaintiff in Court over a period of several months, said charges were dismissed on to wit, October 24, 1966 for want of prosecution with leave to reinstate.
“b. Thereafter, on November 2, 1966 defendants Ward Lowry and Edward Darnell, agents and employees of said Elgin Y & C Cab Company, Inc., swore out new complaints, No. D 6219 and D 6207, based on the same incident as aforesaid, again charging plaintiff with reckless driving and criminal damage to property. Plaintiff was served by police officer Richard Lund at the direction of the defendants, Hansen and Miller, and was arrested and taken to the police station and again required to give bond for his appearance. Thereafter at the suggestion of the Assistant State’s Attorney, Mr. Gene Armentrout, the charges of criminal damage to property and reckless driving were dismissed and reduced to disorderly conduct and a fine of $15.00 and costs was entered and suspended. Said plea of guilty to disorderly conduct was not entered by plaintiff until he received assurances from the defendants above named that the filing of said plea would not be used as the basis of any action by the said defendants affecting any of plaintiff’s licenses or permits to engage in the taxicab business.
“c. On to wit, February 23, 1967, plaintiff was arrested by Officer A1 Grantham and charged with driving too fast for conditions (No. 67M-4008). The said defendant Grantham, without cause or justification, testified in a distorted and inaccurate manner resulting in a finding on April 14, 1967 of guilty and a fine of $10.00 and costs, which plaintiff paid.
“d. On to wit, April 14, 1967, at about 6:00 a. m., plaintiff was using one of his taxicabs with the flag up, and the taxicab plainly marked ‘not for hire’ and was stopped by Officer Robert L. Schroeder and charged with driving a taxicab without having a city permit, but said officer released him when he pointed out the ‘not for hire’ sign. Later, at the express directions of the defendant, Hansen, plaintiff was arrested by said Officer Robert L. Schoeder (sic) in his place of business, the said bus terminal, and ordered to lock up said bus terminal and he was taken into a patrol wagon to the police station and there given a Notice to Appear (No. 67M-8299) and a complaint charging him with driving a taxicab without a permit. Said charge was thereafter on May 22, 1967 dismissed by Judge John A. Krause for want of prosecution.
“e. On to wit, June 6, 1967, plaintiff was driving friends of his to the Elgin State Hospital after he had closed the bus terminal, in his wife’s private car, not a taxicab. He was stopped by Officers R. W. Heneise and Kenneth Luecht, in the hospital grounds and his guests were questioned. They informed the police officers that they were not riding as fare-paying passengers, but were riding with him as guests. Thereupon, said police officers in the hearing of plaintiff and his guests, communicated to the police station by radio and then stated to plaintiff that they ‘regretted that they couldn’t make the charge stick.’ Plaintiff was served with a Notice to Appear as a result of said incident. Charges have since been filed (No. 67M-13569) and are pending and undisposed of on plaintiff’s plea of not guilty.
“f. Plaintiff has sent to defendant Hansen applicants for driver’s licenses, who have applied for driver’s licenses under Section 28-1302 (b) as aforesaid, which applicants had applied to him for employment as taxicab drivers but defendants Hansen and Miller have repeatedly procrastinated and delayed and have told said applicants to return again and again and have attached conditions, such as that only probationary permits would be issued to said applicant(s) and that if said probationer should have one traffic violation within one year, said permit would be immediately revoked. Such conditions are not contained in the ordinance of the City of Elgin and have been imposed solely to harass and persecute plaintiff.
“g. Various applicants for drivers’ positions with plaintiff’s cab company have tried to obtain driver’s permits but defendants Hansen and Miller have persistently interposed unwarranted and unreasonable delays and have thereby discouraged said applicants from proceeding with their applications for operator’s or driver’s licenses. Various applicants were refused permits when they informed defendants Hansen and Miller that they, sought to work for plaintiff, but said applicants have had no difficulty in obtaining licenses to drive for Elgin Y & C Cab Company, Inc., a corporation, or for other employers.
“h. Plaintiff’s wife, Kathryn, on to-wit, April 14, 1967, applied for an operator’s or driver’s registration card. Notwithstanding that defendants have no valid legal reason for refusing to issue to her such a card they have refused to issue one, but have issued only a ‘conditional permit’ by virtue of which she is driving a cab for plaintiff on a part-time basis.
“8. Plaintiff has an investment of over $100,000.00 in the Greyhound bus terminal and in the four taxicabs which he owns and operates. He is a native of South Elgin and has been engaged in business there for many years and has resided there continuously until June 1, 1967 and now resides with his wife and three children in the City of Elgin. He is a person of good reputation and is being oppressed, persecuted and harassed by the defendants in the furtherance of their conspiracy and scheme to destroy his taxicab business and ruin him financially.
“9. The refusal of defendants Hansen and Brunton to restore plaintiff’s Operator’s Registration Card and to permit him to exercise the rights and privileges to which he is entitled, pursuant to Section 28-1302 (b) Municipal Code of Elgin, deprives plaintiff of his constitutional right to engage in the lawful business of driving a taxicab and deprives him thereby of his property in violation of said ordinance; and without due process' of law in violation of the provisions of Sections 2 and 13 of Article II of the Constitution of Illinois and deprives him of his property without due process of law and of the equal protection of the law in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States of America.
“10. Plaintiff has exhausted his local remedies. A justiciable dispute and an actual controversy exists between the plaintiff and the defendants Hansen and Brunton, and the City of Elgin, Illinois, a municipal corporation, concerning the plaintiff’s right to the restoration of his Operator’s Registration Card and the rights thereunder and it is therefore just and proper that the Court declare the rights of the parties.
“WHEREFORE, PLAINTIFF PRAYS:
“a. That the action of the defendants, Hansen, Chief of Police and Brunton, City Manager, and of the City of Elgin, a munici-
pal corporation, in revoking and refusing to restore plaintiff’s Operator’s Registration Card may be declared by this Court to be unreasonable, arbitrary, confiscatory, discriminatory, unlawful, null and void and of no effect, and in violation of the Constitutions of the State of Illinois and of the United States of America.
“b. That judgment be entered herein finding and declaring that plaintiff is rightfully entitled to have said defendants issue to him Operator’s Registration Card pursuant to Section 28-1302 (b) of the Municipal Code of Elgin.
“c. That after the rights of the parties have been declared by the Court, as aforesaid, an injunction issue to restrain all of the within named defendants from harassing, persecuting and oppressing plaintiff and from engaging in a conspiracy and scheme amongst themselves, maliciously to deprive said plaintiff of his right to operate a taxicab and from interfering with him in the operation of the taxicab business which he is presently operating and from seeking by said conspiracy and scheme to destroy plaintiff’s said taxicab business and from aiding and abetting each other in the carrying out of said conspiracy and scheme.
“d. That after the rights of the parties have been declared by the Court, as aforesaid, a trial may be had to determine damages sustained by the plaintiff herein by virtue of the acts of the defendants herein in engaging in said conspiracy and scheme and in the wrongful revocation of plaintiff’s Operator’s Registration Card, and that judgment may be entered in favor of the plaintiff and against the defendants for such damages as plaintiff shall be found entitled to.”