author: JUSTICE DiVITO

text:
    SQUARE D COMPANY, Plaintiff-Appellant and Cross-Appellee, v. J. THOMAS JOHNSON, Director, The Department of Revenue, et al., Defendants-Appellees and Cross-Appellants.
    First District (2nd Division)
    No. 1—91—2381
    Opinion filed August 25, 1992.

      Martin, Craig, Chester & Sonnenschein, of Chicago (Thomas H. Dono-hoe and Daniel J. Slattery, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Square D Company (Square D) paid under protest Illinois State, Regional Transportation Authority (RTA), and Village of Palatine municipal use taxes imposed on its corporate jet by defendant Illinois Department of Revenue (Department). (Ill. Rev. Stat. 1985, ch. 120, par. 439.3; Ill. Rev. Stat. 1985, ch. 24, par. 8—11—6.) Thereafter, Square D sought an injunction in the circuit court for a refund of the use taxes and interest. On cross-motions for summary judgment, the circuit court granted the Department’s motion, finding that the State use tax and the RTA use tax were correctly assessed against Square D; the court further granted Square D’s motion for summary judgment with respect to Palatine’s municipal use tax. Square D appeals the court’s decision upholding the State and RTA use taxes, contending that (1) the Use Tax Act must be construed using a commerce clause analysis prevailing in 1955, when the Illinois Use Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 439.1 et seq.) was enacted; (2) the 1967 amendment to the Use Tax Act creating an exemption for interstate carriers for hire violates the constitutional requirement for uniform classifications; (3) the circuit court improperly imposed the RTA use tax on an aircraft registered in Michigan to a Michigan corporation; and (4) the statute of limitations applies to preclude tax liability where Square D made installment payments on the purchase price of the aircraft more than three years before the Department issued a notice of tax liability. The Department cross-appeals the court’s reversal of the imposition of the municipal use tax, contending that the court improperly refused to impose the municipal use tax.

Square D, a Michigan corporation, manufactures electrical supplies and electronic components. Though its world headquarters are in Palatine, Illinois, it has manufacturing and distribution facilities in 25 States and several foreign countries.

On December 16, 1980, Square D paid Gulfstream America Corporation in Savannah, Georgia, $100,000 as a deposit towards the purchase of an airplane. On February 10, 1981, Square D contracted with Gulfstream America Corporation for the sale of a “Gulfstream III” jet for $9,917,797.91. The contract provided for a series of payments to be made prior to delivery of the jet. Square D subsequently paid each of the installment payments, and on March 29, 1983, Gulfstream America Corporation presented Square D with the final invoice for the jet and notified Square D that the jet would be ready for delivery as of April 4, 1983.

On April 6, 1983 the jet was delivered to Square D in Savannah, Georgia. At the time of its delivery, Square D insured the jet with an aviation underwriter; the policy was in Square D’s name, at its Palatine, Illinois, address, though the jet was registered in Michigan, the State of Square D’s incorporation. The policy provided, “[y]ou keep your aircraft principally in ILLINOIS.”

Following delivery, Square D flew the jet from Savannah to Van Nuys, California, for outfitting. There, the jet was equipped with radar and navigation devices, it was painted, and furniture was installed. Between March and October 1983, Square D paid in installments the price of the outfitting, totalling $1,934,830.

On October 4, 1983, the outfitting was completed and a Square D employee flew the jet to Las Vegas, Nevada, and back to California for the purpose of inspecting the outfitter’s work. Thereafter, the jet was flown to Wisconsin, where a Square D executive boarded for a trip to Square D’s plant in Oshkosh, Wisconsin. From Oshkosh, the jet was flown to Charlotte, North Carolina, where the passengers visited another Square D plant. The jet was then flown to Columbia, South Carolina, where Square D executives reviewed a manufacturing process. From Columbia, the jet traveled to Ashville, North Carolina, so that the passengers could attend a meeting concerning Square D’s world contractor program. On October 7, 1983, the jet was flown to Midway Airport in Chicago, Illinois. At no time did the jet transport Square D products; rather, the jet was used solely by Square D employees for “business trips”—trips to other company locations, to business meetings, to “potential acquisitions,” and to sales calls.

When not in service in interstate travel, the jet was kept in a hangar in Illinois, first at Midway airport and then at Waukegan airport. The flight from Midway to Waukegan, to transfer the jet to a Waukegan hangar, was the jet’s only flight beginning and ending in Illinois. For the most part, required service and repairs were performed outside of Illinois.

The Department conducted a tax audit of Square D for the period from January 1983 through June 1985, and on March 2, 1986, it issued Square D a “Notice of Tax Liability” relating to the jet and assessing tax, interest, and penalties in the amount of $1,202,666.18. The amount of liability included State, municipal, and RTA use taxes.

On March 21, 1986, Square D paid that amount under protest and, on the same day, filed a complaint for injunctive relief. The complaint was comprised of four counts: the first count alleged that Square D was not liable for the use taxes because “under the Commerce Clause, Square D’s use of the aircraft is not subject to either the Illinois Use Tax, the Municipal Use Tax or the RTA Use Tax”; count II alleged that the statute of limitations applicable to notices of tax liability prevented the taxing of payments made on the aircraft prior to January 1, 1983; count III alleged that Palatine’s use tax was inapplicable because the aircraft was not used in Palatine; and the fourth count alleged that the RTA use tax was inapplicable because the aircraft was not titled or registered with an Illinois agency.

On March 21, 1986, the circuit court entered a preliminary injunction temporarily enjoining the Department from depositing the protested tax payment into the State treasury and from otherwise enforcing the notice of tax liability. On January 29, 1988, the court allowed Square D to plead a fifth count, alleging that the Illinois Use Tax Act’s “rolling stock” exemption for an interstate carrier for hire was an unreasonable classification, thereby rendering use taxes such as those against Square D illegal and void.

Both parties filed motions for summary judgment supported by documentation. Following a hearing, on April 12, 1991, the circuit court issued its memorandum decision granting the Department’s motion for summary judgment with respect to the State and RTA use taxes. Finding the Illinois Use Tax Act clear and unambiguous, the court refused to subject it to a statutory analysis prevailing at the time of its enactment; rather, the court applied current commerce clause principles to determine that the use taxes on the jet, though on an instrumentality of interstate commerce, were properly assessed because the taxes met the four-part test set forth in Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (before a tax may be imposed upon an instrumentality of interstate commerce, a court must consider whether: (1) the tax is applied to an activity having a substantial nexus with the taxing State; (2) the tax is fairly apportioned; (3) the tax discriminates against interstate commerce; and (4) the tax is fairly related to the services provided by the State). The court further held that the interstate carrier for hire exemption in the Illinois Use Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 439.3(b)) did not violate the constitutional requirement for uniform classification. Moreover, the court found that Square D, as a “resident” of Illinois, was required to register its jet in Illinois and was thus subject to RTA and municipal use taxes. The court entered summary judgment in favor of Square D as to Palatine’s use tax, however, finding that because Square D did not “use” the jet in Palatine, it was not subject to the municipal use tax.

I

Square D initially contends that the Illinois Use Tax Act does not apply to its jet because, at the time of the Illinois Use Tax Act’s enactment in 1955, Federal constitutional doctrine prohibited the taxing of an instrumentality of interstate commerce which did not have a “taxable moment” in the taxing State. Square D thus argues that the circuit court erred in applying the Complete Auto four-part test to determine if the jet could be taxed and contends that, instead, the court should have determined whether the jet had a “taxable moment” in Illinois; Square D asserts that its jet never had a “taxable moment” in Illinois and, thus, is not subject to use taxes.

In order to arrive at the conclusion that Federal constitutional doctrine prevailing in 1955 controls (and thus the “taxable moment” doctrine applies), Square D maintains that the scope of the Illinois Use Tax Act’s application to instruments of interstate commerce is controlled by two restraints: first, the power which the United States Constitution reserves to the States to tax instrumentalities of interstate commerce, as interpreted by the Supreme Court; and second, the extent to which the Illinois legislature intended to exercise that power.

Relying upon Illinois Bell Telephone Co. v. Allphin (1982), 93 Ill. 2d 241, 443 N.E.2d 580, Square D argues that as a matter of statutory construction, the Illinois Use Tax Act as enacted in 1955 was not intended by the legislature to impose a tax on an instrument of interstate commerce like its jet. In Illinois Bell, the supreme court addressed whether the Messages Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 467.2) as written imposed a tax on revenues from the transmissions of interstate messages. Finding that the Messages Tax Act was ambiguous, the court analyzed the Act pursuant to the law prevailing at the time the Messages Tax Act was adopted. The court opined that, at that time, a State was prohibited by the commerce clause from imposing an occupation tax on interstate commerce. Dismissing the Department of Revenue’s argument that the Messages Tax Act was a “flexible type of statute” which taxes interstate service to the extent Federal constitutional law may from time to time permit, the supreme court instead held that “[t]he scope of a statute is fixed by the conditions which exist and the law which prevails at the time the statute is adopted.” (Illinois Bell Telephone Co., 93 Ill. 2d at 255.) The court further stated:

“Some statutes utilize words that clearly envision that their operation and scope are to change with changes in the underlying law without the need for further approval by the legislature. The Messages Tax Act is not such a statute. It does not expressly provide that changes in the constitutional law by judicial decision or constitutional amendment which authorize the General Assembly to do what it previously was restricted from doing should expand the reach of the statute without further legislative action. On the contrary, as we read the statute, the legislature would then have to decide whether it wished to exercise its expanded authority.” Illinois Bell Telephone Co., 93 Ill. 2d at 255.

Square D urges that Illinois Bell is analogous to the instant case. It argues that, like the statute in Illinois Bell, the Illinois Use Tax Act is ambiguous as to whether it taxes interstate commerce. Square D asserts that it is unclear whether the governing provision of the Illinois Use Tax Act, “[a] tax is imposed upon the privilege of using in this State tangible personal property *** purchased at retail from a retailer” (emphasis added) (Ill. Rev. Stat. 1985, ch. 120, par. 439.3), applies to the use of property in interstate commerce.

Square D also relies upon People ex rel. Fyfe v. Barnett (1925), 319 Ill. 403, 150 N.E. 290, where the supreme court considered the meaning of the word “elector” in the context of jury lists. In Barnett, the supreme court held that women were prohibited from jury duty because the statute listing the qualifications of those on jury lists required potential jurors to be “electors.” In 1874, when the statute proscribing the composition of the jury pool was adopted, “electors” meant men only, as suffrage had yet to be given to women. By 1926, following the passage of the nineteenth amendment, “electors” unquestionably meant both men and women. Nevertheless, the court, in determining the meaning of “elector,” looked to constitutional doctrines which prevailed at the time of the passage of the statute at issue, finding that “[t]he words of a statute must be taken in the sense in which they were understood at the time the statute was enacted.” Barnett, 319 Ill. at 409.

Square D argues, thus, that this court may, like the Illinois Bell and Barnett courts, look to prevailing Federal constitutional law at the time of the Illinois Use Tax Act’s adoption in determining whether its jet should be taxed. Because, at the time of the enactment of the Illinois Use Tax Act, the Federal “taxable moment” doctrine controlled in a commerce clause challenge, Square D maintains that this court should apply that doctrine.

The Department, on the contrary, asserts that the Use Tax Act is clear and unambiguous and, thus, there is no need to otherwise construe or interpret the Illinois Use Tax Act. The Department further contends that Illinois Bell is inapplicable to the instant case because in Illinois Bell, the court was presented with an ambiguity which raised the question of whether that statute sought to tax an interstate activity, whereas here, the Illinois Use Tax Act “clearly seeks to tax the interstate transaction of buying property in another State which is used in the State of Illinois” or which is used in interstate commerce.

The Department also asserts that Illinois Bell is distinguishable because the applicable statute there provided that the messages “tax is not imposed on the privilege of engaging in any business in interstate commerce or otherwise to the extent to which such business may not, under the Constitution and statutes of the United States, be made the subject of taxation by this State.” The Department argues that the Illinois Bell court thus had to consider commerce clause law; however, because that language is absent in the Illinois Use Tax Act, the Department maintains that the Illinois Use Tax Act is not limited “by the applicability of *** Commerce Clause principles.”

To support its position that current Federal constitutional principles control the interpretation of the commerce clause, the Department relies upon Archer Daniels Midland Co. v. Department of Revenue (1988), 170 Ill. App. 3d 1014, 524 N.E.2d 1010. In that case, three aircraft were purchased in a State other than Illinois by a Delaware business with headquarters in Illinois and used in interstate commerce prior to entering Illinois. Following their entrance into Illinois, the aircraft were kept in a hangar in Illinois. Nevertheless, the Archer Daniels court found that the out-of-State business was required to pay use taxes on its aircraft used in interstate commerce. In so finding, the court reasoned that the applicable commerce clause analysis was the four-prong test of Complete Auto and not the “taxable moment” test.

Though the facts of Archer Daniels are squarely on point with those of the case sub judice, Square D asserts that that case is not controlling. Specifically, Square D contends that Archer Daniels is not dispositive because that court was never called upon to construe the Illinois Use Tax Act. Rather, Square D maintains that the parties in that case presented a commerce clause challenge, but did not raise the issue of statutory construction as Square D has done in the instant case.

On the contrary, we find it implicit in the Archer Daniels decision that that court read the Illinois Use Tax Act, found it to be unambiguous, and thus applied the Complete Auto four-prong test. We further find that Square D’s contention in the instant case is merely a commerce clause challenge like that presented in Archer Daniels and that Illinois Bell is inapposite. Though we recognize that the court in Illinois Bell applied commerce clause principles existing at the time of the enactment of the statute at issue, the Illinois Bell court was presented with the question of whether that statute even intended to tax an interstate activity; because of that ambiguity, it was necessary for the court to construe the legislative intent. Here, however, no such ambiguity exists.

A commerce clause analysis, applying either the “taxable moment” doctrine or the Complete Auto test, becomes relevant only when there has been a determination that the transaction is taxable by the State. (See Union Electric Co. v. Department of Revenue (1990), 136 Ill. 2d 385, 556 N.E.2d 236.) In the instant case, we find that the statute, as written, unambiguously intends to tax all property purchased from an out-of-State retailer for use in Illinois, even if that property is also used in interstate commerce. Finding that the Illinois Use Tax Act applies to the instant jet, we must then look to commerce clause principles to determine if imposing the use taxes on the jet violates those principles. Because, however, the statute is neither ambiguous nor unclear, we need not in any manner construe or interpret legislative intent. Accordingly, like the Archer Daniels court, we must apply current commerce clause principles to the instant case.

Complete Auto provides that before a tax may be imposed upon an instrumentality of interstate commerce, a court must consider whether: (1) the tax is applied to an activity having a substantial nexus with the taxing State; (2) the tax is fairly apportioned; (3) the tax discriminates against interstate commerce; and (4) the tax is fairly related to the services provided by the State. (Complete Auto, 430 U.S. at 279, 51 L. Ed. 2d at 331, 97 S. Ct. at 1079.) In the case sub judice, Square D clearly has a substantial nexus with Illinois, inasmuch as its world headquarters are located in Illinois and its jet is kept in a hangar in Illinois. Further, we find that the use tax is fairly apportioned in that it exempts property where a sales or use tax has been paid in another State (because Square D has paid no tax whatsoever on the jet, Illinois use tax applies). (Ill. Rev. Stat. 1985, ch. 120, par. 439.3(d); Archer Daniels, 170 Ill. App. 3d at 1022-23.) Likewise, we find that the use tax does not discriminate against interstate commerce because the tax rate is the same for both sale and use taxes. Finally, we find that, like the plaintiff in Archer Daniels, Square D enjoys the “protection of Illinois laws, access to its legal system, and innumerable other services,” and thus is properly subject to taxation in this State.

Because we find that the jet is subject to use taxes pursuant to Complete Auto, we need not address Square D’s assertion that the “taxable moment” doctrine as applied in Sundstrand Corp. v. Depart ment of Revenue (1975), 34 Ill. App. 3d 694, 339 N.E.2d 351, Master Craft Engineering, Inc. v. Department of Treasury (1985), 141 Mich. App. 56, 366 N.W.2d 235, Consolidation Coal Co. v. Porterfield (1971), 25 Ohio St. 2d 154, 267 N.E.2d 304, and W.R. Grace & Co. v. Comptroller of the Treasury (1969), 255 Md. 550, 258 A.2d 740, precludes taxation of the jet.

II

Square D next contends that the 1967 amendment to the Illinois Use Tax Act which limited the “rolling stock” exemption to carriers for hire violates the Illinois constitutional requirement for uniformity in taxation. Accordingly, Square D urges this court to strike that portion of the rolling stock exemption which restricts the exemption to interstate carriers for hire.

The Illinois Constitution provides that classes of nonproperty taxes must be reasonable and the subjects or objects within each class must be taxed uniformly. (Ill. Const. 1970, art. IX, §2.) In order to determine whether the rolling stock exemption meets the requirements of uniformity, a two-part test must be satisfied: (1) whether any real and substantial differences exist between those who are taxed and those who are not, and (2) whether the classification is reasonably related to a legislative purpose. Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 512 N.E.2d 1240; Federated Distributors, Inc. v. Johnson (1988), 125 Ill. 2d 1, 530 N.E.2d 501.

In the instant case, the circuit court determined that the provision that the use tax is not applicable to “the use, in this State, of tangible personal property by an interstate carrier for hire as rolling stock moving in interstate commerce” (Ill. Rev. Stat. 1985, ch. 120, par. 439.3(b)) was based on a real and substantial difference between private carriers and carriers for hire. In so holding, the circuit court relied upon Doolin v. Korshak (1968), 39 Ill. 2d 521, 236 N.E.2d 897.

In Doolin, the supreme court found that the leasing tax act’s distinction between having goods delivered by vehicles leased by the seller of those goods (not exempted from tax) and having them delivered by vehicles leased by a public carrier (exempted from tax) did not violate constitutional principles. The court reasoned that the purpose of the leasing tax act, identical to that of the Illinois Use Tax Act, was “[t]o prevent actual or likely multistate taxation.” (39 Ill. 2d at 528.) Finding that a carrier for hire was more likely to encounter multistate taxation, the court upheld the classification, finding that it was reasonably related to the intent of the legislature.

Square D insists that Doolin is no longer good law because the Doolin court relied upon the old standard for judging uniformity challenges (the burden was on the party attacking the legislation to negate every conceivable basis supporting it), and thus argues that the circuit court here erred in relying upon it, contending instead that the court should have relied upon Searle (117 Ill. 2d 454, 512 N.E.2d 1240). In Searle, the court rejected the burden relied upon in Doolin, instead holding that the appropriate test to determine whether the uniformity requirement is met is the two-part test referred to earlier. Searle, 117 Ill. 2d at 468.

Square D points to several cases applying the Searle two-part test (National Pride of Chicago, Inc. v. City of Chicago (1990), 206 Ill. App. 3d 1090, 562 N.E.2d 563 (classification between automated car wash operated by owner and coin-operated self-service car wash unconstitutional because no difference between classes); Satellink of Chicago, Inc. v. City of Chicago (1988), 168 Ill. App. 3d 689, 523 N.E.2d 13 (classification between franchised cable television and subscription television illusory because no difference in the activities of both); however, none of the cases address the classification between the rolling stock of private carriers and carriers for hire.

The only case addressing the private/for hire classification is Doolin. Despite the fact that the Doolin court applied the now-unacceptable burden, its reasoning is still sound. Its determination that the distinction between carriers for hire and private carriers appropriately addressed the legislative intent is still persuasive. As the Doolin court stated, and as the Department now argues, there are differences between carriers for hire and private carriers. Contrary to Square D’s argument that both private carriers and carriers for hire perform the same activity, carriers for hire carry passengers and goods as a profit-generating activity, whereas private carriers, though most likely to facilitate or increase the profits of their business, do not fly solely to generate a profit. Although all airplanes run basically the same and need similar equipment, the use of those airplanes by carriers for hire and private carriers is significantly different. As the circuit court found, Square D will not be required to tax its passengers, since its passengers pay no charge for flying. A carrier for hire, on the other hand, has to pay tax on ticket sales; it pays income taxes on the profits earned from those ticket sales; and it pays additional service, licensing, and permit fees in its residence as well as at other locations.

Moreover, the classification is reasonably related to the purpose behind the rolling stock exemption, to “prevent actual or likely multistate taxation.” (Burlington Northern, Inc. v. Department of Revenue (1975), 32 Ill. App. 3d 166, 172, 336 N.E.2d 170.) Because a carrier for hire is susceptible to greater taxation than a private carrier, the classification is justified.

Accordingly, in applying the test required by Searle, we find that the circuit court was correct in determining that the rolling stock exemption did not violate uniformity of taxation.

Ill

Square D next contends that the imposition of RTA and municipal use taxes was improper because Square D neither registered nor was required to register its jet in Illinois, conditions precedent, it argues, to imposition of those use taxes. In response, the Department contends that the Municipal and RTA Use Tax Acts contemplate taxation even in the absence of title or registration.

The RTA Use Tax Act and the Municipal Use Tax Act provide for the imposition of use tax on the privilege of using tangible property purchased at retail outside the region and “which is titled or registered with an agency of this State’s government.” (Ill. Rev. Stat. 1985, ch. 1112/3, par. 704.03(g); see also Ill. Rev. Stat. 1985, ch. 24, par. 8—11—6.) Based on the plain language of these provisions, Square D asserts that RTA and municipal use taxes cannot be imposed on an aircraft not registered in Illinois.

The Department, however, points to additional provisions in the Municipal and RTA Use Tax Acts which state that the use

“tax must be paid to the State *** before the title or certificate of registration for the property may be issued. The tax or proof of exemption may be transmitted to the Department by way of the State agency with which *** the tangible personal property must be titled or registered if the Department and such State agency or State officer determine that this procedure will expedite the processing of applications for title or registration.” (Ill. Rev. Stat. 1985, ch. 1112/3, par. 704.03(g); Ill. Rev. Stat. 1985, ch. 24, par. 8—11—6.)

Arguing that this language is inconsistent with Square D’s contention that registration is a condition precedent to the imposition of tax, the Department asserts that the intent of the legislature was to impose use taxes on property even in the absence of actual title or registration with a State agency.

Nevertheless, Square D insists that any inquiry into whether its jet should be registered is unnecessary, arguing that the statute clearly imposes use taxes only on property registered with an agency of Illinois government. We cannot agree.

An absurd result would ensue if the legislature both required a certificate of registration prior to imposition of use tax and required payment of use tax before registration was properly completed. (See also Ill. Rev. Stat. 1985, ch. 15½, par. 22.42(1) (a certificate of registration will not be issued to any aircraft until “any [use] tax so imposed has been paid”).) Further, were we to follow Square D’s reasoning, an owner of aircraft used and operated in Illinois could escape RTA and municipal use taxes merely by failing to register its aircraft in Illinois, an unacceptable effect. We thus hold that the RTA and Municipal Use Tax Acts impose taxes upon property both registered and required to be registered in Illinois.

The Department next argues that Square D was required to register its jet in Illinois and for support, points to language in the Illinois Aeronautics Act which requires the registration of civil aircraft engaged in air navigation in Illinois (with the exception of nonresidents who are lawfully entitled to operate aircraft in the State of their residence and aircraft engaged in commercial flying). (Ill. Rev. Stat. 1985, ch. 151/2, pars. 22.42(1), 22.44.) Arguing that the court was correct in finding that Square D was a resident of Illinois for purposes of the Illinois Aeronautics Act, the Department maintains that Square D cannot escape RTA and municipal use taxes merely because it neglected to register its jet, though required to do so.

Square D maintains that, pursuant to the Illinois Aeronautics Act, it is not a resident of Illinois and thus does not have to register its jet in Illinois. It asserts that the circuit court improperly expanded the scope of residency and erroneously found that, though Square D was “domiciled” in Michigan, it was a “resident” of Illinois. In support of its contention that the circuit court erred, Square D relies upon LeBlanc v. G.D. Searle & Co. (1988), 178 Ill. App. 3d 236, 533 N.E.2d 41.

The court in LeBlanc, in the context of interpreting the “borrowing statute” of our Limitations Act (Ill. Rev. Stat. 1985, ch. 110, par. 13—101 et seq.), held that a corporation is considered a resident only of the State in which it is incorporated, and not of all States in which it is licensed to do business or subject to the jurisdiction of the local courts. (LeBlanc, 178 Ill. App. 3d at 239.) Confining its holding to the statute construed, the LeBlanc court further held that “a determination of whether a foreign corporation should be deemed a resident of a State where it is doing business must be based upon the statute involved and its purpose.” LeBlanc, 178 Ill. App. 3d at 240.

The Department asserts that, based upon this caveat, the term “resident” must be construed to mean a corporation which does business in Illinois because of the broad purpose of the Illinois Aeronautics Act—to advance the public safety. Furthermore, relying on the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 1—100 et seq.) (which it characterizes as “almost identical to the Aeronautics Act”), the Department points to language in that code which states that a corporation will be deemed a resident of the State of Illinois if that corporation’s “principal place of business” is in Illinois. See Ill. Rev. Stat. 1989, ch. 951/2, par. 1—173.

In the instant case, we find that the court was correct in upholding the RTA use tax assessed against Square D. We find that the Illinois Aeronautic Act’s purpose—to advance the public interest and safety—necessitates a broad reading of the term “resident” so that the State will be able to uniformly regulate and supervise aircraft used and operated in Illinois. Though Square D is incorporated in Michigan and holds a Michigan registration for its jet, it does not necessarily follow that it is a “nonresident” and thus exempted from registering its jet in Illinois; rather, we find that because Square D has its world headquarters in Illinois and operates its jet out of an Illinois hangar, it is a “resident” of Illinois for purposes of the Illinois Aeronautics Act. Accordingly, we find that the circuit court did not err in holding that, because Square D was required to register its jet in Illinois, it was subject to RTA use taxes.

Square D contends, in the alternative, that even if it is a “resident” of Illinois, it is exempt from registration because its jet is engaged in “commercial flying.” (See Ill. Rev. Stat. 1985, ch. 151/2, pars. 22.42(1), 22.44.) Notwithstanding its assertion, we find that Square D’s jet is not engaged in commercial flying because Square D neither sells nor provides paid service on its jet. Rather, Square D’s use of the jet is in furtherance of its commercial electronics business and not “commercial flying.”

The Department cross-appeals the circuit court’s denial of the imposition of Palatine’s municipal use tax, contending that the jet, though not kept in a hangar in Palatine and though not flown in Palatine, nonetheless is controlled by officers of Square D operating out of Palatine. Thus, the Department asserts that because the jet is controlled by persons in Palatine, the jet is “used” in Palatine for purposes of the Act.

For support, the Department points to the statutory definition of “use” as “the exercise by any person of any right or power over tangible personal property incident to the ownership of that property.” (Ill. Rev. Stat. 1985, ch. 120, par. 439.2.) The Department asserts that the pilots who fly the plane do not exercise a right or power over the jet; rather, the officers of Square D, who control when the jet is flown, actually “use” the jet.

The Department’s reasoning, however, is strained. Though the statute defines “use” as “any right or power over tangible personal property,” the Department’s interpretation would extend the definition of “use” to any control over an object; if the Department’s reasoning were accepted, a corporation’s control over tangible property anywhere in the State would subject that corporation to use tax in the municipality where the corporation is situated, even if the property were hundreds of miles away. A more logical analysis of the “use” of the jet was applied by the circuit court, which determined that the “use” of the jet occurred where the corporate employees or officers “exercised their right or power” over the jet, in other words, where the jet was actually located and where the passengers boarded the jet.

IV

Square D lastly asserts, in the alternative, that the statute of limitations bars the Department’s claim to taxes on $6,825,000 of the purchase price of the jet, contending that it had made those payments three years prior to the Department’s notice of tax liability. For support, Square D points to the applicable statute of limitations, arguing that it prohibits the Department of Revenue from imposing use taxes more than 3 to 31/2 years after the date upon which the tax was due.

The Use Tax Act adopts the limitations contained in section 4 of the Retailers’ Occupation Tax Act (see Ill. Rev. Stat. 1985, ch. 120, par. 439.12), which provides that “[ejxcept in case of a fraudulent return, *** no notice of tax liability shall be issued on and after each January 1 and July 1 covering gross receipts received during any month or period of time more than 3 years prior to such January 1 and July 1, respectively.” (Ill. Rev. Stat. 1985, ch. 120, par. 443.) Section 5 of the Retailers’ Occupation Tax Act further provides that “[ejxcept in case of failure to file a return, *** no notice of tax liability shall be issued on and after each July 1 and January 1 covering gross receipts received during any month or period of time more than 3 years prior to such July 1 and January 1, respectively.” Ill. Rev. Stat. 1985, ch. 120, par. 444.

Thus, Square D contends that if any tax liability was incurred before January 1, 1983, on the $6,825,000 in payments made during 1980, 1981, and 1982 those installments would be outside the statute of limitations, because the Department did not attempt to collect taxes on those installment payments until over three years later on March 2, 1986.

According to the Illinois Use Tax Act, Square D was required to pay tax directly to the Department if it did not pay tax directly to the manufacturer from which it purchased the jet “as provided in Section 10” of the Illinois Use Tax Act. (Ill. Rev. Stat. 1985, ch. 120, par. 439.3.) Square D was thus, pursuant to section 10, required to file a return with the Department and pay the tax upon those portions of the selling price paid in installments; section 10 provided:

“Except as to motor vehicles and aircraft, when tangible personal property is purchased from a retailer for use in this State by a purchaser who did not pay the tax imposed by this Act to the retailer ***, such purchaser (by the last day of the month following the calendar month in which such purchaser makes any payment upon the selling price of such property) shall, except as provided in this section, file a return with the Department and pay the tax upon that portion of the selling price so paid by the purchaser during the preceding calendar month. *** Such return and payment from the purchaser shall be submitted to the Department sooner than the last day of the month after the month in which the purchase is made to the extent that that may be necessary in order to secure the title to a motor vehicle or the certificate of registration for an aircraft.” (Ill. Rev. Stat. 1985, ch. 120, par. 439.10.)

Thus, even though Square D did not pay the full purchase price, it was required to pay tax on each of the installments no later than the last day of the month following the month in which the installment payment was made.

Square D maintains that the circuit court erred in determining that it was required to report the purchase of the jet to the Department. Instead, Square D asserts that, though retailers are required to file separate returns for selling aircraft, until 1987, purchasers of aircraft from an out-of-State retailer were not required to file a separate return for that aircraft. Square D argues that the absence of such a provision requiring the filing of a separate return demonstrates that there was no such requirement at the time the tax liability in the instant case arose. Square D contends that it did not “fail” to file a required return and thus the “failure” to file a return (invoked in section 5 of the Retailers’ Occupation Tax Act) does not prevent the limitations period from running. Rather, Square D asserts that section 4 of the Retailers’ Occupation Tax Act applies.

Though the Department argued in the circuit court that Square D was required to file a “separate transaction return” for the jet, it now also asserts that the limitations period does not apply because the “purpose, to enable the Department to have time to discover unreported purchase transactions, exists both where a tax return was required to have been filed and was not and where one was not required to have been filed.” The Department further contends that the amendment to the Illinois Use Tax Act now requiring the filing of a return by purchasers of aircraft from out-of-State retailers merely “clarified” that section 10 of the Illinois Use Tax Act requires the filing of a tax return.

In the instant case, we find that the circuit court was correct in holding that the statute of limitations did not preclude imposition of use taxes. We find that, even prior to 1987, the language of section 10 of the Illinois Use Tax Act required the filing of a separate tax return to report the purchase of aircraft from out-of-State retailers. (Ill. Rev. Stat. 1985, ch. 120, par. 439.10.) We thus find that section 5 of the Retailers’ Occupation Tax Act, which specifically applies where a tax return has not been filed, exempts the Department from the running of the statute of limitations. Ill. Rev. Stat. 1985, ch. 120, par. 444.

Based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

      The Gulfstream III is a large twin-engine jet equivalent to a Douglas DC-9; it is capable of nonstop flights from the United States to Europe.

      Square D made the following payments on these dates: February 10, 198—$875,000; May 17, 1982-$2,925,000; November 16, 1982-$2,925,000; and April 7, 1983—$2,884,180.91. Those payments, coupled with the $100,000 down payment and the accrued interest ($208,617) totalled $9,917,797.91

      Both parties agree that Square D’s jet is an instrumentality of interstate commerce.

      A historical review of the commerce clause reveals a shift of positions. Originally, the commerce clause prohibited State taxation of interstate commerce; then the clause was construed to permit some taxation, but only if the instrumentality of interstate commerce had a “taxable moment” in the taxing State; at present, to determine the propriety of a tax on interstate commerce, courts apply the four-prong test enunciated in Complete Auto, which is arguably easier to meet than the “taxable moment” doctrine.

      The Messages Tax Act provided: “A tax is imposed upon persons engaged in the business of transmitting messages in this State ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 120, par. 467.2) The Illinois Bell court found that the statute was ambiguous as to whether “in this State” modified “persons” or “messages.”

      The Civil Administrative Code has recently been amended so that statutes containing this language “shall be construed to preclude taxation of only businesses not subject to taxation under the latest interpretation of the United States Constitution and statutes of the United States.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 127, par. 39c—2.

      The Department’s contention that, even if the exemption were found to be unconstitutional, the severability clause would operate to strike the entire rolling stock exemption and Square D would still be liable for tax, misinterprets Square D’s argument. Square D does not maintain that the entire exemption for rolling stock must be stricken; rather, it contends that only the clause restricting the exemption to “for hire” carriers should be stricken, leaving the exemption intact for all “rolling stock.”

      Public Act 85—299, effective September 9, 1987, amended the Illinois Use Tax Act to require separate returns for each motor vehicle or aircraft purchased from an out-of-State retailer and used in Illinois.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IRA JACKSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0730
    Opinion filed August 17, 1992.

      Kathleen T. Zellner & Associates, of Naperville (Kathleen T. Zellner and Michael Hemstreet, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Jane Liechty Loeb and Michele I. Lavin, Special Assistant State’s Attorneys, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

An indictment returned in the circuit court of Cook County charged Ira Jackson (hereafter defendant), Allen Falls, Dwayne Coulter, and John Annerino with the murder of Cook County Sheriff’s Deputy Michael Ridges, and with conspiracy to kill Robert Fischer. Annerino died prior to trial. The trial judge granted defendant a severance from Coulter, but ruled that defendant and Falls would be tried together using different juries. In a separate trial, Coulter was convicted of the murder of Ridges and conspiracy to kill Fischer, and this court affirmed his conviction in People v. Coulter (1992), 230 Ill. App. 3d 209. Following a jury trial, defendant was found guilty and sentenced to a prison term of 40 years on the murder count and seven years on the conspiracy count. On appeal, defendant contends that: (1) his conviction is invalid because his indictment did not charge him with felony murder pursuant to section 9—l(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9—l(a)(3)); (2) the trial court erred in failing to sever his two charges of murder and conspiracy to commit murder; (3) his inculpatory statement was made involuntarily because Sergeant Reed failed to advise him of his Miranda rights; and (4) the State failed to prove him guilty of the murder of Officer Ridges beyond a reasonable doubt. For the following reasons, we affirm defendant’s conviction.

On October 17, 1985, Officer Ridges was found shot to death at the intersection of Willow Road and Route 83 in Prospect Heights, Illinois. The record reveals a series of relevant facts which connect defendant to John Annerino, Robert Fischer and, ultimately, to Officer Ridges. At trial, Robert Fischer testified that he met John An-nerino in August 1984 at a bar called “Halsted’s” in Chicago while he was working as a security guard at an adjacent bar called the “Loading Dock.” Fischer and Annerino struck up a friendship, and An-nerino told Fischer that he wanted to open up a bar, but because he worked for the Chicago city clerk’s office he was not allowed to own any businesses. Annerino proposed that Fischer become a “front” for such a business, and Fischer agreed.

Annerino also told Fischer that he was the minister of the Guardian Angel Spiritual Independent Church, which was located in his home at 515 West 28th Place, Chicago. Fischer replied that he, too, was a minister. Annerino told Fischer that he was planning on retiring soon and asked Fischer to take the senior pastor’s position at his church. One of the conditions of the position was that Fischer had to live at Annerino’s home.

Fischer moved into Annerino’s home and, subsequently, Annerino put Fischer’s name on several bank accounts. In January 1985, An-nerino arranged for Fischer to take a position as a license examiner in the city clerk’s office. Annerino also purchased a Lincoln Continental in the name of the church for Fischer’s use.

Between February and May 1985, Annerino made sexual advances toward Fischer, and Fischer was not responsive. On May 11, 1985, Mother’s Day, Fischer talked to his mother on the phone. After the conversation, Annerino threw a tantrum and accused Fischer of having received a message from his mother about a woman with whom Annerino alleged Fischer was having a relationship. Fischer told An-nerino he was leaving the church. Annerino replied that the church was a lifetime commitment and that Fischer could never leave unless he was in a casket. He told Fischer he would “stomp on him like a cockroach” if he left the church. Fischer subsequently moved out on June 30, 1985, and went to live with his mother at 704 Maple Street in Prospect Heights.

On July 1, 1985, Fischer reported to work at the clerk’s office and Annerino informed him that he was fired. Fischer responded that he could only be fired by Walter Kozubowski, the city clerk. Annerino ran into Kozubowski’s office and five minutes later Kozubowski summoned Fischer and told him that he was being let go because he was not doing his job properly.

On August 2, 1985, at approximately 5 a.m. a brick was thrown through the living room window of Mrs. Fischer’s house. The Fischers called the police and Cook County sheriff’s police officer Dean Endre responded to the call. At 5:58 a.m., Fischer received a phone call and Officer Endre listened in on the extension. A male caller stated, “Did you see what happened earlier, Bobby? Your whole f — ing world is about to come to an end.”

On August 12, 1985, Fischer was served with a lawsuit demanding $35,000 in storage, room and board for the six-month period Fischer stayed with Annerino. Fischer filed a countersuit for return of his personal possessions. On October 5, 1985, Fischer was shot at as he drove home from his job as a security guard at “Christopher Street,” a bar on Halsted Street in Chicago. He was unharmed, but retrieved a bullet that had lodged in his seat belt. Fischer reported the incident to the Chicago police.

On October 15, 1985, Fischer received a call from a man claiming to be a Chicago police officer. The man stated that he had an arrest warrant for Fischer because he was two months behind in car payments and that he would come to arrest Fischer the next morning at 9:30 a.m. Fischer was not late on his car payments. Fischer called the Prospect Heights police, and the case was referred to Officer Michael Ridges.

On October 17 at 9 a.m., Officer Ridges came out to Fischer’s house, talked with Mrs. Fischer for about 10 minutes, and then left. Later that day, Fischer learned that Officer Ridges had been shot at Willow Road and Route 83, approximately IV2 blocks from the Fischer home.

Park Ridge police detective Joseph Burke testified that on October 17 around 9 a.m. he was off duty, driving east on Willow Road, when he noticed a car parked east of Route 83. He also saw a blue Cadillac. Two black males were standing at the left rear of the Cadillac and one black male was standing at the right rear of the Cadillac. He saw a white male walk around the front of the Cadillac from the front passenger side to the driver’s side. After the traffic cleared, he turned and drove north on Route 83. When he arrived at work later that day, he heard a news bulletin that a Cook County sheriff’s police officer was shot in the vicinity of Route 83 and Willow Road.

James Lussky, a Cook County sheriff’s police officer, testified that at 9:20 a.m. he received a radio message from Officer Ridges for backup at a traffic stop at Willow Road and Route 83. Lussky was en route to that location when he heard a radio broadcast that an officer was shot in that vicinity. When Officer Lussky arrived at the scene, he discovered Ridges’ body and found Falls’ driver’s license nearby.

Chicago police officer John Kucharski testified that he heard a broadcast over his police radio at 9:40 a.m. that a blue Cadillac was wanted in connection with the shooting of a police officer at Willow Road and Route 83. Kucharski and other Chicago police officers responding to the call located the Cadillac on the Kennedy Expressway, stopped the car at Lawrence Avenue, and ordered defendant, Coulter and Falls out of the car. Coulter was dressed as a police officer in a blue shirt with a “Chicago Police Department” patch, and was carrying a .38 caliber gun. Police found pieces of paper bearing both Mrs. Fischer’s name and phone number and Annerino’s address and phone number in Coulter’s pockets. On the front seat Kucharski found a .22 caliber revolver and a police star. In the back seat, he found a blue cap with a shield and a police scanner. Upon their arrest, the three men were given their Miranda warnings by Chicago police officer Teddy Ochocki.

Subsequently, defendant was transported to the 16th District police station whereupon he was placed in a tactical office. Officer Ochocki read defendant his rights again and defendant acknowledged them. At approximately 11 a.m., Cook County sheriff’s police Sergeant John Reed read defendant his Miranda rights and defendant acknowledged his rights. Defendant stated that he did not shoot Ridges. Defendant stated that earlier that morning he was picked up by his cousin, Falls, in a 1975 blue Cadillac. The Cadillac belonged to defendant, but Falls drove because he had a valid driver’s license. Coulter was sitting in the back seat, but defendant said he did not know Coulter’s name at that time. They stopped for gas and then drove along and he fell asleep. Defendant stated that everything was “kind of hush hush” in the car.

When defendant awoke, he asked to use the bathroom. Coulter told Falls to keep driving. Then defendant heard police sirens, looked around and saw a small car with flashing lights. Falls stopped the car. The officer approached them, asked them to get out of the car and to show him identification. Defendant told the officer that he did not have any identification because he did not have any pockets. The officer approached Coulter and asked him “Are you a police officer or a security guard?” Coulter replied, “I am a security guard.” Then the officer asked Coulter for identification. Coulter patted himself as if looking for identification, then began to reach into the car. The officer said, “Do you have a weapon?” As the officer reached for his weapon, Coulter pushed the officer back, drew his revolver, holding it in both hands, and fired three times. Then they all got back into the Cadillac and drove onto the expressway. Subsequently, they were stopped by the Chicago police department.

Sergeant Reed stated that at the time of arrest, defendant was dressed in a sweat suit with a small hood and knee length socks. Defendant told Reed that he thought the purpose of the drive was to look for jobs at Sears in Schaumburg. The conversation lasted for about 30 minutes.

After talking to defendant, Sergeant Reed handcuffed him to his own arm and took him to the Maybrook facility of the Cook County sheriff’s police. On the way they stopped at a gas station. Jackson asked for a pack of Newport cigarettes, and Sergeant Reed bought them for him. Then they went to McDonald’s and Sergeant Reed bought defendant a Big Mac and a vanilla shake. At 1 p.m. defendant was advised of his rights by Assistant State’s Attorney Richard Stock. Defendant stated that he understood his rights and spoke with Stock for about 25 minutes. That evening, at about 7:20 p.m., Stock spoke to defendant a second time and again advised defendant of his Miranda rights. Defendant acknowledged his rights and said that the police had already advised him of them. Defendant made a statement to Stock, which was completed at around 8 p.m. The statement was transcribed by a court reporter, but defendant refused to sign the statement on the advice of his attorney.

The next day at approximately 6:55 p.m., Sergeant Reed was in a room at Maybrook with defendant waiting for another officer to return with defendant’s dinner. At that point defendant said to Reed, “What would it take to walk out of here today and come back and testify at a later date?” Sergeant Reed replied that he would consult with the State’s Attorney’s office but that the case was complicated since the police had found a connection between Coulter and An-nerino. Defendant said he could not stand to be locked up and that he would kill himself if he was locked up. Then defendant stated, “If I told you everything about Annerino, could I walk out of here today and come back later and testify?” Sergeant Reed again responded that he would have to talk to the State’s Attorney, but asked defendant “What can you tell us?”

Defendant replied that a few weeks before Ridges was shot An-nerino approached him and his cousin Falls and offered them $3,000, then $6,000, then $9,000 to kill Fischer. Defendant stated that he did not know Fischer, but that he had seen a picture of him. He stated that he and Falls did not personally want to kill anybody so they referred Annerino to Coulter, who was a security guard. Defendant stated that Coulter had a gun and was always interested in making some fast money.

Defendant said that the day Ridges was shot he, Falls and Coulter drove slowly out to Fischer’s home, “saw the little car there,” and the little car pursued them. Defendant stated that Coulter got ready for the officer by cocking his gun, and when the officer came up, Coulter shot him. Defendant stated that Annerino had paid him $150 for going out to Fischer’s house one other time. Defendant stated that he was afraid of being locked up in the county jail because An-nerino had the power to put a “hit” on him in the jail. Defendant then stated that he would not say anything further unless he had something in writing from the State’s Attorney’s office.

Reed stated that on October 21 he executed a search warrant at 515 West 28th place, Annerino’s home, and found a piece of paper with defendant’s and Falls’ phone numbers and addresses and the notation, “any time.” Reed also found letterhead stationery of “Morgan Finley, Clerk of the Circuit Court,” with the name “Robert Fischer” and the address “704 N. Maple.”

Vincent Steven Calvin testified that defendant and Allen Falls asked him if he would like to make some money, and he agreed to shoot a man for $2,000. On October 16, Calvin went out to Prospect Heights with defendant, Falls, Coulter, and Bobby Lindsey. Calvin stated that in the car defendant gave him a .22 caliber revolver, showed him a picture of Fischer, and told him to go to Fischer’s door and pretend that he was selling aluminum siding. Someone else in the car said that if they were stopped by the police, they should say they were looking for a job in Schaumburg. Calvin went to the door and was told that Fischer was not home. He told Coulter, and they left. When they got back to Chicago, Coulter made a phone call and then told Calvin they had to go back out there. Calvin told Coulter he would not go back.

Bobby Lindsey testified that he had gone out to Fischer’s house the night before with Falls and Coulter and had received the same instructions. Lindsey stated that defendant told him that they wanted to kill Fischer because he stole some cocaine from them.

The State rested and defendant presented no witnesses on his behalf. Following closing arguments and deliberations, the jury returned a guilty verdict against defendant for both murder and conspiracy to commit murder. Judgment was entered on the verdict, and the trial judge denied defendant’s motion in arrest of judgment. Following a sentencing hearing, the trial court sentenced defendant to a prison term of 40 years for murder and 7 years for conspiracy to commit murder. Defendant’s timely appeal followed.

Initially, defendant contends that his indictment was defective because it charged him with murder under Criminal Code sections 9—l(a)(l) and 9—l(a)(2) (Ill. Rev. Stat. 1985, ch. 38, pars. 9—l(a)(l), (a)(2)), but that the jury was given instructions on the theory of felony murder pursuant to section 9—l(a)(3) of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 9—l(a)(3)). Defendant argues that because he filed a timely motion in arrest of judgment in which he specifically questioned “whether the verdict conformed to the indictment,” his conviction must be reversed. The State initially responds that defendant has waived this issue for both failing to object to the instruction on that basis at trial and failing to file a written objection.

In order to properly preserve an error for review, a defendant must both object at trial and file a written post-trial motion raising the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record reveals that defendant did not object to the felony murder instruction at the jury instruction conference on the basis that he now claims is reversible error. The record further reveals that in his motion in arrest of judgment, defendant did not argue that the verdict failed to conform to the indictment, but only that the instructions “had no relation to the facts of the particular case.” We agree that defendant has waived this issue.

However, even if defendant’s argument is not waived, the law in Illinois recognizes only one offense of murder; thus, there is no requirement that a defendant be charged specifically under section 9—l(a)(3) in order to be convicted under the felony murder theory. (People v. Maxwell (1992), 148 Ill. 2d 116, 137.) Section 9—1(a) of the Criminal Code of 1961 defines the offense of murder in the following terms:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.” Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a).

In Maxwell, our supreme court set forth the standard for review as considering “whether the variance between the murder charge and the proof and jury instructions has caused the defendant prejudice in his preparation for trial, and whether the variance may expose him to the risk of double jeopardy.” Maxwell, 148 Ill. 2d at 137.

In reaching its decision, the Maxwell court relied upon People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544. There, the defendant was indicted for murder under sections 9—l(a)(l) and 9—l(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, pars. 9—l(a)(l), (a)(2)), and the indictment did not specifically allege a felony murder theory as provided by section 9—l(a)(3) (Ill. Rev. Stat. 1967, ch. 38, par. 9—l(a)(3)). The Allen court found that the failure to allege a felony murder count in the indictment did not preclude the trial judge from later instructing the jury on that particular theory. The court explained that there was only one crime of murder, and that each of the subparagraphs under section 9—1(a) describes the mental state or the conduct of the defendant which must accompany the acts which cause the death. Thus, the court reasoned, if the defendant were charged with murder under subparagraph (a)(l) and acquitted, he could not again be charged and tried for the murder of the same individual under subparagraph (a)(2) or (a)(3); therefore, double jeopardy was not possible. (Allen, 56 Ill. 2d at 543.) The court further stated that the record did not show that the defendant was in any way misled by the indictment in the preparation of his defense, and that objections to the felony-murder instructions were not made on the basis of that contention. Allen, 56 Ill. 2d at 543.

In the present case, count I of the indictment returned against defendant charged him with murder under section 9—l(a)(l), alleging that he intentionally and knowingly shot and killed Michael Ridges. Count II charged defendant with murder under section 9—l(a)(2), alleging that he shot and killed Officer Ridges knowing that such shooting created a strong probability of death or great bodily harm. The indictment did not charge defendant with murder under a felony murder theory, as provided in section 9—l(a)(3) of the Criminal Code. The jury instruction conference reveals that defendant was not surprised by the felony murder instruction. Defendant’s objection to the felony murder instruction was not made on the basis that he did not prepare a defense to this charge.

Defendant admits that Maxwell is applicable to the present case and admits that the facts of the present case are similar to Allen. Therefore, we conclude that it was not error for the court to instruct the jury under section 9—l(a)(3).

Next, defendant contends that the murder and conspiracy to commit murder counts were improperly joined. Defendant also argues that the trial court had no discretion to consolidate the charges because they were not part of a “single” transaction.

Section 111—4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111—4(a)) provides:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.” Ill. Rev. Stat. 1985, ch. 38, par. 111—4(a).

Whether a defendant’s acts were part of “the same comprehensive transaction” is not determined by precise factors, but rather by the facts presented in each case, and the matter is largely within the sound discretion of the trial court. (People v. Mays (1988), 176 Ill. App. 3d 1027, 1037, 532 N.E.2d 843, 849.) Important factors to consider in determining whether to sever charges include the proximity of time and location of the various charges; the identity of evidence which would be presented to prove each charge; whether the offenses shared a common method; and whether the same or similar evidence would establish the elements of the offenses. People v. Coulter, 230 Ill. App. 3d at 216-17.

Defendant argues that the murder of Officer Ridges and the conspiracy to kill Robert Fischer were not interrelated. However, the record indicates that Officer Ridges was killed within minutes of defendant’s attempt to murder Fischer. Defendant told police that on the day of Officer Ridges’ murder, he, Coulter and Falls drove out to Fischer’s house for the purpose of murdering Fischer, but when they saw “the little car” there, they drove away and the car pursued them. Defendant stated that Coulter “got ready for the officer by cocking his gun.” When Officer Ridges approached them, Coulter shot him. The record indicates that the shooting occurred IV2 blocks from Fischer’s house. The police recovered the following evidence from the Cadillac which tended to show that defendants were acting in furtherance of a conspiracy to kill Fischer: a .22 caliber revolver; a blue cap with a shield; and a police scanner. Police also recovered a .38 caliber gun and a piece of paper bearing Mrs. Fischer’s name and phone number and Annerino’s name and address from Coulter at the scene. Officer Ridges was shot with .38 caliber gun. The record indicates that the above evidence was used to establish both offenses at trial.

In Coulter, this court addressed the same basic facts and found that the record supported the trial court’s discretion to deny severance of the charges against the defendant. (Coulter, 230 Ill. App. 3d at 216-17.) The cases relied upon by the defendant in the present case are the same as those distinguished by this court in Coulter: People v. Fleming (1970), 121 Ill. App. 2d 97, 257 N.E.2d 271 (felonies committed eight months apart); People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496 (evidence of an unrelated prior felony conviction created a significant risk that the jury would unfairly infer that the defendant had a propensity to commit crimes); and People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533 (trial court’s refusal to join the charges affirmed). Defendant has similarly failed to show that the murder and the conspiracy charges were improperly joined in the present case.

Next, defendant contends that his inculpatory statement to Sergeant Reed was involuntary because Sergeant Reed failed to advise him of his constitutional rights prior to interrogation. The trial court found defendant’s statement voluntary and not the result of interrogation.

An individual subjected to custodial interrogation must be warned, prior to questioning, that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) However, voluntary statements of any kind are not barred by the fifth amendment and their admissibility is not affected by the holding of Miranda. (Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1629.) Whether a statement is voluntary depends upon the totality of the circumstances. The test is whether the statement was made freely, voluntarily and without compulsion or inducement or any sort, or whether defendant’s will was overcome at the time he confessed. (People v. Wilson (1990), 196 Ill. App. 3d 997, 554 N.E.2d 545.) In making this determination, the court will consider factors including the duration of a defendant’s detention prior to making the statement, a disregard of the necessities of life, deprivation of counsel, deception restricting the defendant’s constitutional rights, and the defendant’s age, education, emotional characteristics and his experience in criminal matters. (People v. Dodds (1989), 190 Ill. App. 3d 1083, 547 N.E.2d 523.) The related questions of credibility of the witnesses are best resolved by the trial judge, whose determination will be upheld unless contrary to the weight of the evidence. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

Defendant argues that his second statement to Sergeant Reed was involuntary because almost 24 hours had passed between the last time he was advised of his rights and the time he made his second statement. Defendant relies on Brown v. State (1969), 6 Md. App. 564, 252 A.2d 272. In that case, a Maryland appeals court held that a written statement obtained through a second interrogation of a defendant was inadmissible because the defendant had not made a knowing waiver of his constitutional rights. The court noted that there was a time lapse of 18 hours between the time defendant was advised of his rights and made his inculpatory statement; that during that time defendant was transported 50 miles to a different location; that defendant was then interrogated by a different officer; and that defendant did not have a lawyer. Brown, 6 Md. App. at 570, 252 A.2d at 276.

Brown is neither controlling nor similar. The record in the present case indicates that defendant was advised of his Miranda rights five times prior to making his second statement to Sergeant Reed, and that defendant repeatedly indicated that he understood his rights. At the time defendant was transported from the 16th District police station to the Maybrook facility he had already been read his rights three times and acknowledged them each time. At Maybrook, defendant heard his rights twice and again acknowledged them. The record also shows that a lawyer was provided for defendant, that he acted on his lawyer’s advice in refusing to sign his initial statement to Assistant State’s Attorney Stock, that his questioning was brief, and that he was provided with food and drink.

The record further indicates that defendant initiated his second conversation with Sergeant Reed by asking what it would take to get out of jail, and Sergeant Reed suggested that he would talk to the State’s Attorney. When defendant persisted, Sergeant Reed asked, “What can you tell us?” Finally, the record reveals that defendant was familiar with the criminal justice system as he had previously been arrested and convicted for various offenses. Based on the totality of the circumstances, we cannot find that defendant’s will was overcome at the time he made his second statement to Sergeant Reed.

Defendant further argues that Sergeant Reed engaged in interrogation because he asked defendant “What can you tell us?” We cannot agree that this question constitutes interrogation. “ ‘An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not “enhance the defendant’s guilt or raise the offense to a higher degree.” ’ ” (Butzin v. Wood (8th Cir. 1989), 886 F.2d 1016, 1018, quoting W. LaFave & J. Israel, 1 Criminal Procedure §6.7, at 514 (1984); see also People v. Cooney (1985), 136 Ill. App. 3d 989, 996, 484 N.E.2d 802 (police officer’s statement to defendant to “get it off his chest and to be a man” did not render defendant’s statement involuntary).) We find no error in the trial court’s consideration of the witness’ credibility and finding that defendant’s fifth amendment rights were not violated. We agree with the trial court that defendant’s statement was voluntary and not made as a result of interrogation.

Finally, defendant contends that the State failed to prove him guilty of the murder of Officer Ridges beyond a reasonable doubt. Defendant argues that the evidence at trial showed that he was merely a passenger in a car stopped for a routine traffic violation and that Sergeant Reed’s testimony that defendant stated “Coulter got ready for the officer by cocking the gun. When the officer came up, Coulter shot him,” did not show that defendant was accountable for the murder of Officer Ridges.

The critical inquiry on review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461, 472.

Section 5—2(c) of the Criminal Code provides that a person is legally accountable for the conduct of another if:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).)

Intent to promote or facilitate the commission of a crime is proven by showing that, beyond a reasonable doubt, the defendant shared the criminal intent of the principal, or that there was evidence of a common design or a community of unlawful purpose. (People v. Coleman (1991), 222 Ill. App. 3d 614, 623, 584 N.E.2d 330.) Proof of a community of unlawful purpose may be drawn from the circumstances surrounding the commission of the crime, which may include an accused’s presence at the commission of the crime without disapproving or opposing it. Coleman, 222 Ill. App. 3d at 623.

The record in the present case shows that defendant was engaged in a conspiracy to murder Fischer and that there was a community of unlawful purpose between the defendants when they killed Officer Ridges. Defendant stated that Annerino paid him money to arrange for Fischer’s murder, and that the purpose of going out to Fischer’s house was to kill him. Defendant also stated that they drove away from Fischer’s house because they saw Officer Ridges’ car in front of Fischer’s house. Defendant further stated that Coulter cocked his gun as they were approached by Officer Ridges. Calvin and Lindsey testified that defendant and Falls offered them money to shoot Fischer, and they each went out to Fischer’s house on separate occasions with the intent to shoot Fischer. Defendant does not contest his conspiracy conviction. Upon viewing the evidence in the light most favorable to the prosecution, the jury could have found beyond a reasonable doubt that defendant was accountable for the murder of Officer Ridges.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


author: JUSTICE McCORMICK

text:
    VASCULAR AND GENERAL SURGICAL ASSOCIATES, LTD., et al., Plaintiffs-Appellees, v. DAVID A. LOITERMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—3130
    Opinion filed August 25, 1992.

      Puchalski, Keenan & Reimer (Joseph D. Keenan III, of counsel) and Clousson & Associates (J. Paige Clousson, of counsel), both of Chicago, for appellant.
    Neal, Gerber & Eisenberg, of Chicago (Stephen Fedo and Andrew G. Neal, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Dr. David Loiterman, appeals from the trial court’s judgment confirming an arbitrator’s award to defendant’s former employer, plaintiff Vascular and General Surgical Associates (VGSA), of an injunction enforcing a covenant not to compete.

On June 3, 1986, defendant entered into an employment agreement with VGSA, a corporation entirely owned by plaintiff Dr. Kirit Antani, in which defendant agreed to practice vascular and general surgery for VGSA for an initial term of 23 months, until May 31, 1988. Under the agreement, the parties were to begin negotiations for renewal of the contract a year before the initial term ended. The agreement set forth formulas for defendant’s salary in each of the following nine years if the agreement were renewed, and a formula for the price of 50% of VGSA’s stock, which defendant agreed to purchase if the agreement were renewed.

The agreement also included a covenant not to compete, which provided:

“(a) *** following termination of this Agreement, [defendant] will not, for a period of two (2) years, engage in the practice of vascular surgery or offer any related service on his own behalf at MacNeal Memorial Hospital, La Grange Community Memorial General or Oak Park Hospitals, as the employee of another or in association with others. [Defendant] further agrees that during the term of this Agreement or any extension thereof and for two (2) years thereafter, within a five (5) mile radius of [MacNeal Memorial] Hospital, he will not become a partner in, a stockholder of, a promoter of, or an adviser to any individual, partnership, or corporation other than [VGSA] which shall offer any services or goods of the type now or hereafter offered by [VGSA].
(b) If [defendant] violates this noncompetition covenant and ¡VGSA] brings legal action for injunctive or other relief, *** the noncompetition covenant shall be deemed to have the duration specified herein, computed from the date the relief is granted
(c) If any court shall determine that the duration or geographical limit of any restriction contained herein is unenforceable, *** the noncompetition covenant *** shall be deemed amended to the extent required to render it valid and enforceable.”

The agreement further provided:

“Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association [(AAA)], and judgment upon the award rendered by the Arbitrators) may be entered in any Court having jurisdiction thereof.”

Although negotiations for renewal of the agreement commenced as required by the agreement, the parties failed to agree on terms of renewal prior to the expiration of the agreement’s initial term. The parties agreed to continue negotiations for renewal with defendant’s compensation during negotiations governed by the formula stated in the initial agreement. In April 1989, defendant stopped working for VGSA.

Defendant continued to perform vascular and general surgical procedures at MacNeal, La Grange and Oak Park hospitals, and he established a surgical practice competing with VGSA at offices within five miles of MacNeal. In May 1989, VGSA brought suit for an injunction to enforce the noncompetition clause of the employment agreement. Defendant moved to compel arbitration and stay proceedings in the trial court.

VGSA opposed the motion on grounds that the agreement limited the arbitrator to awarding monetary relief, so the arbitrator could not award the injunction VGSA sought. VGSA argued that the use of the phrases “legal action for injunctive or other relief” and “[i]f any court shall determine,” in sections (b) and (c) of the noncompetition covenant, showed the parties’ intention to reserve the issue of the validity of the covenant for the court, and not to submit it to an arbitrator.

Defendant in his reply memorandum pointed out that arbitrators have the power to grant equitable relief, like injunctions, under the rules of the AAA, which are incorporated into the contract. Defendant further stated:

“Parties to an arbitration clause are presumed to agree that everything necessary to an ultimate decision is within the arbitrator’s authority, absent express limitations on that authority. [Citation.] The parties to an arbitration agreement empower the arbitrator ‘to make an award that will fully settle the dispute.’ Hollister, Inc. v. Abbott Laboratories [(1988)], 170 Ill. App. 3d 1051, [1060,] 524 N.E.2d 1035[, 1040-41].”

On June 6, 1989, the trial court ordered arbitration and stayed court proceedings pending arbitration. Defendant demanded arbitration of the issue of whether VGSA wrongfully terminated his employment after failing to negotiate in good faith. Defendant sought a declaration that the covenant not to compete was not enforceable. In its counterdemand for arbitration, VGSA sought enforcement of the covenant. On November 14, 1989, AAA informed the parties that arbitrator Richard Clemens of Sidley & Austin would hear the case.

One week before the scheduled hearing, defendant filed an antitrust suit in Federal court against Dr. Antani, MacNeal Hospital and other doctors at MacNeal, alleging that beginning in May 1989, the doctors conspired to restrain defendant’s practice and force him to resign from MacNeal’s staff. Defendant also alleged that in September 1989, the doctors began proceedings to remove him from the staff, and the decision not to reappoint him in October 1989 was, in effect, a boycott of his ^services.

Defendant then filed in Federal court an emergency motion to stay arbitration, characterizing the issue to be arbitrated as “whether a covenant not to compete *** can be enforced to restrain [defendant’s] professional practice as specified in that covenant.” VGSA responded that the acts alleged to violate antitrust laws all began after April 1989, and all of the acts pertinent to the arbitration ended in April 1989. Pending decision on the Federal motion to stay arbitration, AAA notified the parties that one of Clemens’ partners at Sidley & Austin prepared a memo for MacNeal Hospital in 1987, and the firm did some other work for MacNeal in 1974 and 1978. Clemens had no personal involvement with the work for MacNeal, and MacNeal was not an active client of Sidley & Austin. Defendant objected to Clemens serving as an arbitrator, and VGSA objected to any further delay in the arbitration hearing. AAA reaffirmed the appointment of Clemens.

The Federal court denied the motion to stay arbitration. Defendant subsequently objected to VGSA’s counterdemand for arbitration of the issue of enforceability of the covenant not to compete, arguing that the issue necessarily involved interpretation of Federal antitrust law. Defendant also asked Clemens to postpone arbitration of the issues defendant submitted for arbitration pending resolution of the Federal litigation. Clemens denied the request and heard evidence on all issues submitted for arbitration on April 26 and 27,1990.

Clemens found that the negotiations for renewal of the contract were in good faith and neither VGSA nor Dr. Antani breached the agreement; accordingly, he found “[defendant’s] employment with [VGSA] was not wrongfully terminated.” Clemens also found that defendant breached the covenant not to compete and that the covenant was “reasonable and enforceable under Illinois law.” On June 28, 1990, Clemens ordered defendant not to violate the noncompetition covenant for a period of two years.

Plaintiffs moved to confirm, and defendant moved to vacate the arbitrator’s award. The trial court confirmed the award and enjoined defendant from

“practicing vascular surgery or offering related services at Mac-Neal Memorial Hospital, La Grange Community Memorial Hospital, or Oak Park Hospital, or from conducting a medical practice competitive with that of [VGSA] within a five-mile radius of Mac-Neal Memorial Hospital.”

Defendant appealed. On October 29, 1990, the trial court denied defendant’s motion for a stay pending appeal, and on November 7, 1990, the appellate court denied a similar motion.

On November 15, 1990, plaintiffs petitioned the trial court for a rule to show cause, alleging that defendant continued to practice vascular surgery at La Grange Community Memorial Hospital in violation of the injunction. Defendant demanded a jury trial on the petition, then moved for a continuance. On January 15, 1991, the court held a bench trial on the petition.

At trial, defendant admitted that he had performed at least nine vascular surgical procedures out of 75 surgeries he had performed at La Grange after November 1, 1990. Defendant testified that he had practiced general surgery, not vascular surgery. Dr. Steven Jensik, a specialist in general surgery, testified for defendant that at West Suburban Hospital, general surgeons perform occasional vascular surgical procedures. The trial court granted plaintiffs’ motion to strike Dr. Jensik’s testimony. Defendant sought leave to continue the hearing for presentation of further witnesses on what constitutes a vascular surgery practice.

The court denied the motion and found that defendant violated the order. The court did not order monetary sanctions, but it ordered defendant to “cease from performing any vascular surgery or ***[,] as the order says, related services at the La Grange Community Memorial Hospital,” for a period of two years from January 15, 1991, the date of the order in the contempt proceeding. Defendant also appeals from this order.

Defendant argues on appeal that the trial court should have vacated the arbitrator’s award because the arbitrator exceeded his authority, the award was contrary to public policy and the arbitrator was biased. Defendant argues that the trial court also erred in finding that defendant violated the injunction.

“[T]he object of arbitration is to avoid the formalities, delays, and expenses of litigation.” (Meharry v. Midwestern Gas Transmission Co. (1981), 103 Ill. App. 3d 144, 146, 430 N.E.2d 1138, 1140.) Our supreme court “has long recognized the overriding interest in finality which inheres in the submission of disputes to arbitration, and, accordingly, has counseled against judicial review of the merits of arbitration awards.” Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 418, 386 N.E.2d 47, 49.

Since the arbitration in this case proceeded under the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.), the courts shaU vacate the award if

“[tjhere was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party; [or]
(3) The arbitrators exceeded their powers.” (Ill. Rev. Stat. 1989, ch. 10, pars. 112(a)(2), (a)(3).)

Our supreme court has also found that courts have the power to vacate an arbitration award “if it results in the contravention of paramount considerations of public policy.” Board of Trustees, 74 Ill. 2d at 423-24, 386 N.E.2d at 52.

I

Defendant argues that the arbitrator exceeded his authority by finding that defendant was not wrongfully terminated and by awarding plaintiffs injunctive relief. Defendant contends that in finding that his employment was “not wrongfully terminated,” the arbitrator must have found that defendant was terminated for cause. In his statement of the issue for arbitration, defendant asserted that he was wrongfully terminated in violation of the employment agreement; the arbitrator’s finding appears to be no more than the negative of this assertion. The arbitrator did not assert that plaintiffs terminated defendant’s employment. The finding is consistent with an assertion that defendant terminated his own employment.

Reviewing courts must exercise “[e]very reasonable presumption *** in favor of the finality and validity of [an arbitrator’s] award [citation], and the arbitrator will be deemed to have acted within the bounds of his authority unless the award itself clearly exceeds those bounds.” (Fredman Brothers Furniture Co. v. Retail Store Employees Union, Local 575 (1979), 70 Ill. App. 3d 518, 521, 388 N.E.2d 849, 851.) Defendant’s strained interpretation does not overcome these presumptions.

Defendant argues that the arbitrator had no authority, under the arbitration agreement, to impose injunctive relief, essentially restating the arguments "VGSA. made in opposition to defendants motion to compel arbitration. Arbitrators have only those powers conferred by the parties’ agreement (Board of Trustees, 74 Ill. 2d at 419, 386 N.E.2d at 50), but “[t]he arbitration agreement must be given as broad an interpretation as its language will allow” (Konicki v. Oak Brook Racquet Club, Inc. (1982), 110 Ill. App. 3d 217, 224, 441 N.E.2d 1333, 1338). An award is sufficiently authorized by an arbitration agreement if authority for the award

. “can in some rational manner be derived from the agreement, ‘viewed in the light of its language, its context, and any other indicia of the parties’ intention.’ ” Amoco Oil Co. v. Oil, Chemical & Atomic Workers International Union, Local 7-1, Inc. (7th Cir. 1977), 548 F.2d 1288, 1294, quoting Ludwig Honold Manufacturing Co. v. Fletcher (3d Cir. 1969), 405 F.2d 1123, 1128.

Where a controversy is submitted to arbitration, the arbitrator may make an award that "will fully settle the controversy. Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 407 N.E.2d 1013.

“Absent express limitations, the parties are presumed to agree that everything, both as to law and fact, necessary to the ulti- .• mate decision is within an arbitrator’s authority.” Kalish v. Illinois Education Association (1988), 166 Ill. App. 3d. 406, 409, 519 N.E.2d 1031, 1033.

Here, the employment agreement provides that, if defendant violates the noncompetition covenant and VGSA brings legal action for an injunction, the two-year time period of the covenant will begin to run when relief is entered. The agreement further provides that if “any court shall determine” that the noncompetition covenant is too broad to be enforceable, the covenant shall be narrowed to make it enforceable. The agreement does not explicitly state that only a court has the power to interpret the covenant or to issue an injunction. As defendant pointed out in the trial court, the agreement incorporates the rules of AAA, and those rules state that arbitrators have the power to grant equitable relief. The agreement does not contain the kind of clear, express limitation needed to restrict the arbitrator’s authority, especially because the controversy could not be ultimately decided in plaintiffs’ favor without injunctive relief. Since the parties agreed to submit to arbitration “[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof,” the arbitrator had authority to decide whether the covenant was enforceable and to enforce it by injunctive relief.

Defendant asserts that the enforcement of a covenant not to compete requires a review of the reasonableness of the covenant in light of both State and Federal law. Defendant misstates the law. Illinois courts, including our supreme court, have repeatedly decided questions of the enforceability of covenants not to compete under Illinois law without considering Federal law, and the courts have imposed injunctions when the covenants were enforceable under Illinois law. See, e.g., Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E .2d 433; Torrence v. Hewitt Associates (1986), 143 Ill. App. 3d 520, 493 N.E .2d 74.

Defendant agreed to grant the arbitrator the power to decide the enforceability of the noncompetition covenant under Illinois law and to injunctively enforce the covenant when he signed the employment agreement which included the broad arbitration clause incorporating AAA rules. He gave further evidence of his understanding of that clause when he argued in the trial court in response to VESA’s contention that the arbitrator would not have the power to decide the matter finally and to enforce the covenant injunctively, that “[pjarties to an arbitration clause are presumed to agree that everything necessary to an ultimate decision is within the arbitrator’s authority.” The arbitrator had the authority to determine the enforceability of the covenant not to compete under Illinois law.

II

Although “public policy strongly supports the principle that an arbitrator’s decision is final” (Kalish, 166 Ill. App. 3d at 410, 519 N.E .2d at 1033), “[a]n arbitration award may not stand *** if it results in the contravention of paramount considerations of public policy” (Board of Trustees, 74 Ill. 2d at 423-24, 386 N.E .2d at 52).

Defendant contends that the award in this case contravened the public policy against enforcement of restrictive covenants which do not protect a proprietary interest because Dr. Antani did not have a practice at La Grange Hospital. Even if this could be a public policy consideration that is paramount to the policy favoring the finality of arbitration awards, the record before us cannot support defendant’s assertion. There is no evidence in the record on appeal concerning the extent of Dr. Antani’s practice at La Grange Hospital. Defendant claims that he presented such evidence to the arbitrator, but the record of the arbitration proceeding is not part of the record on appeal.

The restrictive covenant does not, on its face, contravene public policy. Illinois courts have

“repeatedly upheld covenants not to compete in medical practice cases without making a specific inquiry into whether the plaintiff has demonstrated a protectable business interest. Notwithstanding the appellate court decisions which have carefully scrutinized whether the plaintiff has shown a protectable interest in cases outside the medical practice area, the Illinois supreme court’s consistent enforcement of such covenants in the medical professional field, where the durational and geographic scope is reasonable, demonstrates its recognition that a professional’s medical practice is a protectable business interest.” (Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851, 856, 538 N.E.2d 651, 653.)

Defendant does not contend that the covenant was unreasonable in duration or geographic scope.

In Canfield v. Spear, a doctor signed an employment contract in which he agreed not to practice medicine within 25 miles of Rockford for three years after the employment terminated. He opened an office in Rockford shortly after terminating his employment under the contract. Our supreme court held that the noncompetition covenant was enforceable, stating:

“Nor is the contract injurious to any legitimate interest of the public. Defendant can be as useful to the public at some other place in the State as he can in Rockford, and the health of persons elsewhere is just as important.” (Canfield, 44 Ill. 2d at 52, 254 N.E.2d at 435.)

Similarly, because the covenant at issue in this case does not unreasonably restrict the territory of defendant’s practice, nor does the restriction have an unreasonable duration, there is nothing in the record to show that the covenant contravenes public policy.

III

Defendant next contends that the award must be vacated because of the evident partiality of the arbitrator. (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(2).) “[T]he alleged bias of an arbitrator must be shown with clear and convincing evidence, not that which is remote, uncertain, or speculative.” Kalish, 166 Ill. App. 3d at 410, 519 N.E.2d at 1034.

The arbitrator, Richard Clemens, worked for Sidley & Austin, a law firm which did some work for MacNeal Hospital in 1974, 1978 and 1987. MacNeal Hospital was not a party to the arbitration and had no financial interest in the decision. Clemens had not performed any work for MacNeal, and MacNeal was not a current client of Sidley & Austin. Defendant has not presented clear and convincing evidence of bias.

IV

Finally, defendant contends that the trial court erred in finding that he violated the injunction by performing nine vascular surgical procedures at La Grange Hospital between November 1, 1990, and January 15, 1991. Defendant argues that performing nine procedures does not constitute the “practice” of vascular surgery, and the order enjoined him from only practicing vascular surgery. The performance of a few isolated procedures can constitute practice in violation of an injunction against medical practice. (See People v. Spounias (1959), 20 Ill. App. 2d 184, 155 N.E.2d 326.) The trial court properly construed its order to find that defendant violated the injunction by performing nine vascular surgical procedures.

For the reasons stated above, we affirm the trial court’s judgment confirming the arbitrator’s award, and we affirm the judgment extending the injunction due to defendant’s violation thereof.

Affirmed.

HARTMAN, P.J., and DiVITO, J., concur.