author: Mr. JUSTICE ALLOY

text:
    Kenneth Sierens et al., d/b/a Mineral Elevator Company, Plaintiffs-Appellants, v. Edwin Clausen, Defendant-Appellee.
    (No. 74-26;
    Third District
    July 31, 1974.

      Rehearing denied September 9, 1974.

    Kent A. Rathbun, of Hedrich & Rathbun, of Princeton, for appellant.
    Richard R. Horobaker and R. K- Rainey, of Princeton, for appellee,
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Bureau County (striking the complaint of Kenneth Sierens and James Thompson, a partnership doing business as Mineral Elevator Company) dismissing an action against defendant Edwin Clausen. The action was instituted for breach of two oral contracts for the sale of soybeans.

Mineral Elevator Company is a grain elevator. Edwin Clausen is a faimer. The single issue presented on appeal is whether the trial court correctly determined that the applicable Statute of Frauds (which is contained in the sales article of the Illinois Uniform Commercial Code, Ill. Rev. Stat. 1971, ch. 26, § 2 — 201) constitutes a bar to the action of plaintiffs. The pertinent portions of section 2 — 201 read as follows:

“(1) Except as otherwise provided in this Section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it had reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.”

Appellants take the position that both defendant and appellants are "merchants” and that appellants as sellers had confirmed the oral contract in writing and that Clausen had not tendered a written timely objection or notice, and that, therefore, the agreement was binding according to section 2 — 201(2) even though it was an oral contract. Obviously, if Clausen is not a "merchant” then section 2 — 201(2) by its terms would not be applicable. The issue, therefore, is whether within the contemplation of the section, Clausen was a "merchant.”

We note that under Illinois Uniform Commercial Code section 2— 104(1) appears the following:

“ ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

A further section §2 — 104(3)) of the same Uniform Commercial Code provides:

“ ‘Between merchants’ means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.”

In the amended complaint before us, plaintiffs allege that defendant was a farmer, “a grower and seller of farm commodities” and “familiar with” the practices, customs and usages of the grain business and commodities market. There is no specific allegation that defendant was a “merchant.” In Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871 (3d Dist. 1973), we recently considered an action between a grain merchandiser to whom a farmer had agreed to sell and deliver grain where an agreement had been repudiated and where there was an issue of whether the farmer was a “merchant.” In that case, in the context of determining certain rights and duties adhering to the respective parties, depending upon whether one or the other was a merchant, we said:

“Oloffson was a grain dealer. Coomer was a farmer. Oloffson was in the business of merchandising grain. Consequently, he was a ‘merchant’ within the meaning of section 2 — 104 of the Uniform Commercial Code. (Ill. Rev. Stat. 1969, ch. 26, § 2 — 104). Coomer, however, was simply in the business of growing rather than merchandising grain. He, therefore, was not a ‘merchant’ with respect to the merchandising of grain.” 11 Ill.App.3d at 920.

We concluded in Oloffson and we reiterate in the instant case that a farmer who is in the business merely of growing rather than merchandising grain, or a person described in the language of plaintiffs’ complaint, is not a “merchant” with respect to the merchandising of grain. Nothing contained in this decision, however, is intended to determine the question of whether, with respect to other activities, such person might be a “merchant.” Even though we agree with plaintiffs’ assertion, consistently with the language of the Uniform Commercial Code comment, section 2 — 104, that a person may be a merchant with respect to some transactions and not others, we simply determine that a person described as he is in plaintiffs’ complaint is not a merchant with respect to the merchandising of grain.

The issue in the case before us arises on the question of merchandising of grain. Obviously, the defendant, as described in the complaint before us, was a casual seller (see Ill. Rev. Stat. 1971, ch. 26, § 2 — 104, Uniform Commercial Code comment). We, therefore, conclude that the oral contracts in issue in this case were not governed by the exception set forth in section 2 — 201(2). Consequently, in accordance with section 2 — 201(1) we conclude that the contracts were unenforceable since they were simply oral contracts. The words set forth in section 2 — 104(3) of the Uniform Commercial Code in defining the words “between merchants” simply describe transactions between parties where each is a “merchant” and do not require the characterization of a farmer as a merchant.

A decision to the contrary, which would classify a farmer, simply described as he is in the complaint before us, as a “merchant,” in requiring an inquiry to the extent of the persons knowledge or skill with respect to the particular practice in a particular transaction on the simple allegation that he is a grain farmer, would be potentially disruptive to farm transactions. In Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952), which was decided prior to the adoption of the Uniform Commercial Code in Illinois and was based on facts similar to those before us in the instant case, the Statute of Frauds was determined to be a defense in that action where the vendor failed to deliver. The rule which we have enunciated is easily adhered to by grain merchants, since, without entertaining any question as to necessity, they can prepare all of their contracts in writing with' farmers for the purchase of a farmers grain. The conclusion as set forth in this case is clearly preferable, more logical, and more likely to make uniform the interpretation of the Uniform Commercial Code among the various jurisdictions which have adopted the Code. Ill. Rev. Stat. 1971, ch. 26, § 1 — 102(2).

Cook Grains v. Fallis (1965), 239 Ark. 962, 395 S.W.2d 555, involved the same ultimate issue of whether a farmer was a merchant within section 2 — 104(1) of the Uniform Commercial Code. The Arkansas court came to the same conclusion as is expressed in this opinion. While our decision is made independently of the Arkansas case, it is cited for the purpose of showing a consistent interpretation.

For the reasons set forth, the judgment of the Circuit Court of Bureau County is affirmed.

Affirmed.

SCOTT, P. J., and DIXON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
    Roxana Irene Look, aA/a Roxana Irene Ware, Plaintiff-Appellee, v. Barry Allen Look, Defendant-Appellant—(John D. Spaits et al., Intervenors-Appellees.)
    (No. 74-60;
    Third District
    August 15, 1974.

      Richard Hayes, of Pekin, for appellant.
    Arthur Christie, of Moehle, Reardon, Smith & Associates, of Pekin, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought to modify a decree for divorce and change the custody of a minor child from the mother to the father. Maternal grandparents were allowed to intervene and custody was given to them by the Circuit Court of Tazewell County. The father appeals.

Barry Allen Look, the petitioner in this cause, and respondant, Roxana Irene Look, now known as Roxana Irene Ware, were married to each other on August 8, 1964. The only child of the marriage, Heath Allen Look, was born August 26, 1966. On February 28,1968, the Circuit Court of the Tenth Judicial Circuit of Illinois, Tazewell County, entered a decree divorcing the parties from each other and granted Roxana Irene Ware the custody of Heath Allen Look. Petitioner, herein, was granted reasonable rights of visitation with his son and ordered to pay to Roxana Irene Look fifteen dollars ($15) per week child support and any substantial major medical, dental or hospital expenses incurred for his son. The decree also provided that Roxana Irene Look would reside with the child in Kansas City, Missouri.

Subsequent to the entry of the decree, Roxana Irene Look and her son, who is the subject of these proceedings, moved to the home of her parents, John D. Spaits and Ava Spaits in Manito, Illinois. Roxana Irene Look then began a course of conduct that resulted in her leaving her son in the care of her parents, the intervenors in these proceedings. During the next 5 years the intervenors cared for Heath Allen Look in the absence of the daughter, Roxana Irene Look.

From the date of the decree to the commencement of these proceedings, intervenors daughter, Roxana Irene Look, lived with several men to whom she was not married. As a result of one of these relationships at least one other child was born to her and that child was not taken by the intervenors, but was placed for adoption by Roxana Irene Look.

The petitioner in this cause, Barry Allen Look, had paid child support to Roxana Irene Look in the sum of fifteen dollars ($15) per week and was current in that support at the time of these proceedings. He had remarried and was living in Pekin, Illinois, with his new wife of some three and one-half (3%) years. Both he and his new wife were employed and they were purchasing a two bedroom home. Heath Allen Look is the petitioners only child and petitioner’s wife has had no children born to her. Petitioner was 29 and his wife was 26 at the time of these proceedings. They have a small savings and have a family insurance program that includes Heath Allen Look.

The petitioner visited his son often according to his testimony and about four times a year according to the testimony of intervenor, Ava Spaits. He always visited with his son on Christmas and birthdays and brought him clothes and presents.

He had contacted a lawyer in a prior year to determine whether or not he could win the custody of his son. In February 1973, when Roxana Irene Look took Heath Allen Look from the home of her parents to her home in or near Kansas City, Missouri, the intervenor supplied petitioner with enough facts about their daughter to enable him to file the petition to modify decree. Petitioner and his present wife testified that they want Heath Allen Look in their home to raise and care for. Mrs. Look testified that she has known Heath since her marriage and would quit her job if necessary to care for Heath.

Intervenors, John D. Spaits, was 72 years old and his wife, Ava Spaits, was 59 years old when these proceedings were commenced. They never requested the petitioner to repay them for any medical expenses incurred for Heath and there was no evidence that any substantial major medical expenses were ever incurred. Ava Spaits would collect her daughter’s support money from the Circuit Clerk in Tazewell County and mail it to her daughter.

On March 10, 1973, petitioner filed a petition to modify decree of divorce and the petition was set for hearing on the 12th day of April, 1973. On March 12, 1973, John D. Spaits and Ava Spaits caused to be filed in the Circuit Court of the Eighth Judicial Circuit of Illinois, Mason County, a petition to declare Heath Allen Look neglected. They were awarded temporary custody and guardianship by said court on the same day the petition was filed.

Heath Allen Look, while under the actual care and control of the interveners, was retained in the first grade, as he received unsatisfactory grades in spelling, reading, writing and arithmetic. At the end of the first grade, Heath was unable to write numbers correctly or in proper sequence or to write letters correctly. Heath had missed more than 30 days of school while in kindergarten and more than 38 days of school while in first grade, out of a possible 178 school days.

On May 29, 1973, the court entered an order finding petitioner Barry Allen Look to be a fit and proper person, found the interveners to be fit and proper persons and found Roxana Irene Ware to be unfit to have custody of her son. The court decided that it would be in the best interest of Heath Allen Look, age 6, that his custody be awarded to John D. Spaits and Ava Spaits. Defendant was ordered to pay fifteen dollars ($15) per week support to John D. Spaits and Ava Spaits. On June 22, 1973, the defendant filed a motion for a rehearing and affidavit. Hearing was held on the motion on December 21, 1973, and the court entered an order denying the motion.

The appellant father contends that the trial court erred in awarding custody of his son to the grandparents when he was found to be a fit and proper person for the reason that it is in the best interest of the child that he reside with his father and therefore his right to custody is superior.

In proceedings affecting the custody of a child, the primary consideration is the present and prospective welfare of the child, or, as otherwise stated, the best interests of the child. Naturally, no hard-and-fast rule can be laid down as to what will best serve the welfare and interests of a child. Each case must be determined according to its own circumstances and the question rests largely in; the sound' discretion of the trial court. When the people having the actual custody of the- child at the time a change is sought have properly provided and supervised its needs for a substantial period of time and the child has become attached to the environment and to the grandparents who have made possible the happiness, security and comfort of its early years, a court is not justified in transferring that custody to another, except for the most cogent reasons. When people, through the goodness of their hearts, take a child into their home and lavish on it their affection and care, they are entitled to much consideration in an action involving the custody of such child. Jarrett v. Jarrett, 348 Ill.App.1, aff’d 415 Ill. 126.

Whenever the court is called upon to determine whether custody of a minor child should be awarded to the father of the child or his grandparents the “best interests of child” doctrine stands for the proposition that custody be awarded in accordance with the best interest of the child regardless of the fitness of the father. We agree with appellant that there is a presumption that custody by the father will be in the best interest of the child and ordinarily the natural right of a father will prevail in a contest between him and the grandparents where both parties are equally fit to care for the child. However, the rule is applicable only when the father is not chargeable with laches or forfeiture as having left the child with the other party for a long period of time and further the rule always yields to the best interest of the child. (People ex rel. Edwards v. Livingston, 42 Ill.2d 201.) In a particular case the forces of environment may be so strong as to compel the court, in the best interests of the child, to deny the natural right of the father even when he is a perfectly fit person to have custody of the child. Annot., 25 A.L.R. 3d 7; People ex rel. Hermann v. Jenkins, 34 Ill.App.2d 255.

To sever home ties of long standing as here where the child has lived with the grandparents almost all of his fife, a home full of love and care, for the sole purpose of placing him with his father cannot be said to be in the best interest of the child.

The trial judge had the best opportunity to observe the parties and their conduct and demeanor while testifying. This is a vital factor in evaluating the correctness of his determination. We should not disturb his findings unless they are palpably against the manifest weight of the evidence. Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556.

Appellant contends that the trial court erred in implying that the father had virtually abandoned his son. The trial court in referring to its original order stated:

“Now as a result of that hearing the Court did determine the mother was an unfit person to have the custody of that child, the father at that time would be a fit person, but considering the virtual abandonment of that child, he gave the child to the maternal grandparents here for a period in excess of five years.”

It is apparent from a careful reading of this sentence that the virtual abandonment to which the court is referring is that of the mother, not the father. Even assuming that the Court did mean to imply that there was a “virtual abandonment” by the father, the term was only used to describe the acquiescence by the father to the status quo for over 5 years.

For many years the father acquiesced in everything that was being done by the grandparents for his son and was pleased to have them give their care and love to the boy. The father never had any close association with his son. The arrangement was agreeable to appellant for many years before he sought to change it. The best interests of Heath require that it be not discontinued. The record sustains the judgment of the trial court and the judgment appealed from is therefore affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
      In re Estate of Stella Fairchild, Deceased—(Juanita Allen et al., Plaintiffs-Appellants, v. Mabel Tanner, Ex’r of the Estate of Stella Fairchild, Deceased, et al., Defendants-Appellees.)
    (No. 12261;
    Fourth District
    August 15, 1974.

      Sebat, Swanson & Banks, of Danville (Ralph J. Swanson, of counsel), for appellants.
    Brittingham, Sadler & Meeker and Richard K. Bates, both of Danville (F. M. Brittingham, of counsel), for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Vermilion County entering a judgment in bar against the plaintiffs in a suit brought by them to require the executor of the estate to make a computation of and require the defendant Doran to pay her proportionate share of Federal estate tax paid from estate funds by the executor. The will made certain small bequests and then devised a specific farm to the defendant, Mary Louise Doran, a granddaughter. The testatrix then directed the sale of all property not specifically devised with proceeds paid to residuary legatees share and share alike. She then stated, “I make no provision in this clause for my granddaughter, Mary Louise Doran, because I feel that the farm devised to her in Paragraph Fourth above constitutes her full, fair share of my estate.” In this court, two issues are raised by the appellants: (1) That the equities of this case require that the defendant-devisee be charged with her proportionate share of the Federal estate tax and that a determination of this issue ought not be made on the pleadings, but only after a full hearing on the merits, and (2) that the plaintiffs should be entitled to produce such facts as are available to justify their contention that the testator intended the Federal estate tax should be apportioned. We conclude that neither point is well taken and that the trial court should be affirmed.

At the outset, it must be recognized that the Federal estate tax and State inheritance taxes are entirely different. Speaking generally, the State inheritance tax is a tax imposed against a beneficiary of the decedent on his right to receive his designated share of an estate. The Federal estate tax on the other hand is a tax on the right to transmit property from the dead to the living and has no relationship to the quantity or quantum of the estate received by a specific beneficiary. The Federal estate tax is a tax upon the gross estate without relationship to the amount received by specific beneficiaries. Lawless v. Lawless, 17 Ill. App.2d 481, 150 N.E.2d 646.

In First National Bank v. Hart, 383 Ill. 489, 50 N.E.2d 461, the court held specifically that Federal estate tax liability has the same status. and priority as debts, funeral expenses and the like, and this is so unless the will specifically provides otherwise. In In Re Estate of Phillips, 1 Ill.App.3d 813, 275 N.E.2d 685, the issue- we face is fuUy discussed and follows this long accepted rule. True enough, the inbred inequities of this situation and its potential for unfairness have been discussed. (Flynn, “The Estate Tax Apportionment and the Marital Share in Illinois — A Modest Proposal” (1970), 58 Illinois Bar Journal, page 996.) Be that as it may, the fact remains that Illinois has not recognized apportionment of Federal estate tax where a will is involved. The plaintiffs’ plea that equity requires contribution from the defendant Doran for her proportionate share of the Federal estate tax may appeal to the conscience but thus far neither judicially nor legislatively has Illinois recognized the doctrine of total apportionment, partial apportionment or any apportionment within the factual structure of this case.

The effect of the holding in Phillips was to give to a mutually acknowledged child without payment of Federal estate tax more than $235,000 worth of real estate. The residuary estate given to the sister of the decedent was approximately $95,000 with a Federal estate tax near $59,000. In that case, the sister contended that since she was the closest kin, it was apparent that the decedent would not have wanted her own sister’s share to be charged with the payment of the entire estate tax and the child’s share to be free from tax. There was in that case no facts to support plaintiff’s position and hence the trial court and the appellate court correctly held that the Federal estate tax was payable in toto from the residuary estate — and properly so.

In this case, the residuary legatees urge that the testatrix’s statement excluding the defendant Doran from the residuary clause in the will and specifically indicated that she was so excluded because the specific gift of the farm “constitutes her full, fair share of my estate” makes it imperative that there ought to be an evidentiary investigation after answer of what that part of the will means and whether or not the decedent was fully advised of the effect of Federal estate tax. An excursion into this realm, it seems to us, takes us into the realm of the obscure and the unknown. The complaint in this case cites neither fact nor authority for plaintiffs’ claim that “in equity plaintiffs are entitled to contribution from said Mary Louise Doran for her proportionate share of said Federal Estate Tax.” If apportionment in Illinois is to come where a will is involved, it should come through the legislature and not piecemeal on an ad hoc case to case basis. We agree with Phillips that there ought to be stability in judicial decisions. Rules of law long recognized by the bench and bar relating to the transmission of property by will ought not be summarily uprooted. There ought to be exactitude in legislation. Should the legislature elect to act, it can prescribe a time in the future when such an enactment would become effective and give testators an opportunity to conform their wills to the new legislation. It is, of course, a truism to say that a will can itself appropriately provide for such apportionment if the testator so desires.

We are not unaware of the decision in In re Estate of Van Duser, 19 Ill.App.3d 1022, 313 N.E.2d 228, but fact-wise and issue-wise, it is not within the perimeter of the issues or the facts presented here.

The judgment of the trial court is affirmed.

Affirmed.

SIMKINS and KUNCE, JJ., concur.


text:
    George N. Nassar et al., Plaintiffs-Appellants, v. Fred Smith, Defendant-Appellee.
    (No. 11959;
    Fourth District
    August 15, 1974.

      McGrady & Madden, of Gillespie (Denis A. McGrady, of counsel), for appellants.
    Phelps, Russell & Kasten, of Carlinville (Carl E. Kasten, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This appeal concerns the right of various parties to certain personal property which was seized pursuant to an execution levied by a sheriff on behalf of a judgment creditor. The basic facts are somewhat confused but are essentially as follows.

The appellants, George N. Nassar and Jules Bralock, filed a replevin petition against Fred Smith alleging that Smith was wrongfully retaining possession of certain tires owned by Nassar and Bralock. These tires had been seized by the sheriff for Fred Smith pursuant to an execution upon a judgment against Tom Walden, who had possession of the tires. The trial court after hearing the evidence denied the writ of replevin and as a consequence, Nassar and Bralock, the purported owners of the tires seized under the execution, appealed.

The third party to the proceeding, Tom Walden, was the judgment debtor of Fred Smith and was operating a wholesale tire business both prior to and subsequent to the execution. In his business he not only sold the tires that he had on his premises but he also would take tires from customers for the purpose of putting whitewaUs on them and after completion of the whitewall work returned the tires to the customer.

At the time of the levy, Walden had approximately 400 tires at his place of business that were allegedly owned by Bralock. These tires were placed with Walden for the purpose of “whitewalling them” for $1 per tire and upon completion of the whitewall work, they were to be returned-to Bralock. Receipts were introduced showing this arrangement. As regard to the tires of Nassar they were left according to the testimony of Walden to see if “they could work something out” for Walden to become a dealer of Nassar. Walden testified that he would sell Nas-sar s tires if he could but prior to the execution by the sheriff he had not in fact sold any tires of Nassar. Nassar denied that Walden had any authority to sell.

Both Nassar and Bralock testified that Walden had no ownership interest in the tires; however, neither Bralock nor Nassar filed any financing statements nor had any security agreements nor were there any notices posted on the premises indicating that the tires were held by Walden either by consignment or any type of agreement whereby Walden had no title to them. There was testimony of third parties to the fact that Walden was in fact operating a wholesale tire business and was in fact selling tires in the community and held himself out as a wholesale tire dealer. In analyzing the arguments and the points raised by both Nassar and Bralock, it appears to this court that the two parties must be treated differently as the relationship with Walden was not the same.

Section 1 of the Replevin Act (Ill. Rev. Stat. 1971, ch. 119, par. 1), provides as follows:

“That whenever any goods or chattels shall have been wrong-fuffy distrained, or otherwise wrongfully taken or shall be wrongfully detained, an action for replevin may be brought * *

The person bringing the action must recover, if at all, on the strength of his own title and his right to immediate possession. Frank v. Hayes, 25 Ill.App.2d 99, 166 N.E.2d 283; Hanaman v. Davis, 20 Ill.App.2d 111, 155 N.E.2d 344.

Nassar and Braloclc contend that Walden had no title and therefore the seizure by the sheriff under the excution was wrongful. Smith, on the other hand, cites section 2 — 326 of the Illinois Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 2 — 326), and contends that the transactions here involved were “sales or returns”. The aforesaid provision of the Code states:

“(1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
(a) a sale on approval’ if the goods are delivered primarily for use, and
(b) a sale or return’ if the goods are delivered primarily for resale.
(2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. * * * However, this subsection is not applicable if the person making delivery
(a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
(c) complies with the filing provisions of the Article on Secured Transactions (Article 9). (Emphasis added.)

The definition in section 2 — 326 subparagraph (3) of sale or return appears to describe the relationship between Nassar and Walden. The tires were delivered to Walden who engaged in the business of selling tires in his own name. There is a factual discrepancy as to whether in fact Walden had the authority to sell these goods; Walden said he did; Nassar said he did not but that the goods were left with Walden “to sell if they would fit in his [Walden’s] program.” The trial court did not make any specific finding of fact on that issue. However, the presumption is that the trial court resolved factual discrepancies in favor of sustaining its judgment. (Tolbird v. Howard, 43 Ill.2d 357, 253 N.E.2d 444.) As such the presumption is that the trial court resolved the credibility in favor of Walden. In addition, it does appear from the evidence of the tires being left there for a period of time “to see if they would fit in the program” is more than leaving the tires for a cursory inspection to see what they were like. Under these circumstances it is difficult to conceive that there was not the implied if not the direct authority to sell these tires by Walden.

If the foregoing is true, and we find it is, then this arrangement was under section 2 — 326(3) a “sale or return”. Under subsection (2) goods held on sale or return are subject to the claims of the creditors of the buyers. Therefore, the trial court properly denied this replevin writ as against Nassar.

The situation appears to be different as to Bralock. The tires were shipped to Walden for “whitewalling”. Receipts were introduced into testimony showing the delivery “for whitewalling”. The testimony was that there was a dollar charge per tire and that the tires were to be returned. As such there was no sale, but merely bailment. Goods delivered to another for alteration are classic forms of bailment. It is stated in 4a I.L.P. Bailments § 2, at 498:

“The term ‘bailment’ has been defined as the delivery of goods for some purpose under a contract, express or implied, that after the purpose has been fulfilled they shall be redelivered to the bailor or otherwise dealt with according to his directions * *

In distinguishing bailments from sales, courts have held that a sale has not taken place when the identical property is to be returned in altered form and the title and ownership remains in the bailor. In People v. Moses, 375 Ill. 336, 31 N.E.2d 585, the court said at pages 339-340:

“If personal property is delivered by one person to another under an agreement that the same property is to be returned to the person delivering it in the same or an altered form, the contract is one of bailment and the title to the property remains in the bailor.”

See also Maxcy-Barton Organ Co. v. Glen Building Corp., 355 Ill. 228, 189 N.E. 326; Independent Brewing Ass’n v. Cooke Brewing Co., 169 Ill.App. 347.) Even if the chattels are delivered and to be returned in an altered form, a bailment stUI exists. Wetland Tool & Manufacturing Co. v. Whitney, 44 Ill.2d 105, 251 N.E.2d 242; First National Bank v. Schween, 127 Ill. 573, 20 N.E. 681.

The existing factual situation clearly establishes that there was a bailment between Bralock and Walden. The tires were not delivered for money but for alteration; they were to be returned after these alterations. There was no testimony that any of these tires had been sold and there was in fact testimony that there was no authority to seU these tires. The ownership of these tires clearly remained in Bralock, subject to the terms of the bailment. As such the creditors of Walden had no right to recover these tires. See 8 Am.Jur.2d Bailments, § 100, at page 998, wherein it is said:

“The general rule is that in the absence of any element of estoppel, bailed property in the possession of the bailee is not subject to attachment or levy under process against the bailee to satisfy claims of his creditors # * *.”

Defendant urges that the issue of the bailment was not raised in the pleadings nor was the issue raised in the post-trial brief at the trial court and that it was first raised in the post-trial motion. As such, it is contended that there was a waiver of this defense. This waiver argument is inapplicable in the factual situation here presented. The most that can be said is that the ‘labels” were not applied. The parties did contest ownership; evidence was taken as to the relationship between the parties. Bralock introduced receipts showing that the tires were shipped for the purpose of “whitewalling.” The factual situation was fully explored and to hold that because the term “bailment” was not used below when the facts show a bailment, would be exalting form over substance.

For the foregoing reasons, this matter is affirmed in part and reversed in part, and remanded to the trial court for a determination of which tires were those of appellant Bralock and which were those of appellant Nassar, and for such further proceedings as are not inconsistent herein.

Affirmed in part; reversed in part and remanded to the trial court with directions.

GRAVEN and TRAPP, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    Lonza, Inc., Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 73-133;
    Third District
    August 13, 1974.

      John C. Parkhurst, of Leiter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for petitioner.
    Larry R Eaton, Assistant Attorney General, of Springfield, for respondent.
   Mr. JUSTICE STOUDER

delivered the opinion of the cotut:

This action was brought by the Environmental Protection Agency against two respondents, Ashland Chemical Company and Baird Chemical (now Lonza, Inc.), by a complaint filed on May 1, 1972, alleging violations of section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111%, par. 1009(a)) by causing air pollution in the form of odor contaminants either alone or in combination with other sources at their adjacent plants near Mapleton, Peoria County, Illinois. The Board, after a hearing, ordered each respondent to pay a $10,000 fine, submit a program for abatement of then odor nuisance and achieve abatement within a certain time. From this order Lonza seeks review pursuant to statute and Supreme Court Rule 335 (Ill. Rev. Stat. 1971, ch. 110A, par. 335). Ashland has sought review under a separate action.

The Lonza plant, originally owned by Baird, was constructed shortly after the Ashland plant facilities, about 1961, and Lonza’s premises are immediately adjacent to and roughly west of Ashland’s plant. The two plants are separated from the residential part of Mapleton by Route 24 and a distance of a few hundred yards.

The Ashland plant is a basic chemical plant which engages in the production of a wide variety of products. About 65 percent of Lonza’s plant production consists of producing sorbitol, a 70-percent sugar solution.

Both plants utilize waste-water treatment systems. Ashland’s system proceeds to an 18.5-acre lagoon and then to a 105-acre lagoon from which there is no effluent. Lonza’s system has two 1-acre receiving lagoons which have no effluent discharge.

One of the issues raised by Lonza in its brief relates to the constitutionality of the penalty provisions of the Environmental Protection Act. City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146, and City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 313 N.E.2d 161, decided after Lonza filed its brief, have now settled this issue and hold the penalty provision to be constitutional.

Lonza also raised an issue concerning the propriety of the denial of its motion to sever its case from that of Ashland. Lonza’s contention is that the denial of the motion to sever constituted an abuse of discretion prejudicial to Lonza. We hold here that there was no abuse of discretion particularly in view of section 9a of the Environmental Protection Act under which section this action against the two companies was brought, which provides that emissions which cause air pollution either alone or in combination with contaminants from other sources are prohibited. This denial of severance did not of course relieve the Pollution Control Board of its duty to find that each company was a source of the pollution.

Before discussing the sufficiency of the evidence and the propriety of the Board’s order it would be helpful to keep in mind the stated purpose of the Illinois legislature in passing the Environmental Protection Act is “* * * to establish a unified, statewide program supplemented by private remedies, to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.” (Ill. Rev. Stat. 1971, ch. 111%, par. 1002(b).) In order to attain the stated goals, one of the requirements for membership on the Pollution Control Board is that the members be technically qualified, and one of the authorizations given to the Director of the Environmental Protection Agency is to employ technical assistants and consultants. This requirement of technical qualification for Board members and the provision for hiring of technical assistants is not only to enable the determination of the existence of pollution but more so to render advice and assistance to polluters and potential polluters to assist them in complying with the requirements of the Environmental Protection Act. The Act’s purpose is to protect the environment of the State of Illinois. It was not enacted primarily to punish polluters but rather to protect, enhance and restore the environment by eliminating, lessening and preventing pollution.

The principal issue is whether Lonza was the source of odor contaminants constituting air pollution within the meaning of the Environmental Protection Act. In this respect we are concerned with the construction, interpretation and application of the statutory provisions in order to ascertain the intention of the legislature.

Air pollution is defined in section 3(b) of the Act as follows, “‘Air Pollution is the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property.” The first question relating to this definition of air pollution is whether the “or” preceding “to unreasonably interfere with the enjoyment of * * *” is used in the disjunctive sense or in the conjunctive sense.

There is considerable support in the cases for construing the term “or” in a statute to mean “and.” (Moriarty v. Murphy, 387 Ill. 119, 55 N.E.2d 281 (1944); People ex rel. Watson v. House of Vision, 16 Ill.App. 3d 487, 306 N.E.2d 697 (1973); Mills v. Village of Milan, 68 Ill.App.2d 63, 214 N.E.2d 915 (1966); Goldblatt v. City of Chicago, 30 Ill.App.2d 211, 174 N.E.2d 222 (1961).) The primary reason for such a construction is to effectuate the intention of the legislature where there is ambiguity as to its meaning. In Moriarty the court held, “It is the settled law of this State that the words ‘or and ‘and’ will not be given their literal meaning when to do so renders the sense of a statutory enactment dubious. The strict meaning of such words is more readily departed from than that of other words. Where it is necessary to effectuate the intention of the legislature, the word ‘or’ is sometimes considered to mean ‘and’, and the word ‘and’ to mean ‘or’.” 387 Ill. at 129.

The difference is that if the “or” is used in the disjunctive sense then air pollution, for the purposes of the Environmental Protection Act, exists either when there is “injury to # * or ” * * unreasonable interference with the enjoyment of life or property.” It would be necessary in such case to envisage circumstances where there is unreasonable interference with the enjoyment of life or property and at the same time no injury to life or property. If, however, the “or” preceding “to unreasonably interfere with * * *” is used in the conjunctive sense, then air pollution, for the purposes of the Act, must be more than merely an injury. This injury must unreasonably interfere with the enjoyment of life or property. This latter use of the word “or” to mean “and” would also serve to give significance to section 33(c) of the Act, which sets forth four categories of facts and circumstances which the Pollution Control Board shall take into consideration bearing on the reasonableness of the emissions, discharges or deposits.

This action was brought under section 9(a) of the Environmental Protection Act, which prohibits the discharge or emission of any contaminant so as to cause or tend to cause air pollution. Air pollution is defined in section 3(b) (quoted at length above). Contaminant is defined in section 3(d). Section 33(c) sets forth facts and circumstances bearing upon the reasonableness of the emissions or discharge. Section 33(c) provides: “In making its orders and determinations, the Board shall [emphasis added] take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to: (i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people; (ii) the social and economic value of the pollution source; (iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and (iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source. * # *”

The argument has been made that the factors in section 33(c) are relevant only as matters of defense, yet in City of Monmouth v. The Pollution Control Board, 57 Ill.2d 482, 487, 313 N.E.2d 161, the supreme court, in responding to respondent’s contention that section 9 of the Environmental Protection Act was unconstitutional for the reason that it did not contain sufficient standards for determining what constitutes air pollution declared, “We hold that section 9(a), when read in conjunction with sections 3(b), 3(d) and 33(c), contains sufficient standards.” Accordingly, to determine the existence of air pollution it is necessary to examine the facts listed in section 33(c). The reasonableness described in section 33(c) refers both to the cause and effect of the emissions.

Section 31(c) provides that the burden shall be on the Agency or other complainant to show either that the respondent has caused or threatened to cause air or water pollution. According to the Monmouth case a necessary prerequisite to determining the existence of air pollution is to examine the factors in section 33(c). Therefore, such examination becomes part of complainant’s burden under section 31(c). Although section 31(c) does not so state, there can be little doubt but that the respondent may deny the allegations of the complaint, may present evidence in support of his position, may argue with respect to disputed factual issues and disputed inferences, and may otherwise oppose the theories proposed by the complainant.

Although not an issue in this case it should be noted that further provision of 31(c), providing “* * * If such proof has been made, the burden shall be on the respondent to show that compliance with the Board’s regulations would impose an arbitrary or unreasonable hardship,” refers to a special defense in the nature of confession and avoidance. This special defense, consistent with the provisions of sections 35 through 38 (variances), seems to be directed at reasons why sanctions should not be imposed or abatement required because of the existence of special circumstances even though a violation exists.

How section 33(c) and its various factors should be incorporated into the administrative process has caused some confusion and differences of opinion. In Incinerator Inc. v. Pollution Control Board, 15 Ill.App.3d 514, 521, 305 N.E.2d 35, the court, in discussing one of the factors in section 33(c), declared, “Since such testimony was presented to the Pollution Control Board, we can only conclude that the Board acted in compliance with section 33(c) of the Environmental Protection Act and considered such testimony in reaching its decision. This is all that is required by section 33(c) * 2 (See Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 297 N.E.2d 540; Southern Illinois Asphalt Co. v. Environmental Protection Agency, 15 Ill.App.3d 66, 303 N.E.2d 606.) In Mystic Tape v. Pollution Control Board, 16 Ill.App.3d 778, 306 N.E.2d 574 (petition for leave to appeal granted) the court, in contrast to the language of the Incinerator case, believed that specific findings should be made by the Board with relation to the standards specified in section 33(c). Whether such findings are required or not it is clear that a court of review will be considering the Board’s application of such standards and the absence thereof may well affect the review of the Board’s orders.

In any event, this court will consider all of the statutory provisions, including those specified in section 33(c), in order to determine whether the evidence supports the findings made by the Board and whether the remedial portions of the order are supported by the findings.

According to Lonza, the order of the Board is not supported by the findings and the findings not supported by the evidence, and in order to resolve these issues in light of the foregoing discussion of the statute a summary of the evidence is required. The first citizen witness concluded that odors were coming from both plants. The second' citizen witness testified that she could not distinguish the source of the odors as being Ashland or Lonza. The third witness testified that he had no way of telling which plant the odors were coming from. The fourth witness testified that he would not try to tell which factory the odors came from because the factories were scrambled together and he could not separate them. The fifth witness testified that an odor she had smelled a few days prior to her testimony came from one of the chemical plants but she wasn’t sure which one and that she had seen fog coming from those plants in the past that was right alongside the ditch between the plants on the Lonza side. It was her opinion that most of the fog came from Lonza. She testified further that the odor was not always with the steam and that every time she had seen the steam there was not an odor. The next witness testified that she had smelled the same odor as the fifth witness but she didn’t know where it came from. The seventh witness testified he associated the odors with smoke rising out of the vent pipes of both the plants. The last citizen witness testified the odor came from the vicinity of the two plants but since they were so close together it was hard to detect from which place they came.

The first witness from the Environmental Protection Agency testified that he could not specify the source of the smell and that he had never visited the Lonza facility. The second Agency employee testified that he noticed a pungent odor from the Ashland and Lonza area of Mapleton but that he could not specify the source. He stated that when he visited the Lonza plant he detected a pungent odor, but only for a fleeting moment, a fraction of a second, and that was the only odor that he noticed. On his second visit to Lonza he said he did not observe any odors, and on his thud visit he inspected the plant facilities and did not notice any odors while inspecting the building other than background odor. He also stated that while inspecting the water-treatment facilities at Lonza he did not detect any odor attributable to the Lonza facility. The third Agency witness testified that he noticed a fishy odor in the Mapleton area but he was not able to determine the source of the odor. He testified that it was his opinion that the odor on one particular day came from the Ashland plant, and he stated that he had never been on Lonza premises. He said the only other time he was in the vicinity of the Lonza plant he detected an odor but could not attribute the odor to any particular source. He stated that Lonza was not dealing with the volume of waste that Ashland was. He stated that Lonza was dealing with about 25 to 50 gallons per minute whereas Ashland was dealing with 3,000 gallons per minute. The last witness from the Environmental Protection Agency stated that when he visited Lonza he noticed a hydrogen sulfide odor and that there was another odor also present but he could not exactly pinpoint it. He stated further that he was not able to say where that odor came from. He testified that he noticed an odor at the southwest corner of Lonza’s property and noted the odor when he smelled the opening of one of the Lonza tanks but that he smelled no other odor and observed no haze or fog or visible emission from the Lonza plant.

James B. Munroe, plant manager for Lonza, admitted that Lonza had about three breakdowns a year whereby a total of about 3,000 pounds of hydrogen chloride (HC1) was emitted and that also due to mechanical breakdown Lonza emitted about 1,000 pounds of dimethylamine (DMA) per year. He further stated that on one or two occasions he was able to identify the first odor as coming from the Lonza plant when they had a specific problem with their dimethylamine system but on many more occasions he was unable to identify the fishy odor or where it came from. He stated that he never was able to attribute the rotten-egg odor to any of the Lonza plant facilities. He stated, “In the past two years I have been able to attribute the acrid odor to the Lonza facility maybe two or three times a year. The cause of this acrid odor was the HC1 system. Typically, a mechanical breakdown or malfunction somewhere in the system caused the HC1 to emit.”

In the present case the order of the Pollution Control Board required Lonza to submit a program for abatement of their odor nuisances and to pay a penalty of $10,000 for causing air pollution. It must be conceded due to the admission of Lonza’s plant manager that Lonza was in fact the source of some odor contaminants. The issue is whether the evidence, including the admission of the plant manager, constituted sufficient evidence that Lonza was guilty of air pollution within the meaning of the Environmental Protection Act.

After reviewing the record, the findings, and the provisions of the statute we reach the following conclusions: one, from the testimony of the citizen witnesses there is little if any evidence as to the source of the odors about which they complained. Indeed, the testimony of these citizen witnesses is replete with direct statements that the witnesses could not tell that any of the odors came from Lonza; two, the technical representatives of the Agency who had investigated the complaints and the circumstances existing in the plants and community were unable to report and coiToborate either the existence of the odor or the source of its emission either directly or hypothetically; three, when the testimony of Lonza’s plant manager is reviewed in light of the testimony of the citizen and technical witnesses it cannot be said that the odors released from the breakdown of the equipment were the odors described by the citizen witnesses or the cause or source of the condition complained about; four, finally, in the absence of evidence concerning cause and source of the emissions and in particular the absence of any evidence by the technical witnesses concerning what could or should have been done, it is not possible to say what changes were technologically and economically feasible either in terms of what Lonza should have done in the past or what should be done in the future. We conclude from the foregoing that the evidence is insufficient to support the conclusion that Lonza was guilty of a violation of the statute.

For the foregoing reasons, the order of the Pollution Control Board is vacated.

Order vacated.

SCOTT, P. J, and DIXON, J., concur,


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Sid DuPree, Defendant-Appellant.
    (No. 73-78;
    Second District
    August 19,1974.
    Daniel T. Williams, Jr., of Rockford, for appellant.
   Opinion by

Mr. JUSTICE RECHENMACHER.

Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Monis, both of Model District State’s Attorneys Office, of counsel), for the People.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony R. Rosochacki, Defendant-Appellant.
    (No. 72-204;
    Second District
    August 19, 1974.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James R. Koeppen, Defendant-Appellant.
    (No. 73-159;
    Second District
    August 19, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Wffliam J. Cowlin, State’s Attorney, of Woodstock (Louis Bianchi, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The defendant was indicted in McHenry County for murder and in a bench trial was found guilty as charged. He received a sentence of not less than 14 years nor more than 14 years and 1 day. From this conviction and this sentence he brings this appeal.

Only two issues are presented for review. They are (1) whether the evidence was sufficient to sustain the defendant’s conviction for murder; and (2) whether the minimum sentence provision which is required to be imposed following a conviction for murder violates the purposes of article I, section 11, of the Illinois Constitution.

A concise statement of the material facts as far as they affect the first issue raised on this appeal show that the defendant on the day of the occurrence moved from a motel to the home of his friend, Herbert D. Beasley. During the afternoon they together worked on the construction of a dog run, consuming a number of cans of beer, followed by dinner and more drinks later. However, there is no contention by anyone including the defendant that intoxication is any factor of consideration in the offense. Later in the evening the defendant Koeppen and his friend Beasley decided to attend the Founders Day Carnival in Algonquin where they remained until the carnival closed at about midnight and then started to go to their parked car. The deceased, Eriberto Arroyo, and his girl friend, Robin Suchy, also attended the carnival and were leaving by the same route when the carnival closed. The defendant was 26 years old, the deceased was 18 years old and 5 feet 6 inches tall and Robin Suchy was 15 years old. Up until this time the defendant and the deceased were strangers. The first encounter between the two parties occurred when the deceased, shortly after leaving the carnival grounds, left his girl friend temporarily on the street to go into the bushes to reheve himself and while the deceased was thus absent the defendant and Beasley approached the girl and the defendant had some words with her as to what the deceased was doing. She rebuffed their encounter but related it to the deceased upon him rejoining her. After the deceased again joined the girl, both groups proceeded separately down the street toward their parked cars. The second encounter occurred shortly thereafter when Koeppen and Beasley approached the couple and asked for a match. The deceased stated he had no matches and there was an exchange of words. Sometime before the third and fatal encounter the defendant stumbled upon, picked up and carried with him a small clear beer mug or glass. The deceased and his girl friend had just joined a group of friends on the street near the parking lot and were telling them of their encounters with Koeppen and Beasley when again they were approached with the defendant Koeppen somewhat ahead of Beasley. Some words were exchanged and the defendant advanced on the deceased with the latter retreating and stating he did not want any hassles. With the round-handled beer glass the defendant attacked Arroyo; the glass broke; and the deceased received extensive lacerations of the face, left arm and neck. The defendant than stated to the other members of the deceased’s group, “Well I can take five of you. What’s the difference, I’m bleeding, too.” The deceased ran from his attacker while bleeding profusely, collapsed, and was taken to the hospital and pronounced dead on arrival. It was stipulated that the deceased died from the wounds inflicted by a sharp-edged instrument that partiaHy severed the left jugular vein and surrounding small vessels. The defendant and Beasley were taken into custody at the scene.

In the first issue raised the defendant contends that the evidence supports only a conviction of involuntary manslaughter and that the murder conviction should be reduced to that offense. The trial court was not requested to reduce the charge from, murder to manslaughter and the trial judge in his recital of his. findings at the conclusion of the evidence stated, “The Court finds nothing in the evidence in this case which legally could be used to reduce the charge from murder to manslaughter.” Defendant cites the statutory definition of the two offenses and asserts that the facts here support a finding that the acts causing death were accidental or reckless rather than intentional or knowing. Specifically, he states there is no direct proof that defendant had an intent to kill or any direct proof that bis acts created a strong probability of death or great bodily harm.

As to defendant’s contention that there is no evidence that the defendant intended to kill Arroyo, in the case of People v. Latimer, 35. Ill.2d 178, the supreme court said on page 182:

“We have repeatedly held that it is not necessary to show that an accused has formed an intent to kill in order to justify a murder conviction. It is sufficient to show that he voluntarily and wilfuHy committed an act, the natural tendency of which was to destroy another’s life, with the intent being implied from the character of the act.”

Again in People v. Wilson, 3 Ill.App.3d 481, where the defendant had stabbed the deceased and at the time of trial contended he did so with no intent to kill the court, on page 485, said:

“While he asserted that he did not intend to kill Farland, it is not necessary in order to sustain the conviction that he deliberately formed an intent to kiH. It is sufficient if at the instant of the assault he intended to do great bodily harm or knew that there was a strong probability that his acts would cause death or great bodily harm.”

From the evidence heard by the trial judge it is quite clear that the defendant was the aggressor and that the confrontation between the deceased and the defendant was repeated. It is further clear that there was no provocation for the defendant’s assault other than an exchange of words; that the assault was a voluntary act with a handled beer glass which resulted not only in great bodily harm but in the death of Arroyo. Such an assault as we have here of an individual with a glass object creates an intention and strong probability of great bodily harm and it is not necessary that the assailant knows that death will ensue. The trial judge who heard the evidence found the defendant’s voluntary act of striking the deceased with a handled beer glass was an intentional act which the defendant knew created a strong probability of death or great bodily harm. We find no reason to disturb his findings. The State’s evidence was sufficient to sustain the murder verdict.

The second issue attacks the sentence imposed on the grounds that the minimum sentence required to be imposed for a conviction of murder violates the purpose of article I, section 11, of the Illinois Constitution. Appellant cites no authority for this contention. In the case of People v. Wilson, 19 Ill.App.3d 625, 312 N.E.2d 30, the defendants were convicted of armed robbery and received sentences ranging from a 5-year minimum to a 15-year maximum. Two of the defendants were 17 years of age. On page 628 of the opinion the court said:

“The argument that the sentences here imposed violated the philosophy of the 1970 Constitution which provides that ‘All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring offender to useful citizenship’ need not long detain us. Under the new Code of Criminal Corrections (Ill. Rev. Stati, 1972 Supp., ch. 38, par. 1005 —8—1) armed robbery is a Class I felony with a minimum term of 4 years, unless the court giving consideration to the nature and circumstances of the offense and the history and character of the defendant imposes a higher minimum term. Both Wilson and Reed had prior criminal records. The sentences here imposed are well within the guidelines described by the legislature and do not appear to constitute a great departure from the fundamental law and its spirit and purpose, nor is the penalty imposed in excess of the philosophy prescribed by section 11, article I of the 1970 Constitution.”

The Constitution provides: “All penalties shall be determined both according to the seriousness of the offense and with tire etc.” (Emphasis added.) The legislature which has defined the offense has also determined that murder is so serious an offense that a minimum sentence of 14 years must be imposed. Much discretion has been imposed in the trial court in fixing sentences within legislative limits, but no discretion is granted to ignore the legislative determination of statutory penalty limitations. The minimum sentence here imposed is in accordance with the seriousness of the offense as provided by the Constitution.

Accordingly, the judgment of the trial court should be and is hereby affirmed.

Affirmed.

EBERSPACHER and CREBS, JJ., concur.