author: JUSTICE WELCH JUSTICE HARRISON,

text:
    LAIDLAW WASTE SYSTEMS (MADISON), INC., Petitioner and Cross-Respondent, v. THE POLLUTION CONTROL BOARD et al., Respondents and Cross-Petitioners.
    Fifth District
    No. 5—91—0004
    Opinion filed June 18,1992.
    HARRISON, J., dissenting.
    Brian E. Konzen and Leo H. Konzen, both of Lueders, Robertson & Konzen, of Granite City, for petitioner.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
    George J. Moran, Sr., of Callahan & Moran, P.C., of Trenton, for other respondents.
   JUSTICE WELCH

delivered the opinion of the court:

Laidlaw Waste Systems (Madison), Inc. (hereinafter Laidlaw), appeals from an order of the Pollution Control Board, entered November 29, 1990, which reversed the decision of the Village of Roxana Board of Trustees granting pollution control facility siting approval to Laidlaw. The Pollution Control Board (hereinafter Board) found that, because the application of Laidlaw for siting approval had been filed within two years of the disapproval of a previous application which was substantially the same as the present application, the Village of Roxana (Village) had no jurisdiction to consider the application pursuant to section 39.2(m) of the Environmental Protection Act (hereinafter Act) (111. Rev. Stat. 1989, ch. llV-lz, par. 1039.2(m)). That section provides as follows:

“An applicant may not file a request for local siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a) of this Section within the preceding 2 years.” (Ill. Rev. Stat. 1989, ch. IllVz, par. 1039.2(m).)

For reasons which follow, we reverse the decision of the Pollution Control Board and remand this cause to that Board for further proceedings.

The facts are as follows. On August 19, 1987, GSX Corporation of Illinois filed with Madison County an application requesting local siting approval for expansion of its regional pollution control facility. On February 8, 1988, the county denied the application for the reason that the applicant had failed to satisfy several of the criteria contained in subsection (a) of section 39.2. Ill. Rev. Stat. 1987, ch. HV-k, par. 1039.2(a).

Subsequently, the regional pollution control facility in question was taken over by Laidlaw. It was also annexed to the Village of Roxana, giving the Village jurisdiction over any application for local siting approval for expansion of the facility. On January 2, 1990, Laidlaw filed with the Village of Roxana a new application requesting local siting approval for expansion of the regional pollution control facility.

At public hearing on the application, held pursuant to section 39.2(d) of the Act (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039.2(d)), intervenors, the municipalities of Troy, Maryville, Edwardsville and Glen Carbon, through their attorney, made a motion to dismiss the application of Laidlaw for the reason, among others, that it is substantially the same as the previous application filed by GSX Corporation of Illinois, which was disapproved by the county board less than two years before the instant application was filed, all in violation of section 39.2(m) of the Act.

The hearing officer who presided over the hearing denied the motion to dismiss. He stated that the two-year proscription began to run as of the date of filing of the previous application, not as of the date of its disapproval. The instant application was filed more than two years after the filing of the previous application. The hearing officer also stated that the second application was not substantially the same as the previous application as it involved a “different facility.”

On June 14, 1990, the Regional Pollution Control Hearing Committee of the Village of Roxana entered its findings of fact and recommendations. It found that all of the criteria set forth in section 39.2(a) had been satisfied and recommended that the application be approved. The committee made no express finding with respect to the motion to dismiss made by intervenors but found that the application conformed to the requirements of section 39.2 of the Act. On June 18, 1990, the Village of Roxana Board of Trustees adopted the findings of fact of the hearing committee and approved Laidlaw’s request for siting approval for expansion of its regional pollution control facility.

Intervenors petitioned the Illinois Pollution Control Board for hearing to contest the decision of the Village of Roxana Board of Trustees pursuant to section 40.1 of the Act. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1040.1.) Public hearing was held before the Board on October 2, 1990, and on November 29, 1990, the Board rendered its decision reversing the decision of Village of Roxana Board of Trustees. Among the issues raised before the Board were whether fundamental fairness was denied when the hearing officer, rather than the hearing committee, decided the intervenors’ motion to dismiss the application because it was filed within two years of the disapproval of a previous application and whether fundamental error occurred when the hearing committee failed to make a finding on this issue. The Board did not address these issues because it found that, in any event, the Village of Roxana Board of Trustees had no jurisdiction over Laidlaw’s application as it was, in fact, filed in violation of section 39.2(m) of the Act.

Acknowledging that no court had construed section 39.2(m) of the Act, the Board found that, based on the plain language of the statute, the two-year time period begins to run as of the date of disapproval of the previous application, not as of the date of its filing. The Board further found that the application filed by Laidlaw was “substantially similar” to the application previously filed by GSX Corporation of Illinois because both applications sought expansion of the same facility. The Board further found that it made no difference that the two applications were filed before different local governing bodies, i.e., Madison County and the Village of Roxana. The Board concluded that, because Laidlaw’s application was filed within two years of the disapproval of the previous, “substantially similar” application for expansion of the same facility, in violation of section 39.2(m) of the Act, the Village of Roxana Board of Trustees had no jurisdiction to consider the application. Accordingly, the Board reversed the decision of the Village of Roxana Board of Trustees granting siting approval to Laidlaw.

Laidlaw now appeals to this court pursuant to section 41 of the Act. (Ill. Rev. Stat. 1989, ch. 11.1 V2, par. 1041.) Laidlaw contends that the Board erred in three respects: (1) in construing the statute to mean that the two-year prohibition against refiling begins to run as of the disapproval of the previous application rather than its filing; (2) in exceeding its authority by deciding a question of fact (that the two applications were substantially the same) de novo instead of deciding whether the decision of the Village of Roxana Board of Trustees on this issue was against the manifest weight of the evidence; and (3) in finding that the two applications are substantially the same within the meaning of section 39.2(m) of the Act.

With respect to the first issue, we agree with the Board’s interpretation of section 39.2(m) as prohibiting the filing of a new application within two years of the disapproval of a previous application. The meaning of a statute in the first instance is determined by the statutory language, and where the intent of the legislature can be ascertained from the language of a statute, it will be given effect without resorting to other aids of construction. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comrn’n (1987), 165 Ill. App. 3d 235, 240, 520 N.E.2d 46, 50.) Statutory language must be given its plain and ordinary meaning. Laborer’s International Union, Local 1280 v. State Labor Relations Board (1987), 154 Ill. App. 3d 1045, 1058, 507 N.E.2d 1200,1208.

Laidlaw argues that the language of section 39.2(m) is vague. We disagree and find it to be clear. That section provides:

“An applicant may not file a request for local siting approval which is substantially the same as a request which was disapproved *** within the preceding 2 years.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039.2(m).)

The phrase “within the preceding 2 years” can only refer to the disapproval, not the filing, of the previous application. Indeed, section 39.2(m) does not even refer to the filing of the previous application, but only to its disapproval. Thus, the plain language of section 39.2(m) establishes that if an application that is substantially the same has been disapproved within the two years prior to the filing of the second application, the second application is barred.

Laidlaw argues that interpreting the statute to require a two-year delay from the date of an adverse siting decision, instead of counting from the earlier date of the filing of that application, increases the difficulty of obtaining a local siting permit by unduly extending the time required to obtain approval. Laidlaw argues that this frustrates the policy set forth in section 20(b) of the Act to minimize environmental damage by reducing the difficulty of disposal of waste. (Ill; Rev. Stat. 1989, ch. IIIV2, par. 1020(b).) Laidlaw argues that the State cannot reduce the difficulty of waste disposal without locating sites for solid waste disposal. In presenting this argument, Laidlaw ignores the clear and plain language of section 39.2(m) and inappropriately resorts to other aids of construction.

In any event, we are not persuaded by Laidlaw’s argument. While any period of prohibition against refiling applications makes it more difficult to obtain local siting approval and therefore more difficult to dispose of waste, Laidlaw does not challenge the existence of any prohibition period.

The legislature enacted section 39.2(m) to prohibit an applicant from requesting siting approval where substantially the same request had been disapproved within the preceding two years. It is likely that in enacting this section, the legislature intended to limit the frequency with which applications could be filed so that administrative and judicial resources could be efficiently utilized. We think the goal of section 39.2(m) was to prevent the duplicitous and repetitive filings of applications for siting approval to conserve administrative and judicial resources. We find no conflict between the stated policy of the Act and section 39.2(m).

While we are not bound by the agency’s interpretation of statutory provisions, the agency’s interpretation should be given great weight. (Reichhold Chemicals, Inc. v. Pollution Control Board (1990), 204 Ill. App. 3d 674, 679, 561 N.E.2d 1343, 1346.) It will be overturned only if found to be erroneous. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d .353, 361, 522 N.E.2d 1219, 1222.) In the instant case, we find the Board’s interpretation of section 39.2(m) to be appropriate and correct. The two-year period referred to in section 39.2(m) begins to run as of the disapproval of a previous application which was substantially the same as the application under consideration.

Laidlaw’s next argument is that the Board exceeded its authority when it decided that Laidlaw’s application for local siting approval was substantially the same as the previous application filed by GSX Corporation of Illinois. Laidlaw argues that factual determinations, such as whether the two applications are substantially the same, are to be made by the local governing body and that the role of the Board is merely to determine whether the decision of the local governing body is against the manifest weight of the evidence. The Board may not decide factual issues de novo. Laidlaw argues that any factual finding of the Village may not be overturned by the Board unless it is against the manifest weight of the evidence.

Laidlaw is correct with respect to the standard of review to be utilized by the Board in reviewing the decision of the Village of Roxana.

“In administrative law, the determinations and conclusions of the fact finder, in this case the [local governing body], are generally deemed conclusive. The reviewing tribunal is not allowed to determine issues independently, to substitute its own judgment, or to reweigh the evidence. In other words, the reviewing tribunal should not reverse the findings and conclusions initially reached simply because it would have weighed the evidence in a different manner.” (City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 679, 452 N.E.2d 1378,1383.)

Thus, the Pollution Control Board may not make its own findings of fact; it may only review the factual determinations of the local governing body and consider whether those findings are against the manifest weight of the evidence. Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 592, 487 N.E.2d 743, 746.

In the instant case, it is not clear what, if any, factual determination was made by the Village of Roxana with respect to the application of section 39.2(m) of the Act. The hearing officer who presided over the hearing at the local level found both that the present application was not filed within two years of the previous application and that the two applications were not substantially the same. It is not clear whether the Village adopted either or both of these conclusions in approving the application of Laidlaw and thereby impliedly finding that section 39.2(m) did not bar the application. In other words, if the Village agreed with the hearing officer’s erroneous conclusion that the application was filed outside the two-year period, it may also have decided, without consequence, that the two applications were, in fact, substantially the same. On the other hand, the Village may have made a factual determination that the two applications were not substantially the same, even if the second one was filed within the two-year period. It is evident, then, that the Pollution Control Board had no record or finding upon which to base any review of the decision of the Village on this question.

In any event, we find that the Pollution Control Board erred in ruling that the two applications were substantially the same. The Pollution Control Board ruled, as a matter of law, that where two applications for local siting approval seek approval for expansion of the same facility, they are “substantially similar” applications. Thus, the Pollution Control Board found, the second application may not be filed within two years of the disapproval of the first application regardless of any other differences between the two applications. We find this conclusion of the Board to be clearly erroneous and therefore reverse the decision of the Pollution Control Board and remand this cause to the Board for further proceedings not inconsistent with this order.

The opinion and order of the Board, dated November 29, 1990, recites at page six as follows:

“The Board has reviewed the record, and believes that the two applications are indeed ‘substantially similar.’ Both applications seek expansion of the same facility.”

While the opinion also states that it is irrelevant that the two applications were filed before different local governing bodies, it makes no mention of any other factors it considered in determining that the two applications are substantially the same. The opinion does not mention, and seems not to consider, any other differences or similarities between the two applications. We must conclude, therefore, that the Pollution Control Board concluded, as a matter of law, that two applications which seek expansion of the same regional pollution control facility are substantially the same within the meaning of section 39.2(m) regardless of any other differences between them. We find no support for such an interpretation of section 39.2(m).

Section 39.2(m) sets forth no criteria for determining when two applications are substantially the same. It contains no language to lead us to believe that the legislature intended what the Board construed, and we are not prepared to establish such a rule of law. We can envision situations where two applications relating to the same facility may not be similar in any other respect except that they relate to the same facility. We believe that the two applications must be reviewed as a whole, considering the criteria of section 39.2(a), to determine whether there are sufficient significant differences between them that they do not constitute applications which are substantially the same.

Accordingly, we reverse the decision of the Pollution Control Board. We remand this cause to that Board for proper review, in accordance with the applicable law set forth herein, of the decision of the Village of Roxana Board of Trustees. We note that, where the Board determines that fundamental fairness requires supplemental proceedings before the local governing body, it may remand the cause to that body for further proceedings. (City of Rockford v. County of Winnebago (1989), 186 Ill. App. 3d 303, 309, 542 N.E.2d 423, 428.) Thus, the Board may, if it feels it necessary, remand this cause to the Village of Roxana Board of Trustees for supplemental proceedings and entry of its findings and conclusions with regard to this issue.

For the foregoing reasons, the decision of the Pollution Control Board is reversed, and this cause is remanded to that Board for further proceedings not inconsistent with this order.

Reversed and remanded.

GOLDENHERSH, P.J., concurs.

JUSTICE HARRISON,

dissenting:

I agree that the two-year time period specified in section 39.2(m) of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. llV-lz, par. 1039.2(m)) did not begin to run until the previous application was disapproved. I also agree that the Pollution Control Board erred in concluding that Laidlaw’s application is “substantially the same” as that previous application. What I cannot agree with is Justice Welch’s conclusion that this matter should be remanded to the Board for further review. I would reverse outright.

Contrary to Justice Welch’s view, no “manifest weight” questions are posed by this appeal. To determine whether Laidlaw’s present application is “substantially the same” as the previously denied application and thus barred by the two-year period set forth in section 39.2(m) (Ill. Rev. Stat. 1989, ch.lllVa, par. 1039.2(m)), the only facts that need be considered are the contents of the applications themselves. Those applications are in the form of written documents, and their contents are fixed, certain, and uncontroverted. Accordingly, the only real question before us is what legal effect these uncontroverted facts should be given, i.e., whether they should be deemed to fall within the prohibition of the statute.

When facts are undisputed their legal effect becomes a question of law. (Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 721, 473 N.E.2d 92, 94; see also B.F. Gump Co. v. Industrial Comm’n (1952), 411 Ill. 196, 198, 103 N.E.2d 504, 506.) It is well established in this State that a reviewing court is not bound by an administrative agency’s conclusions of law. (Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 286, 488 N.E.2d 639, 641.) Rather, the reviewing court must exercise independent review and judgment on such questions. (Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1046, 547 N.E.2d 499, 506.) As a result, neither the views of the Village of Roxana nor the findings of the Pollution Control Board are or can be dispositive on the question of whether the two applications at issue in this case are “substantially the same.”

In acting as it did, the Pollution Control Board relied exclusively on the fact that the two disputed applications seek expansion of the same regional pollution control facility. As Justice Welch correctly points out, however, this factor is not sufficient, standing alone, to make those applications “substantially the same” within the meaning of section 39.2(m) of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. HV-k, par. 1039.2(m)). Rather, the question of “substantial sameness” is to be gauged according to the criteria set forth in section 39.2(a) of the Act (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039.2(a)).

Even if we assume, for the sake of argument, that proper application of these criteria normally requires specialized scientific or technical knowledge within the agency’s expertise, that still does not furnish a reason for ordering this particular case to be taken up again by the Pollution Control Board. In this case, the substantive criteria are not in question. Determinations have already been made at the administrative level that Laidlaw’s application complied with those criteria, while the previous application did not. These determinations were not challenged and are no longer subject to change. In my view, this now immutable difference is sufficient in itself to prevent the applications from ever being regarded as “substantially the same.” Given this, I fail to see what possible purpose would be served by allowing further administrative proceedings on remand.

For the foregoing reasons, I would reverse outright the Board’s order finding that the Village had no jurisdiction to consider the application, and I would affirm the Village’s decision granting Laidlaw’s application. Accordingly, I dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re ESTATE OF LOUIS M. MILLER, Deceased (Bank of Alton, Petitioner-Appellee and Cross-Appellant, v. Mary Louise Miller Maley et al., Trustees of the Louis M. Miller Marital Trust, Respondents-Appellants and Cross-Appellees).
    Fifth District
    No. 5—91—0163
    Opinion filed June 22,1992.

      Gerald J. McGivern, of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellants.
    John Dale Stobbs, James S. Sinclair, and John D. Stobbs II, all of Stobbs & Sinclair, of Alton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Respondents, Mary Louise Miller Maley and Paul Maley, as testamentary trustees of the Louis M. Miller Marital Trust, appeal from a judgment of the circuit court of Madison County construing the will of Adele M. Miller, deceased. The central issue before the circuit court was whether a tax-exoneration clause in Adele’s will should be interpreted as directing her executor to pay from her estate excess estate taxes due at her death because of a qualified terminable interest property (Q/TIP) trust created under the will of her deceased husband. Based on extrinsic evidence admitted over respondents’ objection, the circuit court concluded that Adele had not intended to direct such payment. Respondents now appeal, contending that the circuit court erred in admitting extrinsic evidence because Adele’s will was unambiguous. We reverse and remand with directions that the petition to construe be dismissed.

The record in this case is voluminous, but the facts necessary to our disposition are straightforward. Louis and Adele Miller were husband and wife. In his will, Louis created a residuary trust known as the Louis M. Miller Marital Trust, the net income of which was to be paid to Adele during her life. Upon Adele’s death, the principal from this marital trust was to be paid into a separate family trust. Designated as trustees of these trusts were Mary Louise Miller Maley, Louis’ daughter, and Mary’s husband, Paul A. Maley.

The terms of the marital trust were subsequently refined by a codicil to the will to ensure that the trust assets could qualify as “qualified terminable interest property” (Q/TIP property) and be eligible for the marital deduction in Louis’ estate under section 2056 of the Internal Revenue Code (26 U.S.C.A. §2056 (West 1989)). For Q/TIP property to qualify for the estate tax marital deduction under that provision, an election must be made by the executor of the estate of the spouse who created the trust. Where such an election is made, the value of the property qualifying for the marital deduction in that spouse’s estate is includable in the surviving spouse’s estate at his or her death. 26 U.S.C.A. §2044 (West 1989).

The inclusion of the value of this property in the surviving spouse’s estate will increase that spouse’s estate tax liability. The tax code provides that the surviving spouse’s estate is entitled to recover this additional tax from the persons who receive the Q/TIP property on the spouse’s death. The recoverable amount is defined as the excess of the estate tax paid over the estate tax which would have been payable if the value of the qualified terminable interest property had not been included in the surviving spouse’s gross estate. (26 U.S.C.A. §2207A(a) (West 1989).) This provision for recovering the estate tax does not apply, however, if the surviving spouse “otherwise directs by will.” 26 U.S.C.A. §2207A(a)(2) (West 1989).

Upon Louis Miller’s death, his estate made the necessary election to qualify the value of the assets of the marital trust as Q/TIP property so that the marital deduction could be taken, and Adele, his surviving spouse, began receiving income from the trust. Adele subsequently executed a will which revoked a prior will she had made during the marriage. A tax-exoneration clause was included in the first paragraph of the new will which stated:

“Unless my Trustee of my Living Trust dated June 11, 1985 should elect to do so, I direct my Personal Representative hereinafter named to pay all of my legal debts, including the expenses of my last illness and funeral, and without reimbursement or contribution, all estate taxes, inheritance taxes, death taxes and succession duties assessed by reason of my death by the United States of America, any state thereof, or any foreign government.”

Two separate codicils were subsequently executed by Adele, but neither of them altered this provision.

Upon Adele’s death, the value of the assets of the Louis M. Miller Marital Trust were includable in her gross estate for estate tax purposes under the Internal Revenue Code provisions discussed above. Petitioner, the Bank of Alton, as personal representative of Adele’s estate, determined that the excess Federal estate tax due as a result of this inclusion amounted to more than $400,000. Petitioner demanded that this additional tax liability be paid by respondents, the testamentary trustees of the Louis Miller Marital Trust.

When the trustees refused to make such a payment, petitioner initiated these proceedings to construe the tax-exoneration provision of Adele’s will quoted above. In its petition, as amended, petitioner contended that the tax-exoneration provision did not constitute an “otherwise” direction within the meaning of section 2207A(a)(2) of the Internal Revenue Code (26 U.S.C.A. §2207A(a)(2) (West 1989)), that Adele did not, in fact, intend “to pay the federal estate tax or Illinois inheritance tax attributable to the inclusion of the marital portion in her estate for such tax purposes,” and that such taxes should, instead, be paid by the trustees of the Louis M. Miller Marital Trust.

After hearing extensive extrinsic evidence, which was adduced over respondents' repeated objections, the circuit court concluded that under Adele’s will, her estate was required to “suffer the duty of paying all necessary Federal Estate Tax, or any other taxes that may be incurred at the time of her death” and that “it is clear that her Personal Representative will have the responsibility to pay any and all Federal estate Taxes that may have arisen from her interest in the Q-tip [sic] Trust of Louis M. Miller.” The court further found, however, that it was not Adele’s intent that her full estate be available to pay the Federal estate tax and other taxes attributable to inclusion of the value of the Q/TIP property. In the court’s view, Adele had intended to “preserve her original estate plus any accumulations or increase in value,” and that the taxes attributable to inclusion of the Q/TIP property could only be paid from the balance of the assets in her estate after the value of her original estate, with accumulations or increases in value, was set aside. According to the court, the value of this excludable portion of the estate was $218,482.78. In the court’s words, this was “the specific value of the sole property of the Estate of Adele M. Miller and is free of any requirement of contribution for payment of Federal Estate Tax or other tax that may have arisen from the Testamentary Trust of Louis M. Miller, deceased.”

From this language, one would conclude that after the $218,482.78 is set aside, all of the remaining assets in Adele’s estate would be available to pay the Federal estate tax or other tax attributable to inclusion of the Q/TIP property from the Louis M. Miller Marital Trust. The court went on to suggest, however, that not even that portion of Adele’s estate had to bear the ultimate burden of the additional tax. In an order dated September 5, 1990, which was incorporated into the court’s final judgment, the court stated that upon payment from the balance of the assets in Adele’s estate of “any and all Federal estate taxes that may have arisen from her interest in the Q-tip [sic] Trust of Louis M. Miller ***, the Executor may then seek appropriate reimbursement from the Trustees of the Louis M. Miller Trust pursuant to law.” Thus, despite all of its previous analysis, the court’s ultimate conclusion appears to have been that Adele’s estate did not have to pay any of the taxes attributable to inclusion in her estate of the Q/TIP property.

On this appeal, the parties themselves do not interpret the circuit court’s judgment as intending to reach this result. They construe it as holding simply that Adele’s separate estate has no liability for the taxes in question. Even if we were to accept the parties’ less expansive view of the court’s judgment, however, that judgment could not stand.

In this case the circuit court based its judgment on its understanding of what Adele’s intent must have been. It is true that in construing a will, a court’s primary objective is to give effect to the testator’s intent, provided the intent is not against public policy. (Harris Trust & Savings Bank v. MacLean (1989), 186 Ill. App. 3d 882, 885, 542 N.E.2d 943, 945.) It is also true, however, that the court must ascertain this intention from the terms of the will itself. (Larison v. Record (1987), 117 Ill. 2d 444, 448, 512 N.E.2d 1251, 1253.) In this case the circuit court plainly did not limit itself to the terms of Adele’s will. Instead, it relied extensively on documents, testimony and other extrinsic evidence accumulated in multiple hearings over the course of more than a year. This it should not have done. A court may allow extrinsic evidence only to resolve ambiguity in the will. (Harris Trust & Savings Bank, 186 Ill. App. 3d at 886, 542 N.E.2d at 945.) Adele’s will contains no ambiguity.

• 4 The tax-exoneration clause in that will plainly states that Adele’s “Personal Representative” is to pay from her estate “and without reimbursement or contribution, all estate taxes, inheritance taxes, death taxes and succession duties assessed by reason of [her] death by the United States of America, any state thereof, or any foreign government.” The estate and inheritance taxes attributable to the inclusion in her estate of the value of the Q/TIP property came due when she died. Because her death was the triggering event, the taxes were unquestionably “assessed by reason of [Adele’s] death” within the meaning of the will. No other construction is possible without ignoring the plain and ordinary meaning of the will’s language.

The circuit court attempted to avoid this conclusion and to justify the use of extrinsic evidence on the grounds that Adele’s will was latently ambiguous. Where a latent ambiguity exists, evidence extrinsic to the will is admissible to determine the intent of the testator. (In re Estate of Smith (1990), 198 Ill. App. 3d 400, 402, 555 N.E.2d 1111, 1113.) This rule has been applied where legacies are in clear and unambiguous terms but the testator did not own the property described in the bequest, or where there is an incorrect description of a bequest or of a legatee or the description fits more than one object or person. (In re Estate of Laas (1985), 134 Ill. App. 3d 504, 510, 480 N.E.2d 1183, 1187-88.) None of these circumstances was alleged or established here.

The record did show that if the tax-exoneration clause in Adele’s will were given its plain and ordinary meaning and the disputed taxes had to be paid out of her estate, the estate would be exhausted. Nothing would be left with which to fulfill various specific bequests which the will sets out. The circuit court may have believed that this was an unfair result, but it should not have allowed that belief to alter its conclusion. A court may not distribute a testator’s estate according to its own sense of equity and justice. (In re Estate of Kirchwehm (1991), 211 Ill. App. 3d 1015, 1020, 570 N.E.2d 851, 855.) What matters is the testator’s intent as expressed in the will (211 Ill. App. 3d at 1018, 570 N.E.2d at 854), and what Adele’s will says here is that her estate is to pay the tax.

Adele executed her last will after Louis Miller’s death. She knew of the marital trust created by his will and the tax provisions related to it, yet she still included this tax-exoneration provision in her own will. At the time, she may well have believed that her estate would end up being large enough that she would be able to satisfy both the additional tax obligations and the specific bequests she made. This turned out not to be the case. Just because a testator’s testamentary plan does not work out how she may have envisioned, however, does not mean that the plan itself was not intended. To hold otherwise would mean that every will would be subject to judicial redrafting whenever a change in circumstances made compliance with the terms of the will impossible.

As an alternative basis for supporting the circuit court’s judgment, petitioner argues that the tax-exoneration provision in Adele’s will is insufficient as a matter of law to constitute a valid “otherwise” direction to her personal representative to pay from her estate the additional taxes attributable to the Q/TIP property. It is insufficient, according to petitioner, because it did not specifically mention section 2207A(a)(2) of the Internal Revenue Code (26 U.S.C.A. §2207A(a)(2) (West 1989)). The only support petitioner can advance for this position is an example given by the Internal Revenue Service to illustrate application of a proposed amendment to IRS regulations relating to the estate tax marital deduction. That amendment was designated as Proposed Regulation §20.2207A — 1, 49 Federal Register 21350 — 03 (May 21, 1984). Although the amendment was first published for notice and comment in 1984, we have not found and petitioner has not cited any authority which indicates that it was ever actually enacted. We therefore fail to see how it can be given any kind of authoritative effect now.

Even if this amended regulation had been adopted by the IRS, it would be of no aid to petitioner. The example given in the regulation to illustrate the application of section 2207A of the Internal Revenue Code (26 U.S.C.A. §2207A (West 1989)) indicates that where a deceased husband’s will created a Q/TIP trust with the income payable to the wife for life and the wife’s will contains “no provision regarding section 2207A(a),” a wife’s estate can recover the estate tax attributable to inclusion of the trust assets in her estate from the trust itself or, if the trust assets have been distributed, from the persons to whom the distribution was made. We see nothing in this illustration, however, which purports to require direct reference to section 2207A of the Internal Revenue Code (26 U.S.C.A. §2207A (West 1989)) before an “otherwise” direction clause in a tax-exoneration provision will be effective.

Even if the regulation could be construed to include such a requirement, it would not be binding. An agency’s interpretation of a statute cannot supersede the language of the statute itself. (Bukala v. United States (7th Cir. 1988), 854 F.2d 201, 203.) Section 2207A of the Internal Revenue Code (26 U.S.C.A. §2207A (West 1989)) nowhere requires a specific reference to that statute before an “otherwise” direction clause will be given effect. By contrast, section 2207B of the Internal Revenue Code (26 U.S.C.A. §2207B (West 1989)), a parallel provision relating to the right to recover taxes where a decedent has retained a life estate, does expressly require an “otherwise” direction to specifically refer to the statute. (See 26 U.S.C.A. §2207B(a)(2) (West 1989).) Had Congress intended to impose the same requirement under §2207A (26 U.S.C.A. §2207A (West 1989)), it could easily have so provided. We must presume that its failure to do so was deliberate. Accordingly, we cannot accept petitioner’s argument without rewriting an act of Congress. This we have no power to do.

In sum, the “otherwise” direction clause of the tax-exoneration clause in Adele’s will was valid. Its terms were clear and unambiguous. Adele’s estate is required to pay the taxes attributable to inclusion in her estate of the value of the Q/TIP property. No part of Adele’s estate is free from this tax burden, and the estate has no right to obtain reimbursement for the taxes from the marital trust or the parties to whom the assets of the trust may pass. Because the will is unambiguous, the circuit court erred in admitting the extrinsic evidence (Larison v. Record (1987), 117 Ill. 2d 444, 448, 512 N.E.2d 1251, 1253). Moreover, because a court has no authority to construe a will which is neither ambiguous nor uncertain (Jusko v. Grigas (1962), 26 Ill. 2d 92, 96, 186 N.E.2d 34, 37), petitioner’s action for construction of Adele’s will should have been dismissed. (In re Estate of Smith (1990), 198 Ill. App. 3d 400, 402, 555 N.E.2d 1111, 1113; In re Estate of Laas (1985), 134 Ill. App. 3d 504, 509, 480 N.E.2d 1183, 1187.) Accordingly, the judgment of the circuit court of Madison County is reversed, and this cause is remanded with directions to dismiss petitioner’s petition to construe.

Reversed and remanded with directions.

RARICK and H. LEWIS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEXANDER MICHAEL TRAINA, Defendant-Appellant.
    Fifth District
    No. 5—90—0390
    Opinion filed June 22,1992.
    Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Alexander Michael Traína, was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)) and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(1)) after a stipulated bench trial. Defendant was sentenced to concurrent 15-year terms of imprisonment for the armed robbery counts and to concurrent terms of 25 years’ imprisonment for the aggravated criminal sexual assault counts. Defendant appeals his conviction arguing (1) that he was denied a fair hearing on his motion to suppress statements where the trial court did not remember significant evidence presented in support of the motion, and (2) that his sentence is excessive where the trial court considered improper aggravating factors and gave insufficient weight to defendant’s rehabilitative potential. For the reasons that follow, we affirm the decision of the trial court.

Defendant filed a motion to suppress which alleged, inter alia, that his confession to police was not knowing, intelligent and voluntary due to their psychological coercion and failure to honor his request for counsel. At the hearing on the motion, Officer William Krause, Sergeant Michael Chosich, Captain Gerald Pinkerton and Police Chief Don Knight, all of the Granite City police department, testified on behalf of the State.

Officer Krause testified that he and Captain Pinkerton had transported defendant from Markham City, Illinois, near Chicago, to Granite City for trial. Shortly after they began the trip to Granite City, defendant “just started talking” about the offenses. Neither officer had asked defendant any prior questions, and when defendant began to talk, Krause immediately read defendant the Miranda warnings. Krause stated that defendant acknowledged understanding these rights and told them that while he did not mind talking about the incident, he would not furnish a written statement.

Krause testified that defendant admitted committing the offenses and talked freely to the officers for most of the trip, which lasted about five hours. Defendant never requested counsel, and Krause denied that either he or Pinkerton had made promises or had threatened or coerced defendant in any way. Krause testified that Pinkerton furnished defendant with cigarettes during the trip and that at one point they stopped to eat and gave defendant a hamburger. The officers stopped later for gas and cigarettes for Pinkerton and defendant, but Krause and Pinkerton denied that the four packs of cigarettes given to defendant at that time were in return for defendant’s statement. Krause stated that upon reaching the Granite City area, Pinkerton asked defendant to show them where the robbery had occurred and where he had thrown the wallet taken in the robbery. Defendant showed them these locations and the officers then took defendant to the Madison County sheriff’s department.

Captain Pinkerton testified in substantial accord with Officer Krause. In Markham City, the Illinois Department of Criminal Investigation (DCI) agents who had arrested defendant informed Pinkerton that defendant was nervous and that he liked cigarettes. Defendant was security-belted and handcuffed in the back seat during the ride to Granite City. After “just a couple of blocks,” defendant started talking about the armed robbery. Pinkerton cautioned Krause to read defendant his Miranda rights, and defendant said that he had “heard them before.” Pinkerton testified that he was a “chain-smoker” and had given defendant a cigarette every time he himself lit one, but that defendant had started talking prior to being given cigarettes. Pinkerton told defendant when they were approximately half way to Granite City that one of his victims was the police chiefs wife.

Sergeant Chosich and Chief Knight, who was then a sergeant, testified that they had interviewed defendant soon after he arrived at the Madison County jail on May 27, 1987. Knight furnished defendant with a constitutional-rights-and-wamings form, which defendant read, initialed and signed. Chosich stated that defendant had agreed to give a written statement and never requested counsel. Both Chosich and Knight testified that defendant was never threatened or abused in any way.

Chief Knight further testified that either Pinkerton or Krause had told him that defendant smoked, and Knight shared his cigarettes with defendant during the hour-long interview. When recalled by the State, Knight testified that he had no independent recollection of whether defendant had said, “Maybe I need a lawyer.”

Defendant testified that he had been arrested on May 26, 1987, as he left his motel room in the Chicago area. Three or four detectives had pulled up in a car, pointed guns at him, and thrown him on the ground. Defendant stated that the detectives “[sjtuck pistols in my head and told me not to breathe because they were going to blow my brains out if I breathed.” Defendant stated that he was “tossed in the car,” told he was under arrest, handcuffed and taken to DCI headquarters in Hazel Crest. Defendant testified that he was “never arrested so violently,” and that this arrest had been “totally different from anything that’s ever happened.”

Concerning his interview with DCI officers, defendant testified as follows:

“They told me that the Chief of Police’s wife in Granite City was an alleged victim in this case that they were looking for and Granite City had a bad reputation for abusing witnesses and that they had heard about the reputation down there already. And they, you know, they said you better, it’s kind of rugged because it is the Chief of Police’s wife. So it is a heavy-duty thing.
* * *
He said they had a reputation for manhandling people, you know, working people over in Granite City. He said they had heard about it down there, in Hazel Crest. They heard about some of the things that happened to some of the accused in Granite City. And that, you know, he said if you cooperate with them, they would look at it differently because — that you should worry because there’s the Chief of Police’s wife up there and they are really pepped up about it. It’s a big deal to them.”

Defendant stated that he was “rattled” and “really intimidated, almost to the state of shock.” Defendant further described himself as “really shaken” and “scared by everything that happened.” Defendant had requested cigarettes during the DCI interview and was brought two packs of his brand and a cup of coffee. From DCI headquarters, defendant was transported to the Markham City jail. Following a court appearance, Granite City police picked defendant up at 10:30 a.m. the next morning and shackled his hands and feet.

Defendant testified that at some point one of the Granite City officers read him his rights. Defendant stated that he might have rambled during the trip to Granite City, explaining: “I was scared. I talked — if I get real, real nervous, I talk. I’ll ramble just to keep talking, almost trying to make them calmer. If I’m keeping conversation going with them, they’re not going to get hostile.” Defendant stated that he did not request counsel from the transporting officers because he “was trying to placate them.”

Defendant testified that at the Madison County jail, almost immediately after Knight entered the interview room, defendant told him, “You know, I think I should talk to a lawyer.” Defendant stated that Knight and Chosich did not honor his request but “kept ignoring” the statement.

In ruling on the motion, the trial court, responding to defense counsel’s argument that DCI agents had told defendant that the Granite City police had a bad reputation and that here one of the victims was the wife of their police chief, stated: “I don’t remember Mr. Traína ever saying anything about being told anything about this involving the Chief of Police’s wife in his testimony. I don’t remember him saying that. I will refresh myself from the record if he did.” The court then rejected the argument that the offers of cigarettes to defendant constituted coercion and found that there were no overt acts by the Granite City police that would have corroborated defendant’s claims of psychological coercion based upon the DCI agents’ actions and statements. The court added that it did not believe “such statements were made” and ultimately denied defendant’s motion to suppress.

At the stipulated bench trial, the State outlined the following evidence: Debbie May would testify that on August 22, 1986, she was working at P.H. Hair Productions in Granite City, cutting the hair of Mrs. Joyce Harris, when defendant entered the shop, robbed her and Mrs. Harris at gunpoint, bound them both and took her into a back room where he placed his penis in contact with her anus and made her perform fellatio upon him until he ejaculated, some of which went on the floor. Don Knight would testify that he received a report from DCI in Chicago that a man by the name of Alexander Traína was wanted in several jurisdictions for similar offenses. Knight was sent a picture of defendant, which was placed in a photographic lineup on May 26, 1987, and defendant was positively identified by Mrs. Harris and Ms. May as the person that committed the offenses against them.

The State would further introduce the testimony of Dennis Aubuschon from the Fairview Heights Crime Lab, who would testify that the seminal material found at the scene could have originated from defendant. Tina Lambert, an employee of the Ho-Hum Motel in Collinsville, would produce records of the motel’s registration showing that defendant had stayed there on August 18 and September 8, 1986.

The State would also offer testimony concerning defendant’s oral confession to Officers Krause and Pinkerton, as well as testimony concerning the interview conducted by Officers Knight and Chosich in which defendant signed a written statement giving, in greater detail, his admission to the offenses. Defendant stipulated to all the evidence outlined by the State, subject to the condition that the oral and written confession evidence be considered by the trial court over defendant’s objection.

The court stated that it would consider the stipulated evidence in its entirety and overruled defendant’s objection to the confession evidence based upon its “prior ruling that the confession and admissions made by the Defendant are admissible and were not improperly obtained.” The court then found defendant guilty on all counts.

Defendant argues that he was denied a fair hearing on his motion to suppress because the trial court did not remember, and thus did not consider, significant evidence presented in support of the motion. In ruling on defendant’s motion, the court stated that it did not remember defendant "ever saying anything about being told anything about this involving the Chief of Police’s wife in his testimony.” The crux of defendant’s motion to suppress statements was that he had been psychologically coerced into giving the statements because DCI officers in Markham City had told him that a victim in the offenses was the wife of the police chief of Granite City and that the Granite City police, who had a reputation for “manhandling” defendants, were very “pepped up” over the case and defendant should therefore cooperate.

In People v. Bowie (1976), 36 Ill. App. 3d 177, 180, 343 N.E.2d 713, 715, the reviewing court held that where the record affirmatively indicated the trial court, in a bench trial, did not remember or consider the crux of the defense when entering judgment, the defendant did not receive a fair trial. If here, as in Bowie, the trial court, sitting as a trier of fact, did not consider all the matters in the record before rendering its decision, it was error. However, it does not necessarily follow that the result reached in Bowie, reversal and remand for a new trial, is the appropriate remedy in the instant case. Here, even if the trial court erred in not suppressing defendant’s statements because the court failed to consider all of the relevant testimony in ruling on the motion, reversal is not automatic.

Under Arizona v. Fulminante (1991), 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246, the improper admission of involuntary statements can be harmless error. Where an involuntary statement was admitted at trial, a reviewing court may affirm the conviction if the admission of the statement is determined to be harmless error beyond a reasonable doubt. (Fulminante, 499 U.S. at 310-12, 113 L. Ed. 2d at 331-33, 111 S. Ct. at 1265-66; People v. Toran (1991), 219 Ill. App. 3d 991, 995, 580 N.E.2d 595, 598.) The determination of harmless error must be analyzed considering the particular facts of each case and considering the record as a whole. Error is harmless where a reviewing court can safely conclude that a trial, without the error, would produce no different result. People v. Carlson (1992), 224 Ill. App. 3d 1034, 1041, 586 N.E.2d 1368, 1373; People v. Myles (1985), 131 Ill. App. 3d 1034, 1044, 476 N.E.2d 1333, 1340.

In the case at bar, defendant stipulated that one of the victims, Debbie May, would testify that he had robbed her and the other victim at gunpoint, bound them both, placed his penis in contact with her anus and made her perform fellatio upon him. Defendant additionally stipulated that both victims had identified his picture in a photographic lineup, that laboratory tests showed seminal material found at the scene could have come from defendant and that motel records showed that he had stayed in the area shortly before and after the offenses occurred. We therefore find that even if defendant’s statements were improperly admitted, due to the overwhelming amount of

other inculpatory evidence presented at the stipulated bench trial, their admission did not affect the outcome of the case and constituted harmless error. See Carlson, 224 Ill. App. 3d at 1041, 586 N.E.2d at 1373-74.

The defendant next argues that his sentence is excessive because the trial court “placed undue weight upon aggravating factors based on its speculation over defendant’s psychological motives for the crimes” and gave insufficient weight to defendant’s rehabilitative potential based upon his lack of any significant prior criminal history. However, the sentence imposed by the trial court will be upheld on review absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153-54, 368 N.E.2d 882, 883; People v. Palmer (1989), 188 Ill. App. 3d 414, 429, 545 N.E.2d 743, 755.) The trial court’s judgment is given great weight and deference because it is in the best position to make a reasoned judgment as to a sentence which balances the need to protect society and to rehabilitate the offender. A reviewing court will not substitute its judgment for that of the trial court merely because it might have balanced the sentencing factors differently. (People v. Rogers (1986), 141 Ill. App. 3d 374, 382, 490 N.E.2d 133, 139.) Furthermore, a trial court may properly consider nonstatutory aggravating factors (People v. Floyd, (1987), 160 Ill. App. 3d 80, 88, 512 N.E.2d 1378, 1384) and may look not only at the facts of the crime but may search anywhere within reasonable grounds for other facts which would tend to aggravate or mitigate the offense, without being strictly bound by rules of evidence which apply to findings of guilt. People v. Heredia (1989), 193 Ill. App. 3d 1073, 1082-83, 550 N.E.2d 1023,1029.

The presentence investigation report considered by the trial court in sentencing revealed that defendant, age 45, had a 1967 conviction for disorderly conduct and a 1972 conviction for deceptive practices. The report also indicated that defendant had worked as a hair dresser for most of his life, had been divorced three times and had been treated for manic depression at a State hospital in 1978. In sentencing defendant, the trial court stated, inter alia, as follows:

“We basically here have two offenses. We have an Armed Robbery which this Defendant, armed with a weapon, goes not to a liquor store, to a bank, anywhere else. Goes to a hairdresser’s beauty shop. *** It’s certainly not where males would be where people would be able to defend themselves. It seems like this Defendant sought out a place where, because of the presence of females, *** [he would] not meet the type of resistance which he obviously didn’t want to meet. Having done that, when he committed the Armed Robbery, he protects himself further and humiliates the victims by binding them to, I assume, aid in his escape. I think an aggravating situation. The man is armed to begin with. And goes through these additional steps.
And then after that [armed robbery] is over, he proceeds to his other criminal activity, which being not one but two sexual assaults on one of these victims.
And the Court takes that series of events and the way they were committed in this particular case as being aggravating. As being calculated to satisfy, for whatever reason, his feelings outright at that point against women. I think that’s why he chose his victims and why he did what he did. I think that’s what is exceptionally aggravating about this particular incident.
Whatever the reason for that, certainly legal excuses have not been presented and I don’t think the Court has sufficient basis to give much basis to *** [defendant’s history of mental illness] as a mitigating factor as to whether he was under that condition when this happened. Although I think probably someone with his background led to this particular victim and his particular acts in this case.
The victim has received, not only has her privacy been invaded, physically assaulted, but certainly has mental scars from this as does the victim who went through the armed robbery. Anyone who has a gun pointed at them and is bound certainly would have those scars.”

Defendant contends that the court’s “speculations” about defendant’s motives for the crimes were neither reasonable nor proper inferences from the record and thus constituted improper aggravating factors. We do not agree. Defendant’s written statement, which was admitted at trial, reads in part: “I was in the Granite City area looking around for a place to rob. I had been looking around for about two hours. Before I decided to hit P & H Hair, I had picked another place right down the street. I decided P & H looked safer or better.” Based upon this statement, we believe it was reasonable for the court to infer that defendant was motivated to rob P & H Hair because he believed that the two women at the business would not offer resistance.

Additionally, impressions about the individual being sentenced are proper factors for the court to consider in determining the appropriate sentence, as are all matters reflecting upon the defendant’s personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding. (See People v. Ward (1986) , 113 Ill. 2d 516, 527-29, 499 N.E.2d 422, 426-27, cert. denied (1987) , 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314; see also Heredia, 193 Ill. App. 3d at 1083, 550 N.E.2d at 1029 (other factors from which an appropriate sentence may be deduced include abnormal or subnormal tendencies, natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and something of his life, family, occupation, and criminal record).) Therefore, in the case at bar, we cannot say that the trial court’s impressions of defendant and the stimuli which motivated him to commit the offenses were improper or unsupported by the record.

Defendant did not receive extended or consecutive terms or even the maximum statutory sentence for a Class X felony of 30 years, but he received concurrent terms of 15 years’ imprisonment for each armed robbery and concurrent terms of 25 years’ imprisonment for the two counts of aggravated criminal sexual assault. The seriousness of a crime is an important factor to be considered (Heredia, 193 Ill. App. 3d at 1083, 550 N.E.2d at 1029), and a defendant’s potential for rehabilitation is entitled to no greater weight than the seriousness of the offense. (People v. Parker (1989), 192 Ill. App. 3d 779, 789, 549 N.E.2d 626, 633.) Further, where, as here, an offense has been exacerbated by needless additional intrusions on the physical integrity of the victims, a sentence beyond the minimum, even in the absence of a prior felony record, is not erroneous. (People v. Piontkowski (1979), 77 Ill. App. 3d 994, 997, 397 N.E.2d 36, 38.) Thus, where the sentence the trial court imposed was within the statutory limits, we cannot say that the court abused its discretion.

Accordingly, for all of the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    ENERGY ERECTORS, LTD., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Mary Lee DeLong, Widow of John R. DeLong, Appellant).
    Fifth District (Industrial Commission Division)
    No. 5—91—0259WC
    Opinion filed June 22,1992.
    John E. Rhine, of Fowler, Rhine & Ernest, of Mt. Carmel, and Alan M. Hux, of Indianapolis, Indiana, for appellant.
    Edward M. Vokoun, of Evans & Dixon, of St. Louis, Missouri, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Following the death of John R. DeLong, the petitioner, Mary Lee DeLong, brought a claim for workers’ compensation. The arbitrator rendered a decision in favor of the respondent, ruling that Illinois had no jurisdiction over the claim. The Industrial Commission (Commission) reversed the arbitrator’s decision, finding that it had jurisdiction to hear the claim. The circuit court reversed the Commission’s decision. The petitioner appeals. We affirm.

The sole issue to be decided is whether the contract of employment occurred in Illinois, thereby allowing the petitioner’s claim to fall within the coverage of the Illinois Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). It is undisputed that John worked for the respondent, Energy Erectors, at the time of his death. However, the facts regarding where the employment contract was entered into are in dispute.

The record shows that John had been a lifelong resident of Illinois. He and LeRoy Olson, the respondent’s project supervisor, became friends while both were working on a coal mine construction site in Carmi, Illinois, although each worked for different companies. Olson testified that while working in Carmi, he told John, “if I got another job he could come to work for me.”

Thereafter, Olson went to work as project superintendent for the construction of an underground mine in Mavisdale, Virginia. Olson, as project superintendent, made the decisions whether to hire an applicant at the jobsite. When asked what an applicant would do when he arrived at the jobsite, Olson answered:

“[Y]ou got to make out your withholding statement, and we had a safety book they had to read — they had to sign a page in that safety book that they understood our safety laws. And we also had some laws on the job. You couldn’t drink on the job, lunch hours and so on. And they had to sign that.
They were also taken on a tour of the job site.”

He also testified that if an applicant came in and filled out an application but did not do one of these procedures, he would not be hired. With respect to the DeLongs and their telephone conversations, Olson testified:

“Mary would call my wife, you know, maybe once a week or whatever and ask if I could use Bob yet, and I would say, as soon as I can use Bob I’ll call you. So one day I told the wife to call Mary and tell Bob to come out and go to work.”

With respect to the telephone call to John to come to Virginia to go to work, Olson did not believe and could not recall whether he actually talked on the phone but he believed that his wife talked to Mrs. DeLong. He did testify, “I told my wife to tell Bob I can use him, ‘come out and go to work.’ May be that isn’t exact words. But as far as I can remember anyway.” In response to a question as to what John had to do to come out and get a job, Olson answered, “Just come out to the job and sign up.” He also testified that John would have to come out to Virginia if he wanted the job and that if he did not come to Virginia he would not get the job. He further testified that when John came to Virginia, he signed the tax forms, signed the safety book, and was processed in the same way as anyone else who wanted to come and work for Energy Erectors at the job in Virginia. In answer to the question whether there was any difference between the way John was hired as compared to anyone else hired at the job in Virginia, Olson answered “No.” He also testified that he could have rejected John if, for example, he showed up and had been injured and could not work. Olson testified that until John actually got out to Virginia and filled out the papers, he would not be hired as an employee.

Mrs. DeLong testified concerning a telephone conversation in which the Olsons initiated the call from Virginia to Carmi, Illinois. Mrs. Olson testified that Mr. Olson talked on the phone and said something to the effect, “He said something to the effect in his words, you know, I have a job for your old man, is he there, can I talk to him.” After this conversation, the DeLongs packed some of their belongings, left some of their belongings at his parents’ house, and went to the State of Virginia.

Gerald Swartout, general manager of Energy Erectors, testified. He was asked whether he was familiar with the manner and mode in which employees are hired by the company for the project and he answered yes. He also indicated that he participated from time to time in the hiring or firing of employees. When asked where was the decision made whether to hire a given applicant for the job, he testified, “At the job site.” Swartout also testified that the employee had to fill out payroll forms before going to work, specifically, the W-4, and that he had to go through the safety guidebook and read the rules and regulations and sign the back sheet which was torn out of the safety guidebook. He testified that after these forms are completed the person goes to work and his pay starts at the time he fills out the forms, if he is actually hired. With respect to the company’s policy that persons who want to work have to report to the jobsite, Swartout stated: “That is just a normal policy for hourly employees.” The benefit to the company in seeing the employee at the jobsite prior to being hired was: “Basically, one of the things we want to make sure the individual is capable, that there was [sic] no physical handicaps.” He stated that the job procedures as set forth in his superintendent’s field manual were not followed 100% of the time because some employees that were hired did not have to fill out a job application because they had worked for the company previously. They did indicate it was common practice to call and offer a person a job over the phone in many States, but they were not hired until they came to the jobsite. He gave an example that they would not be hired if they came to the job-site intoxicated.

From the foregoing, the arbitrator found that the last act necessary to form an employment contract occurred in Virginia rather than in Illinois. As such, he found that Illinois did not have jurisdiction over the claim. The Commission, with one dissenting commissioner, reversed the arbitrator’s decision. It found that the employment contract was formed in Illinois and, as such, the petitioner’s claim was covered by the Act. The circuit court reversed the Commission, finding as a matter of law that Illinois did not have jurisdiction over the claim.

On appeal, the petitioner argues that the circuit court erred in finding as a matter of law that the employment contract was not entered into in Illinois.

The question of where a contract of hire was made is a question of fact reserved for the trier of fact. (F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 514 N.E.2d 1147.) Only if the undisputed facts permit but a single inference can the question be characterized as one of law. Corrugated Metals, Inc. v. Industrial Comm’n (1989), 184 Ill. App. 3d 549, 540 N.E.2d 479.

Regarding the jurisdiction question, we note that the Act was designed to have extraterritorial effect. Covered employees include every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside the State of Illinois as long as the contract of hire was made within the State of Illinois. (F& E Erection Co., 162 Ill. App. 3d 156, 514 N.E.2d 1147.) The place where the last act necessary to give validity to the contract occurs is the place where the contract was made. Whether the contract of hire was made within Illinois is a question of fact for the Commission, and its decision will not be disturbed unless it is against the manifest weight of the evidence. Youngstown Sheet & Tube Co. v. Industrial Comm’n (1980), 79 Ill. 2d 425, 404 N.E.2d 253.

The facts submitted to the Commission show that the contract was formed in Virginia and not in the State of Illinois. As stated in F & E Erection Co., the Act does cover persons whose employment is outside the State of Illinois as long as the contract of hire was made within the State of Illinois.

The evidence shows that the notice of acceptance of the contract by the employee consisted of the physical act of the employee appearing at the jobsite. The testimony of LeRoy Olson, the respondent’s project supervisor, shows the following:

“Q. [By counsel for respondent]: So if Mr. DeLong wanted to come and have a job what did he have to do?
A. [By Olson]: Just come out to the job and sign up.
Q. Did he have to come out to Virginia if he wanted the job?
A. Well yes, that’s where the job was.
Q. What would have happened if Mr. DeLong had not come to Virginia?
A. He wouldn’t have got the job then.
Q. If he had arrived say a month later would he still have had a job?
A. If he would have called me and give me a reason why he couldn’t come, had some reason why he couldn’t come, I sure would have hired him, sure, if I had an opening.
Q. But if he wanted the job he did have to come to Virginia?
A. Right, right.
* * *
A. I said they had a job.
Q. They had a job?
A. When they made the papers out they had the job, yes. But you couldn’t be an employee until you sign the papers.
Q. But you considered them an employee when they reported to the job site because they were paid.
A. On the job site, yes. On the job site.”

The Blue Cross-Blue Shield application card signed by decedent on November 30, 1983, shows date of full-time hire, November 28, 1983, which is the first day decedent worked in Virginia for respond-. ent.

The Commission’s determination that John had accepted the offer in Illinois by leaving the State and traveling to Virginia is not sustained by the record. The last act necessary to give validity to the contract did not occur in Illinois pursuant to the phone call, but in the State of Virginia when John appeared at the jobsite to begin his employment. As stated in Rosin v. First Bank (1984), 126 Ill. App. 3d 230, 234, 466 N.E.2d 1245, 1249, concerning an auction and contract, the court stated: “To be valid, an acceptance must be objectively manifested, for otherwise no meeting of the minds would occur.” The respondent as offeror had no way of knowing that John had accepted the offer for employment until he showed up at the jobsite.

In United States Steel Corp. v. Industrial Comm’n (1987), 161 Ill. App. 3d 437, 441, 510 N.E.2d 452, 455, we stated:

“The place where the last act necessary to give validity to the contract occurs is the place where the contract was made. [Citation.] The last act necessary to give validity to the contract occurred in Indiana, where petitioner accepted the job and began working.
It is not necessary, however, to rely solely on a technical determination of the last act necessary to give validity to the contract. Where the injury occurred in Indiana and the totality of the arrangements for reemployment occurred in Indiana, Illinois has no jurisdiction.”

In the instant case, Olson testified that when the respondent needed workers he would review the applications on file, call up applicants and tell them to come to work. If they wanted to come to work, they would come in and sign the papers and then go to work. If a person did not come to the jobsite and sign the various papers, he would not be hired. According to Olson, his wife called Mrs. DeLong in November 1983 and told John to come out and go to work. Olson further testified that all John had to do if he wanted the job was “just come out to the job and sign up.” No travel expenses were paid from an applicant’s home to the jobsite as an applicant was not hired until he arrived at the jobsite. With respect to the paperwork necessary to be completed before the employee went to work, the witness Olson testified, if you want to go to work “then you go through this procedure, you sign the safety book, and give him a safety book to sign it and the rest of the stuff he had to sign and that was it.” Respondent’s testimony clearly shows that if the deceased wanted the job, all he had to do was “just come out to the job and sign up.” As the arbitrator found:

“Mrs. DeLong confirmed that if deceased wanted the job he had to travel and report to the job site by the following Monday. Thus the offer of employment conditioned acceptance upon the act of DeLong traveling to the job site in Virginia and signing the various papers of employment. This is further supported by reason of the fact that he was not paid for travel expenses or travel time; his pay was commenced when he arrived at the job site.”

As stated in Professor Larson’s treatise:

“[T]hat the place of acceptance is the place of contract, raises the question in some cases whether the claimant’s understanding at the time he sets out toward the second state is a true acceptance of a contract or merely an expectation or hope. A general statement that if the claimant came to the state he would be given a job *** has been held to fall short of acceptance of an employment contract in the state where claimant received the message.” 4 A. Larson, Workmen’s Compensation Law §87.32(c), at 16-105 through 16-108 (1990).

The decision of the Commission was against the manifest weight of the evidence and the circuit court of Jefferson County is affirmed.

Affirmed.

EGAN, WOODWARD, STOUDER, and H. LEWIS, JJ., concur.


text:
    ROGER J. SMITH et al., Plaintiffs-Appellants, v. HAROLD A. DUNCAN et al., Defendants-Appellees.
    Fifth District
    No. 5-91-0377
    Opinion filed June 22,1992.

      Barry Schaefer, of Newton, for appellants.
    Max L. Tedford, of Cox, Phillips, Weber, Tedford & Heap, P.C., of Robinson, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, Roger J. Smith and Trisha Weger, the operators of an oil and gas lease upon land in Crawford County owned by defendants, Harold A. Duncan and Helen Duncan, filed suit to enjoin defendants from interfering with their operation of the leasehold. Defendants counterclaimed, attempting to cancel plaintiffs’ lease on the ground that it terminated due to nonproduction. Following a hearing on the complaint and countercomplaint, the circuit court held in favor of defendants on the countercomplaint, canceling the oil and gas lease, and denied plaintiffs’ complaint for injunction. Plaintiffs appeal only that portion of the circuit court’s order granting defendants’ counter-complaint.

Defendants executed an oil and gas lease to plaintiffs on October 23, 1987, which provided for a one-year primary term and for a secondary term which would continue “as long thereafter” as oil or gas was produced from said land by the lessee. Plaintiffs’ last shipment of oil during the primary term occurred September 8, 1988. Plaintiffs shipped only one tank of oil during 1989, that occurring on October 11, after which date no oil was shipped prior to plaintiffs’ filing suit on July 3,1990.

The leading case in Illinois on the termination of an oil and gas lease under its “thereafter” or habendum clause is Gillespie v. Wagoner (1963), 28 Ill. 2d 217, 190 N.E.2d 765. There, as in the case at bar, the basic question presented was whether cessation of production after the expiration of the primary term terminated the lease. The Illinois Supreme Court in Gillespie reasoned as follows:

“The general rule has been stated in the following language: ‘If the lessee by producing oil or gas within or at the end of the definite term, has satisfied the contingency upon which the lease is to continue beyond that term, it is the plain intent of the “thereafter” clause that the lease shall continue as long as oil or gas continues to be produced in paying quantities. From this it is clearly inferred that if production ceases the lease is at an end, although a temporary cessation of production does not terminate the lease under this limitation.’ 2 Summers, Oil and Gas, sec. 305.
* * *
We believe the proper rule to be that temporary cessation of production after the expiration of the primary term is not a cessation of production within the contemplation and meaning of the ‘thereafter’ clause if, in the light of all surrounding circumstances, reasonable diligence is being exercised by the lessee to continue production of oil or gas under the lease.” (28 Ill. 2d at 219-20, 190 N.E.2d at 766-67.)

The record reflects that the circuit court granted defendants’ counter-complaint to cancel the lease “due to cessation of production and lack of diligence.” The issue on review, therefore, is whether this finding was against the manifest weight of the evidence. See Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 318, 469 N.E.2d 183,191.

Plaintiff Roger Smith testified at the hearing that after some initial trouble with the motor on the well had been fixed in 1988, the motor ran well for the rest of the year. After the last shipment of oil in September 1988, plaintiffs next attempted to resume production toward the end of April 1989, as Smith stated, “[i]n the spring as soon as the road was unposted and the road dried, and we could get into Mr. Duncan’s barnyard and load the trucks.” Smith stated that defendants had requested he not enter the property during the winter when the roads were wet. Smith further testified that he was told “not to put a rock road in because it would bother the cattle’s feet and I tried to get along, and I didn’t try to build a road into it.”

Smith stated that he had shipped oil only once in 1989 because “we had a lot of trouble with the motor.” Smith further testified:

“Every time we’d go in and get it [the motor] running and start trying to pump the water on the well down, you know it takes a few days to pump the water down on the well. Well, we’d have trouble. Someone would shut the motor on the well off. Then we’d start all over. We’d come back and start it up the next time and then try to keep it running. We had great difficulty in trying to keep it running a day or two at a time. Someone would keep shutting the gas lines off on it.”

Throughout the rest of 1989, Smith tried to pump out the water and start the well in production but, “every couple of days someone would bother the motor and shut it off.” Smith explained:

“It takes two or three days to get the water pumped down on the well before it starts making oil, and if you lose — if you pump it for two or three days, and if you shut that down and lose that, you have to start that two or three day period over. We were just bothered all that year, and it took that long to accumulate that tank of oil.”

Smith testified that he encountered similar problems in 1990: “They unposted the roads at the end of April when the spring rains dry [sic] up the road enough to get in on the ground with the truck, and I tried to operate it. And the same thing — someone bothered the motor just regularly.” Smith testified that sometime in August 1990, he had just overhauled the motor and made it operational, but that when he next returned, the gate was padlocked and defendant Harold Duncan told him that he was not going to let Smith on the leasehold again. Smith stated that he then told Duncan, “Well, we figured someone had been shutting the gas off to the motor, the trouble we had been having,” and that Duncan said, “Yeah, if you start it again, you won’t run it, I won’t let you.” Smith admitted that he had never seen Duncan shut the motor off.

One of plaintiffs’ employees, Richard Walters, testified that he had helped Smith overhaul the motor. Walters testified that when they returned the next day, they could see from the road that the motor on the well was off and when they approached the gate, it was padlocked. Walters testified that Smith asked Duncan if he had been the one shutting the motor off, and Duncan replied, “Yes, I’ve been shutting it off, what about it?” Smith then replied, “Yes, I guess I’ll have to see you in court.” Todd Smith, plaintiff’s son, and several employees of Bi-Petro Oil testified to having been harassed by Duncan while servicing the well on various occasions in 1988 and 1989.

Defendant Harold Duncan denied that he had ever interfered with plaintiffs’ motor prior to 1990. Duncan admitted that in 1990 he shut the motor off and locked the gate, denying plaintiffs access to the property. Defendant Helen Duncan, Harold Duncan’s wife, testified that although she and her husband had run electric lines to the lease during its primary term so that plaintiffs could install an electric motor, plaintiffs had never done so. Mrs. Duncan further testified that from October 1988 to October 1989, she had not seen plaintiffs on her property.

Plaintiffs argue that the record in this case shows reasonable diligence in their operation of the lease, even though only one tank of oil was shipped after the primary term expired. Plaintiffs contend that the failure to produce commercial quantities of oil was beyond their control, where the uncontroverted evidence showed that they suffered continual problems with the well machinery. We agree.

In Kerr v. Hillenberg (Okla. 1962), 373 P.2d 66, the Oklahoma Supreme Court held that an oil and gas lease did not terminate where production ceased for 12 months due to the fact that the engine providing power for the operation of the wells broke down and lessee made persistent good-faith efforts to obtain the parts necessary for repair. Similarly here, plaintiffs made repeated efforts throughout 1989 and 1990 to keep the motor on the well running so that production could continue. Additionally, neither plaintiffs’ acquiescence to defendants’ request that a rock road not be built nor any failure to install an electric motor on the well can be said to prove lack of diligence without evidence that such “improvements” were feasible or practical. See Feland v. Placid Oil Co. (N.D. 1969), 171 N.W.2d 829 (after oil well was shut down following filling of salt water disposal pit, operator-lessee’s failure to construct a second pit did not amount to a violation of its obligation to use reasonable diligence and act in good faith where other circumstances made construction of additional pit unprofitable).

We believe that the record herein amply demonstrates that there was a temporary cessation of oil production and the lease did not terminate. Rather, “in the light of all surrounding circumstances,” reasonable diligence was exercised by plaintiffs to continue production under the lease. (Gillespie, 28 Ill. 2d at 220, 190 N.E.2d at 767.) We therefore hold that the findings of the trial court and conclusions of law based thereon are not sustained by the evidence or the law. Consequently, the judgment of the circuit court granting defendants’ counterclaim and cancelling plaintiffs’ lease is reversed.

Reversed.

GOLDENHERSH, P.J., and RARICK, J., concur.