author: Mr. JUSTICE SIMKINS

text:
    Donald Conner et al., Plaintiffs-Appellants and Third-Party Defendants-Appellants, v. The City of Danville, Defendant-Appellee and Third-Party Plaintiff-Appellee.
    (No. 12436;
    Fourth District
    July 17, 1974.
    Paul T. Manion & Associates, Ltd., of Hoopeston (Paul T. Manion and Alexander L. Edgar, of counsel), for appellants.
    Sebat, Swanson, Banks, Lessen & Carman, of Danville (Ralph J. Swanson, of counsel), for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The appellants, Donald Conner and Louise Conner, own a 2%-acre tract of land located within one-third of a mile of the corporate limits of the City of Danville. They have maintained a mobile home on this property since 1971. After purchasing the property, but prior to placing their mobile home thereon, the city adopted an ordinance extending its zoning authority to include all lands located within 1% miles of its corporate boundaries. The validity of this ordinance is not questioned. Also, after the Conners purchased the premises in question, but prior to the placement of their mobile home thereon, the city enacted its “Trailers and Trailer Parks” ordinance. This ordinance required mobile homes to be located within the boundaries of areas zoned for that purpose. The Conners’ property is situated in an R-l District which is designated by ordinance as “Single Family Residential, Low Density.” In the R-l District only single-family dwellings may be erected. The ordinance defines a dwelling as any building which is designed and used exclusively for residential purposes, and specifically excludes house trailers from the definition. Other permitted uses are the erection of schools, police and fire stations, parks and farming operations.

The Conners filed a complaint for declaratory judgment seeking injunctive relief and a decree declaring the “Trailers and Trailer Parks” ordinance to be null and void. The city answered and moved for summary judgment. On April 16, 1973, the trial judge granted the city’s motion and upheld the validity of the ordinance. Appellants concede the correctness of that judgment.

After the Conners’ complaint for declaratory judgment was filed, the city filed a cross-complaint alleging that the Conners were maintaining a mobile home in an R-l district, that the “Trailers and Trailer Parks” ordinance was also in full force and effect, that the premises owned by the Conners was within IV2 miles of the corporate limits of the city and under the ordinance extending tire city’s zoning authority to that area. The city sought an order directing removal of the mobile home. The Conners’ answer admitted these allegations, and it also raised two affirmative defenses. The first of which again attacked the validity of tire “Trailer and Trailer Parks” ordinance as a whole. The validity of tire statute having been upheld by the order entered in the declaratory judgment action on April 16, 1973, and the defendants having conceded the correctness of that order the first affirmative defense is barred by res judicata and by appellants’ concession made during oral argument. The second affirmative defense alleged that the R-l ordinance, as applied to the Conners’ property, was unreasonable because surrounding property is not, in fact, used for any purposes permitted in the R-l zoning classification. The Conners supported this contention. In response to tile city’s motion for summary judgment the Conners filed an affidavit which stated that: within a radius of 1 mile from the premises in question there are four mobile homes, that the area in which the Conners’ mobile home is located is primarly agricultural, that there are approximately 6 houses located within a radius of % mile from the location of the Conners’ mobile home. The city filed no counter-affidavit. Thus no issue of fact was created by the pleadings and no issue of fact was created by the affidavit. In the absence of material issues of fact, the statutory purpose is to render expeditious judgment on the questions of law involved. (Washington v. Draper & Kramer, Inc., 11 Ill.App.3d 952, 298 N.E.2d 270.) Neither the answer to the cross-complaint nor the affidavit establish that the application of the R-l ordinance to plaintiffs’ property was unreasonable or capricious. Farming is a permissible activity within the R-l zone, the six residences referred to in the affidavit are permissible within the ordinance. As to the four trailers there is no allegation that they are within the R-l zone, that they are not non-conforming uses or, indeed that they are not within an area zoned under the Trailers and Trailer Parks section of the ordinance. The ordinance in question is presumed to be valid. (LaSalle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65.) The uncontradicted facts contained in appellant’s answer and affidavit fall far short of establishing that the ordinance is unreasonable as applied to the property in question. Accordingly the judgment is affirmed.

Judgment affirmed.

TRAPP, P. J., and CLYDESDALE, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SIMKINS

license: Public Domain

text:
    Laura Houser, Plaintiff-Appellant, v. Frank C. Michener, Ex’r of the Estate of Percy Jones, Deceased, Defendant-Appellee.
    (No. 12339;
    Fourth District
    July 3, 1974.

      Ryan & Cini, Ltd., Harlan Heller, of Harlan Heller, Ltd., both of Mattoon, and Richard Kruger, of Metropolis, for appellant.
    Lemna & Lee, of Tuscola, for appellee.
   Mr. PRESIDING JUSTICE SIMKINS

delivered the opinion of the court:

The plaintiff appeals from the granting of defendant’s motion for summary judgment. The plaintiff brought suit against the estate of her father, Percy Jones, based on the alleged misconduct of the father acting as executor of the estate of Jennie E. Jones, Percy Jones’ mother and plaintiff’s grandmother.

The will of Jennie E. Jones was admitted to probate on January 13, 1956, appointing Percy Jones executor and devising life estates in certain real estate to Percy Jones and the plaintiff. Percy Jones died on April 9, 1971, and on December 9, 1971, the plaintiff filed suit against his estate alleging that Percy Jones had breached his duty to the plaintiff while acting as executor of the estate of Jennie E. Jones from January 13, 1956, to approximately August 15, 1969.

The complaint consisted of four counts: Counts I and II alleged that from January 13, 1956, to August 15, 1969, while acting as executor of the estate of Jennie E. Jones, Percy Jones had possession of two tracts of farm land on which he conducted farming operations during the entire period and that he did not properly account to the plaintiff for her share of the net proceeds therefrom. Both Count I which was in terms of the duty owed to a tenant in common, and Count II which alleged that the defendant had breached his duty as executor to a beneficiary, set out the alleged gross income, expenses, and net income for each year from the two farms, one-half of which in each case exceeded the amount alleged to have been distributed to the plaintiff. Counts III and IV incorporated the allegations concerning Percy Jones acting as executor and operating the farms from 1956 through 1969 and then alleged in Count III that Percy Jones had breached his fiduciary duty as an executor to the beneficiary of the estate by failing to make the assets productive of income in that he did not use adequate amounts of fertilizer, devoted a portion of one farm of alfalfa, clover, and oats (presumably in place of more profitable grain), and removed hay, silage, and other crops from one of the farms for his own use from 1958 to 1965. Count IV, rather than the common law duty of a fiduciary to maximize profits, relied on the statutory duty of an executor to manage the estate alleging that for the same reasons as in Count III, Percy Jones realized substantially less income than proper management would have produced.

On January 11, 1972, the defendant filed an answer admitting that Percy Jones had been an executor of Jennie E. Jones’ estate and operated the two farms from 1956 through 1969 but denying that the defendant had not paid plaintiff her full share of the income and stating as an affirmative defense that the defendant had taken no compensation for his services as a farm manager, which if calculated would have resulted in even smaller payments to the plaintiff than she admitted receiving. After plaintiff replied denying defendant’s affirmative defense, on October 11, 1972, the defendant filed extensive records from the operation of the two farms over the entire period 1956 through 1969 showing the amounts collected and disbursed including the amounts distributed to the plaintiff concluding that the amount due the plaintiff during the period would be approximately $48,000 and the amount paid her was $59,000. The checks paid to plaintiff were signed “Percy Jones, Ex.” or “Percy Jones, Est.”

On January 11, 1973, a stipulation was filed by the parties. It was stipulated that the $48,601.02 as shown by the defendant’s further affirmative defense was the true and proper amount of plaintiff’s share of the net proceeds from the two farms in issue, and that from January 13, 1956, to approximately August 15, 1969, the defendant had paid the plaintiff $50,520.88 and that the court should dismiss Counts I and II of the complaint with prejudice.

On February 1, 1973, the defendant filed a motion for leave to amend his answer alleging that the answer filed did not contain certain allegations necessary to permit the defendant to have his defense fully and fairly presented and determined. Also on February 1, 1973, the defendant filed a motion for summary judgment on the grounds that the estate of Jennie E. Jones had been closed on January 7, 1959, and that the defendant had served as executor of the estate and filed his final report on that date. It was alleged that plaintiff had filed her written entry of appearance in the estate acknowledging receipt of her full distributive share of said estate and consenting to the closing of said estate and that the plaintiff was now barred by section 72 of the Illinois Civil Practice Act from maintaining any action against Percy Jones as executor because he was discharged more than 2 years prior to the commencement of this cause. The motion also alleged that the will of Jennie E. Jones had devised the farm land in question for life to the plaintiff and Percy Jones and thereby made them tenants in common so that the defendant only owed the duty to account to the plaintiff — not the fiduciary duty of an executor — after his discharge in 1959. On February 16, 1973, the plaintiff filed an objection to the motion for leave to amend alleging that nothing was shown to justify the amendment and that an allegation of bar by prior judgment should properly be brought under section 48 of the Civil Practice Act. Leave for the defendant to file an amended answer was granted. The defendant filed a document entitled “Entry of Appearance on Final Settlement” allegedly signed by the plaintiff and stating that Percy Jones was discharged from his duties as executor of the Jennie E. Jones estate on January 7, 1959. The plaintiff responded that this document contradicted defendant’s initial answer wherein it was admitted that Percy Jones had acted as executor of the Jennie E. Jones estate up until 1969. In addition to pointing out that Percy Jones signed checks having to do with the operation of the farms up to 1969 “Percy Jones, Est.”, the plaintiff presented three affidavits in opposition to defendant’s motion for summary judgment, from a bank official showing that Percy Jones maintained a bank account from 1962-1969 in the name of “Jennie E. Jones Estate — Percy Jones,” from the tenant farmer to the effect that the farms were known as, and did business as, the Jennie E. Jones Estate, and from the county tax collector to the effect that the land was listed as “Jennie E. Jones, Estate.” Plaintiff admitted that she had signed the appearance on final settlement when her father brought it to her but alleged that it was then a blank foim without the typewritten portions such as “and acknowledge receipt of our full distributive share of said estate” being present when she signed it, and that she did not know the estate of Jennie E. Jones was closed until February 1972.

Briefs were filed in the matter with the-defendant contending that the plaintiff was barred by the statute of limitations in section 72 of the Civil Practice Act from maintaining Counts III and IV against Percy Jones in his capacity as executor since he was discharged more than 2 years earlier. Conversely the plaintiff contends that since the defendant did not raise the affirmative defense of the alleged 1959 discharge in his original answer, nor did he plead it or make a motion to dismiss under section 48 of the Civil Practice Act, that the defendant is barred from obtaining a summary judgment by such defense because a former adjudication must be pleaded before a court can consider it. The defendant then argued that the plaintiff could not testify to attack the appearance at the closing of the Jennie E. Jones estate because of the Dead Mans Act and contended that it does not matter that Percy Jones maintained a bank account and told the tenant and tax collector that the farms were being operated by him as the Jennie E. Jones Estate, when in fact the defendant was discharged as executor in 1959.

The court granted the defendant’s motion for summary judgment on May 4, 1973, finding that upon the pleadings, affidavits presented in support of and against the motion for summary judgment and the testimony of the plaintiff in support of her counter-affidavits, there was no genuine issue of material fact to be determined. The court had earlier found that it was uncontested that Percy Jones was discharged as executor of the Jennie E. Jones estate in 1959, that plaintiffs complaint did not ask that the order be set aside, and if plaintiff had filed pleadings praying for such relief, the burden would have been on plaintiff and that she would not have been a competent witness under the Dead Man’s Act.

Initially on appeal plaintiff contended that defendant should not have been allowed to amend his answer and deny that Percy Jones was the executor of the Jennie E. Jones estate between 1959 and 1969, and that the court could not consider the affirmative defense of Percy Jones’ alleged discharge by the final settlement of the Jennie E. Jones estate. However, during oral argument, the plaintiff conceded that the trial court did not abuse its discretion in permitting the amendment, and properly so since section 46(1) of the Civil Practice Act provides that amendments, including a defense or cross-demand by the defendant, may be allowed at any time before final judgment. (Ill. Rev. Stat. 1973, ch. 110, par. 46(1).) There are no cases supporting tile proposition that the affirmative defense was waived by failing to raise it before filing the initial answer in which defendant admitted that Percy Jones had served as executor of the estate from 1956 through 1969, and in fact it has been held that a court may consider affirmative defenses raised in a motion for summary judgment even if those matters were not raised in an answer or by motion under section 43(4) or section 48 of the Civil Practice Act. Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc., 7 Ill. App.3d 829, 288 N.E.2d 905.

The issue before this court is whether the trial court erred in granting the defendant’s motion for summary judgment because there was a disputed issue of fact. As noted before, the defendant’s original answer admitted that Percy Jones had served as executor of the Jennie E. Jones estate until approximately April 15, 1969, whereas a later affirmative defense consisting of a court order discharging Percy Jones as executor on January 9, 1959, was filed. It has been held that an admission in a prior answer may be used as an “evidential admission.” (Precision Extrusions, Inc. v. Stewart, 36 Ill.App.2d 30, 50, 183 N.E.2d 547.) In addition, plaintiff filed affidavits allegedly challenging the fact of that discharge in the form of depositions of third parties to the effect that Percy Jones continued to act as executor and in that capacity operated the two farms in the estate of Jennie Jones until 1969.

It is uncontroverted that Percy Jones acted as executor from 1956 to 1959, but the appearance on final settlement indicates that in 1959 plaintiff entered her appearance, acknowledged receipt of her distributive share of the state, and consented to Percy Jones’ discharge as executor of the Jennie E. Jones estate. Section 72 of the Civil Practice Act provides that relief from final orders must be filed within two years after their entry. (Ill. Rev. Stat. 1973, ch. 110, f 72(3).) The plaintiff filed the instant suit in 1971, not directly attacking the discharge of Percy Jones in 1959, nor denying that she received her life estate in one-half the farms or other bequests or devises from the Jennie E. Jones estate, but rather alleging that Percy Jones continued to operate the farms as executor after 1959, and seeking to recover from the estate of Percy Jones one-half of the difference between what was earned and what purportedly could have been earned if Percy Jones, as executor, had operated the farms differently.

Count III is founded on common law and alleged that Percy Jones had breached his duty to make the assets in the Jennie E. Jones estate productive of income. Count III does not allege fraud, accident or mistake in the discharge of Percy Jones as executor without which such discharge is binding on all given proper notice. (Ill. Rev. Stat. 1973, ch. 3, sec. 290.) Count III does allege that “Percy Jones, as executor of the Estate of Jennie E. Jones, and as a trustee of the fiduciary, had a duty to Laura Hauser as beneficiary of the Estate of Jennie E. Jones, had a duty to malee assets productive of income.” A reading of Count III as a whole indicates that the terms “trustee” and “fiduciary” are simply intended to be descriptive of and to emphasize the responsibilities of the office of executor. This analysis is reinforced by the reference to plaintiff’s status “as beneficiary of the estate,” and the count does not allege that there was a trust created or that Percy Jones had some special fiduciary duty as a tenant in common.

It must be remembered that the counts involving accounting and the distribution of income actually earned were settled, and the counts here in issue only involve the allegation that Percy Jones could and should have caused the farms to earn more by using more fertilizer and planting different crops. We note in passing that Jennie E. Jones died in .19.56 and that until section 219a was added to the Probate Act in 1966, an executor had no control over or right to possession of a decedent’s realty except to have it applied to the payment of debts pursuant to court order as provided by statute. (Ill. Rev. Stat. 1965, eh. 3, art. XIX.) Consequently, while there may be a question as to whether Percy Jones ever in fact operated the farms in which he and plaintiff were devised life estates as executor of the Jennie E. Jones estate, it is clear that summary judgment on the two viable counts founded on an alleged duty — either a common law fiduciary duty in Count III or a statutory duty of an executor in County IV — of Percy Jones as an executor following his discharge in 1959 was proper. Plaintiff acknowledged receipt of her distributive share of the estate by her entry on final appearance and consent to discharge, so she cannot now question the manner in which Percy Jones managed the farm during the time that he was executor. Percy Jones was not executor following his discharge in 1959, so neither he nor his estate may be sued for alleged mismanagement as executor during the period of 1959 through 1969. No issue of fact was created simply by showing that Percy Jones continued to refer to the farms in question as the “Jennie E. Jones Estate” and to maintain a separate checking account so designated, for accounting purposes or whatever, and the trial judge properly granted summary judgment for the defendant.

Affirmed.

CRAVEN and KASSERMAN, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    Pamela Kay Osborn, Plaintiff-Appellant, v. Roger Leon Osborn, Defendant-Appellee.
    (No. 73-315;
    Fifth District
    June 27, 1974.

      Robert L. Douglas, of Robinson, for appellant.
    Harlan Heller, of Mattoon, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal by the plaintiff-appellant, Pamela Kay Osborn, from an order of the Circuit Court of Crawford County, which modified the alimony and monthly support payments that were entered pursuant to the divorce decree of November 29, 1971.

According to the original decree, the defendant-appellee, Roger Leon Osborn, was ordered to pay $225 per month child support to be increased to $275 per month at the birth of the second child, as well as $50 per month alimony. Due to the continued arrearage of the defendant, an order was entered after a hearing on June 21, 1972, reducing the child support to $200 per month and suspending the alimony for 1 year. The order further stated that “the. cause was continued for one year for a review thereof and at the said time, the terms of this order shall be terminated, unless this decree is further modified or changed pursuant to an order entered by this court.” The order of June 21, 1972, also awarded attorney’s fees in the amount of $200 to the attorney for the plaintiff-appellant.

On July 17, 1973, after a hearing, the circuit court entered an order permanently modifying the divorce decree, reducing the child support to $175 per month plus $50 per month for alimony. The order also treated the question of visitation rights of the appellee. The plaintiff-appellant claims the court erred in reducing child support without any substantial change in the circumstances of the parties. The plaintiff-appellant also claims that the court’s denial of her request for payment of her attorney’s fees was error.

Trial courts cannot alter or change decrees involving alimony or support money unless there are substantial changes in the financial conditions and circumstances of the parties. The appellate courts have not set out all of the changes and conditions that would warrant a reduction or an increase in support payments. The courts have, however, indicated what changes should not be considered by a trial court. In Loueks v. Loueks, 130 Ill.App.2d 961, the trial court held that financial problems resulting from a subsequent remarriage and voluntarily acquired pieces of property should not be the factors to justify a reduction in child support payments and alimony. The court stated at page 964:

“His responsibility for the support of his * * * children, as decreed, outweighs the evidence he has produced in an attempt to show a material change of circumstances required by the cases to entitle defendant to the relief he seeks.”

There are other cases, Gregory v. Gregory, 52 Ill.App.2d 262; Stewart v. Stewart, 1 Ill.App.2d 283; Zug v. Zug, 81 Ill.App.2d 298, which conclusively support the proposition that trial courts cannot alter or change decrees involving alimony or support money unless there are substantial changes in the financial conditions and circumstances of the parties.

In each of the above mentioned cases, the ex-husband and the father of the children had remarried and was seeking modification of the original decree. This is the same factual situation in the present case. Appellee has remarried and frequently mentioned in his testimony the financial obligations of supporting his present wife. The appellee cites the case of Saxon v. Saxon, 24 Ill.App.2d 116, for the proposition that “in the absence of a transcript of the June 21, 1972 hearing this court should presume the evidence supported the court’s finding of changed circumstances.” The record in the present case includes a complete transcript of the hearing on July 17, 1973. This hearing accurately described the financial condition of the litigants upon which a review could be made. In the Saxon case the order was based on evidence “heard by the trial court but not presented” to the appellate court.

The July 17 hearing was the result of an order entered on July 13, 1972, by the Circuit Court of Crawford County. The order of July 13, 1972, followed a hearing on a petition for reduction in child support filed by appellee and a petition for a show cause order to hold appellee in contempt for failure to pay child support filed by appellant. The trial court reduced the child support payment for 2 years and completely suspended the alimony payments for 1 year. The court also found the appellee to be in arrears and ordered payment within 6 months. The attorney for appellee was awarded attorneys fee in the sum of $200. The order further stated that “the cause was continued for one year for a review thereof. And at the same time, the terms of this order shall be terminated, unless the decree is further modified or changed pursuant to an order entered by this court.” This order of July 13, 1972, clearly indicates that the court had retained jurisdiction of the case as the July 17, 1973, hearing was the result of a continuance for one year from the hearing held on July 13, 1972. The temporary order of July 13, 1972, reads that the provision will be in effect for 1 year and “shall be terminated unless this decree is further inodified”. During the years interval the appellee filed a petition to show cause concerning his rights of visitation with the children. In the July 17, 1973, hearing sufficient testimony was heard concerning the father’s right of visitation with his children, and the trial court wisely provided in concise language for the terms of these visitation rights. That part of the order of July 17, 1973, is affirmed.

By the appellee’s own admission, his earnings have been in the neighborhood of $10,000 to $11,000 a year for the last 3 years. In fact, he testified that his gross for the year 1972 was a “little over” $10,000. This is the year that the trial court gave him relief in his child support payments and suspended alimony payments of $50 per month for 1 year. Appellee was also a single person the latter part of the year 1972. His present hourly rate of pay is between $8 and $9. The appellant resides in a trailer home with her two children; the youngest is presently 17 months of age, and her only source of income is the support money for the children and her alimony. She is not able to seek employment because of the age of the youngest child.

The record does not support the trial court’s modification of the original decree in its order of July 17, 1973. The appellee’s contention that conditions and circumstances have changed supporting a reduction in payments is not supported by the evidence. If anything, appellee’s financial condition might be termed better since the original decree was entered on November 29, 1971. His hourly pay has increased and he has been steadily employed. Appellee’s figures show that it costs him and his present wife almost $8000 a year to live, and his income has always been between $10,000 and $11,000 a year. Also his present wife works part-time. Thus, he can well be expected to pay the $3900 per year for his ex-wife and two children.

The appellant was originally brought into court in 1972 on appellee’s petition and her attorney was awarded $200 as a fee at the conclusion of that hearing. However, the hearing a year later was a continuation of the previous hearing plus a petition to show cause was filed in April, 1973, against the appellant concerning visitation rights. She had to be represented at the hearing on July 17, 1973, on two counts. The record also reveals that a hearing was conducted on March 21, 1972, and appellee was found to be in arrears at that time. This hearing was occasioned by appellee’s petition to modify the decree, and there was no mention made at that time of attorney’s fee for appellant’s attorney. When it becomes necessary that a party employ counsel to come into court to enforce her rights under a decree of that court, she is entitled to be allowed her reasonable attorney’s fees. (Riddlesbarger v. Riddlesbarger, 341 Ill.App. 107.) The appellant has no income or resources other than the payments made by appellee; therefore, her attorney’s fees should be paid by appellee.

The judgment of the trial court in its order of July 17,1973, is reversed and remanded with instructions to restore the terms of the original decree entered in this case on November 29, 1971. However, the original decree shall not apply for the period from July 13, 1972, to July 17, 1973, as the temporary court order entered on July 13, 1972, shall be in effect for that period. The provisions of the order of July 17, 1973, spelling out the conditions of the visitation rights of the appellee are affirmed. The paragraph of the order stating that each of the parties shall pay their own attorney’s fees and costs is reversed. The trial court shall hear evidence and allow appellant a reasonable sum for her attorney’s fees.

The order of the trial court of July 17, 1973, is reversed in part, affirmed in part and remanded with directions.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE CREBS

text:
    James A. Farley, Plaintiff-Appellant, v. Marion Power Shovel Co., Inc., et al., Defendants-Appellees.
    (No. 74-60;
    Fifth District
    June 24, 1974.
    Harris and Lambert, of Marion, for appellant.
    James B. Bleyer, of Marion, for appellee Marion Power Shovel, Inc.
    Mitchell & Armstrong, of Marion, for appellees Ayrshire Collieries and Amax Coal Co.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from the dismissal of a complaint in the Circuit Court of Williamson County charging the defendants with a violation of the Structural Work Act. (Ill. Rev. Stat., ch. 48, sec. 60.) The relevant portion of that statute provides:

“All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed * * * placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon * *

The plaintiff’s complaint alleges that on June 5, 1971, he was an employee of Erection Service, Inc., and was engaged in the erection, construction and assembling of a stripmine shovel which was to be used in the strip mining of coal. The complaint further alleged that the stripmine shovel was owned by the defendants and that the defendants engaged Erection Service, Inc., to assemble the shovel. The plaintiff was allegedly injured when he fell from a drum which was on the stripmine shovel and which was allegedly being used as a scaffold, stay, support or other mechanical contrivance. The complaint states that the defendants wilfully violated the Structural Work Act in that they failed to furnish the plaintiff sufficient ropes or other devices with which to tie himself on to the drum.

The court dismissed the complaint on the ground that the Structural Work Act does not apply to the performance of work upon a movable item of personal property and that a stripmine shovel is such an item.

The sole issue raised by this appeal is whether a stripmine shovel is a “structure” within the meaning of the Structural Work Act. We hold that it is.

The defendants contend that the word “structure” includes only items of real property and not movable personal property. That argument was accepted in Juenger v. Bucyrus-Erie Company (E.D. Ill. 1968), 286 F.Supp. 286. The issue in Juenger was whether a “world-record size stripping shovel” was a “structure” within the meaning of the Structural Work Act. The United States District Court for the Eastern District of Illinois applied the rule of ejusdem generis in reaching the conclusion that the word “structure” refers only to real property. The rule of ejusdem generis has been defined as follows:

“In the construction of laws, wills, and other instruments, the ‘ejusdem generis rule’ is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.” Black’s Law Dictionary, 608, (4th ed. rev. 1968).

The judge in Juenger reasoned that, since the word “structure” follows the words “house,” “building,” “bridge” and “viaduct” and because those words describe items permanently fixed to real estate, the word “structure” also refers only to items fixed to real estate.

We disagree with the holding in Juenger and refuse to adopt the reasoning applied in that case.

In Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 127, 302 N.E.2d 64, 67, the supreme court stated:

“It has been determined that the Structural Work Act protects work activities of a particularly hazardous nature and is designed to lessen the extent of the danger * * * We have consistently reiterated this interpretation * * * To effectuate this purpose a liberal construction has been adopted * * * in order to afford broad protection to working men!”

The supreme court has thus mandated a liberal construction of the Structural Work Act and has stated that the primary purpose of the Act is to afford broad protection to men doing work of a hazardous nature. (See also Crafton v. Knight & Associates, Inc., 46 Ill.2d 533, 263 N.E. 2d 817; Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 175 N.E. 2d 785.) There is no question that the plaintiff in the instant case was performing work of a hazardous nature. The stripmine shovel from which he allegedly fell is much larger than many buildings, and the complaint alleges that the plaintiff fell a distance of 15 to 20 feet.

It appears that there are no cases in which an Illinois reviewing court has employed the liberal construction rule to extend the definition of “structure” so as to include items of movable personalty. No case other than Juenger, on the other hand, has held that the word “structure” as used in the Structural Work Act applies only to items of real property.

It has been held that New York authorities are to be considered in construing the Illinois Structural Act. (Bohannon v. Ryerson & Son, Inc., 72 Ill.App.2d 397, 219 N.E.2d 627.) That decision is based upon the fact that much of the Act was taken from the New York Labor Laws of 1895. (New York Labor Laws 1895, ch. 50, art. 10, sec. 240, McKinney’s Consolidated Laws of New York Anno. Book 50, at 207.)

In Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415, 88 N.E. 747, the New York Court of Appeals held that an item of movable personalty was a “structure” within the meaning of a statute almost identical to the Illinois Structural Work Act. In Caddy, the plaintiff was injured while engaged in repairing a railroad car. He had been standing on a plank about eight feet above the floor when the plank broke. The plaintiff brought suit against the owner of the railroad car pursuant to a statute which provided:

“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building, or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed or operated as to give proper protection to the life and limb of a person so employed or engaged.” (New York Labor Laws 1897, ch. 415, sec. 18, at 467.)

The plaintiff’s complaint was dismissed in the trial court, but the dismissal was reversed by the Appellate Division, and that decision was appealed to the New York Court of Appeals. One of the issues presented was whether a railroad car was a “structure.” The defendant argued that the doctrine of ejusdem generis applied to limit the meaning of “structure” to the specific terms “house” and “building.” The Court of Appeals held that a railroad car was a “structure” and stated:

“A scaffold is no more dangerous when used in erecting, repairing, altering or painting a house or building, than when used for the same purpose upon any structure where the same kind of a scaffold is necessary. The dangers to the employee are the same, and the evils of the common-law rule sought to be remedied by the statute are alike in each case.” (195 N.Y. at 420, 88 N.E. at 749.)

We find the rationale of Caddy persuasive and applicable to the instant case.

The doctrine of ejusdem generis should be applied differently than it was in Juenger so that it better effectuates the intent behind the Structural Work Act. The words “house,” “building,” “bridge” and “viaduct” contain common elements which are more relevant than is their characteristic of being real property. Each of those objects is an object the erection, repairing, alteration, removal or painting of which creates a considerable degree of danger for the workmen involved. The type of danger is the same for each object in that it can be minimized by the safe erection, construction, placing and operation of scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances. We believe that the most important common element contained in the words “house,” “building,” “bridge” and “viaduct” is the type of danger which exists when structural work is performed on these objects. We apply the doctrine of ejusdem generis, therefore, to define the word “structure” as any object, the erection, repairing, alteration, removal or painting of which creates a considerable degree of danger which can be minimized by the safe erection, construction, placing and operation of scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances. The stripmine shovel which is in issue in the intant case is such a structure.

The defendants argue that defining the word “structure” so as to include items of personal property would lead to absurd results. They contend that applying the Structural Work Act in the instant case would lead to the result that anyone working on a coaster wagon, a tricycle or a power lawn mower would be covered under the Structural Work Act. The argument lacks merit because, even if the word “structure” is defined so as to include the items mentioned by the defendants, the Structural Work Act does not apply unless “scaffolds, * ° * or other mechanical contrivances” are utilized when work is performed upon the structure.

We hold that when the erection, repairing, alteration, removal or painting of an object is work of a hazardous nature and is work which requires the use of a scaffold, hoist, crane, stay, ladder, support or other mechanical contrivance, the Structural Work Act requires that the mechanical contrivance be erected and constructed, placed and operated in a safe manner whether the “structure” is real or personal property.

For the foregoing reasons, we reverse the order of the Circuit Court of Williamson County and remand the cause with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE MEJDA

text:
    Alfred Meadows, Plaintiff-Appellant, v. Barney J. Grabiec et al., Defendants-Appellees.
    (No. 58718;

    First District (3rd Division)
    June 6, 1974.

      Devereux Bowly and John Henry Schlegel, both of Legal Assistance Foundation, of Chicago, and Gordon H. S. Scott, of Auburn, Maine, for appellant.
    William J. Scott, Attorney General, of Chicago (Bonny Sutker Barezky, Assistant Attorney General, of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Alfred Meadows, brought action in the circuit court of Cook County under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.), seeking reversal of a decision of defendant Board of Review of the Illinois Department of Labor, dated September 23, 1971, wherein plaintiff was held not eligible for unemployment benefits. Barney J. Grabiec, Director of the Illinois Department of Labor, is also made a defendant. Plaintiff appeals from an order of the trial court affirming the decision of defendant Board of Review.

On appeal, plaintiff contends that the trial court erred in holding as to sections 900 and 901 of the. Unemployment Compensation Act (hereinafter sections 900 and 901) (Ill. Rev. Stat. 1969, ch. 48, pars. 490 and 491), that: (1) defendants properly interpreted such statutes; (2) such statutes, as interpreted, do not conflict with the pertinent provisions of the Federal Social Security Act and the Internal Revenue Code; and (3) such statutes, as interpreted, do not deprive plaintiff and other similarly situated indigents of the equal protection of law and due process of law as guaranteed by article I, section 2, of the Illinois Constitution and the fourteenth amendment of the United States Constitution.

The facts follow.

On April 27, 1959, plaintiff filed a claim for unemployment benefits with the Unemployment Compensation Division, Illinois Department of Labor. He was paid full weekly benefits of $33.50 for each of the consecutive weeks ending June 8, June 15, June 22, June 29 and July 6, 1959. During that period plaintiff neither reported any employment nor the receipt of any wages. In August 1960, the Division received information from the Evanston Hotel that plaintiff had been in its employ as a bellboy from June 1 to July 15, 1959. A notice was mailed to plaintiff on October 24, 1960, at his last known address at 1609 South Sawyer Avenue, Chicago, to notify him that a hearing would be held on November 14, 1960, concerning the alleged overpayment. Plaintiff failed to appear at the hearing. On December 28, 1960, a further notice was sent to him at the same last known address, that the claims deputy had determined plaintiff had knowingly failed to disclose his employment and wages for the purpose of obtaining benefits for which he was not eligible; and further, that he was ineligible for benefits from that date, under section 901 of the Act, until he repaid the amount of $104.50 and also a penalty of $104.50. No reply was received from plaintiff.

On December 12, 1970, plaintiff again applied for unemployment compensation. On January 12, 1971, while making a required periodic visit to his local unemployment office he was told that there was a “fraud stop order” on his benefit check and that he could not receive any benefits until it was removed. Upon inquiring, he was further told that he would be ineligible until he repaid the $104.50 overpayment and the penalty of an equal amount. At this time plaintiff requested that the $104.50 overpayment be recouped from accrued benefits then payable to him, but he was informed that section 901 made no provision for recoupment of benefits fraudulently obtained.

On January 20, 1971, a hearing was held before a claims deputy of the Unemployment Compensation Division, in which plaintiff did not deny being employed nor receiving wages for the 1959 period in question. He stated that he was not employed full time at the Evanston Hotel and that he believed he did not have to report wages from “part time” work. He also stated that he had moved from the last known address prior to the dates on which the notices had been sent, without leaving a forwarding address with the Post Office and did not receive the notice of hearing or the December 28, 1960, notice of ineligibility. Plaintiff further testified that he did not have occasion to reapply for benefits until December 1970, and only after January 12, 1971, did he become aware of the prior determination of ineligibility. No correspondence was returned, according to the agency records. On February 2, 1971, the deputy issued another determination which held that plaintiff had knowingly failed to report the 1959 employment and earnings for which he was ineligible, and that he was ineligible for benefits from December 28, 1960, and thereafter until he repaid $104.50 and in addition, paid a penalty of $104.50.

Plaintiff appealed the deputy’s determination, and on Match 25, 1971, a hearing was held by a referee of the Division in which plaintiff contended that he should not be held continuously ineligible from December 28, 1960, because he had not previously received notice of the overpayment, and that the statute of limitations had run against the penalty imposed. The referee issued a decision on April 6, 1971, affirming the determination of the deputy. The plaintiff appealed to the Board of Review.

On September 23, 1971, the Board of Review rendered a decision which held, inter alia, that the initial determination made on December 28, 1960, was final that under section 901 of the Act plaintiff was no longer subject to the additional penalty since more than 3 years had elapsed from the date of ineligibility; and that the decision of the referee is modified to hold that plaintiff is not subject to the penalty but is subject to the repayment of the overpayment, either by restitution or recoupment from benefits otherwise payable to him. On October 6, 1971, plaintiff received a letter from the Unemployment Compensation Division advising that the overpayment of benefits could not be recouped and had to be repaid in full before any benefits could be released to him. A subsequent request by plaintiff for reconsideration and clarification of the decision was declined by the Board of Review.

On October 27, 1971, plaintiff requested and was given leave to file as a poor person his complaint for administrative review in the circuit court, seeking a reversal and remandment of the decision of the defendant Board of Review. The trial court rejected plaintiff’s conténtions as raised in the instant appeal and affirmed the decision rendered by the Board of Review. The instant appeal therefrom resulted.

The pertinent provisions of the Unemployment Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 300 et seq.) are as follows:

“490. § 900. Recoupment.) A. Whenever an individual has received any sum as benefits for which he is found to have been ineligible, the amount thereof may be recovered by suit in the name of the People of the State of Illinois, or, from benefits payable to him, may be recouped:
1. At any time, if, to receive such sum, he knowingly made a false statement or knowingly failed to disclose a material fact.
2. Within one year from the date he has been found to have been ineligible for any other reason, pursuant to a reconsidered finding or a reconsidered determination.
B. Whenever the deputy referred to in Section 702 decides that any sum received by a claimant as benefits shall be recouped, he shall promptly notify the claimant of his decision and the reasons therefor. The decision and the notice thereof shall state the amount to be recouped, the weeks with respect to which such sum was received by the claimant, and the time within which it may be recouped. The deputy may reconsider his decision within one year after the date when the decision was made. Such decision or reconsidered decision may be appealed to a Referee within the time limits prescribed by Section 800 for appeal from a determination. Any such appeal, and any appeal from the Referee’s decision thereon, shall be governed by the applicable provisions of Sections 801, 803, 804 and 805.
C. Any sums recovered under the provisions of this Section shall be treated as repayments to the Director of sums improperly obtained by the claimant.
ft ft ft
(Ill. Rev. Stat. 1969, ch. 48, par. 490.)
491. § 901. Fraud — Penalties.) An individual who, for the purpose of obtaining benefits, knowingly makes a false statement or knowingly fails to disclose a material fact, and thereby obtains any sum as benefits for which he is not eligible, shall be ineligible for benefits from the date on which he is notified to repay such sum, until he has repaid it and until whichever of the following shall first occur:
(1) He has paid a penalty equal to the sum he so obtained, or equal to his weekly benefit amount current on the date when he obtained such sum, whichever is the greater; or the amount of such penalty has been recouped from benefits for which he would have been eligible in the absence of this Section; or
(2) Three years have elapsed since the date his ineligibility began pursuant to this Section.”
Ill. Rev. Stat. 1969, ch. 48, par. 491.

We find persuasive plaintiffs argument that the trial court erred in holding that defendants’ interpretation of sections 900 and 901 does not deprive plaintiff of equal protection of the law. Therefore, our consideration will be limited to that particular contention upon appeal.

Initially, defendants argue that plaintiff is precluded from attacking the defendants’ interpretation of the Act on the ground that it deprives an indigent person of equal protection in that the record does not support plaintiffs claim that he was at all relevant times indigent and unable to pay the $104.50. It is true that generally, one seeking to attack a statute as unconstitutional must bring himself within the class to whom the law is alleged to be constitutionally invalid. (People v. Zuniga (1964), 31 Ill.2d 429, 202 N.E.2d 31.) In the instant case, however, we feel that there is evidence of the plaintiffs standing to raise this constitutional issue. Plaintiff testified at the referee’s hearing on March 25, 1971, that he had not been employed in any capacity since applying for benefits on December 12, 1970. He also testified that at the time of that hearing he did not have even enough money for carfare. Moreover, the record discloses that plaintiff’s application for leave to file his complaint for administrative review as a poor person was approved by the circuit court. (Ill. Rev. Stat. 1969, ch. 33, par. 5.) Although the record does not contain an exhaustive inquiry on the question at the various hearings held herein, we hold that there is sufficient evidence of record to show that plaintiff is a member of that class of persons to whom it is asserted that these statutes, as interpreted by the defendants, are constitutionally invalid.

Defendants’ interpretation is that sections 900 and 901 bar recoupment of fraudulently obtained benefits both by express language and by interaction between the two related sections. Defendants interpret the words “or, from benefits payable to him, may be recouped” contained in subparagraph A of section 901, providing for the recovery of benefits improperly received, as applying only to recoupment against benefits already accrued and payable to a claimant at the time fraud is discovered. Further, defendants maintain that by the use of the word “repaid” in section 901 concerning the recovery of fraudulently obtained benefits, the legislature expressly excluded recoupment as a method by which such benefits could be returned. Under defendants’ interpretation of section 901, an individual who has fraudently obtained benefits is ineligible for further benefits from the date he is notified to repay such sums until he has “repaid” them and also satisfied any penalty imposed; thus, the instant plaintiff has never accrued any benefits which could be recouped under section 900.

Plaintiff argues that defendants’ interpretation of sections 900 and 901 requiring fraudulently obtained benefits to be repaid as opposed to recouped, operates to treat indigents who have fraudulently obtained benefits differently from non-indigents who have received benefits by the same means. It is therefore contended that the repayment requirement discriminates against indigents in that only because of a lack of funds they are deprived of a realistic opportunity of re-establishing eligibility as a non-indigent may by repaying the amount improperly received. Defendants respond that the requirement of repayment of fraudulently obtained benefits, as opposed to recoupment, does not treat indigents and non-indigents differently, but requires all wrongdoers who were unjustly enriched to return monies not rightfully in their possession and pay or recoup a penalty. Defendants further assert that to allow fraudulently obtained benefits to be recouped would not only encourage fraud but in effect would subsidize it.

In recent years the United States Supreme Court has had occasion to consider the validity of various statutory classifications. Under the provision of the equal protection clause of the fourteenth amendment those statutory classifications which are considered invidious or which infringe upon a fundamental right will be upheld only if the exclusions inherent in such classification are necessary to promote a compelling state interest. (Dunn v. Blumstein (1972), 405 U.S. 330.) Classifications predicated upon the basis of wealth have consistently been held to be invidious and thereby place upon the state the heavy burden of demonstrating their justification. Tate v. Short (1971), 401 U.S. 395; Williams v. Illinois (1970), 399 U.S. 235; Harper v. Virginia State Board of Elections (1966), 383 U.S. 663; Griffin v. Illinois (1956), 351 U.S. 12.

The interpretation given sections 900 and 901 by the defendants and which was passed upon approvingly by the trial court does give rise to an invidious classification predicated upon wealth. Under that interpretation, all individuals who fraudulently obtain benefits are not treated equally. A wrong-doer’s access to monies from which repayment might be made, and as a consequence eligibility re-established, becomes in practical effect the criterion on whether a particular wrongdoer can receive future benefits. Although these statutes as interpreted by the defendants are seemingly directed at all wrongdoers alike, a law nondiscriminatory on its face may be grossly discriminatory in its practical operation. (Williams v. Illinois, supra; Griffin v. Illinois, supra.) As an invidious classification is thus presented the burden is upon the defendants to show the compelling justification for the practical distinctions which result from their interpretation of sections 900 and 901.

Defendants argue that the State has a legitimate interest in refusing to allow the recoupment of fraudulently obtained benefits because to allow it would both encourage and subsidize frauds being perpetrated by ineligible claimants. We fail to see how the allowance of recoupment in situations similar to that presented in the instant case will either encourage or subsidize fraud. An ineligible recipient fraudulently obtaining benefits will realize no gain if recoupment of the overpayment is allowed as opposed to direct repayment. In those cases where recoupment is had, a set-off would result against the claimant’s future accruing benefits and until the amount of the overpayment is fully recaptured, the claimant would realize nothing out of the accrued benefits which he would otherwise have received. For the same reason, recoupment does not subsidize fraud; by recouping from future accruing benefits otherwise payable to the claimant, a set-off cancels out the monetary gain of the original benefits improperly received.

In their briefs filed in this court defendants have urged that if recoupment of fraudulently obtained benefits were to be allowed it would have the effect of reducing the amount of funds available for disbursement to those presently in need of unemployment compensation. During oral argument defendants further stated that the allowance of recoupment as a method of recapturing fraudulently obtained benefits would result in an increase of the financial burden of administering the Unemployment Compensation Act. We accept neither assertion.

The actual benefit funds which are distributed under the Illinois Unemployment Compensation Act are generated from contributions of employers within the State of Illinois (Ill. Rev. Stat. 1969, ch. 48, par. 570). The contributions are immediately paid over to the Secretary of the Treasury to the credit of the Unemployment Trust Fund established under the Social Security Act (26 USC § 3304(a)(3)). Moreover, all costs incurred in the administration of a certified unemployment compensation program such as that currently in operation in Illinois are paid by the federal government under provisions of the Social Security Act (42 USC § 501 et seq.). Neither in the acquisition of the benefit funds nor in the cost of administering those funds is there a potential for the depletion of State monies by the allowance of recoupment of fraudulently obtained benefits.

We feel that a compelling justification has not been established for the distinctions in treatment which arise from the defendants’ interpretation of sections 900 and 901. The plaintiff would lose substantial benefits — not because of greater culpability but because of indigency, a consequence which should not depend on an irrelevant factor of poverty, especially where the State has an alternative method of recovery of the overpayment. Therefore, we hold that the interpretation of these statutes approved by the trial court constitutes a denial of the equal protection guarantees of article I, section 2, of the Illinois Constitution and of the fourteenth amendment of the United States Constitution.

It is our duty as a court of review to construe acts of the General Assembly in such a way as to promote their essential purposes and to avoid, if possible, a construction which would render an act constitutionally invalid. (Stubblefield v. City of Chicago (1971), 48 Ill.2d 267, 269 N.E.2d 504; Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Commission (1969), 42 Ill.2d 385; 251 N.E.2d 253; Quinn v. Retirement Board of the Firemens Annuity & Benefit Fund (1972), 7 Ill.App.3d 791, 289 N.E.2d 117.) As a consequence, the rule of construction has arisen that where a statute is susceptible of two differing constructions — one which will render it constitutional and the other which will not — the former construction will be adopted if it can reasonably be done. Country Mutual Insurance Co. v. Knight (1968), 40 Ill.2d 423, 240 N.E.2d 612; Progressive Party v. Flynn (1948), 400 Ill. 102, 79 N.E.2d 516; Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362, 4 N.E.2d 494.

In the instant case, the manifest legislative purpose in the enactment of sections 900 and 901 was to provide both a means by which fraudulently- or otherwise improperly obtained benefits might be recovered, and a means by which individuals who have resorted to fraud to obtain benefits might be penalized. The legislative purpose behind each respective statute will not be hampered by the allowance of recoupment as a method by which fraudulently obtained benefits may be recovered. We therefore construe the words "or, from benefits payable to him, may be recouped” contained in section 900 to apply both to presently accrued benefits and to benefits which would otherwise have accrued in the future except for the ineligibility created under section 901. We further construe the word, “repaid” contained in section 901 to mean either direct cash repayment by a claimant or recoupment from benefits for which the claimant would otherwise have been eligible except for the ineligibility created under that statute.

• The plaintiff’s qualification for benefits from the date of his application. on December 12, 1970, in the absence of ineligibility under section 901 of the Unemployment Compensation Act has never been determined by the defendants. It is therefore necessary to remand this cause for an administrative hearing to determine such eligibility for benefits and to provide recoupment from benefits otherwise accruing as of the date of said application.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

McNAMARA, P. J., and DEMPSEY, J., concur.


author: Mr. JUSTICE McGLOON

text:
    Thaddeus M. Kaminski et al., Plaintiffs-Appellants, v. Illinois Liquor Control Commission, Defendant-Appellee.
    (No. 58812;
    First District (3rd Division)
    June 6, 1974.

      Rudnick, Wolfe, Snyderman & Foreman, of Chicago, (Lester D. Foreman and Stanley N. Gore, of counsel), for appellants.
    William J. Scott, Attorney General, of Chicago, (Michael B. Weinstein and John D. Whitenack, Assistant Attorneys General, of counsel), for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County affirming the order of the Illinois Liquor Control Commission revoking plaintiffs’ liquor license. Plaintiffs present two issues for review. First they argue that the Commission erred in construing section 127 of the Illinois Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, sec. 127) as prohibiting the licensing of an establishment which sells liquor within 100 feet of a school, as measured from lot line to lot line. Plaintiffs contend that the proper measurement is from building to building, in which case their supermarket was more than 100 feet from the Oak Forest High School. Second they contend that the action of the trial court in dismissing their complaint for administrative review without hearing denied them due process of law.

We affirm.

Plaintiffs filed their complaint for administrative review in the circuit court of Cook County on February 2, 1971. The complaint included a recitation of the following findings which the Illinois Liquor Control Commission made in its order of revocation:

“(1) That on April 24, 1970, Bernard J. Kelly, Local Liquor Control Commissioner of the Village of Oak Forest, Illinois, issued a local liquor license to Thaddeus M. Kaminski, John N. Lapka, Anton S. Plebanek, for the premises at 15130 South Central Avenue, Oak Forest, Illinois.
(2) That on April 27, 1970, the Illinois Liquor Control Commission issued its License No. R-19718 to Thaddeus M. Kaminsto, John N. Lapka, Anton S. Plebanek, d/b/a Oak Food and Family Center, for the premises at 15130 South Central Avenue, Oak Forest, Illinois, said license to expire April 30, 1971.
(3) That question number 15 on the application for license states *** is this business located within one hundred feet of any school * * *. In answer to said question licensee answered “no.”
(4) That Section 127 of the Liquor Act provides that no license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any * * * school.
(5) That at the time of the issuance of the local and state liquor licenses the Oak Forest High School, located at the southeast comer of 151st Street and Central in Oak Forest, was under construction, said school being completed in August of 1970 and currently in operation for school purposes. That the property was acquired for school purposes in or around 1962. That the Village of Oak Forest approved the plans for the development of the school site in or around 1968.
(6) That in September 1968 Thaddeus M. Kaminski, licensee herein, at an official meeting of the Village of Oak Forest Zoning Board of Appeals seeking a building set back variation for the subject property, stated that no liquor would be sold at the subject premises for the reason that there is a school going in across the street.
(7) That licensee, prior to the application for a liquor license, was conducting on the premises a combination food and variety store. That this use still prevails.
(8) That the licensed premises is located approximately 83 feet from the Oak Forest High School premises, but in any event less than 100 feet, as measured from property line to property line.
(9) That Bernard J. Kelly, Local Liquor Control Commissioner for the Village of Oak Forest, testified that Village records and his investigations showed the licensed premises to be located less than 100 feet from the school property but that he issued the license on the basis that the school buildings were more than 100 feet from the licensed premises. He stated that if the proper measurement were to be taken between property lines he would not have issued the license.
(10) That the Illinois Appellate Court in DeLoian v. Illinois Liquor Control Commission, 109 Ill.App.2d 71 (1969) stated that the 100 foot distance prescribed by Section 127 of the Liquor Control Act was to be measured between property lines.”

Plaintiffs prayed that the order of revocation be reversed.

On February 4, 1971, the circuit court stayed the order of revocation until final disposition of the case. Thereafter defendant filed an answer in conformity with the Administrative Review Act. (Ill. Rev. Stat. 1971, ch. 110, sec. 272(b).) The circuit court continued the case from time to time. On July 28, 1972, with leave of court, plaintiffs filed an amended complaint which alleged that section 127 of the Illinois Liquor Control Act was unconstitutional as applied to them. More continuances followed until a hearing on January 30, 1973, took place at which the circuit court denied plaintiffs’ motion for leave to file a second amended complaint and further denied plaintiffs’ complaint for administrative review. The circuit court held another hearing on March 1, 1973, in response to plaintiffs’ petition for a rehearing and denied the petition. The circuit court denied plaintiffs’ application for another stay pending appeal to this court.

In this court plaintiffs request a review of certain questions of law. Section 127 of the Liquor Control Act provides in pertinent part:

“127. Retail sales near churches, schools, etc.] § 8. No license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school, hospital, home for aged or indigent persons or for veterans, their wives or children or any military or naval station; * * (Ill. Rev. Stat. 1971, ch. 43, sec. 127.)

Plaintiffs argue that the plain meaning of the statute requires that the 100 feet be measured from the supermarket building to the school building and not from the lot line of the supermarket premises to the lot line of the school premises. Plaintiffs’ argument flies in the face of two Illinois cases which have considered the question, Smith v. Ballas, 335 Ill.App. 418, 82 N.E.2d 181 (1948) and DeLoian v. Illinois Liquor Control Commission, 109 Ill.App.2d 71, 248 N.E.2d 689 (1969).

In Balias the court affirmed the local liquor control commission’s denial of a liquor license to a tavern owner whose building was more than 100 feet from a public high school building but less than 100 feet from the premises upon which the high school was located. The court stressed section 94 of- the Liquor Control Act, which provides in pertinent part: “This Act shall be IiberaHy construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected * * Ill. Rev. Stat. 1971, ch. 43, sec. 94.

Plaintiffs would distinguish Balias from the instant case in that Balias concerned the proximity of a high school to the unwholesome atmosphere of a tavern, whereas the instant case concerns a modern supermarket selling only packaged goods. Judged by the statute and its purpose we find such a distinction to be unsupportable. (DeLoian v. Illinois Liquor Control Commission, supra.) Plaintiffs have rested their claim on the distance provision of section 127 and have not claimed to be exempt from its prohibition.

Plaintiffs further argue that since the issue of the propriety of the denial of the liquor license was moot in Ballas, the court’s interpretation of the statute was dicta and entitled to little weight. We do not agree. Although the issue was moot in Ballas, the court felt compelled to consider it because of its importance to municipalities in the regulation of retail liquor sales. Our supreme court approved this treatment in People ex rel. Cairo Turf Club, Inc. v. Taylor, 2 Ill.2d 160, 116 N.E.2d 880, wherein it distinguished Ballas and noted: “The instant case does not present the same urgent need by the people of Illinois for authoritative determination as the situation involved in the Labrenz and Ballas cases.” 2 Ill.2d 160 at 164, 116 N.E.2d 880 at 882.

In DeLoian, the court, citing Ballas, affirmed the order of the Illinois Liquor Control Commission revoking a liquor license where the real estate upon which the licensed establishment was located was less than 100 feet from the real estate upon which a church was located, although the actual buildings were more than 100 feet apart.

Plaintiffs attempt to distinguish DeLoian, the most recent judicial pronouncement concerning section 127, on the basis that the licensee in DeLoian should have known under the circumstances that the 100 feet was to be measured between the respective property lines whereas plaintiffs in the instant case were not aware of the proper standard of measurement. In DeLoian the court rejected the licensee’s attempt to invoke the equitable principle of estoppel to defeat the order of revocation. The instant plaintiffs maintain that they have not relied on an equitable estoppel theory, yet they argue, rather obliquely, that the liquor license application and the issuance of the local liquor license conveyed the impression that the measurement was to be made from building to building. This difference in the factual settings of the cases does not undermine the interpretation of section 127 in DeLoian.

Plaintiffs’ second contention is that the circuit court denied them due process of law in denying them a hearing on certain issues which they had raised in their amended complaint, and erred in dismissing said complaint. In their amended complaint plaintiffs alleged the unconstitutionality of section 127 of the Liquor Control Act as interpreted and applied to them. Specifically they alleged that the section deprived them of the use of their property without due process of law and denied them equal protection.

Plaintiffs complain that they did not have a hearing in the circuit court at which they could present further evidence. Section 274 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, sec. 274) provides that “[n]o new or additional evidence in support of or in opposition to any finding order, determination or decision of the administrative agency shall be heard by the court.” This provision has withstood the challenge that it denied plaintiffs due process of law. Biggs v. Cummins, 5 Ill.2d 512, 126 N.E.2d 208; Pipe Trades, Inc. v. Rauch, 2 Ill.2d 278, 118 N.E.2d 319.

Apparently plaintiffs have no complaint about the nature and extent of the hearing before the Commission. In the circuit court plaintiffs had two hearings. The court made it clear that it had considered the question of the interpretation of section 127. The judge indicated that he had reviewed the Commission record and had considered the relevant authorities on the question of law involved. However, it is also apparent from the record of those hearings that the circuit court did not consider the constitutional question pertaining to section 127. Assuming that the plaintiffs properly raised the constitutional issue for the first time in their amended complaint (St. James Temple v. Board of Appeals, 100 Ill.App.2d 302, 241 N.E.2d 525, cert. denied, 395 U.S. 946; cf. Howard v. Lawton, 22 Ill.2d 331, 175 N.E.2d 556; River Forest State Bank & Trust Co. v. Zoning Board of Appeals, 34 Ill.App.2d 412, 181 N.E.2d 1) plaintiffs have failed to pursue the issue in this appeal. We have examined the briefs and find no cases cited nor argument pertaining to the constitutional issue involved. We will not consider a point that has not been argued unless our responsibility for a just result and for the maintenance of a sound and uniform body of precedent dictates otherwise. (Ill. Rev. Stat. 1971, ch. 110A, sec. 341(e)(7); Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831.) This rule of practice is applicable to appeals in this court under the Administrative Review Act. (Bell Realty v. Chicago Commission on Human Relations, 130 Ill.App.2d 1072, 266 N.E.2d 769.) Under the circumstances of the instant case, we will not consider the constitutional issue.

Plaintiffs further contend that the circuit court erred in dismissing their complaint. They argue that the filing of the complaint and amended complaint for administrative review required defendant to file a responsive pleading in order to put the case at issue. This is an incorrect statement of the law. The Administrative Review Act does not require defendant to frame the issues by filing an answer. (Ill. Rev. Stat. 1971, ch. 110, sec. 272.) Plaintiffs’ reliance on section 40 of the Civil Practice Act is misplaced. (Jewell v. Carpentier, 22 Ill.2d 445, 176 N.E.2d 767.) The review in the instant case is on the record of the Liquor Control Commission and we find no error in the Commission’s interpretation of section 127. For these reasons the order of the circuit court of Cook County dismissing plaintiffs’ complaint for administrative review is affirmed. Order affirmed.

McNAMARA, P. J., and MEJDA, J., concur.


text:
    Rosewood Corporation, Plaintiff-Appellee, v. Chester J. Fisher et al., Defendants-Appellants.
    (No. 58982;
    First District (3rd Division)
    June 6, 1974.

      Marshall Patner, of Chicago, for appellants.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is the second appeal of a forcible entry and detainer case (Ill. Rev. Stat. 1967, ch. 57, par. 1 et seq.) that was originally filed in the circuit court of Cook County on April 25, 1969, In the original appeal of this cause (Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 263 N.E. 2d 833) the supreme court reversed the judgment for possession entered for the plaintiff and remanded the action to the circuit court holding that when the trial court struck defendants’ answer and counterclaim on the ground that they were not germane to the issue of the right to possession and therefore prohibited under section 5 of the Act, it had acted improperly. Further proceedings in this cause were not taken upon the supreme court’s mandate until September, 1972. After various motions by both plaintiff and defendants the defendants’ original answer and counterclaim were again stricken and judgment awarded to plaintiff on March 26, 1973.

In their appeal from the second order of the circuit court striking their pleadings the defendants present two arguments to support their demand for reversal. First, the defendants argue that the plaintiff’s failure to plead to the affirmative defenses raised in their answer and counterclaim for some 2 years after the supreme court order of reversal and remand, require judgment to be entered for them under Supreme Court Rule 182. (Ill. Rev. Stat. 1971, ch. 110A, par. 182.) Second, defendants argue that their answer and counterclaim are sufficient as a matter of law to join issue with the plaintiff and require further proceedings in the trial court under the provision of the original opinion in Rosewood v. Fisher, supra. The plaintiff answers these arguments and contends the order of the circuit court was proper.

We affirm.

The history of the litigation in this case began in 1968 as one of the many “contract buyers” cases instituted in the circuit court at about that time. The general factual background of these cases is set out in the original decision in this case (Rosewood v. Fisher, supra), and need not be set out here. As regards to the instant defendants, they agreed to purchase a home from the plaintiff in 1964. They agreed to pay $24,450 for the house, making a down payment of $1,950. The contract provided that the balance of $22,500 was to be paid over a period of approximately 28 years in monthly installments of $146, consisting of principal and interest of 6Vz percent per annum. The defendants took possession of the premises and made the contract payments for about four years. In August, 1968, they stopped making monthly payments and defaulted on their contract to buy.

Subsequently, the plaintiff caused the defendants to be served with the required statutory notices (Ill. Rev. Stat. 1967, ch. 57, par. 3), and in April, 1969, filed the instant suit for possession. The complaint was in the form prescribed by the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1967, ch. 57, par. 5) and consisted of two substantive paragraphs. Paragraph 1 alleged that the plaintiff was entitled to possession of certain real estate and gave the legal description of the Fisher property. Paragraph 2 alleged that the defendants unlawfully withheld possession of the real estate from plaintiff and that the plaintiff claimed possession thereof. In May, 1968, the plaintiff filed an “Addendum” (sic) to its complaint which included the real estate purchase contract signed by it and the defendants, and an allegation that all required notices had been served on the defendants.

The defendants then filed their answer and counterclaim that remains the subject of controversy in this case. The answer consisted of three paragraphs. In the first paragraph the defendants reasserted all the defenses set forth in their previously filed motion to strike and dismiss the complaint, the significant portion of which alleged that the procedure prescribed under the Forcible Entry and Detainer Act was special legislation that relied upon an unreasonable and arbitrary classification that denied the defendants due process of law. Paragraph 2 stated:

“2. Defendants’ monthly contractual obligation to plaintiff has been satisfied. Defendants have paid plaintiff an amount far in excess of the fair market value (plus reasonable interest) of the premises described in the complaint to date. The contract should be reformed, otherwise any amount still alleged to be owing on the alleged contract is unconscionable and therefore unenforceable.”

Paragraph 3 denied that the plaintiff served the defendants with certain demands for possession. In the counterclaim the defendants allege defenses of unconscionability and illegality and prayed that title to the property be awarded to them.

Subsequently, the trial court struck the answer and counterclaim for the reason that the equitable defenses raised by these pleadings were not “germane” to the distinctive purpose of the proceeding. (Ill. Rev. Stat. 1969, ch. 57, par. 5.) The defendants appeal of this determination resulted in the supreme court opinion of Rosewood v. Fisher, supra, wherein the court held that contract buyers may plead equitable defenses and that those defenses going to the validity and enforcibility of the contract were germane to the distinctive purpose of the action. (46 Ill.2d 249, 256-57.) The mandate of the supreme court, dated October 15, 1970, reversed and remanded the case to the circuit court for further proceedings in accordance with the views expressed in the opinion.

The first proceeding of record after that opinion was not taken until September 19, 1972, when the plaintiff filed a motion to strike the answer and counterclaim in the circuit court. Among the grounds alleged in the motion was that defendants’ answers did not state a defense as a matter of law and that their counterclaim did not state a cause of action as a matter of law. Various proceedings in the circuit court resulted in the court denying the plaintiff’s motion to dismiss on other grounds that were enumerated in its motion (that the action was barred by res judicata). In January, 1973, the defendants moved to dismiss the complaint alleging that because the plaintiff had not pled to the counterclaim the allegations therein were admitted under section 40(2) of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 40(2).) Simultaneously, the plaintiff renewed its motion to strike the answers and counterclaim as insufficient as a matter of law. After a consideration of the motions the trial court, in February, 1973, denied the defendants’ motion to dismiss the complaint and granted plaintiff’s motion to strike the answer and counterclaim allowing the defendants time to file amended pleadings.

On March 26, 1973, the trial court entered an order in which it found that the defendants’ pleadings were insufficient as a matter of law and ordered the defendants’ answer and counterclaim stricken. The defendants elected to stand on the pleadings and judgment was again ordered for the plaintiff. It is this order from which the instant appeal is taken.

The defendants first contend that the plaintiffs failure to plead to the affirmative defenses in the answer and counterclaim for some 2 years after the reversal of the case requires judgment to be entered in their favor. The defendants cite various provisions of the Civil Practice Act and Supreme Court Rules which indicate that a party has 21 days to either answer or challenge a counterclaim (Ill. Rev. Stat. 1971, ch. 110A, par. 182) unless additional time is granted by order of the court. (Ill. Rev. Stat. 1971, ch. 110, par. 59; ch. 110A, par. 183.) They argue that because the plaintiff neither answered, nor received additional time to answer the counterclaim, after the case was remanded to the circuit court, the allegations therein were admitted. (Ill. Rev. Stat. 1971, ch. 110, par. 40(2).) We cannot agree.

The only case in Illinois similar to the instant case wherein both parties delayed in the pursuit of an action after a remandment of the cause by an appeals court is Tidwell v. Smith (1963), 43 Ill.App.2d 9, 192 N.E.2d 410. In that case the plaintiffs complaint was dismissed in the trial court. The appellate court found the trial court erred in dismissing the complaint and remanded the case for further proceedings. After a delay of approximately 2 years in which neither party pursued the action, the trial court granted the defendants’ motion to dismiss the action for want of prosecution. In a second appeal from the dismissal the court said:

“In the instant case the original complaint was dismissed by the lower court and judgment entered for defendants, and on appeal this court held that the trial court erred in allowing defendants' motion to dismiss and entering judgment for the defendants and remanded the case for further proceedings not inconsistent with the opinion. No specific directions were given to the trial court to enter any judgment or decree, and from a reading of the opinion it could readily be determined that it was incumbent on the plaintiff if he wished to continue with the prosecution of his case after the mandate was filed to proceed pursuant to Paragraph 2 of Section 83 of the Civil Practice Act to redocket the case and have a rule entered on the defendants to answer. It was not the duty of the trial court to take any steps to redocket the case after the mandate was filed. That duty rested with the plaintiff if he wished to pursue the case further.
The mandate was caused to be filed in the trial court by the plaintiff on November 5, 1960, which was within the time prescribed by statute, (Ill. Rev. Stat. 1959, ch. 110, sec. 83, sub-paragraph 3), but there is nothing in the record that discloses the plaintiff took any steps to redocket the case and secure a rule of court for the defendants to answer until almost two years after the mandate had been filed and not until after the defendants had asked for the case to be redocketed and filed their motion to dismiss.
In the absence of any reasons asserted by the plaintiff for such unreasonable delay in the prosecution of his case, we are of the opinion that the trial court correctly dismissed the case for want of prosecution.”

Understanding the fact that the position of the parties in our case is the opposite of the Tidwell case, (the defendants in our case were the victorious parties in the first appeal, as was the plaintiff in Tidwell), we feel the reasoning of that opinion applies with equal force here. After securing a reversal and remand of an unfavorable trial court order the defendants here ignored the case for some 2 years, and it was the plaintiff who first moved the trial court to reconsider the issues presented in the action. If the defendants seriously wished to pursue the remedy available to them for the plaintiff’s failure to plead during the 2 years after the supreme court mandate they should have done so before the plaintiff again took up the litigation by filing its motion to strike the answer and counterclaim. It is not unjust to require a party, either plaintiff or defendant, to shoulder the affirmative duty of further pursuing in the trial court the action in which he is involved when he is the party who obtained a reversal and remandment of an unfavorable judgment. And an unreasonable delay in discharging this duty may prevent him from securing judgment because of his opponent’s like delay.

Further, it is apparent from the record in this case that during the 2-year period between the date of the supreme court mandate and the plaintiffs motion in the circuit court both parties were also participants in litigation in the Federal district court involving issues similar to those raised in this possession action. Had the trial court awarded the defendants immediate judgment for the plaintiffs failure to plead in this situation, it is at least speculative that the judgment would not be subject to criticism in view of the appellate court’s expressed concern that judgments of a default nature are drastic remedies that should be entered with great caution. See Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill.App.2d 102, 167 N.E.2d 799.

The defendants next contend that their answer and counterclaim were improperly stricken by the trial court because the scope of issues subject to litigation under the Forcible Entry and Detainer Act has been extended to include defenses of an equitable nature, such as those presented in the instant answer and counterclaim. The case most obviously on point, and upon which the defendants chiefly rely is Rosewood v. Fisher (1970), 46 Ill.2d 249, 263 N.E.2d 833, the original appeal of the instant case.

In brief, the defendants contend that because the supreme court in Rosewood considered the same answer and counterclaim that is the subject of this appeal and determined that these were “improperly stricken” it was error for the trial court, upon remandment, to strike them again.

There is no question that the supreme court did determine that the defendants’ pleadings were improperly stricken (46 Ill.2d 249, 256), however, it is also clear that the supreme court was considering a different issue than is presented to us. In that opinion, after enumerating the various defenses raised by defendants, the cotut said:

“And while a contention is made by plaintiffs that such matters were improperly and insufficiently pleaded, that issue is not open to our consideration. It is well settled that the sufficiency of a pleading may not be attacked for the first time in a court of review. [Citation.] On motion of plaintiffs, the trial court struck the defensive pleadings challenging the validity and enforcibility of the contracts on the ground that they were not germane to the issue of right to possession and therefore prohibited by section 5 of the Act.” 46 Ill.2d 249, 255-56.

The balance of the supreme court opinion discusses and concludes that the equitable defenses of the defendants were “germane” under section 5 of the Act. In view of the fact that the order appealed from here specifically found that the defendants’ answer and counterclaim were insufficient as a matter of law, it is obvious that we now are confronted with that issue which the supreme court specifically excluded from its consideration, i.e., whether as a matter of law the answer and counterclaim properly and sufficiently pleaded the equitable defenses that the supreme court held could be raised in an action for possession.

In this regard section 5 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1971, ch. 57, par. 5), provides: “The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action.” It seems obvious to us that this section of the statute, and the supreme court opinion in Rosewood, are in no way contradictory in that a defendant in an action for possession need only deny the allegations of the complaint and then may plead and give in evidence any of the defenses that the defendants here raise in their answer and counterclaim. However, the defendants in the instant case refused to amend their pleadings to conform to these requirements. After due consideration we have concluded that the defendants’ answer here cannot be interpreted as a denial of the plaintiff’s allegations and for this reason the trial court was correct in striking the pleadings as insufficient. Certainly no discourse by this court on the function of pleading is needed to point out that the primary purpose of pleading is to produce parties joined on opposite sides of an issue of fact or law, thereby producing a controversy for litigation. The defendants’ pleading in this case did not produce this result and the proceeding could go no further.

We wish to point out that our decision in this case does not contradict in any respect the opinion of the court in Rosewood, supra. In that opinion the court held that equitable defenses of the kind the defendants attempted to raise in the instant case, are germane to the purpose of the Act and that the trial court acted improperly when it held that they were not and struck the pleadings. We merely hold here that when raising these defenses defendants must do so in pleadings that are sufficient as a matter of law.

For the above reasons the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
      In re Estate of Elizabeth La Pierre, Deceased, a/k/a Elizabeth Ayers Bearden La Pierre — (Honore M. La Pierre, Petitioner-Appellant, v. Shirley Kalergis, Respondent-Appellee.)
    (No. 59197;
    First District (3rd Division)
    June 6, 1974.

      Rehearing denied June 27, 1974.

      Richard D. Price and Frederick J. Bertram, both of Chicago, for appellant.
    Marinakis & Marinakis, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On April 28, 1972, the circuit court of Cook County dismissed a citation petition filed by Honore M. La Pierre, administrator of the estate of Elizabeth La Pierre. On December 15, 1972, the trial court denied petitioner’s motion to vacate the order of dismissal. Petitioner originally appealed the order directly to the supreme court and on June 20, 1973, the court on its own motion transferred the cause to this court.

The citation proceedings involved a $10,000 certificate of deposit in the Oak Park Federal Savings and Loan Association. The funds were in a payable-on-death (P.O.D.) account, deposited by the decedent, payable to the respondent, Shirley Kalergis. The respondent was the daughter of the decedent, and the step-daughter of the petitioner.

This is the second appeal to this court involving the same proceedings. (See In re Estate of La Pierre (1971), 132 Ill.App.2d 751, 270 N.E.2d 579.) On July 3, 1969, petitioner originally commenced the citation proceedings maintaining that the funds in question were held in joint tenancy between the respondent and decedent solely for decedent’s benefit.

At the first trial, an officer of the savings and loan association testified that upon the death of the decedent the proceeds of the account were paid to the respondent. However, he also stated that the signature card for the account, the actual contract, could not be located at the association, and it was not produced at trial. The witness could only assume that the signature card was presented to him when he disbursed the funds to respondent. Petitioner testified at the first trial that he was present at the association when the account was opened, and that there was another card issued by the association bearing his name. The trial court found in favor of respondent, dismissing petitioner’s claim. On appeal this court held that no competent evidence was introduced to show who was designated to own the certificate upon the death of the creator of the account. This court, in reversing and remanding the cause, pointed out that it had been advised in the brief and at oral argument that the signature card which was missing at the time of trial had now been located, and could be considered in further proceedings.

After remand, the same officer of the savings and loan association again testified at the second hearing. The signature card signed by decedent was introduced into evidence. The signature card indicated that the proceeds of the account were to be paid to respondent upon the death of the creator of the account. The officer testified that the signature card was missing at the time of the first trial, but had now been located. He recalled reviewing the card prior to the disbursement of the funds to the respondent. He also stated that there could be no other signature card in existence which would control the account in question. No other testimony was introduced. The trial court entered an order dismissing the citation petition, and this appeal follows.

The establishment of a P.O.D. account is authorized in section 4 — 10(c) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1969, ch. 32, par. 770(c).) To create such an account in a savings and loan association, the act requires that the person opening or holding the account execute a written agreement with the association providing that upon the death of the holder the account shall be paid to or held by another or others. The act also provides for the holder of the account to designate the person or persons surviving him who shall be entitled to and become owner of the account. While the disposition of funds in such a manner is clearly testamentary, not inter vivos, the creation of such an account is authorized by the statute even though it is not in accordance with the requirements of testamentary dispositions as set forth in the Statute of Wills; and the validity of such accounts has been repeatedly upheld by this court. In re Estate of Gubala (1967), 81 Ill.App.2d 378, 225 N.E.2d 646; Estate of Schwendeman v. State Savings & Loan Association (1969), 112 Ill.App.2d 273, 251 N.E.2d 99; Johnson v. Garellick (1969), 118 Ill.App.2d 80, 254 N.E.2d 597.

The case of Montgomery v. Michaels (1973), 54 Ill.2d 532, 301 N.E. 2d 465, cited by petitioner, is not applicable to the present case. Nor does Montgomery, as petitioner claims, invalidate P.O.D. accounts. That case concerned a Totten or tentative trust. Such a trust, created at common law, involved a deposit made in the account in the name of the depositor as trustee for another person with no further indication as to the depositors intention. (See In re accounting of Totten (1904), 179 N.Y. 112, 71 N.E. 748.) The court in Montgomery held that the Totten trust was illusory, and that the property of such trust will be included in the decedent’s estate for purposes of determining the spouse’s statutory share. The instant P.O.D. account, created by statute, is not illusory. It constitutes a specific agreement containing definite terms and provisions regarding the deposit and disposition of funds.

Petitioner also contends that section 770(c) of the Illinois Savings and Loan Act is unconstitutional “as being an act not expressed in the title of the Savings and Loan Act,” and also as being special legislation violative of the Illinois Constitution of 1870.

The Illinois Savings and Loan Act, like so much legislation, carries a short title. Its full title, however, is as follows:

“AN ACT to revise and codify the laws in relation to Savings and Loan Associations and to provide penalties for the violation thereof, and to repeal an act therein named.”

The constitutional provision that no act shall embrace more than one subject does not mean that it shall contain only one provision. Its purpose is to prevent the joining in one act matters which are incongruous and unrelated. Stewart v. Brady (1921), 300 Ill. 425, 133 N.E. 310.

Petitioner’s claim that section 770(c) is special or class legislation is equally without merit. In Hansen v. Raleigh (1945), 391 Ill. 536, 63 N.E.2d 851, our supreme court used pertinent language at page 544:

“Laws are not to be regarded as special or class legislation merely because they affect one class and not another, provided they affect all members of the same class alike. The fact that a law discriminates against an individual or group, is not of itself, sufficient to render it invalid.”

In our view, section 770(c) is not arbitrary and rests upon a reasonable basis.

Petitioner further contends that no proof was offered as to the genuineness of decedent’s signature on the signature card.

Respondent, through an officer of the savings and loan association, introduced the signature card into evidence. The same official testified that he participated in the transaction whereby the funds were paid to respondent. Indeed, his signature appeared on a check requisition dealing with the account. While the official did not recall the respondent, he remembered looking over all the documents before paying the funds to her. The official also stated specifically that the association always had possession of the signature card, but had misplaced the card when asked to produce it at the first trial. An instrument creating an account in a savings and loan association under the statute presumably speaks of the whole truth. (In re Estate of Gubala (1967), 81 Ill.App.2d 378, 225 N.E.2d 646.) The signature card was introduced into evidence by respondent, and petitioner offered no evidence to indicate that the card was not authentic or that the signature was not genuine. Respondent’s proof was sufficient to establish the validity of the signature card.

At oral argument, petitioner’s counsel argued that the certificate of deposit itself was in the name of the decedent alone, and that such fact indicated the funds should be included in the estate. The fact that the certificate of deposit was outstanding in the name of the decedent alone was not determinative of ownership. The certificate is merely a receipt for the deposit of money which the bank holds. The signature card containing the agreement, and not the certificate, determines the ownership of the funds. In re Estate of Macak (1973), 14 Ill.App.3d 261, 302 N.E.2d 436.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.