text:
    Herbert Donow et al., Plaintiffs-Appellees, v. Board of Trustees of Southern Illinois University et al., Defendants-Appellants.
    (No. 72-98;
    Fifth District
    July 23, 1974.

      Craig & Craig, of Mt. Vernon, and T. Richard Mager, of Carbondale (A. Ben Mitchell, Howard W. Campbell, and Terry R. Black, of counsel), for appellants.
    David W. Watt, Jr., of Murphysboro, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Jackson County in an action brought by the plaintiffs-appellees, 14 members of the faculty and staff of Southern Illinois University, against the defendants-appellants, members of the Board of Trustees of Southern Illinois University, to recover monies withheld from their paychecks by the University allegedly without the authority to do so.

The plaintiffs were all employed by the defendant Board of Trustees as members of the faculty and staff of Southern Illinois University at Carbondale (hereinafter referred to as the University) for the academic year 1969-1970. Their employment was by virtue of individual appointment papers, which contained either the statement: “The employment of a staff member is governed by the laws of Illinois and the Statutes of the Board of Trustees, which laws and statutes are a part of this agreement as if set out in full herein” or: “Employment * * * will continue until further notice, subject to the policies affecting compensation and conditions of work at Southern Illinois University.” Section 8 of “An Act providing for the management, operation, control and maintenance of Southern Illinois University” (Ill. Rev. Stat. 1969, ch. 144, par. 658(1)) grants to the Board the power and in fact idle duty “To make rules, regulations and bylaws, not inconsistent with law, for the government and management of Southern Illinois University and its branches.” Faculty responsibilities to the University are detailed in part III, article VIII, section 3 of the statutes and bylaws, including the responsibility “To operate within the general framework of University policy and practice.”

This suit arose out of the actions by the University administration in retaining a portion of the compensation due plaintiffs for their services rendered on behalf of the University during January of 1971. The University claims the right to withhold portions of faculty and staff salaries as a set-off against the entire salary due the employees on the grounds of a debt allegedly owed to the University by the employees for failure to pay monetary assessments made upon them for claimed violations of the University’s Motor Vehicle Regulations. The regulations in question were admitted into evidence and are a part of the record on appeal.

Prior to the action taken by the University, the plaintiffs had collectively accumulated a total of 112 tickets from the University Security Force, each notifying the individual recipient that he was parked in violation of the Motor Vehicle Regulations. The regulations stated that administration of the University parking facilities was to be patterned upon a color-coded decal system whereby the purchaser of a parking decal of a particular color was entitled to park in appropriately color-designated lots as set out in the regulations. Sanctions listed for violations included monetary assessments for decal infractions of from $1 to $10 per violation, with the assessment of up to $50 available for continuance or serious violations. The tickets issued to the plaintiffs were all for infractions of the rules regarding color decals. Monetary assessments were made in each case for either $1 or $10 by the supervisor of the Motor Vehicle Division of the University Security Force, pursuant to an unwritten policy of the office with regard to the exact assessment to be made for particular types of violations. This was done without the benefit of a hearing as to the validity of the allegations in the ticket, without plaintiffs having any opportunity to challenge the imposition of the assessments before they were made. A procedure for appealing the assessments once made was included in the regulations, and the statutes and bylaws included the right of faculty and staff members to process complaints arising out of their employment through a special grievance procedure. With the exception of James McHose, the plaintiffs failed to use either procedure. Rather they refused to pay the amount of the assessments.

In an attempt to secure payment, the University notified plaintiffs that if they did not pay the amount claimed due by the University, the amount would be deducted from a future paycheck. When this failed to produce the desired compliance, the University did submit to the Auditor of Public Accounts payroll vouchers which noted that the plaintiffs were due an amount less than that stated in their appointment papers. A separate entry on the vouchers under the name of each plaintiff was included for the amount claimed due by the University. The vouchers were approved as prepared, and checks were drawn in compliance with them. Thus plaintiffs received paychecks for an amount equal to their normal salary less the deductions made by the University for the violations. The vouchers were also admitted into evidence.

Plaintiffs, upon receiving the checks for less than their contractual salary, brought this suit to recover the amount retained by the school. The University answered the complaint, raising the affirmative defense that the plaintiffs were indebted and counterclaiming for the amount of the fines as a set-off. The cause was tried by the court sitting without a jury and was tried primarily upon stipulations. The parties agreed by written stipulation prior to trial that the University had adopted, promulgated, published and distributed the Motor Vehicle Regulations in question. The “University” was defined as being the Board of Trustees of Southern Illinois University. Plaintiffs agreed that they had had notice of the regulations at all times relevant to this action. The University stipulated that but for the amounts claimed due for the parking violations, plaintiffs would be entitled to the full amount of their earnings, except for deductions specifically authorized by each plaintiff and those required by law. It was also stipulated that the defendant has no judgment standing in its favor against any of the plaintiffs, that the defendant had not prior to this action initiated any judicial proceedings against any of the plaintiffs to collect the money allegedly due it, and that the alleged violations of the Motor Vehicle Regulations had never been adjudicated as such by a court of law. Other stipulations were entered by counsel orally during the course of the proceedings and will be referred to as necessary.

At the close of the evidence and after the submission of written briefs by the parties and further oral argument, the court held that the plaintiffs were entitled to recover the amount which had been deducted. The trial judge based his decision on what he described to be a very narrow basis, as he stated in his judgment. He first held that there was no evidence to support the conclusion that the regulations had ever been enacted by the Board of Trustees, despite the stipulation by the parties to that effect. He stated:

“The testimony was that the Board set some kind of policy and it was never explained what that policy was. I can only assume that the policy that they set was the policy set at the first of this Motor Vehicle Regulation, although that was never shown, no reference — the person said the board set the policy, was made to the defendant’s exhibit, and then the particular witness testified that somebody, some unknown person, whether it was the Dean or the President of the University, but somebody drew up the Motor Vehicle Regulations. Now the statutes of this State clearly place the power to make all regulations and rules or the power to lease, make contract of facilities within the sole power of the Board of Trustees of Southern Illinois University and it has not been shown to this court that the Board of Trustees of Southern Illinois University even passed these motor vehicle regulations or ratified them or in any manner knows anything about them.”

Next, he ruled that no contract existed and that, even if a contract did exist, it was vague and unclear, in that a person would not know how much he would have to pay for parking on campus, due to the variable assessment scale of $1 to $10 in the regulations and the possibility of assessments up to $50 for serious violations or continued violations. A further area of fault was found with the procedure for making the assessments in that the supervisor of the Motor Vehicle Division made the assessments in the $1 to $10 range pursuant to an unwritten policy which he had helped draw up. The supervisor’s testimony further produced the fact that he himself was not sure if he had the authority to make the assessments, but that someone had to do it. Finally the court ruled that the University had no right to set-off the wages since the University is governed by, and all of its power arises from, the statutes setting it up, wherein there is no mention of the right to set-off accruing to the University, and since section 1 of “An Act in relation to uncollected claims and accounts receivable of State agencies” (Ill. Rev. Stat. 1969, ch. 15, par. 101) provides a procedure which should have been used by the University.

No formal objection was filed to the judgment nor was a post-trial motion filed by the defendants.

The first issue presented on this appeal is whether the trial court was correct in disregarding the plain wording of the stipulation of the parties and in ruling that the Motor Vehicle Regulations were not in effect during the times concerned due to lack of proper promulgation. Appellees raise the question of whether this issue has been preserved for appeal in light of the fact that no objection was made to the ruling at the time it was made, and no post-trial motion was filed calling this problem to the attention of the court.

As noted in the facts above, this cause was tried by the court sitting without a jury. The ruling in question was made as part of the justification the trial court gave for its decision and was made after the submission of written briefs by the parties and oral arguments thereon. After taking the case under advisement for a time, the court issued its judgment, including the ruling appealed from. Under the circumstances it was not necessary for the defense counsel to object to the judgment nor to file a post-trial motion to save the question for appeal. (Ill. Rev. Stat. 1969, ch. 110, par. 68.3(1).) See also, City of Evanston v. Piotrowicz, 20 Ill.2d 512, 515, 170 N.E.2d 569, 572. The appellant did not waive the right to raise this question on appeal, and it is properly preserved.

From this record we determine that the trial court erred in ignoring the stipulation when delivering its judgment. However, since this action by the trial court occurred after the submission of written briefs by the parties and after the presentation of all the evidence in the case, we cannot hold that it is automatically reversible error. Due to the time at which the holding was made, neither party was harmed in the presentation of their evidence. Roth parties proceeded as if the stipulation were in effect so the record we have before us is one untainted by the ruling on the stipulation. As we ,now hold that the stipulation was valid and binding, neither party can claim they were prejudiced in the presentation of evidence by the ruling. We can now proceed to an examination of the actual dispute involved. We are not bound by the reasons given by the trial court for its decision. (Klarich v. Parker, 325 Ill.App. 571, 60 N.E.2d 248.) Therefore, if we find from the record a sufficient basis in law upon which to support the judgment we will affirm (City of Kankakee v. Small, 317 Ill. 55, 147 N.E. 404; Troup v. Hunter, 300 Ill. 110, 133 N.E. 56), and we will disregard the erroneous reasons of the trial court for its decision. Fields v. Berg, 333 Ill.App. 46, 76 N.E.2d 554; McNicholas v. Tinsler, 127 Ill.App. 381.

The basic issue for resolution in this case is whether the defendant Board of Trustees of Southern Illinois University, a public educational institution organized under the laws of Illinois, can withhold from the paychecks of its faculty and staff members amounts claimed due to the University by reason of the employees’ failure to pay monetary assessments levied upon them by the University for alleged violations of the University Motor Vehicle Regulations. The deductions from the paychecks were not authorized by the employees in the normal manner and were made without their permission.

At the outset it must be noted that very little law is to be found on the subject. This is due in part to the unique question presented and the unusual status of the employer-board, in that it is a public corporation organized by the legislature of the State of Illinois (Ill. Rev. Stat. 1969, ch. 144, par. 651, et seq.). Therefore we are forced to approach the problem with little help from prior cases.

The first matter with which we must concern ourselves is the existence of a contract of employment between the plaintiffs and the Board. The trial judge ruled that a contract did not exist or that if it did exist it was too vague to be enforceable. We take exception with his determination that no contract of employment existed between the Board and the employees here.

The statutes authorizing the existence of the Board of Trustees are the first source to be consulted in order to determine whether a contract exists. Section 12 of “An Act in relation to Southern Illinois University” (Ill. Rev. Stat. 1969, ch. 144, par. 612) states that the Board “shall appoint instructors, and any such officers as may be required.” (Emphasis ours).) While the term “appoint” may be ambiguous, we believe that the legislature envisioned a contractual relationship between the employees and the Board. In enumerating the powers of the Board, section 8 of “An Act providing for the management, operation, control and maintenance of Southern Illinois University” (Ill. Rev. Stat. 1969, ch. 144, par. 658) states in part the power to “employ” all necessary personnel and the power to “contract with them upon matters relating to tenure, salaries and retirement benefits in accordance with ‘An Act to create the university civil service system of Illinois and to define its powers and duties’, approved May 11, 1905, as amended.” The plain meaning of this section indicates that the contractual arrangements in the employment contract relating to the enumerated areas are to be governed by the named statute. The inference to be drawn is that the employment relationship is a contractual relationship. We hold that it is such.

Once the existence of the contract has been established, there remains the duty of determining the scope of that contract, especially as it affects the regulations. The defendants’ approach in both the trial court and more evidently on appeal is that this is basically a contract action. This was evident to the trial judge who ruled that the defendants had waived the right to sue in tort or in a quasi-criminal action on their counterclaim. While originally agreeing with the trial judge that there was no contract, plaintiffs state in their brief that it has always been their position that the only remedy defendants could pursue would be an action for damages resulting from a breach of contract. Our interpretation of the agreement coincides with the apparent intentions of the parties. We thus hold that the Motor Vehicle Regulations were a part of the contract of employment between the plaintiffs and the defendants.

The next question to be decided is whether the University had the right under the contract to retain the amounts which they did. For the time being we shall assume the assessments to be valid under the circumstances and will concern ourselves only with the right of retention from the paychecks.

An examination discloses that nowhere in the creating statutes, in the regulations, or in the appointing papers is there any specific grant of authority given to the Board to authorize such deductions as were made here. Since the powers of the Board are limited by the statute creating it, by its regulations, or by the contract, they have no power to take such action. The defendants, however, argue that the statutes should be given a liberal interpretation in light of the fact that the statute grants very broad powers to the Board and much discretion in the making of rules and regulations so long as they are not inconsistent with law. (Ill. Rev. Stat. 1969, ch. 144, par. 658(1).) While we agree that the statute should be liberally applied by the courts, we feel that to sanction this action as a statutory power would be contrary to the intent of the legislature in granting this wide range of powers. To allow the Board to deduct from salaries as debts owed to the University, amounts adjudged as “debts,” not by any impartial judicial forum but by an internal administrative action, would be to allow them a discretion in dealing with their employees not sanctioned in law. Nothing in the statutes indicates that the legislature intended that they should have a power of this type. If the Board were given this power, the employee would not know how much of his pay he could expect to receive until the paycheck was actually received. The University could conceivably deduct any amounts which it had internally decided were debts owed to it and thus place its employees in severe financial difficulties. Cases cited by the defendants to the effect that the courts will not interfere with the internal procedures of a university are inapplicable here, since the plaintiffs are being deprived of their salaries, which the defendants stipulated they were due were it not for the assessments made, without having the right to have the assessments officially adjudged debts of the University by an impartial judicial forum. The statutes do not authorize such action.

Further, the plaintiffs had never consented to the deductions, according to the testimony of the assistant to the president of the University, and they had never signed authorizations for deductions, as was the normal procedure prior to the making of any deduction by the University. He knew of no other instance in which this particular method of enforcement had been applied. Also, the regulations themselves do not authorize the retention of salaries as a means of enforcement. Access to the State courts is listed as a possible means of enforcement, but no provisions exist for a set-off to salaries. The regulations state that the methods of enforcement are not limited to those listed, but this does not help the defendants. The set-off by defendants could not be used to collect the assessments made on these particular violations because the plaintiffs did not have notice of this enforcement method at the time of the violations. A case cited by the appellants is appropriate in its reasoning on this point. In Drysdale v. University of New York, 60 Misc. 2d 180, 302 N.Y.S.2d 882 (Sup. Ct. 1969), the plaintiff sought an injunction against the university to enjoin it from towing and impounding motor vehicles of students for failure to pay summonses issued for parking violations on campus. The regulations included authority to tow and impound cars parked illegally at the time of the towing, but contained nothing about the towing of cars for past violations. The court refused to grant the injunction against the towing of cars parked illegally when towed, but granted the injunction against the towing and impounding of cars for past violations as this was not an enforcement method included in the regulations. Here the attempted enforcement was not included in the regulations either at the time of the violations or at the time it was used. Similarly, in the present case defendants had no authority under the regulations to deduct the amounts which they did.

Thus the plaintiffs are correct in asserting that the defendants acted illegally in deducting the assessments from their salaries. But this does not dispose of the case entirely. Should defendants be entitled to the recovery they seek on their counterclaim, which the trial court interpreted as a second affirmative defense, the judgment must be reversed. It is to this question that we now turn.

The defendants are entitled to plead a counterclaim pursuant to section 38 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 38). In passing on the merits we must keep in mind the fact that the regulations are considered a part of the contract. When considered in this manner, as between the employees and the Board, the assessment section of the regulations becomes a damages section for this part of the contract. The regulations state that the defendants have the right to make monetary assessments for violations of the regulations. When seen in the contract context this would give them the right to determine the amount of damages due them for a breach of the regulations by an employee.

Appellants argue that the plaintiffs agreed to the $1 to $10 range of assessments for decal violations when they entered into the employment situation. But since this has been shown to be a damages section we must inquire if the parties may agree to such damages in advance of breach. An argument can be made that the assessments are liquidated damages, on the ground that actual damages resulting from a breach would be difficult to determine. (Burnett v. Nolen, 336 Ill.App. 376, 84 N.E.2d 155.) However, there are several weaknesses to that approach in this case. First, there is no sum certain stipulated for specific offenses. The supervisor of the Motor Vehicle Division testified he made the assessments in the prescribed range' pursuant to an unwritten policy which he had helped formulate. Liquidated damages must generally be for a sum certain for a specified breach. (25 C.J.S. Damages § 101 (1966).) Secondly, liquidated damages are usually considered to be paid in lieu of performance and are not specifically intended to secure performance of the provisions. (25 C.J.S. Damages § 101(c) (1966).) In this case the scale for assessments is listed in a section of the regulations captioned “Sanctions,” which are obviously intended to be a warning to secure observance of the regulations.

Under the circumstances here present the assessments section is the equivalent to a penalty clause. The courts of Illinois lean toward this construction of provisions of this sort in contracts which exclude the idea of liquidated damages and rather treat such clauses as penalties which will not be enforced, the aggrieved party being able to recover actual damages only. (Giesecke v. Cullerton, 280 Ill. 510, 117 N.E. 777; Advance Amusement Co. v. Franke, 268 Ill. 579, 109 N.E. 471.) If the clause was inserted primarily to secure prompt performance of the agreement, it will be treated as a penalty. (Scofield v. Tompkins, 95 Ill. 190.) If the exact nature is doubtful it is the trend to consider it as a penalty. (Bauer v. Sawyer, 6 Ill.App.2d 178, 126 N.E.2d 844.) See Restatement of Contracts § 339 (1932). In this case, no evidence of actual damages to the University was presented to the court. Since no actual damage was shown, defendants cannot recover on their counterclaim, and they are not entitled to the set-off. County of Mercer v. Stupp Bros. Bridge & Iron Co., 115 Ill.App. 298.

It must again be noted that this decision is based upon the contractual relationship of the parties. We do not at this time make any judgment as to the right of the University to collect monetary assessments from students and others with whom it does not have such contracts.

For the foregoing reasons, the judgment appealed from must be affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SCOTT

license: Public Domain

text:
    Donald Bohannon, Plaintiff-Appellee, v. Mabion Schertz, Defendant-Appellant.
    (No. 73-167;
    Third District
    July 31, 1974.

      John L. Barton, of Barton & Barton, of Marseilles, for appellant.
    Robert L. Silberstein, of Peoria (Michael Heller, of counsel), for ap-pellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This appeal stems from an action in the circuit court of Peoria County where after trial by jury a verdict in favor of Donald Bohannon, the plaintiff, was returned against the defendant, Marion Schertz, who was a landlord who the jury found to be negligent in maintaining premises rented to and occupied by the plaintiff.

The defendant assigns as reversible error that the evidence showed that the plaintiff was guilty of contributory negligence; that erroneous instructions were given by the trial court; that the conduct of the trial judge denied the defendant a fair trial; that the defendant was denied the opportunity of making a closing argument and that the defendant was denied a fair trial both as to whether plaintiff was injured and as to the issue of damages.

We do not deem it necessary to set forth a recital of the facts which were adduced during the course of the trial since they are not pertinent to the disposition of this appeal. It is to be noted that the defendant during the trial appeared pro se and was never assisted by counsel. The defendant persisted in representing himself despite repeated admonitions from the trial judge that he would be better served by representation of counsel.

The law is well settled in Illinois that a defendant has the right to represent himself and to conduct his care without the aid of an attorney; however, if this is his desire he must comply with the same rules of proceedings as would be required of an attorney. See Brewer v. National Union Building Association, 64 Ill.App. 161, aff’d, 166 Ill. 221, 46 N.E. 752; Outlaw v. Young Men’s Christian Association, 84 Ill.App.2d 321, 228 N.E.2d 193; City of Chicago v. Thorandos, 88 Ill.App.2d 244, 232 N.E.2d 73.

Assuming for purposes of arguendo only that there is merit in one or more of the assignments of error that the defendant attempts to raise in this appeal we can only conclude that they are not properly before this court. We reach this conclusion because the record discloses that the defendant failed throughout the entire trial of his case to make any objections whatsoever to the plaintiffs evidence. A party desiring to preserve a question for review in the appellate court must make appropriate objections in the trial court. (Dupay v. New York Central R.R. Co., 110 Ill.App.2d 146, 249 N.E.2d 170; Senese v. City of Chicago, 88 Ill.App.2d 178, 232 N.E.2d 251.) A party is not permitted to he by and speculate on his chances for a verdict and raise objections which should have been raised during trial. (Weinrob v. Heintz, 346 Ill.App. 30, 104 N.E.2d 534.) The failure of a party to object during the course of a trial constitutes a waiver of the objection. McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708; Johnson v. Ward, 6 IlI.App.3d 1015, 286 N.E.2d 637.

The defendant having failed to take the necessary steps to preserve the record in the trial court for purposes of appeal cannot now come before this court seeking to review various issues to which he made no objections during the course of the trial. At first blush such rules of law cited herein may appear to be harsh; however, it was the defendant’s decision to represent himself pro se. He was adamant in his refusal to obtain counsel even though he was advised to do so by the trial judge and according to his own statement urged to do so by his wife. That he must now abide by the representation he afforded himself is indeed necessary, for to hold otherwise would play havoc with trial court and appellate court practice and procedure. A litigant cannot be permitted to try his hand at representing himself on the trial level and then, if an adverse result occurs, be permitted to come before a reviewing court and be permitted to retry his case on appeal.

While we recognize that the defendant’s representation of himself was incompetent, the record does not disclose that the trial of his cause could be characterized as a sham or farce. On the contrary, as the result of the efforts of the trial judge, an orderly trial ensued and the interests of the defendant were protected and safeguarded to the best of the court’s ability.

For the reasons set forth the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

DIXON and STOUDER, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    American Cyanamid Company, Plaintiff, v. Donald L. Rogers et al., Defendants—(Donald Rogers, Contemnor-Appellant.) Mt. Pulaski Farmers Grain and Elevator Company, Plaintiff, v. Don Rogers, Defendant—(Donald Rogers, Contemnor-Appellant.)
    (Nos. 12132-3 cons.;
    Fourth District
    July 25, 1974.

      Joseph W. Basola, of Woollen, Brown & Hawkins, of Decatur, for appellant.
    Dick H. Woods, Jr., and Gerald G. Dehner, both of Woods & Bates, of Lincoln, for appellee American Cyanamid Company.
    Harris & Harris, of Lincoln for appellee Mt. Pulaski Farmers Grain & Elevator Company.
   Mr. PRESIDING JUSTICE SMITH

dehvered the opinion of the court:

We focus our judicial telescope on two orders of the circuit court of Logan County sentencing Donald Rogers (hereafter referred to as defendant) to the county jail for contempt of court. The first is a sentence of 10 days for wilfully refusing to pay a monthly instaUment on a money judgment contrary to the provisions of an order entered by the court previously in a proceedings to discover assets. In the second case, the sentence was for 30 days for wilfully failing to appear in response to a summons issued in a citation proceedings to discover assets. The cases are consolidated for opinion in this court for the reason that we are asked to defineate the distinction between a civH and criminal contempt proceedings. Both plaintiffs were judgment creditors of the defendant and contend that the county jail sentences were imposed for criminal contempt. The defendant contends that the jail sentences were for civH contempt and that each order of commitment is invafid because (1) it provides no means whereby the defendant may purge himself of contempt and (2) since the debt is dischargeable in bankruptcy, an adjudication in bankruptcy brings to a jolting halt any proceedings in the State court instituted prior to the adjudication and thus the jail sentences shrivel up and die on the vine when an adjudication in bankruptcy takes place. We turn now to the specific cases before us in an effort to make clear those distinctions between a civil and criminal contempt which have been hazy and to lay to rest, if possible, those which are purely illusory.

The proper resolution of each case depends upon whether or not the defendant was guilty of civil or criminal contempt, and we focus our judicial microscope on that issue first. Speaking generally, criminal contempt consists of acts either committed in the presence of or outside the presence of the court which tend to impede its proceedings, lessen its dignity, disregard or abuse its processes or a refusal or failure to obey a valid order of the court, and is instituted to vindicate the authority or the dignity of the People, as represented by their judicial tribunal. Civil contempt, however, is a remedial process, utilized in the civil suit where one party has a right to require some act on the part of the defendant for his benefit and advantage and obtains an order of the court commanding that it be done and the other party refuses to do as directed. (Eastman v. Dole, 213 Ill.App. 364.) In a civil contempt proceeding, the party litigant alone is interested in enforcement and as said litigant is satisfied, the contempt proceeding comes to an end. A finding of willful contempt is a matter of fact to be determined by the trial court and it will not be disturbed on review unless there is a clear abuse of discretion. Janov v. Janov, 60 Ill.App.2d 11, 207 N.E.2d 691.

Although the formulation of the distinction between the two types of contempt is reasonably well established in the decisions, the application of the particular distinction to a given set of facts is often indistinct and most imperceptible. (People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417.) Indeed, it has been stated that the distinction can be found by looking at the purpose of the punishment imposed and if that purpose is purely punitive and imprisonment is for a definite term, then we have a criminal contempt. Whereas, when the punishment is remedial or coercive and one is committed to jail until compliance, it is a civil contempt. (Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600, 126 Ill. App.2d 418, 262 N.E.2d 125.) Thus the defendant argues in the instant cases that since the springboard for the citation in each case is the collection of a judgment, the purpose of the citation is merely an attempt to enforce the right of judgment creditors in which the dignity or authority of the court is not involved, or stating it another way, any insult to the dignity and power of the court is purely incidental and when the judgments are satisfied in one way or another, there is no basis for contempt. On the contrary, the respective creditors insist that since both penalties imposed were for a definite period of time, it is patent that we deal here in both cases with criminal rather than civil contempt in that in Cyanamid the punishment or sanction was purely punitive and in Mt. Pulaski the unjustified disregard of the court’s process had the necessary .effect of impeding and interrupting the orderly processes of our judicial system without any reasonable justification.

In each case, the judgment creditors instituted citation proceedings seeking to pursue State remedies supplementing or aiding the collection of their judgments. If this may be said to be the test of whether a contempt finding is civfi or criminal, then beyond any shadow of a doubt both of these are civil and not criminal. In such instance, we adhere to the conclusions stated in Todd v. Arbuckle, 1 Ill.App.3d 32, 272 N.E.2d 257, that an order finding a defendant in civil contempt of court must find that the conduct of that defendant is willful and further must contain within its four corners a statement of what the defendant must do to purge himself. In such cases, therefore, the contempt proceeding is designed to coerce a respondent to do that which he has been previously ordered to do for the benefit of the judgment creditor. In short, its purpose and its result are coercive, and punishment by fine or imprisonment is purely incidental. Not so in a criminal contempt. A criminal contempt is wholly punitive and its aid or assistance to a private party is purely incidental.

Within these distinctions, an examination of the record in each of these cases here clearly demonstrates that they are criminal and not civil. In the Mt. Pulaski case, the defendant was found guilty of a wiHful failure to appear in response to a citation notice. In so finding, the court stated: “I want to say that the court is not impressed with your attitude nor with your explanation. It appears to the court it was wiHful and justice would be best served by sentencing you to jail for a period considerably longer than 10 days.” It is thus clear that civil contempt was far removed from the mind of the trial court and that the sentence imposed was punitive and not coercive. Parker v. United States (1st Cir. 1946), 153 F.2d 66, 163 A.L.R. 379, clearly suggests that a fine imposed for a criminal contempt of court is not a debt provable or dischargeable in bankruptcy as distinguished from a compensatory fine imposed in a civil contempt. If a punitive fine is not dischargeable in bankruptcy, it would seem to foHow that a punitive jail sentence is likewise unaffected by bankruptcy. In particular this would be true where the contemptuous conduct of the respondent occurred prior to the filing of bankruptcy and most certainly prior to a discharge of the underlying obligation in bankruptcy. Bankruptcy did not affect the penalty here imposed.

In like manner in Cyanamid, the defendant had been paying $18 per month for about a year on a previous order entered in a citation-to-discover-assets proceeding. He missed July, August, and September, and the citation proceeding we now consider was filed. The evidence there disclosed that this defendant defaulted on his July payment at a time when he had ample funds to discharge it. The trial court limited the testimony on the hearing to the time from the default in July until the bankruptcy proceeding in October. The court’s findings were: “The court, with respect to the petition, finds that the defendant is in willful contempt of this court for failure to pay the July payment for 1972; that he had the sum of $800 he received during that period of time, notwithstanding some other employment income, which was not considered by the court and to which he was entitled as an exemption, but he had $800 and he could have paid the July payment. He is in willful contempt of court for failure to pay the July payment.” And the court then sentenced the defendant to 10 days in the county jail and specifically found that he was not in willful contempt of court for failure to pay the August, September and October payments. In short, the court found that the defendant willfully refused to pay the July payment when he had the funds and the ability to do so and that the failure to do so was contemptuous and unjustified.

It is thus clear that when we look to the proceedings in these cases, the order of the court was punitive and not coercive. It was imposing punishment for contumacious conduct which had already occurred, and nothing that the defendant could then do would purge him of contempt. When he refused to obey the citation, bankruptcy was not an intervening problem. When he refused to make the July payment when he had available funds, bankruptcy was no problem. Bankruptcy is an affirmative defense and may be pleaded or waived by the debtor. In the instant cases, had there been a discharge in bankruptcy, it would have been impotent to absolve the defendant from punishment for criminal contemptuous conduct antedating the adjudication in bankruptcy and subsequent discharge.

The judgments of the trial court in both No. 12132 and No. 12133 are correct and they should be and they are hereby affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ, concur.


author: Mr. JUSTICE CARTER

text:
    Freeman Coal Mining Corporation, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 73-188;
    Fifth District
    June 28, 1974.

      Richard R. Elledge, of Schradzke, Gould and Ratner, of Chicago, for petitioner.
    William J. Scott, Attorney General, of Springfield (Larry R. Eaton, Assistant Attorney General, of counsel), for respondents.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Freeman Coal Mining Company, a division of Material Service Corporation (successor in interest to Freeman Coal Mining Corporation, the original party), owns the Freeman Crown Mine, which was in operation from 1953 to 1971. During that 18-year period, a mine refuse or gob pile was formed in the processing of the mined coal. The pile eventually reached a height of 70 feet and covered approximately 70 acres. Rainfall upon the pile reacts with the materials in it to form acidic contaminated run-off, which drains into an unnamed tributary of the Macoupin Creek. In order to treat these discharges, Freeman constructed a coHection and treatment system in 1966 using a lime-treatment pond and settling pond at a capital expenditure of approximately $90,000 and a maintenance expense of approximately $25,000 per year.

Despite the system, contaminating discharges entered the unnamed tributary causing water poUution on May 20, July 8, July 23, and July 29, 1971. The parties stipulated to these findings. A complaint was filed by the Environmental Protection Agency (EPA) on December 3, 1971 (the mining operations had ceased on September 30, 1971), charging violations of section 12(d) of the Environmental Protection Act (IU. Rev. Stat., ch. 111%, § 1012(d)), depositing contaminants on land so as to cause a water pollution hazard; sections 12(a), (b) and (c), allowing pollutional discharges; and certain provisions of SWB-14, Sanitary Water Board regulations (selectively incorporated in the Act by section 49(c)). A hearing was held on September 22, 1972, at which time the parties entered into a stipulation of facts. During this period Freeman effected considerable repairs and improvements to the system, but no finding was made at the time of the hearing as to the quality and content of the discharges from the pile.

The Board entered its order on March 22, 1973, modified in part on May 17, 1973. The order found violations by Freeman of sections 12(a) and (d) of the Act, and Rules 203(a) and (b) of chapter 3, Water Pollution Regulations formerly incorporated in SWB-14. Freeman was ordered to cease and desist from such violations and to maintain its water-treatment system to meet effluent criteria of Pollution Control Board’s Rule 606 of chapter 4 and its Water Quality Standards of chapter 3. To assure conformity to these standards, Freeman was required to obtain a permit for the system and file monthly reports. A $25,000 performance bond was imposed as well as a $5,000 penalty for past violations. Freeman appealed the order, except to the extent it required a permit and filing of reports.

The issues on appeal are:

1. Whether the Illinois Environmental Protection Act imposes liability on a landowner for the discharge of contaminated rain water.
a. Whether such liability can be based on passive ownership of land.
b. Whether such liability can be based on acts occurring before they were proscribed.
2. Whether the standards and regulations of the Illinois Pollution Control Board (PCB) have been properly applied to petitioner; to what extent do they impose future obligations.
3. Whether the PCB has the authority to require that a performance bond be posted in this case.
4. Whether the evidence indicates a violation by petitioner for which the PCB may impose a monetary penalty.

Section 12(a) of the Act provides:

“No person shall:
Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act; * * Ill. Rev. Stat., ch. 111%, § 1012(a).

Petitioner’s argument is essentially that it cannot be held liable for “allowing” the discharges because such discharges are the result of rain water, a natural force beyond the control of petitioner, interacting with the gob pile, the bulk of which was created prior to July 1, 1970, the effective date of the Act. It is argued that, if petitioner is held liable, a new estate in land will have been created, since mere passive ownership of land has not previously in Illinois given rise to the imposition of personal obligations.

The controversy appears to center around the meaning of the word “allow.” Petitioner cites section 31(c) of the Act (Ill. Rev. Stat., ch. 111%, § 1031(c)) to support its contention that the Board must prove more than passive ownership:

“'In hearings before the Board under this Title the burden shall be on the Agency or other complainant to show either that the respondent has caused of threatened to cause air or water pollution * # ” (Emphasis added by petitioner.)

Thus it is argued that the absence of the word “allow” from the provision of the Act, which sets the standard of proof, is evidence that proof of “allowing” pollution is not sufficient to sustain a violation. However, section 31(c) continues:

“* * * or that the respondent has violated or threatened to violate any provision of this Act or any rule or regulation of the Board * * (Emphasis added.)

The reference to other provisions of the Act clearly includes the prohibition in section 12(a) against allowing water poUution.

Even if the Act does not make aUowing poUution a violation, petitioner contends this is an unconstitutional exercise of legislative power, citing Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972). Leet is cited as the only case in which “a governmental body did expressly attempt to inject such an affirmative obligation,” i.e., the imposition of personal liability for ownership of land, which the Supreme Court of Maryland found unconstitutional.

Leet involved a county zoning ordinance which permitted certain uses for land zoned Rural-Residential. Defendant was ordered to remove at his own expense abandoned automobiles which had accumulated on his property (other than residence) without his consent or knowledge, as constituting a violation of the ordinance. On review of the lower court order, the supreme court observed that the ordinance referred to volitional acts as comprising particular uses, i.e., the “establishment, operation or maintenance” of rubbish or junk in the R-R zone was a prohibited use. Some involvement of the landowner appears to be required, at least to the extent of knowledge or ratification. Without any such involvement:

“It would appear that the use that was thus being made of the property was by trespassers and not by the property owner or one privy with him.” 264 Md. 606, 610, 287 A.2d 491, 494.

In the instant case there is no question that petitioner had knowledge of the pollutional discharges flowing from its land and the gob pile it had created. However, there are other grounds for distinguishing Leet beyond lack of knowledge and consent. In Leet one of the arguments advanced by defendant was that tire order constituted a conficatory taking of his property without compensation or due process. In rejecting this contention the court distinguished between those actions of landowners which endanger the health or safety of their neighbors and those which are more properly classified as eyesores or blighted areas in the community:

We have no question but that the County would have properly been entitled to injunctive relief had the property owner used the property for the accumulation of rubbish or had suffered, permitted or consented to the accumulating and dumping of rubbish on his property. It must not be supposed that had the accumulation of rubbish in this case, although dumped upon the property by trespassers, constituted an immediate threat to the health or safety of the surrounding residents, the County would not have been entitled to a mandatory injunction requiring the property owner to abate the nuisance at his own expense. [Citation.] * * #
However, the record fails to reveal any immediate threat to health or public safety; * * * the offensive aspect of the accumulation of abandoned vehicles lay solely in its affront to the aesthetic sense." 264 Md. 606, 611-612, 287 A.2d 491, 495.

Clearly, pollution of the waters here is a threat to the health and welfare of the surrounding residents. There was some evidence at the hearing that the seepage had rendered nearby crop land nearly unproductive and, while the poHution in one sense did cause aesthetic damage, i.e., turn the water orange and turbid, it also seriously affected the fish and insect population of the stream and adjacent vegetation.

Respondent justifies the Act’s prohibition against allowing poHution as a legitimate exercise of the police power to regulate the use of land for protection of the public health, welfare and safety, citing Airtex Products, Inc. v. Pollution Control Board, 15 IIl.App.3d 238. In Airtex the petitioner was charged with violating SWB-5 and section 12(a) for discharging cyanide into the municipal sewer system, which had the effect of destroying organisms in the treatment plant that broke down wastes. Petitioner argued that it had an absolute right to use the sewer system, notwithstanding its failure to obtain a permit, by virtue of payment of a special assessment. The Fifth District Appellate Court disagreed:

“Even after a special assessment, the rule to be applied is that the right to connect to a sewer system of a municipality is subject to reasonable regulations imposed by the State and city.” (15 Ill.App.3d 238, 243.)

Petitioner was ordered to obtain a permit for the discharges and submit a plan for abatement.

Controlling on this issue is the case of Meadowlark Farms, Inc. v. Pollution Control Board, 17 Ill.App.3d 851, decided on February 22,1974, by this court. In Meadowlark the petitioner was charged with violations of section 12(a) and SWB-14 for discharges into Brushy Creek and its tributary caused by runoff from a mine refuse pile located on its property. Petitioner argued that it had not created the pffe, nor did it know of the pollutional discharges, thus it could not be required to control or prevent them. The court noted that petitioner admitted that seepage from the pile created a flow in the tributary (which normaUy flowed only when it rained), that fish died as a result of the seepage and that a division of petitioner’s parent company had initiated an abatement. The court found that:

“This unquestioned pollution proves sufficiently that the petitioner allowed the discharge within the meaning of section 12(a).” 17 Ill.App.3d 851, 861.

Petitioner’s admission of pollution in this case falls within the Meadowlark test. Paragraph 12 of the stipulation entered into on November 13, 1973, by the parties states:

“Freeman acknowledges that despite said system, malfunctioning and/or accidental discharges occurred which resulted in discharges of contaminants to the water of Illinois which caused water pollution on or about the following dates: [dates omitted].”

That the discharges were accidental and not intentional, or that they occurred in spite of petitioner’s efforts to prevent them, is not a defense, as is urged by petitioner. As the court stated in Meadowlark, “The Environmental Control Act is malum prohibitum, no proof of guilty knowledge or mens rea is necessary to a finding of guilt.” (17 Ill.App.3d 851, 861.) The facts of petitioner’s construction of a treatment facility and subsequent improvements thereto go to mitigation, not to the primary issue of liability.

We find support for our view in other jurisdictions. For example, in Akin & Dimock Oil Co. v. State, 95 Okla. Crim. 218, 243 P.2d 384 (1952), an employee of defendant allowed a quantity of oil to escape, and a heavy rainfall washed the oil into a nearby creek. Defendant was charged with violating a criminal statute which prohibited the discharge or permitting discharge of crude oil in the water of the State. The court, in rejecting defendant’s argument that the discharge was caused by an act of God beyond its control, held defendant liable because the legislation imposed a duty to take all prudent measures to prevent the pollution.

We note also several cases striking the defense that treatment to prevent polluting discharges is so costly as to impose a financial burden. Department of Health v. Passaic Valley Sewerage Com., 100 N.J. Super. 540, 242 A.2d 675 (1968), aff'd, 105 N.J. Super 565, 253 A.2d 577 (1969); Sanitary Water Board v. Wilkes-Barre, 109 Pa. Super. 492, 185 A.2d 624 (1962); United States v. Vulcan Materials Co., 320 F.Supp. 1378 (D.N.J. 1970).

Section 12(d) of the Act provides:

“No person shall:
* # #
(d) Deposit any contaminants upon the land in such place and manner so as to create a water pollution hazard.”

Petitioner argues that application of section 12(d) in this case is retroactive and unconstitutional; that the gob pile was created over a period of 18 years, only 15 months of which was after the effective date of the Act, July 1, 1970; and that, since the refuse added to the pHe over those 15 months had only a de minimis effect on the polluting discharges, petitioner is in effect being held liable for the creation and impact of the entire gob pile.

Petitioner cites three cases in support of this argument, which state the traditional rule regarding retroactive legislation. Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105 (C.C.N.H. 1814), is included for the classic formulation by Justice Story, that a law is retrospective if it creates a new obligation, imposes a new duty or attaches a new disabihty in respect to past transactions.

In Theodosis v. Keeshin Motor Express Co., 341 Ill.App. 8 (1950), the court denied retroactive application to a statute which increased the maximum amount recoverable in an action for wrongful death from $5,000 to $10,000. But in its opinion the court distinguished one type of legislation which may be given retroactive effect without violating due process:

“When courts are examining legislation relating to matters of general pubHc interest, such as election laws, roads, and tax validations, they apply the laws retroactively, even though it may affect a substantive right. On the other hand, in their relationship with each other as individuals, men should be able to assess with some assurance the results of their conduct.” 341 Ill.App. 8, 24.

Arguably at least the Act falls within the first category as relating to matters of general public interest.

Petitioner also cites Barrett v. Guaranty Bank & Trust Co., 123 Ill.App. 2d 326 (1970), in which a construction loan was made in 1960 at a usurious rate to be paid over a 6-year period. In 1963 the usuary law was amended to permit recovery of punitive damages as well as the amount of interest paid. Plaintiff sought imposition of a penalty for the period of 1963-1966, arguing that it constituted a separate violation. The court declined to give tire amendment retroactive application on grounds that usuary occurs at the time the loan is negotiated, not as the interest is paid. In contrast, poHution occurs at the time of discharge, not at the time the pollution source is created.

We agree with respondent that the Act is not applied retroactively in this case; first, petitioner admitted in paragraph 12 of the stipulation to water poHution on four dates in 1971, all of which were after the effective date of the Act; second, petitioner stipulated in paragraphs 3, 4, and 5 to the generation of mine refuse from the coal-preparation plant and its addition to the gob pile for 15 months after July 1, 1970, which is a clear violation of section 12(d) itself.

In People v. Jones, 329 Ill.App. 503 (1946), the court held that the mere maintenance of a situation legal before the passage of prohibitive legislation could give rise to liability after it. Liability in Jones was predicated on section 221 of the Criminal Code of 1874 (Ill. Rev. Stat. 1945, ch. 38, par. 466(10)), which stated:

“It is a public nuisance:
# # #
10. To permit any well drilled for oil * * * to remain unplugged, after such well is no longer used for the purpose for which it was drilled.”

Defendant argued unsuccessfully that this provision was inapplicable to him since the well he had failed to plug was drilled and abandoned 18 months before the effective date of the statute. Cited in Jones, 329 Ill.App. 503, 524, is the classic case of Chicago & A. R.R. Co. v. Tranbarger, 238 U.S. 67, 59 L.Ed. 1204, 35 S.Ct. 678 (1914), which involved the passage of legislation compelling railroads to construct transverse openings in roadways to facilitate drainage. Defendant contended it was not thereby under a duty to install such openings in the embankment which had been laid prior to the statute. The court did not agree:

“The argument that, in respect to its penalty feature the statute is invalid as an ex post facto law is sufficiently answered by pointing out that the plaintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the act of 1907, but because after that time it maintained the embankment in a manner prohibited by that act.” 238 U.S. at 73, 59 L.Ed. at 1209.

Again, we feel that the opinion in Meadowlark Farms, Inc. v. Pollution Control Board, 17 Ill.App.3d 851, is in point, where the court says:

“Petitioner’s argument that the Environmental Protection Act as applied to it is retroactive and an ex post facto law is simply not supported by the evidence. The complaint charged the petitioner with allowing pollutional discharges from its property on or subsequent to July 1, 1970, and continuing through the close of the record in this case. The Environmental Protection Act went into effect on July 1, 1970. Therefore the violations which petitioner was found guilty of allowing to occur, took place after the Act was in force. Thus the Act is not retroactive as applied to the petitioner.” 17 Ill.App.3d at 862.

Petitioner argues that chapter 4, Mine Related Pollution Regulations, has been too broadly construed in this case by the Board, rendering its application here unconstitutional under Ill. Const. (1970), art. 1, secs. 2,16, and U.S. Const, amend. XIV. The guarantee of due process is modified by the reasonable exercise of the police power by the legislature to regulate or prohibit anything harmful to the welfare of the people. (People v. Wilson, 4 Ill.App.3d 766.) Article 1, section 16, prohibits ex post facto laws, as well as those impairing the obligation of contract. That contract rights are subject to reasonable and legitimate exercise of the police power by the State is well settled. Meegan v. Village of Tinley Park, 52 Ill.2d 354.

The cases cited by petitioner are inapposite, as they appear only to restate the traditional rules on retroactive application of legislation. Orlicki v. McCarthy, 4 Ill.2d 342 (1954), held that the limitation provision of the Dram Shop Act could be given retroactive effect because of its procedural character. In Champaign County Bank & Trust Co. v. Jutkins, 29 Ill.2d 253, 256 (1963), the question was whether an amendment making wills revocable by divorce in the absence of a contrary intent should be made applicable to a will executed before its enactment, where the divorce and probate occurred after it. The court denied retroactive effect to the provision.

The crux of petitioners argument is the applicability of the chapter 4 regulations, adopted in May, 1972, to this gob pile. Petitioner cites Rule 401 as evidence that chapter 4 should not be so applied:

“The operator shall dispose of mine refuse generated after the effective date of these Regulations in accordance with a plan * # # »

However, Rule 401 continues:

“# « * submitted as part of a permit application hereunder and approved by the Agency.”

Petitioner, in filing notice of appeal, did not seek review of paragraph 3 of the Board’s order, which required it to obtain a permit for the water-treatment system; thus, any questions involving Rule 401 are rendered moot on this appeal.

Respondent argues that to the extent the Board applied chapter 4 to Freeman it was proper and reasonable. The Board distinguished two types of mine refuse, gob and sludge, which is included in the definition of mine refuse in chapter 4, Rule 103(i). Rule 201 makes it unlawful for an operator (Rule 103(n): anyone who engages in mining or generation or disposal of mine refuse) to dispose of mine refuse 6 months after the date of the Regulations without a permit from the Agency. Since Freeman is engaged in the disposal of refuse, i.e., sludge, as a by-product of the treatment system, Rule 201, as well as Rule 401, are applicable. There is no real controversy, however, because of petitioner’s failure to appeal paragraph 3 of the order.

Petitioner contends that language in the Board’s opinion indicating that it might be required in the future “to take further pollution abatement action,” possibly to include covering the mine-refuse pile, wrongfully invokes standards in Rule 401(c)(2), (e) and injects uncertainty into petitioner’s future.

This statement by the Board makes no reference to the refuse pile. Furthermore, the Board stated clearly that:

“The 70 acre mine refuse pile was created in its entirety before the effective date of the Mine Related Pollution Regulations, and therefore is not covered by those Regulations.”

The language which follows contains the implication that, if Freeman’s system is not successful in reducing pollution even after improvements and repairs, further action may be necessary. Freeman will have the opportunity to litigate these issues if and when they arise in a concrete controversy. In Gromer Supermarket, Inc. v. Pollution Control Board, 6 Ill.App.3d 1036, plaintiffs were denied an injunction to restrain the Board from holding hearings on proposed beverage-container regulations on grounds that such regulations, if adopted, would be unconstitutional. That case appears to be controlling on this issue:

“The complaint alleges that the Board announced that it had authority to adopt a regulation as proposed by the [Solid Waste Management] Task Force, but, no such regulation has been adopted. The situation simply is that the Board has scheduled hearings in an effort to determine whether or not this proposed regulation should be adopted. No person can predict the future course of action which the Board will take and whether or not it will, in fact, adopt the [recommended] regulation in any form. Under circumstances of this kind, [we] hold that the controversy between these parties is not presently ripe for adjudication.” 6 IlI.App.3d 1036, 1041.

Petitioner argues that chapter 3 and 4 standards should not be applied “retroactively” to its treatment system. Rule 203 of chapter 3 prescribes general water-quality standards which apply, except as otherwise provided, to “all waters of the State.” Clearly the unnamed tributary falls within this definition. Rule 606 of chapter 4 sets somewhat less stringent effluent criteria for contaminants released into water from mine-related operations. Subsection (b) of the rule requires compliance for new sources on the effective date of the regulations and for existing sources within 6 months thereafter. As Freeman’s system is an existing source, compliance was required as of 6 months after May, 1972, meaning that chapter 4 standards were applicable as of March, 1973, the date of the order, and at the present time.

The opinion of the Board established a mixing zone extending the length of the unnamed tributary to permit dilution of effluent from Freeman’s system in order to comply with stricter chapter 3 Water Quality Standards. Petitioner contends this is an arbitrary and unreasonable exercise of discretion by the Board since the stream is intermittent and occasionaHy dry and would sometimes provide no dñution at all.

Rule 201(a) of chapter 3 specifically leaves the determination of the size of the mixing zone to the discretion of the Board, subject to certain governing principles. Six criteria are set forth, which must be taken into consideration:

1. The character of the body of water.
2. The present and anticipated future use of the body of water.
3. The present and anticipated water quality of the body of water.
4. The effect of the discharge on the present anticipated future water quality.
5. The dilution ratio.
6. That nature of the contaminant.

Petitioner does not attempt to show that these factors were not taken into account. Indeed, the Board’s opinion observed that the size of the proposed mixing zone was intended to avoid pollution of the Macoupin Creek, a relatively healthy body of water. It is true that paragraph 34 of the stipulation implied that at least part of the creek would be used as a mixing zone, but this alone is not sufficient to overturn a finding of the Board.

The familiar rule of review of agency decisions under the Administrative Review Act (Ill. Rev. Stat., ch. 110, § 264 et seq.) is that findings of fact by the agency are prima facie correct, reviewable only to determine if they are supported by the evidence, and reversible only if they are contrary to the manifest weight of the evidence. (Bruce v. Department of Registration & Education, 26 Ill.2d 612; Lo Poccolo v. Department of Registration ir Education, 5 Ill.App.3d 1077.) Courts wiH not interfere with discretionary authority vested in an agency unless such authority is exercised in an arbitrary or capricious manner. (People ex rel. Stephens v. Collins, 35 Ill.2d 499.) Deference is given to findings of fact by an agency with specialized expertise and, when there is ground for legitimate differences of opinion, the agency decision wHI not be disturbed. (Motorola, Inc. v. Illinois Fair Employment Practices Com., 34 Ill.2d 266; Brown v. Board of Zoning Appeals, 21 Ill.App.2d 273.) In light of the above rules, the determination by the Board of an appropriate mixing zone is sustained.

Paragraph 6 of the March 22, 1973, order requires petitioner to post a $25,000 performance bond as part of the general plan of pollution abatement. Paragraph 29 of the stipulation stated that the estimated cost of maintaining the treatment system would be in excess of $25,000. The rationale for the requirement is stated in the opinion:

“Because of the uncertainties involved in Freeman’s control program, we are requiring Freeman to post a performance bond or other security in the amount of $25,000. This security shall be released by the Agency when and if the Agency certifies that Freeman’s discharges are meeting the effluent criterial in Rule 606 of the Mine Related Pollution Regulations, and the Water Quality Standards in Chapter 3: Water Pollution Regulations.”

The imposition of a bond is authorized by section 33(b) of the Act, which provides:

“If such order includes a reasonable delay during which to correct a violation, the Board may require the posting of a sufficient performance bond or other security to assure the correction of such violation within the time prescribed.”

Petitioner maintains that the requirement of a bond was improper since there was no evidence at the time of the order that the treated discharge was in violation of applicable Board standards and, further, that the terms under which the bond would be released were vague and indefinite, to the prejudice of petitioner. But, petitioner failed to present evidence to the Board to show that the system was in compliance with chapters 3 and 4, and in the absence of such evidence, along with the precarious history of malfunctioning in the system, the uncertainty of such compliance justified imposition of the bond.

Petitioner argues that the imposition of a monetary penalty by the Board is unauthorized, citing Southern Illinois Asphalt Co. v. Environmental Protection Agency, 15 Ill.App.3d 66 (1974), as controlling. That case has, in effect, been overruled by the decision of the Illinois Supreme Court in City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, which held constitutional the legislative grant to the Board of the power to impose fines under section 33(b).

After an exhaustive review of relevant State and Federal authorities and learned treatises and reports, the court in Waukegan held that:

“There are adequate standards provided and safeguards imposed on the power given the Board to impose these penalties.” 57 Ill.2d at 184.

The court specifically pointed out that the Act separates the investigative prosecuting body (Environmental Protection Agency) from the adjudicative body (Pollution Control Board); that notice must be given of complaints filed with the Board; that respondents before the Board have the right to a public hearing, to counsel, to cross-examine opposing witnesses, to subpoena witnesses, and to the same rules of evidence as apply in civil proceedings; that Board orders are reviewable under the Administrative Review Act; and, 'finally, that section 33(c) of the Act requires the Board to consider certain factors in reaching its decision:

“(c) In making its orders and determinations, the Board shall take into consideration aH the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the Ieath, general welfare and physical property of the people;
(ii) the social and economic value of the poHution source;
(iii) the suitabHity of unsuitability of the poHution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practibility and economic reasonableness of reducing or eliminating the emissons, discharges or deposits resulting from such poHution source.”

Petitioner argues there is no finding in the opinion as to these factors and therefore section 33(c) has not been complied with as required.

The Board is not required to make express findings or to require proof by the Agency relative to each of the factors enumerated in section 33(c), and a prima facie showing by the Agency is sufficient to cause the petitioner to bring forth facts and circumstances bearing upon the reasonableness of its conduct in allowing the inadvertent escape of the offending drain-off. (Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 720-1; Airtax Products, Inc. v. Pollution Control Board, 15 Ill.App.3d 238, 244.) Considering all the facts and circumstances concerning the four occasions with which petitioner is charged with violating the various provisions of the numerous enactments involved, there is a paucity of evidence to indicate that the Board complied with all the provisions of section 33(c) in determining a proper penalty. Obviously the Board, which is limited in its penalty powers to $10,000, has not given enough attention to a consideration of a portion of the facts and circumstances, and has chosen to ignore the numerous mitigating facts and circumstances disclosed in the record, to wit: particularly such facts as the size of the pile, its creation and existence long before the Act and numerous rules applicable became effective, the efforts of petitioner to control the situation years before and its continuous efforts to avoid pollution, the expenditures made in such effort and the inadvertance of the violations in light of the physical circumstances.

Obviously, too, the Board has ignored the fact that by its order for a performance bond compliance with the Act and any rules and regulations made by the Board wffl, as a practical matter, be assured, and that if the plan for preventing pollution which is approved by the Board does not prove to be adequate to serve the purposes of the Act, petitioner wiH become subject to further orders of the Board and penalties imposed.

In Meadowlark Farms, a case simffar in nature, but in which practically no attempt had been made to avoid pollution by the property owner, the Board imposed a penalty of less than $200.

As a result, we conclude the Board’s action in imposing the penalty in this case in the amount of $5000 was arbitrary and not supported by the findings made nor by the facts and circumstances present. As a result, we modify the amount of the penalty imposed by reduction of such penalty of $5000 to a penalty of $500.

For the reasons assigned the order of the Pollution Control Board is affirmed, as modified.

EBERSPACHEB and CREBS, JJ., concur.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd Mitchell, Jr., Defendant-Appellant.
    (No. 57731;
    First District (3rd Division)
    July 3, 1974.

      Arthur H. Grant, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Floyd Mitchell, Jr., was convicted in a bench trial of the offenses of battery and theft: He was sentenced to the Illinois State Farm at Vandalia for a term of 10 months on the theft and 6 months, concurrent, on the battery. Defendant appeals and contends that:

1) He was not proved guilty beyond a reasonable doubt;
2) The trial court should have granted a new trial;
3) The mittimus should have been corrected, as the term of the sentence was vague and confusing;
4) The sentence should be limited to one offense, as the charges arose out of the same conduct;
5) The complaints were fatally defective; and
6) Defendant did not knowingly and understandingly waive a trial by jury.

The record shows that the alleged battery and theft occurred at about 10 P.M. on May 16, 1972, in the 3600 block of South State Street in Chicago. Defendant was arrested about a block away from the scene of the crime approximately 30 minutes later. Defendant, aged 17, was brought to trial on the following day, May 17, 1972, less than 24 hours after the commission of the alleged crimes. Complaints were originally filed charging him with the offenses of armed robbery, attempted armed robbery, and battery. At the trial the State nolle prossed the felony charges of armed robbery and attempted armed robbery, and filed reduced charges of theft and attempted theft.

The following proceedings took place at the outset of defendant’s trial on May 17, 1972:

“The Clerk: Floyd Mitchell, defendant; John Campbell, complainant.
The Court: Floyd Mitchell?
Defendant: Yes, sir.
The Court: Is the State ready today?
Mr. Mrizek: Yes, Judge, we are ready today.
The Court: Public defender is appointed. Pass it for the public defender.
[Thereupon, this cause was momentarily passed after which the following proceedings were had.]
The Clerk: Floyd Mitchell, defendant; John Campbell, complainant.
The Court: Is the State ready?
Mr. Mrizek: The State is ready.
The Court: Is the defense ready?
Mr. Goldberg: Ready, Judge.
The Court: To the charge of armed robbery, are you ready for a hearing?
Mr. Mrizek: At this time, the State is moving to file a reduced charge of attempted theft and theft. As to the attempted armed robbery signed by the complainant, Vickey Mays (name spelled phonetically), an armed robbery signed by the complainant, John Campbell, it will be motion State nolle.
The Court: Nolle on the attempted and the armed robbery.
Mr. Goldberg: The defense is ready for trial, and the plea is not guilty.
The Court: Jury waived?
Mr. Goldberg: Jury is waived.
The Cotut: To the reduced charges, the plea is not guilty, jury waived * *

The matter then proceeded to a trial without a jury. The complainants, John Campbell and Vickey Mays, testified for the State, and the defendant and the arresting officer, Samuel Jones, testified for the defendant. Defendant was discharged as to the charge of attempted theft from Vickey Mays and was found guilty of the charges of battery and theft as to John Campbell. The court pronounced sentence: ‘Ten months Van-dalia, concurrent. Six months on the battery, four months on the theft.”

On June 2, 1972, defendant was represented by private counsel and filed a motion for a new trial which was denied. On June 19,1972, another motion for a new trial was made by defendant wherein he argued the same grounds as alleged in this appeal. Defendant filed a further motion to vacate and correct the mittimus which had issued. At the hearing on defendant’s post-trial motion, the following testimony was adduced on behalf of defendant.

Raymond Billings testified that he was a witness to the incident and that defendant did not participate in the alleged theft and battery. James Eggleston, one of defendant’s teachers, testified to the good reputation of defendant in the community.

Defendant testified that he did not know what a jury waiver meant until after he was incarcerated following the trial; that he was tried approximately 15 hours after his arrest; that he did not know he was entitled to a jury trial; that he did not know what a jury was and had never been in court before; that he did not know he was waiving or entitled to a jury trial; that no one explained to him what a jury was; and that during the brief conversation with the Public Defender at the trial, he merely told counsel what had happened and counsel asked if he was ready for trial. He admitted telling the Public Defender that he was ready but denied that the Public Defender discussed a jury trial with him at that time. Defendant stated that the entire conversation lasted a minute and a half or 2 minutes.

C. B. McClinton, owner of a pool hall at 37th and State Streets, testified that defendant was in his establishment until approximately 9:40 P.M. on May 16, 1972. Larry Edwards testified that he observed the occurrence and that the person who assailed and robbed the victim had what appeared to be an army coat and that he did not see defendant that evening until he was in the custody of the police.

The court denied both of defendant’s motions but observed, in reference to the motion to correct the mittimus, “I sentenced to ten months in Vandalia on the theft, and six months, concurrent, on the battery.”

First, we consider defendant’s contention that the battery and theft complaints were fatally defective. Defendant’s contention is without merit. He waived the issue of failure to arraign on the battery charge by not objecting to such failure at trial. (Ill. Rev. Stat. 1971, ch. 38, par. 113 — 6.) Contrary to defendant’s assertion, the record affirmatively shows that the battery complaint was verified. As shown above, the State nolle pressed the armed robbery and attempted armed robbery and moved to file reduced charges of attempted theft and theft. The State filed the complaints instanter. Since the battery complaint alleged that defendant “intentionally, without legal justification, caused bodily harm,” and offense under section 12 — 3(a)(1) (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3(a) (1)) was properly alleged. People v. Abrams (1971), 48 Ill.2d 446, 271 N.E.2d 37, cited by defendant, is distinguishable from the case before us in that in Abrams the complaint failed to allege an essential element of the offense.

We next consider defendant’s contention that he did not knowingly and understandingly waive a trial by jury.

Whether or not a waiver of the right to trial by jury is knowingly and understandingly waived must be decided on the particular facts of each case and cannot be determined by any precise formula. (People v. Gay (1972), 4 Ill.App.3d 652, 654, 281 N.E.2d 738; People v. Baker (1970), 126 Ill.App.2d 1, 4, 262 N.E.2d 7.) The trial court is charged with the duty to see that the election of an accused to forego a trial by jury is expressly and understandingly made. That duty cannot be perfunctorily discharged. People v. Surgeon (1958), 15 Ill.2d 236, 238, 154 N.E.2d 253, 255.

In People v. Sailor (1969), 43 Ill.2d 256, 253 N.E.2d 397, an adult defendant was represented by private counsel who advised the court in defendant’s presence that trial by jury was being waived. The court found that the defendant impliedly, knowingly, and understandingly waived trial by jury by her acquiescence in the actions of her private attorney.

In People v. McClinton (1972), 4 Ill.App.3d 253, 280 N.E.2d 795, counsel was appointed for defendant immediately prior to trial, with no time for deliberation between counsel and defendant. In holding Sailor applicable the court there stated that Sailor was not limited in its application to defendant represented by private counsel, and that there was nothing in Sailor which would require, as a condition precedent to a valid jury waiver, that the record affirmatively reflect that a defendant and his appointed counsel were afforded an opportunity for consultation.

The State places reliance on People v. Gay (1972), 4 Ill.App.3d 652, 281 N.E.2d 738, in which the court held that the defendant effectively waived his right to a trial by jury. However, there the record showed that defendant was advised by the court as to his right to a trial by jury, but it did not show when the appearance of the Pubhc Defender was filed in behalf of defendant. The court determined that the record did affirmatively and unmistakenly show that the case was ably tried by defendant’s lawyer and that the attorney displayed a thorough familiarity with the facts and personal life of the defendant, which must have come from long acquaintance with his client or from a rather extended conference. In addition, tire record showed that defendant was a resourceful person of some intelligence, was no newcomer to criminal proceedings, addressed the court in his own behalf, and never attempted to repudiate his waiver until upon appeal. The court held that the rule in Sailor applied. The facts of the instant case are distinguishable.

Very similar to the instant case is People v. Boyd (1972), 5 Ill.App. 3d 980, 982, 284 N.E.2d 699, in which a pubhc defender was appointed immediately after the case was called for trial. Although the record showed that defendants conferred with appointed counsel prior to proceeding, the record neither affirmatively showed a sufficient recess in the proceedings. £o.r. defendants to have a meaningful consultation with the newly-appointed counsel, nor that the defendants knew or were informed of their right to trial by jury. The court, in holding that the jury waiver was not made knowingly or understanding^, held that the rule of Sailor does not apply where a defendant appears in court without counsel and is furnished one the moment when he goes to trial and the record does not show that he knew or was informed of his right to trial by jury.

Likewise, in People v. Baker (1970), 126 Ill.App.2d 1, 262 N.E.2d 7, relied upon in Boyd, the court stated at page 5: “Where a defendant, as did the defendant here, appears in court charged with a serious offense, and the record does not affirmatively show he knew or was informed of his right to trial by jury, his waiver of jury is not made knowingly and understandingly. [Citations.]” In a supplemental opinion filed after the decision in Sailor, after distinguishing Sailor on its facts, the court emphasized that the record did not show that the recess or pause in the proceedings furnished defendant with a meaningful opportunity to consult with his newly-acquired lawyer. The court observed that a brief conference between counsel and client immediately prior to trial is usually nothing more than a hurried exchange of words.

In the recent case of People v. Murrell, 20 Ill.App.3d 789, 314 N.E.2d 467, the offense, the arrest, the trial and the filing of a notice of appeal in the span of 1 day demonstrated that as in Boyd and Baker, counsel have to have been appointed just prior to going to trial. The court held the jury waiver invalid in the absence of any affirmative showing or any basis to presume that defendant know or was informed of his right to trial by jury. In People v. Brodus, 19 Ill.App.3d 840, 313 N.E.2d 511, the State maintained that because the record indicated a period of time between the appointment of counsel moments before and counsel’s entering a plea of not guilty and waiving the right to a jury trial, the defendant could not contend that he did not understand the jury waiver. The court stated: “In order to adhere to the State’s theory we would have to assume that during the interval of time the defendant’s attorney spoke with defendant and advised him of his right to a jury trial. However, no such assumption can be made because we are confined in making our judgment to what is affirmatively show by the record.”

Neither can we make such assumption here. The record in the instant case discloses that the defendant was only 17 years of age and, had had no prior experience in court. A Public Defender was appointed as his counsel the moment defendant went to trial, initially charged with complaints which included two felonies. There is nothing to indicate defendant’s participation in the reduction of the charges. He was not advised by the trial court of the right to counsel of his own choice nor of the right to a trial by jury. A trial by jury was not explained on the record which expressly shows that the matter was being “momentarily passed.” In his motion for a new trial defendant then raised the question of a proper waiver of jury, and his testimony thereat that he consulted with appointed counsel for no more than “two minutes” before the cause went to trial is uncontradicted. Furthermore, at the hearing of the motions for néw trial several witnesses testified on behalf of defendant that he was not a participant in the crime of which he was accused, unlike the thorough familiarity disclosed by the record in People v. Gay, supra.

In the absence of an affirmative showing that the defendant has been advised of the meaning of a trial by jury and that he had a right to trial by jury, the record must affirmatively show that prior to the trial there was a meaningful opportunity for defendant to consult with his attorney. (People v. Davis (1971), 2 Ill.App.3d 106, 262 N.E.2d 134; People v. Gay (1972), 4 Ill.App.3d 652, 281 N.E.2d 738; People v. Boyd (1972), 5 Ill.App.3d 980, 284 N.E.2d 699; People v. Baker (1970), 126 Ill.App.2d 1, 262 N.E.2d 7; People v. Murrell, 20 Ill.App.3d 789, 314 N.E.2d 467; and People v. Brodus, 19 Ill.App.3d 840, 313 N.E.2d 511.) We find that the record does not affirmatively so show, and hold that the defendant did not knowingly and understandingly waive a trial by jury.

It is not necessary to discuss any of the other contentions made by the defendant on appeal.

For the reasons herein set forth, the judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Davis, Defendant-Appellant.
    (No. 58281;
    First District (2nd Division)
    July 8, 1974.

      Jerome Rotenberg, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial defendant, Bobby Davis, was found guilty of two counts of armed robbery and sentenced to serve 5 to 8 years imprisonment. On appeal defendant contends that his arrest was unlawful; that the court erred in not suppressing the identification testimony; that his guilt was not established beyond a reasonable doubt; and, alternatively, that his sentence exceeded the minimum term pursuant to the Unified Code of Corrections.

The evidence, in selective part, revealed that Davis and two codefen-dants, William Turner and James Green, armed with a sawed-off shotgun and revolvers, perpetrated an armed robbery of a bartender and his patrons in a tavern located at 3000 South Canal Street, Chicago. In the course of the robbery, one of the codefendants grabbed a box of cigars from behind the bar, emptied the cigars onto the floor, and proceeded to fill the emptied box with $180 and two checks which were taken from the cash register. Cash and other items were also taken from patrons.

One patron, Carole Diehl, testified that when the three defendants entered the tavern, she immediately recognized them as the same three men she had seen sitting in a white Ford station wagon parked outside the tavern 5 minutes earlier. As a result, she was able to give police, who arrived at the scene shortly after the occurrence, a detailed description of the get-away car, as well as a general physical description of the perpetrators. The officer who interviewed Mrs. Diehl immediately sent a flash message directly to all police units in the area describing the three assailants who “were riding in a 1961, possibly a 1961 to 1964 Ford station wagon white in color.”

Police Officers Dennis McGuire and Edward Knizer received the flash message while driving east on 51st Street. As they approached the intersection of 51st and Princeton Avenue, they observed a white Ford station wagon with three male passengers, matching the description in the flash message. They endeavored to stop the station wagon by turning on the mars light on their patrol car. The men in the station wagon did not respond, so the officers continued their pursuit for approximately two more blocks where the vehicle was finally curbed.

As soon as the station wagon was stopped, the police officers alighted with their guns drawn. Green then emerged from the station wagon and came toward them. Officer McGuire directed Green to place his hands on the hood of the squad car. He then patted down Green’s outer garments and discovered a loaded revolver in his right coat pocket. While Officer McGuire was frisking Green, Officer Knizer approached the station wagon and ordered Turner and Davis to get out of the car with their hands above their heads. As Turner opened the front door and commenced to climb out, the officer observed a sawed-off shotgun on the floor, along the front seat. From the station wagon, Officer Knizer retrieved the shotgun, a cigar box containing approximately $300 in currency, checks and money orders, and a lady’s brown purse, containing papers and a bank book bearing the name “Katherine Vassallo.” At trial, the victims identified the recovered shotgun as the one used by Turner, and identified the various items found in the station wagon as those taken from them during the robbery. All three defendants were identified by the victims both in lineups and in court. However, as is usual in robberies of multiple victims with multiple perpetrators, not all of the victims could identify every perpetrator. Other victims identified the co-defendants in a lineup, while one victim, Robert Neuman, identified defendant Davis.

Defendant neither testified on his own behalf nor proffered a defense.

Defendant initially contends that the court erred in denying his motion to quash the arrest in that the arrest was made without probable cause. In support thereof, defendant presents a twofold argument: first, defendant characterizes the testimony of the arresting officers as indicating that the vehicle in which the defendants were riding was stopped principally for a traffic violation and only partly on suspicion of other criminal activity; and, secondly, the description of the vehicle and its occupants was of such a general and vague nature that it “could have fit thousands of vehicles and persons in the Chicago area.”

Defendant’s first argument distorts the record and is wholly without merit. At trial, it was elicited that while pursuing the vehicle in which defendant was riding, the arresting officers observed that the taillights of the station wagon were not properly functioning. From this testimony, defendant draws the conclusion that the arrest was based upon a traffic violation. However, in contradiction of defendant’s hypothesis, the officers testified that the traffic violation was merely “coincidental” and that the reason for stopping the white Ford station wagon was that the officers believed it to be the vehicle described in the flash message. The testimony is dispositive of defendant’s first point and leads to his second contention that the information gained by the officers through the flash message was wholly insufficient to constitute probable cause. We disagree.

It is well-settled that the test of probable cause to arrest is whether a reasonable and prudent man in possession of the knowledge which the arresting officer possessed would believe the person to be arrested guilty of a crime; and the conclusions drawn by the officer should be judged upon the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Macias, 39 Ill.2d 208, 234 N.E.2d 783; People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466.

Turning from this general proposition to the record before us, the following considerations are relevant. Minutes after the incident, which occurred at approximately 1:20 A.M. on a Sunday morning, the arresting officers received a flash message concerning the robbery at 3000 South Canal Street; it gave a general description of three male Negroes who were travelling in a 1961 to 1964 white Ford station wagon. Shortly thereafter, on 51st and Princeton Avenue, the officers spotted a white Ford station wagon occupied by three black men, heading away from the direction of the robbery.

Given the immediacy of the flash message, the matching descriptions of the vehicle and its occupants, and the proximity in time and place to the robbery, the circumstances of this case clearly demonstrate that the officers obviously had probable cause to arrest. People v. Buck, 92 Ill.App.2d 16, 235 N.E.2d 827; People v. Thompson, 133 Ill.App.2d 184, 273 N.E.2d 30.

It is next contended by defendants that the trial court erred in denying defendants’ motion to suppress the identification testimony. From the record, it appears that within an hour or less after the robbery a lineup was provided and defendant was immediately identified by one of the victims. Defendant urges error in that he was the only one in the lineup with a goatee and thus the identification was suggestive and conducive to irreparable mistaken identification. We disagree.

The burden is upon the defendant to establish that the circumstances attending the lineup were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (People v. Pagan, 52 Ill.2d 525, 288 N.E.2d 102; People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1.) In the present case, defendant attempts to sustain his burden by merely pointing to the fact that defendant was the only person in the lineup with a goatee. However, the record reveals that defense counsel’s cross-examination of the identifying witness was entirely unsuccessful in attempting to establish that the identification was predicated only upon the goatee adorning defendant. Under these circumstances, defendant has failed to sustain his burden in urging that the identification was fatally defective. See People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330; People v. Jones, 7 Ill.App.3d 820, 288 N.E.2d 918; People v. Wicks, 115 Ill.App.2d 19, 252 N.E.2d 698.

Furthermore, during the course of the entire robbery, defendant stood approximately 10 feet away from the witness in an area well illuminated by several lights. Therefore, aside from the lineup, the record demonstrates that the identifying witness had an ample opportunity, under favorable conditions, to form an independent basis for his in-court identification of defendant. (See People v. Hayes, 52 Ill.2d 170, 287 N.E.2d 465.) Moreover, even if there had been no identifications of defendant and his co-defendants, the circumstances of the arrest and the recovery of physical evidence linking them to the crimes were sufficient evidence to support the conviction. (See People v. O’Leary, 22 Ill.2d 52, 174 N.E.2d 191.) Accordingly, we also reject defendant’s argument that he was not proven guilty beyond a reasonable doubt.

Defendant’s final contention is that the case should be remanded for sentencing because the minimum for armed robbery under the Unified Code of Corrections is now less than it was on the date of sentencing. At the time of defendant’s conviction and sentencing, the minimum penalty for armed robbery was 5 years’ imprisonment. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2(b).) Under the Unified Code of Corrections, effective January 1, 1973, the minimum penalty for armed robbery (a Class 1 felony) is 4 years unless the court "having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c)(2).

In light of the foregoing, the judgment of the trial court is affirmed and the cause is remanded to the trial court to determine whether, under the record, defendant should be sentenced to a minimum sentence of four yars under the Unified Code of Corrections or whether defendant should receive the higher minimum term of 5 years originaHy imposed. People v. Fuller, 17 Ill.App.3d 1005, 309 N.E.2d 96.

Judgment affirmed and cause remanded.

HAYES, P. J., and LEIGHTON, J., concur.