text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN GOLDSTEIN, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0809
    Opinion filed October 30, 1990.

      Thomas W. Mansfield, of Reed, Heller & Mansfield, of Pinckneyville, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The defendant, Steven Goldstein, presents a single issue for review, whether the enhanced penalty “mandated by the schoolyard statute in the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. h&k, par. 1407(b)(2)) should be applied when delivery of a controlled substance occurs in a college dormitory room or the campus library.”

The defendant was convicted of six offenses involving the delivery on three separate occasions of a controlled substance, namely, cocaine, on the campus of Southern Illinois University at Carbon-dale (hereafter referred to as SIU-C). The three transactions occurred at about 12:30 a.m. on October 10, 1986, 7:30 p.m. later that same day, and 6:50 p.m. on October 15, 1986. The first two transactions, on October 10, 1986, occurred in a dormitory room in the Mae Smith dormitory on the SIU-C campus; the third transaction, on October 15, 1986, occurred in the men’s room on the fifth floor of Morris Library on the SIU-C campus. The first two transactions each involved 3.4 grams of cocaine; the third transaction involved 6.7 grams of cocaine. All three of the purchases were made from defendant by Ken Harris, special agent for the Southern Illinois Enforcement Group. The defendant was charged with two offenses with regard to each of the three transactions: unlawful delivery of a controlled substance on school property (Ill. Rev. Stat. 1985, ch. 56V2, par. 1407(b)(2)) and unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(c)).

Section 407(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1407(b)(2)) provides that any person who violates subsection (c) of section 401 (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(c))

“in any school, on the real property comprising any school or on any public way within 1,000 feet of the real property comprising any school is guilty of a Class 1 felony, the fine for which shall not exceed $250,000.” (Ill: Rev. Stat. 1985, ch. 56V2, par. 1407(b)(2).)

Section 401(c) provides that any person who knowingly manufactures or delivers, or possesses with intent to manufacture or deliver, a controlled or counterfeit substance with respect to

“any other amount of a controlled or counterfeit substance classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony. The fine for violation of this subsection (c) shall not be more than $200,000.” (Ill. Rev. Stat. 1985, ch. 56V2, par. 1407(c).)

Section 5 — 5—-3(c)(2)(D) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3(c)(2)(D)) provides that a period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for “[a] violation of Section 401.1 or 407 of the Illinois Controlled Substances Act, or a violation of subdivision (b)(2) of Section 401 of that Act which relates to more than 5 grams of a substance containing cocaine or an analog thereof.”

In case number 87 — CF—142 and case number 87 — CF—143, each of which dealt with one of the transactions occurring on October 10, 1986, the trial court found the defendant guilty on both counts in each case following a bench trial at which only Agent Harris and the defendant testified. Agent Harris had posed as the roommate of the informant who had introduced Agent Harris to the defendant. At the time in question, which was prior to his graduation from SIU-C in 1987, the defendant was an SIU-C student residing off campus. The place of the meeting in each of the three instances was suggested by someone other than the defendant, first by the informant and later by Agent Harris; the defendant indicated that he had wanted to meet at his own house. In case number 87 — CF—144, which dealt with the transaction occurring on October 15, 1986, the trial court found the defendant guilty on both counts following a stipulated bench trial consisting of a two-page statement, bearing the heading “People’s Evidence,” which was read into the record by the trial court. The statement, filed on November 28, 1988, is signed by counsel for each of the parties. On November 28, 1988, the trial court imposed a term of four years in the Illinois Department of Corrections on the count in each of the three cases concerning delivery of a controlled substance on school property, the three terms to be served concurrently. The court imposed no sentence with regard to the remaining count in each of the three cases, that is, the count concerning delivery of a controlled substance. In addition to imposing the minimum sentence, the trial court imposed fines in each of the three cases.

In his brief the defendant contends that the convictions for delivery of a controlled substance on school property should be reversed because it is “contrary to the legislative intent underlying the schoolyard statute” inasmuch as each conviction was based upon an act of delivery that occurred on the property of a university, the defendant having been “drawn onto University property by police or their agent on each of the three occasions.” Arguing that the legislature did not intend the statute to apply to the facts of this case, defendant seeks to have the convictions for delivery of a controlled substance on school property vacated and to have the cause remanded to the trial court for imposition of sentence upon the three convictions for delivery of a controlled substance.

In construing a statute the court should look first and foremost to the terms of the statute as the best means of ascertaining the intent of the legislature. (People v. Larson (1985), 132 Ill. App. 3d 594, 478 N.E.2d 439.) The court may not alter the plain meaning of the legislature (People v. Cochran (1988), 167 Ill. App. 3d 830, 522 N.E.2d 261) or read a limitation into a statute that the legislature has not seen fit to enact (People v. Larson, 132 Ill. App. 3d 594, 478 N.E.2d 439). Nor may a court, by subtle construction, alter the plain meaning of the words employed. People v. Larson, 132 Ill. App. 3d 594, 478 N.E.2d 439.

The supreme court has recognized that a policy of lenity applies with respect to the interpretation of criminal statutes. (People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48; People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) As with the construction of any statute, the court construing a penal statute must ascertain legislative intent, and where that intent is in any way clouded or uncertain, the court must follow established rules relating to construction of penal statutes. (People v. Carlock (1981), 102 Ill. App. 3d 1100, 430 N.E.2d 212.) A penal statute is to be construed in favor of the accused, and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. (People v. Carlock, 102 Ill. App. 3d 1100, 430 N.E.2d 212.) If a statute increasing a penalty or punishment is capable of two constructions, the one which operates in favor of the accused is to be adopted; such a statute is highly penal and should not be extended in its application to cases which dp not, by the strictest construction, fall within its terms. (People v. Carlock, 102 Ill. App. 3d 1100, 430 N.E.2d 212.) However, a court of review has a duty to construe an act of the General Assembly in such a way as to promote its essential purposes (People v. Carlock, 102 Ill. App. 3d 1100, 430 N.E.2d 212). Although penal statutes are to be strictly construed in favor of the accused, a court must give effect to the legislative intent and must not read a statutory enactment rigidly as to defeat that intent. People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.

In construing statutory provisions, it is fundamental that the judicial role is to ascertain the intent of the legislature and give it effect. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) A court will examine the entire statute for guidance as to that intent and will seek to determine the objective the statute sought to accomplish and the evils it desired to remedy. (City of Springfield, 105 Ill. 2d 336, 473 N.E.2d 1313.) To that end the judiciary possesses the authority to insert language into a statute that has been omitted through legislative oversight (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596; Carey v. Elrod (1971), 49 Ill. 2d 464, 275 N.E.2d 417).

As the defendant notes, no definition of the term “school” is found within section 407 of the Illinois Controlled Substances Act or, indeed, elsewhere within that act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1100 et seq.). The defendant maintains that it is “obvious” some limitation must be placed upon the scope of the words “any school” in section 407(b)(2), which otherwise would include, as the trial court noted, “a Barber College or a Truck Driving School. The possibilities are endless.” Defendant stresses legislative intent as revealed by legislative discussion prior to the passage of Public Act 84 — 1075, which, when it became effective on December 2, 1985, amended section 407 of the Illinois Controlled Substances Act to add, among other sections, the one under which he stands convicted; defendant takes the position that “any school” refers only to “grade schools and high schools” because of the legislative concern, in passing Public Act 84 — 1075, with the activity of gangs in Illinois.

As the supreme court observed in People v. M.A. (1988), 124 Ill. 2d 135, 529 N.E.2d 492, Public Act 84 — 1075 created and amended numerous pieces of legislation, including the Illinois Controlled Substances Act, to increase the penalty for violations if the offense took place on or around school grounds. Further, Public Act 84— 1075 amended section 24 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1) concerning the unlawful use of weapons to enhance certain penalties as follows in subsection (c) (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1(c)).

“Violations on school property. (1) A person who violates Subsection 24 — 1(a)(6) or 24 — 1(a)(7) in any school or on the real property comprising any school commits a Class 2 felony. (2) A person who violates Subsection 24 — 1(a)(9) in any school or on the real property comprising any school commits a Class 3 felony. School is defined as any public or private elementary or secondary school, community college, college or university.” (Emphasis added.)

Subsection (b) (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(b)) provides, as it provided prior to the addition of subsection (c) by Public Act 84 — 1075 (Ill. Rev. Stat. 1983, ch. 38, par. 24 — 1(b)), that a person convicted of a violation of subsection 24 — 1(a)(6) or 24 — 1(a)(7) commits a Class 3 felony and a person convicted of a violation of subsection 24 — 1(a)(9) commits a Class 4 felony.

Public Act 84 — 1075 added as well section 24 — 3.3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 3.3), which provides as follows:

“Unlawful Sale or Delivery of Firearms on the Premises of Any School. Any person 18 years of age or older who sells, gives or delivers any firearm to any person under 18 years of age in any school or on the real property comprising any school commits a Class 3 felony. School is defined, for the purposes of this Section, as any public or private elementary or secondary school, community college, college or university. This does not apply to peace officers or to students carrying or possessing firearms for use in school training courses, parades, target shooting on school ranges, or otherwise with the consent of school authorities and which firearms are transported unloaded and enclosed in a suitable case, box or transportation package.” (Emphasis added.)

Public Act 84 — 1075 also amended section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(7)(a)) in part by adding subsection (7), subsection (a) of which provides as follows:

“The definition of delinquent minor under Section 2 — 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with an offense under Section 401 of the Illinois Controlled Substances Act while in a school, on the real property comprising any school or on a public way within 1,000 feet of the real property comprising any school. School is defined, for the purposes of this Section, as any public or private elementary or secondary school, community college, college, or uni versity. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Illinois Controlled Substances Act.” (Emphasis added.)

Comments by Senator Sangmeister indicate that this legislation was designed to contend with gang-related problems:

“As many of you are probably aware, because of the gang related problems that we’re having in this State and, of course, throughout this country, there were a number of groups put together, none the least of which was by Senator Marovitz and myself who have held hearings in an effort to put together a gang crime package, for want of a better terminology. Senate Bill 201 is the start of that package. I believe it runs from 201 through 209. *** I would, of...course, urge you all to support this as an entire package. This was not put together willy-nilly, but after considering an awful lot of people...talking to the people out in the streets, and we think it is a fine package and one which will attack the problem in the State of Illinois.” (84th Ill. Gen. Assem., Senate Proceedings, May 21, 1985, at 159-60 (statements of Senator Sangmeister).)

This “package” of bills embraces Senate Bill No. 208, which was ultimately incorporated in Public Act 84 — 1075. Senate Bill No. 208 pertained to the amendments of the Illinois Controlled Substances Act with which we are principally concerned in the instant case. Addressing Senate Bill No. 204, which pertained to the amendment of the Juvenile Court Act and was, like Senate Bill No. 208, ultimately incorporated in Public Act 84 — 1075, Senator Marovitz remarked that it was

“[a]nother in the gang crime package which provides that juveniles fifteen, sixteen years old who sell hard drugs within the safe school zone would be transferred to adult court, prosecution as adults, and I would ask for your favorable roll call on this bill. If we’re going to get tough on crime and try and get rid of drugs in the schools, this is something we need.” (84th Ill. Gen. Assem., Senate Proceedings, May 21, 1985, at 165 (statements of Senator Marovitz).)

Later Senator Marovitz said of the “gang crime package”:

“Senate Bill 201 is the gang crime package. We passed out about six or seven bills to the House due to the deadline. Several of those bills did not get called and they are now all embodied in Senate Bill 207 [Public Act 84 — 1075]. That is the gang crime package that passed out of here without opposition. It creates the safe school zones in and around school property and deals severely with the bringing of firearms, the selling of...the dealing of hard drugs in and around the schools. It deals with adults trying to recruit juveniles into the...into gangs.” (84th Ill. Gen. Assem., Senate Proceedings, July 1,1985, at 40 (statements of Senator Marovitz).)

Similarly, Representative Ronan observed on the same date:

“We now have corrected the First Conference Committee Report on Senate Bill 207 — a very simple concept. What we’re trying to do is make the schools safer in the State of Illinois. There was [sic] a few technical problems which we’ve worked out in this Conference Committee Report. I know of no opposition. I feel it’s important that we go on record that we don’t want guns or drugs sold in the schools of the State of Illinois. And I move for the passage of...the adoption of the First Conference Committee Report on Senate Bill 207.” (84th Ill. Gen. Assem., House Proceedings, July 1, 1985, at 71 (statements of Representative Ronan).)

Later Representative Ronan stated of the bill, “We’re talking about the sale of heroin, cocaine, and guns, and that should not go on in a school environment in the State of Illinois.” 84th Ill. Gen. Assem., House Proceedings, July 1, 1985, at 76 (statements of Representative Ronan).

In light of the legislative purpose expressed above, we conclude that the legislature intended the words “any school” in section 407(b)(2) to refer, as they do elsewhere in Public Act 84 — 1075, to a public or private university. Although the words “any school” literally could refer to many more institutions of learning than those enumerated precisely and identically on three different occasions in Public Act 84 — 1075 by the words “any public or private elementary or secondary school, community college, college or university,” we think that under all of these circumstances the legislature intended such a limitation with respect to section 407(b)(2). For the same reasons, however, we must disagree with the defendant that the legislature intended the further limitation he proposes, that is, restricting the application of section 407(b)(2) to violations that occur in “grade schools and high schools.” Plainly, the purpose of the legislature in attempting to eliminate drugs from the schools of this State reasonably extends to those institutions where large numbers of young persons of college age commonly live and study. Nor, with respect to the purpose expressed by the legislature, can we make any meaningful distinction between a dormitory or a library and the rest of a public or private university, and we conclude that the legislature intended none. We note that the defendant does not on appeal, as he did at trial, raise the issue of entrapment. He merely seems to suggest that the legislature did not intend section 407(b)(2) to apply to one who delivers a controlled substance on the property of a public university at the suggestion of another when he would have preferred to do so in his own home. We consider the distinction one without merit and hold section 407(b)(2) applicable here.

Although the defendant questioned the constitutionality of section 407 in the trial court, which decided that question adversely to him, he does not present the issue for our review in this appeal, and we make no determination in that regard.

Affirmed.

RARICK and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    STEPHEN C. LANE, Plaintiff-Appellant, v. THOMAS TITCHENEL et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0635
    Opinion filed October 31, 1990.

      Kurowski & Courtney, P.C., of Swansea (John J. Kurowski and Angelia Blackman-Donovan, of counsel), for appellant.
    William F. Sherwood, of Thomas, -Mottaz, Eastman & Sherwood, of Alton, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Stephen Lane, brought an action in negligence to recover for personal injuries he sustained on land owned by defendants, Thomas and Phyllyse Titchenel. Plaintiff’s amended complaint, filed July 27, 1988, in the circuit court of Madison County, alleges that on October 18, 1986, plaintiff was, at the invitation of defendants, upon certain rural property owned by defendants to attend a hayride; that defendants negligently and carelessly maintained the property in that it was not adequately lighted, a hole was permitted to be present, creating a dangerous condition, and defendants failed to repair the premises; and that as a direct result of this negligence, plaintiff fell and suffered injury.

On August 8, 1988, defendants filed an answer to the amended complaint, denying the allegations of negligence and raising the affirmative defense that, pursuant to the Illinois Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1985, ch. 70, par. 31 et seg.) (hereinafter Act), defendants owed no duty of care to plaintiff to keep the premises in a safe condition or to warn of any dangerous condition. On March 13, 1989, plaintiff filed a motion for partial summary judgment on the affirmative defense raised by defendants, arguing that the Act only provided immunity from liability when the land was being used for a “recreational purpose” as defined in section 2 of that act (Ill. Rev. Stat. 1985, ch. 70, par. 32), and that plaintiff had not been on the land for a “recreational purpose.” On April 21, 1989, defendants filed a motion for summary judgment arguing that plaintiff was upon their land for a recreational purpose within the meaning of the Act and that, therefore, as a matter of law, defendants owed no duty to plaintiff.

The evidence in support of and opposition to the motions for summary judgment establishes the following undisputed facts. The evening was planned by the defendants’ son, who was employed by Andy’s Auto Body Shop. The defendants offered the land to their son at no charge for a hayride/picnic for employees of Andy’s Auto Body Shop. Food for the wiener roast was provided by Andy’s Auto Body Shop. Defendants provided the wagon for the hayride. The site for the wiener roast was approximately one-quarter mile from defendants’ house near a wooded area. Plaintiff stepped in a large puddle, fell and twisted his ankle, breaking the bone.

Defendants have routinely allowed other friends of their son to use the land for similar purposes at no charge. Indeed, every weekend in the summer months, friends of defendants’ son bring their off-road vehicles to the site, where they camp and enjoy the weekend. There is a small shanty at the campsite and a privy.

On May 5, 1989, the circuit court of Madison County entered an order denying what it characterized as plaintiff’s motion to strike defendants’ affirmative defense based upon the Act. The order finds that plaintiff was upon defendants’ land for a hayride and wiener roast, that, although such activities are not specifically mentioned within the definition of “recreational purpose,” they do fall within the broad range of activities specified in the Act, and that therefore the Act immunizes defendants from liability for plaintiff’s injuries.

On September 6, 1989, the circuit court of Madison County entered an order granting defendants’ motion for summary judgment. The order makes the same findings as does the court’s order of May 5,1989.

Plaintiff appeals from the denial of his motion for partial summary judgment and the granting of defendants’ motion for summary judgment. He argues that the court’s finding that the Act applies in this case is erroneous because: (1) plaintiff was not upon defendants’ land for a “recreational purpose” within the meaning of the Act; and (2) defendants’ land is covered by the Campground Licensing and Recreational Area Act (Ill. Rev. Stat. 1985, ch. Ill 1/2, par. 761 et seq.), thus, defendants are not entitled to the protection of the Recreational Use of Land and Water Areas Act.

We will summarily dispose of plaintiff’s second argument, that the Campground Licensing and Recreational Area Act covers defendants’ land rather than the Recreational Use of Land and Water Areas Act, as this argument was never raised before the trial court. It is too well settled for extensive discussion that issues and arguments which were not presented to or considered by the trial court cannot be raised for the first time on review. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804, 811.) Plaintiff has waived this issue and we will not review it.

With respect to plaintiff’s other argument, that plaintiff was not upon the land for a “recreational purpose,” we first point out that summary judgment is properly granted when the pleadings, together with depositions, affidavits, and other material filed in support of and in opposition to the motion, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Schnabel v. County of Du Page (1981), 101 Ill. App. 3d 553, 428 N.E.2d 671, 677.) In the instant case, the facts are not in dispute. Rather, the parties disagree on whether or not those facts place this case within the purview of the Act. Specifically, the parties disagree on the construction to be given to section 2 of the Act, which defines the term “recreational purpose,” and whether plaintiff entered upon or used defendants’ land for such a purpose. The question of the construction or interpretation of a statute is peculiarly a matter of law, and summary judgment is properly entered upon such a question. (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 348, 546 N.E.2d 651, 657.) However, we must determine whether the trial court properly answered that question of law and entered summary judgment in favor of the proper party. We conclude that it did and therefore affirm the judgment of the circuit court of Madison County.

The Recreational Use of Land and Water Areas Act in effect at the time of plaintiff’s injury provides that an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purpose. Thus, the Act provides immunity only if the land is entered upon or used for a “recreational purpose.” (Ill. Rev. Stat. 1985, ch. 70, par. 33.) The Act defines the term “recreational purpose” as follows:

“ ‘Recreational purpose’ includes, and is limited to, any of the following, or. any combination thereof: hunting, fishing, swimming, boating, snowmobiling, motorcycling, camping, picnicking, hiking, cave exploring, nature study, water skiing, water sports, bicycling, horseback riding, and viewing or enjoying historical, archaeological, scenic or scientific sites.” (Ill. Rev. Stat. 1985, ch. 70, par. 32(c).)

The stated purpose of the Act is to “encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Ill. Rev. Stat. 1985, ch. 70, par. 31.

Plaintiff argues that the trial court erred in construing the Act liberally rather than strictly. He argues that the Act is clear that it is limited to those activities specifically mentioned, and that neither a hayride nor a wiener roast is so mentioned. Defendants respond that a hayride is encompassed in the language “viewing or enjoying *** scenic *** sites,” and that a wiener roast is certainly included in the term “picnicking” found in that definition. Ill. Rev. Stat. 1985, ch. 70, par. 32(c).

Plaintiff is correct that a court should look first to the statutory language as the best indication of the intent of the drafters of the statute, and, where that language is unambiguous, enforce the law as enacted without resort to other aids (Consolidation Coal Co. v. Department of Mines & Minerals (1987), 160 Ill. App. 3d 677, 679, 514 N.E.2d 9, 10); that where a statute is in derogation of the common law, it should be strictly construed in light of the language used and nothing is to be read into such statute by intendment or implication (Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 636, 509 N.E.2d 166, 167); that when the language of the statute is precise and the intent of the draftsmen is clear, the court’s only function is to enforce the law as enacted (Hanson v. Board of Trustees of State Universities Retirement System (1983), 115 Ill. App. 3d 974, 976, 451 N.E.2d 925, 927); and that where there is in the statute an enumeration of various covered activities, such enumeration implies the exclusion of all others. In re Estate of Orzoff (1983), 116 Ill. App. 3d 265, 268, 452 N.E.2d 82, 84.

Although the activities enumerated in the Act appear to be specific, we find that the term “picnicking” may include many activities, such as a wiener roast, and that “viewing or enjoying *** scenic *** sites” may include such activities as a hayride. Indeed, picnics are often customarily accompanied by some activity such as a softball game, volleyball game or, perhaps, a hayride.

Plaintiff argues that the record reflects that no wiener roast actually occurred and that, even if it did, such activity was so incidental as to preclude its consideration in defining the primary purpose of the activities on defendants’ premises on the night in question. This argument is completely unsupported by the record. The evidence indicates that one of the purposes of entering upon defendants’ land was to have a wiener roast. Food was provided by Andy’s Auto Body Shop. There is no indication in the record that a wiener roast did not take place, nor is there any indication that the wiener roast was somehow only incidental to the hayride.

Plaintiff also argues that a hayride conducted at night, under cover of darkness, does not allow for viewing or enjoying scenic sites. We think this argument is frivolous and, in any event, we disagree. A starlit night far away from the lights and noise of a city, the crisp night air of an October evening, the snap and crackle of fall leaves accompanied by the sounds of night birds, the moonlight faintly illuminating old trees and fallen leaves, can all be enjoyed on a hayride at night under cover of darkness.

Finally, plaintiff argues that the amendment of the Act in 1987 to broaden the definition of “recreational purpose” indicates that the legislature intended the original definition to be specific, all inclusive and narrowly construed. Even if this argument is accepted as true, we still find that a wiener roast and hayride fall within the original definition of “recreational purpose,” which included “picnicking” and “viewing or enjoying *** scenic *** sites.”

We do not think the trial court erred in construing section 2 of the Recreational Use of Land and Water Areas Act as including the activities which occurred in the case at bar. Accordingly, we affirm the judgment of the circuit court of Madison County which denied plaintiffs motion for partial summary judgment on the affirmative defense and granted defendants’ motion for summary judgment on the complaint.

For the foregoing reasons we affirm the judgment of the circuit court of Madison County.

Affirmed.

CHAPMAN and HARRISON, JJ., concur.


text:
    OUR SAVIOR LUTHERAN CHURCH, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0081
    Opinion filed October 31, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    John Womick and Randall J. Rodewald, both of Carbondale, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The Department of Revenue of the State of Illinois (hereinafter Department) appeals from a judgment entered January 4, 1990, by the circuit court of Jackson County reversing the decision of the Department to deny a real property tax exemption to that portion of the property of Our Savior Lutheran Church (hereinafter Church) consisting of a parsonage and carport. We affirm.

Our Savior Lutheran Church owns a certain parcel of real property on which is located a single building consisting of a church, an office and a parsonage. This building was constructed as a single building. The church portion of the building and the parsonage portion of the building are connected by the office. Located adjacent to the parsonage portion of the building, but not attached thereto, is a carport.

In 1985, Church agreed to merge its operation with the campus ministry of Southern Illinois University at Carbondale. The timing of this merger coincided with the retirement of the Church’s pastor, Reverend Rist. Accordingly, on June 1, 1985, the Church property was offered for sale and Church activities were thereafter conducted at the campus location. The Church property was sold on July 15, 1986.

During the period June 1, 1985, through July 15, 1986, the church and office portions of the building were used for storage of Church property and paraphernalia, including Church records, pews, hymnals, an altar, a cross, the Church pipe organ and other furnishings. Occasional bake sales and flea markets were held in the church portion of the building, and the choir sang there one time for a demonstration. The church portion was also used for the storage of clothing and other materials prior to shipment to missionary sites.

The parsonage portion of the building was also used to store a few items such as records and chairs. However, no one actually resided in the parsonage portion of the building during the relevant time period. No evidence was adduced as to the use of the carport during the relevant time period.

The Department denied Church’s request for a property tax exemption for the year 1986 because it found that the property was not in exempt use. Church requested a formal administrative hearing, at which the evidence set forth above was presented. Following the hearing, the administrative law judge issued a recommended disposition finding that the church and office portions of the property were exempt from taxation as they were used primarily for religious purposes, i.e., the storage of church personal property and records, but that the parsonage portion of the building and the carport did not qualify for the exemption because they were essentially vacant and unused. In reaching his decision, the administrative law judge relied on Antioch Missionary Baptist Church v. Rosewell (1983), 119 Ill. App. 3d 981, 457 N.E.2d 500, which held that property owned by a church, but left vacant and never used by the church for any purpose, did not qualify for the tax exemption for property used exclusively for religious purposes.

On April 13, 1988, Church filed a complaint for administrative review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110). On January 4, 1990, the circuit court of Jackson County issued its judgment reversing the decision of the administrative law judge. The court found that the property, taken as a whole, was used exclusively for religious purposes and therefore was exempt from taxation. The court pointed out that the property consisted of a single building and that the parsonage portion of the building was not used for a nonreligious purpose during the time the pastor did not reside there. The court distinguished the case relied on by the administrative law judge, Antioch Missionary Baptist Church, on its facts. The court pointed out that in Antioch the property had never been used for any religious pur-' pose, while in the instant case, the property was used for religious purposes for approximately 40 years.

Because the facts are not in dispute, our function, as a court of review, is not to determine if the court’s findings are against the manifest weight of the evidence, but to determine whether the property is exempt as matter of law. (Cook County Masonic Temple Association v. Department of Revenue (1982), 104 Ill. App. 3d 658, 660, 432 N.E.2d 1240, 1242.) The law provides a tax exemption for

“[a]ll property used exclusively for religious purposes *** and not leased or otherwise used with a view to profit, including all such property owned by churches or religious institutions or denominations and used in conjunction therewith as parsonages or other housing facilities provided for ministers *** performing the duties of their vocation as ministers at such churches or religious institutions ***.
A parsonage, convent or monastery shall be considered for purposes of this Section to be exclusively used for religious purposes when the church, religious institution, or denomination requires that the above listed persons who perform religious related activities shall, as a condition of their employment or association, reside in such parsonage, convent or monastery.” Ill. Rev. Stat. 1985, ch. 120, par. 500.2.

The Department does not dispute that, prior to June 1, 1985, when Reverend Rist vacated the parsonage, that portion of the building was properly exempt from taxation under the above provision. However, relying on Antioch Missionary Baptist Church, the Department argues that once the parsonage portion of the building was no longer used as a residence, but became vacant, it was no longer being used “exclusively for religious purposes.” The Department further argues that the Church property need not be considered “as a whole,” but that where a single parcel of real property is used for two distinct purposes, one exempt and the other not, that portion of the property used for an exempt purpose may be exempt from taxation, while the other portion is taxed.

We do not agree with the Department’s interpretation of Antioch, nor do we agree that the Church property can reasonably be divided according to use for tax purposes. Like the trial court, we find Antioch to be distinguishable on its facts. We also find those cases relied upon by the Department as authority for its argument that the Church property should be divided by use to be distinguishable on their facts. We therefore affirm the judgment of the circuit court of Jackson County.

In Antioch Missionary Baptist Church v. Rosewell (1983), 119 Ill. App. 3d 981, 457 N.E.2d 500, the church had acquired a parcel of real estate in 1976. This parcel of real estate abutted the property on which the church was located. The building on the purchased property was kept boarded up until 1980 when the church began rehabilitating the building. This work was completed in 1981. During this entire time the property was vacant and unused. In 1981, the building was turned into a senior citizens housing center. The Department denied the church a tax exemption for this parcel of property. The appellate court reversed the judgment of the circuit court which found that the property was exempt from taxation. In its opinion, the appellate court found that the only evidence concerning the use of the property indicated that it was not used for any purpose, but was boarded up and vacant from the date of purchase in 1976 until 1980. The court pointed out that evidence that the land was acquired for an exempt purpose does not eliminate the need for proof of actual use for that purpose. The court held that the church had failed to meet its burden of showing that the property was actually used for an exempt purpose.

In Antioch, the property was never used by the church for an exempt purpose. In fact, between 1976 and 1981, the property was not used by the church for any purpose. However, in the instant case, the property in question had been in actual use for an exempt purpose for approximately 40 years. A portion of the building then became, according to the Department, temporarily vacant and unused. While we agree with the Department that an exempt status in one year does not guarantee an exempt status in subsequent years when the use of the property changes (Fairview Haven v. Department of Revenue (1987), 153 Ill. App. 3d 763, 775, 506 N.E.2d 341, 349), we do not think that the use of the parsonage portion of the building changed in 1986 to the extent that it was no longer used exclusively for religious purposes. The church property consisted of one building, of which the parsonage portion was a part. The parsonage portion was never used for commercial purposes, or for any purpose other than as a residence for the pastor and storage of a few church items. Nor was it kept vacant and unused for an extended period. We do not think this situation is analogous to the situation in Antioch.

This brings us to the second part of the Department’s argument. The Department argues that where, as here, a portion of the property is used for an exempt purpose and a portion is not, that property may be divided and the nonexempt portion taxed. The Department is correct that numerous cases have so held. However, those cases are distinguishable from the instant one. For example, in People ex rel. Kelly v. Avery Coonley School (1957), 12 Ill. 2d 113, 145 N.E.2d 80, relied upon by the Department, a school owned a 10-acre parcel of real estate on which were located two buildings used for housing for the headmistress, the caretaker and unmarried teachers. The Department denied an exemption for the two buildings. The appellate court affirmed the finding of the circuit court that the two buildings were not exempt from taxation, finding that the primary use of these two parcels of real estate was for residential and not for educational purposes. Thus, the court held that a portion of the 10-acre parcel was exempt while a portion was not. We think that case is distinguishable from the one at bar because, in that case, the nonexempt parcel was in fact used for a nonexempt purpose, while in the case at bar, there is no evidence that the parsonage portion of the building was ever used for any nonexempt purpose, although it was, according to the Department, temporarily not used for any purpose.

The case of First Methodist Episcopal Church v. City of Chicago (1861), 26 Ill. 482, relied upon by the Department, is also clearly distinguishable from the instant case. In First Methodist, a building consisting of four stories was erected on a lot owned by a church. The lower two stories were leased and occupied for commercial purposes; the upper two stories were used exclusively for the religious purposes of the church. The building was divided according to use for tax purposes: the lower two stories were held taxable; the upper two stories were held exempt. Clearly, where a portion of church property is leased out and used for commercial purposes that portion is not fulfilling an exclusively religious purpose and should be taxed. However, in the instant case, the parsonage portion of the building was not being used for a commercial purpose, or, according to the Department, for any purpose at all.

In City of Mattoon v. Graham (1944), 386 Ill. 180, 53 N.E.2d 955, 3% of municipally owned property was used to provide water to the municipality, while 97% was leased for farming on a crop-share basis. The portion used to provide water was held exempt; the portion leased for farming was held taxable. This case is distinguishable from the instant one for the same reason as is First Methodist.

Finally, in Illinois Institute of Technology v. Skinner (1971), 49 Ill. 2d 59, 273 N.E.2d 371, the school owned a 107-acre tract of real estate on which were located six major buildings. The circuit court found 67 acres, including the buildings, to be exempt from taxation, but denied the exemption as to the other 40 acres. The nonexempt 40 acres had never been developed by the school and were not being used for any purpose. The school argued that the entire tract was one unit which should not have been divided according to use. The court disagreed, finding ample authority for division and partial exemption. Again, we find that case to be distinguishable from the one at bar. The property in that case was a large parcel, a portion of which had never been developed or used by the school. In the case at bar, the nonexempt property was a portion of a single church building which, although temporarily vacant, had been used for 40 years for exclusively religious purposes. We do not think the two cases are analogous.

We do not think that mere temporary vacancy or lack of use of a portion of an otherwise exempt parcel of property renders that portion taxable. To hold that when a portion of a building otherwise used for an exempt purpose becomes temporarily vacant or unused it loses its exempt status is nonsensical and impractical of application. Nor do we think it is practical to divide this parcel, of property, consisting of a single building, on the basis of temporary vacancy of a portion of it. We find that the parsonage and carport portions of the Church property continued to be used exclusively for religious purposes as that term is defined in McKenzie v. Johnson (1983), 98 Ill. 2d 87, 98, 456 N.E.2d 73, 78, even after they had been vacated by the pastor.

While tax exemption statutes are to be strictly construed in favor of taxation (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072, 1074), they are not to be unreasonably construed, A decision based upon an erroneous, arbitrary or unreasonable construction of a statute cannot stand. Harrisburg-Raleigh Airport, 126 Ill. 2d at 331, 533 N.E.2d at 1074.

Under the facts of this case, where the property consists of a single building which has been used for an exempt purpose for 40 years, but of which a portion becomes temporarily vacant due to the retirement of the church’s pastor but is not used for a nonexempt purpose, we find denial of the tax exemption for that portion to be unreasonable and improper as a matter of law. We therefore affirm the judgment of the circuit court of Jackson County reversing the decision of the Department.

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

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    OLD BEN COAL COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF MINES AND MINERALS, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0353
    Opinion filed November 1, 1990.

      Terry R. Black, of Campbell, Black, Camine & Heden, of Mt. Vernon, and Jeffrey C. Conrad, of Cleveland, Ohio, for appellant.
    Neil F. Hartigan, Attorney General, and Pfeifer & Kelty, P.C., both of Springfield (Robert J. Ruiz, Solicitor General, of Chicago, and Robert E. Wagner, Special Assistant Attorney General, of Springfield, of counsel), for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

On May 23, 1988, plaintiff, Old Ben' Coal Company, filed this action in the circuit court of Franklin County seeking administrative review of a decision of the Illinois Department of Mines and Minerals (IDMM). Old Ben sought to vacate conditions contained in four Permanent Coal Mining Reclamation Program Permits issued by the IDMM requiring Old Ben to repair or restore structures damaged by subsidence. The circuit court affirmed the decision of the IDMM and this appeal followed.

On appeal, Old Ben argues that the IDMM has no authority under the Illinois Surface Coal Mining Land Conservation and Reclamation Act (Illinois Act) (Ill. Rev. Stat. 1981, ch. 961/2, par. 7901.01 et seq.) to require the repair or restoration of structures damaged by subsidence because the Illinois Act authorizes only those standards which comply with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal Act) (30 U.S.C. §1201 et seq. (1988)), and the Federal Act does not require the repair or restoration of structures damaged by subsidence. Further, Old Ben argues section 1.02(c) of the Illinois Act (Ill. Rev. Stat. 1981, ch. 96x/2, par. 7901.02(c)) specifically prohibits any requirements more stringent than the Federal Act and therefore prohibits any regulation requiring the repair or restoration of structures damaged by subsidence because such a regulation would place a greater burden on the coal operator than the Federal Act does.

A brief history of the State and Federal laws on this subject is a necessary prelude to the analysis of Old Ben’s arguments. In 1977, Congress enacted the Surface Mining Control and Reclamation Act (Federal Act) (30 U.S.C. §1201 et seq. (1988)), the purpose of which was to regulate all coal mining in the United States. The Federal Act also created the Office of Surface Mining Reclamation and Enforcement (OSMRE), which was charged with promulgating Federal Coal Mining Reclamation Program Regulations (Federal regulations). The Federal Act provided that all coal mining in the United States was to be controlled by Federal regulation or, alternatively, by State laws meeting the Federal standards and approved by the OSMRE. (30 U.S.C. §§1251, 1252 (1988).) The Federal regulations promulgated by the OSMRE were adopted in 1979. 30 C.F.R. ch. VII (1979).

The only reference to subsidence contained in the Federal Act is found in section 516(b)(1), which provides:

“Each permit issued under any approved State or Federal program pursuant to this [Act] and relating to underground coal mining shall require the operator to-
il) adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of such surface lands, except in those instances when the mining technology used requires planned subsidence in a predictable and controlled manner: Provided, That nothing in this subsection shall be construed to prohibit the standard method of room and pillar mining.” (Emphasis in original.) (30 U.S.C. §1266(b)(l) (1988).)

The Federal regulations, however, specifically required repair or

restoration of structures damaged by subsidence.* 23These regulations were upheld by the Federal district court. In re Permanent Surface Mining Regulation Litigation (D.D.C. 1980), 14 Env’t Rep. Cas. (BNA) 1083, 1108 (Round I).

In 1980, Illinois adopted the Surface Coal Mining Land Conservation and Reclamation Act (Illinois Act) (Ill. Rev. Stat. 1981, ch. 961/2, par. 7901.01 et seq.). The Illinois Act authorized the IDMM to promulgate regulations and issue mining permits requiring compliance with the Federal Act and related Federal regulations. Section 4.02 of the Illinois Act, which is virtually identical to section 516(b)(1) of the Federal Act, provides:

“Each operator shall adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of surface lands, except in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner. Nothing in this Section shall be construed to prohibit the standard method of room and pillar mining.” (Ill. Rev. Stat. 1981, ch. 96V2, par. 7904.02.)

The State act was conditionally approved by the OSMRE on June 1, 1982 (47 Fed. Reg. 23858 (1982)). In 1982, the IDMM adopted regulations virtually identical to the Federal regulations, including the requirement to repair or restore structures damaged by subsidence.

As of 1982, both Federal and State law required the repair or restoration of structures damaged by subsidence.

In 1982, the Secretary of the Interior proposed to amend and combine the rules on subsidence so that 30 C.F.R. §817.121 “would provide all the requirements for subsidence control.” (47 Fed. Reg. 16604 (April 16, 1982).) The proposed revised regulation required repair or restoration of both structures and land, as did the existing regulation. (47 Fed. Reg. 16,610 (April 16, 1982).) As finally promulgated, however, the new rule required repair or restoration of subsidence damage to land, but repair or restoration of structures damaged by subsidence was mandated only to the extent required under the applicable provisions of State law. Both industry and environmentalists challenged the new rules as they related to subsidence damage. The Federal District Court for the District of Columbia upheld the rule against industry’s challenge to the requirement to restore land materially damaged by subsidence, but did not reach the merits of the environmentalists’ challenge to the limitation on the duty to correct structures damaged by subsidence. Finding that the new final rule represented a “radical change” from the proposed rule and constituted a complete reversal of policy, the court ruled that the parties had not had an adequate opportunity to comment and remanded the rule for proper notice and comment. (In re Permanent Surface Mining Regulations Litigation (D.D.C. 1984), 21 Env’t Rep. Cas. (BNA) 1724, 1727-32 (Round II).) In response to the remand, OSMRE suspended the portion of the regulation limiting operator responsibility to State law. 50 Fed. Reg. 7274 (February 21, 1985).

A new Final Rule was proposed in 1987. (52 Fed. Reg. 4860 (1987).) The 1987 rule also contained the provision that underground operators need only correct subsidence damage to structures “[t]o the extent required under applicable provisions of State law.” (30 C.F.R. §817.121(c)(2) (1988).) The rule was again challenged and the district court for the District of Columbia again struck down the rule, finding that limiting the duty of underground operators to correct subsidence damage to structures based on applicable State law was contrary to the Federal Act, and remanded the rule to be revised by striking the reference to State law. (National Wildlife Federation v. Lujan (D.D.C. 1990), 733 F. Supp. 419, 429.) The court found that the language of the Federal Act demonstrated that “Congress did not differentiate based upon state law between the duties of underground operators with respect to subsidence damage to land and to structures” and that section 817.121(c)(2) of the Federal regulations was inconsistent with section 102(b) and the first and third clauses of section 516(b)(1) of the Federal Act (30 U.S.C. §§1202(b), 1266(b)(1) (1988)). Lujan, 733 F. Supp. at 426.

Having set forth the history of the Federal and State laws in question, we now turn to Old Ben’s arguments. Old Ben maintains that there is no authority under section 1.02(b) or any other provision of the Illinois Act for the permit requirements to repair or restore structures damaged by subsidence. Section 1.02(b) of the Illinois Act states that the policies of the Act are to be implemented through methods and standards which comply with the Federal Act. Because the OSMRE deleted the requirement to repair or restore structures damaged by subsidence,- Old Ben maintains, the IDMM’s requirement to repair or restore such damage no longer complies with the requirements of the Federal Act and so is not authorized by section 1.02(b) of the Illinois Act. Old Ben’s position is that regulations requiring repair or restoration of structures damaged by subsidence are not necessary to comply with the Federal Act. Old Ben contends because an agency’s authority to promulgate regulations is strictly confined to the enabling statute, the Illinois Act no longer authorizes the IDMM regulations. We are unpersuaded by Old Ben’s arguments.

At the time the permits in question were issued, 1986, the Federal regulations, which provided that repair or restoration of structures damaged by subsidence was mandated only to the extent required under State law, had been remanded to the OSMRE, and the original 1979 rules, requiring the repair or restoration of structures damaged by subsidence, were still in force and effect (50 Fed. Reg. 7,274 (Feb. 21, 1985). Therefore repair or restoration of structures damaged by subsidence was still required regardless of State law. As noted before, in 1987 the OSMRE again promulgated a regulation requiring the repair or restoration of structures damaged by subsidence only to the extent required by applicable State law. Even if this rule had not been struck down by the Federal district court in Lujan, we find that because section 817.121(c)(2) deferred to State law on the subject of repair or restoration of structures damaged by subsidence, the IDMM had authority under section 1.02(b) of the Illinois Act to promulgate regulations requiring the same.

Contrary to Old Ben’s arguments, when the Secretary amended 30 C.F.R. §817.121(c)(2) in 1983, the requirement to repair or restore structures damaged by subsidence was not deleted, but was thereafter required only to the extent mandated by applicable State law. The same is true of the 1987 amendment. Thus, section 817.121(c)(2) recognized that State law may require repair or restoration of structures damaged by subsidence. The purpose for the change in the rule was to correct perceived inequities created by the 1979 rule which imposed a restoration and repair requirement for structures damaged by subsidence regardless of whether the coal operator had surface support waivers. The rationale behind this was that Congress had not intended to create new property rights, but to protect existing ones. (52 Fed. Reg. 4860 (February 17, 1987).) By deferring to State law in order to allow States to recognize the validity of common law waivers, however, this section also allows States to require repair or restoration. Section 1.02(b) provides for the implementation of the policies set forth in section 1.02(a) through methods which comply with the Federal Act. Because section 817.121(c)(2) recognizes that State law may require repair or restoration of structures damaged by subsidence, the IDMM requirements promulgated under the Illinois Act are in compliance with the Federal Act.

We also note that in rejecting the rule, the district court in Lujan held that the language of the Federal Act demonstrated that section 516(b)(1) applied to both land and structures and that no authority existed under the Federal Act for the Secretary of the Interior to permit limitations on the duty to repair or restore structures damaged by subsidence based on applicable State law. (Lujan, 733 F. Supp. at 426.) The court found that Congress in section 102(b) of the Federal Act intended to provide protection from and redress for subsidence damage to structures where such protection did not exist under State law. (Lujan, 733 F. Supp. at 427.) Under Lujan, the Federal Act itself requires the repair or restoration of structures damaged by subsidence, without regard to State law. Given this interpretation, not only does section 1.02(b) of the Illinois Act authorize the IDMM to require the same, it may well mandate it.

Old Ben also argues that section 1.02(c) of the Illinois Act, which provides that requirements under the Illinois Act are to be no more stringent than those required to meet the Federal Act, precludes IDMM regulations requiring the repair or restoration of structures damaged by subsidence. The hearing officer agreed with Old Ben, but found that section 1.02(c) applied only to the Federal Act and the 1979 Federal regulations, but not subsequent changes to the Federal Act or the Federal regulations. The hearing officer ruled that section 1.02(c) did not operate to invalidate Illinois’ regulation which became more stringent than the Federal Act because of subsequent changes in the Federal Act or Federal regulations. If section 1.02(c) were construed to operate this way, the hearing officer reasoned, it would constitute an unconstitutional delegation of legislative power. We need not address the merits of the hearing officer’s position as we find that because section 817.121(c)(2) defers to State law on the subject, IDMM regulations are not more stringent than the Federal Act. Old Ben relies heavily on Consolidated Coal Co. v. Department of Mines & Minerals (1987), 160 Ill. App. 3d 677, 514 N.E.2d 9. In that case we held that section 1.02 of the Illinois Act precludes Illinois from establishing regulations which are more stringent than comparable Federal regulations. Where the Federal regulation gave Illinois discretion to adopt regulations not required by the Federal Act, a comparable Federal Act requirement does not exist and Consolidated Coal does not apply. Some commentators have argued that section 1.02(c) is merely part of a general purpose clause and “not a binding mandate to the Illinois Department of Mines and Minerals.” (Beck, Illinois Coal Mine Subsidence Law Updated, 1985 S. Ill. U.L.J. 379, 416 (1985).) Again, we need not address the merits of this argument because we find the IDMM regulations are in fact not more stringent than the Federal Act.

We next address the issue of whether the duty to repair or restore structures damaged by subsidence can be extended to damage resulting from longwall mining. Section 4.02 of the Illinois Act provides that coal operators must adopt measures to prevent subsidence damage to the extent technologically and economically feasible, except in those instances where the mining technology used requires planned subsidence. (Ill. Rev. Stat. 1981, ch. 961/2, par. 7904.02.) Longwall mining is such a technology. (1977 U.S. Code Cong. & Admin. News 658.) As we have indicated previously, the IDMM has statutory authority to require repair or restoration of subsidence damage and such requirement does not run afoul of section 1.02(c) of the Illinois Act, but the question raised is whether the exception contained in section 4.02 for technologies involving planned subsidence means that where such technologies are used, coal operators are exempt from the duty to repair or restore structures damaged by subsidence.

Reading the exception clause in section 4.02 as broadly as Old Ben urges would mean that while coal operators using mining technologies which may result in subsidence would be required to repair or restore structures damaged by subsidence if subsidence occurred, operators using mining techniques certain to cause subsidence would be free from any such duty. Old Ben would have us read section 4.02 as giving longwall mines the right to subside and destroy the property of others with impunity. We find this position “ [untenable within the Anglo-American system of jurisprudence.” (See Beck, Illinois Coal Mine Subsidence Law Updated, 1985 S. Ill. U.L.J. 379, 422 (1985).) Such an argument was rejected in Melvin v. Old Ben Coal Co. (S.D. Ill. 1985), 610 F. Supp. 131. Like the court in Melvin, we cannot believe that the legislature intended such an anomalous result. Further, the language of the statute itself does not support Old Ben’s argument. Section 4.02 refers to prevention of subsidence. Coal operators must adopt measures to prevent subsidence damage except where mining techniques involving planned subsidence are being utilized. Coal operators using such techniques are thus relieved from the duty to prevent subsidence, which only makes sense. It would be illogical to require coal operators utilizing techniques involving planned subsidence to take steps to prevent subsidence. Were it not for the exclusion, section 4.02 could be read to prevent longwall mining. This is a far cry, however, from relieving coal operators of any responsibility to repair or restore subsidence damage. We do not believe this was the legislature’s intent. We believe the most logical interpretation of the exclusion clause is that coal operators using techniques involving planned subsidence have no duty to prevent subsidence, but still must repair or restore any damage to surface lands and structures. We find support for our interpretation of section 4.02 in Shell Pipe Line Corp. v. Old Ben Coal Co. (S.D. Ill. 1988), 677 F. Supp. 572. In that case, Shell brought suit to recover money it spent to protect a pipeline from subsidence damage. The IDMM ruled that while Old Ben was responsible for curing all physical damage resulting from its mining, it was exempted from the prevention requirements of the Illinois Act because it was using a planned subsidence method of extraction. Noting that courts commonly accord great deference to the statutory interpretation of an agency charged with administration thereof, the district court agreed. Shell, 677 F. Supp. at 575.

Old Ben next argues that the repair or restoration requirements unlawfully “take” Old Ben’s surface support waivers in violation of the United States and Illinois Constitutions. A similar argument was rejected in Keystone Bituminous Coal Association v. DeBenedictis (1987), 480 U.S. 470, 94 L. Ed. 2d 472, 107 S. Ct. 1232. In Keystone, the petitioners challenged certain sections of the Pennsylvania Subsidence Act, which prohibited coal mining which caused subsidence to preexisting public buildings, dwellings, and cemeteries. The petitioners argued that they had subjacent support waivers relieving them of liability for subsidence damage to structures, and that the implementation of the Act constituted an unconstitutional taking as well as an unconstitutional impairment of their contract rights. Petitioners relied primarily on Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158, wherein the court held that the Pennsylvania legislature exceeded its constitutional powers when it prohibited the mining of anthracite coal in a manner that would cause subsidence of land on which certain structures were located. Critical to the court’s decision in Pennsylvania Coal was the finding that the Kohler Act, the statute in question, was a “private benefit statute” because it did not apply to land where the surface was owned by the owner of the coal. Noting that the test for determining whether a land use regulation constituted an unconstitutional taking was whether the regulation substantially advanced legitimate State interests or denied an owner economically viable use of his land (Keystone, 480 U.S. at 484-85, 94 L. Ed. 2d at 488, 107 S. Ct. at 1242), the court distinguished Pennsylvania Coal on the basis that the legislative declaration in the Pennsylvania Subsidence Act demonstrated that Pennsylvania was seeking to protect the public interest in health, the environment, and the fiscal integrity of the area, not just private landowners’ dwellings. We find that the legislative declaration set forth in section 1.02(a) of the Illinois Act demonstrates similar public interest in health, safety and general welfare. We further find that the IDMM regulations requiring the repair or restoration of structures damaged by subsidence seek to achieve these interests. Old Ben would distinguish Keystone on the basis that the IDMM regulations do not achieve a stated public purpose in preventing subsidence damage to structures. We are not persuaded by Old Ben’s distinction. As to the second aspect of the Keystone test, Old Ben fails, as did plaintiffs in Keystone, to allege any facts or advance any argument from which we could conclude that Old Ben will be deprived of the economic use of its property (see Keystone, 480 U.S. at 493-99, 94 L. Ed. 2d at 493-97, 107 S. Ct. at 1246-50) and so we need discuss this no further.

Old Ben also argues that the repair or restoration requirement unlawfully “impairs” its contractual rights, i.e., the subjacent support waivers contained in the deeds and coal leases. The plaintiffs in Keystone similarly argued that the Pennsylvania Subsidence Act substantially impaired their support waivers in violation of the contracts clause. The court indicated that the threshold inquiry to challenges under the contract clause is whether the State law has substantially impaired a contractual relationship. If so, the next inquiry is whether there is a significant and legitimate public interest behind the regulation. Finally, once the public interest has been identified, the court must determine the adjustment to the parties’ rights and responsibilities is reasonable and appropriate to the purpose of the regulation. The court in Keystone found that the Pennsylvania Subsidence Act served a legitimate public interest and, as noted above, we likewise conclude that section 1.02(a) of the Illinois Act and the IDMM’s permit repair or restoration requirements demonstrate a legitimate public interest. While Old Ben would quibble about the propriety of the IDMM’s regulations in accomplishing the purpose of the Illinois Act, this court will defer to the legislature’s judgment as to the most effective way to achieve the public purpose in question as did the Supreme Court in Keystone.

For the reasons aforesaid, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.

      The original rule, 30 C.F.R. §817.124 (1979), published at 44 Fed. Reg. 14902 (March 13, 1979), read:
      “(a) ***
      (b) Each person who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, with respect to each surface area affected by subsidence
      (1) Restore, rehabilitate, or remove and .replace each damaged structure, feature or value, promptly after the damage is suffered, to the condition it would be in if no subsidence had occurred and restore the land to a condition capable of supporting reasonably foreseeable uses it was capable of supporting before subsidence;
      (2) Purchase the damaged structure or feature for its fair market, pre-subsidence value and shall promptly after subsidence occurs, to the extent technologically and economically feasible, restore the land surface to a condition capable and appropriate of supporting the purchased structure, and other foreseeable uses it was capable of supporting before mining *** or
      (3) Each person who conducts underground mining activities will compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence.” 30 C.F.R. §817.124 (1979).

      Section 1817.124 provides:
      “(a) Each person who conducts underground mining activities shall adopt all measures approved by the Department under *** 1784.20 to reduce the likelihood of subsidence, to prevent subsidence causing material damage, or reducing the value, or reasonably foreseeable use of surface lands, and to mitigate the effects of any such damage or reduction which may occur.
      (b) Each person who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, with respect to each surface area affected by subsidence:
      (1) Restore, rehabilitate, or remove and replace each damaged structure, feature or value, promptly after the damage is suffered, to the condition it would be in if no subsidence has occurred and restore the land to a condition capable of supporting reasonably foreseeable uses it was capable of supporting before subsidence; or
      (2) Purchase the damaged structure or feature for its fair market, presubsidence value and shall promptly after subsidence occurs, to the extent technologically and economically feasible, restore the land surface to a condition capable and appropriate of supporting the purchases [sic] structure, and other foreseeable uses it was capable of supporting before mining. Nothing in this paragraph shall be deemed to grant or authorize an exercise of the power of condemnation or the right of eminent domain by any person engaged in underground mining activities.
      (c) Each person who conducts underground mining activities will compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence, by purchase prior to mining of noncancellable, premium prepaid insurance policy or other means approved by the Department as assuring before mining begins that payment will occur; indemnify every person with an interest in the surface for all damages suffered as a result of the subsidence; and, to the extent technologically and economically feasible, fully restore the land to a condition capable of maintaining reasonably foreseeable uses which it could support before subsidence.” 62 Ill. Adm. Code 1817.124 (1985).

       30 C.F.R. section 817.121(c)(2) (1983) provided:
      “(c) The operator shall—
      * * *
      (2) To the extent required by State law, either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. Repair of damage includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase prior to mining of a noncancellable premium-prepaid insurance policy.” 30 C.F.R. §817.121(c)(2) (1983).

      “(c) The operator shall—
      * * *
      (2) To the extent required under applicable provisions of State law, either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. Repair of damage includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase prior to mining of a non-cancellable premium-prepaid insurance policy.” 30 C.F.R. §817.121(c)(2) (1988). .

      Section 1.02(b) provides:
      “It is the purpose of [the SCMLCRA] to implement [the policies set forth in section 1.02(a)] through the methods and standards that fully comply with the requirements established by the United States Congress in the Surface Mining Control and Reclamation Act of 1977.” Ill. Rev. Stat. 1989, ch. 9672, par. 7901.02(b).

      Section 1.02(c) provides:
      “It is also the purpose of this Act to establish requirements that are no more stringent than those required to meet the Federal Surface Mining Control and Reclamation Act of 1977 (PL 95 — 87).” Ill. Rev. Stat. 1981, ch. 96V2, par. 7901.02(c).

      Section 1.02(a) provides that
      “[i]t is declared to be the policy of this State to provide for conservation and reclamation of lands affected by surface and underground coal mining in order to restore them to optimum future productive use and to provide for their return to productive use including but not limited to: the planting of forests; the seeding of grasses and legumes for grazing purposes; the planting of crops for harvest; the enhancement of wildlife and aquatic resources; the establishment of recreational, residential and industrial sites; the establishment of new bodies of water for recreational, agricultural, and wildlife conservation purposes; and for the conservation, development, management, and appropriate use of all the natural resources of such areas for compatible multiple purposes, to aid in maintaining or improving the tax base; and protecting the health, safety and general welfare of the people, the natural beauty and aesthetic values, and enhancement of the environment in the affected areas of the State; to prevent erosion, stream pollution, water, air and land pollution and other injurious effects to persons, property, wildlife and natural resources; to assure that the coal supply essential to the Nation’s and State’s energy requirements, and to their economic well-being is provided; to strike a balance between protection of the environment and agricultural productivity, and the Nation’s need for coal as a source of energy; and to assure that land conservation and reclamation plans for all mining operations are available for the prior consideration of the public, and of county governments within whose jurisdiction such lands will be affected by coal mining.” Ill. Rev. Stat. 1981, ch. 96V2, par. 7901.02(a).


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KASCELL JENNINGS, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0102
    Opinion filed November 7, 1990.

      Daniel M. Kirwan and Mary M. Menard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Kascell Jennings, was convicted of four counts of unlawful possession of weapons by a felon and one count of unlawful possession of a controlled substance by a jury in the circuit court of Madison County. Defendant was sentenced to concurrent terms of 10 years’ imprisonment on each of the weapons charges, and a concurrent six-year term of imprisonment for possession of a controlled substance. On appeal defendant contends that the court erred in denying his motion to suppress evidence. Defendant further contests the validity of his sentence.

On January 23, 1986, police officers executed a search warrant for cocaine, heroin, drug paraphernalia and stolen guns at the defendant’s residence, a mobile home. Defendant was arrested and charged with offenses stemming from the search. Before trial, defendant filed a motion to suppress the evidence seized based upon the alleged impermissible method employed by the police in executing the warrant. A hearing was held on defendant’s motion.

Defendant testified that at approximately 7:30 a.m. on January 23, 1986, he “had just got up out of bed.” Shortly thereafter he heard his dogs barking outside. As defendant walked to his front door, he heard “a lot of people saying, ‘Open up; it is the police; we know you are in here, you son of a bitch, and it is no use in trying to hide.’ ” Defendant responded, “Just a minute,” whereupon an ax came through the door. Defendant testified that from the time he learned there were police officers outside until the ax came through the door, only three to four or five seconds had elapsed.

Officer Michael Terrell of the Illinois State Police testified that on the morning of January 23, 1986, he assisted in the execution of the search warrant at defendant’s residence. Officer Terrell testified that upon knocking on defendant’s door and announcing that they were from the State Police and had a search warrant, they received a response to the effect, “Just a minute.” The person inside did not open the door. Officer Terrell recalled that two to three minutes elapsed from the time the police announced that they had a search warrant, until they started breaking in the door. When asked whether he could recall whether the time period could have been longer or shorter than two or three minutes, Officer Terrell conceded that he could not remember.

Illinois Department of Criminal Investigation Agent Ed Muzzey was in charge of the execution of the search warrant. Muzzey testified that a confidential informant advised him that he had used both currency and property known by the defendant to be stolen to acquire controlled substances from the defendant. Although the informant could not describe in detail any specific weapon which he had given the defendant, he did tell Muzzey that in the past he had given handguns to the defendant in exchange for narcotics. His account of the method by which the police officers gained entry to defendant’s residence is as follows. Agent Muzzey knocked on the front door of the mobile home — waited—knocked again — heard a male voice inside ask who it was — advised that they were police officers, that there was a search warrant and asked defendant to open the door. Agent Muzzey could hear the person scuffling inside the mobile home, and then no response. Muzzey said something to the effect, “Open up the door.” There was still no response. At that time forcible entry was obtained into the residence by the use of an ax through the door. Agent Muzzey estimated that one minute elapsed from the time defendant responded to the time Muzzey made his second inquiry and received no response from inside the residence.

Generally, absent exigent circumstances, police officers executing a search warrant are expected to knock and announce their authority and purpose before entering the premises to be searched. (People v. Ouellette (1979), 78 Ill. 2d 511, 516, 401 N.E.2d 507, 509.) The presence of exigent circumstances is as important and relevant to the question of the amount of time an officer ought to wait prior to entering forcibly as it is to the question of whether he needs to even announce his authority and purpose prior to entry. (People v. Boykin (1978), 65 Ill. App. 3d 738, 741, 382 N.E.2d 1369, 1371.) Here the trial court made the following finding in its order denying defendant’s motion to suppress:

“The Court finds the force in axing the door in the instant case unnecessary and not justified by the claimed exigent circumstances that the agents were searching [for] drugs which are easily destroyed. However, in the instant case, unlike Clark (1986), 144 Ill. App. 3d 7, 494 N.E.2d 166, the police did first announce themselves before breaking down the door. While they did not give adequate time for the defendant or anyone else to respond, they did make their presence known before going through the front door. The Court believes that while force was unnecessary at the time it was used, it does not arise to the point of making the subsequent search itself unreasonable.”

While defendant argues that the officers’ forcible entry was contemporaneous with the announcement of their presence and authority to enter, we believe that the trial court’s conclusion that the police first announced themselves before breaking down the door is supported by the record. Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Trask (1988), 167 Ill. App. 3d 694, 704, 521 N.E.2d 1222, 1229.) Moreover, although the testimony presented is contradictory as to the time which elapsed from when the officers announced their presence to when they began commencing entry, defendant himself acknowledged that there was at least a span of three to five seconds.

Because there was evidence from which the trial court could properly conclude that the officers knocked and announced prior to forcing entry into defendant’s residence, we turn to the question of whether defendant was given a sufficient time to respond. There are no rigid rules for determining whether officers have allowed a sufficient period of time to elapse before entering a building to execute a search warrant. (People v. Saechao (1989), 129 Ill. 2d 522, 533, 544 N.E.2d 745, 750.) All of the surrounding facts and circumstances should be considered in determining if the wait is reasonable. Trask, 167 Ill. App. 3d at 704, 521 N.E.2d at 1229; Boykin, 65 Ill. App. 3d at 740, 382 N.E.2d at 1371.

Defendant maintains that the police did not provide him with sufficient time to respond before forcing entry because there were no exigent circumstances in this case. We note that the trial court made no finding as to whether the claimed exigencies — presence of narcotics and weapons — warranted the officers’ entry after allowing a minimal response time. It is true that the presence of narcotics is not, in itself, an exigent circumstance justifying the entry without first knocking and announcing their presence. (People v. Ouellette (1979), 78 Ill. 2d 511, 516, 401 N.E.2d 507, 509.) Likewise, sketchy information indicating that defendant has weapons on the premises does not alone create an exigent circumstance. (People v. Clark (1986), 144 Ill. App. 3d 7, 11, 494 N.E.2d 166, 168.) However, the police should not have to be certain that they will be shot at if they wait very long before entering; they just have to have a reasonable apprehension of danger. Trask, 167 Ill. App. 3d at 705, 521 N.E.2d at 1230.

Agent Muzzey, accompanied by other police officers, went to the front door of defendant’s mobile home. Muzzey knocked on the door and announced the officers’ presence. Defendant responded to the effect, “Just a minute.” Muzzey testified that he could hear the person inside the residence scuffling about, yet no one came to answer the door. Once the police announced their presence, anywhere from three seconds to one minute elapsed until they began forcibly entering the door. The officers then quickly proceeded to enter the residence, having been alerted to the presence of weapons and narcotics by the informant. Under the circumstances it was reasonable to conclude that the person within may either have been attempting to arm himself or attempting to destroy incriminating evidence. (See Boykin, 65 Ill. App. 3d at 743, 382 N.E.2d at 1371.) It is well established that a trial court’s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Garcia (1983), 97 Ill. 2d 58, 74, 454 N.E.2d 274, 279, cert. denied (1984), 467 U.S. 1260, 82 L. Ed. 2d 856, 104 S. Ct. 3555; People v. Conner (1979), 78 Ill. 2d 525, 532, 401 N.E.2d 513, 516.) We believe that under the circumstances described, the officers’ conduct was reasonable and conclude that the trial court’s determination in denying defendant’s motion to suppress was not manifestly erroneous.

The next issue on appeal is whether three of the defendant’s four convictions for unlawful possession of weapons by a felon should be vacated, as they are all based on the same physical act. On each of the four counts defendant was found to have knowingly had in his possession a firearm in violation of section 24 — 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1).

Defendant argues that the supreme court has definitively mandated that a single physical act can result in but one conviction. (See People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.) Defendant cites as supporting authority cases which have held that simultaneous possession of more than one type of controlled substance constitutes a single offense for which there can only be one conviction. (People v. Manning (1978), 71 Ill. 2d 132, 137, 374 N.E.2d 200, 202; People v. Whitfield (1986), 140 Ill. App. 3d 433, 441-42, 488 N.E.2d 1087, 1093.) The State concedes the application of the case law cited to the issue at bar and requests that this court vacate three of defendant’s four convictions for unlawful possession of weapons by a felon. We agree that the judgment should have been entered and sentence imposed on only one of the four counts and, therefore, vacate three of defendant’s four convictions for unlawful possession of weapons by a felon.

Finally, both defendant and the State request that this court reduce defendant’s sentence for unlawful possession of a controlled substance to three years’ imprisonment. In light of the following, we agree to grant this request.

Defendant was convicted of unlawful possession of weapons by a felon and unlawful possession of a controlled substance. Unlawful possession of weapons by a felon is a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(d)), while unlawful possession of a controlled substance is a Class 4 felony (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)). An extended term may be imposed only for the most serious class of offenses of which a defendant is convicted. (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569, 575.) In this case, the Class 3 offense of unlawful possession of weapons by a felon is the most serious class of offenses of which defendant was convicted. Accordingly, we hold that the extended-term sentence imposed for defendant’s conviction of the Class 4 felony was improper.

Where a court having jurisdiction over both the person and the offense imposes a sentence in excess of what the statute permits, the legal and authorized portion of the sentence is not void, but the excess portion of the sentence is void. (See In re T.E. (1981), 85 Ill. 2d 326, 333, 423 N.E.2d 910.) We, therefore, reduce defendant’s sentence for unlawful possession of a controlled substance to the maximum allowable term of three years’ imprisonment.

For the reasons stated, we affirm the trial court’s denial of defendant’s motion to suppress. We vacate three of defendant’s four convictions for unlawful possession of weapons by a felon, and we reduce defendant’s sentence for unlawful possession of a controlled substance to the maximum allowable term of three years’ imprisonment, to run concurrently with the sentence imposed for the Class 3 felony.

Affirmed in part; vacated in part and modified in part.

WELCH and HOWERTON, JJ., concur.