author: JUSTICE NICKELS JUSTICE McLAREN,

text:
    LOWELL KOUSINS et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees and Cross-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellants and Cross-Appellees.
    Second District
    Nos. 2—91—0613, 2—91—0814 cons.
    Opinion filed May 29, 1992.
    Rehearing denied June 29, 1992.

      McLAREN, J., specially concurring.
    Michael J. Waller, State’s Attorney, of Waukegan (Michael E. Bevis, and Mitchell L. Hoffman, Assistant State’s Attorneys, of counsel), for appellants.
    Larry D. Drury, Ltd., of Chicago (Larry D. Drury, of counsel), for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiffs, Lowell and Carol Kousins (taxpayers), filed a three-count complaint alleging breach of statute and seeking injunctive and declaratory relief from an imposition of a 1 %%-per-month interest penalty imposed on delinquent real estate taxes. After dismissing that portion of the taxpayers’ complaint related to such interest penalties that accrued after the effective date of the amendment of the Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 705), the circuit court granted the taxpayers’ motion for summary judgment as to counts I and II for the penalties accruing prior to the amendment (see Ill. Rev. Stat. 1987, ch. 120, par. 705). However, the circuit court granted defendant’s (county’s) motion for summary judgment as to count III, which asserted a due process violation of the taxpayers’ civil rights based on the same alleged unauthorized conduct, as cumulative. Both the taxpayers and the county now appeal.

The county asserts that the circuit court erred in granting the taxpayers’ motion for summary judgment as to counts I and II and that the county was entitled to summary judgment as a matter of law because: (1) the Illinois Supreme Court’s recent decision in San tiago v. Kusper (1990), 133 Ill. 2d 318, requires a finding that the county’s assessment and collection of the penalty on a monthly basis was authorized by law; (2) the long-standing and uniform construction placed on section 224 of the Revenue Act of 1939 by virtually every county in the State and the legislature’s subsequent amendment of section 224 to provide imposition of the interest penalty “per month or portion thereof” was evidence of the proper construction to be placed on the ambiguous statute; and (3) the voluntary payment doctrine precluded the taxpayers’ claims. The taxpayers cross-appeal, asserting that: (1) the circuit court’s dismissal of its claim for relief from penalties imposed after the amendment of the Revenue Act of 1939 on January 1, 1990, was an abuse of discretion because the unambiguous language of amended section 224 did not authorize the county to collect penalties assessed on a monthly basis; (2) the circuit court erred in refusing to certify a defendant class; and (3) the circuit court abused its discretion in granting the county’s motion for summary judgment on count III, which alleged a due process violation of the taxpayers’ civil rights. Initially, we affirm the circuit court’s dismissal of the taxpayers’ claim relative to interest penalties imposed after January 1, 1990. As to the taxpayers’ claims arising under the prior version of section 224, we affirm the grant of summary judgment as to count III and reverse as to counts I and II because the county was entitled to summary judgment as to all counts of the taxpayers’ complaint as a matter of law.

The taxpayers paid the first installment of their 1984 real estate taxes, which was due on June 2, 1985, on July 12, 1985. The county notified the taxpayers that they were being charged l1/^ interest as a penalty on their delinquent taxes pursuant to section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 705) for the entire month of June and the entire month of July, which the taxpayers paid without protest on July 21, 1985. The taxpayers thereafter filed a class action alleging that the imposition of the interest penalty subsequent to their July 12, 1985, payment of their real estate taxes was unauthorized by law and seeking injunctive and declaratory relief. The circuit court granted the county’s motion to dismiss holding that the taxpayers failed to establish that the complained-of penalty was unauthorized by law and that the court was, therefore, without equity jurisdiction. See, e.g., W.F. Smith & Co. v. Rosewell (1984), 123 Ill. App. 3d 939, 943 (action challenging real estate taxes lies in equity only if unauthorized by law, levied on exempt property, or no adequate remedy at law exists).

Although the taxpayers’ initial appeal was dismissed for lack of a final and appealable order (Kousins v. Anderson (1989), 180 Ill. App. 3d 827), that defect was eventually corrected, and we considered whether the taxpayers' pleadings sufficiently alleged that the county was without authority to impose the penalty for the entire month of July on a monthly basis rather than on a per diem basis until the date of payment. (Kousins v. Anderson (1989), 189 Ill. App. 3d 771.) We first found that the issue presented concerned the power of the county to assess the penalty rather than the mere procedure used to calculate the amount of penalty. (Kousins, 189 Ill. App. 3d at 774.) We then reversed the dismissal of the taxpayers’ claim for lack of equity jurisdiction in reliance on W.F. Smith & Co. v. Rosewell (1984), 123 Ill. App. 3d 939, which held in a similar context that the assessment of costs associated with delinquent taxes and a subsequent tax sale were unauthorized by law and, thus, equity jurisdiction was proper. W.F. Smith, 123 Ill. App. 3d at 944.

However, before our mandate issued, the supreme court in Santiago v. Kusper (1990), 133 Ill. 2d 318, considered the same provision of the Revenue Code of 1939 at issue in W.F. Smith. It found as a matter of law that the costs assessed were authorized by law, based on the long-standing interpretation placed on that provision by the county and the legislature’s amendment of that provision subsequent to the decision in W.F. Smith. (Santiago, 133 Ill. 2d at 328-29.) Therefore, in Santiago equity jurisdiction was improper. (Santiago, 133 Ill. 2d at 327-29.) Although the county in this case sought leave to appeal our decision to the supreme court in reliance on Santiago, its petition was denied. However, contrary to the taxpayers’ assertion, such denial is without precedential value. People v. Vance (1979), 76 Ill. 2d 171, 183.

The circuit court on remand initially granted the county’s motion to dismiss the taxpayers’ claim as it related to interest penalties collected after January 1, 1990, on which date the amendment of section 224 became effective and which expressly provided for interest “per month or any portion thereof.” (Ill. Rev. Stat. 1989, ch. 120, par. 705.) The circuit court also denied the taxpayers’ request to certify a class of defendants. However, the circuit court expressly found Santiago irrelevant and immaterial and proceeded to construe section 224 of the Revenue Act of 1939 as a matter of law.

Finding section 224 ambiguous, the circuit court relied on the rule of construction of in pari materia based on other interest and noninterest penalty provisions in statutes pertaining to income taxes and inheritance taxes. (See Ill. Rev. Stat. 1989, ch. 120, pars. 405A-8, 405A-9, 10-1001, 10-1003, 10-1005.) The court distinguished noninterest penalties, which were authorized monthly expressly including any fraction of a month, from interest penalties, which were authorized per diem. Finding that section 224 was in the nature of an interest penalty rather than a noninterest penalty, the court held that a per diem assessment was authorized notwithstanding the “per month” language of section 224. The court granted the taxpayers’ motion for summary judgment as to counts I and II. However, the circuit court found that count III alleging a violation of the taxpayers’ civil rights was entirely dependent on the taxpayers’ claims in counts I and II and had no independent basis. The circuit court, therefore, granted the county’s cross-motion for summary judgment as to count III. Both parties now appeal.

The circuit court’s grant of a portion of each of the parties’ cross-motions for summary judgment is a question of law, and, as such, our review is de novo. (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240-41.) If there is no dispute as to any material fact and the undisputed facts permit but one inference, it is only the legal effect of such facts that is at issue, and a court should grant summary judgment. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577; Dockery v. Ortiz (1989), 185 Ill. App. 3d 296; Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325.) Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842; Estate of James O. Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523.) In deciding a motion for summary judgment, a court must apply the law as it exists at the time its decision is rendered. Bates v. Board of Education, Allendale Community Consolidated School District No. 17 (1990), 136 Ill. 2d 260, 268-69.

The circuit court incorrectly concluded that Santiago was not applicable to these facts. Santiago answered the certified question of whether a provision of the Revenue Act of 1939 granted authority to the county to assess costs. (Santiago, 133 Ill. 2d at 320-21.) However, although Santiago considered a different section of the Revenue Act of 1939, the circuit court was bound by its reasoning.

Santiago expressly relied on both the long-standing interpretation of a statute by the agency charged with its enforcement and the legislature’s subsequent amendment of a statute after a contrary judicial construction (Santiago, 133 Ill. 2d at 327-29). The county raises identical arguments here. In addition, the supreme court in Santiago found that the county had the authority to assess the same costs that the appellate court had held unauthorized at law in W.F. Smith. Therefore, because W.F. Smith was the only authority for our prior mandate in this case, the reasoning of the supreme court in Santiago reaching an opposite conclusion is particularly compelling.

The circuit court here, just as the supreme court in Santiago, first concluded that the statute was ambiguous. The circuit court, however, applied the in pari materia rule of construction, which requires all parts of a single statutory scheme be read together to ascertain the legislative intent and, thereby, avoid injustice. (Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 935.) Thus, statutes concerning a single subject must be interpreted consistently and harmonized. People v. Maya (1985), 105 Ill. 2d 281, 286-87.

In this instance, the circuit court considered five other provisions, three from the Income Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 10 — 1001 et seq.) and two from the Illinois Estate and Generation-Skipping Transfer Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 405A — 1 et seq.). Section 1001 of the Income Tax Act authorizes a 7.5% “penalty” to be assessed per month “or fraction thereof” upon a taxpayer’s failure to file an income tax return. (Ill. Rev. Stat. 1989, ch. 120, par. 10 — 1001.) Sections 1003 and 1005 authorize “interest” at 9% per annum and a 6% per annum “penalty” on unpaid or underpaid income taxes (Ill. Rev. Stat. 1989, ch. 120, pars. 10 — 1003, 10 — 1005). Sections 8 and 9 of the Illinois Estate and Generation-Skipping Transfer Tax Act authorize imposition of a “penalty” at the rate of 5% per month “or fraction of a month” for failure to file an inheritance tax return or pay such taxes and “interest” of 10% per annum on any unpaid tax. Ill. Rev. Stat. 1989, ch. 120, pars. 405A — 8, 405A — 9.

The circuit court first noted that a percentage rate applied per annum required per diem calculation. It then relied on its perception of a distinction between interest penalties, which were authorized on a per annum basis, and noninterest penalties, which were authorized on a monthly basis. Based on that distinction, the court found that the interest penalty authorized in section 224 of the Revenue Act of 1939 was to be collected per diem despite the language that it was to be assessed monthly. However, we find such perceived distinction to be without basis.

First we note that all three statutes contain provisions relating to penalties on delinquent taxes. However, income and inheritance taxes are distinct from real estate taxes. Income taxes and inheritance taxes differ from real estate taxes in that the former require the filing of a return that the latter do not. The rate of penalty percent, whether as an interest penalty or noninterest penalty, is significantly higher in the case of both income and inheritance taxes than that applicable to real estate taxes. Thus, we question whether the provisions relied upon by the circuit court are sufficiently related to the same subject to allow the application of the rule of in pari materia.

Nevertheless, we fail to see the distinction between interest penalties and noninterest penalties relied on by the circuit court. The monthly noninterest penalty provision of section 1001 of the Income Tax Act refers only to the failure to file a return and not the failure to pay such taxes, while both the interest penalty provision and noninterest penalty provisions for failure to pay such taxes are authorized per annum. Thus, the authority to impose a penalty, whether per annum or monthly, is based not on the type of penalty but rather on the express language of the applicable provision of the Income Tax Act. In contrast to the Income Tax Act, the noninterest penalty provision of the Illinois Estate and Generation-Skipping Transfer Tax Act applies to both a failure to file and a failure to pay inheritance taxes and applies monthly, while the interest penalty provision alone is authorized per annum.

We fail to perceive a basis on which the circuit court could properly infer a legislative intent that noninterest penalties be imposed monthly and interest penalties per annum. Rather, although we find that the Income Tax Act and the Illinois Inheritance and Generation-Skipping Transfer Tax Act offer little guidance to determining legislative intent in section 224 of the Revenue Act of 1939, we find the legislature’s choice of the term “monthly” rather than per annum in section 224 supports the county’s argument that real estate taxes are subject to an interest penalty “for each additional month or fraction of a month.” (See, e.g., Ill. Rev. Stat. 1989, ch. 120, par. 405A — 8(a).) However, we find the circuit court’s resort to the in pari materia rule of construction to determine the legislature’s intent in section 224 was unnecessary in light of the reasoning of the supreme court in Santiago.

In Santiago, the supreme court considered the collection of a $10 “cost” assessed as part of the sum necessary for the plaintiff taxpayer to redeem his property from a tax sale. The defendant county in Santiago, just as the county here, conceded that public officials have no taxing power except for that which is delegated to them by law. (See Ill. Const. 1970, art. IX, §10; Santiago, 133 Ill. 2d at 325.) So, too, the disputed penalty in each case was clearly a “tax” within the meaning of the Revenue Act of 1939. (See Ill. Rev. Stat. 1989, ch. 120, par. 482(11).) Therefore, in each case as a prerequisite to invocation of equity jurisdiction, the action challenging the tax required a showing that the tax was unauthorized by law. (Santiago, 133 Ill. 2d at 325-26; see also, e.g., Schlenz v. Castle (1986), 115 Ill. 2d 135, 141-42; Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201-02; North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540, 546; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 105; Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 417-18.) The rules of construction relied upon in Santiago to find that the $10 cost was authorized are particularly compelling here because Santiago implicitly overruled W.F. Smith, which was the only basis for our prior reversal of the dismissal of the taxpayers’ claim for want of equity jurisdiction.

Specifically, we must consider the language that authorizes assessment of a lx/z% interest penalty on a “per month” basis. Further, considering the language of the statute urged by the taxpayers that interest penalties are to be assessed only “until paid or forfeited,” we must consider the construction placed on section 224 by the officials charged with its enforcement and the subsequent amendment of section 224 by the legislature to provide the penalty be assessed “per month or any part thereof.”

Generally, we will defer to a long-standing interpretation of an ambiguous statute by those who are responsible for its enforcement. (Santiago, 133 Ill. 2d at 328; In re Application of Rosewell (1987), 117 Ill. 2d 479, 487.) In this instance, not only the defendant county here but also counties throughout the State have consistently interpreted section 224 to authorize the collection of the interest penalty for the entire month during which real estate taxes were delinquent for any portion of time.

Even more persuasive, however, is the legislature’s action in amending section 224 between our dismissal of the taxpayers’ appeal for want of appellate jurisdiction in April 1989 and the issuanee of our mandate holding that the taxpayers’ complaint survived the county’s motion to dismiss for lack of equity jurisdiction. Although an amendment is normally presumed to change the law, when an amendment is enacted to an ambiguous statute shortly after the ambiguity creates a controversy, the amendment is construed as an indication of the legislative intent of the original statute. (Santiago, 133 Ill. 2d at 329; People v. Rink (1983), 97 Ill. 2d 533, 540-41.) Thus, the addition to the original “per month” language of the statute of the language “or any portion thereof” should be construed to indicate the legislature’s intent in the former version of the statute that interest penalty on delinquent real estate taxes be assessed for the entire month when such taxes remained unpaid for any portion of the month.

We reject the taxpayers’ assertion that the language of section 224 nevertheless requires per diem assessment of the interest penalty. Although section 224 provides that the interest penalty is applicable until paid, an interpretation of “per month or any portion thereof” that authorizes per diem interest would render such language absurd and without meaning. Rather, all language must be construed to give effect to the intent of the legislature, and every word is presumed to have meaning and purpose. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 365-67; Hinsdale Golf Club v. Kochanski (1990), 197 Ill. App. 3d 634, 637.) Thus, only if section 224 is construed to authorize assessment of the interest penalty for the entire month in which real estate taxes remain unpaid for any portion of time can we avoid rendering the language “per month or any portion thereof” surplusage.

The circuit court erred, therefore, in granting the taxpayers’ summary judgment on counts I and II of their complaint. The third count of the taxpayers’ complaint alleged that the assessment of a monthly interest penalty denied them due process and violated their civil rights. However, because the county was entitled to summary judgment as a matter of law on the substance of the taxpayers’ claims, we need not address the taxpayers’ appeal as to count III. (See also Coleman v. McLaren (N.D. Ill. 1985), 631 F. Supp. 749 (legal remedy provided by statute for paying taxes under protest and filing objections to application for judgment (Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716) satisfies due process requirements).) Similarly, having resolved that the county should have been granted summary judgment as a matter of law on each count of the taxpayers’ complaint because the taxpayers failed to demonstrate that section 224 of the Revenue Act of 1939 was unauthorized by law, we need not address either the county’s assertion that the taxpayers’ voluntary payment of the interest penalty bars their claim or the taxpayers’ assertion that the circuit court abused its discretion in failing to certify a class of defendants.

For the foregoing reasons, the judgment of the circuit court dismissing that portion of the taxpayers’ claims relating to the interest penalties imposed after January 1, 1990, is affirmed. Further, we affirm the grant of summary judgment in favor of the county as to count III and reverse the grant of summary judgment in favor of the taxpayers as to counts I and II.

Affirmed in part; reversed in part.

Dunn, J., concurs.

JUSTICE McLAREN,

specially concurring:

I specially concur because I otherwise agree with this court’s determination of the merits of this cause, especially with regard to the Federal civil rights claim. However, the defendants reiterate that the plaintiffs have failed to state a cause of action which ought to be entertained in equity. Therefore, the defendants argue the cause should be dismissed with prejudice as the judgment is void for lack of jurisdiction. Any Illinois court is required, when the issue is raised, to initially determine if jurisdiction lies, e.g., whether a recognized cause of action lies. (Lambert v. City of Lake Forest (1989), 186 Ill. App. 3d 937, 940; Wagner v. Kepler (1951), 411 Ill. 368, 371.) Upon review of the entire proceedings, I believe the plaintiffs have failed to state an equitable cause of action recognizable in the State of Illinois.

The plaintiffs contend that the assessment of interest penalties beyond the date of payment is not authorized by statute and therefore is “unauthorized at law.” This court, in plaintiffs’ first perfected appeal, agreed with plaintiffs’ semantical logic. However, “unauthorized at law” is a term of art and is much narrower than the implications of the prior opinion of this court. “Unauthorized at law” connotes a lack of jurisdiction. It means the lack of authority to be right or wrong. It means what is done is beyond the defendant’s scope of office. The alleged improper act is totally void, not because it was improperly done but because the defendant(s) did not have the power to be right or wrong with regard to his actions. La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 324; People ex rel. Williams v. McDonald (1970), 44 Ill. 2d 349, 351-53; Hulse v. Kirk (1975), 28 Ill. App. 3d 839, 843-46.

It is clear to me, and conceded by the plaintiffs, that the defendants had the power/authority to assess interest penalties. Therefore, the collector’s computation or determination of the amount of the assessment, even if wrong, was not “unauthorized at law.”

Therefore, I would determine the plaintiffs have failed to state an equitable cause of action recognizable in this State, would declare the judgment void, and would dismiss this cause with prejudice without addressing the appeal further, exclusive of the Federal civil rights claim.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STERLING C. FLANERY, Defendant-Appellant.
    Third District
    No. 3—91—0448
    Opinion filed June 5, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Sterling Flanery, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2) and sentenced to a term of 12 years in prison. The defendant appeals. We affirm in part, vacate in part and remand.

At trial, Pamela Mason testified that on October 22, 1990, she was working at a Clark Gas Station in Streator, Illinois. At approximately 9:30 p.m. she noticed a man approaching the station with his T-shirt pulled-up over his nose and mouth. The man was wearing a dark jacket, blue jeans, dark tennis shoes and a blue and yellow hat. The hat had some words on it including the words “Instant Asshole.” Mason also noted the man had facial hair.

The man entered the station and approached Mason. He told her to give him money. He then requested money a second time and pulled a gun from his left coat pocket. He placed the gun against her stomach. She proceeded to open the cash register and give him the paper money. The man placed the gun on the counter and took the money, placing it in his pocket. He picked up the gun and left the station. After he left, Mason telephoned the police.

Mason testified that while the robbery was taking place she recognized the man as Sterling Flanery, the defendant. She stated she had seen the defendant previously three or four times at the station. She had also seen him five or six times at the Monroe Tap located a few blocks from the station. Mason testified she did not smell alcohol on the defendant’s breath. She told the police the man who robbed her was between 5 feet 5 inches and 5 feet 7 inches tall. Subsequently, Mason picked the defendant’s photograph out of a group of eight photographs.

Streator police officer John Krasnicen testified that at about 8 p.m. on October 22, 1990, he saw the defendant standing near the Monroe Tap. Krasnicen described the defendant as wearing blue jeans, a blue windbreaker and a blue and yellow baseball cap, with some writing or “garbage” on it which he could not make out because of the distance. Krasnicen testified that he subsequently went to the Clark station after the robbery and was told by Pamela Mason that she thought the robber was Sterling Flanery.

On the evening of October 22, 1990, Robert Scarbeary and James Christensen were working at the Flink Company in Streator. Flink manufactures snow-removal equipment. The Flink property lies on both sides of Park Street, with a building on the west side of the street and an open lot on the east side of the street. The lot was used for storing snow-removal equipment. That evening, the two men were moving equipment outside when they noticed a man walking along Park Street. The man was stumbling and staggering down the sidewalk. The man was wearing dark clothing and a baseball cap.

From the west side of the street, Scarbeary and Christensen observed the man enter the lot and walk among the snow-removal equipment. The man walked around the lot for up to 15 minutes. He appeared to fall among the equipment. Christensen went inside to notify a supervisor, Elmer Zelenak. Scarbeary watched the man leave the lot and continue on down to Monroe Street. Scarbeary testified that Elmer Zelenak came outside after being notified by Christensen. Scarbeary testified he mentioned to Zelenak that the person looked like Sterling Flanery. Scarbeary testified that Zelenak agreed with him. Zelenak subsequently testified he could not recall Scarbeary saying the man looked like Sterling Flanery.

Scarbeary testified they saw the man about 10 p.m. In an earlier statement Scarbeary indicated the incident took place at 10:30 p.m. or 10:45 p.m. At trial, Scarbeary and Christensen identified the defendant as the man they saw that night. They had also identified the defendant in an eight-photo lineup.

Richard Huffines testified he was working at the Monroe Tap on the night of October 22, 1990. The defendant was already at the bar when Huffines arrived at work. According to Huffines, the defendant left the bar around 7:30 p.m. and returned around 8 p.m. He left again around 9 p.m. and returned at about 10 p.m. The defendant left a third time around 10:30 p.m. Approximately 5 or 10 minutes after the defendant returned a third time, the police entered the bar asking for the defendant. The defendant was arrested at that time.

Mary Jo Lucero testified that she and her niece went to the Monroe Tap around 6 p.m. or 6:30 p.m. on October 22, 1990. They saw the defendant seated at the bar and joined him. Lucero noticed a hat on a beer cooler behind the bar. On the hat was the phrase, “Instant Asshole, Just Add Alcohol.” She inquired of the defendant who the hat belonged to and he responded he did not think it belonged to anyone. Lucero and her niece left the Monroe Tap around 8 p.m. or 8:30 p.m. and returned between 10 p.m. and 11 p.m. The defendant was still at the Monroe Tap when they returned.

Douglas Reynolds testified he worked for the Flink Company. Late in the morning on October 23, 1990, Reynolds was moving equipment in the Flink lot. Among the snowplows, he noticed a blue and yellow hat with the phrase “Instant Asshole” on it. He picked up the hat and found some money. He informed his foreman, Tim Tibbies, and they returned to the lot, where they found a .22 automatic behind a plow, a few feet from where the hat and money were found.

Clell Ivy testified he sold a .22 automatic to the defendant in August of 1990. The sale took place at the Monroe Tap and the parties did not exchange receipts.

The defendant testified that on October 22, 1990, he went to the Monroe Tap around 4:15 p.m. or 4:30 p.m. He left around 7 p.m. or 7:30 p.m. and walked to the Vermillion Club. He returned around 8 p.m.; however, he again left the Monroe Tap around 9 p.m., once again walking to the Vermillion Club. He returned to the Monroe Tap between 10 p.m. and 10:30 p.m. The defendant estimated he was drinking at the rate of three or four beers an hour starting at 4:30 p.m.

The defendant denied robbing the Clark station. He denied going near the Flink Company’s property that night and denied wearing a hat that night. The defendant also denied buying a gun from Ivy. The defendant testified he was 5 feet 11 inches tall.

The jury found the defendant guilty of armed robbery and he was sentenced to 12 years in prison.

On appeal, the defendant contends the evidence was insufficient to prove him guilty beyond a reasonable doubt.

A conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) The relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the instant case, there was no physical evidence, such as fingerprints, linking the defendant to the armed robbery. Nor were there any incriminating statements made by the defendant. The defendant was linked to the crime by the identification testimony of the witnesses.

The prosecution has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 1; People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.) A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.

The defendant argues that the testimony of the witnesses was vague, doubtful and uncertain. For example, he points to the fact that Pamela Mason indicated the armed robber was 5 feet 5 inches to 5 feet 7 inches tall, while in fact the defendant is 5 feet 11 inches tall. Mason did not smell alcohol on the person’s breath while the defendant had been drinking since 4:30 in the afternoon. In talking to the police about who robbed her, Mason used terms like “almost positive” and “thought.” The defendant also argues the identification of the defendant by Mason, Scarbeary and Christensen was unduly influenced by the suggestive photo lineup. The defendant argues that his photograph was the only one which fit the description given by Mason.

Viewing the evidence in the light most favorable to the prosecution, we find the testimony established the identity of the defendant as the armed robber beyond a reasonable doubt.

Mason testified she recognized the defendant during the course of the armed robbery. She told police almost immediately after the robbery. She had seen the defendant on 8 to 10 occasions prior to the robbery. In general, the clothing worn by the defendant that night fit the description given by Mason, Scarbeary and Christensen. Scarbeary had known the defendant for a number of years. He and Christensen picked the defendant’s photograph out of the lineup, and they both testified at the trial that it was the defendant they saw enter the Flink lot the night of the robbery.

The hat with the phrase “Instant Asshole” was seen by a witness in the Monroe Tap, a couple of hours before the robbery. In fact, there was a conversation with the defendant concerning the ownership of the hat. Mason testified the robber was wearing a hat with the phrase “Instant Asshole” on it. The day after the robbery, a hat with the same phrase on it, a gun and money were found among the snow-removal equipment stored in the Flink lot. The defendant was seen entering this lot sometime after 9:30 p.m. on October 22,1990.

In addition, Richard Huffines, who was working at the Monroe Tap on October 22, 1990, testified the defendant left the tavern around 9 p.m. and returned around 10 p.m.

In sum, we do not find the identification testimony to be vague and uncertain. The discrepancies raised by the defendant, such as the height of the robber, were not sufficient to negate the positive identification. The positive identification of three witnesses combined with the circumstantial evidence was sufficient to support the conviction.

Although we affirm the finding of guilt, we find the sentence must be vacated and the cause remanded for a new sentencing hearing. On appeal, the defendant argues the trial court relied on an improper aggravating factor and, alternately, imposed an excessive sentence in light of the facts.

After finding that none of the statutory mitigating factors applied, the court stated, “However, if we turn to the factors in aggravation, certainly the defendant’s conduct caused or threatened serious harm. This was indeed, an armed robbery. The jury has found a gun was used.” The court stated a prison sentence was necessary to deter others. The court also briefly mentioned the defendant had a history of criminal activity, although the court had earlier noted most offenses involved traffic offenses and misdemeanors. (His only felony conviction at the time was a Class 4 felony; driving while his license was revoked.) The court then reviewed the identification evidence in light of the defendant’s continued denial of involvement.

As a general rule, a sentencing court should not consider as an aggravating factor any factor that is inherent in the offense. (People v. Gray (1991), 212 Ill. App. 3d 613, 571 N.E.2d 489.) In the instant case, the evidence presented showed nothing more than the defendant committed a robbery using a dangerous weapon; an element present in every armed robbery. (See Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) Given the discussion of aggravating factors was very brief, we cannot determine how much weight the improper aggravating factor was accorded. Nor can we find, as the State argues, that the statement was merely made in passing. The trial court discussed this factor first in discussing the factors in aggravation.

In addition, even the trial court noted as unusual the relatively minor previous criminal record. The only other factor mentioned was the need to deter others. Given this record it is difficult to determine on what basis, other than the threat of serious harm, the trial court premised the decision to double the statutory minimum of six years. In sum, we find the trial court improperly relied upon the threat of serious harm in sentencing the defendant to 12 years. Therefore the defendant’s sentence must be vacated and the cause remanded for a new sentencing hearing.

Accordingly, the judgment of the circuit court of La Salle County finding the defendant guilty of armed robbery is affirmed; however, the sentence of 12 years in prison is vacated and the cause remanded for a new sentencing hearing.

Affirmed in part; vacated in part and remanded.

HAASE and McCUSKEY, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE CITY OF MAROA, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD, Defendant-Appellant.
    Fourth District
    No. 4—91—0736
    Opinion filed May 14, 1992.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, John C. Filosa, and Maureen J. McGinnis, of counsel), and Erickson, Davis & Murphy, Ltd., of Decatur (Garry E. Davis, of counsel), for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Darrell A. Woolums and William M. Rice, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Illinois Central Railroad (IC) appeals from a summary-judgment entered by the circuit court of Macon County in this declaratory judgment action initiated by plaintiff the City of Maroa (Maroa). In bringing this action, Maroa sought a declaration that IC has abandoned and forfeited its interest in the 200-foot right-of-way within the city limits of Maroa and that Maroa is the owner of this property. IC is a Delaware corporation which is the successor in interest to the Illinois Central Railroad Company (Illinois Central), the charter for which was approved by the Illinois General Assembly on February 10, 1851.

On appeal, the only issue is whether the trial court improperly granted summary judgment because a genuine issue of material fact remains with regard to the right, title, and interest in the subject railroad right-of-way. We affirm.

Maroa’s complaint alleged, and IC’s answer admitted, that (1) on or about June 4, 1990, IC filed a “Notice of Exemption” with the United States Interstate Commerce Commission stating its intention to abandon 10.5 miles of railroad right-of-way in Macon County, including its right-of-way through Maroa; (2) for two years prior thereto, no traffic was moved over said line; and (3) thereafter, the track and ties were removed. IC admits in its brief that the notice of exemption became effective July 27, 1990 (see 49 C.F.R. §1152.50(d)(3), at 354 (1990)). As shown in the documents attached to the motion for summary judgment, the abandoned right-of-way runs from Forsyth to Maroa. The portion of the right-of-way sought by Maroa lies in sections 2 and 11, township 18 north, range 2 east of the third principal meridian.

Pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005), a party may move for summary judgment and may file supporting affidavits. The opposing party may file counteraffidavits. In addition to the affidavits, the trial court may consider the pleadings, depositions and admissions to determine whether any genuine issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. This procedure allows the trial court to determine if a genuine issue of material fact exists, but not to try the issue. While summary judgment facilitates the prompt disposition of lawsuits, it is a drastic remedy allowed only when the moving party’s right to it is clear and free from doubt. In determining the propriety of granting summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Although inferences may be drawn from undisputed facts, an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts. Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.

In this case, the arguments concerning the propriety of the granting the summary judgment turn on the interpretation of the statutes and contracts pertinent to IC’s acquisition of a right-of-way as well as the statute regarding abandonment of such right-of-way. The construction of statutes is a question of law. (Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (1991), 215 Ill. App. 3d 506, 510-11, 575 N.E.2d 556, 559.) Similarly, when there are no material issues of fact involved, the interpretation of a contract is an issue of law. (Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 359, 380 N.E.2d 1089, 1092.) Therefore, since there is no material issue of fact, summary judgment may be an appropriate disposition in the event that the trial court correctly construed the statutes and contracts involved. Of course, where the construction of statutes and contracts is involved, the reviewing court may make an independent determination. Dixon v. City of Monticello (1991), 223 Ill. App. 3d 549, 555, 585 N.E.2d 609, 614; Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 319-20, 369 N.E.2d 525, 528.

The Federal statute which establishes the public policy and provides for the disposition of abandoned and forfeited railroad grants states, in relevant part:

“Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment^] be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid, except lands within a municipality the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality, and this by virtue of the patent thereto and without the necessity of any other or further conveyance or assurance of any kind or nature whatsoever ***.” (43 U.S.C. §912 (1988).)

Defendant argues that the land for the subject right-of-way was not directly granted to IC by the United States and, therefore, the above-quoted statute has no application in the case at bar.

In 1850, Congress passed “An Act granting the Right of Way ***>> LXI, 9 Stat. 466 (1850)) (hereinafter Act of 1850), quoted here in relevant part:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the right of way through the public lands be, and the same is hereby, granted to the State of Illinois for the construction of a railroad from the southern terminus of the Illinois and Michigan Canal to a point at or near the junction of the Ohio and Mississippi Rivers, with a branch of the same to Chicago, on Lake Michigan, and another via the town of Galena in said State, to Dubuque in the State of Iowa, with the right also to take necessary materials of earth, stones, timber, etc., for the construction thereof: Provided, That the right of way shall not exceed one hundred feet on each side of the length thereof, and a copy of the survey of said road and branches, made under the direction of the legislature, shall be forwarded to the proper local land offices respectively, and to the general land office at Washington city, within ninety days after the completion of the same.” (Emphasis in original.) (9 Stat. 466 (1850).)

The second section of the Act of 1850 conveyed additional land in aid of construction of the railroad. This land was designated as the even-numbered sections along the road and branches of the railroad for six sections in width on each side. If that land had otherwise been previously conveyed, then authority was granted to substitute lands of the United States most contiguous to the sections designated in the Act of 1850. See 9 Stat. 466 (1850).

According to defendant’s argument, the right-of-way through Maroa, which is located in section 2, passed to the State of Illinois which, in turn, conveyed the land in fee simple to Illinois Central by deed executed by Governor August C. French on March 24, 1851. The Governor French deed did purport to convey in “fee simple” all the lands granted by the United States to the State of Illinois for the purpose of securing the construction of the railroad. However, a grantor may convey no greater interest in the real estate than the grantor possesses. (Frank v. Frank (1922), 305 Ill. 181, 187, 137 N.E. 151, 154.) Defendant attempts to convince this court that even if the United States had a reversionary interest, the United States has abolished it. (43 U.S.C. §859 (1988).) Section 859 of title 43 of the United States Code provides:

“Where lands have been or may hereafter be granted by any law of Congress to any one of the several States and Territories, and where such law does not convey the fee-simple title of the lands, or require patents to be issued therefor, the list of such lands which have been or may hereafter be certified by the Secretary of the Interior or such officer as he may designate, under the seal of his office, either as originals or copies of the originals or records shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such Act of Congress, and intended to be granted thereby, but where lands embraced in such lists are not of the character embraced by such Acts of Congress, and are not intended to be granted thereby, the lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.” (43 U.S.C. §859 (1988).)

Defendant contends that, even if the United States retained an interest in the property transferred to Illinois in 1850, section 859 creates a fee simple title in Illinois, and therefore in IC. Defendant’s argument cites no authority indicating section 859 applies to the situation before this court. Nor has IC made a part of this record any document or “list” which indicates that the subject land is of the type intended to be covered by section 859.

Before proceeding to a discussion of cases interpreting and applying section 912, the facts underlying the acquisition of the property located in section 11 need to be addressed. Section 11 was not conveyed to Illinois by the Act of 1850. Instead, section 11 was purchased by John C. Dodge and subsequently assigned to David A. Neal, which assignment was recorded in the General Land Office of the United States in November 1852. As a result, the United States gave and granted all rights, privileges, immunities, and appurtenances of whatsoever nature in section 11 to Neal and his heirs and assigns forever. According to IC, on April 26, 1855, Neal dedicated to IC a 200-foot right-of-way in section 11. However, neither party has submitted any document which demonstrates whether Dodge acquired section 11 before or after the Act of 1850. Maroa argues that if Dodge acquired it after the Act of 1850, he took subject to the right-of-way and the plat filed in 1855 by Neal merely recognizes the existence of the right-of-way.

The year of historical significance for understanding the nature of the interests granted to railroads from the United States is 1871. Before 1871, railroads received a limited fee with a right of reverter. After 1871, railroads were granted a lesser interest in property referred to as an exclusive use easement. (See Vieux v. East Bay Regional Park District (9th Cir. 1990), 906 F.2d 1330, 1332-33 (citing United States v. Union Pacific R.R. Co. (1957), 353 U.S. 112, 119, 1 L. Ed. 2d 693, 698, 77 S. Ct. 685, 689; Great Northern Ry. Co. v. United States (1942), 315 U.S. 262, 273-76, 86 L. Ed. 836, 842-43, 62 S. Ct. 529, 533-35), cert, denied (1990), 498 U.S. 967, 112 L. Ed. 2d 414, 111 S. Ct. 430.) Although section 912 was enacted in 1922 (see 43 U.S.C. §912 (1988)), the statute applies regardless of whether the railroad has a limited fee with right of reverter or an exclusive easement. (Vieux, 906 F.2d at 1335.) Section 912 was passed “as part of the Public Lands Act to ensure that railroad rights of way would continue to be used for public transportation purposes.” (Vieux, 906 F.2d at 1335.) (The issue in Vieux was whether an “abandonment” actually occurred — an issue not raised here.)

The Federal courts have already determined that the grant to IC in 1850 is a limited fee subject to an implied condition of reverter if the right-of-way ceased to be used or retained for the purpose for which it was granted. (United States v. Illinois Cent. R. Co. (E.D. Ill. 1949), 89 F. Supp. 17, 23.) This conclusion was approved in a per curiam decision of the United States Court of Appeals for the Seventh Circuit. (United States v. Illinois Cent. R. Co. (7th Cir. 1951), 187 F.2d 374, 375.) Curiously, a half century later, IC asks a State court to rule that two Federal courts misconstrued a Federal statute. Unfortunately for IC, the United States Supreme Court has also indicated that it did not acquire an absolute fee in the railroad right-of-way. Illinois Central R.R. Co. v. Illinois (1892), 146 U.S. 387, 444, 36 L. Ed. 1018, 1039, 13 S. Ct. 110, 115.

IC’s reply brief attempts to dissect the district court decision in Illinois Cent, by reference to two decisions cited therein. Northern Pacific Ry. Co. v. Townsend (1903), 190 U.S. 267, 271, 47 L. Ed. 1044, 1047, 23 S. Ct. 671, 672, held that a grant to the Northern Pacific Railroad was of a limited fee with implied condition of reverter. IC points out that the difference between the Act of Congress in Northern Pacific and the Act of 1850 is that the grant to the Northern Pacific was directly to the railroad. However, a fair reading of the two statutes suggests the reason for this difference. The lands granted to the Northern Pacific, to create a railroad from Lake Superior to Puget Sound, were located within the territories of the United States. The State of Minnesota having given consent, the company was required to obtain consent from any other States through which a portion of its line might pass. (Northern Pacific, 190 U.S. at 268, 47 L. Ed. at 1045, 23 S. Ct. at 671.) The Act of 1850 involved public lands located in the then existing States of Illinois, Mississippi, and Alabama. Each State was to administer the distribution of public lands within its territory. In some respects it could be said the United States was making the State of Illinois its agent or “middleman” for the purpose of creating the railroad in 1850. Furthermore, IC’s predecessor corporation did not even exist in 1850. In the event that the railroad could not be created, the land was to revert back to the United States. As the historical discussion in IC’s brief discloses, there was great difficulty in getting this railroad started and perhaps State involvement was considered necessary in this instance, whereas in later instances, when the profitability of railroads had been demonstrated, it was not.

IC also attacks the use of Great Northern Ry. Co. v. United States (1942), 315 U.S. 262, 86 L. Ed. 836, 62 S. Ct. 529, in the district court’s Illinois Cent, decision. While Great Northern did not discuss the Act of 1850, the district court did not rely on that case in deciding that Illinois Central held a limited fee with right of reverter. Rather, the district court specifically stated that Northern Pacific is the authority which requires the limited fee holding. Illinois Cent., 89 F. Supp. at 23.

IC also contends that a historical analysis suggests that IC holds title in fee simple. The history of the “checkerboard” grants for creation of railroad rights-of-way is recounted in Leo Sheep Co. v. United States (1979), 440 U.S. 668, 669-77, 59 L. Ed. 2d 677, 680-85, 99 S. Ct. 1403, 1405-09, including reference to the Act of 1850. In addition, the Illinois Supreme Court has recited the history of the creation of the Illinois Central Railroad in State v. Illinois Central R.R. Co. (1910), 246 Ill. 188, 195-201, 92 N.E. 814, 820-22.

In construing a statute, the courts may consider the history of the times when it was enacted in order to ascertain the reason for, as well as the meaning of, a particular provision. (Leo Sheep Co., 440 U.S. at 669, 59 L. Ed. 2d at 680, 99 S. Ct. at 1405.) However, courts are not at liberty to consider the views of individual members of Congress in debate and the motives which influenced them to vote for or against the passage of the provision. (United States v. Union Pacific R.R. Co. (1875), 91 U.S. 72, 79, 23 L. Ed. 224, 228.) Although the history related by IC in its brief, as taken from these authorities and others, demonstrates a strong desire to create a north-south railroad through Illinois and the initial inability to get the job accomplished, the history does not demonstrate that there was an intent on the part of Congress to grant a fee simple absolute instead of a limited fee with right of reverter by reason of the Act of 1850. The language of the Act of 1850 clearly evidences an intent on the part of Congress to convey public land for a right-of-way for the construction and operation of a railroad and for no other purpose. Therefore, we, too, construe the Act of 1850 as conveying to Illinois a limited fee with right of reverter, and Illinois could not create a greater interest in IC’s predecessor.

IC relies on Illinois Cent. R. Co. v. Chicago, B. & N. R. Co. (N.D. Ill. 1886), 26 F. 477, for the proposition that the Act of 1850 conveyed a fee simple absolute in the State of Illinois. Interestingly, the position of IC’s predecessor in that case was contrary to IC’s present argument. Chicago, Burlington & Northern (CBN) commenced a State court proceeding to condemn part of the Illinois Central right-of-way, and Illinois Central sought to enjoin the action in Federal court. CBN then moved to dismiss the Federal court proceeding for want of jurisdiction. In discussing the Act of 1850, the court stated:

“The grant was made for the purpose, in the main, of encouraging settlement, and thus developing the resources of the state and promoting the welfare of the people. It was a grant by the United States to the state on the faith that the latter, as a sovereign, would see that the conditions of the grant were complied with. It was not the intention of congress to provide for the building of lines of railroad within the state of Illinois which should be perpetually maintained for the benefit of the United States.
It is insisted by counsel for the Illinois Central Company, in support of the jurisdiction of the court, that the act of congress became a substantial part of the company’s charter, and that the company became directly bound to the United States to perform the conditions of the congressional grant; that the company took the land granted for right of way charged with a use or public trust; and that the company holds it protected against the state’s right of eminent domain. I do not think this position is tenable. The United States has parted absolutely with its title to these lands. It has no more interest in them than it has in any other land which it has disposed of. Lands owned by the United States within a state, and not held for a public purpose, are subject to the state’s right of eminent domain and taxation, the same as lands owned and held by individuals. *** The United States does not own or hold the right of way in question in any sense, and it certainly has no such interest in the right of way as denies to the state the right to take it for necessary public uses.” (Chicago, B. & N. R. Co., 26 F. at 478.)

The issue in Chicago, B. & N. R. Co. was whether there was sufficient Federal interest in the disputed property to invoke Federal jurisdiction. As between two railroads, the United States would not have an interest in determining which operated on and along the right-of-way. A railroad could not, however, transfer the land so granted or lose it by adverse possession to persons whose ownership would be inconsistent with the purpose for which the land was granted. (Northern Pacific, 190 U.S. at 271-73, 47 L. Ed. at 1047, 23 S. Ct. at 672-73.) It was gratuitous and unnecessary for the court to suggest that the United States had parted absolutely with title. In addition, it was an incorrect statement as demonstrated by the Seventh Circuit’s per curiam affirmance of the district court’s decision in lili nois Cent. (187 F.2d at 375) and the United States Supreme Court’s reference in Illinois Central R.R. Co. (146 U.S. at 444, 36 L. Ed. at 1039, 13 S. Ct. at 115).

There is no distinction for our purposes between the right-of-way passing through sections 2 and 11. IC’s predecessor was granted one continuous line, not fragments. To the extent that the United States has a right of reverter, it has a right of reverter to all of it. In H.A. & L.D. Holland Co. v. Northern Pac. Ry. Co. (9th Cir. 1914), 214 F. 920, the court considered the title acquired under the Northern Pacific Land Grant Act of July 2, 1864 (13 Stat. 365), which granted the odd-numbered sections along the right-of-way in aid of construction. The court held that merely because the part of the right-of-way in question was located in an odd-numbered section did not mean that the railroad took absolute title because Congress intended to grant a continuous line and did not contemplate in the case of reversion that only disconnected fragments would be returned. (H.A. & L.D. Holland Co., 214 F. at 924.) The court rejected the argument that when the railroad acquired the alternate sections of land through which its right-of-way passed, the title merged, stating the merger doctrine is subordinate to the legislative intent of the granting act. (H.A. & L.D. Holland Co., 214 F. at 925.) This means section 912 of title 43 of the United States Code applies regardless of how the railroad acquires title to the section through which the right-of-way passes.

In City of Buckley v. Burlington Northern R.R. Cory. (1986), 106 Wash. 2d 581, 723 P.2d 434, in a proceeding by a municipality to quiet title to an abandoned right-of-way pursuant to section 912, summary judgment in favor of the railroad was reversed. The court noted that section 912 was enacted in response to Northern Pacific and H.A. & L.D. Holland Co. and for the purpose of disposing of the Federal government’s reversionary interests in the rights-of-way. City of Buckley, 206 Wash. 2d at 583, 723 P.2d at 436.

The continuity of right-of-way theory as applied to the case at bar requires that the entire right-of-way, including that located in section 11, must be considered as a whole. In this case, under the Act of 1850, the even-numbered sections were granted on either side of the right-of-way in aid of construction of the railroad. But nothing in the Act of 1850 requires that the right-of-way pass only through even-numbered sections. The right-of-way itself was effective from the date of the Act of 1850. (Northern Pacific Ry. Co. v. Hasse (1905), 197 U.S. 9, 10, 49 L. Ed. 642, 643, 25 S. Ct. 305, 305.) The rights of persons who acquired public lands after the passage of the Act of 1850 were subject to the right-of-way of the railroad. Bybee v. Oregon & California R.R. Co. (1891), 139 U.S. 663, 679-80, 35 L. Ed. 305, 309, 11 S. Ct. 641, 644.

Unfortunately, we do not know precisely when Dodge purchased the property. Both parties resort to histories which are not part of the record. Maroa specifically refers to a history which details the relationship of Dodge and Neal to IC’s predecessor. Maroa has not cited authority that these matters which are not part of the record may be considered as facts on a motion for summary judgment.

Summary judgment is not precluded, however, merely because the parties have not established the precise date of Dodge’s acquisition of section 11. IC argues its predecessor obtained the right-of-way from Neal, Dodge’s assignee, but the record does not contain a copy of a deed or grant of easement from Neal to IC’s predecessor. Instead, IC argues a plat which was made part of the record is evidence Neal dedicated land for the right-of-way through section 11.

Maroa has met its burden of proof. The documents on file establish there was a Federal grant of public lands for the purpose of creating a railroad and that the portion of the right-of-way through Maroa has been abandoned. Contrary to IC’s contention, Maroa does not have to prove the grant was made directly to the railroad company from the United States. Section 912 does not impose such a requirement. Therefore, the involvement of the State of Illinois in this process of establishing the railroad right-of-way is no bar to this action. As a partial defense, however, IC attempts to raise an 1855 “dedication” of the right-of-way through section 11 by Neal to establish that that portion of the right-of-way was not created by the Act of 1850. The party proponent of a dedication has the burden of proof with regard to the valid establishment of the dedication. (See H.A. Hillmer Co. v. Behr (1914), 264 Ill. 568, 577, 106 N.E. 481, 485; 16 Ill. L. & Prac. Dedication §41 (1971).) One of the first elements which must be established is that the person purporting to make a dedication is actually the owner of the subject property. In order to prove that Neal owned the land over which the right-of-way through section 11 passed, IC had to prove that Neal’s predecessor, Dodge, acquired section 11 prior to the enactment of the Act of 1850. This IC failed to do. The dedication language in the plat does not create a presumption that Dodge owned the land prior to the Act of 1850. There is also the question of whether a “dedication” to a private railroad company is a dedication for public use, but it is unnecessary to consider that question in this case.

In summary, this case deals only with the right-of-way granted by the Act of 1850, and does not in any way affect the conveyance of surrounding land granted in aid of construction of the railroad which is unaffected by section 912. Although a railroad right-of-way may be owned in fee simple absolute (Urbaitis v. Commonwealth Edison (1991), 143 Ill. 2d 458, 465-73, 575 N.E.2d 548, 551-54), the Act of 1850 granted a limited fee with a right of reverter. There is no evidence that Dodge, Neal, or any other person or entity owned any of the subject property prior to the enactment of 1850. Section 912 of title 43 of the United States Code provides that, on abandonment of that portion of the right-of-way passing through Maroa, all rights, title, and interest in that portion of the right-of-way are to pass to Maroa. There is no evidence that the subject right-of-way is on any list created by the Secretary of the Interior of the United States for the purposes of section 859 of title 43 of the United States Code. Therefore, summary judgment was properly entered in favor of Maroa by the circuit court of Macon County, and that judgment is hereby affirmed.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE LUND

text:
    BRIAN BAILEY, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—91—0888
    Opinion filed April 30, 1992.

      Richard B. Opsahl, of Rantoul, for appellant.
    Gary D. Nelson and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Brian Bailey initiated an action for declaratory judgment in the circuit court of Champaign County to determine whether he is entitled to aggregate the limits of coverage from two auto insurance policies issued by the same insurer. Defendant’s motion for summary judgment was granted, and this appeal follows.

Plaintiff contends that (1) the clause limiting the “stacking” of uninsured motorist coverage is ambiguous and should be construed in favor of the insured; and (2) the fact that plaintiff paid two separate premiums for uninsured motorist coverage indicates that the intent of the parties is unclear and the court should favor an interpretation that plaintiff had purchased additional indemnification through the second premium.

Plaintiff holds an automobile insurance policy on a 1984 Buick Riviera that provides uninsured motorist coverage of $50,000. He holds an identical policy from the same company on a second car. Both policies include an itemized charge of $9.13 for the uninsured motorist coverage. Plaintiff was operating a nonowned, uninsured vehicle when he was struck by an uninsured motorist. Plaintiff claims that because the vehicle he was operating was not one of the vehicles insured by defendant, defendant is thereby bound by the uninsured motorist provisions of the policy to pay the limit of liability expressed in each of the declarations of coverage, for a total of $100,000. Defendant claims that the policy clearly and unambiguously precludes the “stacking” of uninsured motorist coverage and, therefore, limits its liability to $50,000, the coverage limit on each of the auto policies.

The threshold inquiry is whether the “limits of liability” clause is clear and unambiguous. If the clause is ambiguous, the policy must be construed in favor of the insured. If it is unambiguous, there is no need for construction and the clause may be applied as written, unless it contravenes public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541.) Defendant relies on policy language in the first two paragraphs of the section titled “Conditions,” where it states:

“1. APPLICATION OF LIMITS OF LIABILITY. Regardless of the number of *** (4) automobiles to which this policy applies, the Company’s liability shall be limited as provided in Condition 2.
2. LIMITS OF LIABILITY. The limit of liability expressed in the Declarations with respect to Coverages A and D as applicable to ‘each person’ is the limit of the Company’s liability for all damages, including damages for expenses, care and loss of services, arising out of bodily injury to one person in any one occurrence ***.”

(“Coverage D” is the provision for uninsured motorist coverage.)

In Menke, the supreme court held that a similar limitation on coverage stacking was permissible, as long as it was stated unambiguously. There, the plaintiff held three separate policies from Country Mutual Insurance Company for his three vehicles. Each policy had a limit of $10,000 for uninsured motorist coverage, and the plaintiff paid a separate premium for the coverage on each policy. Like the present case, the insured was injured while riding in an uninsured vehicle. The plaintiff claimed he was entitled to aggregate the uninsured motorist coverage, for a total recovery of $30,000, while the defendant insurer claimed its liability was limited to the $10,000 coverage on each policy. After reviewing the policy provisions limiting liability, the court concluded that the policy was not ambiguous and clearly precluded the “stacking” of coverage among the three policies. The actual clause limiting liability in the Menke case reads:

“ ‘With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.’ ” Menke, 78 Ill. 2d at 423, 401 N.E.2d at 541.

In a similar case, Hanover Insurance Co. v. Cormack (1979), 78 Ill. App. 3d 368, 396 N.E.2d 1076, plaintiff’s son was killed while a passenger in an uninsured auto. Plaintiff claimed he was entitled to “stack” the uninsured motorist coverage and demanded a separate $20,000 for each of the three autos he insured under the policy. Relying solely on the “Limits of Liability” clause, the court found the provision unambiguous and held that plaintiff would not be allowed to “stack” the coverages. The language used in that case is nearly identical with the language limiting liability in the case at hand. The provision in Hanover reads:

“ ‘Regardless of the number of *** automobiles *** to which this policy applies ***
(C) the limit for Uninsured Motorist Coverage stated in the declarations as applicable to each accident is the total limit of the company’s liability for all damages because of bodily injury sustained by one or more persons as a result of one accident.’ ” (Hanover, 78 Ill. App. 3d at 370, 396 N.E.2d at 1077.)

The only difference between the provision in Hanover and the provision in the present case is that it was written for each “accident” instead of each “person,” a fact that does not alter our analysis. The Hanover court emphasized the introductory phrase, “ ‘Regardless of the number of *** automobiles *** to which this policy applies,’ ” as the critical element in its holding that the language prohibiting “stacking” was unambiguous and conveyed the clear intent of the parties. This critical phrase is repeated verbatim in the clause limiting liability in the case at hand.

Plaintiff relies on Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044, where the court held that language limiting “stacking” of coverage in an uninsured motorist provision was ambiguous and, therefore, allowed plaintiff to aggregate the coverage. However, as the Hanover decision points out, the contract language in Squire lacked the key phrase, “ ‘Regardless of the number of *** automobiles *** to which this policy applies,’ ” and is therefore distinguishable. Hanover suggests that since the decision in Squire was based on the lack of clear policy language precluding “stacking,” the presence of such language clearly distinguishes the two cases. We find that the provisions prohibiting the “stacking” of policy coverages in the instant case are substantially identical with the provisions in both Menke and Hanover. The provision is likewise both clear and unambiguous in its prohibition of “stacking” coverages.

Plaintiff next contends that since separate premiums of $9.13 for uninsured motorist coverage were paid, the intention of the parties is unclear and the court should favor an interpretation that the insured was paying for additional coverage. Plaintiff’s reliance on the Squire case for the notion that the existence of two premiums creates a fundamental ambiguity is misplaced. As that court stated, “[H]ad the insurance company intended the additional [premium] to provide anything other than” additional indemnification “it should have so stated.” (Squire, 69 Ill. 2d at 179, 370 N.E.2d at 1049.) In the present case, defendant did state the limits of coverage.

The notion that separate premiums necessarily indicates separate coverage is often referred to as the “premium rule,” and is based on the concept that insurance companies should not be permitted to collect premiums for a given amount of coverage and thereafter apply limiting clauses to reduce or absolve their liability to the insured.

“[T]he ‘Premium Rule’ is best understood as a mere explication of the general rule that the insured is to be favored in construing insurance policies. Consequently, the ‘Premium Rule’ should be viewed as a rule of construction, and should not be applied unless the insurance contract reveals an ambiguity as to the amount of coverage intended.” (Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 641, 410 N.E.2d 150, 152-53.)

We find no ambiguity in the language describing the limitations of coverage, and therefore no need to apply the “premium rule.”

Next, plaintiff asks that we adopt the holding in Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247, where the court looked beyond the clear language of the policy precluding “stacking” of coverage and held that the policy did not meet the reasonable expectations of the insured. Glidden is not applicable here because the provisions relied upon in that decision deal with the “stacking” of coverages between different insurers, a so-called “other insurance” clause. Unlike Glidden, in the case at hand the provisions limiting liability specifically refer to limitations in the event of multiple policies issued by the same insurer.

Finally, plaintiff contends that the specific language used to prevent “stacking” of medical coverage printed at the bottom of the declaration sheet indicates that the insurer had knowledge that without this language, the coverage for passenger injury would be ambiguous. The provision in question reads, “Passenger accident coverage written on more than one vehicle does not increase the stated limit per person.” Plaintiff contends that defendant knew the language in the limits of liability clause was ambiguous and attempted to rectify this situation relative to “passenger accident coverage.” Once again, we need only look to theories of the parties’ knowledge and intent when the language of the policy is ambiguous. The existence of any such subjective intent is rebutted by the clear and unambiguous language of the policy. (Menke, 78 Ill. 2d at 425, 409 N.E.2d at 542.) As we see no material issue of fact, the motion for summary judgment is affirmed.

Affirmed.

McCULLOUGH and COOK, JJ., concur.