author: Mr. JUSTICE McGLOON

text:
    The People ex rel. Oak Supply & Furniture Co., Plaintiff-Appellee, v. The Department of Revenue et al., Defendants-Appellants.
    (No. 59630;
    First District (3rd Division)
    October 17, 1974.

      William J. Scott, Attorney General, of Chicago, for appellants.

      Edward A. Berman and Lewis W. Schlifkin, both of Chicago, for ap-pellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This case involves the interpretation of section 10 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 449). Pursuant to the statute, the plaintiff corporate taxpayer under investigation for alleged non-compliance with the Retailers’ Occupation Tax Act requested the Illinois Department of Revenue hearing officer to issue subpoenas duces tecum to two named individuals, but the hearing officer refused to do so. The taxpayer corporation brought an action for a writ of mandamus in the circuit court of Cook County to compel the issuance of the subpoenas. The circuit court interpreted the statute in favor of the taxpayer and issued the writ. The Department of Revenue appeals from this order, claiming that the trial court erred in its interpretation of the statute.

We affirm.

The pleadings reveal the following facts. On June 28, 1972, the Department of Revenue of the State of IH'nois issued a notice of tax liability to the plaintiff corporate taxpayer, Oak Supply and Furniture Co., for alleged revenue deficiencies under the Retailers’ Occupation Tax Act, the Use Tax Act, and the Service Tax Act. The taxpayer (Oak) contested its liability and the matter was set for a hearing before the Department’s hearing officer.

Prior to the hearing, Oak sent the following letter to the hearing officer:

“This letter will serve as a request that you issue Subpoenae to Lennard Jelinek and Sheldon Copeland at Oak Supply and Furniture Co., 723 West Jackson Boulevard, Chicago Illinois, requesting that they appear for the hearing in this matter on April 10, 1973, at 11:00 A.M.; and that they bring with them at that time the following: [Oak’s business records] * *

Such a request for subpoenas is authorized by section 10 of the Retailer’s Occupation Tax Act, which provides that:

“The Department or any officer or employee of the Department designated, in writing, by the Director thereof shall at its or his own instance, or on the written request of any other party to the proceeding, issue subpoenas requiring the attendance of and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records or memoranda. * * * ” (Emphasis added.)

The hearing officer refused to issue the subpoenas because the two named individuals were employees of Oak and the officer felt a subpoena would have been unnecessary for Oak to produce its own records, if it wished to do so in its own defense. Furthermore, section 9 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 448) provides automatic transactional immunity from criminal prosecution to a natural person who testified at a Department of Revenue investigation or hearing pursuant to subpoena. The Department alleged that had it issued the two subpoenas as requested, section 9 immunity would have automatically attached to Jelinek and Copeland, and the State would not have been able to pursue the criminal charges then pending against the two gentlemen under section 13 of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 452), pertaining to the filing and signing of the allegedly fraudulent returns upon which the corporation’s tax deficiency was based. Subsequent to the circuit court’s ruling and prior to the oral arguments in this case, the criminal charges against Jelinek and Copeland reached disposition.

Oak’s position is that section 10’s specific language makes the issuance of subpoenas by the Department of Revenue a purely ministerial function to be exercised without resort to discretion. “The Department * * * shall * * * on the written request of any other party to the proceeding, issue subpoenas * * Further, Oak stresses that the criminal charges which prompted the Department’s original reluctance to issue the subpoenas are now moot, leaving only Oak’s action for a writ of mandamus for this court’s determination, without need to consider the implications of section 9’s automatic immunity provisions.

The Department of Revenue’s contention on appeal is that such a narrow construction of section 10 is contrary to the legislative intent and purpose because it amounts to an abuse of the subpoena power and effectively nullifies the criminal provisions of section 13. It is argued that the legislature never intended that section 10 coupled with section 9’s automatic immunity provision would enable a corporate taxpayer suspected of having filed false Retailers’ Occupation Tax returns to shield its employees from personal criminal liability merely by asking the Department of Revenue’s hearing officer to issue subpoenas to the allegedly culpable parties.

The Department submits instead that section 10 should be read as compelling the issuance of subpoenas at the request of a party in all cases except where that party can voluntarily produce the persons or documents requested. It is alleged that tire two named individuals were obligated, by the nature of their relationships with the corporation, to testify and produce récords on behalf of the corporation. The Department concludes that since Oak can voluntarily produce Jelinek, Copeland, and the records, Oak does not have a legitimate need for the requested subpoenas.

The Retailers’ Oceupátion Tax Act must be read as a whole, notwithstanding Oak’s contention that we should not consider the now-moot criminal immunity implications raised by section 9. Reading sections 9 and 10 together, we agree with the State’s argument that these statutes can bring about bizarre results that may subvert the expected course of criminal prosecution of those persons accused of filing fraudulent Retailers’ Occupation Tax returns, but we hold, for the reasons expressed herein, that the statutes require such a construction. It is for the courts to construe and interpret statutes that are vague or ambiguous so that the legislative intent is given its proper effect, not to give different meanings to clearly written statutes which reflect the content intended by the General Assembly. A court cannot “usurp the province of the legislature in the making of laws nor ignore the plain language of the statute. The making of laws lies in the province of the legislature. A court has no right to say that the legislature did not mean what in plain language it said,” (Fowler v. Johnston City & Big Muddy Coal and Mining Co. (1920), 292 Ill. 440, 452) and must give effect to the legislature’s intention regardless of the consequences. 34 I.L.P. Statutes § 116 (1958); Louisville & N.R.R. Co. v. Industrial Board (1917), 282 Ill. 136, 140, 118 N.E. 483.

Accordingly, we find that section 10 of the Retailers’ Occupation Tax Act compels the Department of Revenue to issue subpoenas upon the written request of any party to its proceedings, notwithstanding that certain culpable individuals may escape criminal liability due to the operation of section 9. We base our decision upon the language of the statute, the legislative intent, and the rule of strictly construing revenue laws against the government.

First, we consider the language of the statute, which uses the word “shall.” The Department’s position is that “shall” can be read as either mandatory or directory, depending upon the legislative intent, citing Zbinden v. Bond County Community Unit School District No. 2 (1954), 2 Ill.2d 232, 117 N.E.2d 765. The rule in Zbinden can be easily distinguished from the facts at bar by an understanding of the terms “mandatory” and “directory.” Questions of whether a statute is mandatory or directory arise when a governmental official or body has failed to follow a statutory instruction and the consequences of such failure must be determined. 2A Sutherland, Statutes and Statutory Construction § 57.01 (4th ed. Sands 1973) provides an accurate categorization of the consequences of such failure (at 413): “If the violation or omission is invalidating, the statute is mandatory; if not, it is directory.” In the instant case, we do not have a problem involving the question of whether the Department’s investigations or acts are invalid because it failed to issue the subpoenas as requested; rather, the problem under consideration is whether the word “shall” can be construed as being either mandatory or discretionary. Simply put, does “shall” mean “may” in the context of section 10 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 449)?

In Canal Commissioners v. Sanitary District (1900), 184 Ill. 597, 56 N.E. 953, the Illinois Supreme Court held that the word “shall” can be construed as “may” where the legislative intent would so indicate. In that case, the question was whether the Sanitary District of Chicago had the duty (shall) to remove two expensive dams from the Illinois River even though such an act would make the then-thriving Illinois and Michigan Canal non-navigable and cause the loss of toll revenues. The court found the word “shall” to mean “may” in light of the legislative intent, which the court said was not to destroy the Illinois and Michigan Canal’s benefits to the people of the State of Illinois. Accord, Cooper v. Hinrichs (1957), 10 Ill.2d 269, 140 N.E.2d 293.

To properly construe “shall,” we must determine the legislative intent, and to do so we shall utilize two rules of statutory construction. First, we follow the rule as set forth in Certain Taxpayers v. Sheahen (1970), 45 Ill.2d 75, 84, 256 N.E.2d 758, 764.

“The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. [Citation.] The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. [Citations.] It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent.”

Applying the rule to the facts in this case, we find that the use of “shall” was intended by the legislature to make the issuance of subpoenas by the Department of Revenue mandatory because the language in the statute is certain, unambiguous, and capable of no other reasonable interpretation.

The second rule we follow regarding the determination of the legislative intent is that the legislature is presumed to know the effect of statutes that have already been construed by the courts. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 849, cert. denied, 402 U.S. 972.) In People v. Finkelstein (1939), 299 Ill.App. 363, 20 N.E.2d 290, rev’d on other grounds (1939), 372 Ill. 186, 23 N.E.2d 34, the State attempted to prosecute an individual under the Revenue Act’s criminal provisions after that person testified concerning his corporate employer pursuant to a Department of Finance (now Department of Revenue) subpoena. The court interpreted section 9, which is the same today as it was then, to be “so plain and unambiguous that it requires no judicial interpretation,” (299 Ill.App. at 381) conferring immunity upon the accused corporate employee.

Since the legislature has not mod'fied section 9 in the 35 years since Finkelstein was filed, we must assume that it recognizes and approves of the automatic immunity provision and considered the section’s effect when used in conjunction with section 10, the statute in question.

We note, however, that this court has not been asked to rule upon the current substantive validity of People v. Finkelstein, supra, and expressly does not make such a decision in this case. A recent article, Witness Immunity Statutes in Illinois — Time For a Change, 7 John Marshall J. Prac. & Proc. 175, 182 (1973), questions whether Finkelstein would ever be followed, and we do not intend, in the context of this case, to answer this question or provide any dicta for use in such a future case, should one ever arise. Our use of Finkelstein is limited to noting that the legislature should have had notice of its existence and apparent effect at the times the General Assembly enacted and amended section 10 (Ill. Rev. Stat. 1971, ch. 120, par. 449).

Finally, this court is gu’ded by the spec'fic rule for tire construction of revenue statutes as set forth most recently in City of Chicago v. Neher (1972), 5 Ill.App.3d 22, 25, 282 N.E 2d 521, 524. In that case, Justice Leighton wrote, “* * * we are bound by the princ ple that revenue laws should be given liberal and reasonable construction, but in case of doubt they must be construed strictly against the government and may not be extended by imph'cation.”

In the instant case, this rule clearly precludes the extension of section 10 to include the concept of discretion on the part of the Department of Revenue when asked to issue subpoenas by a corporate taxpayer under investigation.

For the abovementioned reasons, the judgment of the circuit court of Cook County granting the writ of mandamus is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Sherman Bickham, Petitioner-Appellant.
    (No. 57204;
    First District (4th Division)
    November 13, 1974.
    Kenneth N. Flaxman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Edward J. Ozog, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

In June of 1965 the defendant, Sherman Bickham, was indicted for the crimes of rape and taking indecent liberties with a child. The public defender was appointed to represent him. Subsequently, at the request of the defendant, the public defender was given leave to withdraw, and appointed counsel entered his appearance and represented him. On October 27, 1965, a jury found him guilty of indecent liberties with a child, and he was sentenced to serve 14 to 20 years in the penitentiary. On appeal in this court, the defendant contended that he did not receive a fair and impartial hearing, and that he was not proved guilty beyond a reasonable doubt. His conviction was affirmed (People v. Bickham, 91 Ill.App.2d 465, 235 N.E.2d 400 (1968)), and the Illinois Supreme Court denied his petition for leave to appeal. Defendant then sought Federal habeas corpus relief, but the matter was remitted to the State courts to exhaust State remedies.

On February 20, 1969, the defendant filed a pro se post-conviction petition in the circuit court, and the public defender was appointed to represent him. On March 18, 1970, a hearing was held on the State’s motion to dismiss. During the proceedings, the public defender explained the gravamen of the allegations in the petition. In essence, it charged that Mrs. Mildred Bland, the mother of the prosecuting witness, had committed perjury at his trial, and that the defendant’s conviction was a product of this perjured testimony. The public defender stated that he had an affidavit from Mrs. Bland in which she admitted to having given false testimony. The court inquired as to whether the affidavit was available at trial, and counsel replied that it was not. He further stated that he spoke to the appeal lawyers, and they advised him that they could not use it because it was outside the record. At the conclusion of oral argument, the trial judge dismissed the defendant’s pro se petition without an evidenti-ary hearing. The defendant appealed to our supreme court, and the State confessed error in the summary dismissal of the defendant’s post-conviction petition. On June 21,1971, the Supreme Court reversed the dismissal order and remanded the cause for further proceedings. New counsel other than the public defender was appointed at the request of the defendant.

On August 30, 1971, defendant filed an amended post-conviction petition in which he alleged that his conviction was based on the State’s “knowing use” of perjured testimony of Mrs. Bland. An evidentiary hearing was conducted, and the petition was dismissed on the merits. Notice of appeal was timely filed, but in December of 1972 the cause was dismissed in this court for want of prosecution. We subsequently reinstated the cause on our docket and present counsel was appointed to represent defendant. On January 23, 1974, the defendant filed his brief together with a motion to file a second amended post-conviction petition to conform to the evidence heard in the trial court. Defendant contends that the plead'ngs before the trial court alleged solely that his conviction was secured by the “knowing use” of perjured testimony, and that his second amended petition involves a different matter — the “unknowing use” of perjured .testimony. He further asserts that his second amended petition conforms to the evidence, and that it sets forth a constitutional deprivation cognizable under the Post Conviction Hearing Act.

In his second amended petition, defendant contends that he is entitled to a new trial because (1) Mrs. Bland, the mother of the prosecuting witness, gave perjured testimony at his trial; (2) the perjured testimony was material to his conviction; (3) defendant’s attorney had in his possession an affidavit executed by Mrs. Bland in which she confessed to this perjury; and (4) through the negligence of defendant’s counsel, he was effectively barred from asserting the affidavit as a ground for section 72 relief (Ill. Rev. Stat. 1971, ch. 110, par. 72), since the statutory 2-year period for filing had lapsed. Defendant argues that the failure to file a section 72 petition is of particular importance in this instance, since it is flie only appropriate vehicle by which to obtain relief from an unrighteous judgment based on the “unknowing use” of perjured testimony. (People v. Lewis, 22 Ill.2d 68.) Defendant further urges that we exercise our power under Supreme Court Rule 366(a)(5) to vacate outright his conviction in light of the exceptional circumstances of this case.

The State contends that (1) the defendant failed to prove that Mrs. Bland committed perjury; (2) the “unknowing use” of perjured testimony is not a Fourteenth Amendment violation sufficient to support a post-conviction petition; (3) the deprivation of the right to file a section 72 petition is not a constitutional infringement cognizable under the Post Conviction Hearing Act; and (4) defendant waived his right to contest incompetency of counsel by failing to raise the issue in his first amended post-conviction petition, and should not be allowed to raise this question here for the first time.

The thrust of defendant’s argument is that he is entitled to relief because his conviction is the product of perjured testimony. We note from the record that in the trial of this cause, Mrs. Bland first testified as a witness for the State. On direct, she said that she resided with her two daughters, one of whom was Doris, the complaining witness. Doris was 15 years of age. The defendant was her boyfriend. She was not home at the time her daughter was allegedly raped by the defendant. On cross-examination Mrs. Bland explained that she was engaged to the defendant and had his ring. The defendant came to her house on weekends and often slept there. They frequently engaged in sexual intercourse. Defense counsel, at the conclusion of h's examination of Mrs. Bland, requested leave to call her agam as a witness. Subsequently, she was recalled as a witness for the defense. She testified that her daughter, Doris, told her that she got rid of the defendant, and that she hated him and would do anything to put him away. On cross-examination by the State, she further testified that her daughter hated the defendant because he chased her teenage companions out of the house late at night. She also tore up defendant’s picture and broke a record player he bought for Mrs. Bland. The follow'ng day, Mrs. Bland was called by the State as a rebuttal witness. She testified that her, previous statements, concenrng her daughter’s wanting to put the defendant away, were not true. She further testified that she wished to change her testimony. She explained that defendant used to beat her up, and that her fear of defendant caused her to make those statements about her daughter. She also stated that he drank and needed medical treatment, and that he might kill her daughter.

The State stresses that defendant waived his right to assert before us the matter of incompetency of counsel by failing to raise the issue in his first amended post-conv'ction petition. While there is substance to this argument, we nevertheless prefer to decide this cause on the merits.

The record reveals that on December 1,1971, a full evidentiary hearing was held on the matters raised in both the post-conviction petition and the first amended petition. In response to questioning by defense counsel, Mrs. Bland test fied that in June following the defendant’s conviction, she had visited the defendant in the pen'tentiary. He threatened to kill her and her daughter if she did not sign an affidavit. Accordingly, on December 28, 1965, Mrs. Bland executed an affidavit which provides in pertinent part as follows:

“6. Much of my testimony that day was not true. I gave false evidence because Officer Johnny Cross of the Grand Crossing Police Station had shown me Mr. Bickham’s long criminal record. Officer Cross told me that if the defendant did not receive treatment he would harm my daughter, Doris, and myself. Officer Cross also told me that if the defendant were convicted that he would be sent away for two or three years to be cured of his alcoholism. As a result of my fear of the defendant, Sherman Bickham, and because I wanted the defendant to be cured of his alcoholism, I gave substantially false testimony so that Mr. Bickham would be sent away for a cure.”

At the post-conviction hearing, Mrs. Bland admitted that Officer John Cross showed her a criminal record which indicated that the defendant “raped a girl when he was 15.” However, she stated that this did not cause her to change her testimony since she was already aware of the prior conviction. She firmly maintained that her decision to change her testimony at trial was entirely her own, and that no one had influenced her in making this determination. Mrs. Bland further explained that she testified on behalf of the defendant in the first instance only because she was deathly afraid of him since he had tried to kill her on three occasions. She unambiguously denounced the affidavit as a lie, claiming that it, too, was a product of her fear. In fact, Mrs. Bland stated that she never read the affidavit and did not know what she was signing. She also produced a letter from the defendant dated November 7, 1971, which was 1 month prior to the post-conviction hearing. The defendant wrote, “This is the cross-road, Mildred. If you fail to live up to these circumstances, I promise you, Mildred, you will regret it. This is your last last chance.” She said that she had received other threatening letters, but had destroyed them.

Officer John Cross was called as a State’s witness, and he substantiated the remarks of Mrs. Bland. He testified that he drove Mrs. Bland to court, and they talked about the case. Office Cross denied having told her that if the defendant did not receive treatment, he would harm her daughter or that if he were sent away he would be cured of his alcoholism. He maintained instead that Mrs. Bland initiated the conversation. She told him that the defendant was crazy and that she wanted him committed so that he would be put away to get treatment.

While defendant claims before us now a constitutional infringement based on incompetency of counsel for failure to file a section 72 petition, it cannot be denied that the contention is predicated upon a charge of perjury; and regardless of the ultimate form in which the issue is presented to us, if the matter of false testimony be not proved, then defendant is not entitled to relief.

As we view the record, tire State produced Mrs. Bland solely to establish the age of her daughter, the complaining witness. Subsequently, the defense called Mrs. Bland in order to prove that her daughter had a motive in accusing the defendant of the alleged crimes. She so testified, but when recalled by the State, she recanted this testimony as being coerced by defendant’s threats. At the post-conviction hearing she again asserted an acute fear of the defendant and claimed that the statements in her affidavit were false and were the product of this fear. Thus, the question of whether Mrs. Bland perjured herself was placed squarely before the court at the hearing on defendant’s post-conviction petition.

Recanting testimony is regarded as very unreliable, especially where the recantation involves a confession of perjury. (People v. Marquis, 344 Ill. 261.) Accordingly, the courts require that the defendant bear the burden of showing the use of perjured testimony at his trial. (People v. Bracey, 51 Ill.2d 514.) At the conclusion of defendant’s post-conviction hearing, the court observed that Mrs. Bland was an extremely tense and emotional woman, and yet “she * * * has deliberately and with care and with response to the questions stated number one, no one in the State’s Attorney’s Office influenced her in any way in giving the testimony that she did at trial.” Additionally, the trial judge was impressed favorably by the testimony of Officer Cross, and noted in particular that he had no special motive to suggest to Mrs. Bland how she should testify. Finally, he concluded that the affidavit utilized a type of terminology and expression with which Mrs. Bland is not acquainted. On the basis of the evidence and with particular regard to these observations, the trial judge concluded that the statements in the affidavit were false. Therefore, the petition was denied.

The credibility of the testimony in a post-conviction case is a matter for the trial judge to determine, and unless the determination by the trial judge is manifestly erroneous, it will be upheld. (People v. Alden, 15 Ill.2d 498.) We have carefully examined the record and find no reason to interfere with the court’s decision. Whether defendant’s appointed appellate counsel could have obtained an evidentiary hearing on a section 72 petition is of no import here since defendant did in fact receive a full heaiing on his post-conviction petition. Thus, although the procedure differed, the result was the same. Under the circumstances, we hold that defendant had not been prejudiced by the failure of his counsel to act on Mrs. Bland’s affidavit.

For the foregoing reasons the dismissal of the post-conviction petition is affirmed.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the County of Kane, Plaintiff-Appellant, v. Midway Landfill, Inc., Defendant-Appellee.
    (No. 73-371;
    Second District
    November 27, 1974.
    Gerry L. Dondanville, States Attorney, of Geneva (Clarence Witten-strom, Jr., Assistant State’s Attorney, of counsel), for appellant.
    Robert F. Casey, of Geneva, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Midway Landfill, Inc., as the operator of a landfill site in Kane County, was charged in six informations with various violations of the Kane County Sanitary Landfill Control Ordinance. The defendant filed a motion to quash all of the counts in each information, contending that the ordinance, in imposing upon the county the primary and nondelegable duty to refrain from the alleged violations, made the county equally responsible for any of the defendant’s violations. And by charging only the defendant with the violations, the informations deprived the defendant of due process. In addition, the defendant alleged in the motion to quash that the ordinance provided for a hearing before the Zoning Board of Appeals of Kane County to determine whether any violation had taken place as a precondition to the enforcement of the fine and imprisonment sanctions set forth in the ordinance.

The trial judge granted the motion to quash based upon his finding that the provision in the ordinance for criminal sanctions, which included either a possible fine of $200 and imprisonment in the county jail for more than 6 months or both was invalid.

The People appeal, contending that the county had authority to fine and imprison a violator of its ordinance as an alternative to seeking a revocation of a violator’s operating privilege before the Zoning Board of Appeals. But in the event the provision for a jail sentence is held invalid, they argue that the jail portion is severable from the balance of the penalty section and does not affect the validity of the fine provision.

Section 2 of the Garbage Disposal Act empowers counties to enact ordinances to regulate the method by which to dispose of garbage in sanitary landfills (Ill. Rev. Stat. 1973, ch. 34, par. 5402); and section 6 of that same act provides counties with the authority to suspend the license of any person who violates those ordinances. (Ill. Rev. Stat. 1973, ch. 34, par. 5406.) Section 6 states:

“Penalties for violations. Any person who violates any ordinance, rule, or regulation adopted pursuant to this Act commits a petty offense and may be punished by a suspension of any license held.”

The county ordinance before us in the first 4 paragraphs of article XI details the method by which the license of a sanitary landfill operator may be revoked for ordinance violations, and section 6 clearly establishes its validity. There is, however, a challenge to the final paragraph of article XI of the ordinance which provides in part:

“Any person, firm, company or corporation who violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this ordinance, shall be subject to a fine of not more than 200 dollars for each offense, or to the imprisonment in the county jail for a period of not more than six months, or both, in the discretion of the court. Each day that a violation continues to exist constitutes a separate offense.”

We conclude from our examination of the enabling statutes that counties have neither expressly nor impliedly been empowered to punish ordinance violators by imprisonment. The State argues that the similarity of the development of the comparable sections in the Cities and Villages Act (Ill. Rev. Stat. 1973, ch. 24, pars. 1 — 2—1, 1 — 2—9) which evolved to give cities and villages authority to imprison ordinance violators im-pEes that a similar power was intended to be given to county governments. There is authority for construing statutes which relate to the' same subject matter in pari materia so as to infer that provisions omitted from one were intended to be in the other. (People ex rel. Killeen v. Kankakee School District No. 11 (1971), 48 Ill.2d 419, 422.) But the separate act governing cities and vHlages does not necessarily have the same purposes or objectives as to be in pari materia with acts relating to county governments. (See 73 Am.Jur.2d Statutes § 187 (1974).) Cities and villages have been expressly given the power to make ordinance misdemeanors punishable by imprisonment. (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 2—1.1.) The absence of a like provision in the separate act governing counties is evidence of a different legislative intention respecting the county’s authority.

Our conclusion does not necessarily affect the validity of the entire paragraph, however. The invahdity of one penalty provision will only render the remaining penalties invalid if their execution is dependent upon the invalid portion. (Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill.App.3d 306, 317 N.E.2d 129; City of Rockford v. Grayned (1970), 46 Ill.2d 492, 495-496.) In this case, the provision for imprisonment which we have found void is separable from the portion of the ordinance providing for a fine.

The phrase “petty offense” is also contained in section 6 of the Garbage Disposal Act (Ill. Rev. Stat. 1973, ch. 34, par. 5406). It is clear from the committee comments (S.H.A., ch. 34, par. 5406) that by amending the statute to include the term “petty offense” the legislature meant to bring the act in conformance with the definition provided by the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 1—17) which states that a petty offense “means any offense for which a sentence to a fine only is provided.” In addition, the general penalty provision of the Counties Act provides that “[n]o fine or penalty, * * * shall exceed $500.” (Ill. Rev. Stat. 1973, ch. 34, par. 437.) A reasonable interpretation of the statutes involved grants the county the power to enact fines of not more than $500 for ordinance violations as petty offenses and in our view gives the county this method of punishing violators of its garbage disposal ordinance in addition to the granted power to suspend licenses by a hearing before the Zoning Board of Appeals.

The defendant’s contention that the state statutes impose a duty on counties to operate the sanitary landfill site which may not be delegated •to an agent or a tenant is without merit. The Counties Act and the Garbage Disposal Act clearly empower courts to regulate landfill sites, but neither act imposes a duty on the county to dispose of garbage in this manner. See Ill. Rev. Stat. 1973, ch. 34, pars. 401, 417, 418, 5404.

Defendant has also contended that it operates the landfill site as the county’s agent, arid,'therefore, the only power that the county has is to discharge its agent or to close down the operation; No authority is cited for the proposition that the defendant’s violations, are, in effect, the county’s violations and the defendant may not be prosecuted by the county as a result of this agency relatioriship, and we know of no such authority. Officials and agents at all levels of state government have been prosecuted for violation of law in suits on behalf of the People. (See, e.g., People v. Isaacs (1967), 37 Ill.2d 205; People v. Ashton (1934), 358 Ill. 146, 152-3; Uzzell v. People (1912), 173 Ill.App. 257.) Moreover, while the agreement between the county and the defendant, a privately owned foreign corporation licensed to do business in Illinois, is not in the record, the People’s informations in question which have been ruled upon as á matter of law state that the sites are leased to the defendant. The status of landlord and tenant of itself does not create an agency relationship. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 91-92.) The relationship of landlord-tenant also does not render the landlord criminally liable for the illegal use of the premises by the tenant if the landlord does not aid or abet the tenant in his illegal use. (See 49 Am.Jur.2d Landlord and Tenant § 10 (1970); People v. Kent (1908), 151 Mich. 134, 114 N.W. 1012, 1013.) Thus, whether the relationship between the defendant and the county is one of the principal-agent or landlord-tenant is not determinative of the issues raised in this appeal, since the People may proceed against either a tenant or an agent who acts unlawfully.

For the reásons which we have stated we reverse the judgment below and remand the cause to the trial court with directions to vacate the orders quashing the informations filed against defendant insofar as they seek to.enforce the county landfill ordinance by the imposition of a fine. That portion of the county’s landfill ordinance in question which purports to authorize incarceration for violations and which we have found to be severable from the balance of the penalty provision of the ordinance is declared invalid.

Reversed and remanded with directions.

T. MORAN, P. J., and REGHENMACHER, J., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Pritchett, Defendant-Appellant.
    (No. 72-382;
    Second District
    November 27, 1974.
    Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Phillip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Thomas Sullivan, both of Model District State’s Attorneys Office, of counsel) , for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

On October 13, 1971, defendant, James Pritchett, was indicted for the offense of burglary. At a hearing held on November 22, 1971, defendant withdrew his previous plea of not guilty and entered a plea of guilty. The trial court accepted defendant’s guilty plea to burglary and sentenced him to a term of 1-5 years. The issue before this court is whether the trial court substantially complied with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) before accepting the plea of guilty.

At the time defendant appeared in court to change his plea the record indicates the following colloquy:

“MR. BEU [defense counsel]: * * * We are here at this time to withdraw a previously entered plea of not guilty and tender a plea of guilty to the court on the Indictment charging burglary.
THE COURT: Burglary?
MR. BEU: Yes.
THE COURT: Is that right, you want to enter a plea of guilty?
THE DEFENDANT: Yes.”

The court then admonished the defendant of his right to trial by jury, his right to confront the witnesses against him, his right to have a bench trial if defendant waived his right to a jury trial, and the minimum and maximum possible sentences. After these admonishments the prosecutor presented the factual basis of the plea to the court. The prosecutor stated that if there were a trial the evidence would show that the Rockford home of Kathy Johnson was broken into while she was away; that-numerous items of personal property had been stolen; that defendant was seen entering the house and carrying away these items of personal property by other witnesses; and that when he was arrested defendant admitted to Detective George Krebs that he had helped carry away items from the Johnson home. The prosecutor ended his statement by stating:

“Our evidence would show at the time he entered the home he intended to commit a theft therein. I would like the record to reflect we have made no promises to him through our office. We can state there have been no promises to him concerning the disposition of this case, what that disposition will be, or concerning the disposition of any other case.”

Thereupon the court accepted defendant’s plea of guilty. Other than defendant’s “yes” at the beginning of the admonishments, defendant said nothing. Defendant first contends that the trial court did not substantially comply with Supreme Court Rule 402 in that the trial court did not adequately inform him of and determine that he understood the nature of the charge pursuant to Rule 402(a)(1).

This contention, which has been the subject of diverse opinions in the appellate court of this state, has been laid to rest by the supreme court in People v. Krantz (1974), 58 Ill.2d 187, 192, 317 N.E.2d 559. The court, in considering Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) stated, “We note first the rule requires that there need be only substantial, not literal,' compliance with its provisions. (People v. Mendoza, 48 Ill.2d 371, 373-374.)” In Krantz, ás in the instant case, the assistant State’s Attorney recited to the court, in the presence of the defendant, what the State intended to prove. The supreme court thereupon held, as we do here, that a review of the record discloses that the trial court satisfied the requirements of Rule 402 as it applied to advising the defendant of the nature of the charge against him and determining that he understands it. In Krantz, as in the case before us, the defendant did not allege any prejudice because of the alleged omission, or that his plea would have been different because of the State’s Attorney stating the nature of the charge rather than the trial judge.

In McCarthy v. United States (1969), 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166, the Supreme Court found that the trial court must strictly adhere to the requirements of Rule 11 of the Federal Rules of Criminal Procedure by personally informing the defendant of the nature of the charge. However, while the underlying reasoning as to the importance of the trial court’s personal admonishments is equally applicable to Rule 402 (see People v. Mims (1969), 42 Ill.2d 441, 248 N.E.2d 92) we are not constrained to following the United States Supreme Court’s decision of strict compfiance because the court based its decision upon its own construction of the rule and made such decision pursuant to its supervisory power over the lower federal courts rather than basing it upon constitutional grounds. See Krantz, supra.

Defendant further contends that the trial court did not substantially comply with Rule 402 in that the trial court failed to admonish the defendant of his right to persist in his plea of not guilty pursuant to Rule 402(a)(3) and failed to inquire of the defendant whether any force or threats were used to obtain the plea pursuant to Rule 402(b). We disagree. While the trial court failed to comply with the rule in these respects, the court did admonish the defendant of the possible minimum and maximum sentences, of his right to a jury trial or a bench trial, and of his right to confront the witnesses against him, in addition to the explanation of the nature of the charge. In People v. Williams (1973), 16 Ill.App.3d 199, 202, 305 N.E.2d 544, 547, we stated:

“* * * substantial compliance’ with the rule is such sufficient compliance as to allow a reviewing court to find from the record that a defendant has voluntarily and understanding^ entered his plea of guilty.”

There is nothing in the record before us to indicate that defendant’s plea was other than free and voluntary nor does defendant contend in this appeal that his plea of guilty was other than free and voluntary. As the supreme court stated in People v. Mendoza (1971), 48 Ill.2d 371, 374, 270 N.E.2d 30:

“In view of the absence of evidence in the record or by affidavit supporting defendant’s claim that he did not understand the consequences of his plea, and the failure to explain such absence, we find the petition insufficient to require a hearing and its dismissal justified.”

The record in this case reflects the defendant has voluntarily and understandingly entered his plea of guilty. See People v. Krassel (1973), 12 Ill.App.3d 64, 298 N.E.2d 384; People v. Shepard (1973), 10 Ill.App.3d 739, 295 N.E.2d 310; People v. Ellis (1973), 16 Ill.App.3d 282, 306 N.E.2d 53; People v. Compton (1973), 16 Ill.App.3d 196, 305 N.E.2d 582; People v. Fricks (1974); 17 Ill.App.3d 933, 308 N.E.2d 820 (abstract opinion); People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559. There has been substantial compliance with Rule 402. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.

       Rule 11 reads in part: “The court * * * shall not accept such plea [of guilty] e 6 * without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” (Emphasis supplied.)


author: Mr. JUSTICE GUILD.

text:
    Northern Illinois Gas Company, Plaintiff-Appellant, v. Thomas M. Madden Company, Defendant.—(Contracting & Material Company, Defendant-Appellee.)
    (No. 73-84;
    Second District
    November 27, 1974.

      Joseph J. Jares, Jr., of Chicago, for appellant.
    Doyle & Tarpey, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Passley, Defendant-Appellant.
    (No. 73-168;
    Second District
    November 27, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter J. Borak, Defendant-Appellant.
    (No. 73-250;
    Second District
    November 27, 1974.
    Earl B. Williams, of Williams & Slaughter, of Chicago, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: JUSTICE HENRY LEWIS

text:
    DANNY POE, SR., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Edmier, Inc., Appellee).
    Second District (Industrial Commission Division)
    No. 2—91—0172WC
    Opinion filed June 11,1992.
    Rehearing denied July 27,1992.

      Francis M. Discipio and Ralph W. Miller, Jr., both of Law Office of Francis M. Discipio, of Chicago, for appellant.
    Ruth E. Stelzman, of Catena & Stelzman, of Chicago, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The claimant, Danny Poe, Sr., appeals from the judgment of the circuit court entered in his favor against his employer, Edmier, Inc., in the amount of $2,857.30 for interest, pursuant to section 2 — 1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1303). The interest was awarded, at the rate of 9%, for the period of time extending from June 17, 1988, the date of the decision upon remand of the Illinois Industrial Commission (hereafter referred to as the Commission), through February 1, 1989, the date on which the employer paid the amount awarded to the claimant by the Commission. On appeal the claimant seeks interest for a period of time prior to June 17, 1988, interest for the period of time after February 1, 1989, and an award for attorney fees and costs, denied by the circuit court.

Following a hearing, in a decision entered on March 27, 1982, the arbitrator denied Danny Poe’s claim for compensation for accidental injury occurring on November 3, 1980, concluding that he failed to prove he had sustained any disability for which compensation is payable pursuant to the Workers’ Compensation Act (hereafter referred to as the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). Upon review, in a decision dated March 3,1986, the Commission found that

“a causal relationship exists between [claimant’s] condition of ill-being and his injuries and that he was temporarily totally disabled from December 9, 1982, the date he entered Holy Cross Hospital for surgery, to June 10, 1983, the date he returned to work. The Commission further finds [claimant] is entitled to $9,293.90 for reasonable and necessary medical expenses and that based on the above, including the findings of Dr. Pahwa, [claimant] is permanently disabled to the extent of 25% under §8(d)2 of the Act.”

The Commission found at that time that the claimant had been temporarily totally disabled for a period of 261/y weeks and awarded benefits accordingly,

On further review, in an order entered on January 24, 1986, the circuit court reversed the decision of the Commission and remanded the cause to it “with instructions to the Commission that all aspects of the issue of causal connection be specifically determined.”

Upon remand, in a decision dated June 17, 1988, the Commission, pursuant to the instructions of the circuit court, reviewed “the administrative record and the dispositive issue on Remand which is whether there is a causal relationship between the accidental injuries of November 3, 1980[,] and [claimant’s] low back condition of ill-being.” The Commission found that such a causal relationship exists, stating in part:

“Having complied with the Circuit Court’s instructions to make a specific determination on all aspects of the issue of causal connection, and having found a causal connection exists[,] the Commission finds that it has no reason to change its earlier decision of March 3, 1986, and concludes as it did earlier that [claimant] was temporarily totally disabled for a period of 26-1/? weeks, is permanently disabled to the extent of 25% under §8(d)2 of the Workers’ Compensation Act, and is entitled to $9,293.90 for reasonable and necessary medical expenses.”

Upon further review, in a judgment entered on January 19, 1989, the circuit court confirmed the decision of the Commission. No further appeals were taken on the merits of the decision.

Thereafter, on May 1, 1989, the claimant filed a petition for entry of judgment on the “final award” of the Commission, seeking interest, costs, and attorney fees, as provided in section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) and in section 2 — 1303 of the Code of Civil Procedure. In the petition the claimant alleged, and it is undisputed, that on or about February 1, 1989, the employer’s insurer issued its check in the amount of $50,634.55, which did not include any amount for interest. The claimant alleged that he had accepted the check in partial payment of the amount due him. He alleged that interest was due him on the amount of $50,634.55 for the period extending from March 30, 1986, to February 2, 1989; the amount of that interest was, he said, $13,296.77. Of the $50,634.55, the claimant alleged he had applied $13,296.77 to interest, $9,293.90 to benefits for medical expenses, and $28,043.04 to compensation for permanent partial disability, leaving $13,296.77 due to be paid for, $5,608.21 in compensation for permanent partial disability and $7,698.40 in compensation for temporary total disability. Claimant sought interest of $232.79 on that amount from February 2, 1989, to April 14, 1989, “and continuing,” as well as attorney fees and costs of $11,126.44 to February 2, 1989, “and continuing.” In an order entered on August 10, 1990, the circuit court denied interest on the award.

Thereafter, the claimant filed a petition for rehearing. The claimant took the position that section 19(n) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)) is inapplicable to the instant cause because the arbitrator had made no award. For that reason, he urged, section 2 — 1303 of the Code of Civil Procedure applies. At a hearing on that petition conducted on December 4, 1990, the employer agreed that section 19(n) had no application to this cause of action. The trial court concluded that section 2 — 1303 applies “from after remand and the Industrial Commission made its final determination which this Court affirmed.”

At a hearing on January 7, 1991, upon the claimant’s motion to reconsider, the employer stated that it had paid the full amount of the award for temporary total disability, permanent partial disability, and medical expenses but had paid no interest because there has been a “dispute throughout” as to whether it owed any interest at all and, if so, in what amount. The circuit court noted that “this was not a case where there was a willful refusal to pay or case where there was not a substantial legal question involved as to the entitlement question.” In an order entered on that same day, the circuit court found that the claimant is entitled to recover interest at the rate of 9% per annum, pursuant to section 2 — 1303, from June 17, 1988, the date of the Commission’s decision upon remand, through February 1, 1989, the date on which payment was made by the employer. Denying the claim for attorney fees, the circuit court entered judgment for interest in the amount of $2,857.30 in favor of the claimant and against the employer. The employer tendered payment of the amount of that judgment 10 days later on January 17, 1991. From this judgment the claimant appeals.

The claimant raises three issues on appeal: (1) whether interest ought to have been awarded from the date of the initial decision of the Commission on March 3, 1986, rather than the date of the Commission’s decision upon remand on June 17, 1988; (2) whether interest should be awarded for the period after February 1, 1989, in light of the employer’s tender of the amount awarded by the Commission absent accrued interest; and (3) whether attorney fees and costs should have been awarded pursuant to section 19(g) of the Act. We have not been asked to review either the applicability of section 2 — 1303 of the Code of Civil Procedure or the inapplicability of section 19(n) of the Act to the instant cause.

With respect to the first issue presented, the claimant relies in part upon Proctor Community Hospital v. Industrial Comm’n (1971), 50 Ill. 2d 7, 276 N.E.2d 342. Section 2 — 1303 provides in relevant part as follows:

“Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.)

In Proctor the supreme court stated:

“Clearly under section 3 [predecessor of section 2 — 1303] a judgment based on an award of the Industrial Commission is to include the interest from the date of the award to the time of rendering of the judgment. (McMurray v. Peabody Coal Co. [(1917)], 281 Ill. 218, 118 N.E. 29.) The interest accrues from the date of the award, notwithstanding that at an intermediate level of review the award was overturned and on further review reinstated.” (Proctor, 50 Ill. 2d at 9-10, 276 N.E.2d at 343.)

The employer distinguishes Proctor from the instant case, pointing out that the instant one was reversed and remanded to the Commission by the circuit court, whereas in Proctor the Commission’s award was set aside by the circuit court and reinstated by the supreme court.

Although the employer does not cite the cases of Thatch v. Missouri Pacific R.R. Co. (1979), 69 Ill. App. 3d 48, 386 N.E.2d 1180, Rosenbaum v. Rosenbaum (1981), 94 Ill. App. 3d 352, 418 N.E.2d 939, or Owens v. Stokoe (1988), 170 Ill. App. 3d 179, 524 N.E.2d 755, we find the reasoning expressed in them helpful.

In Thatch, in an action brought under the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1988)), after the jury had returned a verdict in favor of the plaintiff in the amount of $249,200, upon which verdict judgment was entered on June 7, 1974, the reviewing court had held in a prior appeal (Thatch v. Missouri Pacific R.R. Co. (1977), 47 Ill. App. 3d 980, 362 N.E.2d 1064) that the issue of the plaintiff’s contributory negligence was for the jury to decide and remanded the cause for a new trial limited to determining the amount by which damages should be reduced considering the evidence of the plaintiff’s contributory negligence. The reviewing court in the prior appeal directed the trial court to enter judgment for plaintiff on the issue of liability. Upon a new trial the jury returned a verdict in favor of the plaintiff in the amount of $236,740, upon which verdict judgment was entered on February 22, 1978. The issue in the subsequent appeal was whether the interest on the new award should be computed from the date of the original judgment on June 7, 1974, or the date of the new judgment on February 22, 1978. Noting that “[t]he problem of determining when interest accrues on a judgment in a case which encompasses numerous appeals has plagued the courts for many years” (Thatch, 69 Ill. App. 3d at 51, 386 N.E.2d at 1181), the court observed that the solution to the problem cannot be found in the applicable statutory language, adding:

“While there is no difficulty determining the date from which interest runs on a judgment that has been affirmed in an appellate court or has not been appealed, the problem arises in delineating the specific date of a judgment for purposes of the statute when the judgment has been partially or totally set aside and modified on appeal, or remanded for further proceedings which result in the entry of a new or modified judgment.” (Thatch, 69 Ill. App. 3d at 51-52, 386 N.E.2d at 1182.)

In arriving at a specific date from which to measure the accrual of interest, the court scrutinized the events leading up to that appeal:

“While we directed the trial court to enter judgment for plaintiff on the issue of liability, it is clear that, upon remand, plaintiff could have lost as a result of his contributory negligence, most, if not virtually all, of the previously awarded damages. Having therefore ordered a new trial on a substantial and critical element of the damage issue, we could not conceivably remand for a new trial without reversing or setting aside the original money judgment. As set aside, the judgment ceased to be a viable one and could no longer be the basis for awarding statutory interest pursuant to section 3 [predecessor of section 2-1303].” (Thatch, 69 Ill. App. 3d at 52, 386 N.E.2d at 1182.)

The court noted certain policy considerations supporting its conclusion:

“Had we adopted plaintiff’s position that he was entitled to interest from the date of the initial judgment, it is not clear how defendant could have tendered full payment of the judgment, interest and costs to stop the further accrual of interest following this court’s prior decision. (See e.g., Presbyterian Distribution Service v. Chicago National Bank, 36 Ill. App. 2d 1, 183 N.E.2d 525 (1st Dist. 1962).) The exact amount of damages was not known until the trial court submitted the issue of contributory negligence to the jury. It would therefore be inequitable to compel defendant to pay additional interest when by the terms of the statute defendant could not have prevented such further accumulation. Plaintiff is correct in noting that defendant could have tendered the full amount of the first judgment; but, in light of this court’s initial decision, it would be unwise for defendant to tender payment to plaintiff knowing that such payment would probably be in excess of the final award; that plaintiff would therefore have the use of money rightfully belonging to defendant; and that defendant would then have to collect the excess payment from plaintiff.” (Thatch, 69 Ill. App. 3d at 52, 386 N.E.2d at 1182.)

The court expressed the belief that the defendant should not be held responsible for a judgment and its accrued interest until the extent of liability is settled:

“At the time of our initial decision directing the trial court to enter judgment in favor of plaintiff on the issue of liability, it was not yet established whether plaintiff was contributorily negligent. As this element was critical to the respective rights of the parties, we believe it is improvident to penalize defendant when it could not have known the extent of its obligation.” Thatch, 69 Ill. App. 3d at 53, 386 N.E.2d at 1182.

In Rosenbaum a portion of the original judgment was reversed, and a new judgment was entered on remand following recalculation of partition proceeds. The appellant contended that since a judgment had been entered on September 6, 1977, directing her to pay one-half of the appellee’s counsel’s legal fees and because the appellate court reversed that order and directed that she be repaid, the interest on the sum to which she was entitled should accrue on September 6, 1977, the date of the original judgment, rather than on December 26, 1979, when the trial court directed repayment of her recalculated share of partition proceeds. The court stated that in such cases, where the exact amount owed is not calculated until the disposition of the case following remand, interest on the judgment runs from the date of the new decree. “The rationale underlying this rule,” the court said citing Thatch, “is that the judgment debtor cannot tender the amount of the judgment, thereby halting the accrual of interest, until the amount owed is determined upon remandment.” Rosenbaum, 94 Ill. App. 3d at 356-57, 418 N.E.2d at 943.

In Owens, relying upon the reasoning of both Rosenbaum and Thatch, the court concluded that the event triggering the accrual of interest under section 2 — 1303 is not the setting of a definite amount of damages “by itself, but the setting of a definite amount so that the judgment debtor has a reasonable opportunity to avoid accruing interest” (Owens, 170 Ill. App. 3d at 183, 524 N.E.2d at 757).

In the instant case, upon review of the Commission’s initial decision, the circuit court reversed the decision and remanded the cause with instructions to the Commission that all aspects of the issue of causal connection be specifically determined. The issue of causal connection is a substantial one, critical to success in proving a claim brought under the Act and, thus, critical to the respective rights of the parties. Upon remand the exact amount of the employer’s liability, if any, could not have been known until the Commission’s subsequent decision had been rendered. In view of the nature of the issue to be considered upon remand, it would have been unwise for the employer to have tendered payment to the claimant knowing that the Commission might, upon remand, deny the claim altogether as the arbitrator had done. Upon such an eventuality, the employer would have had to collect the excess payment from the claimant, and the claimant would have had the use of money rightfully belonging to the employer. Until the Commission’s decision upon remand was rendered, the extent of the employer’s liability and obligation was not settled. In short, while the cause was pending upon remand, a definite amount had not been set so that the employer had a reasonable opportunity to avoid accruing interest. Therefore, the circuit court properly denied the claimant an award of interest for the period of time from March 3, 1986, the date of the Commission’s original award, to June 17, 1988, the date of the Commission’s decision upon remand.

Concerning the second issue presented, the claimant stated that the circuit court

“apparently treated the amount paid by Appellee Edmier, Inc.[,] on February 1, 1989[,] as applicable only to the amounts awarded, and applied none of the payment to the interest he found to be due, and, accordingly, denied any claim for further interest on the basis that the award had been satisfied by the payment.”

Claimant relies upon Aper v. National Union Electric Corp. (1988), 177 Ill. App. 3d 118, 533 N.E.2d 398, which held applicable to a workers’ compensation award the general rule and principle of law that when a party accepts partial payment of the judgment and the amount is insufficient to satisfy the full amount of the judgment plus any costs or interest then due, the party is entitled to apply the amount to the interest due as of that date with any balance then credited to reduce the amount of judgment principal. In Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87, 90, 513 N.E.2d 1045, 1047, it was stated:

“As a general rule, a tender must include everything to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective as a tender. [Citation.] It must include interest due and costs then due as accrued. [Citation.] Thus, if the employee was entitled to interest and the employer failed to tender it, the circuit court properly entered judgment under section 19(g).”

As was said in Aper, to the extent that the debtor does not satisfy the underlying judgment prior to an appeal, he is liable for the continuing accrual of interest in the event he is unsuccessful on appeal.

The employer relies in part upon the correlative of the rule expressed in Kuhl v. Industrial Comm’n (1986), 147 Ill. App. 3d 519, 498 N.E.2d 240, that an insufficient tender without a bona fide dispute as to the amount owed may be treated as no tender at all. The employer asserts that in the instant case a bona fide dispute existed as to the amount owed, that is, whether any interest was due. The employer takes the position that the amount tendered was all to which the claimant was entitled at the time of tender and that tender was, therefore, sufficient and effective. In this regard, the employer asserted in part in its response to the claimant’s petition for rehearing that the decision of the Commission was not a final decision and that the decision of the circuit court entered on January 19, 1989, did not become final until February 18, 1989, when no appeal was filed. The employer paid the entire amount of the Commission’s award on February 1, 1989. The employer argued further:

“Plaintiff takes the position that he is entitled to interest pursuant to Section 2 — 1303 of the Civil Practice Act. The Civil Practice Act is very clear that it awards interest on judgments. When this section of the Civil Practice Act is read in conjunction with Section 19(g) of the Illinois Workers’ Compensation Act, it is clear that a judgment cannot be entered in a Workmen’s Compensation case until the award or Decision becomes final. Thus, even if the Civil Practice Act applies, no Judgment Order has ever been entered in this case. Thus, the provisions of the Civil Practice Act cannot apply.”

While there may be merit to the employer’s assertion that there was a legitimate dispute over the date upon which interest began to accrue, the employer’s further assertion that there was a bona fide dispute as to whether any interest was due is without merit. The basic right to interest on a Commission award under the Civil Practice Act has been settled law for two decades. (See Proctor Community Hospital v. Industrial Comm’n (1971), 50 Ill. 2d 7, 276 N.E.2d 342.) Irrespective of whether claimant had any entitlement to interest prior to the second Commission decision following remand, interest was due following the second Commission decision which was subsequently confirmed by the circuit court prior to respondent’s tender. Respondent’s claim to a legitimate dispute is further undermined by the fact that when respondent tendered the interest awarded by the trial court following entry of judgment on claimant’s section 19(g) petition, it again failed to include any interest on that judgment. Under the principles set forth in Aper, interest continues to accrue to claimant because, to date, respondent has never paid the full amount of the judgment including interest.

Since the original tender was insufficient and there was no bona fide dispute over whether some interest was due, applying Aper, a balance of $2,857.30 of principal would remain unpaid as of February 1, 1989, after interest due to that date was deducted and the remainder of the tender credited against the original judgment principal. Claimant was then due interest at the rate of 9% on $2,857.30 from February 1, 1989, through January 17, 1991, the date the employer made another partial tender. As of January 17, 1991, the amount of interest which had accrued was $503.36 at the statutory rate. Again, applying Aper, claimant was again entitled to reduce the outstanding debt by first applying the amount tendered toward the interest due and the remainder against principal leaving an unpaid balance of $503.36 as of January 17, 1991, which continues to accrue interest at 9% until paid in full.

With regard to the third and final issue presented for review, the claimant contends that costs and attorney fees throughout these entire proceedings, including arbitration, ought to have been awarded to him because section 19(g) of the Act provides that reasonable costs and attorney fees be taxed as costs when an employer has refused to pay the amount of an award. In Wirth v. Industrial Comm’n (1976), 63 Ill. 2d 237, 347 N.E.2d 136, tender was made of the full amount of the award within 60 days of the issuance of the supreme court’s mandate remanding the cause for entry of a judgment based on the arbitrator’s award. The claimant sought attorney fees pursuant to section 19(g) of the Act. Holding that the circuit court did not err in denying such fees, the supreme court stated that its examination of the record in Wirth led it to conclude that the delay resulted from the dispute concerning the employer’s liability for interest and not from a refusal to pay compensation within the contemplation of section 19(g) of the Act. Similarly, in the instant case, as the circuit court indicated and the employer argues on appeal, the delay resulted from the dispute concerning the employer’s liability for interest and not from a refusal to pay compensation within the contemplation of section 19(g). In less than two weeks following the entry of the circuit court’s judgment confirming the decision of the Commission, the employer tendered the amount awarded by the Commission. The circuit court did not err in denying claimant costs and attorney fees pursuant to that section of the Act.

The judgment of the circuit court is affirmed as modified by the award of interest for the period beginning February 1, 1989, as set forth above.

Affirmed as modified.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


author: JUSTICE GEIGER

text:
    ARLIE J. REIN et al., Plaintiffs-Appellants, v. DAVID A. NOYES AND COMPANY et al., Defendants-Appellees.
    Second District
    No. 2—91—0992
    Opinion filed April 6,1992.
    Rehearing denied July 31,1992.
    Richard W. Husted, of Dundee, for appellants.
    William J. Foote, of Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora, and James J. Moylan and Bonnie L. MacFarlane, both of James J. Moylan & Associates, Ltd., of Chicago, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

In 1990, the plaintiffs Arlie and Brenda Rein, Robert and Donald Miller, and Lorraine Fehrmann filed separate complaints against the corporate defendant, David A. Noyes and Company (Noyes), and its agents John Rath and Ronald Ainsworth, alleging that the defendants fraudulently misrepresented the character of securities that they sold to the plaintiffs in 1985. The trial judge ruled that the count of each complaint seeking rescission of the purchase pursuant to section 13 of the Illinois Securities Law of 1953 (the Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 137.13) was barred by the applicable statute of limitations (Ill. Rev. Stat. 1989, ch. I2IV2, par. 137.13). After obtaining the voluntary dismissal of the remaining counts of their complaints, the plaintiffs brought this appeal.

The plaintiffs argue that the trial court erred in holding that their claims for rescission were time-barred. Specifically, they assert that the claims were timely because they were filed within five years of January 1, 1986, the effective date of the current limitation provision. We find this argument contrary to the plain language and intent of the statute of limitations (which is also a statute of repose). We therefore affirm the trial court’s dismissal of the rescission counts of the complaints.

On October 11, 1990, the Reins and Millers filed an eight-count complaint (essentially two, four-count complaints tacked together) against Noyes and Rath. Counts I and V alleged that the plaintiffs were customers of Noyes, a securities dealer for whom Rath was a salesman, and that “during the year 1985,” at the defendants’ urging, the plaintiffs bought and paid for certain securities known as “City of Richmond, Indiana Economic Development Revenue Bonds” (Richmond bonds) and dated June 20, 1985. They also alleged that, in violation of sections 12F and 12G of the Act (Ill. Rev. Stat. 1989, ch. I2IV2, pars. 137.12F, G), the defendants willfully, fraudulently, and deceitfully caused the plaintiffs to believe that these bonds were municipal bonds and not actually high-risk investments in a private hotel project on which the City of Richmond was not liable to pay interest or principal. The plaintiffs claim they were entitled to rescind the purchases pursuant to section 13 of the Act, giving notice of their intent to rescind within six months of having obtained knowledge that the sale was voidable.

Counts II and VI of the Rein-Miller complaint sought recovery under a theory of common-law fraud and the defendants’ failure to register the securities as required by the Act. Counts III and VII sought punitive damages. Counts IV and VIII asserted that the defendants breached their fiduciary duty to the plaintiffs. Counts II through VIII were based on the same factual allegations as count I. However, count II asserted that the sale of the securities to the Reins took place on or about October 30, 1985. Count VI asserted that the sale to the Millers took place on or about June 20,1985.

On December 27, 1990, Lorraine Fehrmann filed a four-count complaint against Noyes and its agent Ronald Ainsworth, based on similar allegations that “during the year 1985,” the defendants willfully and fraudulently induced her to purchase the Richmond bonds. The first count of Fehrmann’s complaint, styled “Count IX,” sought rescission under the same theory as the Miller-Rein complaint. Count X asserted that the sale of the securities to Fehrmann took place on October 29, 1985. In all respects, the legal basis of each of the four counts of the Fehrmann complaint was the same as that of the analogous counts of the Miller-Rein complaint.

The defendants moved pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(5)) to dismiss the rescission counts of the complaints (counts I, V, and IX) as barred by the applicable statute of limitations:

“No action shall be brought for relief under this Section *** after 3 years from the date of sale; provided, that if the party bringing the action neither knew nor in the exercise of reasonable diligence should have known of any alleged violation of subsection E, F, G, H, I, or J of Section 12 of this Act which is the basis for the action, the 3 year period provided herein shall begin to run upon the earlier of
(1) the date upon which the party bringing such action has actual knowledge of the alleged violation of this Act; or
(2) the date upon which the party bringing such action has notice of facts which in the exercise of reasonable diligence would lead to actual knowledge of the alleged violation of this Act; but in no event shall the period of limitation so extended be more than 2 years beyond the expiration of the 3 year period otherwise applicable.” Ill. Rev. Stat. 1989, ch. 121V2, par. 137.13D.

The trial judge agreed that the rescission counts were barred by this provision, finding specifically that the suits were brought more than five years after the sale, the outer limit of the limitation provision. The trial court refused to certify that there was no just reason to delay enforcement or appeal of the dismissal of the counts (see 134 Ill. 2d R. 304(a)). The plaintiffs obtained a valid voluntary dismissal of the remaining counts of their complaints (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009) and brought this appeal.

Initially we note that we have jurisdiction to hear this appeal. Although the dismissal of the rescission counts was not at the time appealable, the voluntary dismissal of the remaining counts left nothing pending before the trial court. The dismissal of the rescission counts with prejudice thus became final and appealable as of the date of the voluntary dismissal of the remaining counts of the complaints (134 Ill. 2d R. 301). The plaintiffs appealed timely, and we may reach the merits of their appeal.

The plaintiffs acknowledge that their complaints were not filed within three years of the allegedly fraudulent sales. They also acknowledge that the rescission counts contain no well-pleaded allegations that the defendants fraudulently concealed the plaintiffs’ cause of action. The plaintiffs also do not invoke the discovery rule that would delay the running of the three-year period of limitations under section 13D of the Act. Furthermore, it does not appear that the plaintiffs take issue with the trial court’s factual finding that their suits were filed more than five years after the allegedly fraudulent sales.

Notwithstanding all of these considerations, the plaintiffs maintain that under Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, and Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, the stricken counts were timely because they were filed within five years of the effective date of the present statute of limitations. We find this argument without merit.

Under the previous statute of limitations, the plaintiffs’ actions for rescission clearly would have been barred. This is because the prior statute flatly stated that “[n]o action shall be brought for relief under this Section *** after 3 years from the date of sale.” (Ill. Rev. Stat. 1985, ch. 1211/2, par. 137.13D.) As both the language of the new statute and the accompanying interpretive comments make clear, the effect of the new statute is to lengthen the time in which such a suit may be filed, provided that plaintiffs properly allege and demonstrate the requisite grounds. The amendments “lengthen the statute of limitations for actions involving fraudulent activities by an equitable tolling of up to an additional two years.” (Emphasis added.) (Ill. Ann. Stat., ch. 121V2, par. 137.13, Interpretive Comments, at 127 (SmithHurd Supp. 1991).) “This tolling amendment was designed to particularly cover cases of fraudulent concealment or so-called ‘lulling’ activities by promoters. Heretofore, the three-year statute of limitations could be an absolute bar to an action even if discovery was not reasonable or subverted.” Ill. Ann. Stat., ch. 121V2, par. 137.13, Interpretive Comments, at 128 (Smith-Hurd Supp. 1991).

The limitations statute also operates as a statute of repose, barring all claims such as the plaintiffs’ filed more than five years after the sale. A period of repose is one which is intended to terminate the possibility of liability after a defined period regardless of a potential plaintiff’s lack of knowledge of his cause of action. (Zimmerman v. Abbott Laboratories, Inc. (1989), 189 Ill. App. 3d 744, 747; Blazek v. Nicolet, Inc. (1988), 173 Ill. App. 3d 324, 329.) We agree -with the Federal court in Davenport v. A.C. Davenport & Son Co. (7th Cir. 1990), 903 F.2d 1139, 1142, that the language of the old statute, especially considered in light of the interpretive comments that we have quoted, demonstrates that the old statute imposed a three-year period of repose. For similar reasons, we conclude that the new limitations statute unambiguously imposes a five-year period of repose.

The Millers and Fehrmann alleged that the supposedly fraudulent sales to them occurred more than five years before their complaints were filed. Based on the pleadings available at the time of the defendants’ motion to dismiss their rescission counts, the trial judge correctly dismissed these counts. She would have been correct to do so even had the rescission counts properly pleaded facts invoking the maximum two-year extension of the three-year limitations period.

Although the Reins did allege (in a count later voluntarily dismissed) that the sale to them took place at a time within the five-year period of repose, this would not suffice to bring their rescission count within the limitations period. Without doubt, the Reins filed their complaint more than three years after the allegedly fraudulent sale. Count I did not allege any facts to invoke the equitable tolling provisions of section 13D of the Act. The plain language of the limitations provision thus barred their count for rescission.

The plaintiffs argue, however, that because the new limitations period went into effect on January 1, 1986, they had a “reasonable time” in which to file their rescission complaint and that this “reasonable time” was five years, the “outer limit” of the new statute of repose. Plaintiffs assert that Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, establishes this principle. We find nothing in that case remotely so suggesting. Mega does state the principle that in the wake of a statute shortening a limitations period, a plaintiff whose cause of action arose before that date will be allowed a reasonable time in which to bring his action. (Mega, 111 Ill. 2d at 420.) The court then held that the plaintiffs’ cause of action was time-barred under a medical malpractice statute of limitations because the plaintiffs did not file their claim until after the “outer limit” provided by the new repose period. The court, recognizing the nature of statutes of repose, concluded quite reasonably that the plaintiffs had waited an unreasonable time to file their claim. That a period in excess of the statute of repose is self-evidently unreasonable does not imply that any period within the new statute of repose is necessarily reasonable.

The Mega holding does not support the plaintiffs here. Indeed, Mega states that where a reasonable time remains under a new statute, that new period will be applied without more. (Mega, 111 Ill. 2d at 420-21.) The new statute in the case at bar was adopted only a short time after the sales in question; more importantly, it did not shorten, but if anything lengthened, the period of time in which the plaintiffs could bring their actions for rescission. Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, involving a statutory version of the discovery rule not applicable to the case at bar, is similarly irrelevant to the case at bar. The present case involves a distinct limitations statute with its own language. This language is straightforward and unambiguously bars all the plaintiffs’ causes of action for rescission.

Finally, plaintiffs urge us to follow Pucci v. Santi (N.D. Ill. 1989), 711 F. Supp. 916, which held the current statute of limitations did not bar complaints filed about six years after the allegedly fraudulent sales. Leaving aside the question of whether we should defer to a Federal trial court’s interpretation of our State statute, we find Pucci both unpersuasive and distinguishable.

The Pucci court initially held that because the previous statute of limitations provided for equitable tolling based on the discovery rule or fraudulent concealment, the new statute thus shortened the period applicable to the plaintiffs’ claims. For reasons we have set forth above, we reject this interpretation of the statute. Additionally, the plaintiffs in Pucci (unlike the plaintiffs here) raised the issue of fraudulent concealment by a well-pleaded allegation of the existence of a fiduciary lawyer-client duty. Concluding that the time that the plaintiffs would have to file their claims under the new statute would be four months, the court held that this period was not reasonable because the plaintiffs properly pleaded that they did not discover the defendants’ wrongdoing until after the new limitation period would have run; the court concluded that this four-month period was unreasonable. The Pucci court then read Mega and Costello, incorrectly in our view, to hold that where a statute of repose replaces a statute of limitations, a plaintiff whose claim would not have been barred under the statute of limitations has from the effective date of the amendment to the end of the repose period to file his claim. Pucci, 711 F. Supp. at 924-25.

The plaintiffs assert that they are entitled to extra time to file their rescission claims merely because of a fortuitous change in the statute of limitations which in no way prejudiced their ability to sue in time. We refuse to accept an argument that would do violence to the plain meaning of section 13D of the Act and to the purpose of statutes of repose generally.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN and BOWMAN, JJ., concur.