author: Mr. JUSTICE DOWNING

text:
    Diane Krepfl, Individually and as Administrator of the Estate of Carl W. Krepfl, Deceased, Plaintiff-Appellee, v. Len W. Burke et al., Defendants.—(Adrian D. Northcutt et al., Defendants-Appellants.)
    (No. 59717;
    First District (2nd Division)
    November 19, 1974.

      John Fako, Jr., of McKinley, Price & Fako, of Chicago (Edwin A. Strugala, of counsel), for appellant Northcutt.
    John C. Healy, of Stanton & Healy, of Chicago (Edwin A. Strugala, of counsel), for appellant Neagles.
    Lane, Falasz, PoIIman & Munday, of Chicago (Thomas L. Trinley, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This action was brought against multiple defendants in the court below. The first count, under the Dram Shop Act (Ill. Rev. Stat. 1967, ch. 43, par. 94 et seq.), sought to recover for plaintiff, Diane Krepfl (hereinafter plaintiff), loss of means of support of her husband, Carl Krepfl, who died on June 16, 1968, as a result of injuries sustained in an automobile accident. The second count sought to recover damages for the wrongful death of plaintiff’s deceased husband.

At the close of plaintiff’s evidence in the trial court, count two of the complaint against the operator and owner of the automobile which struck Carl Krepfl was voluntarily nonsuited by the plaintiff. Further, at the close of plaintiffs evidence, a directed verdict was entered in favor of Len W. Burke, a defendant under count one of the complaint.

Regarding the remaining defendants under count one, William R. Neagle and Lucille E. Neagle, owners and operators of the Wil-Lu Inn, and Adrian D. Northcutt, owner and operator of the Turf & Twig, the jury returned a verdict against them, and in favor of plaintiff, in the sum of $65,000. The judgment thereon was entered by the trial judge, as reduced by the statute, in the amount of $20,000.

Defendants appeal from the verdict and judgment, complaining that the trial court erred in denying their motion for a directed verdict made at the close of plaintiff’s case and again at the close of aU the evidence, and in denying their post-trial motion for judgment non obstante veredicto or, in the alternative, for a new trial.

Plaintiff’s decedent, Carl Krepfl, died on June 16, 1968, at age 33, approximately 6 months after the two had been married. Both plaintiff and Carl had, earlier in their lives, been patients in Elgin State Hospital. As of June 15, 1968, plaintiff and Carl were living at the Clearview Motel in Wheeling, Illinois, immediately next door to the Wil-Lu Inn, a tavern. At the time, Carl worked as a part-time handyman at a building supply company, earning $2.00 per hour, and had held the position since March of 1968; prior to that, he had been out of work most of his life. Plaintiff held a job at a local restaurant, and she and Carl shared living expenses, Carl paying for the rent of approximately $42 per week and plaintiff paying for the food for the couple.

Regarding the events and circumstances surrounding the accident which led to Carl Krepfl’s death, the Wheeling Police Department, by bulletin, had requested taverns in the area near where plaintiff and her husband lived not to serve liquor to Carl Krepfl, apparently because he became troublesome when intoxicated. On the evening of June 15, 1968 (a Saturday), Carl returned from work to the Krepfl’s motel room at about 4:30 P.M., and, according to plaintiff’s testimony, he appeared to her to already have been drinking. He immediately left the room to go next door to the Wil-Lu Inn, owned and operated by defendants Neagle, and when he returned to the room at about 5 P.M., he appeared to plaintiff to be somewhat intoxicated.

The couple changed clothes and went next door to the Wil-Lu Inn to eat supper. Upon their arrival, Carl ordered himself a drink, and, when he asked plaintiff what she wanted to drink, plaintiff indicated that she would rather have a coke. According to plaintiff, Carl said, “Well, drink something better than a Coke.” Plaintiff was served a glass of Mogen David wine from which she had one or two sips.

The couple stayed at the Wil-Lu Inn until approximately 9 P.M., during which time Carl had about three beers and two shots of whiskey; plaintiff had but the few sips of Mogen David wine. While at the Wil-Lu Inn, the couple was served drinks by “Little Willy.” At one point during their stay at the Wil-Lu, plaintiff testified, she asked Little Willy not to serve Carl any longer, to which Little Willy responded, ‘What’s the difference?” After plaintiff had said that to Little Willy, he said that he was going to give Carl some more to drink, which he later did. At another point during the time at the Wil-Lu, plaintiff testified, she asked Carl not to drink any more, to which he replied, “Who’s boss?” Plaintiff responded, “You are, yes.” Plaintiff testified that Carl would not listen to her and that he became angry, and further, that because Carl wanted his own way, plaintiff stated that she felt that she should “* # * let him have his own way. I didn’t want to fight with him.”

At about 9 P.M. when the couple left the Wil-Lu, Carl told plaintiff that they were going to the Hilltop Inn, a tavern owned by Len W. Burke, located next door to the Wil-Lu. They had nothing to drink at the Hilltop. Plaintiff testified that Burke grabbed her and Carl and took them out the front door of the Hilltop immediately upon their entry; Burke testified that the couple simply came in and left within a few minutes.

After having left the Hilltop, plaintiff and Carl returned to the Wil-Lu, where they stayed for about 30 minutes. Carl met a friend at the Wil-Lu and had another shot and beer. At approximately 10 P.M., plaintiff, Carl, and the friend, whom plaintiff could not identify, left the Wil-Lu; they obtained a cab and the friend was given a ride to his home some miles away.

The couple next went to the Turf & Twig on Milwaukee Avenue in Wheeling, an establishment owned and operated by defendant Northcutt. At the bar, Carl ordered himself a martini on the rocks, and he ordered another Mogen David for plaintiff; she had one or two sips of it. Carl was getting a little intoxicated, and he left his seat and wanted to dance. Plaintiff told him to sit down because he was “all over the place”; he continued to dance by himself. When the band stopped playing, Carl gave plaintiff a quarter with which to play the jukebox, which she did.

Eventually, the bartender at the Turf & Twig refused to serve Carl, and he went next door to the Bavarian Lodge to borrow some money from Hans Ammelounx, the proprietor, leaving plaintiff for approximately 20 minutes at the Turf & Twig. Carl was not served at the Bavarian Lodge. Upon his return, he said, “Let’s go home,” and the couple left the Turf & Twig at approximately 11 P.M. As they walked north along Milwaukee Avenue, Carl was behind plaintiff. After a time, Carl decided to go back to the Bavarian Lodge to get some cigarettes; plaintiff continued walking along Milwaukee Avenue, by herself, on her way back to the motel room. She walked for about 5 minutes before crossing Milwaukee to get back to the motel. She did not see Carl Krepfl until the next morning in the hospital.

Carl spent only a few moments at the Bavarian Lodge, and after he had spoken with Hans Ammelounx, he walked out of the Lodge and began to cross Milwaukee Avenue, a four-lane highway having a 50-mile-per-hour speed limit at that point. There were no stop signs, traffic signals, or street lights in the immediate vicinity. It was very dark. The motor vehicle which struck Carl Krepfl was northbound in the outer northbound lane of traffic, and the auto’s driver testified that just before impact he saw a figure, staggering and coming from his left, turn in front of his auto. Carl Krepfl died the next morning at 5:45 A.M.

The issues presented for review are:

(1) whether plaintiff was guilty of complicity with Carl Krepfl as a matter of law and whether the trial court erred in refusing to direct a verdict in defendants’ favor and in refusing to enter a judgment non obstante veredicto-,
(2) whether the trial court committed reversible error in recalling the jury after the case had been committed to its deliberation to correct one word mistakenly included in a particular instruction; and
(3) whether the damages awarded to plaintiff by the jury were contrary to the evidence presented.

I.

Regarding the first issue on appeal, defendants contend that where a party seeking to recover under the Dram Shop Act has contributed to the intoxication of the person whose intoxication caused the party’s injury, that party is guilty of complicity with the intoxicated person, and, thus, is not an innocent suitor and may not recover under the Act. Defendants urge that plaintiff’s actions in accompanying Carl Krepfl on a tour of taverns on the night of June 15, 1968, evidenced, as a matter of law, that plaintiff was guilty of complicity and was barred from recovery thereby. Therefore, defendants conclude, the trial court erred in refusing to grant their motion for a directed verdict and in refusing to enter a judgment non obstante veredicto in their favor.

Section 14 of article VI of the Dramshop Act, which delineated liability in the instant matter (Ill. Rev. Stat. 1967, ch. 43, par. 135), reads in pertinent part:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part, of such person. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, or any person resulting as aforesaid.”

Further, the standards which guide the courts of this State with respect to the direction of verdicts and the entry of judgments non obstante veredicto were set down by our supreme court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, wherein the court stated, at page 511 of the opinion, that verdicts ought to be directed and judgments non obstante veredicto entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. On this appeal, we will be guided by the tenets set forth in Pedrick.

In Tezak v. Cooper (2nd Dist. 1960), 24 Ill.App.2d 356, 362, 164 N.E.2d 493, this court enunciated the central principles with respect to the issue of complicity in a dram shop case, and we quote:

“While the problem [of complicity] is not free from difficulty, it would appear that if there is a dispute in the evidence as to whether plaintiff voluntarily participated in the drinking, or if there is a dispute as to whether such participation, if any, amounted to a substantial or material participation, then the question becomes one of fact which should be submitted to the jury. Even if there is no dispute in the evidence, yet if fair-minded persons would draw different conclusions from the evidence, then it becomes the province of the jury to draw that conclusion which to them seems most reasonable. On the other hand, if the evidence is not disputed and if all reasonable persons would conclude that plaintiff voluntarily participated in the drinking to a material and substantial degree, then such participation bars plaintiff as a matter of law.”

The standard regarding voluntary participation to a material and substantial extent has been most recently reiterated in Sapp v. Johnston (3rd Dist. 1973), 15 Ill.App.3d 119, 122, 303 N.E.2d 429, and Illinois Pattern Jury Instruction No. 150.17, which was provided to the jury in the case at bar, also reflects the language with respect to voluntariness and material and substantial extent.

In Holcomb v. Hornback (4th Dist. 1964), 51 Ill.App.2d 84, 200 N.E.2d 745, we took the opportunity, at pages 88-90 of the opinion, to discuss at great length the legal precedents and concepts relating to the issue of complicity. We stated:

“The law is established beyond controversy that a person cannot recover under section 14 [par. 135] of the Dramshop Act for injuries sustained unless he himself is innocent. The injured party must be free from complicity. ‘It has been repeatedly held that a plaintiff who participates in bringing about the intoxication of another may not recover under the Dramshop Act * * * participation does not, in our opinion, necessarily mean that the plaintiff must supply the liquor.’ Meier v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215. The defense of complicity in a dramshop action is an offspring of the ancient doctrine that a person should not and cannot profit from his own wrongful acts. Osinger v. Christian, 43 Ill.App.2d 480, 193 N.E.2d 872; Baker v. Hannan, 44 Ill.App.2d 157, 194 N.E.2d 563; Taylor v. Hughes, 17 Ill.App.2d 138, 149 N.E. 2d 393.

The Appellate Court, Third District, in Phenicie v. Service Liquor Store, 23 Ill.App.2d 492, 163 N.E.2d 220, affirmed a summary judgment entered in favor of the defendant by the trial court and held that where a plaintiff participated in drinking with an intoxicated person to the extent of one and one-half glasses of beer out of a quart of beer, where the party inflicting the injury had purchased the beer, such participation by the plaintiff in drinking with the intoxicated person exonerated the liquor store operator from liability under the Dramshop Act. In its opinion, the court stated on Page 496 of 23 Ill.App.2d, and Pages 221-222 of 163 N.E.2d as follows:

‘In the case at bar, as in the Meier v. Pocius case, supra, the ultimate question to be decided was whether there was a triable issue of fact on the question of comphcity, that is participation by plaintiff in Davis’ drinking and subsequent intoxication. * * * Assuming that Davis was in fact intoxicated, a fact which plaintiff was required to establish, then participation by plaintiff in Davis’ drinking exonerates the defendant from Hability under the Dramshop Act.’
Although some of the cases on this question appear to dwell on how much liquor the plaintiff has had to drink, it would appear that the extent of his willing participation in the drinking activities of the person who becomes intoxicated is the real test and the injured person need not purchase any of the liquor consumed to be a willing party and guilty of complicity. James v. Wicker, supra.
Plaintiff strongly contends that for her to be guilty of complicity as a matter of law that her participation in the drinking must be to a substantial and material degree. With this contention, we do not agree. We think the better rule and the real test is whether or not the injured party willingly and voluntarily participated in the drinking activity of the person who became intoxicated and inflicted the injury. Participation in drinking is not dependent upon the amount of drinking indulged in by the plaintiff but the fact of drinking itself, so long as the participation is voluntary and admitted.”

Turning now to the matter at hand, we must consider not only the holding of Pedrick and the principles stated in the cited cases, but also the record before this court on appeal. We find, after a thoroughgoing review, that the trial court committed no error in refusing to grant defendants’ motion for a directed verdict or in refusing to enter a judgment non obstante veredicto. We believe that the question of the extent and voluntariness of plaintiff’s participation in her husband’s drinking on the night of the accident, viewing the matter in light of the issue of her complicity, was a question which was properly submitted to the jury for its consideration. On the record, we cannot say that her complicity had been established by the evidence as a matter of law.

Many relevant facts bore upon the issue of complicity in the court below: plaintiff and her husband were newlyweds of 6 months; Carl Krepfl was known to be troublesome when intoxicated; plaintiff, the trial court noted at one point in colloquy with counsel, appeared to be an easily intimidated person; the initial purpose of plaintiff’s accompanying her husband was to get something to eat; plaintiff stated that her personal choice was to drink coke, and not some alcoholic beverage; plaintiff did not order her own drinks and merely sipped the Mogen David wine at the Wil-Lu Inn and the Turf & Twig; plaintiff asked the bartender at the Wil-Lu to refuse Carl further drinks and also asked Carl to stop drinking; and she refused to dance with Carl.

Moreover, and perhaps most importantly, the trial court and the jury were in a superior position, in relation to this reviewing court, to determine the credibility of the witnesses at trial and to determine the weight to be accorded their testimony.

A reading of the cases cited by the parties to this appeal in support of their respective positions demonstrates the importance which must be attached to the peculiar, particular factual circumstances surrounding the issue of complicity in given cases. It is clear from that reading that, in this area of judicial determination, no two cases are factually exactly alike, though the facts in some cases do tend to be somewhat similar to those in others.

We have thoroughly reviewed the cases upon which defendants most heavily rely, many of which are mentioned in the Holcomb quotation set out earlier in this opinion. We find that they are unpersuasive, based upon a full and careful reading of the record with which we have been presented.

II.

The second issue on appeal is whether the trial court committed reversible error in recalling the jury after the case had been submitted to its deliberation to correct one word mistakenly included in a particular instruction. To put matters in perspective, plaintiff’s counsel had initially submitted two burden of proof instructions on the elements of the case. A number of errors and omissions marred each of the tendered instructions, and the trial court and defense counsel requested certain changes, which plaintiffs counsel agreed to make. One instruction read, in part:

“The plaintiff has the burden of proving each of the following propositions:
1. That CARL KREPFL was intoxicated at the time of his death.”

Counsel for both parties and the trial court agreed, during a conference held on a Friday during the trial, that the instruction should be modified to read, in pertinent part, “intoxicated at the time of the accident.” On the following Monday, counsel for plaintiff stated that he was tendering the said instruction as modified. However, when the instruction was tendered to the court, it still read “intoxicated at the time of his death,” but, from the record before us, it appears that neither the trial court; nor counsel for any of the parties, noticed that the change which had been agreed to had not been made.

Subsequently, on at least two occasions during closing argument, defense counsel used the phrase “intoxicated at the time of his death” in regard to plaintiffs burden of proof. Moreover, the trial court, in instructing the jury subsequent to the parties’ closing arguments, read the instruction in its unmodified form, using the phrase “intoxicated at the time of his death.”

After the jury had been in deliberation for somewhat less than 1 horn:, counsel for plaintiff discovered the error, returned to court, and pointed it out to the trial judge. The judge then attempted to reach counsel for defendants at their respective offices in order that the error might be corrected. Unfortunately, defense counsel could not be contacted. The trial court then recalled the jury and struck the word “death” from the instruction in question, inserting in its stead the word “accident.”

During argument on post-trial motions, the trial court stated the reasons for the modification, and we quote from the record:

“* s # This court tiled to get a hold of you lawyers and for some reason I wasn’t able to get a hold of a single one of you except the Plaintiff’s lawyer who was here after the Court made a call; the bailiff and others here, I asked the Jury to come out, and I instructed the Jury, I struck out the word ‘death’ and inserted in lieu, the word ‘accident.’ The reason that was done was because the Court was not able to contact you gentlemen after I contacted your respective offices and I thought it would be improper to give the Jury the instruction at the of death [sic] because it appeared obviously [sic] to the Court that it was an inadvertent mistake after I had given this, and I don’t think the Court should permit a technicality to go to the Jury where he could have specifically instructed them to change it. These gentlemen, I’m certain, they made the notes to change it, but what happened, I suppose, when the girl typed it up, she simply didn’t change it and somebody should have caught [sic] my attention to it, but they didn’t.”

Section 67(1) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 67(1)) provides in pertinent part, that a court “shall in no case, after instructions are given, clarify, modify or in any manner explain them to the jury, otherwise in writing, unless the parties agree otherwise.” In Mathes v. Basso (1st Dist. 1968), 104 Ill.App.2d 237, 244 N.E.2d 362, this court stated at pages 239-240:

“When a case has been submitted to the jury for deliberation, the trial court should not, in the absence of stipulation between the parties, further advise or instruct the jury or otherwise attempt to clarify any point on which they may raise a question, where to do so would he prejudicial to one of the parties. City of Mound City v. Mason, 262 Ill. 392, 104 N.E. 685; * * (Emphasis supplied.)

We believe the trial court’s actions in correcting a single word in a single instruction, which by all accounts had been agreed to by all parties involved, resulted in no prejudice to defendants in the court below.

First of all, defense counsel, with the knowledge that the instruction should have read “at the time of the accident,” on at least two occasions during final argument used the phrase “at the time of his death,” which, in our opinion, although it may have been inadvertent, compounded the problem. Secondly, plaintiffs objection to defense counsel’s use of the phrase “at the time of his death” to characterize plaintiffs burden of proof was overruled by the trial court. Finally, it is defendants’ burden before this court to indicate the nature of the prejudice they have been subjected to by virtue of the trial court’s actions in modifying the instruction. We do not feel that defendants have satisfied that burden.

From a reading of the record, there is nothing whatsoever to indicate that anything further was undertaken or said by the trial court, save the change of the single word. Therefore, we find that the trial court committed no error in this regard.

HI.

Finally, defendants urge on appeal that the damages awarded plaintiff were excessive, were prompted by prejudice, and were not supported by the evidence adduced below. We find, upon the record, that the arguments are without merit.

For these reasons, then, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

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

       In their initial brief on appeal and at oral argument, defense counsel, on behalf of. defendants, argue that when plaintiff and Carl Krepfl finally departed the Turf & Twig, plaintiff was aware of Carl’s intoxicated condition and knew that he would have to eventually cross a dark, four-lane highway in order to get to the Clearview Motel. Knowing his condition, defendants argue, plaintiff abandoned Carl when he needed her most. Therefore, defendants conclude that, because plaintiff abandoned her decedent under the circumstances shown by the evidence and abandoned her duties regarding Carl Krepfl, she would be held to have terminated her relationship as his spouse and also to have abandoned her rights as his spouse, to claim injury to her support under the Dram Shop Act. To support their argument on this point, defendants rely heavily upon a principle set forth in James v. Wicker (1st Dist. 1941), 309 Ill.App. 397, 402, 33 N.E.2d 169, to the effect that one cannot recover under Section 14 of article VI of the Dram Shop Act (Ill. Rev. Stat., ch. 43, par. 135) for injuries sustained unless he is innocent. The principle has been reiterated time and again. (See Forsberg v. Around Town Club, Inc. (1st Dist. 1942), 316 Ill.App. 661, 666, 45 N.E.2d 513; Pearson v. Renfro (2nd Dist. 1943), 320 Ill.App. 202, 208, 50 N.E.2d 598; and Holcomb v. Hornback (4th Dist. 1964), 51 Ill.App.2d 84, 88, 200 N.E.2d 745). It is clear from a review of the record presented that defendants at no time advanced before the trial court this argument they now seek to proffer on appeal for the first time. In light of Supreme Court Rule 366(b) (2) (iii) (Ill. Rev. Stat. 1973, ch. 110A, par. 366(b) (2)(iii)), which states that a party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion, we are compelled to disregard defendants’ argument on the point.

       The record before us does not reveal the specific circumstances surrounding the changing of the word “death” to the word “accident.” It is unclear whether the jury had been provided with written instructions; whether, if the jury did possess said written instructions, the alteration was made on that copy of the instructions; or whether the alteration was made on the trial judge’s copy of the instructions.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    The Board of Trustees of Junior College District No. 521, Counties of Jefferson, Franklin, Hamilton, Wayne, White, Perry, Williamson and Washington, Plaintiff-Appellee, v. Keith Webb, County Treasurer, Hamilton County, Defendant-Appellant.
    (No. 74-59;
    Fifth District
    November 7, 1974.

      Rehearing denied December 11,1974.

      Frank Bonan, State’s Attorney, of McLeansboro, for appellant.
    Donald G. Musick, of Kirk & Musick, of Mt. Vernon, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from the Circuit Court of Hamilton County. Junior College District No. 521, also known as the Rend Lake Junior College District, is comprised of territory from the counties of Franklin, Jefferson, Hamilton, Perry, Washington, Wayne, White and Williamson in the State of Illinois. This community college district had the power to levy taxes. (Ill. Rev. Stati, ch. 122, par. 103 — 1.) The treasurers of all counties are the ex officio county collectors of their respective counties (Ill. Rev. Stati, ch. 120, par. 657.) and as county collectors pay over to the proper authorities the amounts collected or be subject to penalties. Ill. Rev. Stati, ch. 120, par. 761.

In 1972, the Treasurer of Hamilton County, Keith Webb, collected the general taxes assessed against taxable property in that county for the year 1971. On July 8, 1972, the Board of Hamilton County resolved that the Junior College District should be charged a fee that would approximate the cost of levying and collecting taxes. The County Treasurer was directed to deduct the fee before paying over to the district the taxes collected for it. Pursuant to the resolution the defendant retained in the county treasury $5,091.78 that would otherwise have been paid to the Rend Lake Junior College District. The Board of Trustees of the District thereupon filed an action against the defendant, as the Treasurer of Hamilton County, alleging that defendant wrongfully withheld from the District the sum of $5,091.78. Following a judgment for the plaintiff, the defendant appealed.

The defendant contends that section 21 of “An Act concerning fees and salaries * * (Ill. Rev. Stati, ch. 53, par. 39) permits a county collector of taxes to take a percentage commission from the taxes he collects as remuneration for his services. The words of section 21 have their origin under the Constitution of 1870. Under the Constitution of 1870 the compensation of many county officers, including county treasurers, could be paid only out of statutory fees collected by the office. An act of 1872 relating to fees and salaries established fees for county collectors and the basis of our present section 21 is in that act of 1872.

The Constitution of 1970, section 9(a) of article VII, provides:

“Compensation of officers and employees and the office expenses of units of local government shall not be paid from the fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.”

Article VII, section 9(a), of the Constitution of 1970 became effective as of December 1,1971. When defendant retained the funds herein involved, the above-quoted provision of the Constitution of 197Q was in effect. There is a definite conflict between section 21 and article VII, section 9(a), of the Constitution of 1970.

We therefore hold that section 21 of “An Act concerning fees and salaries * * *” (Ill. Rev. Stat., ch. 53, par. 39), being contrary to the Constitution, is unconstitutional and void. The Constitution is supreme and whatever the purpose of the people in placing a restriction upon legislation it must be obeyed. Sutter v. People’s Gas Light & Coke Co., 284 Ill. 634.

Defendant also raises a number of other objections which we have examined and find to be without merit.

Judgment of the Circuit Court of Hamilton County is affirmed.

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


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. Oestringer, Defendant-Appellant.
    (No. 73-170;
    Fifth District
    November 14, 1974.

      George R. Ripplinger, Jr., of Belleville, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Charles H. Stegmeyer, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Kenneth W. Oestringer, from a judgment entered, on a jury verdict, by the circuit court of St. Clair County convicting him of the offense of armed robbery and the imposition of a sentence of 4 to 6 years with the Department of Corrections.

The defendant raises four contentions in this appeal: (1) that the State failed to prove him guilty beyond a reasonable doubt; (2) that the mandatory 4-year sentence for the offense of armed robbery is unconstitutional;' (3) that the trial judge made comments to the jury which prejudiced his, defendant’s, right to a fair trial; and (4) that the trial court erred in refusing to consider periodic imprisonment.

-■ We shall first consider the defendant’s contention that he. was not proven guilty beyond a reasonable doubt. The defendant asserts that the trial court must be reversed since the prosecution evidence was “improbable, unconvincing, unreasonable and completely unsatisfactory.” After a thorough review of the record in the instant case, we find no support for this contention.

The evidence against the defendant in the instant case is substantial. The victim of the armed robbery, Homer Hunter, positively identified the defendant as the man who took his money at gunpoint and testified as to the circumstances surrounding this incident. The greater part of this testimony was corroborated by Gerald “Jake” Showalter who w;as sitting next to the victim at the time of the alleged robbery. Even though Showalter did not actually see the. defendant take money from the victim, he did testify that he saw the defendant with “what appeared to be a gun” and heard the defendant say, “PuH your wallet out.”

The defendant, on the other hand, testified that he did not even talk to the victim on the day of the alleged robbery. He further testified that he never pointed a gun at, nor did he take any money from, the victim.

The jury, as the triers of fact, have the responsibility to determine which of the conflicting testimony of the witnesses is to be believed. (People v. Henderson, 18 Ill.App.3d 457, 309 N.E.2d 242; People v. Alexander, 15 Ill.App.3d 607, 305 N.E.2d 61.) In People v. Goodpaster, 35 Ill.2d 478, 480, 221 N.E.2d 251, cert. denied, 386 U.S. 967, our supreme court stated,

# # we £n(j a direct and irreconcilable conflict in the testimony. In such a circumstance it is the peculiar prerogative of the jury to determine where the truth Mes.”

It is within the province of the jury to determine the credibflity of the witnesses and the weight to be given their testimony. (People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Lee, 48 Ill.2d 272, 269 N.E.2d 488.) As our supreme court stated in People v. Woodruff, 9 Ill.2d 429, 434, 137 N.E.2d 809, 811:

“The rule is well known that the credibifity of witnesses and the weight of evidence are, in the first instance, questions best determined by the jurors who are in a position.to see and hear the witnesses and to observe their demeanor while testifying.”

The court continued by stating:,

“It is fundamental that this court wifl not disturb a verdict of guilty on the ground that the evidence is not sufficient to convict unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant’s guilt. Nor will we substitute our judgment for that of the jury in merely weighing the credibility of witnesses where the testimony is conflicting. People v. Tensley, 3 Ill.2d 615, 621.” (9 Ill.2d 429, 434, 137 N.E.2d.809, 812.) See also People v. Bey, 51 Ill.2d 262, 281 N.E.2d 638; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.

We are unable to say that the evidence in the instant case was insufficient to justify the jury, beyond a reasonable doubt, in the verdict that was rendered.

It is next contended that the mandatory 4-year sentence for the offense of armed robbery is unconstitutional. The defendant urges this court to declare the mandatory 4-year minimum penalty for armed robbery unconstitutional because it violates the state constitutional provision relating to “Limitation of Penalties after Conviction” (Ill. Const., art. I, sec. 11), and requires an excessive sentence for the defendant.

In defendant’s argument in support of this contention he refers to the A.B.A. Project on Minimum Standards for Criminal Justice, Probation (Approved Draft, 1970); Sentencing Alternatives and Procedures (Approved Draft, 1968). These and a great many other authorities (e.g., Rubin, AUocation of Authority in Sentencing — Correction Decision, 45 Texas L.Rev. 455, 463-65 (1967); President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Courts (1967)) have advocated the position that mandatory minimum sentences are evil and destructive. Although these authorities, perhaps foreshadowing the trend away from mandatory minimum sentences, are persuasive, they are of little aid to us in our deliberations with respect to the instant case. We are not faced with the question of what we would recommend, rather we are faced with determining whether the minimum mandatory sentence adopted by the legislature for the offense of armed robbery (Ill. Rev. Stat. 1973, ch. 38, pars. 18 — 2(b), 1005 — 5—3, 1005— 8 — 1) contravenes the constitutional requirements of article I, section 11 (Ill. Const., art. I, sec. 11).

The relevant portion of the constitution (111. Const., art. I, sec. 11) provides that,

“AH penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

In People v. Cantrell, 14 Ill.App.3d 1068, 304 N.E.2d 13, and in People v. Moore, 15 Ill.App.3d 691, 304 N.E.2d 696, the court was confronted with arguments similar to the argument being advanced in the instant case. In Cantrell, the defendant contended that a minimum sentence of not less than 14 years upon a conviction for murder violated the constitutional provisions embodied in article I, section 11 (Ill. Const,, art. I, sec. 11). Therein the court concluded that the statutory minimum sentence for murder of 14 years was “constitutionally permissible” after making the determination,

“# * * that section 11 does not present a mandate opposing minimum sentences. Rather, section 11 requires the legislature to develop sentencing standards that reflect the goal of restoring the offender to useful citizenship, as well as providing a penalty that is proportionate to the nature of the offense (Sixth Ill. Constitutional Convention, Record of Proceedings at 1391).” (14 Ill.App.3d 1068,1072, 304 N.E.2d 13, 16.)

In Moore, the defendant contended that the statutory minimum sentence of 4 years without possibility of probation for the offense of rape violated the 1970 Illinois Constitution, article I, section 11, which requires that the objective of punishment be to restore the defendant to useful citizenship. The court refused to “subscribe to the narrow interpretation interposed by defendant” and explained its reasons in the following manner:

“Section 11 clearly provides that all penalties shall also be determined according to the seriousness of the offense. The State’s position to which we subscribe, is that article I, section 11, is a statement of public policy aimed at both the legislature and the court. The legislature considered both rehabilitation and the seriousness of the offense of rape and determined that in the interest of the public the statutory minimum must be four years. We do not feel the call for a consideration of the rehabilitative aims in sentencing contained in article I, section 11, now deprives the legislature of fixing minimum penalties for crime, which, has long been within their domain. (See People v. Landers, 329 Ill. 453, 457, 160 N.E. 836, 838.) Furthermore, the framers of the 1970 Constitution apparently did not intend the document to abolish the death penalty in Illinois, since a separate referendum regarding its retention was submitted to the voters at the same time the constitution was submitted for approval. (See S.H.A. Const., art. I, sec. 11, Constitutional Commentary, at 545.) Since the death penalty is the antithesis of rehabilitative sentencing, this buttresses the notion that article I, section 11 was not intended to make rehabilitation the only consideration in sentencing.” (15 Ill.App.3d 691, 693, 304 N.E.2d 696, 698.)

A similar result was reached in the abstracted opinion of People v. Dunigan, 17 Ill.App.3d 498, 308 N.E.2d 338.

In our analysis of the defendant’s contention that the minimum penalty of 4 years for the offense of armed robbery contravenes article I, section 11 (Ill. Const., art. I., sec. 11), we start with the basic proposition that there is a presumption of the validity of the legislative classifications, and the burden of rebutting that presumption is on the party challenging the validity of the classification. (People v. Sherman, 57 Ill.2d 1, 309 N.E.2d 562; People v. McCabe, 49 Ill.2d 338, 276 N.E.2d 407.) Of course, it is our judicial obligation to insure that this power has not been exercised arbitrarily or in a manner repugnant to our constitution. After consideration of People v. Cantrell, 14 Ill.App.3d 1068, 304 N.E.2d 13; People v. Moore, 15 Ill.App.3d 691, 304 N.E.2d 696, and the numerous authorities cited by the defendant; we hold that the legislative provisions complained of are not unreasonable or arbitrary and, as required by article I, section II, are aimed at the seriousness of the offense. Furthermore, we cannot say that a minimum penalty of 4 years is so great as to demonstrate that the legislature ignored the rehabilitative potential of the offender, required by article I, séction 11. Consequently, we do not find any of the statutes in question violativé of our State constitution.

Next, the defendant contends that the trial judge made comments to the jury which prejudiced his right to a fair trial. It appears that about 10 F.M. on the day of the trial the judge called the jury from its deliberations and asked whether a verdict had been reached. The State’s Attorney, the defense counsel and the defendant were present at the time. When the jury foreman informed the court that a jury verdict had not been reached, the trial judge asked the foreman whether he felt that a verdict could be reached if more time was allowed. One or two of the jurors shook their heads no, but it was the general consensus of the jury and the jury foreman that a verdict could be reached after further deliberation. The trial judge then informed the jury that they need not be concerned with the late hour because police officers would be available to escort the female jurors to their automobiles if they so desired after reaching a verdict no matter what the hour. No' objection was made to this communication with the jury. The jury reached a verdict of guilty some time prior to 11 P.M.

While it is error for a judge to interfere in jury deliberations by making remarks calculated to effect rendition of a verdict (People v. Golub, 333 Ill. 554, 165 N.E.2d 196), we do not feel that the court’s inquiry in this case was of a nature to unduly influence the jury. (People v. McVet, 7 Ill.App.3d 381, 287 N.E.2d 479.) See also People v. Tobe, 49 Ill.2d 538, 276 N.E.2d 294, 298; People v. Rogers, 23 Ill.App.3d 115, 318 N.E.2d 715.

The defendant’s final contention is that the trial court erred in refusing to consider periodic imprisonment as ¿ sentencing alternative in this case. The séntencing judge determined that, since periodic imprisonment could be imposed for a maximum of 2 years (S.H.A., ch. 38, § 1005 — 7— 1(d), effective January 1, 1973) and because the minimum sentence for the offense of armed robbery is 4 years (S.H.A., ch. 38, § 18 — 2, effective Jánuary 1, 1973; S.H.A., ch. 38, § 1001 — 1 et seq., effective January 1, 1973), periodic imprisonment could not apply to the instant case. The trial judge did err in this determination.

The defendant was sentenced on March 5, 1973. On that date the relevant portion of the Unified Code of Corrections provided that:

“When a defendant is convicted of a felony or misdemeanor, the court may sentence such defendant to:
(1) a period of probation or conditional discharge except in cases of murder, rape, armed robbery, violation of Sections 401(a), 402(a), 405(a) or 407 of the Illinois Controlled Substances Act2 or violation of Section 9 of the Cannabis Control Act;3
(2) a term of periodic imprisonment;
(3) a term of imprisonment;
(4) a fine.” (S.H.A., ch. 38, par. 1005 — 5^-3, effective January 1, 1973.)

According to the summary of the Council Commentary to S.H.A., ch. 38, par. 1005 — 7—1, effective January 1, 1973,

“No offenses are excluded from eligibility for periodic imprisonment as is the case with probation and conditional discharge under section 1005 — 5—3.” (S.H.A., ch. 38, par. 1005 — 7—1, at 452.)

It is thus evident that periodic imprisonment could have been imposed for the offense of armed robbery as the law existed at the time the defendant was sentenced.

Although we note that the Unified Code of Corrections has since been amended to exclude périodic imprisonment for persons convicted of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 5—3(d)(1), effective November 14, 1973), it is our belief that the instant case should be remanded for resentencing in order to permit the trial judge to consider the defendant’s request for periodic imprisonment. Our remandment of this case should not be construed as a recommendation for periodic imprisonment. The sole pmpose of remandment is to permit the trial judge to determine whether periodic imprisonment, which was a viable alternative at the time the defendant was sentenced, is appropriate. See generally People v. Killebrew, 55 Ill.2d 337, 303 N.E.2d 377, 381; People v. Davis, 18 Ill.App.3d 793, 310 N.E.2d 682, 690.

In accordance with the foregoing conclusions we affirm the judgment entered by the circuit court of St. Clair County against the defendant and remand this case for resentencing consistent with opinions expressed herein.

Judgment affirmed, remanded for resentencing with directions.

CARTER and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Board of Education, St. Libory Elementary School Dist. No. 30 et al., Plaintiffs-Appellants, v. Michael J. Bakalis, Superintendent of Public Instruction, et al., Defendants-Appellees.
    (No. 74-76;
    Fifth District
    November 14, 1974.
    Sam S. Pessin, of Belleville, Norman L. Nold, of Freeburg, and Harold ' H. Pennock, Jr., of Centraba, for appellants.
    William J. Scott, Attorney General, of Springfield, and Walter E. Moehle, State’s Attorney, of Nashville (Thomas H. Price, Assistant Attorney General, of counsel), for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This is an appeal from an order dismissing a complaint for administrative review and injunction filed by plaintiff-appellants on January 8, 1973. Plaintiffs sought review of an order of the Superintendent of the Educational Service Region of Washington County of December 4, 1972, and the order of the Superintendent of Public Instruction of Illinois of December 15, 1972, approving a petition filed by defendants-appellees on September 25, 1972, for the organization of a proposed community unit school district in a territory composed of less than 4000 inhabitants.

The appellants argue that section 11 — 6 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 11 — 6) gives them a right to administrative review. They point to two amendments of section 11 — 6 passed by the same session of the legislature, P.A. 77-598 and P.A. 77-604, and argue that taken together they provide that persons objecting to the formation of a unit school district may seek administrative review of the decision to organize one. P.A. 77-598 provides that:

“The decision of the regional superintendent is an ‘administrative decision as defined in Section 1 of the ‘Administrative Review Act’, and any petitioner or resident who appears at the hearing may apply for a review of such decision in accordance with the ‘Administrative Review Act’ * #

Final legislative action on P.A. 77-598 took place on June 26, 1971. The language of P.A. 77-598 affords appellants the right to administrative review; however, P.A. 77-604, passed on June 28, 1971, with the same effective date of July 21, 1971, states that:

“A decision of the regional superintendent denying the petition is an ‘administrative decision’ as defined in Section 1 of the ‘Administrative Review Act’, and any petitioner or resident who appears in support of the petition at the hearing may apply for a review of such decision in accordance with the ‘Administrative Review Act’ * *

This provision was carried over in the amendment passed at the succeeding session of the legislature, effective October 1,1972 (Ill. Rev. Stat., 1972 Supp., ch. 122, par. 11 — 6). The 1973 Revisory Act expressly states that the last amendment to section 11 — 6 of the School Code at the 77th General Assembly was based on and incorporated all prior amendments of that section enacted by the 77th General Assembly (Ill. Rev. Stat. 1971, ch. 131, par. 4.2) as amended by the 1973 Revisory Act, P.A. 78-255, section 61 (Ill. Legislative Service 1973 Laws, vol. 3, pages 406, 416).

Appellants argue that they have a right to administrative review based on the well established rule now codified in section 6 of “An Act 0 ° ° in relation to the construction of the statutes” (Ill. Rev. Stat., ch. 131, par. 4.2):

“Two or more Acts which relate to the same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of irreconcilable conflict.”

Appellant maintains that the two acts are reconcilable because the latter, P.A. 77-604, does not specifically prohibit administrative review of the decision of a regional superintendent granting a petition and is therefore not inconsistent with P.A. 77-598 which grants such review. We have previously determined that this argument is without merit (Mills Prairie Community High School Dist. No. 229 v. Miller, 15 Ill.App.3d 87, 303 N.E.2d 603) and we now affirm Our earlier ruling. Appellant’s interpretation of P.A. 77-604 would make its restrictive language meaningless. P.A. 77-604 clearly envisions a scheme of review different from that of P.A. 77-598. Instead of the broad administrative review of P.A. 77-598, review of the regional superintendent’s decision lies exclusively with the Superintendent of Public Instruction in all cases except for those specifically provided for in the statute. Furthermore, even if we were to find that the statutes were reconcilable, we would have to deny appellant the right to administrative review because such a conclusion is contrary to the manifest intent of the legislature. The overriding consideration in cases of statutory interpretation is, notwithstanding technical rules of construction, to effectuate the expressed intent of the legislature. (S. Buchsbaum & Co. v. Gordon, 389 Ill. 493, 59 N.E.2d 832.) Moreover:

“The whole record of the legislation, including acts passed'at subsequent sessions, is open to ascertain such intent and, once ascertained, it will be given effect irrespective of priority of enactment.” (People ex rel. Dickey v. Southern Ry. Co., 17 Ill.2d 550, 555, 162 N.E.2d 417.)

Applying these principles, we find that the clear intent of the legislature was to limit the right of administrative review to the terms stated in P.A. 77-604. The scheme of review set out in P.A. 77-604 was repeated in the 1972 version of section' 11 — 6, and the 1973 Revisory Act expressly "stated that P.A. 77-604, not P.A. 77-578, expressed the intent of the legislature. This was our conclusion in Miller, which was subsequently followed by the Appellate Court for the Fourth District in Board of Education v. Ellis, 19 Ill.App.3d 381, 311 N.E.2d 615. The circuit court had no jurisdiction in this case and properly dismissed appellant’s complaint.

Appellants argue, however, that P.A. 77-604 is unconstitutional. In Ellis, the court discussed this question at length, concluding that because the legislature has plenary power to regulate the formation of school districts, it could in its discretion constitutionally give the right, to review to one class of persons and deny it to others. Appellants’ contention is without merit.

For the foregoing reasons, the judgment of the circuit court is affirmed,

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Dale Wallace, Defendant-Appellant.
    (No. 72-255;
    Fifth District
    November 19, 1974.
    Robert E. Farrell and Lynn S. Frackman, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Madison County dismissing defendant’s pro se petition for post-conviction relief following an evidentiary hearing. The sole issue presented is whether the trial court erred in reappointing the public defender’s office to represent petitioner over his objection, and in the face of his allegation that he had been incompetently represented by the same defender’s office at his original conviction.

On his plea of guilty petitioner was convicted of murder on November 4, 1971, and. he was sentenced to the penitentiary for a term of 15 to 30 years. On May 22, 1972, he filed his post-conviction petition alleging in part that he was incompetently represented by the public defender’s office; that he had not been advised by counsel that his intoxicated condition might have been sufficient to reduce his crime from murder to voluntary manslaughter; and that his counsel, in effect, forced him to plead guilty to murder by telling him that the State and the court “would throw the book at him” if he did not plead guilty to such crime. On the basis of these allegations petitioner filed a motion accompanying his petition specifically requesting that counsel, other than the public defender, be appointed to represent him. In addition, the public defender’s office itself filed a motion requesting that other counsel be appointed, citing People v. Smith, 37 Ill.2d 622, as authority for its request. Both motions were denied, and the public defender continued to represent petitioner throughout his post-conviction hearing.

The record fails to reveal any reasons for the trial court’s action and we are at a loss to understand it. The Smith case specifically holds that the reappointment of a public defender under similar circumstances constitutes reversible error. The rule is well established, as stated in Smith and People v. Gray, 4 Ill.App.3d 934, it is based on the theory that trial counsel should not be placed in a position where he is required to pursue an advocatory role in support of an issue which would, if adjudged meritorious, reflect unfavorably upon the integrity of counsel’s own office; ñor should an individual defendant be deprived of his right to a full and complete assistance of counsel unencumbered by divided loyalties. Just recently, in People v. Bain (Docket No. 73-349), we approved the rule stating that its rationale lies in the avoidance of the conflict of interest inherent in the situation by recognizing it in advance and appointing an attorney other than one from the same office alleged to have been previously incompetent.

In the case before us the need and effectiveness of the rule are self-evident. Petitioner’s main contention here is that at no time during the hearing did his post-conviction counsel ever question the adequacy of his trial counsel. This should not be the issue before us. It is entirely foreign to the issue posed by the post-conviction petition. It presents the very conflict of interest question that an application of the rule is designed to avoid. Accordingly, we find that the trial court should have acceded to the request of petitioner and the public defender to appoint other counsel, and that, under such circumstances, the court’s failure to do so constituted reversible error.

For purposes of clarity we mention the case of People v. Buckholz (Docket No. 72-204), which we have also recently decided. In that case we held that the reappointment of the public defender’s office to represent defendant in his post-conviction proceeding did not constitute error. We based our decision primarily on the fact that defendant personally made no claim of incompetency of trial counsel, and, at his evidentiary hearing in answer to specific inquiry by the court, he denied any conflict with his present appointed counsel, and insisted, absolutely, that he wanted to keep him. We do not consider such facts applicable to those now before us, for certainly a defendant is entitled to keep his reappointed counsel if that is his desire and counsel is willing to serve.

The judgment of the Circuit Court of Madison County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

EBERSPACHER and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James Terry, Defendant-Appellee.
    (No. 74-108;
    Fifth District
    November 21, 1974.
    William J. Scott, Attorney General, of Chicago, and Richard S. Simpson, State’s Attorney, of Lawrenceville (James B. Zagel and Brian A. David, Assistant Attorneys General, of counsel), for the People.

      Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defenders Office, of Mt. Vernon (Douglas J. Rathe, Senior Law Student), for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On February 14, 1973, defendant James Terry was indicted by the grand, jury of Lawrence County on two counts of indecent liberties with a child.. On November 28, 1973, the Circuit Court of Lawrence County ordered the defendant discharged for want of prosecution. The State has taken this appeal.

In a 2-week period subsequent to the indictment, the defendant filed a series of motions. These consisted of a motion for substitutions of judges, a motion for reduction of bail, a motion for disclosure to the accused, a motion to quash the arrest and suppress evidence, and a motion for a bill of particulars. The trial court granted the motions for substitution of judges and reduction of bail, but held no hearings and made no rulings with respect to the other motions filed by defendant. These motions were still pending at the time defendant was discharged for want of prosecution. Neither the State nor the defendant had ever brought these motions to the court’s attention for disposition.

On June 7, 1973, defendant filed a demand for speedy trial. 163 days later defendant filed his petition for discharge. No action was taken by the State or the defendant during the entire 163-day period. When the defendant filed these motions he was chargeable with delay occasioned by them. Also, he had the primary duty of calling up his motion to suppress. However this does not justify inaction on the part of the State. Here the State had ample time to call up the motions after it appeared that defendant was not going to proceed. Over 90 days passed after the last motion was filed before the defendant made his demand for a speedy trial.

The State cites People v. Ross, 132 Ill.App.2d 1095, 271 N.E.2d 100 for the proposition that after a motion to suppress is filed the 160-day statute is tolled until the motion is called up by the defendant and the court has ruled on the motion. If that is the holding in Ross, we expressly decline to follow it. However we do not so interpret the holding in the Ross case and also find the cases completely distinguishable on the facts.

Finding nothing in the record to justify or excuse complete inaction by the State for the full statutory period after the filing of the demand for speedy trial, the judgment of the Circuit Court of Lawrence County is affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alvin Ray Lilley, Defendant-Appellant.
    (No. 72-155;
    Fifth District
    November 25, 1974.
    Robert E. Farrell and Michael J. Rosborough, both of State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.


author: Mr. JUSTICE DIXON

text:
    Pedro Ortiz et al., Plaintiffs-Appellees, v. Warren Chevrolet, Inc., Defendant- Appellant.
    (No. 73-147;
    Third District
    December 4, 1974.

      Wendel R. Swan, of Moline, for appellant.
    Durwood Long, Sr., of Long & Schrager, Assoc., of East Moline, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Pedro Ortiz and David J. Ortiz brought suit against Warren Chevrolet, Inc., for damage done to their car by vandals during the night while it was parked on the defendant’s lot after being repaired by the defendant. Darrell Robinson likewise brought suit against Warren Chevolet, Inc., for damage done to his car by vandals that same night while it was parked on the lot after being repaired. The two suits were consolidated. A bench trial took place, and judgment was rendered by the Circuit Court of Rock Island, Illinois, in favor of the three plaintiffs. The defendant has appealed, claiming that the trial court erred in admitting testimony as to the practices of certain other car dealers and that its judgment was against the manifest weight of the evidence.

At the trial the plaintiffs testified that they had brought their cars to the defendant for repairs, that the cars were then in good condition, that the cars were in a damaged condition the morning after the vandalism, and that the plaintiffs had paid the defendant its charges for repairing the damage caused by the vandals. The plaintiffs then rested.

The defendant offered testimony that its service department was open until midnight each week night; that at midnight the custodian came to work for 4 or 5 hours; that a merchant policeman with' a dog checked the premises occasionally each night; that, in addition, the East Moline police cruised by on the adjoining highway in their regular patrols; that it had been in its present location on the outskirts of East Moline for approximately 2 years; that it had been bothered with vandalism there, but less than in its previous location in downtown East Moline; that merchant police had caught vandals at the new location on two occasions; that its premises are not enclosed with a fence but were illuminated by seven light standards and two mushroom lights in front of its building; that Reynolds Motor Co. across the street had a fence enclosing its parking lot, but it had not enclosed its own parking lot with a fence because General Motors did not require it and because of the greater expense of enclosing its larger lot; that the plaintiffs’ cars were locked and the keys were kept inside the building; that its own cars were stored in the same manner and place as its customers’ cars; and that it was not the custom of Quad-City automobile dealers to keep their customers’ cars inside a building or a fenced lot at night. The defendant then rested.

Thereafter, the plaintiffs called Bob Cain and Tom Tague to testify. Cain testified that he was the service manager for Reynolds Motor Co., which was located across the highway from the defendant; that Reynolds Motor Co. had an illuminated parking lot which was enclosed with an 8-foot metal fence with barbed wire at the top; and that Reynolds Motor Co. kept its customers’ cars inside its building or its fenced lot. Tague testified that he was tire owner of Tom Tague Dodge, Inc., a dealership in downtown Moline; that he was familiar with the practices of his own agency to protect against vandalism to customers’ cars, and with the practices of Hacker Oldsmobile, also in downtown Moline, where he had previously worked; and that practice of both was to put customers’ cars indoors when left overnight, to protect them from vandalism.

The defendant maintains that the testimony as to the practices of three other car dealers should not have been admitted because it was not sufficient to establish the existence of a general custom of parking customers’ cars inside garages or fenced lots.

The Illinois Supreme Court has pointed out that in negligence cases the defendant’s duty is to conform to the legal standard of reasonable conduct in the light of the apparent risk; that a custom either to take or to omit a precaution is admissible as bearing on what is proper conduct under the circumstances, though it is not conclusive; and that custom is relevant because it shows what is feasible and suggests what the defendant should know. (Darling v. Charleston Community Memo rial Hospital, 33 Ill.2d 326, 331.) The defendant initiated the introduction of evidence concerning what was customarily done with customers’ cars by Quad-City automobile dealers, and this allowed the plaintiffs to offer rebuttal evidence on the same topic. (Hall v. Kaplan, 127 Ill.App.2d 336, 240.) Furthermore, it is established that evidence showing that a better method is available for use in connection with the operation in question is admissible in negligence cases for the same purpose and on the same theory as evidence of custom. (Cleary, Handbook of Illinois Evidence § 12.17 (2d ed. 1963); Hunter, Trial Handbook for Illinois Lawyers § 75.8 (4th ed. 1972).) Whether the testimony of witnesses Cain and Tague be considered as rebuttal evidence on the issue of what was customary practice in the vicinity of defendant’s place of business or as evidence of better methods in use to protect customers’ cars from vandalism, we cannot say that the trial court was in error in admitting it. Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co., 73 Ill.App.2d 5, 29-30.

The defendant also maintains that the judgment was against the manifest weight of the evidence, arguing that the evidence showed it had exercised reasonable care in taking protective measures to prevent vandalism to its own cars and those of its customers, and no negligence on its part was established.

The defendant is correct in pointing out that the presumption of negligence which arises on proof of delivery of property to a bailee in good condition and its redelivery in damaged condition merely shifts the burden of going forward with the evidence, and disappears upon the production of any evidence of the bailee’s having exercised due care. (Clark v. Fields, 37 Ill.2d 583, 586.) The defendant correctly observes, further, that a bailee for hire is not an insurer of the bailed property (Lathrop v. Goodyear Tire & Rubber Co. Inc., 325 Ill.App. 281, 289), although obligated to exercise reasonable care under the circumstances. (Watson v. Byerly Aviation, Inc., 7 Ill.App.3d 662, 670.) However, whether a bailee has met the burden of showing that damage to the bailed property occurred without the bailee’s fault is ordinarily a question of fact for the trier of fact. (Bielunski v. Tousignant, 17 Ill.App.2d 359, 363-64.) In view of the circumstances of vandalism’s being evidently a constant problem and a matter of serious concern in the vicinity of the defendant’s place of business, the value and tempting nature of the cars which were in the possession of the defendant as bailee, the extent of the damage which the vandals were able in this case to do without detection, thp lessened precautions which in fact were taken toward the end of the night, and the obvious availability of alternative ways or protection, we cannot say that the trial court was plainly in error in finding against the defendant on the question of due care, or that its decision in favor of the plaintiffs was against the manifest weight of the evidence.

For the reasons stated, the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    CPC International, Inc., Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 72-278;
    Third District
    December 6, 1974.

      Rehearing denied January 7,1975.

      Mayer, Brown & Platt, of Chicago (James W. Gladden, Jr., of counsel), for petitioner.
    William J. Scott, Attorney General, of Springfield (Larry R. Eaton and Prescott Bloom, Assistant Attorneys General, of counsel),for respondents.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is a petition seeking review of an order of the Illinois Pollution Control Board in which CPC International, Inc., (hereinafter referred to as CPC) had violated Rule 3 — 3.112 of the “Rules and Regulations Governing the Control of Air Pollution,” in operation of the coal-fired boiler known as C boiler at the plant of CPC in Pekin, Illinois, and, in which also, a penalty of $15,000 was assessed against CPC. The proceeding was pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. lllVa, § 1041) and Supreme Court Rule 335 (Ill. Rev. Stat. 1973, ch. 110A, § 335).

The Board found CPC in violation of tire Environmental Protection Act, which prohibits air pollution, and found CPC in violation of the Board regulations fixing an application emission standard for coal-fired boilers. In seeking a review in this case, CPC argues that the findings concerning the violation of the regulation were against the manifest weight of the evidence and alternately asserts that the Pollution Control Board erred in imposing a $15,000 fine when it found that the violation, if any, was not deliberate and was corrected as soon as CPC became aware of it.

CPC operates a corn-processing plant in Pekin, which handles some 70,000 bushels of corn each day. Part of its equipment consists of three coal-fired boilers, labeled A, B, and C. The first two boilers vent through a single stack and effectively comprise one unit. C boiler, installed more recently in 1958, has a separate stack.

In 1968, CPC conducted tests on its boilers in order to submit an air contamination emission reduction program (ACERP) to the Air Pollution Control Board, predecessor of the current Environmental Protection Agency and Pollution Board. The emission standard set at that time by the Pollution Control Board for coal-fired boilers was 0.60 lbs. of particulates per million BTU’s of heat. This standard has been continued in the Regulation 3 — 3.112. CPC’s test showed that A and B boilers as a unit were emitting particulates in excess of the emission standard, and the air contamination emission authorities proposed the installation of pollution-control equipment which was completed in 1970.

C boiler, however, using a multi-cyclone or multi-clone dust collector, had an emission level of only 0.6056 Ibs/million BTU, barely over the maximum allowable. CPC proposed no change for C boiler and the Air Pollution Control Board did not immediately object. Later, however, the Control Board did question CPC’s use of the 90%-pIus efficiency figure for the C boiler dust collector. The Board notified the corporation that it would apply the generally accepted 83% efficiency level, which would result in a higher estimated level of particulate emission, unless CPC could substantiate the 90% figure. Subsequently, 1968 tests by CPC produced data which, when applied to a manufacturer’s performance curve, show the efficiency of the dust collector to be 92.5.%

The Pollution Control Board hearing in this case also showed that in early 1971, CPC’s coal supplier began shipping coal of a higher ash content than before, as one of the supply mines became depleted. The coal used by CPC from 1967 through 1970 had an average ash content of about 8.3% while the coal used in 1971 averaged 9.9%. The parties apparently agree that the level of particulate emissions is relatively proportionate to the ash content of the coal.

On October 30, 1971, the Environmental Protection Agency (EPA) filed the complaint in this case as against CPC, charging air pollution in violation of section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111%, § 1009(a)) and alleged that the C boiler had been emitting particulates in violation of regulation 3 — 3.112 maximum level of 0.60 lbs/million BU. During the first part of November 1971, CPC inspected the dust collector on the C boiler and discovered considerable deterioration. There was extensive repair and replacement of parts by CPC, but CPC was still not satisfied with the operation of the dust collector. At that time, CPC, apparently for the first time, realized that the ash content of its coal was considerably higher than in previous years. Lower ash coal was obtained, and a stack test on the C boiler in February 1972 showed an emission level of .055 lbs/million BTU’s, in compliance with 3 — 3.112. At the hearing in this cause, the EPA maintained that C boiler had operated at an emission level of 2.08 lbs/million BTU’s before CPC had remedied the situation. CPC argued that the 75% deficiency factor used by EPA was too low and introduced evidence showing that, at an efficiency of 92.5%, the emission level of C boiler was only .626.

The Board found that, at least during 1971 while the higher ash content coal was being used, C boiler was in violation of the 3 — 3.112 emission standard of 0.60. Based on testimony of neighboring property owners, the Board also found that the CPC plant was emitting ash and .soot deposits which interfered with the neighbors’ lives and property. Occasional emissions of gluten were dismissed by the Board as insignificant with a warning to CPC to avoid the problem in the future. Following the findings of the violations, the Board also imposed a fine of $15,000.

One issue which was raised by CPC was that the Pollution Control Board could not, constitutionally, be .granted ..the;, power to impose a money penalty. We upheld such power in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540 (3d Dist. 1973), and our determination was affirmed by the Illinois Supreme Court in the case of City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146 (1974). The effect of the cases was to confirm that the power to impose discretionary monetary penalties was constitutionally granted in the Act.

CPC contends also that the finding of violation of 3 — 3.112 was against the manifest weight of the evidence. As we have previously noted, “the Board’s decision must be based on the record and material findings of fact must be supported by evidence.” (Central Illinois Light Co. v. Pollution Control Board, 17 Ill.App.3d 699, 701, 308 N.E.2d 153 (3d Dist. 1974).) The burden of proving a violation is imposed on the EPA. (Ill. Rev. Stat. 1973, ch. IIIY2, § 1031.) .The regulation 3 — 3.112 established a maximum allowable emission level of 0.60 Ibs/million BTU. Even by the calculations made by CPC, using tire 92.5% efficiency, the emission level of C boiler in 1971 was 0.626, slightly in excess of the limit,

. The 75% suggested efficiency-used by EPA was shown to be a general standard which that agency used when no accurate data for a particular stack is available. CPC contends that it showed the accuracy of the 92.5% level, but this figure was arrived at by plotting certain actual test data on the manufacturer’s curve, and the foundation and accuracy of that curve were not clearly shown at the hearing. Also, the 92.5% efficiency was measured in 1968. Yet, during 1971 CPC used higher-ash-content coal, and by its own admission repaired the dust collector for the first time in 13 years after finding extensive deterioration in late 1971. The stack test of February 1972, which is concededly the only accurate method of determining the actual efficiency, showed a 90% collection efficiency, but this was after repairs had been made and with, the use of lower-ash coal. While the EPA figures may have been unrealistic, the fact remains that even using the 92.5% figure, C boiler was still marginally in violation of the regulations.

It is true that CPC did not realize the higher ash content of its 1971 coal until late in that year. Technically, the lack of knowledge is no defense to a charge of pollution violations. (Meadowlark Farms, Inc. v. Pollution Control Board, 17 Ill.App.3d 851, 308 N.E.2d 829 (1974); Bath, Inc. v. Pollution Control Board, 10 Ill.App.3d 507, 294 N.E.2d 778 (1973).) Even with the supposed operating efficiency of 92.5% and with coal with an ash content of only 8.3%, C boiler was at best in fair compliance with the 3 — 3.112 emission standard. It could be argued that CPC should have been more careful in checking the operation of C boiler dust collector and the ash content of the coal it was using. CPC also points out that the Pekin plant as a whole was operating at an emission level of only 0.461 in compliance with a plant allowable of 0.480. While this is true, the wording of regulation 3 — 3.112 specifically provides that no one stack, such as C boiler, may exceed an emission level of 0.60. As a consequence, we believe that the evidence was sufficient to show a violation of 3 — 3.112 in the operation of C boiler during 1971.

On the next issue raised by CPC, however, we have a problem with different considerations. CPC argues that the fine of $15,000 was unjustified by the facts on the record. As we have indicated, the courts should carefully exercise the power to impose fines. (See Ford v. Environmental Protection Agency, 9 Ill.App.2d 711, and City of Waukegan v. Pollution Control Board (2d Dist. 1973).) “The imposition of a fine by an administrative agency must be supported by some reasonable factor appearing in the record.” (Bresler Ice Cream Co. v. Pollution Control Board, 21 Ill.App.3d 560, 315 N.E.2d 619.) The objective is to avoid arbitrary imposition of punishment or fines. (See Environmental Protection Agency v. W. G. Best Homes Corp., 6 PCB 281; Environmental Protection Agency v. Baker, 5 PCB 415; Marquette Cement Mfg. Co. v. Environmental Protection Agency, 1 PCB 145.) In these cases the Board imposed penalties of from $3,000 to $10,000. for violations which were deliberate and long-term. As we compare the facts of such cases, even considering EPA’s attempt to distinguish the cases, we must come to the conclusion that a $15,000 penalty imposed on CPC appears to be arbitrary and excessive.

It was shown in the record that three adjacent industrial plants to CPC were operating under Board-issued variances during the period of time involved, and all three emitted particulates in considerably larger quantities than did CPC. While this is not necessarily an excuse, it should weigh heavily in the ■ determination of whether to impose a monetary penalty on CPC. The policy of the Board is expressed as being one not to penalize those who are honestly trying. The purpose of the penalty provisions of the Environmental Protection Act is to protect enforcement of- the Act and regulations thereunder (City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 490, 313 N.E.2d 161 (1974)). Punitive considerations are secondary and as stated in Lonza, Inc. v. Pollution Control Board, 21 Ill.App.3d 468, 470, 315 N.E.2d 652:

“The Act’s purpose is to protect the environment of the State of Illinois. It was not enacted primarily to punish polluters but rather to protect, enhance and restore the environment by eliminating, lessening and preventing pollution.”

The violations in the cause before us were remedied even before the Board hearing in June 1972. The violations were apparently not deliberate, and CPC took quick steps to correct the problem.

While the finding of violation by CPC is supported by the record, the imposition of the $15,000 fine is not. The portion of the order imposing the fine of $15,000 is, therefore, vacated, but the remainder of the order is affirmed.

Vacated in part and affirmed in part.

SCOTT, P. J„ and STOUDER, J., concur.


author: Mr. JUSTICE, ALLOY

text:
    Morris Community High School District No. 101 et al., Plaintiffs-Appellants, v. Morris Development Company et al., Defendants-Appellees.
    (No. 74-28;
    Third District
    November 22, 1974.

      John W. Hynds, of Hynds & Hynds, of Morris, for appellants.
    John V. Hanson, of Morris, for appellees.
   Mr. JUSTICE, ALLOY

delivered the opinion of the court:

Morris Community High School District No. 101 and two other school districts, plaintiffs-appellants, appeal ,to this court from an order of the Circuit Court of - Grundy County dismissing the complaint of plaintiffs-appellants on the motion of defendants, Morris Development Company and Ford City Bank.

Hie complaint filed in this cause challenged the approval by the Morris city counsel of a final plat for a planned unit development (hereinafter designated “PUD”) which was to be built by a developer. Hie complaint also seeks the dedication of land or payment of money by the developer for school purposes in accotdance with a new city of Morris ordinance. ...

From the record made in this cause it appears that in the early part of 1971, the developer applied to the city council for approval of preliminary plans for its Parklake Village PUD project. The city council approved the preliminary plans in November 1971, and approval of final plans was made the following May in 1972. Thereafter, in, November of 1972, the city council of Morris adopted what is referred to as the “School-Site Donation Ordinance.” The relevant part of this ordinance is as follows: . '

“As a condition of approval of 8 8 8 final plat of a planned unit development, each 8 8 8 developer of a planned unit development will be required to dedicate land for school sites, to serve the immediate and future needs of the residents of the development, or make a cash contribution in lieu of actual land dedication, or a combination of both 8 8 8 in accordance with the following criteria and formula.”

The final plat for Parklake was approved by the city council in April 1973, but compliance with the new school dedication ordinance, ostensibly, was not required by the council. Plaintiffs school districts, within whose boundaries the Parklake project lies, attempted to persuade the council by petition to revoke the previous approval and apply the ordinance, but the council refused to act in response to the petition. ■

The complaint in this cause sought a declaration requiring the developer to comply with the ordinance or, in the alternative, that the final plat approval be declared null and void. It was also alleged, as a basis for such request that the approval be declared null and void, that the city council and the developer had not followed the application and approval procedures set forth in the Morris PUD ordinance.

In allowing -the motion to dismiss • the complaint as insufficient, the trial court found that the application of .the school site ordinance to the developer was within the discretion of the city council, as developer had filed its initial application well before the passage of the ordinance. The court also declared that in absence of fraud, corruption, or abuse of discretion, the court was without power to review the decision of the council.

The major issues on appeal before us there, therefore, are (1) the question of the standing of the plaintiffs school districts to challenge the validity of the final plat approval and (2) whether or not the trial court properly dismissed the complaint as insufficient. There is also a supplementary contention that the order of the trial court dismissing the city of Morris as a party to the action (which order was entered over objection of both plaintiffs and defendants), was improper.

The first contention is related to whether or not the plaintiffs have standing to maintain the action. The developer-defendant vigorously contends that the school districts have no standing to engage in any zoning litigation on the basis of the precedent of Dato v. Village of Vernon Hills, 62 Ill.App.2d 274, 210 N.E.2d 626 (1965). We do not believe that the Dato case is a precedent requiring dismissal of the action in the instant case. In Dato, a landowner was challeging the rezoning of his property. The school district there sought to intervene as a matter of right to support the rezoning, and alleged therein that if the plaintiff was successful there would be an unusual influx of new students with resulting burdens to the school district. The court there noted a recent statute permitting school districts to appear in zoning hearings, but held that school districts had no right to intervene in resulting litigation without further permission by action of the State legislature.

A case treating the same issue such as Duggan v. County of Cook, 17 Ill.App.3d 253, 307 N.E.2d 782 (1974), found the interest of the districts to be insufficient to justify contesting in the courts alleged arbitrary and unreasonable zoning classifications. The net results of Dato and the other case cited is that school district interests in zoning litigation are relevant, but not controlling, and that school districts may be permitted to intervene, but are not entitled to intervention as a matter of right in absence of specific statutory authorization.

The cause before us, however, is not limited in nature to a typical zoning dispute. Plaintiffs maintain that the city council, in approving developers- final plat, disregarded an ordinance which must be followed by the council if the plat approval is to be valid. No contention is made that a zoning classification is improper.

Developer also contends that any interest the school districts might have under the school-site-donation ordinance would disappear if the relief sought (finding that the plat approval is void) is granted. It is asserted that without plat approval, there can be no dedication of land or payment of money to the school districts. While true, so far as it goes, this is not a complete answer to the problem before us. If plat approval is sustained, the school districts will be required to provide facilities for the new residents through other means than on a site or with funds provided by developer. If the plat approval is declared void, the school districts may be relieved of this burden, simply because developer will then be required to reapply (when the school site dedication ordinance could clearly be applicable). If developer abandons the project, there would be no need for new educational expenditures as a result of facilities generated by developer. It is thus apparent that the question of vitiating the plat approval will directly and vitally affect the situation of the plaintiff districts.

The school districts certainly have an enforceable interest in the school-site-donation statute. That ordinance does not give the city council any discretion, but requires all developers and subdividers who build within the city to dedicate land or pay money to the school districts for educational use. So far as the language of the ordinance is concerned, there is no exception to such requirement. The ordinance anticipates future development which would place on the districts new and substantial burdens, and it presumes that it would be unfair to cast a disproportionate share of the tax burden on the existing residents for the educational facilities required by new facilities created by developers. Thus, the school-site ordinance creates certain rights in the school districts. Any land dedicated by the developer is to be conveyed directly to the school district involved, and the district can receive any money paid upon written request to the city. If the district does not immediately use any dedicated land for school purposes, however, the city may use the land as a park (but the school district has a right to terminate that use on written notice).

We must conclude that the ordinance thus creates certain obligations for developers and subdividers and corresponding rights in school districts as beneficiaries of the legislative action. Developer notes that, had it merely refused to make a required dedication or payment under the ordinance, whatever interests plaintiffs might have would be more “vested” in character. The situation before us, however, is not totally different. The circumstance that the city council has refused to apply an ordinance, which on its face is applicable, does not, by reason of such refusal, destroy the interests of the school districts. Unless there is affirmative exemption by the terms of the ordinance itself or by amendment, the ordinance is binding upon the parties to this action and the school districts are not without remedy. In the pleadings filed, plaintiffs should be construed to have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens a presentation of issues upon which the court so largely depends for illumination * * V (Baker v. Carr, 369 U.S. 186, 204, 7 L.Ed.2d 663, 678, 82 S.Ct. 691.) It is our conclusion, therefore, that plaintiffs have standing in the present action.

We also recognize that the city council had and still has discretion by ordinance or amendment to exempt developers who may have filed initial applications prior to the time of the effective date of the school-donation ordinance. No such exemption was included within the scope of the ordinance itself, and the only action which points to a disposition not to apply the school ordinance arises from the refusal of the city council to require enforcement of the ordinance on the application of the school districts. There was, however, no definitive and conclusive action on part of the city which indicated that the terms of the ordinance were not to be applied to organizations which had initiated developments prior to the effective date of the ordinance.

While the courts have no power to inquire into the wisdom of an ordinance and are not concerned with the mere policy of legislation, we have no guidelines here as to why the city council refused to apply the ordinance. The ordinance is binding unless modified or amended. As stated in 8 McQuillin on Municipal Corporations, pp. 472-473 ( 3rd ed.): “A municipal legislative body must substantially follow the regulations it has itself established relative to zoning. It cannot deviate from existing regulations or make exceptions therefrom on behalf of individuals.” Existing ordinances may not be modified, suspended or amended by a resolution or inaction of the city council. (Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 255, 262, 149 N.E.2d 344.) Normally, an ordinance which does not vest any discretion in the village officer in granting an exemption from the application of that ordinance requires that the ordinance be substantially complied with. See Treadway v. City of Rockford, 24 Ill.2d 488, 498, 182 N.E.2d 219, and People ex rel. Simpkins v. Village of Kincaid, 26 Ill.App.2d 68, 73, 167 N.E.2d 690.

On the question of sufficiency of the complaint on other issues, plaintiffs allege not only that the final plat approval cannot stand unless developers are required to comply with the school site dedication, but also, the procedures undertaken do not comply with the city of Morris’ PUD ordinance. Procedures are therein set out for obtaining approval from the City to build a planned unit development. Various zoning districts in the city are available for PUDs and the approval of the PUD application consists, according to tire Act, of an ordinance approving tire PUD as a special use in a particular district. (It is alleged that no ordinance was adopted.) The developers are required to submit detailed information to the city so that the public interest and proper land use may be upheld with respect to PUD projects.

Some apprehension also has been expressed by plaintiffs that if the school districts do not maintain an action in the courts to require that the developer or organizations in the same position comply with the PUD ordinance or other procedures, then no other party would protect the public interest when the municipality declines to act. They, therefore, contend that the school districts should be permitted to proceed on such issues. We do not agree that the school districts are required to become the paladins of the public in protecting against municipal inadequacy or failure of municipal authorities to act in the public interest. We have indicated that this objective can be readily accomplished in other ways such as accomplished in City of Lockport v. County Board of School Trustees, 2 Ill.App.3d 970, 276 N.E.2d 13. In that case we indicated that taxpayers, in an appropriate case, may intervene to carry on an action if it is clearly established that the municipality is not proceeding with an action in which the interests of the public may be affected seriously, and where the municipalities would normally represent the public.

Another issue which has been raised is the action of the trial court in dismissing the city of Morris as a party to the action. The trial court dismissed the city on the ground that it was not a necessary party and that no allegations were directed towards or relief sought from the city. Plaintiffs here seek annulment of a resolution of the city council approving developer’s final plat. The allegations of the complaint are largely directed toward council action at various times and concern the interpretation of various city ordinances. The cases seem to fall under the rule of St. Clair Housing Authority v. Southwestern Bell Telephone Co., 387 Ill. 180, 56 N.E.2d 357, 359. In that case the housing authority and public utility were engaged involving underlying actions by the city of East St. Louis, and the Illinois Supreme Court held that the city was a necessary party, even though it appears that the city had never been a party nor did either of the litigants seek to make it a party. In the case before us, the city of Moms was named in the complaint and dismissed only over the objection of both parties to this appeal.

It appears that the city has a “substantial legal and beneficial interest in the matter being litigated” and “will be affected by the decree.” (St. Clair Housing Authority v. Southwestern Bell Telephone Co., 387 Ill. 180, 185, 56 N.E.2d 357, 359). Even if no affirmative relief is sought as against the city, it is still vitally concerned with matters involved in the litigation and the declaratory judgment statute under which plaintiffs sue (Ill. Rev. Stat. 1973, ch. 110, par. 57.1) does not require any affirmative relief to be sought in order to obtain a declaration of the rights of the parties. We, therefore, believe that the trial court was in error in dismissing the City of Morris as a party at this stage of the litigation.

It is clear, therefore, that the complaint of plaintiff should not have been dismissed on the motion prior to hearing on the merits. So long as the issue with respect to the school-site-donation ordinance is not resolved, the standing of plaintiffs is clearly established. In the event, however, that such ordinance is amended to exempt persons or organizations in the situation of defendant developers by exempting applicants who have initiated applications for improvements of the character involved in this case prior to the effective date of the ordinance, then the status of plaintiffs will have changed, and plaintiffs would no longer have standing to continue with this action solely on the basis of asserted deficiencies in procedural matters relating to compliance with the PUD ordinance or zoning regulations. On this issue, the philosophy expressed in Dato v. Village of Vernon Hills, 62 Ill.App.2d 274, 210 N.E.2d 626, would apply.

As indicated in the Dato case, school districts have no standing in courts to conduct litigation subsequent to administrative or legislative action in zoning or similar proceedings. In the Dato case the court observed that a school district derives its existence and powers wholly from the General Assembly. It has no inherent powers and the courts have determined that school districts should not be permitted to engage in any litigation resulting from disputes in the nature of zoning in which the school districts may have an interest resulting only from the circumstances that a development is planned in the school district. The rationale, presumably, of such rule is that if school districts were permitted to intervene, as a matter of right, there could hardly be any zoning proceeding in which the school districts could not litigate in the courts on the basis of a contention that the school districts might be affected in one way or another. Once the school districts have brought their views to the attention of the particular legislative or administrative body concerning the zoning or similar procedures, they have fulfilled the requirements, as outlined in the Dato case, and any resulting intervention or the conduct of resulting litigation in the courts is not warranted. Therefore, we conclude that the continuing right of the school districts to maintain the instant action is wholly dependent upon the school-site-donation ordinance and whether or not it has been or is amended to exempt the developer. In the present posture of the case, the action of the trial court in dismissing the complaint was improper.

The order of the Circuit Court of Grundy County dismissing the complaint in this cause as to defendants Morris Development Company and Ford City Bank, individually and as trustee, is reversed and the order of the Circuit Court dismissing the city of Morris as a party in this action is likewise reversed, and this cause is remanded to the Circuit Court of Grundy County for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and STOUDER, J., concur.