author: JUSTICE DUNN

text:
    GARY-WHEATON BANK, as Trustee, et al., Plaintiffs-Appellees, v. THE CITY OF WEST CHICAGO et al., Defendants (Frank Hacker et al., Defendants and Intervenors-Appellants).
    Second District
    No. 2—89—0506
    Opinion filed February 23, 1990.

      Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton (Dale W. Bruckner, of counsel), for appellants.
    Grotto & Van Der Molen, of Wheaton (John J. Grotto, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Intervenor defendants, Frank Hacker et al. (intervenors), appeal from an order of the circuit court of Du Page County granting a declaratory judgment to plaintiffs, Seifert and Sons, Inc. (Seifert), and Gary-Wheaton Bank as trustee. The court declared that defendant, City of West Chicago (City), which is not a party to this appeal, had validly rezoned certain property that plaintiffs owned from agricultural to R-2, a residential classification. Intervenors raise the following contentions on appeal: (1) that the service requirements for protest petitions under section 11 — 13—14 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—14) are directory, not mandatory; (2) that they substantially complied with the requirements of section 11 — 13—14; (3) that a City ordinance concerning protest petitions was valid and had the effect of raising the required City council vote for Seifert’s zoning application to two-thirds; (4) that Seifert waived the service requirements of section 11 — 13—14; and (5) that the trial court should have permitted intervenors to correct any deficiencies in their protest petition and allow the matter to be considered again by the City council. We affirm.

Seifert is the beneficial owner of a 30-acre parcel of undeveloped real estate in Du Page County. On May 6, 1988, Seifert filed a petition to have the property annexed to the City and to have the City council change its zoning classification from agricultural to R-2, a residential classification. On August 15, 1988, the City council approved an annexation agreement that was subsequently executed by the City and Seifert. Seifert’s rezoning request came up for a vote before the City council on the evening of October 17.

On the afternoon of October 17, intervenors and others who owned land near the Seifert property filed a petition objecting to the rezoning request. Section 11 — 13—14 of the Code discusses such petitions and states in relevant part as follows:

“In case of a written protest against any proposed amendment of the regulations or districts, signed and acknowledged by the owners of 20% of the frontage proposed to be altered, or by the owners of 20% of the frontage immediately adjoining or across an alley therefrom, or by the owners of 20% of the frontage directly opposite the frontage proposed to be altered, is filed with the clerk of the municipality, the amendment shall not be passed except by a favorable vote of two-thirds of the aldermen or trustees of the municipality then holding office. In such cases, a copy of the written protest shall be served by the protestor or protestors on the applicant for the proposed amendment and a copy upon the applicant’s attorney, if any, by certified mail at the address of such applicant and attorney shown in the application for the proposed amendment.” Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—14.

It is undisputed that the petitioners never served a copy of their protest petition upon Seifert or his attorney. The West Chicago City Code, however, contains a provision similar to section 11 — 13—14, except that it does not have a service requirement. This provision states in relevant part as follows:

“In case a written protest against any proposed amendment signed and acknowledged by owners of twenty (20) percent of the frontage proposed to be altered, or by the owners of twenty (20) percent of the frontage directly opposite of the frontage to be altered, is filed with the City Clerk, the amendment cannot be passed except on the favorable vote of two-thirds (%) of all members of the City Council.” West Chicago, Ill., City Code, §4.14 — 4.

The mayor of the City, A. Eugene Rennels, presided over the October 17, 1988, council meeting. Mayor Rennels was aware that the protesting petitioners had not complied with the service requirements of section 11 — 13—14 of the Code. Rennels mentioned at the meeting that this provision conflicts with the aforementioned provision of the West Chicago City Code. He ruled, however, that since the petition complied with the City ordinance, a two-thirds vote would be necessary in the council for approval of the zoning amendment sought by Seifert. The council voted eight to nothing to uphold the mayor’s ruling. The council then proceeded to vote on the amendment. Five members voted to approve it, and three members voted to reject it. Mayor Rennels then stated that the amendment failed because it did not receive the required two-thirds vote.

Plaintiffs filed a two-count complaint in the circuit court of Du Page County on November 7, 1988, against the City. They sought specific performance of the annexation agreement in count I and sought a declaratory judgment that the subject property had been validly rezoned in count II. The trial court subsequently granted intervenors, each of whom signed the protest petition, leave to intervene as defendants. On March 13, 1989, the trial court granted partial summary judgment to plaintiffs on count II, ruling that the service requirements of section 11 — 13—14 of the Code were mandatory and that the City Code provision was unconstitutional. The trial judge ruled that a genuine issue of material fact existed as to whether Seifert had waived compliance with the service requirements of section 11 — 13—14 and set the case for trial on this issue alone.

The trial commenced on April 13, 1989. Most of the witnesses who were present at the October 17, 1988, City council meeting agreed that when the Seifert zoning request came up for consideration, Mayor Rennels stated there was a conflict between the State statute and City ordinance and the City would probably be sued regardless of which way he ruled. Three witnesses testified that Mayor Rennels then asked Seifert’s attorney, John Grotto, whether Seifert had been served with a copy of the protest petition. These witnesses were Seifert, Mayor Rennels, and Bruce Kelsey, the West Chicago City attorney. Rennels and Seifert testified that Grotto responded by saying, “No.” According to Kelsey, Grotto also stated that he agreed with the mayor that the protest petition was not in conformity with the State statute. Six other witnesses stated the mayor directed no questions toward Seifert or his attorney during the meeting, and neither Seifert nor his attorney'made any comments during the meeting.

The trial judge ruled that Seifert did not waive his right to be served with a copy of the protest petition. The court entered a declaratory judgment order stating that Seifert’s property had been validly rezoned to the R-2 classification and enjoining the City from interfering with Seifert’s use of the property within the bounds of that classification. The instant appeal ensued.

Intervenors contend that the service requirement of section 11 — 13—14 of the Code is directory rather than mandatory. As we have seen, this provision states that “a copy of the written protest shall be served by the protestor or protestors” upon the applicant and the applicant’s attorney, if any. (Ill. Rev. Stat. 1987, ch. 24, par. 11— 13 — 14.) Unless the context in which it appears indicates otherwise, use of the word “shall” in a statute generally indicates a mandatory obligation. (Newkirk v. Bigard (1985), 109 Ill. 2d 28, 33.) The word “shall” may be construed in a directory sense, however, if it is necessary to do so, in order to carry out the legislature’s intent. In re Application of Rosewell (1983), 97 Ill. 2d 434, 440.

Originally, section 11—13—14 did not contain the language imposing the service requirement upon protesting petitioners. (See Ill. Rev. Stat. 1979, ch. 24, par. 11—13—14.) The last sentence of section 11 — 13—14 was added in an amendment which became effective in January 1980. (See Pub. Act 81 — 705, §1, eff. Jan. 1, 1980.) All statutory amendments are presumed to have some purpose. (People v. Richardson (1984), 104 Ill. 2d 8, 16.) Construing the service requirements of section 11 — 13—14 as directory would render the 1980 amendment to that provision meaningless. We therefore determine that those requirements are mandatory and reject intervenors’ contention to the contrary. It appears clear that the purpose of this amendment was to enable those applying for zoning changes to have notice of protest petitions so they could investigate the validity and sufficiency of the petitions. This purpose would not be served if the service requirements were construed as directory and could be ignored by protesting petitioners.

In Treadway v. City of Rockford (1962), 24 Ill. 2d 488, our supreme court stated that “when a statute prescribes certain steps as conditions to the enactment of an ordinance these steps must be substantially complied with.” (Treadway, 24 Ill. 2d at 496.) Relying on the above language, intervenors argue that they substantially complied with section 11—13—14 by submitting a protest petition with far more than the requisite number of signatures.

The service requirements of section 11 — 13—14 are not conditions to the enactment of an ordinance, but instead are conditions for imposition of a two-thirds vote requirement for approval of zoning amendments. The above language from Treadway is therefore inapplicable. Intervenors also incorrectly cite Mezel v. Mobley (1960), 21 Ill. 2d 20, and Village of Park Forest v. County of Will (1976), 38 Ill. App. 3d 693, as authority for the proposition that substantial compliance with the dictates of section 11 — 13—14 is sufficient. In both cases, the courts held there had been actual compliance with the requirements of section 11 — 13—14. See Mezel, 21 Ill. 2d at 23; Village of Park Forest, 38 Ill. App. 3d at 696.

Furthermore, intervenors have not substantially complied with section 11 — 13—14. This is not a case in which a party was served by some means other than the statutorily prescribed means, for instance, by regular mail instead of certified mail as required by section 11 — 13—14. The protesting petitioners did not serve Seifert or his attorney with a copy of the petition by any means. Intervenors’ substantial compliance argument is entirely without merit.

Intervenors also contend that even if their petition was insufficient under section 11 — 13—14, it was sufficient under section 4.14 — 4 of the West Chicago City code and it was therefore proper for the mayor and council to impose a two-thirds vote requirement for passage of the zoning amendment. Seifert argues that the City code provision conflicts with section 11 — 13—14 with regard to the service requirement, and the City code provision is therefore invalid.

A review of certain provisions of the Code not cited by the parties clearly establishes that Seifert is correct. Section 11 — 13—14 of the Code states in part as follows:

“The regulations imposed and the districts created under the authority of this Division 13 may be amended from time to time by ordinance after the ordinance establishing them has gone into effect ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—14.)

Division 13, as referred to in this statute, relates to zoning. It is clear from section 11 — 13—14 that zoning amendments may only be made through an ordinance.

Another provision of the Code deals with the requisites for adoption of an ordinance. That provision states in part as follows:

“The passage of all ordinances for whatever purpose *** shall require the concurrence of a majority of all members then holding office on the city council, including the mayor, unless otherwise expressly provided by this Code or any other act governing the passage of any ordinance, resolution, or motion; provided that, where the council consists of an odd number of aldermen, the vote of the majority of the aldermen shall be sufficient to pass an ordinance.” (Ill. Rev. Stat. 1987, ch. 24, par. 3-11-17.)

Including the mayor, the City council had nine members, making five votes necessary for passage of an ordinance unless otherwise expressly provided by this Code or any other act relating to the passage of any ordinance. In this context, the word “act” is synonymous with State statute. Whenever the Code discusses legislative enactments of municipalities in section 3 — 11—17 and elsewhere, it refers to ordinances, resolutions, or motions, not acts.

Since zoning amendments are ordinances, a majority vote is sufficient for passage unless another part of the Code or another State statute indicates otherwise. Section 11 — 13—14 of the Code does indicate otherwise but only if the requisites of that provision are met, including service of the petition upon the applicant and his or her attorney, if any. Since section 3 — 11—17 of the Code only allows for departure from the majority vote requirement if a State statute says otherwise, a municipal enactment cannot form the basis for raising the necessary vote for passage of an ordinance to two-thirds of the City council as intervenors contend. The trial judge correctly concluded that section 4.14 — 4 of the West Chicago City Code is invalid.

Additionally, if there is a conflict between a State statute and a municipal ordinance, the ordinance must give way. (Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 1015.) A municipal ordinance adopted under a general grant of power which infringes upon the spirit of State law or is repugnant to the State’s general policy is invalid. (Huszaugh v. City of Oakbrook Terrace (1968), 41 Ill. 2d 387, 390; Village of Mundelein, 117 Ill. App. 3d at 1015.) There is unquestionably a conflict between a State statute and a City ordinance in this case, since the ordinance eliminates one of the requirements for a valid protest petition set forth in section 11 — 13—14, service of a copy of the petition upon the applicant for a zoning amendment and his or her attorney, if any. Section 4.14 — 4 of the West Chicago City Code is invalid on this basis as well.

Intervenors also contend that the evidence at trial establishes that Seifert waived his right to be served with a copy of the protest petition by failing to object at the City council meeting. The waiver doctrine has been applied in contexts outside a courtroom setting. (See, e.g., Sexton v. Smith (1986), 112 Ill. 2d 187.) Waiver has been defined as an “intentional relinquishment of a known right.” (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499.) Waiver may be express or implied, and it arises from the words or conduct of the party waiving the right. (Brochu, 105 Ill. 2d at 499.) A trial court’s finding on the issue of waiver will not be disturbed unless it is against the manifest weight of the evidence. Sexton, 112 Ill. 2d at 194.

Seifert contends the waiver doctrine has no application to the City council proceeding involved here. We need not address the applicability of the waiver doctrine because in either event, we conclude the trial court’s determination that Seifert did not waive his right to service is not against the manifest weight of the evidence. There was evidence that Mayor Rennels was well aware of the conflict between section 11 — 13—14 and the City code provision at the time of the council meeting, and there was no need for Seifert or his attorney to raise this issue before the council. There was also testimony that the mayor asked if Seifert had been served with a copy of the petition and Seifert’s attorney said, “No.” Mayor Rennels obviously did not regard the conduct of Seifert or his attorney during the meeting as an “intentional relinquishment” of Seifert’s right to service, since he stated the City would probably be sued regardless of which way he ruled. Moreover, Bruce Kelsey, the City attorney, testified that Seifert’s attorney told him right after the vote that the mayor’s ruling that the protest petition was valid was improper. Additionally, the fact that Seifert and his attorney found out about the protest petition only a few minutes before the meeting must be taken into account. The trial court’s ruling on the waiver issue was not contrary to the manifest weight of the evidence.

Finally, intervenors argue that, even if their protest petition was insufficient, the trial court should not have declared that the property had been validly rezoned, but instead should have permitted the City council to reconsider the matter, thus giving intervenors a chance to remedy the deficiencies in the petition. Under section 3— 11 — 17 of the Code, however, the zoning amendment proposed by Seifert needed five votes to pass, and it received five votes. We cannot, therefore, quarrel with the trial court’s conclusion that Seifert’s property was validly rezoned. While intervenors argue that some of the council members may have voted differently on the amendment had they realized five votes rather than six were necessary for passage, they presented no evidence to the trial court in support of this theory.

Because of our disposition of this matter, it is unnecessary to resolve Seifert’s contention that the protest petition was invalid because it was not properly notarized. The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and GEIGER, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID J. EWEN, Defendant-Appellant.
    Second District
    No. 2—88—0894
    Opinion filed February 23, 1990.

      Phyllis J. Perko, of Harlovic & Perko, of West Dundee, and James M. Boback, of Boback & Bianchi, Ltd., of Crystal Lake, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, David J. Ewen, was indicted in the circuit court of McHenry County, for the offense of child pornography, in violation of section 11 — 20.1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(a)(2)). Defendant was convicted of the offense following a bench trial. He was sentenced to a term of probation for 12 months, a fine of $1,000, and 50 hours of public service work.

On appeal, defendant presents three issues: (1) is the child pornography provision unconstitutional; (2) should defendant’s motions to suppress evidence and statements have been granted; and (3) was the proof of mental element sufficient beyond a reasonable doubt?

The statute under which defendant was convicted provides in part:

“(a) A person commits the offense of child pornography who:
(2) with the knowledge of the nature or content thereof, *** possesses any *** photograph or other similar visual reproduction of any child whom the person knows or reasonably should know to be under the age of 18 engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection.” (Ill. Rev. Stat. 1987, ch. 38, par. 11— 20.1(a)(2).)

Subparagraph (vii) provides as follows:

“(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person ***.” m. Rev. Stat. 1987, ch. 38, par. 11— 20.1(a)(l)(vii).

The indictment charged that

“the said defendant, with knowledge of the nature and content thereof, did possess photographs of children whom he knew or reasonably should have known to be under the age of 18, who were depicted and portrayed in poses and postures involving lewd exhibitions of genitals of said children in violation of Illinois Revised Statutes 1987, chapter 38, paragraph 11— 20.1(a)(2).”

In 1985, the statute we have set forth above made possession of child pornography an offense under the Criminal Code.

The defendant, a 43-year-old unmarried male, resides with his elderly mother in the family home where he has resided all of his life.

About 10 years before his arrest in this case, the defendant placed an ad in a Los Angeles, California, magazine giving his name and address, and the following:

“Wanted — Photos/slides of nude little girls, 6 to 15 — bold, revealing poses. Also nude pre-teen sisters, brothers/sisters. Strong action or training poses. Samples please.”

Thereafter, the Illinois Department of State Police was informed by the Los Angeles, California, police department that the defendant had placed the advertisement described above. Sergeant James Turner of the Illinois State Police and a member of the Division of Criminal Investigation, Child Exploitation Unit, testified that he wrote an undercover letter to defendant on September 9, 1986, which asked for a meeting with the defendant. The letter, signed with a fictitious name, implied that the writer and Mr. Ewen shared a common interest in collecting and taking photographs which required some discretion. The defendant did not respond to this letter.

On November 24, 1986, Sergeant Turner again wrote a letter to defendant using the fictitious name. This letter included an order form for photographs of boys and girls in sex action. The letter suggested that the writer and Mr. Ewen meet. Mr. Ewen took this letter to the Woodstock police department, asking that they take appropriate action. The Woodstock police department notified Sergeant Turner of their receipt of the letter from Mr. Ewen.

Sergeant Turner and Detective Schultz met at the Woodstock police department, and they decided to go to Mr. Ewen’s home to discuss the complaint he had about the letter that was sent to him in November.

Sergeant Turner, Detective Schultz, and special agent Melinda Pharis, also of the Illinois State Police, went to defendant’s home. Defendant’s mother met them at the door and ushered them into the foyer, where they met defendant, who came up and asked them to come into the living room.

Sergeant Turner told Mr. Ewen that his name was on a police intelligence file of known child pornography subscribers. Turner showed Ewen a copy of the ad he had placed many years before in the Los Angeles publication. Turner told Ewen they wished to search the house because they believed that he was in possession of child pornography. Turner asked defendant for his signature on a permission-to-search waiver form. Ewen signed the form.

Defendant, Sergeant Turner, Detective Schultz and special agent Pharis went to the doorway of defendant’s bedroom. Ewen went to a cabinet inside the bedroom, took out two parcels, handed them to Sergeant Turner, and said something to the effect: “This is what you are looking for.”

The two parcels were manila envelopes. One was postmarked March 27, 1976, from Ontario, Canada, and contained two pamphlets titled Tuesday’s Child and showing nude children. The other manila envelope was postmarked October 11, 1978, and was from the Netherlands. It contained advertising matter.

The women police agents searched the bedroom and found two more packages of material they believed to be child pornography. During this search Mr. Ewen conversed with Sergeant Turner and that culminated in his giving a written statement which was introduced as people’s exhibit No. 2.

The police took the materials given to them by Mr. Ewen, the materials found by the policewomen, and Mr. Ewen’s written statement and departed. Two weeks later defendant was arrested and charged with child pornography.

The defendant filed three pretrial motions. The first was a “motion for discharge” which alleged various constitutional defects in the statute defendant allegedly violated. The trial court denied this motion. The defense filed a motion to suppress evidence- and a motion to suppress confessions. A hearing on these motions was held, and, thereafter, the trial court denied the motions.

A bench trial was conducted by the trial court which found the defendant guilty of child pornography and sentenced defendant as heretofore outlined. Post-trial motions were filed and denied, and this appeal followed.

Defendant’s initial contention is that the statutory prohibition against possession of child pornography found in section 11 — 20.1 of the Criminal Code of 1961 (the statute) (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1) is unconstitutional as a violation of his right to privacy. He, however, acknowledges that stare decisis binds this court to reject his argument on this issue by reason of our supreme court’s decision in People v. Geever (1988), 122 Ill. 2d 313. Geever is dispositive of this issue, and we are bound to follow the decision therein. We must, therefore, reject defendant’s argument based on the dissent filed in that case.

The defendant also challenges the constitutionality of the statute on the ground that the statute is overly broad in violation of the United States and Illinois Constitutions (U.S. Const., amends. I, XIV; Ill. Const. 1970, art. I, §§4, 6).

This overbreadth, the defendant asserts, exists because of the statute’s failure to exclude nonobscene portrayals from its scope. The defendant cites our supreme court’s opinion in People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 209, where the court stated:

“A governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

The defendant argues that the statute subjects to prosecution any person who “films, videotapes, photographs or otherwise depicts or portrays by means of any similar visual medium or reproduction of any child,” and then the statute enumerates various sexual acts. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(a)(1).) The defendant points out that the statute does not require that those acts be obscene in accordance with the established tripartite determination of obscenity. Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20(b).

In New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, the United States Supreme Court was called upon to determine the constitutionality of a New York criminal statute which prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. In that case the United States Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in the New York statute, which followed the guidelines of Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, constituted the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that “non obscene adolescent sex” could not be singled out for special treatment that the United States Court of Appeals held that statute invalid. On appeal, the United States Supreme Court reversed the Court of Appeals. It held that the nature of the harm to be combated requires that the State offense be limited to works that visually depict sexual conduct by children below a specified age. It held that the category of "sexual conduct” proscribed must also be suitably limited and described. It held that the test for child pornography is separate from the standard enunciated in Miller. Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358.

In Ferber the defendant also contended that the statute was overly broad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. The United States Supreme Court rejected this view. It held that the State’s special and compelling interest in protecting children who are especially vulnerable affords the State the leeway necessary to prohibit the activity specified by the statute. The Supreme Court pointed out that it has never held a statute invalid on its face merely because it is possible to conceive of a single impermissible application. 458 U.S. at 772, 73 L. Ed. 2d at 1132, 102 S. Ct. at 3362.

Under these principles the defendant’s challenge to the scope of this statute fails. The statute is not overly broad because it does not require that the child pornography prohibited be obscene. The defendant also argues that the statute is overly broad because it does not “limit its purview to living or even actual children.” The defendant argues that where a depiction is merely a fictitious likeness of a child, there is no child to protect. The defendant further argues that the State has no legitimate interest in protecting actual children who are artistically depicted in a nonobscene sexual manner.

As to the former argument, the trial judge gave a limiting instruction which set forth that “any child” must be construed to mean any real child. Therefore, the overbreadth challenge fails on this issue. As to the latter argument, we are not convinced that the defendant has met his burden to show that the statute is unconstitutional with evidence that children will not be harmed by dissemination of themselves in sexual contexts described in section 11 — 20.1 merely because the material is deemed “artistic.”

The defendant next contends that the statute in question violates the due-process clause of the Federal and State Constitutions. (U.S. Const., amends. Y, XIY; Ill. Const. 1970, art. I, §2.) He points out that a statute violates due process if it is not reasonably designed to remedy an evil legitimately identified by the legislature. (People v. Wagner (1982), 89 Ill. 2d 308.) He asserts that the statute at issue here applies to nonobscene sexual materials involving children “under the age of 18.” (Ill. Rev. Stat. 1987, ch. 38, pars. ll-20.1(a)(l) through (a)(5).) He points out that the purported purpose of the statute is “society’s ‘most compelling’ interest to protect its children from the lasting harm of emotional and sexual degradation,” but that applying the statute to all individuals under the age of 18 is not reasonably related to a legitimate State purpose because some persons under 18 are not necessarily children in need of protection.

Defendant in this context points out a person may marry at 16, is treated as an adult at 17 for purposes of criminal prosecution, may be convicted of a crime as young as 13, and may be emancipated before the age of 18. He then argues that because of the above there is no legitimate governmental purpose in trying to protect these people.

We reject defendant’s argument. It is of no consequence that the State treats children at different ages differently for certain legal purposes. The disparity of ages does not demonstrate that the legislative action is irrational. The State has a special interest in protecting the well-being of its youth. (Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 607, 73 L. Ed. 2d 248, 257, 102 S. Ct. 2613, 2620.) This special and compelling interest, and the particular vulnerability of children, afford the State leeway to regulate pornographic material, the promotion of which is harmful to children.

The defendant next contends that the statutory provision violates the equal protection clauses of the Federal and State Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2 (in its creation of exemptions for certain groups of persons); Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(b)(3).) He asserts that the classification scheme is not reasonable and must fail.

The defendant points out that the statutory section to which he refers exempts from its reach “professional education programs conducted by licensed physicians, psychologists or social workers.” This exemption, he argues, shows that child pornography may have at least some educational or scientific value, and it is unreasonable, he asserts, to limit the exercise of the scientific or educational function of child pornography to members of the three listed professions. In so doing, he asserts, it discriminates against individuals outside those professions who may wish to undertake a serious study of child pornography.

The determination of whether a given legislative classification denies persons the equal protection of the law is an extremely sensitive area of judicial review. But, where a person is not a member of the suspect class or has not been deprived of a fundamental right, the court’s role is simply to determine if the particular legislative classification is rationally designed to further a legitimate purpose. People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 96.

As the court pointed out in People v. Perine (1980), 82 Ill. App. 3d 610, 615, “[t]he equal protection clause does not mean that a State may not draw lines that treat one class of individuals or entities different from one another; the test is whether the difference in treatment is an invidious discrimination.”

There is a presumption in favor of the validity of the classification made by the legislative body, and one who assails it has the burden of proving the classification to be arbitrary. Jacobs v. City of Chicago (1973), 53 III. 2d 421.

We are of the opinion that the defendant has failed to establish that the legislative classification is irrational, or that any discrimination is invidious. The scheme which permits certain licensed health care professionals to use the material only for purposes sanctioned is certainly rational and not contrary to any public policy. We do not believe that the defendant has proved any invidious discrimination since he cannot show he is licensed in one of the fields exempted.

The defendant next contends that the motions to suppress should have been granted. First, he argues that the police entry into defendant’s home through use of a ruse rendered his consent to search involuntary. Here the police told him that they were investigating his complaint arising out of the letter to him which had, in fact, been initiated by the police.

We reject this argument because it is clear the officers were admitted to the house by the defendant’s mother and not by the defendant. They merely told the mother that they wished to talk to “Dave.” We reject defendant’s argument that the circumstances surrounding the consents in this case were implicitly coercive.

The defendant argues that a warrant should have been obtained before the contents of the envelopes were examined. Two groups of materials tendered to the police by defendant were contained in envelopes. The defendant, citing Walter v. United States (1980), 447 U.S. 649, 65 L. Ed. 2d 410, 100 S. Ct. 2395, argues that a warrant should have been obtained before the police examined the contents of the envelopes.

We do not read Walter as broadly as the defendant. The Walter case involved obscene materials which were misdelivered to the wrong party, who turned them over to the police. Walter is distinguishable in that that case involved a private search, while the case at hand involves a consensual search. As pointed out in the Walter case, a search cannot exceed the scope of the authorization. In handing over the envelopes the defendant consented to the search of them.

The defendant next contends that the oral and written statements taken from the defendant were tainted by the prior illegal search and seizure and, as such, must be suppressed. Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

We reject defendant’s argument here because we have determined that the search was conducted pursuant to defendant’s voluntary consent.

Next, the defendant contends that the evidence taken from the defendant’s home should be suppressed because the police engaged in outrageous conduct, citing People v. Kaludis (1986), 146 Ill. App. 3d 888, and People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962.

Defendant argues that the police conducted a type of “sting” operation “which is so outrageous that due process principles absolutely bar the government from invoking the judicial process to obtain conviction.” United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637.

Initially, we are of the opinion the police conduct herein was not “outrageous” as that term is used in the cases. People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962.

In People v. Kaludis (1986), 146 Ill. App. 3d 888, the court pointed out that “[t]he basis of a claim that a law-enforcement agent’s conduct with respect to the defendant was so outrageous that it violated due process is that the conduct complained of must somehow, at the very least, assist the defendant in committing the crime and, thus, entrap him.” 146 Ill. App. 3d at 897.

The police conduct here did not aid the defendant in committing the crime of child pornography. We, therefore, reject this argument.

Lastly, the defendant contends that he was not proved guilty beyond a reasonable doubt. The thrust of this argument is that defendant did not possess the requisite mental state to commit the offense of child pornography. He does not deny that on January 6, 1987, he had such materials under his control. He alleges, however, that the offending materials were obtained between 1976 and 1978 and he did not obtain any such materials after that date. He points out the statute did not take effect until 1985. He argues that it is entirely possible that before the effective date of the statute he forgot he possessed the material and, thus, lacked the requisite mental state to commit the offense.

We think the defendant demonstrated his knowledge of the nature of the offending materials when he produced them in response to the police inquiries. There is no evidentiary basis to conclude that defendant “forgot” about them. We are of the opinion that the defendant was proved guilty beyond a reasonable doubt.

The judgment and sentence of the circuit court of McHenry County are affirmed.

Affirmed.

DUNN and REINHARD, JJ., concur.


author: JUSTICE McLAREN JUSTICE REINHARD,

text:
      In re APPLICATION OF JACK L. ANDERSON, County Treasurer and ex officio County Collector of Lake County, for an Order of Judgment and Sale Against Real Estate Delinquent for Nonpayment of General Taxes for the Year 1978 and for Judgment Fixing the Correct Amount of Taxes, Paid Under Protest for the Year 1978 (Jack L. Anderson, Applicant-Appellee, v. Rubloff and Company, Objector-Appellant).
    Second District
    No. 2—89—0302
    Opinion filed February 23, 1990.

      Peter J. Nordigian, of Lonchar & Nordigian, of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Helen S. Rozenberg and Monique R. McIntosh, Assistant State’s Attorneys, of counsel), for ap-pellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Rubloff & Company (Objector) objected to certain tax rates to be levied upon its property and to the validity of the 1978 appropriation ordinance of the City of Waukegan (City). The tax objection was filed March 6, 1980, in response to the annual application for judgment of Jack L. Anderson, treasurer and ex officio county collector of Lake County (Collector).

The Objector paid its taxes under protest. The tax-rate objections were settled, but the validity of the appropriation ordinance of the City remained unresolved. Ultimately, the trial court conducted an evidentiary hearing and granted judgment to the Collector in the amount of $27,726.16. The Objector appeals and sets forth five arguments why the appropriation ordinance is invalid: (1) the City failed to enact an appropriation ordinance within the time prescribed by law; (2) the ordinance was not passed over the veto of the mayor; (3) passage of the ordinance was not shown as evidenced by-publication in pamphlet form; (4) the appropriation ordinance was not properly passed at a time when the home rule powers were in effect; and (5) the City could not extend the time within which to pass its appropriation ordinance under home rule powers because this would create an extraterritorial effect. We reverse the judgment and remand the cause with directions.

Section 8 — 2—9 of the Illinois Municipal Code (Code) provides that the appropriation ordinance of a City such as Waukegan be passed within the first quarter of its fiscal year. (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 2—9.) The City council of Waukegan considered its proposed, 1978 appropriation ordinance on July 31, 1978, and defeated the proposed ordinance after numerous attempts to amend it. At the next meeting of the City council on August 7, 1978, the mayor stated that the ordinance of the prior week was dead and Alderman Serdar was proposing another ordinance, using the former one as a draft copy. Alderman Serdar stated that he was presenting a new ordinance which he felt was a compromise. Alderman Hoff called for a point of order, stating that the finance committee did not hold a meeting and it had hoped to come back to the council with a complete recommendation. Alderman Domerchie questioned the plan for action to be taken on the appropriation. After numerous changes in the proposal were made, Alderman Serdar again called for a point of order, pointing out that this was a new ordinance. Corporation counsel advised the council that, although the Code required the appropriation to be passed within the first quarter of the fiscal year, he would recommend that the City exercise its home rule powers to extend the first quarter requirement and he had prepared a necessary insert to accomplish this.

On August 7, a new ordinance purporting to invoke the City’s home rule powers was passed incorporating the following pertinent parts:

“Annual Appropriation Bill of the City of Waukegan, Illinois for the fiscal year beginning May 1, 1978 and ending April 30, 1979.
An ordinance making appropriations of sums of money for all the necessary expenditures of the City of Waukegan, Illinois, and for Corporate purposes for the fiscal year beginning May 1,1978 and ending April 30,1979.
WHEREAS, the CITY OF WAUKEGAN is a Home Rule Unit by virtue of the provisions of the Constitution of the State of Illinois of 1970; and
WHEREAS, the City, as a Home Rule Unit, may exercise any power and perform any function pertaining to its government and affairs including the power to tax; and
WHEREAS, Section 8 — 2—9 of the Illinois Municipal Code states that the corporate authorities shall pass an ordinance within the first quarter of each fiscal year, to be termed the annual appropriation ordinance; and
WHEREAS, the Council does hereby determine that it is empowered by the Constitution of 1970 to extend the period of time within which such passage of the appropriation ordinance can occur as a function pertaining to its government and affairs, and further that it is advisable and necessary and for the best interests of the City of Waukegan to extend the period of time within which such passage can occur; and
WHEREAS, the Council does hereby further determine that the aforementioned part of Section 8 — 2—9 of the Illinois Municipal Code shall not hereafter be applicable to the passage of appropriation ordinances by the City of Waukegan;
BE IT ORDAINED by the City Council of the City of Waukegan, Illinois:
SECTION 1: That the corporate authorities of the City of Waukegan, Illinois shall have the express power to pass the annual appropriation ordinance at any time prior to the end of the second quarter of each fiscal year.
SECTION 2: That part of Section 8 — 2—9 of the Illinois Municipal Code (Section 8 — 2—9, Chapter, 24, Illinois Revised Statutes 1977) stating that corporate authorities shall pass an appropriation ordinance within the first quarter of the fiscal year shall not apply to the City of Waukegan.
SECTION 3: The following sums of money, or as much thereof as may be authorized by Law, as may be needed or deemed necessary to defray all expenses and liabilities of the City of Waukegan be and the same are hereby appropriated for the corporate purposes and objects of the City of Wauke-gan hereinafter specified, for the fiscal year beginning May 1, 1978 and ending April 30, 1979.
SECTION 7: This Appropriation Ordinance is adopted pursuant to procedures set forth in the Illinois Municipal Code, provided any limitations in the Illinois Municipal Code in conflict with this Ordinance shall not be applicable to this Ordinance, pursuant to Section 6 of the Article VII of the Constitution of the State of Illinois.
SECTION 8: This ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form, pursuant to Ill. Rev. Stat. 1977; ch. 24:125 & 6 [sic].”

Objector challenged the validity of the appropriation ordinance in the circuit court by filing its tax objection on January 22, 1980. Objector eventually moved for summary judgment, and its motion was denied by an order dated January 30, 1987. The circuit court found in pertinent part:

“2. That the enactment of the subject appropriation ordinance is a matter which pertains to the ‘government and affairs’ of the City of Waukegan. Article VII, §6(a) of the Illinois Constitution of 1970;
3. That Ill. Rev. Stat. ch. 24, §8 — 2—-9, does not prohibit a home rule unit from extending the time by which its appropriation ordinance is to be passed and enacted;
4. That the City of Waukegan was not required to act within the first quarter of their fiscal year in order to extend the time by which the subject appropriation ordinance was to be passed and enacted;
5. That the City of Waukegan specifically extended the time by which its appropriation ordinance could be passed and enacted in a proper and valid exercise of its home rule powers;
6. That pursuant to Ill. Rev. Stat. ch. 24, §6 — 4—2 the validity of the subject appropriation ordinance is not affected by virtue of the fact that the signature of the mayor of the City of Waukegan does not appear on said appropriation ordinance; and
7. That pursuant to Ill. Rev. Stat. ch. 24, §1 — 2—6, the fact that the subject appropriation ordinance was published in pamphlet form is prima facie evidence of its contents, passage and legal publication.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
1. That the subject 1978 City of Waukegan appropriation Ordinance was properly and lawfully enacted.”

The Collector then filed his motion for summary judgment. Ultimately, the trial court entered judgment for the Collector in an order dated February 24, 1989. The judgment was based on an evidentiary hearing and on the stipulation of the parties that no evidence other than that considered by the circuit court would be adduced at trial if a trial were held.

The final judgment, in pertinent part, recited the following findings of fact:

“2. That the subject Appropriation Ordinance was passed and approved at a regular meeting of the Waukegan City Council on August 7, 1978, that the Mayor did not orally veto said Ordinance and neither did the Mayor execute a veto in written form.
3. That as the Mayor did not veto said Ordinance, the Ordinance was and is effective despite the absence of the May- or’s signature on said document.
4. That counsel have stipulated that the 1978 Waukegan levy was filed timely, that the Tax Extension Office of the office of the Lake County Clerk extended the subject taxes in a statutorily timely manner and therefor that no Lake County taxpayer suffered prejudice by virtue of the extension of the time by which the City of Waukegan was to file its 1978 Appropriation Ordinance.”

The judgment also recited, in pertinent part, the following conclusions of law:

“2. That the enactment of the subject appropriation ordinance is a matter which pertains to the ‘government and affairs’ of the City of Waukegan. Article VII, §6(a) of the Illinois Constitution of 1970;
3. That Ill. Rev. Stat. ch. 24, §8 — 2—9, does not prohibit a home rule unit from extending the time by which its appropriation ordinance is to be passed and enacted;
4. That the City of Waukegan was not required to act within the first quarter of their fiscal year in order to extend the time by which the subject appropriation ordinance was to be passed and enacted;
5. That the City of Waukegan specifically extended the time by which its appropriation ordinance could be passed and enacted in a proper and valid exercise of its home rule powers;
6. That pursuant to Ill. Rev. Stat. ch. 24, §6 — 4—2, the validity of the subject appropriation ordinance is not affected by virtue of the fact that the signature of the mayor of the City of Waukegan does not appear on said appropriation ordinance; and
7. That pursuant to Ill. Rev. Stat. ch. 24, §1 — 2—6, the fact that the subject appropriation ordinance was published in pamphlet form is prima facie evidence of its contents, passage and legal publication.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED;
1. That the subject 1978 City of Waukegan Appropriation Ordinance was properly and lawfully enacted.”

We address first the issue of whether the City properly enacted a valid appropriation ordinance pursuant to its home rule powers then in effect on August 7, 1978. We are guided by this court’s recent decision in In re Application of the County Collector of Kane County (1988), 172 Ill. App. 3d 897, aff’d (1989), 132 Ill. 2d 64. We believe that the appropriation ordinance was not properly enacted on August 7, 1978, and was void as to the present objector because the City failed to observe the statutes and ordinances in force at the time of passage of this ordinance on August 7,1978.

A municipality is bound by the mandatory provisions of its own existing ordinances and of the statutory procedures in effect at the time of passage of its appropriation ordinance. (County Collector of Kane County, 172 Ill. App. 3d at 904.) On August 7, when the City council attempted to invoke its home rule powers in derogation of section 8 — 2—9 of the Municipal Code, which requires that an appropriation ordinance be passed within the first quarter of each fiscal year, the City council specified that its ordinance would not take effect until after its passage, approval, and publication in pamphlet form and pursuant to the Illinois Municipal Code. The ordinance was not published until August 22, 1978, and, therefore, the home rule power invoked was not in force until that date. Once the City imposed a publication and time lapse requirement upon itself, the City could not avoid it. (County Collector of Kane County, 172 Ill. App. 3d at 902-03.) Since the City did not yet have the specified home rule power in place on August 7, the attempt to pass the appropriation ordinance on that very same date was invalid.

In County Collector of Kane County, this court determined, relying on the same principle, that a municipality cannot pass an appropriation ordinance as well as a levy ordinance on the same date where the passage of a valid appropriation ordinance is a prerequisite to the passage of a valid levy ordinance, and where the appropriation ordinance must be published after a certain time lapse. In the present case, since the City’s home rule power specified in the ordinance of August 7 was not yet in effect because of the publication requirement, the City council could not also pass an appropriation ordinance on that date based on that home rule power.

Additionally, we point out that the council was still bound by the notice, hearing, and publication requirements in effect on that date as enumerated in the Illinois Municipal Code. (See, e.g., Ill. Rev. Stat. 1977, ch. 24, pars. 1-2-4, 1-2-5, 1-2-6, 8-2-9.) Section 8 — 2—9, for example, in addition to requiring an appropriation ordinance to be passed within the first quarter of the fiscal year, also requires that the annual appropriation be made available to the public at least 10 days prior to its adoption; it provides for notice of a hearing to be published in a newspaper in the county at least 10 days prior to the time of the public hearing which shall state the time and place of the hearing and the place where the copies of the proposed ordinance will be accessible for examination. Our examination of the council’s minutes of August 7, 1978, leaves little doubt that these notice and hearing requirements were not adhered to in the present case. It is also clear from the discussion in the minutes that the proposed ordinance was considered a new proposal. It is equally obvious that no 10-day notice and hearing provisions could have been observed between July 31 and August 7,1978.

Next, we point out that section 10 of “An Act to revise the law in relation to notices” (Ill. Rev. Stat. 1977, ch. 100, par. 8.2) imposes mandatory notice and publication requirements even on home rule municipalities, so that the notice and publication requirements found in the Municipal Code would appear to be mandatory for an appropriation ordinance to take effect. (See, e.g., Ill. Rev. Stat. 1987, ch. 24, par. 1 — 2—4.) Notwithstanding the ordinance’s general saving clause purporting to reject contrary provisions of the Municipal Code, we find that the specific language of the ordinance demonstrates that the City intended to be bound by the statutory scheme of the Municipal Code at least with respect to the procedures, notice and publication requirements of the Code. The City sought to exempt itself only from that part of section 8 — 2—9 specifying the time by which the appropriation ordinance must be enacted.

Objector also argues that it was improper to invoke home rule powers that have an impermissible, extraterritorial effect on other municipal governments. Section 1 of the City’s ordinance states that the corporate authorities of the City shall have the express power to pass the annual appropriation ordinance at any time prior to the end of the second quarter of each fiscal year, that is, October 31. Even assuming that the procedure by which a home rule unit appropriates funds is a matter “pertaining to its government and affairs” and is permissible under the Illinois Constitution (see Allen v. County of Cook (1976), 65 Ill. 2d 281, 288; Ill. Const. 1970, art. VII, §6(a)), a procedure which affects other units of government can be considered an impermissible exercise of power because it does not pertain strictly to its own government and affairs. See Allen, 65 Ill. 2d at 287; see also City of Peoria v. Keehner (1983), 115 Ill. App. 3d 130, 133.

Our supreme court has restated the rule that the Constitution does not give home rule units unrestrained extraterritorial governmental powers by explaining:

“Considering the number of local government units in this State, particularly in and around the Chicago area, which possess or could elect to possess home rule powers, it is apparent that unrestrained extraterritorial exercise of those powers in zoning, taxation and other areas could create serious problems. [Citation.] If we were to rule this tax ordinance constitutional, each home rule unit in the State of Illinois could pass a similar ordinance. The drafters of our constitution limited the extraterritorial exercise of home rule powers to those enacted by the General Assembly, and the General Assembly has the power to limit the extent of such grants of power as may be necessary.” Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 78-79.

In the present case, the City’s ordinance purports to extend the time for passing an appropriation ordinance until the end of the second quarter of the fiscal year, that is, October 31 of a particular year. This conflicts with the statutory scheme setting the time for the passage of a tax levy ordinance which is to be certified by the county clerk and which directs the county clerk to extend the tax upon the books of the collector of the State and county taxes. (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 3—1.) The City’s financial needs for the coming fiscal year are first projected in an appropriation ordinance. The amount of property taxes and revenues the municipality anticipates it will actually require for the fiscal year is based on what other revenues it has and will receive and what its expenses will be; this is reflected in the tax levy ordinance. (See Ill. Rev. Stat. 1977, ch. 24, par. 8 — 3—1.) The Municipal Code specified that the levy ordinance was to be passed and enacted, in this case, by the second Tuesday in September of that year. (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 3—1.) The later extension of the property taxes by the county clerk was the next step in a long process which results in the collection of property taxes on behalf of the participating municipalities.

We believe that, in this case, the ordinance extending the time for passing the appropriation ordinance is, on its face, an unrestrained exercise of the City’s power which has the potential for great abuse and could create serious problems for the county clerk in the timely determination of rates and for the county collector in the orderly collection of taxes. As such, the ordinance has an impermissible, extraterritorial effect. We find that this is an additional reason why the ordinance purporting to extend the time for the enactment of the appropriation ordinance is defective, because it is an abuse of the home rule powers.

In view of our determination that (1) the appropriation ordinance was not validly enacted, and (2) that the City exceeded its home rule powers in passing the extension of time for the passage of an ordinance, we need not address the Objector’s remaining arguments. However, we specifically reject Objector’s attempt to preserve the issue of the trial court’s refusal to permit discovery in the proceedings below. Objector’s failure to fully argue this issue in its brief and to present authority therefor results in a waiver of that issue for purposes of further review. People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 516.

For the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded with directions to sustain the objections to the taxes extended by the City of Wauke-gan as to the present objector.

Reversed and remanded with directions.

WOODWARD, J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s opinion that the appropriation ordinance at issue was not validly enacted and that the City exceeded its home rule powers in passing the extension of time for passage of an appropriation ordinance. The majority opinion has set forth three reasons why the appropriation ordinance was not validly enacted and the City exceeded its home rule powers, and I disagree with the analysis and authority cited for each of these propositions. I would affirm the decision of the circuit court.

Turning to the first point, the majority concludes that because “the City did not yet have the specified home rule power in place on August 7, the attempt to pass the appropriation ordinance on that very same date was invalid.” (194 Ill. App. 3d 420-21.) The majority fails to cite, nor do I find, any authority supporting the necessary premise that the City did not have any home rule power to pass the appropriation ordinance until it invoked such power by way of ordinance. Home rule power derives from article VII, section 6(a), of the Illinois Constitution of 1970, and I find no authority for the proposition that such power is ineffectual absent its prior invocation by ordinance. In fact, in Messina v. City of Chicago (1986), 145 Ill. App. 3d 549, the court held that it is not necessary that a home rule municipality declare that its actions are taken under home rule power for that power to take effect. (145 Ill. App. 3d at 552.) Furthermore, in Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, our supreme court held that a village trustees’ vote not to place a proposition on the ballot constituted an “exercise” of home rule power even absent an ordinance being passed to that effect. (Sommer, 79 Ill. 2d at 392-93.) These two cases strongly suggest that it is not necessary to the exercise of home rule power that such power first be invoked by ordinance. Consequently, the City’s authority under its home rule powers to pass the appropriation ordinance after the statutory time limit existed at the time the appropriation ordinance was passed and did not depend upon its prior invocation by ordinance. It is further clear that the City was exercising its home rule power as this was expressly stated in the appropriation ordinance. The Objector does not dispute that the City is a home rule unit. Although the majority does not discuss the point, I would further conclude that the City validly exercised its home rule powers in extending the date by which its appropriation ordinance was to be passed and enacted.

I further disagree with the majority’s application of In re Application of County Collector of Kane County (1989), 132 Ill. 2d 64, to the facts of this case. (I fail to understand why the majority cites to our appellate court opinion in this case when our supreme court has taken the case and decided the precise issue for which the majority cites the appellate court opinion.) In County Collector of Kane County, the supreme court determined that a home rule municipality cannot pass an appropriation ordinance on the same day as a levy ordinance where the passage and publication of a valid appropriation ordinance is a prerequisite, as set forth in the municipality’s own ordinances, to the passage of a valid levy ordinance. That principle is inapposite to this case. Here, there is simply no requirement, either in the City’s ordinances or otherwise, that an ordinance specifically invoking home rule powers be passed as a prerequisite to the passage of an appropriation ordinance purporting to exercise home rule powers.

As to the majority’s second point, that the City was bound by the notice, hearing and publication requirements in effect on August 7, 1978, as enumerated in the Illinois Municipal Code, I find that argument to be waived. As it was not raised in the trial court, it cannot now be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Furthermore, this is the type of case where the waiver rule has particular applicability, as the City was not given the opportunity below to present evidence that it did in fact comply with the notice, hearing and publication requirements.

Finally, I disagree with the majority’s conclusion that the appropriation ordinance has an “impermissible, extraterritorial effect.” (194 Ill. App. 3d 422.) In this regard, I believe the majority’s reliance on Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, is clearly misplaced. In that case, our supreme court stated that unrestrained extraterritorial exercise of powers in zoning, taxation or other areas could create serious problems. (89 Ill. 2d at 78-79.) Although the supreme court did use the terminology “extraterritorial effect,” it did so in characterizing the scope of the taxing ordinance at issue rather than using the term “effect,” as used by the majority here, to mean the impact that the ordinance might have outside of the corporate boundaries. Such a broad interpretation of Commercial National Bank would lead to absurd results, as it is possible in many cases to identify some extraterritorial effect resulting from passage of zoning, taxation or other ordinances. Furthermore, Commercial National Bank concerned the imposition by a municipality of a tax on services performed outside its corporate boundaries, an issue clearly not present here.

Even were I to interpret language in Commercial National Bank to be applicable to the present situation, I would still disagree with the majority opinion. The parties stipulated that the 1978 Waukegan levy was timely filed, that the tax extension office of the Lake County clerk extended the taxes in a statutorily timely manner, and that no taxpayer of Lake County suffered prejudice as a result of the extension of time to file the 1978 appropriation ordinance. The majority’s apparent concern that the extension of the time for passage of an appropriation ordinance by the City would disrupt the tax collection process is unfounded in this case. Because I find no merit in the remaining contentions of the objector, I would affirm the judgment of the circuit court.


author: JUSTICE HOWERTON

text:
    FERNANDO LUSK, by and through his Next Best Friend, Eddie Lusk, Plaintiff-Appellee, v. TRIAD COMMUNITY UNIT NO. 2, Defendant-Appellant.
    Fifth District
    No. 5—89—0846
    Opinion filed February 2, 1990.
    Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville (Theodore J. MacDonald, Jr., and David G. Phoenix, of counsel), for appellant.
    William C. Evers III, of Collinsville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

A high school student ought not carry a .357 Magnum pistol, jammed between his waistband and his belly, with a live round of ammunition in his pants pocket while he is in a lunch line in a high school cafeteria. Expulsion of that student is no abuse of discretion. Enjoining that expulsion is.

The Board of Education of Triad Community Unit School District No. 2 found that carrying the gun and ammunition was “gross disobedience or misconduct” under the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.6(a)) and expelled Fernando Lusk, a football player with a clean discipline record, for the remainder of the 1988-89 school year.

Lusk sought injunctive relief, alleging that the expulsion was arbitrary, unreasonable, capricious or oppressive.

The circuit court of Madison County, relying on the transcript of the Board’s hearing, additional exhibits, and memoranda of law and fact submitted by both parties, enjoined the expulsion.

The Board appeals pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307).

We reverse.

In Illinois, a decision to suspend or expel a student will be reversed by a court of review only if it is arbitrary, unreasonable, capricious, or oppressive. Wilson v. Collinsville Community Unit School District No. 10 (1983), 116 Ill. App. 3d 557, 451 N.E.2d 939.

“School discipline is an area which courts enter with great hesitation and reluctance — and rightly so. School officials are trained and paid to determine what form of punishment best addresses a particular student’s transgressions. They are in a far better position than is a black-robed judge to decide what to do with a disobedient child at school.” Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 439, 424 N.E.2d 737, 738-39.

Applying Donaldson’s rationale to this case, we conclude that the circuit court erred in granting Lusk’s preliminary injunction.

It is undisputed that Lusk had possessed the gun and ammunition. When caught, he acknowledged not only that he knew that his conduct was against school rules, but also that he knew that it could result in his expulsion.

A gun in school is dangerous. A gun in school sweeps all into harm’s way. Carrying a gun in school cannot be endorsed. Carrying a gun in school must be condemned. Expulsion is condemnation, appropriate condemnation. This expulsion is not arbitrary, is not unreasonable, is not capricious or oppressive.

Since the school board did not abuse its discretion, the circuit court did. See Opportunity Center of Southeastern Illinois, Inc. v. Bernardi (1986), 145 Ill. App. 3d 899, 496 N.E.2d 340.

The judgment of the circuit court granting Lusk a preliminary injunction is reversed.

Reversed.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
    U.S. MINERALS AND MINING, INC., Plaintiff and Counterdefendant-Appellee, v. LICENSED PROCESSORS, LTD., Defendant and Counterplaintiff-Appellant (Frank Chenoweth et al., Counterdefendants).
    Fifth District
    No. 5—88—0285
    Opinion filed February 7, 1990.

      T. Richard Mager, of Carbondale, and Donald G. Mulack, of Keck, Mahin & Cate, of Chicago, for appellant.
    Don E. Prosser, of Gilbert, Kimmel, Huffman & Prosser, Ltd., of Car-bondale, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant and counterplaintiff, Licensed Processors, Ltd. (LPL), appeals from the judgment order entered January 4, 1988, and the post-trial order entered April 18, 1988, by the circuit court of Williamson County, Illinois. The judgment rescinded LPL’s contract with the plaintiff and counter defendant, U.S. Minerals & Mining, Inc. (USM), as requested by USM, but granted neither party status quo ante damages. In a cover letter to both parties enclosing the post-trial orders of April 18, 1988, denying LPL’s motion for modification of the judgment to grant it status quo ante damages, the court clarified that while restoration to the status.quo is generally the rule following rescission, if both parties have received benefits from- the contract prior to its termination, the court will only award damages if it finds unjust enrichment, and none had been shown in this case.

LPL also appeals from a post-trial order entered the same day which denied its petition for attorney fees and costs under section 2— 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), wherein the court specifically found that there had not been a sufficient showing of bad faith to sustain LPL’s section 2— 611 request. We note that the appellant has submitted for our review only a partial report of proceedings and none of the trial exhibits, except as they might also have appeared as exhibits in the common law record.

On appeal LPL raises the following issues:

(1) whether the trial court erred in failing to award damages to LPL when it rescinded the contract between LPL and USM; and

(2) whether denial of LPL’s section 2 — 611 petition for attorney fees and costs was against the manifest weight of the evidence and contrary to law.

USM owned the leasehold interest in certain coal mining property known as the Burning Star 1 Mine. USM removed and sold coal from the property during 1983 and 1984. In the spring of 1984 USM discovered that a certain amount of refuse carbon which had accumulated in slurry ponds could not be recovered by normal methods. USM contacted Gary Spiller of LPL with regard to its ability to clean and process this waste carbon so that it too could be sold. In August 1984, the parties entered into an agreement concerning the recovery and processing of the waste carbon. Relevant portions of the August 14, 1984 agreement provided that LPL would build and own the recovery plant and its equipment, which would be built on USM’s leasehold. The contract further provided that USM would acquire and own the dredge and pipeline which would carry the waste carbon to LPL’s plant for processing. The carbon, once cleaned and dried, would be carried off for sale by USM. LPL would receive compensation from USM of $3.32 per ton plus a premium of 20% of every ton sold at a price in excess of $10.90 per ton. These payments were to be made by USM out of the sale proceeds of each recovered coal shipment.

The contract also recited the assumption of the parties that LPL was an expert in the construction and operation of this type of coal-refuse processing plant. Although the contract specified that LPL would segregate coal according to size, and process “clean” coal, it did not specify the size of the finished product, the specific quality, i.e., minimum B.T.U. requirement, the amount required to be processed, or the minimum volume of slurry to be introduced, other than to say a “fixed rate of flow.” Archie Henderson, who was president of LPL as well as an attorney-at-law, drafted the agreement. The court, finding the contract ambiguous, considered parol evidence in defining some of the parties’ obligations under the contract. As far as the size of the coal to be processed, the court found it to be +28 mesh and that “clean coal” meant carbon with a B.T.U. rating of 10,400 or more, based on the contract price of $10.90 per ton. The court further found that both parties relied on a projected slurry feed of 250 to 260 tons per hour for LPL to produce 200 tons per hour of processed coal.

LPL borrowed $300,000 in connection with the purchase and construction of the plant, the total cost of which was $371,000. This loan was secured by LPL’s stock.

Processing of the carbon refuse began in December 1984, upon completion of the plant construction. From the beginning the operation was plagued with problems. The dredge and pumping operation was beset with equipment failure, inconsistent slurry composition (the contract required a mixture of between 22% to 35% solids), and down time for cleaning, repairing, and moving equipment at the recovery site. Because USM was unable to deliver a constant rate of slurry flow for the LPL plant to process, the projected production of 200 tons per hour was never realized. Over the 13 months of operation, the average production was only 50 tons per hour. The court did not fault USM for not supplying the constant flow or particular consistency of slurry mixture to LPL’s plant, charging instead that LPL, as the expert, should have foreseen the dredge and pumping problems and that the delivery requirements were unrealistic.

The parties held numerous discussions and attempted to remedy some of the problems over the next 13 months. However, on October 30, 1985, LPL shut down the processing plant. On November 4, 1985, USM filed suit against LPL claiming damages or rescission of the contract based on fraud, misrepresentation, or breach of contract. LPL reopened the plant shortly thereafter, and the parties continued to negotiate the contract problems.

In February 1986, LPL again shut down the operation. On the 18th of that month, LPL received notice from USM to remove the plant from its property. LPL did remove the plant in April 1986, but only after USM had disconnected the feed pipe from the dredge and built another processing plant nearby. LPL moved the plant to West Virginia, where it was used by a corporation partly owned by LPL’s president. LPL did not receive any compensation for the use of the plant by the West Virginia company. LPL defaulted on its loan payments in January 1987, and in order to avoid foreclosure sale of its security, LPL sold the plant and paid the loan in full.

The trial of this matter lasted 13 days, and in the course thereof, the court heard testimony of 17 witnesses and admitted 67 exhibits into evidence. Prior to the end of the defendant’s case, the court directed a verdict for the defendant on the fraud counts of the plaintiffs complaint. However, the court allowed an amendment of USM’s complaint in which it sought rescission of the contract based on mutual mistake. On that amended count the court ordered rescission of the contract but found that as both parties had benefitted during the contract term, no restoration of the status quo for LPL was required. The court further found that USM would not be unjustly enriched by rescission and that the status quo had effectively been reached on February 16, 1986, when production ceased. The court further found for LPL on one count of its counterclaim and entered judgment against USM in the amount of $3,290, representing unpaid premiums due LPL under the contract.

LPL contends that the court committed an error of law when it determined that the “status quo ante” date was February 17, 1986, rather than August 14, 1984. Generally, persons demanding rescission must restore the other party to the status quo existing at the time the contract was made. (Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177, 1181.) Restoration of the status quo in contract rescission cases initially requires return of any property or other consideration that is passed to the rescinding party under the contract and also generally requires the rescinding party to account for any benefits received from the other party under the contract. (Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528, 533 N.E.2d 962, 967.) Where costs claimed do not represent any benefit conferred on the rescinding party by the party against whom rescission is sought, they are properly disallowed as restitution. (See Puskar, 179 Ill. App. 3d at 530, 533 N.E.2d at 967 (costs of returning equipment to seller’s business location and electrifying it did not benefit the purchasers); see also Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 346, 472 N.E.2d 575, 581 (reimbursement of broker’s commission paid by seller did not benefit buyer).) The court below found no credible evidence in the record to support LPL’s claim for losses in removal of the plant to West Virginia. We further believe that whatever costs might have been incurred in moving the plant did not benefit USM and were therefore not to be considered in the calculation of restitution for LPL.

LPL argues that it has suffered a loss as a net result of its involvement in the contract with USM over and above the losses incurred at the conclusion of the contract. LPL computed this loss as follows:

“$371,000 — Cost of plant and setup

$ 37,389 — Interest on loan

$408,389 — Total costs

Less: $245,346 — Profit from operations

$163,028 [sic] — Total loss from contract”

With regard to this loss, which LPL argues the trial court should have awarded as restitution, we believe the issue to be one of fact and not law. The factual determinations of the trial judge will be overturned only if they are contrary to the manifest weight of the evidence. (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 318, 469 N.E.2d 183, 191.) The trial judge heard 13 days of testimony and had 67 exhibits for consideration of each party’s income and expenses under the August 14, 1984, agreement. The appellant has the duty to present the reviewing court with a complete record on appeal; any doubts arising from the incomplete record are therefore resolved against the appellant, and those issues which depend for resolution upon facts not in the record mandate affirmance. Daniels v. City of Venice (1987), 162 Ill. App. 3d 788, 791, 516 N.E.2d 701, 703.

On the basis of the record we have before us to review, we also find that as of February 16, 1986, LPL had a net benefit in consequence of the parties’ agreement. LPL owned a physical plant for which it paid $371,000 and, according to LPL in its brief on appeal, had net operational profits of over $245,000 during 1985 alone. Balanced against these assets, LPL had liabilities of the $300,000 bank loan and the $100,000 loan from LPL’s president. The $37,389 in interest claimed as an expense would have been incorporated in the net operational profit figure. We further find that over the 14-month period LPL had received over $670,000 in processing fees from USM. In order to restore the parties to the status quo, plaintiffs are entitled only to be reimbursed the amount they paid on their contract minus any benefits they received. (Cotter v. Parrish (1988), 166 Ill. App. 3d 836, 842, 520 N.E.2d 1172, 1176.) The court’s finding that both parties benefitted from the contract was not against the manifest weight of the evidence.

The date at which the court necessarily must assess whether investment outweighed benefits is when the contract operations terminated between the parties on February 17, 1986. We therefore find that the court did not err as a matter of law when it found that the status quo was effectively reached on February 17,1986.

LPL also claims as error that the court allowed USM to profit at its expense when it granted rescission of the parties’ contract. The trial judge explained his reasoning in not awarding LPL any damages in the post-trial order cover letter to the parties’ attorneys dated April 18, 1988. The judge said, “where as in our case, both parties have received benefits from the contract prior to its termination, damages should only be awarded if there is a showing of unjust enrichment.” As LPL’s attorney admitted in oral argument before this court, there would be no unjust enrichment for USM if it had gain but LPL had no loss under this contract. Because we have already upheld the trial court’s factual finding that LPL benefitted from this contract, whatever profits USM may have also enjoyed do not constitute unjust enrichment, unless there was some showing that the profit resulted from unlawful or improper conduct, as defined by law. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1985), 137 Ill. App. 3d 84, 90, 484 N.E.2d 349, 354.) While the court below found that USM owed LPL $3,290 in unpaid premiums and awarded LPL that amount on its counterclaim, there is nothing in the record before us to indicate that the remainder of USM’s profits were unjustly or unlawfully obtained.

Finally, LPL argues that denial of its section 2 — 611 petition for attorney fees was against the manifest weight of the evidence and that as a matter of law the court erred in imposing a “bad faith” standard for the conduct of the respondent in the section 2 — 611 petition. In its order the court recited that its denial of the petition was made after a review of the authority and argument presented by counsel, and it further specifically found that there had not been a sufficient showing of bad faith. LPL apparently concludes from this statement that the court required a showing of “bad faith” on USM’s part before it would award LPL its attorney fees. Section 2 — 611 of the Illinois Code of Civil Procedure in effect when suit was filed in 1985 provided as follows:

“Allegations and denials made without reasonable cause and found to be untrue shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within thirty days of the judgment or dismissal.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.

It was LPL’s burden to demonstrate to the satisfaction of the court that USM abused its right to free access to the courts by pleading untrue statements of fact which the pleader knew or reasonably should have known were untrue. (St. Paul Federal Savings & Loan Association v. Avant (1985), 135 Ill. App. 3d 568, 578, 481 N.E.2d 1050, 1057.) A lower court’s decision regarding the assessment of attorney fees is entitled to great weight and should not be disturbed unless there has been an abuse of discretion. Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 40, 518 N.E.2d 1374, 1381.

Again we must reiterate that the trial court had the benefit of the entire trial testimony and all exhibits before it when it denied LPL’s petition. We cannot say based upon the portion of the record before us that the judge’s decision was against the manifest weight of the evidence. That the court directed a verdict for the defendant on the fraud and misrepresentation counts of the complaint is far from dispositive of any conclusion that USM had no reasonable cause to make those allegations in November 1985 when it filed this suit.

LPL relies on what it terms the “admissions” on cross-examination of John Smothers, one of USM’s officers, that there was no fraud. We have reviewed the transcript of Smothers’ cross-examination and find it less than conclusive that Smothers did not believe at the time he verified the complaint that USM had been defrauded. Moreover, not having the benefit of Smothers’ direct or redirect testimony, we are in no position to categorize the cross-examination testimony as an admission. A party may, by his own testimony, conclusively bar his claim or defense, but a determination that he has done so depends upon an evaluation of all his testimony, and not just a part of it. (McCormack v. Haan (1960), 20 Ill. 2d 75, 78, 169 N.E.2d 239, 241.) We also disagree with LPL’s characterization that there was a complete failure of any proof that it committed any misrepresentation, fraud or deception. We believe that this case is dissimilar to the Brandenberry or Ready cases relied upon by LPL. In Brandenberry, the plaintiff introduced no evidence to support the allegations of its complaint. (Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 263, 379 N.E.2d 674, 681.) In Ready, most of the allegations made in the complaint were found to be untrue. Ready v. Ready (1962), 33 Ill. App. 2d 145, 161, 178 N.E.2d 650, 658.

With regard to the lower court’s imposition of a “bad faith” standard on section 2 — 611, we believe that a finding that USM did not act in bad faith would be a material consideration in determining that the pleader made the allegations of its complaint with reasonable cause. Although lack of good faith no longer need be shown, the facts, circumstances, motive, intent or purpose of the pleader are material in determining whether the allegations were made with reasonable cause. (Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 352, 493 N.E.2d 107, 111.) The elimination of the requirement of proof of bad faith as an independent element to be proved does not, of course, completely eliminate this factor. (In re Estate of Knutson (1980), 83 Ill. App. 3d 907, 912, 404 N.E.2d 1003, 1006.) Just such a finding was recently made by us in the Dunaway v. Ashland Oil, Inc. case wherein we reiterated this element’s relevance to reasonable cause for making the allegations of the complaint. (Dunaway v. Ashland Oil, Inc. (1989), 189 Ill. App. 3d 106, 118, 544 N.E.2d 1313, 1322.) In short, we do not believe that the denial of LPL’s section 2— 611 petition was an abuse of discretion, based on the evidence, or that it was determined by way of an improper legal analysis.

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

Affirmed.

HARRISON, and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    BILL BURKE et al., Plaintiffs-Appellants, v. THE COUNTY OF HAMILTON et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0372
    Opinion filed February 9, 1990.

      James L. Van Winkle, of Van Winkle & Van Winkle, of McLeansboro, for appellants.
    Wayne Morris, State’s Attorney, of McLeansboro, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Bill Burke, Kenneth Hunt, Juanita Hunt, Frank Compton, Robert Fechter, Kenneth Parsons, Darlene Parsons, Wilber G. Hasty, Avery Rector, Mike Simpson, Hillis Stokes, Irby McGill, Glen Owen, Opal Owen, Earl Owen, Betty Fechter, Brenda Craddock, Wilber Hasty, Lavenue R. Webb, by and on behalf of the citizens and taxpayers of Hamilton County, Illinois, opposed to closing the county jail, appeal from an order of the circuit court of Hamilton County dismissing their complaint against defendants, County of Hamilton, Bill Warren, individually and as the sheriff of the County of Hamilton, and John Taylor, Mary Nipper and Don Woodrow, individually and as members of the County Board of Supervisors, and Richard Rubenacker and Glenn Miller, in their capacities as supervisors of the County Board of the County of Hamilton. In this cause, plaintiffs question whether a county board has the discretion, without providing an alternative jail facility, to resolve and direct the county sheriff to close the current jail. Plaintiffs further question whether an action in mandamus will properly lie against the county board to compel continued operation and maintenance of the current jail. This court affirms.

In 1938, Hamilton County built a jail at the county courthouse. It was renovated in 1973. On March 7, 1986, pursuant to statute (Ill. Rev. Stat. 1985, ch. 75, par. 122), three citizens from the grand jury inspected the jail. They found it to be in satisfactory condition. On August 17, 1987, three citizens from the grand jury again found the conditions of the jail satisfactory. On January 16, 1986, however, the Illinois Department of Corrections inspected the jail and found it to be in noncompliance with the county jail standards promulgated by that Department. On July 16, 1987, the Department again inspected the jail. In addition to violating the jail standards, the jail was found to violate the State Fire Marshal’s rules. During the 27 months between January 1986 and March 1988, the Hamilton County jail was not significantly changed either by improvement or deterioration.

On March 21, 1988, approximately 175 citizens and taxpayers of the county met at the courthouse to discuss alternatives to a jail building commission formed by the County Board of Supervisors (Board).

On March 22, 1988, a special meeting of the Board was called for March 24, 1988. At the special meeting, several plaintiffs appeared before the Board and requested they not close the jail. By a vote of 3 to 2, the Board resolved to close the jail as soon as this could be accomplished by the sheriff. The Board felt that continued operation of the jail was a liability to the county, the individual board members, and the sheriff. At the time the Board closed the jail, it did so without prior negotiation or efforts to obtain alternative facilities for housing the average of two prisoners per day. The Board had not entered into any contract for the joint operation of a jail nor had it authorized the sheriff to enter any such contract. Since the Board’s action, the sheriff has been transporting prisoners to the jail facility in White County.

On March 28, 1988, plaintiffs filed this action against the Board and sheriff seeking an order of mandamus to compel continued operation of the jail. Plaintiffs also seek to enjoin the Board or sheriff from transporting prisoners to other facilities.

Section 26 of the powers and duties of county boards act (Ill. Rev. Stat. 1987, ch. 34, par. 432) provides that it is the duty of the Board to erect, provide and keep in repair a suitable county jail. This duty is reinforced by section 1 of the county jails act (Jails Act) (Ill. Rev. Stat. 1987, ch. 75, par. 101). The Jails Act provides that the Board can satisfy this requirement with a single jail facility jointly maintained by two or more counties.

Plaintiffs question whether a county board has the discretion, without providing an alternative jail facility, to resolve and direct the county sheriff to close the current jail. To answer plaintiffs’ question directly, the Board does not have the discretion, without providing an alternative jail facility, to resolve and direct the county sheriff to close the current jail. The Board has an absolute duty to provide a suitable jail. (People ex rel. Bull v. Board of Supervisors of La Salle County (1876), 84 Ill. 303; Andrews v. Knox County (1873), 70 Ill. 65, 69.) The General Assembly has provided, however, that the Board may discharge this duty jointly with another county. (Ill. Rev. Stat. 1987, ch. 75, par. 101.) In this case, the Hamilton County and White County boards are discharging this duty together.

The supreme court in La Salle County held:

“[TJhe provision of the statute requiring the county board to furnish a jail may be regarded as mandatory *** yet, the kind of a jail to be provided must necessarily be left to the discretion of the board. *** [S]o far as these various matters of discretion are concerned, courts have no power to interfere.” (La Salle County, 84 Ill. at 306-07.)

The manner in which the Board fulfills its duties is essentially a legislative and/or executive discretionary decision. It might be preferable to establish a more stable relationship such as a contract between White and Hamilton Counties; however, so long as the duty is being discharged, we will not interfere. As the Constitution of 1970 says, “[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) So long as the Board fulfills its statutory duty, this court will not step into the dispute.

Plaintiffs next argue that an action in mandamus will properly lie against the Board to compel continued operation and maintenance of the current jail. Mandamus would only be appropriate if the Board failed to fulfill its legal duties. As we have found that the Board has fulfilled its duty, mandamus is inappropriate.

For the foregoing reasons, the order of the circuit court of Hamilton County is affirmed.

Affirmed.

RARICK and CHAPMAN, JJ., concur.