author: Mr. JUSTICE EBERSPACHER

text:
    The Presbyterian Church of Carlyle, Plaintiff-Appellant, v. St. Louis Union Trust Company et al., Defendants-Appellees.
    (No. 73-72;
    Fifth District
    April 10, 1974.

      Bernard G. Heiligenstein, of Carlyle, for appellant.
    Warren, Carlisle & Dominguez, of Carlyle, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Clinton County, dismissing plaintiff-appellant’s complaint for an order that the proceeds of a trust are distributable to the plaintiff.

Charles W. Parker died testate April 13, 1956, survived by his wife, Emma Parker. His will was probated in St. Louis, Missouri. The will of Charles W. Parker provided in pertinent part that the residue of his estate be devised in trust to Liberty Central Trust Company as trustee (St. Louis Union Trust Company, a Missouri corporation, defendant herein, succeeded to this position by virtue of a codicil to the will of Charles W. Parker) for the use and benefit of the fife tenant, Emma Parker, Charles Parker’s surviving widow. The will then provided tihat upon the death of Emma Parker the remainder of the trust corpus would be divided equally between the Presbyterian Church of Carlyle, Illinois, an Illinois corporation and plaintiff herein, and William H. Parker, a brother of the decedent and a defendant herein; but if William H. Parker was not living at the death of Emma Parker, then his share should vest in the plaintiff, the Presbyterian Church of Carlyle. On December 17, 1958, Emma Parker died and the trust thereby terminated and became distributable.

Upon this termination of the trust the defendant St. Louis Union Trust Company held and still holds the distributable share of the defendant William H. Parker in the amount of $8300. Subsequent to the termination of this trust, certain realty, being a part of the trust corpus, was sold by the trustee and the proceeds of the sale, in the amount of $10,900, being also a portion of the distributive share of the defendant William H. Parker, were held in escrow by St. Louis Title and Abstract Company and are now held in escrow by their successor, Guaranty Land Title Company, a Missouri Corporation, and a defendant herein. The funds held by the defendants, St. Louis Union Trust Company and Guaranty Land Title Company, are being held until a determination is made whether the defendant William H. Parker is alive or died subsequent to Emma Parker, in which event he would have died seized of his distributive share, or whether he predeceased Emma Parker, thus vesting his distributive share of the trust in the plaintiff. Plaintiff brings this suit to secure a determination that William H. Parker predeceased Emma Parker and that title to his distributive share of the trust vested in itself. Defendants-appellees prayed in their answers that the cause be dismissed either for lack of jurisdiction or under the common law doctrine of forum non conveniens. Alternatively, they prayed that plaintiff be required to prove his allegations.

Without going into the specifics of the method or the extent of the inquiry, attorney for the plaintiff stated by affidavit that, after due and diligent inquiry, he was unable to determine whether defendant William H. Parker is living or dead and that he has been unable, after due and diligent inquiry, to find William H. Parker or to ascertain his place of residence or his former place of residence. The affidavits stated that a diligent inquiry had been made to ascertain these facts, but no description of the mode or extent of such inquiry was included therein. In their respective answers defendants St. Louis Union Trust Company and Guaranty Land Title Company do not dispute plaintiff’s affidavits with respect to the whereabouts of William H. Parker, but they deny any knowledge of the status of William H. Parker. Plaintiff’s attorney further stated by affidavit that due and diligent inquiry has failed to disclose the names or addresses, present or former, of any of the unknown heirs or devisees of William H. Parker or of any unknown owners (parties who might conceivably have taken an interest from either William H. Parker or the unknown heirs or devisees of William H. Parker). Again, the mode and extent of such inquiry were not revealed by the affidavit. Defendants St. Louis Union Trust Company and Guaranty Land Title Company deny any knowledge of the existence, identity or whereabouts of the parties. The record fails to disclose and the respective briefs fail to discuss the last abode, residence or domicile from which William H. Parker allegedly disappeared. Neither may it be ascertained therefrom the date upon which William H. Parker allegedly disappeared.

Plaintiff filed this suit in the circuit court. Defendants, St. Louis Union Trust Company and Guaranty Land Title Company, made a general entry of appearance in that court. The defendants William H. Parker, unknown heirs and devisees of William H. Parker, and unknown owners made no appearance. These parties were served with notice by publication, complying in form with the statute (Ill. Rev. Stat., ch. 110, § 14), in a newspaper of general circulation in Breese, Clinton County.

Although no motion appears in the record, the court apparently treated the prayers of the respective answers as raising questions of law to be determined by the court, before proof was to be offered.

On January 17,1973, having heard and considered arguments of counsel with respect to an attack on the jurisdiction of that court to hear and determine this cause, the court entered a ruling and order, dismissing the cause; however, the ruling upon which this order was issued makes less than lucid the basis for the dismissal. It is unclear whether the grounds for dismissal were lack of subject matter jurisdiction, lack of personal jurisdiction of the necessary parties, or forum non conveniens. The circuit court found that there was jurisdiction over defendants, St. Louis Union Trust Co. and Guaranty Land Title Co. The court also found that this jurisdiction was sufficient to allow the court to order these defendants to pay over the trust corpus to plaintiff. The court found that it is “doubtful that such a notice [notice by publication] can be the basis for a personal judgment against” defendants, William H. Parker and his unknown heirs or devisees. The court did not find that it lacked jurisdiction of these latter defendants and it did find it had jurisdiction to enter an order for plaintiff, which finding would necessarily require a determination of the status of defendant, William H. Parker. Therefore it is not illogical to construe this ruling as finding proper subject matter jurisdiction.

Although tire court speaks in terms of a “lack of proper jurisdiction over all the necessary parties” in the order, there is no reference to necessary parties or forum non conveniens in the ruling. The court’s reasoning in the ruling, that “[a] judgment of this court would be subject to attack in the State of Missouri” and that Missouri is “the only forum where the rights of all can be decided and terminated with finality”, strongly indicates that the legal doctrine whose elements support the circuit court’s order is that of forum non conveniens.

In brief summary, it is that court’s opinion that the trial court entered its order dismissing this cause on the basis of the common law doctrine of forum non conveniens while finding, necessarily, that it had proper jurisdiction of both the cause and the parties.

The first issue to be resolved, therefore, is whether the courts’ order was properly based on forum non conveniens.

The doctrine of forum non conveniens was recognized in Illinois in the case of Whitney v. Madden (1948), 400 Ill. 185, 79 N.E.2d 593. The doctrine is grounded in equity and relies on a type of balancing technique which is found in equitable decisions. In general, most courts are reluctant to dismiss for forum non conveniens unless the factors considered balance heavily in favor of the defendants. Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673.

Of the many cases interpreting this equitable action in Illinois, very few relate to what should be contained within the defendant’s motion for dismissal when based on this ground.

In the case of Fender v. St. Louis S.W.R.R.Co. (1971), 49 Ill.2d 1, 273 N.E.2d 353, a showing that the action was brought in a specific forum for the purpose of frustrating, unduly burdening, or causing a great and unnecessary inconvenience to the defendant was not required before a motion to dismiss on forum non conveniens grounds will be granted. However, this case narrowed the scope of this holding to those cases brought under the FELA.

The Fender case indicates the trend away from the rather harsh requirement set forth in dictum in the case of Continental Casualty Co. v. Hartford Accident & Indemnity Co. (1960), 28 Ill.App.2d 177, 171 N.E. 2d 28. The court there criticized the motion to dismiss for not including the charge of harassment as a factor in an action to dismiss under forum non conveniens.

The Fender case also held that a proponent of such a motion is not required to support his motion with a comparative statistical analysis of calendar congestion in the original forum and in other jurisdictions if this factor was one brought up in support of the motion.

On the other hand, in the case of Lonergan v. Crucible Steel Co. of America, (1967), 37 Ill.2d 599, 229 N.E.2d 536, the defendants alleged that Illinois was not the most convenient forum, but did not state which forum would be better and did not support a second assertion of a serious backlog of cases with evidence as to the condition of the dockets. Further research indicated that the defendants did not claim an inability to defend in Illinois, nor did they claim that the defense of the action in Illinois would be vexing or harassing. The court retained jurisdiction.

With the case of People v. Donovan (1964), 30 Ill.2d 178, 195 N.E.2d 634, the Illinois courts have not required the intentional element of harassment to be present in a motion to dismiss under the forum non conveniens doctrine.

The Supreme Court, in the case of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, set forth some of the factors which would be acceptable in determining an action under forum non conveniens:

(1) Relative ease of access to sources of proof;
(2) Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; and
(3) Possibility of view of premises, if view would be appropriate.

Looking at the motion to dismiss in the present action, the grounds stated under the doctrine of forum non conveniens are:

One, both defendants are domiciled in the State of Missouri and the trust res is located in the State of Missouri;

Two, the testator’s will was probated in the State of Missouri; and

Three, judgment rendered in Illinois may not be given full faith and credit by the courts of the State of Missouri.

Since both defendants made appearances in the Illinois trial court, many of the factors claimed under forum non conveniens would be inapplicable here. Neither is there any allegation of vexation or harassment by the plaintiff upon the defendants in this action. Docket congestion has not been called into question. In light of the absence of those factors which would support the trial court’s decision, the dismissal under the doctrine of forum non conveniens cannot stand.

However, we find that the trial court properly dismissed the plaintiff’s complaint, for it did not allege sufficient facts upon which relief could be predicated.

In order for the plaintiff to state a cause of action in this case, it must establish that, at the time of the filing of the complaint, it has a definite, identifiable interest which, if the court would not act, it would be deprived of. This interest must be readily obtainable upon the action taken by the court.

The will of Charles H. Parker, dated November 28, 1925, provides as follows:

“Upon the death of my wife, my Trustee shall divide the property then constituting the trust estate into two equal parts, and shall pay over and distribute one of such parts to the Presbyterian Church at Carlyle, Illinois, and the other part to my brother, William H. Parker, if he is then living. In the event he is not living at the time of my wife’s death, his share of the trust estate shall be paid over and distributed to the Presbyterian Church at Carlyle, Illinois.”

The question arises as to what interests were obtained by the parties involved. The testator’s wife obtained a life estate. The plaintiff obtained a vested remainder in the one-half of the estate left directly to it after the death of the testator’s wife. The two interests which pose problems are the interest of William H. Parker and the interest of the plaintiff in that portion of the estate originally left, after the expiration of the life estate, to William H. Parker.

A remainder is a future interest created in favor of a transferee which can become possessory only upon the natural termination of a prior possessory freehold estate created by the grantor at the same time and in the same conveyance which created the remainder interest. A vested remainder is a remainder created in favor of a person in existence and ascertained who has a right of possession whenever and however the preceding estate naturally terminates. (Ruddell v. Wren (1904), 208 Ill. 508, 70 N.E. 751; McDonough County Orphanage v. Burnhart (1955), 5 Ill.2d 230, 125 N.E.2d 625.) However, a vested remainder may be defeated upon the happening of a condition subsequent. This seems the logical estate of William H. Parker. The conveyance would read: “To A for life, remainder to B and his heirs, but if B should fail to survive A, then to C.” Hill v. Hill (1914), 264 Ill. 219, 106 N.E. 262.

An executory interest is a future interest created in one other than the grantor which is not a remainder. An executory interest vests upon the happening of a condition or event and in derogation of a vested freehold estate. (Ashby v. McKinlock (1915), 271 Ill. 254, 111 N.E. 101; Blackstone v. Althouse (1917), 278 Ill. 481, 116 N.E. 154.) The estate of William H. Parker was a vested remainder subject to a condition subsequent. This estate was in fee simple. If William H. Parker did die before the death of the life tenant, then his remainder in fee, subject to a condition subsequent, would end before its natural termination. Hence, the plaintiff would have an executory interest in that portion of the property.

If it could be determined that William H. Parker died before the life tenant, then the condition subsequent would arise and the vested remainder would end, thereby vesting the plaintiff’s executory interest.

If it could be determined that William H. Parker died subsequent to the death of the life tenant, then the vested remainder would remain such, and any interest would pass to the heirs or devisees of said William H. Parker.

In its complaint, the plaintiff specifically stated that the relief which was requested was to decree that William H. Parker predeceased Emma Parker, the life tenant of the trust property.

The equity court can only make a determination of death by using the 7-year presumption of death.

“The rule of law is well established that the continuous absence of a person from his home or place of residence for seven years, during which period nothing is heard from or concerning him, raised the presumption of his death for all legal purposes. [Citations.]” McNaghten v. Northwestern Mutual Life Insurance Co., 318 Ill.App. 390, 400, 48 N.E.2d 200, 204.

However, in the absence of evidence, the 7 year presumption does not presume that death took place at any particular time. Apitz v. Supreme Lodge Knights & Ladies of Honor (1916), 274 Ill. 196,113 N.E. 63.

An examination of the Illinois cases indicates that the prerequisites which give rise to a presumption of death after 7 years of continuous absence are: (1) that the person whose death is in question has disappeared from his last known abode, domicile or place of residence; (2) that he has neither returned thereto nor communicated with those with whom he would naturally communicate, if alive, during the ensuing period of 7 years; (3) that diligent inquiry has been made at his last known place of abode of the persons who would naturally hear from him without obtaining information indicating that he is alive. Out of such proof, a presumption is rebuttable and may be disproved by competent evidence that the party so presumed to be dead is in fact alive. Carey v. Metropolitan Life Insurance Co. (1940), 305 Ill.App. 308, 27 N.E.2d 634; Piersol v. Massachusetts Mutual Life Insurance Co. (1931), 260 Ill.App. 578.

In order to determine what elements of the presumption are usually required at the pleading stages, an investigation into the Illinois law on the subject has revealed some constants which seem to appear in the complaint whenever the court has referred to them.

In Kennedy v. Modern Woodmen of America. (1910), 243 Ill. 560, 90 N.E. 1084, the complaint was referred to on page 564:

“The declaration, in substance, averred that James Kennedy, on the 13th day of December, 1898, suddenly and without explanation left and departed from his home, situated near Tuscola, in Douglas County, and that he has been unaccountably absent, and has never returned to his home or been heard of by the appellee although she has made diligent and continuous search for him ever since his disappearance, * * « and that by reason of his continued absence for seven years the law presumes said James Kennedy to be dead, * *

In Steen v. Modern Woodmen of America (1920), 298 Ill. 104, 105, 129 N.E. 546, the petition was extensively referred to by the court:

“* *' * on the 7th day of May, 1910, Albert F. Steen disappeared from his home in the city of Chicago and has been unaccountably absent ever since; that he left with the intention of returning the same day, but has never returned; that diligent and continuous search and inquiry have been made for him by appellant but she has been and is wholly unable to find or locate him; that on the 7th day of May, 1917, the absence of Albert F. Steen had continued 7 years, and that Albert F. Steen was presumed by law to be dead; * °

In McNaghten v. Northwestern Mutual Life Insurance Co. (1943), 318 Ill.App. 390, 392, 48 N.E.2d 200, the court referred to a very specific complaint:

* * that on December 11, 1926, the assured disappeared from his home and family at Farmer City, Illinois; that he wrote a postal card from Chicago to his youngest son on that date, but was never thereafter seen nor heard from by any member of the family, friends, acquaintances or other persons, so far as plaintiffs knew or were able to ascertain after diligent inquiry and effort to locate him; that * * * at the expiration of seven years and within the term of said extended insurance, the assured in fact died or became presumptively dead * *

The factors which seem to run uniformly throughout the cited cases are: (1) a specific date upon which the missing person disappeared and which is the date upon which the presumption began to run; (2) a description of the place from which the disappearance took place (some complaints were very specific and some rather general; however, all attempted to pinpoint the place from which the person presumptively dead had disappeared); (3) those persons who should have heard something from the missing person were described, if not the plaintiff himself; and (4) a statement that a diligent inquiry had been made to ascertain the whereabouts of the missing person.

The will of Charles H. Parker stated that his brother, at the time of the creation of the will, was living in Kentucky. This, it seems, was the last known abode of William H. Parker. However, the plaintiff’s complaint does not allege any date from which the 7-year presumption should operate, nor does it allege any inquiry into the last known abode of said William H. Parker. A court of equity cannot determine that a particular person has died before a particular time—the death of the life tenant—if facts are not alleged which support a last-known place of abode, and a last-known report that the missing person was at this said abode. Without these facts alleged, a court of equity cannot make a determination that the missing person is in fact dead, let alone that he died at a particular time. Hence, the plaintiff, under his present complaint, has failed to allege facts sufficient to state a cause of action for the relief requested. Upon a determination of such facts, and their proper allegation, we know of nothing that would bar filing a new action in which the court could determine its jurisdiction of the proper parties and subject matter, and, if jurisdiction exists, make a determination of the applicability of the presumption of death doctrine.

Our resolution of this issue makes it unnecessary to consider the other arguments which the parties have raised on this appeal.

Accordingly, the decision of the trial court is affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    George C. Shiaras, Plaintiff-Appellee, v. John Chupp, Defendant-Appellee—(State Farm Mutual Automobile Insurance Company, Defendant-Appellant). State Farm Mutual Automobile Insurance Company, Third-Party Plaintiff-Appellant, v. Country Mutual Insurance Company et al., Third-Party Defendants-Appellees.
    (No. 72-306;
    Second District
    April 15, 1974.

      Rehearing denied May 21, 1974.

      Gunner, Keller & Magdich, of Dixon, for appellant.
    William J. Sturgeon and George Nichols, both of Dixon, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal by defendant-third-party plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), from a declaratory judgment entered against it by the Circuit Court of Lee County. The sole question presented both in the trial court and on appeal is whether an automobile insurance policy issued by State Farm remained in force after .its expiration date even though the insured failed to pay the premium due. The trial court ruled that State Farm failed to “cancel” the policy as required under the terms thereof, and therefore, the policy was still in effect after the policy’s stated expiration date.

There is no dispute as to any of the material facts. State Farm issued an automobile insurance policy to John Chupp on June 8, 1970. The policy provided liability and other insurance for a 1963 CMC one-half ton pickup truck. The policy period was for a 6-month term from June 8, 1970, to December 8, 1970. The policy was renewed for a 6-month period extending the term of the policy from December 8, 1970, to 12:01 A.M. June 8, 1971.

On May 6, 1971, State Farm mailed John Chupp a notice indicating his premium payment was due on or before June 8,1971, but no payment of the -premium was made by June 8.

On June 11, 1971, 3 days after the expiration date, Chupp was sent another notice from State Farm which again informed him of the date payment was due and the amount due. This notice further stated:

“To have continuous protection make payment to the company or State Farm agent within ten days after the policy due date. If payment is not made within 10 days after the due date, but is made in less than 40 days, protection will be reinstated as of date payment is received by the company. * * *”

No payment was made within 10 days of the due date.

On June 18, 1971, John Chupp allowed George Shiaras to drive the pickup truck listed on the original policy. While operating this truck, Shiaras was involved in an accident with a motorcycle driven by Edward De Pauw.

After this accident Chupp mailed the premium payment to State Farm in an envelope postmarked June 21, 1971. He also notified a State Farm agent about the accident. The testimony, however, is not clear as to whether he did so before or after he sent in the payment. The premium payment was received by State Farm on June 22, 1971, and the new policy of insurance was issued to Chupp for the period of June 22, 1971, to December 8, 1971. State Farm re-computed the premium due for the shorter period of time and assessed the premium of 92.2% of the amount that should have been paid on June 8, 1971. This resulted in a $4 reduction in the premium. A check dated June 27, 1971, for $4 was mailed to Chupp and was cashed by him.

After De Pauw commenced suit for personal injuries in Lee County against Shiaras, Shiaras filed the complaint herein for declaratory judgment against John Chupp and State Farm in order to determine the rights of the parties under the State Farm insurance policy. Subsequently, State Farm filed a third-party complaint against De Pauw and Country Mutual Insurance Company, Shiaras’ insurance company. Although the complaint was commenced by Shiaras, it is clear that the real party in interest is the Country Mutual Insurance Company. If Chupp’s State Farm policy were still in effect at the time of the accident, State Farm would have to defend and provide coverage in the event De Pauw won his suit against Shiaras. However, in the event no coverage is afforded by State Farm because the policy had expired, Country Mutual would have to provide coverage for George Shiaras.

The pertinent part of the State Farm policy reads as follows:

“1. POLICY PERIOD:
The policy period shall be as shown under “Policy Period” and for such succeeding periods of six months each thereafter as the required renewal premium is paid by the named insured on or before the current policy period * * *. The policy period shall
begin and end at 12:01 A.M. at the address of the named insured as stated herein. The premium shown is for the policy period indicated in the declaration.”

On page 15 of the policy, the policy requires State Farm to give 30 days’ notice to its insured of its intention not to renew the policy. However, if the insured does not pay the premium (in this case pay the premium due on or before June 8) this notice provision has no effect and State Farm is not required to give the insured notice of the nonrenewal of the policy. Chupp, the insured, did not pay his premium on or before June 8, the expiration date. Therefore, under the terms of the policy, State Farm did not need to send a notice of its intention not to renew.

Insurance policies covering privately owned automobiles are subject to the Illinois Insurance Code of 1937 as amended in 1967 (Ill. Rev. Stat. 1971, ch. 73, par. 613 et seq.) The issue before us, therefore, is whether the Insurance Code requires State Farm to notify Chupp, the insured, in a particular manner of its intention not to renew his policy. The appellees, plaintiff Shiaras and third-party defendants De Pauw and Country Mutual assert that sections 143.3 and 143.4 of the Insurance Code (Ill. Rev. Stat. 1971 ch. 73, pars. 755.3 and 755.4) apply to the situation in question. Section 143.3 sets forth the grounds for the insurer’s cancellation of an existing policy (i.e., a policy which has been effective for 60 days or which is a renewal policy). One of the grounds listed for cancellation is “nonpayment of premium”. Section 143.4 sets forth the method by which a company may cancel an existing policy for the reasons stated in section 143.3. This section requires the insurer to notify its insured of the cancellation of the policy because of nonpayment of premium at least 10 days before cancellation. Such notice must state the reason for cancellation. As State Farm concedes that it had not notified Chupp in tire manner prescribed under section 143.4, the appellees argue that the policy did not terminate on June 8, 1971. We do not agree. These sections are not applicable to the case before us.

The legislature had intended that these two sections should only apply in cases where an insurer unilaterally terminates a policy which is then in effect before the end of the stated term of the policy. The legislature provided that these two sections should not apply in case of an insurer’s refusal to renew an existing policy at the end of its term, by expressly stating in both sections that “[njothing in this section shall apply to non-renewal”. “Renewal” is defined in section 143.2 of the Insurance Code (Ill. Rev. Stat. 1971, ch. 73, par. 755.2(b)) as,

“* * * ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; * *

In the instant oase, State Farm refused to extend the term of the policy. The facts before us, therefore, involve a case of nonrenewal. Consequently, the notice provision of section 143.4 does not apply.

Rather, the giving of a notice not to renew is governed by section 143.5 of the Code (Ill. Rev. Stat. 1971, ch. 73, par. 755.5). Under' this section an insurer must give its insured 30 days’ notice of its intention not to renew the policy. However, “This Section does not apply if the company has manifested its willingness to renew or in case of nonpayment of premium * * (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 73, par. 755.5.) Here, the insured did not pay the premium at the expiration date of the policy, June 8, 1971. Accordingly, under this section, State Farm is not required to send a notice of its intention not to renew 30 days before the expiration of the policy.

This section, however, does not give the insurance company the power to refuse to renew a policy because of nonpayment of premium without giving a notice of any kind. Clearly, the legislature’s intention in drafting these statutes is the protection of the insured from capricious and arbitrary actions of an insurer. Such actions taken without notice to the insured, even when reasonable, could leave a car owner uninsured for long periods of time while he attempts to secure insurance coverage from another company. The legislature intended that all insured motorists should have a reasonable opportunity to maintain continuous automobile liability insurance coverage. (Shore v. Coronet Insurance Co. (1972), 7 Ill.App.3d 782, 288 N.E.2d 887.) Consequently, an insurance company is under a duty to reasonably remind its insured that a premium is due. An insurance company cannot be permitted to avoid the notification requirements of section 143.5 by keeping silent and inducing the insured to forget to pay the premium. This reasoning is borne out by the decision in Shore v. Coronet Insurance Co., supra. The court in Shore held that an insurance company cannot avoid the notification requirements of section 143.5 by remaining silent throughout the term of the policy.

We hold, therefore, that a “case of nonpayment of premium” as used in section 143.5 and which is without definition in the Code, can occur only after an insurance company has given its insured a demand or notice stating that the premium is about to become due and the insured has then failed to pay the premium by the due date. It is not sufficient notice by itself, however, to have the premium due date buried deep within an unreadable insurance contract. The notice must be given in a manner which would reasonably remind the insured that his premium is due.

In the instant case, State Farm did reasonably notify the insured, Chupp, that his premium was due a month before the due date. Because State Farm sent such a notice to Chupp, Chupp’s failure to pay made this situation “a case of nonpayment of premium” within the terms of section 143.5. Therefore, State Farm did not need to further notify Chupp of its intention not to renew, and the policy terminated on June 8, 1971. As a result, State Farm did not provide insurance coverage for the truck of John Chupp on June 18, 1971, tire date of the accident.

We must note that we do not express an opinion on whether State Farm’s notice giving Chupp an additional 10 days to pay his premium extended the policy term for an additional 10 days absolutely (i.e., the policy covered Chupp for the added 10 days whether or not he paid the premium within the 10 days), or conditionally (i.e., the policy covered Chupp for the 10 days only if he paid the premium within the 10 days). Because the policy’s stated term ended at 12:01 on June 8,1971, a 10-day extension would extend the policy to 12:01 on June 18,1971. The accident, however, occurred after this additional time period at 7:48 P.M. on June 18, 1971. Therefore, the policy would not have been in force at the time of the accident whether the extension was an absolute extension or a conditional extension.

We must also note that nothing in this opinion should be construed as contrary to the Illinois Supreme Court opinion in Van Hulle v. State Farm Mutual Automobile Insurance Co. (1970), 44 Ill.2d 227, 254 N.E. 2d 457. In Van Hulle, the court held that where an insurance company has notice of a loss, forfeiture of a policy for nonpayment of a premium which occurred prior to the loss may be waived after the loss by the insurance company’s acceptance of the past due premium. (See also Horace Mann Insurance Co. v. Brown (1973), 13 Ill.App.3d 330, 300 N.E.2d 20.) While certain facts in the instant case could conceivably make out a case of waiver, the doctrine of waiver was neither pleaded nor proved in the proceedings below.

For the foregoing reasons the judgment of the Circuit Court of Lee County is reversed.

Reversed.

SEIDENFELD and T. MORAN, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    Jack Frick et al., Plaintiffs-Appellants, v. Central Township, Bond County, Defendant-Appellee.
    (No. 73-229;
    Fifth District
    April 8, 1974.
    Carl H. Stowe, of Greenville, for appellant.
    James E. Buchmiller, of Greenville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This case involves an election contest. On April 3, 1973, an election was held for township officers in Central Township, Bond County. Also there was a vote taken on the proposition: “Shall the prohibition of the sale at retail of alcoholic liquor be continued in that part of the Town of Central, Bond County, Illinois, lying outside the corporate boundaries of the City of Greenville, Bond County, Illinois.” Petitioners were not allowed to vote on the proposition because they lived within the corporate limits of the City of Greenville. In order to obtain a ballot on the proposition it was necessary to sign an affidavit that the voter lived outside the corporate limits of the City of Greenville. It seems that the reason for the affidavit is that all of the polling places were located within the city of Greenville.

The petitioners filed a contest of election which the court considered a petition for same. The defendant subsequently filed a motion to dismiss and a motion for summary judgment. After hearing oral arguments and receiving memoranda of authorities and citations, the trial court granted the defendant’s motion to dismiss. From this decision in the circuit court of Bond County, the petitioners appeal.

Section 17 of article IX of chapter 43 states, “Any 5 legal voters of any political subdivision or precinct in which an election has been held as provided for in this Act may within 10 days after the canvas * ” ” contest the validity of such election * * (Ill. Rev. Stat., ch. 43, par. 182.) The trial court held that to have proper standing to bring an election contest under section 17 the five legal voters of the political subdivision must be those persons entitled to vote on the referendum. The petition states that “Petitioners are residents and legal voters of the County of Bond, State of Illinois, and Greenville, Illinois in Central Township.” The court then found that because the petitioners lived within the corporate limits of Greenville they did not have the capacity to sue and in accordance with section 48(1) (b) of chapter 110 (Ill. Rev. Stat., ch. 110, par. 48(1) (b)), he dismissed the suit.

The real issue involved in this case is whether or not an unincorporated area of a township may hold an election and limit the eligible voters to those residents who reside in the unincorporated area of the township. Section 2 of article IX of chapter 43 controls the circumstances under which referendums on retail sales of alcoholic liquor shall be held. It states: “In each township or road district lying outside the corporate limits of a city, village or incorporated town, or in a part of a township or road district lying partly within or partly outside a city, village or incorporated town, the vote of such township, road district or part thereof shall be as a unit.” (Emphasis added.)

If the legislature did not intend to allow parts of townships rather than only the whole township vote on a proposition then there would be no purpose in the words “in a part of a township” being included in the statute.

A question similar to the case before us was decided in Illinois in 1938.

In People v. Smith, 368 Ill. 328, the supreme court held that there is no constitutional requirement that the legislature adhere to county or township lines in authorizing local option in certain area or districts, and it may authorize residents of non-contiguous territory to act as a unit voting upon the proposition of whether intoxicating liquor may be sold therein, as electors outside of incorporated districts should have the same right as electors in municipalities.

We need not pass upon the argument advanced by the petitioners that sections 2 and 9 of article IX of the Dram Shop Act are unconstitutional in that the words “or part thereof” do not harmonize with the bulk of the Dram Shop Act. (Ill. Rev. Stat., ch. 43, pars. 167 and 174.) This point was not raised at the trial level. However, as part of its decision in People v. Smith, supra, the court upheld the constitutionality of the procedure which provided for local option elections in portions of townships. The court said it was its duty to so construe acts of the legislature as to uphold their constitutionality and also that there was nothing in the constitution to prohibit such a procedure. The petition has not indicated any reason why we should depart from the holding in People v. Smith,

Thus that holding, being the last determination by the Illinois Supreme Court on this issue, is controlling. We therefore hold that the uncorporated area of Central Township, Bond County, may vote as a unit. Because the petitioners all reside in Greenville, they were not eligible to vote in this election and thus had no standing to sue. We therefore hold that the trial court pursuant to section 48(1) (b) of chapter 110 correctly dismissed the suit and we affirm that decision.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. L. C. Heady, Defendant-Appellant.
    (No. 71-331;
    Fifth District
    April 18, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, and Garrett C. Reuter, Senior Law Student, of counsel), for appellant.
    Byron L. Connell, State’s Attorney, of Mound City (Ralph J. Mendelsohn and Darrel L. Conley, both of State’s Attorney’s Support Unit, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from orders of the circuit court of Pulaski County denying defendant’s petition for a writ of habeas corpus and an amended post-conviction petition after an evidentiary hearing.

The defendant was charged with the offense of murder, and pleaded guilty on an information, after waiving indictment, and was sentenced to 14 to 20 years in the penitentiary. The defendant subsequently filed a petition seeking habeas corpus relief, which was denied. The defendant then filed the amended post-conviction petition. Separate appeals from each order have been perfected, and the causes consolidated in this court.

The defendant contends that the trial judge, in attempting to explain the right to a grand jury indictment, misstated the voting procedures of the grand jury and therefore the subsequent grand jury waiver was not knowingly and understandingly made.

The State correctly maintains that mere errors or irregularities which only render the proceeding voidable are not of a jurisdictional nature. (People ex rel. Skinner v. Randolph, 35 Ill.2d 589, 221 N.E.2d 279.) Habeas corpus relief has been denied, therefore, in a variety of situations even though a denial of constitutional rights has been involved. (People ex rel. Walker v. Twomey, 9 Ill.App.3d 544, 291 N.E.2d 833.) However, before the trial court can assume jurisdiction to try the defendant by information such defendant must waive his right to indictment by the grand jury. To be valid, such waiver must be knowingly and understandingly made. See Ill. Rev. Stat., ch. 38, par. 111—2(a).

In the instant case the court explained to the defendant that he had the right to be prosecuted by a grand jury indictment unless he knowingly and understandingly waived that right. During the court’s explanation, the following colloquy occurred:

“The Court: It is important that you understand, then you will know and understand what we are saying here. Let me go into this Grand Jury business. When your [sic\ brought in on a charge like this you have a right to a grand jury consisting of 23 people or 16 of whom may hear the evidence against you. Twelve of these men may file a true bill against you, if there’s evidence sufficient. You see the State’s Attorney would present to these people any evidence he may have with relation to this charge which might sustain this charge against you. If however, on the other hand he presented this evidence and 12 of the Grand Jurors vote in your favor there would be no true bill, and in that case there would be no prosecution on this charge. If they found for the State then they would return a true bill and there would be an indictment charge filed.
Do you understand up to this point what I’m talking about?
The Defendant: Yes, I think so.
The Court: You understand what a grand jury is all about. That’s a right you have and only you can waive it.
What is your desire in this matter, do you wish to have a grand jury, or are you willing for the Court to proceed on this complaint? Do you wish to waive that right?
The Defendant: Yes, I wish to waive the right to be indicted by grand jury.
The Court: Mr. Heady, do you have any questions this far?
The Defendant: No sir.”

The defendant interprets the court’s explanation of grand jury proceedings as implying that 12 grand jurors would have to vote in defendant’s favor for the grand jury not to return a true bill. That interpretation is contrary to section 112—4(c) of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 112—4(c)), and, according to the defendant, rendered the grand jury waiver void.

We find no merit in this contention. A reading of the entire statement by the trial judge reveals that the defendant was not told that less than 12 grand jurors could indict him. In fact, part of the court’s explanation to the defendant was:

“When your [sic] brought in on a charge like this you have a right to a grand jury consisting of 23 people or 16 of whom may hear the evidence against you. Twelve of these men may file a true bill against you, if there’s sufficient evidence.” (Emphasis added.)

The court correctly stated that it would require the vote of 12 grand jurors to indict the defendant whether the grand jury consisted of 23 or 16 people. The defendant was represented by counsel, but he personally and positively stated that he wished to waive indictment after the explanation, and personally stated he had no questions, before signing a waiver. At arraignment, before he was represented by counsel, he was told by the court that he'must be indicted before he could be tried unless he voluntarily waived that right. He said that he understood. He had subsequently requested a preliminary hearing, which he then waived, and was bound over.

We conclude that the trial court did not misadvise defendant and that defendant’s waiver of indictment by the grand jury was knowingly and understandingly made. Therefore, the trial court did have jurisdiction to try the defendant by information and the post-conviction relief and writ requested were properly denied.

Affirmed.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph E. Abernathy, Sr., Defendant-Appellant.
    (No. 72-190;
    Fifth District
    April 19, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael C. Dunston, Senior Law Student, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Joseph B. McDonnell, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of St. Clair County dismissing his petition for a post-conviction hearing filed pursuant to the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, pars. 122—1 through 122—7).

He first contends that defendant’s post-conviction petition raises an issue of constitutional magnitude in that defense counsel’s representation of him was of such quality as to amount to no representation at all.

Defendant claims that one Dixie Beever was a nurse in the hospital in which tire man who the defendant allegedly shot was brought for treatment. She allegedly heard the decedent say to his wife, “Why did you have me killed?” The defendant maintains that Dixie Beever told the defendant’s lawyer what she heard, that the lawyer neglected to use this evidence at trial and that he told Dixie Beever that he didn’t care * * if Joe Abernathy fried.” At the post-conviction hearing the

State’s Attorney argued that this allegation was not of constitutional magnitude and that in any case the issue was res judicata. The trial court refused to grant the defendant an evidentiary hearing and granted the state’s motion to dismiss the post-conviction petition.

In People v. Flanigan, 49 Ill.2d 321, 274 N.E.2d 75, the court stated:

“The alleged incompetencé of retained counsel ‘presents no constitutional question for consideration in a post-conviction proceeding unless representation is of such low calibre as to amount to no representation at all or reduce the court proceedings to a farce or a sham * * (49 Ill.2d 323.)

In Flanigan the defendant filed a post-conviction petition alleging that his retained counsel failed to adequately investigate and prepare for the case, and because of this failure, the defendant was induced to plead guilty. The trial court dismissed the petition without an evidentiary hearing even though the defendant had filed affidavits of purported witnesses allegedly supporting his position. The supreme court affirmed the dismissal without an evidentiary hearing because, accepting the defendant’s allegations as true, counsel’s advice to plead guilty was not “so utterly improvident as to constitute no representation at all.” In People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405, the court stated that incompetency of the magnitude required to raise a constitutional question in post-conviction proceedings is not established “where retained counsel fails to object to inadmissible evidence or fails to move to suppress certain evidence and makes other errors of judgment or trial strategy.”

We carefully reviewed the record when this case was before this court on direct appeal and we have again reviewed the trial record on this appeal. There is not an iota of truth in the statement that defendant’s lawyer did not honorably and vigorously defend defendant at all stages of the trial. Assuming that the nurse, Beever, did tell defense counsel what appellant contends she told him during tile trial, we still do not believe that his decision not to use her testimony in the trial would indicate that the calibre of representation the defendant received was of such low calibre as to present a constitutional question covering the calibre of defendant’s representation at the trial.

The defendant also contends that his court-appointed attorney on the post-conviction petition did not adequately represent him. This argument is based on Supreme Court Rule 651(c) which requires that:

“* * * The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petition filed pro se that are necessary, for an adequate presentation of petitioner’s contentions.”

Counsel for the defendant stated at the hearing on the dismissal of the post-conviction petition that he had corresponded with the defendant several times and that he had a lengthy conference with the defendant at the Menard Penitentiary. He also stated in that hearing that he had prepared the amended post-conviction pleadings. The petition claimed many errors in the admission of evidence, in the giving of instructions and in claimed inadequacies in the brief filed on behalf of the defendant in the direct appeal. It would have been impossible for defendant’s counsel to have made these contentions without having examined the report of proceedings at trial.

Since the record discloses that defendant’s counsel on his post-conviction petition did confer with defendant personally, did examine the record of proceedings at the trial and did prepare the amended post-conviction petition, Supreme Court Rule 651(c) has been substantially complied with. Defendant’s contention that he was not adequately represented in his post-conviction proceeding is without merit.

For the foregoing reasons the judgment of the circuit court of St. Clair County dismissing defendant’s petition is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    Charles Franklin Gimmeson, Plaintiff, v. Illinois Power Company, Defendant-Third-Party-Plaintiff-Appellant—(William A. Pope Company, Third-Party-Defendant-Appellee.)
    (No. 73-46;
    Fifth District
    April 19, 1974.
    Burroughs, Simpson & Wilson, of Edwardsville, for appellant.
    Wagner, Bertrand, Bauman & Schmieder, of Belleville, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Plaintiff Gimmeson in the original action obtained a jury verdict for $25,000 on a negligence theory from defendant Illinois Power Company. Illinois Power Company subsequently filed the present third-party action against Gimmeson’s employer, William A. Pope and Company, seeking common-law indemnity. Third-party defendant moved to dismiss the complaint and the motion was granted. Third-party plaintiff-appellant, Illinois Power, appeals that order to this court. The case is appealed only on the pleadings, appellant seeking reversal of the dismissal and remandment for trial on the merits.

In the original action Illinois Power filed a third-party complaint against its contractor, Fruin-Colnon Construction Company. Fruin-Colnon then filed a fourth-party action against William A. Pope and Company, its contractor. Illinois Power and Pope and Company then moved to sever the third and fourth-party complaints, which motion was granted.

There were two counts in the original complaint against Illinois Power —one for negligently fading to provide a safe place to work and another for allegedly violating the Illinois State Structural Work Act. The defendant obtained a directed verdict on the Structural Work Act count. Thus, judgment was rendered against it on a finding of negligence.

The issue presented to this court is whether or not the trial court erred in dismissing the appellant’s third-party complaint.

Appellee supports the trial court’s ruling with two arguments, the major one being that the trial court found active negligence on the part of Illinois Power, thus precluding it from instituting a third-party action, and another being that appellant’s delay of more than two years before filing a notice of appeal violates the philosophy of Supreme Court Rule 303 and that therefore appellant should be barred from contesting the ruling of the trial court.

We find little to support appellee’s second contention. While this has been a prolonged case, the record shows that Illinois Power kept the matter alive by legitimate means. Although appellant, Illinois Power, could have appealed as early as January, 1970, by asking the court to reconsider its ruling, Illinois Power has followed a course which it was legally entitled to follow. The case cited by appellee, Harris v. Sovereign Camp of the Woodmen of the World, Inc., 302 Ill.App. 310, affirmed, 374 Ill. 47, is not on point with regard to Rule 303 but merely states a general proposition.

The general concept of indemnification in a case such as this is based on the distinction between active and passive negligence. One who was only passively negligent may be indemnified by one who was actively negligent. The appellee contends that Illinois Power cannot be indemnified because it was found guilty of active negligence in the original action.

The main issue in this case, therefore, is whether Illinois Power has been found guilty of active negligence by virtue of the judgment in the original action. If it has been found guilty of active negligence, the action is barred.

Since Pope and Co. was not a party to the original action, its conduct was not in issue. Since any negligence is sufficient to sustain a verdict against a defendant, Illinois Power may have been negligent only to a minor extent. Thus, it seems to be consistent with the verdict against Illinois Power to say that the negligence of Illinois Power could have been only very minor compared to the alleged negligence of Pope and Co. On the face of the appeal, therefore, it seems that the third-party action should not have been dismissed, but rather tried in order to permit a jury to determine whether the active-passive standards are present.

This is the position the appellant takes.

The appellee maintains, however, that Illinois Power has been found guilty of active negligence. The appellee contends this could be found from two sources—the allegations of the complaint in the original action and the evidence presented in the original action.

There is some support for the proposition that active negligence can be found from a complaint in Lindner v. Kelso Burnett Electric Co. (1971), 133 Ill.App.2d 305, and Burke v. Skyclimber, Inc. (1973), 13 Ill.App.3d 498. Lindner involved the furnishing of a scaffold and Burke the construction of a scaffold. In both cases the court was careful to point out that simple failure to inspect may be described as passive, but the manufacturer or supplier of scaffolding may be the active tortfeasor. In both cases the court held there could be no idemniffcation because the third-party plaintiff’s alleged conduct could only be characterized as active negligence. Can the same be said about the conduct of Illinois Power? We think not. From the pleadings and evidence in the original action the conduct of Illinois Power could well have been characterized as only passive negligence. Thus, if Illinois Power is able to show that it was passively negligent and Pope and Co. was actively negligent, it is entitled to indemnification. There must be a trial of the third-party action for that determination to be made. We do not believe this is a case in which the pleadings or the trial record prevent a finding that there may have been only passive negligence on the part of appellant. The element of control of the premises and piling which caused the original plaintiff’s leg injury and which was the basis of the original action is critical. The relationship of Illinois Power and Pope and Co. and their respective duties with regard to the piling must be determined. It is conceivable that Pope and Co. will be found to have had a primary duty with respect to the condition of the premises and of that piling and Illinois Power a secondary duty. Since that finding would support indemnification, the third-party action should not have been dismissed. Blaszak v. Union Tank Car. Co., 37 Ill.App.2d 12.

Appellant argues that the third-party defendant should be estopped from claiming that appellant was “actively negligent” because of a conflict of interest and dual representation of the parties. Representation of appellant in the original action by the attorney now representing the appellee was at the request of and with the approval of Illinois Power Co. We find nothing in the record to show that Illinois Power Co. was not adequately represented and, in view of the fact that we believe the issue of active or passive negligence must be tried on its merits, fail to find any prejudice to the appellant. Hence, we do not believe that appellee should be estopped from raising the issue of active negligence in a trial of the cause.

Accordingly, the order of the Circuit Court of Madison County dismissing the third-party complaint of Illinois Power Company against the third-party defendant, William A. Pope Company, is reversed and the cause is remanded for a trial on the merits.

Reversed and remanded.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE CARTER Mr. JUSTICE EBERSPACHER,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dale A. Matychowiak, Defendant-Appellant.
    (No. 73-341;
    Fifth District
    April 19, 1974.
    EBERSPACHER, J., dissenting.

      Robert E. Farrell, Deputy Defender, and Robert E. Davison, Legal Director, both of Mt. Vernon, for appellant.
    Robert H. Rice, States Attorney, of Belleville, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Appellant was convicted of burglary in St. Clair County upon his plea of guilty. Pursuant to plea negotiations, appellant was sentenced to a term of from 2½ to years. The appeal here is based solely on appellant’s claim that the trial court did not comply with section 5—8—1(c) (3) of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1005— 8—1(c)(3)), which provides that one convicted of a Class 2 felony (burglary is such: ch. 38, par. 19—1(b)) shall be sentenced to a minimum term of 1 year “unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term, * ” The record includes nothing which could properly advise the court of these factors. Included in the record is a psychiatric report, with some background material about the defendant and, of course, information about die offense is contained in the plea proceedings. However, it appears that the sentence was absolutely based upon the plea agreement. The trial court stated to the defendant that he could accept the plea conditionally pending receipt of evidence in aggravation and mitigation, but also informed him that he would not do this; instead he would accept die plea outright.

The present case, however, presents a novel point. In some cases, the original sentence was imposed before January 1, 1973, the effective date of the Corrections Code. In the instant case, the ZVz-yeax minimum was part of the agreement concluded between appellant and the State. All of this and the acceptance of the guilty plea occurred after the enactment of the Code. It is evident that the parties had the Code in mind, unless the 1 to 3 ratio of the minimum and maximum sentences is coincidental. A direct conflict arises between the Code and die binding nature of plea bargains freely entered into.

The Supreme Court of the United States has recentiy discussed the importance of plea negotiations in Santobello v. New York, 404 U.S. 257, 30 L.E.2d 427, 92 S.Ct. 485. In the opinion by Chief Justice Burger, the Court expressed in dicta its continuing approval of proper plea negotiations and stressed that, since plea negotiations were binding upon the parties, they must be entered into fairly with equality on both sides. In Illinois, before the enactment of the Code, the Third Appellate District held a defendant bound to the sentence fairly agreed to by both parties. The court emphasized that under Rule 615(b) sentences are reviewable, but the court specifically refused to review plea agreement properly concluded. In People v. Earl, 14 Ill.App.3d 617, the same court reviewed a sentence of 6 to 14 years for armed robbery, the result of plea negotiations entered into prior to January, 1973. Because of the new Code, the defendant appealed. The court held that, since armed robbery is a Class 1 felony requiring a 4-year minimum, the 6-year minimum would stand. No mention was made of the requirement which is the question in the instant case. Thus, the case appears to support the stand for the superiority of plea agreements.

To allow plea agreement to take precedence over the statutory scheme seems to weaken the attempt to standardize sentences. Furthermore, while it is clear that it is the judge who imposes a sentence, the presence of a plea negotiation must certainly be influential. Other parts of the Code can be waived by the defendant. Section 5—3—1 made presentence reports mandatory, but a further part of that section allows waiver when “knowingly” made. Section 5—4—1 makes a sentencing hearing mandatory. It was clear that a defendant could waive such a hearing under the previous law (ch. 38, sec. 1—7(g)) both expressly and by failure to request it. (People v. McNeil, 123 Ill.App.2d 285.) This section was known as a “Hearing in Mitigation and Aggravation” which could be separate and apart. At the present time this type of hearing is included as part of section 5—4—1, the sentencing hearing. Under the Code, such a hearing is required even if the defendant does not request it (section 5—4—1, Commentary). Sentences cannot be imposed in the absence of knowledge of the character and history of the defendant.

Section 5—4—1 must be construed in light of the requirements of Section 5—8—1(c)(3), as there is a manifest logic to such a construction. The Council Commentary explaining the purpose and intent of section 5—8—1(c)(3) supports this view:

“The Judge is required to take regard of the nature and circumstances of the offense and the history and character of the defendant before setting a minimum term above the norms established by the Legislature in the statute * * *.”

The Illinois Unified Code of Corrections deems the sentence hearing mandatory. Section 5—4—1 states what the trial court shall do, not what the trial court may do. Likewise, the minimum term of 1 year for a Class 2 felony is mandated under section 5—8—1(c) (3), unless the court sets a higher minimum term after having considered the nature and circumstances of the offense and the history and character of the defendant. Nowhere in the Code is there an indication that a negotiated plea ipso facto can waive the requirements expressed by sections 5—4—1 and 5— 8—1(c)(3). It cannot be assumed that because the trial court set a higher minimum, it did consider the nature and circumstances of the offense and the history and character of the defendant. There must be a positive showing.

It is quite clear that a defendant cannot successfully enter into a negotiated plea pursuant to which he is sentenced to a minimum term in excess of one-third of the maximum term imposed. If, indeed, a negotiated plea can “waive” the trial court’s statutory duty of inquiry, it would seem that the negotiated plea could wave the one-third rule with just as much logic.

It is also evident that prosecutors must have some leeway in plea negotiations. The A.B.A. standards for pleas of guilty clearly accept recommendations of sentence modification or leniency as effective and proper negotiating tools (A.B.A. Standards 3.1(b)). This freedom is not without limits, however, and the primary one is that sentences are to be imposed by the court. The defendant must be so advised (Rule 402(a)), and the court must keep strict control over the procedures. But, if the unconscious effect of the enactment of the Corrections Code is to set 1 year (4 years for Class 1 felonies) in most plea negotiations as a minimum sentence, an important prosecutorial tool may be compromised. Likewise, strangely enough, it weakens plea agreements when the agreement lasts only as long as it takes the defendant to get to the appellate court.

The Code greatly affects sentences, and a defendant with a good background might be less likely to accept blindly a prosecutor’s recommendation if he knows that he might get a minimum sentence based on his record. On the other hand, a defendant with a poor background should know that a minimum sentence, 1 year in most cases, is not possible because of his record. However, the court may accept the result of the plea bargaining entered into by the State and the defendant. But, the court must be certain that the negotiations were entered into fairly with evenness on both sides, and this can only be done by conducting the sentencing hearing according to the statutes after the guilt has been determined. The trial court in this case made certain that the defendant was aware of the minimum term involved, but the defendant was not adequately informed that the court might impose more than the minimum because of the negotiated plea. In imposing more than the minimum, the court must tell the defendant that this is done because of “the nature and circumstances of the offense and the history and character of the defendant”.

The judgment of the Circuit Court of St. Clair County is affirmed, but the sentence imposed is vacated and the cause is remanded to the said court with directions that a sentencing hearing be held to determine if the defendant should receive more than the minimum term set by statute.

Judgment of conviction affirmed, the sentence vacated and cause remanded with directions.

G. MORAN, P. J. concurs.

Mr. JUSTICE EBERSPACHER,

dissenting:

I am of the opinion that we have properly disposed of this issue in People v. Edwards, 18 Ill.App.3d 379.

Supreme Court Rule 402, which recognizes and embraces negotiated pleas in the present form, became effective as of September 17, 1970. A previous version of the Rule had likewise recognized and embraced negotiated pleas. As are all Supreme Court Rules, it is a pronouncement of the applicable law in the case.

The Unified Code of Corrections is a legislative enactment made more than 2 years after the first version of Supreme Court Rule 402 recognizing and embracing negotiated pleas. It makes no specific reference to negotiated pleas, therefore whatever applicability the Code has to negotiated pleas must be implied from its general language, and if it modifies Rule 402 it must do so by implication.

I would point to the language of section 5—4—1(a) of the Code to call attention that it is applicable only, “after a determination of guilt" (Emphasis supplied). In a negotiated plea situation the defendant confesses guilt, and his guilt is not determined by the court. Further examination of that section leads me to conclude that its drafters did not have a negotiated plea situation in mind, and as a result I would not consider section 5—4—1(a) applicable to a situation in which the court had accepted the negotiated plea.

In a negotiated plea situation, a defendant confesses his guilt in reliance on what the defendant considers as concessions to him, being either fulfilled or promised by the State. It is he who has voluntarily considered the nature and circumstances of the offense and the history and character of the defendant, and exercised his choice to avoid standing trial and to avoid having those factors considered by some one else in the determination of the sentence. In cases in which the defendant agrees by negotiation to a higher minimum than should be imposed if the nature and circumstances of the offense and his history and character does not warrant a greater minimum than is provided under section 5— 8—1(c)(3), it is quite obvious that defendant has chosen to confess with the hope of the trial court accepting his plea with a minimum of consideration of those factors. I do not agree that in such a negotiated plea situation the trial court must, in imposing more than the minimum, tell the defendant that this is done because of the nature and circumstances of the offense and the history and character of the defendant, when in fact the defendant has considered those things and concluded that it would be beneficial to him to accept more than the minimum in view of the nature and circumstances and his background.

A defendant who negotiates a plea realizes that a court can impose more than the bare minimum provided by the Code, or he would not negotiate a greater minimum than is therein provided.

As a result I would affirm.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vernon McConnell, Defendant-Appellant.
    (No. 73-359;
    Fifth District
    April 19, 1974.
    CREBS, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    John H. Ward, State’s Attorney, of Taylorville, for the People.
   PER CURIAM:

The defendant was indicted for the offense of forgery, pled guilty, to that offense and petitioned the court for probation. The plea was not negotiated. A sentencing hearing was held, and the court denied probation and sentenced the defendant to a minimum of FA and a maximum of 6 years in the penitentiary.

The defendant’s sole contention on appeal is that the minimum sentence should be reduced to 1 year so as “to place the bust in the parole authorities anticipated by the enactment of the Unified Code of Corrections.” Ill. Rev. Stat., ch. 38, sec. 1001—1—1 et seq.

The presentence report reveals that the defendant, who was 21 years old at the time of the alleged offense, has been in constant trouble with the law since he was 17. On June 23,1969, the defendant was adjudicated a delinquent minor and was placed on probation for 1 year. The defendant was subsequently charged with possession of alcoholic liquor by a minor. He pled guilty and was fined. On September 22, 1969 the defendant pled guilty to the charge of criminal damage to property and was fined. One month later the defendant pleaded guilty to obstructing justice. The court revoked probation and sentenced the defendant to serve 6 months at the Illinois State Farm.

On December 21, 1971, the defendant was charged with theft under $150. He pleaded guilty and was placed on probation for 2 years. In June, 1971, the defendant pleaded guilty to disorderly conduct and was fined. Also in June, 1971, he pleaded guilty to theft under $150 and was sentenced to spend 30 days in the county jail.

On April 5, 1972, the defendant entered a plea of guilty to the charge of attempted deceptive practices and was fined. In August, 1972, the defendant was sentenced to a 6-month term at the State Farm pursuant to his plea of guilty to deceptive practices. In September, 1972, the defendant pleaded guilty to leaving the scene of an accident and received a 6-month term at the State Farm. He was sentenced to still another 6-monfh term in October, 1972, pursuant to his plea of guilty to theft under $150. The 3 sentences of 6 months imposed in 1972 were to run concurrently. Finally, on June 26, 1973, the defendant pleaded guilty to the charge of forgery.

Given the defendant’s prior record, we could not conceivably determine that the Circuit Court of Christian County abused its discretion in imposing a minimum sentence of 1 Yz years upon the defendant.

Judgment affirmed.

Mr. JUSTICE CREBS took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Corliss E. Back, Defendant-Appellant.
    (No. 73-237;
    Fifth District
    April 22, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael J. Rosborough, Assistant Appellate Defender, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahimann, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On February 20, 1973, two indictments were filed in St. Clair County charging the defendant with a total of four counts of armed robbery. One indictment charged three counts of armed robbery, the other charged a single count.

On March 2, 1973, the defendant was arraigned on two separate occasions, one arraignment for each indictment. The defendant plead not guilty in each case.

On April 3, 1973, the defendant sought to withdraw those pleas of not guilty and to enter a plea of guilty to the charges of both indictments, pursuant to plea agreement.

By the terms of the agreement the State would recommend a sentence of from 4 to 6 years on each of the four counts of armed robbery, such sentences to run concurrently.

After admonishing and informing the defendant of certain consequences of a guilty plea, the trial court accepted such pleas and sentenced the defendant to the Department of Corrections of the State of Illinois according to the plea agreement.

On appeal the defendant maintains inter alia that Supreme Court Rule 402(a)(2) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2)) requires the trial court to inform the defendant of the possibility of consecutive sentences where such exists. Rule 402(a)(2) provides as follows:

“The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: * « # the minimum and maximum sentence prescribed by law, including, when apphcable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; # # s »

The defendant directs us to People v. Zatz, 13 Ill.App.3d 322, as holding that the court must inform the defendant of possible consecutive sentences. The court in Zatz discussed the case of People v. Reed, 3 Ill.App.3d 293, 278 N.E.2d 524, where the court found substantial compliance with Rule 402 because although defendant was not informed of the possibility of consecutive sentences, he had entered a negotiated plea and knew the sentence to be imposed. The court went on to say: “Reed is distinguishable from Zatz in that Zatz did not enter negotiated pleas nor is there any indication in the record that he knew of the sentence to be recommended by the State’s Attorney.” In the case at bar the defendant had entered a negotiated plea and knew in advance what the sentence would be. Thus under the reasoning of Zatz the failure to inform him of possible consecutive sentences standing alone did not constitute reversible error.

The defendant also contends that the court failed to admonish the defendant concerning the possible minimum and maximum sentence as required by Supreme Court Rule 402(a)(2). The record reveals that the court made the following admonishment concerning the possible sentence:

Q: “That, normally, the penalty for the crime of armed robbery, which is a felony, first class, would be not less than four years and upward for an indeterminate sentence, do you understand that?
A: Yes.

In the case of People v. Fairchild, 133 Ill.App.2d 875, we reviewed among other cases People v. Terry, 44 Ill.2d 38, where the admonition was that the penalty for burglary was an indeterminate sentence in the penitentiary of not less than 1 year was held insufficient to satisfy the requirement. We then concluded that the admonition in Fairchild was also insufficient. The admonition consisted of * * one convicted of BURGLARY is sentenced to an indeterminate period at the State Penitentiary or the Department of Corrections for an indeterminate period of a minimum of one year, and the Court can fix the minimum and maximum. Do you understand that? The defendant replied, Tes, Sir/ ”

The State points out that in Fairchild the plea was not negotiated. We said in People v. Buck, 7 Ill.App.3d 758, that we rejected such an argument.

Pursuant to our decision in People v. Buck, supra, we hold that the failure to inform the defendant the possible extent of the maximum sentence violated the requirements of Rule 402(a)(2) and in this case constituted reversible error. Because our decision on this issue is dis-positive of the case we need not consider the other issues raised by the defendant.

Reversed and remanded.

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


text:
      In re Estate of Lester H. Lewis, Deceased—(Paula Sweat, Adm’rx, Petitioner-Appellee, v. Doris Leola Dale, Guardian, Respondent-Appellant.)
    (No. 73-412;
    Fifth District
    April 23, 1974.

      Hancock & Ferguson, of Harrisburg, for appellant.
    Boswell & Ferguson, of Harrisburg, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Lester H. Lewis died intestate leaving an estate of roughly $26,000. Decedent left no surviving spouse, being divorced, but is survived by one minor child and two children who have reached majority. Under the divorce decree, Steven, the minor, had been receiving $10 per week from the decedent.

A petition was filed by the administrator of the estate to set the allowance afforded by the Probate Act (Ill. Rev. Stat., ch. 3, sec. 179). The trial court found the minor son was entitled to an allowance of $1000 for his support for 9 months, plus an amount equal to the child support for which the decedent would have been obligated from the date of the hearing until the child’s 18th birthday, to wit: 116 weeks at $10 per week or $1,160. Therefore, the total award was $2,160.

Appellant, guardian of the minor child, asserts that the child should have been granted at least $6,000 under section 179 of the Probate Act. The important language of this section is:

“If a deceased resident of this State leaves no surviving spouse, there shall be allowed to all children of the decedent who were minors at the date of death * * * such a sum of money as the court deems reasonable for the proper support of such children * * * in a manner suited to the condition in life of such children and to the conditions of the estate. The award shall in no case be less than $1000 for each such child, together with an additional sum not less than $5000 which additional sum shall be divided equally * *

It is appellant’s position that section 179 of the Probate Act is plain and unambiguous and needs no rules of construction. The appellee’s position is that the courts are invested with discretion and the court is to fix the award in light of the condition of the estate and needs of the minor child.

There is no doubt in this court’s mind that section 179 must be followed along the lines suggested by the appellant. If the deceased leaves no surviving spouse but there are minor children surviving, the court must leave $1000 for each minor child for the period of 9 months after the death of the decedent, plus not less than $5000 to be equally divided or apportioned among such children as the court directs. The discretion of the court is that it may leave more than the amount specified in the statute. There is no interpretation whereby the court leaves less than this amount as a child’s award if the money exists in the estate.

The support order in an old divorce decree is of no legal effect after tire death of one of the parties. The support order at the death of Lester Lewis became a nullity and unenforceable against his estate except for those amounts which had accrued prior to the date of his death. The fact that decedent had been obligated to pay $10 a week in child support is of no moment in this case. None of the cases cited by appellee are directly on point and no relevant cases construing section 179 have been found.

In this case, the statute shows a legislative intent to place a minimum limit on the award, regardless of the condition of the estate. The Circuit Court of Saline County was bound to follow section 179 of the Probate Act and award the sums of $1000 and $5000 to the minor child for a minimum award. Therefore, the order of December 7, 1973, is reversed insofar as it only awarded $2,160 instead of the minimum $6000 required by section 179 of the Probate Act, and the cause is remanded to award the minor a sum of not less than $6000.

Reversed and remanded with instructions.

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


author: Opinion by Mr. PRESIDING JUSTICE BURKE.

text:
    Arlene Blitenthal, Plaintiff-Appellant, v. Faye Dressler, DefendantAppellee.
    (No. 56425;
    First District (1st Division)
    December 28, 1973.

      Rehearing denied April 23, 1974.

      Shapiro, Kreisman & Epstein, of Chicago (David S. Kreisman, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Dennis J. Horan, and James M. Gillespie, of counsel), for appellee.
   Opinion by Mr. PRESIDING JUSTICE BURKE.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Armstrong Chemcon, Inc. et al., Petitioners, v. The Pollution Control Board, Respondent.
    (No. 55951;
    First District (4th Division)
    February 20, 1974.

      Rehearing denied April 18, 1974.

    Edward F. O’Toole, Henry L. Pitts, W. Gerald Thursby, Lawrence M. Gill, and Clifton A. Lake, all of Chicago (O’Toole, Westrick & Harrison, and Hackbert, Rooks, Pitts, Fullagar & Poust, of counsel), for petitioners.
    William J. Scott, Attorney General, of Chicago (Joseph V. Karaganis, Harvey M. Sheldon, and Lee A. Campbell, Assistant Attorneys General, of counsel), for respondent.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Petitioners are a group of paint manufacturers and suppliers seeking initial judicial review in this court, pursuant to section 29 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1029), of the validity and application of the Illinois Pollution Control Board’s regulation R70—5, limiting discharges of mercury to Illinois waters. Said section 29 provides:

“Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act [ch. 111½, par. 1041].”

Regulation R70—5 establishes (1) a water quality standard applicable to all waters of the State, and (2) an effluent standard applicable to all discharges into those waters and into all sewers within the State. Both the water quality standard and the effluent standard limit the maximum permissible concentration of mercury to 0.0005 parts per million (equivalent to 0.5 parts per billion). Pursuant to the water quality standard, Illinois waters may not contain concentrations of mercury in excess of the 0.5 parts per billion (hereafter “ppb”) standard. Pursuant to the effluent standard no one may discharge into Illinois waters or sewers any effluent containing mercury in concentrations exceeding the 0.5 ppb standard.

On August 19, 1970, the Illinois Pollution Control Board authorized public hearings pursuant to section 28 to consider the adoption of proposed regulation R70—5, dealing with the discharge of mercury into the waters of the State. Hearings were held as prescribed by the Environmental Protection Act at several locations throughout the State, at which hearings testimony in support of and in opposition to the proposed regulation was offered by all persons wishing to do so. As a result of such hearings, the Board adopted the final draft of regulation R70—5 on March 31, 1971.

The issues presented for review are:

(1) Did the Board exercise its rule malting authority in an arbitrary and capricious manner in promulgating regulation R70—5?
(2) May the Board lawfully promulgate a regulation affecting discharges to sewers?

Petitioners urge that the regulation is not supported by evidence in the record. It does contain objections to the regulation from representatives of paint and varnish manufacturing companies and chemical corporations. Leonard G. Goldwater, M.D., from Duke University Medical Center, was presented by Daniel S. Ring, who appeared at the hearing on behalf of the National Paint, Varnish and Lacquer Association. Goldwater testified that he was distressed to hear one of the speakers say that mercury was toxic in all forms, and that this is absolutely not true.

F. C. Gaugash, Director of Environmental Control, Sherwin Williams Company, stated:

“Our company would be affected by the proposed regulation at one part per billion because some of our effluent from our paint manufacturing when we wash out a tank or a latex product at the time of discharge is in excess of one part per billion. * * * In our particular instance mercury is something that our supplier adds to the latexes before they are shipped to us. * * * I think there are substitutes being developed. I do not think they are available today.”

We are mindful of the statutory provision that, “The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct” (Ill. Rev. Stat. 1971, ch. 110, par. 274). We are also mindful that the rule has also been declared to require that the “opposite conclusion must be clearly evident” before the administrative decision will be held contrary to the manifest weight of the evidence (Legones v. License Appeal Commission, 100 Ill.App.2d 394, 241 N.E.2d 499; Wolbach v. Zoning Board of Appeals, 82 Ill.App.2d 288, 226 N.E.2d 679).

Angelí D. Sidio, Director of National Field Center and Federal Water Quality Administration, testified: “Mercuric compounds such as those found in fish and other animals concentrate in the human brain where cells are destroyed and neuro-toxicity develops. Very small quantities of mercuric compounds have a devastating effect on the human nervous system. The World Health Organization has suggested a maximum of .05 parts per million in food and the United States Food and Drug Administration has recommended and the equivalent Canadian Agency has established a limit of 0.5 parts per million in fish.” He also stated: “When mercury goes into a stream it does not degrade, it converts to more toxic forms * * * and that once mercury goes into a stream or lake it

doesn’t disappear or degrade, but it will convert to more toxic forms. This does not mean that metallic mercury, or other less toxic forms of mercury, do not change form. Although some contaminants are converted by biological processes to less harmful or even harmless substances, in the case of mercury and its compounds, the conversion that occurs is in the direction of greater, not less, toxicity, i.e., towards highly toxic methyl mercury.”

John Martin Wood, Associate Professor of Biochemistry in the School of Chemical Sciences at the University of Illinois, after describing and explaining effects of mercury concentration, concluded:

“The real problem is not the total mercury concentration, but how much of this mercury is methalmercury, because methalmercury is far more toxic than organic mercury. There is a relationship between the amount of inorganic mercury that is being put into rivers and streams and eventually finishes up as methalmercury. The prohibition should, however, prohibit not only the discharge of methalmercury, metallic mercury, but also the discharge of mercury in any form or in any of its compounds.”

Neil F. Hartigan testified that he was the General Attorney for the Chicago Park District and a member of the Lake Michigan and Adjoining Land Study Commission and said as follows:

“We agree with the proposed standard to the extent that it is designed to restrict discharges into the lake water itself to a mercury concentration equal to the background level found on the lake. The Lake Michigan and Adjoining Land Study Commission is submitting an informational brief of this policy and position. The highlights of that brief are the following:
1. Mercury is a highly toxic substance.
2. Mercury is currently being found in the lake and in all likelihood additional mercury can only add up to the likelihood and scope of such dangers.”

The mercury regulation R70—5 is not contrary to the manifest weight of the evidence. This regulation, like a statute, enjoys a presumption of validity. (People v. Kueper, 111 Ill.App.2d 42, 249 N.E.2d 335.) The authority of the Board to adopt this water quality and standard is clearly expressed in the statute (Ill. Rev. Stat. 1971, ch. 111½, par. 1011) which provides:

“It is the purpose of this Title to restore, maintain and enhance the purity of the waters of this State in order to protect health, welfare, property ,and the quality of life, and to assure that no contaminants are discharged into the waters without being given the degree of treatment or control necessary to prevent pollution.”

Having considered the testimony of all the witnesses contained in the record of this appeal, the briefs and oral arguments of counsel, we conclude that the mercury regulation R70—5 is not contrary to the manifest weight of the evidence.

Petitioners also urge that the Board does not possess the power to regulate discharges into sewers; that it has exceeded its regulatory jurisdiction and that the construction urged by the Board to support its jurisdiction over sewers would result in an unconstitutional delegation of legislative authority. We do not agree. Section 2(b) of the Environmental Protection Act states as follows:

“It is the purpose of this Act * * * to establish a unified, state-wide program supplemented by private remedies, to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.” (Ill. Rev. Stat. 1971, ch. 111½, par. 1002(b).)

Section 11 of the Act states:

“It is the purpose of this Title to restore, maintain, and enhance the purity of the waters of this State in order to protect health, welfare, property, and the quality of life, and to assure that no contaminants are discharged into the waters without being given the degree of treatment or control necessary to prevent pollution.” (Ill. Rev. Stat. 1971, ch. 111½, par. 1011.)

Section 13 of the Environmental Protection Act contains this language:

“The Board pursuant to procedures prescribed in Title VII of this Act, may adopt regulations to promote the purposes of this Title. Without limiting the generality of this authority, such regulations may among other things prescribe:
# # #
(b) Effluent standards specifying the maximum amounts or concentrations, and the physical, thermal, chemical, biological and radioactive nature of contaminants that may be discharged into the waters.” (Ill. Rev. Stat. 1971, ch. 111½, par. 1013(b).)

Waters are defined in section 3(o) of the Environmental Protection Act as:

“* * * all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this State.”

It appears to us that the above language confers express authority upon the Board to regulate discharge to sewers.

We also add that the language of the statute referred to above by necessary implication authorized the Board to regulate discharges into sewers necessary to secure, preserve and promote public health.

We find no merit in the petitioners’ contentions and therefore we sustain the validity of the mercury regulations.

Regulation R70—5 approved.

BURMAN and DIERINGER, JJ., concur.