author: JUSTICE McLAREN

text:
    CHARTER BANK AND TRUST OF ILLINOIS, Plaintiff, v. EDWARD HINES LUMBER COMPANY, Defendant-Appellee (Joseph M. Giampa et al., Plaintiffs-Appellants; Mark Sisson et al., Defendants).
    Second District
    No. 2—91—1095
    Opinion filed August 14, 1992.
    Rehearing denied October 7, 1992.

      Andrew B. Spiegel, of Wheaton, for appellants.
    Thomas A. Eckhardt and John W. Demling, both of Demling & Eck-hardt, of Glen Ellyn, and Daugherty & Addison, of Itasca, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs Joseph Giampa and Robert Walcott (plaintiffs) appeal the judgment of the circuit court of Du Page County for foreclosure of a mechanic’s lien in the amount of $25,791.90 in favor of defendant Edward Hines Lumber Company (Hines). Plaintiffs contend that (1) Hines forfeited its mechanic’s lien by failing to comply with section 34 of the Mechanics Lien Act (Act) (Ill. Rev. Stat. 1989, ch. 82, par. 34); (2) Hines is bound by its admission that its interest in the property was inferior to that of plaintiffs’ predecessor in title; and (3) the court erred in determining the amount of the lien.

Plaintiff Charter Bank & Trust (Charter) initiated this action by filing a complaint for mortgage foreclosure against Mark Sisson. Sis-son was the owner of and general contractor for a large single-family home in Itasca. Hines and other mechanics’ lien claimants were named as defendants.

Charter filed its complaint February 7, 1990, and Hines was served with summons through its agent on March 14, 1990. Hines filed its appearance and answer April 12, 1990. Paragraph 3 of the answer states in relevant part:

“As to the allegations of 31, this defendant asserts that it has an interest in the subject real estate as of July 26, 1989, pursuant to the Memorandum of Judgment recorded on that date as Document No. R89—089641. Defendant acknowledges that its interest is subordinate to the interest of plaintiff, and asserts that its interest is superior to any interests which are unrecorded or were recorded after July 2, 1989. (A copy of Memorandum of Judgment is attached hereto as Exhibit A.)”

The memorandum of judgment was obtained in the previous case of Edward Hines Lumber Co. v. Mark Sisson & Randall Hills Venture, No. 89—L—1420, in the amount of $34,861.73.

On June 18, 1990, Hines filed a motion to amend its answer and a proposed amended answer, as well as a counterclaim to foreclose its mechanic’s lien. The counterclaim alleged that Hines had provided materials to Sisson at the subject premises and that $35,811.19 remained due and owing therefor.

On July 3, 1990, the court granted Charter leave to file an amended complaint. The attorneys who had represented Charter filed the amended complaint, on behalf of the substituted plaintiffs, Giampa and Walcott, which alleged that Giampa had obtained an assignment of the mortgage from Charter and had in turn assigned a one-half interest to Walcott. The other allegations of the amended complaint were virtually identical to those of the original pleading.

The court’s July 3 order granted Hines 21 days to answer or otherwise plead to the amended complaint. On July 9, 1990, Hines filed its answer and counterclaim. Paragraph 3 of the amended answer referred to both the memorandum of judgment and the mechanic’s lien, but did not state whether either or both of these interests were superior to Charter’s interest. However, in paragraph 11 of its counterclaim, Hines alleged that its mechanic’s lien was superior to Charter’s interest in the premises.

The court entered a judgment of foreclosure and sale on the mortgage foreclosure complaint on September 13, 1990. Issues regarding the priority of mechanics’ lien claims were reserved for further proceedings. The court subsequently set Hines’ mechanic’s lien claim for trial on April 30, 1991.

When the case was called for trial, plaintiffs’ attorney, Andrew Spiegel, stated that he was ready to proceed. He added that there was “a legal matter that precludes them from proceeding with their claim.” Spiegel argued that Hines was bound by the alleged admission in its original answer that its interest was subordinate to Charter’s. Hines’ attorney contended that the issue should have been raised by way of a motion to dismiss or for summary judgment. The following colloquy then occurred:

“THE COURT: I have no ruling to make on a non-motion. You have to make motions and they have to be in proper form and you have to comply with the local rules.
MR. SPIEGEL: Okay. We will reserve that issue.
THE COURT: I won’t reserve anything. The case will go to trial unless it is settled and I get an order dismissing it.”

The trial proceeded.

At the close of the evidence, the trial court directed the parties to submit their closing arguments in writing. Following receipt of the last submission, the court would issue its letter ruling.

Plaintiffs filed a motion for a “directed verdict [sic]” in addition to their closing argument. Plaintiffs contended in their motion that Hines was bound by its previous admission that its interest was inferior to that of Charter. Plaintiffs further argued that the lien was invalid because Hines had failed to comply with section 34 of the Act. Plaintiffs maintained that the summons served on Hines in the original foreclosure action acted as a notice pursuant to section 34, which required Hines to thereafter file its lien claim within 30 days or forfeit the lien.

The motion was originally set for hearing July 2, 1991. On that date, the parties entered into a stipulation that “the total lien amount of Hines’ claim is $25,791.90 plus interest as set forth in the Dlinois Mechanics’ Lien Act.” On July 18, the court issued its letter ruling finding in favor of Hines in the amount of $25,791.90. Subsequently the court entered a judgment order which, inter alia, provided for interest on the judgment at the rate of 10% commencing March 17, 1988.

On August 1, 1991, plaintiffs filed a post-trial motion to vacate or modify the judgment. They contended that the evidence did not support a finding that Hines was entitled to judgment in the amount of $25,791.90. They further argued that Hines was bound by the amount of the judgment it had previously obtained against Sisson in case No. 89—L—1420. Plaintiffs contended that when certain payments Sisson had made were subtracted from the amount of that judgment, the most Hines could recover was $1,484.47. Plaintiffs also challenged the calculation of the interest on the lien.

The court denied plaintiffs’ post-trial motion, and plaintiffs filed a timely notice of appeal.

Plaintiffs’ first contention on appeal is that Hines forfeited its lien by failing to comply with section 34 of the Act. Section 34, entitled “General provisions,” provides as follows:

“Upon written demand of the owner, lienor, or any person interested in the real estate, or their agent or attorney, served on the person claiming the lien, or his agent or attorney, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed within 30 days thereafter, or the lien shall be forfeited. Such service may be by registered or certified mail, return receipt requested, or by personal service.” Ill. Rev. Stat. 1989, ch. 82, par. 34.

Plaintiffs contend that the summons in the foreclosure suit was a section 34 notice and that Hines forfeited its lien by failing to file its counterclaim to foreclose its mechanic’s lien within 30 days after receipt. Hines responds that plaintiffs waived this contention by failing to raise it until their motion for a directed verdict at the close of all the evidence. Alternatively, it contends that a summons in a pending foreclosure suit is not the equivalent of a section 34 notice. Finally, Hines maintains that it complied with the letter of the law by filing its answer within 30 days of receipt of the summons.

We find Hines’ third contention to be dispositive of this issue. The plain language of the section requires that “[u]pon written demand *** requiring suit to be commenced *** or answer to be filed in a pending suit, suit shall be commenced or answer filed within 30 days thereafter.” (Ill. Rev. Stat. 1989, ch. 82, par. 34.) The summons required only that Hines file an answer within 30 days. It is not disputed that Hines received the summons on March 14 and filed an answer on April 12. Hines complied with the statute. Nothing in section 34 specifies any particular content for the answer which is filed. More importantly, nothing in the language of the section required that Hines assert its lien within 30 days when the summons required only the filing of an answer. When Hines filed its answer April 12, it did all that was required to preserve the lien. It subsequently properly obtained leave of court to file its counterclaim. Plaintiffs do not suggest that the filing of the counterclaim was otherwise untimely.

Plaintiffs next contend that Hines is bound by its admission in its original answer that its claim was subordinate to that of Charter. Hines again responds that plaintiffs waived this issue by raising it for the first time orally on the morning of trial. In the alternative, Hines contends that its alleged admission referred only to the memorandum of judgment and not to its mechanic’s lien. Again, we agree with Hines.

Plaintiffs correctly note that a party’s prior inconsistent sworn statements are formal binding statements of fact. Once a party has made a sworn statement of fact, as in a verified pleading, he cannot contradict such a factual allegation. (Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 494; Waldorf v. Marlas (1977), 56 Ill. App. 3d 358, 362.) Hines did state in its original, verified answer that its “interest is subordinate to the interest of plaintiff.” It is clear, however, that this statement refers solely to the judgment obtained in the prior case, not to Hines’ mechanic’s lien claim. Both the sentence before and the sentence after the quoted statement refer to the memorandum of judgment. Paragraph 3 of the answer does not even refer to the mechanic’s lien claim. Later, when it filed its counterclaim, Hines expressly alleged that the mechanic’s lien had priority over Charter’s mortgage. (See Ill. Rev. Stat. 1989, ch. 82, par. 16.) While Hines’ answer might have been more artfully drafted, when read in context, it is clear that it admitted only that its interest pursuant to the memorandum of judgment was subordinate to the prior mortgage.

Even if Hines’ admission were to be interpreted as encompassing its mechanic’s lien claim, Hines would not necessarily be bound by it. A party is not bound by admissions regarding conclusions of law, since it is the province of the trial court to determine, based upon properly admitted evidence, the legal effect of the facts adduced. (Premier Electrical, 132 Ill. App. 3d at 495.) The priority of the various interests in the subject property was a question of law for the court to determine, and Hines could not be bound by its alleged admission regarding priorities.

Plaintiffs’ penultimate contention is that the court erred in determining the amount of the lien. Plaintiffs first allege that Hines is bound by the amount of the judgment it obtained in case No. 89—L— 1420. Plaintiffs contend that that amount, $32,543.07, when offset by payments allegedly made by Sisson, results in a net amount due of $1,481.47. Plaintiffs further contend that the court erred in awarding interest at the rate of 10% per annum commencing March 17, 1988.

Hines responds that plaintiffs, in turn, are bound by their stipulation that the amount of the lien was $25,791.90. Hines points out that the judgment in case No. 89—L—1420 was based on a note executed by Sisson after most of the payments to which plaintiffs refer were made. Regarding the interest computation, Hines agrees with plaintiffs in part and contends that the court should have awarded interest at the rate of 5% from March 17, 1989, through January 1, 1990, at the rate of 10% from January 1, 1990, until the date of judgment, and at the rate of 9% thereafter.

Plaintiffs initially point out that Hines previously obtained a judgment against Sisson and Randall Hills Venture in case No. 89 — L— 1420 for $32,543.07. Hines does not dispute that this judgment involved essentially the same materials which are the subject of the instant case. Plaintiffs contend that this amount must be reduced by the amount of certain payments allegedly made by Sisson because “there was no evidence even suggesting the prior judgment reflected these amounts.” Plaintiffs' brief contains the following calculation:

“Judgment amount:

1st January 4, 1988 payment

2nd January 4, 1988 payment

March 15,1988 payment

December 1,1988 payment

$34,861.73

-$ 3,256.44

-$ 3,204.65

-$21,919.17

-$ 5,000.00

$ 1,481.47.”

Balance

Plaintiffs further contend that the $34,861.73 figure includes $2,318.66 in interest which, when subtracted out of the above calculation, results in an overpayment of $837.19.

In response, Hines points out that the prior judgment was based on a note which Sisson executed on October 18, 1988. Three of the payments alleged by plaintiffs occurred prior to that date. Hines contends that it is incredible that Sisson would execute a note which included payments he had already made. When the one payment made after October 18 and interest are subtracted from the judgment amount, the net amount due is $27,543.07, which is more than the amount of the judgment in the instant case and the amount to which the present parties stipulated.

Hines also points out that, in any case, plaintiffs are prohibited from challenging the amount of the lien because they stipulated on July 2, 1991, that the amount of the lien was $25,791.70. Generally, a party cannot dispute on appeal matters to which he has stipulated. (Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 874.) In the instant case, the parties entered an agreed order on July 2 which contained the stipulation that the amount of Hines’ lien claim was $25,791.70. This was the precise amount which the trial court awarded. Plaintiffs do not contend that the stipulation was unreasonable, was obtained by fraud, or otherwise violates public policy. See People v. Siems (1988), 170 Ill. App. 3d 894, 896.

Interestingly,, plaintiffs do not directly contend that the trial court’s judgment was against the manifest weight of the evidence. Although plaintiffs point to some inconsistencies and contradictions in the testimony, these were merely matters of credibility for the trial court to resolve. (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865.) Furthermore, the judgment was supported by the evidence. Hines’ yard manager, Thomas White, testified that the total amount of materials delivered to the site was $52,711.07, which figure was supported by invoices introduced into evidence. White further testified that Hines received payments total-ling $26,919.17, leaving a balance of $25,791.90. Although White testified that the invoice amounts were not necessarily accurate, the trial court was entitled to credit his testimony and the exhibits, particularly in light of the stipulation.

Plaintiffs have failed to demonstrate that the stipulation was inaccurate. The amount awarded was supported by the evidence.

Plaintiffs’ final contention is that the court erred in awarding interest at the rate of 10% per annum from March 17, 1988. Plaintiffs contend that prior to January 1, 1990, the Act provided for interest at the rate of 5%. On January 1, 1990, an amendment became effective which raised the rate to 10%. (Ill. Rev. Stat. 1989, ch. 82, par. 1.) Citing Treloar v. Hamilton (1906), 225 Ill. 102, plaintiffs contend that the amendment cannot operate to increase the interest rate on the judgment even after its effective date since to do so would affect contractual rights.

Hines initially concedes that the judgment contains a scrivener’s error and that the correct date should be March 17, 1989, and that interest was actually calculated from the latter date. Hines further concedes that it is entitled to interest at the rate of 5% prior to January 1, 1990. Hines contends, however, that interest should accrue at the 10% rate after that date.

In Noe v. City of Chicago (1974), 56 Ill. 2d 346, 350, the supreme court considered the question whether an increase in the statutory interest rate could be applied to a judgment which had been entered but not paid prior to the effective date. The court stated:

“Interest is purely a statutory creation. [Citation.] The legislature may increase, decrease or eliminate the statutory interest rate as long as it does not interfere with rights which have already accrued and vested under a previous statutory rate.” (Noe, 56 Ill. 2d at 350.)

The court held that the new interest rate should be applied as of the effective date of the amendment.

We hold that Noe governs the instant case. Thus, interest should have been awarded at the 5% rate from March 17, 1989, through January 1, 1990, at the 10% rate thereafter until the date of judgment, August 1, 1991, and at the statutory post-judgment rate of 9% thereafter. Application of the above rates produces a total of $5,105.38 in prejudgment interest. Accordingly, we exercise our power pursuant to Supreme Court Rule 366 to “make any order that ought to have been given or made” (134 Ill. 2d R. 366(a)(5)) to modify the judgment to reflect $5,105.38 in prejudgment interest and post-judgment interest at the rate of 9% from August 1,1991, until payment.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed as modified.

Affirmed as modified.

INGLIS, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE ex rel. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Plaintiffs-Appellants, v. OREGON COMMUNITY UNIT SCHOOL DISTRICT 220, Defendant-Appellee.
    Second District
    No. 2—91—1057
    Opinion filed August 27, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellants People ex rel. Illinois Educational Labor Relations Board and Kenneth Scott.
    Gregory J. Malovance and Steven E. Mitchel, both of Winston & Strawn, of Chicago, for appellant Oregon Education Association.
    Daniel C. Hawkins, of Ward, Murray, Pace & Johnson, P.C., of Sterling (David E. Murray, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, the Illinois Educational Labor Relations Board (Board), Kenneth Scott, and the Oregon Education Association, appeal from an order of the circuit court of Ogle County which denied the Board’s petition for enforcement of an administrative order it entered against defendant, Oregon Community School District 220 (District). Plaintiffs assert the trial court erred in finding that (1) the District had complied with the Board’s administrative order and (2) the Board failed to comply with its own rules.

The District and the Oregon Education Association were parties to a collective bargaining agreement effective for the 1989-90 school year. On December 18, 1989, the District voted to terminate Kenneth Scott from his position as head football coach at Oregon High School. Scott filed a grievance with the District alleging that he was terminated in violation of the collective bargaining agreement. The grievance was ultimately submitted to arbitration pursuant to a binding arbitration provision in the collective bargaining agreement. On June 25, 1990, the arbitrator sustained Scott’s grievance, finding that the District did not have “good cause” to remove him from his coaching assignment, as required by the collective bargaining agreement. The District subsequently voted again not to retain Scott and publicly stated that it was rejecting the arbitrator’s award.

On July 23, 1990, Scott filed an unfair labor practice charge with the Board alleging that the District had violated the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1701 et seq.) by refusing to comply with the provisions of a binding arbitration award. An administrative hearing was held regarding the charge, and, on December 31, 1990, the hearing officer issued a recommended decision and order.

The hearing officer found, essentially, that the arbitration award was binding and the District had, therefore, violated sections 14(a)(8) and 14(a)(l) of the Act (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(8), (a)(l)), which prohibit educational employers from refusing to comply with the provisions of a binding arbitration award. In response to one of the District’s arguments, the hearing officer noted that the arbitrator did not award Scott tenure as football coach, but simply ordered that he be reinstated for one year. The hearing officer recommended an order which, among other things, directed the District to comply immediately with the provisions of the arbitrator’s award and to make Scott whole for its prior refusal to comply. The District did not file exceptions, and on February 15, 1991, the Board issued an order making the hearing officer’s recommendations final and binding on the parties.

The District responded to the hearing officer’s decision by reinstating Scott as head football coach and awarding him back pay on January 21, 1991. The reinstatement, however, was for the 1990-91 school year. On January 25, Scott wrote a letter to the Board’s acting director, Julie K. Hughes, asserting that the District’s offer of reinstatement did not amount to compliance with the Board’s order. The District responded, also by letter, that it had complied, and, on March 15, Hughes issued a recommended decision and order. The acting director reached her decision after examining the arbitrator’s award, the hearing officer’s decision, and the parties’ written positions as stated in the letters they had sent to her. Hughes found that, because the District reinstated Scott to a year in which the football season was already over, the District’s offer was not a bona fide offer of reinstatement. Hence, it did not constitute compliance with the Board’s order. Hughes recommended that the Board instruct its general counsel to seek enforcement of the reinstatement order.

Finding that the District’s offer to Scott was not a bona fide offer of reinstatement because it was not for the same or a substantially equivalent position, the Board affirmed Hughes’ decision and adopted her conclusions and rationale on May 10, 1991. The Board’s counsel was directed to seek enforcement of the February 15, 1991, reinstatement order. The Board expressly noted that the 1991-92 school year was the next chance for Scott to continue as head football coach and thus presented the earliest opportunity for the District to implement the arbitration award. The District petitioned the Dlinois Appellate Court, Fourth District, for administrative review of the Board’s May 16 order (apparently pursuant to section 16(a) of the Dlinois Educational Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1716(a)), which provides for administrative review of Board orders directly by “the Appellate Court of a judicial district in which the Board maintains an office”), but the petition was dismissed for lack of an appeal-able order.

On May 28, 1991, the District hired a replacement for Scott as head football coach for the 1991-92 school year. A few days later, June 6, the Board filed a petition in the circuit court seeking enforcement of its February 15 and May 16 orders to reinstate Scott. The District filed an answer, and Scott and the Oregon Education Association were allowed to intervene as party petitioners.

Following a hearing, the circuit court found that, as a result of the actions it had taken with regard to Scott, the District was in full compliance with the Board’s order of February 15, 1991, and that the order of May 16, 1991, was not entitled to enforcement since the Board did not comply with its own rules in formulating the order. Accordingly, the Board’s petition for enforcement was denied. The Board, Scott, and the Oregon Education Association then filed this timely appeal.

We begin by addressing the plaintiffs’ contention that the trial court erred in finding that the District had complied with the Board’s reinstatement order. On January 21, 1991, Scott was given back pay and reinstated as head high school football coach. Plaintiffs take the position that, by the time Scott was reinstated, the football season was over and done with for the 1990-91 school year and Scott, therefore, was not reinstated to the same or a substantially equivalent position as the one from which he had been terminated. Absent such a position, according to plaintiffs, Scott’s reinstatement was a sham.

Plaintiffs argue first that the trial court erred by reviewing de novo the Board’s determination that the District had not complied. They posit that the Board’s decision was an enforcement decision and should not have been overturned unless it was arbitrary, capricious, or a clear abuse of discretion. Plaintiffs make a lengthy argument that enforcement proceedings are investigatory and not adjudicatory and, as such, are subject only to the arbitrary and capricious standard of review. While this argument may or may not have merit, we do not need to resolve it here. The District has maintained throughout these proceedings that it complied with the Board’s order when it reinstated Scott for the 1990-91 school year. The facts of what the District did are clear and undisputed. What is at issue then is the legal effect of those facts. Hence, the trial court was faced with only a question of law, the same question of law that the Board had determined favorably to Scott. Courts exercise independent review over an agency determination of a question of law and cannot let stand such a determination if it is erroneous. (Kankakeeland Community Action Program, Inc. v. Department of Commerce & Community Affairs (1990), 197 Ill. App. 3d 1067, 1077; Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 535, aff'd in part, vacated in part, & rev’d in part on other grounds (1989), 131 Ill. 2d 23.) The trial court did not err in making an independent determination on the legal issue of the District’s compliance.

In a similar argument plaintiffs complain that the trial court did not give proper deference to the Board’s interpretation of its own order. Specifically, they claim that the Board’s interpretation required that Scott be given a bona fide offer of reinstatement, meaning that he had to be reinstated at a time which would allow him to actually engage in coaching activities. We do not quarrel with the propositions urged by plaintiffs that the courts generally give administrative agencies broad discretion when making decisions based on the statutes they were created to enforce (see City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361) or that an agency’s interpretation of its own regulations is to be accorded great deference by the courts (Rend Lake College Federation of Teachers, Local 3708 v. Board of Community College, District No. 521 (1980), 84 Ill. App. 3d 308, 311-12). Here, however, in the process of interpreting, the Board was required to resolve the question of whether, as a matter of law, the District’s actions met the requirement for reinstatement. As we said, courts are to exercise independent review of an agency’s determination of legal questions, and, while deference will be accorded to the extent possible, the agency’s resolution may not stand if it is erroneous. (Kankakeeland Community Action Program, 197 Ill. App. 3d at 1077.) The record here shows that the trial court was keenly aware of the way the Board interpreted its order but found that interpretation to be in error.

This brings us to the question of whether the trial court correctly decided that the District’s offer to Scott amounted to reinstatement and thus constituted compliance with the Board’s order. While no cases directly on point have been decided under the Illinois Educational Labor Relations Act, numerous decisions have been rendered under similar Federal statutes as well as similar statutes in foreign jurisdictions. These cases are instructive here. It is established in the private sector that offers of reinstatement must be bona fide offers. (Imco/International Measurement & Control Co. (1985), 277 NLRB 962; Workroom for Designers, Inc. (1985), 274 NLRB 840.) In order to be bona fide, an offer of reinstatement must be for the same or a substantially equivalent position. NLRB v. Blue Hills Cemetery, Inc. (1st Cir. 1977), 567 F.2d 529, 530; Anderson v. State Labor & Industry Review Comm’n (1983), 111 Wis. 2d 245, 255, 330 N.W.2d 594, 599; Kerr v. National Endowment for the Arts (Fed. Cir. 1984), 726 F.2d 730, 733.

Plaintiffs, of course, rely on cases in which the employer was found not to have complied with an order of reinstatement. However, in those cases, after the wrongful discharge the employers changed the duties or responsibilities of the position in such a way that, when the employee was reinstated, he or she either had virtually no duties or the responsibilities had been downgraded so that the job was essentially different from what it had been previously.

In John H. Kerr, following an order of the Federal Merit Systems Protection Board, the employee was offered reinstatement to the same position at the same grade and the same pay. However, the single overriding function of the job, which included the bulk of the employee’s former duties, had been shifted to another position, and no new duties had been assigned. Similarly, in Carter of California, Inc. (1980), 250 NLRB 344, 352-53, pursuant to an order of the NLRB, employees were reinstated as managers but without managerial authority. Responsibilities for writing contracts and handling company money and company keys were significantly reduced. A clerical employee was switched from accounts receivable responsibilities to spot checking contracts for errors. Although these employees were given work, they were not restored to the essential functions of the jobs they held previously.

The offer of reinstatement in Anderson was not valid because there was no showing that the new job offered was substantially equivalent to the employee’s former job. The Wisconsin Supreme Court noted that comparability in salary is not the only test of a reasonable offer of alternative employment. The court stressed that comparability in status is also important, particularly with regard to opportunities for advancement or for other employment. Accordingly, a wrongfully discharged employee did not have to accept alternative employment of an inferior nature, or employment for which he was not qualified by experience, or which might damage his professional career. Finally, in a slightly different case, Chicago Newspaper Guild v. Field Enterprises, Inc. (7th Cir. 1984), 747 F.2d 1153, the employee was not returned to work at all despite the arbitrator’s specific directions that he be again put to work, and the employer made no showing that the employee could not have been given a comparable job.

In our view, this case differs from plaintiffs’ authorities in that the District made absolutely no changes in the position to which it reinstated Scott. He was offered the position of head football coach. No restrictions whatsoever were placed on the reinstatement. Neither the duties and responsibilities nor the authority of the job was eliminated or altered in any way. The position was precisely the one from which Scott was wrongfully removed. The job of reinstated head coach was neither inferior to his prior position as head coach nor was it one for which Scott was not qualified by experience. Also, it is most unlikely that reinstatement to precisely the same position would reflect poorly on Scott’s status or reputation with regard to opportunities for advancement or other employment. While he did not coach during the 1990-91 season, it is not as though that was the only year he would have ever coached. The record reveals that Scott had been the school’s head football coach for 15 years, certainly long enough to establish his credentials for purposes of prospective employment.

As we see it, that the 1990-91 football season had ended by the time Scott was reinstated is not determinative of this matter. The seasonal aspect of football is part and parcel of the job of a high school football coach. To be sure, since such coaches are actively coaching during the fall semester of the school year, that is their busiest season. This does not make any of them any less of a football coach during the rest of the year. It means only that their football activities subside—they do not terminate—after the football season. In fact, coaches do participate in coaching-related activities during the rest of the year. The record here reflects that Scott’s request to attend a football clinic in April 1991 was approved by the District superintendent. The football-season/off-season fluctuation in a coach’s work is very much the nature of the job. That Scott was reinstated during the off season does not mean that he was not given a bona fide reinstatement.

As the authorities cited above illustrate, the essence of valid reinstatement is that the employee must be restored to the same job or an equivalent job. In other words, he must be placed, as closely as possible, in the same position he was in before the employer’s wrongful conduct. Here, Scott was reinstated at the end of January. For that particular time of the year, Scott was placed in the same position he would have been in if he had been coaching in the fall. While he did not coach, the District gave him back pay to make up for not working during the football season. There is no indication in the record that Scott did not accept the back pay. Further, since the season was over and he was not required to be actively coaching, it appears Scott took advantage of a football clinic. Hence, except for the fact that he did not coach in the fall, Scott’s job as head coach appears to have been following its usual yearly pattern. Scott’s job consisted of very intense activity at one time of year and much less activity the rest of the year. We do not think that for him to be validly reinstated, the reinstatement period had to include the period of intense, hands-on football coaching.

We note in this regard that neither the arbitrator’s award nor the hearing officer’s decision specified that Scott had to be given another opportunity to coach. The arbitrator’s award stated, in very general terms, only that “[t]he grievance is sustained. The Oregon Board of Education did not have ‘good cause’ to remove Kenneth Scott from his head coaching assignment.” The hearing officer directed that the District cease and desist from “[rjefusing to comply with the provisions of a binding arbitration award.” He also ordered the District to “[ijmmediately comply with the provisions of the arbitrator’s award” and “[m]ake Kenneth E. Scott whole for the District’s refusal to comply with the arbitrator’s award.” We think the District followed this final imperative of the hearing officer. The decision was issued on December 31, 1990. The District reinstated Scott and awarded him back pay on January 21, 1991, prior even to the Board’s order making the hearing officer’s recommendations final.

The position urged by the plaintiffs would require the District to postpone Scott’s reinstatement from January to the following fall semester when the football season would begin in earnest. No authority is cited to us for such a postponement. In fact, the hearing officer’s direction to “immediately” comply with the arbitration award is consistent with decisions calling for immediate and unconditional reinstatement which makes the employee whole for lost earnings. See, e.g., Hoyleton Consolidated School District No. 29, 6 Pub. Employer Rep. (Ill.) par. 1097, No. 89-CA-0057-5 (IELRB, June 29, 1990); Anderson v. State Labor & Industry Review Comm’n (1983), 111 Wis. 2d 245, 330 N.W.2d 594.

In our view, to require postponement, rather than back pay, as the means of making an employee whole would be to create the potential for confusion, disruption, and uncertainty for any employer whose work was seasonal or cyclical in nature. For instance, employers could find themselves with too few workers when the busy season rolled around because, in the interim between ordered and actual reinstatement, the “reinstated” employees decided to take other work. We find that the hearing officer did indeed mean the District should immediately comply with the arbitration award and that the District responded in a proper fashion.

In sum, like the trial court, we conclude that the District complied with the arbitration award and the Board’s order when it reinstated Scott for the 1990-91 school year and made him whole by giving him back pay. The trial court did not err on this matter. Consequently, the lower court correctly refused to enforce the Board’s order in the fashion requested by the plaintiffs.

In light of our conclusion that the District complied with the arbitration award, we need not address the issue of whether the Board failed to comply with its own rules pertaining to a compliance hearing. The pertinent rules were triggered after Scott’s reinstatement, so whether they were followed is irrelevant for purposes of this opinion. Too, it is the District which claims to have been prejudiced by the Board’s failure to follow its own rules. Since the District has prevailed on the fundamental question of compliance, any prejudice to itself from the Board’s conduct is of no consequence.

In accord with the reasoning set forth above, the order of the circuit court of Ogle County denying the Board’s petition for enforcement of its orders is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY RAY TIMMONS, Defendant-Appellant.
    Second District
    No. 2—90—0751
    Opinion filed August 31, 1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Following a jury trial, defendant, Bobby Ray Timmons, was convicted of two counts of theft (Ill. Rev. Stat. 1991, ch. 38, par. 16—1(a)) and received concurrent sentences of five years’ imprisonment on each count. Defendant raises four issues on appeal: (1) whether one of defendant’s convictions for theft should be reversed because the thefts occurred simultaneously; (2) whether defendant knowingly and intelligently waived his right to counsel at trial; (3) whether he should have been sentenced as a Class 4 felon rather than a Class 3 felon; and (4) whether his sentence is excessive. We affirm in part and vacate in part.

On July 20, 1989, defendant was charged with the theft of two firearms from the Blackhawk Gun Shop in Belvidere, Illinois. Public defender David Towns was appointed to represent him. However, on October 27, 1989, after a substitution of judges, Mr. Towns informed the court that defendant wished to fire him and have other counsel appointed because defendant was filing suit against Mr. Towns. The court permitted Mr. Towns to withdraw and appointed Don Larson to represent defendant.

On November 3, 1989, Mr. Larson indicated to the court that his term as alternate or conflict-of-interest public defender was going to expire December 1, 1989, and requested the cause be continued until that time to enable the new alternate to be appointed.

The cause was continued until December 8, 1989, at which time Charles Popp was appointed to represent defendant. However, because Mr. Popp had worked with Mr. Towns at one time, defendant felt there was a conflict of interest. Prior to his current position, Mr. Popp was employed as an assistant public defender with Mr. Towns’ office. The trial court denied Mr. Popp’s request to withdraw, finding no conflict existed. Defendant filed another motion for substitution of judges. That motion was denied on December 15, 1989. Trial was set for February 5, 1990.

On January 22, 1990, defendant filed a motion for change of attorney claiming Mr. Popp would not file the motions defendant wanted filed. The trial court heard the motion on January 29, 1990. Mr. Popp explained that he and defendant had severe communication problems. He informed defendant that he had an obligation to the court as well as to the defendant and that he could not file frivolous motions. Defendant argued that if Mr. Popp had an obligation to the county he would be unable to represent defendant fairly because of the civil suits defendant had filed against the county. The trial court granted the motion for change of attorney and appointed Dennis O’Sullivan to represent defendant.

Defendant again moved for a substitution of judges. That motion was denied. On May 4, 1990, defendant refused to appear in court. The court ordered defendant be brought to the courtroom for trial on May 7,1990, over Mr. O’Sullivan’s objection.

On May 7, 1990, defendant appeared in court. Mr. O’Sullivan informed the court that defendant wanted a continuance and that defendant did not feel counsel was fully prepared for trial. Defendant asserted that he would not go to trial with Mr. O’Sullivan as counsel. He requested a continuance for O’Sullivan or for the appointment of new counsel, stating that he would rather proceed alone than with Mr. O’Sullivan on that day. Mr. O’Sullivan explained to the court that he and defendant were having problems and that he did not want to be subject to second-guessing by defendant. Mr. O’Sullivan stated that he had almost no cooperation from defendant and that he did not want to represent defendant if defendant did not want to be represented by him. When asked if he was prepared for trial, Mr. O’Sullivan responded, “I think with more time, obviously everybody can always do better.”

At that point the trial court ordered Mr. O’Sullivan to explain to defendant what it would mean if he decided to proceed pro se or with standby counsel. After a brief recess, the court again inquired as to how defendant wished to proceed. Again, defendant claimed he did not want Mr. O’Sullivan to represent him. Mr. O’Sullivan stated that he was not prepared to go to trial with defendant “being the way he is.” The court denied the motion to withdraw and the motion for a continuance stating:

“[I]t appears to this court that he has been that way with every counsel he has had. And there is a distinct possibility, at least it appears to this court, that he is trying to delay the due administration of this court, and this is what I am going to stop dead in its track right now.”

Defendant continued to object to Mr. O’Sullivan’s representation. After stating the cause would proceed to trial that day, the court allowed defendant to proceed pro se with Mr. O’Sullivan as standby counsel. Again, defendant objected to Mr. O’Sullivan as standby counsel, stating that he would file suit against Mr. O’Sullivan if he tried to represent defendant. The court ordered Mr. O’Sullivan to remain as standby counsel.

Defendant stated he would not participate in the selection of a jury, nor would he allow Mr. O’Sullivan to participate. Defendant stated:

“It ain’t [sic] going to do you no good because I making [sic] a big commotion in this courtroom. You might as well as [sic] get some barbwire [sic] to gag my mouth or do whatever you got to do, but this trial wouldn’t be proceeding on the normal basis here today, I am telling you that today. You do what you want, but I tell you that it won’t proceed under normal basis [sic].”

The court informed defendant of his constitutional right to confront witnesses, explaining that he could waive that right by conducting himself in a disorderly manner.

The trial began that same day. Defendant did not participate in the selection of the first two panels of jurors, but he did participate in the selection of the last panel. Defendant made an opening statement and cross-examined the State’s witnesses. On the second day of trial, defendant conferred with standby counsel, Mr. O’Sullivan. After the State rested its case, defendant declined to present evidence. At the instructions conference, defendant stated that he had worked things out with Mr. O’Sullivan and requested that Mr. O’Sullivan take over as counsel. Mr. O’Sullivan asked the court to reserve its ruling, and the court agreed to his request. However, Mr. O’Sullivan went on to represent defendant at the instructions conference, during post-trial motions and at the sentencing hearing.

On the third day of trial, defendant sought to plead guilty to one count of theft, but the State would not agree to those terms. Defendant gave his own closing argument during which he told the jury he was guilty and asked for the maximum sentence. The jury found him guilty on both counts of theft. The court imposed concurrent sentences of five years’ imprisonment. Defendant timely appeals.

Defendant’s first issue on appeal is whether he was properly convicted of two counts of felony theft. Count I charged defendant with the theft of a Smith and Wesson .45 caliber, semi-automatic pistol having a total value in excess of $300, from the Blackhawk Gun Shop on July 19, 1989, and count II alleged the theft of a Colt .45 pistol having a total value in excess of $300, also from the Blackhawk Gun Shop on July 19,1989.

The evidence at trial was as follows. A customer in the gun shop saw defendant lean over the store counter, grab a dark object and hide it inside his jacket. The customer stated that he heard the distinct sound of metal hitting metal as defendant grabbed the dark object. The customer informed the shop manager of what he had seen after defendant exited the shop. The manager noticed a space where the Smith and Wesson had been hanging. The manager confronted defendant outside the store moments later, and the defendant returned the Smith and Wesson pistol. Upon returning to the store, the manager noticed another pistol missing. He notified the police. Defendant was arrested later that same day. The Colt .45 pistol was never recovered.

Defendant admits the State presented evidence sufficient to prove the theft of the Smith and Wesson pistol, but argues he should not have been charged with two counts of theft under the one act/one crime doctrine.

Under the standard set forth by our supreme court in People v. King (1977), 66 Ill. 2d 551, more than one offense cannot be carved from the same physical act. (66 Ill. 2d at 566.) Where a defendant, in one act, simultaneously exerts control over several different items of stolen property, he or she is properly charged with only one theft. See People v. Jackson (1978), 64 Ill. App. 3d 159, 161; People v. Depner (1980), 89 Ill. App. 3d 689, 694.

The rationale behind this principle was expressed in People v. Manning (1978), 71 Ill. 2d 132. “ ‘If a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place.’ ” People v. Manning, 71 Ill. 2d at 135, quoting Braden v. United States (8th Cir. 1920), 270 F. 441, 443-44.

Accordingly, the trial court erred in entering a separate judgment and imposing a separate sentence on each count of theft over $300 rather than on only one count. We vacate the judgment of conviction and sentence imposed against defendant on count II of the information charging defendant with the theft of the Colt .45 pistol.

Defendant’s next contention on appeal is that the record does not reflect a knowing and intelligent waiver of his right to counsel under Supreme Court Rule 401(a). (134 Ill. 2d R. 401(a).) However, we conclude defendant did not waive his right to counsel, and, hence, admonishment under Rule 401(a) was not necessary.

Supreme Court Rule 401(a) requires the trial court to admonish a defendant in open court as to the nature of the charge, the minimum and maximum sentences prescribed by law, and that he has the right to counsel and, if he is indigent, to have counsel appointed by the court before allowing waiver of the right to counsel. (134 Ill. 2d R. 401(a).) However, where a defendant proceeds to trial with the “technical assistance” of an attorney, he has not waived counsel and need not be given the full admonishments under Rule 401(a). (People v. Smith (1985), 133 Ill. App. 3d 574, 579; see also People v. Nieves (1982), 92 Ill. 2d 452, 466-67.) The rationale for this rule is that a defendant who seeks to conduct his own defense with the advice of counsel partakes of the freedom of defending himself in addition to the expertise of an advisor with legal training. (People v. Hite (1983), 115 Ill. App. 3d 66, 69.) A defendant who wishes to act pro se desires to stand alone, but this does not occur if a lawyer assists him at trial. (Smith, 133 Ill. App. 3d at 579.) In addition, it has been held that the appointment of standby counsel to assist a defendant who is proceeding pro se does not offend the right of self-representation. People v. Gibson (1990), 136 Ill. 2d 362, 375.

In the present case, defendant’s inability to resolve conflicts with his court-appointed attorneys caused the case to be continued several times. In addition, defendant filed a number of motions to substitute judges and numerous civil lawsuits against judges, prosecutors, former defense counsel, and the sheriff’s office. Although an indigent defendant is entitled to have counsel appointed for him, the right to counsel of defendant’s own choosing may not be employed as a weapon to thwart indefinitely the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Kennedy (1990), 204 Ill. App. 3d 681, 684.) Defendant clearly was not entitled to another continuance. People v. Vaughn (1983), 116 Ill. App. 3d 193, 196.

After the court refused to provide different court-appointed counsel, defendant stated that he would be forced to proceed pro se, and he threatened to cause such a commotion that the trial could not proceed. At that point in time, the trial court was justified in finding defendant’s conduct tantamount to an election to proceed pro se. See People v. Kennedy, 204 Ill. App. 3d at 684; People v. Vaughn, 116 Ill. App. 3d at 197.

The trial court was acting within its authority when it appointed Mr. O’Sullivan as standby counsel. Requiring defendant to proceed pro se with standby counsel is not a waiver within the meaning of Rule 401(a), and thus admonitions were not required when the case proceeded to trial as scheduled. (People v. Vaughn, 116 Ill. App. 3d at 197.) Defendant called upon Mr. O’Sullivan for assistance numerous times during trial, and, eventually, defendant requested that Mr. O’Sullivan take over as trial counsel once again. A defendant receiving such legal advice should not be heard to complain about proceeding pro se or of any possible deficiencies relating to waiver of legal assistance. See People v. Smith, 133 Ill. App. 3d at 579.

Next, defendant argues he was improperly sentenced for a Class 3 felony rather than a Class 4 felony. We disagree.

Defendant was charged with theft of a firearm, not from a person, over $300. The sentencing portion of the theft statute states in pertinent part:

“(b) Sentence.
* * *
(3) Theft of a firearm not from the person regardless of value is a Class 4 felony. A second or subsequent such offense is a Class 3 felony.
(4) Theft of property from the person not exceeding $300 in value, or theft of property exceeding $300 and not exceeding $10,000 in value, is a Class 3 felony.” Ill. Rev. Stat. 1991, ch. 38, pars. 16—1(b)(3), (b)(4).

Defendant argues that because section 16—l(b)(3) specifies the theft of a firearm, regardless of value, is a Class 4 felony, he was improperly sentenced under section 16—1(b)(4). The value of each of the stolen firearms was well over $300. The State charged the defendant under section 16—1(b)(4) under which the offense is categorized as a Class 3 felony rather than a Class 4 felony. The sentencing range for a Class 4 felony is 1 to 3 years, whereas the range for a Class 3 felony is 2 to 5 years. Ill. Rev. Stat. 1991, ch. 38, pars. 1005—8l(a)(6), (a)(7).

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316.) In ascertaining the intent of the legislature, it is proper for the court not only to consider the language employed by the statute, but also to look to the reason and necessity for the law, the evils to be remedied, and the objects and purposes to be obtained. (105 Ill. 2d at 316.) In addition, in construing statutes, the courts presume the legislature, in passing legislation, did not intend absurdity, inconvenience or injustice. 105 Ill. 2d at 316.

After applying the above principles to section 16—1(b), we cannot agree with the defendant that the inclusion of the words “regardless of value” in section 16—l(b)(3) restricts the scope of section 16— l(b)(4). The theft of property, other than a firearm, under $300 is a Class A misdemeanor. (Ill. Rev. Stat. 1991, ch. 38, par. 16—l(b)(l).) Section 16—l(b)(3), which makes the theft of a firearm, regardless of value, a Class 4 felony, reflects the intent of the legislature to punish the theft of firearms more severely than ordinary property, even if the value of that firearm does not exceed $300. However, under defendant’s interpretation of the statute, a defendant would be sentenced more severely as a Class 3 felon for the theft of property valuing $301, than he or she would be for the theft of a firearm valuing $3,001 because under defendant’s interpretation such an offense would remain a Class 4 felony.

Where several constructions may be placed upon a statute, the court should select that interpretation that leads to a logical result and avoid that which would be absurd. (People v. Mullinex (1984), 125 Ill. App. 3d 87.) To accept defendant’s interpretation of the statute would lead to an absurd result. We conclude the logical interpretation of section 16—1(b) permits the theft of a firearm valuing more than $300 to be charged as a Class 3 felony under section 16—l(b)(4). Ill. Rev. Stat. 1991, ch. 38, par. 16—l(b)(4).

Lastly, defendant contends that even if he was properly convicted as a Class 3 felon, the maximum sentence of five years’ imprisonment was excessive. We disagree.

Our review of defendant’s presentence report revealed the following. Defendant was 35 years old at the time of sentencing. He was not employed. Most of his family resides in Florence, South Carolina. Defendant graduated from high school and completed 107 credit hours of study toward a bachelor’s degree in physical education. He also completed vocational training in welding.

Although defendant was never declared a delinquent minor, his adult criminal record is extensive. Defendant has a prior felony conviction of blackmail in South Carolina, as well as possession of marijuana, simple assault and battery, petit larceny and two driving under suspensions. In addition he is presently wanted in South Carolina for forgery, resisting arrest and unlawful flight.

The State asked the court to sentence defendant to the maximum five years’ imprisonment. Although defendant himself asked the judge to give him the maximum sentence during his closing argument, at the sentencing hearing he requested a sentence of time served. The court sentenced defendant to five years’ imprisonment after stating it had considered all factors in mitigation and aggravation.

The standard of review to be applied in determining whether a sentence is excessive is whether the trial court abused its discretion in imposing the sentence. (People v. Andrews (1989), 132 Ill. 2d 451, 464; People v. La Pointe (1981) 88 Ill. 2d 482, 492.) Ordinarily, the trial court is in the best position to make a reasoned judgment as to a sentence which balances the need to protect society and rehabilitate the offender, and its judgment is due great weight and deference. People v. Branham (1985), 137 Ill. App. 3d 896, 903; People v. La Pointe, 88 Ill. 2d at 492-93.

Considering the seriousness of the crime, defendant’s extensive criminal record and the lack of respect for the law he displayed during the proceedings against him, we do not find the trial court abused its discretion in sentencing defendant to the maximum sentence of five years’ imprisonment. In addition, we do not find that a remand for resentencing is necessary based on the reversal and vacation of defendant’s conviction under count II because the record fails to indicate the trial court determined defendant’s sentence based on the entry of conviction on two counts rather than a single count of the offense. People v. Silas (1989), 185 Ill. App. 3d 920, 934; see also People v. Alejos (1983), 97 Ill. 2d 502.

For the reasons stated herein, the judgment of the circuit court is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re ESTATE OF LEETA SMITH, Deceased (Shaunn R. Smith et al., Petitioners-Appellees, v. Don Coons et al., Ex’rs, Respondents-Appellants).
    Fourth District
    No. 4—92—0177
    Opinion filed September 3, 1992.

      N. Ned Leiken, of Leiken & Leiken, of Minonk, for appellants.
    Fellheimer, Travers & Engelman, Ltd., of Pontiac (Ronald K. Fellheimer and Garth S. Seiple, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal by Don Coons and Glen Smith, as executors of the estate of Leeta Smith, deceased, involves the construction of a will by the circuit court of Livingston County. The circuit court found that the estate included items of personal property for which the will did not direct distribution. The court ordered that this personal property was to pass intestate to the decedent’s surviving heirs, Sharlotte Keenan, Sharlene Smith, and Shaunn Smith. The estate appeals from the order of the circuit court directing release of that property.

The only issue raised on appeal is whether the trial court misconstrued the will. We affirm.

The subject will, which does not have a paragraph fifth or sixth, executed on December 17,1990, states as follows:

“I, Leeta A. Smith, of Flanagan, County of Livingston and State of Illinois, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby expressly revoking any and all former wills by me made:
FIRST: It is my will that my Executor pay all of my just debts and claims against my estate, including my funeral expenses, as soon after my decease as may conveniently be done. I further provide that all Inheritance Taxes and Federal Estate Thxes that may be due by reason of my death shall be paid out of my estate.
SECOND: I give and bequeath all the furniture and household goods located in the mobile home in which I reside in Flanagan, Illinois, as follows:
(A) To Shirley, the surviving widow of my deceased son, Dean, I give the oak cupboard in the living room, built in 1976.1 do not include the contents of said cupboard in this bequest.
(B) To Phyllis Smith, daughter of my niece, Joan M. Smith, I give the antique oak china closet in the dining area of my mobile home in Flanagan, Illinois. I do not include the contents of said china closet in this bequest.
(C) I give all the rest of my furniture and household goods as follows:
1. To my brother, Robert F. Tucker, an undivided Vs share.
2. To my brother, Melvin L. Tucker, an undivided Vs share.
3. To my sister, Jane Coons, an undivided Vs share.
4. To the children of my deceased brother, Ivan Tucker, an undivided Vs share.
5. To the children of my deceased sister, Edna Roach, an undivided Vs share.
Should any of my named legatees in Paragraph Second (C) predecease me, then I direct that the share of said deceased legatee go, per stirpes, to his descendants.
THIRD: I give and bequeath to my nephew and niece, Glen A. Smith and Joan M. Smith, my interest as Seller under an unrecorded Agreement for Warranty Deed, dated November 1, 1980 as modified by an Agreement dated June 5, 1987, wherein the following described land was sold to Glen A. Smith and Joan M. Smith, to wit:
The South Half (S V2) of the Northeast Quarter (NE V4) of the Northwest Quarter (NW V4) of Section Seven (7), and the Southeast Quarter (SE V4) of the Northwest Quarter (NW Vt) of Section Seven (7), all in Township Twenty-eight (28) North, Range Three (3) East of the Third Principal Meridian, situated in the County of Livingston, in the State of Illinois,
to be theirs absolutely, share and share alike.
FOURTH: I give and devise all the rest of my farmland as follows:
(A) To my brother, Robert F. Tucker, an undivided Vs share.
(B) To my brother, Melvin L. Tucker, an undivided Vs share.
(C) To my sister, Jane Coons, an undivided Vs share.
(D) To the children of my deceased brother, Ivan Tucker, an undivided Vs share.
(E) To the children of my deceased sister, Edna Roach, an undivided Vs share.
Should any of my named beneficiaries in Paragraph Sixth [sic] predecease me, then I direct that the share of said deceased beneficiary go, per stirpes, to his descendants.
SEVENTH [sic]: I have made no further provision in my Will for Shirley, the surviving widow of my late son, Dean C. Smith, or for her children, adopted by my said son, for the reason that I feel that my son adequately provided for his family under his Will.
LASTLY: I appoint my nephews, Glen A. Smith and Don Coons, Co-Executors of this my Last Will and Testament, to serve without bond. However, if my said nephews, Glen A. Smith and Don Coons should predecease me, or fail or refuse to qualify as such Executor, then I name N. Ned Leiken, Executor of this my Last Will and Testament.”

The testatrix signed each page of this three-page document. The signatures of the two witnesses appear on each page following the attestation clause on page three.

The order of heirship declared the decedent’s only heirs to be Sharlotte Keenan, Sharlene Smith, and Shaunn Smith, the decedent’s adopted grandchildren and the adopted children of decedent’s deceased son, Dean C. Smith. The inventory filed in the estate disclosed the following items of personal property which were not specifically devised: (1) beans on hand, $11,621; (2) an automobile with no separate value listed (it was lumped with furnishings and household goods with a total value of $10,000); (3) $96,534 on deposit at the Flanagan State Bank; and (4) $57,967 on deposit at the Minonk State Bank.

It is the executors’ position that an ambiguity is demonstrated on the face of the will and that the missing paragraphs fifth and sixth, which include a residuary clause, should be supplied by reference to a prior will of decedent. The executors suggest this is the appropriate method of correcting the “scrivener’s error.” In refusing to adopt the reasoning of the executors, the trial judge sagaciously stated:

“The execution of a Will is an important occasion, it is a sober occasion. It is for that reason that for hundreds of years we have had certain formalities that have been required in order to make a valid Will. Those formalities are required to insure that what someone says in a written instrument such as a Will is what the person intends. Those formalities are met here, and I have to give consideration to the fact that the decedent complied with those formalities in making her Last Will and Testament.
If I were to permit what the Executors desire here, I would be permitting a substantial rewriting of the Will. I don’t believe it can be accurately stated that this would be simply a clarification of an ambiguity. This would be a major insertion that would substantially change the testamentary scheme of the instrument that has been admitted.”

If there is a scrivener’s error in the will, it might be the misre-ference to paragraphs sixth and seventh instead of fourth and fifth. Using the executors’ logic, if the testatrix, after publishing the will and revoking all prior wills, included only paragraph seventh in the document, the trial court could, nevertheless, supply all arguably missing paragraphs by reference to a prior will. Such a rewriting of the will would defeat the express intent of the testatrix to revoke all prior wills.

The executors argue the “ambiguity” is also demonstrated by paragraph seventh, which stated no further provision in the will would be made for her son’s widow or their adopted children. The executors contend that extrinsic evidence of the testatrix’ intent should have been considered to resolve this ambiguity.

There is no ambiguity. Read alone, paragraph seventh does not evidence an intent to disinherit as the executors suggest. Had there been a residuary clause, the insertion of which the executors now promote, the adopted grandchildren would take nothing from the estate. But paragraph seventh does not, in and of itself, evidence an intent to deprive the adopted grandchildren of property which was not specifically referred to in the will.

In construing a will, the intention of the testatrix is to be determined from the will itself (In re Estate of Branch (1986), 147 Ill. App. 3d 819, 821, 498 N.E.2d 661, 662.) “[Njormally a will is considered to be an integrated written document and a court’s examination of the instrument will not extend beyond the ‘four comers’ of the instrument in interpreting its meaning.” (King v. Travis (1988), 170 Ill. App. 3d 1036, 1041, 524 N.E.2d 974, 978.) If some ambiguity exists, then the court may consider extrinsic evidence relating to the circumstances surrounding the malting of the will. (King, 170 Ill. App. 3d at 1041, 524 N.E.2d at 978.) However, the courts will not create an ambiguity where none exists. An example of an ambiguity on the face of the will is presented in the case of In re Estate of Shaw (1989), 182 Ill. App. 3d 847, 538 N.E.2d 643, wherein the preamble of the will limited the distribution to Florida property only, but the will also included a residuary clause referring to the residue of the estate. A question arose as to whether the residuary clause pertained to Illinois property. Such an ambiguity does not exist in the text of the subject will. Here, only the reference to paragraph numbers provides the executors with the ammunition to argue there is something omitted. There is a significant difference between the construction of a will and reformation of the will. Reformation of the will should not be undertaken under the guise of judicial interpretation of the will. 3A S. Sjostrom & C. Hallinan, Homer Probate Practice & Estates §2158 (4th ed. 1982).

The executors rely heavily on the presumption that the testatrix intended to dispose of her entire estate by will and to leave no part thereof to pass by intestacy. (In re Estate of Cancik (1985), 106 Ill. 2d 11, 17, 476 N.E.2d 738, 741.) However, this presumption is particularly applicable where the will contains a residuary clause. (Shaw, 182 Ill. App. 3d at 850, 538 N.E.2d at 645; Brach, 147 Ill. App. 3d at 821, 498 N.E.2d at 662; 3A S. Sjostrom & C. Hallinan, Homer Probate Practice & Estates §2115 (4th ed. 1982).) Cancik and Sehroeder v. Benz (1956), 9 Ill. 2d 589, 138 N.E.2d 496, the case cited in Caneik, both involved wills with a residuary clause. A construction of a will which avoids partial intestacy “should be adopted if it is reasonably possible to do so.” (3A S. Sjostrom & C. Hallinan, Homer Probate Practice & Estates §2115, at 51 (4th ed. 1982).) In this case, it is unreasonable to force such a construction on the will.

In Cancik, the undisposed part of the estate passed by intestacy. There, the testator’s will created a testamentary trust into which the residue of the estate was placed. The income from the trust was to be used for the perpetual care of the family mausoleum. However, the residuary estate was in excess of what was needed to fulfill the trust purpose. Since the testator did not provide for the disposition of a possible surplus, the court refused to construe the will to imply that the testator intended to make a gift of the remaining estate to the cousin who was bequeathed all personal effects since to do so would disinherit other heirs. (Cancik, 106 Ill. 2d at 14-18, 476 N.E.2d at 739-41.) Unless the intent to disinherit is clearly expressed or results from necessary implication, there is a presumption that heirs were not intended to be disinherited. (Shaw, 182 Ill. App. 3d at 850, 538 N.E.2d at 645.) In Cancik, the Illinois Supreme Court stated:

“The heirs here were not disinherited by the statement in the will that they were intentionally omitted from the testator’s will. (See Tilton v. Tilton (1943), 382 Ill. 426, 430-31; Lawrence v. Smith (1896), 163 Ill. 149, 166.) When a testator provides that certain indicated heirs are not to take from his estate and the will disposes of less than all of the estate, the provision excluding the heirs is without effect as to the property which is not disposed of by the will. (See Ames v. Holmes (1901), 190 Ill. 561, 564; Parsons v. Miller (1901), 189 Ill. 107, 112.) In Tea v. Millen (1913), 257 Ill. 624, this court stated:
‘It has been settled by several decisions of this court that heirs cannot be disinherited merely by a declaration that they shall not have anything ***. No matter how strong the intention of the testator may be to disinherit an heir, the intention cannot be given any effect as to intestate property, and the only method of disinheriting him is to give the property to someone else.’ (257 Ill. 624, 628-29.)”
Cancik, 106 Ill. 2d at 18, 476 N.E.2d at 741.

In the case at bar, the result must be the same. The will does not expressly distribute all of the property, and there is no necessary implication that some persons named in the will to receive other property should also take those items not specifically identified in the will. Devises or bequests by implication are not favored, must rest on some expression in the will, and cannot be inferred from silence or result from conjecture. A devise or bequest by implication will only be found where the testator’s intention to make the gift is so strong that no contrary intention can be supposed. (Shea v. Lyons (1964), 47 Ill. App. 2d 187, 191, 198 N.E.2d 151, 154; 3A S. Sjostrom & C. Hallinan, Homer Probate Practice & Estates §§2115, 2115.1 (4th ed. 1982).) This is not such a case. Moreover, the executors do not argue that a gift by implication is made. Instead, they request that two paragraphs from a revoked will be inserted into the subject will, and as has already been noted, such an action by a court to rewrite the will of the testatrix is clearly impermissible.

Accordingly, the judgment of the circuit court of Livingston County is affirmed.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE COOK

text:
    GRIGOLEIT, INC., Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE SANITARY DISTRICT OF DECATUR, Defendant-Appellant.
    Fourth District
    No. 4—91—0744
    Opinion filed August 24, 1992.

      Anthony B. Cameron, Special Counsel, of Quincy, for appellant.
    Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appel-lee.
   JUSTICE COOK

delivered the opinion of the court:

The defendant Board of Trustees of the Sanitary District of Decatur (Board) entered an order revoking the permit of plaintiff Gri-goleit, Inc. (Grigoleit), to discharge its industrial wastewater into the sanitary district’s publicly owned treatment works (POTW). The circuit court on administrative review reversed the order of the Board based on language contained in the permit and declined to reach the fourth amendment constitutional issue raised by plaintiff. The Board appeals, alleging (1) the permit and the pretreatment ordinance enacted by the district require routine and random access for inspection to the interior of Grigoleit’s premises as a condition for discharge privileges, and (2) Grigoleit had no valid basis for refusing to afford such access to the district’s personnel.

The Sanitary District of Decatur (district) is duly organized pursuant to the Sanitary District Act of 1917 (Act) (Ill. Rev. Stat. 1989, ch. 42, pars. 298.99 through 319j). Various provisions of that act require the district to adopt ordinances or regulations prohibiting or regulating discharges of inadmissible waste to sewers within the district (Ill. Rev. Stat. 1989, ch. 42, par. 317(d)); to study and investigate methods of abating pollutants that are detrimental to the public health or which might interfere with the operation of the sewage treatment plant (Ill. Rev. Stat. 1989, ch. 42, par. 317h(2)); to prohibit a user from discharging wastewater which may cause pollution of waters within the sanitary district without a written permit granted by the district (Ill. Rev. Stat. 1989, ch. 42, par. 317h(3)); to adopt and enforce regulations governing the issuance of permits and submission of plans and data relative thereto (Ill. Rev. Stat. 1989, ch. 42, par. 317h(7)); and, upon the failure by conference, conciliation and persuasion to correct or remedy any claimed violation, to allow issuance of an order to a user to cease discharge or to order discharge permits previously issued to be revoked (Ill. Rev. Stat. 1989, ch. 42, par. 317h(8)).

Pursuant to provisions of the Act, the district adopted pretreatment ordinance No. 85—2. (Sanitary District, Decatur, Ill., Ordinance 85—2 (July 12, 1985).) The ordinance prohibited the discharge by any “significant industrial user” (defined inter alia as a user of the POTW discharging 25,000 gallons or more per day) without a permit or contrary to the conditions of the permit; required creation of a spill-containment plan; called for the submission of technical and discharge reports; imposed limitations on both the volumetric rate of discharge and the concentrations of regulated pollutants contained in the wastewater; and required the permittee to allow the district ready access, at reasonable times, to all parts of its premises in which a discharge source or treatment system is located or in which records required by the ordinance are kept for purposes of inspection, sampling and examination.

During the permit application process, the president of Grigoleit had advised the district that it would “need a warrant for initial on site inspection.” On June 23, 1986, following some negotiation as to language of the permit, Grigoleit was issued a wastewater discharge permit. The language of the permit included the following:

“IN CONSIDERATION OF THE GRANTING OF THIS PERMIT, the applicant agrees
* * *
7. To provide immediate access to authorized personnel of the District to any facility directly or indirectly connected to the District’s sewerage system under emergency conditions and at all other reasonable times.
B. MONITORING REQUIREMENTS AND LOCATION
* * *
2. The existing manhole located in the parking lot west of building is hereby named as the designated sample point for the Industrial User. *** Analytical results from samples taken from this location according to sampling procedures provided for by Section 400.120 of Ordinance No. 85 — 2, as amended shall be accepted as binding for all purposes of providing satis factory evidence of compliance with conditions of this permit.” (The emphasized language had been added by Grigoleit.)

The permit was issued on June 23, 1986, and forwarded to Grigo-leit together with a letter stating “[ajpproval of this permit is contingent upon continuing compliance with all applicable Ordinance requirements.” The Board thereafter made several telephone and written requests for a facilities inspection, in order “to identify potential and actual sources of discharge that could damage the sewers, be detrimental to the District’s biological treatment system and method of sludge disposal on the land.” Grigoleit refused all such requests, informing the Board it would need a warrant to gain access to any area of Grigoleit’s facility other than the exterior manhole in the parking lot.

On March 3, 1987, the Board sent a notice of violation based on Grigoleit’s refusal to allow the district personnel reasonable access to its premises and scheduling a preenforcement compliance meeting. Grigoleit advised the Board it would not attend the meeting. The Board then notified Grigoleit of a show-cause hearing for revocation of its permit, which was held June 30,1987.

That hearing was attended by representatives of the district and counsel for Grigoleit. Robert Howie, president of Grigoleit, stated that the company was a contract manufacturer, primarily producing decorative trim for the appliance industry. According to Howie, all of Grigoleit’s wastewater flowed from three separate drains within the facility and then into the manhole in the parking lot. He stated that the company’s policy was to not allow any access to its premises by nonemployees without a warrant. Howie had added the final clause to paragraph B(2) of the permit and it was his interpretation of the clause that the manhole in the parking lot would “provide evidence of full compliance with the terms of the permit and thereby the ordinance and any other access to the plant must be for cause and through a warrant.” When cross-examined as to the definition of hazardous or categorized substances and the meaning of an “upset plan,” Howie stated that he was not in a position to discuss those issues.

On February 23, 1988, the Board issued an order revoking Grigo-leit’s wastewater discharge permit based on its refusal to afford “reasonable and regular access to the enclosed premises of its facility for purposes rationally related to the pretreatment ordinance and the permit.” Grigoleit sought administrative review of that order, and on March 19, 1991, the circuit court reversed the Board’s order and ordered Grigoleit’s permit reinstated. The court found the Board’s order contrary to law, against the manifest weight of the evidence and invalid, noting that the provisions of paragraph B(2) were binding for demonstrating compliance and the district had not been denied access for sampling to the subject manhole. The court subsequently denied the Board’s motion for reconsideration, finding the language of the permit not contrary to the statutes and ordinances.

There is no factual dispute between the parties that Grigoleit has denied the district reasonable access to its operational buildings but has granted it access to a manhole in the parking lot for purposes of monitoring discharge of its wastewater into the POTW. On appeal to this court, Grigoleit takes the position that under the terms of the permit it consented to only a limited “search” of the manhole in the parking lot, that it has fulfilled the provisions of paragraph B(2), and has thereby satisfied all of the inspection requirements of its permit since, under the fourth amendment to the United States Constitution, the district may not enter its facility absent a warrant and without its consent. The Board takes the position that the permit (i.e., paragraph (7) of the opening sections), as well as the pretreatment ordinance, make premises inspections at reasonable times a condition of possessing the permit and a condition of the privilege of industrial discharge into the sewer system, violations of which conditions may subject the user to revocation of the permit and subsequent disconnection from the POTW.

We first address Grigoleit’s asserted reliance on the fourth amendment as a backdrop for its claim that the district may not inspect its premises without first obtaining a warrant for an administrative search. In this case, there has been no unconsented search of Grigo-leit’s premises nor evidence recovered in any search sought to be presented in proceedings against it. Neither is this an enforcement proceeding brought to enjoin Grigoleit’s refusal to consent to inspection by the district. Rather, the narrower issue before this court, as it was before the circuit court in administrative review, is whether the Board’s revocation of Grigoleit’s permit to discharge for failure to comport with the provisions of the permit and the ordinance was against the manifest weight of the evidence. Although the parties have briefed fourth amendment issues raised in the context of a regulatory scheme requiring administrative searches, on the facts of this case and for the reasons which follow, we find no questions of constitutional magnitude are presented.

Unlike the cases cited to this court involving administrative searches, Grigoleit is not in this instance subject to a regulatory scheme purporting to regulate the internal conduct of its business activities (see, e.g., New York v. Burger (1987), 482 U.S. 691, 702, 96 L. Ed. 2d 601, 614, 107 S. Ct. 2636, 2644 (statute authorizing warrantless search of an automobile junkyard fell within exception to warrant requirement for administrative inspections of pervasively regulated industries); Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 325, 56 L. Ed. 2d 305, 319, 98 S. Ct. 1816, 1827 (Occupational Safety and Health Administration provision allowing inspectors to enter any plant at reasonable times held unconstitutional); Donovan v. Dewey (1981), 452 U.S. 594, 606, 69 L. Ed. 2d 262, 274, 101 S. Ct. 2534, 2542 (provision of Federal Mine Safety and Health Act of 1977 (30 U.S.C. §813(a) (1976 & Supp. III 1980)) authorizing warrantless inspection of mines upheld).) Grigoleit instead is subject to regulation which controls the external disposal of wastewater it has generated onto property in which it possesses no interest. It is therefore pertinent to review the nature of Grigoleit’s right to utilize the district’s POTW for disposal of its industrial wastewater.

Under the Illinois Municipal Code (Code), municipalities have the power to regulate the use of drains and sewers. (Ill. Rev. Stat. 1989, ch. 24, pars. 11—109—1, 11—20—10.) Generally, a permit to connect to municipal sewers is in the nature of a license with respect to real property and no vested right to connection exists. (See La Salle National Bank & Trust Co. v. City of Chicago (1984), 128 Ill. App. 3d 656, 665, 470 N.E.2d 1239, 1245.) It has long been settled that a license in respect of real property, either oral or written, is a revocable privilege to do an act or a series of acts upon the land of another without possessing any estate or interest in such land. City of Berwyn v. Berglund (1912), 255 Ill. 498, 500, 99 N.E. 705, 706-07; Boland v. Walters (1931), 346 Ill. 184, 188, 178 N.E. 359, 361; see also Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 558, 442 N.E.2d 915, 918.

The drains within Grigoleit’s facility and the sewer manhole in its parking lot connect with the publicly owned sewerage system and treatment works operated by the district. Industrial waste-water generated within Grigoleit’s facility by virtue of its industrial operations discharges directly into property owned by the district. Discharges by Grigoleit therefore constitute a series of acts performed upon land in which it possesses no estate or interest. By grant of statutory authority, the Board may condition or prohibit such usage. Under section 7f of the Metropolitan Water Reclamation Act, the board of trustees of any sanitary district is authorized to regulate, limit, deny, extend or otherwise control any connection to any sewer which will directly or indirectly discharge into the sanitary district sewerage system. (Ill. Rev. Stat. 1989, ch. 42, par. 326f.) Usage pursuant to such statutory grant of authority is by definition permissive and can confer no more than a revocable privilege on the licensee. We find nothing in the Code, the Act, or the case law granting an industrial user such as Grigoleit a vested right to continue discharge of its effluent into the district’s POTW upon its own terms and conditions. In La Salle National, the bank in 1927 had obtained a sewer connection permit allowing connection of the building’s sewer to the nearby city sewer main. In 1977, pursuant to the city’s municipal code, the city counsel enacted an ordinance revoking the bank’s sewer connection permit and ordering the sewer and drains servicing the building to be removed immediately. (La Salle National Bank, 128 Ill. App. 3d at 659-60, 470 N.E.2d at 1242.) The bank challenged the constitutionality of the ordinance on grounds of procedural due process and a taking of private property for public use without just compensation. The court concluded the sewer connection permit was not a constitutionally protected interest in property. Based on language of the municipal code providing that “the sewer connection permit was revocable at any time,” the court found the bank had no vested right to connection and the permit was merely a license which “created no more than a unilateral aspiration of continued permissive use of municipal sewer systems.” La Salle National Bank, 128 Ill. App. 3d at 665-66, 470 N.E.2d at 1246.

The right to connect to a sewer system of a municipality is subject to reasonable regulations imposed by the city and State, which may impose such conditions as may be necessary to accomplish the purpose of the ordinance. (Airtex Products, Inc. v. Pollution Control Board (1973), 15 Ill. App. 3d 238, 243, 303 N.E.2d 498, 503, aff'd sub nom. Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 326 N.E.2d 406.) Under these circumstances, utilization of the district’s sewerage system for discharge of industrial wastewater is permissive only, and revocation of such permission is, in the absence of fraud on the part of the district, limited only by Grigoleit’s compliance with reasonable regulations formulated by the district. See Frank v. State Sanitary Water Board (1961), 33 Ill. App. 2d 1, 6, 178 N.E.2d 415, 418.

Pursuant to its status as a conditional or regulated licensee, Gri-goleit has no constitutionally protected interest in the sewer connection and may not accept the privileges afforded by the license while simultaneously raising the fourth amendment as a bar to enforcement of the very conditions upon which extension of the license is predicated. Grigoleit is free to reject the advantages afforded by extension of the proffered license, together with the corresponding requirements. That is merely a business decision for Grigoleit to make. If Grigoleit chooses to withhold consent to inspection (as it did here), the permit may be revoked and no inspection takes place—there is no entry of Grigoleit’s facility and there is no search implicating fourth amendment protections. It is the nature of the license extended to Grigoleit, as well as the element of choice in its acceptance or rejection, which distinguishes this case from cases cited by the parties involving regulatory searches. The fourth amendment constitutional provisions respecting issues of administrative searches have no application to the facts of this case.

We next examine whether revocation of the license was proper in this instance. Courts will restrain the exercise of a legal right to revoke a license and will construe the license as an agreement to give the right when the conduct of the licensor has been such that the assertion of legal title would operate as a fraud upon the licensee. (Girard v. Lehigh Stone Co. (1917), 280 Ill. 479, 484, 117 N.E. 698, 700; Boland, 346 Ill. at 188-89, 178 N.E. at 361; Mueller v. Keller (1960), 18 Ill. 2d 334, 341, 164 N.E.2d 28, 33; Petersen v. Corrubia (1961), 21 Ill. 2d 525, 532, 173 N.E.2d 499, 504.) The requirements of the fraud exception to the revocability of licenses are (1) the licensee has spent substantial sums of money which were induced by the affirmative efforts of the licensor, (2) improvements which the licensee made were at least partly for the benefit of the licensor; and (3) revocation would result in an injury which would amount to great wrong and oppression. Keck v. Scharf (1980), 80 Ill. App. 3d 832, 836, 400 N.E .2d 503, 506, citing Forbes v. Balenseifer (1874), 74 Ill. 183, 186.

In applying these rules of law to the facts in this case, it is apparent that the fraud exception has no application to the Board’s authority to revoke Grigoleit’s permit. Grigoleit had apparently been utilizing the POTW for disposal of its industrial wastewater for some years prior to the institution of the permit program by the district based on a parol license, subject only to payment of user fees. Following adoption of the pretreatment ordinance, Grigoleit became subject to regulations conditioning and limiting the exercise of its license to discharge wastewater constituents incompatible with the district’s biological treatment system. Grigoleit has claimed no expenditures made on its sewer connections with the POTW nor improvements initiated at the behest of the district prior to enactment of the ordinance which would result in great wrong to it should the permit be revoked and connections with the POTW discontinued. Moreover, Grigoleit can avoid any adverse effects occasioned by termination of its discharge privileges by comporting with the terms of the ordinance and the permit. Therefore, Grigoleit is not excused from compliance with the ordinance based on a fraud exception to revocability of its permit.

Next, we review the circuit court’s finding that paragraph B(2) of the permit limits Grigoleit’s inspection obligations to the manhole in the parking lot, and thereby restricts the Board’s right to revoke the permit and disconnect the sewer connection to the POTW. The prime consideration in the construction of any instrument is to ascertain and effectuate the intent of the parties at the time of execution of the document (South Center Department Store, Inc. v. South Parkway Building Corp. (1958), 19 Ill. App. 2d 61, 68, 153 N.E.2d 241, 244; Law v. Kane (1943), 384 Ill. 591, 596, 52 N.E.2d 212, 214); and effect must be given to each clause, word, or term employed by the parties, rejecting none as meaningless or smplusage. (Dolley v. Powers (1949), 404 Ill. 510, 512-13, 89 N.E.2d 412, 414.) Instruments should be given their fair and reasonable interpretation based on consideration of the language and provisions. (Shelton v. Andres (1985), 106 Ill. 2d 153, 159, 478 N.E.2d 311, 314.) As originally formulated at the time of submission to Grigoleit, paragraph B(2), entitled “MONITORING REQUIREMENTS AND LOCATION,” provided that analytical results obtained from manhole samples would be binding. Grigoleit added the language “for all purposes of providing satisfactory evidence of compliance with conditions of this permit.” Grigoleit ignores other conditions of the permit which impose affirmative duties on it unrelated to the sampling requirements, such as record keeping, establishment of a spill-containment plan, certification for disposal of wastewater from Grigoleit’s tool-plating works, payment of surcharge or user fees, and an agreement by Grigoleit pursuant to paragraph (7) of the opening provisions, “to provide immediate access to authorized personnel of the District to any facility *** under emergency conditions and at all other reasonable times.” (Emphasis added.) Under Grigoleit’s interpretation of paragraph B(2), all these other provisions would be rendered meaningless or surplusage. We cannot accept such an interpretation in the absence of clear language in the agreement.

The permit makes frequent reference to various provisions of pretreatment ordinance No. 85—2. Section 400.105(d) of that ordinance provides: “Wastewater Discharge Permits shall be expressly subject to all provisions of this Ordinance and all other applicable regulations, user charges, and fees established by the POTW.” (Sanitary District, Decatur, Ill., Ordinance 85—2, §400.105(d) (July 12, 1985).) We are reluctant to construe the permit in such a manner as to render it at odds with the ordinance.

Grigoleit implicitly acknowledges that other provisions of the ordinance are incorporated as conditions imposed on the licensee via the permit, based on its citation to section 400.105(d)(12), which allows the district to negotiate for inclusion in the permit of other conditions as may be necessary to insure compliance. (Sanitary District, Decatur, Ill., Ordinance 85—2, §400.105(d)(12) (July 12, 1985).) Aside from the fact that the language added by Grigoleit in paragraph B(2) does not serve to “insure compliance,” Grigoleit cannot selectively overlay only those provisions of the ordinance with which it is in agreement. All provisions of the ordinance necessarily apply to define the terms pursuant to which Grigoleit is permitted to discharge into the POTW. Section 400.125(a) expressly requires that Grigoleit allow “ready access” to POTW representatives to “all parts of said premises” for the purposes of inspection. (Sanitary District, Decatur, Ill., Ordinance 85—2, §400.125(a) (July 12, 1985).) Upon failure to allow such inspection, the Board may revoke the user’s permit.

Although Grigoleit would have the limiting language of paragraph B(2) control all other provisions of the permit, including paragraph (7) of the opening provisions, we cannot conclude such was the intent of the parties. Acceptance of Grigoleit’s view that paragraph B(2) is the sum total of its obligations as licensee under the terms of the permit would subvert the Board’s ability “[t]o prevent the introduction of pollutants into the POTW” (Sanitary District, Decatur, Ill., Ordinance 85—2, §100.105(c) (July 12, 1985)) and render its exercise of authority to be in derogation of the ordinance. A municipal entity must comply with its own ordinances. (See Baltis v. Village of Westchester (1954), 3 Ill. 2d 388, 407, 121 N.E.2d 495, 505.) We find the circuit court’s order reversing the Board’s revocation of Grigoleit’s permit to discharge into the POTW against the manifest weight of the evidence. (See Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513, 475 N.E.2d 879, 885.) Accordingly, the circuit court’s order is reversed and the Board’s order revoking the permit of Grigoleit is reinstated.

Reversed and Board’s order reinstated.

GREEN, P.J., and LUND, J., concur.