author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The Department of Public Works and Buildings, Petitioner-Appellant, v. Wilson and Company, Inc., et al., Defendants-Appellees.
    (No. 73-18;
    Second District
    September 24, 1974.

      Rehearing denied October 23, 1974.

      William J. Scott, Attorney General, of Chicago, (Frank S. Righeimer, WiHiam P. Ryan, and John E. Waghorne, Assistant Attorneys General, of counsel), for appellant.
    Foran, Weiss & Schultz, of Chicago, for appeHees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

dehvered the opinion of the court:

This is a condemnation proceeding wherein the petitioner appeals from a judgment awarding the defendant $21,400 for the land taken and $64,000 for damage to the remainder. The appeal concerns only the propriety of the latter award and questions: (1) whether the trial court erred by allowing defendant to introduce evidence concerning damages to the remainder; (2) whether such award included non-compensable elements of damages; and (3) whether the trial court erred when it directed the jury to return a verdict in favor of the defendant in the sum of $64,000.

Defendant’s property, a 5.24-acre tract, was located immediately west of Route 83 on the north side of Roosevelt Road. Its only ingress and egress was on Roosevelt Road via a 151.2' frontage strip. Route 83 is a high-volume traffic artery and the property facing Roosevelt Road contains various commercial enterprises. The petitioner sought to take .55 acres which included defendant’s entire frontage on Roosevelt Road for a depth of 150' to 200', leaving a rectangular-shaped parcel containing 4.69 acres without any access. In order to remedy this situation, petitioner proposed to bmld an access road to connect the remaining tract to a north-south residential street, Monterey Avenue. Monterey is located west of defendant’s property and it eventuaUy intersects Roosevelt Road.

Defendant’s appraiser described the property as being unique in that the 151.2' Roosevelt Road frontage was the only access to the entire tract. He testified that before the taking the highest and best use of the tract was for retail establishments which require on-site inventory, e.g., auto agency, lumber yard or discount house, and he valued the entire parcel at $185,400. It was his opinion that, as a result of the taking, the highest and best use of the remainder would be altered to that of an industrial use such as a storage or contractor’s yard, and he stated that in reaching this opinion he had considered the loss of direct access and the inferior type of substitute access provided by the frontage road. He testified that prior to the taking, the fair cash market value of the remainder was $164,000 and, after the taking, $100,000, indicating a $64,000 damage to the remainder as a result of the taking.

It is petitioner’s position that while an owner whose land abuts a highway has the right of access to his property, this right is subject to reasonable regulation and control by the State under its police power; that where this power is invoked and causes an impairment to the right of access, there can be no recoverable damages; that because petitioner proposes to build a frontage road allowing defendant indirect access to Roosevelt Road, it cannot be said that defendant’s right of access was taken or materially damaged; and that it was therefore error for the trial court to allow any evidence on the question of damage to the remainder.

To support this position, petitioner relies upon certain Illinois cases where the State, under its police power, is allowed to regulate the flow of traffic upon a highway by means of traffic control devices which in turn impair the access previously enjoyed by abutting property owners. In none of the cases cited by petitioner was there a complete taking of a defendant’s direct access; the access was only impaired.

Here, petitioner is not impairing defendant’s direct access but is, instead, taking all of his access to Roosevelt Road and substituting an indirect access by means of a frontage road. The law applicable under these facts is best stated in Department of Public Works & Buildings v. Mabee, 22 Ill.2d 202, 205 (1961):

“It is a well-established rule in this State that the right of access to an existing public street or highway is a valuable property right which cannot be taken away or materially impaired without just compensation. (Department of Public Works and Buildings v. Wolf, 414 Ill. 386; Illinois Malleable Iron Co. v. Comrs. of Lincoln Park, 263 Ill. 446; Rigney v. City of Chicago, 102 Ill. 64.) This rule has been applied where a public improvement has completely, (People ex rel. First National Bank of Blue Island v. Kingery, 369 Ill. 289,) or materially (Rigney v. City of Chicago, 102 Ill. 64,) destroyed a property owner’s means of access to the whole highway * * *. The rule cannot be applied, however, where the property owner’s free and direct access to the lane of traffic abutting on his property has not been taken or impaired. Once on the highway he is in the same position and subject to the same police-power regulations as every other member of the traveling public. (Walker v. State, 48 Wash.2d 587, 295 P.2d 328.)”

(See also Department of Public Works & Buildings v. Divit, 25 Ill.2d 93, 101 (1962) and Department of Public Works & Buildings v. First National Bank, 9 Ill.App.3d 633, 637 (1973).) Because of petitioner’s action, defendant has sustained a special damage which exceeds that suffered by the public generally. (County Board of School Trustees v. Elliott, 14 Ill.2d 440, 446 (1958).) Since there was a complete talcing of access, we find that the trial court did not err when it allowed defendant to introduce evidence concerning damages to the remainder based upon loss of direct access.

We do not find that the award for damages to the remainder contained non-compensable elements. The measure of damages to the remainder is the depreciation in value of land not taken which results from the taking, that is, the difference between the fair cash market value of the part not taken unaffected by the improvement and its fair cash market value as affected. (Department of Public Works & Buildings v. Bloomer, 28 Ill.2d 267, 270 (1963).) In making this computation, special benefits accruing to the remaining parcel by reason of the improvement (in this case, the frontage road) must be set-off against resulting damage. (Department of Public Works & Buildings v. Divit, supra, at 100 — 101.) Petitioner bottoms its argument on the fact that defendant’s appraiser, in arriving at his determination, considered loss of direct access and a change in the highest and best use of the land not taken. Petitioner claims that neither the loss of access nor the change in the highest and best use of remaining land are proper elements to be considered. We disagee. Under the facts in this case, both elements may be included. Department of Public Works & Buildings v. First National Bank, supra, at 636-37.

The petitioner further maintains that the trial court erred in directing a verdict as to damages to the remainder solely on the basis of the testimony of defendant’s expert. The testimony of defendant’s expert was the only competent evidence of the damage to the remainder that was placed before the jury. The defendant’s expert was not cross-examined by the petitioner. The petitioner recalled its own expert, but after the court sustained an objection to the form of a question, the petitioner chose to rest its case without presenting any evidence in rebuttal of the defendant’s expert’s testimony. The proofs of the case were closed and the court directed a verdict in favor of the defendant for $21,400 as the stipulated value of the property taken and $64,000 as damage to the remainder caused by the taking.

Where the only competent evidence submitted to the jury (as to the remainder) was that of the defendant’s expert, the jury was obliged to determine the damage upon the only evidence before it, and the court therefore properly directed a verdict in the amount testified to by the defendant’s expert. City of Chicago v. Riley, 16 Ill.2d 257, 264 (1959); Department of Public Works & Buildings v. Butler, 5 Ill.App.3d 134, 137 (1972).

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Cheetah Enterprises, Inc., Plaintiff-Appellant, v. The County of Lake et al., Defendants-Appellees.
    (No. 73-157;
    Second District
    September 24, 1974.

      Ray, Click & Assoc., of Libertyville, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (Julius Abler, Assistant State’s Attorney, of counsel), for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff operates a tavern and night club known as Cheetah II in unincorporated territory of Lake County, Illinois. Its entertainment features nude dancing.

The defendant, the County Board of Lake County, passed a resolution amending its liquor control ordinance, renumbering the former section 30 thereof as section 31 and inserting new material as section 30. The ordinance provides:

“NOW, THEREFORE, BE IT RESOLVED, by this County Board of Lake County, Illinois, that the Lake County Liquor Control Ordinance adopted by the Board of Supervisors October 10, 1961, as amended, be and it is further amended, as follows: SECTION 30 — Delete ‘30’ and insert ‘31’.
Insert SECTION 30, to read as follows:
‘The following kinds of conduct on premises in this County licensed to sell alcoholic liquor, are prohibited:
(1) The performance of acts, or simulated acts, of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
(2) The actual or simulated touching, caressing or fondling on the breast, buttocks, anus, or genitals.
(3) The actual or simulated displaying of the breasts, pubic hair, anus, vulva or genitals.
(4) The permitting by a license of any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus.
(5) The displaying of films or pictures depicting acts, a live performance of which was prohibited by the regulations quoted above.’
DATED, at Waukegan, Lake County, Illinois, on this 13th day of February, A.D., 1973.”

The plaintiff filed an action for a declaratory judgment, seeking to have the resolution declared void. The County filed a motion to dismiss the complaint which was granted, with the trial court making extensive and specific findings in its order of dismissal. Plaintiff appeals, contending that the resolution was beyond the powers delegated to the County by the State of Illinois. Alternatively, it contends that if the resolution is held to be within the authority of the County, it is unconstitutional under the 1st and 14th amendments to the United States Constitution granting freedom of expression and due process of law, and unconstitutional under similar provisions of the Illinois Constitution of 1970.

Plaintiff first argues that the County has no authority to prohibit nude dancing in dramshops because the enabling statute, section 1 of article IV of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 110), specifically limits the type of conduct which the County may proscribe and does not refer to nude dancing.

Section 1 of article IV provides, as pertinent:
“* * * in counties in respect of territory outside the limits of any such city, village or incorporated town the county board shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this Act and the amount of the local licensee fees to be paid for the various kinds of licenses to be issued in their political subdivision * * *; to prohibit any woman or minor, other than a licensee or the wife of a licensee, from drawing, pouring, or mixing any alcoholic liquor as an employee of any retail licensee; and to prohibit any minor from at any time attending any bar and from drawing, pouring or mixing any alcoholic liquor in any licensed retail premises; and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require; and to provide penalties for the violation of regulations and restrictions, including those made by county boards, relative to operation under local licenses; provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act.”

Sections 2, 8, 8a and 21 of article VI do not prohibit nude dancing. Section 2(7) of article VI (Ill. Rev. Stat. 1973, ch. 43, par. 120(7)) prohibits the issuance of liquor licenses to a person whose license has been revoked for cause. Section 5 of article VII (Ill. Rev. Stat. 1973, ch. 43, par. 149) provides for the revocation of a liquor license by the local liquor control commissioner if he determines that the licensee has violated any of the provisions of the Act or of any valid ordinance or resolution enacted by a county board or any rules or regulations established by the local liquor control commissioner or the State Liquor Control Commission.

The power of a municipality to control the traffic in intoxicating liquors is derived entirely from the State and the municipality has only that power delegated to it and no other. (Maywood-Proviso State Bank v. City of Oakbrook Terrace (1966), 67 Ill.App.2d 280, 286.) The Liquor Control Act contains the delegation of this power to municipalities and prescribes the limits beyond which a municipality may not act; any ordinance or act of a municipality beyond the legislative authorization .of the Liquor Control Act is without legal force or validity. Maywood-Proviso State Bank v. City of Oakbrook Terrace, 67 Ill.App.2d 280, 286.

From this, plaintiff reasons that since the statute provides “the issuance of such licenses shall not be prohibited except for reasons specifically enumerated * * *” (Ill. Rev. Stat. 1973, ch. 43, par. 110), the county may not prohibit activities not specifically authorized to be prohibited by the Liquor Control Act. Plaintiff cites and relies upon Heidenreich v. Ronske (1962), 26 Ill.2d 360, and Emm v. Sopher (1961), 23 Ill.2d 376, in support of its argument.

The County responds that the proviso relied upon by the plaintiff refers only to the prohibition of the issuance of licenses rather than the regulation of the ongoing operation of dramshops; and that the legislative intention expressed in the language of section 1 of article IV which permits the city to “establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require * * *” (Ill. Rev. Stat. 1973, ch. 43, par. 110) authorizes the County to pass the ordinance here in question.

In Heidenreich, the supreme court held that a county could not regulate retail liquor establishments by licensing bartenders since this authority was not specifically within the powers stated in article IV of the Illinois Liquor Control Act to prohibit certain conduct, e.g., the employment of women and minors, nor justified as a regulation which was reasonably necessary to effectuate the prohibition stated in the Act. In Emm, the court held that a county could not legislate that no liquor license should be granted to any person “whose principal business is the sale at retail of groceries, meat products and/or drugs.”

It does not necessarily follow, however, that plaintiff is correct in extending the reasoning of these cases to equate the lack of power in a county to deny the issuance of a liquor license to one in the retail grocery, meat or drug store business, or the lack of power to license bartenders, with a similar lack of power to deny a license or the right to continue to operate under a license to a tavern which offers nude dancing as entertainment. To reconcile and give meaning to the statutory scheme as a whole, it is necessary to conclude that the legislature intended to confer upon local authorities within their jurisdiction, the power to regulate liquor licensees beyond the few specific options mentioned when such regulation is reasonably necessary to make effective the delegated power to regulate retail liquor establishments by nondiscriminatory provisions consistent with the public good and convenience. Any other reasoning wpuld. give no meaning to the language which gives local authorities power to regulate such establishments for the public good and convenience.

The necessity for giving effect to the language relied upon by the County is illustrated by the case of Picco v. Simon (1967), 80 Ill.App.2d 277, 280-281. The court held that a municipality could impose frontage consents as a requirement for the issuance of a liquor license under the “further regulations” language referred to in section 1 of article IV of the Liquor Control Act, since the regulation did not prohibit any person or class from obtaining a license and was uniform in its operation and required for the public good and convenience. Similarly here the regulation does not deny a license to any person or class not specified in the enabling statute (Emm v. Sopher (operators of a grocery store)) but rather is aimed at the regulation of conduct; and it does not seek to establish a new system of licensing employees parallel to the provisions of the Illinois Liquor Control Act (e.g., Heidenreich v. Ronske (separate licensing of bartenders)).

The regulation must be further examined, however, to determine whether the county resolution is reasonably necessary to malee effective the power granted to make “further regulations * * * as the public good and convenience may require.”

The type of conduct prohibited by the resolution, if constitutionally permissible, is consistent with the public good as that term is used in the statute. The enabling section itself limits the employment of women and minors; and the prohibition on nude dancing is within the realm of conduct which has traditionally been regulated in the licensing of dram-shops. See, e..g, Cermak Club, Inc. v. Illinois Liquor Control Commission (1963), 30 Ill.2d 90; Evans v. Daley (1970), 121 Ill.App.2d 196 (abstract opinion); Weinstein v. Daley (1967), 85 Ill.App.2d 470, 481.

It also should be noted that a license can be revoked for violation of local ordinances and the issuance of a license can be denied if the applicant has had his license revoked for cause. (Ill. Rev. Stat. 1973, ch. 43, pars. 120(7), 149.) Thus, it is obvious that a liquor licensee’s conduct is subject to a broad panorama of regulation. It would be inconsistent to hold that a local authority could not regulate a licensee directly under the Illinois Liquor Control Act but for the specific types of conduct mentioned, but may do so generally by ordinance or resolution pertaining to matters such as immoral conduct. The nature of dramshop operations requires them to be regulated and restricted more rather than less than the general public or other commercial enterprises. See, e.g., Walgreen Co. v. Garland (1942), 316 Ill.App. 635, 643; Weinstein v. Daley (1967), 85 Ill.App.2d 470, 481.

Plaintiff next contends that the county resolution is unconstitutional because it violates first amendment freedoms and offends both procedural and substantive due process.

The argument made as to the first amendment is principally based upon the United States Supreme Court decision in California v. La Rue (1972), 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390. Plaintiff argues that the Lake County resolution is more restrictive than the regulation of the California Department of Alcoholic Beverage Control which was upheld in La Rue. The difference between the two in terms of substantive restrictions is that the live, simulated or pictorial display of breasts and buttocks is proscribed in the Lake County resolution but was not forbidden in the California regulation. Plaintiff argues that the additional restrictions of the Lake County ordinance “encompass many types of conduct and dress that in no way can be considered obscene, indecent or suggestive of the type of conduct sought to be prevented by California. The Lake County regulations preclude the display of what may be considered ordinary skin as well as more esoteric parts of the body”; and “would preclude from taverns many art works and decorations never conceived to be in the ambit of the California regulations or Supreme Court decision in the La Rue case.” Plaintiff also argues that even La Rue does not completely override first amendment rights, that tire restriction on first amendment rights in the instant case is too great (citing United States v. O’Brien (1968), 391 U.S. 367, 20 L.Ed.2d 672, 88 S.Ct. 1673), and that the legislative body must achieve its legitimate concerns by means which have a less drastic impact on first amendment freedoms citing United States v. Robel (1967), 389 U.S. 258, 19 L.Ed.2d 508, 88 S.Ct. 419, and Shelton v. Tucker (1960), 364 U.S. 479, 5 L.Ed.2d 231, 81 S.Ct. 247.

The County responds that La Rue permits the county to regulate conduct without the confines of decisions as to obscenity and communicative conduct; that the legislative authority has granted wide latitude as to choice of means to accomplish a permissible end; that plaintiff’s nude dancing partakes more of gross sexuality than of communication; and that the added presumption of validity of regulations in the area and liquor traffic require that we hold the Lake County resolution nonviolative of the constitution.

Plaintiff agrees that obscenity per se is not the issue, but contends that whether the proscribed acts are obscene goes to the question of the reasonableness of the county resolution.

Plaintiff argues both that the resolution is unconstitutional as applied and is on its face overbroad. The principal issue in the litigation has been directed at the prohibition of nude dancing. Insofar as the county resolution prohibits nude dancing, we conclude that it is constitutional. The regulation in La Rue would prohibit nude dancing and it was upheld. Under the reasoning of La Rue even ordinances prohibiting topless dancing in dramshops have been upheld. (City of Seattle v. Hinkley (1973), 83 Wash.2d 205, 517 P.2d 592; Paladino v. City of Omaha (8th Cir. 1972), 471 F.2d 812; Manos v. City of Green Bay (E.D. Wis. 1974), 372 F.Supp. 40; Cherbonnie v. Kugler (D.N.J. 1973), 359 F.Supp. 256.) Recently, in Paul A. Richter & Associates, Inc. v. Superior Court of California (1973), 414 U.S. 1044, 38 L.Ed.2d 335, 94 S.Ct. 548, the supreme court denied (without opinion) a liquor licensee’s writ of mandate challenging a ban on nude dancing performances in licensed premises as applied to allegedly non-obscene performances. (See Manos v. City of Green Bay, 372 F.Supp. 40, 47.) We also note that states have greater power to regulate nonverbal physical conduct than to suppress depictions or descriptions of the same behavior. (Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607; Peto v. Cook (S.D. Ohio 1973), 364 F.Supp. 1, 2.) Thus, under the Miller standards nude dancing even in establishments which do not serve alcoholic beverages may be proscribed when devoid of serious expressive value and designed for commercial exploitation of sexuality. Starshock, Inc. v. Shusted (D.N.J. 1974), 370 F.Supp. 506.

The conclusion we have reached, that the forbidding of nude dancing in taverns is constitutional, does not encompass a finding that all other provisions of the ordinance could similarly withstand an attack on a constitutional basis. Particularly subsection 5 of the resolution which prohibits the display of pictures which display buttocks or breasts would, in our view, post serious constitutional questions if the county attempted to enforce it. (See Peto v. Cook, 364 F. Supp. 1, 3-4.) But we consider section 5 to be severable from the remaining parts of the ordinance, since it appears obvious the county desires to proscribe in dramshops the conduct described in sections 1-4 regardless of the validity of section 5. (Henrys v. Raboin (1946), 395 Ill. 118, 124 — 6; See also 16 Am.Jur.2d Constitutional Lato §§ 181-183 (1964).) We have thus given recognition in our opinion to the fact that the plaintiffs’ interests throughout has been in protecting its right to carry on nude dancing as the trial court found in its order.

Plaintiff contends that the county’s procedure in amending its liquor control ordinance offended procedural due process because there were no public hearings or findings of a connection between the conduct proscribed and criminal activity or sordid conduct. Plaintiff contrasts with the County’s procedures in the instant case the California Department of Alcoholic Beverages Control which led to the regulation scrutinized in California v. La Rue, 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390.

Plaintiff, however, fails to cite any authority that a legislative body must hold hearings or make findings before it can validly enact an ordinance or resolution which it otherwise is competent to enact. Although the revocation of a liquor license which entails a loss of a substantial investment may require certain procedural safeguards (Manos v. City of Green Bay, 372 F.Supp, 40), plaintiff’s license is not being revoked and the Illinois liquor license revocation procedure (Ill. Rev. Stat. 1973, ch. 43, par. 149) which does contain procedural safeguards, is not here in question. Procedural due process provides safeguards to persons whose property or other rights may be deprived pursuant to powers conferred by general acts of government; it does not apply to actions which are political in their nature and which lie within the legislative province. Cf. 2 Am.Jur.2d Administrative Law §§ 279, 281 (1962).

Plaintiff’s argument directed at a deprivation of substantive due process is based on its claim that the resolution is an unreasonable exercise of the police power. It argues that the resolution will substantially end its business with no evidence that the county ordinance promotes or will promote a legitimate legislative end.

The legislature has wide discretion in the enactment of laws for the protection of public health, safety and morals or the promotion of the general welfare. (People v. Warren (1957), 11 Ill.2d 420, 424-5.) The regulation of liquor businesses must be pursuant to a legitimate exercise of the police power (Shoot v. Illinois Liquor Control Commission (1964), 30 Ill.2d 570, 575.) But the State may impose regulations on liquor traffic more stringent than would be permitted in other businesses. Shoot v. Illinois Liquor Control Commission (1964), 30 Ill.2d 570, 574-5; California v. La Rue, 409 U.S. 109, 34 L.Ed.2d 342, 349-50, 93 S.Ct. 390.

In Henson v. City of Chicago (1953), 415 Ill. 564, the Illinois Supreme Court upheld a local ordinance preventing females from bartending unless related to the licensee, as a reasonable exercise of the police power since the restriction tended to safeguard the morals of the females and the public. It would follow that the restriction of sexual displays and simulations thereof in a place where alcoholic liquor is sold for consumption on the premises tends to promote and protect the good morals of the public. See Weinstein v. Daley, 85 Ill.App.2d 470, 481-482.

A regulation passed by a municipal body in pursuance of competent statutory authority is presumptively valid. (Henson v. City of Chicago, 415 Ill. 564, 570.) When the legislative act is derived from the police power the court must be able to see that it tends in some degree towards the prevention of offenses or the preservation of the public health, morals, safety or welfare. (Henson v. City of Chicago, 415 Ill. 564, 570.) It seems apparent here that there is the sufficient connection between the provisions of the law which proscribe nude dancing in a liquor establishment and the purpose of protecting the moral welfare of the public.

Plaintiff has also argued that the Lake County liquor control ordinance cannot properly be amended by a resolution or other act of less dignity than another ordinance. The trial court in its extensive findings concluded that the Lake County liquor control “ordinance" uses the term “ordinance” and “resolution” throughout seemingly interchangeably; that no reference is found to the manner in which amendments are to be made; and that where the charter of a municipality is silent as to the mode in which the governing body shall perform an act, its decision may be evidenced by either resolution or ordinance. We agree with the conclusions of the trial court. See Houston v. Village of Maywood (1956), 11 Ill.App.2d 433, 439.

While it has been stated that resolutions are merely statements of opinion or ministerial acts and ordinances are necessary for municipal legislation of a continuing nature (Village of Gulfport v. Buettner (1969), 114 Ill.App.2d 1, 9), this is not true where the enabling statute does not require an ordinance to enact legislation. (Houston v. Village of Maywood, 11 Ill.App.2d 433, 439; Village of Hoffman v. Meier (1972), 4 Ill.App.3d 949, 952.) The enabling statute here in question authorizes counties to adopt liquor control legislation either by resolution or by ordinance. Ill. Rev. Stat. 1973, ch. 43, par. 110.

For the reasons stated we affirm the order of the trial court.

Affirmed.

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

       The trial court’s order of dismissal contains a finding “since the regulations referred to are not challenged on their face for overbreadth, no purpose would be served by attempting at this time to give them any construction.”


author: Mr. JUSTICE KEITH SCOTT

text:
    The People ex rel. Ralph B. Thompson et al., Plaintiffs-Appellants, v. The Property Tax Appeal Board et al., Defendants-Appellees.
    (No. 73-377;
    Second District
    September 27, 1974.

      Margaret E. Thompson, of Hinsdale, for appellants.
    William J. Scott, Attorney General, of Chicago and John J. Bowman, State’s Attorney, of Wheaton (Paul J. Bargiel and Robert G. Epsteen, Assistant Attorneys General, and James F. Campion, Assistant State’s Attorney, of counsel), for appellees.
   Mr. JUSTICE KEITH SCOTT

delivered the opinion of the court:

In March, 1972, the Board of Review of Du Page County confirmed the assessor’s valuation on certain residential property of Ralph B. Thompson or of Ralph B. and Margaret E. Thompson, being $13,650 on the land and $22,580 on improvements. An appeal was filed in proper time by Margaret E. Thompson as owner with the Property Tax Appeal Board. Hearing on the appeal was set and had July 20, 1972. Notice of the hearing was given to the appellant and the Board of Review, State’s Attorney, and supervisor of assessments in Du Page County. Mrs. Thompson filed a brief and 14 exhibits and testified at the hearing. One witness was called by the Board of Review. In September, 1972, the Property Tax Appeal Board entered its finding that the decision of the Du Page County Board of Review was correct and that the correct assessed valuation of the property was $13,650 on the land and $22,580 on the improvements for a total of $36,230.

Within 35 days thereafter Mrs. Thompson filed a 17-page complaint for administrative review, which complaint was captioned as shown in the title of this case.

Timely motion was filed by the Board of Review, supervisor of assessments, and State’s Attorney of Du Page County to strike and to dismiss certain defendants, to strike and to dismiss certain plaintiffs, and to strike certain portions of plaintiffs’ complaint. Thereafter Mrs. Thompson moved for the appointment of a special prosecutor. In November the answer of the Property Tax Appeal Board was filed by the Attorney General.

In February, 1973, the trial court entered an order dismissing the' plaintiffs “People of the State of Illinois,” striking a large portion of plaintiffs’ complaint and prayer for relief, and giving “defendant [sic]” leave to file an amended complaint. The motion to dismiss as to certain defendants was denied, and an amended prayer for relief was subsequently filed.

The final order of the trial court was thereafter entered April 12, 1973, finding that the decision of the Property Tax Appeal Board was supported by the record and dismissing plaintiffs’ appeal. On the same day Mrs. Thompson (hereafter referred to as plaintiff) filed notice of appeal to this court.

On May 10, 1973, a second notice of appeal was filed by the plaintiff. On July 30, 1973, the trial court entered an order denying the motion filed by plaintiff for consolidation and for the appointment of a special prosecutor. On August 30, 1973, plaintiff filed a third notice of appeal from the trial court’s order of July 30, 1973.

Plaintiff improperly seeks to make a class action out of her complaint for administrative review. It is fundamental that the right to administrative review is limited to the parties in the original administrative proceedings. Frank v. State Sanitary Water Board, 33 Ill.App.2d 1:

“The Administrative Review Act (Ill. Rev. Stat. c 110, §§ 264-279, 1959) provides that unless review of an administrative decision is sought in the manner provided by the act, the parties: to the proceeding before the agency shall be barred from obtaining judicial review (Sec. 265). The act further provides that in any action to review a final decision of an administrative agency, the agency and all persons other than the plaintiff, who were parties of record to the proceeding before the administrative agency shall be made defendants (§ 271). Section 264 defines administrative decision as any decision, order or determination which affects the legal rights, duties or privileges of the parties. It thus appears that the right of administrative review is limited to the parties to the administrative proceeding. Stimiman v. County Board of School Trustees, 26 IllApp2d 245, 167 NE2d 829; Winston v. Zoning Board of Appeals, 407 111 588, 95 NE2d 864.” 33 Ill.App.2d at 7.

Moreover, the factual situation appearing in the record and recited in plaintiff’s complaint for administrative review wholly fails to meet the test commonly applied in determining the propriety of a class action as set out in De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 762:

“In determining the propriety of a class action, the test to be applied is the existence of a community of interest in the subject matter and a community of interest in the remedy. (Harrison Sheet Metal Co. v. Lyons, 15 Ill. 2d 532, 155 N.E. 2d 595.) The factors to be considered in applying this test are: (1) whether the claims of all members of the class share a common question of law and fact; (2) whether the causes of action of the members of the class arise from the same transaction; (3) whether one party can adequately represent the rights and interests of all other members of the purported class; (4) whether the number of possible class members renders separate litigation impossible or impractical; and, (5) whether there exists a purely equitable cause of action. Moseid v. McDonough, 103 Ill. App. 2d 23, 243 N.E. 2d 394.” (See also Reardon v. Ford Motor Co., 7 Ill.App.3d 338, 342.)

Involved in plaintiff’s action for administrative review is the decision of the Property Tax Appeal Board with reference to the assessed valuation of a single tract of real estate owned by plaintiff or plaintiff and her husband. As hereinabove noted, the jurisdiction of the Property Tax Appeal Board was limited to the single issue raised by the plaintiff in her appeal to that Board. There is no basis whatsoever for a representative suit here.

Additionally, it should be noted that in any event plaintiff has erroneously titled her cause, if, in fact, she desired to institute a “class action.” The title describes, rather, a suit brought on behalf of the public —by or for the People of the State of Illinois — not for any group or class of persons. There is a clear distinction between the two. They are arguably mutually exclusive.

A more serious objection to plaintiff’s petition is her attempt to bring such representative suit pro se. Margaret E. Thompson, a lay person, is privHeged to appear on her own behalf but she has no such privilege or authority to represent in courts of law other persons or a class unless admitted to the practice of law. And it appears by clear inference, if not directly from plaintiff’s brief, that she isn’t admitted to the practice before the courts of Illinois. She cannot represent a class or the members of a class, as individuals directly. (Lake Shore Management Co. v. Blum, 92 Ill.App.2d 47.) She cannot be permitted to do that indirectly. The only proper plaintiff in this case is Margaret E. Thompson. The trial courts dismissal of “The People of the State of Illinois” was proper.

Plaintiff contends the Property Tax Appeal Board lacks authority to decide the scope of its review. It is correct that where the authority of an administrative body is in question the determination of the scope of its power and authority is a judicial function, not a question to be finally determined by the administrative agency itself. (See Social Security Board v. Nierotko, 327 U.S. 358, 369 — “An agency may not finally decide the limits of its statutory power. That is a judicial function.”) It, of course, does not follow that an administrative body can never determine the scope of its jurisdiction in any situation. In any case, by acting or refusing to act, it necessarily determines that the subject matter and its activity are or are not within the purview of the statute creating the agency. To that extent the Property Tax Appeal Board was authorized to make, and necessarily made, such determination of the scope of its review in this case. The correctness of that determination, of course, may be raised on review. It is a question of law and not of fact. And we hold here that the Property Tax Appeal Board in this case as a matter of law correctly determined its jurisdiction and the scope of its review.

Plaintiff further contends that the Property Tax Appeal Board erroneously limited its consideration of plaintiff’s appeal from the decision of the Du Page County Board of Review to the question of the correctness of the assessment on the Thompson property. The plaintiff has proceeded on a mistaken conception and misunderstanding of the jurisdiction and function of the Property Tax Appeal Board and its relation to the Department of Local Government Affairs. In the record of the proceedings before the Property Tax Appeal Board (page 183), referring to assessments of other tracts in the area, Mrs. Thompson said, “All I am asking you to do in this case is to recommend to the Department that they look into it and ask to have it reassessed.” And again, “Well, you have the same authority as the Board of Review has — to correct descriptions, to add property if it isn’t added.” And in paragraph 26 of the complaint for review she has contended “that the agency failed and refused to take jurisdiction in equity to compel property to be properly platted and described for assessment purposes; that the agency failed and refused to take equity jurisdiction to compel compliance to the Illinois Revenue Act.” The Property Tax Appeal Board is not authorized to do any of these things.

Legislative history clearly shows that the Property Tax Appeal Board and the Department of Local Government Affairs are distinct entities. The Property Tax Appeal Board is not in its origin or history an administrative arm of the Department of Local Government Affairs (prior to January 1, 1970, the Department of Revenue). The only authority and power placed in the Board by statute is to receive appeals from decisions of Boards of Review (Ill. Rev. Stat. 1973, ch. 120, par. 592.1), make rules of procedure (par. 592.2), conduct hearings (par. 592.3), and make a decision on the appeal (par. 592.4). That is all. The only types of appeal provided for in the statute are by “any taxpayer dissatisfied with the decision of a Board of Review as such decision pertains to an assessment of his property for taxation purposes or any taxing body that has an interest in the decision of the Board of Review on an assessment made by any local assessment officer * * The statute has remained virtually unchanged except that the Department of Revenue has been superseded by the Department of Local Government Affairs. There are no other prerogatives, powers, or authority accorded to the Board. It is fundamental that an administrative body has only such powers as are granted in the statute creating it. No citation of authority on this point is necessary.

Plaintiff has erroneously contended that it is within the power and authority, and that it is the duty, of the Property Tax Appeal Board “to see to it that taxes are equal and just.” There is nothing in the statute or history of the Property Tax Appeal Board to indicate or suggest that the Board has any authority except to review the assessment on individual property as it has done here. The Property Tax Appeal Board in this case correctly processed the appeal by Margaret E. Thompson and limited the scope of its review to consideration of the decision of the Bo aid of Review of Du Page County and to the question of the correct assessed valuation of plaintiff’s property. Plaintiff refers to section 130 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 611). An examination of sections 130 through 140 shows clearly the Property Tax Appeal Board is in no way involved in the activities authorized, and directed in those sections for the Department of Local Government Affairs. The contention of plaintiff that the authority and jurisdiction of the Property Tax Appeal Board extends beyond its activities reflected in the record here must be denied.

On administrative review the court may, and should, consider and determine as a matter of law, if the issue is raised, whether or not the administrative agency has acted within and according to the provisions of the statute creating it. This we have done. The only other function of the court on administrative review is to determine whether or not' there is evidence to support the decision of the administrative agency. This rule is well stated in Fenyes v. State Employees’ Retirement System, 17 Ill.2d 106, 111:

“Under the Administrative Review Act, the findings of the administrative agency on questions of fact are prima facie correct. They may be reviewed to determine if they are supported by the evidence, but they can be set aside only if against the manifest weight of the evidence. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill.2d 434; Logan v. Civil Service Com. 3 Ill.2d 81; Drezner v. Civil Service Com. 398 Ill. 219.
The judicial function of the reviewing court in such case is comparable to that presented where such court is called upon to determine an issue at law as to whether there is competent evidence to support the judgment of the lower court, and when there is evidence to support the findings of the administrative agency, its decision will be affirmed. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill.2d 434, 439.”

The rule has been stated in various language. In Wolbach v. Zoning Board of Appeals, 82 Ill.App.2d 288, 296, the court said, “In order to reverse the administrative order, it is required that an opposite conclusion be clearly evident.” There are other cases to the same effect. In addition, on appeal “the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1973, ch. 110, par. 274.) We have examined the record of the hearing before the Property Tax Appeal Board and find that the Property Tax Appeal Board’s decision is amply supported by competent evidence. Involved here is a residential property of 3.9 acres. Mrs. Thompson testified about land in the immediate vicinity. (Record at 182.) She stated, “* * * I am telling you all this land is worth' fifteen thousand dollars an acre at a minimum and possibly more.” Mr. Randolph: “That is including yours?” Mrs. Thompson: “Including mine.” Mr. Marack, for the Board of Review, testified: “The hearing was held on March 10, 1972. The note I have from the hearing is that the owner stated that the property was worth at least seventy-two thousand dollars.” (Record at 184.) This testimony was not contradicted by plaintiff.

The findings of fact of the Property Tax Appeal Board are sufficient, having consideration for the very limited nature of its inquiry, viz., the correct assessment of the property subject to appeal. The decision of the Property Tax Appeal Board (record at 186) correctly states the Board’s function and jurisdiction and finds the correct assessed valuation on the property here involved is $13,650 for land and $22,580 for improvements, or a total of $36,230. No further detailed finding of facts by the Property Tax Appeal Board was necessary.

Plaintiff contends the trial court erred in not following her motion that the court make findings of fact and state propositions of law upon which its opinion was based, referring to section 12(3) of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 275(3)). We believe, however, that the court’s finding “that the Property Tax Appeal Board in making its determination is supported by the evidence adduced before it and that its determination is warranted by the entire record” is sufficient in this case and that the failure to make any further definitive findings or to recite any propositions of law in this case is not reversible error.

Plaintiff claims error as to the denial of her motion for consolidation and for the appointment of a special State’s Attorney or prosecuting attorney. This motion was made or renewed after plaintiff had perfected her appeal, and the contention of the defendant Property Tax Appeal Board that the motions came too late is well taken. It addition to the technical defense, however, it should be observed that the motion was properly denied on its merits for the reason that there was no representation or showing that a consolidation was proper in any event. The motion with respect to the appointment of a special prosecuting attorney contained wholly irrelevant allegations, in part slanderous and impertinent, and was properly denied.

The Property Tax Appeal Board has contended that plaintiff failed to meet her burden of proof to overcome the presumption that tire assessed valuation was correct. People ex rel. Gill v. Diversey Hotel Corp., 364 Ill. 298, 4 N.E.2d 365 (1936); and People ex rel. Stukart v. N. J. Sandberg Co., 277 Ill. 567, 115 N.E. 741 (1917), cited by the Property Tax Appeal Board involve the correctness of tax levies, not assessed valuations, and in them the court did refer to the presumption that the tax was legally levied and the burden was on the objector to rebut the presumption by clear and convincing evidence. The proposition involved in those cases is not involved here.

People ex rel. Paschen v. Morrison Hotel Corp., 9 Ill.2d 187, also cited by the Appeal Board is an appeal from judgments of the county court directing refunds to Morrison Hotel Corp., which had paid real estate taxes under protest. The trial court found the assessments were “excessive, discriminatory, and amounted to fraud.” The supreme court disagreed and at page 190 said, “It is fundamental that the objector has the burden of establishing a right to judicial relief by clear and convincing evidence, the tax being presumed valid.”

However, in light of the provision in section 111.4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 592.4), that “[t]he Board shall make a decision in each appeal or case heard by it, and such decisión shall be based upon equity and the weight of the evidence and not upon constructive fraud * * **,” we believe the propositions above quoted in the Morrison Hotel Corp. case and relied upon by the Property Tax Appeal Board here are not applicable to hearings before or appeals taken to the Property Tax Appeal Board.

It is noteworthy that no presumption of correctness or validity is accorded the original assessment or the assessment of the Will County Board of Review in Will County Board of Review v. Property Tax Appeal Board, 48 Ill.2d 513.

An examination of the record here leaves no question as to the propriety of the trial court’s ruling in allowing the defense motion, striking and dismissing the plaintiff “People of the State of Illinois,” and in striking a major portion of plaintiff’s original pleading. The paragraphs stricken were extraneous to the issues, irrelevant, surplusage, and improperly pleaded conclusions of law not germane to any of the issues properly raised in the complaint for administrative review. It is not necessary to consider in detail the particulars of the stricken portions. That it was improper pleading and properly stricken is beyond question.

The judgment of the trial court of DuPage County affirming the decision of the Property Tax Appeal Board and dismissing plaintiff's complaint is affirmed.

Affirmed.

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


text:
    Robert James Bauer, a Minor, by His Next Friend, Robert J. Bauer, Jr., et al., Plaintiffs-Appellants, v. Board of Education of School Dist. No. 109, Lake County, et al., Defendants-Appellees.
    (No. 73-44;
    Second District
    October 4, 1974.

      Rehearing denied October 23, 1974.

      Paul E. Hamer, of Northbrook, for appellants.
    Head, Purcell & War drope and Sidney Z. Karasik, both of Chicago, for appellees.


author: Mr. JUSTICE EBERSPACHER

text:
    The City of Carbondale, Plaintiff-Appellant, v. Joe Van Natta et al., Defendants-Appellees.
    (No. 74-264;
    Fifth District
    September 20, 1974.
    John Paul Womick, of Carbondale, for appellant.
    E. Dan Kimmel, of Carbondale, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order entered by the circuit court of Jackson County dismissing the plaintiff’s, the City of Carbondale’s, complaint against the defendants, Joe Van Natta, Master Key Enterprises, Inc., and Cherry Construction, Inc., and dissolving the temporary injunction which had previously been issued.

The City of Carbondale filed a complaint on July 8, 1974, requesting the trial court to issue an injunction against the defendants. Therein the plaintiff alleged that: “City Ordinances Nos. 1216 and 1559 were in effect at all times pertinent hereto.” Section 1 of City Ordinance 1216 provides for the classification and division of property situated within IV2 miles from and beyond the boundaries of the City of Carbondale. Section 2 of the same ordinance provides, in sub-paragraph 2A.2.a.(3), for: “Front yard setback along a public road thrity [sz'c] (30) feet, along a state road sixty (60) feet.” Although City Ordinance 1559 amended City Ordinance 1216, the preceding aspects remain in effect since Ordinance No. 1559 dealt exclusively with amendments to the Special Exceptions provisions embraced in Section 6 of Ordinance No. 1216. It was further alleged that the defendants are engaged in the construction of a certain structure in violation of the set-back requirement of City Ordinance No. 1216. The plaintiff also filed a motion for a temporary injunction on July 8, 1974. After hearing plaintiff’s motion for a temporary injunction the trial court, on July 10, 1974, entered an order issuing a temporary injunction without bond.

The defendant, Joe Van Natta, filed a motion to dismiss on the ground that the ordinances involved herein were “invalid as being contrary to and in violation of the Statutes of the State of Illinois.” Briefs were filed and, on August 9, 1974, the trial court filed its memorandum and order in which it dismissed the cause of action and dissolved the temporary injunction.

We are confronted with two issues on this appeal: first, whether the State’s enabling legislation (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—1 et seq.) empowered the City of Carbondale to establish set-back lines within contiguous territory not more than IV2 miles beyond its corporate limits? and secondly, whether a “home rule” unit may establish set-back lines within contiguous territory without any legislative authorization?

The statutes relevant hereto are contained in section 11 — 13—1 and 11 — 14—1 of the Municipal Code (111. Rev. Stat, ch. 24, pars. 11 — 13—1, and 11 — 14—1). Section 11 — 13—1 provides, in part, that:

“* * * the corporate authorities in each municipality have the following powers:
# *> #
(2) to establish, regulate and limit, subject to the provisions of division 14 of this Article 11, the building or set back lines on or along any street, traffic way, drive, parkway or storm or floodwater runoff channel or basin;
# * #
The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one half miles beyond the corporate limits and not included within any municipality. * * * If a municipality adopts a zoning plan covering an area outside its corporate limits, the plan adopted shall be reasonable with respect to the area outside the corporate limits so that future development will not be hindered or impaired.” (Ill. Rev. Stat. 1973, ch. 74, § 11 — 13—1.) (Emphasis added.)

Section 11 — 14—1 provides, in part, that:

“In addition to existing powers * * * the corporate authorities in each municipality have power by ordinance to establish, regulate, and limit the building or set-back lines on or along any street, traffic way, drive, or parkway or storm or floodwater runoff channel within the municipality, as may be deemed best suited to carry out these purposes.” (Ill. Rev. Stat. 1973, ch. 24, § 11 — 14— 1.) (Emphasis added.)

Although both parties recite various rules of construction and interpretation and suggest their applicability to the foregoing statutes, we believe reference to rules of construction and interpretation is unnecessary in the instant case. Before a court may employ rules of interpretation or construction there must be an ambiguity or inconsistency. Rules of construction are useful only in cases of doubt (Dick v. Roberts, 8 Ill.2d 215, 133 N.E.2d 305), and are never to be used to create doubt only to remove it (Illinois Central R.R. Co. v. Franklin County, 387 Ill. 301, 56 N.E.2d 775). Thus a court may not alter the meaning of a statute beyond the clear import of the language employed therein. Niles Improvement Association v. J. Emil Anderson & Son, Inc., 93 Ill.App.2d 167, 236 N.E.2d 402.

In the instant case the statutes in question, sections 11 — 13—1 and 11 — 14—1 of the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, pars. 11 — 13—1 and 11 — 14—1) cannot be in conflict since the relevant portion of section 11 — 13—1 is made “subject to the provisions of Division 14 of this Article 11.” The clear and obvious legislative intendment is that the latter specific section is to control over the former general section. The plaintiff contends that other statutes, in particular, sections 11 — 12—5, 11 — 12—7 and 11 — 12—8 (Ill. Rev. Stat. 1973, ch. 24, pars. 11 — 12—5, 11 — 12—7, 11 — 2—8), grant municipalities this power, to control set-back lines within contiguous territory not more than lVz miles from their corporate limits, by implication. However, since none of the sections cited by the plaintiff specifically grant to municipalities the power to control set-back lines in contiguous areas such sections are insufficient to defeat the express limitations on that power which the legislature set forth in section 11 — 14—1 (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 14—1). The plaintiff also contends that section 11 — 12—5 (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 12—5) specifically granted the power to control set-back lines in contiguous areas. This argument is based upon the supreme court case of Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371. Therein our supreme court held that the power to control curbs and gutters was within the language authorizing reasonable regulations concerning streets. Although the plaintiff makes an admirable attempt to analogize Petterson to the instant case it fails to mention that the power to control curbs and gutters was not otherwise restricted as is the power to control set-back lines. It is felt that this distinction is significant and that the restrictive language of section 11 — 14—1 precludes a similar argument in the instant case.

The legislature, in granting municipalities the power to zone up to a mile and one half beyond their corporate limits, must be considered to have been aware of the limiting provisions of provisions of section 11— 13 — 1(2), i.e., “Subject to the provisions of Division 14.” If the legislature had intended to extend to municipalities the power to establish setback lines outside their corporate limits, it could have eliminated the conditional language of section 11 — 13—1(2). It chose, instead, to allow that provision to remain operative. This Court will not defeat this intention by means of judicial construction and interpretation.

The other issue raised is based upon the plaintiffs statement that because it is a “home rule” municipality it may have the power under article VII, section 6a, of the Illinois Constitution of 1970, to regulate set-back lines outside its corporate limits notwithstanding the lack of statutory authorization. Due, however, to the specificity of the language of the “home rule” provision embodied in article VII, section 6a, of the Illinois Constitution we do not believe that any reasonable interpretation of the “home rule” provision would change our conclusion that municipalities may only establish set-back lines within their corporate limits.

In view of the conclusions previously set forth we hold that the ordinances upon which the City of Carbondale based its complaint were invalid and the circuit court of Jackson County was correct in dismissing its complaint and dissolving the temporary injunction.

Order affirmed.

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


author: Mr. JUSTICE ALLOY

text:
    The People ex rel. Sue Gerard, Plaintiff-Appellee, v. Thomas Wilson, Defendant-Appellant.
    (No. 74-48;
    Third District
    September 25, 1974.
    William M. Walker, of Coryn & Walker, of Rock Island, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Rock Island County entered in a cause tried by the court without a jury, in which the court found the defendant, Thomas Wilson, to be the father of the illegitimate child born to the plaintiff, Sue Gerard, and in which a judgment assessing child support in the sum of $25 per week was entered against defendant. Defendant was also ordered to reimburse appellee, Sue Gerard, the sum of $210.64 which represents one-half of the medical and prescription expense occasioned by the pregnancy and birth of the child.

Defendant raises three basic points on appeal in this cause: (1) an assertion that appellee failed to prove by a preponderance of the evidence that defendant Thomas J. Wilson was the father of the child of appellee, (2) that the monetary award of $25 per week was excessive in view of the fact that appellant’s total income was $106 per month and that the award constituted an abuse of judicial discretion, and (3) that it was reversible error for the trial court to permit introduction by appellee of a copy of a letter from appellee to appellant, and a letter in reply presumably received from appellant together with a check payable to appellee. The evidence for the People consisted of the testimony of appellee Sue Gerard to the effect that she had sexual intercourse with defendant Thomas J. Wilson on three occasions during the last part of August and the early part of September 1971 and that she had intercourse with no other man during that period and for the 3-month period preceding. The dates involved would cover the conception period of the child bom to Sue Gerard.

As indicated, a copy of a letter from appellee was introduced in evidence in which she requested money for the pregnancy expense. A letter in reply, which was received by appellee, and signed purportedly by appellant and enclosing appellant’s check payable to appellee were all introduced in evidence over objection. Appellee testified that the handwriting on the check was the same as that on the accompanying letter.

The defense consisted of the testimony of two witnesses who each testified that he had intercourse with appellee during the conception period. One of the witnesses was a brother of appellant Wilson and the other was a friend of appellant Wilson. Some, aspects of the testimony of these witnesses displayed uncertainty as to the place where the intercourse in the automobile had taken place. Appellee Sue Gerard denied the allegations of defense witnesses as to intercourse, and stated that she had no intercourse with either the brother of defendant or his friend who testified on behalf of defendant. Following the presentation of evidence, the trial judge remarked that what appellee did or did not do with the other men did not make any difference to him.

It has been clearly established that unless the findings of the trial judge are clearly and palpably against the manifest weight of the evidence, a court of review would not set aside the order of the trial court in a paternity case even though there was testimony by witnesses for the defense that other men had intercourse with the complaining witness during the period of conception (People v. Rimicci, 97 Ill.App.2d 470, 240 N.E.2d 195). In that case the court clearly estabfished that the testimony of the relatrix, if befieved by the trier of fact, was suffiicent to support a finding that defendant was the father of the child bom to her. The court emphasized that the credibility of witnesses and the weight of the testimony are for the trier of fact to determine. The court in that case stated that the evidence was conflicting as to whether the relatrix had engaged in intercourse with other men during the period of conception. Nevertheless, the court indicated there that it would not interfere with the resolution of the factual disputes by the trier of fact, since the finding was not clearly and palpably against the manifest weight of the evidence. The relatrix in that case also denied the allegations of intimacies with other men during the period of conception. The court emphasized that if the testimony of the relatrix was believed it was sufficient in itself to support a finding that defendant was the father of the child, despite contradictory evidence of other acts of intercourse with other men.

Similarly, in the instant case, we cannot find that the conclusion of the trial court was clearly contrary to or palpably against the manifest weight of the evidence, and, accordingly, the determination of the trial court on the issue of paternity will not be disturbed. In this connection we conclude from the record that, despite the statement by the trial court that what appellee did with other men did not make any difference, it is apparent that the trial judge actually believed the appellee and did not believe the testimony for appeHant on the issue of whether appellee had intercourse with men other than defendant during the period of conception.

Defendant contends that McCoy v. People, 65 Ill. 439, is a precedent estabfishing a conclusion that where the only evidence of paternity is the unsupported testimony of complainant and where there is testimony of other acts of sexual intercourse by complainant, even though defendant denies the charge, the finding of paternity must be reversed. We do not agree with this analysis. We note that in the McCoy case, the court required independent eyewitness corroboration of the other sexual acts. Another important distinction is shown in the corroboration of appellee’s testimony by virtue of the check sent by defendant to appellee. Defendant himself, in the instant case, did not testify, but denied having intercourse with appellee by his answer to the complaint. No one, however, testified in contradiction to Sue Gerard who stated she had sexual intercourse on three occasions with defendant Wilson. The evidence was sufficient to support a finding of paternity by the trial judge (People v. Rimicci, 97 Ill.App.2d 470, 240 N.E.2d 195).

The objection relating to the introduction of the check and the letter from defendant, as well as a copy of the letter from plaintiff, hereinabove referred to, is predicated on the proposition that the exhibits were not sufficiently authenticated. We do not believe it would be necessary to go into detail with respect to this issue since obviously the check of defendant was admitted and the letter from him was sufficiently corroborated by testimony of Sue Gerard to the effect that the handwriting was the same. The error, if any, in admitting the copy of appellee’s letter was harmless. We find no reversible error in the admission of such documents in this cause in view of the record established on behalf of the complaining witness.

It is apparent from the record that the award given by the trial court exceeds the gross income of defendant. The Paternity Act (Ill. Rev. Stat. 1971, ch. 106%, § 59) requires that the court consider the financial resources of the father in determining the amount of the payment to be made. The record in this case does not clearly establish that the court explored all sources of support available to defendant and his possibilities of employment. The statute confers retained jurisdiction over this cause for the purpose of determining what is a reasonable amount to be allowed which can be modified as circumstances require. Accordingly, we conclude that there should be a limited remandment for a hearing on the question of the amount to be assessed for support of the child.

The order of the trial court finding that defendant Wilson is the father of the child is affirmed, but the order specifying that defendant should make the payments of $25 per week and the further sum of $210.64 does not appear to be clearly supported by the evidence. This cause is, therefore, remanded for the limited purpose of conducting a hearing on the financial resources of defendant to determine a reasonable amount to be specified for payment for child support by defendant.

Affirmed in part and reversed and remanded in part.

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


author: PER CURIAM:

text:
    Don DuMont, Petitioner-Appellant, v. State Board of Elections, Respondent-Appellee.
    (No. 12830;
    Fourth District
    September 25, 1974.
    Don DuMont, pro se.

    William J. Scott, Attorney General, of Springfield (Thomas Price, Assistant Attorney General, of counsel), for appellee.
   PER CURIAM:

This cause coming on for hearing on motion for expedited hearing the motion was by the court allowed. Pursuant to stipulation of the petitioner and counsel for the respondent the cause was argued upon the merits by the respective parties. The judgment of the circuit court of Sangamon County is affirmed for the reasons set forth in the findings and order of that court.

Judgment affirmed.


text:
    Marcella L. Dempsey, Petitioner-Appellant, v. State Board of Elections, Respondent-Appellee—(American Independent Party et al., Petitioners.)
    (No. 12827;
    Fourth District
    September 25, 1974.
    Marcella L. Dempsey, pro se.

    William J. Scott, Attorney General, of Springfield (Thomas Price, Assistant Attorney General, of counsel), for appellee.
   PER CURIAM:

This cause coming on for consideration upon a motion for expedited hearing by the sole remaining appellant, Marcella L. Dempsey, appearing and appealing pro se. The motion was by the court allowed and this cause heard upon the merits pursuant to stipulation of the appellant and counsel for the respondent. The judgment of the circuit court of Sangamon County is affirmed for the reasons set forth in the findings and order of that court insofar as the same relate to said appellant.

Judgment affirmed.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    John Reith, Plaintiff-Appellant, v. General Telephone Company of Illinois, Defendant-Appellee.
    (No. 73-270;
    Fifth District
    October 2, 1974.
    Elmer Jenkins and Jeff Troutt, both of Benton, for appeHant.

      Glenn E. Moore and Terry R. Black, both of Mt. Vernon, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff appeals from a judgment of the Circuit Court of Perry County entering summary judgment in favor of the defendant in a personal injury suit.

The defendant General Telephone Company, to accomplish the authorized installation of its underground cable, signed an agreement with the Harris-McBurney Construction Company which by its terms engaged the latter to excavate and install said cable along Highway 154 abutting plaintiffs property. The contract agreed to by defendant and Harris-McBurney allegedly made the latter an independent contractor who had the sole control over the work of excavation.

The complaint alleges that the plaintiff was injured when he fell into a hole dug by Harris-McBurney because no warning or barricades were placed around the hole to prevent an injury of persons such as the plaintiff who used the right-of-way in which the hole was dug.

The complaint alleged that it was the duty of the defendant to:

“* * * exercise reasonable care in the excavation and installation of said wire and cable and the maintenance thereof, so that said site would not become and remain dangerous and unsafe, and thus endanger the life and limb of persons, including plaintiff, using the right-of-way, * #

The defendant maintained below that it could not be held liable for the negligent acts of the independent contractor, Harris-McBurney, since the defendant had no control over the course of excavation work or the site thereof.

The trial court granted the motion for summary judgment on that basis. The only question presented for review is whether the trial court correctly entered a summary judgment in favor of the defendant.

Section 57 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 57 (2)) provides that defendant may, at any time, move for summary judgment in his favor; that the opposite party may file counter-affidavits and that the judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with any affidavits, show no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law.

The affidavit of James Samples, construction superintendent for the defendant, averred that defendant did not do any of the construction work it was charged in the complaint with performing, and further averred that the work was done by Harris-McBurney as an independent contractor. The affidavit incorporated by reference the contract between the defendant and Harris-McBumey Company.

Reith filed a counter-affidavit stating that the allegations in the complaint were trae; that he observed and talked with employees of the defendant and that they admitted their responsibility for the work.

It is well settled that the right to summary judgment must be free from doubt and determinable solely as a question of law and if there is a disagreement on any material fact or facts, the motion should be denied. To warrant the granting of a motion for summary judgment based on discovery depositions, a fact or facts that would bar recovery as a matter of law must be admittedly so clear and unequivocal that such admissions are not open to dispute or different interpretations. Simaitis v. Thrash, 25 Ill.App.2d 340.

In the instant case there are no discovery depositions or any other facts that would bar recovery as a matter of law except the contract and the affidavit of Samples. In our opinion the affidavit of Samples, even if uncontradicted, only declared what he in fact interpreted as his duties according to this contract; therefore, the affidavit does not dispel all doubt as to the interpretation of the said contract.

In other words, it is the right or duty to supervise and control, and not the exercise of the right that determines the relationship of principal and agent or of contractor and independent contractor. The relationship of principal and agent exists if the principal has the right or duty to supervise and control and to terminate the relationship at any time, even though he does not exercise that right. Hartley v. Red Ball Transit Co., 344 Ill. 534, 539; Lawrence v. Industrial Commission, 391 Ill. 80, 87; Darner v. Colby, 375 Ill. 558; Shannon v. Nightingale, 321 Ill. 168.

The single material fact relied upon by the trial court in this case was that the contract between the defendant and Harris-McBumey Company created the independent contractor relationship between them. The first question for review is, therefore, whether the court’s interpretation of that contract is free from doubt. If the court’s interpretation could not be considered so clear as to be undisputed, then the question should be submitted to the jury. Yuhas v. Allis-Chalmers Distribution Service Corp., 12 Ill.App.3d 814.

The contract contains the following language:

“ARTICLE I: The Contractor agrees to furnish the labor, machinery, tools and motor vehicles requisite to perform outside Telephone Plant Construction, Maintenance and Central Office Equipment Installation as directed by the Company.
PROVIDED, however, that the Contractor under no circumstances shall employ more crews than authorized by the Company to perform the above described work, and will not have more men on each crew than are specifically ordered by the Plant Director of the Company, and
PROVIDED, further that the Company expressly retains its right to assign similar work in the same area or on the same job to. other contractors or its own employees, as it so desires, within the terms of this Agreement.
# # #
ARTICLE IV: The Company agrees to pay the Contractor for the work described in Article I in accordance with the following terms and conditions:
e a a
Section 2. The Contractor shall keep an accurate record of all expenditures for labor by a system of accounts and records satisfactory to the Company, and further, the Contractor agrees that all such records shall be subject to audit by the Company at all reasonable times. The Contractor agrees to furnish a daily work report for each crew and forward it not later than the following day to a Company Supervisor specified by the Company. * * *
1. For each employee — name, title and number of hours time chargeable to each project order number and exchange number.
# $ #
4. The time crew starts and stops work in both forenoon and afternoon, and also time of stopping and starting work when work stoppage is caused by inclement weather or other reasons.
5. Explanation for crew not working the full day when full time is not worked.
6. Location of work by streets, highways, and pole numbers.
7. Units of work completed. * *

In our opinion, the contract between the defendant and Harris-Mc-Burney discloses a great deal of control by the defendant over the work to be performed by Harris-McBurney. Therefore, the trial court erred in holding as a matter of law that Harris-McBurney was an independent contractor on the basis of the contract.

We reverse for another reason. The defendant had an affirmative, non-delegable duty to take precautions against the possible and probable injuries around an excavation site constructed through its franchise or permission obtained from the state and local authority. This duty, being non-delegable, remains on the defendant irrespective of a contract that might make Harris-McBurney Construction Company an independent contractor, vis-a-vis its relationship to the defendant.

An individual or a corporation cannot evade liability for negligence by delegating performance of work to an independent contractor where such individual or corporation is carrying on an activity involving danger to others, under a franchise or license granted by public authority and subject to certain obligations imposed by public authority. (57 C.J.S. Master and Servant § 591(b) (1948).) This rule is often applied where obstructions and excavations in streets and highways are made pursuant to authority derived from and subject to conditions and requirements imposed by a statute, permit or license.

In Chicago Economic Fuel Gas Co. v, Myers, 168 Ill. 139, the supreme court said at pages 146-147:

“[T]he appellant was a corporation authorized by its charter to deal in gas. The proof shows, that the permit to do all the work connected with the laying of the gas-pipes was issued by the department of public works of Chicago to the appellant company, and not to the construction company. The appellant was thus engaged in the work of laying pipes to transmit gas through the public streets of the city under a charter of the State of Illinois, and under a permit from the city of Chicago. It cannot, therefore, avoid liability for acts under its corporate franchises by simply letting a contract to a construction company. Even though the person who causes the injury is a contractor, he will be regarded as the servant or agent of the corporation, for whom he is doing the work, if he is exercising some chartered privilege or power of such corporation with its assent, which he could not have exercised independently of the charter of such corporation. Tn other words, a company, seeking and accepting a special charter, must take the responsibility of seeing that no wrong is done through its chartered powers by persons to whom it has permitted their exercise.’ [Citations.]”

Similarly, the case of North Chicago Street R.R. Co. v. Dudgeon, 184 Ill. 477 (1900), reiterates this principle of law. In that case the defendant railroad was engaged in the repair and relaying of certain rails, tracks and roadbed which it used, and had placed large quantities of stones and granite blocks along the streets near the tracks on which it operated its cars. The plaintiff was a conductor of one of the railroad cars. He was injured when thrown upon a pile of stones while aboard a train and he rolled from the stones under the train. The railroad denied recovery because the work of repairing its roadbed and track was being done by an “independent contractor” free from all control and supervision on the part of the defendant company. The court noted that the company was chartered by the State of Illinois to operate a street railroad along the street in question and that the work of repair was being done upon written authority of the commissioner of public works of tire city of Chicago as given to the railroad. The supreme court, in affirming a judgment against the defendant railroad company, cited many cases wherein the courts held that one who obtains a license from the municipal authorities to encumber the streets shall not shield himself from liability for injuries caused by acts that unlawfully encumber the streets through the negligence of an independent contractor.

Defendant telephone company must have the permission of local and state authorities for the installation of its cables. Section 9 — 113 of the Highway Code (Ill. Rev. Stat., ch. 121, par. 9 — 113), states in part as follows:

“No ditches, drains, track, rails, poles, wires, pipe line or other equipment of any public utility company, municipal corporation or other public or private corporation, association or person shall be located, placed or constructed upon or along any highway, or any township or district road, other than a highway or road within a municipality without first obtaining the written consent of the appropriate highway authority as hereinafter provided for in this Section.”

Section 4 of “An Act to revise the law in relation to telegraph companies” (Ill. Rev. Stat., ch. 134, par. 4), also imposes the condition that a telephone company seek the permission of local authorities for the erection or installation of their lines and fixtures on any public ground including streets. This permission granted to the telephone company for the installation of its cables along a public right-of-way must, therefore, be considered a license. Although with facts substantially different from the ones at issue here, the case of People ex rel. Rockwell v. Chicago Telephone Co., 245 Ill. 121 (1910), held in part as follows at pages 134-35:

“In granting to the Chicago Telephone Company a license to construct its poles, wires and other fixtures in the streets and alleys of the town, tire Board of Trustees of the town of Cicero was exercising the power to regulate and control the use of the streets and alleys within the limits of the town which had been delegated to it by the General Assembly. It was exercising a legislative function as a governmental agency of the State, and a grant was made by the town in its governmental and not in its proprietary capacity. [Citations.] The grant thus made was a license which, when accepted by the telephone company, became a contract between the town, as a governmental agency of the State, and the telephone company.’

A license is a personal and exclusive grant or privilege conferred upon the licensee. It is not assignable unless specifically stated to be so. The consent or license given by the public authorities herein, who maintain the public rights-of-way for the people’s safe use, was to the defendant alone and not to Harris-McBurney Company.

Furthermore, the implied conditions of this license would reasonably include the duty of a licensee to keep the construction site along a public right-of-way safe for passers-by. The defendant telephone company had the duty to install the lines or cable in such a manner as to avoid interfering with the plaintiff’s right to a safe use of the streets and sidewalks. Although the defendant could delegate the actual work of installation, it is clear that the duty or responsibility to keep the public ways safe was non-delegable since it was a condition of the license held by the defendant.

Moreover, the defendant as licensee must be presumed to have been on notice that there was a danger incident to the excavation along a public way, and was thereby bound to maintain the excavation in such a manner as to reduce the risk to passers-by using the way. The plaintiff who was injured while using the public way should therefore look to the one officially held responsible for the excavation in addition to the one who actually dug the hole.

For the reasons stated, the judgment of the trial court is reversed and this cause is remanded for trial.

Reversed and remanded.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE SIMKINS Mr. PRESIDING JUSTICE TRAPP

text:
    Myrna A. Braunfeld Golden, Plaintiff-Appellant, v. Peter George Braunfeld, Defendant-Appellee.
    (No. 12534;
    Fourth District
    October 3, 1974.
    Thomas P. Sullivan, Marshall J. Auerbach, and Mary Lynn Buss, all of Chicago (Jenner & Block, of counsel), for appellant.
    Harold A. Baker, of Hatch, Corazza, Baker & Jensen, of Champaign, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal by the plaintiff, Myma A. Braunfeld Golden, from an order of the circuit court of Champaign County modifying a divorce decree to change custody of her two children, Kenneth and David Braunfeld, to their father, Peter George Braunfeld, the defendant in the instant case.

Myma and Peter were married in August, 1959. Kenneth was bom in November 1963, and David was bom in October 1966. Myma and Peter separated in November 1968, at which time Peter voluntarily relinquished custody of the boys to Myma. The parties were divorced on February 7, 1972, at which time Peter consented to a decree indicating that Myrna was a “fit and proper person” to have custody of the children and awarding custody of the children to Myma subject to liberal visitation rights. Several weeks after the divorce Myma married William Golden. In May 1973, Peter, who had remained single, petitioned for a change of custody. A lengthy hearing was then held. We find that there would be no useful purpose served by reciting the facts elicited at that hearing. After the hearing, the trial court, on January 7, 1974, modified the original divorce decree and changed custody of the two children from Myma to Peter finding that “it is in the best interests of said minor children that their care, custody, control and education be awarded to [Peter], with the same rights of liberal visitation in the mother that have heretofore been exercised by the father. Child support to terminate.”

Upon taking the case under advisement the trial court stated that because of the agreed custody provisions of the original divorce decree no evidence had been heard on the child custody issue in February 1972, and, therefore, “[i]t is as though there had been no hearing or no ruling by the court of a discretionary nature regarding the custody of the children * * * There is no burden on either party to show a material and substantial change of circumstances.” On appeal, plaintiff contends that the trial court erred in failing to make a specific finding as to the existence of a material change of circumstances since the entry of the original decree. We agree.

In Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, the supreme court of this state held that while the modification of a divorce decree to change custody of children is a matter of discretion on the part of the trial court, such a change must be supported by a change of circumstances adversely affecting the best interests of the children, the rationale being that the original decree is res judicata as to the facts which existed at the time of the original decree but not as to facts which arise thereafter. In Nye there was an express finding in the stipulated decree of “best interests.” Both the appellate court (343 Ill.App. 477, 481, 99 N.E.2d 475) and the supreme court (411 Ill. at 415, 416) in Nye considered that decree to also contain an implicit finding of “fitness.”

It is contended here by the defendant, and the trial court so found, that the finding of change of circumstances required by Nye before modification is not necessary when the custody provisions of the original decree are based on the stipulation of the parties, the idea being that in that situation the court receives no evidence concerning fitness or the best interests of the children, and does not exercise its discretion in awarding custody. We find Nye to be dispositive because that case also involved an original stipulated decree, and the court, nevertheless, required a finding of change of circumstances to modify that decree. Hence, in affirming the appellate court the supreme court stated:

“No different conduct has allegedly occurred that the husband does not declare he was generally aware of at the time of the decree. At that time he voluntarily entered into a custody agreement which accepted her as a fit person. The decree of the court accepted her as a fit person.” (Emphasis added.) 411 Ill. at 415-416.

In the instant case the original consent decree stated that plaintiff was a “fit and proper person” to have custody of the children. Under our reading of Nye this is also implicitly a finding of best interests. Defendant is then bound by such a determination unless he can affirmatively show a material change of circumstances adversely affecting the best interests of the children occurring after the original decree. Indeed, although there is dictum to the contrary in our opinion in McDonald v. McDonald, 13 Ill.App.3d 87, 299 N.E.2d 787, this court there still found a change of circumstances which subjected the original custody order to modification even though the custody provisions of the original decree were stipulated. Also see Clark v. Clark, 1 Ill.App.3d 69, 273 N.E.2d 26 (4th Dist.) for a similar finding where the original custody provisions were likewise stipulated. We find then that Nye and the prior decisions of this court require that one who seeks to modify the custody provisions of a divorce decree, whether those provisions are based upon stipulation or are the results of a trial court determination after a contested hearing, must carry the burden of showing a material change of circumstances adversely affecting the best interests of the children occurring after the entry of the original decree. The trial court erred in holding otherwise.

In the context of the present record, whether defendant proved the existence of a material change of circumstances adversely affecting the interests of the children during the relevant period or whether defendant sufficiently proved the existence of conduct on the part of plaintiff that he was not generally aware of at the time of the original decree which likewise adversely affected the interests of the children, are factual determinations for which the trial court is in a better position to resolve than is this court. Accordingly, this cause is hereby reversed and remanded to the trial court for a specific finding in that regard.

Reversed and remanded with directions.

CRAVEN, J., concurs.

Mr. PRESIDING JUSTICE TRAPP

dissenting:

It is oft repeated that in matters of child custody the “guiding star” is and must be at all times the best interests of the child. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300.) This case suggests and illustrates that the unconsidered application of a rule of res judicata that requires a showing of altered or changed circumstances since the date of decree fixing custody may greatly erode, if not completely nullify, the ability of the court to make an advised determination of the best interests of the children.

This dissent is directed to the proposition that the neglect or failure of the parties to a divorce, ill-advised or otherwise, to initially present to the court relevant facts concerning the “best interests” of the child or children should not bar the court from considering such interests when relevant and significant facts are actually presented to it subsequently.

While the stated purpose of the rule is to prevent “groundless attempts” to change custody (People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382), the thesis here is that the court should recognize that in certain cases the rule may subordinate the real interests of the child or children to a judicial discipline of the parents and make the court ineffectual where the circumstances call for a genuine determination of the welfare of the children concerned.

The opinion in Nye makes apparent that “fitness” of a parent and the “best interests” of children are distinct and separable factors in determining custody. In Nye, the pleadings raised the sole issue of “fitness” in a moral context. The court said:

“Therefore, compelling evidence must be presented, proving the mother to be a unfit person, to cause the custody of her minor daughter to be denied her, or there must be a positive showing that to deny custody to the mother would be for the best interests of the child.” (Emphasis supplied.) 408 Ill. at 414.

A court may find that each parent is “fit” but determine that the best interests of the child requires that custody be in one parent. (People ex rel. Morris v. Morris, 44 Ill.2d 66, 254 N.E.2d 478.) It is not necessary to find a wife unfit before custody may be changed or denied to her. Osborn v. Hufsey, 44 Ill.App.2d 157, 194 N.E.2d 556; Kline v. Kline, 57 Ill.App.2d 244, 205 N.E.2d 775.

Upon this record, it is apparent that in entering the decree initially fixing custody in the wife, the court was prevented from ascertaining the best interests of the children. Only the wife testified stating that she had custody and that she would “like to retain custody,” and that a satisfactory arrangement for visitation had been worked out. Such arrangement was not stated to the court and it does not appear in the decree. Despite the record of prior treatment for mental or emotional problems, she advised the court that she was “in good health.” There was neither a written stipulation concerning custody as in Nye, nor testimony concerning the best interests of the children as in Girolamo v. Girolamo, 5 Ill.App.3d 627, 283 N.E.2d 713. Here, the decree fixing the custody found the wife a “fit” person but made no finding as to the best interests of the children. The question was presented to the court only in the light of the allegation of the complaint that the wife was a “fit and proper person.” Such allegation was admitted in the answer, albeit it appears in the record that defendant desired to protest custody but desisted when counsel advised that such course would make the divorce difficult. In Girolamo, the court reviewed proceedings for change of custody in which it was alleged that there were material facts affecting the welfare of the children not known to the court at the time of the initial decree. The court said:

“While the evidence in a proceeding of this nature is generally limited to matters which tend to show a change in circumstances since the last award of custody, parties may be permitted to show that there were material facts existing at the time of the previous decree, but unknown to the court, if such material facts tend to show that such a change in custody would be in the best interests of the child.” (Emphasis supplied.) 5 Ill.App.3d at 629-630.

In Harms v. Harms, 323 Ill.App. 154, 55 N.E.2d 301, each parent under an agreement received custody of one child. Thereafter, the wife sought a change of custody so that both children would be with her. The husband contended that there was no showing of a change of circumstance. That opinion discussed Thomas v. Thomas, 233 Ill.App. 488, noting that in Thomas the court considered that:

“[T]he original decree would be deemed res judicata as between the parties unless it is made to appear that it would be for the best interests of the child to give it to another. Apparently the court had in mind that the children were not parties to the divorce case, and that the rule of res judicata, while applicable between the parties, would not be allowed to interfere with the duty of the court to enter an order in accordance with the best interests of the children. The court would not be justified in altering the original decree as to the custody of the children unless there was a change in the situation, or unless facts or circumstances which should have been called to the attention of the court at the time the decree was entered, were overlooked.” (Emphasis supplied.) 323 Ill.App. at 159.

In Peraza v. Tovar, 13 Ill.App.2d 405, 142 N.E.2d 165, a habeas corpus proceeding, the respondent contended that relief should not be granted without a showing of changed circumstances since a prior decree fixing custody. Citing Thomas and the quotation from Harms, the court said:

“The welfare of the child should not be affected by the negligence, if any, of petitioner or his attorney in failing to appear in the first habeas corpus proceeding.” 13 Ill.App.2d at 412.

On this record, the wife’s testimony that she was in good health may be considered subject to challenge. Assuming that her answer was not fraudulent, it would mislead the court even if not so intended. It is clear that no facts concerning the mental or emotional condition of the wife were brought to the attention of the court, or that he had occasion to consider such in the light of the interests of the chffdren.

The principal opinion suggests that it follows the rule of Nye. The latter opinion notes and reiterates that the testimony shows that the child there concerned received excellent care in a desirable home. The emphasis of the opinion was upon the issue of whether there was a want of moral fitness which affected the best interests of the child. It seems fair to say that the court, in Nye, had no occasion to consider the child’s best interest in the light of factors such as the nervous or emotional problems of the parent having custody.

As is argued in behalf of the husband, this record does include facts showing a change of circumstances in that more acute manifestations of the wife’s phobic reactions appeared subsequently to the divorce. The parties had been separated for some 2 years prior to the divorce, and there is evidence that at the time of the decree the husband had been advised that the wife was recovering.

The court here did find upon substantial evidence that the best interests of the children required a change of custody. Upon the facts, the rule that the welfare of the children is the test of custody is subordinated to the doctrine that res judicata under a decree arising from the acts of the parents controls the disposition of the best interests of the children. The issues here should be reviewed upon the merits without remand.


text:
    Victor Magnus, Plaintiff-Appellant, v. Silvenis Matthews et al., Defendants-Appellees.
    (No. 73-15;
    Second District
    October 2, 1974.

      Finn, Geiger & Rafferty, of Waukegan, and Joseph N. Sikes, of Grays-lake, for appellant.
    Rosing & Carlson and James T. Magee, both of Waukegan, for appellees.