author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Chrysler Credit Corporation, Plaintiff-Appellee, v. Timothy Gillaspie, Defendant-Appellant.
    (No. 58307;
    First District (3rd Division)
    December 5, 1974.

      David P. Schneider, of Legal Aid Bureau, of Chicago, for appellant.
    Maurice J. McCarthy, of Ettelson, O’Hagan, Ehrlich & Frankel, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Timothy Gillaspie, appeals from a deficiency judgment entered in the circuit court of Cook County in favor of plaintiff, Chrysler Credit Corporation, in the amount of $1,750.89 plus costs. The deficiency existed after the disposition of defendant’s automobile. On appeal, defendant challenges the constitutionality of section 9 — 503 of the Uniform Commercial Code (Ill. Rev. Stat. 1969, par. 9 — 503), the self-help repossession section of the Uniform Commercial Code, as violative of his due process rights under the Fifth and Four tenth Amendments of the Constitution. He argues that this section of the Code improperly permits the taking of his property without prior notice and hearing. While we do not believe that the facts and circumstances of the present case warrant our reaching the constitutional question, we consider a brief discussion of that issue to be pertinent to explain our decision.

Defendant’s argument represents another attempt to strike down a creditor’s resort to prejudgment remedies without notice or hearing to the holder of the property. The major case in this area, Sniadach v. Family Finance Corp. (1969), 395 U.S. 337, held unconstitutional on procedural due process grounds a Wisconsin wage-garnishment procedure which permitted wage garnishment without prior notice or hearing to the employee. Subsequently, in Fuentes v. Shevin (1972), 407 U.S. 67, a plurality of the Supreme Court held the prejudgment wilt of replevin procedures set out in Florida and Pennsylvania statutes to be violative of the Fourteenth Amendment’s requirements of notice and hearing. These procedures had allowed a creditor, upon an ex parte application to a court clerk accompanied by the posting of bond, to obtain a writ of replevin to be executed by the sheriff upon the holder of property and to summarily seize the person’s possessions. The court held that the failure of the statutes to provide the right to a prior hearing to test the creditor’s claims to the goods was a defect of constitutional proportions. (But See Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600.) This court has applied the Fuentes rationale to other prejudgment situations. In Brooks v. LaSalle National Bank (1973), 11 Ill.App.3d 791, 298 N.E.2d 262, we held that a tenant’s personal property could not constitutionally be withheld by the landlord for non-payment of rent pursuant to the Innkeeper’s Lien Statute without according the tenant prior notice and hearing. Additionally, in Leavitt v. Charles R. Hearn, Inc. (1974), 19 Ill.App.3d 980, 312 N.E.2d 806, we refused to vest a mechanic with a prejudgment right to summarily repossess a specific item to enforce his lien, and expressly rejected section 9 — 503 as secondary authority.

By its terms, section 9 — 503 permits secured parties, upon default, to repossess secured chattels by self-help if such procedures can be accompanied “without breach of the peace.” Since the self-help remedy is not predicated upon the issuance of prior notice and hearing to the holder of the collateral, the viability of the provision in constitutional terms rests upon the determination of the existence of sufficient State involvement through the enactment of the provision to constitute “state action.”

While no Illinois court has considered this question, various courts throughout the country have, with diverse results. Several circuits of the United States Courts of Appeal have held that the self-help provision contained in section 9 — 503 amounts to private conduct not mider color of State law. (Adams v. Southern California First National Bank (9th Cir. 1973), 492 F.2d 324, cert. denied (1974), 43 U.S.L.W. 3277; Bichel Optical Laboratories, Inc. v. Marquette National Bank (8th Cir. 1973), 487 F.2d 906; Shirley v. State National Bank (2d Cir. 1974), 493 F.2d 739.) However, persuasive authority exists to the contrary — that the statute promotes an injury cognizable in the coruts. Gibbs v. Titelman (E.D. Pa. 1973), 369 F. Supp. 38; Boland v. Essex County Bank & Trust Company (D. Mass. 1973), 361 F.Supp. 917; James v. Pinnix (S.D. Miss. 1973) (1969-1973 Transfer Binder), CCH Sec. Tr. Guide ¶ 52,172, at 67,263; Michel v. Rex-Noreco, Inc. (D. Vt. 1972), 12 U.C.C. Rep. Serv. 543.

The reason we need not reach this constitutional issue rests upon the nature of the facts in the present case. On July 16, 1969, defendant purchased a new Plymouth automobile. He executed a retail installment sales contract, which was assigned to plaintiff on the same date. The total amount due was $4,443.16, payable in 36 consecutive monthly installments of $124.81 beginning August 17, 1969.

In December, 1969, defendant drove the automobile on a trip to Texas. While there, he had trouble with the transmission and took the auto to Burns Motors in McAllen, Texas, for repair. He was told that the warranty did not apply to the transmission. Subsequently Burns Motors called plaintiff to report that the vehicle which was in its ¡service department contained a payment book showing plaintiffs interest. Bums inquired of plaintiff about a disposition of the vehicle, as the bill for repairs had not been paid and defendant had returned to Chicago. At the time, defendant was 4 months delinquent in his payments to plaintiff and the latter had sent a notice of sale to defendant which had been returned undelivered.

Upon his return to Chicago, defendant talked to plaintiffs regional manager, Mr. Stitch, about the situation. Stitch informed defendant that he would have to pay the arrearages and make the account current. Defendant made several payments and, on April 29,1970, his account became current. Plaintiff then advised defendant and Bums Motors that plaintiffs “hold” on the vehicle was released. Defendant went to Texas in May, 1970, but was told by Burns Motors that unless he paid the repair biU of $257 he would not be given possession of the auto. Defendant called Stitch concerning the warranty, and was told that plaintiff could do nothing about the situation. Defendant did not pay the repair biH and returned to Chicago, leaving the auto in the possession of Bums Motors. Defendant subsequently did not make his May, 1970, payment to plaintiff. Plaintiff thereupon assigned its interest in the vehicle to Bums Motors for $900 and paid the repair bill.

The reason we need not reach the constitutional issue urged upon us is that no repossession was involved. Plaintiff neither seized nor even possessed the automobile. As shown above, defendant voluntarily brought the auto to Burns Motors in Texas for repair work. Bums retained possession of the auto pursuant to a valid mechanic’s lien acquired as a result of its labor. After defendant refused to pay for the repair, Burns could have foreclosed its lien, subject to plaintiff’s interest. After defendant again defaulted in his payments to plaintiff, the latter assigned the security interest to Bums. Consequently, in addition to maintaining possession of the vehicle, Burns had by assignment an interest in the automobile. Thus, no repossession was involved.

In so holding, we recognize that in the trial court plaintiff failed to contend that a repossession had not occurred. In fact, in its complaint, plaintiff recited that it had “repossessed” defendant’s motor vehicle. However, any argument may be relied on by an appellee in support of a judgment on appeal as long as a factual basis for such a point was before the trial court. (Shaw v. Lorenz (1969), 42 Ill.2d 246, 246 N.E.2d 285.) Moreover, a court wiH determine the constitutionality of an act only to the extent required by the case before it and wiH not undertake to formulate a rule broader than that necessitated by the question to be decided. (People ex rel. Director of the Department of Children and Family Services v. Illinois Protestant Children's Home, Inc. (1965), 33 Ill.2d 60, 210 N.E.2d 217, cert. denied (1966), 384 U.S. 905; Anundson v. City of Chicago (1970), 44 Ill.2d 491, 256 N.E.2d 1.) The factual situation before us does not require a constitutional determination.

Defendant has not disputed the fact that he defaulted in payments to plaintiff. Moreover, the amount of the judgment is not at issue.

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

Judgment affirmed.

DEMPSEY and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURKE

license: Public Domain

text:
    The City of Chicago, Plaintiff-Appellant, v. Commonwealth Edison Company, Defendant-Appellee.
    (No. 59336;
    First District (1st Division)
    November 27, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale, Jerome A. Siegan, and William R. Quinlan, Assistant Corporation Counsel, of counsel), for appellant.
    Isham, Lincoln & Beale, of Chicago (Richard E. Powell, C. Richard Johnson, and Christine H. Dykstra, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

The City of Chicago appeals from a decree denying injunctive relief sought by the City against the Commonwealth Edison Company. The City attempted to enjoin the operation of Edison’s Hammond, Indiana, electric generating facility alleging that the facility was a common law nuisance to the residents of Chicago. After extensive testimony the trial judge found that the evidence was insufficient to establish that the plant constituted a common law nuisance. The court further held that the City’s action was an attempt to ask a court under the guise of a common law nuisance doctrine to establish air-pollution standards in an area which is already subject to federal, state and local regulations. It was the trial court’s opinion that such matters are best handled by regulatory agencies.

The City alleged in its first complaint filed in September, 1970, and in an amended complaint that emissions from Edison’s Indiana station violated city, state and federal regulations and therefore constituted a statutory pubHc nuisance. The court dismissed both complaints finding that the City could not enforce its ordinances with respect to the Indiana station. The court directed the City to amend solely on the basis of common law nuisance.

On December 1, 1971, the City filed a second amended complaint alleging that coal containing an excess of 3% sulfur by weight was burned at Edison’s Indiana plant; that the Indiana facility was within 1 mile of the City of Chicago; that the burning of such coal results in the emission of sulfur dioxide, smoke, particulate matter, dust, fumes and other poisonous gasses constitute a common law nuisance; and that such emissions cause substantial, unreasonable and irreparable injury to the residents of Chicago.

Edison answered by denying that its Indiana station constituted a common law nuisance. Edison alleged that significant expenditures of money had been made in an effort to reduce particulate matter and sulfur dioxide emissions from the Indiana station. It was contended that during 1971, the average sulfur content of the coal burned at the facHity was 2.0%, and during the latter half of 1971, 1.66%. Edison further questioned the propriety of an equity court’s jurisdiction, alleging that the City had yet to exhaust available legal and administrative remedies.

A trial was conducted and evidence was received on the question of common law nuisance. The trial court ruled that the City had not met its burden in establishing that Edison’s Indiana station constituted a nuisance to the residents of Chicago.

On appeal, the City contended that the trial court’s finding was in error. Edison responded with the argument that the finding was not against the manifest weight of the evidence presented at trial. Edison further argued that the City is not authorized to bring suits to abate alleged nuisances originating in other states. We agree with the trial court’s determination that the evidence is insufficient to establish that the Indiana facility constitutes a common law nuisance. Because the trial court’s decision on the merits is completely supported by the record, we need not address the question of the City’s authority to maintain this type of action.

The City initiated its case at trial with testimony from City “smoke inspectors.” These five witnesses were trained to observe smoke and classify the density of smoke by the use of the Ringelmann Chart. Numerous smoke observations were recorded by these inspectors measuring plumes from the stacks at the Edison facility to have an opacity between 60% and 80%. One of the inspectors who resides VJz miles from the Indiana station testified that “when the wind blows to the east” (towards Chicago), he could smell coal in the air and could see a gritty substance on cars and homes.

Upon cross-examination, it was revealed that water vapor in combination with particulate matter affects the density of the plume emitted. None of the smoke inspectors had made an effort to determine whether or not the plumes observed contained water vapor.

Dr. Paul Harrison, assistant director of technical services, Department of Environmental Control, City of Chicago, testified for the City as to the nature of the emissions originating at the Edison plant. Dr. Harrison began by offering a set of computations which purported to show the total number of tons of sulfur dioxide and particulate matter discharged from the station. Using these total discharge computations as a base, Dr. Harrison attempted to demonstrate the total amount of ground level concentrations contributed to the Chicago area under specific assumed wind and stability conditions. He did not employ the aid of a computer in his calculations.

Dr. Harrison’s figures as to the total amount of particulate matter discharged by the station were developed by multiplying the percentage of fly ash content of the coal at the station by the total amount of tons burned. That result was then multiplied by the efficiencies of the station’s pollution control equipment as shown in selected tests conducted and published by Edison. Dr. Harrison concluded that about SVa tons of particulate is discharged by the plant each month. Postulating that the wind blows over Chicago 33% of the time from the Indiana plant, Dr. Harrison stated that over one-half million pounds of particulate matter blew over the Chicago area each month.

To obtain the total amount of sulfur dioxide emissions discharged, Dr. Harrison multiplied the total tons of coal burned by the percentage of sulfur dioxide reflected in reports of various stack tests conducted by Edison. The average percentage of sulfur content used by Dr. Harrison was 2.5%. He stated that the total output of sulfur dioxide emissions from the Edison facility was approximately 15 million tons each month; 5 million pounds blowing over the Chicago area.

The testimony and exhibits at trial indicate that the data reflecting the total weight of emissions discharged from the stacks has in itself little significance except to form a basis for computing ground level concentrations. Dr. Harrison stated that suspended particulate matter concentrations from the Edison plant in the Chicago area is approximately 6,000 micrograms per cubic meter under the most turbulent conditions and a low wind speed. Under those same turbulent conditions with low winds, Dr. Harrison estimated that sulfur dioxide concentrations from the Edison plant could be as high as 57,155 micrograms per cubic meter at a distance .4 miles from the station.

Dr. Harrison attempted to compare his figures with the current federal standards in order to illustrate the impact of these concentrations on the health of Chicago residents. He did not, however, testify to any specific medical consequences of the concentrations estimated to be originating at the Edison plant.

Cross-examination revealed several assumptions and methodological errors which had the effect of exaggerating several of Dr. Harrison’s estimations. Dr. Harrison testified that he assumed that all of the fly ash in the coal left the boilers and went to the control precipitators. Dr. Harrison admitted on cross-examination that only a portion of the fly ash (between 20% and 30% depending on the type of boiler) actually leaves the boiler and goes to the control equipment. This same fact was later attested to by one of Edison’s engineers. This error alone amounted to an overstatement of total particulate discharge by a factor of five. Dr. Harrison stated that he, in fact, knew little about the operational capacity of Edison’s various control precipitators.

Dr. Harrison admitted that he did not know the purpose of the stack tests he used to determine a 2.5% sulfur content of the coal burned by Edison. Later Edison witnesses testified that 2.5% was not representative of the sulfur content of the coal used at the Indiana plant. The total amount of sulfur dioxide discharge from the station similarly appeared to be overstated.

Dr. Harrison testified that the validity of his model depended in large part on his data. He admitted that his information was inadequate. He stated, in fact, that much of his information was in error by a factor of a thousand, and that a detailed analysis from such data was necessarily insufficient. Dr. Harrison made no attempt to obtain additional information from Commonwealth Edison.

It was also revealed on cross-examination that Dr. Harrison’s 57,155 figure as to the amount of sulfur dioxide concentrations in the Chicago area is an instantaneous calculation. The federal standards are all stated in terms of average concentrations over periods of time — either annual means, or daily or hourly averages. Dr. Harrison’s figure appears inordinately large to the numbers expressed by federal standards because he failed to express his ground level concentrations in terms of periods of time. Edison exhibited during cross-examination that Dr. Harrison’s comparison of the federal public health standards to his concentration estimates from the Indiana plant was highly misleading.

Other data insufficiencies were brought out on cross-examination. Dr. Harrison did not take into account the station’s stack effluent temperatures, exit velocities, stack diameters, or varying plume rises (the latter being dependent on the wind conditions of any given day). The record indicates that all of these factors, especially plume rise, are important in measuring emission dispersal in order to accurately determine ground level concentrations.

Finally, Dr. Harrison admitted that he had not made any effort to determine the background levels of either particulate matter or sulfur dioxide concentrations. The region where the Edison facility is located is heavily industrialized. Dr. Harrison stated that it was very difficult to prove that concentrations in the Chicago area were coming from one direct source.

Mr. John Bradley, an independent consulting meteorologist employed by Commonwealth Edison, was called by Edison to controvert much of Dr. Harrison’s testimony. Bradley used a diffusion model study to determine the contribution of concentrations emitted from the Indiana station on the surrounding area. With the aid of computer drawn “isopleths” (“isopletlis” are like isobars frequently utilized on weather maps), Mr. Bradley stated that average annual concentrations of sulfur dioxide in Chicago attributable to the Edison facility was 17 micrograms per cubic meter. Beyond an average of 6 miles into the Chicago area, Mr. Bradley stated that the station’s contribution to concentrations of sulfur dioxide was less than 5 micrograms per cubic meter. The average annual concentration of particulate matter attributable to the Indiana facility in Chicago was shown by the Bradley study to be 1.4 micrograms per cubic meter. Both computations of the Indiana facility’s contribution of ground level concentrations of sulfur dioxide and particulate matter were well below the applicable federal public health standards.

Mr. Bradley further testified that his study was based upon actual data encompassing all weather conditions, varying plume rise, and emission rate measurements for each stack in operation at the Indiana plant. All of Bradley’s calculations were averaged over periods of time, annually and daily, in order to make adequate comparisons with the federal standards.

Mr. James Fancher, a systems environmental engineer for Edison, was also called to dispute Dr. Harrison’s testimony. Fancher testified that the sulfur content of the coal burned at the station since January, 1971, was 1.53%, and not the 2.5% figure assumed by Dr. Harrison. Fancher stated that the stack tests utilized by Dr. Harrison were conducted in order to determine the effect of various kinds of high or low sulfur coals on precipitator efficiencies and were not generally representative.

Mr. Byron Lee, Jr., assistant to the president of the Commonwealth Edison Corporation, testified that Edison had submitted new compliance plans for its facilities located in Illinois in order to meet Illinois’ most recent pollution regulations. Mr. Lee also testified that Edison is in full compliance with pollution ordinances of Hammond, Indiana, which regulate sulfur dioxide emissions. Edison has also submitted compliance plans to the State of Indiana in order to meet future compliance standards.

Testimony relating to the deleterious health effects caused by pollution was offered by two witnesses for the City. Dr. Bertram Carnow, a physician with an extensive background in environmental medicine, presented and analyzed several studies exhibiting the adverse health effects of air pollutants. Dr. Carnow emphasized a major study conducted in Chicago involving 570 chronic bronchitis patients who were under the treatment of the University of Illinois School of Medicine. It was found that from among this group, the number of deaths from heart and lung diseases increased significantly on days, or during periods, of high pollution. Other studies revealed that an increase in respiratory diseases appeared to correlate with areas or times of high pollution for preschool children. Dr. Carnow testified that prolonged exposure to a sulfur dioxide concentration of 6,822 micrograms per cubic meter for a period of 4 hours would be harmful. Exposure to 754 or 750 micrograms per cubic meter of small suspended particulate matter would also be harmful according to Dr. Carnow. Both of these levels are above the federal standards. Dr. Carnow also described in great detail the various physiological reactions which can result from short-term and long-term exposure to air pollutants. '

Dr. Jean French, a research epidemiologist for the National Environmental Research Center, also testified to the adverse health effects of air pollution. Dr. French explained the methodology and the conclusions of the various “CHESS” studies (an acronym for Community Health Environmental Surveillance Studies). The “CHESS” studies are a series of epidemiology studies on the health effects of various environmental exposures in selected areas. One such study indicated that there was a greater risk of acute respiratory disease for preschool children and their families located in higher-pollution areas than for families located in low-pollution areas. Dr. French also testified that a second “CHESS” study conducted in Chicago found that military recruits from city areas showed more upper respiratory disease than did the recruits from suburban or rural areas.

The “CHESS” studies outlined by Dr. French did not take into account ethnic background, various types of air contaminants, stress, or exposure to indoor pollution. Dr. French testified that the present federal standards were necessary to protect the health of the population, and that the levels of pollution measured in the “CHESS” studies were above the standard federal levels.

Dr. Yves Alarie, a professor of respiratory physiology and toxiocolgy at the University of Pittsburgh, was called by Edison to testify about the health effects caused by certain levels of pollution. Dr. Alarie stated that all the authority in the field indicated that adverse health effects from sulfur dioxide or particulate matter resulted only at extremely high ground concentration levels. Dr. Alarie stated that the concentrations emanating from the Indiana facility would not cause injurious health effects. Dr. Alarie also stated that many deaths have occurred in high-pollution episodes due to other types of pollutants besides sulfur dioxide or particulate matter.

The fact findings of a trial judge in a complaint for an injunction to abate a common law nuisance will not be disturbed on review unless they are manifestly against the weight of the evidence. (Fink v. Board of Trustees, 71 Ill.App.2d 276, 218 N.E.2d 240.) Where testimony is contradictory, as in the instant case, the trial judge is in a better position than a court of review to determine the credibility of witnesses and the weight of the evidence presented. Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 226 N.E.2d 624.

A public nuisance is an unreasonable interference with a right common to the general public. Earlier cases recognized that the public had a right to clean, unpolluted air and that any deprivation of that right was actionable as a private injury and indictable as a public wrong. (Seacord v. People, 121 Ill. 623, 13 N.E. 194.) However, the notion of pure air has come to mean clean air consistent with the character of the locality and the attending circumstances. Whether smoke, odors, dust or gaseous fumes constitute a nuisance depends on the peculiar facts, presented by each case. (City of Chicago v. Fritz, 36 Ill.App.2d 457, 184 N.E.2d 713.) As a result of industrial expansion, the courts have utilized several factors in determining whether an industrial operation is an unreasonable interference with the right to clean air. One of those factors is the extent of injury or harm incurred to the public health, safety, peace or comfort. Another is a comparison of the operation’s methods or effects to proscribed standards outlined by applicable federal, state, or local regulations. A third is the suitability of the industry’s location. A fourth factor involves balancing the gravity of the harm done to the public against the utility of the defendant’s business to the community as a whole.

Courts of equity have traditionally been reluctant to enjoin an industrial operation unless it is clearly and satisfactorily proven to be a nuisance. (Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11, 185 N.E. 170.) If the right to relief is doubtful, either as to the law or under the facts presented, equitable relief will not usually be granted. Klumpp v. Rhoads, 362 Ill. 412, 200 N.E. 153; City of Pana v. Central Washed Coal Co., 260 Ill. 111, 102 N.E. 992.

The City has failed to answer the threshold question of whether Edison’s Indiana facility causes substantial harm so as to constitute an actionable invasion of a public right. In order to be entitled to injunctive relief, a substantial harm or injury must be clearly demonstrated. (Haack v. Lindsay Light & Chemical Co., 393 Ill. 367, 66 N.E.2d 391.) Edison’s Indiana facility is located in a highly industrialized area. The character of the locality necessitates that unpleasant odors, smoke and film will exist. These conditions in an industrial area have generally not been considered to be public nuisances. Gardner v. International Shoe Co., 386 Ill. 418, 54 N.E.2d 482; Haack v. Lindsay Chemical Co., 393 Ill. 367, 66 N.E.2d 391.

We are not unmindful of the harsh health effects caused by air pollutants as illustrated by the various studies presented by the City at trial. Nor are we ignoring the importance of reducing highly pollutant emissions emanating from congested industrial areas. However, the record clearly indicates that the City did not demonstrate injury to public health as a direct result of the emissions from Edison’s Indiana facility. The ground-level concentrations of sulfur dioxide and particulate matter offered by the City’s witnesses were not expressed in terms of time so as to be compared with federal standards. No connection, if any, was made between plume opacity readings of smoke from the Edison stacks and harm to the public health. Edison offered credible testimony which demonstrated that the Indiana facility’s contribution of sulfur dioxide and particulate matter ground level concentrations were well below the levels proscribed by the federal regulations, or even by the Hammond city ordinances. Although we are not bound by federal air-pollution standards in deciding whether the facility’s emissions constitute a common law nuisance, those standards offer us guidelines in the determination of the reasonableness of the operation and the extent of any harm to the public. All of the public health testimony signified that concentration levels below the federal standards were not substantially harmful to the public health. Moreover, the City could not clearly establish that the Edison plant was the direct cause of harmful pollution in Chicago, distinguishing the facility from other emission sources located in the area.

The record clearly indicates that the trial court’s findings were not against the manifest weight of the evidence. The City did not demonstrate that emissions from the Edison facility in Hammond, Indiana constituted a common law nuisance to the residents of Chicago. No unreasonable or substantial injury was evidenced. Tire record does not justify enjoining the operation of Edison’s Indiana power plant. The judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.

       The Ringelmann test referred to is described as follows in the Rules and Regulations of the Illinois Environmental Protection Agency Governing the Control of Air Pollution: “RINGELMANN CHART — The chart published and described in the Bureau of Mines, U. S. Department of Interior, Information Circular 8333 or as revised, and on which are illustrated graduated shades of gray to black for use in estimating the apparent density of smoke.”

       The national primary ambient air quality standards for sulfur dioxide is an annual arithmetic mean of 80 micrograms per cubic meter. The maximum 24-hour concentration which is not to be exceeded more than once a year is 365 micrograms per cubic meter. For particulate matter, the primary ambient air quality standard is an annual geometric mean of 75 micrograms per cubic meter. The maximum 24-hour concentration which is not to be exceeded more than once a year is 260 micrograms per cubic meter. See 40 C.F.R. § 50.7 inclusive (1973).

       See Restatement (Second) of Torts § 821B (Tent. Draft No. 17, 1971). See also Bryson and MacBeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 Ecology L. Q. 241 (1972).


author: Mr. JUSTICE STOUDER

text:
    David Vietmeier et al., Plaintiffs-Appellants, v. Delmar Kampen et al., Defendants-Appellees.—(Urban T. Leininger, Exr. of the Estate of Kathryn Stukenberg, Deceased, Third-Party Defendant-Appellant.)
    (No. 73-62;
    Second District
    November 15, 1974.

      Hunter, Madden, Plager & Hasting, of Freeport, for appellants.
    Kroeger, Burt & DeMik, of Freeport, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs-Appellants, David and Lorence Vietmeier, commenced this forcible entry and detainer action in the circuit court of Ogle County against Delmar and Rena Kampen, defendants-appellees. There was also pending in the circuit court the matter of the estate of Kathryn Stukenberg, deceased. Urban Leininger, executor of the Stukenberg estate, and Delmar and Rena Kampen, the defendants in the forcible entry and detainer action, filed a complaint for declaratory judgment and for a writ of injunction against David and Lorence Vietmeier in the probate matter. The court ordered the declaratory judgment action in the probate case be consolidated with the forcible entry and detainer action. On motion of the defendants, Delmar and Rena Kampen, the court further ordered that the executor of the Stukenberg estate should be joined as a third-party defendant in the forcible entry and detainer action. The court, without a jury, in the forcible entry and detainer action, entered judgment in favor of the defendants and against the plaintiffs, from which judgment this appeal is. taken.

The Vietmeiers, plaintiffs in the forcible entry and detainer suit, farmed a portion of the premises owned by Kathryn Stukenberg during the crop year beginning on the first day of March, 1971, and ending on the last day of February, 1972. Mrs. Stukenberg died a resident of Ogle County, Illinois, on November 15, 1971. Urban Leininger was appointed executor of Mrs. Stukenberg’s estate on December 30, 1971. On February 28, 1972, Leininger as executor entered into an agreement for deed with the Kampens relating to the premises in question in this cause. Pursuant to the agreement for warranty deed the Kampens took possession of the premises on March 1, 1972. On May 1, 1972, the Vietmeiers filed an action in forcible entry and detainer and thereafter the declaratory proceeding filed in the probate estate was consolidated with such action.

On the date the case was set for hearing defendants moved for leave to name Urban Leininger, executor of the Stukenberg estate, a third-party defendant. The third-party action was filed and Leininger entered his appearance but the court reserved its ruling on the propriety of the third-party action. The gist of the third-party action was the obligation of Leininger as executor to indemnify or hold harmless the Kampens from any damages which they might sustain as a consequence of any action by the Vietmeiers. The fact that the Vietmeiers might have some claim as tenants was specifically recognized in the agreement for deed and the Kampens at the time they took possession of the premises on March 1, 1972, were aware of the Vietmeiers’ claim.

At the time of the hearing a stipulation was entered into by the parties relative to certain objections that might be made by Leininger as executor under the provisions of section 2 of “An Act in regard to evidence and depositions” (Ill. Rev. Stat. 1971, ch. 51, par. 2), commonly known as the Dead Man’s Act. Testimony to which objections were made under the Dead Man’s Act was to be received by the court, but the court was to reserve final ruling on any such objections until such time as the court had also ruled on the motion to permit the executor to be made a third-party defendant.

Finally, the court ruled that the motion to permit the executor to be named third-party defendant should be granted and the court further ruled that the testimony of David Vietmeier, one of the plaintiffs, should not be admitted because of the provisions of the Dead Man’s Act. Thereafter the court decided the issues in favor of the defendants and the appellants have appealed.

The Vietmeiers farmed a portion of the Stukenberg farm commencing March 1, 1971. Other relatives of the plaintiffs had farmed the land for several years prior thereto. It was the Vietmeiers’ claim they were farming the land under an oral tenancy from year to year and the plaintiffs introduced the testimony of several witnesses including that of David Vietmeier heretofore referred to in support of their contention. The Kampens and Leininger were aware of and admitted that some arrangement existed between Mrs. Stukenberg and the plaintiffs but contended they were only employees or tenants for a particular period of time. The issue was thus framed because admittedly no written notice of termination of tenancy was given to the Vietmeiers as required by section 5.1 of “An Act to revise the law in relation to landlord and tenant” (Ill. Rev. Stat. 1971, ch. 80, par. 5.1), which provides for four months written notice to terminate tenancy from year to year of farm lands.

On this appeal the plaintiffs urge the following: one, the trial court erred in permitting Urban Leininger, executor of the state of Kathryn Stukenberg, deceased, to be joined as a third-party defendant in the forcible entry and detainer action; two, the trial court erred in striking the testimony of David Vietmeier, one of the plaintiffs, on the basis of the provisions of the Dead Mans Act (Ill. Rev. Stat. 1971, ch. 51, par. 2); and three, the judgment of the circuit court in favor of the defendants Kampen and against the plaintiffs Vietmeier was against the manifest weight of the evidence and was clearly erroneous.

In tire view we have taken of this case it will only be necessary to consider the first assignment of error since in our opinion the trial court erred in permitting the third-party claim to be filed.

The resolution of this issue is governed by section 5 of “An Act in regard to forcible entry and detainer” (Ill. Rev. Stat. 1971, ch. 57, par. 5) which provides, “No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise.”

It is now settled that the foregoing section of the Forcible Entry and Detainer Act requiring counterclaims or defenses to be “germane” to the special purpose of the statute is unaffected by joinder provisions of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 1, ch. 57, par. 11; Twin City Inn, Inc. v. Hahne Enterprises, Inc., 37 Ill.2d 133, 225 N.E.2d 630, and Reid v. Arceneaux, 63 Ill.App.2d 113, 211 N.E.2d 24.) No claim was made in the trial court or is made in this court that the executor is a necessary party to the proceeding or that the plaintiffs sought any relief against the executor.

In the case of Twin City Inn, Inc. v. Hahne, 37 Ill.2d 133, 225 N.E.2d 630, the plaintiff-lessor brought a forcible entry and detainer action against a corporate defendant in default on the lease, including a claim for rent against the corporate defendant, and a claim for the same amount against an individual defendant who had guaranteed the obligation of the corporate defendant on the lease. In holding that the trial court erred in refusing to dismiss the action at the request of the individual defendant, the court declared that the action against the individual defendant as guarantor did not touch upon any possessory rights in the premises and therefore was not germane to the special purpose of the forcible entry and detainer action. We believe the rule as applied in the foregoing case is dispositive of the issue raised in this case and requires the conclusion that the third-party action should not have been joined. If it was not permissible for the plaintiff in the Twin City Inn case to assert its claim against a guarantor, it seems to us equally impermissible for the defendant to seek indemnification from a third party based on a collateral agreement between the parties to the third-party action. In such collateral action no possessory rights are involved, and the issues raised in the third-party action are irrelevant to the issue of possession raised in the forcible entry and detainer action. Bleck v. Cosgrove, 32 Ill.App.2d 267, 177 N.E.2d 647, is in accord with our holding and is illustrative of the application of the rule to a factual situation in which the defendant in a forcible entry and detainer action properly sought to assert his rights as a tenant, but improperly sought to assert his rights in another capacity, namely as shareholder.

The only case called to our attention by the appellees in support of the trial court’s action is Allensworth v. First Galesburg National Bank & Trust Co., 7 Ill.App.2d 1, 128 N.E.2d 600, in which the court approved the granting of equitable relief to a defendant in a forcible entry and detainer action. We agree with the holding in the Allensworth case, but, rather than supporting the trial court’s action in the instant case, we believe the reasoning of the court when applied to the facts of the instant case requires the conclusion that the third-party claim was improperly filed. In Allensworth the plaintiff in the forcible entry action had filed numerous previous legal actions questioning the ownership and right of possession to the property by the defendants, all of which actions had been determined adversely to the plaintiff. The defendants sought and were granted injunctive relief protecting their ownership and possession of the premises from future litigation by the plaintiff. The court recognized initially that the defendants did have the right to possession of the premises and that although they might have an independent action to accomplish the same result the court concluded that seeking such relief was related to the possessory rights asserted by the defendants and which were directly in issue in the action. In contrast to the facts in the Allenswoith case, those in the instant case indicate the executor was not in possession of the premises and did not assert any right to possession of tlje premises. Furthermore, the third-party claim did not involve any possessory issues but merely indemnification in the event the defendants sustained some damage.

It is our conclusion the trial court erred in permitting the filing of the third-party action against the executor of the Stukenberg estate. It follows from this holding that the court also erred in excluding the testimony of David Vietmeier. If, as we hold, the third-party action was improperly filed, then no claim is asserted against the representative of a decedent, and consequently the question of the disqualification of David Vietmeier to testify does not arise. David Vietmeier s testimony should have been considered by the trial court, and the failure of the court so to do requires that this case be remanded for a new trial.

For the foregoing reasons, the judgment of the circuit court of Ogle County is reversed and remanded with directions that plaintiffs be granted a new trial.

Reversed and remanded with directions.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Board of Education of School District No. 68, Du Page County, Plaintiff-Appellant, v. Surety Developers, Inc., Defendant-Appellee.
    (No. 72-388;
    Second District
    December 16, 1974.

      Rehearing denied January 8,1975.

      G. Kent Yowell, of Northbrook, for appellant.
    Marks, Marks, & Kaplan, of Chicago (William S. Kaplan, and Robert Marks, of counsel), for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff brought this action to collect damages for breach of a written contract entered into by the parties; the defendant filed a counterclaim. After a bench trial, the court entered judgments in favor of the defendant on both the complaint and the counterclaim. Plaintiff appeals contending that the trial court erred in finding that (1) the original agreement of March 24, 1959, and the later contract of February 15,1960, were illegal, and (2) that defendant entered the contracts under duress.

Early in 1958, the defendant acquired about 300 acres of land with an option to purchase an additional 165 acres. (The unimproved, unsubdivided property was located in an unincorporated area and surrounded by farm land.) The purchase price of the 465 acres was approximately $500,000.

It was defendant’s original intent to divide the land into parcels of 1 or more acres, to service the lots with individual septic fields and wells, and to sell the vacant lots so improved. The Du Page County Health Department, however, advised defendant that seepage tests showed the land unsuitable for individual septic fields and that the only alternative would be the installation of a community sewage-treatment plant. The department also informed defendant that if additional seepage tests at greater depths proved satisfactory, they would reconsider their decision.

Instead of making additional tests, the defendant instituted an alternate plan to divide the land into lots of less than 1 acre, to build homes, and to install a community sewage-treatment plant and water facilities. The land, however, was zoned residential (R-2) and, under that zoning, community sewage and water systems were permissible only by the granting of special-use permits from the County Board of Supervisors (Board). It is noted that without Board approval no plat could be recorded (HI. Rev. Stat. 1957, ch. 109, § 2); thus, defendant’s alternate plan depended upon approval of its applications for special-use permits.

Defendant filed applications for special-use permits to build a permanent community sewage-treatment plant, two temporary sewage-treatment plants, two permanent well sites, and a permanent water tower. On July 31, 1958, the County Zoning Board of Appeals held a public hearing to consider the special-use applications. The majority of the approximately 150 persons in attendance opposed the request on the grounds that the school could not handle the projected increase in enrollment, that traffic and police problems would be created and that the value of adjoining property would be lowered.

The Zoning Board of Appeals, by letter to the Board, recommended denial of the special-use applications with the following findings:

“The Board finds that permitting the issuance of these Special Use Permits will allow the petitioner to reduce the frontage of his lots from 180 feet to 90 feet and to reduce them in area from 1 acre to 12,000 square feet, as provided under R-2-Single Family Residence District regulations. * * * The Board is unanimously of the opinion that the issuance of these Special Use Permits will allow a subdivision development that is entirely out of character with the uses of adjacent and adjoining property and which would tend to diminish their property values, add to the hazards on the public streets and highways and place a considerable burden on the country school which serves the area. * *

The defendant thereafter undertook a program of discussing his problem with as many of the Board members as possible. In addition, defendant, knowing that the recommendation would go before the Building and Zoning Committee (who then would make their recommendations to the Board), asked for and was granted a hearing before the Committee. The defendant at this time attempted to negotiate with the plaintiff but plaintiff would not meet with defendant.

On August 19, 1958, after meeting with the Committee and in response to its concern regarding schools, the defendant, by letter to the Committee, stated in part:

“Insofar as our development will create the need for additional class room facilities in the Goodrich School District, it is our intent to be cooperative with those needs. We therefore agree to the following:
1. We will furnish houses as temporary school facilities at a minimum rental to the School Board, if required, until permanent school facilities can be erected.
2. We will furnish the ground, build a permanent school facility and lease same to the Goodrich School District at a nominal rental of $1.00 per year for a period not to exceed five years, the School Board to purchase said facilities prior to the expiration of the rental term at 80% of the total cost of the facilities.”

The Board accepted the defendant’s offer and granted three of the four requested special uses, denying only the requested operation of the temporary sewage-treatment plants. Each of the special-use permits contained a condition taken verbatim from defendant’s letter to the Committee. The Board also on this date approved defendant’s plat of subdivision which was recorded, and subsequently, defendant’s other plats were approved and recorded.

The defendant commenced construction, including contracting for installation of the permanent sewage-treatment plant, waterworks, and connecting pipelines. It planned to build houses that would sell in the $14,000 to $17,000 range, with Federal Housing Administration (F.H.A.) and Veterans Administration (V.A.) backing. Pursuant to this plan, the defendant, in early September, 1958, sent letters to the V.A. seeking their approval, which approval was to take the form of the agency’s guarantee of private financing.

By September 13, 1958, the defendant, having submitted all forms required by the V.A., believed that approval was forthcoming, and started an advertising campaign in a Chicago newspaper that included a reference to veteran benefits and to available schools. The V.A. at this time had a policy of including, as a special condition to approval, matter that a builder advertised as part of its development.

Sometime after the first ad appeared, the plaintiffs representatives met with V.A. representatives to complain that defendant’s development Was in a virgin area and that the development would place a tremendous burden on the present school system which was rather small. On October 20, 1958, the plaintiff’s attorney wrote a letter to defendant seeking a meeting to work out an agreement between plaintiff and defendant. The next day, defendant replied by a letter wherein he agreed to meet with the plaintiff to discuss and review various proposals.

On November 14, 1958, the V.A. wrote a letter informing defendant that they were aware of the inadequacy of the existing school facilities, that it was defendant’s responsibility to make arrangements to assure that the nonexistent school facilities would be provided as a condition precedent to V.A. approval of subdivision plans and that it was of prime concern to the V.A. that availability of necessary schools be assumed as a condition precedent to sale of houses to veterans. In reply, defendant wrote letters which stated that defendant had, since the inception of the project, taken steps to insure adequate schools; had met with plaintiff a number of times; had agreed to provide both temporary and permanent school facilities; was enclosing the resolution of the Board outlining this agreement; and was presently meeting with plaintiff to draw up a formal agreement. Additionally, the letters requested that the V.A. grant defendant conditional approval with the understanding that no veteran loans would be closed until plaintiff and defendant had signed an agreement.

On December 12, 1958, the V.A. issued the conditional approval requested. On March 24, 1959, plaintiff and defendant signed the first agreement.

The agreement provided the specific details for both the temporary and permanent school facilities to be made available by the defendant. In substance, the terms of the agreement were tire same as the conditions of the special-use permits. Plaintiff notified the V.A. of the agreement and the condition was deleted from the V.A.’s approval.

Thereafter, defendant began to experience difficulties performing under the agreement and “felt it was a very bad deal.” On November 18, 1959, defendant’s attorney, in a letter to plaintiff, sought to cancel the agreement and proposed an alternative plan. By reply letter, plaintiff informed defendant that they thought it would be best for defendant to perform under the March 24 agreement. Defendant did not respond and, on December 8, 1959, plaintiff again wrote defendant seeking compliance with the agreement. On December 16, 1959, defendant, by letter, requested that plaintiff deal through defendant’s attorney. Pursuant to a conversation with plaintiff, defendant’s attorney, on January 20, 1960, offered two alternative plans in lieu of the March 24 agreement.

On February 15, 1960, plaintiff and defendant entered into a new agreement wherein defendant agreed to donate to plaintiff certain land with improvements (stipulated value $35,000), to pay plaintiff $50,000 as an initial contribution toward the construction of the permanent school and $200 for each home thereafter constructed and occupied in the subdivision. Plaintiff, for its part, agreed to erect a school building on the site, to request the voters to approve a bond issue and to cancel the March 24 agreement when the initial deposit was made by defendant.

Defendant thereafter conveyed the real estate to plaintiff, made the initial contribution, and completed the agreed-to improvements. After receiving voter approval, plaintiff issued bonds totaling $140,000 and erected the school at a total cost of approximately $288,000.

Subsequent to the new agreement, defendant built 1030 homes (during which time its advertising stated that $200 per home was to be donated to cover the cost of the new school facilities), but failed and refused to make the per lot payments to the plaintiff. Plaintiff brought this action to collect under the terms of the second contract. Defendant denied owing plaintiff anything, asserting that both contracts were unenforceable by reason of illegality and duress, and it counterclaimed for the value of the land, $35,000 and the $50,000 contribution. The trial court entered judgments in favor of the defendant on both the complaint and the counterclaim, awarding defendant $85,000.

The trial court, in reaching its decision, relied upon Pioneer Trust & Savings Bank v. Village of Mount Prospect, 22 Ill.2d 375 (1961), and Rosen v. Village of Downers Grove, 19 Ill.2d 448 (1960), and held invalid the conditions contained in the special-use permits with the result that the contracts between plaintiff and defendant were rendered illegal. We conclude the facts in these cases are distinguishable from the instant case.

Pioneer involved a portion of a village ordinance that required the dedication of land for public use as one of the conditions precedent to plat approval of a subdivision. The subdivider satisfied all other conditions but refused to make the dedication and, by mandamus, sought to compel the village to approve its plat. The supreme court found for the subdivider and held the contested portion of the village ordinance invalid. The court stated that the school facilities were at near-capacity as a result of the total development of the community, not because of the subdividers proposed plan, and reasoned that where the public need for the land was not specifically and uniquely attributable to tire proposed subdivision, the dedication would constitute a taking of private property for public use without just compensation. There was no contract at issue in Pioneer.

The Rosen case was a class action involving a portion of a village ordinance which required that, prior to plat approval, the sub divider must dedicate land for educational purposes. It further required that if the plan commission should deem that the proposed dedication of land would not of itself meet the reasonable requirement of providing educational facilities for the proposed subdivision, then the plan commission might require any additional means for providing the same. Acting in reliance on this ordinance, the plan commission required the subdivider to receive a certificate of approval from the local boards of education as a condition precedent to plat approval. In order to receive such certificate, some subdividers were required to pay certain sums per lot to the local boards of education for educational purposes. The court found that the technique of requiring per lot payments for educational purposes was not authorized by the enabling State statute; that the requirement of a certificate of approval from the boards of education was also without enabling legislation and amounted to an abdication of authority by the plan commission; and that the ordinance, in providing for “educational purposes,” was broader than the language of the enabling statute and also without standards to govern the plan commission in determining the amount of land to be dedicated. On this basis the court held the portion of the ordinance invalid.

The court, however, did not hold that all payments made to the local boards of education by members of the class should be returned pursuant to its findings of invalidity, but specifically found that the payments made by one of the members of the class (Firestone) were made under duress and thereby refundable. Too, in finding that the action was properly brought as a class suit, the court noted that subsequent proceedings may reveal tire existence of some subdividers who made voluntary payments to the boards of education.

In Board of Education v. Herzog Construction Co., 29 Ill.App.2d 138, 142 (1961), the court allowed the plaintiff-board to recover funds promised to it by the defendant-developer pursuant to a written agreement, stating that Rosen “supports tire plaintiff in its contention that the Board of Education is authorized to enter into voluntary agreements with subdividers to accept payments to help defray the cost of erecting school buildings.”

Therefore, even assuming arguendo that the conditions of the special-use permits are invalid, there is nothing in Rosen or Pioneer which requires that the contracts between the parties be ipso facto found illegal. In order for a contract to be deemed illegal it must expressly contravene the law or known public policy. (Gowdy v. Richter, 20 Ill.App.3d 514, 525 (1974).) There is no known law or public policy that makes it illegal for boards of education and developers to enter into contracts that help defray the cost of constructing educational facilities. On the contrary, the law is clear that this type of agreement is enforceable even in the face of an invalid ordinance, if the agreement was the voluntary act of the parties. We therefore find the trial court in error for holding the contracts illegal.

In addition to finding these contracts illegal, the trial court also found them unenforceable by reason of duress. The finding of duress was based upon two premises: (I) the conditions of the special-use permits forced the defendant to negotiate the contracts with the plaintiff; and (2) the plaintiff induced the V.A. to condition its financing upon defendant’s entering into an agreement with plaintiff. These findings raise the central and controlling inquiry in the present cause. Were these contracts entered into voluntarily or were they entered into under duress? It is plaintiff’s position that the finding of duress was against the manifest weight of the evidence.

As stated in Stoltze v. Stoltze, 393 Ill. 433, 442 (1946):

“Duress has been universally defined as a condition which exists where one is induced by the unlawful act of another to make a contract * # * under circumstances which will deprive him of the exercise of his free will. There must be such compulsion affecting the mind as shows that the execution of the contract * * # was not the voluntary act of the maker. Such compulsion must be present and operate at the time the instrument was executed. The burden of proving such duress is on the person asserting it.”

Further, in People ex rel. Drury v. Catholic Home Bureau, 34 Ill.2d 84, 93 (1966):

“Mere advice, argument or persuasion does not constitute duress * * * if the individual acts freely when he executed the questioned documents though the same would not have been executed except for the advice, argument or persuasion.”

The facts presented in the present cause reveal that the defendant’s land was zoned R-2. Under this zoning, defendant could have built his proposed subdivision on lots with an area of 12,000 square feet without special-use permits if public sewer and water facilities were available. The unavailability of such facilities made it necessary for defendant to apply for special-use permits and this in turn brought to light the community’s objections to the proposed subdivision.

These objections resulted in the Zoning Board of Appeal’s unanimous rejection of the defendant’s special-use applications. Final action, however, remained a question for the Board. The Board, in making its decision, was required by law to weigh the desirability of the proposed use against its adverse impact. (Kotrich v. County of Du Page, 19 Ill.2d 181, 186-87 (I960).) Under this test, the defendant’s applications faced possible denial on the weight of the development’s adverse impact.

Perhaps anticipating this result, but without regard to it, defendant on its own initiative and without prior contact from the Board, sought out members of the Board, individually and in committee. (The defendant also sought, but was denied, a meeting with the plaintiff.) The purpose of these meetings was to make the development more desirable, to lessen its adverse impact, and to thereby tip the scales in favor of approval. The plan worked. The defendant’s special-use applications were approved without the plaintiff ever participating. Unlike the facts in Rosen and Pioneer, here, it was the developer, not the Board, who initiated the action that led to the conditions requiring the donation of school facilities; the area effected was undeveloped; and the school problem created was one specifically and uniquely attributable to defendant’s proposed development.

Further evidence of the voluntary nature of defendant’s action is revealed in a letter to the V.A. (November 17, 1958) wherein defendant states:

«# # # We have taken steps since the inception of. this development to adequately provide proper school facilities to those who purchase homes in the subdivision. * #

There is absolutely no evidence that the Board forced the defendant into providing school facilities. If defendant had believed the Board’s actions to be unauthorized by statute, it could have brought a mandamus action (as in Pioneer) or satisfied the condition -under protest and sought legal recourse (as in Rosen). Neither procedure was followed. The record indicates that at no time did defendant directly challenge the Board’s authority to impose the conditions. To the contrary, after approval, the defendant advertised available schools as a selling point for his development.

The trial court found that:

“The condition precedent in the Special Use was fatal to plaintiffs cause, for defendant was forced thereby to negotiate two contracts with the plaintiff, the second of which is the subject matter of this suit. * * *”

This finding belies the evidence. A reading of the conditions clearly reveals that no agreement between plaintiff and defendant was required as a condition precedent or condition subsequent to approval of the permits. Defendant has offered no evidence to support a finding that the Board otherwise required the defendant to enter into an agreement with the plaintiff, or that the Board invested the plaintiff with any authority to control the actions of the defendant. The Board took no part in the negotiations between the parties herein. The defendant was required to comply with the requirements of the conditions, regardless of plaintiffs desires. Noncompliance would necessitate action by the Board, not the plaintiff. Any problem defendant encountered could have been presented to the Board.

Duress is a state of mind wherein the circumstances are such that the party is deprived of his exercise of free will. The burden is on the complaining party to prove duress. The defendant has failed to meet its burden of proof.

The facts reveal that the defendant did not enter into the first contract with the plaintiff until after such an agreement became a condition precedent to final V.A. loan approval. The second contract was initiated at defendant’s urging and while the plaintiff at first refused, it later relented under the persistence of defendant and executed the second contract drawn in defendant’s terms. This later agreement stated:

“* * * Further, that [defendant] is entering into the undertakings and commitments hereunder on a wholly voluntary basis, without duress, and with the advice of it legal counsel.”

The trial court found that:

* * The conclusion is inescapable that plaintiff successfuHy induced the Veteran’s Administration to condition its financing upon defendant’s willingness to furnish a school for plaintiff. * * * Clearly, this constituted duress.”

There is no evidence that the plaintiff committed any unlawful act by informing the V.A. of the existing school situation, nor is there evidence that the plaintiff had any control, whatsoever, over the actions of the V.A. The acts reveal that it was the defendant who, in a letter to the V.A., first proposed that its final loan approval be conditioned on an agreement with the plaintiff. In return, the defendant wanted interim loan approval from the V.A. The V.A. did no more than accept the defendant’s offer. There is no evidence to support the finding that the V.A. or the plaintiff forced the defendant to make this proposal or that the proposal was not tire voluntary act of the defendant. On the contrary, the evidence discloses that plaintiff and the V.A. expected defendant to abide by what it had promised in its advertisements and in obtaining the special-use permits. Under these facts, finding duress in the action of the V.A. is without supporting evidence.

For the reasons stated, we conclude that the trial court erred in holding that the contracts were illegal and that they were entered into under duress. The judgments, therefore, are reversed and the case is re- ' manded for further proceedings.

Judgments reversed; cause remanded.

SEIDENFELD and RECHENMACHER, JJ., concur.

       Plaintiff’s school district in 1958 had only one school which was more than a mile from the proposed development. The school had five classrooms and a total enrollment of 97 students in the 1958-59 school year.

       The school was completed in 1961. At the time of trial, January 1972, only 25 to 35 of the 1400 students who attended the schools in plaintiff's district lived outside the development.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dale Grammer, Defendant-Appellant.
    (No. 73-170;
    Third District
    December 30, 1974.

      James Geis and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    RobertE. Richardson, State’s Attorney, of Ottawa (Charles R. Marshall, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order dismissing petition of defendant Dale Grammer in a post-conviction proceeding. Ill. Rev. Stat. 1973, ch. 38, par. 122 — 1 et seq.

On June 12, 1970, defendant Dale Grammer pleaded not guilty to a two-charge indictment for aggravated incest. The charges were based on section 11 — 10 of the Criminal Code (aggravated incest) (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 10). Defendant pleaded guilty to one count of aggravated incest and was thereafter sentenced to a term of not less than 2 years nor more than 10 years in the Illinois State Penitentiary. No direct appeal was ever taken from such conviction and sentence. Defendant now seeks post-conviction relief by means of a pro se petition as we have indicated. As we have also noted, following a hearing, the petition filed by appellant was dismissed.

The only issue raised by appellant on this appeal is that the classification of tire father-daughter incest as aggravated incest violates appellant’s right to equal protection of the law for the reason that the statute pursuant to which appellant pleaded guilty makes an improper classification on the basis of sex. Appellant did not raise this issue either on the trial or on appeal, since no appeal was ever filed in this case. Appellant likewise did not raise the issue in his post-conviction petition. It is raised for the first time on appeal from the dismissal of the post-conviction petition.

The People contend that appellant lacks standing to challenge the constitutionality of the statute since he is presumably not aggrieved thereby and, additionally, that he waived consideration of the issue by failing to raise the issue at trial. It is asserted that the issue was also waived by his plea of guilty and was further waived by failure of appellant to include the allegation of unconstitutionality in his petition for post-conviction relief. It is also contended by the People, on the merits, that the classification made in the challenged sections of the criminal code are proper and do not violate the equal protection provisions of the Illinois and United States constitutions.

As a preliminary matter, we should observe, that the Criminal Code subjects a male person to criminal conviction on the charge of aggravated incest if he has sexual relations with his daughter (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 10). Only the father can be convicted thereunder as the statute does not refer to the daughter as a violator. In 1970, when petitioner-appellant pleaded guilty, a person convicted of aggravated incest could be imprisoned a minimum term of 2 years and a maximum term of 20 years. Under the Unified Code of Corrections, the offense is a Class 2 felony punishable by the same maximum but with a permitted minimum of 1 year.

In the Criminal Code, in contrast to the aggravated incest provision, it is provided that any person who has heterosexual relations with his or her mother, son, sister or brother, may be convicted on the charge of simple incest. (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 11.) In 1970 the punishment for such simple incest was by penitentiary term of 1 to 10 years. Under the Code of Corrections, the offense is classified as a Class 3 felony and is punishable the same as prior to the Code.

It is noted that a male, as a father, can be convicted only on the charge of aggravated incest since the simple incest provision does not apply to a father. While only a father can be convicted of father-daughter incest' (since the daughter is not subject to conviction), both parties to sexual relations can be convicted in the case of mother-son or sister-brother incest. Accordingly, a female person can be convicted as a sister under the incest statute but not as a daughter under the aggravated incest statute.

On the basic issue before us, it is first contended by the People that appellant lacks standing to challenge the constitutionality of the statute under which he was charged and to which he pleaded guilty, since he was not aggrieved by the alleged constitutional objection, by virtue of the fact that the maximum sentence that could be imposed on appellant does not exceed the maximum permissible under simple incest. While we have indicated in People v. Campbell, 16 Ill.App.3d 851, that anyone attacking the constitutionality of a statute must be aggrieved by the alleged objection, that rule does not operate to deprive appellant of standing in the cause before us. The position of appellant is that the aggravated incest statute is based upon an improper classification and, as such, is invalid. The standing of appellant is based on the fact that he is a member of the class, namely fathers, which is allegedly treated improperly in a different manner than other members of the family, notably as to the minimum sentence provided.

It is a well-settled rule that where an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those which could have been raised, but were not, are deemed waived for the purposes of post-conviction relief. (People v. Kamsler, 40 Ill.2d 532.) The rule varies, however, where no appeal is pursued. The party who fails to appeal waives those rights based on mere error at the trial but is still entitled to assert those constitutional rights which the Post-Conviction Act is designed to protect. Therefore, a party who fails to appeal, for whatever reason, waives those rights based on mere error at tibe trial but can assert “any right which may have existed to a post-conviction hearing on the constitutionality of his imprisonment.” (People v. Rose, 43 Ill.2d 273, 279.) Thus, where the post-conviction petitioner has not taken a direct appeal, as was true in the instant case, he may raise, in a post-conviction petition, every constitutional issue which “appears or is suggested by the record.” People v. Eatmon, 47 Ill.2d 90.

We thus reach the primary factors to be considered as to appellant’s status. It is noted that while the failure to seek a direct appeal does not waive constitutional issues, those issues must appear or be suggested by the trial record. The failure to raise a constitutional issue at the trial would operate to waive that contention at a post-conviction hearing since it would not “appear or be suggested by the record.” While the Rose and Eatmon cases do not confront the issue of waiver directly, the conclusion emerges from them, and is a logical extension of the rule, that the failure to raise a constitutional issue at trial waives the issue for the purposes of appeal. (People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.) The Amer-man case specifically applied the rule to the challenge of constitutionality of the statute under which petitioner there was charged. As stated in the Rose case, petitioner has no right to a post-conviction hearing on those issues not raised at trial. Since the appellant in the case before us pleaded guilty, he did not raise such issue at trial and, therefore, he has waived consideration of the challenge to the constitutional validity of the aggravated incest statute.

In People v. Frey, 54 Ill.2d 28 (where the Illinois abortion statute was declared void), the Illinois Supreme Court consolidated the conviction of Frey with the conviction of Mirmelli in People v. Mirmelli, 130 Ill. App.2d 1. The appellate court in Mirmelli did not consider the constitutionality of the abortion statute since it was not raised at the trial. The refusal of the court to consider the issue was founded upon the same decision which served as a basis for the Amerman decision. The supreme court declared the statute void and reversed the convictions therein without mention of appellant Mirmelli’s failure to raise the constitutional issue at trial. The First District Appellate Court in People v. Graves, 23 Ill.App.3d 762 has held that the Frey case has overruled, by implication, the rule in Amerman. The appellant urges this court to accept the ruling in Graves, and to extend its import to permit consideration of a contention that a statute is unconstitutional, where the contention is made for the first time at post-conviction hearing appeal, where no direct appeal was taken. We do not find that the Amerman rule was overruled by Frey, and the conclusion in Graves seems to be unsupported by anything which was said by the Supreme Court in the Frey case. The rule in Amerman was a well-settled one. (See People v. Luckey, 42 Ill.2d 115, 245 N.E.2d 769; People v. Brand, 415 Ill. 329.) In the cause before us, the claim of waiver is further supported by defendant’s plea of guilty, which waives all nonjmisdictional issues. (People v. Hysell, 48 Ill.2d 522), and also by the failure to include the claim in the original post-conviction petition which amounts to a waiver of the issue as well. See Ill. Rev. Stat. 1973, ch. 38, par. 122 — 3.

The last case cited by appellant on the issue of waiver is People v. Sarelli, 55 Ill.2d 169, 302 N.E.2d 317. In that case, defendant was convicted under the old narcotics drug act. His appeal questioned the sufficiency of the evidence but did not contest the constitutionality of the statute. After his appeal was dismissed, tire court held the statute unconstitutional in People v. McCabe, 49 Ill.2d 338. The precise issue in the Sarelli case was whether the determination of invalidity of the statute upon which the conviction rests requires vacation of the conviction when the issue of constitutionality is raised for the first time in post-conviction proceedings. The cotut held that this could be done, and the judgment of conviction was reversed. Appellant contends that this case permits consideration of the constitutional challenge to the statute in the instant case. We do not believe the Sarelli case aids appellant in this case. To consider otherwise would require that we permit consideration of a constitutional attack upon the validity of the incest statute in a case where the issue is not raised at the trial; not raised on direct appeal; raised for the first time in the post-conviction hearing appeal; and, also, where the statute has not been declared unconstitutional in any other proceeding. The Sarelli case apparently is intended to be, and is, limited to the factual situation which existed in Sarelli. The McCabe case was determined by the court to be applicable to cases pending on appeal on that day and to be applied whether or not the issue had been previously waived. (People v. Hudson, 50 Ill.2d 1.) The principle applied was simply to the effect that it would be unjust and unfair to permit a conviction to stand on the basis of a statute which has already been declared invalid. That reasoning does not apply to a case where the statute has not been declared invalid in any manner in any proceeding previously or simultaneously.

On the basis of the Amerman decision and the others which have been discussed in the course of this opinion, it is apparent that the issue which is sought to be raised by appellant challenging the constitutionality of the incest statute has been waived.

For the reasons stated, the judgment of the Circuit Court of La Salle County is affirmed.

Affirmed.

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