author: JUSTICE CHAPMAN

text:
    MARK CRAIG, Petitioner-Appellant, v. THE ELECTORAL BOARD OF OCONEE TOWNSHIP, Respondent-Appellee.
    Fifth District
    No. 5—89—0249
    Opinion filed January 8, 1991.

      William E. Farr, of Pana, for appellant.
    Daniel M. Franklin, of Pana, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

An Oconee Township Democratic Party caucus was held on January 10, 1989, for the purpose of nominating candidates to local township offices. At the caucus a motion was made and carried to adopt rules of procedure whereby the candidates would be selected as a slate. A slate consisting of six candidates was nominated, and Mark Craig was then nominated as road commissioner. The nomination of Mark Craig was not accepted. The caucus accepted the first slate of candidates to run in the local township election.

On January 20, 1989, Mark Craig served objections to the caucus procedure upon the Oconee Township clerk. The objections were set for hearing on January 27, 1989. Craig and his attorney appeared at the hearing and moved to withdraw Craig’s objections to the caucus procedure. The motion was denied. Craig’s motion for a continuance of the hearing on his objections to caucus procedure was denied. Craig then filed an objection to the nomination papers. The board allowed the filing of the objection to nomination papers. Craig and his attorney then left the hearing. At this point in the proceedings, the board examined both pleadings and determined that the only substantial difference between the two pleadings was the latter’s prayer for a new caucus. The electoral board proceeded to conduct a hearing and concluded that the caucus of January 10, 1989, was conducted in a proper manner. The board overruled the petitioner’s objections and sustained the caucus results.

Craig filed for judicial review of the board’s decision. The trial court’s decision was limited to two issues: (1) whether the electoral board’s decision was arbitrary or not supported by the findings; and (2) whether the electoral board had authority to conduct the hearing on both the objections to caucus procedure and objection to nomination papers. The trial court confirmed the decision of the electoral board and assessed costs of $350 against petitioner for service of the subpoenas and notices of the January 27,1989, hearing. Petitioner appeals.

Judicial review of decisions of the electoral board is intended to provide a remedy against arbitrary or unsupported decisions. Williams v. Butler (1976), 35 Ill. App. 3d 532, 538, 341 N.E.2d 394, 398; Wiseman v. Elward (1972), 5 Ill. App. 3d 249, 254, 283 N.E.2d 282, 287.

The first issue raised by petitioner is whether it was error for the electoral board not to accept the nomination wherein petitioner’s name was included. We find no error. Section 6A — 1.1 of the Township Law of 1874 (Ill. Rev. Stat. 1989, ch. 139, par. 59a. 1) provides that “[t]he rules of procedure for conducting a township *** caucus must be approved and may be amended by a majority vote of the qualified participants attending the caucus.” Section 6A — 1.1 also provides that the rules of procedure shall include “[w]hether candidates will be selected as a slate or as individual nominees for each office.” (Ill. Rev. Stat. 1989, ch. 139, par. 59a. 1(a).) The minutes of the January 10, 1989, caucus reveal that a motion was made to adopt rules of the caucus whereby candidates would be nominated by slate. The motion carried. As shown in the minutes, the caucus then proceeded as follows:

“Clarence Schmitz called for the nominations. Carl Rakers nominated the following slate: Wilmer McDonald — Highway Commissioner, Clarence Schmitz — Supervisor, Carol Hoehn — Clerk, Kenneth Flesch, Jim Berns, Joe Wolf, and Paul Temmen — Trustees.
Tom Berns nominated Mark Craig for road commissioner. It was explained that his nomination cannot [sic] be accepted due to the ruling that nominations be accepted as a slate.
John Berns made a motion that the nominations be closed, seconded by Tom Berns, Motion carried.”

Judicial review of electoral board decisions are not to exceed the record made before that board. (Wiseman, 5 Ill. App. 3d at 255, 283 N.E.2d at 287.) The minute record shows that although an opportunity was given for discussion on whether to adopt the proposed rules of procedure, no one objected to the rule that nominations would be by slate. Petitioner argues that Tom Berns’ nomination of Mark Craig was obviously a nomination of a slate consisting of the previously nominated slate with Craig’s name substituted for Wilmer McDonald’s. We disagree.

The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674, 677.) When construing a statute, the court should look first to the language of the statute (Robinson, 89 Ill. 2d at 475), giving the terms of the statute their plain and ordinary meaning (People v. Steppan (1985), 105 Ill. 2d 310, 317, 473 N.E.2d 1300, 1303-04). Section 6A-l.l(a)(4)(6) mandates that the rules of procedure shall include whether the candidates will be selected as a slate or as individual nominees. A slate is a list of candidates for public office, while an individual is defined as a single person as distinguished from a group or class. (Black's Law Dictionary 1245, 696 (5th ed. 1979).) Given the common meaning of these words, and the statutory distinction afforded in section 6A — 1.1 to the selection of candidates as a slate or as individuals, it is clear that Tom Berns’ nomination of Mark Craig was as an individual and not as a slate.

Petitioner next argues that the electoral board erred in conducting a hearing on his objections to caucus procedure, where the petition did not contain the statutory prerequisites of section 10 — 8 of the Election Code:

“The objector’s petition shall give the objector’s name and residence address, and shall state fully the nature of the objections to the certificate of nomination or nomination papers or petitions in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board.” (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 8.)

Petitioner argues that his objections to caucus procedure did not contain a statement of his residence, a full statement of the objections, a statement of his interest, and a statement of the relief requested. We have examined the two petitions filed by Craig and find the differences between the documents to be minimal. The objections to caucus procedure, while stating that Craig is a resident of Oconee Township, do not provide his residence address. The objection to nomination papers does include Craig’s residence address. While Craig argues that his first petition does not contain a full statement of his objections, we find the objections in each petition to be substantially similar. In fact, the objections in the initial petition, which Craig attempted to withdraw, are more detailed than those in the second petition. Finally, we note that the objection to nomination papers includes the following, which is not included in the objections to caucus procedure:

“The interest of Mark Craig is that of a resident of Oconee Township and also that of an individual who sought nomination as the Democrat candidate for Highway Commissioner.
The relief requested is a new caucus.”

With regard to the board’s authority to conduct its hearing on both petitions, Craig contends that the board erred in not allowing him to withdraw his objections to caucus procedure and reschedule the hearing for proceedings on his objection to nomination papers. Clarence Schmitz, chairman of the electoral board, testified before the trial court that at the hearing called on petitioner’s objections to caucus procedure:

“We ruled that we would not let him withdraw his former nomination papers on the objection to the caucus procedure and we did allow him to file the new one because we didn’t think that we could object to that but we also informed him that we would hear both the same day since they were primarily the same and there weren’t any differences in them. We assumed that he wanted a new caucus.”

The trial court found that the content of the objections to caucus procedure and the objection to nomination papers were essentially the same. The court noted that the objections to caucus procedure “did not contain the magic words such as objection to nomination papers, then set forth the relief that was being sought.” Nonetheless, the court ruled that the electoral board carried out the intent of the legislature in proceeding to a hearing on the merits of the objections filed. We agree with the trial court’s ruling.

It is vitally important that nomination objections be resolved at the earliest possible time. (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 389, 392 N.E.2d 1349, 1351.) Once the electoral board denied petitioner’s motion to withdraw his objections to caucus procedure, the board advised the petitioner that both petitions would be considered at the hearing. Petitioner did not then move for a continuance or otherwise inform the board of a reason why the hearing on his objection to nomination papers should not proceed. Rather, petitioner and his attorney voluntarily absented themselves from the hearing. Based on the facts aforesaid, we affirm the trial court’s ruling that the electoral board did not err in conducting a hearing on the objections on January 27,1989.

Petitioner also contends that the board did not schedule the hearing in accordance with the Election Code. Section 10 — 10 provides:

“The day of the meeting shall not be less than 3 nor more than 5 days after the receipt of the certificate of nomination or nomination papers and the objector’s petition by the chairman of the electoral board.” (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 10.)

The chairman of the electoral board received the objections to caucus procedure on January 20, 1989. The hearing was held on January 27, 1989. Although the hearing occurred two days beyond the statutory time limit, petitioner does not contest that he had notice of the hearing and does not deny that subpoenas were issued and witnesses were available at the hearing. Furthermore, the record reveals that petitioner did not raise this issue prior to or during proceedings in the trial court. It is axiomatic that questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.) Because petitioner has not shown how he was prejudiced by the delay in the hearing date, and because he failed to raise this issue below, we will not delve into the merits of this issue.

We are also asked to pass on the issue of whether the circuit court’s issuance of subpoenas for the January 27, 1989, hearing was error and not in accordance with statutory procedure. Petitioner argues that section 10 — 10 requires that the chairman issue subpoenas. Petitioner also contends that the circuit court is not empowered to issue subpoenas in matters not pending before the court. Petitioner has failed to cite any authority which precludes the circuit court from issuing subpoenas at the request of the electoral board chairman as was done here. No allegation has been made that witnesses served with said subpoenas were not present at the hearing. The plain language of section 10 — 10 gives the chairman the discretion to issue subpoenas. The statute does not state that the chairman shall issue the subpoenas without the assistance of the circuit clerk. We find that the issuance of the subpoenas here did comport with the legislature’s intent. See Robinson, 89 Ill. 2d at 475, 433 N.E.2d at 677.

Finally, petitioner argues that it was error for the trial court to award costs to the respondent. There is no dispute that the $350 taxed as costs represents the costs incurred by the electoral board for service of notice and subpoenas for the January 27, 1989, hearing. Section 5— 109 of the Code of Civil Procedure allows a defendant to recover costs:

“[i]f any person sues in any court of this state, in any action, wherein *** judgment is entered against the plaintiff, then judgment shall be entered in favor of defendant to recover defendant’s costs against the plaintiff.” (Ill. Rev. Stat. 1989, ch. 110, par. 5 — 109.)

Based on this statute, the trial judge was empowered to award costs herein. In light of the facts of this case, we do not find that the trial court abused its discretion in awarding costs to the respondent. We affirm the judgment of the Shelby County circuit court.

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    STEVEN BENESH, Plaintiff-Appellee, v. NEW ERA, INC., Defendant-Appellant.
    Fifth District
    No. 5—89—0821
    Opinion filed January 10, 1991.
    Roger L. Vetter, of Vassen & Vetter, P.C., of Belleville, for appellant.
    Jeffrey S. Hammel, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, New Era, Inc., appeals from a judgment of the circuit court of St. Clair County, entered November 8, 1989, following a bench trial, finding defendant hable for certain damage done to the property of plaintiff, Steven Benesh, while defendant’s premises were being painted by an independent painting company, Bess Painting Company, hired by defendant. We will set forth the facts only as they are pertinent to this appeal.

The parties agree that Bess Painting Company (hereinafter Bess) was an independent contractor hired by defendant to paint the exterior of defendant’s building, and that defendant retained no control over the manner in which Bess performed its job. Plaintiffs property, specifically a wooden fence and a garage, abutted that of defendant. Plaintiff’s fence and garage were separated from defendant’s building by an alley approximately 10 feet wide.

On or about April 26, 1988, while Bess was spray painting the exterior of defendant’s building, white paint was sprayed or splattered onto plaintiff’s brown wooden fence and cedar-sided garage. Upon discovering the damage, plaintiff confronted agents of Bess, who acknowledged the damage and assured plaintiff that they would remove the paint flecks from his property. They never did so. Plaintiff presented testimony of a building contractor that the cost to repair the damage would be $1,043.03. The trial court entered judgment for plaintiff in that amount.

At trial, plaintiff argued that, while the general rule is that an employer is not liable for damages caused by its independent contractor in the performance of its job, the facts of the instant case place it within an exception to this general rule. That exception is set forth in section 427 of the Restatement (Second) of Torts, which provides,

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” Restatement (Second) of Torts §427 (1977).

Defendant argued at trial that this exception applies only to “inherently dangerous” activities and that such activities had been restricted to those involving explosives, poisons and wild animals. Defendant argued that spray painting with a water-based paint is not inherently dangerous and, when carried on carefully and competently, presents no risk of harm to others.

The trial court entered an order citing two cases, City of Joliet v. Harwood (1877), 86 Ill. 110, and Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 400 N.E.2d 934. The court’s order recites that in Harwood, the supreme court held that where work is intrinsically dangerous, the party who authorizes the work is liable for any damages resulting from the work by an independent contractor. The order further finds that the exposure of plaintiff’s garage to paint over-spray was a danger clearly recognizable in advance by virtue of the very nature of the work. The court distinguished Woodward, where the damages were found to be due to the collateral negligence of the independent contractor, rather than to danger inherent in the activity. The court found defendant liable under a theory of respondeat superior.

On appeal, defendant renews its argument that painting is not an inherently dangerous activity and that this exception has been limited to cases involving explosives, poisons, toxic chemicals and wild animals.

We think defendant misapprehends the exception upon which the plaintiff and the trial court rely. While defendant contends that this exception is limited to what have traditionally been classified as “ultrahazardous activities,” neither the Restatement nor the case law indicates that this is so. Comments b and c to section 427 of the Restatement explain:

“b. The rule stated in this Section is commonly expressed by the courts in terms of liability of the employer for negligence of the contractor in doing work which is ‘inherently’ or ‘intrinsically’ dangerous. It is not, however, necessary to the employer’s liability that the work be of a kind which cannot be done without a risk of harm to others, or that it be of a kind which involves a high degree of risk of such harm, or that the risk be one of very serious harm, such as death or serious bodily injury. It is not necessary that the work calls for any special skill or care in doing it. It is sufficient that work of any kind involves a risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the employer has special reason to contemplate such a risk under the particular circumstances under which the work is to be done.
c. The rule stated applies where the work involves the use of instrumentalities, such as fire or high explosives, which require constant attention and skillful management in order that they may not be harmful to others. It applies also where such work as the demolition of a high chimney is incapable of being done safely unless those who do it are highly skilled and act with the utmost attention and care. It is not, however, limited to such highly dangerous activities. The rule applies equally to work which, although not highly dangerous, involves a risk recognizable in advance that danger inherent in the work itself, or in the ordinary or prescribed way of doing it, may cause harm to others.” (Emphasis added.) Restatement (Second) of Torts §427, Explanatory Notes, comments b, c, at 416 (1977).

The exception provided in section 427 of the Restatement was recognized in American Telephone & Telegraph Co. v. Leveque (1961), 30 Ill. App. 2d 120, 173 N.E.2d 737, which held that an employer is liable if the injury is such that it might have been anticipated by him. as a probable consequence of the work let to the independent contractor and where the employer took no precaution to prevent it. 30 Ill. App. 2d at 130,173 N.E.2d at 742.

The exception was also recognized in Johnson v. Central Tile & Terrazzo Co. (1965), 59 Ill. App. 2d 262, 207 N.E.2d 160, which held that if one employs another to do work which he should recognize as involving some peculiar risk to others unless special precautions are taken, the one doing the employing will remain liable if harm results because these precautions are not taken. 59 Ill. App. 2d at 276-77, 207 N.E.2d at. 167.

In Donovan v. Raschke (1969), 106 Ill. App. 2d 366, 371, 246 N.E.2d 110, 113, it was held that an employer might be held liable where plaintiff was injured when she tripped over a roll of wire mesh which had been left lying on the sidewalk by an independent contractor who was doing brickwork on the exterior of defendant/employer’s building. The court held that the proper test to be applied in determining whether an employer is liable for the act of negligence of an independent contractor is whether there was sufficient evidence presented so that the trier of fact could determine that the work to be done was a probable and foreseeable source of injury to a party such as plaintiff unless proper precautions were taken. Quoting from Donohue v. George W. Stiles Construction Co. (1919), 214 Ill. App. 82, 91, the court stated:

“An employer will be liable where work is being done by an independent contractor if the injury ‘be such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it.’ ” (Donovan, 106 Ill. App. 2d at 371, 246 N.E.2d at 113.)

The court held that the evidence was sufficient to allow the question of the employer’s liability to go to the jury for a determination whether the injury to plaintiff might reasonably have been anticipated as a probable consequence of the work contracted to be done.

We think in the instant case the evidence was sufficient to show that the damage to plaintiff’s property is such that it might have been anticipated by defendant as a probable consequence of the independent contractor’s work and that defendant took no precaution to prevent it. As defendant states in its brief, paint overspray is a relatively common occurrence. Defendant should have anticipated that paint might accidentally be sprayed or splattered onto plaintiff’s fence and garage, which were only 10 feet from the portion of defendant’s building which was being painted. It is common knowledge that sprayed paint is often carried by the wind and often splatters on surfaces where it is not wanted. Such an occurrence is unavoidable regardless of how carefully one uses the paint sprayer. Splattering or overspraying of paint is normally to be expected in the ordinary course of the usual way of spray painting a building. This danger is recognizable in advance, and defendant should have anticipated it and taken precautions against it.

The judgment of the trial court is neither incorrect as a matter of law nor against the manifest weight of the evidence. We therefore affirm it.

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

Affirmed.

RARICK, P.J., and HARRISON, J., concur.


author: JUSTICE LEWIS

text:
    MICHAEL FISCHER et al., Plaintiffs-Appellees, v. GENE J. BROMBOLICH et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0430
    Opinion filed January 11, 1991.

      Dwight Taylor, of Collinsville, for appellants.
    William C. Evers III, of Collinsville, for appellees.

      W. Michael Gnavi, of Collinsville, for amicus curiae.

   JUSTICE LEWIS

delivered the opinion of the court:

On June 7, 1990, the plaintiffs, Michael Fischer, Mel Jones, and Alverna Wrigley, filed a complaint against the defendants, Gene J. Brombolich, Virginia M. Trucano, Melvin P. Pamatot, and the City of Collinsville. In the complaint, the plaintiffs sought a preliminary and permanent injunction, a declaratory judgment, a writ of certiorari, an order of prohibition, and a writ of quo warranto against the defendants, the purpose of all these causes of action being to prevent the city council of the City of Collinsville from enforcing ordinance 2361, which was passed by the council on April 30, 1990. On June 27, 1990, the circuit court of Madison County held a hearing on the plaintiffs’ complaint, and on July 5, 1990, the court entered an order finding ordinance 2361 invalid and enjoining the defendants from enforcing the ordinance. The defendants appeal this order.

Before considering the facts of this case, we note that a petition to intervene was filed by some residents and taxpayers of the City of Collinsville. The intervenors’ petition was denied by the court at the hearing on the preliminary injunction; however, the court granted the intervenors the status of amicus curiae and permitted the intervenors’ representative to argue and to file a brief. The intervenors have also filed an amicus curiae brief on appeal, but because the brief raises no other issues than those raised by the defendants, we need not consider the arguments raised therein separately.

The essential facts of the case sub judice are as follows. Prior to 1983, the City of Collinsville, a non-home-rule municipality, operated under the regular commission form of government pursuant to the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 1—1 et seq.) In 1979, a referendum was presented to the electorate in which the City of Collinsville adopted the modified commission form of government pursuant to section 4 — 3—19 of “The Commission Form of Municipal Government” article of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 1—1 et seq.), which form of government was to become effective at the time of the election of the commissioners in 1983. (Ill. Rev. Stat. 1979, ch. 24, par. 4-3-19.) Under the modified commission form of government, the commissioners were to run for a specific office instead of running as a commissioner at large; however, under both the regular commission form of government and the modified form of government, the mayor was to be the commissioner of public affairs. Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—3.

In 1983, Michael Fischer, one of the plaintiffs, was elected commissioner of public health and safety, and Gene Brombolich, one of the defendants, was elected as commissioner of public affairs, i.e., the mayor of Collinsville. Both Fischer and Brombolich were reelected to these offices in the 1987 election, and their current terms of office do not expire until 1991. The two remaining plaintiffs, Mel Jones and Alverna Wrigley, were registered voters and taxpayers of the City of Collinsville and had voted for Michael Fischer as commissioner of public health and safety in the 1987 election. The other defendants, Virginia M. Trucano and Melvin P. Pamatot, were two of the five commissioners who had voted with Brombolich to pass ordinance 2361. The fifth commissioner of the city council had voted against the ordinance in question and was not a party to this litigation.

On April 30, 1990, the city council of the City of Collinsville voted 3 to 2 to pass ordinance 2361. Ordinance 2361 amended ordinance 2042, which had been passed in November 1982 and had become effective on April 25, 1983, when the new council had taken office. In ordinance 2042, the various subdepartments of the City were distributed among the five major departments pursuant to the statute (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—2), i.e., the department of public affairs, the department of accounts and finances, the department of public health and safety, the department of streets and public improvements, and the department of public property. Under ordinance 2042, the police department and the department of canine control were two of the subdepartments under the supervision of the commissioner of public health and safety (Fischer). Ordinance 2361, the subject of this litigation, amended ordinance 2042 by transferring the police department and the canine control department to the department of public affairs (Brombolich). Ordinance 2361 was to become effective on May 1,1990, during plaintiff Fischer’s term of office.

Subsequently, plaintiffs filed their complaint. The defendants filed a motion to dismiss the count seeking injunctive relief and an answer to the plaintiffs’ complaint. On June 27, 1990, a hearing was held on the plaintiffs’ complaint; however, only the count seeking the preliminary injunction was considered. At the hearing, the court heard the arguments of counsel and issued its oral pronouncement, but subsequently, on July 5, 1990, the court entered a written order in which the court denied the defendants’ motion to dismiss count I of the complaint, found that the enactment of ordinance 2361 was not valid and • granted the plaintiffs’ petition for preliminary injunction. The court stayed the enforcement of the preliminary injunction for 30 days, but no further stays were granted and the preliminary injunction prohibiting the enforcement of ordinance 2361 went into effect.

On appeal, the defendants contend that the city council had the statutory power to enact ordinance 2361, that the plaintiffs’ complaint did not state sufficient information for a preliminary injunction, and that the law and the facts did not support the issuance of the preliminary injunction. We first consider whether the city council of the City of Collinsville had the statutory power to enact ordinance 2361.

Under the Illinois Constitution, a non-home-rule municipality only has the authority that is expressly provided under the statute or which is necessarily implicit from the express authority. (Ill. Const. 1970, art. VII, §7; Baltis v. Village of Westchester (1954), 3 Ill. 2d 388, 121 N.E.2d 495.) An implied power asserted by a municipality may be gathered from a single express grant of authority or from several. (Chicago School Transit, Inc. v. City of Chicago (1966), 35 Ill. 2d 82, 219 N.E.2d 522.) If a municipality’s actions are in conformity with the express and the implied powers granted, then its actions are valid, otherwise they are not. (Baltis, 3 Ill. 2d 388, 121 N.E.2d 495.) Because a municipality only derives its powers by an express grant from the legislature, the statutes granting this power are strictly construed, and any doubt concerning an asserted power is resolved against the municipality. (Village of River Forest v. Midwest Bank & Trust Co. (1973), 12 Ill. App. 3d 136, 297 N.E.2d 775.) Therefore, our first consideration must be to determine if the city council had the express or implied authority to pass ordinance 2361.

The plaintiffs contend that sections 4 — 5—2 and 4 — 5—3 do not authorize the city council’s transfer of the subdepartments under the main departments during a commissioner’s term of office, where, as here, the municipality has a modified commission form of government, because such a construction of these sections would disenfranchise the voters. The plaintiffs do not contend that the council can never realign the subdepartments, but they contend that the realignment can only be done prior to an election and can be done only in such a manner as to allow the voters to know what departments a commissioner will be in charge of when elected. The defendants argue that these sections permit the realignment of the administrative duties of the commissioners at any time. According to the defendants, the voters were not disenfranchised since commissioner Fischer retained his legislative powers under the ordinance. The defendants contend that for the court to determine that the realignment of the subdepartments can occur only prior to an election of the commissioners in such a manner as to be effective upon the new commissioners taking office required the court to read into the statute language that was not present, i.e., a time limitation for the realignment, which is in contravention of the rules of statutory construction.

The defendants support their argument by asserting that in 1965 the legislature added section 4 — 3—19 to “The Commission Form of Municipal Government” article of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 3—19), which section provided for the modified commission form of government. In conjunction with the addition of section 4 — 3—19, the legislature also amended section 4 — 5—3; however, the legislature did not alter section 4 — 5—2. The defendants contend that its authority to transfer subdepartments rests in section 4— 5 — 2, and, prior to 1965, the subdepartments could be realigned at any time the council felt it was in the best interest of the public to do so. Because section 4 — 5—2 remained unchanged after 1965, the defendants claim this authority remained intact. The defendants argue that section 4 — 5—2 places no limitation on its authority to transfer subdepartments from one department to another, and that the circuit court erroneously interpreted section 4 — 5—2 when it determined that it did not have this authority.

In construing a statute, it is fundamental that a court must ascertain the intent of legislature and give it effect. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) To determine the legislature’s intent, the court will examine the entire statute and will seek to determine the objective the statute sought to accomplish and the evils it desired, to remedy. (City of Springfield, 105 Ill. 2d 336, 473 N.E.2d 1313.) Additionally, to ascertain the legislature’s intent, subsequent amendments to the statute will be considered. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492.) “Where the language of a statute admits of two constructions, one of which would make the enactment absurd and illogical, while the other renders it reasonable and sensible, the construction which leads to an absurd result must be avoided.” (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312-13, 527 N.E.2d 1264, 1269.) Thus, a proper interpretation of a statute will not rest solely on its language, but it will also be grounded on the nature, objects and the consequences which would result from construing the statute one way or another. Mulligan, 123 Ill. 2d 303, 527 N.E.2d 1264.

Oftentimes, when construing a statute, legislative debate at the time of the passage of the provision provides insight into the legislative intent. In this case, there is no legislative history to guide our interpretation, and, thus, our construction is based upon the language of the statutory provisions involved and the apparent objective of the legislation. Section 4 — 5—3 provides as follows:

“Except where candidates for commissioner are required to run for a specific office, the council, at the first regular meeting after an election of a member or members, shall designate by a majority vote one commissioner to be commissioner of accounts and finances, one to be commissioner of public health and safety, one to be commissioner of streets and public improvements, who ex-officio shall be commissioner of public works, and one to be commissioner of public property. This designation may be changed by the council whenever it appears that the public service would be benefited thereby. The mayor shall be commissioner of public affairs. The commissioner of each department shall be superintendent of that department.
If the municipality has voted, as provided in Section 4 — 3— 19, to require candidates for commissioner to run for a specific office, each commissioner shall be superintendent of the department bearing the same designation as the office to which he was elected. The mayor shall be commissioner of public affairs. The Commissioner [sic\ of streets and public improvements shall be, ex-officio, commissioner of public works.” (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—3.)

The language of the foregoing section, when considered with section 4— 3 — 19, is unambiguous, and, from these two sections (sections 4— 5— 3 and 4 — 3—19), it is clear that the intent of the legislature, in making provision for a modified commission form of government, was to give the voters the authority to designate which commissioner was to supervise a specific department rather than giving this authority to the commissioners themselves.

Section 4 — 5—2 states as follows:

“The council and its members shall possess and exercise all executive, administrative, and legislative powers and duties now possessed and exercised by the executive, legislative, and administrative officers in municipalities which are treated as properly incorporated under this Code or which hereafter incorporate under this Code, except that in municipalities under the commission form of municipal government, the board of local improvements provided for by Article 9 shall remain a separate and distinct body, with all the rights, powers, and duties contained in Article 9.
The executive and administrative powers and duties in municipalities under the commission form of municipal government shall be distributed among 5 departments, as follows:
1. Department of public affairs.
2. Department of accounts and finances.
3. Department of public health and safety.
4. Department of streets and public improvements.
5. Department of public property.
The council, by ordinance, (1) shall determine the powers of and duties to be performed by each department and shall assign them to the appropriate departments; (2) shall prescribe the powers and duties of officers and employees, and may assign officers and employees to one or more of the departments; (3) may require an officer or employee to perform duties in 2 or more departments; and (4) may make such rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the municipality.” (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—2.)

The defendants claim that section 4 — 5—2 allows the realignment of the subdepartments, while it is section 4 — 5—3 which allows the realignment of the commissioners under the regular commission form of government. The defendants contend that it is the language “shall determine the powers of and duties to be performed by each department and shall assign them to the appropriate departments” which enables them to transfer plaintiff Fischer’s administrative duties regarding the police department and the department of canine control, especially where their actions are “necessary or proper for the efficient and economical conduct of the business of the municipality.” The defendants assert that ordinance 2361 does not realign the commissioners, but that the ordinance simply realigns the subdepartments under the department of which the commissioner is superintendent. Because the legislature did not amend section 4 — 5—2 when it added sections 4 — 3—19 and amended 4 — 5—3, the defendants contend that the legislature intended to allow the municipalities the same authority to realign the subdepartments at will under the modified commission form of government as it had under the regular commission form of government.

Clearly, section 4 — 5—2 presents an ambiguity; however, to accept the defendants’ interpretation would render the legislature’s amendment to allow a modified commission form of government useless. If the defendants’ reasoning is taken to its fullest scope, after an election, the council could realign all of the subdepartments of the department of public affairs and transfer them to another department, and, at the same time, transfer all of the subdepartments of the department of public health and safety to the department of public affairs, i.e., in essence, leaving the commissioners with the titles to which they had been elected but none of the functions for which the voters had presumptively chosen them. By doing this, the modified commission form of government is defeated, and the municipality’s modified commission form of government is essentially the same as if the government were still the regular commission form. As was previously stated, under the rules of statutory construction, a statutory provision should not be interpreted in such a manner as to render the statutory language useless or illogical. (Mulligan, 123 Ill. 2d 303, 527 N.E.2d 1264.) Because the defendants’ interpretation renders the language providing for a modified commission form of government illogical, that interpretation must be rejected. Further, there is considerable doubt that the defendants had the express authority for their actions, and, therefore, that doubt must be resolved against them. Village of River Forest, 12 Ill. App. 3d 136, 297 N.E.2d 775.

Additionally, ordinance 2361 effectively converts the municipality’s modified form of government back to a regular commission form of government. The ordinance, thus, in effect, circumvented the constitutional and statutory requirement which mandated that a municipality’s form of government can only be changed by referendum. (Ill. Const. 1970, art. VII, §7; Ill. Rev. Stat. 1989, ch. 24, par. 4 — 3— 20.) The ordinance appears to have been enacted outside of the express or implied authority granted by the constitution and the statute, and where an ordinance is enacted without express or implied authority, the ordinance is invalid. (Ross v. City of Geneva (1978), 71 Ill. 2d 27, 373 N.E.2d 1342.) Therefore, the circuit court correctly held that ordinance 2361 was invalid.

We next consider the remaining issues raised by the defendants. Because of the nature of the defendants’ second and third issues and their interrelationship, we will consider them together. The defendants assert that the plaintiffs failed to allege sufficient facts to warrant the granting of the injunctive relief and that the circuit court abused its discretion in granting the injunction. For a preliminary injunction to issue, it is well established that a plaintiff has the burden of establishing that (1) he has a clearly ascertainable right for which he seeks protection, (2) he will suffer irreparable harm, (3) there is an inadequate remedy at law, and (4) he is likely to be successful on the merits. (Opportunity Center of Southeastern Illinois, Inc. v. Bernardi (1986), 145 Ill. App. 3d 899, 496 N.E.2d 340; S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) A preliminary injunction is an extraordinary remedy and must be granted with the utmost care, and a court should not issue it unless the need is clear. (Opportunity Center of Southeastern Illinois, Inc., 145 Ill. App. 3d 899, 496 N.E.2d 340.) The purpose of the preliminary injunction is to preserve the status quo, i.e., the last peaceable and uncontested status preceding the pending controversy. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097.) The granting of a preliminary injunction is within the discretion of the court, and, since a preliminary injunction is granted before a hearing is conducted on the merits of a case, the justification for the issuance of the injunction can be found principally in the sufficiency of the complaint. Opportunity Center of Southeastern Illinois, Inc., 145 Ill. App. 3d 899, 496 N.E.2d 340; S & F Corp., 60 Ill. App. 3d 824, 377 N.E.2d 73.

The defendants in the case sub judice argue that the plaintiffs failed to allege a clearly ascertainable right in their count for injunctive relief; that the plaintiffs’ claim that they suffered irreparable harm is a bare conclusion; and that the plaintiffs did have an adequate remedy at law as the other counts in the plaintiffs’ complaint attest. Our review of the plaintiffs’ complaint reveals that the plaintiffs alleged sufficient facts to justify the issuance of the preliminary injunction.

In count I of the plaintiffs’ complaint, the following uncontroverted facts were alleged: At all pertinent times, plaintiff Fischer was the duly elected commissioner of public health and safety for the City of Collinsville, and that he was initially elected to this office in April 1983 and was subsequently reelected in April 1987. Fischer’s current term of office will not expire until April 1991. The other plaintiffs in this cause of action were residents who voted for Fischer in the April 1987 election. At the time of the passage of ordinance 2361, the City of Collinsville was a municipal corporation which operated under the modified commission form of government, i.e., that the voters elected the commissioners to a specific office, and that this form of government had been in effect at both the 1983 election and the 1987 election. Prior to the 1983 election, ordinance 2042 had been passed by the city council. This ordinance listed the subdepartments assigned to each of the commissioners, e.g., the following subdepartments were listed as being under the office of the department of public health and safety: fire department, emergency ambulance service, police department, and canine control. On April 30, 1990, the three defendant commissioners passed ordinance 2361 by a vote of 3 to 2. In this ordinance, two of the subdepartments listed under the department of public, health and safety, the police department and the canine control department, were removed from under the department of public health and were placed under the department of public affairs. The plaintiffs also alleged in their complaint that the passage of ordinance 2361 denied plaintiff Fischer his right to the office to which he was elected; that his injury could not be adequately redressed by an adequate remedy at law as each day deprived him of his right to his elected office; and that plaintiff Fischer has suffered irreparable injury and will continue to suffer irreparable injury if an injunction is not issued. We find these allegations were sufficient to place the injunction issue before the court.

The first consideration raised by the defendants is that the plaintiffs had not a clearly ascertainable right which warranted protection, and that the allegation that plaintiff Fischer had a right to office was simply a conclusion. In addition, the defendants contend that, if anything, plaintiff Fischer was only deprived of a portion of his office. It is clear from the plaintiffs’ complaint that plaintiff Fischer was given the right to the office of the department of public health and safety by the voters of the City of Collinsville, and, since the department of public health and safety included the police department and the department of canine control at the time of plaintiff Fischer’s election, the voters determined by their votes for plaintiff Fischer that they intended him to be the head of the police department and the department of canine control. In addition, the statute gave plaintiff Fischer the right of supervision of the subdepartments which were under his department at the time of his election. (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—3; see Beard v. Board of Fire & Police Commissioners (1974), 21 Ill. App. 3d 404, 315 N.E.2d 319.) Thus, the plaintiff had asserted a clearly ascertainable right.

Second, we find that plaintiff Fischer suffered irreparable injury as a result of the passage of ordinance 2361 and that he had no adequate remedy at law. For there to be an adequate remedy at law, the remedy must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as an equitable remedy. (La Salle National Bank v. Refrigerated Transport Co. (1987), 165 Ill. App. 3d 899, 520 N.E.2d 768.) Additionally, irreparable harm occurs only where monetary damages cannot adequately compensate the injury or where the injury cannot be measured by pecuniary standards. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339.) The defendants have argued that the plaintiffs have not alleged that a mandamus action is not an adequate remedy at law. A mandamus is an extraordinary remedy that is not issued as a matter of right, but is issued only where a plaintiff can demonstrate a clear right to the relief requested. (Etten v. Lane (1985), 138 Ill. App. 3d 439, 485 N.E.2d 1177.) If an administrative board or official has arbitrarily failed to act, mandamus will lie to compel performance of a duty which a plaintiff is entitled to have performed. (Etten, 138 Ill. App. 3d 439, 485 N.E.2d 1177.) In the instant case, there was no demonstration that the plaintiffs had a clear right to the relief requested, as the right asserted by the plaintiffs rested on the statutory interpretation of the Illinois Municipal Code. It is evident that an action for mandamus would not lie in the instant case.

With regard to the issue of irreparable harm, the defendants assert that the plaintiffs have not alleged that their “other rights” could not be measured in monetary terms; therefore, the plaintiffs have not alleged sufficient facts to show irreparable harm justifying the issuance of the injunction. The defendants’ assertion is purely speculative. The defendants fail to explain what the “other rights” of the plaintiffs are which are measurable by monetary terms, and unfortunately, we are unable to determine what those “other rights” may be. It is clear from the plaintiffs’ complaint that plaintiff Fischer’s right to hold office is not quantifiable in monetary terms and that his complaint adequately avers that he will suffer irreparable harm from the defendants’ actions.

The defendants contend that the plaintiffs failed to allege that they were likely to succeed on the merits of their complaint. It is well established that a party is not required to make out a case that will in all events warrant relief on the merits; it is only necessary that the moving party raise a fair question as to the existence of the right claimed and that he will be entitled to the relief prayed for if the proof should sustain his allegations. (Tierney v. Village of Schaumburg (1989), 182 Ill. App. 3d 1055, 538 N.E.2d 904.) Here, the plaintiffs’ complaint raised a fair question regarding whether the defendants’ actions were authorized under the statute. The circuit court, in its oral pronouncement, found that the plaintiffs would have a great probability of success on the statutory construction issue, and, thus, the court determined that the plaintiffs were likely to succeed on the merits of this case. Because of our statutory construction of the foregoing sections of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, pars. 4 — 5—2, 4 — 5—3), the court’s determination was not unfounded, and the plaintiffs did show that they were likely to succeed on the merits.

Lastly, we consider whether the circuit court erred in granting the preliminary injunction. Because the granting or denial of a preliminary injunction is a matter of discretion with the court, on appeal, a reviewing court will overturn the circuit court’s decision only if that decision is against the manifest weight of the evidence and is an abuse of the court’s discretion. (Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 524 N.E.2d 947; Shodeen, 162 Ill. App. 3d 667, 515 N.E.2d 1339.) From our previous analysis of the sufficiency of the plaintiffs’ complaint, we find that the circuit court did not abuse its discretion and that its decision was not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Madison County granting the preliminary injunction is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    ANN SHEARY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—89—0321
    Opinion filed January 16, 1991.

      Stephen C. Mudge, of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for appellant.
    Roy C. Dripps, of Talbert & Mallon, P.C., of Alton, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On October 2, 1986, plaintiff,- Ann Sheary, was involved in an automobile accident. The vehicle she was driving had been purchased earlier that same day. Plaintiff contacted her parents’ insurance agent to determine whether the vehicle was covered under her parents’ automobile insurance policy with defendant, State Farm Mutual Automobile Insurance Company. Defendant denied coverage. The circuit court of Madison County issued a declaratory judgment in favor of plaintiff, holding that defendant’s insurance policy provides coverage for the accident. We affirm.

Plaintiff’s future husband, Jeff Main, purchased the vehicle in question and took out a loan to pay for it. Plaintiff had no role in the negotiations on the price of the car, did not cosign the loan or contribute financially toward the purchase. At the time of the accident, plaintiff lived at home with her parents. Main was to have garaged the vehicle at his home and testified that he intended to make plaintiff a part owner upon their engagement or marriage.

It is undisputed that the sole intended purpose of the vehicle was for plaintiff to drive to and from work. Furthermore, both Main and plaintiff admitted that plaintiff was to make all loan payments. On the day of the accident, Main and plaintiff were supposed to go back to the dealer to “sign some papers,” but the accident occurred on the way. Plaintiffs name was on the title when it was issued.

The insurance policy in question indicated the named insureds were Steven and Mary Sheary, plaintiff’s parents. Coverage extends to the use, “by an insured, of a newly-acquired car, a temporary substitute, or a non-owned car.” A non-owned car is defined as a car not “(1) owned by, (2) registered in the name of, or (3) furnished or available for the regular or frequent use of you, your spouse, or any relatives.” Both sides agree that plaintiff is a relative under the policy. Plaintiff, as a relative, is an insured under the policy in question.

Defendant’s first issue on appeal is whether plaintiff owned the vehicle within the meaning of the policy. Defendant specifically argues that ownership for insurance purposes is not governed by the actual transfer of title, but is governed by the intent of the parties. Plaintiff responds that in the context' of insurance, ownership is determined at the time of the collision. Plaintiff further argues that as ownership is not defined in the policy, it is ambiguous and therefore should be construed against the insurer and in favor of coverage.

Defendant is correct that under Illinois law, ownership for insurance purposes is governed by the intent of the parties. (Jadczak v. Modern Service Insurance Co. (1987), 151 Ill. App. 3d 589, 595, 503 N.E.2d 794, 798; Country Mutual Insurance Co. v. Aetna Life & Casualty Insurance Co. (1979), 69 Ill. App. 3d 764, 767-68, 387 N.E.2d 1037, 1039-40.) Since ownership is determined as of the time of the collision (Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 368 N.E.2d 702), the intent of the parties must be judged at the time of the collision. In the instant case, there is uncontradicted testimony that plaintiff intended Jeff Main to be the owner of the vehicle. Plaintiff had no role in the negotiation over purchase price, did not cosign the loan, had not contributed financially to the purchase price, and Main testified that he intended to add plaintiff’s name to the title only upon their engagement or marriage. Considering the plain meaning of the word “owned,” the circuit court did not err in holding that plaintiff did not own the car under the insurance policy.

Defendant’s second issue is whether the vehicle was “furnished or available for the regular or frequent use” of plaintiff. Defendant argues that the circuit court erred in not looking past the date of the accident at plaintiff’s anticipated use. Plaintiff asserts that even if the court considered her future intentions for the car, it was not furnished or available for her regular and frequent use at the time of the accident.

As our supreme court noted, the term “regular and frequent use” is not subject to absolute definition; each case is dependent on its own facts. (State Farm Mutual Automobile Insurance Co. v. Differing (1977), 69 Ill. 2d 103, 107, 370 N.E.2d 543, 545.) This question of fact, however, does not create an ambiguity which must be construed in favor of the insured. (69 Ill. 2d at 107-08, 370 N.E.2d at 545.) In the case at bar, as in Differing, there is sufficient evidence in the record to support the findings made by the circuit court.

A recent pronouncement on this question is found in Auto Owners Insurance Co. v. Miller (1990), 138 Ill. 2d 124,. 561 N.E.2d 630. Miller’s employer gave him the use of a pickup truck to drive daily for business purposes only, a restriction on use which he acknowledged; however, when the collision occurred, Miller was driving the truck for personal use, returning from a non-business-related golf outing. He was insured under an individual automobile liability policy covering usage of certain named vehicles and “the use of non-owned vehicles that were not furnished for his regular use.” (138 Ill. 2d at 127, 561 N.E.2d at 631.) The trial court held that, as the vehicle was not provided for Miller’s regular use, Miller, was covered by this policy, citing Differing. The appellate court held to the contrary, finding regular use, but our supreme court reversed the appellate court: Noting that the question of the truck being provided for Miller’s regular use was factual, the supreme court determined that the trial court’s, finding was not against the manifest weight of the evidence, stating it was “clear that the truck was not furnished to Miller for his regular [and frequent] use.” 138 Ill. 2d at 129, 561 N.E.2d at 632.

In making its finding in the instant case, the circuit court did not err in not considering the intended future use of the vehicle. In fact, the court considered all of the facts argued by defendant concerning intended future use. The court felt, however, that the greater weight of the evidence indicated that the car was not available for the regular and frequent use of plaintiff. The circuit court is in a much better position to weigh evidence and determine the credibility of witnesses. An appellate, court will not reverse such a decision unless it is against-the manifest weight of the evidence. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.

The circuit court’s ruling is not against the manifest weight of the evidence. While the court may consider future intent (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 394, 349 N.E;2d 1, 3), in this case, that intent had not manifested itself at the time of the accident. In Econo Lease, the insured leased a car and was driving it, as he intended to do in the future, at the time of the accident. (63 Ill. 2d at 392, 349 N.E.2d at 2.) Here, it is undisputed that plaintiff had intended to drive the car to and from work by herself. At the time of the accident, however, plaintiff was not driving to or from work, and was driving with the owner.

In addition, plaintiff’s intended use was to be limited. Jeff Main controlled the use of the car. It was to be garaged at Main’s house. Main kept the only set of keys. Plaintiff was to ask Main for the keys, and his implied permission to use the car, each time she wished to drive. On the day of the accident, plaintiff had been allowed to use the car for only 15 minutes prior to the accident. Under the reasoning of Knack v. Phillips (1985), 134 Ill. App. 3d 117, 479 N.E.2d 1191, the circuit court did not err.

The cases cited by defendant can be factually distinguished from the case at bar. In State Farm Mutual Automobile Insurance Co. v. Dreher (1989), 190 Ill. App. 3d 182, 547 N.E.2d 1, the insured used the car without seeking express permission two to three times per week for four to five months before the accident. (190 Ill. App. 3d at 184, 547 N.E.2d at 3.) Here, plaintiff would have had to seek permission each time she used the ear and had only been driving for 15 minutes prior to the accident. In Differding, the car was available to the insured, the only driver of the car, from June through August, a period substantially longer than that involved here. In fact, she held the only set of keys during that time. (Differding, 69 Ill. 2d at 105, 370 N.E.2d at 544.) In Econo Lease, the insured leased the car for his personal use. He had driven the car for two days prior to the accident, and he was driving at the time of the accident. (Econo Lease, 63 Ill. 2d at 392, 349 N.E.2d at 2.) He was acting on what can be described as his “future intent” when he was involved in the accident. Here, plaintiff was not.

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

Affirmed.

RARICK, P.J., and CHAPMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ELISA SMITH, Defendant-Appellee.
    Fifth District
    No. 5-89-0723
    Opinion filed January 17, 1991.

      William R. Haine, State’s Attorney, of Edwardsville' (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The State had charged the defendant, Elisa Smith, with reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)). The circuit court subsequently granted the defendant’s petition for discharge for violating her right to a speedy trial. The State filed a motion for rehearing, and following a hearing, the circuit court upheld its original ruling dismissing the charges against the defendant. The State appeals, contending that the court’s ruling that the defendant was not brought to trial within 120 days was against the manifest weight of the evidence and was an abuse of the court’s discretion.

The defendant was arrested and taken into custody for the offense of reckless homicide on June 12, 1989. The defendant’s case was set for trial for October 23, 1989, and, on that date, the case was carried over until the following day. On October 24, 1989, the defendant filed a petition for discharge, alleging that the State had not brought her to trial within the 120 days mandated by the statute (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a)), thereby violating her statutory right to a speedy trial. The court determined that the defendant had not been brought to trial within 120 days and, therefore, that she was entitled to be discharged and the charges against her dismissed.

On appeal, the State contends that the court erred in attributing certain delays to the State instead of the defendant, and, if those days are attributed to the defendant, the State did bring the defendant to trial within 120 days. Specifically, the State alleges that four different time delays were attributable to the defendant, those time periods being as follows: (1) from August 9, 1989, to September 25, 1989; (2) from September 25, 1989, to October 6, 1989; (3) from October 4, 1989, to October 23, 1989; and (4) from October 23, 1989 to October 24,1989.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 requires that a defendant be tried within 120 days from the date he was taken into custody, “unless delay is occasioned” by the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Any delay caused by the defendant will temporarily suspend for the time of the delay the time period in which the defendant must be tried. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(f).) This statutory requirement is to be construed liberally so as to give effect to the constitutional right to a speedy trial, and each case is to be decided on its own facts. (People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196.) It is the State’s burden to bring a defendant to trial within the time provided by statute. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) However, as was previously noted, delay occasioned by the defendant will suspend temporarily the running of the time period, and, in determining whether delay is to be attributed to the defendant, the criterion is whether the defendant’s acts in fact caused or contributed to the delay. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) When a defendant files a motion for discharge, it is his burden to establish facts which show a violation of the statute. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) Considerable deference is given to a circuit court’s determination of whether a delay is attributable to a defendant, especially where it is difficult to discern from the record which party is primarily responsible for the delay, and, absent a clear abuse of discretion, the circuit court’s decision of accountability for the delay will be affirmed on review. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) With these principles in mind, we address the State’s appeal.

The record reflects the pertinent history of the proceedings was as follows: On June 12, 1989, the defendant was placed in custody for the reckless homicide charge, and, because she was unable to make bail, she remained in custody. On August 9, 1989, at the docket call, the court inquired if the defendant would be ready for trial on August 14, 1989. The defendant indicated that she would be ready to proceed on that date. On August 11, 1989, the defendant sent a letter to the judge, in which she asked that a different public defender be appointed to represent her. On September 6, 1989, the defendant’s case was again called at the docket call. At that time, the defendant’s case was set for trial on September 25, 1989. On September 25, 1989, the court entered an order in which the court granted the defendant’s motion for continuance and continued the case until October 6, 1989. At the docket call on October 4, 1989, the defendant’s case was set for trial on October 23, 1989. On October 23, 1989, the defendant’s trial was continued to October 24, 1989.

The first delay which the State alleges was attributable to the defendant was the time period from August 9, 1989, to September 25, 1989. The State contends this is so because the defendant’s letter of August 11, 1989, requesting that a new public defender be appointed for her, indicated that she was not ready to go to trial on August 14, 1989. We disagree.

A review of the record reveals that at the August 9, 1989, docket call, the public defender stated that he was ready to proceed to trial on August 14, 1989. However, the defendant’s trial did not take place on that date. At the hearing on the petition for discharge, the assistant State’s Attorney stated that on or around August 14, 1989, he had two cases set for trial for that date, the defendant’s case and one other. The assistant State’s Attorney indicated that he approached the defendant’s attorney because of this scheduling problem. According to the assistant State’s Attorney, when he told defense counsel of the predicament, the defendant’s counsel said that he would move the defendant’s case to the next docket call. The defendant’s attorney did not recall the conversation. Other than this conflicting testimony, the record is devoid of a motion for a continuance by the defendant or the State and is otherwise silent as to the reason for the delay. While it is true that the defendant filed a letter requesting new counsel, there is nothing in the record showing that any action was taken on this request, and, in fact, the defendant’s counsel remained unchanged following her sending of her letter. Where the record is silent regarding which party is responsible for a delay, the delay will not be attributed to the defendant. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) Because the record is silent as to the reason for the delay in trial from August 9, 1989, to September 25, 1989, the circuit court was correct in not attributing this time to the defendant.

The next time period which the State claims is attributable to the defendant is the period from September 25, 1989, to October 6, 1989, a period of 11 days. The defendant concedes that this delay was attributable to her. The record reveals that the court’s order of September 25, 1989, granted the defendant’s continuance until October 6, 1989. A motion for a continuance filed by the defendant is clearly a delay attributable to the defendant, and the court correctly attributed this delay to her. People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.

The third delay which the State contends is attributable to the defendant is the time period from October 4, 1989, to October 23, 1989. The State argues that the defendant agreed to the rescheduling of her trial date to October 23, 1989, at the October 4, 1989, docket call, and, thus, she was responsible for the delay from the date of the docket call until the time she was brought to trial. In addition, the State claims that the supplemental motions for discovery filed-by the defendant on October 2, 1989, contributed to the delay.

The defendant contends that the State waived the argument that her filing of supplemental discovery motions contributed to the delay, thereby making the time attributable to her, as this argument was not made before the circuit court but raised for the first time on appeal. We agree. At the hearing on the defendant’s petition for discharge, and at the hearing on the State’s motion for reconsideration, the State’s posture regarding the delay from October 4, 1989, onward to October 23, 1989, was that the defendant acquiesced in the setting of the trial date. The State did not argue that the supplemental discovery motions of the defendant contributed to the delay in trial. If an issue is not raised before the circuit court, that issue is waived. (People v. Adams (1989), 131 Ill. 2d 387, 546 N.E.2d 561.) Further, even if the issue had not been waived, the defendant had a right to discovery and the time necessary to complete it was not delay attributable to the defendant. (People v. Manna (1981), 96 Ill. App. 3d 506, 421 N.E.2d 542.) Our review of the information requested by the defendant in her supplemental discovery motions revealed that the State was not unduly burdened by her request and that the State was readily able to provide the information; thus, the defendant’s motions for discovery did not cause a delay attributable to her.

We now consider the State’s contention that the delay from October 4, 1989, to October 23, 1989, should be attributed to the defendant since the defendant agreed to the October 23, 1989, trial date. We find that the court’s determination that the defendant was not responsible for this delay was not an abuse of discretion. At the docket call on October 4, 1989, the court specifically asked if there were any speedy trial problems, and, if so, that the State’s Attorney advise the court. The State did not bring a speedy trial problem to the court’s attention at that time. Further, the State’s argument that it was the duty of the defendant to point out to the court that there was a speedy trial problem is unpersuasive. It was not the defendant’s duty to inform the court that the date set for trial presented a speedy trial violation, and there is no indication in the record that defense counsel was aware that the speedy trial period would run as of October 23, 1989. People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876.

Additionally, we do not find that the defendant agreed to the trial date of October 23, 1989. The excerpt of the October 4, 1989, docket call contained in the record presents the following colloquy:

“THE COURT: Elisa Smith.
MR. ERTHAL [assistant State’s Attorney]: The 23rd?
MR. HAWKINS [defense counsel]: That’s fine.”

The court found that the foregoing statement by the defendant’s attorney could not be construed as an agreement to continue to this date on the part of the defendant. At the hearing on the petition for discharge, the court took a recess for the express purpose of reviewing the transcripts of the prior proceedings to determine if the defendant had agreed to a continuance from October 4, 1989, to October 23, 1989. At the conclusion of the recess, the court held that his research did not support a finding that the defendant’s statement at the docket call was tantamount to an agreement to continue to October 23, 1989. Where it is unclear that a continuance is attributable to the defendant, the court must inquire into the circumstances surrounding the delay to ascertain whether it is attributable to the defendant. (People v. Gooding (1975), 61 Ill. 2d 298, 335 N.E.2d 769.) Here, the court did inquire into the surrounding circumstances and concluded that the delay was not attributable to the defendant. As was stated previously, the circuit court’s determination of allocation of delay is to be given much deference, especially where, as here, it is difficult to discern from the record which party is responsible for the delay, and, absent an abuse of discretion, the court’s decision will not be overturned upon review. (Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.) We find that the court’s decision to attribute the delay from October 4, 1989, to October 23, 1989, to the State was not an abuse of discretion.

The last delay the State urges as being attributable to the defendant was the one-day delay from October 23, 1989, to October 24, 1989. The State argues that the defendant’s motions in limine contributed to the one-day continuance. A review of the record reveals that the reason for the carry-over of the defendant’s trial from October 23, 1989, to October 24, 1989, was due to the lack of available jurors on October 23, 1989. On that date, only eight potential jurors were available. It is not the defendant’s responsibility to have sufficient jurors available for her jury trial, and the defendant’s motions in limine did not cause delay; therefore, the one-day delay was not attributable to the defendant.

Having considered the State’s arguments, we find that from June 12, 1989, until October 24, 1989, 134 days elapsed in which the defendant was incarcerated for the offenses charged. After the 11 days’ delay attributable to the defendant are subtracted out, 123 days remain. Thus, the State failed to bring the defendant to trial within 120 days as required by the statute, and the court did not abuse its discretion in attributing the delay to the State and properly granted the defendant’s petition for discharge.

For the foregoing reasons, the judgment of the circuit court of Madison County, dismissing the charges against the defendant for violation of her statutory right to a speedy trial, is affirmed.

Affirmed.

HOWERTON and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL JOE, Defendant-Appellant.
    Fifth District
    No. 5—88—0646
    Opinion filed January 23, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial held in the circuit court of St. Clair County on September 14-16, and 19, 1988, defendant, Darryl Joe, was found guilty of the first-degree murder of Dr. Barrett Coleman. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3).) Defendant appeals this conviction and his sentence to a 60-year term of imprisonment. The following issues are presented for review: (1) whether defendant was proven guilty of the offense beyond a reasonable doubt; (2) whether he was denied a fair trial by prosecutorial remarks made during opening statements; (3) whether he was denied a fair trial by an error made in the timing of closing arguments; and (4) whether his sentence was based on the trial court’s consideration of improper factors.

Defendant first contends that he was not proven guilty beyond a reasonable doubt because the circumstantial evidence offered by the State did not exclude every reasonable hypothesis of his innocence, citing People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631. However, our supreme court has made it clear that the reasonable hypothesis of innocence standard of review is no longer viable in Illinois. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) Instead, the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267, should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial. Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.

The evidence in this case, when viewed in the light most favorable to the prosecution (see Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277), establishes the following facts. Defendant’s brother, Demetrius Joe, testified that he, defendant, and another brother, Kevin Joe, agreed to help Curtis Kitchen rob someone that Kitchen knew. Kitchen drove defendant and his two brothers to defendant’s sister’s home in order to retrieve a gun. Lisa Joe and Donivan Lasley, defendant’s sister and her boyfriend, testified that defendant and Kevin came to her house that evening and left with two guns, a shotgun and a pistol. Lisa then saw defendant and Kevin get into a car driven by Kitchen.

Demetrius testified that from Lisa’s house Kitchen drove him and his brothers around the corner from where the victim was seated in a parked car. Defendant and Kevin got out of Kitchen’s car and walked in the direction of the victim’s car. Demetrius saw the lights on the victim’s car come on and the vehicle drive away. Demetrius and Kitchen followed the victim’s car to a nearby junk yard and parked a short distance away. Demetrius told Kitchen he was leaving and had just exited the car when he saw Kevin and defendant running back toward Kitchen’s car.

Lea Reed and Jerry Butler were sitting in a parked car when Butler heard a gunshot and both saw two boys running along the street behind a car, which the boys entered. Reed and Butler heard a man calling for help and went to him. Reed testified that the man identified himself as Dr. Coleman and told her that two boys had robbed and shot him.

Charles Cary testified that he was walking near Butler’s car when he heard a gunshot. Cary saw a car driving away, with defendant, Kevin and a third person running behind it. Defendant and Cary exchanged greetings as defendant jumped in the car and it sped away. A short time later, defendant and Kevin were seen at Cotina Valentine’s house, where witnesses Cary, Allie Fischer and Paula McCray observed the two pacing the floor and acting nervous. Cary testified that defendant pulled out a gun and gave it to Kevin, who unloaded it. Cary identified People’s exhibit No. 3 as the gun defendant was holding.

Although Allie Fischer denied her earlier statement to police that she had seen defendant with a gun, she testified to overhearing a conversation between Kevin and defendant, during which Kevin told defendant, “ ‘[M]an, when you shoot somebody you don’t [sic] supposed to shoot to kill.’ ” According to Fischer, defendant replied, “ ‘[H]an, when I shoot somebody, when I shoot I suppose [sic] to kill.’ ”

Firearms expert Thomas Gamboe identified People’s exhibit No. 3 as the weapon that had fired the projectile recovered from Dr. Coleman’s body. Forensic scientist Garold Warner identified a latent fingerprint recovered from the exterior of Dr. Coleman’s car door as belonging to defendant, although Warner could not determine when the print had been made.

Defendant argues that because Demetrius did not see defendant or Kevin with the murder weapon when they left Kitchen’s car, there can be no inference that defendant was at the scene with the murder weapon. However, the jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances which are relied upon to establish guilt, if all the evidence, taken together, convinces the jury beyond a reasonable doubt of the defendant’s guilt. (People v. Foster (1979), 76 Ill. 2d 365, 374, 392 N.E.2d 6, 9.) Defendant was seen with a handgun before the shooting and with a gun identified as the murder weapon shortly after the shooting. This evidence, along with defendant’s statement to Kevin following the shooting, was sufficient to allow a rational trier of fact to infer that defendant was at the scene with the murder weapon.

The remaining weaknesses in the State’s case pointed to by defendant are similarly nonfatal to a jury’s finding of guilt. Defendant argues that Demetrius’ testimony is less than credible because he testified against his brother as part of a plea agreement in the case. Defendant correctly asserts that as an accomplice, Demetrius’ testimony should be viewed with caution and suspicion. (See People v. Newell (1984), 103 Ill. 2d 465, 470, 469 N.E.2d 1375, 1377.) However, it is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Waln (1988), 169 Ill. App. 3d 264, 273, 523 N.E.2d 1318, 1324.) Therefore, where accomplice testimony has satisfied the jury of a defendant’s guilt beyond a reasonable doubt, a court of review should not disturb the jury’s verdict unless it is plainly apparent that the necessary degree of proof is lacking. (Waln, 169 Ill. App. 3d at 272, 523 N.E.2d at 1324.) Here, where the jury was aware of Demetrius’ motivation to testify and where that testimony was corroborated in several respects by other witnesses, we cannot say that it was unreasonable for the jury to have believed Demetrius’ account.

We similarly find that it was not unreasonable for the jury to infer that defendant’s fingerprint, found on the victim’s car, was made the night of the shooting. Although no method for dating a latent print exists, and evidence was presented concerning other opportunities for defendant to have made the print, these matters were explored on cross-examination and argued to the jury, and the jury found against the defendant. See People v. Eyler (1989), 133 Ill. 2d 173, 192, 549 N.E.2d 268, 276.

Finally, defendant contends that a note sent by the jury during deliberations, asking the court whether there was an option other than first-degree murder, should be interpreted as indicating that the jury was not convinced of defendant’s guilt beyond a reasonable doubt. We agree with the State that this assertion is “an exercise in pure speculation.” Regardless of the jurors’ concern at the time the note was written, their ultimate verdict of guilt and their responses when polled confirm their belief in defendant’s guilt, and we will not disturb that determination.

Defendant next contends that he was denied a fair trial by the State’s reference in its opening statement to charges for which defendant was not on trial. Defendant was originally charged on March 9, 1988, with armed robbery, attempted murder, armed violence, aggravated battery and aggravated kidnapping. Following Dr. Coleman’s death, defendant was charged, on May 6, 1988, with first-degree murder. On September 8, 1988, an amended information was filed charging defendant alternatively with first-degree murder with intent under section 9 — 1(a)(1) and first-degree murder while attempting or committing a forcible felony under section 9 — 1(a)(3) (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(3)). During the prosecutor’s opening statement at trial, he remarked to the jury: “[Fjour men were arrested for the shooting of Dr. Coleman. This defendant was one of them. They were originally charged with armed robbery, aggravated battery, a number of offenses. Those offenses were elevated upon Dr. Coleman’s death, to the offense of first-degree murder.”

Defendant claims that the prosecutor’s reference to the original charges was prejudicial to defendant because the prosecutor’s remark concerning the “elevated” charges did not let the jury know that defendant was not being tried on those charges or that they had been dismissed, thus allowing the jury to speculate that the charges were pending. However, since defense counsel neither objected to the remarks nor made any attempt to clarify the information given to the jury, and the issue was not raised in defendant’s post-trial motion, it is therefore waived. See People v. Volkmar (1989), 183 Ill. App. 3d 149,153, 538N.E.2d 1255,1257.

Even assuming, arguendo, that the issue had not been waived, the case law cited by defendant does not support his contention of plain error. Defendant cites People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321, and People v. Paull (1988), 176 Ill. App. 3d 960, 531 N.E.2d 1008, where the trial courts were held to have committed reversible error when, in instructing panels of prospective jurors, each court referred to a charge for which the defendant was not on trial. However, in Timms, the defendant was prejudiced where the jury, was not informed that the defendant had never been charged with the erroneously mentioned offense, attempted murder, and thus may have been left with the impression that this charge was also pending against the defendant. (Timms, 59 Ill. App. 3d at 137, 375 N.E.2d at 1327.) The defendant was similarly prejudiced in Pauli, where the jury was not informed that the State had elected not to prosecute a count of the original indictment mistakenly read to them. (Paull, 176 Ill. App. 3d at 962-63, 531 N.E.2d at 1009-10.) Here, no such prejudice existed where the jurors were told that the original charges had been elevated to first-degree murder following Dr. Coleman’s death.

Defendant also cites People v. Mordican (1976), 64 Ill. 2d 257, 356 N.E.2d 71, where the State, in its opening statement, referred to the defendant’s arrest on an unrelated armed robbery offense and in its case in chief presented the testimony of one of the police officers who arrested the defendant on that charge, without informing the jury that the defendant had been acquitted of the charge. The supreme court held that the opening statement, coupled with the State’s objection when the defendant attempted to inform the jury of his acquittal, was “plainly prejudicial” and warranted a new trial. Mordican, 64 Ill. 2d at 263-64, 356 N.E.2d at 71.

In Mordican, the prejudice to the defendant came from the mistaken impression given the jury that the defendant had committed other crimes. (See People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1016, 516 N.E.2d 382, 387 (generally, evidence of other crimes is inadmissible to show guilt of the offense charged).) Here, however, it was made clear at trial that all the charges referred to by the State in its opening statement were based on a single course of action which culminated in the shooting of Dr. Coleman. Furthermore, the jury was alternatively instructed on first-degree murder in the course of a forcible felony, namely, armed robbery. Therefore, where the jury was aware of the relationship between the other offenses mentioned by the State and the charge for which defendant was on trial, and this information did not prejudice defendant by showing his propensity to commit crime, any error resulting from the reference was harmless. See Cobbins, 162 Ill. App. 3d at 1016-17, 516 N.E.2d at 387-88.

Defendant next argues that he was unfairly limited in the amount of time allowed him for final argument. Defendant asserts that the court abused its discretion in denying his motion for mistrial, made after the jury retired for deliberations. Defendant’s motion was based on a clerk’s error in signaling defense counsel that his time for argument was up after 25 minutes, rather than the previously agreed-upon 45 minutes. In denying the motion, the court stated that it had previously told the attorneys to take as much time as needed, and that it was the attorneys who had made the agreement to limit argument to 45 minutes.

Defendant must demonstrate actual prejudice by the time limit imposed upon him (People v. Trolia (1982), 107 Ill. App. 3d 487, 502, 437 N.E.2d 804, 815, cert, denied (1983), 460 U.S. 1044, 94 L. Ed. 2d 180, 107 S. Ct. 1329), and here the court did not feel that defendant had suffered sufficient prejudice to grant a mistrial. Defense counsel did not request additional time, and the record reveals that he did address most of the relevant issues in the trial. Further, defendant’s brief is devoid of any important points he wished to make but did not have the opportunity to do because of the time limitation. Thus, where defendant has not shown how he was prejudiced by the difference in argument time, the court’s ruling was not an abuse of discretion. Trolia, 107 Ill. App. 3d at 502, 437 N.E.2d at 815.

Last, defendant contends that he is entitled to a new sentencing hearing or a reduction in his 60-year sentence given the court’s reliance on improper aggravating factors. Absent an abuse of discretion, a reviewing court may not alter the trial court’s sentencing determination. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) However, consideration of an improper factor in aggravation clearly affects the defendant’s fundamental right to liberty, and a court of review must remand such a cause for resentencing, except in circumstances where the factor is an insignificant element of the defendant’s sentence. People v. Martin (1988), 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886; People v. Maxwell (1988), 167 Ill. App. 3d 849, 851-52, 522 N.E.2d 288, 290.

Defendant maintains that the trial court erred in considering as aggravating factors, inter alia, the victim’s death, his standing in the community, and the participation of defendant’s younger brother Demetrius in the crime. At the sentencing hearing, the trial court’s comments included the following:

“The factors in aggravation that I will note are that you engaged in a course of conduct which threatened serious harm, indeed did cause serious harm to the victim. Further, that the sentence that I am going to impose today is indeed necessary to deter other people from committing these types of offenses. And I think also there are certain things that I have to take into consideration that are not really set out in the factors in aggravation. Number one *** you have a responsibility yourself that you did not assume. You brought your brother into this, a younger brother. You had an opportunity to prevent him from being involved in this, but instead you incorporated him and he wound up getting a sentence.
* * *
And I have to take into consideration the fact that [Dr. Coleman] was a doctor. Now, every human life is exactly the. same, I think it’s of equal value. But there are certain intangible things that we have to take into consideration. *** [Y]ou not only have deprived the community of another human life, but also a role model, someone that younger kids can look up to.”

The court’s consideration of serious harm as an aggravating factor in sentencing defendant for murder was improper, since serious harm is inherent in the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 497-N.E.2d 1138; Martin, 119 Ill. 2d 453, 519 N.E.2d 884.) The sentencing court may, of course, consider the force employed and the manner in which the victim’s death is brought about. (Saldivar, 113 Ill. 2d at 271, 497 N.E.2d at 1144.) It appears from the record, however, that the court considered the end result of defendant’s conduct, a result which is implicit in every murder. While consideration of an improper aggravating factor in sentencing does not always require remandment, resentencing is required where the reviewing court is unable to determine the weight given to the improper factor. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340.) The uncertainty in this case is compounded by the other improper aggravating factors considered by the court.

While a trial court may properly consider nonstatutory aggravating factors in imposing sentence (People v. Floyd (1987), 160 Ill. App. 3d 80, 88, 512 N.E.2d 1378, 1384), the evidence considered must be both relevant and reliable. (People v. Morgan (1986), 112 Ill. 2d 111, 143, 492 N.E.2d 1303, 1317, cert, denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329.) Here, the court noted that defendant had “incorporated” his younger brother in the offense. However, there is no evidence that Demetrius agreed to participate at defendant’s urging. Rather, it was Curtis Kitchen who planned the robbery and enlisted the help of all three Joe brothers. Thus, the evidence relied upon was irrelevant. Further, in People v. Varela (1990), 194 Ill. App. 3d 357, 363, 551 N.E.2d 318, 322, the appellate court recently-held, in a similar situation, that it was improper for the sentencing court to consider the defendant’s responsibility for his brother’s conduct. In Varela, the court had noted that it was defendant who “put in motion the series of events which eventually got his brother *** in trouble.” 194 Ill. App. 3d at 363, 551 N.E.2d at 322.

The court herein committed further error by placing emphasis on the status of Dr. Coleman in the community. Personal traits of victims are not relevant to the question of guilt or innocence or to the question of the proper sentence to be imposed. (People v. Walker (1985), 109 Ill. 2d 484, 505, 488 N.E.2d 529, 538, cert, denied (1986), 479 U.S. 995, 93 L. Ed. 2d 598, 107 S. Ct. 598.) Here, consideration of the victim’s profession and community standing was clearly inappropriate.

In view of the court’s comments, we cannot say that its consideration of these aggravating factors was an insignificant element in defendant’s sentence. It cannot be determined from the record that the weight placed on the improperly considered aggravating factors was so insignificant that it did not lead, to a greater sentence. (Maxwell, 167 Ill. App. 3d at 853, 522 N.E.2d at 291.) We thus vacate the sentence of the circuit court and remand this cause for a new sentencing hearing to be conducted by a judge other than the one who presided over the first hearing. See People v. Tompkins (1987), 155 Ill. App. 3d 380, 382-83, 508 N.E.2d 481, 483-84.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County convicting defendant of murder. With respect to the sentence imposed, we reverse and remand the cause for resentencing.

Affirmed in part and reversed in part; cause remanded with instructions.

RARICK, P.J., and HOWERTON, J., concur.